:^i li3M le ^AOJI1Y3JO'^ '^v FO/?^ ^OFCAIIFO^^ «^^WEUNIVE1IS/^ ^lOSANCfltf^ in-^^ >&Aavaani^ O li. ^OFCAllFOff^ ^OFW ^(?AHvaan-^^ ^ -5>\MIBRARYQi:, ^OFCAIIFOS'^ CI ^ y— 'I I' 5 ^^ '^iJOJITVJJO^ ^TTIJDNVSOI^ ^OFCAllFOff^ ^^MEUNIVE1?S'/^ '%a3A ^^IJDNVSOl^ "^/^HJA RYQc. ^IUBRARY<9/' aM!UN1VE1?S"/a i~n —J I 11 m >^ I ^^^n^ "^ )J0^ ^.!fOJnVDJO>^ ^lOSANCnfj^ ^lUBRARYQ^ ^M ^OFW "^/saaAiNdJWV -^(^Aavaan-x^ ^ 5 ^^^ — '''^ %^AINnjWV ^OFCAUFO/?/]^ ^OFCAllFOff^ \\\EllNIVERJ//i ^10S4 ^^Aavagii]i^'^ ^&Aava8ni'^'^ 5 5 ^JIIVJJO'^^ '^<»0JnV3JO'^' ^\>\fUNI\TO^ '^ajAINIimV' - < AVvUiBKAjnr/?/:^ -o^iiiBKAfrry/ ^^\1t•UNlvtw/^ Q r >— * ti: 'KSfOJIlVDJO^' '^' er Butler, J, The legal question in this case arises out of the following state of facts : The defendant found horses in the enclosure of his emi>loyer ; he caught and put them in a lot or stable, where he kept them for about three days ; and during the time they were confined, one of them, a mare, was crippled, as it would appear, by a kick from one of the other horses. There was no evidence that the mare received any injury by the act, command, or volition of the defendant. He did not, directly or indirectly, commit any violence on the animal ; but the injury which she received was in consequence of the confinement. Now, there could have been no trespass in the beginning ; for any one may law- fully take up stock trespassing within his enclosure, either with a view of empounding them under the Act of 1827, («) or proceeding under the law concerning estrays (b); or with a view of giving the owner, when known, information. It would be a hard proceeding to hold the person who has thus acquired the custody of stock, liable for an uninteiitionable injury which they may have received. If one died, and the injury was the result of negligence or unnecessary detention, an action on the case, or trover, might lie for damages, but not trespass, which ^presupposes direct r^-,i force, and a wilful wrong. Self had the license of the law in taking '- up the horses ; and could only be held liable as a trespasser by a subse- quent abuse of it. In such case, he might become a trespasser, ab initio. Notwithstanding the injury which one of the horses received, the defend- ant might have justified himself by impounding them under the Act of 1827 ; or by proceeding under the estray law ; but, he was not bound to do either, if in good faith he turned them out, after he had ascertained their owner ; or had determined to give up any claim on them for an injury which they may have done to his crop. If defendant had unneces- sarily worked, rode, or in any wise wilfully abused the horses, he might have been made liable as a trespasser ; but of this there was no evidence ; on the contrary, the injury the mare received was rather the result of accident than attributable to design. Let the defendant have a new trial. (a) 6 Stat. 331. (&) 5 Stat. 465. An. Jones and Danforth vs. A. G. Colvin and wife. "Wliere a daughter (an infant) resides with her mother, before marriage, it will be presumed that she was jiroperly maintained, until the contrary is proved ; for the mother is considered to be the proper judge of what is necessary for her, and should be consulted before a credit is given to her. Vide Connolly/ ads. Assignees oflhdl, 3 M'C. Rep., 6 S. P. Before Gantt, J., at Edgefield, Fall Term, 1840. This was an action on merchants' account, for goods sold to Mrs. Col- vin, whilst a minor, and before her marriage. The defendants pleaded infancy, to which the plaintiS's replied that the goods were necessaries. The plaintiffs proved their account. The defendants established the infancy of Mrs. Colvin at the time the goods were sold, and that she 10 COLUMBIA, DECEMBER, 1840. VOL. I. [*14 ^ .-, lived *with her mother and was properly maintained by her. The -I point made in the case was, that as Mrs. Colvin, whilst single and under ajre, lived with and was properly maintained by her mother, she could not bind herself to a stranger for necessaries. The jury, under the charge of the Judge, found a verdict for the plaintiffs. The defendants appeal, and now move the Court of Appeals for a new trial, on the grounds taken upon the circuit. Curia, per Earle, J. The question raised by the motion seems to have been directly decided in the assignees of Hull vs. Conolly (3 McC. 6.) and indeed does not appear to have been then considered open for debate. In that case, as in this, the infant defendant lived with her mother, and although there was no proof that suitable maintenance was provided, yet Mr. Justice Nott held that it ought to be presumed, until the contrary be proved ; that the mother was the fittest judge of what was necessary in the article of clothing, and that the plaintiff ought to have inquired into the circumstances, and consulted the mother, before he suflbrcd the debt to be contracted. On that ground, mainly, was the new trial granted. In Bainhrulf/e vs. Pickering (Bl. Rep. 1325), which was a similar action against a female defendant, not of full age, living with her mother, who provided properly for her, Gould, J., said the child, in such case, cannot bind herself to a stranger for what might otherwise be allowed as necessaries ; and that no countenance should be given to such persons as euveigle young women into extravagancies, under the pretext of furnishing them with necessaries, without the previous consent of the parent. It was also held by Lord Kenyou, in Ford vs. Fothergill (1 Esp. Rep. 211), and by Ch. J. Best, in Cook vs. Denton (3 Car, and Pay. 114), and it w^ould be of very mischievous consequence if the law were otherwise. The protection intended to be afforded to infants, against the improvidence natural to their inexperience, would be rendered inef- fectual ; and the discretion and judgment of the parent, in prescribing what tiie child shall wear, would be wholly superseded. In the case before us, there is no room for presumption, for the proof is, that the defendant's wife, for whom the goods were furnished, was suitably main- ^jg-| tained Ijy her mother, *with whom she lived. The goods, therefore, -^ in a legal sense, were not necessaries, and she could not bind her- self to pay for them. The motion is granted : the whole Court concurring. S. "W. Bentley ads. D. Reynolds. Any wonlrt occasioning actual (lamap;(! to one, are actionable, and it is not ueces- Hary tliat tlu^y hIiouM be defamatory. ,Siurview of the Act of Assembly for hawking and pedling. A hawker and pedlar is one who travels from town to town, or from plantation to plantation, carrying to sell, or exposing to sale, goods, wares, and merchan- dize ; but a single shipment of goods, regularly consigned to Polock, Solomon & Co.. by the defendant, and sold by himself or them, for his use and benefit, is not hawking and pedling -nithin the meaning of the Act. The defendant a non-resident of this State, did sell goods, wares, and merchandize in a house in the town of Columbia, and is therefore, when properly indicted and convicted, liable to the penalties of the Act of Assembly of 1835 — page 6. (^Per O'Neall, J. 26 COLUMBIA, DECEMBER, 1840. VOL. I. [*40 Before Evans, J., at Richland, Fall Term, 1840. The defendant was indicted, under the Act of Assembly, for hawking and pedling in books. The evidence in substance was that the defend- ant was a transient person. The books were sent up from Charleston, consigned to Polock, Solomon & Co., merchants and auctioneers in Columbia, by whom the freight from Charleston was paid. A short time before the 28th November, 1838, the defendant came to Columbia, and arrangements were made for the sale of the books at night, by auction, and in the day by private sale. A room was hired for the purpose. Hand bills were printed, giving notice of the auction by Polock & Solomon. The sales were opened by Polock, but he gave place as crier to the defendant, who was very expert as an auctioneer. The account of sales was kept by a clerk of Polock & Solomon. In the day time, the defendant sold books at private sale, but one of Polock & Solomon's clerks usually attended in the store. The sales continued three days and nights. The books unsold were subsequently packed up and sent to Charleston. Those that were remaining on hand, if any, on the first of January, were returned to the tax collector as part of the stock in trade of Polock, Solomon & Co. The money for the books sold, was sometimes to them and sometimes to the defendant. These facts were proved by Polock and Levy, two of the partners ; they also *1T1 P''0'^^"ced their books, *showing an aggregate of sales at auction, of -^ $"^,5T"2, and §350, at private sale. From these amounts was de- ducted, the freight, house rent, 5 per cent, commissions on the sales at auction, and 1 per cent, on the private sales. And for the balance they said they had accounted to the defendant. It was proved by Cunningham that he purchased books and stationery to an amount exceeding $100, part at auction and part at private sale, and produced the receipted bill signed by Belcher, to whom he paid the money. He also said Belcher told him he had sold to the amount of $'J000, nearly half of which was at private sale. I defined a hawker and pedlar to be an itinerant trader who carries goods, &c., through the streets, from town to town, and from place to place. It was the itinerancy of his employment which gave character to it, and not the mode in which he carried his goods, or the place where his wares were exposed to sale. I charged the jury as follows, viz : 1. Tliat it was a usual and common course of business to consign goods to an auctioneer or agent, to be sold for and on account of the owner. Such i^'dk?, if honafi'Ie, wore the sales of the agent ; and it could and did make no diiTerence whether the owner was present assisting at the sales or not. If, therefore, the account of these sales, as given by the auctioneers, was the true one, then I thought the defendant ought to be acquitted. '2d. But if the employment of Polock, Solomon & Co., was merely pretensive, and Belcher was the vendor of the goods under color of their name; or if, over and above the amount sold by them, he cITocteil other sales himself, independent of their agency, then the jury miglit convict him. The defendant was convicted. GROUNDS OF APPEAL. 1. Because there was no evidence to sustain the charge laid in the indict- Dieat. *41] STATE VS. BELCHER. 27 2. There was no proof that defendant was a hawker and pedlar within the meaning of the Act of 1835, increasing the price of license, under which he was indicted. 3. There was uncontroverted evidence that the goads were regularly con- signed to Polock, Solomon & Co.; that they made the sales, and received r^^..^ their usual commissions of* 5 per cent, on auction sales and 1 per cent L "' on private sales. 4. The jury probably misapprehended the extent of the charge by the Court, that if defendant employed Polock, Solomon & Co. with a view to invade the law against hawkers and pedlars, he would be liable. 5. Because the Court charged that if Belcher sold more goods than he paid commission^ for to Polock, he would be liable under the Act. Curia, per O'Neall, J, This case, it seems to me, turns upon tlie question, whether the defendant is, oris not, a hawker and pedlar, withia the Acts of this State ? This question will be answered by ascertaining, first, from our Acts, who is a hawker and pedlar ; and secondly, whether, from the facts proved, that character is fixed upon the defendant ? To answer the first question, we are obliged to go back to the old Act of 1737, P. L., 152. Its preamble and enactment both point to "per- sons who travel from town to town, from one plantation to another, by land or by water, carrying to sell or exposing to sale, any rum, sugar, or other goods, wares or merchandizes," as those designated by the, general terms, " Hawkers and Pedlars." All the subsequent Acts, (Act of 1797, 2 Faust, 151 ; Acts of 1825, p. 60 ; Acts of 1831, p. 40 ; Acts of 1835, p, 45,) speak of " Hawkers and pedlars," as known legal terms, and do not extend their meaning. Taking then the true meaning to be that pointed out by the Act of 1737, it is impossible that the defendant, in any point of view, can be regarded as a " Hawker and Pedlar." He is not one who travels from town to town, or from one plantation to another, carrying to sell, or exposing to sale, goods, wares and mer- chandizes. This is a single shipment of goods regularly consigned to Polock, Solomon & Co., and by them, or by himself, sold at auction or private sale, for his use. This is any thing else than hawking and pedling. It is just such a sale of goods as is constantly effected in every city ia the union ; and, I presume, that it never entered into the head of any one that such a sale was an act of hawking and pedling. In construing a highly penal statute, we should be bound to give it such a construction as would prevent persons not clearly embraced by its words from being held amenable to its provisions. If the statute did not define hawkers and pedlars, *we should then have to ascertain what was the usual r^jtiq popular meaning of those words. That would give the definition L given by the Judge below, and which is in substance the same by the Act. Taking it, and defining a hawker and pedlar to be " an itinerant trader who carries goods, &c., through the streets, from town to town, and from place to place," no one, it seems to me, could suppose that any thing short of a sale of goods by the retail in this itinerant way, would constitute one a hawker and pedlar. It is, however, unnecessary to pursue this reasoning any further, as the 11th section of the Act to raise supplies for the year 1835, (Acts of '35 p. 6,) (c) most plainly pro- (rt) 3 Stat. 4S7. An. (&) 5 Stat. 308. 6 Stat. 265. Id. 433. Id. 529. An. (c) 6 Stat. 543. An. 28 COLUMBIA, DECEMBER, 1840. VOL. I. [*43 Tides for the case of the defendant, and he cannot, therefore, be held liable to the greater penalties of the Acts against hawking and pedling. It provides, "" If any transient person or persons, not resident in this State, shall at any time sell, or expose for sale, any goods, wares, or merchandize whatever, in any honse, stall or pnblic place, after the first day of January, in each year, such person shall make return, on oath, within ten days after commencing to sell as aforesaid, of the whole amount of the stock in trade he may have possessed at that time, to the tax collector of the district or parish in which the said goods, wares, or merchandize shall have been or may be sold or exposed to sal,e. And if any person shall neglect or refuse to make such return as aforesaid, within the time prescril)ed above, he shall, on conviction thereof by indict- ment forfeit and pay the sura of not more than $1000 ; unless such person shall have ])aid for and procured a license according to the provisions of an Act entitled " An Act to increase the price of license to hawkers and pedlars " The defendant, a person not resident in this State, did, within the words of this Act, sell goods, wares and merchandize in a house in the town of Columbia, and is therefore, when properly indicted and con- victed, liable to its penalty. The exception with which the section closes in favor of hawkers and pedlars, does not make all persons not resident in this State, and selling or exposing for sale, any goods, wares, or merchandize, in any house stall, or public place, necessarily hawkers and pedlars. It was intended to save such hawkers and pedlars who had taken out the license, and might sell or expose to sale in a house, stall or public place, their merchandize, from being liable to this general pro- vision. *44] *The motion for a new trial is granted. KiciiARDsoN, Earle, Butler, JJ., concurred: Evans, J., absent, but concurs : Gantt, J., absent. W. F Be Saussure, for the motion. Mr. Solicitor Edicards, contra. The State vs. David Mobley. All roads laid out by public wdhoriUj must bo regarded as public roads, in the ol)strui;tion of which a nuisance may be committed. A road laid cmt by order of. the County Court of Chester district is a public road, unless discontinued by order of the commissioner of roads, or become extinct from lonj,' neglect or non user. Jkfore O'Xeall, J., at Chester, Fall Terra, 1839, The defendant was indicted for obstructing a road leading from the plantation of Wm. L. Wallis, on the York road, to the mill of Cliarles AValker, deceased, in Chester district. The proof very clearly estab- lished an oljstrnction of the road by the defendant. The County Court of Chester, on the 31st of July. 1198, ordered the road to be laid out I)y the following order : " On petition, ordered, that n Irarrlliiui road be laid out and cleared from Thomas Wallace's to Robert Owen's grist mill, to be laid out at the direction of Thomas *44] STATE VS. MOLBEY. 29 Wallace and William Monalian, the nearest and best way, so as not to interfere with the enclosure of any person whatsoever, and to be cleared and kept in repair by the persons who live contij^nous thereto, and have the benefit thereof; also, a rad from the mill to intersect the Charleston road near the lower corner of Thos. Cabeeu's field, and thence into Fish- dam road above William Murray's on the same conditions and premises as the above, at the direction of James Yants." *Under this order, the road was opened and laid out. It has r-^ . r been an open road since '98 : some persons voluntary worked on it ; L the commissioners never kept it in repair. It was still, however, used by the neighborhood. It was changed by many persons through whose land it ran, as suited their convenience. Owen's mill was ten or twelve years out of repair ; it was then repaired by Charles Walker, who had bought it. I submitted to the jury the inquiry — is this a public road ? I said to the jury that that which is for |)rivate use cannot be regarded as public. A road to a church or a mill, and there terminating, would not, in general, be a public road. On this part of the subject, I said to them, there was a great difference between our condition and that in England, whence our common law was derived. That I thought it possible here that a road to a mill might be a public one ; as when it was used by the people at large, and where it led from a public road to the mill and thence into another public road, and became a public thoroughfare. I did not say to the jury, as the defendant's ground of appeal suppose, " that the English common law, in relation to roads, was not applicable to roads in this State." I said further to the jury, that a road from village to village, or from one public road to another, might or might not be, a public one. A road kept in repair by the commissioners of roads, is a public road It might, however, be that a road not kept in repair by the commissioners, was a public road. As where a road is laid out by public authority for the use of the people. If such a road be discontinued by the com- missioners, then it may end its piiblic character. So, too, where they do no act disclaiming the road, yet it might be disused for such a length of time as would satisfy them that it had ceased to be public. Frequent changes of a road, unless they amount to an abandonment, could not affect its public character. With these instructions, the case went to the jury, who found the de- fendant guilty ; he appeals on the annexed grounds. GROUNDS OF APPEAL. 1st. Because his Honor, the presiding Judge, erred in charging the jury : 1. That the common law of ICngland, in *re]ation to roads, was not appli- r^ , « cable to roads in this State. 2. That the road in this case had been ^ established as a public road. That a civil action could not be maintained for obstructing a road such as this. 4. That this road had not been abandoned. 2. Because the verdict of the jury was contrary to the evidence that this had never been established as a public road ; that it had not been opened by the public ; that it never had been repaired or worked on by the inhabitants ; that it never had been regarded by the commissioners of roads, or by the inhabitants of the neighborhood, as a public road ; that it had been obstructed by several persons, in various places, for twenty years ; that during a period of 30 COLUMBIA, DECEMBER, 1840. VOL. I. [*46 ten or twelve years, the mill to which it led had been destroyed and the road abandoned ; that the road had not been entirely obstructed, but only turned ; that the defendant was indicted for obstructing a public road, and that this road led only to a grist mill ; as well as the law in relation thereto. ORDER OF THE COUNTY COURT, At a Court held and continued by adjournment for Chester county, at the court house of said county, on the 31st' day of July, in the year of our Lord one thousand seven hundred and ninety-eight, and of the independence of the United States of North America the twenty-third, present Joseph Brown and William (jaston, Esquires, two of the Judges of the Court. On petition, ordered, that a travelling road be laid out and cleared from Thomas Wallace's to llobert Owens' grist mill, and to be laid out at the direc- tion of Thomas Wallace and William Monahen, the nearest and best way, so as not to interfere with the iuclosure of any person whatsoever, and to be cleared and kept in repair by the persons who live contiguous thereto, and have the benefit thereof; also, a road from the mill to intersect the Charleston road near the lower corner of Thomas Cabeen's field, and thence into the Fishdam road above William Murray's, on the same conditions and premises as the above, at the direction of James Vauts. Ordered, that a public road be laid out and made, the nearest and best way, taking off the Charleston road where the old road formerly took off, below Stinsou's old field, to strike the Fairfield county line at the same place, at jirA^^l where the *Mountain Gap road intersects the said Fairfield county line, -' at the direction of John McDivniels; and that all persons living two miles of said road, within the limits of said county, be called on to clear and keep the same in repair. Curia, per O'Neall, J. In tins case my opinion expressed on the circuit has undergone no change. The facts have been found by the jury, that in its origin, this road was laid out as a public road ; that it has been used as such ever since ; and that there has been iio such change of it as would affect its allowance. It only then remains to inquire whether, in law, it can be regarded as a public road ? I tliink there is sopie confusion, in cases bf this kind, by the manner in wliich higliways are defined in the books. The distinction between public roads, (consisting of highways and private roads or paths,) and private ways, have not been observed. (a) Judge Brevard, (3 Brev. 85,) in the ca^e of e.rprMe Withers, has, 1 think, properly classed and distinguished puljlic roads. He says "public roads are best distinguished into two sorts, namely, highways and private roads or paths. A highway is a principal road leading to- a market town, or some place of general resort, and is commonly travelled by all kinds of people. Private roads are neighborhood ways, not commonly used by other than the l)coi»lc of the neighborhood where they arc, although they may be used by any one wlio may Iiave occasion to do so," A private way, ou the other liand, is a way arising by grant for the use of one or more individuals. The road law of 1721, (P. L. iii. sec. 19,)(6) provides that " all and every the respective commissioners above mentioned, within their parishes or divisions, or the majority of them, shall, witli all con- venient speed after tbe ratification of this Act, at the equal charge and ill n o^ "^ V'/^; ° ^^''^- ^^^- 2 N. & McC. 527. 4McC. G8. 3McC. 170. An. (b) Stat. .04, § 19. An. *47] STATE VS. MOLBEY. 31 labor of all and every the male inhabitants residing within the respective divisions aforesaid, from the age of sixteen to sixty years, make, mend, alter and keep in repair, all and every the high roads, not exceeding forty feet wide, private paths, bridges, causeways, creeks, passages and water courses, laid oiit and to be laid out in the aforesaid several pre- cints and parishes " This Act, it will be observed, is in exact conformity to Judge Brevard's classification of public roads. By public authority, two kinds *of roads then existed, and were afterwards to exist, in r^.Q South Carolina, "high roads" and private paths." What was '- meant by " private paths," has been, I think, further elucidated by Judge Brevard, in the case exparte Withers, (3 Brev. 86.) He says, " by the words " private paths," " it seems clear that the Legislature meant roads free and common to all who might choose to make use of them ; that is to say, public ways diverging from and running across the main or principal roads or highways, commonly called " great roads," and not private paths exclusively apjiropriated for private purposes." This definition embraces, I think, very clearly, the road in question. But this can be made more apparent by a further reference to our legislation on this subject. By the Act of 1185, sec. 55. (P. L. 385,)(a) the Judges of the county court were clothed with all the power and authority of the commissioners of the roads in relation to roads. The Act of 1788, (P. L. 443-4, )(?>) provided for the appointment of commissioners of the roads ; and by the Gth section, provides that they shall be authorized and required to lay out, make and keep in repair all such " high roads, private paths," &c., as they shall judge necessary. The ITth section of the same Act, (P. L. 441,) provides that the Judges of the county court shall be vested with the same powers respecting the high roads and bridges with which the commissioners were by this Act clothed. Under this authority they laid out the road in dispute, and its origin there can be therefore no question that it was a public road, distinguished from a high road as a private path. Independent of the public character of the road, ascertained from its public origin, the terms made use of in the order " a travelling road," make it as open to public use as if the words had been in the succeeding order — " a public road," used by the Judges, ordering another road to be laid out. But neither the commissioners of roads nor the judges of the county court ever had the power to lay out a mere private way. This is conclusively shown by exparte Withers, (3 Brev. 83.) The power of laying out a mere private way, never having been conferred, as I have no doubt it never could have been consti- tutionally, exercised or conferred, by the Legislature, it follows, that all roads laid out by public authority, must be regarded as public roads, in the obstruction of which a nuisance may be committed. It is, however, supposed, unless the public are liable to keep the *road in repair, ^^ , „ that it cannot be regarded as a public road. But this I do not ad- ^ mit. There are many roads which are essentially public, where there is perhaps no liability to keep them in repair. An instance of this kind will be found in the case of Rowland vs. Wolf, (1 Bail.) On the present occasion, I am, however, far from believing that the commis- sioners of high roads, for Chester are not liable to keep this road iu (a) 7 Stat. 237. An. (6) 9 Stat. 309. An. 32 COLUMBIA, DECEMBER, 1840. VOL. I. [*49 repair. For the order directing tlie roads to be laid out, directs " that it sliall be cleared and kept in repair by the persons who live contig-uous thereto and have the benefit thereof." This is in exact conformity to the powers conferred on the county court judges and the commissioners of roads by the Acts of '85 and '88. A road laid out and directed by the couuty court judges iu '98, to be kept in repair, was in pursuance of the power delegated to them by the Legislature, and is in law the same as if the Legislature, by Act, had done the same thing. Looking at it as a road established by the Legislature, and by Act directed to be kept iu repair, there could be no doubt of the liability of the commissioners to keep it in repair, no matter how long they might have neglected it. This last observation however, must be always taken with the qualification, that the road had not lost its public character by non user. On the present occasion, the jury have found that the road had not been so long disused as to destroy it. These views, it seems to me, end all controversy about the character of the road, which might otherwise arise from its terminus. The cases iu which that would have effect are where the way is to be referred to prescription merely. The motion is dismissed : the whole court concurring. Gregg and IIcAlilly, for the motion. Flayer, Solicitor, contra. '~ See Infra, 329. State r. Pettus, 1 Rich. 393. State v. Sartor, 2 Strob. 60. A^ash V. Peden, 1 Sp. 21. Heijward v. Cldsholm, 11 Rich. 262. 6 Rich. 399. 5 Rich. 186. An. *50] *David Ewart vs. M. Gt. ]S'agel and A. G, Nagel. A feme covert cannot be made a feme sole carrier under the custom, or under the Acts of the Legislature of 1823 and 1824. The privilege of a feme sole trader does not reach beyond buying and selling merchandize. S. P. 1 Hill, 429. Before O'Neall, J., at Columbia, Spring Terra, 1840. ^ This was an action against defendant, M. G. Xagel the wife of A. G. Xagcl, (who was joined for conformity sake,) as a feme sole trader, to charge her with a loss of cotton shipped on a boat alleged to belong to her, called the Swan. The ])roof was that her husband, A. G. Nagel, received the cotton and signed the receipt as agent for M. G. Nagel. He generally acted in all matters al)out the boat. Mrs. Nagel had a store in Columbia, or rather one was carried on in her name. Her husband acted as her agent in every thing about it. He was insolvent and had no i)roperty : the property in his possession was considered and sold as the property of his wife. She was cou- Kidercd as the owner of the boat ; but there was no proof on that matter further than mere reputation : for the possession in fact was by Major Nagel, her liusl)aiid. She was also regarded as a free dealer. The lo.-s of the cotton was proved, and the only question was whether *50] EWART VS. NAGEL. 33 Mrs. Nagel, a feme covert, could be made liable as a common carrier. I thought, and so instructed the jury, that there could not be such a thing as a feme sole trader in boating. That the character, with its privileges and liabilities, only existed in the mercantile business carried on by the wife separate and apart from the husband. His interference with the business would prevent the wife from l)eing regarded as a feme sole trader. That the act of the Legislature had not extended the com- mon law in this respect : it had added to the common law requisitions, the publication of a month's notice of the intention to carry on a sepa- rate business, and to become a feme sole trader. That the only ground on which the defendant could be liable was, that the boat was her separate estate; and that hence earning for her freight, she would on that account be liable. The jury were told to enquire as to that fact, and if *they were satisfied of its truth, to p,: r, find for the plaintiff, otherwise for the defendants. '- The jury found for the defendants. The plaintiff moves the Court of Appeals for a new trial, on the annexed ground. GROUNDS OF APPEAL, Because the evidence having been full, clear and uncontradicted, that the defendant, M. G. Nagel, was a free dealer and sole trader in the business of merchandise, and of boating connected therewith ; that the store and boat belonged to her as a free dealer and sole trader, and were thereby protected from the creditors of the defendant, A. G. Nagle, who was notoriously and utterly insolvent, and who acted as her clerk and agent in the store and about the boat ; that as such free dealer and sole trader, she received the cotton of the plaintiff of the value of -SI 390 62 on board her said boat, to be carried to Charleston for certain freight, to be paid to her as such free dealer and sole trader; and that the said cotton was never re-delivered to the plaintiff or his factors, whereby he suffered a loss of 81.390 62; the verdict of the jury was not only contrary to the said evidence, but without any evidence whatever, and was contrary to the law in relation to the subject matter of said evidence. Curia, per O'jSTeall, J, This Court is satisfied with the instruction given by the presiding Judge, that "there cannot be such a thing as a feme sole trader in boating :" The other instruction that she might be liable in respect of the boat being her separate. estate, is more doubtful : but as that was in favor of the plauitiff, and as the jury have found against the fact which was the predicate of that instruction, and as we think their verdict, in that behalf, ought not to be disturbed, it is unneces- sary now to give a definite opinion ou that point. I will, in as few words as possible, assign the reasons why we think there cannot be a feme sole trader in boating. The utmost latitude to which this extraordinary privilege can be extended, would be to allow it to attach to other business besides merchandise, which females can and usually do carry on without the aid of their husbands. Generally speaking, the custom ought to be strictly construed ; and there is little *reason why we should give it a wider extension here than it bad r^-rn in London. '- The Act of 1144, sec. 10, (P. L 190,)(a) recognized the existence of feme sole traders, and fully justified the Court in applying the custom, as (a) 3 Stat. 420: See also Act of 1712. 2 Stat. 593. An. YoL. I.— 4 34 COLUMBIA, DECEMBER, 1840. VOL. I. [*52 was done in 1198, by the constitutional court, to the case of Neiubiggin vs. Fillans and tvife, (2 Bay, 164.) That case arose out of buying and selling merchandize. The Court, iu that case, expressly recognize the custom, as stated in Mr. Turnbull's argument, to be that " where a ferae trades by herself in one trade with which her husband doth not inter- meddle, and buys and sells in that tmde, then the feme shall be sued, and the husband named only for conformity and if judgment be given against him, execution shall be only against the feme." So in Surtell ads. Brailsfoi'd, (2 Bay, 333,) the Judges maintained the same doctrine, when they said that " the defendant kept a shop and carried on business in her own name, apart from her husband, (if she ever had one) and in which he never intermeddled for the space of ten or twelve years, which constituted her a sole dealer at common law." These two cases consti- tuted the guide to the profession of the law : and it was, I think, the generally received opinion, that a feme covert could not acquire the character of a sole trader in any other way than by making out the proof of the facts required by the custom, until the cases of McGrath vs. Bobison, (1 Eq. Rep. 445,) and Miller vs. Tollison, (Harp. Eq. Rep. 145.) The first of these cases has been, by Judge Johnson, in the case of McDaniel vs. Cornioell, shown to be not inconsistent with the customs. 'The case of Miller vs. Tollison extended the custom to the business of tavern keeping, and it may be sustained on the ground that it is a busi- 'ness that females may and do carry on without the aid of their husbands ; 'but I confess that I should be little disposed to take that view, unless constrained so to do by the case to which I have referred. (a) The Acts of 1823 and 1824, (pages 35 and 23)(6) have been the fruitful source of many errors in this behalf. It was supposed that they had introduced a ■new mode of constituting feme coverts sole traders, when, in point of fact, they only recognized the custom, and imposed additional restrictions on its allowance. The case of McDaniel & Cornioell, (1 Hill 29,) *Ro-l corrected these errors By *it, it was held that the privilege of a -' feme sole trader arose out of the business of buying and selling merchandize, carried on by a feme covert without any intermeddling therewith l)y the husband, after a compliance, on her part, with the requisitions of the Acts of '23 and '24. Tins Ijrief review of the law of this State fully sustains the position that a feme covert could not be made a feme sole carrier, under the custom, or under the Acts of the Legislature. If we were, however, free to reason about it, as an original proposition, we must come to the same conclusion. It is utterly inconsistent with the duties of the wife to the husband and to her children, that she should engage in a business which would deprive them of her society and assistance, which would Bend her out into the I)usy world to mingle with all classes, and lose that distinctive modesty of character which makes her at home and abroad the ornament and the directress of society. But it is argued that the business of a common carrier is such as would make the person engaged in it a trader within the meaning of tlie English statutes of bankruptcy. This m:iy be so, and still it will not help the plaintiff. For the term («) C Stat. 212. Id. 23G § 2. An. (/') See Dial v. Knmffer, 3 Rich. 78. An. *53] MYERS VS. LEWIS. 35 trader, when applied to a feme covert, is used in a restricted sense. Its meaning is pointed out by the custom of London, which has been allowed in this State. According to that, it does not reach bej'ond buying and selling merchandize. The motion is dismissed : Richardson, Earle, Butler, J J., con- curred : Evans and Gantt, JJ. absent. Gregg, for the motion, De Saussure and Black, contra. *Mrs. p. Myers vs. "Wm. J. Lewis. [*54 The Act of 1799, requiring the plaintiff in any writ of attachment to enter into bond, before the clerk of the Court of the district in which such wi'it of attachment is issued, to the defendant, in double the amount of debt or demand for which the attachment is issued, requires that the bond given shall be only executed Ity the plaintiff, or his attorney in fact, and acting in his room and stead. No other person is authorized to execute such bond. Before Evans, J., at Richland, Fall Term, 1840. This was a motion made to quash a writ of attachment which had been issued by the plaintiff against the defendant, and the bond executed by her son, William M. Myers, Esq. His Honor overruled the motion, upon the ground that it was sufficient that the bond required by the Act had been given by the plaintiff's son ; from this decision the defendant appealed to the Court of Appeals, and renewed the motion to quash the writ. Curia, per O'Neall, J. The Tth section of the Act of 1799, entitled "An Act supplementary to an Act entitled an Act to establish an uniform and more convenient system of judicature," (2 Faust, 315,) enacted that it "shall not be necessary to petition, as heretofore, any of the judges of the State for any writ of attachment."(a) Accompanying this enactment is a proviso in tlie following words : "Provided, always, that no writ of attachment shall issue before the jylaintiff' has given bond to the defendant, in double the amount for which the attachment issues, to be talvcn by and lodged with the clerk of the district, to be answerable for all damages which the defendant may sustain by any illegal conduct in obtaining said attachment." The words of this proviso are so plain that we are compelled to enforce them. None but the plaintiff, or his attorney in fact, acting in his name and stead, can execute the bond. We have no right to do more than to say " ita lex acripta.'''' If we were, however, at liberty to reason about it, we should arrive at the same conclusion. Tlie plaintiff suing can just as easily constitute an attorney in fact to execute the bond, as he can appoint an attorney at law to sue. The defendant, too, is "^entitled to the security of the i-.-^^^^ party professing to Ije his creditor, to be answerable for all damages L for any illegal conduct attending the suing out his attachment. If this (a) 7 Stat. 294. See Act of 1839. 11 stat. 70 § 21. An. 36 COLUMBIA, DECEMBER, 1840. VOL. I. [*55 were not so, persons absent from the State, and having property in it, niijirht be harassed by attachments on unfounded claims, and the persons setting them on foot might shelter themselves behind the bond of irre- sponsible persons. So, too, it is for the plahititf' s interest that he, in person or by attorney, should execute the bond. He might not be willing to incur the responsibilities of an attachment, if informed that that was his mode of redress. It is the right and the duty of a party in Court, to be informed correctly of the consequences likely to result from the proceeding set on foot in his name. The attachment Act operating in rem, and divesting the alleged debtor of his power of controlling his own property before the debt is ascertained by the judgment of a Court, ought to be strictly construed. And hence, therefore, we should not be at liberty to seek for an interpretation beyond the plain meaning of the words. The bond in this case was not given by the plaintiff, or in her name. It was the bond of her son, William M. Myers. This was no compliance with the Act, and hence the writ was improperly issued. The motion to reverse the decision of the Judge below, and to quash the writ of attachment is granted. Gantt, Earle, Butler, JJ., concurred: Richardson, J, dissented, Cheves, for the motion. Black and Arthur, contra. See Dillon vs. Watkins, 2 Sp. 445. Bi/neYS. Bi/ne, 1 Rich. 438. Wigfallvs. Byne, 1 Ricli. 412. An. ♦56] *JoHN T. Seibles vs. Thomas B. Blackwell. Tlie opinion of witnesses as to the existence of disease in a negro, who had not the aid of science to guide them, are inadmissible, unless sustained by facts showing the opinion to be true. Tlie plaintiff, in an action on the covenant of warranty of soundness, where there has been a recision of the contract, or where the property is dead or valueless, is entitled to recover back his purchase money and interest. And when he has offered to restore the property to the defendant, and he has refused to accept it, and the plaintiff is compelled to keep the property and incur expense on account of it, he may also recover such expenses. Before Gantt, J., at Newberry, Fall Term, 1840. Judge^s Report. This was an action of covenant, for breach of warranty in the sale of a negro by defendant to idaintifF. Verdict for i)laintiff. I thought that if the i)Iainlifl" was entitled to recover under the evi- dence, he might recover also what had been paid for medical assistance alTorded the negro, and also for the expenses of her burial. I have no ])articular recollection of the testimony disclosed by the publication and reaut it should be kept in mind, in construing these Acts, that (a) 8-Htat, .W3, § 10. An. (6) 8 Stat. 538, An. *71] Expirte btggees. 47 the system of patrol duty has been engrafted upon, and forms part of, the militia system ; and although in point of fact the duties are appa- rently very dissimilar in their character and objects, and those of the patrol seem to belong to the citizen rather than the soldier, yet the system of patrol has always in this State been regarded as a military police, and to be an appendage of tlie militia organization. The patrol districts are to be laid off within the beat companies, by the captains, who are required to make and keep a roll of persons liable in each district to perform patrol duty ; and at every 7'egula7' petty muster, to prick off those who shall perform the duty until the next muster ; and the 7th, 8th and 9th sections enact certain penalties on the patrol men for neglect of duty, to be imposed by the company courts martial. It seems to have been a departure from the spirit of the Act to proceed by indictment against the captain of the beat for not appointing the patrol, or the captain of the patrol for not performing the duty required. And when we come to examine the Act of 1833, on the jurisdiction of courts martial, it will seem I'easonable to conclude that the purpose of the Legislature was to produce *entire uniformity in the system, by r;),^^ subjecting all who were required to perform any duty in relation to L the patrol to the same species of military cognizance. There can be no reason why a private patrol man sliould be tried by a court martial, for •disobedience of orders or neglect of duty, and his captain of patrol should be tried by indictment, for not turning out once a fortnight, or for not making his return at the next company muster. The terms of the Act of 1833 are abundantly comprehensive — "to try all defaulters at company, battalion, or regimental musters; and all non-commissioned officers, privates or fatigue men, for the non-performance of any duty required by law, as well as for disobedience of orders, and for non-performance of patrol duty. "(a) The captain of patrol is required to make his return on oath, at the regular company muster ; and whether he be styled non-com- missioned officer or private, he has been guilty of a default at a company muster, has failed to perform a duty required of him by law, in relation to the patrol, and comes within the class of persons subject to the juris- diction of company courts martial. That this is more explicitly declared by the 10th section of the Act of 1837, does not weaken the view taken by the Judge below, or by the Court here. It was doubtless intended to remove doubts which might arise on the former Acts ; declaratory only of what the intention of the Legislature was. The leaning of Courts is to extend and sustain the right of trial by jury ; but it should not be forgotten that courts military, or courts martial, are also a part of the law of the land within the meaning of the constitution and of magna charta, and form the most appropriate tribunal for all that class of offences which is created by the patrol laws, so inseparably connected with the laws regulating the militia. The judgment of the Court below is afBrmed. G.VNTT, Richardson, Evans and Butler, JJ., concurred : O'Xeall, J., dissented. Williams, for the motion. Alston, contra. (a) Post, 502. (i) See Act of 1839, 11 Stat. Gl. An. 4:8 COLUMBIA, DECEMBER, 1840. VOL. I. [*73 *73] *KERsnAW & GiLLMAN VS. R. Starnes. The same " M. Latham. The same " S. Smith. The same " G. W. Davis. The same " C. Timberlake. The same " J Willson. A survejor acting under a rule of Court cannot be allowed for his representation of separate tracts, on his plat, when they are no part of the land claimed by the parties, and are merely put down on the plat as boundaries or evidences of the identity of the location. He is only entitled to pay for one plat. But where the plaintiffs claim under two grants, and both are represented on the same paper, and also a grant or grants conflicting with those upon which the defendants rely, for each of these the surveyor may be allowed to charge. "Where there are severul cases, all depending upon the same location, the surveyor is only entitled to pay for one plat. Before Evans, J., at York, Fall Term, 1840. Judge's order made on circuit. These were actions of trespass to try title. There was a verdict for the plaintiffs in the two first cases, and for the defendants in the other cases. Both parties have appealed from the clerk's taxation of costs, and I am to decide whether the taxation allowed by the clerk is right. I will consider, first, the defendanW excepliona to the clerk's taxation. The first ground sustains the general rule that costs are allowed only for services actually rendered. The commission issued in the case of Starnes. It can be taxed only in that case. The second exception is also sustained. It appears from the clerk's report that the surveyor, Campbell, was employed only seventeen days in making the survey in all the cases. The fee bill of 1791(a) says, the surveyor shall be allowed, whilst on the survey, fourteen shillings per day. The surveyor, although appointed by the Court, is the surveyor of the party.. The party for whom he acts is bound to pay him at the rate of fourteen shillings per day whilst employed in his service, and if he succeed in the case may tax as his costs such sum as he has paid or is liable to pay to his surveyor. Campbell could not charge the plaintiffs more than three dollars per day for every day he was on the survey. In ^-.-| these cases the plaintiff ^recovered against two of these defendants, -' and is entitled to tax his surveyor's costs against them. But as the survey was made for both cases, he cannot tax the whole amount against cacli, but must tax it against one, or half against each. This disposes of the third and fourth grounds. 5. The surveyor is allowed for a plat of the land in dispute. On this plat he should represent every thing necessary to explain it. The rep- resentations of surrounding lands are but explanations or representations of what is necessary to the understanding of the dispute between the parties. I am of oi)inion, therefore, the exception must be sustained. The surveyor is entitled to only one plat in each case. (a) 5 Stat. 154. *74] KERSHAW & GILMAN VS. STARNES, ET AL. 49 I think the Clerk should have allowed the charge for the chain carriers. It was an incidental and necessary expense. Second. Plaintiffs'' Exceptions. — I am of opinion the first objection must be overruled. The fee bill of 1827(rf) allows the attorney for a commission or cross interrogatories eight dollars. And if, as I under- stand, each defendant put in cross interrogatories, he is entitled to his costs. The plaintiffs' second, third and fourth exceptions relate to the surveyor's cost, and must be governed by the same rules as the defen- dants'. Ordered, that the clerk do reform his taxation according to the prin- ciples stated above. The plaintiff's appeal from, and move to reverse the decision of his Honor, Judge Evans, on the following grounds : 1. Because in sustaining the defendants' second exception, he erred in not allowing the surveyor his per diem pay in each case in which the plaintiffs succeeded. 3. Because he should have allowed the surveyor ten shillings, not only for the general plat in the case, but also for each representation of surrounding lands, which were the subject of grants or conveyances, they being necessary to explain the plaintiffs' location. Curia, per Evans, J. This is a question of costs, and must be de- cided by the fee bill. It is said the plaintiffs' land could only be located by the surrounding tracts, and that therefore the location and delineation of these on the plat was indispensable to the understanding of the plain- tiffs' claim : accordingly, the surveyor has represented and laid down on his plat *all these surrounding tracts, as well as those under which r-j^np^ the parties claimed. For each of these tracts of land the surveyor L clairns to be allowed ten shillings, and the question submitted to this Court is, whether such allowance is consistent with the fee bill. The Avords of the fee bill of 1791 are, "for making out a fair plat, certify- ing, signing and' returning the same, ten shillings " The rule of Court in this, as in other cases, I presume, required the surveyor to survey the land in dispute between the parties, and to return a plat thereof to the Court, The plat which he is required to make is a representation of the disputed land. The boundaries, whether they be marked trees, water courses, or surrounding tracts of land, are but component parts of the plat he is required to make. They are but the evidences of the iden- tity of the laud claimed ; and I can see no more reason for allowing additional compensation where the boundary is an adjoining survey, than where it is a river or creek, or any other natural or artificial boundary. It is his duty to search out the lines of the land, and when he has done so and fixed the location, to return a plat thereof to the Court. For searching for the lines he is allowed three dollars a day, and for a plat of the land he is allowed ten shillings. Every thing beyond the representa- tion of the land in dispute is inserted as the evidences of identity. If the boundary be identified by marked trees, he puts them down on the plat ; if by a river, he does the same ; and if by the adjoining survey, he represents that on his plat ; but these are put down only as evidences of the identity and true location of the land. They are component parts (a) 6 Stat. 333. An. YoL. I. .-5 50 COLUMBIA, DECEMBER, 1840. VOL. I. [*'i5 of the plat, but all put together make but a plat of the land. For these reasons, I am of opinion that the surveyor cannot be allowed for those separate tracts represented on the plat, which was no part of the land claimed by the parties, and put down on the plat only as boundaries or evidences of identity. In these cases the plaintiffs claim under two grants. These are both represented on the same paper, and also a grant or grants conflicting with those upon which the defendants rely. For each of these I am of opinion the surveyor may be allowed to charge. Such seems to have been the opinion of the Court in the case of Stiirgenecker vs. Marsh, (1 Bail. Rep. 592.) Upon reconsideration, I think the cir- cuit decision made by myself, allowing the surveyor ten shillings as for ;,.,„-, one plat in each of the cases, was *wrong ; and the taxation of the -^ cost must be reformed by the Clerk accordingly. The motion is dismissed as to the other ground. The whole Court concurred. Allston, for the motion. Williams, contra. E. Carson vs. W. Hill and T. F, Jones. A blank note signed by a firm, with, sureties thereto, and by one of the firm placed in the hands of the plaintiff, a factor in Charleston, as collateral security for acceptances of drafts, to be drawn on him by the fii-m, and afterwards filled up in good faith by the plaintiff, in accordance with his instructions, with the sum of $5000, the sum agreed on by them at the time the note was left, was held not *to be void, and that the plaintiff had the same right that an endorsee would have to fill up the tenns of an endorsement above the name of his endorser- («) The plaintiff, after he accepted drafts drawn by the firm, to the amount of $7,500, acquired as perfect a right to the note as if he had bought-it ; and his right could only be divested, and the defendants' liabilities discharged, by j)ayment. All the payers to a joint and several promissory note are principals, and their relation to each other does not affect their liability to the payee. Where a guaranty is absolute in its teims, and definite as to its amount and extent, in such case no notice to the guarantor is necessary. Where a debtor does not direct the application of money paid to any specific demand, where there are two or more, the creditor who receives the mioney may make liis own application. (/) Tlie .surety is Ixmnd by the terms of the contract, and cannot be discharged unless the principal varies the terms of the original contract, by enlarging the time of performance. (^-, note, signed by the defendants. Wm. Hill was *out of the State at the commencement of the action — Davis had suffered judgment to go agaiiirft him by default, and the defendants Wiley Hill and Jones, were the real parties to the issue. The manner in which the note was («) Cited G Rich. .507. 3 Rich. 113. An. (/) See 11 Rich. 468. An. (g) See Comwell vs. Holli/, 5 Rich. .56. Wmpie vs. Kirby, 2 Bail. 551. Pickett vs. Lands, 2 Bail. 608. 4 «trob. 20, 90. 1 Bail. 418. Post. 145. An. *77] CARSON VS. niLL & JONES. 51 signed filled up and used, is important, and will appear from the follow- ing statement : William Hill and W. Gr. Davis had entered into a mer- cantile copartnership, and were doing business under the firm of Davis & Hill, at Laurens, during the year 1835. They had contracted debts in Charleston, to a large amount ; and not having cash in hand to meet them, in 1836, when they fell due, they procured the note upon which this action is brought, to be signed by Wiley Hill and Thomas F. Jones, below their own names, in blank, with $5000 inserted at the top of the paper. The paper was then signed in March, 1836, and delivered to William Hill, to be used by him in Charleston as he might thiid< proper. Without filling up the body of the note. Hill deposited it with the plain- tiff, as collateral security, to indemnify him, for acceptances of drafts to be drawn on him by Davis & Hill in favor of their creditors, from whom they had purchased goods in Charleston. Carson accepted drafts to the amount of about $7000, on the faith of the paper which he held in blank. These drafts fell due six month after their date. Besides these drafts, Carson advanced, during the years 1836, 1837, and 1838, other large suras of money for Hill and Davis, and for Davis alone, who was the active partner, at Laurens, not only to close the concern, but in conduct- ing business on his own account. The drafts drawn by Hill & Davis on the plaintiff, fell due on the 1st September, 1836, at which date the de- fendant filled up the note in the terms of an ordinary joint and several note of $5000, payable six month after date. After it was thus filled up, Carson deposited it with Martin & Walter, as collateral security to cover liabilities which Carson was under to them. It remained with Martin and Walter until it was taken away by plaintiff and sent up to be sued on, which was in 1839. Some time in 1838 Carson wrote to Davis to Inform him he would put the note in suit ; Davis requested him to delay suit, that he might make some arrangements to pay the note himself, and the plaintiff did delay and give him and the others time till suit brought. Just before the suit was brought, David Martin, as the agent of plaintiff, presented the note to ^defendant. Jones expressed great surprise that r*(,q the note had not been paid long ago ; said he knew Carson had such a •- note, but supposed it had been paid long ago. Afterwards Jones wrote to Carson, requesting him to let him know the amount of the note and the payments on it. The other defendant, Wiley Hill, said when the note was presented, that he thought it had been paid ; but did not say that he knew that Carson had such a note, but acknowledged that be had signed a note in blank for $5000, which was delivered to William Hill. It appeared very satisfactorily, that the note had been placed with Car- son as collateral security, to cover his liability for drafts accepted on account of Davis & Hill, and that he filled it up in the absence of all the parties ; and gave the defendants notice of the existence of the note just before it was sued on. During the years 1836, 1837, 1838, and 1839, Davis remitted large sums of money at different times to Carson, to enable him to meet the engagements which he had incurred on account of Hill & Davis, and on Davis' individual account. The account cui'rent presents a fair statement of the accounts ; when Davis remitted the money, he gave Carson no particular instructions as to its application, but left it to Carson to apply the credits as he pleased. After striking a balance 52 COLUMBIA, DECEMBER, 1840. VOL I. [**8 of all the accounts between Carson & Davis, Carson states that Davis was indebted to him $3728, which sum he contended he had a riglit to recover against the defendants on this note He placed the credits to the general accounts as he received the money, without regard to any specific demand. At the end of the year 1836, or rather on the first of March, 1837, the balance against Davis was $4'784 73 cents. In January, 1838, the balance was $2669 ; and in 1839, January, the balance was $3728. The accounts will explain themselves. There are two items in them which deserve particular notice. One is a note of Davis & Hill, for $3000, indorsed by Elijah Carson, discounted in the Bank of South Carolina, on the 15th September, 1836 Nett amount after discount, $2959. The other was a note of Davis & Hill, for $3219, discount taken off, $3184, indorsed by James S. Rogers first, and Elijah Carson, datei March 18th, 1837, and payable to the Planters' and Mechanics' Bank. Those two notes were sent down by Davis, from Laurens, and were endorsed for the 5^Hq-i accommodation of Davis & Hill Carson credited at the time -' above stated, these sums to Davis ; but when they became due, he paid the renewals himself, and entered the sums thus paid to the debit of Davis. Carson then paid off entirely the note to the Bank of South Carolina ; so that the amount of it stands both on the debit and credit side of the account, swelling both, but making little difference, ultimately, as to the balance. The note to the Planters' and Mechanics' Bank was paid off at different times of its renewal, to about $1100. This last sum Carson does not charge against the defendants, but against Rogers, the first endorser. The sums actually paid by him are entered in the account ; he charged to the defendants, for whose accommodation the note was executed. There are other facts which may be regarded as connected with the justice of this case, which perhaps should be stated. In the spring of 1836, after his return from Charleston, Wra. Hill went to Mississippi, as it was supposed to speculate in lands. In the fall of 1837 he left this State and went to Mississippi, where he has remained ever since. After Hill left here, the stock of goods remaining at Laurens were packed up by Davis and sent to Mobile for Hill, by the way of Charleston, Carson receiving and forwarding the goods for the parties. He paid the freight and charged the amount to Davis — I think about $160. From this fact, as well as others, it was certain that he knew that Hill had removed to Mississippi. As I have not been furnished with the grounds of appeal, I do not deem it important that I should enter particularly into the details of my charge to the jury. Tiie jury found for the plaintiff, under my instruc- tions, and if I was in error as to one of the many questions raised on the circuit, 1 am willing that defendant's counsel should avail themselves of any advantage of it. I felt great doubts as to some of the questions at the time ; more particularly as to the credit of the proceeds of the note discounted in the Planters' and Mechanics' Bank, with Kogers' name as first endorser on it. I held in efi'ect that the note was good, although it was not filled up till it got into Carson's hands— that the plaintiff Iiad acfpiired a right to it, when he advanced money equal to its amount. That having no specific instructions from Davis, the plaintiff had a right *79] CARSON VS. HILL & JONES. 53 to keep the accounts and place the credits as he *raight think (-^(cqa proper. That he had not lost his right to recover on the note, by L waiting with Davis, or by not giving notice to all the makers of their liability ; and that the sums raised on the notes discounted, were received on accommodation paper, for the bene6t of Davis & Hill ; and that the money afterwards paid by plaintiff in discharge of the notes, was properly set off, on the debit sides, to the credits which had been entered. CROUNDS OF APPEAL. 1. Because his Honor charged the jury that the plaintiff was entitled to recover, notwithstanding the paper sued on was signed in blank, and filled up by the plaintiff, in the absence of" all the makers, near six months after its exe- cution, without the consent or knowledge of the defendants, and without giving notice thereof to them, until just before the commencement of the suit. 2. Because the paper sued on was signed in blank, and delivered to the plaintiff to be held as collateral security for acceptances to be made by him for Hill & Davis, and he was not authorized to fill it up as a negotiable paper and an unconditional promise to pay. 3. Because the payments made by Davis to the plaintiff should have been first applied to the discharge of the exceptances, to secure which the paper sued on was delivered to the plaintiff. 4. Because, even if the paper sued on were valid, the testimony established the payment of the whole, or the greater part thereof 5. Because the plaintiff gave indulgence to Hill & Davis, the principals, and at the same time aided them in removing their effects from the State, without giving notice to the defendants that he held them liable for this claim. 6. Because his Honor charged the jury that the proceeds of the two notes discounted in bank, for the accommodation of Hill & Davis, should not be re- garded as payments of the acceptances made by plaintiff for Hill & Davis. 7. Because the finding of the jury was contrary to law and evidence. 8. Because his Honor charged the jury that the note sued on could not be regarded as a guaranty. * Curia, 2^er Butler, J. The two first grounds present the same r-^,Q-, question, to wit: was the note void because it was left with Carson ^ in blank, and filled up by him in the absence of the other parties to it ? Carson acquired his possession, control and right to the note from William Hill, who was acting not alone by derivative authority from others, but on his own account as one of the principals to the note. He had full authority to use the paper as he might think proper. The note was taken and filled up by Hill's express authority and direction, and in good faith, for the purpose agreed on between himself and Carson. The latter had the assent of one of the principals to fill up the blank, as fully as an endorsee has the authority of his endorser to fill up the terms of endorse- ment above his name ; which was nothing more than making the note payable to and negotiable by himself for the amount specified by all the makers. The next question that arises is, what right did Carson acquire to the note upon or after its delivery ? Until he accepted drafts to the amount of it, he had no right to or control over it, but it was subject to the demand of the depositor. But after Carson had incurred a liability to the amount of $7500 for Hill & Davis, by accepting the drafts for that sum, he acquired as perfect a right to the note as if he had bought it, and the defendants had as little control over it as if they had given it absolutely for goods sold and delivered. From that time Carson's title 54 COLUMBIA, DECEMBER, 1840. VOL. I. [*81 eonld not be divested, nor the defendant's liability discharged, without payment. The pledg-e, or collateral security, (call it what you may,) had become forfeited, and could only be redeemed by the payment of money equal to its amount. So far as regarded the payee, all the makers were principals ; although as between themselves, Jones & Wiley Hill were securities of the other two. This relation between the makers could not affect their liability to Carson. The note could not therefore be regarded in the light of a guaranty requiring notice, as contended for by the counsel. Or if so, it would be an absolute guaranty for the payment of so much money, which would impose the same obligation as any other unconditional engagement to pay money. I think this general principle well stated in the case of Norton vs. Eastman, (4 Greenleaf, 521,) in which it was said by the Judge who delivered the judgment of the Court, ^QQ-| " it seems to be well settled that where a guaranty is *absolute in its '"-' terms, and definite as to its amount and extent, in such case no no- tice to the guarantor is necessary ; the very act of the party in giving the guaranty is inseparably connected with the knowledge of its nature and limits, "(ff) Only where the party cannot know before hand whether he is to be ultimately liable or not, nor to what extent, is it necessary, in order to charge him, that he should have reasonable notice. Here Jones and Wiley Hiil gave William Hill power to make them absolutely liable for $5000, without condition or limitation. By the understanding of the parties, they were to be equally liable, and to the same extent as Hill & Davis. After signing the paper, their ultimate liability was fixed, and they should have guarded themselves by their own vigilance, and not have relied on notice from Carson, who had given credit on an unquali- fied oljligation to pay him, should the drafts not be paid. Having come to the conclusion that the note was a valid obligation, and that the defendants were liable to pay, according to the terms of the paper, after it was filled up, the remaining questions arise out of the application and the extent of the credits wliicli should have been made by Carson, and to which the defendants were entitled, by the sums of money remitted by Davis, and raised by Carson on the notes discounted in the banks. If the money remitted in cash by Davis from Laurens, had been applied to this note, or to the drafts accepted on its faith, then the defendants would have been entirely discharged. Davis & Hill, and Davis alone, owed, beyond the amount of this note, large sums, for which the i)laintiff, Carson, had no security. He had paid and advanced money on their individual responsibility. From the manner in which he kept the accounts, he applied the money received from Davis to the payment of these latter demands. Or rather, that is the result — for he did not apply the payments to the extinguishment of the specific demand covered by the note. The law seems to be clear and indisputable, that where the debtor does not direct the application of money paid, to any particular demand, where there are two or more, the creditor who receives the money may make his own applic tion. When Davis remitted money he gave no particular direction about it; but, perliaps, believing he could pay all *831 ^'*-'™'^"'^*^ against him, he left it to Carson to make the *api)lication of the credits as he might think proper. Carson consulted his interest, (a) See Lawton vs. Maner, 9 Rich. 337. An. ^83] CARSON VS. HILL & JONES. 55 and applied the payments to the more insecure debt. And this we think he had a right to do according to law, if he acted in good faith and with- out fraud or collusion with Davis, of which there was not even a suspicion. Allowiug this to be so, still the defendants insist that they ought not to be debited with the sums subsequently paid into the banks by Carson, after he had received and given Davis credit for them. That is, the credit when once made, was absolute and beyond Carson's control. And that when he paid the money into bank, after protest, he could not debit the amount against the credit previously given. It is admitted that the money raised on the notes discounted, was drawn on accommodation paper for the benefit of Hill and Davis The first was endorsed by Carson alone, and there is little doubt that it was discounted in bank more on the credit of his name than those of Hill and Davis, the makers. This being the case, Carson might well have charged them with this liability at the time he gave the credit. To test it, suppose the defendants, or either of them, should have come the day after the credits were made, and demanded the note upon which this action is brought, could they have obtained it without relieving Carson from his liability to the bank ? I think they could not. Justice and fair dealing would forbid it. And if they could get the note without paying the amount credited to it, and for which Carson was liable, the credit would be unavailing to them. Carson could not be divested of his title to the note until it was discharged of all its incumbrances The money, there- fore, paid to the South Carolina Bank in satisfaction of the note dis- counted in it, may well be set off on the debit side of the account ; the debit neutralizing the credit ; the one being received, and the other paid, for Davis and Hill, by Carson, without benefit to him, beyond commissions. The money raised on the note endorsed by Rogers, must be regarded in the same light. [The money thus raised was not for Rogers or Carson, but for Davis and Hill ; and when Carson paid the renewals he was not bound to look exclusively to Rogers for indemnity. Davis and Hill were the principals, and Rogers security, as between themselves, but all were liable to Car- son ; and the money when paid was for the real and ultimate benefit of the makers ; and they having got credit for the *money received, r^ijQ i they should be debited with it when paid. Allowing these items to L be just debts to countervail the previous credits, the balance, as struck by Carson, was three thousand seven hundred and twenty-eight dollars, for which the jury were instructed to find their verdict with interest. And the Court is satisfied that the defendants could not, at any time, have redeemed their note without paying this sum. The verdict was therefore right, and cannot be set aside on any of the grounds noticed. Another ground is taken, that the plaintiff gave indulgence to Hill and Davis, the principals, and at the same time aided them in remov- ing their effects from the State, without notice to defendants. This sug- gests the inquiry, what indulgence did the plaintiff give, and for what purpose ? The plaintiff, at the instance of one of the defendants, Davis, did forbear to sue. But he entered into no obligatory contract for for- bearance. There was no contract between himself and Davis that would impose any impediment to his suing at any time that he might think proper. He gave Davis time ; without any consideration or agreement, that could constitute a new and separate contract from that which arose 56 COLUMBIA, DECEMBER, 1840. VOL. I. [*84 from the note itself. There was no promise to indulge or forbear which was binding on the creditor. The law is very clear, that the surety is bound by the terms of the contract, and cannot be discharged unless the principal varies the terms of the original contract, by enlarging the time of performance. (2 J. C. R., 559.) There was nothing to prevent Carson from suing at any time, by virtue of any agreement which he had entered into with Davis. As to receiving and forwarding the goods of Davis and Hill, he had as perfect a right to do so, as of any other cus- tomer in good credit. He certainly had no authority to stop them for any one, much less for Wiley Hill and Jones, who lived near the place from which they were transported. He acted for Hill and Davis as a mere forwarding agent, and cannot be held responsible for not interpos- ing to attach or arrest their goods for the benefit of others. We cannot perceive any grounds to grant a new trial. Motion refused. Richardson, O'Neal, Evans, and Earle, JJ., concurred : Gantt, J., dissented. Irhy and Young, for the motion. Henry and Wardlaio, contra. CASES AT LAW ARGUED AND DETERMINED IN THE COURT OF APPEALS OF SOUTH CAROLINA. Charleston, (februarg, 1841. JUDGES PRESENT. HON. RICHARD GANTT, HON. BAYLIS J. EARLE, " JOHN S. RICHARDSON, " JOSIAH J. EVANS, " JOHN BOLTON O'NEALL, " ANDREW PICKENS BUTLER. M. J. BucKNER, Ordinary, vs. Hugh Archer and others. In a "suit against the securities of an administrator upon their bond, where a decree of the Ordinary against the administrator is offered in evidence, it is com- petent for the securities to show that the administrator, at the time of the decree, had removed from this State and was resident in another ; and therefore was not subject to the jurisdiction of the Court. In such case, it is not competent for the Ordinary to make the absent administrator a party by publication in the Gazette, and the securities may show that the Ordinary proceeded in that form, altliough the decree recites that the adminis- trator was duly cited and made default. Such recital is not conclusive. See Lesterjette, Ordinary, vs. TTte Ex' is. of Ford, in note. Before Gantt, J., at Beaufort, Spring Term, 1837. This was an action of debt on an administration bond, against the securities of Archer, the administrator. A decree of the ordinary against him was offered in evidence. The defendants proposed to prove that at the time of the proceeding before the ordinary. Archer had removed from the State and was resident in Florida; and that, in fact, the ordinary had attempted to malve him a party by publication in the *gazette. p^„„ But, inasmuch as the decree recited that the administrator had '- been duly cited, and made default, his Honor overruled the evidence, and the plaintiff' obtained a verdict, which it was now moved, ou the part of the defendants, to set aside, and for a new trial. Cnria, per Earle, J. It is essential to the validity of a judgment, that the Court should have jurisdiction of the person and of the subject matter. When such is the fact, the judgment is conclusive, between the same parties, and those in privity with them, upon all the matters in 58 CHARLESTON, FEBRUARr, 1841. YOL. I. [^86 controversy, which it purports to have decicled. But I apprehend the want of jurisdiction may be set up against a judgment, whenever it is ^„^-| *attempted to be enforced, as a new and substantive cause of action, -J or where a benefit is otherwise incidentally claimed under it. This is a fundamental principle, and pervades the jurisprudence of all civilized countries. K'othing could be conceived more tyrannical and unjust, than to hold a man conclusively bound by a judgment i-ecovered in a suit of which he had no notice, and in a court to whose jurisdiction he was not subject. Such a judgment cannot be rendered available for any purpose. This principle is well settled in the United States, ia regard to judgments ob- 5j.oQ-| tained in one State, when sought to be enforced by suit in the *courts -' of another. And it has been held by the most enlightened courts we have, that such judgments may always be impeached and invalidated, by showing that the defendant was not subject to the jurisdiction which rendered the judgment, and had no such notice of the suit as to be legally a party thereto ; Borden vs. Fitch, (15 John., 121 ; Bessell vs. Briggs, 9 Mass. T. R., 462; lliller vs. Miller, 1 Bail. Rep., 242,) and the same point has been ruled in the King's Bench, in regard to a judgment recovered in the island of Tobago. (9 East. 191.) If the want of juris- diction appear on the face of the proceedings, there can be no doubt that the courts of the State in which the judgment was rendered, would them- ^oan selves regard it *as a nullity, when attempted to be enforced in a -' subsequent action. Such was the case of Lesterjette, Ordinary, vs. The Exerts, of Ford,{so.\, J., concurred: Harper, J., absent. (a) 1 Bail. 242. An. See Menlove vs. Oakes, 2 McMul. 1G2. An. *9()] BUCKNER VS. ARCHER. 61 LyJeft^ Ordinary, vs. Robinson, (1 Bail. Rep. 25.) In that case the administrator himself being sued at hiw, pleaded that the decree of the ordinary had been rendered against without his having been duly cited or in any manner made a party. But it was held that such defence could not avail, and that the decree of the ordinary was conclusive. Mr. Justice Nott says, " when a decree is pronounced, either in a Court of Ordinary, or in a Court of Equity, an action may be maintained on the bond, against the administrator or his sureties, to recover the amount so decreed to be due ; and whether the decree be correct or not, cannot be tried in this collateral way. It must be conclusive of what it purports to decide." Now, how far the fact that the party was cited, was a point decided by the decree, may be well questioned. That was not the point in issue ; it was not the subject matter of the proceeding, which was instituted only to ascertain the amount of the administrator's indebtedness. But a material distinction between that case and this is, that there the administrator himself was alone sued ; and being perma- nently resident, and therefore admitting himself to have been subject to the jurisdiction, he claimed to avoid the decree by denying the truth of the recital. It is not pretended that the ordinary can, by publication in the gaz- zette, make one a party to a proceeding before him, wlio has removed from the State, and is a resident citizen of another. If he had recited that sort of notice in the decree, it would not have been regarded as conclusive, even against the administrator. Shall it be contended that by reciting merely that the administrator was duly cited, the ordinary can make his decree conclusive evidence against the sureties ? Upon the whole current of American cases, if this decree were attempted to be enforced against Archer in the State where he resides, he might avail himself of the want of jurisdiction, as a defence. It was held in Lester- jette vs. Ex'rs of Ford, that *the decree could not be enforced p^„, against the absent administrator in another State. When the case ^ of Lyles vs. Robinson was decided, the general understanding of the profession was, that the decree of the ordinary was equally effectual against the securities, as the administrator. In the case of the Ordinary vs. Gondy, (2 Hill R., 313,) (a) that subject underwent the elaborate examination of the Court ; and on mature con- sideration it was held, that tlie sureties do not stand in that relation of of jirivity to the administrator, which makes a decree against him, conclusive against them ; that such decree is only ^:»rma /acie evidence of the amount due ; and that the sureties, when sued upon the bond, may prove that the decree was rendered for a larger amount than was due and owing ; as, for instance, in that case, that the decree embraced an indi- vidual debt of the administrator for which the sureties were not liable. Being held as only jjrima facie evidence, such decree is put upon the footing of foreign judgment, of which, on the authorities cited, the valid- ity may be impeached for want of jurisdiction. And upon the whole reasoning in the Ordinary vs. Condy, if the surety may controvert the (a) See Norton vs. Wallace, 1 Rich. 507, 2 Rich. 461. Davant vs. Webb, 2 Rich. 385. Dud. 27. Post 101, 250. 62 CHi^RLESTON, FEBRUARY, 1841. VOL. I. [*91 decree against the administrator, where he has been regularly and duly cited, on the very point which it is intended to ascertain and make certa'in, a fortiori, he should be allowed to prove that the admiuistrator, in fact, was not a citizen of the State, but had removed so as to be no longer 'subject to the jurisdiction. How far such proof will render the decree a nullity, and wholly inoperative against the sureties, we will not now undertake to decide. The motion is graned. O'Xeall, Evans, and Butler, JJ., concurred: Richardson and Gantt, JJ., dissented. Hutson and Bellinger, for the motion. See also 5 Rich. 85. 4 Rich. 120, 278. Act of 1839. 11 Stat. 40, provides for the case of an absent administrator. An. *92] *F. Day vs. F. A. Becher. Where goods have been levied on by a Sheriff, under executions in his hands, and before they are sold, a wi'it of foreign attachment against the same defendant is lodged in his office, "he may levy the attachment also on the goods ; and this is not such a case, where the property or fund is protected by being in the custody of the law. Merely lodging a writ of attachment in the Sheriff's office, is not sufficient to attach the property or fund in his hands ; but the Court will permit him to accept service, even after rule and cause shown — nunc pro tunc. Before O'Neall, J., at Charleston, May Terra, 1840. This was a rule against the Sheriff to show cause why he did not pay over moneys in his hands, belonging to the defendant, to the plaintiff. He returned for cause, that he levied sundry executions on the goods of the defendant, from which they were satisfied, leaving a balance in his hands ; that while the goods were in his hands, a writ of foreign attach- ment was lodged in his office, which was considered as accepted by him. Afterwards, the execution of the plaintiff was issued out of the City Court, and lodged in his office. The Sheriff was allowed to enter an acceptance of the writ of attaclimont on the day on which it was lodged in his office. Tiie rule was discharged. The plaintiff appeals, on the annexed grounds. GROUNDS OF APPEAIi. 1. That tlic Slioriff havinj^ made a levy under executions, the whole property wan in the custody of the law, and could not be attached. 2. That to attach any iiro])eity in the hands of the Sheriff, it is not sufficient merely to lodge a writ of attacliinunt in his office. 3. that though the Hlieriff did acknowledge the lodgment of the writ, as notice to liimseH', it was not Rufficient to bar the action in this case. 4. 'J'hat it is necesary, in order to attach property in the hands of the Sheriff, that ho should be regularly served with a copy of the attachment writ by the Coroner. *931 •''■ '^''"*' '"'" ^^onor erred in allowing the Sheriff, after rule and cause J Bhowii, to enter a written admission of notice, or acceptance of service. ^93] DAT VS. BECHER. 63 SHERIFF S RETUKN TO THE RULE. The Sheriff of Charleston District, in answer to the foregoing rule, says, that on the 10th and 11th days of April last, two./?, fas., were lodged in his office, at the several suits of Charles J. Bollin and j\fatilda Schroder vs. F. A. Bechcr, under which he levied on and sold the stock in trade of said F. A. Becher, to an amount considerably greater than the sums due on said executions, and expenses of sale. That wliile the said goods were yet unsold, in his hands, to wit, on the 22d April last, a writ of foreign attachment was lodged in his office, at the suit of James A. Bowie vs. the said F. A. Becher, for an amount more than sufficient to exhaust the balance of the proceeds of sale in his hands. That on the 14th day of May last, a /(. fa. was lodged in the Office of the yheriff of the City Court, at the suit of Fisher Day, against the said F. A. Becher, and notice of the same was served on the respondent. That on the 19th day of May last, s,fi. fa. was lodged in respondent's office at the suit of the said James A. Bowie vs. the said F. A. Becher, on the attachment writ aforesaid, and respondent has been required to pay over the balance in his hands to the attaching creditor aforesaid ; and under these circum- stances he prays judgment of the Court as to the disposition over of the fund in his hands. Respondent further answers, that there being no Coroner in the district, a day or two after the lodgment of the attachment, plaintiff's counsel consulted respondent as to the acknowledgment of the service of the attachment by him as a garnishee, and respondent replied he deemed it unnecessaiy, as he considered the lodgment of the writ sufficient notice. Respondent further answers, that the sale of the goods being for a greater amount than the executions called for, was made by consent of all parties, including the defendant, and the attaching creditor. Alexander H. Brown, S. C. D. Walker, for the motion, said that to attach the funds of an absent debtor, the garnishee must be served. He cited P. L. *369, 9th sec. The Sheriff must i-^q^^ be served by the Coroner. (2 Brev. Dig. 8(3.) *- Yeadon, contra, submitted the case without argument. Curia, per O'Neall, J. In this case it ought to be kept constantly in mind, that when the writ of attachment was lodged in the Sheriff's office, the goods of the defendant were in his hands in specie. He had previously seized them in execution ; but still lie might have levied the attachment, and this would have constituted no conflict between the two processes. The levy of the attachment would have been a junior lien, and could only have created a claim for what might have been left after satisfying the precedent levy. This is not a case where the property or fund is protected by being in the custody of the law. So too, the Sheriff being in the possession of the goods of the absent debtor, was properly the garnishee. For he is not within the exception which in one case exempts him from being made a garnishee. In Serg't. on Att. 89, (a) it is said that a Sheriff cannot be made a garnishee in respect to money raised on a fi. fa. This is the only exception, and in all other cases he is lilve any ether person, liable to be summoned. In this case he had the defendant's goods, and now has the defendant's money, left after satisfying the elder execution. Service upon him would have been a levy upon the goods. He might accept the service, and thus make it effectual. He said in his return, that he was applied to to acknowledge service, and that he said he thought it unnecessary, as he considered the lodgment of the writ sufficient notice. The party plaintiff in attachment ought not to be pre- (a) See Blair vs. Cantly, 2 Sp. 34. 1 Strob. 244 2 Sp. 389. An. 6i CHARLESTON, FEBRUARY, 1841. VOL. I. [*94 judiced by an ommission of the officer of the law, which the Court could remedy by amendment. This is often done in the amendment of returns of service of writs, of levies on fi. fas. and generally in all cases where it is a mere clerical omission or mistake. This practice was pursued in this case, and by doing- it the record is perfect, and the prior lien of the attaching creditor is preserved. The motion is dismissed. The whole court concurred. *95] *MosES D. Hyams vs. John Boyce, Jb. The custom of postponing the payment of the Clerk's costs, until the termination of the suit, will be adhered to, as indicating the proper construction of the "/ee biW of 1«39, p. 8. Before Richardson, J., at Charleston, January Term, 1841. This case came up upon the following rule against the Clerk of the Court of Charleston District : On motion of Kunhardt c?- Pringle, plaintiflTs attorneys, it is ordered that C. C. Strohecker, Esq., Clerk of the Court of Common Pleas, do show cause on Saturday, the 30th inst., at 10 o'clock, A. M., why he refuses to deliver to the plaintiff's attorneys, the writ signed by him as clerk in the same. By the Court. (Signed) C. C. Steohecker, C. C. P. RETURN OF THE CLERK. C. C. Strohecker, Clerk of the Court of General Sessions and Common Pleas, for Charleston District, upon whom the above rule has been served, to show cause why he delivers to the plaintilf's attorneys the writ signed by him, as Clerk in the said action, for cause showeth, that by the present fee bill of 1839, and under the law in relation to the fees of the Clerks of the respective Circuit Courts of Common Pleas and (ieneral Sessions in this State, the said fees are of right demandable and payable upon the performance of the specific service rendered, from the party at wliose request, or for whom the service was rendered. That in the absence of any special contract, the law raises a promise on the part of the person at whose request the Clerk renders any specific service, chargeable in tlie fee bill, to pay tlie fee allowed by law presently, as in all cases of implied contracts ; and that in the event of such service being demanded, the respondent is not bound to render the same, unless the fee allowed by law is tendered ; and, as in this case, upon signing a writ, the respondent has a legal right to withhold the same from the party until the fee for such service is tendered. This view of the legal rights of the respondent is submitted as according best with the general principles of the law (in the suliject of the costs of actions at law, in which the party, plaintiff or *I)C1 '''''^'''"*''>"*^) 'lo'^s *actually recover from the losing party, the expenses to which lu! lias been put in the prosecution or defence of the action. And the recognition of the Icifd rif/lu of tJie Clerk to require his fees to be paid wlien the service is ren- dered, is believeil to be essential to the proper discharge of the duties of tlie oflace, and tlic preservation of proper order and economy in the management of the business of the same, as well as furnishing the only means by which the clerk can realize liis payment for his services which the law intended him to receive. The respondent, in tlio exercise of this right, does not intend to intioduce any new rule or practice which may work any inconvenience to parties, but the right being recognized, will so act upon it, that while he may feel himself willing to keep *96] HYAMS VS. BOYCE. 65 accounts with the practitioners at the bar, as formerly, he may, if he find necessary, and as he may find it advisible, refuse to give long credits for his services, and claim payment for the same when rendered. C. C. Stkohecker, C. G. S. ^' C. C. P. On hearing the rule and the return, his Honor, Judge Richardson, ordered the rule to be made absohite. An appeal made from his Honor's decision, on the ground that the same is contrary to law. Rice, for the motion, cited A. A. 1791, (1 Faust, 3,) fees of ofiice are established p. 22, (2 Faust, 33.) A. A. 1827, fee bill, p. 55. A. A. 1839, p. 14, (Bac. Ab. tit. costs.) Kunhardt, contra, contended that neither the plaintiff nor his attorney had the right to collect Sheriff's and Clerk's costs ; cited McC. 25. Costs abide the deter- mination of the action. — lb, 25. The clerk cannot recover his costs against the plaintiff, imless the defendant be insolvent, or the plaintiff has collected them. The law, he contended, never would have given the Clerk the right of issuing execution for costs if they had contemplated he had any other remedy. Grimke, in reply, cited 7 Cranch, 276 — each party is liable to the Clerk for his fees, no matter who recovers, "pr. Ch. J. *Ma)-shalI,'^ A. A. 1839, p. 16, Clerk's right to retain. 2 Stran. 1126 ; 8 Mod. 226-307—2 P. AV. 460. [*97 Curia, per Richardson, J. The question is, has the Clerk of the Court of Common Pleas, before he delivers the writ necessary for the commencement of an action at law, the authority to require of the suitor the costs allowed by the Fee Bill of 18.39 ? The demand is small. But the decision of the case may have important circumstances. It involves the right of litigants, and it may affect the principles of judicial justice. The fee bill of 1791, (a) the raised fee bill of 1827, and that of 1839, under which last the question before the Court is made, all allow the costs to the Clerk, in the same language as they are allowed to some other officers : as the Registers, Ordinaries, Sheriffs, &c. But custom has obtained, at least since the fee bill of 1791,(&) to tax and allow the costs of the Clerk, together with what are called the Court charges, at the termi- nation or dismissal of a suit, and not before. In the case of Corrie vs. Fits & Givens, (3 McC. 25,) this custom is alluded to, and as far as it can have influence, the Judge justifies it under the fee bill of 1791. That case decided that the Clerk can require pay- ment of his costs of the plaintift", who has obtained judgment, only in case of the insolvency of the defendant. Now, if the Clerk had the right in the first instance to call on the plaintiff, for his successive fees, he surely could not have lost the right by the defendant's being condemned to restore the fees that the plaintift' is supposed by the judgment to have paid. The converse would have been the conclusion. I decided that case on the circuit, and have now an opportunity of adding my own reasons to those of the late Court of Errors in supfjort of that decision, as well as in favor of the present. In that case it is incidentally stated, that in England the plaintiff" pays the Clerk's costs at the successive stages of the case. " But here the costs al)ide the deter- mination of the case." If this had been the precise point for the decision (a) 5 Stat. 154. 4 Stat. 333. 12 Stat. 8. (6) 1840, 11 Stat. 6. An. YoL. I.— 6 66 CHARLESTON, FEBRUARY, 1841. VOL. I. [*97 of the Court, it would have concluded the present question, at least under the fee bill of 1791 The fee bill of 1839 allows the Clerk for " signinjr writ," and all incidental services before filing declaration, "fifty cents." But is he entitled to the money upon signing the writ? or must he abide ^QQ-, *the determination of the suit, and look in the first instance to the party ^ -I against whom the costs maybe ordered, according to former practice ? As a general rule, officers are entitled to their costs as they do successive official acts. But, is there not good reason for the custom of making the Clerk of the Court an exception to this rule ? Before the constitution of 1791, the Judges also received costs, and were paid for their services in that way. But as far as 1 have under- stood, their costs, too, abided the determination of suits. And I think the reason and principle of practice may be seen by referring to the origin of costs, and the principles of judicial justice. At common law no costs were allowed in courts of Justice The plaintiff who lost his suit might :be fined, pro f also clamore, "or judged in misericordia," according to the justice or injustice of his case. And perhaps an unjust defendant punished in the same way, or by increased damages. But such fine or damages necessarily abide the determination of every suit. In process of time, costs were given to the officers of the Court in lieu of such fines, which formerly went to the King And is there as not good reason that they too shall abide the event of the suit, and fall only, or at least in the first instance, upon the plaintiff, who made a false clamor, or the defendant, who set up an unjust defence ? If otherwise, would we not lose sight of the proper rights of parties claiming justice at the hands of the Judges ? It is one of the first principles of Courts of Justice, that all parties shall be heard without obstacle, expense, or delay. The poor and the weak absolutely require such principles for protection, and they must be awarded to all alike. But if at every step of a case, the plaintiff shall be obliged to pay costs to ministerial officers before he can reach the ear of the Judge, may we not occlude the Courts of Justice, at least to some persons ? A writ is the judicial notice to a debtor that his creditor demands justice. The declaration is the precise statement of the demand. To this the debtor responds ; and the issue is made up for the decision of the Court. Such are the legal forms through which we demand to be heard, and luive justice judicially administered ; and costs may be very justly required after and according to the decision. But any hindrance, iu any step, to the judicial hearing, would be as a lien to our system of justice ; ^gg-j as to impede a petilion to the *Legislature for a right, or to the Gov- -^ ernor for mercy. They all stand upon the same principle — the right to have a hearing and decision of the case presented. Such principles of judicial justice are summed up in Magna Charta. " NuUi negabimus, nuUi vendenuis, nulli (IcferemusjmticianU' And these words, so full of history and meaning, suggest to the mind the whole additional argument I would o(T(!r in support of the custom of postponing the payment of the costs to the determination of suits. The argument on the other side is, that fees or costs being allowed by the Act, they ought to be paid as the services arc rendered. But laws are to be construed by their subject matter, which includes the moral and legal principles that necessarily belong to the subject. *99] ORDINARY VS. CARLILE. 67 The Court therefore think that the custom of postponiiific the payment of the Clerk's costs, which has obtained for fifty years, under tlie former fee bills, should be adhered to, as indicating: the proper construction of the new fee bill, which, let it be observed, must have been passed under a full knowledge of such customary and habitual construction of all the former fee bills ; and a custom so long and so closely connected with the subject of the new enactment of 1839, can scarcely be considered other- wise than as a part of the subject matter itself, and would have naturally called for positive expression if it had been intended to change the custom. The Circuit decision is therefore affirmed, and the motion dismissed. The whole Court concurred. The Ordinary vs. Hanxah Carlile. [*100 The Same vs. P. Dueant. A decree in the Court of Equity against an administrator, with the return of ^'■nulla bona''' on the ^'. fa., (issued on the decree,) is '^ prima facie''' evidence against the surety on the administration bond ; and it is not necessary after such j)rooeedings to have a decree of the Court of Ordinary before commeuciug actions on tlie bond. A surety of an administratrix, (whose intestate was the administratrix of an estate in her life time, ) is not absohitely bound by a decree in the Court of Equity against his principal, for the devastavit committed on the estate of which his principal's intestate was the administratrix, where he was not made a party to the proceedings ; and he is not concluded from showing that his principal received nothing of the assets with which she is charged. Before Richardson, J., at Charleston, January Term, 1841. These were actions of debt on the administration bond of one of the defendants, Hannah Carlile, as administratrix of Jane Radford, deceased, the one being against her as principal, and the other against Paul Durant, as her security. The plaintiff produced, first, the administration bond — then the proceedings in a case in Equity, at the suit of Wm. B. Campbell, administrator, de bonis non, of John J. Radford, deceased, the real plaintiff in these suits against the defendant, as administratrix of Jane Radford, who was in her life time, administratrix of said John J. Radford. These proceedings consisted of a bill ordered pro confesso — an order of reference — a report of the commissioner, and a decree against the defen- dant for the sum of $205 38, with interest from 23d June, 1837. The plaintiffs then produced afi.fa. issued in pursuance of said decree, and returned 7iidla bona. These proceedings speak for themselves. The defendant moved for nonsuits, on the ground that no citation had been issued against the defendant, Hannah Carlile, calling on her to account before the Ordinary for the estate of Jane Radford, deceased, the intes- tate of the defendant, and no decree against her for any assets of the estate of Jane Radford, which had come to her hands to be administered. I thought such a proceeding essential before action brought on the administration bond, and that the decree in Equity, produced by the 68 CHARLESTON, FEBRUARY, 1841. YOL. I. [*100 plaintiEf, with the return of nulla bono, without a decree from the Ordi- ^.r-,-, nary, or the Court *of Equity, as to the assets of Jane Radford, * -' deceased, did not constitute proper legal proof of a devastavit by the defendant Hannah Carlile, and granted the motion for a nonsuit. I received the annexed notice of appeal, which, with the proceedings iu Equity, will sufficiently explain the case to the Court of Appeals. GROUNDS OF APPEAL. 1. That the decree in Equity, produced in these cases obtained by the plain- ti£F airainst the defendant, Hannah Carlile, as administratrix, with the Ji. fa. returned nulla bona, was evidence of a devastavit, to charge the administratrix and her surety, the other defendant. 2. That there being a decree in Equity against the administratrix to pay, she having failed to account, it was not incumbent on the plaintiff to call the defendant, the administratrix, to account before the Ordinary, previous to an action on the administration bond. 3. That the decision of his Honor was in other respects, against the law of the case arising on the facts proved. Curia, per Butler, J. We are of opinion that the nonsuit ordered by the Circuit Judge should be set aside. Hannah Carlile had been duly called on to account, by a Court of competent jurisdiction. She had it in her power to acccount for her administration as fully iu the Court of Equity, as she would have had before the Ordinary. Her liability was established by a decree which she did not oppose. Whether she could have effectually resisted it or not, is not for this Court to inquire. It is only necessary to inquire whether there was such evidence of a devastavit, a?, prima facie, to subject her security, Durant, to liability on the bond. By the decree it would appear that Hannah Carlile had assets for which she was liable to those having demands against her intestate, and by the return of nulht bona on the fi. fa. (issued on the decree) it would appear that she had wasted the assets that came into her hands, (a) This has always been regarded, as sufficient evidence of a derasfavit, to charge the security on the administration bond. The ground was taken in argument, and it was the principal one relied on, that the securities of *1001 J^Jifi Radford were alone liable to the i)resent plaintiff, as she "'-' *received into her possession, and did not account in her lifetime, for the estate of John J. Radford. If Jane wasted that estate, and it could be made to api)ear that her administratrix, Hannah Carlile, received nothing of it, the securities of the former, and not the latter, would properly be responsible for the devastavit. But the bill against Hannah charges that she received the money and chattels which had been in the hands of Jane Radford, and thereby incurred a responsibility to answer for the debts and demands against her intestate. The demand of plain- tilfis fairly asserted against the representative of Jane Radford, and as slie has not denied it, she must abide the judgment against her. The security, Durant, however, occupies a different position in this controversy. As he was not a party to the proceedings against his principal, he is not absolutely bound by them, but, under the decision of the Ordinary vs. Condy, (b) he may now show that his principal received nothing of the assets of the estate of John J. Radford, but that hey were wasted by the administratrix, Jane. He is not concluded ('0 Tost 380. An. (6) Supra 41, and notes. *102] TOBIAS VS. WOOD. 69 by the proceedings against Hannah Carlile, but may show, on another trial, that his principal, having reached nothing, should have been amen- able for nothing. This is an issue which depends on evidence, to be decided by a Court and jury. The motion to set aside the nonsuit is granted. The whole Court concurred. Thompson, for the motion. Yeadon, contra. Note : — The notes of argument, and the authorities cited by the counsel, that the Reporter had taken, have accidentally been mislaid, and cannot be found so as to appear with this case. Repoetek. ^*IsAAC Tobias vs. James Wood. [*103 An affidavit to hold to bail, stating that the defendant was indebted to the plain- tiff "in the sum of one hundred and forty-five dollars, on a note and due bill, bearing interest," was held to be a sufficient compliance with the Act, and an exoneretur on the bail bond was refused. Where a party swears that the defendant is indebted to him, he swears, in a legal point of view and in legal parlance, to a pi'esent debt that is due, and not a future one. Before O'Neall, J., at Charleston, May Term, 1840. In this case the plaintiff issued a writ of assumpsit against the defend- ant ; and to hold him to bail, annexed to it the following affidavit : "The State of South Carolina. Personally appeared before me, Isaac Tobias, who being duly sworn, maketh oath and saith that General James Wood is indebted to him in the sum of one hundred and forty-five dollars on a note and due bill, bearing interest, and that no part of which has been paid. I. Tobias. Sworn to before me this 4th September, 1839. Abraham Moise. Under this proceeding the defendant was arrested and gave bail. The defendant moved, before me, to have an e.roneretur entered on the bail bond, " on the ground of the defectiveness of the affidavit, "(a) The motion was overruled, for the following reasons. "The Act of 1769, (P. L. 273, 1768,) Stat. 204, § 20, M., provides that no person shall be held to bail on any writ of capias ad respondendum for debt, unless an affidavit shall be made and attested by some Judge or Justice of the Peace, and endorsed on or annexed to the writ, before the service thereof, of the sum really due." Was the question res Integra, as to the construction of this Act, I should say that an affidavit of the sum really due, without stating the manner in which the indebtedness arose, would be sufficient ; for the difference in its phraseology from the English statute on the same subject, would justify that difference in the construction. But the cases of Feck and Hood vs. Van Evour, (1 N. & McC. 580, Note A,) ruled that the affidavit must not only set out the sum due, but also how it (a) 1768. 7 Stat. 204, § 20. An. 70 CHARLESTON, FEBRUARY, 1841. YOL. I. [*103 acerned ; and to that I yielded my assent in the case of Saunders *inil *'^s- Sughes,{a) as a means of protecting the liberty of the ^^*-l citizen. Does the affidavit here state both the amount due, and also the manner in which the debt accrued ? I think it is manifest it does. It states that the defendant is indebted to the plaintiff in the sura of $145, on a note and due bill, bearing interest. No one can be mistaken about the manner of the indebtedness, after reading the affidavit. It was contended, with tlie usual ability and ingenuity of the defendant's attorney, that the affidavit was defective, inasmuch as it did not show that the notes were due. I thought, however, that when the plaintiff swore that the defendant was indebted to him, he, in a legal point of view, and in legal parlance, swore to a present and not a future debt, and that therefore there was no defect in the affidavit. lu the case of Woodfulk vs. Leslie, (2 N. & McC 585,) the affidavit stated that the defendant was indebted to the plaintiff $360, as the assignee of a promissory note. In that case my brother Richardson, referring to Peck S Hood vs. Van Evour, and to Sellon and to Tidd, stated the rule to be "that to hold a debtor to bail, the law requires that a specific sura of money shall be charged, and the cause of action plainly set forth in the affidavit." "These indispensable requisites," said he, have been strictly complied with in the affidavit before us." Compare the affidavit in that case with the affidavit in this, and if there is any difference, it has escaped my attention. Changing the parties, Judge Ilichardson's decision there might be used here. In Loice vs. 3Iayson, (3 McC. 313,) the affidavits states that notes were found among the papers of Arcliy Mayson, deceased, by which it appears that Ramsey L. Mayson is indebted to the said Archy Mayson's estate, $2700.88," &c. Judge Johnson, who delivered the opinion of the Court in the case of Peck & Hood vs. Van Evour, delivered the judgment of the Court in Lowe vs. Mayson. After referring to the rule settled in Peck & Hood vs. Van Evour, he said, " the affidavit in this case sets out in general terms the manner in which the debt arose, as far as the plaintiff can be supposed to be conversant with it; and if we regard the reasons of the rule, the objects are as fully attained, as if the notes had been recited with the utmost minuteness. Neither the dates nor the number of the notes would enable the Court to judge of their ♦1051 ^^"^' efficacy, and if *the plaintiff has committed a perjury, the -J offence can as well be assigned on this affidavit, as if it had con- tained them, so that the whole object of the rule has been attained." Paying a due regard to that decision would, it seems to me, supersede any difficulty in this case. The affidavit there makes no other allegation that the notes were due, than that Ijy referring to them it appeared that defendant " is indehled'' to the said Archy Mayson's estate, &c. If any more precise allegation than that the notes were due, had been necessary, it would hardly have escaped the able counsel concerned, or the experi- enced Judge who decided that case. The plaintiff, as administrator, could not have asked any exception, in this behalf, in his favor, for he had the notes in his possession, and could therefore speak of them with certainty. In Saunders vs. Hughes, (2 ]5ail. 504,) the affidavit states that (a)2BM.:>]A. An. *105] OWENS vs. HODGES. 71 Col. Joseph Hughes, of the firm of William & Joseph Hughes, stands justly indebted to the plaintiff in the sum of $936.69, due on a note, &c. No objection was there taken to any want of certainty in setting out that the notes were due. I have looked through all the other subsequent cases, and have referred to the excellent digest of our decided cases, pre- pared by the defendant's attorney, and I have not been able to find a case, or dictum, which requires an affidavit to set out more than is done in this case. The defendant renews his motion in the Court of Appeals to have an exoneretur entered on the bail bond, and to reverse my decision on the ground "that the affidavit is defective in substance, inasmuch as it does not contain any allegation that the notes ivere due.^' Rice, for the motion, cited P. L. 273. Tidd's Prac. 1 vol. 144, 145. 3 Chitty's Prac. 333, 334, 335. Cliitty, 331, 333, 334. Chitty on Bills, 572, 573- 2 Maul. & S. 149. 7 Faust, 173 — as to form of affidavit. Chitty's Practice, Appen. Tidd's Append. Archhold's Forms, 8, 9, of the remedy when the affidavit is defective. 1 Tidd Prac. 164, 165. Peck vs. Van Evour, 1 N. & McC. 580. 1 Rice's Dig. 97. 3 McC. 318. 2 N. & McC. 585. 1 McC. 313. 2 Bail. 504. Moise, contra. ''^ Curia, per- O'Neall, J. In this case we are entirely satisfied r^-in/^ with the decision below; and concur in it, for the reasons assigned '- by the Circuit Judge in his report to the Court. The motion is dismissed. The whole Court concurred. See Kerr vs. Phillips, 2 Rich. 199. Rosenhury vs. McKain, 3 Rich. 149. An. Solomon Owens vs. Samuel Hodges. Where a party to a contract stipulates to perform one or more things, and in the event of non performance of any or all of them, agrees to pay a certain simi, ■ the sum agreed to be paid will be regarded as a penalty, and not as liquidated damages. For the non-performance of a contract, the party failing shall pay the other for any loss he may have sustained, and this loss is the measure of damages. If this loss has been ascertained by the agreement of the parties, such agreement shall be carried into effect, otherwise the jury will assess the damages from a full view of the facts and circumstances of the case. Before Evans, J., at Marion, Spring Term, 1840. This was an action of debt on a bond for the performance of an award, and will be sufficiently understood from the report of his Honor, the pre- siding Judge, and the bond, award, and precedent agreements between the parties, copies of which are subjoined to the report : This case depends much upon written contracts between the parties, which are herewith annexed. The facts were these: The defendant was the owner of a mill near to the plaintiff's fields. The fields were reclaimed marsh land, a part of the swamp on which the mill was erected ; and in order to prevent the overflow of the fields by the water 72 CHARLESTON, FEBRUARY, 1841. YOL. I. [*106 j^,„^-, from the mill, in December, 1834, an agreement was entered into -I *between the parties, by which the defendant was to construct a dam, to be completed by the 1st January, ISSY. The dam was not finished, and a controversy arising about it, the matter was agreed to be left to the arbitrament of Brown and Wheeler, and a bond entered into, to perform the award. By the award, the work was to be completed by the 1st January, 1839, according to the original contract; and on failure to complete it, the defendant was to pay $5000. The only alteration in the original agreement made by the award, was this extension of the time, and the hands which the defendant was to furnish to work on the dam. The action was to recover damages for not completing the work according to the original agreement, as modified by the award. The plaintiff contended, that he was entitled to recover $5000, as stipulated damages. I did not think so. 1st. Because there were many things to be done, and it was unreasonable to suppose the parties intended that this large sura should be paid for the slightest failure to complete the same in any minute particular, according to the contract. 2d. That that sum was more than five times the value of the land, when the dam was finished. By the award, Owens was to furnish so many hands, and Hodges so many. There was some proof that Hodges did not at all times, have as many hands at work as he was to furnish. I did not consider this as mate- rial : because, if he had finished the dam by the 1st January, 1839, there would have been no breach of his agreement. The plaintiff, Owens, having performed his part, was entitled to recover full damages for the breach on the part of defendant. The object of the parties was, the com- pletion of the dam by the time stimulated ; and Hodges was bound to furnish the necessary laborers, to do this within the time. There were various breaches assigned. Some were proved, and some not. The jury gave a verdict, I think for about four hundred dollars, from which the plaintiff appeals. AGREEMENT OF 1834. South Carolina, Marion District : An agreement is hereby made, between Solomon Owens, on the one part, and Samuel IIo(l>,'es, on the other part, to wit : The said Owens doth agree to furnish *10'^1 ^"^^'' f^""'' hands, and *provisions and tools for said hands : the said Hodges doth agree to furnish four good hands, and two others, and provisions and tools for said hands, to cut a canal, and make a dam sufficiently strong and high to prevent said Hodges' mill water fi-om going into said Owens' fields, from an old dam known and called David Owens' machine dam, to a point of land extending from the hill where James Alwood lived, by the upper end of Price's marsh; said canal and dam to be made by the directions of said Owens. It is also agreed upon between tlie parties, that the aforesaid canal and dam shall be completed on or before the first day of January, A. D. one thousand eiglit hundred and thirty-six. In eonliniiation of this, our agreement, we do hereunto set our hands and seals. December loth, 1834. SOLOMON OWENS, [l. s.] SAMUEL HODOES. [l. s.] Witnesses, i W"'-';^" Williamson, Upon the duo and deliberate reflection of the time given for the completion of 108] OWENS VS. HODGES. 73 the within stipulated work, we mutually agree to extend the time from^ the first day of January, A. D. 183(j, mentioned within, until the first day of January, A. D. 1837. Witness our hands, the 16th day of December, A. D. 1835. SOLOMON OWENS, SAMUEL HODGES. •„,.^ ( John A. Cherry, Witnesses, | j^^^^_ -g^ ^^^^^^ B. Wheeler. REFERENCE AND AWARD OF 1837. State of South Carolina, Marion District: Know all men by these presents, that Samuel Hodges and Solomon Owens are held and finnly bound one to the other, in the sum of one thousand dollars, for the payment of which sum well and truly to be made, we, the said Hodges and Owens, bind ourselves, our heirs, executors, and administrators, and assigns, firmly by these presents, sealed with our seals, and dated the 9th day of February, A. D. 1837, if either one shall fail in the condition underwritten. The condition of the above obligation is such, that if the above bound Hodges and *Owens, their r4fir>q heirs, executors, administrators, and every of them, shall and do in all things, '- well and truly stand to, abide and perform the award, order and arbitration of William Brown and Edward B. Wheeler, arbitrators, indifi'erently named and selected by the said Hodges and Owens, to determine all matters and things in controversy, concerning a contract between them ; provided the award of the said arbitrators be made and reduced to writing, ready to be delivered to the said par- ties, on or before the first Monday in March next ; and if said arbitrators should disagree, they shall call in an umpire, who shall decide in writing, which shall be considered binding and final ; then the above obligation to be void, else remain in full force and virtue. This the 9th February, 1837. SAMUEL HODGES, [l. s.] SOLOxMON OWENS, [l. s.] Witness, Silas Rogers. We choose the following persons to arbitrate the matters stated in the within bond : William Brown and E. B. Wheeler. 9th February, 1 837. SOLOMON OWENS, SAMUEL HODGES. Witness, Silas Rogers. This, the 3d day of March, 1837, we, William Brown and Edward B. Wheeler, the arbitrators chosen as above, have this day met to decide ui^on the matters and things submitted to us, to wit : an agreement made and entered into by Samuel Hodges and Solomon Owens, dated 13th December, 1834 ; a deed from Solomon Owens to Samuel Hodges, dated 13th December, 1834 ; also a deed from Samuel Hodges, dated 13th December, 1834. From the terms of the agreement and deeds of conveyance, above recited, we are decidedly of opinion, that the consideration, as explained by Major Legget, rendered it obligatory on Dr. Hodges to complete the canal and dam, or bank, sufficiently high and strong to protect the fields of Solomon Owens from the mill waters of said Hodges, commencing at an old dam known as David Owens' machine dam, to a point of land extending from the high hill where James Alwood lived, by the upper end of Price's marsh. The time has elapsed by which the work was to be completed. *We are further of opinion, j.^, , ^ that the said Samuel Hodges has made default in not completing the canal '■ at the time stipulated, thereby hazarding damage to the crops of said Owens, by the overflow of the fields aforesaid. We accordingly came to the following deci- sion : that Samuel Hodges do complete the work mentioned in said agreement, on or before the 1st day of January, 1839, (eighteen hundred and thirty-nine ;) that during the time allowed for completing the said work, the said Samuel Hodges shall pay to the said Owens all damages which may occur to his fields, from the overflow of the waters aforesaid, the damages to be estimated by three disinter- ested persons, chosen by said Owens and Hodges ; said Hodges to furnish a com- petent overseer to superintend the work, paying for the hire of the same ; and in the event of the failure of said Hodges to complete the work within the time above 74 CHARLESTON, FEBRUARY, 1841. VOL. I. [*110 specified, he'shaU pay to said Owens, or to Jus heirs and assigns, the sum of Jive thousand dollars. We declare, also, that said Owens shall furnish four hands to said Hodges, to work on said canal, whenever said Hodges shall notify him that they are wanted ; and upon the refusal of said Owens to furnish said hands to said Hodges, he shall forfeit the sum of one thousand dollars. We further decree, that said^Owens shall he permitted to use the canal or hank for a fence, or any other purpose, except stopping up the channel of said canal. We further decree, that as this work, when completed, is for the purpose of draining, we consider that said Hodges is equally bound to the heirs and representatives of said Owens, as to himself now living.* And we further award, that the said Solomon Owens, and the said Solomon Hodges, shall each execute a bond in the sum of ten thousand dollars, the one to the other, to stand to this, our award, and to fulfill the same. Witness our hands, the day and date above written. EDWARD B. WHEELER. WILLIAM ><' BROWN, mark. Witness, Levy Leggett, BOND ON WHICH THE ACTION IS BROUGHT. Hie State of South Carolina, Marion District, \ Know all men by these presents, that I, Samuel Hodges, am held and firmly ^^^ bound unto Solomon Owens, in the full *and just sum often thousand dol- -• lars, to be paid to the said Solomon Owens, his certain attorney, executors, administrators and assigns, for which payment well and truly to be made and done, I bind mys(>lf, my heirs, executors and administrators, firmly by these presents, sealed with my seal, and dated the sixth day of March, A. D. eighteen hundred and thirty-seven, if the said Samuel Hodges shall fail in the performance of the condition underwritten. The condition of the above obligation is such, that if the said Samuel Hodges sliall well and truly do, perform and observe, what is enjoined in the award and arbitrament of E. B. Wheeler and William Brown, for said Samuel Hodges to do, ]><'rform and observe, as stated in the award, which award is dated the '61 day of March, A. D. 1837 ; then the above obligation to be void, or else to remain in full force and virtue. SAMUEL HODGES. [l. s.] Signed, sealed and delivered in presence of C. W. Dudley. GROUNDS OF APPEAL. 1. That liis Honor misdirected the jury upon the law, in charging them that the sum of jjiSOOO, specified in tlie condition of the bond, was not stipulated damages, but a iikmo penalty. 2. Tliat his Honor furtlier (mt(h1 in instructing the jury, tluxt upon the proper construction of the modilication of tlie original contract, the defendant was not bound to furnish his liands, but tliut tlie plainlifl' was bound to furnish for the wliole time; ami that the defendant was only bound to do what the plainlilf's hands couhl not acconiplisli Mitliin tluit time. H. 'J'hat various breaclu's of the; award, and more especially the breach for which the damages of $:}iHn) were stipulated, were fully proved, and that the )>Iainti(r was therefore entitled to recover, at least, the full amount of the damages stipulated. Mr. Attorney Gen. liaihi/, for the motion, said, is a specified sum in award to 1h« roiisiden.d as a penalty or as li(iuidated damages? He contended that it was lifpiidatrd dama^'os; and, in support of his position, cited, 2 Bail. Rep. 293, Allen «H.)i v.^. lirnzicr ^ Randolph; 2 Bos. k Pul. 3.')1, Astlei/ vs. *Wpldon; also, 2 Term Kep. 32 ; 4 Ibirrf.ws, 222s ; :< Taunt. 4i;it ; 3 Jiarn & Aid. (;!)2. Ho argued that it VTM necessary to look into the intention of the parties— that the sum of SjfiOOO was to cover the value of tb.; land, or secure the plaiiitifl" for the amount that it would *112] OWENS VS. HODGES. 75 cost liim to have the work completed. He Scaicl, the principle that the damages cannot exceed the value of the land, is a novel and erroneous one. Ilarlhe, contra, cited, Bac. Abr. Tit. Con. letter F. ; 2 B. &. P. 354; G Bing. 141, 242 ; G Barn. & Cress. 21G ; IB Eng. Com. L. Rep. 10 J. 57 ; Bac. Abr. Tit. Admrs. and Arb. letter F. ; 147, 3 J. N. Y. Rep. 297. It will be considered as a penalty when several things are to be done, and a large sum is specified. Thompnon, same side, said, a contract to establish stipulated damages, oiight to be strictly construed. The acts to be done were to be done by the plaintiff, as well as the defendant. The plaintiff only forfeits $1000, and by incurring it, he would make the defendant liable for $5000 : cited Chitty on Con. 337 ; 7 Wheat. 15. He contended further, that a sum in gross, is rather to be considered as a penalty, than as stipulated damages. There is not a word in the award which would show that stipulated damages was to be paid. The bond he alleged, was void, from uncertainty. Time, he urged, where it enters into a contract, and a certain specified sum is named, it is to be regarded as stipulated damages. Mr. T. litre referred to and commented at length on the author- ities cited by his colleague, Mr. Ilarllee. — Reporter. Bailey, in reply, said, the word penalty was frequently construed to mean liquidated damages, and hence the only way to arrive at a correct intei'pretation of the matter was to take the intention of the parties. Curia, per Evans, J. This was an action of debt on a bond, for the performance of an award. From the evidence, it appeared that the phiintiff was the owner of some reclaimed land in a swamp, on which the defendant had erected a mill. The plaintiff's land was inundated by the water discharged from the mill pond. To obviate this, an agreement *was entered into, by which the defendant agreed to construct a r^jci-io dam, from a place called David Owens' machine dam, to another '- point described in the agreement, each of the parties to furnish a certain numl)er of hands, and the work to be executed under Owens' direction. The agreement is dated in December, 1834, and the work was to be fin- ished by the 1st January, 183T. The work was not finished, and in Pebruary, 1837, the parties agreed to refer the matter to the arbitrament of Wheeler and Brown, and entered into a penal bond to each other, in the sum of one thousand dollars, to perform the award. In iMarch the arbitrators made their award by which Hodges was directed to finish the work by the 1st January, 1839. Some slight modifications were made in the original contract, but none material to this case. The award concludes as follows : " And in the event of the failure of the said Hodges to comjilete the work within the time specified, he shall })ay to the said Owens the sum of five thousand dollars," and " upon the refusal of the said Owens to furnish his hands to tlie said Hodges, he shall forfeit the sura of one thousand dollars ;" and "we further award that the said Owens and Hodges shall each execute a bond in the sum of ten thou- sand dollars, the one to the other, to stand to this our award, and to fulfill the same." Tiiis bond was executed, and upon it this action was l)ronght, setting out four breaches of the condition. 1st. That the dam was not extended to David Owens' machine dam. 2nd. That it was in- sufficient, it leaked and was not high enongh 3rd. It was not made according to Owen's direction. 4th. Defendant did not furnish as many hands as he was bound to do according to the contract. A great deal of evidence on the trial was given on all these points. The defendant had made a dam within the time, as he contended, accord- 76 CHARLESTON, FEBRUARY, 1841. VOL. I. [*113 iug to the contract. The plaintiff contended that if he proved a breach oAhe condition of the bond, he was entitled to recover the sum of five thousand dollars, as stated or assessed damages. The case was tried before me at Marion, and I charged the jury that the sura of five thou- sand dollars, which the arbitrators had awarded to be paid, on the failure of the defendant to finish the work within the time stated, was but a penalty, and that they should assess for the plaintiff only such damages as were equivalent to the injury which he had sustained. The verdict *1 1 J.1 ^^''^^ "^ conformity with the charge, and a motion* has been made * -I in this Court for anew trial, on the ground of misdirection in the particular above stated. In cases where a party to a contract stipu- lates for the performance of one or more things, and in the event of the non-performance, agrees to pay a certain sum, it is, in most cases, exceed- ingly difficult to determine whether the sura be in the nature of a pen- alty,' or damages liquidated or ascertained by the parties. By penalty, I understand a forfeiture for non-performance. Formerly, the verdict at Law was for the penalty, and the party had no relief except in Equity. But now, under the statute, where any thing but the payment of money is to be done, the plaintiff must submit the condition of his bond, or covenant, to a jury, who are to assess the damages, at the value of the injury actually sustained. In cases where damages are said to be liquidated, the province of the jury to inquire and assess, has been superseded by the parties, who had themselves ascertained and assessed the damages. To distinguish between these two classes of cases, has always been found exceedingly difficult, and I do not find, in looking through the cases, that any clear and definite line can be drawn between them. In most of the cases, as in Allen vs. Brazer, et ah, and in Loive vs. Fierce, (2 Bail. 293 ; 4 Bur. 2225,) where a single act was to be done, as the delivery of a negro, or to pay so much if the defendant married any other than the plaintiff, the sura has been regarded as damages assessed by the parties; yet this cannot be laid down as an iu- fIoxil)lc rule, for it will readily occur to every one that if, in the case of Allen vs. Brazer, the sum to be paid if the negro was not delivered, had been one tliousand dtjllars instead of one hundred dollars, such sura must be construed a jicnalty. So, also, in most of all the cases where several things are to be done, and for tlie non-performance of any or all of them, a certain sum was to be paid, the sum of money has been regarded as a jifnalty. Such is the case of Astleij vs. Weldoj}, (2 Bos. & Pul. 346,) where the defendant had stipulated to perform at the plaintiff's theatre — to altciid rehearsals, &c., and in default to pay two hundred pounds. The same |»riii(.-i|)N; lias been held in a great variety of cases, both English and American, which arc to be found collected in Comyn on Contracts, 38, 47. Such a contract ns that we arc now considering, is to be interpreted like every other; and in that, as well as others, the true inquiry is, what *ll.Sl '"'^ **'^ I»arties intend ? *and where such intention can be ascer- tained, the Law will give it eflect accordingly. Taking this as our guide, let us then intjuire whether the sum of five thousand dollars is in the nature of a i)enalty, or liquidated damages? By the contract Ilo.iges was bound to do several things. He was to make a dam from Alwood's point, by Trice's marsh, to Owens' machine dam. The dam was to 1)0 of sufficient height and tightness to protect Owens' field against *115] OWENS VS. HODGES. the inundation of the water. It was to be made under Owens' direction. Hodges was to furnish an overseer, and a certain number of liands ; and lastly, the dam was to be finished by the 1st January, 1839. Now, ac- cording to the literal interpretation of this contract, the defendant was bound to pay the penalty, if he failed in the performance of any one of tiicse undertakings. If he had made the dam in full performance of his agreement, in every particular, except that on the 1st January, 1839, a very small portion which would not cost ten dollars, remained unfinished, according to the plaintiff's demand he must ])ay five thousand dollars. If a small portion of it leaked, and the plaintiff by it was but little injured, or if he had made the dam perfect within the time, but yet had disobeyed the plaintiff's directions, or had omraitted for a single day to furnish his portion of hands to work, each of these would subject him to the payment of the whole sum, and for failure of all of them, he would incur no other or greater liability. It seems to me, it is only necessary to state the proposition, to determine at once that the sum of five thou- sand dollars could not have been the estimate which the parties them- selves, or the arbitrators, had assessed, as the true damages which the }ilaintifiF was to sustain. It may be that that sum was the estimate of Owens' loss, if the dam was not constructed at all, but they never could have intended the defendant should pay as much for failure in part, how- ever inconsiderable, as for default in the whole. I do not perceive that this case diifers in the result from the other cases, by the circumstance that after the award, and in pursuance of it, a bond in ten thousand dol- lars was entered into to secure the performance of the award. It is said there are two sums, and therefore both cannot be penalties. Though it strikes me it cannot alter the case, it removes some of the difficulties in the way of construing the contract : as the plaintiff desires, the same absurdity of making the damages for a part, equal to the whole, still remains. I do not *perceive the reason why this should have been r*-| -i ^ done, or why, indeed, any second bond was necessary to secure '- the performance of this award, except that the first was in too small a sura, and as a second bond was necessary, they directed it to be in con- formity with what is usual, in double sura. The general rule is, that for the non-performance of a contract, the party failing shall pay the other for any loss he may have sustained, and this loss is the true measure of damages. If this loss has been ascer- tained by the agreement of the parties, such agreement shall be carried into effect. If there be no such agreement, then the jury are to assess, upon a full view of the circumstances of the case. Justice requires a full indemnity, but nothing beyond ; and hence, in the latter cases, the incli- nation of the Courts is to consider the sum agreed to be paid, rather as a penalty, than as liquidated damages, unless the intent seems to be otherwise. In this case we are of opinion the instruction of the Circuit Judge was right, and the motion is dismissed. The whole Court concurred. See as to stipulated damages. Worrell vs. McClenaghan, 5 Strob. 115 ; Allen vs. Brazier, 2 Bail. 293. Salterwhite vs. McKee, Harp 397. As to the quantum of damages. Miller vs. Billiard Sj' Wade, Chev. 152. An. 78 CHARLESTON, FEBRUARY, 1841. VOL. I. [*117 *117] *TnoMAS Kennerly vs. JoHisr "Walker. Wliere a verdict has been obtained against two defendants, upon a joint and several promissory note, and judgment has been entered up against both, and upon appeal, a new trial is ordered, unless the plaintiff discontinues as to one of the defendants: Held, that the plaintiff should discontinue before ''scire facias'' is brought. , , , ^ -, xi_ ^ • i To permit a discontinuance of one defendant to a record to be entered on the trial of a ''scire facias," upon the plea of nul tiel record, would be irregular. A general demurrer to a special replication to the plea of "7iul tiel record,'' will be sustained, unless the replication denies the plea. Before Gantt, J., at Barnwell, Spring Term, 1840. This was a scire facias to revive a judgment entered up against the defendant, John Walker, and one Mary Gavin, on the 30th October, 1826. The original action was on a joint and several promissory note, in which the plaintiff obtained a verdict, at Fall Term, 1826, and entered up judgment accordingly. The defendants on the trial, moved for a nonsuit^ because the note was not proved as to Mary Gavin, which being refused, they appealed, and made the same motion in the Court of Appeals, on the same ground. The Court of Appeals were of opinion that the testimony was not sufficient to entitle the plaintiff to a verdict against Mary Gavin. " But if it is a joint and several note he may retain his verdict against Walker, by discontinuing as to Miss Gavin ; otherwise the motion must be granted." On the 13th March, 1835, the ])laintiff sued out his writ of sci7'e facias in this case against Walker alone, to revive the judgment, to which the defendant pleaded nul tiel record, on which issue was joined. At the July Terra, 1838, the plain- tiff ol>tained a rule on the defendant, to show cause on the first day of the next term, why the name of Mary Gavin should not be stricken from the record. The case stood thus until Spring Term, 1839, when the plaintiff obtained an order for leave, until the first day of October (then) next, to put in a sjjccial replication to tlie plea filed by the defendant. The plaintiff accordingly filed the following special replication : " And the said Tiiomas Kennerly, as to the said plea of the said John Walker, by him above pleaded, saith, that he, the said Thomas, by reason of any thing by the said John in that plea alleged, ought not to barred from *118l *''^^'"o ^"J maintaining his action against him, the said John, -J because he saith, that although upon inspection of the record, it appears that the verdict in this case was against John Walker and Mary Gavin, yet the Court of Appeals, being moved by the defendants to set aside tlie verdict, concurred in the opinion that the testimony was not sufficient to entitle the ))laintiff to a verdict against Mary Gavin, but they say, if tjic note is joint and several, the plaintiff may retain his verdict a-rainst Walker, by discontinuing as to Mary Gavin ; and this the said Thomas is ready to verify before the Court here, and thereupon he prays that judgment be given by the said Court " To this plea the defendant filed a general demurrer, in which the plaintiff joined. The case came on Itefore his Honor, Judge Gantt, who, upon reading the opinion of the Court of Ai)peals, in conYormity with the order of that Court, gave the plaintiff leave to discontinue as to Mary Gavin, and gave judgment on the pleadings and evidence for the plaintiff. *118] KENNERLY VS. WALKER. 79 The defendant appeals, and moves to reverse tlie judj^ment, because, 1. The plaintiff was not entitled by law to discontinue as to Marj' (jiavin. 2. On the pleadings and evidence, the judgment ought to have been for the defendant. The foregoing report consented to by the plaintiff's attorney, with the statement which follows : The action was brought, originally, by Martin mith, Hwora— Said ho is clerk in the Union Bank ; this indorsement of 121] ROBERTSON & CO. VS. MILLAR. 81 Millar bears the character of liis handwriting ; has seen notes of defendant which were admitted to be genuine ; has had such in his possession ; never saw this note before to-day. Robert S Smith, sworn — Said he has seen defendant's signature to notes which he knows to be genuine ; has seen him write, and should not hesitate to say that this endorsement is his handwriting ; would have taken it in business as genuine ; has received friendly notes from defendant. *Robert Quash, sworn — Said he is clerk of plaintiffs ; recollects that plain- _^, r,„ tiff received notice of protest ; he was sent to defendant to notify him ; '- defendant said, " Boyd is sick, and if he would wait a few days there would be some freight from Columbia, and as soon as it came it should be arranged;" witness did not show the note to Millar. Here closed the evidence of plaintiff. William Young, sworn — Said he is defendant's only clerk; attends to all his business ; knows all the paper he has out ; has charge of all his notes ; has seen Millar write ; this endorsement is not his writing ; never saw him wi-ite like this ; thei'e are marks there which he never saw him make ; (these he pointed out to the jury ;) witness kept a book of all notes of Boyd, on which Millar was endorser ; this note is not in that book. A bundle of notes on which Millar was endorser, which had passed through bank, were here submitted to witness, to prove the signatures genuine, with a view, by comparison, to aid the testimony to disprove the handwriting of Millar. This was objected to by Mr. Yeadon. I overruled the objection, and the witness proved the signatures genuine. The witness then pointed out to the jury wherein the difference consisted. He continued — The day that Boyd wa§ taken sick, three notes on which Millar was endorser, became payable ; he went to Boyd's office to ask if he was not going to send for renewals ; he met Vinro, who said that Boyd had gone home sick ; that his clerk had gone up to him, and he supposed he would attend to the re- newals at night; there were protests for about $2000 more than was justified by his entries ; this created suspicion ; went the week after and got statements from all the banks except the Bank of the State ; there were several notes not on his list ; he tried to get a statement from Boyd in 1839, but could not ; several months before Boyd was taken sick, Millar stopped endorsing new business ; may be a year; though he continued to endorse all renewals that corresponded with the book. Cross-examined — He said he has been with the defendant since the fire of 1838 ; was with his brother from 1832 ; began with his book of notes endorsed in January, 1839; about *sixty days from that time he found that he was $4000 on r^-igo Boyd's paper; he then determined to stop; he knew what were renewals '- from the book ; never saw him endorse a new note for Boyd after sixty days from the 1st January, 1839 ; he said he would not. Cross-examined — Mr. Yeadon presented him a note to John M'Nellage, of Boyd, endorsed by Millar, dated 19th September, 1839, at four months, for $140, and asked him if the endorsement was genuine ; he said it was, and that it was a renewal, and referred to his book, and showed what note it was the renewal of; he said Boyd was in the habit of sending up notes to be endorsed, marked "renewal," and when he got them would tear that part off; Boyd did send up four or five months before his death a note to be endorsed to buy a boat, which Millar refused to endorse ; Boyd died 22d March, 1840. Here closed the evidence of defendant. EVIDENCE IN KEPLT. W. W. Kunhardt, sworn — Said that he held Boyd to bail for John M'lS^ellage, and that he released him on his giving him the note of 19th September, 1839, endorsed by Millar ; this was the origin of that note. Cross-examined — He said he got the note from Boyd ; had no communication with Millar. Vol. I.— 7 82 CHARLESTON, FEBRUARY, 1841. YOL. I. [*123 William Bird vs. Robert S. Millar. This was an action of assumpsit against defendant, as endorser of a promissory note, of which the following is a copy : Charleston, 12th March, 1840. 250 dollars. Thirty days after date, I promise to pay to Robert S. Millar or order, two hundred and fifty dollars, for value received. WILLIAM BOYD. (Endorsed,) Robt. S. Millar, W. Bird. Plea — The general issue. Defence — Forgery. The evidence in the foregoing case of James Robertson & Co., is con- sidered as given in this ; the bundle of notes introduced, objected to and admitted. *Robert S. Smith, the only witness examined in this case, being s-n-orn — J Said he believes the endorsement to be the handwriting of defendant ; would take it as his without any hesitation ; witness was loading a boat for Bird ; while he was loading it, Boyd bought it ; Bird would not let him have it without an en- dorsement ; Millar's endorgement was given, and the boat deliA-ered ; thinks the note in suit is a renewal of that, because Boyd gave Bird an order on him for §65, the up freight of that boat to Camden ; after this note came out of bank, he talked with Millar on the subject ; he said that the note that came out of bank was not endorsed by him, but recollected endorsing an original note to Bird ; this conversation was after Boyd's death. These two cases were submitted to the jury on the evidence, and they found for the defendant in both cases. The i)laintili''s counsel served me with the annexed grounds of nppeah JACOB AXSOX, Recorder. 1. That his Honor erred in ruling that comparison of handwriting was adniissilde to di.taprove the genuineness of defendant's signature in these cases. 2. That his Honor erred in allowing the defendant to submit to the jury, in these cases, a bundle of notes alleged to have been signed or endorsed by hiin, in order iluit the jury by comparison, might iufer the forgery of his signature, or hantl writing to the notes sued on. 3. 'J'hat the verdicts were contrary to law and evidence. Ymdon, for the appellants, argued that comparison of handwriting was not .ndniissililn to prove its genuineness, and in support of this position, cited 2 Stark!.!, (jrj4 ; IVake Kv. lOfj ; Phil. Ev. 428 ; 13 J. R. 238 ; 2 McC. 518. He con- tended also tliat it would be setting a dangerous precedent to suffer handwriting to \Hi jirovcd ],y iomi)arison. Defendants could always select, and plaintiffs could not, to such an extent. A. Moisn, contra, cited Nor. Peake, 155 — (25 Appendix.) Curia, per Evans, J. The facts of these cases are, the defendant was *1251 '*"*''*' "" *^^° notes, as the endorser of one Boyd. *0n the trial, ■J witnesses were examined on both sides ; those for the plaintitf declaring their belief that the signature was the defendant's, and those for the dclenihinl, that tiie signatures were forged. A bundle of other notes were handed to a witness for the defendant. He proved them to be genuine, and then pointed out to the jury the difference of Millar's sig- nature to those notes and the signatures on the disputed notes. Wheu *125] IIERRIOTT AND PATTERSON ads. THE STATE. 83 the jury retired to their room, they were allowed to take the bundle of notes with them, "that they might compare the handwriting of them with the handwriting of the notes in suit, with a view to test the accuracy of Young's (the witness for defendant,) testimony." The admissiljility of this evidence, and its being allowed to go to the jury room, are the grounds upon which the case comes to this Court. The general principle is to be found in all the elementary books, in Starkie and Peake, that mere comparison of handwriting, by juxta- position, is inadmissible ; that is, where the witness has no knowledge on the subject, he shall not be allowed to prove a signature genuine or false, by comparing it with what another witness proves to be the true signa- ture. Admitting the principle to be correct, that such evidence is inadmissible in the first instance, yet, in a case of conflicting evidence, this kind of evidence was admitted in the case of Plunket & Boivmun, (a) uot as original, but as confirmatory evidence, to enable the jury to4]eoide upon which of the witnesses they could most confide. In a practice of many years, I have not known the admissibility of this kind of evidence, for the purposes above stated, questioned. I have made these remarks because this question was much discussed by both sides, on the argument. The case itself may be decided on a ground entirely independent. The question was, whether the note was endorsed by the defendant ? The witnesses on both sides were acquainted with the handwriting of Millar. The witnes.s. Young, testified the signature was not Millar's. lie was well acquainted with handwriting. The object, as I understood the report of the Recorder, of submitting the notes to the witness was, that he might point out to the jury the difference between the notes in dispute and tlie genuine signatures, and in this way to test the accuracy of his opinion that the notes were forged. If the notes were admissible for this purpose, I can see no reason why they should not be sent *to r^ig^ the jury. (6) It is the usual practice to send all written or docu- L meutary evidence to the the jury, unless there is some confusion in it likely to mislead. The motion is dismissed. Gantt, O'Xeall, Earle, and Eichardson, JJ., concurred. See Desbrow vs. Farrow, 3 Rich. 383. An. James Herriott & James Patterson ocls. The State. Any agreement to fight with loaded pistols, and aetnallj fighting in i>nrsuance, constitutes a duel under the Act. A]id it does not depend upon the time when the agreement was made, but upon the fact of the agreement. The circumstances attending a figliting with pistols, and the intention of the par- ties, are (xuestions of fact to he left to the jury. In the City Court, Charleston, before his Honor the Recorder, July Term, 18-10. The defendants were indicted for fighting a duel; the following is the testimony : (a) 2 McC. 518 ; Post 473. An. (5) See 10 Rich. 21J. An. 84 CHARLESTOX, FEBRUARY, 1841. TOL. I. [*126 .'^olomon Moses, sworn— Testified lie knows the defendants. On the night of the 24th May last, was with the jury in the Court as attending constable; between Twelve aiid one o'clock, was called and requested to go next morning to the west end of Broad street, that there was to be a duel or posting, and the informant had no doubt there wouKl be bloodshed. Joseph Yates was with him that night when he received the information, and accompanied him ; on their way there saw Fell, Gibbes, Herriott and Patterson ; followed Gibbes and Fell until they got beyond Trapman's, theythen stopped. Fell took out a paper and stuck it up on a lamp post, witness and Yates were between the two parties. Herriott and Patterson were approaching. Fell, about this time, put his hand in his waistcoat, and wit- ^, .,.., ness saw "a pistol ; he threatened to arrest him. *Herriott and Patterson 'J were distant from them al^out the length of the court room, (City Hall;) thev turned and walked away through Savage street, and stopped at a little distance ; Fell and Gibbes came along. Gibbes followed Herriott and Patterson down Savage street. Gibbes promised him that nothing should be done that morning, and witness went away. Herriott and Patterson went down Savage street : the others up Broad street; there was some excitement at the time the paper was put up. r,o^s-e.rnmii)f(l — Knows nothing of his own knowledge about the duel. From what he saw, he should say, the ol)ject of the parties was to post. The paper was taken town ; don't know by whom ; no one saw the paper but the posters who put it up. Joseph Yates, sworn — Testified : went trith Moses ; before they got to King street, met the two Herriotts and Patterson ; did not know at the time that they were the l>arties concerned ; he and Moses went to the west end of Bi-oad street, and sat down near Trapman's fence for some time ; Moses said he did not think they would come, and propos(>d to go home ; Moses left witness and went towards home ; after Mosi'S left him, lie saw Fell and Gibbes get out of a buggy at Matthews' stables ; lie went after Moses and called him back. When they returned, saw Fell and Gibbes at the lamp-post beyond Trapman's. Gibbes asked Moses what brought him there ? Moses said, to stop bloodshed; Gibbes said, this is no child's play; there is some other place besides Broad street. Gibbes, Fell, witness and Moses, walked to the corner of Savage street ; the two Herriotts and Patterson were half way down Savage street ; Gibbes went and spoke to Herriott and Patterson; the iithers went on ; Gibbes overtook them ; Moses went home, and witness went as far as the gate of tlie Catholic Church ; looked back and saw Herriott and Patterson come up Logan street, to the corner of Broad street ; Gibbes and Fell tlien returned towards them ; all five met at the corner of Logan and Broad streets ; (lilibes and Patterson spoke together, and they all went down Broad stre<-t, towards Trapman's. Witness followed them ; when they got to Trapman's, all went on except the younger Herriott, and stopped at the lamj^-post. Fell went towards lUitledge i^treet. Herriott remained at the lamp-post. Patterson and *12b] ^'''''"■*' ^^■'"■'^ "^ conversation. *Saw Gibbes walk towards Fell and return to the l.tmi»-post. Thought they were conversing. They stood there about five niimites. Witness turned round to see who was coming, and heard two pistols in quirk siirc.'ssi(.n; lie innnediately ran towards them; met Gibbes and the younger H.-rriott running up Broad street; Gibbes said lie was going for Dr. Frost ; Herriott juiked hiiii to go iij. anrl stoj. thi- blood; the elder Herriott was leaning on Patterson's hhould.T; hf was shot in the clicek. Patterson asked witness to walk down and j.ick up til.- jii^tols ; he i.icked up four pistols ; saw Fell have a paper in his hand ; did n..t .*.•.■ liim j.ost it up; just before they fired. Fell was standing with back to tlir west, H.-rriolt with back to the east; Gibbes and Patterson were standing off, forming n si|uari- witli the others. r,-....../ ,„„,/,„,/_Sjiid )„• was on« hundivd and fifty yards from them when they fire-l ; tliey Were five or ten minutes at the- lamp-post before they fired ; saw no preparntiojiH to take distance. Jt'i'iil A. JU„,,^ sworn— 'i'estificd an.l said he lives near the spot ; saw Patterson and H.Trif.tt jmssing to tbe west end of Broad street, towards Kutledge street; saw wliat pr..v.-d to b.- Fell ami Gibbes at the lami>-po.st ; I'atterson and Herriott returned, and ronver-.-d a little ; waw Fell go up to tb.- lami)-i>ost with a paper in his hand, aH if to i-iU it up ; he withdrew liis hand, still holding the paper ; Patterson and I *128] HERRIOTT AND PATTERSON ads. THE STATE. 85 Horriott walked a<;;ain to the west, stopped and conversed ; Ilerriott remained and Patterson returned, spoke to the others, and then returned to Herriott ; tliey both walked on and returned to Rutledge street ; Patterson then returned and Herriott followed hiin ; Patterson went up to Fell and Gibbes and staid a short time and returned, and met Herriott and conversed together ; they then both ieturn(;d to the lamp-j)ost ; when the v got within ten or twelve paces, Herriott halted ; Patterson approached Fell and Uibbes ; about a half minute passed ; Herriott retained his position. Patterson and Gibbes went into the middle of the street ; each opposite the one he was with ; Herriott and Fell retained their positions ; when Patterson and Gibbes were nearly opposite their respective friends, they faced about ; a second after the pistols were discharged. Herriott went towards Patterson and fell in his arms ; the whole affair occurred in ten or twelve minutes ; the position of the gentlemen formed a square. Here the testimony closed : defendants offered no evidence. *It is a mistake on the part of defendant's counsel, that I r^ciQa charged as attributed to me, in his first and second grounds. L There was a good deal said on that subject in the course of the argu- ment, by way of inquiry on ray part for information as to some positions assumed in the science of duelling, and by way of comment on the authorities produced ; but I certainly did not charge the jury on that subject. When it was submitted to the jury, I charged them, that if they believed, from the evidence, that these parties fought in pursuance of a previous agreement to do so, that it was a duel within the meaning of the Act ; it did not depend upon the time when the agreement was made but upon the fact of the agreement ; or in other words, that if they believed that the said parties went, the one with a view to post, and the other to resist it, and the posting was superseded by an agreement to fight, and they did fight, that it was fighting a duel within the meaning of the Act, and that the defendants were obnoxious to the penalties of the law. Tlie jury found the defendants guilty, and they appealed on the following grounds : 1. His Honor, the Recorder, charged the jury that a duel might well be, •where death ensues to one of the principals, and the slayer will not be guilty of murder. 2. His Honor directed the jury, that if two men agree to settle a present dispute by an immediate appeal to arms, and they forthwith fight with unequal weapons, it is a duel, aud one may be killed, and the slayer be well convicted of manslaughter. 3. That the only evidence of a duel or agreement to fight, was wholly cir- cumstantial, and if to be relied on, only proved an affray or riot. Wilson, for the motion, said that a duel was a single combat, at a fixed time and place, in consequence of a challenge. That the custom came originally from the northern nations, among whom it was usual to decide all their controversies by arms. There were pledges given on their respective behalf. He said, that among the Germans, Danes and Francs, none but women, sick persons and cripples, and those under twenty-one, and over sixty years, were excused. Ecclesiastics, *monks and priests, were obliged to find champions in their r^ion stead. The penalty of the vanquished was either death by hanging or '- beheading, or mutilation of members, according to the circumstances of the case. The definition of duelling — vide, English Die. Tit. Duelling. Duel, Mr. W. argued, at present is issued for single combat, or some private combat, and must be premeditated ; otherwise it is but a rencounter. Duelling, in this last sense, had its origin in the year 1527, at the breakmg up of the treaty between Charles 86 CHARLESTON, FEBRUARY, 1841. VOL. I. [*13() T'. and Francis 7. Tlie former informed the herald of the latter, that he would lie'reafter consider him not only a base violater of public faith, but a stranger to the honor and intesritj of a gentleman. Francis returned his herald with a cartel of defiance, in wiiicli he gave the usurper the lie in foi-m, challenged him to single combat, requiring him to name his time and place and his weapons. Cited 2 Chitty's Crim. Law, 727 ; 3 lb. 348. Bailei/. Attorney General, contra, said the Court will consider the meaning of the Legislature, and determine whether this is a duel under the Act of 1812. It is not t'iie light in which the duellist regards duelling that is to govern, Imt the Court is to look to the intention of the Legislatm;e upon the subject, and construe the Act accordingly. Mr. B. contended that any rencounter that follows from a posting is, of itself, a duel. Curia, per Richardson, J. This Court concurs with the Recorder, in his definition of a duel. Any agreement to fight with loaded pistols, and actually fighting in pursuance, constitutes a duel under the Act. The question was one of fact for the jury to decide. A challenge had passed and was said to be refused ; the challenger threatened to post his opponent. The ])arties repaired to a certain spot with loaded pistols, attended by their respective friends, early in the morning. They were seen to form a square ; the principals stood face to face, east and west of each other ; the apparent seconds stood to the right or left of their principals respectively. I should have before stated, one of the apparant seconds, upon one party being intercepted by the officers, had before said it was no child's \)\aj ; there is some other place besides Broad *iqi-] street; *and that a paper was put up before the fight and -' immediately taken down. But standing in the position I have de- scriljed, tlie principals fired, and both were wounded. This may have been a sudden rencontre arising out of the posting. But the challenge, the preparation of pistols, the attending of friends, the time of day, and the conduct of the respective parties, also indicate a concerted duel ; and the jury having decided under proper instructions, that it was a duel, the Court cannot interfere with their wholesome finding, and the motion for a new trial is refused. The whole court concurred. See State vs. Cunningham, 2 Sp. 253. An. S. D. GuiMKE t)s. Henry Houseman. Where a trespass for lioating a slave lias been clearly proved, without any legal jiistifleation, and the jury find a verdict for the defendant, a new trial will be granted. Before llicii.uiusoN, J., at Charleston, January Term, 1811. This was an action of trespass for beating the plaintiff's slave. The trespass wus clearly proved, and I could perceive no cause to justify the delendant, iililiough there appeared some extenuating circumstances. The case wus sulimitted to tlie jury, under the charge 'that they should find somelhing fur the plaintilf. They thought dillcrently and found for the defendant. *131] GRIMKE VS. HOUSEMAN. 87 The plaintiff appeals, on the grounds : 1. Because the verdict of the jury was contrary to the charge of his Honor and to law. 2. Because, inasmuch as the trespass was proved and not rebutted by contra testimony, they were bound to find for *the plaintiff, if it were but uuni- r*ioo iiial damaoes. L 3. Because the verdict was otherwise contrary to law and evidence. Curia, per Butler, J. It was proved beyond doubt tliat tlie defendant had been guilty of an unjustifiable trespass on tlie ]>laintiff's property. I can see very little to excuse, and nothing to justify his con- duct, lie undertook, by unauthorized violence, to redress the grievance of his own slave, not at the time when the insolence complained of was offered, but with deliberation, he pursued the plaintiff's servant and beat her in her own house. Common courtesy required tliat he should have coniplained to the plaintiff, if he bad any cause of complaint, before he took redress in his own hands. The great object of the law is to give security to the enjoyment of property, free from an illegal inter- ference with it against the consent of the owner. The position of a man enables him generally to maintain a practical control and protection over his own property without appealing to the law. But a woman must look to the law alone for protection when her rights are invaded and her feelings insulted by one who has neither a sense of justice, or courtesy to respect them ; and it would be a reproach to the adminis- tration of justice, were a jury allowed to find against such a plaintiff, where she had established an undeniable cause of action. It will not do for the law to allow redress and permit its tribunals to deny it. Frivo- lous actions should not be countenanced, but juries must respect the legal position, and even technical right of parties in Court. In the case under consideration, the plaintiff established a clear legal cause of action, and the jury had no right to find for the defendant. Such is the purport of the decision in the case of Norrel vs. Thoinjjson, (2 Hill, 470,) that if a trespass be proved, the plaintiff is entitled to some damages, though they may be nominal ; and when in such case, the pre- siding judge instructed the jury that, as the trespass was inconsiderable, they might find for the defendant, which they did, a new trial was granted. My brother O'Xeall has mentioned to me another case, tried at New- berry, more like this, but much stronger for the defendant. The plain- tiff's negro was whipped by a patrol. It appeared that the negro had a ticket at the time, which did *not designate the place he should go ; r^.-inr> the defendant thought the ticket legally insufficient, and whipped ^ '^ the slave ; the jury found a verdict for the defendant, which was set aside by the Court of Appeal, on the ground that the defendant had no legal justification, and that the jury were bound to find something for plaintiff; which was the result of a second trial. The motion in this case is granted. The whole Court concurred. James Rhctt, for the motion. Kunhardf, contra. See Watson vs. Hamilton, G Ricli 82. Elliott vs. Wadham, 2 Sp. 108, 1 N. & McC. 85. An. 8S CHARLESTON, FEBRUARY, 18J:1. VOL. I. [*133 S. D. King & Co. vs. C. H. Colding. Parol evidence is inadmissible to explain a written contract, or to vary it, unless where there is ambiguity. Before Evans, J., at Barn well, Fall Term, 1840. This was an action of assumpsit on a joint and several note, signed by the defendant and three or four others. The note was for about $3000, dated in December, ] 837, and due some months after. The other makers of the note had confessed judgment. On the left hand of the signatures, certain figures in pencil were made in a line with the signatures, which were added up at the bottom, and made the sum for which the note was given. The defendant offered parol evidence to prove the note was given for the sum of the several ]iurchases made by the signers ; that the tigures opposite to each name showed the amount of the several pur- chases, and that at the time the note was made, it was agreed between the payors and payees, that although the note was joint and several, for *T?i1 ^^'® whole amount, yet the payors were to be *severally liable for -^ no greater amount than their respective purchases, as indicated by the figures in pencil. This I rejected, as varying the written contract by patrol ; and the def.ndant's counsel gave me notice of appeal. BeJUnger, the counsel for the motion, being absent, Northrop argued this case. He contended that the figures in i;)encil were to be considered as a part and parcel of the note, and not a memorandum. If the note had been as a joint note and opposite each signature tlie amount was placed in iigures, parol testimony would 1>e allowed to explain, it being of a doubtful character. He said the consideration sliould be looked into. Cited here, Harper's Rep. 293 ; 1 Bail. 537. Parol evidence was admitted to explain written ; 2 Bail. 305 ; 4 McCord, 409 and 473. Patterson, contra, submitted the case without argument. Curia, per Evaks, J. Tlie figures in pencil opposite to the names of the signers of the note were probably intended to indicate the amount of the several jjurchases of each, but there was no repugnance between this and the body of the note. They created no ambiguity, and if they had, it was not such an ambiguity as parol evidence is admissible to explain. Tlie note was a common joint and several note, and the evidence offered was to vary it, to make it a several note of each of the signers, for sums which, when added together, would make up the whole sum which the Kcvoral signers had jointly and severally promised to pay. This was clearly inadmissil)le, and the motion is dismissed. The whole court concurred. See Post 4G7 ; 2 Strob. 123 ; 2 Bail 342, 305 ; 5 Rich 511. An. *135J WESNER ads. BRISTER. 89 *Frederick Wesner ads. Guardian of To'si Brister. [*135 Under the Act of 1740, any negro claiming to be free, lias the right, bj guardian, to bring an action of trespass in the nature of rainshment of ward; not only against any one claiming property in, but against any one having the possession of such negro. Ill the City Court, Charleston, before his Honor J. Axson, Recorder, April Term, 1840. This ^vas a case of ravishment of ward, to try the freedom of Tom Brister. The evidence is all in writing. I ruled that the master of the workhouse was liable to this form of proceeding. The jury established the freedom of Tom, and the City Attorney served me with the annexed grounds of appeal. The written testimony presented the following case : Tom Brister was a free person of color, resident in Florida, who executed au instrument of writing to Mr. John Yeomans, of which the following is a copy : . Territorij of Florida, Duval Countjj : Know all men by these presents, that I, Thomas Brister, colored man, for and in consideration of Mr. John Yeomans having paid certain sums of money for me, viz.: $200 to Mr. James Stevens: $30 to Mr. William Colson, and divers other sums for diflerent purposes, all for my interest, hai^piness and welfare, I do hereby bind myself to serve Mr. Yeomans as a laborer for the term of five years from the date of these presents ; and do hereby further promise that if he, said John Yeo- mans, bargains or sells my said time for five yeai-s, to any other person or persons, then I will well and truly serve them as a laborer, to the best of my abilities, until said time is out. Given under my hand and seal, in the town of Jacksonville, this 11th day of August, A. D. ISoS). THOMAS i< BRISTER. [l. s.] mark. Signed, sealed and delivered in the presence of Stephex D. Fekxaxdez, CUESTEK BiSBEE. *Mr. Yeomans sent Tom Brister to Mr. Thomas X. Gadsden, [-:(;io/. the broker, for sale, when Mr. Gadsdeii committed him to the ^ workhouse for safe keeping. From statements made by Tom Brister, of his freedom the present action was commenced. GROU.NDS OP APPEAL. 1. That the master of the work house is not liable to an action to try the freedom, or for the delivery, of a negro lodged there, by any other person than the parties who lodged hhn in the work house. 2. 'J'hat the negro had been properly received and detained by the master of the workhouse, under the circumstances in testimony by the defendant. 3. That the defendant is not liable to the costs — he is a public officer under a State Law. 3fr. Eckhard, City Attorney, for the motion. Is the master of the workhouse liable to any person lodging a slave in the work- house, but the person lodging him ? Mr. E. cited P. L. (by Grimke,) 169, 195 and 332, and contended that the workhouse was a public institution, and established by authority. That it was analogous to the pounds in England. Cited 2 Cowp. 478 ; and said trespass would not lie against a pound keeper. lie then cited City Laws, head Workhouse. It 90 CHARLESTON, FEBRUARY, 1841. VOL. I. [*136 was further argiie.l bv Mr. E. that the defendant was authorized to detain Tom Brister, under "the circumstances. He also said tliat it was competent for a free person 'of color to make a contract, depriving himself of his freedom for a term of years ; and the person so owning him for the time being, had a right to sell him in South Carolina, as much so as in Florida. Mr. J. B. Thompson, contra offered no argument, but submitted the case to the judgment of the Court, under all the circumstances attending it. Curia, pe7' Butler, J. In connection with the facts stated in the report of the Recorder, the following facts were stated and admitted on the hearing of this cause : That John Yeoraans, residing in Florida, ^, „wn assuming to be the absolute owner *of Brister, sent him to Thomas •J N. Gadsden, a broker, to be sold as a slave. Under the impres- sion that Brister was a slave, Gadsden committed him to the workhouse of Charleston, of which defendant was keeper, for safe keeping until he could eifect a sale. Yeomans' instructions were that Gadsden should sell Brister to some one who would carry him to New Orleans, stating that Brister would endeavor to make such statements as to procure his dis- charge, but that Gadsden must not believe him, &c. After Brister was committed, he made such communications as to induce the keeper of the workhouse to write to one Archibald Clark, residing in Georgia, to know if Brister was a free man, as stated by himself. Clark returned an answer, saying that he was, and that he (Clark) was his guardian ; and also sent an affidavit of the same purport ; upon which, the attorney of plaintiff made a demand that Brister should be released. In the mean time, Gads- den wrote to Yeomans of what had passed. Yeomans then sent the con- tract, noticed by the Recorder, showing the true relation between himself and Brister, to wit : a personal obligation for the services of Brister for a limited term. From this, Gadsden became satisfied that Brister vras not liable to be sold as a slave, and called and paid the fees of the work- house, and at the same time discontinued any further agency or control over Brister. Under this state of facts, the plaintiff was put to his action of ravishment of ward, allowed by the Act of Assembly of ll40,(a) by which it is provided that the Court, &c., may appoint a guardian for any person of color claiming to be free, and that such guardian may bring an action in the nature of ravishment of ward against any person who shall claim property in, or who shall be in the possession of, any such negro, Ac; and it is further provided, that such defendant shall and may plead the general issue on such action brought, and the special matter may and shall lie given in evidence, &c. Such was the state of pleadings in this case, the true issue of which was to try Brister's right to freedom. From the evidence on the trial, it was unquestionable that his liberty had been put in jeopardy, and that he was entitled to be discharged from custody, as a fn-e man of color. Gadsden committed and Wesner received the plftiiitill into custody, witliout any wilful participation in the infamous fraud attempted to l)e committed by Yeomans; and perhaps it would not ♦1381 ^^^ ""'"''^ ^*^* ''"'*^ ^''^ '"■^^^'^ *liable for damages, as for a trespass in the wrongful taking and imprisonment of the plaintiff. In general, I should Ihiidv that he ought not to l)e held liable to any action by a third person for negroes committed to his custody, until after demand made ('0 7 Stat. 3tJ7, g 1. An. *13S] BANK VS. KERR. 91 and a wrongful detention and conversion on his part ajrainst tlic rights of the true owner; as by the City laws, sec. 5th, page 856, it is made the duty of the keeper of the workhouse to adiuit and conhne all slaves delivered into his charge or custody by the order or in l)eha]f of their respective owners, or committed by the intendant, &c. The defendant was therefore justified in receiving Brister into his custody, from his ostensible owner. But this justification ceased after Gadsden paid the fees and discontinued his control over Brister. Trom that time the defendant held him on his own responsibility, or by the direction of the commissioners of the workhouse, and had no further right to claim exemption from liability to this action. Indeed, without the defendant had been liable, the plaintiff would have been without remedy, so far as his actual imprisonment was concerned. A suit against Gadsden, if any action would have lain against him, after he had discontinued his agency in the matter, would have afforded no relief; and Yeomans was beyond the jurisdiction or reach of legal process. The necessity of his situation gave him a remedy afforded by this action. The Act, however, under which this action is brought, is explicit and peremptory in its provisions, that any negro claiming to be free, has a right, by guardian, to bring an action of trespass, in the nature of ravishment of ward, against not only any one claiming property in, but against any one having the possession of, such negro. The defendant, who had the actual possession of the man claiming his freedom, was therefore liable to this action, and can take nothing by his motion. Motion dismissed. The whole Court concurred. See Huger vs. Barnwell, 5 Rich. 275. An, *The State Bank vs. John Cessford Kerr. [*139 The Same vs. Stoddard, Miller & Co. The protest of a note for non-payment, and legal notice to the endorser, binds the endorser for the payment of the debt. " The siirety is bound by the terms of his contract, and if the creditor, by agree- *' merit with the principal debtor, without the concurrence of the svirety, varies "these terms, by enlarging the time of performance, the surety is discharged; "for he is injured and his risk increased," Wliere a new contract had been made by the defendant, Kerr, with the bank, (which he never complied with, ) by which he was to have five years, by sub- stituting new notes with the same endorsers, in lieu of the suit ; it was held not to be such a variance as to discharge the endorsers. Before Richardson, J., at Charleston, January Term, 1841. This was an action by the State Bank, as the holder of a promissory note drawn by defendant, in favor of 11. Stoddard, ISIiller & Co. The note was for the sum of $750, and dated 18th March, 1840, payable eighteen days after date. The handwriting of the parties was admitted. The defence relied upon was a certain deed which was introduced in evi- dence by the defendant, dated the 22d day of June, 1840, and executed between the defendant, on the one part, and James Rose, President of 92 CHARLESTON, FEBRUARY, 1841. VOL. I. [*139 the South Western Railroad Bank The deed recited that the defendant, by reason of misfortune, was unable to pay and satisfy to his creditors the sums of raonev to them respectively due and owino: ; that he was desirous of securini? and satisfying his creditors, and for that purpose transferred to the said James Rose all his property, as the same is therein described and set forth, subject to certain conditions thereinafter expressed of and concerning the same : that " in consideration of the premises, the said James Rose had agreed to certain conditions, covenants and agreements, as well on the i)art of the said party of the second part, as on the part of all others who are creditors of the said John Cessford Kerr, to be oljserved, kept and performed, which said covenants and agreements are bereinai'ter more particularly set forth and expressed, and for the faithful preserving, jicrforming and keeping of which the said party of the second jiart, and all other person or ])ersons, party or parties, as named in the schedule, creditors of the said John Cessford Kerr, are and shall be, pre- *iiri1 ^''0"sly '^o the full eifect and efficacy of these presents* respec- -l tively, unto the said John Cessford Kerr, by these presents firmly held and bound." In the argument of the case before me, great stress was laid upon the precise words of the deed. I have, therefore, given the above extract from the deed, and will do so in the other part of the same instrument, to which I shall have occasion to allude. After conveying a considerable amount of property, the following trusts, upon which the questions in this case are made, are declared and expressed. " In trust to pay, dis- charge and satisfy, in equal portions and rateably, the sura and sums of money respectively due and owiug to the several parties who are, or may become, parties to these presents, according to the terms of i^ayment hereinafter expressed and agreed upon." " And it is also well under- stood, covenanted and agreed upon, by and between the said John Cess- ford Kerr and the said party of the second part, and also all other party or ])arties to these presents, that no part or portion of the property hereinafter conveyed, shall be sold, conve3'ed or disposed of before the expiration of five years, commencing from the date of these presents, unless with the consent of the said John Cessford Kerr, thereto by hira given and suljscribed in writing." In another part of the deed this clause appeared immediately after the habendum in the deed. "Subject to, nevertheless, the following trusts, conditions, covenants and agreements, of and concerning the same, &c., that is to say, that the said John Cessford Kerr shall be allowed by the said party of the second part, and by all other person or persons, party or parties, creditors of the said John Cessford Kerr, set forth in the said schedule, to substitute for the promissory notes of the said John Cessford Kerr, now by them held resi)ectively, or for which they, or any of them, may be responsible, other new notes of the said John Cessford Kerr, and endorsed in the same manner as the original notes for which they have been substituted : and that the said new notes shall be made i^ayable in five e(|uul annual instalments, commencing from the day of the date of these presents." On tiie part of the defeiulnnt it was contended, that by the terms of the deed, the dt-fondant was entitled to a new credit of five years; that this was an agreement upon good consideration, as the defendant had traus- *140] STATE BANK VS. STODDARD, ET AL. 93 ferred liis pro])erty upon cortnin* conditions, of which this wns r^r.-iji one; and that the plaintill's had therefore no right of action ^ against liiin. That the agreement to substitute new notes, was a privi- lege given to Kerr, which he could exercise or not ; that it was not a condition. For the phiintitfs it was urged tliat this was a condition, a part of the contract on the part of Kerr, that he was to give the new notes, and in relation to all claims against him where such new notes were not given, he had failed in the performance of a covenant on his part. I considered the ])osition last stated as correct, and so charged the jury; a verdict was taken for the amount of the note with interest, and the defendant appealed, on the annexed grounds : 1. Because, by the deed offerecl in evidence by the defendant, a new credit was given to the defendant for valuable consideration by the same, the plaintilF was estopped from proceeding at law, until default made in the new credit. 2. 'I'hat so much of the deed as relates to the substitution of new notes for the old notes hold by the State Bank, was nothing more than a privilege given to the defendant, and it was left to him to use it or not, as he pleased. 3. That by the said deed, the parties to the same were bound not to proceed to sell any portion of the said property, and consequently they will be estopped from proceeding at law, or otherwise where the result of a verdict for the plaintuT would give the fullest power to exercise the right, which was renounced for five years. 4. That the verdict was in other respects against the law and evidence. The State Bank vs. Stoddard, Miller & Co. This was an action brought by the State Bank against H. Stoddard, Miller & Co. as the endorsers of a promissory note made J. C, Kerr, for $750, dated the 27th day of March, 1840, and payable eighteen days after date. The note was not paid at maturity by tlie drawer, and was duly protested *for non-payment. The handwriting of the parties was r^-ii.7 admitted, and the defence was that the conduct of the plaintiff had L discharged the endorsers. John C. Kerr, the drawer of this note, having become unal)le to pay his creditors the amount due to them, executed to James Rose, President of the South Western Railroad Baid<, a convey- ance of his property mentioned in the said deed, upon certain conditions and for certain purposes expressed in the said deed. Such portions of the said deed as were particularly commented on, and furnished a clear understanding of the positions contended for, I have extracted ; they are as follows : after specifying that Kerr is unable to pay, that he desires to secure his creditors, and has for that purpose transferred his property to the said James Rose, it proceeds to declare that " in, consideration of the premises, the said James Rose hath agreed to certain conditions, cove- nant and agreement, as well on the part of the said party of the second part, as on the part of all others who are creditors of the said John Cess- ford Kerr, to be observed, kept and performed, which said covenant and agreement are hereinafter more i)articularly set forth and expressed, and for the faithful preserving, ])erforming and keeping of which, the said party of the second part, ami all other ))erson or persons, party or par- ties, as are described in the schedule, creditors of the said John Cessford 91 CHARLESTON, FEBRUARY, 1841. TOL. I. [*142 Kerr, are and shall be, previous to the full effect and efficacy of these presents, respectively, unto the said John Cessford Kerr, by these pre- sents, firmly held and bound." The following clauses of the deed were also brought to the view of the Court. " Subject to, nevertheless, the following n-usts, conditions, covenants and agreements, of and concerning the same, &c., that is to say, that the said John Cessford Kerr shall be allowed by the said party of the second part, and by all other person or persons, party or parties, creditors of the said John Cessford Kerr, set forth in the said schedule, to substitute for the promissory notes of the said John Cessford Kerr, now by them held respectively, upon which they or any of them may be responsible, other new notes of the said John Cessford Kerr, endorsed in the same manner as the original notes for which they have been substituted; and that the said new notes shall be made payable in five equal annual instalments, commencing from the day of the date of these presents." And the following trust is also ^. ,0-1 extracted from the *deed. "In trust to pay, discharge and satisfy, -J in equal portions and rateably, the sum and sums of money respec- tively due and owing to the several parties who are or may become par- ties to these presents, according to the time of payment hereinbefore expressed and agreed upon. And it is also well understood, covenanted and agreed upon by and between the said John Cessford Kerr and the said party of the second part, and also all other party or parties to these presents, that no part or portion of the property hereinbefore conveyed, shall be sold, conveyed or disposed of before the expiration of five years, commencing from the date of these presents, unless with the consent of the said John Cessford Kerr, thereto by him given and subscribed in writing." The State Bank became a party to this deed. For the defendant, it was contended, that the State Bank being a party to the deed, consenting to and bound by all the covenants and conditions of the deed, without the consent of the endorsers had discharged them from their liability; that here was not only indulgence given to the drawer, Ijy agreeing that his i)roperty should be kept secure from sale for five years, but that the bank had moreover set apart a certain portion of the i»roperty of the drawer for certain purposes ; that here there was a new contract, new security taken, which, as it prejudiced the remedies of the endorsers, discharged them from all their liability. It was contended on the other side, that there was no indulgence, and that the endorsers were not prejudiced by the conditions of the deed. I was decidedly of ojunion, that indulgence by the deed was given to the drawer ; that the bank had, by its l)econiiiig a party to the deed, agreed that Kerr might pay the debt in five ecpial annual instalments; that for five years itVas agreed liis ].roperiy siiould be protected : that this protection of the property was a prejudice to the endorsers, without their consent, and of course discharg.-d them. I told the jury that if the holder entered into a new confraci with the drawer, gave him indulgence, or so acted as to impair tlie right of llie endorser against the drawer, that such acts were at the risk of the holler, and would discharge the endorser; and that in this case there was no doubt that the conduct of the holders of the note had in law dis<-hargcd the endorsers. The jury, however, found a verdict ♦ J44] *''"■ *''"' I'lii'iitilf, for the whole amount of the note with interest, and the defendant appeals, on the annexed grounds : *144] STATE BANK VS. STODDARD, ET AL. 95 1st. Because the deed produced on the part of the defendant, clearly estab- lished an indulgence, in giving time to the drawer, without the consent of the endorsers ; which was sufficient to discharge the endorsers. 2d. That the said deed established that the plaintiffs, without the consent of defendants, who were endorsers, became parties to the same, and by the terms of the said deed, agreed that the property of the drawer should be protected from all sale for five years, unless with the consent of the drawer. 3d. That the case made was one where indulgence, in an extension of the time of payment, by preserving the property of the defendant from sale for five years, was given to the drawer, without the consent of the endorser, and this is sufficient to discharge the endorser. 4th. That the case was one where the holder takes new security to the pre- judice of the endorser, which discharges him from his responsibility. 5th. That the jury were charged most distinctly by his Honor, the presiding Judge, that the defendants were discharged, and this charge of his Honor on a point of law, was binding on the jury, and should have been observed. 6th. That the verdict was clearly contrary to all the evidence and the law of the case. Marjrath, for the motion, said, that where time was given, on indulgence, it would discharge the endorsers. Cited 1 Bay, 46(J ; 1 Mills' Cons. Rep. 371 ; 1 N. & McC. 117 ; 6 Peters, 257. H. A. DeSaussitre, contra, contended that no time or indulgence had been given ; that the very day the eighteen days expired, the defendant refused or failed to pay, the bank instantly brought suit. He also contended that the deed was but a limited one, and not general, as to all Kerr's creditors, assigning only a certain specific portion of his property, leaving the balance unincumbered and liable for his debts. He further said that the conditions of the deed were not complied with by Kerr ; and that the defence was founded upon a misconstruction *of the c^-iak deed. It was a condition precedent. Cited 1 H. Black. Rep. 270 ; 1 Bacon, '- 261 ; 3 Comyn's Dig. 90 and 91, note F ; Chitty on Bills, 292. Magrath, in reply, contended that the intention of the bank was not to be con- sidered, but the acts of the bank. The releasing of Kerr by the bank, whether they intended to release the endorsers or not, operated as a release to them. Curia, per O'jS'eall, J. After a note has been protested for non- payment, and notice legally given to the endorser, he becomes, like any- other unconditional security, bound for the payment of the debt. A mere giving day to the principal, or forbearing to enforce the collection of the debt, would not generally discharge the security, Picket vs. Land, (2 Bail. 608.) In Weyman vs. Kirbij, 2 Bail. 551, 553,) (a) the rule extracted from King vs. Baldwin, (2 ,J. C. R. 559, 560,) "that the surety is bound by the terms of his contract, and if the creditor by agreement with the principal debtor, without the concurrence of the surety, varies these terms, by enlarging the time of performance, the surety is discharged, for he is injured and his risk increased," met the approbation of the Appeal Court. This rule must decide these cases ; for if the Bank has varied the terms of Kerr's contract, by enlarging the time of performance, then Stoddard, Miller & Co., the endorsers fixed by notice are discharged. We shall be at once able to decide the cases by enquiring, had the Bank, by the contract in proof, so varied the terms of Kerr's note, and so enlarged the time of payment, that he could not be sued ? if so, he, as well as Stoddard, Miller & Co., (a) Slip. 84. An. 96 CHARLESTON, FEBRUARY, 1841. VOL. I. [*145 is protected, but if not, then all are liable. The provision in the deed to ffive to Kerr the opportunity of paying this debt, as well as his other deirts to the State Banl^, in five equal, annual instalments, depended upon his substituting for the note now in suit, another note with the same endorsers; this was not done, and of course there is notliing in this pro- vision of tlie deed which varies the terms of the defendant's note. The only provision which looks like an enlargement of the time of per- formance is that which declares that no part of the property conveyed shall be sokl in five years But that does not vary the terms of Kerr's note. He was still liable to pay it presently. He might be sued upon it at any moment. This being so, the endorsers, Stoddard, Miller & Co., ^, „-, cannot complain. '^'For every thing remains as before, so far -I as their contract is concerned. Under the judgment recovered in this case, any property which Kerr may possess, and which is not under some legal incumbrance, may be sold in satisfaction. The deed before us, which exempts his property from sale for five years, is nothing more than giving a jireference to such creditors as come in and give their assent to it within the time limited. That opportunity was offered to these defendants, and that they did not avail themselves of it, is perhaps more their misfortune than their fault. Still they cannot complain of the Bank for holding them liable presently, when their own neglect com- pelled the present course. It may be, that if their failure to sign the deed was accidental, that they may, in another Court, be still allowed to come in and have the benefit of its provisions. On looking through the deed, I think all its provisions are greatly for the benefit of Kerr's endorsers, and that the delay of sale for five years of the property con- tained in the deed, may be the means of paying his debts, without resorting to them. If so, this provision would not increase the risk of, and would be no injury to, the endorsers, and in that point of view would not come within the rule for their discharge. The motion is dismissed. Evans, Earle, and Butler, JJ., concurred. *\i1'} *SnERMAN and Debruiil rs. JuDAn Barrett. (a) An njiplicant for liis discliarge under the Insolvent Debtors' Act, will not be iHTifiitti'd to rliscoiitinu(! or withdraw his application after a suggestion charging IiIm Mrli.Ml\il(, with fraud has been filed, (h) A d.-frtKlaiifs Hclicdul(! is amenable, under the discretion of the Conrt ; Init it iiiu.st b.- Mhowu by affidavit, or otliorwis.", to the satisfaction of the Court, that tlif omission to insert the property omit,t(Ml in the schedule, arose from ignorance, inadvertence, or mistake. Ho will not bo permitted to amend, if it will create HurjiriHe or delay to the r)ther party. Wlieri('vt and true account and enumeration thereof, but is false, fraudulent and covinous, inasmuch as it does not contain several thousand acres of laud in the States of Mississippi, Alabama and Arkansas ; numerous lots in the town of ui»pona fide creditors of the said Juflali Harrett, of their just and legal rights, or were ronv(.y..f|, frnur|ule)ifly, for a mpr(> nominal or very inadequate consideration, to Home otiier jicrson or persons, to defraud liis creditors. Fourth— Because that the said Judah Barrett, some time in the year of our Lord 149] SHERMAN & DEBRUIIL VS. BARRETT. 99 it was about to be given in evidence, the defendant's attorney objected to it, on the ground that it was not shown to have come from the defendant. It was excluded. What were its contents I do not know. Mr. Cohen's affidavit can be produced and will speak for itself. Under the insolvent *debtors' Act, I presume an oath or affidavit of the r>|cirA truth of the suggestions disputing the debtor's schedule, was ^ never required. Under the prison bounds' Act, it was required that there should be some showing of the truth of the allegation of fraud, to oust the commissioners of special bail of jurisdiction. But since the one thouscand eight hundred and thirty-eight, fraudulently conveyed his house and lot in the town of Columbia, in the State of South Carolina, to a person called in the deed Eliza Smith, or to some other person in trust for her, for the nominal consideration of three thousand dollars, when these relators believe and are informed, and so charge, that in fact, the said Eliza Smith had no means or funds to pay for the same ; and the said house and lot are now held by her, or some other person in trust for her, to the hindrance and detriment of the creditors of the said Judah Barrett. Fifth — Because tliat the said Judah Barrett, on the seventeenth day of May, in the year of our Lord one thousand eight hundred and thii'ty-eiglit, fraudulently conveyed certain negro or mulatto slaves named Ann, Mary, Josephine, Collins and Nicholas, and household and kitchen furniture, unto Eliza Smith, or to some other person in trust for her use and benefit, without valuable consideration, wherel>y the creditors of the said Judah Barrett are defeated and deprived of their just and legal claims. Sixth — Because that the said Judah Barrett, on the thirty-first of July, in the year of our Lord one thousand eight hvmdred and thirty-eight, fraudulently con- veyed a house and lot of land in the town of Columbia, in the State of South Carolina, situate on the east side of Richardson street, at the corner of Richardson and Plane streets, fronting on Richardson, measuring on the said street fifty-two feet, and on Plane street two hundred and eighty feet ; also, another house and lot of land in Columbia, in the State aforesaid, on the west side of Richardson street, fronting on Richardson street, sixty-seven feet, running west on Assembly street, four hundred and seventeen feet, and fronting on Assembly street, eighty- seven feet : And also, another house and lot of land in Columbia, in the State aforesaid, situated at the corner of Assembly and Washington streets, fronting and containing on Washington street, two hundred and eight feet, and on Assem- bly street eighty-eight feet ; and also, a large number of negro slaves, to his son- in-law, Jacob Cohen, without valuable consideration for the same, with the intent to delay, hinder and defraud the creditors of him the said Judah Barrett. Seventh — Because that the said Judah ]5arrett has omitted in the aforesaid schedule, divers other pi-operty in his possession at the time of the filing of the same, both in the States of South Carolina, Mississippi, Alabama, Arkansas and elsewhere. H. A. DE SAUSSURE, xittorney for Relators. And the said Judah Barrett, by Wilson, his attorney, comes and defends the wrong and injury, when and so forth, and saith he is not guilty of the said several premises in manner and form as in that behalf as alleged against him, and of this he puts himself upon the country, and so forth. And for farther plea in this behalf, the said defendant says that the said several conveyances and deeds alleged to have been executed by the said Judah, in the 3d, 4th, r)th and (Jth specifications above set forth, were not executed at any time within tliree months preceding the time of filing the petition of the said Judah for his discharge, under the Acts of the General Assembly made for the relief of insolvent debtors, and this he is ready to verify ; wherefore, he prays judgment, whether the said relators ought to be permitted to proceed further as against him upon the said specifications, or any one of them. WILSON, for defendant. 100 CHARLESTON, FEBRUARY, 1841. VOL. L [*150 Act of 1S33, that is not now required. Notwithstanding Mr. Yeadon objected that the suggestion was not sworn to, I ruled that the plaintiffs were properly before me and entitled to proceed. I refused to strike out any of the allegations of fraud in the suggestion. None of them seemed to rae to be obnoxious to the charge of being ''frivolous,^'' and it is only for this cause that I should have been justified in striking them out. The special objections taken in the 6th, 7th, &th, 9th, lUth and nth grounds of appeal, to the sufiiciency of the allegations of fraud, and the finding of the jury thereon, will be sufficiently understood by referring to the record. It ought, however to be remarked, that if these objections are of any value, they ought to have been taken by the way of special demurrer,"^ and I presume the Court will be very well satisfied after verdict that enough appears on the record to show that the defendant is not ^. f. , -, entitled to the benefit of the Act. *In the course of the case, Mr. -J Cohen produced, under a sw.&pa??ia duces tecum, the deeds to him. It was held that a witness so subpoenaed and attending need not be sworn, and that the papers must be produced. Having now disposed of the preliminary matters, I will, as well as I am able, state the case as it appeared in proof under the different heads of fraud. The second alle- gation in the suggestion was, that the defendant had in his hands a large sum of money, $21,650, not included in his schedule. It appeared (if the sale to Cohen was bona fide,) that on the 31st July, 1838, the de- fendant sold to Jacob Cohen, his son-in-law, his houses and lots in Columbia, (not before conveyed,) for the sum of $16,500, and sixteen slaves for $5,150. His letter to his creditors of the 1st of August, stated that he had made this sale to enable him to begin business again, and that for the lots he received $10,000 cash, and the balance was to be paid in two, four and six months, and that the price of the slaves was to be paid in sixty days. The defendant was unable to show what Imd become of this large sum of money (if, in point of fact, he ever received it.) His counsel contended that he had gambled it away. It appeared that when 152] he engaged in gaming, he ])ursued it without *fear or judgment. I sui)posed, from the proof, that when once fairly embarked, he would have hazarded every thing he owned. It was proved by a man of the name of Davega, that the defendant gambled during the last races on the race course and in the gaming houses in the City, and lost con- siderably as Barrett said. He said the defendant had lived with him for the last ninety days, in the bounds, without any apparent means of defraying even ordinary expenses. He proved that defendant had escapc/l. Ill tlic third allegation, the plaintilTs charged that the defendant had not emitraced in his schedule large quantities of land and town lots ia the south-west. The evidence consisted of the defendant's written statements of entries and i»iirchHSos of lands for himself and others. To the plaintiff, Sher- man, as one of his co-partners, he stated entries and purchases to the nmouiit of 880,100. To Dr. Wells he stated an entry or purchase of $17^)0, of which he. Wells, was to have one half of the profits. Tlic fourth and fifth allegations charged that the conveyance of a house and lot in Columbia, and nine slaves, to or for the use of his wife, 152] SHERMAN & DEBRUHL VS, BARRETT. 101 Eliza Barrett, or Eliza Smith, were fraudulent. *UiKler this head r^-ico it appeared that Barrett, at or about the time of these con- '- veyances, was indebted to the amount of $23,195. In his letter to his creditors of the first of August, 1838, which was a little sul)sequent to these conveyances, he stated that the proceeds of his alleged sale to Cohen, $21,500 would not pay his debts The grantee, Eliza Barrett, or Smith, lived with the defendant from 1820. When their intercourse first commenced he was a married man. His then wife died at some time between '29 and '38. The conveyances were to Col. Chappell, as a trustee, for the use of Eliza Smith, and stated valuable consideration, but it was clear from the proof and the papers adduced that all these considerations might be referred to future or past cohabitation. The defendant, on the 6th December, 1837, drew an order on Stribling, for the payment of $45, rent to my wife, Eliza Barrett. While the defendant was absent at the west, he addressed letters to her as his wife, and in the name of "Eliza Barrett." He desired Coleman, as she was illiterate, to write replies for her, which he did. He asked her how he should sign the letters in reply. She re- plied, answer the defendant's letters, by which he understood her to direct him to sign her name as his wife, Eliza Barrett. He said the report was that tliey were married in North Carolina. On being asked by the defendant's counsel, whether he believed a marriage in fact .lad taken place, he said he did not. John Shultz proved that the defendant asked him in December, 1836, to go to his house, to witness a conveyance to be executed by Eliza. He told him that they were married in North Carolina. When she was about to sign the deed, the defendant wrote her name Eliza Smith, and she made her mark. He said " you know what you promised me in North Carolina;" she said yes; he said, "you must stick to that." The defendant is a Jew, and Eliza Smith is not. Told the witness the reason why he wished to conceal his marriage was on account of his faith. Witness said it was a question with him whether they were ever married. In all the conveyances and mortgages made by the defendant she did not join or renounce dower. The defendant was in the possession of the house and personal property conveyed to her to the time of his removal to Charleston, which was in '38, I suppose about the date of his con- veyance to Cohen ; though it might *have been at an earlier day, p^, r. for there was no certain proof in the matter. L In the sixth allegation, the conveyances to Cohen were charged to be fraudulent. The proof was, that on the day when the deeds were exe- cuted, Cohen gave to the defendant a check ; but the amount did not appear, nor did it appear whether it had or had not been ])aid. The value of the houses and lots conveyed, were proved by Gregg and McLaughlin, to be $36,500 ; they proved the rents to be less than 10 per cent. ($2,300,) but notwithstanding their unproductiveness was presented to their attention, they still asserted their value to be $36,500. These conveyances covered the whole remaining property of the de- fendant, except his interest in the western lands, and the property con- veyed to his wife or concubine, which ever she may have been. Mr. Cohen was proved to be a man of good character. His means to make such a purchase was rather dubious. He had in his possession ais 102 CHARLESTON, FEBRUARY, 1841. VOL. L [*154 owner, a large rice plantation, (six hundred and fifty-eight acres,) and fifty slaves. The conveyances to Colien were of the houses and lots in Columbia, already spoken of, for $16,500, and sixteen slaves for $5,150. The defendant, according to his letter at the date of these conveyances, owed more than $21,650. The seventh allegation was a general one, covering pretty ranch, in general terras, the charges raade in the second, third, fourth, fifth and sixth allegations. The jury were instructed, first, as to the second allegation. If they believed the sale to Cohen to be bona fide, and that the defendant had received the proceeds,$21,650, to enquire what had become of that sum. They were told it was for the defendant to show this. This was attempted to be done by showing his reckless character as a gambler, and his gaming within a year previous to his application for a discharge. They were told that they might find he had gamed away $21,650 but I advised them that I thought the evidence hardly warranted the conclusion. I told them then that the effect of gaming within a year, would exclude the defendant from the benefit of the Act ; but I said not to them, that it would have the same effect as a conviction of fraud. Indeed, upon Mr. Yeadou's reciuisition, at the close of my charge, I told them it would not have the same effect. If I said any thing like what is stated in the ^icc-j 13th ground, I have no recollection *of it. On the third allega- ^ tion they were told that the proof was plain, that the defendant had an interest in western lands not included in the schedule. To under- stand the defendant's fourteenth ground, it is necessary to understand the course of the argument. I had decided that the defendant could not noxo amend his schedule. The defendant's attorney, in words, appealed from my decision to the jury, and contended that they were to consider the amendment as made. In commenting on this part of the case, I said the course pursued was a most unjustifiable one ; my error, if I had committed one, was not to be corrected l)y the jury, but by the Court of Appeals, That they could not find upon facts which did not appear; and that there was no evidence that he had omitted the western lands through ignorance, inadvertence or mistake. On the fourth, fifth and sixth allegations, the jury were instructed that the limitation of three months in the jirison bounds' Act, applied to the preference of one credi- tor to another, and not to fraudulent conveyances As to the conveyances of Eliza Barrett, alias Smith, they were instructed that they could not be supported if she was the defendant's wife. They were referred to the evidence in this behalf, and they were told that on it lliey might find her to be his wife. In commenting upon the deeds, supposing her to be his concubine and not his wife, the dis- tinction between a consideration arising from a past or future cohabi- tation, was carefully i)r)inted out ; and the jury were told, if the consideration of either or both the deeds was future cohabitation, then that one or both could not be supported. For Barrett had retained po.ssession of the i)roperty up to a period when he was insolvent. If he had se|)arate(l himself from the pos.session, then his gift of the personal property, if made when he was abundantly able to pay his debts, would be good. But this could not now avail, as the proof was clear he had the possession to May, 1838. 155] SHERMAN & DEBRUHL VS. BARRETT. 103 [*156 In reference to the deed to Cohen, they were told that if they believed the consideration, $21,650, was not paid, then they might find these deeds to be fraudulent. For they were conveyances of the debtor's most valuable estate, within his creditor's reach, on the verge of insolvency. These were, since Twine's case, regarded as strong badges of fraud. It might be, that comparing the price paid, with the value *of the property, they might with these other circumstances, find the con- veyances to be fraudulent. Here, I suppose, is the alleged error com- plained of in the sixteenth ground. I did say to the jury, that they ought to rely on Gregg and McLaughlin's testimony, in fixing the value of the real estate conveyed to Cohen, at 36,500, although the rents do not amount to 10 per cent. ; and I have yet to learn, both as a Lawyer and a Judge, that there is any error in believing respectable and intelli- gent men, acquainted with the property, although their estimated value should exceed a sum on which the annual rent was less than 10 per cent. The jury found against the defendant on the second, third, fourth, fifth, sixth and seventh allegations. The defendant appealed, on the annexed twenty-three grounds : 1. Because his Honor, before issue joined on the suggestion, refused per- mission to the defendant to withdraw or discontinue his petition and schedule. 2. Because his Honor refused to continue the cause on the application of defendant, although it was manifest, from the face of the third count, that the defendant could not, by any human effort, have procured the testimony neces- sary to his defence against the allegations therein contained, between the day of the filing of the suggestion, January 16, and the days of the trial of the cause, January 31 and February 1, 1840. 3. Because his Honor, before issue joined on the suggestion, refused per- mission to the defendant to amend his schedule, by inserting therein an assignment of all his right, title, and interest in the property alleged by various counts in the suggestion to be held by fraudulent conveyances from the defen- dant ; and especially because his Honor refused to allow the schedule to be amended in relation to the western and southwestern lands, alleged in the third count to be the property of the defendant, although it clearly appeared from the affidavit subsequently submitted to his Honor, and from the testimony of Mr. De Saussure, that the omission to insert these lands arose from ignorance or mistake on the part of the defendant. 4. Because his Honor conqjelled the defendant to take issue and go to trial on a suggestion unsupported by oath or affidavit. ■*5. Because his Honor, before issue joined on the suggestion, refused r*i-f^ a motion on behalf of defendant, to strike out the irreguhir, informal, and ^ defective counts of the suggestion, and compelled the defendant to take issue on all of them. 6. Because the second count is defective, in not alleging the time when the money alleged to have been received by defendant, was received by him, nor the person or persons from wdiom it was received, and thereibre the count cannot support the finding of the jury. 7. Because the third count is multifold and voluminous, and blends various inconsistent and and alternative issues, and therefore cannot support the finding of the jury. 8. Because the fourth count shows on its face that the conveyance therein mentioned and alleged to be fraudulent, was made more than three months before the filing of defendant's petition for his discharge, and the finding of the jury thereon is contrary to law, and ought to be set aside. 104 CHARLESTON, FEBRUARY, 1841. YOL, I. [*157 9. Because the fifth count and the finding of the jury thereon, are also liable to the same objection. 10. Because the sixth count and the finding of the jury thereon, are also liable to the same objection. 11. Because the seventh or last count is informal, irregular and indefinite, and entirely too vague to support the finding of the jury thereon. 12. Because the finding of the jury on the second, is inconsistent with their findintr on the sixth count, and a new trial, therefore, on both, should be awarded. 13. Because his Honor, it is respectfully submitted, erred in charging the jury that the limitation of three months, in the clause in the prison bounds' Act, applies only to assignments and payments to one creditor in preference to another, and not to fraudulent conveyances. Whereas it is submitted that the plain letter and meaning of the clause, show its applications to the latter as well as to the former, and the defendant's plea to that effect should have been sustained. 14. Because his Honor erred in charging the jury that it was questionable whether their finding that the defendant had lost the money alluded to in the second count, by gaming, within twelve months preceding the filing the petition, would not be attended with the same consequences of perpetual j^, -n-i imprisonment and disfranchisement of insolvent relief, as a conviction *of J fraud; whereas it is submitted that the conviction of loss of money by gaming within the inhibited period, would only suljmit the defendant to im- prisonment, until payment of the debts for which he was arrested, or in* other words, that it would only deny him relief in the particular case without payment of the money due ; and operate no disfranchisement in other cases ; and as this was a material point in the case, his Honor, (as he was requested to do,) should have so charged the jury. 15. Because his Honor erred in charging the jury that they had no right to acquit the defendant of the charge of rendering a false schedule, on the ground that he had inadvertently, iguorantly, or by mistake, omitted to insert in his schedule the property alleged in the suggestion to belong to him. 16. Because his Honor erred in charging the jury that a bond or conveyance of property, in consideration of future cohabitation, made by one in good circum- stances, would be void as against creditors, whose claims against the donor originated long subsequent to the bond or conveyance ; whereas it is submitted that such bond or conveyance, under such circumstances, would stand on the footing of any other voluntary bond or conveyance, and would be valid against subsequent creditors. IT. Jiecause his Honor erred in charging the jury that in estimating the value of the real estate alleged to have been fraudulently conveyed by defend- ant, they ought to rely on the valuation of the two witnesses, (Messrs. aicLaughlin and Gregg,') who fixed the value at §36,000, but estimated the rent at the most, but S2,6.)0, which showed their estimate to be not worth a straw, especially too. as one of.tliem (Mr. Gregg,) admitted that he would not buy the [)ro])crty at his own estimate. 18. Ik'cause the multii)lied and alternative charges in the third count, rel.iting to the western and southwestern lands, were unsustained by the evidence, and because there was no proof whatever of fraud in the conveyances to .Jacol) Cohen, or those to Kliza Smith ; but the proof, on the contrary was, that those conveyances were bona tide and for valuable consideration, and the verdict of the jury in respect to these conveyances, and in respect to the western and southwestern lands, ought to be set aside. *1'>91 *^'^' ^^'-'■'^"•'''' '''*^ Honor charged the jury that there was sufiicient J evidence to authorize them to find that Judah Barrett and Kliza Smith were man and wife, whereas tlie plaintiifs tliemselves by both documents and witnesses provi'd tlio contrary to Ite the case. 20. Becau.ie there was no proof whatever applicable to the seventh count. *159] SHERMAN & DEBRUHL VS. BARRETT. 105 and the finclin:r of the jury thereon, Iiaving been entirely without evidence, ought to be set aside. 21. Because his Honor ruled that Mr. Jacob Cohen, a witness, served with siipovia duces trrinn, in behalf of the plaintiffs, should be compelled to produce the papers called for by the subpcrna, without being sworn as a witness, although such papers were used to the prejudice of his rights. 22. Because his Honor erred in charging the jury that it was not necessary for them to believe, or for it to be proved, that defendant had been guilty of ■wilful and deliberate perjury, in order to convict that defendant of rendering a false schedule, and in refusing to charge the jury that such proof was necessary. 23. Because the verdict was, in other respects, contrary to law and evidence. Curia, per O'Neall, J. Where the grounds of appeal are not noticed in this opinion, they are considered by the Court as sufficiently answered, explained or ruled, by the report of the Judge below. The third and fourteenth grounds may be considered together. For they both in fact relate to the amendment of the schedule. If the fourteenth ground was right, it would be no more than this : the jury would be permitted to make for the defendant, the amendment which he could not do. This would be giving to them powers which I never supposed to rest any where. But, without wasting words about it, the rule may be stated at once, that the jury cannot inquire beyond the issue ; that, in this case, was, is the defendant's schedule true or false ?(«) The ground admits that it was, but insists that that which was false in fact, the jury should find true in fact. This they had no right to do. There is no doubt that the defendant's schedule is amendable within the discretion of the Circuit Court. (Z>) But I do not understand by discretion, when used as a law ]ihrase, the power of doing as *the Judge's caprice may r^tipn direct. He is invested with discretionary powers over many L matters of practice, to subserve the ])urposes of justice. But in reference to the subject now before us, the discretion of tlie Circuit Judge was never intended to help a fraudulent debtor out of the meshes of the net into wdiich either his fraud or folly may have cast him. Here I never could perceive that the defendant had "inadvertently, ignorantly or by mistake,", omitted to insert in his schedule the property alleged in the suggestion to belong to him. To say that this was the fact, would be to say that a debtor did not know of what his estate consisted. f-Je has, according to the verdict of the jury, left out of his schedule all of his most valuable property and rights. When detected in this, and he is about to be saddled with the consequences, he begs to be secured from them by amendment. It is true " that ceasing to do evil and learning to do well," in the sul)limc book of holy inspiration, with which the defendant ought to be acquainted, is the condition on which the penalties of the moral world are waived. But here, he who wilfully, or with the means of knowledge within his reach, does wrong, falls under that legal maxim, "ignoranta legis neminen excusat,^^ and must abide the consequence. This is the case with the defendant. He made the issue, tliat he had presented a schedule of his whole estate ; thi-s w^as verified by the solemn sanction of his oath ; if in fact he did not return a tithe of his estate, how can he complain, that this omission is set down to any thing else than (fl) 1 Rich. 4G3. An. (h) Ante 33. An. 106 CHARLESTON, FEBRUARY, 1841. VOL. I. [*160 ig:iiorance of tlie fact ? The predicate of the amendment being thus removed, the defendant lias nothino; to stand upon. But, I go still farther ; an amendment oug:ht never to be made when it will surprise or delay the other party. That was peculiarly the case. They had traversed the defendant's schedule, and specified its falsehood, and at the moment of trial, when they are waiting to prove their alle- gations, the defendant asks by amendment to destroy the whole issue. This is going to defeat the ends of justice, and cannot )je allowed In general, a scliedule is amendable where it is apparent that the omissioa resulted from " ignorance, inadvertence or mistake." The usual illus- tration is, where a man leaves out some trifling article of property, to *1R11 ^"''i^'^ ^^^^ attention *was not turned ; in such a case, he may well -^ be supposed to liave accidentally omitted it. To the fourth ground the following answer may be given : under the Act of 1833, (Acts. p. 43,) a) if the defendant be "accused of fraud," it is to be tried by jury. (6) Whenever the right of a prisoner to be discharged is resisted, on the ground of fraud, there is nothing which requires that there should be any showing on oath. But still if the result of the allegation would be to delay the hearing of the debtor's application then I have no doubt that the Circuit Judge, in the exercise of a sound discretion, might require the creditor to verify his accusation by affidavits. If there was any merit in this objection, it ought to have been taken when the plaintiffs appeared before my brother Evans and objected to the defendant's discharge, and were permitted to file their suggestion. When the case was called for trial it was too late to make the objection. The eighth and twelfth grounds may be considered together. The prison bounds' Act, in the 7th sec. (P. L. 457, )(c) provides that no prisoner shall be discharged " who shall have, within three months before his or her confinement, or at any time since, paid or assigned his estate, or any part thereof, to one creditor, in preference to another, or fraudulently sold, conveyed or assigned his estate to defraud his creditors." Accord- ing to my reading, these two parts of the same sentence are distinct, and have not the same qualification of time, (c/) The limitation of three months apjjlies solely to undue preference. It was reasonable that there should be some limitation in this behalf. For a man might be allowed, at a period when insolvency was not apparent and manifest, to do an act which at a later day it would be altogether wrong to permit. But if a man sells or conveys his estate to defraud his creditors, his con- veyance is most commonly inoperative, and the estate thus sold or conveyed, remains his agaiiist his creditors, and its omission in his sched- ule might, when he was wholly silent on the subject, subject him to the penalties of a false schedule : but where the conveyance might be good in the hands of the alienee, still the defendant has, in thus" putting the property out of the reach of his creditors, been guilty of a fraud on them, ♦1621 ^^''''^"'^ is equally criminal whether it be within *three months or -■ at a more distant day. The concluding part of the section shows that this is the true construction. It proviiles " whenever a prisoner shall be accused by the plaintiff, or his agent, of fraud, or of his having («) Kt.1t. 402, § 1. An. (h) Blease vs. Farrow, 9 Rich. 49. An. (c) 5 btat. 78. An. {d) 7 Rich. 473; 2 Strob. 139. An. *162] SHERMAN & DEBRUHL VS. BARRETT. 107 given an undue preference to one creditor to tlic prejudice of the jilaintiff, or of having made a false return, or of liaviug gone without tlie prison walls, or prison rules, as the case may be, it shall be lawful for the Judge or Justice before whom the ])risoner is brought, to direct a jury to be impannelled and sworn to determine the fact " From these provisions, referring to the former ones, being so ]ierfectly distinct, we are very properly brought to conclude that a fraudulent sale or conveyance, and a fraudulent preference, are two wholly distinct things, and that the limitation of time was intended to attach to the preference of one cred- itor to another. The fifteenth ground, as explained in the report, is without foundation. The instruction given by the presiding Judge to the jury, enabled them to understand fully the facts on which they were to pass and the law applicable to them. If, in point of fact, Eliza Smith, or Barrett, was the wife of the defendant, then there was certaiidy no doubt that the deeds could not be sui)j)orted. For in this point of view they were voluntary. That there was evidence that they were man and wife, cannot be denied, unless it be that acknowl- edgments of each other as such, and living together and cohabiting, be no evidence of such a fact ; no one will hardly venture that far. That there was conflicting and opposing evidence, makes the very case to be resolved by the verdict of a jury. And if the case depended upon this question, I should say that they ought to be regarded as man and wife. But if it is conceded that they never were married, and that Eliza was Judah's concubine, then I think the case is also free from difiBculty. If the deeds were executed to procure a continuance of cohabitation, then it is beyond all doubt that they are void, (a) I think the evidence would even justify this conclusion. For the parties lived and cohabited together after the execution of the deeds, and had the common enjoyment of the property. If, however, the deeds stand on the footing of voluntary conveyances to a kept mistress, as the counsel seems to *desire, still the verdict r;ici/.q could not be otherwise than it is. That a man, not in debt, may L do any act of folly he chooses, is generally unquestionable ; and if that had been Barrett's position, these deeds might have been supported. But at every moment of time during his intercourse with Eliza, he was more or less in debt. He retained the possession of the property to the moment of acknowledged insolvency. How a voluntary conveyance, thus situated, is to be supported, I am at aloss to conceive. (6) Our cases as to the rights of creditors, as against voluntary donors, must all be wrong, or these deeds are void. If it were true, as is contended, that the defendant made these convey- to Eliza, for her services as house keeper, or for any other debt, still his possession of the property would render the conveyances fraudulent. The seventeenth ground cannot avail the defendant. For if Mr. Cohen paid the consideration acknowledged by Barrett, for the houses and lots and slaves, his deeds ought not to be regarded as fraudulent. Yet it may be, as the plaintiff alleged, that in fact no money was paid. In this respect, there was evidence from which the jury might have (a) Harp. 201. An. (6) 2 Bail. 128. An. 108 CHARLESTON, FEBRUARY, 1841. VOL. I. [*163 concluded that the plaintiff's allegation was true, and if so, then the defendant is rightfully convicted of fraud under this head. If they were bona Me, the defendant had $21,650, their proceeds, for which he had failed to account, and in this respect he was guilty of having made a false schedule. The jury have found both that the deeds were fraudulent and that the defendant had the consideration, $21,650, which was omitted in his schedule. These are inconsistent findings. But reject either, and the defendant is convicted of fraud. It is, therefore, una- vailing to the defendant. As to the western and southwestern lands, it was plain that these, to a large amount, were omitted in the schedule, and as to them, the falseness of his schedule was palpable. In answer to the twentieth ground, it would be enough to refer to the return of the subpana duces tecum. It does not require the ])erson thus summoned, to testif}', but to bring into Court a paper which the party needs. When this is done, nothing further is required. In the case'^of the Treasurei- vs. Moore, (3 Brev. 550,) it was ruled that -j,,p .-, before going into *trial, the plaintiff had the right to have a -■ return made to the subpoena duces tecum. This shows that the party need not put the person so summoned on the stand as a witnes.*. The motion is dismissed. The whole Court concurred. Yeadon, for the motion. IT. A. De Saussure, contra. Note. — This case was argued before the present Reporter was elected, and postponed by the Court for further consideration, wliich will account for the omissiou of arp;umeut of counsel. ROBEKTSON & GiLFILLIN VS. JOHN SHAXNON.(a) Defendant having about $4000, desired to invest it in cotton for speculation. He accordingly applied to the plaintiffs, who were cotton brokers in the city of Charleston, and tliey purchased for him 316 bales ; procured an advance on their own responsibility of $12,470, to pay for the cotton so jiurchased; shipped it on board the .Josepha, (a vessel designated by defendant,) and consigned it, according t,o the usages of trade, to a house in Liverpool. Subsequent to the sailing of the vessel, the defendant refused to complete the contract. Upon this refusal this action was' commenced. Verdict for plaintiffs, S4000. Held, that the defendant was liable to the plaintiffs as vendors ; that there was a sale and delivery ; and a new trial was refused. Before O'Neall, J., at Charleston, May Term, 1840. This was an action of assumpsit, brought to recover the price of 316 bales of cotton, bought by the plaintiffs, as cotton brokers for the defendant. Tlie facts of the case may be stated as follows : the defendant being about to return lo Ireland, and having about four thousand dollars, in (a) S. C, again and again, 2 Strob. 419 ; 4 Rich. 323. Irving, SheniJ', vs. Robertson, 6 Rich. 228. An. *164] ROBERTSON & GILFILLIN VS. SHANNON". 109 money, wished to invest it in cotton. The plaintiff, GilGllin,* was r^i /.c introduced to him, as a cotton broker, by Mr. George Cotchett, '- and his desire to purchase cotton stated. He and the plaintiffs were afterwards together at Martin and Walter's, and at Jaraes Adger & Co.'s, for the purpose of buying cotton ; it was then stated in the presence of the' defendant, by the plaintiffs, that an advance was to be procured, which, with the defendant's four thousand dollars, would enable them to purchase for him about three hundred bags. This arrangement Mr. Walter thought he (Shannon) understood. Mr. Cotchett thought when he saw him and the plaintiffs, that he hardly understood it. The plain- tiffs negotiated for, and obtained the advance. The defendant was not known in that part of the transaction to Trapman or his agent, Worther- spoon, who made the advance. The party making the advance contracted for the freight. The plaintiffs, for the defendant, and in his presence, bought three hundred and sixteen bales of cotton ; their credit was alone looked to for the payment; and the cotton delivered to them by Martin & Walter, and George Cotchett, for James Adger & Co. The defendant said he was going to ship the cotton by the barque Josepha, in which he had obtained his passage, and that he was " going to go with the cotton." The cotton was shipped from the 19th to the 23rd April, 18o9, The defendant was alongside the Josepha while the cotton was going on board. Along side of the vessel he was informed by Gil- lillin, that if he was not disposed to take the whole venture, he could get another person to take one hundred bags; the defendant replied he would take the whole for luck. The captain signed, on the 23rd of April, a receipt for the cotton shipped by Robertson & Gilfillin. On the 24:th, the bill of lading was forwarded ; (hence, I inferred it was signed on or before that day ;) which set out the shipment by the plaintiffs to Coleman & Stotleporth, the correspondents of Trapman, who made an advance of about three-fourths of the price of the cotton, (twelve thou- sand four hundred and seventy dollars.) This was according to the course of trade, according to which (said the witness,) the bill of lading is made out in the name of the shippers, and consigned to the corres- pondents of the house making the advance. The invoice discloses the name of the owner, for whose ultimate benefit the shii)ment is made. An invoice was sent on, and Mr. Wortherspoon's correspondence stated John Shannon to be the owner. The first advance was made before *Wortherspoon, the agent for Trapman, knew of any misunder- rt-iac standing having arisen between the plaintiffs and defendant, lie L offered to take one hundred bags of the venture, and so did Mr. Kerr. Cot- ton continued to improve in price until about the sailingof the vessel, 12th of May. The cotton went forward to Stotleporth. It seemed, from the proof, to be the usage of trade, that cotton on which an advance was made, was pledged, 1st, to the party making the advance ; 2nd, to the shippers for any thing due to them by the owner on account of it. On the 20th of April, the plaintiffs paid Martin and Walter, four thousand dollars in cash, and on the 24th or 25th, three thousand seven hundred and sixty- eight dollars more, and to Adger & Co., the money for the purchase from them was subsequently paid. On the 23rd of April, the defendant refused to comply with his contract, and the plaintiffs made an affidavit to hold him to bail for the whole amount of the purchase of the cotton. 110 CHARLESTON, FEBRUARr, 1841. VOL. I. [*166 He was arrested and went to jail on the 24th, where he has ever since remained. The plaintiffs offered to credit the defendant witli the pro- ceeds of the cotton in Liverpool, but this was refused. There were sun- dry special counts in the declaration ; but I thought the whole case depended upon the questions whether the plaintiff's had sold the cotton to the defendant ; and whether they had paid money for his use ; and that, therefore, the counts for goods sold and delivered, and the money counts, covered the whole case. The jury were instructed in conformity to the opinion of the Appeal Court, on the former trial of this case. They were told, that to entitle the plaintiffs to recover, as vendors of the cotton, it must appear to their satisfaction that the cotton was deli- vered to the defendant. This, I thought, was abundantly shown in the shipment, and his knowledge of, and assent to that fact. Although this was my opinion, I did not state it to the jury, but referred them to the facts which had led my mind to that conclusion. They were also told, that to entitle the plaintiff's to recover on the money counts, it was necessary that they should be satisfied that the plaintiffs bought the cotton for the defendant, that they were bound to pay for it, and that they bad paid money before suit brought. They were told that the four thousand dollars, paid to Martin & Walter, was such a payment as would, to that extent, entitle the plaintiffs to recover, if it was true that they bought the cotton for the defendant, and were :i:-in'7-i bouud to pay *for it. I said to them, in this connection that for -^ the money advanced by Trapraan, they were liable, as the parties procuring it, and if the cotton did not sell for enough to reimburse him, they must make it good ; and hence, that whether they paid that sum out of the money advanced by Trapman, or out of their own funds, was perfectly immaterial. For it was tlieir money in either point of view. The jury found for the plaintiffs four thousand dollars, and the defend- ant ajjpeals, on the annexed grounds : 1. Because his Honor erred in charging the jury that Robertson & Gilfillin were liable to Trapman for the ultimate refunding the amount advanced by him, whereas, in fact, they were only agents of Shannon, and having fully disclosed their principal, were not personally bound, unless they made some new contract not connected with Shannon. 2. Because he stated to the jury, that it was immaterial whether the money paid to Waller was plaintiff's money, or had been advanced by Trapman, in anticipation of his advance of three-fourths of the purchase. 3. Because the Court expres.sly charged, that the special counts were unnece.s.^ary, as the plaintiff must recover, if at all, on the other counts. Wherea.s, it is contended, that the counts for refusing to complete the contract, are tlie only ones supported by the evidence. ■I I'.ecunse tlie verthct is not supportinl by the evidence, and was arbitrary, as dofenrhmt, if liable at all, was liable for the whole, and by necessary implica- tion, proves tiiat the plaintiffs did not make out a case entitling them to recover at all. 5. Because the true cause of action was the refusal by defendant to complete the alleged contract, after which the agency of plaintiffs terminated, and they were only entitled, if at all, to damages for the refusal to pay the cash i.art of the purchase. A. a. AJa'jrath, for the motion, said— Tlie plaintiffs cannot recover, either upon '\61] ROBEETSON & GILFILLIN VS. SHANNON. Ill the counts for goods sold, the money counts, or the special counts. They are not vendors. Shannon is not a purchaser. The statute of frauds is in the way. The plaintiffs cannot prove a contract, as is required by its terms. There is no pre- tence that there was an earnest paid,, "•'■nor is there evidence of a memorandum. ^^, ,, The question then is, whether there was a delivery to Shannon. Delivery '- under the statute must be such as to make the vendee the owner ; to give hiui power to control the property. 1 Coinyn on Con. 91. There is no evidence of such delivery here. Where is the evidence of Shannon's right? He never could control this property. It never was in his possession. Suppose the cotton had arrived in Liverpool, Shannon could not have sup]3orted an action against the captain or owner for the possession, or even for the damage, if any had been sustained. He had neither bill of lading, nor any other evidence. To presume a delivery in this case is within all the mischief laid down in Cooper vs. Elston, (7 T. R. 14.) Mclntyre never was his agent, nor were Coleman & Stotleporth. These all represented Robertson & Gillillin, not Shannon. Not one of these parties have ever recognized Shannon as their principal. How then can it be said the delivery to them was a delivery to Shannon? Nor can the verdict be sustained under the money count. There is no evidence of money paid at his request. This is important. This may be implied, but not so in this case. No cii'cumstance exists here to jjresume or imply this request. Even the $4000 is not money paid on request. There is no case where the count for money paid can be supported, where the party who sues for the money retains also the goods for which he claims to have paid money. Robertson & Gilfillin kept the goods and the money. The proper evidence of payment of money in this case, would be the payment of money, and transferring the property to Shannon. But so long as they kept the cotton and refused to deliver, they could not sue for money paid. And moreover, to make Shannon chargeable, under this count, it must appear that the money was paid under a certain contract, the terms of which have been performed by them. Now, the question is, whether these parties have not violated their contract ; and they have not shown this, which is the point in issue. If the plaintiifs cannot recover upon the general counts, can they recover on the special counts ? The 2nd and 3d special counts allege delivery, which we contend is not proved, and therefore they must fail. The first Sf)ecial count alleges only the purchasing of cotton at the request of Shannon, *and his promise to pay. p^, .„ But, where is the evidence of this ? There has been no evidence whatever of '■ the whole contract. The consent of both parties to the contract is necessary to make it binding. And the conduct of the parties at the time when the dispute arose, proves that this was not the contract ; it was not the understanding of the parties ; and this is the essential feature in every contract. All inferences are here excluded, because the conduct of the parties is so x>lain that it makes positive evidence. So that there is no evidence whatever to support even the special counts. But the rights of the parties result from their legal positions at the time of the quarrel between the plaintifi's and the defendant. If they were principal and accent when Shannon quarrelled with them, this was repudiating their agency. It was there terminated. Their agency then ceased. But although this is so, still they continued to conduct themselves as if they were authorized agents. So far then as regards these parties when they quarrelled, Robertson & GilfiUin should have at once terminated their agency. They could not be agents against the consent of Shannon. Had they sold the cotton in Charleston before the vessel sailed, there would have been no loss. The sales of cotton here would have more than paid all losses and expenses. This was the prudent course, and this is the course they were bound to pursue, under the rule that the agent must act most to the benefit of the principal. All the loss here was caused by the misconduct of Robertson & Gilfillin, and this they cannot claim against Shannon. Yeadon, contra. Counsel have brought the prisoner before the Court, to excite the sympaihies of your Honors. The defendant is suffering by his own folly and faithlessness. The condition of the plaintiffs is equally deserving of sympa- thy. Defendant was not contented with buying what his money would afford, he goes to plaintiffs and buys, through them, thousands more. All advancements were obtained through the plamtiffs. Plaintiffs acted in good 11-3 Cn.ARLESTOX, FEBRUARY, 1841. VOL. I. [*169 faith tbrougliout the whole transaction. Plaintiffs acted according to the usages ^,f.^, of merchants. Mr. *Y. contended that the verdict was properly -rendered -' on the counts for goods sold and delivered. If the money had never been paid by plaintifls, it cannot be doubted but that the original sellers might have maintained this action for the cotton. Plaintiffs have placed themselves in the shoes of the original sellers. 1 Chitt^-'s Plead. 5 ; 2 Liv. on Agency, 120 ; 2 Esp. N. P. 493 ; Cited also, opinion of the Court in the former case. The Coui-t decided that the money counts could not be supported, but that they might recover on the counts for goods sold and delivered. The Court of Appeals laid down the principle on wliich the case was to be de- cided, and the Circuit Court so instructed the jury, and they found accordingly. Plaintiffs are charged in the books of the first sellers as the principals. Plaintiffs credited the defendant, and became thereby vendors. Was there a delivery ? Signing the bill of lading was a delivery, and enough to divest plaintiffs of all right, except the right of stoppage of the goods in transitu. 2 Term. Rep. 71 ; also 2 Liv. Ag. 110. Under the usages of trade, defendant could not have the bill of lading, "l H. Blackstone, 3t;4. By the usages of trade, the moment the bill of lading is signed by the captain, the right of property vests in the consignees in Liverpool, and tliey could maintain an action against the carrier for loss or damage. The delivery to captain Mclntire, was a sufficient delivery ; and I contend that the captain was the agent, and so soon as this delivery took place, plaintiffs were divested of any further control over the cotton. Defendant's act was indispensable to again take possession of the cotton. It was shipped for the benefit of defend- ant, and he could maintain trespass for the cotton, if the plaintiffs had taken possession. Plaintiffs are entitled to sustain the verdict upon the counts for money j^aid, laid out and expended. Plaintilfs paid $4000 for defendant, at his special instance and request, and this was sufficient to sujiport the counts for money paid, laid out and expended. Mr. Memminger, on the same side — said, none of the parties concerned in the ^, --■ -, transaction could have disposed of this *cotton but defendant. Defendant -' was only bound to discharge the pre-existing liens. He had the resulting interest. The other parties had no right in law. When the contract of agency was detennined by defendant's repudiating the contract, defendant was bound to put the plaintiffs in statu, quo — place them just as he found them, by refmiding the amount advanced by them for him. Cited 11 Johnson, 439 ; 7 Cranch, 500. Ayent against principal. Hunt, in reply, contended that there was a difference between a broker and a factor. Cited 2 Barn. & Aid. 142, 193 ; 1 H. Blac. 360, 3G5 ; 15 E. 62. Curia, per O'Neall, J. This case has been twice tried, and, in my judgment, is about as plain a case as ever was presented to a Court and jury. It is susceptible of two views : 1st, either the plaintiffs bought the cotton for, and delivered it to Shannon, thus making a sale of it by them to him ; or, 2d, they bought it for hira and paid for it in the whole or in part. In either of these points of view, it is a case of facts merely ; and the only iiujuiry would be, do the facts justity either of them ? That the plaintiirs bought the cotton for Shannon, and at his request, is unques- tionable. It was proved by Walter and Cotchett, from whom it was bought. Was it delivered to him ? About that, it seems to me, there can be as little question. He designated the vessel in which it was to go, (the Ijarfjuc Josepha,) in which he had taken his own passage ; the captain of the Josepha said that the plaintifls shipped the cotton for the defendant ;. he, the defendant, was along side, when it was going on board ; and when one of the plaintiffs said to him that another person *171] ROBERTSON & GILFILLIN VS. ^HANNON. 113 was willing to take one hundred bags, he replied, " he would try the whole for luck." He did not object until the whole cotton was on Ijoard, and then indeed he refused to comply with his contract. If the 56 facts do not prove a delivery, then I confess I cannot say what could prove it. But here it is said the defendant did right in refusing to comply with his contract, inasmuch as by the arrangements made by the plaintiffs, he had not the control of the cotton. This is a mere specious presentation of a defence, which cannot be sustained. The defendant had not quite money enough to buy one-fourth of the *cotton which he desired. To obtain the quantity bought, an r^-itj^f advance had to be procured by the plaintiffs. This was stated L to him ; and after the finding of the jury, we must take it he fully under- stood it. According to the course of trade, fully proved in both trials, the cotton is shipped in the name of the person making the shipment in fact, and is consigned to the firm in England who are the correspondents of the party here making the advance. The shipment thus made is to paj', first, the advance ; second, the charges of the shippers, if any ; and the balance to the real owner. His name does not appear in the bill of lading, but in the invoice accom- panying the cargo. In this way, the rights of all parties are secured. All these things were done on this occasion. There is, therefore, nothing in this matter which can discharge the defendant. It is, however urged, that when the defendant refused to comply, the plaintiffs ought to have sold the cargo here, and thus a loss would have been prevented. It would be enough here to say. they had discharged their duty, and the cotton was at the defendant's risk. They had procured or contracted for the advance $12,470; they had bought the cotton for, and delivered it to him. Their power over it, excei)t to send it forward according to the course of trade was ended. The defendant, if he had thought proper, could have had the entire control, by paying the whole price of the cotton ; or if he had paid the difference between the advance and the price, he could have gone on with the cotton ; and in Liverpool, he would have received the proceeds, after paying the advance, the freight, and the shipper's charges. That he did neither of these, is the defendant's misfortune ; it is that which deprives him of liberty, and which will deprive him of the earnings of his life. Looking at the case as a sale by the plaintiffs to the defendant, they onglit to have had a verdict for the wliole price of the cotton, $16,294 ; but the jury for the present might suppose that the cotton in Liverpool did not quite cover the advance, (for Mr. Worther- spoon said the sales were not equal to it,) and deduct on that account $12,294, which would leave a balance of $4,000 the amount found by their verdict This would still leave the defendant liable for any sum which the plaintiffs may be compelled to pay to Trapman on account of the advance, after deducting from it the *nett sales in Liverpool. r*i^q But concede that the jury erred, and that the plaintiffs were L entitled to receive 8l6,'i94, and they are content with the verdict of $4000, surely the defendant ought not to complain. Consider the case, however in the other point of view. The plaintiffs were mere brokers ; they bought the cotton for the defendant at his request. The persons selling it w^ould not sell to Shannon ; they sold to the plaintiffs, and Vol. I.— 9 114 CHARLESTON, FEBRUARY, 1841. VOL. I. [*173 charged them with it. They had no claim whatever on the defendant. Here, surely it cannot be denied, that money paid by them, on this account, was money paid, laid out and expended for the defendant, and at his request. For the obligation was incurred for him, and they were legally liable to pay for him. It is the common case of two persons going into a store, one of them wishes goods, the merchant will not sell to him ; the third person says, let him have them on ray account ; it is done, and they are charged to the third person, and his liability to pay is beyond all question, and certainly when he does pay, he can compel the party to whom the goods were delivered to pay him. Indeed, I think, notwithstanding the former opinion in this case, that when it was shown here, that the plaintiffs bought the cotton for the defendant, that the venders refused to credit him, and charged it to them, that this was as much a payment for bis use, as if it had been made in gold or silver. But that is not necessary for this case, and I only state the position that that opinion may not even impliedly have my sanction. To pay for the cotton, the plaintiffs applied to Trapman for an advance, and got $12,470. This did not pay for the cotton by $4000. They had pre- viously paid this last sum. If even the 12,470, could in any shape be regarded as Shannon's, they had the right to say that sum is to be applied to the balance still due for the cotton, leaving the $4000 previously paid l)y tliem unsatisfied, and for it they were entitled to a verdict. But in point of fact, the money got from Trapman was a loan to them secured by their principal's cotton. For Wotherspoon, Trapman's agent, said I did not know Shannon in the transaction, further than that the plaintiffs were buying the cotton for him, and would pledge it for the repayment of the advance. This, by the usage of trade, they had a right to do. If the principal's cotton paid the advance, it was very well ; but if not. the *174T parties procuring it must, as a matter of course, pay any *deficit. -^ Considering the case in this way, it is perfectly immaterial whether the money paid hj them was from their own or borrowed funds ; still it was paid by them, and they are entitled to recover. The motion is dismissed. Butler, Evans and Earle, J J., concurred. Gantt, J., dissented. Edward Barnwell vs. John Magrath, Tlio erection of a gate acrcss a way, claimed by the plaintiff, which is opened and sliut at ])lcaKure by all who pass, is not such an obstruction as would have the effect to (!xtinf;uish tlie plaintiff's right, or of barring him of his remedy, how- ever long it may have been erected. Before O'Neall, J., at Charleston, May Terra, 1840. This was an action on the ca.se, for obstructing the plaintiff's right of way, leading from his farm along the line of the defendant to the Ship Yard creek. In 1794, Col. Shubrick, who was then the owner of most of the land *174J BARNWELL VS. MAGRATH. 115 and lots, whicli he had laid out as tlio village ofBelviderc, and John Ed- wards, Henry Grant, and Thomas Simons, who then owned the three lots now composing the defendant's farm, agreed to shut up all the streets which had been laid out, and to open the street, or road, leading from the pul)lic road to the Ship Yard creek. This road is designated in all the deeds by which the defendant's and the plaintiff's land was conveyed. In the deed to the defendant, the road is referred to as his boundary, and called a public road. From the Charleston road to the boundary of the defendant's land, there is no doubt the road is public, (although it was not *worked by the commissioners of cross roads,) both from tlie rH-itrc original dedication, and the subsequent public use of it. But L from the boundary of the defendant's land to the Ship Yard creek, the way is private. It was used by Edwards, Grant and Simons, and those claiming under them, and by Mr. Johnson and Mr. Glenn, under whom the plaintiff claimed. As far back as the witnesses could remember, more than forty years ago, a gate was erected, and has ever since stood across the road. Mr Johnson, one of the former owners of the plaintiff's land, used the road from 1821 to 1825 ; but at and during that time, he had the use of the defendant's farm, by the consent of Mr. Fitzsiraons, its then owner. Mr. Glenn, who succeeded Mr, Johnson, used it for two or three years, as a matter of right ; his right to so use it was then denied, and then he applied to, and obtained permission from the defendant, to use it. In 1829, the defendant put up the gate complained of as an obstruction, at the place where it had formerly stood. This gate, and the other which preceded it, were fastened with a latch. It is a great convenience to the plaintiff to pass through the gate to the defendant's landing on Ship Yard creek. He was allowed to pass until he claimed it as a matter of right ; the gate was then shut and locked. This was shortly before suit. The case was submitted to the jury, and they were told that there was no doubt about the original dedication of the road to the public ; but the public had not used that part from the defendant's gate to the Ship Yard creek That portion of it was made private by the erection of the gate, and the use of it exclusively by particular persons. The i)laintitf could not claim the way by use. For Johnson's use was in the defend- ant's right as well as his ; Glenn's use was for so short a period that no right could thence arise. That the plaintiff must stand upon the defend- ant's deed as a concession of the way in 1828 ; but in '29, the defendant's gate was erected, and if the jury believed that that was an approi)riation by the defendant of the way to himself, and a denial of the right of others to pass over it, then, I thought, and so said to the jury, that after four years from the erection of the gate, the right of way was gone. For after that time the remedy by action was gone. The jury found for the plaintiff' the way, with a gateJa it, and $12.8i damages. *The defendant appeals, r*i7fi 1. Because there was no evidence to establish either a public or private ■- right of way. That as to the public right, the evidence proved that there was DO dedication to the public ; and as to the private right, there was no evidence of grant, prescription, or necessity. 2. That the evidence was clear, of a continued obstruction for the period of 116 CHARLESTON, FEBRUARY, 1841. VOL. I. [*176 forty years, or upwards. And there was no proof of use by any person adversely to the parties through whom the defendant claims. 3. That the plaintiff" was barred from recovery by lapse of time. 4. That the verdict was, in other respects, against law and evidence. A. G. Magrath, for the motion, said: A new trial must be granted, as there is nothing upon which the verdict can rest. There is no right of way, neither public nor private. It is not a private way. There is no grant of it as such. If the grant or deed between Shubrick and the other land holders, occupants of the property now owned by the defendant established anything, it establishes a public road. There is nothing in the deed to support the claim for a private way. Nor can the parties claim the right by prescription. Prescription for a private way, requires, 1st, private and exclusive right: 2d, twenty years adverse possession. (1 Bail. R. 342.) It supplies a grant, and is the effect of use and time, (2 Thomas' Coke, 233.) There is no evidence of either of these requisites. Is the road public ? It is claimed by the deed ; but the deed cannot make the road. The use consecrates the right proposed by the deed to be given, (2 Bay, 287.) Besides the intention to give, there must be evidence of acceptance. A dedication to the public must be proved. Dedication is a thing distinct from the deed. It is additional. Here, there is no evidence of dedication. The road never was used. From the earliest period the obstruction was there. This, of itself, repels the presumption of dedi- cation. Any circumstance will rtjbut it. As erecting a bar, Roberts vs. Kan, (1 Campb. 262; 3 Saunders, 175, note E.) So far from there being ground for presuming dedication, the presumptions are quite the contrary. ^-.,._ *What evidence is there, that any act was ever done under the deed, to -' make this a road ? None. The earliest evidence is that which rebuts the idea of a road. Lord Kenyon had said in The Rei/Ii/ Charitij vs. Merriu-eather, (11 East, 375,) that the use for six years proves the dedication. There is no such proof here. Where has Barnwell attempted to show the use of the road by those through whom he claims ? All who preceded him used the road not as a right, but as a favor. Such a use never gives right. The use must be adverse. But, even admitting a right originally, has it not been internipted or abandoned more than twenty years ? If the right ever was in him, it is gone. (15 Mass. R. 125; 1 B. & P. 400; Yard vs. Ford, 3 Saunders' R. 174, note 2.) Non-user, coui^led with the assertion of a right to intercept the user, for more than twenty years, will extinguish the claim. As to the statute of limitations, four years have elapsed since the obstruction, which is the cause of action. The plaintiff is con- sequently barred of his remedy. As far back as 1829, the defendant asserted his exclusive riglit against the then owner of Barnwell's land, and forty years and more have elapsed since the obstruction. No evidence that at any time the obstruction was not there. This case is then clearly within the mischief of the statute, as well as within its letter and equity. But, it is said tin; deed of the defendant calls for this road as a boundary. Does this amount to more than that in 1829 the defendant agreed to open the road? But lie did not open. IIo refused to dedicate ; of course no right vested in any one. (2 Bay, 287; 1 Campb. 2U2.) McCready and Maxyclc, contra, said that a rii^ht of way was a hereditament. Cited, 2 Brev. Dig. 21, 22; 3 Kent 359 ; 2 Ev. Po. 13(1. Crtria, per Eari-E. The vonlict of Ihe jury has established, that the plaint if!" had a riglit to the i)nvate way which he claimed. It is not mate- ria! to the determination of the question, made on the motion for a new trial, to iiif|inre how the ri;38, a decree was pronounced by Chancellor Harper, vacating the judgment, which, on api)eal, was reversed in February, 1839. On 3d March, 1X38, an order was granted by the Chancellor, that an injunction issue to restrain the plaintiff from proceeding at law; and directing tliat tlie money should be invested by consent of parties. On loth March, 1838, it was paid to the Master, and afterwards paid by him to the plaintiff's attorney, l)y order of the Appeal Court. On 8lh January, 1838, there was a rule on the sheriff, to show cause *180] THOMAS VS. YATES. 119 why he had not paid the money; rule made absohite on the 13th January, 1838 ; but the order reversed at tlie next sittinp; of the Appeal Court. On 15th January, 1838, there was notice of the filing of a supplemental bill. I thought it clear, that the notice by Bailey & Dawson, on 7th March, could not protect the sheriff. If it could, a mere verbal demand, or assertion of right, by a third person, *must have the same effect, r^iq. The order for leave to file the suggestion, of the 10th June, was L not accompanied, as usual, by order restraining the sheriff from paying the money. And although a bill was filed by a person, claiming to be interested, on 20th March, 1837, to set aside the judgment, and for an injunction; yet no application was made for an injunction, and, of course, none was ordered, until 3d March, 1838. But the sheriff's liability had been incurred long before, and the action was brought 31st October, 183T. It was too late then to save the sheriff from the consequence of his former neglect. The jury was charged according to these views ; and under the instructions of the Court, they found for the plaintiff half the amount which he was entitled to receive on his execution. It was objected, that the judgment was not produced in evidence; I thought that unnecessary, and overruled the objection. The defendant moves to set aside the verdict, on the accompanying grounds. 1. That the notice of the intention of the attaching creditors of John Aitken, to file a suggestion to set aside plaintiff's judgment and execution, as fraudulent and void, followed up by the actual filing of such suggftstion, (such notice having been served on the sheriff prior to plaintiff's demand,) legally justified the sheriff in retaining the money, until the question of fraud was decided ; and his Honor erred in charging the contrary. 2. That the filing of the bill in Equity, within ten days after the plaintiff's demand, by the creditors of Aitken, against plaintiff and others, to set aside j)laintiff's judgment against Aitken, as fraudulent, and to restrain the sheriff from paying over the money to plaintifi", the sheriff having been made a party defendant to the said bill, also legally justified the sheriS' in retaining the money until the question of fraud was decided ; and his Honor erred in charging the contrary. 3. That the lodging of the attachment of the attaching creditors of Aitkin, with the sheriff, while the goods and chattels of Aitken were in possession of the sheriff, and were yet unsold, by virtue of the levy under plaintiff's execution, with a view to make those goods and chattels liable to the attachment, also *justified the sheriff in retaining the money, until an adjudication of the r*-|Q.. rnatter. ' L ^^^ 4. That the statute on which the action was founded, is a penal statute, intended only to apply to delinquent sheriffs, wilfully or corruptly withholding money from plaintiff's entitled to it, and ought to be constructed strictly; and the sheriff in the present case, having retained the money only in consequence of the proceedings at Law and in Equity, above stated, having, in the mean- time, made no use of the money, but kept it in bank, and having ultimately paid it into the Court of Equity, by consent of all parties, (the present plain- tiff included,) was not delinquent within the meaning of the statute, and liable to its penalty; and his Honor erred in charging the jury that the sheriff was liable to the penalty, although his conduct was neither wilful nor corrupt. 5. That the plaintiff's proof was defective, no evidence having been offered of the judgment of the phiiutiff yA\ Aitkin, alleged in the declaration, and his Honor erred in charging the jury that such proof was unnecessary. 6. That the verdict was, iu other respects, contrary to law and evidence. 120 CHARLESTON, FEBRUARY, 1841. VOL. I. [*182 Yeadon, for the motion, cited 2 Faust, 87, A. A. 1796; and said penal statutes ■were to be construed strictly. Thomas vs. Aitkin, Dud. Rep. 292. This is a case of penalty, and not one of stipulated damages. No injury had been done on the part of the defendant. A. A. 1S39, 58, 63d sec. Hunt, contra, cited, 1 Brev. 200 ; P. L. 110 ; Bac. Abr. Tit. Exon. letter A. ; Dudley, 292. The decree of the Appeal Coui-t in Chancery is retrospective, and shows that defendant, Yates, acted wroug. Pettigru, in reply, cited 1 Bail. 437; 2 Bail. 16; Potts vs. Richardson; Cooper, 255 ; Douglass, 519, 522, If one receive satisfaction after the forfeiture, he never can recover the penalty. A forfeiture once barred, is barred forever, 2 B. and Pull, 346 ; 5 Term Rep. 636 ; Bac. Ab. Tit. Damages, letter D. ; Coke upon Litt. 258, letter A. ; Coke Eliz. 561. A penalty cannot be incurred where the act is lawful. Defendant -was a stakeholder. *183] * Curia, per Butler, J. This action was brought under tlie fol- lowing clause of the Act of 1790 ; 5 vol. 284, Stat, at large ; " That the sheriffs be, and they are hereby required, to pay over to the plaintiff or his attorney, all and every sum or sums of money which they may respec- tively receive on account of such plaintiff, within ten days after he shall receive the same, any law, usage or custom to the contrary thereof, in any wise notwithstanding ; and if any sheriff shall refuse to pay over the same within ten days after he shall receive the same, if demanded, then, and in that case, he shall be liable to forfeit and pay to such plaintiff, the sum of fifty per cent, on the sum so received, to be recovered by action of debt ; and the respective courts out of which the executions may issue, shall be, and they are hereby, authorized and required to make such rules and orders as they may judge necessary, to carry this Act into effect."' At the time the money was demanded of the sheriff, in this case, by the attorney of plaintiff in execution, he had deposited the exact sura in bank, and was ready and willing to pay it over to either of tlie jiarties claiming it, when their respective claims should be settled by the Court. He did not wilfully withhold it for his own use. Under a notice from the attaching creditors of the defendant in execution, as stated in the report, he kept the money to abide the judgment of the Court. Ulti- mately, the Court of Equity took jurisdiction of the matter, and the money was paid to the master, to be invested by the consent of parties. The circuit Chancellor decided that the plaintiff was not entitled to the money, but that it rightfully belonged to the attaching creditors, on whose account the bill had been filed This decree was set aside, and finally the money was paid to and accepted by the plaintiff. The ques- tion now arises, was the .sheriff, under these circumstances, fairly liable to the penalty of the al)ovc Act? That he acted in good faith, I think, is unquestionable, and that he had the sanction of a Chancellor for what he had done, is equally true. But it is contended that these aflord no justi- fication for disregarding the provisions of the statute, which gives the sheriff no option or discretion after money is demanded of him by the plaintiff on record or in an execution ; but that he is bound to pay it over to such plaintiff, or suitject himself to a liability to pay fifty per cent. ♦184 1 ""^"■'^•^^t""'l'"f? oll'^r claims *niay be asserted to the money, -■ which the sheriff may think, in good faith, are better than the plaintiff's. The effect of which might l)c, in many cases, to give a fraudu- lent plaintiff a right to recover fifty per cent, when in fact he was not 1S4] THOMAS VS. YATES. 121 entitled to the money in tlie sheriff's hands. To give tliis strict and severe construction to the statute, would be to give it an operation fre- quently revolting to justice, and inconsistent with the intent of the Legis- lature. The practice of the courts since the enactment of the statute, does not sanction such a construction. Where there have been adverse claims to money in the hands of the sheriff, collected on execution, it has always been the practice for hira to hold it subject to the order of the Court; and it has not been unfrequently the fact that the money was ultimately paid over, not to the j)laintitf in execution, but to another having the right to it; and this, too, without any compulsory process from a court, requiring the sheriff' to keep the money till the claims to it are settled. Indeed, according to the construction contended for, such process, injunction from Chancery, or an order from the Court of Com- mon Pleas, would be unavailing, as the Act says the money must be paid to the plaintiff in execution, any law, usage or custom to the contrary thereof notwithstanding. In fact, the practice of the courts may be regarded as founded on their own rules in relation to the liability and duty of sheriffs. Where a sheriff has collected money on a Ji. fa., he is not bound to pay it over to the plaintiff in such Ji. fa., if there are fi. fas. in the office against him; but the sheriff is justifiable in retaining and paying to the fi. fas. against the plaintiff, tiie money collected on his account. Niniar vs. Gray, (1 Bail 440.) In the case oi Potts & loor vs. Richardson, the money was raised on plaintiff's execution, and it was held that the sheriff" was not only justifiable in not paying it to the plain- tiff, but that a party who claimed under an assignment of an older judg- ment was not liable to refund it. Nor could it have been contended that in the above cases the sheriff had incurred a liability to pay fifty per cent, to plaintiff, on whose executions he had collected the money. And yet, according to the literal construction of the Act under consideration, such would be the case; for it is said that no law or usage should be allowed to interfere with the rigorous and inexorable operation of the Act. The Act is somewhat of a penal character, and *shonld be construed r;!;-|oK in reference to the mischief intended to be remedied, and with ^ strictness in favor of the party to be affected by it. Wliere the sheriff has money and wilfully refuses to ])ay it over to a party unquestionably entitled to receive it, he is fairly liable to the penalty The Act intended to impose on him a penalty fur wilful delinquency. Not to allow him to hold money for his own use, after another had acquired a clear right to demand it. It certainly never could have been the intention of the Legislature to punish a sheriff who had acted in good faith towards all parties who claimed money in his office. As between a senior and a junior execution, it is frequently very difficult to decide; the greatest judge cannot do it without full investigation. A sheriff, a mere minis- terial officer of the Court, has the right to ask the instruction of the Court in all honestly controverted claims against him ; and when he acts in good faith, he should not be subjected to forfeitures that were intended for the wilful defaulter. Good faith should be the criterion of his con- duct It will not do to say that the sheriff may evade the provisions of the statute by fictitious controversies for money in his hands, ])rocured and connived at by himself. They would be too easily detected, to be resorted to with frequency. Indeed, the sheriff ought always to be held 122 CHARLESTON, FEBRUART, 1841. VOL, I. [*185 liable under the statute, unles be can show that he acted in good faith to all the parties in controversy. And if the defendant in this case acted in bad faith towards one party, with the view of giving the other an advantage, he might be held liable. But this question was not submitted to the jury, and I think would have been of little avail if it had been. Still it is a question which may be submitted to another jury; and I will not say what should be their verdict. The sheriff occupies a very important position to the parties who claim money in his hands, and has it in his power by his own election to prejudice their rights, and I think he is under the highest obligation to act in such a way as not to do one party an irremediable injury, by giving the other an undue preference. Like every stakeholder who is disposed to act justly, he should, under such circumstances, hold his hand. This is presented in a striking point of view by Lord Mansfield, in one of his remarks in the case of Drink- water v?,. Goodwin, 255, Cooper. "The maxim of law which says it shall not be in the power of any man, by his election, to vary the rights ^., op-j of *two contending parties, is a very wise maxim, as well as a very -J fortunate one for the parties who are so disputing; because by giving notice to such person to hold his hand, and offering him indem- nity, he renders himself liable to the true owner, if, after such notice, he takes upon himself to decide the right." I do not undertake to say that the sheriff may not have been justified in paying to the plaintilf the money when demanded. But, I do say, he should not be punished for holding in the money from either, until the controversy between them was settled. I think the defendant's motive was good, and so far from his conduct being reprehensible, it received the sanction of Chancellor Harper, whose decree should be regarded as a virtual protection for the defendant. When the Chancellor took cognizance and jurisdiction of the matter, his decree should be considered as acquitting the defendant of all wilful wrong, and rescuing him from legal liability. For suppose the circuit decree had been affirmed instead of being reversed, would it be pretended that this action could have been maintained ? I ajtprehend not, for it would be monstrous to conclude that one party could recover under the statute of '96, while the other party was rightfully entitled to the fund in controversy. It cannot be that the frequently uncertain result of a vexed and conflicting demand against the sheriff, should determine his lial)ility. This would place the sheriff in a position of perilous responsilnlity. Two parties, for instance, a senior and junior execution creditor, might make a demand and bring actions under the statute at the same time ; the matter might be litigated through all the Courts, with various success, one Court deciding one way, and another the other. And yet it is said the sheriff would be liable to the successful party, l)ecause he did not, in the first instance, without information, give a pre- ference to one of the parties. That is, the sheriff would Ije required to make dcfision, without argument or investigation, on a point upon which the Courts could not agree. The thing runs itself down into an absur- dity. The sheriff must always act in good faith when he withholds money from contending parties, and when he is sued, it will be incumbent on him to show this, or to abide the consequences. I suppose that there cannot again be any dilliculty under the Act of 1796, as the Act of 186] STATE VS. VON GLON. 123 ]839,((/) on the same subject, is more explicit in its ^provisions, r^iow This opinion confirms the trne meaning of tliis latter Act, which L may be resorted to as in some measnre declaratory of the former. The motion for a new trial is granted. The whole Court concurred. See 2 McM., 155 ; 2 Rich., 528, 531 ; 10 Rich., 120. An. The State vs. Glaus Von Glon, Jun. Any trading with a slave, without a permit from his owner or employe!', in Inly- ing or selling, for cash or on credit, for much or for little, is an indictable offence, Tinder the Act of 1817. Before Richardson, J., at Charleston, January Term, 1841. This was an indictment, under the Act of 1817, for illegal trading with Somerset, the slave of Beckley. The evidence (see my notes) proved tliat Somerset often bought small articles at defendant's store, as id or Id worth of coSee or sugar for cash, or credit, &c. (B. Reed- ing's testimony.) I charged the jury, that such trading came within the prohibition of the Act — buying from or selling to a slave, were equally forbidden — the object was to prevent all and any trading. The jury returned a verdict of guilty, and defendant appeals. 1. Because the Judge charged, that the sale for cash, of any article, how- ever small, to a slave, came within the prohibition, and subjected the partj- to the penalty of the law; whereas, it is contended, that the law only prohibits purchasing, either for money or goods, articles from a slave — and the simple retail of a few cents of groceries for cash, is not illegal. *2. The evidence established only that the defendant had, at times r*i oo not stated, retailed small articles from his store to Somerset, the slave of ^ the prosecutor, in the same way as to other persons, to the amount of four pence or seven pence at a time. There was no proof that he had ever bought anything. Hunt, for the motion, cited A. A. 1817, p. 25,(&) and said that the whole pur- view of this Act was to prevent buying from a slave, and was never intended to prevent any thing but purchasing corn, rice, &c. He contended that the words trading and trafficking were put in opposition with buying, Bailey, Attorney General, contra, submitted the case without argument. Curia, per O'Neall, J. The point made in this case was decided by the Constitutional Court, at Columbia, Fall Term, 1818, in the case against Suber, and has ever since been regarded as settled. If, however, it was open for argument, it is plain that under the words of the Act, any trading with a slave, without a permit from his owner or employer, in buying or selling, for cash or on credit, for much or for little is an indict- able offence. The motion is dismissed. The whole Court concurred. (a) 11 Stat., 38, § (33. An. (h) 7 Stat., 454. An. 12 J: CHARLESTON, FEBRUARY, 1841. VOL. I. [*189 *189] '^The State i*s. John H. Boise and Deiderich STUKE.(a) A count for felony, and a count for a misdemeanor, may legally be joined in tlie same indictment. Motion to quash an indictment, made before Richardson, J., at Charleston, January Term, 1841. The indictment charged the defendants, in the first count with a lar- ceny, and in the second count with receiving stolen goods of some one unknown. I held these counts inconsistent |)er se ; the one being a felony, and the other a misdemeanor ; and whether both offences arose out of the same act or not, was immaterial. For instance, assault and battery could not be joined with a count for murder, although arising out of the same act. The rules of pleading did not admit of such a distinc- tion ; and I accordingly quashed the indictment. The Attorney General appealed from the order of the Court quashing the indictment in this case, and moves that the same may be rescinded, and the case reinstated on the docket for trial, on the ground : That a count for a misdemeanor may be regularly joined with a count for a felony in the same indictment; and that such joinder is no ground for quashing the indictment, if both counts relate to the same fact, or the same transaction. Bailey, Attorney General, for the motion, cited Rice's Rep. 431 ; The State vs. Gaffney ; 1 Chitty's Crim. Law, 253, 254; and under these authorities, contended that a count for a misdemeanor might be joined with a count for a felony in the same indictment. Ko injury could result to the defendant by coupling two counts. He would not be confused in his defence. Kunhardt and Yeadon, contra, cited The State vs. Smith, 1 Rice's Dig. 309 ; 3 T. Rep. 102. By joining two counts, the defendant's right of traverse is taken away. *19m "^^^^ evidence would be confounded. A felony and a misdemeanor *cannot be united in the same indictment. The privilege of challenge, they con- tended, would be taken away from the defendant. If he is compelled to go to trial, lie must prepare for Ijoth oifences, although distinct, at the same time. That repugnancy was fatal in an indictment ; and two repugnant charges cannot be sustained in the same indictment. It was, they contended, a matter of discre- tion for the Judge below. In the course of their argument, they cited 1 Chitty's Crim. Law, 2U8 ; 1 Rice's Dig. 390. Curia, per Earle, J. The rule in England in regard to the joinder of offences is, that a felony cannot be joined with a misdemeanor, in the same indictment, The reason which is assigned for this, that the defend- ant would thereby lose the benefit of having a copy of the indictment, a special jury, and of making his full defence by counsel, has no application at all in this country; on the contrary, the defendant would gain by being indicted for felony, as he would have the right of challenge, in addition to the other privileges, which are equally secured to all defend- ants, in criminal prosecutions. From analogy to the rule of ])leadiiig in civil actions, I suppose that whenever the same plea may be pleaded, and the same judgment given, the oifences may be joined. No doubt two felonies may be joined, so far as regards the objection in point of law, as matter of (brm. And so of several misdemeanors. (3 T. R. 98.) And by the English practice, larceny and receiving stolen goods may be (a) t^ame parties in next case. An. And in 2 MoMort., 252. *190] STATE VS. BOISE AND STUKE. 125 joined, 1 Cr. Ca. 234. But here the receiving is charg;ecl as a felony. A case is cited by Mr. Rice, in his Dig'est, tit. Indictment, 52, Sla/e vs. Smith, MSS. where it is said then", is a repugnancy in cliarging a felony in one count and a misdemeanor in another, which would be fatal. But, if fatal at all, I suppose it would be so on demurrer, or in arrest of judgment ; and yet the judgment there was not arrested, although the defendatit was convicted only of the receiving. Since the Act of 1829, subjecting the receiver to the punishment of whipping, and that of 1834, imposing the same punishment for grand larceny, tiie Act of 1833 having abolished branding. I can perceive no greater incongruity or repug- nancy in joining larceny and receiving stolen goods, in the indictment, than there is in joining any other distinct offences, where *the r^i ni same judgment must be accorded. It is true, the offences are L technically of different natures. One is a felony, and the other a misde- meanor. A second conviction of the former would be capital ; but as the formality of praying the benefit of the clergy on the first conviction, is wholly dispensed with, and the punishment of whipping is peremptorily substituted for branding, whether clergy be prayed or not, the offences are so far assimilated, that the technical objection which prevails ia England, to their being joined, does not exist here. We differ, therefore, with tlie Circuit Court, in the reason given for quashing the indictment, that the counts cannot legally be joined. We think that they may be joined, but leave it to the direction of the presid- ing Judge, in all cases, so to regulate the trial that the party shall not be prejudiced by the joinders. As other indictments have been given out and found, we do not consider it material to make any order. O'Neall, Evans, and Butler, JJ., concurred, Gantt, J., dissented. See State vs. Posey, 7 Rich. 485 ; Chivis, 105 ; 3 Hill, 1. The State vs. John H. Boise and Diederich Stuke (a) The confession of a clerk, in the absence of his emj^loyer, that he had sold wine to a servant girl, is not evidence to charge the employer ; and a new trial will be granted to the absent defendant, without prejudice. Before Richardson, J., at Charleston, January Term, 1841. This was an indictment for selling wine to Matilda, the slave of B. F. Dunkin. Stuke was the clerk of lioise. The evidence must be referred to for the details. But it appeared, that Stuke was asked if he had not sold a bottle of wine to a negro girl, that morning, and he replied, yes. But, soon afterwards, having conversed with two men in the yard, he re- ♦turned and said, "no — no, I forgot." Boise was sent for, and r^-iq:) claimed the shop. Mr. Dunkin had before come in with Matilda, ■- asked her where the wine had been bought, and she pointed out the place. lie then went for a search warrant — returned and then found (a) Same parties next case above ; and in 2 McMort. 252. An. 126 CHARLESTON", FEBRUARY, 1841. VOL. I. [*192 Boise present. Mr. D. told bim, Boise, his clerk had admitted he had sold a bottle of wine to his sfervaat, this morning — upon this, Stake said, "no, no — I spoke too quick." I charged the jury that they were to decide, 1. Whether there had been any illegal trading. If any, 2. Who had done it, Sluke, or Boise, or both defendants. 3. That the confession of Stake, made in the absence of Boise, could be evidence only against himself — not Boise. 4. That the jury were to decide, from all the circumstances of the case, whether Boise had, or had not, authorized the illegal trading alleged to have been done by his clerk, Stuke. And, if he had done so, he might be convicted — but otherwise, not to couvict him. It will be seen, by the evidence, that there was adduced against Boise scarcely any thing to implicate him in the particular trading ; l)ut that he was master of the shop. The jury returned a verdict of guilty, and the defendants appeal. GROUNDS OF APPEAL. 1. That the allegation in the indictment was, that the defendants sold a bottle of wine to Matilda, the slave of B. F. Duniiia, and the proof merely that Stuke, (the clerk) confessed that he had sold a bottle of wine that morning, (his principal being absent at the time of both the sale and the confession,) to a negro girl, or a servant girl, without in any manner indicating whose, or wdiat negro, or servant girl ; and his Honor erred in charging the jury, that they could convict the defendants on such evidence ; and the finding of the jury is unsupported by the evidence. 2. That there was no evidence at all to convict the defendant, Boise, there having been no proof at all to connect him with the selling by his clerk in his absence ; and there being no proof at all of any selling, save the clerk's con- fession, subsequently retracted, and afterwards denied in the principal's presence ; and the finding against the principal was in violation of the cardinal principle, *193l ^'^^tone man cannot be convicted *of an offence on the mere con- -l fession of another, and that only of his own guilt. 3. The verdict was, in other respects, contrary to law and evidence. Kunhardt, for the motion, contended that the mere confession of a party of his guilt should never be given in evidence against a third person. The confession of Stuke, he argued, did not come up to the allegation in the indictment, hut he argued that the proof should correspond with the allegation. Bailey, Attorney General, contra, asked whether the Court would interfere and set aside the verdict of the jury; where there is no misdirection of the Court. He contended that juries might weigh all the circumstances, as well as the words. 1 Phil. Ev. 70, 77. Curia, per Richardson, J. In this case, we think that the defendant, J. 11. Boise, ouglit to have a new trial, without prejudice. And it is, so ordered. But the motion ou the part of D. Stuke is dismissed. The whole Court concurred. 194] HARRIS VS. CLAYTON. 127 *194] *IIarrts, Administrator, vs. David Clayton. Goods distrained by a landlord for rent in arrear, and replevied by the tenant, (although they may be removed to other premises,) are liable first to the lien of the Retorno habendo cumji. fa. The lien of a distress warrant iipon goods replevied, is never lost ; neither does it give place to any other. The sale of the goods is merely suspended, in order to try the question whether the rent is truly in arrear. Before Richardson, J., at Charleston, January Terra, 1841. This was a rule on the sheriff, to show cause why he should not be attached for contempt, in not paying over to the plaintiff the money made under the Retorno habendo cum fi. fa. in this case. The sheriff showed for cause that there were prior executions in his hands, against the defendant, which he was advised were iprior liens on the fund, and he was unwilling to pay over the money to the plaintiff without an order from the Court. I was of opinion that the sheriff, having levied under the Retorno habendo cum fi.. fa. on the individual goods which were the subject of the original distress, although the goods had in the mean time been removed to other premises, the lien of the plaintiff was restored by relation, and he was entitled to the money against prior executions, I therefore made the rule absolute, and the sheriff appeals, on the annexed ground : That the prior executions in the sherifT's hands were entitled to the money as prior liens, and his Honor should have discharged J;he rule. Yeadon, for the motion, contended that where goods had been distrained, and the tenant had given bond, and the goods were replevied, the landlord lost his lien upon them ; and in support of this proijosition, he cited 2 Dallas, GS ; it). 131, Fry vs. Leper ; also. Brown's Cases in Chancery. " Lesesne, contra, cited 4 McCord, 49(3, and under this authority contended that by replevying, the lien of the landlord *was only suspended, not entirely p*-,nc gone. Cited also, 6 Bacon Abr. 67. •- ^''^ Curia, per Richardson, J. Harris, the landlord, distrained the goods of his tenant, Clayton, who replevied them, and of course gave bond and securities for their return, &c. if the rent proved to be in arrear. The verdict upon the replevin, found the rent claimed by Harris, the avowant; and the Retorno habendo was properly levied upon the goods replevied, and still undisposed of by the tenant, although removed to other premises. In the mean time an execution of fc. fa. had been lodged with the sheriff. This was prior to tlie Retorno habendo, and such an execution has a lien upon all the goods of the defendant not otherwise pledged. Does this general lien give place to the particular lien of the distress warrant, upon the goods so replevied ? is the question for the Court. It is admitted that if the goods had in the mean time been distrained, upon other premises, for other rent ; or if Clayton had sold them, while legally in his hands, then the lien of the distress warrant would have been "lost, (2 Dallas, 68 ; Brown's Chancery Cases, 428.) The tenant would have 128 CHARLESTON, FEBRUARY, 1841. VOL. I. [*195 broken his bond of replevin, and the sheriff must have returned Elongata sunt to the Relurno habendo. And, in that case, the avowant must have resorted to the execution in " Withe mam, ^\a) to talve other goods ; or else, the replevin bond being thus forfeited, must sue the tenant and his sureties upon it. But when, as in this case, the sheriff returned to the avowant's execution, that he found the replevin-goods just where they were placed, and ought to be, in the hands of the tenant, the land- lord had no other remedy, but to sell the goods to pay the rent. As between the landlord and tenant, the lien of the distress warrant was never lost. The sale of the goods was merely suspended in order to try the question, whether the rent had been truly in arrear ; and the moment that was established, both parties stood in statu quo, practically, as they stood before legally, but in abeyance, waiting for the decision of that fact. The doctrine of distress for rent, with the right of replevin, followed by the reason of the peculiar execution of Retorno habendo, and that of *iqri 11 <'^'t^''"^»^ i'l the case of eloignment of *goods, plainly indicate -J that the lien of the distress warrant renders it plain that both the Retorno and the Withernam go upon the assumption of such a continued lien. The question then is, upon the priority of the two executions, the one a specihc, the other a general lien and prior. As a test, let us suppose that there had been no distress warrant for the rent, and the Ji. fa. had been levied upon such goods as were subject to be distrained ; in that case, the rent now acquired, must have bceu paid before the yi. /a. under settled law. (DeLiesseline^s case, 4 McCord, 496.) And the only difference is, that the Retorno habendo has been levied upon such such goods of the premise's, but which had been lawfully removed by suspending the distress warrant, in order to try a supposed violation of law, in making the distress. In such case, no general lien, which is of course sul)ject to i)rior and specific liens, can deprive the landlord of his specific and vested lien upon the particular goods he had distrained. It would seem, too, that the sheriff having found the very goods undis- posed of by the tenant, nor eloigned by any act of his, the Retorno habendo could not but be returned satisfied ; and of course they, the sureties to the replevin bond, who undertook that the goods should not be eloigned, were ipso facto discharged from their obligation by its ful- filment ; and then, of course, the landlord would be confined to his remedy against the tenant. . The Court therefore affirm the Circuit decision. The whole Court concurred. See 3 McC. 43. An. («) 2 N. & M. 444. An. *197] HORLBECK VS. HUNT. 129 *JOHN HORLBECK, SURVIVOR OF HeNRY HoRLBECK, VS. BeN.J. [*197 F. Hunt. After the statute has run out, there must be "an express promise to pay, or an admission of a subsisting debt which the party is willing and liable to pay."' Whether the acknowledgment proved is sufficient to take a case out of the statute, is a question for the Court, and not one of evidence or construction for the jury. Before Richardson, J., at Charleston, January Term, 1841. This was an action of assumpsit upon an account for work and labor done and materials furuished, &c., between the years 1820 and 1830. The defendant pleaded non as^^umpsif, and the statute of limitations. The account was proved ; and the case turned upon the question, whether the defendant had acknowledged and assumed to pay the debt within four years before the action had been commenced. The account had not been presented until 18-40. Peter Horlbeck, the son of Henry Horlbeck, was offered as a witness, to prove an acknowledgment, &c., by the defendant. He was objected to, and released his interest in the case, (see his release;) and, on his voire dire, swore, that he had sold out his interest in the estate, and had no further interest but in the debts. Upon this, the Court ruled that he was competent to give evidence. He was then swoni in chief, and testified as follows : Witness presented the account early last year, and defendant said he would revise it. Early last sum- mer, say two or three months after witness had called, he called again. Defend- ant said he had revised the account. Said he could not pay it now. If it had been presented eight years ago, he could easily have paid it. That circumstances had altered with him. That he could not pay. It would have to come in with his other debts. Witness told him they wished to close the books, and if he would settle by note, or bond and mortgage, at any time convenient to himself, it would answer. Defendant declined entirely to give any obligation ; say any thing of the kind — as bond, note, &c. Defendant and witness were alone. A gentle- man was in the next room. The door had been closed by the defendant. Defend- ant did not object to any item. Thinks defendant had the account in his hand. Said he was sorry it had not been presented before. He made no objections* r*-iqc to witness. Thinks he said he presumed it was right, or something of the '- kind. He said it would come in to be paid with his other debts. Witness was authorized to make the offers he did by plaintiff. A letter was written by Dr. Horlbeck. Can't say why the account was not presented. His bi'other was a student with the defendant many years ago. He is now upwards of thirty years old. Plaintiff was indulgent to his debtors ; or negligent perhaps. Difficult to get accounts from him. Cross-examined — Defendant said he could not pay the account now ; but said something of presuming it was right. Did not say he had examined it. It must come in with his other delrts. Declined giving bond or note. That he could not pay it ; it mtist come in with other debts. Can't say if he did or did not say that • he would not come under obligation. Understood him to admit the debt ; but spoke of his inability to pay. Gave no reason for not giving a note, that witness recollects. Has stated defendant's words as well as he recollects. The plaintiff's counsel argued, that, although there had been proved no express promise to pay the account, after the statutoi-y bar had become complete, yet the acknowledgment proved was sufficient to take the case out of the statute. I charged the jury, that before they could find for the plaintifiF they must be satisfied, (the statutory bar being complete,) that the defendant had promised anew, to pay the account. That the action in such case must be bottomed upon the new promise ; the old debt being the cou- VoL. L— 10 130 CBARLESTOX, FEBRUARY, 1841. TOL. I. [*198 sideration. Such an action could not lie, without some new undertaking on his part ; and that it must amount to the expression of a willingness, and a liability still to pay the debt, which had been barred. Tiie jury had, therefore, to decide whether the evidence proved such a promise, or not ; and to find accordingly. They found for the plaintiff, and the defendant appeals on the following grounds : 1. That the witness, Peter Horlbeck, was directly interested in the event of the suit, and, therefore, incompetent ; and having been objected to, ought not to have been admitted to testify. 2. That there was no evidence of any acknowledgment by the defendant, of *iqoi any subsisting legal liability, nor any promise *to pay, but on the con- -1 trary a positive refusal to incur any obligation ; and there was nothing, therefore, to take the case out of the operation of the statute of limitations; and his Honor ought so to have charged. 3. That the construction of the words alleged to have been used by the defendant, was a question of law for the Court, and not of fact for the jury ; and his Honor erred in leaving the question to the jury, but should have charged directly, that they were not sufficient to prevent the bar of the statute. 4 That the verdict is without evidence, against evidence and directlycontrary to the settled law. Bnilcy, for the appellant, on the first gi-ound, cited 1 Phil. Ev. 53, and contended that the witness, P. Horlbeck, had a legal interest, and was an incompetent wit- ness. Cited 2 Starkie Ev. 734 ; 1 Phil. Ev. 49, 50, 52 ; and 1 Bail. Rep. 3li2 ; Pickett vs. Cloud. On the second ground, he cited and relied on 2 Bail. 278 ; Dudl. 118 ; and Chev. Rep. 33, and contended that the ground of recovery is an express assumpsit ; but he denieil that there was, in this case, any promise or undertaking (from the tes- timony) to laise even a presumption of a promise to pay. On the third ground, Mr. Bailey contended that it was a question of law for the Court, and not such a question as should be decided by, or left to, a jury. Yeadon, contra — lirst ground — said, that if the witness, P. Horlbeck, had a legal interest, he would admit that he was not a competent witness, but he con- tended that hi' had not such an interest as would exclude him from testifying ; that he was not, in any event, liable for costs in this case. That this was not one of the specific ay. But the debt had been attached in their hands. Lkfence — Defendants have paid the money into Court. Attachment 21st .January, 1840. Order in May, to pay into *Court, and the money was paid. This r^onj writ is of April 18th, 1840. Attachment in the name oi Jugnot vs. Cuvillier, ^ "■ and defendants made garnishees. But no notice of the money heing paid into Court, was given to plaintiff, and Jugnot has got the money, &c., to ha repaid, if he should not recover against Cuvillier. The return of the garnishees, &c., filed 4th April, 1840. Tliey are competent. Roger — 18th August, 1839, received the bill of lading, with orders to deliver to owners ; the box was marked E. C. Olln called for the box, he said it was his ; produced bill of sale, and power to receive the case. This was Cuvillier' s power, &c., (see the power.) In January, 1840, Olin, plaintiff, had box, and paid for it. He paid expenses, duties, freight, &c., &c., and freed the case. ICth or 17th Jan- uary, Jirgnot called, and asked if he had such a case for Cuvillier. Witness told him what had been done. Witness told Jiignot it had been sold to Figeroux & Champy, by Olin. Witness advised Figeroux upon the attachment being issued ; advised him to pay the money into Court. Michel — Cuvillier borrowed money of plaintiff, Olin, and of witness too. Cross-examined — Olin said he would not be covered by the case by $200. Cuvil- lier said he would send on goods to pay the debt, &c. Court — Thinks plaintiff having notice of the attachment of Jugnot, cannot re- cover. COPY OF ketukn. Charles Jugnot vs. Eugene Cuvillier. State oj South Carolina — Common Pleas — Attachment. Personally appeared before me, Benj. Figeroux and 0. Champy, who being duly sworn, deposed, that they have been served with a copy writ of attachment in the above case, and they make the following return, to wit : that they have a box of goods in their hands, for which they agreed to give the sum of $279. The goods were sold by Mr. Olin to them, and as they are in doubt to whom the money belongs, (as Mr, Olin informed Mr. 0. Champy, that he intended to send some portion *of said money to Mr. Cuvillier,) they pray to be allowed to pay the r^op,- money into Court, anil to be discharged with their reasonable costs and L ^ ■' charges. Tliey further swear, that they know of no other proiierty of the said Eugene Cuvillier. Sworn to before me, this ) „. ,„ ^ /-> tt 28th March, 1840. \ ^' ^^- ^^^'^^rdt, Q. U. Endorsed, Pringle, for garnishee. Filed April 4th, 1840. B. FIGEROUX, OSCAR CHAMPY. 134: CUARLESTON, FEBRUARY, 1841. VOL. I. [*205 ORDER OF COURT, 8tU JANUARY, 1841 Jugnot vs. Cuvillier. Case of Attachment. — On motion, it is ordered, that the clerk do pay over the money to the plaintiff, paid him in this case, upon giving the security required by law. J. S. R. Recognizance in attachment — Without date as to either day, month or year — Charles Jugnot and W. W. Kunhardt, obligers to the State, in the sum of $592 40, (for the use of Eugene Cuvillier,) recited writ issued by Jugnot against Cuvillier, an absent debtor, and conditioned that Jugnot should prosecute his suit to judg- ment with effect, and should cause to be forthcoming and return to the absent debtor, the sum of $296 20 cents, in case the absent debtor should appear in Court, within a year and a day from the date of the bond, and discharge himself of the demand of the said Jugnot ; and if the absent debtor should not appear as afore- said, then that the said Jugnot should deliver into the hands of the clerk, all such overplus of moneys as shall be paid to liini, after paying and satisfying thereout, such sums as should be awarded by the judgment of the Court, that the same might remain subject to the further order of the Court. COPT OF RECEIPT TO CLERK. Cliarles Jugnot vs. Eugene Cuvillier — In attachment — Figerous & Champy, (gar- nishees.) Received of Charles C. Stroliecker, Clerk of the Court of Common Pleas, $296 20, in full of moneys paid into Court by said Figeroux. CHARLES JUGNOT. Charleston. *206] *COPY OF POWER OP ATTORNEY. Know all men by these presents, that I, Eugene Cuvillier, late of Paris, France, and now residing in the city of New Haven, in the State of Connecticut, do hereby constitute and appoint Monsieur Auguste Olin, of Charleston, South Carolina, my true and lawful attorney, for me, and in iny name, to receive from Pitray & Viel, of said Charleston, a certain box directed to me and marked "E. C," and to give to the said Pitray & Viel, when said box shall have been received by my said attorney, a receiitt, acquittance, and discharge therefor ; which receipt, or discharge, when signed and delivered l)y said attorney, shall be a full discharge to (them) the said Pitray & Viel, of all claims which I may have upon (them,) on account of said box, and the contents thereof. And I do hereby declare, that my said attorney is the purchaser of the said box, and the contents thereof, and that he has full power and authority to apply the same, when received by him, to his own proper use and benefit. (And whereas, it is possible that the said box, and con- tents thereof, are dirci^ted to Madame Cuvillier, I hereby declare the said box, if so directed, is the box intended by this letter of attorney.) In testimony whereof, I have hereunto set my hand and seal, at said city of New Haven, this 3d day of January, A. 1). 1840. EUGENE CUVILLIER, [seal.] Signed and sealed ) ,,r t. t> in presence of J Wm. B. Bristol. Duly authenticated, under hand and seal of Wm. B. Bristol, Notary Public, at New Haven, the day and year above mentioned. (Translated.) Received the within mentioned box, Jan. 16, 1840. (Signed) A. OLIN. Charges paid us, liy Mr. Olin, $r)G 37 cts. THOS. J. ROGER & Co., Successors of Pitray, Viel & Co. OROUNDS OF APPF.AL. 1. That liis iroiior suffered the defendant to fjive in evidence certain proceedings in fureiyn attachineMt, to which the plaiulifl' in this action was no party. *207] OLIN vs. FIGEROUX & CHAMPY. 135 *2. That his Honor allowed the deftnidant to jrive in evidence his own r*0A-7 return, as garnisliee, to the said writ ot attachment, thereby making him ' a witness in his own case. 3. That his Honor erred in charging the jiuT, that defendant's payment of money into Court, under order of the Court, as garnishee aforesaid, although after writ served on them by present plaintifi', and without notice to him of such payment, was sufficient to bar the plaintiff from a recovery. 4. That his Honor erred in chavuing the jury, that the plaintiff was not entitled to recover, although the defendant paid the money into Court, and suffered the attaching creditor to take it out of Court, without contest, (thus disabling plaintiff from ever getting it back,) after writ served on him by plaintiff, and without notice to plaintiff, and that too, when the same attorney represented both the attaching creditor and the garnishee. .5. That his Honor erred in charging the jury, that the plaintiff was barred by the defendant's payment of money into Court, when it is respectfully sub- mitted, that the only question at issue was, wiiether the goods sold were the property of the plaintiff, or of the absent debtor ; and his Honor should have charged the jury, and left them to decide accordingly. 6. That the verdict was palpably against law and evidence. Yeadon, for the motion, contended that the attachment offered in evidence was not a bar to the plaintiff's recovery ; and that the plaintiff had no right to make himself a party by force. Also, that the power of attorney was a bill of sale, and the attorney tlie purchaser. Kunhardt, contra, cited 3 E. 367. Evidence under the plea of non-assumpsit. Memminger, contra also. Was payment of money into Court, by a third per- son, a discharge ? He also contended that there was collusion between plaintiff and the absent debtor. That this was a question for the jury, and they had de- cided. Olin, he contended further, had notice. Also, whoever has a claim against a thing attached, should come in and establish his claim. Cited 5 Johnson, 101 ; Sergt. 146 ; 1 Rice's Dig. *head, Attach. 80 ; 3 East. 367. The party has a r*9AQ remedy over against the party receiving it, 2 H. Black, 407 ; 1 ih. 665, '- settled the same principle ; 2 Dal. 73 ; a party having account may come in and claim. He also contended that a garnishee was protected by the proceedings iu attacliment. Yeadon, in reply, said the rule laid down by the counsel only extended to the absent debtor, and cited 1 Bail. 193. Curia, per Evans, J. If Jiignot had attached a debt really due to Cuvillier, there would be no doubt that a payment of the money into Court, and the delivery of it to the plaintiff in attachment, would have discharged the defendant from the payment of it to Cuvillier. All the authorities agree in this, and this is the result of the case quoted in the argument. But the present is a very different question Here the plain- tiff claims the debt as due to him, and from the evidence offered, it seems very clear the goods were purchased from him. Cuvillier seems to have been once the owner, but the evidence of sale to the plaintiff was pretty clearly established, unless there was some collusion between them to de- fraud the creditors of Cuvillier. If there was so, then that point should have been submitted to the jury. The case, as presented here is, whether the plaintiff", Olin, is estopped by the proceedings in the case in attach- ment of Jugnot vs. Cuvillier. I am of opinion he is not. There is nothing in the attachment Act which requires hitu to come and litigate his rights in a suit to which he is not a party. If Olin was a mere agent to sell the goods, and the debt due for them was Cuvillier's, theu it might 136 CHARLESTON, FEBRUARY, 1841. VOL. I. [*208 have been attached in his hands, and if he had failed to assert his right, he would have been bound by the record. But in this case Jugnot did not make him a garnishee, and he had only verbal information that the money was attached. Under our practice he might, perhaps, have come in and had an issue to try the question, whether the money due for the goods was his, or the absent debtor's ; but I do not know of any legal principle which makes it obligatory on him to do so. There is no such obligation imposed by the attachment Act. The defendants purchased the goods from the plaintiff. He sold the goods as his own, and nothing appears to the contrary, but that the debt was due to him. The defend- ^ ants have voluntarily involved "''themselves in the difficulty, by sug- " -■ gesting a doubt whether the money, or a part of it, might not belong to Cuvillier ; for, independent of their return, as garnishee, there is not the slightest evidence to impugn the plaintiff" 's right to the money. Their course was a very plain one. They had no dealings with Cuvillier. All they had to do, was to return they had nothing belonging to him. But they chose to offer to pay the money into Court, and in consequence, the money was paid into Court, without the plaintiff's knowledge or consent, and Jugnot has received it as Cuvilier's money, on giving his bond to repay, if he should fail to prosecute his suit to judgment, or the absent debtor should, in a year and a day, discharge himself from the demand. By this course of proceeding, the plaintiff' 's right to recover his debt is not impaired. The proceedings in attachment do not estop him from demanding and receiving it, if the debt is bona fide his, and not the absent debtor's. The motion for a new trial is therefore granted. Gantt, O'Xeall, Earle, and Butler, JJ., concurred. See 2 Sp. IIC, 390. An. Galliott and Lefevre ads. Planters' and Mechanics' Bank. One partner, after the dissohition of tlie copartnership, cannot bind the other, by signing tlie partnershii? name, without express authority ; and notice through the pubHc papers, to the plaintiffs, of such dissolution, is sufficient. Each renewal of a note in bank is a new contract. Before Richardson, J., at Charleston, January Term, 1841. This was an action of assumpsit, on a note drawn by Sebastian Aimar, dated 8 l.st December, LS37, for three hundred and thirty-seven dollars, with tiie names of defendants endorsed. It was in evidence that a co- partnership had existed between the defendants, which was dissolved on *210l *''^' ^^^^^. ^'<^^'<^'"'^er of the same year, before the *date of the note ; J and notice of the dissolution, through the public papers, reached the jiliiintills. The endorsement was not in the handwriting of either of the (lef(;ti(liin(!«, but was written by the wife of Lefevre, he himself being unable to write. There was no evidence of any express authority dele- gated to her to endorse for the firm, even while it was in existence. The witness on this point said he had seen her sign notes for the firm once or twice, and had mentioned it to Galliott. Mr. Morris, a clerk in the bank, stated that this note had been discounted in the bank, and pro- *210] GALLIOTT & LEFEVRE ads. BANK. 137 tested regularly for non-payment. lie believed the note to have been a renewal of another note of the same drawer, and endorsed by Galliott & Lefevre, as he found an entry of such a note on the books of the bank, kept by his predecessor in office. Sebastian Aimar had become insolvent between the date of the first note and the date of the one sued on, and he therefore presumed the bank had discounted this note on the faith of Galliott's solvency. I left the facts to the jury, charging them, that unless Mrs. Lefevre had been authorized to endorse the present note, as well as those made dui'- iug the partnership, the defendants were not bound by her endorsement. The jury found for the plaintiff, and the defendants' counsel served me with tlie annexed notice of appeal. GROUNDS OF APPEAL. 1. The plaintiffs were not entitled to recover, because the co-partnership was dissolved before the date of the note ; Galliot never assented to, or author- ized, the endorsement ; and that plaintifis had no notice of the dissolution. 2. The statements of Mr. Morris concerning a previous note were not evidence, because, even admitting that to be a fact, each reneAval discharges the prior note. His evidence was not competent, because his knowledge on this subject was derived from memoranda kept by his predecessor, and not himself, and which memoranda were not produced in evidence. 3. The verdict was against justice, law, and evidence. Cooper, for the motion, cited and relied upon 1 McCord, 388, as to the power of partners ; 3 McCord, 526, was cited by him in order to show that every renewal of a note formed a *new contract, and that this note being a renewal of r^^.^-iT another, it might be considered as payment. He contended that the mem- '- " oranda of the witness who testified was not competent evidence. Memminger, contra, contended tliat the wife of Lefevre had been allowed to write for them. Galliott had assented to it, and, therefore, he was bound by her act. This was a renewal. There were other counts in the declaration, and plaintiffs might recover on them. Curia, per Earle, J. The co-partnership of the defendants having been dissolved before the making of the note in question, and notice having reached the plaintiff, neither of them could bind the other by signing the partnership name, without express authority. It does not vary tlie case at all, that the note sued on was a renewal of one endorsed and discounted before the dissolution. It is well settled that each re- newal is a new contract. If Lefevre himself could not bind Galliott, by signing the partnership name, it would be very strange if a third person, although the wife of one of them, could do it without authority from either. The revocation of all that she had previously done, was cooiplete by the act of dissolution, and there is no proof of any given to her after- wards, either by Galliott or Lefevre. The plaintifl", therefore cannot recover on the note. It is equally clear that he cannot recover on the money counts. To say that a note discounted by the maker, is evidence of money lent to the endorser, is a novelty. Such a proposition is opposed to the common usage and general experience of men, and the defendants could only be charged upon clear and explicit proof, that in fact, the note was discounted for their beneflt, and that they received the money. Motion granted. The whole Court concurred. See Post, 298 ; 6 Rich. 219 ; Meggitt vs. Finney ^- Jones, 4 Strob. 220. An. 138 CHARLESTON, FEBRUARY, 1841. VOL. I. [*212 *2r2] *The Administrators ofWm. Patton vs. John MAGRATH.(a) The admissions by the defendant, within two years from the commencement of the action, that the cotton of the plaintiff's intestate was shipped on board of liis steamer, that it had been destroyed by fire, and that the controversy as to his legal liability was still pending, was held not to be a suflficient admission of his liability, onwhich the law would raise an implied promise. The cause of action in this case accrued on the 3d December, 1832, and suit was brought by the plaintitf's intestate in May, 1833, and abated, before it was tried, by his death. In March, 1835, suit was renewed by the plaintiffs, and at Feb- ruary Term, 1839, of the Appeal Court, a nonsuit was ordered. In April follow- ing, this suit was commenced : Held that the statute of limitations was a bar to plaintitl's recovery. That this siiit could not be connected with either of the former cases. Before O'Xeall, J., at Charleston, May Term, 1840. This was an action against the defendant, as a common carrier, for the value of fourteen bales of cotton, shipped on board the steamer Augusta, Captain Brooks, whereof the defendant was, at the time, owner. The cotton was shipped at Augusta, and destined for Charleston, but was burned on the 3rd of December, 1832, at Steele Creek, on the Savannah river, on board one of the lighters accompanyiug and in the employment of the steamer. The bill of lading was dated 30th November, 1832. After some inter- val, the defendant was called on to pay for the cotton as a common carrier, and on his refusal, a suit was instituted at May Term, 1833. Before this suit was tried William Patton died, and administration was taken out on his estate by the plaintiffs. On the Ith March, 1835, plaintiffs' attorney was directed to renew the action, and on the 18th March, 1835, the defendant accepted service, and an appearance was entered by his attorneys, at the request of the plaintiffs' attorney. The writ was served on Captain Brooks, (who was joined in the same action with the defendant.) On the 22nd January, 1836, the case was ordered for judgment against Captain Brooks, by default. The defendant, Magrath, i)leaded the general issue. On the 15th of January, 1838, a verdict was rendered for the defendant, which was, at February Term of the Court of Appeals, set aside and a new trial ordered. On the 18th January, 1830, the case was again tried, and a verdict of seven hundred and thirty-four dollars and fourteen cents, found for the plaintiffs. On ^213-1 the appeal, the Court of Appeals, at February Term, 1839, ( llice's Rep. 102,) ordered a non-suit, on the ground tliat the defendant, as owner, and Captain Brooks, as master, were improperly Joined in the same action. On the 20th of April, 1839, an action was commenced against the defendant, and he accepted service, or by his attorney entered an appearcnce at the request of the plaintiffs' attorney. To this action he pleaded the general issue, and the statute of limitations. Mr. William Patton, a witness for the plaintiffs, proved, that within the last two years, or about two years ago, he heard the defendant speak of this claim, as an unadjusted one. lie admitted that the cotton was shipped on board liis steamer, and was burned on board the lighter. ('0 S. C. before; Rice, 102; Dud. 159. *213] ADMRS. OF PATTON VS. MAGRATH. 139 He said the defendant and other steamboat owners applied to the Legis- lature to exempt them from liability for loss arising from fire. After the plaintilfs had stated they had no further proof to offer, I said to the plaintiffs' attorney, Colonel Hunt, that in my judgment, the statute of limitations was an insuperable bar to his recovery, and advised him to submit to a nonsuit, with leave to move the Court of Appeals to set it aside. This was accordingly done. GROUNDS OP APPEAL. 1. Because, it is respectfully submitted, the Court ought to have instructed the jury, that the admissiou by the defendant, within two years from the cotn- niencement of the action, that the cotton of the phiintifl''s intestate w;is shipped on board of bis steamer, and had been destroyed by fire, and that the contro- versy as to his legal liability was still pending, was a sufficient admission of the state of facts on which the law will raise a promise. 2. Because the defendant, having been sued by the deceased, in his lifetime, and by his administrators since his death, and having been heard in his defence, he has always been aware of the existence of the demand, and does not bring himself within the morality or equity of the statute, and the mere informality in the suit ought not to screen him from a legal liability. 3. Because the acknowledgment was made before the statuary bar was complete, about two years before the trial, and this was sufficient to take the case out of the statute. *Curia, x>er O'Neall, J. The cause of action in this case ac- r^gi < crued on the 3rd December, 1832, when the cotton was burned. ^ The suit which was instituted in William Patton's life time, abated by his death. That case might have been connected with the first suit brought by the administrators, so as to have prevented the bar of the statute against it. But this last case was nonsuited, and the present case can be connected with neither. The plaintiffs are therefore barred, unless William Patton's testimony could save them. It cannot have that effect, for two reasons, 1st. If it is any sort of admission of the plaintiffs' claim, it is the slightest conceivable one. At the time it was made, two years ago, (1838,) the statute had run out, and such an admission would not be evidence to prevent the bar of the statute from precluding the recovery of a debt. 2nd. This case is an action ex contractu, {ov i\iQ recovery of damages, where the defendant always resisted his liability to pay them. It is therefore idle to suppose that his words to Mr. Patton admitted the legal liability from which a promise would be implied. They meant that the litigation between him and these plaintiffs was undecided. There is nothing in this to remove the bar of the statute. The motion is dismissed. The whole court concurred. Hunt, for the motion. Magrath, contra. See 2 Sp. 485 ; 3 Hill, 214 ; 1 Bail. 542. An. 140 CHARLESTON, FEBRUARY, 1841. VOL. I. [*215 ^.-)',rn *TirE State, ex relatione W. C. Oakley et al. us. Brig- "^^ -1 adier-General Edwards et al. Where a detachment of the Militia of the fourth Brigade, South Carolina Militia, had been detailed, (by the Brig. -Gen. of the Brigade,) as a fire-guard, in the City of Charleston, under the Act of 1829, and before their term of service as such guard had expired, the officers and sergeants belonging to tliis detach- ment, together with all the officers, &c., composing the said Brigade, had been ordered by the Brigadier, under orders from the Governor of the State, to en- camp and perform encampment duty — It was held that the fire-guard and en- campment duties did not conflict ; and a prohibition to restrain the collection of fines imposed by the court martial against the relators, for a neglect of the latter duty, was refused. Before Earle, J., at Charleston, May Term, 1841. This was a sngf^estion for a prohibition to restrain the collection of certain fines imposed on the relators by a court martial. By an Act of 1829, (o) the Brigadier-General or other officer commanding the fourth brigade, in order to prevent the confusion which may arise from too many men being under arms when fire shall break out in the city of Charleston, is authorized to fix the number of men necessary to be under arms in such cases, and to make regulations by which a certain portion only of the militia of Charleston shall be required, for the period of three months, to hold themselves in readiness to parade in case of alarm from fire; and the said portion of militia shall be commanded by a field officer, detailed according to the order of officers, &c. And the Act proceeds to impose upon defaulters, in case of alarm, the same fines that are imposed on persons making default at regimental musters. General Edwards being in command of the fourth brigade, in January, 1839, according to the provisions of the Act, by general orders, detailed four companies from the Ifith and IJth regiments, under the command of Major Oakley, and the other relators, to compose the fire-guard for three months from and after the first day of February, 1839, and they were accordingly organized and paraded as such. On the 6th of March, General Edwards, in obedience to the general orders of the Commander in-Chief, directed *2161 "" encampment of the officers and sergeants of the *fourth brigade " -' to l;e held at Morrison's farm, seven miles from the city, on the 8th of April, for five days. On the 2Tth of March, the Commander-in- Chief, by general order, excused the officers and sergeants of the Charles- ton light dragoons, from attending the encampment at Accabee, and directed that the said corps of light dragoons should be officially detailed by the Brigiidier-General, to serve as a fire-guard ad interim; and the Brigadier-General, on the 1st of April, issued his order to that efl'ect, and tliereby also dissolved the fire-guard under the command of Major Oakley, and ordered the officers and sergeants composing the same to attend the encampment at Accabee. This order Major O'akley and the other relators, officers in command of the fire-guard, did not obey, con- ceiving themselves already detailed upon a special duty under a law of the State, which exempts them for the time from the performance of the duty required of them. They did not attend the encampment, and were («) 6 Stat. 305. An. *216] Ex rel, oakley et al. 141 afterward fined by a court martial for their default. They then filed this sup:,c:estion for a prohibition to restrain the collection of the fine. The cause was heard upon the suggestion and answer, before Mr Jus- tice Earle, at the May Term. 1839, who pronounced the following judg- ment, refusing the writ of prohibition prayed for : This application is made on the ground that the fire-guard for the city of Charleston, having been detailed in January, 1T39, for three months from the 1st of February, neither the Brigadier-General nor the Gover- nor had, for that time, any further command or control over them ; but that they were entirely withdrawn and set apart from the general body of the militia, and from the jurisdiction of the military courts. The last Act of 1829, on the subject of the fire-guard, enacts that "the Brigadier- General be, and he is hereby authorized to fix the number of men neces- sary to be under arms, in such cases, and to make regulations by which a certain portion only of the militia shall be required, for the period of three months, to hold themselves in readiness," &c. And provides for fines, courts martial, reporting defaulters, and ordinary parades; and the 8th section is in these words: "Nothing herein contained shall be con- strued so as to exempt that portion of the militia *of Charleston, r>i<.)i ^ which shall compose the fire-guard, from the performance of ordi- '- nary militia duty." This is enough to show that it was never intended to exempt the fire-guard from the operation of the militia laws. In pur- suance of the Act, the Brigadier-General designates certain corps to perform a particular duty, in an emergency, which may happen ; but which is not certain to happen during the whole term for which they are thus set apart. This affords no reason why they should not perform the other ordinary duties of the militia, or that they should be released from the obligations to obey the lawful commands of their superior officers. Independently of the subsequent Act, appointing encampments, I should consider the fire-guard, thus detailed, as being a detachment for a par- ticular service, under orders; that the same commanding officer, who sent them on detachment, may at any time, by a subsequent order, recall them, and send other troops in their stead ; and that the Commander-in- Chief, of necessity, from the very nature of his position, has the same authority. The Act of 1829 confers no new power on the Brigadier- General. In cases of alarm from fire, or other great unexpected danger, I apprehend, he would have had authority to call out the militia, or any part of it, to preserve the public tranquillity and safety. It auihorizes him to make regulations for detaching a certain portion only, (leaving the number and description to him,) for an extended time; he may, in his discretion, detach and recall, as the public interest may require. But the Act^of 1833 makes it the duty of the Brigadier-General, under the direc- tion of the Commander-in-Chief, once in two years, to assemble the com- missioned officers of his brigade, at some convenient place within the brigade, to be encamped for five days, for instruction and exercise. Here is no exception in favor of the fire-guard; nothing which exempts the commissioned officers composing it from being summoned to attend the encampment ; especially if the order by which the guard was organized, be expressly rescinded, and the guard dissolved. Nor is there any thing in the nature of their office and duty which makes such a proceeding at U2 CHARLESTON, FEBRUARY, 1841. VOL. I. [*217 all inconvenient to them, or incompatible with the public interest. It would, of course, be the duty of the Brigadier-General, when dissolving one guard, to enable it to attend the encampment, to organize another *9i Q-| to attend in its stead ; a duty * which he would be highly culpable J if he omitted to perform. The fire-guard is expressly declared not to be exempt from ordinary militia duty. I understand, by ordinary duty, any parade or muster for review, inspection, exercise or instruction, prescribed by law, and recurring periodically. I consider an encamp- ment an ordinary militia duty. Extraordinary duty, is such as arises on occasion of sudden emergency or alarm ; as invasion, insurrection and the like, when recourse is had to the extraordinary powers vested in com- manding officers. Yery many persons, and some classes of persons, are liable to serve on these last occasions of extraordinary duty, who are exempt from ordinary duty. If to attend an encampment be an ordinary duty, then, by law, the fire-guard is not exempt. If it be an extraordinary duty, then the special commands of the executive were of such authority as to require their obedience. If the officers had attended the encampment, and had been brought to a court-martial, for not attending a parade of the fire-guard, in their absence, can it be doubted that their excuse would have been sufficient ? And here, I may ask why they did not attend before the court martial, and render their excuse for not attending the encampment. After refus- ing to obey the orders of the Commander-in-Chief, and of the Brigadier- General, and evincing such confidence in their own judgment as to refuse also to appear before the court martial, to justify themselves, they come with an ill-grace before the court to ask its interposition. I cannot but allude here, in terms of strong reprehension, to the frequency with which this course is adopted, in regard to all inferior trilninals having limited judicial powers. A man omits to perform some public duty required of him, as to work on the roads, or attend a muster, on some legal grounds affording a pretext ; when summoned to answer for it, before the proper authority, he refuses to attend, and when fined, as he ought to be, he straightway goes to a lawyer, and brings his complaint before the Court. I confess I have no symjjathy for those who neither perform their duty nor have the courtesy to excuse themselves for the omission ; nor will I convert tlie power of this Court, to grant writs of prohibition, into a general disi)ensing power in favor of the negligent and the wilful. It is very clear to my mind, that the relators were subject to the jurisdiction of *210l '^''^' ^*^"^"t martial, as *was also the cause of the complaint against them. That is enough to induce me to refuse their motion. I have, however, as little doubt that they were liable to perform the duty required of them; that the orders of the Major-General and the Com- mander- in Chief were no violation of the law, and were strictly conform- able to military usage ; and that it was the duty of the relators to obey. The motion for a new writ of prohiljiiion is refused. This judgment the relators now move the Court of Appeals to reverse. ORorNDS OF APPEAL. 1. 'I'lirit firc-puard and encampment duties are conflicting duties, and the persons liai^lc tu do both at llio same time, have the right of election which to Ijcrform. *219] Ex reh oakley et al. 143 2. That tlic org-anization of tlie fire-guard is a privilege of the city of Char- leston, to secure her against internal commotions in cases of fire, guarantied to her by Act of the Legislature, and neither the Brigadier-General nor the Governor has the right to deprive her of it. Yeadon, for the motion, contended that the fire-guard belongs to the citj of Charleston, and tliat the interests of the city are involved, and that no power but the Legislature could deprive her of her privilege. He cited Acts of A., 1829, (Mill. Laws, 122, 2d and 3d sec.) The Legislature recognized the necessity of having this guard. He said the city was liable to incendiarism and an influx of strangers, without this guard ; and argued further that this fire-guard was com- pletely detached from the militia of the State, during the three months service required by the Act. Cited in the course of argument, Condy's Dig., 14G. Northrop, contra, cited Act, 1833 — army regulations. He contended that the jurisdiction of a military court was exclusive. The militia are under the command of the Governor. He has the right to demand their duty as he pleases, unless he is restrained by law or there is some exception. The Brigadier is made the officer commanding Charleston, so far as a fire-guard is concerned, and he had the right of regulating the detail. * Curia, 2~)er Earle, J. The earnestness with wliich the r^-ggn motion has been urged upon this Court, has induced me to recon- L """ sider the grounds taken in argument, botli here and in the Court below. And I confess myself still unsatisfied with the reasoning by which it is attempted to establish the claim of the relators, to be exempt from the operation of a law for the discipline of the militia, which makes no excep- tion in their favor ; and to be released from the obligation of obedience to the orders of their superior officers, and of the Commander-in-Chief. Obedience is the first duty of a soldier ; without it, that subordination which is essential to the effective operations of an armed force, cannot be obtained or preserved. It would be very injurious to the organization and discipline of the militia, if the civil courts were habitually to interfere with the jurisdiction of and decisions of courts martial, in cases where they may lawfully take cognizance of the persons and subject matter. Such, in the oi)inion of the majority of the Court, was the case of the relators, and we liave striven, in vain, to perceive the force of their claim to an absolute exemption. In the view which the Court has taken of the sub- ject, it was not a case of conflicting duties. It was the duty of the rela- tors to obey the last orders of their superiors in command, by whose order they had, in the first instance, been detailed for a particular service. They were expressly recalled from that service, and another corps detailed in their stead. These orders were surely within the competent authority of the Brigadier-General and Coiuraander-in-Chief. There was then no conflicting duty. If it had been a case of that kind, it would have fur- nished no ground for prohibition, as a case of exemption from the juris- diction of a court martial. Both the supposed duties were under the orders of the same superior officer, and a default in the ]ierformance of either would have brought the relators before the same tribunal. What they claim as an exemption was merely matter of excuse, to be considered by the court martial. Can it lie supposed that after the order dissolving the fire-guard, and requiring them to attend the encampment, tliey could have been brought to trial for omitting to attend a parade as a fire-guard, or that the last order would not have been a valid excuse ? To dispose of the whole question, it is only necessary to inquire, had 141 CHARLESTON, FEBRUARY, 1841. VOL. I. [*220 *09i-i ^^^^ ^°"'''' "^^^^'^^ jurisdiction of the persons and *tlie subject '^'"' -I matter? and it is obvious that it had. The relators are militui officers of the fourtli brij^'ade, liable to be tried for any default of militia duty within it, and the charge was a failure to attend an encampment of the"officers of that brigade, in obedience to the orders of the Commander- in-Chief. The persons and the subject matter were therefore properly and exclusively within the cognizance of the court martial. Not only does the Act of 1829, which requires the guard to be detailed, expressly declare that they shall not be exempt from the performance of ordinary militia duty, but the Act of 1833, (a) providing for brigade encampments, makes no exception in their favor, and from the generality of its terms necessarily includes them. Tliis Court, therefore, will not undertake to review the decision of a competent tribunal on a sulyect within its pecu- liar jurisdiction ; and there is no ground to interfere by prohibition. A majority of the Court concur in the reasoning and conclusions of the Circuit Court, and the motion to reverse its judgment is refused. RicnARDSON, O'Neall, Evans, and Butler, JJ., concurred. Gantt, J., dissented. KoTE. — As the judgment of the Circuit seems to impute Uame to the rehitors for not attending personally before the court martial to plead their exemption, or render it as an excuse, it is proper to add that, for this omission, they had the sanction of the late Mr. Justice Bay, who had, on a former occasion, held the guard legally exempt from such duty, and had granted a prohibition. That was the reason for their not attending the court martial. *222] Edward McKenzie vs. Charles E. Chovin. The Boards of Commissioners of Roads represent the people of the district or parish for which they are appointed, and are clothed by law with a certain autliority to act for the public. They are not, however, a corporatioti, and have no corporate funds ; consequently they are exempt from private actions for neglect of duty. A single Commissioner is not liable for damages, in a private action, for an injury wliicli may have been tho result of want of repairs in the roads, &c., in his particular section. Before Gantt, J., at Coosawhatchie, Spring Term, 1840. This was an action on the case, brought by the plaintiff for damage sustained through injuries done to his horse on the public road, of which the defeinlunt was commissioner, through the alleged neglect of the defendant to keep the road in repair. The defendant demuri'ed generally ; and on argument, I sustained the demurrer, on the ground that the case of Young vs. The Commissioners of ilic Uoadx, rci)orted in 2d N. sit is of course the proper plea. Now, in this case, money was paid ; therefore, here, non assumpsit was certainly proper. Chitty, 47e would collect the check next day. If they were satisfied that Tristram Tupper of Charleston, was the person intended by T. Tupper, then there was no doubt that the paper was false. And then the inquiry would be, did the prisoner make it ? The jury were referred to the facts that it was made payable to him ; it was found in his possession ; it was ofl"ered by him as a genuine paper to Harrison ; his statement, that he afterwards collected it, when in fact it was still in liis own possession ; his bearing false names, and his want of money. If they were satisfied he made the paper, then the jury were directed to inquire, did he make it at Charleston ? Here the jury were referred to tiie facts, that on its face it purports to be made at Charleston ; and that the prisoner at its date was in the city. If these questions were all found against the prisoner, then the second inquiry would arise — did he make the paper with an intent to defraud another ? They were told, if it was made without any intention of being used as genuine, then the fraudulent intention would be at once negatived, and the prisoner would be guiltless. But this ought to be manifest, before such a conclusion was adopted. For, generally, the false making of a paper, creating a liability on another, or conferring benefit on the maker, would be the evidence of a fraudulent intent. They were told, if the offer to Harrison was with a view of raising money on the check, either by passing it away, or depositing it as security for money loaned, it would shov/ *lhatthe instrument had been for- r,jcgoQ ged with a corrupt intent. And when it was thus shown that it ^ "* was intended to be used as a money security, it was in contemplation of law (a) 3 Stat. 470, § 3. 156 CHARLESTON, FEBRUARY, 1841. VOL. I. [*239 in fraud of Tupper and the Bank of Charleston. For a draft on the cashier of the Bank of Charleston, was a draft on the Bank. The effect of such an order was to withdraw the drawer's funds from the Bank; and if forged, the Bank could not credit his account with the payment ; and hence, therefore, the Bank would be defrauded by such a forgery, although it might have a remedy even against the officer. In an indict- ment for forgery, it was not necessary to make the party guilty, that his intended fraud should be fully consummated, by obtaining money, or money's worth, on the paper forged ; it was sufficient if the fraudulent intent with which the paper was forged, was made out. The jury found the prisoner guilty on the first, third, and fifth counts, for forging the check ; but acquitted him on the second, fourth, and sixth grounds, for uttering and i)uljlishing the check as true, knowing it to be forged. As to this branch, I do not therefore report my charge. The prisoner moves for a new trial, and in arrest of judgment, on the annexed grounds : GROUNDS OF APPEAL. L Because the indictment in the 1st, 3d and .'ith counts, is defective, inasmuch as the words of the act are " warrant or ordpr," in the disjunctive, and the words in the counts are "warrant and order,"' in the conjunctive; the words are not synonymous. 2. Because, in these counts, the forging is alleged to have been of a " certain paper writing," and proof was of a paper partly written and partly printed. 3. Because those counts are still farther defective, inasmuch as they do not set forth that the party wliom it is intended to defraud, if a corporation, was in the United States, or within this State; or, if a person, was resident in this State, or within the United States, 4. Because the first count is still further defective, as it alleges the intention to defraud the Bank of Charleston, S C, and the tenor of the clieck shows that it was a checiv upon the cashier of the Bank of Charleston, S. C. 5. Because the third count is further defective, because the purport and the *240l ^*^"'^'" °'" ^^"^ check in the count are at variance ; *tl)e purport being that J it was the check of Tristram 'I'upper, and the tenor showing that it was the check of T. Tupper. G. Jieoause the same count was further defective, alleging that it was to defraud 'I'ristram Tupper, and the tenor of the check showed that it was the check of T. 'I'upper. 7. Becau.so tliere was no proof where the check was forged, and the jury was instructed tiiat if they believed the prisoner made the paper, the date showed where he made it. H. Because his Honor charged the jury, that the prisoner might be convicted under tiie Act of IHOl, or 17:50, or the common law, although the oQ'euce was charged to be against the Act of Assembly, &c. Simmons, for tlie motion, cited 3 M'C. 383 ; 2 Brev. 262 ; 3 Tom. L. Die. 761 ; r. .la.-ol). ih. :5S7, 3.SS ; 4 Tuc. lilac. 249, (note,) Acts, 1736-7, P. L., 147; Acts IHOl, !• F;iiist. 37'.t. Was the indictment IVamed under the Act of ISOl ? Cited also, 2 I'.os. .V Pul. 238 ; 2 Mason U. S. R. 464. Nothing woiald make a printed pafM-r a written paper. Supp.)S(' tlie prisoner liad been ac(iviitted, and subsequent to Ills neqiiittal, a iiai)er liad been found wliolly written, could lie plead his ac- quitlal .' He could not. Tlic prisoner could not, in such a case, apprehend what he WHS to an.swer. An indictiru'ril undi-rtaking to recite, and not doing so, produces a fatal vari- ance. Mr. S. contended that there was a diflference l)etween the Acts of 1736 and 1737, and the Act of IbOl. Cited The State vs. Jloiiseal, 2 Brev. 219. It is as *24()] STATE VS. JONES. 157 essential that an indictment slionld set out tliat the person named in the indict- ment resided in the- !-^tate and in tlie United states, as tliat he forged or assisted in forging. Tlie offence of forgery is only made capital by statute. Under the fourtli ground, cited 2 IStarkie Kv. 3:U) ; 3 Brev. liej). 5(17, State vs. Waters. Aw error in a single word is fatal. Fifth ground, 2 Leaeli. Cli. Cases, 808 ; 2 hitarkie Ev. 331 ; 2 E. P. C. 992. Bailey, Attorney General, contra, on the first ground, cited 1 Brev. Rep. 35. As to the place where made, 2 Russel on Cr. 373; Foster's case, 3 M'C. 442. The first count is good *under the Act of ISOl. He cited 2 Brev. 262, State vs. r^oi-i Crank, 2 Bail. G(i. ^ Wilson, in reply, said that forgery, at common law, was the counterfeiting of any writing with a fraudulent intent, whereby another may be prejudiced. First, the forgery must be proved to be in the country, and made by the party, and his liandwi-iting proved. Tlie bare fact of finding the instrument in the country at the time, and the defendant, is not prima facie evidence that he forged it in that country. Rex vs. Park ^- Broicn, Starkie, 231 ; 2 East, P. C. 992. If an intent to defraud a corporation be alleged, an intent must be proved to defraud them in tlieir corporate cajiacity ; and if an attempt to defraud several in their individual capacities, be alleged, and it should appear that the real intention was to defraud them in their cori)(n'ate capacity, the variance will be fatal. E. P. C. 991. A warrant of attorney to forge, is forgery. Faris'' case, 1 Raym. 81 ; 2 Brev. 219, as to recital of words. As to the printing and writing, 2 B. & P. 238 ; 1 Brev. 25. Warrant or order, 2 Bail. 66 ; 2 Russ. 373 ; 3 M'C 441 ; 5 Pickering's Rep. 279 ; 2 Devereaux N. C. 444 ; 2 Southard, 744. Curia, per O'Neall, J. The different grounds of the prisoner's motion have received from the Court a deliberate consideration, and it is now my duty to give the judgment upon them. This shall be done in as few words as possible. The first ground objects to the manner in which the indictment describes the instrument forged, "a warrant and order," when the Acts of 1 736-1, and of 1801, speak of "a warrant or order." I had, on the trial below, and I have now, no doubt that the indictment sets it out pro- perly. The Legislature employed two words to describe the same thing, A warrant for tlie payment of money or the delivery of goods, is an order, and an order for the same purpose is also a warrant. Indeed, the manner in which they are used in the Acts : "Any warrant or order for the payment of money or delivery of goods," shows that one instrument was intended to be described. The same thing is supposed to be accomplished by either, and hence having the same effect, they must have the same meaning. They are synonymous, and have been always so regarded. In The St'ite vs Hj, (1 IJrev. 37,) decided in 1800, *by Waties, Bay, Johnson, Ramsey, and Trezivant, it was said, r^.^jg " that the obvious meaning of the words ' warrant or order' in the L - -• sense used in the indictment, cannot be fairly misunderstood, the words being evidently intended to express the very same thing." And they lield, although in that case they were used disjunctively, " warrant or order," yet that the indictment was good. It is clear, beyond all doubt, if they mean the same thing, they ought to be laid conjunctively, and using them otherwise might be objected to. The second ground objects that the forged instrument is described as a "paper writing," when it is partly printed and partly written. There is unquestionably nothing in this ground. Au instrument signed by a 158 CHARLESTON, FEBRUARY, 1(S41. VOL. I. [*2i2 party is, in legal parlance, the paper writing of snch a party. It is his signature to it which gives it that character, and not the body of the instrument. In a declaration on a note of hand, it is described as a note in writing, although every word, e.xcept the signature, may be in print. So of a bond partly written and partly printed, it is said to be " tiie Avriting obligatory" of the party executing it The manner in which an instrument forged is to be set out is well settled. In 3 C. L. 1040, it is said " every indictment for forgery must set forth the instrument charged as fictitious, in words and figures, so that the Court may be al)le to judge from the record, whether it is an instrument in respect of which forgery can be committed." Tiiis rule is fully complied with in this case, for the warrant and order is exactly set out. The same author, at the same page, says "though it is sutficient to aver that the defendant forged a certain writing, describing it truly, and setting forth its tenor, it seems more proper to lay it as a certain paper writing, purporting to be one that the statute on which the indictment is framed, describes." The instrument in this case is described in the very words used in this case. I have looked into Wafe7~s^ case, 3 Brev. (507, An.,) and have been per- mitted to examine the indictment on file in the clerk's office ; the bank note in that case was not described as partly printed and jiartly written. That indictment wf.s drawn by Mr. Justice Richardson, then Attorney- General, and the prisoner defended by Mr. Wilson, one of the counsel for the prisoner now before us. No objection was taken to the indict- ment on that account. The only case in which I have observed that the *94^T instrument was *described as partly printed and partly written, is -' the case oi Rex vs. Wilcox, 1 Eng. Crown Ca. 50.) In that case tlie judgment was notwithstanding arrested, because the indictment did not state what the instrument was of which the forgery was alleged to have been committed, nor how the party signing it had authority to sign it. 'J'he third ground insists that the indictment does not set out that the party whom it is inteiided to defraud, if a corporation, was in the United States, or within this State, or if a person, was resident in this t^tate, or within the United States. This particularity is supposed to be necessarv, under the Act of 1801, (2 Faust, 379,) which in the first section provides "that if any person, from and after the passing of this Act, shall, within this State, falsely make, forge or counterfeit, or willingly act or assist in the false making, forging or counterfeiting, of any deed, will, testament, bond, writing ol)ligatory, bill of exchange, promissory note for payment of money or delivery of goods, bank note, for payment of money, of any incorponitcfl or unincorporated bank orcompany within this State or any of the United States, or any endorsement or assignment of any bill of exchiiiige or promissory note for payment of money, or of any bank note fur the payment of money, of any incorporated or unincorporated bank or company within this State or any of the United States, or any nc(|uittnnce or receipt, either of money or goods, or any acceptance of any bill of exchange, or the number or principal sum of any promissory note or bank note, fur the payment of money, of any incorporated or unincorporated l)ank or company, in this State or any of the United States, ()r the number or j«rincipal sum of any accountable receipt for any note, bill or other security for the payment of money, or any warrant or *243] STATE VS. JONES. 159 order for the payment of money, or delivery of p:oods, with intention to defraud any ])erson or persons residinj^ or beiiitj; within this State or any of tlie United States, or any bank or company, corporated or nnincor- ])oratcd, within tliis State or any of tlie United States, or the President or any other officer of any such bank or company, tlien every such person, beinj}; hiwfuliy thereof convicted, shall be deemed guilty of felony, and shall suffer death, as a felon, without benefit of clerg:y." Two questions here arise, under this Act ; 1st. Is it necessary to set out the indictment that the bank or person intended *to be defrauded, is r^c),. within this State, or some other of the United States ; 2nd. Is •- •" the Act of 1801 a repeal of the Act of 1736-7 ? and if it is not, are not the 3d and 5th counts good under it? and the 1st count under the Act of 1801 ? admitting it to require that the bank to be defrauded should appear, from the indictment, to be in this State, or some other of the United States. In passing upon the first question, I would first remark that on examining AVatcrs' indictment, it seems that the learned attorney who drew it, alleged that the bank note then forged, was so forged vvitli intent to defraud an incorporated bank within this State, and in another count a person within this State. This is the only precedent to which [ have had access, and as that offence had to be covered by the Act of 1801, or not be punished capitally, I have no doubt it was so cautiously drawn from the decision in HouseaVs case, to which I shall presently refer. Aly brothers, Evans and Earle, and Chancellor Johnson, who long filled the office of Solicitors, agree that no such particularity was resorted to by them. In Houseal's case, (2 Brev. 219,) the Judges held that "the offences charged in the indictment, are not pursuant to the Act of As- sembly of 1801, and are not within the scope or intent of that Act, because the persons intended to be defrauded are not stated to be within any of the United Slates." This, I confess is a decision on the point now before us, although it is not, perhaps conclusive authority, inasmuch as that point was not necessary to the decision of the cause. Tlmt decision out of the way, I should not hesitate to say, that there is no necessity to set out that the bank or person intended to be defrauded is within the State. It is no portion of the definition of the offence ; and when a forgery is charged to be in fraud of a bank, or an individual, it is to be inferred that they are within the State, unless tlie contrary be alleged. If the proof does not correspond with the indictment, as under- stood or expressed, the prisoner would be acquitted. But I yield my own judgment to that decision, and it is therefore necessary to incpiire whether the Act of 1801 is a repeal of the Act of 1736-7. Act of 1736-7, sec. 3, (P. L. 147.) The latter is more general in the respect in whicii we -are considering it than the former. It provides, inter alia, that " to falsely make, forge or counterfeit any warrant or order for the payment of money or delivery of goods, with the intention to defraud any *person," shall be a felony. By comparing the two Acts, it will r^j:,-) ,=• be found that that part of the Act of 1801 which relates to banks ^ and companies, corporated or uncorporated, is not within the Act of 1736-7 ; and that the Act of 1801 is more restricted as to the person to be defrauded than the Act of 1736-7. The Act of 1801 contains no repealing clause, and can therefore, only be a repeal of the former Act, by implication. This is not favored, and unless there was some 160 CHARLESTON, FEBRUARY, 1841. YOL. I. [*245 contradictory or repugnant provisions, there cannot be any implication of repeal. There is nothing of this kind ; the two Acts may well stand together; the latter applying to its peculiar subject, and the former governing those falling within its provisions. They cannot be construed in pari ^materia, for they do not entirely relate to the same subject matter. This point, however, was expressly adjudged in Ilouseal's case, (2 Brev. 222,) and if that case is authority for the precision with which the offence must be laid, under the Act of 1801, it must also be for the non-repeal of the Act of 1736-7. In it, the Judges said, it does not apiiear to us that these two Acts are repugnant or contradictory, or so inconsistent as that they may not well stand together. The latter, to be sure, is more limited and confined in its operation, than the former ; but there does not seem to be any necessity for construing this latter so as to operate the repeal of the former ; nor would there be any propriety in so doing. The Acts of Congress of 1790 and 1819, were passed on the same subject, (piracy;) they differed in some of their provisions ; they were both held to bo in force ; Klintock was adjudged to be within the Act of 1790, and Smith within that of 1819, (5 Wheat. 144, 153.) The Act of 1736-7 being in force, the 3d and 5th counts are so framed as to bring the prisoner within its provisions, and, as was ruled in Ilouseal's case, his conviction on those counts must be sustained under it. The first count, however, charges the forgery to be with intent to de- fraud the Bank of Charleston, South Carolina, and this must be sustained under the Act of 1801, or fail. I think, however, that this count is suf- ficiently framed to be supported under that Act. It is sufficient, if it appear to be an incorporated bank within this State. The Bank is de- scribed by its corporate name, the Bank of Charleston, South Carolina, *«>ifi"l ^'^'^'^' sufficiently shows that it is a bank within this '^State. It ■^ is, too, incorporated by a public Act, and we are judicially to take notice and be informed of this fact, and there is, therefore, no necessity for more than the designation of the bank by its name. The first count is therefore sufficient. The fourth ground contends that the first count is defective, as it alleges the intention to defraud the Bank of Charleston, and the tenor of the forged warrant and order for the payment, shows that it was made to defraud the cashier. There is nothing in this ground. The intent of the forged writing is to withdraw the funds of the supposed signer from the bank, and this makes it a fraud intended upon it. The cashier is a mere officer representing the bank, and a i)ai)er drawn upon him as such, is drawn upon the bank. If the teller had paid the forged warrant or order in tiiis cii.se, tlie Ijank must have lost the credit of so much in a settlement with .Mr. 'I'npper, the supposed drawer. It may be that the bank might have comi»eihjd the officer making the payment to refund, and tiius replace its hjss. Still this docs not prevent the fraud from being of the bank and not the officer. The ril'ih gruuml alleges that the third count is defective, inasmuch as it supjto.ses that it sets out the forged writing as ])uri)orting to be of Tristram Tupper, when the tenor shows that it was of T. Tupper. This ground was framed upon the fourth ground, which was sustained as fatal to the indictment, in llonscal's case. But unfortunately for the prisoner, his ground here is founded in mistake ; the indictment in the third count *246] SHAW vs. DAWSEY. IGl does not set out the paper writing as purporting to be the warrant and order of Tristram Tupper, but as purporting to be a warrant and order I'or tlie payment of money, and then sets out in Jicec verba, and avers the prisoner's intention to be to defraud Tristram Tupper. There is no variance here, and the count is well framed. Tlie sixth ground is a mere variety of tlie fifth, and was intended to apply to the facts. The jury found that the paper signed T. Tui)per, was intended to represent Tristram Tupper, and thus to defraud him, and the proof too well sustains their conclusion. The seventh ground supposes there was no proof where the warrant and ordei' was made. It is only necessary to read and understand the report, to see that here again the prisoner *has no just ground of r^..'),>r complaint. Two facts were ascertained ; it purports to be made L in Charleston, and the prisoner was in Charleston at its date, and had it in possession. These were enough to show where it was made. The eighth ground supposes there was error in saying to the jury, that if the prisoner was guilty in fact, his conviction might be sustained under the Act of 1736-7, the Act of 1801, or at common law. There certainly cannot be any doubt upon this, as a legal proposition, but as it is ques- tioned, in proof of its accuracy, I will refer to Ilouseal's case, (2 Brev., 219,) and to Foster's case, (3 McC, 442.) The })risoner's motion is dismissed. Evans, Earle and Butlee, JJ., concurred. Gantt and Kichard- SON, JJ., dissented. See 3 Rich. 172. An. B. F. Siiaav rs. W. J. Dawsey. The will of a feme covert is void at law, and the Court of Common Pleas, acting as a Court of Appeals from the Ordinary, cannot entertain the question of exe- cuting a will under a deed of settlement. This is a question purely for the Court of Equity. Before O'jSTeall, J., at Georgetown, 1840. This case was an appeal from the Ordinary, on the probate of the will of Elizabeth Shaw. iSIrs Shaw was a married woman when she exe- cuted her will, but her executors claimed that under and by virtue of a deed of settlement, she was authorized to dispose of her property by a will, or deed in nature of a will, and the Ordinary sustained the will. On the case coming on for trial, his Honor ruled that the fact that testatrix was a feme covert, at the execution of the will, rendered it void at law, and that the Court of Common Pleas, acting as a Court of Ajipeals from the Ordinary, could not entertain the '^question of her executing r*9 io a will under a settlement, which was purely a question for the L'-"*^ Court of Equity, and so reversed the decree of the Ordinary without inquiry. The ground of my decision is not presented by this brief. The fifth section of the Act of 1734, (P. L., 139,) has the following provision : " Provided now, and at all times, that any will or testament, made, or to be made, by any feme covert, idiot, or any person of non-sane memory, YoL 1—12 162 CHARLESTON, FEBRUARY, 1841. YOL. I. [*248 shall uot be g-oocl or valid in law, any thing hereinbefore to the contrary notwithstanding-." By this, it seemed to me, that it was impossible to set up the will of a feme covert as such. If it is operative at all, it is as the mere execution of a power, and this becomes part of the deed. The Ordinary's decree, admitting it to probate, as a will, was ruled to be erroneous, and the jury found against the bill. GROUND OF APPEAL. That the Act of the Legislature making the Court of Common Pleas an appeal from the tribunal of the Court of Ordinary, by necessary implication has clothed it with all the powers and jurisdiction of the Court of Ordinary, and also the powers necessary and proper to make such final' decree as the nature of the case may require ; and so he submits the powers under the deed were matters for the consideration of the Court. Curia, i^er O'jSTeall, J. In England, I concede, the will of a feme covert, in execution of a power, must be proved in the Spiritual Court, before the Court of Equity will read it. (Sag. on Po., 329. But I do not understand that such a Court has original jurisdiction of the probate of such a will. It is only when such a paper is presented to the Court of Ecpiity, that it is sent down to be there proved. If, however, a different practice there prevailed, the Act of 1134, (P. L., 139,) compels us to adopt it here. For it provides " that any will or testament made, or to be made, by a feme covert, idiot, or any person of non-sane memory, shall uot be good or valid in law, any thing hereinbefore to the contrary not- withstanding." It is impossible for a Law Court to say that a paper declared by an Act of the Legislature to be void, is still to be proved and allowed to have legal effect. It can neither operate as a will or tes- *24qi t^^s"^^- ^'^^ ^'1 equity, it will be allowed, (if it has iu *other ^ respects the legal requisites,) to operate as an execution of the power contained in the deed of marriage settlement. That Court may send it down to be proved before the Ordinary, if they think it can be regarded as an execution of the power. The motion is dismissed. The whole Court concurred. B. F. Hunt, for the motion. • , contra. See Wrird vs. Glenn, 9 Rich. 127 ; Hood vs. Arclier, 1 McC. 477 ; Converse vs. Con- verse, 9 Rich. Eq. 535. An. 0. I). Allen, Ordinary, vs. Burton and IIarllee, Administrators. The Huretios to an administration bond are not liable to the heirs at law for the rent of laml bolonj^'ing to the estate of which their principal was the administra- tor, under the special circunistances. Before Evans, J., at Barnwell, Fall Term, 1840. It appeared from the evidence that one George Bruton died many years ago, and one Charles Dcwitt administered on his estate. Benja- min Bruton, the defendant's intestate, was one of Dewitt's sureties to his '249] ALLEN VS. BURTON AND HARLLEE. 163 administration bond. The distributees of George Bruton filed a bill against Dewitt to account. The accounts were made up by the Com- missioner, who reported a large balance due by Dewitt to the distributees of George Bruton. The report was confirmed, and this action was on the bond to the Ordinary, for the amount of the decree. On examining the Commissioner's report, it appeared that the Commissioner had charged Dewitt with the rent of the land belonging to his intestate's estate. This item was objected. But it was finally agreed the plaintiff should take a verdict for the amount of the decree, including the land rent, subject to the opinion of the Appeal Court, on the question ^whether the security on the administration bond was liable for r^^-A .. •' [*2o0 Northrop, (for Bellinger, ) for tlie motion, said, the only question for the Court was, wliether an administrator is liable for the rents of the lands of his intestate. All the authority which an administrator acquires over his intestate's real estate is derived from the Ordinary. He contended that it would be a confusion of the offices of administrator and guardian, if the one was permitted to interfere with the powers of the other. Cited P. L. 202 and 217. Tliore was a distinction, said Mr. N., between guardians and administrators. If the administrator is not liable for rent, neither can his surety be, 3 McC. 417 ; 1 Bail. 4U1. Patterson, contra, said, at common law, an administrator hnd no right to inter- fere with the real estate of his intestate ; but, by indirect legislation, we have gone far towards conferring that power, by the Act making real estate liable for the pay- njent of debts in the liands of the administrator. At common law, the real estate goes to the heirs at law, the personal estate to a different person. Mr. P. con- tended that in the Courts of Equity, administrators were called on to account for rents, and the sureties should be made liable for rents collected by their principal as administrator, or legislation should be had on the subject. Northrop, in reply, cited 2 Hill Law Rep. 581. Unless the estate be in debt, the administrator has nothing to do with the real estate. Curia, per Evans, J. The question which we are called upon to de- cide in this case is, whether the securities of an administrator are liable to the heirs at law, for rent of land belonging to an estate of which their principal was the administrator. The duties of an administrator, as pre- scribed by law, seem to relate entirely to the personal estate. It is, as his bond speaks, only of the goods and chattels, rights, and credits. Generally speaking, we are to resort entirely to the contract which creates a liability, in order to ascertain what that liability is. ^Taking this as our guide, it would seem the securities do not r:jc9-, undertake to become responsible for the acts of their principal in L relation to the real estate, and consequently are not chargeable with his default in this particular. In England the law casts the land, on the death of the owner, immediately on the heir. The administrator never meddles with it. In this country, these two descriptions of property are more united. Estates generally in the county consist of land and negroes, and they cannot, in general, be disunited, without materially impairing the value of both ; hence, it is almost universal, that the aclministrator continues the farm as he found it, and the profits arising from both the land and the personal estate come into his hands in tlie proceeds of the crops; sometimes he hires out the negroes and rents the land, and then the land rent is received by him in money. How far his securities 164: CHARLESTON, FEBEUART, 1841. VOL. I. [*251 would be responsible for the money thus received, I believe has never been decided ia this State. I do not propose either to discuss or to decide the question. It is not involved in this case. Here Dewitt was one of the heirs, and a tenant in common with the other. He was also the guardian of the other heir ;(«) his use of the land is referable to these characters, rather than to his character as administrator, and it appears from the decree in equity, that it was as guardian he was ordered to ac- count for the land rent. (6) Under these circumstances we are of opinion the defendants are not liable for that part of the decree. The motion for a new trial is therefore granted, unless the plaintiff shall release so much of the verdict as includes the land rent which Dewitt was decreed to pay by the order of the Court of Equity, The whole Court concurred. *252] *JoHN Seigling vs. William R. Main. The wife of a tenant is a competent witness between the Lindlord and a third person. The Act of 1827 makes the action of trover, commenced under its provisions, a proceeding in rem; and when a writ is issued and served, the chattel is in the custody of tlie haw and cannot be distrained for rent. Before O'Xeall, J., at Charleston, May Term, 18^0. This was an action of trover, for the recovery of damages for the con- version of a piano forte. It appeared that a man of the name of Taylor, having a wife then alive married a Miss Ilorton ; after their marriage they rented a house belong- ing to the defendant. They lived together for some time, when Taylor abandoned his secon^ wife. In the early part of November, Miss Ilor- ton, (alias Mrs. Taylor,) left the demised premises ; there was theu twenty-four dollars rent due, in payment of which she and her mother swore that the defendant accei)ted a bureau worth twenty-six dollars. Wiicn she left the premises, she left the bureau and the piano forte ; the latter, they swore, she did not buy from the plaintiff, but that it was, by him hired to her at four dollars per month. In this respect she was cor- roborated by the plaintiff's clerk, Mr. Ulrick, who proved that she hired the piano forte in tiie month of May. She was contradicted by Tenent, Singletary and iMr. Main, the son of the defendant, all of whom proved that tliey iiad heard her say she had ])aid one hundred and seventy-live dollars or one hundred and seventy dollars for it, and young Mr. Main and Singletary I)oth said, that she said, she had left it in pawn for the rent. Tlic plaintiff demanded the pianoforte from the defendant; he refused to give it up, unless twenty dollars rent was paid ; the plaintiff made the alhdavit required by the Act of ]s27,(r) and issued a bail writ, in trover, wliich was e.vecuted l)y the defendant entering into the bail bond required (a) See 2 Hill, Ch., 1570. (/>) See Supr.i, !)1, and cases in order there. An. (c) G Stat., 237. An. ^252] SEIGLING VS. MAIN. 165 by the Act, on tlie Cth of December, 1839; subsequently the defendant executed his distress warrant, (whieli he had previously issued,) and seized and sold the piano forte for the rent which he alleged to be in ar- rear. The value of the piano forte was proved to be from one hundred and fifty dollars to one hundred and seventy dollars. When Miss Hor- ton, (alias Mrs. Taylor,) was offered as a witness, she was objected to by the defendant, on the ground that she was the wife of the tenant. I thought she was admissible, on two grounds, 1st. according to* r^gpiq her own proof, she was not the 'wife of Taylor. 2nd. If she was L liis wife, still she was competent. For he had no interest in the event of this suit. The recovery here by the plaintiff would not be evidence for him, that there was no rent in arrear. If the defendant succeeded, then indeed it would show, that the rent was satisfied by the sale of the piano forte ; but in that point of view, Taylor, would, in testifying for the plaintiff, be testifying against his own interest, and the defendant could not, therefore, object to him. The case of O^Farrell vs. Nance, (2 Hill, 484,) is full to the point, that the tenant is a competent witness, between the landlord and a third person. If the husband would have been com- petent, it followed that the wife must also be. The jury were instructed, 1st, to enquire, was there any rent in arrear. If Miss Ilorton, (alias Mrs Taylor,) was believed, it was paid by the delivery of the bureau. The question of her credit was distinctly sub- mitted to the jury, and her testimony was contrasted with that contra- dicting her. If there was no rent in arrear, it would be only necessary then to inquire — to whom did the piano belong, and how much was it worth ? Here again, the case depended on the credit of Miss Ilorton, (alias Mrs. Taylor,) and Mr. Ulrick, as compared with the testimony of the defendant's son, Messrs. Tenent and Singletary. If the jury should conclude, 1st, that there was rent in arrear, and 2d, that the piano forte was the property of the plaintiff, then it would be necessary to enquire, had the landlord the right to seize and sell it under his warrant of dis- tress, after the service of the writ in trover ? I thought he had not. The Act of '27 makes the action of trover, commenced under its pro- visions, a proceeding in 7'cni (a) So soon, therefore, as the writ was issued and served, it had the elfect of placing the chattel in the custody of the law ; and in that point of view, it was not the subject of distress. It was a mistake to suppose, that the landlord has any lien on the goods of a third person, ujjon the demised premises ; he may, while they remain, distrain them for rent arrear. But if he prevent their removal, and thus coni})cl the owner to have them on the premises, he could not take ad- vantage of his own wrong and distrain them. So, too, if he convert them to his own use, he cannot afterwards recur to his own right of dis- tress. In any of these points of view, I thought the plaintiff, on this question, entitled to *recover. The jury found for the plaintiff, r*.-):;! the value of the piano forte, with interest from the time of con- ^ version. The defendant appeals, on the annexed grounds : OROUNDS OF APPEAL. 1. His Honor, the presiding Judge, refused to exclude the wife of the tenant (a) 2 Sh., 34 ; 1 Strob., 239 ; 3 Hill, 12. An. 166 CHARLESTON, FEBRUARY, 1841. VOL. L [*254: but permitted her to testify and swear off the debt to the hindlord, and was therefore interested. 2. His Honor erred, in charging the jury, that although the articles dis- trained were in the house hired by the tenant, and the house and articles in the house then (at the time of the demand) in possession of the landlord, there was no lien existing upon the articles, and the levy of the distress warrant could only create such lien, 3. The verdict was against law and evidence. Wilson, for the motion, said that the wife of the tenant was an incompetent witness to give evidence between the landlord and a third person. He cited 2 Term Rep., 263; 4th ib., 678. Trover, he contended, was an action of trespass, and not a proceeding in rem. Until the rent is paid, (when due, ) the lien of the landlord is unimpiiired. The lien of the landlord does not attach without a distress warrant. McWillie vs. Hudson, 1 Tread. Con. Eep., 119 ; 3 C. & P., 558. Rice, contra, contended that the tenant was a competent witness to give evidence between the landlord and a third person, and it followed, of course, that if he was, the wife would also be. Here the witness was not the wife of the tenant and could not be excluded. Curia, per O'Neall, J. The Court is satisfied with the decision of the case below. The point ruled as to the competency of the witness, and the instruc- tions of the presiding Judge, are regarded as riglit by this Court. The motion is dismissed. The whole Court concurred. CASES AT LAW AEGUEU AND DETERMINED IN THE COURT OF APPExllS OF SOUTH CAROLINA. Columbb, gTajj, 1841. JUDGES PRESENT. HON. RICHARD GANTT, HON. JOSIAH J. EVANS, " JOHN S. RICHARDSON, " ANDREW PICKENS BUTLER. " JOHN BOLTON O'NEALL, Mr, .Justice Eakle was absent, lioldiiig tlie Circuit Court of Common Pleas in Charleston. ^ Leroy Secrist, Sheriff, vs. H. Twitty. A Sheriff's execution book is, on account of its official character, received in evidence, as proving in general the official entries contained in it. So, too, an entry on an execution is admissible in evidence as part of the record. The entry of the sale made by the Sheriff, containing the name of the purchaser, is as effectual a signing, as if the Sheriff had written the name of the purchaser to a formal contract. Before Earle, J., at Lancaster, Fall Term, 18-40. This was a summary process to recover the amount or price of a tract of land, bid off at sheriff's sale by the defendant. The levy on the lands in question, with a sufficient description, was endorsed on the execution, under the hand of the sheriff, and was also entered in the same words in the execution book. There followed an entry in these words : "J. 11. *Hudson's land bought by lliram r^^.-p Twitty, at forty-two dollars." This was not signed by the sheriff. ^ "'^ Hudson's land was a portion of the land levied on and described in a for- mer entry. The Court thought the note in writing insufficient, under the statute of frauds, and ordered a nonsuit. The plaiutifl' appealed, on the ground : That the entry in the execution book, in connection with the entries on the execution, were a sufficient note in handwriting, within the provisious of the statute of frauds, to enable the plaintiff to recover. 168 COLUMBIA, MAY, 1841. VOL. I. [*2o6 Curia, 2yer O'Neill, J. Before the Act of 1839, p. 42, (a) there was no law which required the sheriff to keep a sales book. It may be since the passage of that Act, that to charge a purchaser, at sheriif's sale, the entry must be found in the book thus directed to be kept. The sales in these cases were before the passage of that Act, and must be decided without any i-eference to it. The cases of Hall vs. O^Hanlon, (2 Brev. B. 46,) and of Gardner vs. Saundeis, (ib. 180,) in supporting sales made by the sheriff, referred to the vendue Act, and in analogy to it, it was said that "sheriff's who keep regular books, and accounts of sales, and are public officers, acting under the sanction of an oath, and the confidential servants of the community, may be fairly considered as quasi vendue masters, in relation to their sales under execution." In Alinter vs. Dent, (2 Bail. 292,) it was held that the provisions of the vendue Act, requiring seven days' notice of a re-sale, did not apply to sherift''s sales. From that case, as well as the case of Day vs. Hendrix, decided in 1830, it will be seen, that the Court attached no other importance to the vendue Act, than as in support of the common law rule, that an auctioneer is an agent of the vendor and vendee, so as to bind them by the entry of sale. Ileadoios vs. Meadoivs, (3d McOord, 458.) In the Court of Equity, the sales by the commis- sioner, or mastei', are very analogous to sales made by the sheriff at law. In that Court, in the case of Gordon vs. Saunders and others, it was ruled, that where the commissioner kept no sales book, a sale of land made by him, and entered upon a loose slip of paper, which had been ^9-.^-, lost, should be enforced, (2 McC. C. Tx. 164.) That *case goes ■^ much further than the cases now before us. For here the entries are found in the shcriff''s execution book. This was as much as could be asked, even under the vendue Act ; for that Act only requires the sale to l)e entered in the books of the vendue master. If the sheriff is a vendue master, his execution book, before 1839, was quite sufficient for his entry of sale. But I think, as I have before said, that no other importance should be attached to the vendue Act, in this class of cases, than as fur- nishing a reason why we should support, at common law, sheriff's sales, when evidenced by a written entry made by the sheriff. The entry of the sale on the execution being a proper return to it, might, I think, before 1839, be very properly regarded as a sufficient entry to bind the purchaser. For in the absence of any other law, requiring a different entry, the statute of frauds would be satisfied by such an one. I do not think, that to make the former purchaser liable, the re-sale was required to be entered. It is sufficient if a rc-salc has in fact been made, and complied with ; for the purchaser's liability depends on the sale to himself; if that be suflicicntly entered, he is charged upon it. The re-sale is only resorted to, to ascertain the damages sustained on the sale by the ]iurchaser's failure to comply. That made, and complied with, might be proved even without an entry. The note or memorandum rcfpiircd by the statute, is sufficiently signed, if the name of the party to be charged is signed by liimself, or by some one authorized by him. The entry of the sale made I)y the sheriff, containing the name of the pur- chaser, is as efTcctual a signing, as if the sheriff had written the name of («) 11 Stat., 37, 2 C. An. *257] CAIN vs. SPANN. 169 the purchaser to a formal contract to haj. The sheriff's execution book is, on account of its official character, received in evidence, as proving, in general, the official entries contained in it. So, too, an entry on an execution is admissible in evidence, as part of the record. The motions to set aside the nonsuits are granted. The whole Court concurred. Wricjld and JllcJIuUdn, for the motion, submitted the case, ("after read- ing the brief) without argument. J. Z. Hammond, contra, was absent. See Christie vs. Simpson, 1 Rich., 408. Elfe vs. Gadsden, 2 Rich., 378; 1 Strob., 230. Yongue Ys. Cathcart, 2 Strob., 222; 3 Strob., 30G. An. *Mary Cain, Executrix, vs. R. R. Spann, [*258 He who takes a note, after it is due, takes it subject to any defence which the maker can set np against the payee ; and when the action is in the name of an endorser or bearer, to entitle the defendant to set np, by way of discount, any matter between him and the payee, he must prove that the note was transferred after due, and tliat the matter of defence existed between them at the time of the transfer. Before Earle, J., at Sunipter, Spring Term, 1841. Assumpsit on a note of hand of defendant, dated ITth January, 183T, payable to John Ramsay, or bearer, for $325 63, due at one day, and transferred, after due, to the plaintiff's testator. The defendant offered by way of discount under notice, a note drawn by Ramsay, 19th Decem- ber, 1838, payable to L. M. Spann, or bearer, due at one day, and trans- ferred to defendant, tth January, 1839. The time when the note sued on was transferred Ijy Ramsay to the plaintiff's testator, was not proved. It was still in Ramsay's hands as late as the 25th December, 1838, and after the date of his note to L. M. S[)ann, There was no proof that he retained it, when the latter note was transferred to the defendant ; much less was there any proof of an agreement, or understanding, Ijetween Ramsay and the defendant, that the notes should be discounted, the one against the other. "Without such proof, and without knowledge on the part of the plaintiff''s testator, when he obtained the note from Ramsay, that there existed any counter claim by way of discount, I held that the fact of the note sued on being transferred after due, had no other effect than to enable the defendant to avail himself of the want or failure of consideration, or of some equitable defence arising out of the transaction on account of which the note was given, and did not enable the defend- ant to set up by way of discount, any other separate and independent demand, which he might have or acquire against the payee. The ])laintift' offered in evidence a letter of 31st January, 1840, from the defendant to the plaintiff herself, or her testator, asking forbearance, and promising to pay. The jury, under the instructions of the Court, found for the plaintiff, disallowing the discount. no COLUMBIA, MAY, 1841. VOL. I. [*258 The defendant appeals on the following grounds : *9-qi *!• Because his Honor erred in charging the jury that the note of J John Ramsay, the payee of the note sued upon, could not be set up as a matter of discount in the said action. 2. Because his Honor charged the jury that, even admitting the plaintiff's testator i-eceived the note from John Ramsay, after the note of Ramsay had been transferred to defendant, the defendant could not set it up as a discount. 3. Because the note sued upon, having been transferred after due, the defendant had a right to the discount oflered, and his Honor should have so charged the jury, Moses and Miller, for tlie motion, contended that the question in this case was, whether the discount offered by defendant, is a discount under the discount law. The defendant stands in the same position that he would, if he had been sued by the original payee. Cited in support, 3 Term Rep. 82; 7 id., 429, Broivn vs. Davis; also 3 Kent, 91; Chitty on Bills, 143; McCaskill vs. Ballard, decided at May Term, 1832, at Columbia; 7 Term Rep., 430; 5 John., 118, 0' Callaghan vs. Sawyer; 9 John., 244. The endorser takes the note subject to all the equity and all the discounts that the party might offer against the original payee; 8 John., 454; Nixon vs. English, 3 McCord, 549; Perry vs. Mays, 2 Bail., 354. De Saiissure and Garden, contra. The question arises strictly under our discount law, and we contend that there are no reported cases settling the question. It does not appear that the discount note was traded prior to the transfer of the note sued upon. Cited Williams ^- Co. vs. Hare, 2 Hill, 483 ; Loicry vs. Williamson, 3 McCord, 247 and 249. Cited also, the Discount Act. Kenedy and wife vs. Cun- ningham, Cheves' Rep., 50. The note being payable to bearer, the plaintiff has a legal estate in the note so soon as it passes into his possession. The question involved in the cases of Nixon vs. Englisli, 3 McC, 549, and Perry vs. Mays, 2 Bail., 354, do not apply to this case. If Ramsay was the plaintiff, he might offer the discount, and the Court would sustain it ; but the note having been transferred hy Ramsay, it was incompetent for the holder to offer it as a discount to the note in question. *9rm "^ Curia, per Evans, J, He who takes a note after it is clue, -* takes it subject to any defence which the maker can set up against the payee ; and according to my understanding of the law, where the action is in the name of an endorser, or bearer, to entitle the defendant to set up by way of discount, any matter between him and the payee, he must prove that the note was transferred after due, and that the matter of defence existed between them at the time of the transfer. The defend- ant has not l>rought himself within these principles. According to the report, there was evidence that the note was transferred to Cain after it was due, but there was none that Spann was the owner of the note offered in discount, at the time his note was transferred to the plaintiff's testator, Witliuut such proof, we think the presiding judge was right in charging "that the fact of the note sued on being transferred after due, had no other effect than to enable the defendant to avail himself of the want of faihire of consideration, or of some equitable defence arising out of the transaction on account of which the note was given." The grounds of appeal imply that the presiding judge charged the jury, that the discount could not be allowed, even if Spann was the owner of it at the time his note was transferred to Cain. It is likely, from the report, that he does entertain tliat opinion, but it was not involved in the facts of the case, and even if wrong, furnishes no ground for a new trial. It could have '2G0] CAIN VS. SPANN. 171 been no more than an incidental expression of an opinion on a question not involved in the case. I have assumed, in stating the law as applicahle to this case, (a) that it devolved upon the defendant to prove the facts which entitle him to liis defence— the transfer of the note sued on, after it was due, and that at the time of the transfer, he was the owner of Ramsay's note to L. M. Spann. I have always so held on the circuit, and supposed it well set- tled and understood by the profession, but as doubt has been expressed on the sul)ject, I will endeavor to illustrate it. In the ordinary mode of declaring? on a note, nothinf;^ appears on the record that the note was not transferred otherwise than in the regular course of trade, before it was due. The plaintiff is bound to prove no more than the making and transfer of the note. It was never heard of, that he was bound to prove when he became the owner of the note. Upon the proof of the making *and transfer of the note, the plaintiff is pr'ima facie entitled to r^.:)p^ recover. His action can only be defeated, by showing some de- L fence on the part of the defendant. By the rules of evidence, he who affirms a proposition, is bound to prove it. Spann, by his discount, affirms that Ramsay owes him, and that he is entitled to set off Ramsay's debt against the plaintiff's demand. To do this, he must make out by proof everything necessary to his defence. A discount is a cross action, (6) in which the defendant is the actor, and by him everything must lie proved necessary to maintain his cross action. It was not enough to show that Ramsay was indebted to him at the time of the trial, by the production of the note, but he must prove there were mutual debts subsisting between them at the same time ; that is, that Ramsay was indebted to him the note offered in discount, at the same time that he owed Ramsay the note which was transferred to Cain. If Spann got the note of Ramsay, after liis own note had been transferred, then the debts were not mutual, and cannot be set off, one against the other. The defendant having failed to make this proof, his discount cannot be allowed, and the motion is dismissed. O'Neall and Butler, JJ., concurred. Richardson, J., dissenting. — What is the principle of law upon which the Judge charged the jury? Upon that principle, whatever it was, the verdict is placed, and can stand only if the principle be correct. The Judge states the case as follows: "Assumpsit on a note of hand, of defendant, dated Hth January, 183T, payable to John Ramsay, or bearer, for S325 63, due at one day, and transferred, after due, to plaintiff's testator. The defendant offered, by way of discount, under notice, a note drawn by Ramsay, 19th December, 1838, payable to L. ]M. Spann, or bearer, due at one day, and transferred to the defendant, Tth January, 1839. The time when the note sued on was transferred by Ramsay to the plaintiff's testator, was not proved. It was still in Ramsay's hands as late as the 25th December, 1838, and six days after the date of his note to L. M. Spann. There was no proof that he retained it, when the latter note was transferred to the defendant; much less was there any proof of an agreement or understanding between (a) See H Rich., 381, Jeivry vs. Strauss. An. (6) Sup. 29. All. 172 COLUMBIA, MAT, 1841. YOL. I. [*261 *c)C9l Ramsay and the defendant, that the notes shoukl be discounted,* " "-^ the one against the other. Without such proof, and without knowledge on the part of plaintiff's testator, when he obtained the note from Ramsay, that there existed any counter claim by way of discount, I held, that the fact of the note sued on, being transferred after due, had no other effect than to enable the defendant to avail himself of the want or failure of consideration, or of some equitable defence arising out of the transaction on account of which the note was given, and did not enable the defendant to set up, by way of discount, any other separate and independent demand which he might have or acquire against the payee. " The plaintiff offered in evidence, a letter of 31st January, 1840, from the defendant to the plaintiff herself, or her testator, asking forbearance, and promising to pay." It is plain that the case presented this question of law : Was it neces- sary for Spann to prove that, at the date of his discount, (7th January, 1839,) Ramsay still retained his note? or was the time when Ramsay transferred that note to Cain, a question for the jury, under attending circumstances ? I maintain that the jury alone should have decided the fact from the circumstances. But the charge to the jury presupposes that no defence can be set up, but such as was intrinsic to the note, or would arise out of the equity of that single transaction ; unless by agreement with or notice to the endorsee, or unless it be proved that Ramsay still held Spann's note, at the time Spann took the transfer of Ramsay's note. This would exclude, of course, all discount, and balancing of accounts, however just, between the maker, (Spann the payee, and J. Ramsay,) as extrinsic to the matter of the note, tinless Spann proved expressly, that his note was in the hands of Ramsay on the 7th of January, 1839. Rut, is this the proper principle ? The purport of the endorsement of a note already due, is that of an order to pay the money to the endorsee; which order, the maker has, by virtue of his note, already accepted. But only to the extent of his true indebtedness at the time of the endorsement. It amounts to the acceptance of a bill, if so mucli be due the drawer: and the note is to be settled by the adjustment of their mutual accounts, to be made with the endorsee, instead of the payee. Where a negotiable *2C31 ^^^^ '^ endorsed by the payee, *before due, the maker is confined to the written terms of his note. Whatever be his counter demand upon the payee, the note has become his bill of credit, for so much money, which he must pay to the endorsee, without abatement. But, whenever the note has been endorsed after due, the endorsee receives it upon the faith and credit of the endorser alone, and the maker may sot up any defence that he could have done against the payee at the time of transfer. Williams; rfi Co. vs. Hare, (2 Hill, 483;) 3 terra, 82; 7 T. 420; Chitty, 143; 3 Kent, 91; 3 McC. 549; 2 Bail. 354. The true inrpiiry, then, in the case, should have been, whether the discount of the defendant would have been good and available against John Ram- say at the time of the transfer. Suppose, for example, the endorsee, upon receiving the note from John Ramsay, and ignorant of any dis- count, ami, as the fact was, without any notice or agreement, had called on the maker (Spann) for payment; and Spaun had presented Kauisay's *263] HARPER VS. SCUDDT. 113 note, or tlic note and the balance in money, would not Spann's note have been paid in full ? or pro tanto according to liis tender? And, for the purposes of the charge to the jury, this was substantially the case before the Court. For the jury were to decide, whether Spann received Ratn- say's note in due time, to render it available against the endorsee, and could have so presented it. This should have been the question. And Spann's subsequent letter of olst January, 1840, may, very possibly, have indicated the fact against him, But that remains to be tried by the jury. If this be not the true question, then any bank may sue A, upon his note, endorsed by another bank, after due, and A cannot bring in dis- count the bills of the endorsing bank, to meet his own note ; and, if so, any broken bank has only to let its discounted notes become due, endorse them over for value at a time unspecified, and the makers cannot dis- count the bills of such bank, collected for the purpose of paying these very notes, unless the makers can also prove the precise time when their own notes had been endorsed. In the case before us, if Cain truly held Spann's note before the 7th of January, he could have i)roved the fact, by showing that he had the note in possession. But Si)ann could only disprove it by circumstances adduced, and leave the presumption to the jury. In such case, the notes should, or at least, may, discount each *other, just as if Spann's note remained in the hands of llamsay, ri^c^r,. unless it appear that his note had been transferred to Cain before L "^ the 7th of January. If it be not so, then Cain took the dishonored note upon the credit, not of the endorser, but the maker, which reverses the law of the case, (see 3 Term, 82,) and would throw the burden of express proof upon the defendant, who had only undertaken to pay what he owed Ramsay at the time of the transfer to Cain, It is unnecessary to go so far as to say, that after Si)ann proved that Eamsay held the note as late as the 25th December, 1838, at least, the burden of proving that Cain received it before the 7th January, fell upon the plaintiff. But I do con- ceive it was the very point of the case, and for the jury to decide, under the facts, before the Court; and that, therefore, there ought to be a new trial, for error in the charge, in supposing that the burden lay altogether upon the defendant. Gannt, J., concurred. J. A. IIarper vs. J, W. SCUDDY. There is nothing in the attachment law, which precludes a defendant from availing himself, (on a motion,) of any defect- or irregularity in the process of attach- ment. Before Evans, J., at Abbeville, Spring Term, 1841. Tliis was a domestic attachment, issued by a magistrate, and directed to the Sherij/ of Abbeville district. It was made returnable on the 2d Monday in March. The Court sits on the 3d Monday. A motion was made to set it aside, on the ground that it should have been directed to 174 COLUMBIA, MAY, 1841. VOL. I. [*264 ^g„--, all and singular the *sherifrs of the State, and was not returnable ' " -J to any terni of the Court. The motion was granted ; and' the plain- tiff appeals : 1. Because Ins FTonor erred in holding that the defendant in attachment, by motion to the Court, without appearance, by special bail, to the action, may take advantage of a mere irregularity in the proceedings. 2. Becausehis Honor held that the defendant being required to appear the second instead of the third Monday in March, was a defect which rendered the proceedings void, and showed that the Court had no jurisdiction. Wilson, for the Biotion, cited Acts 1839, (a) and contended that there was no defect in the process. Act 89; 2 Brev. 1G8. It would be good at the nest term after the return. Irregularity or error in an attachment, cannot be taken advantage of by motion. It must be by special plea and appearance. Harp. Rep. 368, Acock vs. Linn ^• Lanchdoicn ; 3 Cliitty's Genl. Practice, 74 ; Clieves' Eep. 5, 6. The defendant is no party so long as the attachment is conliiied to his goods. Burt, contra. Cwrm, per Evans, J. In this case a domestic attachment was set aside on the ground that it was made returnable to the next Court of Common Pleas, to be holden at Abbeville court house oa the second Monday in March. By law, the Court of Abbeville sits on the third Monday. There can be no doubt that, in ordinary cases, this objection is fatal, and that the service would be set aside on motion. But it is supposed because this is an attachment, a different rule is to prevail. The grounds of appeal assume that the defendant cannot be heard in Court, until he appears and dissolves the attachment by giving special bail. If this proposition be true, then he who is made a party in Court, by attaching his property, is shut out from any of those exceptions of which adcanlage van only be taken by motion, for when he appears, his mouth is closed as to any irregularily in the process, be it ever so great. ;^cjpp-| *There is nothing in the attachment laws which admits of any ^ such construction. The attachment issues, because process cannot be served i)crsonally, or by leaving a copy, and by attaching his goods instead of his ))erson, the defendant is made a party in Court ; but I do not fuid anything in the attachment Acts which takes from him the privilege of other defendants, except that he cannot have his property restored, or dissolve the attachment, otherwise than by appearance and special bail. In the construction of these Acts, our Courts have gone no further than to say, they will not hear such objections from the garnishees or strangers. To this effect the case of i'Wer vs. Jone.s, (1 McC. 116,) Cumberford vs. Uall, (1 McC. 845,) McBryde vs. Floyd, (2 Bailey, 20n,) Chambers vs. MvKee, (1 Ilill, 229.) In none of these, is the right of the defendant to except to the irregu- larily denied, and in some of them it is expressly recognized. The motion to reverse the decision of the Circuit Court is refused. ■^riie whole Court concurred. !?oo infra, AW ; 4 Ktrob. 290 ; 4 Kich. OGl ; 5 Rich. G4, 478, as to Mondau ; 2 McM. 339. An. (a) 11 Stat. 18, 0« ; 7 Stat. 254, ?§ 3, 4. An. ^267] MITCHELL & CO. VS. m']5EE & IRVIN. 175 *Andrew Mitchell & Co. vs. McBee & Irvin. [=^2G7 Where tlie vendor sends goods, with his price marked upon them, and tlicy are accepted by the vendee, the law will imply that they were taken on the vendor's terms ; unless it should appear otherwise, from the course of jirevious dealing between the same parties, or from some custom with which both were acquainted. Before Gantt, J., at Greeuvillo, Spring Term, 1841. A suggestion of fraud to a return made by a garnishee, in a case of attaclunent. Tlie following statement of facts appears from the report of the Circuit Judge. McBee & Irvin, co-partners in trade, as merchants, sent an order for goods to a merchant in New York, by the name of Purdy. Certain goods were sent on by Purdy. Shortly after the arrival of the goods, the house of Andrew Mitchell & Co., merchants of New York, sued out an attachment against Purdy, a copy of which was served on the firm of McBee & Irvin. McBee & Irvin, soon after the arrival of the goods, addressed a letter to Purdy, stating that some of the goods forwarded were such as were not embraced in their order to him, and such as were contained in their order were charged at too high a rate. Purdy, on the receipt of the letter, wrote to Mr. Nicol, a correct and regular bred merchant of the village of Greenville, requesting him to call on McBee & Irvin, and effect a settlement with them, which Mr. Nicol stated could have been made but for the attachment which had been served. In Purdy's letter to Nicol, he did not say that the goods ordered had not been charged too high, nor did he deny that in the invoice of goods sent, articles were inserted which had not been ordered. On these sub- jects he was silent. The authority given to Nicol, by Purdy, to effect a settlement with McBee & Irvin, and to take less than what the goods were charged at, carried with it a tacit admission that the complaints of McBee & Irvin were well founded. Irvin, the garnishee, made his return to the attachment served on the house of which he was a member : to this return there was a suggestion of fraud, and an issue made up. ♦Application was made, in open court, before the trial was r-^.)f>Q proceeded in, to amend the return, by the insertion of two small L articles which had been overlooked and omitted to be inserted by mis- take. I thought the application most reasonable, and did not hesitate to allow the amendment to be made, although strenuously opposed by the counsel for the plaintiff's in attachment. A bill of particulars had been made out by the house of McBee & Irvin, which was submitted to the inspection of merchants, and who deemed the charges therein such as were correct and proper. The general scope of the evidence went to show the truth of the fact that many of the articles had been too highly charged for. I saw nothing in the evidence that would justify the conclusion that the return of the garnishee was fraudulent, or otherwise than what the prin- ciples of justice and law recognized. My charge to the jury corresponded with this view of the case, and the jury made a deduction, which ap- peared to me to be rational and proper, and well supported by the testi- money. 176 COLUMBIA, MAT, 1841. VOL. I. [*268 The grounds of appeal consist, 1st In the Court having granted leave to amend the return of the garnishees. The law would be converted into an engine of oppression, if such an application, founded on principles of honesty and correctness, could not be received and acted on. On the first ground for a new trial, I did not think that McBee & Irvin were bound by force of the attachment, to submit to the gross im- position attempted to be practiced upon them, either by Purdy or certain plaintiffs in attachment. On the second ground, I have only to observe that the objection grows out of testimony which was introduced by the counsel for the plaintiifs in attachment, (the evidence of Nicol,) and was clearly proper for the consideration of the jury. The attachment which had been levied neither destroyed the competency or credibility of Purdy as a witness. His Honor will take notice that we will, at the next Court of Appeals, move to reverse his order, granting leave to amend, without paying costs, after issue joined ; and for a new trial, on the following grounds : *9f Ql *^- I^scause his Honor charged the jury that although the defendants " J did receive and appropriate the goods to their use, with a full knowledge of the prices charged for them, they were not bound to pay those prices, but might take them at the valuation of the witnessps. 2. Because his Honor permitted the declarations of H. Purdy, the absent debtor, made after the execution of the writ of attachment, to go to the jury ; and because he told the jury, the affidavit of the respectable firm of McBee & Irvin, was sulficient to satisfy them the return was not false, and to find their return false, would be e(|ual to finding them guilty of perjury. 3. Because the verdict is contrary to law and evidence. Clioice, for motion, cited, 2 Starkie Ev. 878, note ; Id. 877 ; 4 Esj). Rep. 95, letter C; 1 Stark. 257. A contract cannot be rescinded in part. Chitty on Cent. 275-76 ; Saunders on Pleading, 544 ; 2 Bail. 4, Robison vs. Jones. D. F. Perry, contra, cited 1 Rice's Dig. 80. A garnishee may amend his return. Cwn'a per Butler, J. In addition to the facts stated in the report, it was admitted in the argument of this case, that defendants were opening the goods when the attachment was served on them. Of course, they then had it in their power to refuse to take such goods as were not ordered, and others charged at higher prices than they were willing to give. Instead of doing this, and giving notice to Purdy of their ol)jec- lion and refusal to accejjt the good, they received and appropriated them. Some days aiterwards, but when the rights of the })arties were fixed under the contract, they wrote to Purdy, intimating their dissatis- faction. By their conduct they made themselves parties to a contest whicli they might have left with the ])laiutiffs and Purdy, and have rendered themselves accountable for the value of the goods, under the terms of tlie contract l)etween themselves and Purdy. They have volun- tarily assumed a jiosition which they could well have avoided, for they could liavc restricted their liability to pay only for the goods which they ^g.,^-. had ordered, and wliich they *were willing to receive at the prices "' -I specified, leaving the others in the hands of the sheriff, to be dis- posed of under the order and judgment of the Court. Having accepted all the goods, the defendants have given to the plaintiifs the power to insist upon and enforce Purdy's rights, whatever they were at the time *2'?0] MITCHELL & CO. VS. m'bEE & IRVIN. 177 the goods were received ; and it was not in Purdy's power to defeat these rights, by any arrangement, which he niiglit chose to enter into with a view to prejudice the plaintiti's. By tlie voluntary act of the defendants, the plaintiffs are placed in a situation in which they can insist on their absent debtor's strict legal rights. The question is, what are these rights, by the legal operation of the contract under which the goods were received ? The vendor sent them on with their prices specified in the invoice that accompanied them. One party says, in' effect, I send you these goods, at the prices mentioned ; and if you take them, you know what you have to pay. The other party, the vendee, says, no, although I did not order these particular goods, I will take them, but I will not pay your prices, I will have the goods subject to another valuation, against your consent, and will pay you in Greenville, as much as they are estimated to be worth. The one insists on his own prices, perhaps according to valuation in New York, and the other on a quantum valehat, to be determined at Greenville, the place of consignment In an action for goods sold and delivered, where no price was agreed on by the contracting parties, or where the vendor has not put a specific price on them when he sends them to the vendee, the vendor must recover, and quantum valehat to be ascertained by evidence on the trial. But when the pi'ice has been agreed on, or where the vendor sends goods with his prices marked upon them, and they are accepted by the vendee, the law will imply that they were taken on the vendor's terras, unless it should appear from the course of previous dealing between the same parties, or from some custom with which both wei'e acquainted, that the defendants had a right to reduce the prices to a quantum valebat, at the place where they were received. For in such case the contract might be supposed to have been made in reference to the custom or course of dealing. In the absence of these, the general principles of the law must prevail. It seems to me, that no one should be obliged to part with liis property against *his consent, except on his own terms ; r^o-i and if the defendants in this case can take these goods and put '- their own prices on them, or by the estimate of their own witnesses, can reduce the prices, the vendor might be compelled to part with his pro- perty at prices lower than he was willing to take, and below their true valuation. It is enough to say that the vendor could not compel the vendees to take the goods against their consent, upon his own terms, and it is reasonable that he should not be deprived of them against his consent, upon the terms of the defendants. The case stands thus be- tween the parties : The defendants sent to Purdyfor certain goods of a particular description, he sends others not ordered or contracted for, and at higher prices than were implied in the contract, and the defend- ants receive and appropriate them. Now, what should be law on the subject ? I have examined the cases referred to by Mr. Starkie, in his 2d vol. on Ev. p. 640, and I think he has extracted and laid down the principle correctly. " Where there has been a special contract as to the nature, quality and price of goods, and those which have been delivered do not correspond with the contract, it is clear the vendee has a right to repudiate goods so delivered in toto ; for having contracted for one thing the vendor cannot substitute a contract for some thing else ; and therefore, if he return the goods, or give notice to the vendor to take them back, it Vol. I.— 13 178 COLUMBIA, MAT, 1841. VOL. I. [*271 is clear the vendor cannot recover," &c. If, however, the vendee in such cases choose to keep the goods, he cannot reduce the special contract to a mere quantum valebat, &c., he must pay the price or return the goods. The question of amendment was within the discretion of the Judge below. In this view of the law, we think a new trial should be granted in this case, which is accordingly ordered. O'Neall and EvAis^s, JJ., concurred. *2Y2] *Baker, Johnson & Co. vs. Abner Bushnell.(g) Where an applicant for the insolvent debtors' Act has been discharged by order of the Circuit Court, and the order for his discharge has been set aside by the Appeal Court, the rights that he acquired by the order, ceased and determined when it was reversed by the Appeal Court. A defendant who is a party to an appeal, is bound to take notice of the result of the appeal ; and where a defendant, pending an appeal, has left the "prison rules," so soon as the api^eal is decided against him, he should return within the rules ; otherwise his bond is forfeited. Before Evans, J., at Edgefield, Spring Term, 1841. This was an application for discharge, nnder the insolvent debtors' Act of 1758. It appears that the application was made at the preceding term, and the plaintitf had filed a suggestion, alleging certain objections to the discharge. The presiding judge had ordered the discharge, and the schedule was accordingly assigned, and the oath administered. For some cause, this order was reversed by the Appeal Court, (6) but in the mean time, the defendant, who had given security to remain within the l)rison rules, had gone without them, and did not return again until within a few days before this application was made at this term. It did not appear that any notice had been given him of a reversal of the former order made for his discharge. On the first or second day of the terra, an application was made to me, for leave to amend the suggestion, by adding new objections to his dis- charge. This I refused, as likely to operate a delay prejudicial to the defendant. During the term, the issues on the suggestion were tried by the jury, and all of them found for the defendant, when his discharge was moved for. The plaintiffs objected, that since the last Court the defend- ant had gone without the prison rules ; the objection was overruled, and the prisoner discharged. GROUNDS OF APPEAL. Because the defendant, Buslinell, having gone without the prison rules, sinoc the sii-r<,rcstinn was filed, iind since tlicj October term of the Court, this objection to liis di.scharge could not have been made Avhen the suggestion was filed, and could be made only by an amendment of the suggestion; and be- *2731 *'^""^*^ '"^ Honor held that he was entitled to his discharge notwith- ■1 standing such absence. (a) S. C. Sup. 66. An. (j) Sup. 66. An. *273] BAKER, JOHNSON & CO. VS. BUSHNELL. 179 Burt, for motion, said, the Court had power to permit an amendment. If so, could the Court then exercise a discnstion? Cited Act of 1759 ; Act of 1788. (a) Wiis the defendant, by his being without the prison rules, prevented from his discharge, and did he come within the contemplation of the Act of 1788. 6th Statutes at Large, 401. Brings vs. Walker, 1 Hill, 118; 3d Chitty's Gen. Prac. 55;?. Pending an apj^eal, shall the defendant remain within the rules ? Pending an appeal, the proceedings are not complete on the circuit, and it is the Appeal Court that confirms or vacates the proceedings of the Circuit Court. Hence the prisoner is compelled by law to remain within the prison rules. If the prisoner was bound to return within the prison rules, after the refusal of his discharge by the Appeal Court, should he have notice of such refusal? Was it necessary that notice of the appeal should be given before the order for the defendant's discharge was made ? The defendant was bound to remain within the rules until the time of appeal had elapsed. Carroll, contra, cited 2 Bay's Rep. ; 3 Chitty's Gen. P. 563. Wardlaiv, contra. Does the law require that any one applying for his discharge, be imprisoned, to entitle him to his discharge? 2 Brev. Dig. 1,55 ; Id. IGO. There is no necessity by law for the defendant to be imprisoned at all. Curia, joer Evans, J. The fact was clearly established, that imme- diately after the order was made for his discharge, at Fall Term, 1840, the defendant went beyond the prison bounds, and remained without them, until at or about the beginning of the next term. And the only question which I propose to discuss is, whether by this act he forfeited his right to be discharged, under the insolvent Act of 1759. By the Act of 1788, sec. 7, it is enacted* "that no prisoner shall be discharged, if he or she has been seen without the prison rules, without being legally authorized to do so." The de- fendant did go and remain without, and unless he has shown that he had legal authority to do so, this question must be decided against him. The general rule is, that any order or judgment of a Court, having jurisdic- tion of the subject matter, is binding and conclusive, until reversed ; and. I think the defendant was not bound to go back to prison, there to wait until the plaintiff had decided whether he would appeal. The order conferred on him the privilege to go at large, and this privilege he might lawfully exercise so long as the order was a subsisting one ; during that time it was a shield and protection to him. But when the order was reversed, as to future events, it was as if it had never existed, and all the rights acquired under it, from that time, ceased and determined. The defendant being a i)arty to the appeal, was bound to take notice of the result of it. AVhen the order was revoked, he no longer had any legal authority to be without the jail bounds. He should have returned, but he did not ; and it is the opinion of this Court, that he thereby for- feited his right to be discharged under the insolvent law. The motion to reverse the decision of the Circuit Court is therefore granted. Richardson, O'Neall and Butler, JJ., concurred. See 5 Rich. 294 ; Dud. 370, An. (a) 4 Stat. 56 ; 5 Stat, 78, An. [*274 180 COLUMBIA, MAT, 1841. VOL. I. [*275 *275] *Daniel Caldwell, ct al. ads. James Langford. To correct a slave with, a whip, giring him but fifteen stripes, when he is found without his master's enclosure, with a ticket or permit, accounting for his absence, is held to be a beating and abusing, within the meaning of the Act of 1839. In bringing an action in the sum. pro. jurisdiction, to recover the penalty of $50, under the Act of 1839, (a) for the unlawful beating of a slave, it is not neces- sary that the plaintiff should aver in his process that the defendant was a white man. Strictness of pleading is not required in the summary process jurisdiction. Before Evans, J., at Newberry, Spring Term, 1841. These were suvi. pro^s. to recover the penalty of fifty dollars, under an Act of the Legislature, subjecting to that penalty, any one who shall beat and abuse any slave having a ticket. The facts that the defendants severally beat the plaintiff's negroes, with tickets, were clearly proven. The beating consisted in the infliction of about fifteen stripes with a whip. The negroes were at a store, on Sunday, behaving themselves peace- ably and orderly ; and the flogging was without any excuse, and done in mere wantonness of power. One of the grounds of appeal alleges that the tickets were not lawful tickets. I do not remember the words of the tickets. They were not in the very words of the Act, but in substance the same as the words pre- scribed. The defendants claimed to have their case tried by a jury, who decided for the plaintiffs. I refused a motion for a nonsuit, on the grounds set out in the brief. In my charge to the jury, I told them that the law had not affixed to the words " beat and abuse," any precise meaning, and it was for them to decide whether the facts as proved was a beating and abusing within the Act. In my own opinion, and I think it likely I so stated to the jury, any wanton whipping of a negro, without any pretence of excuse or justification, constituted the offence for which the action would lie. Defendants moved for a new trial, in arrest of judgment, and for a nonsuit. *2'~tC)] *Iii arrest ofjud/jment, upon the grounds : 1. That it is not alleged in the processes, that the defendants were white men. 2. That it is not alleged in the processes, that the negroes who were whipped, were peaceable and ((luet. For a tionsui/, upon the grounds : 1. That the infliction of fourteen or fifteen lashes, with a switch, did not constitute u healing or abusing of tlie slaves, accortling to the meaning of the Act of the Jiegisliiture upon the subject. 2. That the tickets whicli the slaves had, were not lawful tickets. And for a iifw trial, upon the ground : That his Honor charged the jury that, in liis opinion, any whipping of the (a) 11 Stat. 58, § 5. *276] CALDTTEI.L ET AL. ads. LANGFORD. 181 slave of another, would be siiificieiit to entitle the owner to recover the penalty of fifty dollars, under the Acts of Assembly ; whereas it is respectfully sub- mitted, that a moderate whipping of fourteen or fifteen lashes, such as were inflicted by the defendants, does not constitute the offence of beating or abusing a slave; and that although his Honor did intimate to the jury that they might come to the conclusion that the defendants were not guilty of beating or abusing the slaves, yet the distinct expression of his own opinion very properly governed the jury in making up their verdict. Pope aud Pope, for the motion, cited Acts 1839, 58 and 5!), 5 sect. This action is brought for a penalty, and not for liquidated damages. Under the ground in arrest of judgment, it was contended by Mr. P. that the de- fendants sliould be described in the process as white men ; and the negroes should be alleged to be peaceable. Cited Rice's Dig. 15: 2 Brev. Rep. 386, The State vs. Clarice, Fair, contra, cited 8 Stat, at Large, 538, and said the status of color was a question for the Court. Curia, per O'Neall, J. I agree fully with the Jiid<^e below, that any UMlawful wliippinjr of a slave, is a heating and abasing *withiii r:^^^^ the words of the Act of 1839, sec. 5,(a) (A. A., 1839, 58,) which L "' ' enacts, " that it shall be the duty of the commander of every patrol, at least as often as once a fortnight, to call out the patrol under his com- mand, and to take up all slaves who may be found without the limits of their owner's plantation, under suspicious circumstances, or at a suspicious distance therefrom, and to correct all such slaves by a moderate whipping with a switch or cowskin, not exceeding twenty lashes, unless the said slave have a ticket or letter to show tlie reasonableness of his or her absence, or shall have some white person in company to give an account of the business of such slave or slaves ; and if any white man shall beat or abuse any slave quietly and peaceably being in his master's plantation, or found any where without the same, with a lawful ticket, he shall forfeit the sum of fifty dollars." The first question made by the defendants is, whether in the processes, it was necessary to aver that the defendant, being a wliite man, did, &c. This point was decided in the exactly analogous case, The State vs. Schroder, (3 Hill, GO.) In that case, the defendant was indicted for selling spirituous liquors to a slave, under the Act of '34, which provides, "if any free white person, being a distiller, vendor, or retailer of spirit- uous liquors," &c. In that case, it was held that it was unnecessary to charge that the defendant was a "free white person." It was said there, as it may be here, of the words used in the Act, "they are merely descriptive of the person by whom the offence may be committed ; and unless there is some uncertainty without the words, whether the defend- ant be liable to receive judgment on conviction, there can be no necessity to use them.' The general inference is, that a party in Court is white, until the contrary appear ; and until a defendant claims the unenviable distinction of being regarded as colored, he will be regarded as occupying the position of a free white man. The second ground objects that it is not alleged in the process, that the slave was found "peaceably and quietly without his master's planta- tion." These words, according to my construction, apply exclusively to (o) 11 Stat. 58, I 5. An. 182 COLUMBIA, MAY, 1841. VOL. I. [*27T the case of a slave found on his master's plantation, and it may be, in that case, it is necessary that they should be used. But in the process ♦g-T-.! jurisdiction, *strictness of pleading is not required. If the party ■^ in a short way state his claim to demand money, as a debt, or as a compensation for an injury, and enough appears to apprise the party of the matter to which he is called to answer, it is generally suffi- cient. Technical precision is not demanded, Hilhurn vs. Pnyi^inger, (1 Bail. 97.) I should, therefore, be inclined to think, that in a process of this character, a description of the injury sufficiently definite to apprise the party of the matter of which the plaintiff complains, would be sufficient. The processes here are sufficient, according to the strictest rule of defining an offence in the words of the statute, if it were not necessary to aver that the slave was found " peaceably and quietly," without, &c. The portion of the clause under which this action is brought, should read thus : " If any white man shall beat or abuse any slave found without his master's plantation, with a lawful ticket, he shall forfeit the sum of fifty dollars." That this is the true reading is, I think manifest, from reading the two parts of the sentence together. What is it which agrees with the participle, being, in the preceding section ? It is the word slave, and the conjunction unites the sentence, so that the word slave agrees in the succeeding section of the same sentence, with the participle found ; but the adverbs, quietly and peaceably, qualify the word being, and might have the same effect on the word "found," if a new qualification with a lawful ticket was not added. But without pur- suing this philological examination of the sentence, it will be only necessary to read the previous parts of the section of the Act, to see that the Act c|oes not authorize even a patrol to whip a slave found out of his master's plantation, if he shall have a ticket or letter showing the reasonaljleuess of his absence. Reading the two parts together, I think it is })iain that the penalty was intended to be incurred, if a slave was whipped contrary to the provisions authorizing it. Turn to the 13th sec. Act of 1839, p. 60, and the same authority is repeated. I am free to admit that if the slave had not in fact demeaned himself " quietly and peaceably," the defendants might have justified their conduct, and would have been protected, under the general authority which devolves on all wlnte men, of correcting slaves who may so offend. If, however, the words "quietly and peaceably," do qualify the word ^.^wq-i found, and are to be read as part of the sentence *under which ^ these jirocesses are brought, still I do not think it was necessary to aver that the slave was found quietly and peaceably without, &c. For in that case, it would be matter of excuse to the defendants, and as such need not lie noticed. In 1 Chitty's Crim. Law, 283, it is said, that in an indict n)ent for not going to church, it is not necessary to aver that the defendant had no reasonable excuse for his absence, on account of the words of the Act, "hnving no reasonable excuse to be absent," for as the necessity for proving the excuse lies upon the defendant, the con- trary need not l^e averred by the prosecutor. That this is the rule np]»licable to these cases is, I think manifest, when we recur to the Act, and find that tliis ])enalty is given in addition to the defendant's liability for tlie trespass for beating a slave. If a slave is beat, it is a trespass, until it is justified or excused by the party beating. It is only necessary *279] RICHARDSON VS. RICHARDSON". 183 to state the fact to create the legal implication of trespass, and all mat- ters of excuse or justification must come from the defendant. The object of the Act was to punish by a penalty a trespass committed on a slave, with his master's ticket in his hand, unless the defendant could justify or excuse his act, by showing that the slave so misbehaved himself as to authorize any white man to correct him. The other grounds were not pressed in argument, and need not be noticed. The motion is dismissed. Gantt, Evans and Butler, JJ., concurred. See Hadden vs. Liebeschultz, 11 Rich. 505 ; Smith vs. Ilamilton, 10 Rich. 48. An. *J. J. Richardson vs. T. C. Richardson. [*280 The parol undertaking of a third person to pay for articles purchased by another, is void, by the Statute of Frauds. Before Earle, J., at Sumter, Spring Term, 1841. This was a sum. pro. on a merchant's account. The goods were charged on the books to one Simmons, who was the overseer of the de- fendant. It was attempted to make the defendant liable on the evidence of Jones, who was the clerk of the plaintiff, examined by commission, who deposed that he was under a strong impression that the goods were charged to Simmons at the request and direction of the defendant. That Simmons was not held responsible, -and in fact had never been called on to pay. That the defendant, when called on, referred witness to Simmons, saying, if it was correct, he defendant, would pay it; and Simmons said it was correct, deducting a single charge of four dollars ; and, in fact the plaintiff always looked to the defendant. The question arose on a motion for nonsuit, whether the defendant was liable. I thought the books established a debt against Simmons, and that the credit was originally given to him. The strong impression of the witness was not enough, in my judgment, to obviate the effect of this. The parol undertaking of the defendant, was collateral and void. The nonsuit was ordered. The plaintiff moves to set aside the nonsuit. 1. Because the undertaking on the part of the defendant to be responsible for articles purchased by Simmons, was .original in its nature, and not within the statute of frauds. 2. Because the credit was wholly given to the defendant, the account having been only charged to Simmons, at the special instance and request of the defendant, for his convenience, and credit was expressly refused to Simmons himself. W. F. De Saussure, for the motion. Tlie question in this case is, to wliom was the credit given ? Looking to the testimony, we must conclude that it was given to the defendant. McKenzie vs. Quilter, (4 McC. 409.) *Moses, contra. If a third person is liable, it must be in writing. 1 r*9gi Saunders, 211, note A. Lelland ys. Grain, (1 McC. 100.) ■■ 184 COLUJIBIA, MAY, 184-1. VOL. I. [*281 Curia, per Gantt, J. This was a summary process on a merchant's account. On the books it appeared that the goods were charged to one Simmons, the overseer of the defendant. It was attempted to be shown on the trial, that although the goods were charged to Simmons, yet that the defendant, Thomas C. Richardson, was the original contracting part}', and, as such, bound in law to pay for them. The evidence offered to show this, was the examination of the clerk of the plaintiff, who de- posed that he was under a strong impression that the goods were charged to Simmons at the request and direction of the defendant. But the process which issued in this case, is conclusive to show that Simmons, and not the defendant, was the original contracting party ; for it alleges that the defendant is indebted to the plaintiff in the sum of twenty-seven dollars and seventy-one cents, which he assumed to pay on an account for that sura, which the plaintiff had against one Thomas Simmons. How, then, can it be maintained, that the undertaking was original on the part of the defendant ? If the defendant ever did pro- mise to pay this account for Simmons, the promise should have been in writing ; otherwise, it cannot be enforced, being void by the statute of frauds. The motion is refused. The whole Court concurred. See 2 McM. 372, and note there. An. *282] Charles Fowler l-^-. Samuel Fleming. Where there is a special endorsement on a note, waiving the right to the usual notice of demand and refusal ; unless the endorsement is written by the en- dorser, its truth and correctness must be clearly proved to have come from his authority, or it cannot avail the' endorsee. Before Gantt, J., at Laurens, Spring Term, 1841. This was an action of assumpsit on two notes of hand ; one for seven hundred and fifteen dollars, on which there was no defence set up, the other for four hundred dollars, drawn by Thomas B. Lockhart, in favor of Samuel Fleming, the defendant, and endorsed by him in blank before due. The Ijlank was filled up by Fowler, so as to dispense with the other- wise legal necessity of making a demand on the drawer, and giving no- tice to the endorser, of non-payment. The verdict of the jury was in favor of the plaintiff, to the amount of both notes, and the defendant appeals, on the following grounds : 1. Because tiio parol testimony was incompetent to alter or explain the endorsement in blank. 2. Because the proof made in said case was iusuflicieut in law to sustain the acticJn. The evidence offered in this case, was the examination of M. B. Park, the purport of which was, that he heard Fleming say tliat he authorized Fowler to fill out the endorsement ; that he, (Fleming,) did not know ^282] FOWLER VS. FLEMING. 185 that the law required demand and notice ; but that when he endorsed tlie note, he considered himself as much bound for its payment, as if he had been security. The next evidence that was oifered, was that of Robert H. Park, who testified that he heard Pleminj? say, that wlien he put his name on the back of the note he allowed Fowler to fill up the endorsement as he wished. Other testimony was offered, but it is omitted, as having no direct bearing on the isolated question of the law by which this case must be determined. As respects the note of Lockhart, endorsed by Fleming to the plaintiff, I saw nothing so conclusive in the testimony as *to justify the rjic^oo jury in concluding that there had been any waiver on the part of ^ " Fleming of the legal necessity of making a demand on the drawer, by the endorsee, and in the event of non-payment, of giving notice of the same to the endorser. Whether Fowler was authorized to fill up the blank so as to dispense with the necessity on his part of making a demand of the drawer when the note became due, and on failure of papuent, of giving notice to the endorser thereof, was a question to be settled by the evidence. I saw nothng in the testimony to justify such a deduction, and in the charge made to the jury insinuated as much ; but the jury thought otherwise, as would appear by their verdict, finding for the plaintiff the amount of the ondorsed note. Sullivan, for the motion, cited, on the first ground, 3 Kent's Com. 88 ; 1 Moore, 535, or 1 Harr. Dig. 504, Campbell \s. Ilogson ; 1 Harr. Dig. 519, or Gow. 79; 3 Campbell, 57 ; 1 Starkie Rep. 361 ; 10 Barn. & Cress. 729 ; 5 John. 375 ; Chitty on Bills, 192 ; 2 Mills' Const. Rep. 31, Price, Ex' or, vs. Perry; 29 Charles ; Genett Mercantile Law, 176-7. Young, contra, insisted that the plaintiff could not recover on the endorsement. That he could upon the general counts in the declaration for money borrowed. Cited Beckivithvs. Angel, 6 Comiect. Rep. 345; Ulenvs. Kitliredge; 7 Mass. Rep. 233 ; Joslin vs. Ames, 3 do. 235 ; 13 Johns. 178 ; 17 do. 329 ; 14 do. 349 ; Framp- ton vs. Dudley, 1 Nott & McCord, 128. A party may prove by parol any agree- ment that was entered into at the time of the endorsement. Also, what power was delegated. The verdict should stand u^Don the general count in the declaration. Sullivan, in reply, said the case from 1 N. & McC. 128, relied on by plaintifi's counsel, did not support the position of plaintiff. Curia, per Richardson, J. The Court concurs with the presiding Judge in the principles of his charge to the jury. The endorser of a promissory note undertakes to pay the amount, if the maker shall not have paid it, after demand made on the day fixed for payment, or by the last day of *grace, and provided due notice of his failure so to r:(.9qi pay be given to the endorser. (N. &. McCord, 83 ; 2 N. & McC. •- 283.) But it is clear that the endorser may waive his right to such timely demand and notice ; but when such a waiver of the endorser's legal rights is alleged, it should be plainly proved ; and, assuredly, any endorser may expressly endorse his consent to waive such rights, and dispense witli further proof. As to the competency of any other person to fill up such special endorsement, by the authority of the endorsor, I can perceive no reason to question it, (3 Kent, 90; 6 Con. Rep. 340 ; 4 Pick. 386 ; 13 186 COLUMBIA, MAY, 1841. VOL. I. [*284 John. 179; 17 Johns. 329.) And I know of no principle of law to prevent such authority being by parol or verbal direction. Blank endorsements are in general filled up by the endorsees, and such special endorsement is no more than an express waiving of the right to require due demand, and the notice of a failure to pay the note, which are facts usually proved viva voce. But whatever be the special endorsement, unless wi-itten by the endorser, its truth and correctness must be proved to have come from his authority, or it cannot avail the endorsee. It would be still a question upon the actual agreement or undertaking of the endorser, to be made out by evidence "aliunde.''^ To make out such an undertaking was in fact the very object in the case before the Court, in order to hold the endorser liable upon the alleged special endorsement supposed to have been authorized by Fleming. The true question of the case, therefore, turns upon the inquiry : did Fleming authorize the special endorsement found upon Lockhart's note ? The allegation that Fleming authorized such an endorsement, varying from, if not contradicting the usual purport of endorsements, and rendering him liable, when he would not have been liable, upon the usual blank endorsement, ought to be clearly made out. But the Court can perceive, in the evidence offered, no sufficient proof of any agreement to deprive Fleming of the established rights of an endorser. He may have well authorized the endorsee to fill out the endorsement, or con- sidered himself as the security for the note, without agreeing to renounce the rights of an endorser who is a provisional security, (See 3IiUer & Co. vs. Thompson, MS. cited 1 Rice's Dig. 129.) *98^1 *-t^iiy one may renounce his legal rights. But it should ap- ^ pear that he understood what he released, or else did so expressly. (1 Bailey, 45o. ) As, for instance, where the endorser promises payment, knowing there has been no demand upon the maker, and that he might have objected on that account. Aiwood vs. Hat^eldon, (2 Bailey, 457.) Ililler & Go. vs. Thompson, (1 Rice's Dig. 129.) In such a case, the subject of the release is of a legal advantage ; which may be done. But, in the case before the Court, there is scarcely any proof of such an intention. The evidence would rather go to ex- cuse the endorsee for so filling up the endorsement, than to prove that he had express authority for doing it ; and no support can be derived from his own act, or manner of endorsing the note. For, as against Fleming, we are to look not so much to the endorsement itself, as for the proof (jf his authority to Fowler to make such special endorsement; and if we suppose tlie endorsement again in blank, we readily perceive how fecljle is the evidence that Fleming ever intended to renounce his right to require a demand and notice of refusal to pay the note. There must, therefore, be a new trial, unless the plaintiff shall release the ver- dict to the extent of the note of $400 and interest. The whole Court concurred. See Sup. 70 ; 3 Rich. 133 ; 4 Strob. 10. An. #i 286] CLARKE ET AL. VS. SIMPSON. 187 *Clarke, McTier & Co. vs. James Simpson. [*286 A plaintiff, after the defendant has been arrested by virtue of an order for bail, has the right to discharge the bail from any liability ; and also to discharge the defendant, without his consent, although he may have given bond for the prison rules, and filed his schedule, with the view of taking the insolvent debtors' Act. A prisoner confined under an order for bail, and who has filed his schedule with the clerk, and given notice to his creditors of his intention to take the insolvent debtors' Act, cannot take this Act where he has been discharged by the plaiutiflF at whose suit he has been arrested. It is questionable whether a defendant can be arrested pending a suit, where he has been previously arrested and held to bail, and by the plaintiff discharged. Before Gantt, J., at Abbeville, Fall Terra, 1840. This was an application for a discharge under the insolvent debtors' Act. The defendant was arrested on the 22d February, 1840, by the sheriff, by virtue of an order for bail, and on the same day gave bail. On the 24th February, 1840, he was surrendered by his bail, and gave other bail. He was agaiu surrendered by his last bail, to the sheriff, on the 20tl» day of March, 1840, and gave bond and security for the prison bounds. On the 22d April, 1840, he filed his schedule in the clerk's office, and on the same day gave notice to his creditors of his intention to apply to the Court at this sitting for his discharge under the " insolvent debtors' Act," upon his executing the assignment required by the Acts aforesaid. On the second bail bond was endorsed the following dis- charge : '' South Carolina — Abbeville District. We do hereby discharge the bail from all liability on account of this case. " Wardlaw & Perin, "Attorneys for Clarke, McTier & Co." Another paper, executed in like manner as above, directed to the sheriff, authorizing him to discharge the defendant from confinement with- out liability to the sheriff. This paper was not produced to the Court, but it was not questioned that such a paper was executed. The dis- charge by this Court of the defendant was resisted, on the ground that he was not now in the custody of the law ; that the plaintiffs had already discharged the defendant, and that the defendant was not now entitled to the benefits of the discharge under the insolvent Act. *The Court was of opinion that the plaintiffs could not dis- r^c)o>, charge the defendant without his consent ; and he having refused •- to go when the plaintiffs desired, that he was still in the custody of the sheriff; and that he was entitled to his discharge, with all the benefits of the Act ; and so ordered. The plaintiffs, Clarke, McTier & Co., move to vacate the order of dis- charge, because the defendant, under the circumstances, was not entitled to the benefit of the insolvent debtors' Act. Wardlaw and Perrin, for the motion. The question is, whether a plaintiff can discharge a defendant, after an order for bail ? The whole object of bail is, that the plaintiff may have some security for his debt. 188 COLUMBIA, MAY, 1841. VOL. I. [*287 An arrest under a bail writ is different from arrest under ca. sa. Mr. W. referred to the oath of the insolvent debtor. Burt, contra, cited Act 1815, (a) and said that it applied only to final process. The defendant can only be discharged by his own consent. Defendants would be often liable to be harassed and put in jail on the same case, if they were discharged without their consent. Curia, per Evans, J. It is on the application of the plaintiff, and for his benefit, that the body of the defendant is arrested, and held in custody of the sheriff, or the custody of his bail, to satisfy the plaintiff's judgment when rendered. Being, as it certainly is, a mere security for the plaintiff, I am at a loss to conceive of any reason why he may not waive this advantage by releasing the bail, or by discharging the defend- ant from the custody of the sheriff. The only supposable objection that has been urged is, that the plaintiff may again arrest him, and thus harass the defendant by discharges and fresh arrests. Prior to the Act of 1827,(6) no bail could be required pending the suit, and the object of that Act was to remedy this defect of the law. Without expressing any definite opinion on the subject, I think it may well be questioned whether a defendant can be arrested pending a suit, when he had been previously arrested and held to bail by the plaintiff, and by him discharged ; so that *98<^1 it is not likely that the ^supposed evil can ever arise. I see noth- -' ing, therefore, either in reason or in the authority of any decided case, which will prevent the plaintiff from discharging the defendant from the custody of the sheriff, as was done in this case ; the effect of which is to restore the defendant to his liberty, and to authorize him to go where- soever he pleases. If he remains after this, his residence in the jail or the prison rules is entirely voluntary, and of his own free will. But it is supposed that by the arrest, the defendant has acquired a right to make an assignment of his property under the Act of the Legis- lature, passed for the relief of insolvent debtors, of which the plaintiff cannot deprive him by a discharge against his consent. I am unable to discover from whence such right is derived ; if it is found any where, it must be in the Act of 1759, (c) under which the defendant claims to be discharged from the plaintiff's debt, as well as the debts of all his suing creditors, upou an assignment of his schedule. I think there can be but little doubt that after the discharge, the defendant can no longer be regarded as a prisoner ; his remaining in the jail is of his own accord, and not by any compulsion of the plaintiff. Let us now, by examining the insolvent laws, see whether such a person is entitled to the benefit of its provisions. The first clause begins by declaring that any one arrested may, within one month after he, she, or tliey shall be taken into custody, exhibit a petition, setting out the causes of his, her, or their imprison- ment. In another part of the same clause, it is said the Court shall, in a suinmury way, examine into tlie matter of the said petition, and shall hear wliat shall l)e alleged against the discharge of the said petitioner. The oath to be administered to him is that he has been a prisoner in the common jail, without his consent or procurement. The 12tli section provides that no one shall be entitled to the benefit of the Act, unless such person shall have actually remained confined in the common (a) 6 Stat. 1. An. {h) 6 Stat. 337, g 3. An. (c) 4 Stat. 56. An. *288] CLARKE ET AL. VS. SIMPSON. 189 jail, &c. The IStli section authorizes the justices, in case they suspect the person applying has not rendered in a true account of his estate, to re-coramit such person to the common jail, there to remain. The 20th section makes the arresting creditor "liable for, and chargeal)le with, the fees due to the provost marshal, for the arrest and imprisonment of such person." In the Act of 1788, («) we find the persons entitled to the benefit *of that Act, described in the 2d section, as those com- r^jt^oq mitted on mesne process ; in the 3d section, as prisoners in L execution; in the 4th section, as any person " confined on mense pro- cess.'^ The fifth section extends the benefit of the Act of 1759 to all persons "confined on mense process in any civil action, or on execution.'''' These and similar expressions are to be found in almost every section of the Acts of 1759 and 1788, and show most clearly that none are entitled to the benefit of these Acts, except prisoners, those who are confined witliin the jail bounds ; for the prison rules are but the enlargement of the jail. Does the defendant come within the provisions of these Acts ? Can he be regarded as one confined on mesne process, after the plaintiff has discharged him from the arrest? Is not his remaining in the jail, or the jail bounds, after this, entirely voluntary? And if so, can he swear he has been confined without his consent? After his discharge he was at liberty to go wheresoever he pleased. He was no longer a prisoner, or one restrained of his liberty. Upon a careful examination of the pro- visions of these Acts, I am satisfied a defendant has no other rights under them, than the right to be set at large and freed from imprisonment upon a surrender of his estate; and if he be discharged by the voluntary act of the plaintiff, the object of the law is obtained, and the debtor can ask no more. To authorize him to do what is claimed by the defendant, would be to enable him, by remaining voluntarily in jail, to make an assignment whereby the debt of the plaintiff, and the debts of all suing creditors are extinguished, against the will of his creditors; and more than this, he may subject the plaintiff to the payment of his legal fees, for the Act of 1759, and the Act of 1817, both make the plaintiff chargeable with the expenses of the imprisonment, in the event the assets assigned are not sufiBcieni. These Acts go on the supposition that as the expenses are incurred at the plaintiff's instance, he ought to pay in the event they are not paid by the defendant or out of his assigned estate ; but nothing could be more unreasonable than this, where the defendant remains in jail voluntarily and against the will of the plaintiff. Suppose the action should abate, or the plaintiff should discontinue, or be nonsuited, can the defendant still go on and be discharged from an action when none is pend- ing against him ? It was recently decided in a case in Charleston, not yet reported, and I do not remember* the names of the parties, r^gnn that the defendant was not entitled to the benefit of the Act, ^ "^ where the plaintiff had discontinued his suit, I do not remember whether, in that case, the discontinuance was before or after the defendant had filed his schedule, and given his notice; but I ap|)rehend that fact is immate- rial and cannot vary the result. The oath he is required to take is, that he has been confined from the time of his being arrested, at the suit of , without his consent or procurement. How can this defendant (a) 5 Stat. 78. An. 190 COLUMBIA, MAY, 1841. VOL. I. [*290 swear he has been confined from the time of his being arrested, at the suit of the plaintiff", when he had been discharged from his confinement in jail, near two montlis before? After his discharge, his confinement was vohmtary. The object of the insolvent Acts, it seems to me, is to enable the defendant, by a surrender of his property, to discharge himself from imprisonment, if his creditor persists in keeping him in jail; but the end is already obtained, where the creditor voluntarily releases him from confinement. Every clause in the Act shows that at the time the appli- cation is made, the applicant must be an imprisoned debtor. The defend- ant is not in that condition, and, therefore, the motion is granted. Richardson, O'Neall and Butler, JJ., concurred. Gantt, J., dissented. See N. Colien's case, Cliarleston, January, 1S59, 11 Rich. An. Sleeper ^ Fenner vs. N. A. Cohen. *291] CuTHBERT Price, Executor, vs. Samuel Price. Where a general demurrer has been overruled, the adverse party have the right to enter up judgment on the matter in controversy, unless the demurring party obtain special leave to plead over at the time the demurrer is overruled. Before Butler, J., at Chester, Spring Terra, 1841 The plaintiff in this case had filed a general demurrer to the defend- ant's special plea, which admitted all that was stated in it. The Court of Appeals, on a former trial of this case, overruled the demurrer, and the Circuit Court gave the defendant leave to enter up judgment on the plea ; from which the plaintiff appeals. GROUNDS OF APPEAL. 1. That the plaintiff had, under the circumstances of the case, a legal right to reply to tlie dd'cndaiit's plea of former recovery. 2. iiecause the plaiiitiir should have been permitted to go to trial, he having moved for leave so to do after the Court had refused plaintiff leave to reply to the defendant's demurrer sustained, as phuntift" contends he can recover in the case, even admitting the donuirrer to defendant's plea is permitted to stand, or rather, is overruled. Curia, per Butler, J. On a former occasion it was decided by this Court, that defendiint's plea was an entire bar to plaintiff's action. Judge Earlc, who delivered the opinion of the Court, makes this remark : "But whatever may be the effect of the record, when exhibited to the Court, in support of the plea, it is considered here, that there is enough on the face of the plea itself, to constitute a good bar, if it be verified by the rec case under consideration, and the Circuit Judge was bound to ^ ^^ "" make the decision, from whicli the plaintiff has appealed on this occasion. Where a general demurrer is overruled, the adverse party has a right to enter up judgment on the matter in controversy, unless the demurring party obtains special leave to plead over at the time the demurrer is overruled. Motion dismissed. The whole Court concurred. Thomson and Eaves, for the motion. R. G. Mills, contra. See 7 Rich. 432. 5 Stob. 157. 1 N. & McC. 88, 108. 2 McM. 292, and cases in note there. Smith vs. Singleton, Charleston, February, 1852. Mary Dial and W. Henderson ads. P. Farroav. A Court of Law has the power to vacate or set aside its own judgments, when ob- tained by or founded in fraud. The proper coarse to pursue, where a judgment is sought to be vacated, and affi- davits are submitted by the defendant, is to take out a rule for the plaiutilF, re- turnable to the next term of the Court, to show cause why the judgment should not be set aside. Before Gantt, J., at Laurens, Spring Term, 1841. This was a motion to open a judgment, and for leave to appear and plead to the case, or that the defendant have leave to fde a suggestion to try the validity of the same. Tiiis application was founded on the affidavits of Mary Dial and William Henderson, stating positively that they never signed either the note or confession of judgment, or authorized any other person to do it for them ; and upon the affidavit of Wm. C. Gary, whose name appears to be signed as the subscribing witness to the confession of judgment, that he never signed said confession of judgment as a witness, or ever knew any thing about it, until after G. C. Deal left this State ; and that he is *well acquainted with the handwriting (-:(:qqq of Mary Dial and W. Henderson, and their names to the note and ^ confession of judgment are not their handwriting. His Honor refused to hear the motion, on the ground that the Court had no jurisdiction ; from which the defendants appeal, and renew the motion before the Appeal Court, on the ground that the Court had jurisdiction, and the motion should have been granted. Curia, per O'Neall, J. That the Court of Law has not the power to set aside its own judgments, when founded in fraud, would be a strange proposition. For certainly if the judgment becomes thereby void, and another tribunal could relieve against it, there can be no good reason why the Court pronouncing the judgment should not vacate it. Indeed, there is great propriety in a Court vacating its own judgment, when it is rendered under such circumstances of mistake, fraud, or surprise, as would entitle the party to relief elsewhere. Tlie case of Posey vs. Underwood, 192 COLUMBIA, MAY, 1841. VOL. I. [*293 (1 Hill, 262,) states the true rule. The power of setting aside judg- ments, it remarks, "is exercised as between the parties, on matters out of and beyond the record, as when a judgment has been obtained by duress, by misrepresentation to the defendant, or an abuse of the process of the Court.'' The case made by the affidavits is, that the confession was not signed bv the defendants, Mary Dial and William Henderson. If this be so, the predicate of the judgment is destroyed, and the Court had no power to give it, and it is as much a duty to set it aside, as it would be to set aside a judgment where the defendant had not been served with process. I think it is very probable, from the affidavits submitted on the part of the plaintiff, that there is no foundation in fact for the motion to vacate the judgment. Whether there is or is not, it is perfectly clear that no blame can attach to the plaintiff, for if the defendants have been improperly subjected to the judgment, it has been by the forgery of their co-defendant, G. C. Dial, committed with a view to defraud the plaintiff. The collision between the affidavits makes it necessary that the case should pursue the only course by which truth can be elicited — a trial by jury. The proper *9qil course would have been, on the showing of the defendants,. to *have -' granted a rule against the plaintiff, returnable to the next term, to show cause why the judgment should not be set aside, and to have directed that the affidavits submitted l)y the defendants should be filed. To them the plaintiff would have answered by filing counter affidavits. But as affidavits on both sides have been submitted, and the conflict in fact is apparent, the order will be made at once, which the Circuit Judge might have made. The motion to reverse the decision below is granted. The affidavits submitted by the defendants and plaintiff, are ordered to be filed in the clerk's office of Laurens District, and the defendants have leave to file their suggestion to set aside the judgment of PatiUo Farrow vs. G. C. Di'il, 3Iarij Dial, and Wm. Henderson, on entering into a consent rule to pay to the plaintiff all costs which he may incur thereby, if they should fail in setting aside the said judgment; and the said plaintiff is ordered to plead to the said suggestion so to be filed. The defendants to be the actors in the said suggestion. The whole Court concurred. Irby, for the motion. Young, contra. See 4 Rich. 168, 512; 6 Rich. 491, 495 ; 1 Sp. 39, 114. An. Tim; Ownkrs (;p the Steamer St Matthews vs. I. D. Mordecai. Where tlic plaiiitifTa flcmmid has boon reduced by a discount below the sum. pro. jurisdiction, tlie practice is to give a decree for the balance. Before O'Neall, J., Richland, Spring Term, 1841. This was a srnn. pro. to recover the freight, $32.49, on certain articles shipj.od from Charleston to Columbia, on board the Steamer St. *295] ^'"tthews. She reached her usual port of delivery, *Granby. She could not, at any time, ascend further up the river. The *295] STEAMER ST. MATTHEWS VS. MORDECAI. 193 goods of the defendant were delivered to a wagoner, to Ijc by hira delivered. This was the course usually pursued. A part of them came )iropcr!y to hand. A parcel of buckets were sent to Union district. After some time they were recovered by the agent of the boat, except two, which were lost. Sixteen were injured. The defendant refused to accept them ; but, at last, did receive them into his store, and had a survey made by Mr. Solomons, who said that the two lost were worth $6, and the sixteen damaged were injured, each. Si. The defendant relied on a discount for the lost and damaged articles, as well as on the defence, that the steamer did not deliver the goods shipped. I allowed the defendant a discount of $22, and gave plaintiff a decree for $10 41). The defendant appeals on the annexed grounds. 1. That the culpable negligence of a carrier ought to vitiate his whole claim under liis impliod contract, which he has wilfully neglected to fulfil. 2. 'I'hatthe defendant, having expressly refused to accept his damaged goods, ought not to have been held to have accepted them at their damaged value, only because he allowed them to lie in his store. .^. Because his Honor gave judgment for a sum less than the jurisdiction of the Court. Cheves, for the motion, cited 3 Hill, 202; Caldtvell vs. Garmany ; Saunders vs. Gage, Clieves, 165, and said the plaintiff was not entitled to freiglit until the goods were delivered. The plaintilT, said Mr. C, was proved to have kno-wn the amount of this discount. Gregg and Gregg, contra. Curia ])er O'Neall, J. The motion for a new trial in this case, has been at rest altogether upon the 3d ground. As to which, it may be remarked, that the defence of the defendant arose altogether from a matter of which he could only avail himself by discount. For the plain- tiffs proved their title to demand their freight, $32 49, by showing a delivery of all the *articles shipped on board the steamer, except rifo^c two buckets. For the value of these, and the injury done to six- '- "^ teen others, in their travel to Union and back again, the defendant was entitled to compensation. This was clearly a cross demand by way of discount, Ewart vs. Kei'r, (Rice's Rep. 205.). Where the plaintiff's demand is reduced by a discount, to a sum below a magistrate's juris- diction, the practice has been uniform, to give a decree of such balance. It is clearly distinguishable from the case where the demand is reduced by payments. There, the plaintilf has no right to demand more than the balance left after deducting the ])ayments. But where, as in this case, the defence arises from matter which may, or may not be applied to the reduction of the plaintilFs demand, and which, therefore, can only be insisted on by way of discount, it does not have the effect of sending the plaintiff to an inferior jurisdiction, if his demand should be thereby reduced to a sum of which a magistrate has cognizance. The case of Smith vs. McMa>^ters, (3 McC. 288,) is an illustration of the rule. The plaintiff there sued for $48, the defendant pleaded a discount, the plaintiff had a decree for 75 cents. It was held that the plaintiff was entitled to tax process costs against the defendant. The motion is dismissed. The whole Court concurred. See Owens vs. Curry 3 Strob. 2G1. Vaughn vs. Cade, 2 Rich. 50. An. YOL. l.—U 194 COLUMBIA, MAY, 1841. 70L. I. [*297 *29'7] *Jane Steele vs. Jennings & BEATY.(a) A promise by oue co-partner, after dissolution of partnership, cannot create a new liability against the other partners on a simple contract, barred by the Statute of Limitations before the dissolution. A defendant is not precluded from availing himself of the Statute of Limitations, by the remark of his counsel, in argument, "that his client would scorn to take advantage of the statute, if it coiild be made to appear that the money had been applied to the business of the firm." Before Butler J., at York, Spring Terra, 1841. This was an action of debt, nominally against both defendants, the real object of which, however, was to make Beaty liable for money borrowed by Jennings alone, but borrowed in the name of the firm of Jennings & Beaty, whilst they were partners in trade. Defence — general issue and statute of limitations. In 1828, Jennings borrowed of plaintiff $100, in the name of Jennings & Beaty, and gave a sealed note for the amount, signed Jennings & Beaty. In the latter part of the year 1832, the co-partnership was dissolved, the sign taken down, and the goods divided. In 188T, for the first time, demand was made on Jennings for payment of the note. He said then, and frequently afterwards, that the money was justly due, and should be paid when he made collections. He became insolvent and unable to pay, and this action was brought against Beaty in 1839 or '40. He resisted judgment, in the first instance on the ground that he was neither liable on the sealed note, nor for money borrowed, as it had been borrowed by Jennings, without his con- sent, and not for the use of the firm. I was entirely satisfied that Jen- nings had borrowed the money on the credit of Beaty's name, but had applied it exclusively to his own use. This action, so far as Beaty is concerned, must be regarded as brought on the demand for money lent, and the question is, has the demand been barred by the statute of limi- tations. The statutory bar was complete some time in 1832, and more than four years had elapsed from that time till the demand on Jennings, when he promised to pay the debt. The {juestion is, can one partner be made lialjje on an assumpsit of another, made more than four years after the dissolution of a co-partnership. I held not, and the jury found for the defendants. *298l *'^'^''^ plaintiff appeals, on the following grounds: J 1. Because his Honor, Judge Earle, erred in granting leave, :.t Chester, to the defendants, to plead the statute of limitations. 2. Because his Honor, Judge Butler, erred in charging the jury that the acknowledgment and promise by the defendant, Jennings, to pay the debt, was not binding upon the defendant, Beaty. 3. Because ills Honor erred in charging the jury that the defendant's. (Beaty,) solemn promise, made at the time, not to plead the statute of limitations, was not l)iiuliiig upon him. A. jr. Thomson, for the motion, contended that the co-partnership, (as he under- stood tlio law,) was still in existence, so far as this plaintiif was concerned, and the declarations of .(ennings, down to this day, are binding upon Beatty. The plaintiff must liav(! noticf' of tlie dissolution, and" it must be proved that she had notice of such dissohition. Cited J Salk. Itop. 29; 2 Doug. Kep. 022. A promise of one partner, after dissolution, may bind the oth( Abbeville District. Jesse Gent. J In the Common Pleas." The plaintiff appeals. Because, by proper reference, the award may be made sufficiently certain. *Wardlaw and Perrin, for the motion, said that the award was sufficiently r*o()o certain, and cited in support of this position, 1 American C. L. R. title '- Award and Arbit. ; 8 Peters, 177, Luths vs. WesicUn; 2 Strange, 1082 ; 2 M'Cord, 279. 198 COLUMBIA, MAT, 1841. VOL. I. [*303 A misrecital of an award, has been held not fatal, and on this point cited 1 Ven. 184. In reply, said there is more latitude given to an award than a verdict. Burt, contra, said that judgments are taken by the English practice in advance of the order for arbitration, and referred to Watson on Awards, 194; 1 East Rep. 401. There is not a sufficient description of the note sued on in the award. If judgment had been given upon this award, defendant could not have been protected from a future suit. Arbitrators could not try the question of whose note it was. Curia, per Evans, J. Upon a review of all the facts of this case, I concur with my bretheren, that there was error in the circuit decision. The award states the case which the arbitrators decided, to be one in which "Wm. Cox was plaintiff, and J. Gent, defendant. Connecting this with the fact that the award signed by the arbitrators is directed to the clerk of the Court, there was, I think, sufficient evidence to identify the award with the case on the docket. When a case is referred to arbitra- tion, the object is to supersede, by the judgment of the arbitrators, the verdict of a jury. It would follow from this, that the award should be either for a certain sura ascertained, or for a sum capable of being ascer- tained by reference to some part of the record. The usual form of a verdict in debt or bond is, " We find the writing obligatory within de- clared on, to be the deed of the defendant." This has always been regarded as sufiBcient, without the specification of any particular sum in the verdict. The sum is ascertained by reference to the declaration. So, in this case, the award is, we find for the plaintiff the amount of the note. This is equivalent to a finding for the amount due on the note described in and copied on the declaration. This Court is therefore of *304l '^P'"^^"' t^^^^ ^^^6 presiding judge ought to have granted the -^ motion,* unless there were other objections to the confirmation of the award. The motion to reverse the decision of the Circuit Court, is therefore granted, subject to the right of the defendant to impeach the award on any other ground. The whole Court concurred. As to certainty by reference. Infra, 429. An. WiLLi.\M B. Caluoun r.s. B. Beynolds et al. A note dated .Tanunry the Hh, l^3S, with the words, "with interest from the first day of .January last"— //eW, that the time from which interest was to be com- puted, wa.s the first day of January, 1887. The rule of law is, that a doubt shall be solved against him whose business it was to apeak without ambiguity. Before Evans, J., at Abbeville, Spring Term, 1841. This was an action brought on a note, by which the defendants promised to pay "eight hundred dollars, with interest from the 1st January last." The note was dated 8th January, 1838. I was of *30-4] TRAMMELL VS. ROBERTS. 199 opinion tlie 1st January last, did not mean the then month of January, but tlie 1st January 183t, and so directed the jury; the jury found accordingly. The defendants appealed, for error in the above instructions. Curia, y^er Evans, J. If the note had been dated in any other month than January, there would be no difficulty in construing it ; or if it had referred to any remarkable period of time, as last Christmas, or last new year, or last fourth of Jul}', there would be no uncertainty in the meaning. What is meant by the " first January last ?" Does the word lasl qualify Jirst or January'} Is it the last first day of January, or the first day of last January? I thought on the trial that *last applied to r:i:or\n January, and that the defendant did not mean the first of the then L raonth of January, but tlie first day of the preceding January, that is the 1st January, 183T. In this opinion my brethren concur, and especially for the reason that the doubt arises on the language of the defendants, and the rule of law in such case is, that the doubt shall be solved against him whose business it was to speak without ambiguity. The whole concurred. Wardlaiv and Perrin, for the motion. Bu7H, contra. See Posey vs. Branch, 2 McM. 339. An. -»4^ ToLiVER Trammell VS. W. H. Roberts et al. Tlie subscribing witness to a contract, whether under seal or not, must be produced to prove the instrument, if alive and within the jurisdiction of the Court. It is incompetent to prove it in any other way. Before Gantt, J., at Greenville, Spring Term, 1841. The facts of this case appear from the following report of his Honor : W. H. Roberts purchased of the plaintiil" a horse, and gave his note to secure the consideration agreed to be paid for him, to which he signed his own and the names of Dennis and Thomas Westmoreland. The name of Kevil Roberts was attached to the note as a subscribing witness. He had not been summoned to give evidence as to the execution of the note by defendants. It was stated by the counsel for the defendants, that on filing the plea by Thomas Westmoreland, an affidavit had been made, that the note was not his. *From the circumstances, as proved, I thought this case might r^onR be considered an exception to the general rule. Thomas West- '- moreland might well swear that he had not signed the note, but it clearly appeared from the evidence, that both the Westmorelands had authorized W. H. Roberts to atfix tlieir names as parties to the contract. The plaintiff, Trammell, after the note had been taken, had an interview with the Westmorelands, and desired to know of them, whether Roberts had been authorized to sign their names ; they replied in the aifirmative, and assigned the reason why they agreed to it. It appeared by the testi- mony, that the subscribing witness was out of the neigborhood ; that he 20O COLUMBIA, MAT, 1841. VOL. I. [*306 led an itinerant life, and a rumor prevailed that he was out of the State. A witness, however, testified that he was a native of Laurens district, and that he had recently seen him there. It appeared to me, that had the witness been present, he could not have testified to the facts which fixed the responsibility of the two West- raorelands, more firmly than what was established by the testimony offered. Their liability or not to the payment of the note sued on, depended upon a fact aliunde — the execution ot the note. I therefore overruled the motion for a nonsuit, on account of the failure of the plaintiff in not having the subscribing witness in Court , and deeming the testimony offered sufficient to fix the liability of Thomas Westmoreland, I signified as much to the jury in my charge, who found accordingly. Tiie defendants move the Appeal Court for a nonsuit in this case, and for a new trial, on the ground : That his Honor charged the jury that the plaintiff had proved the note, the subject of this suit, without the production of the subscribing witness, or accounting for him, by proving the handwriting of the parties and their declarations, notwithstanding the defendant, on filing his plea, also filed his aiSdavit agreeably to the Act of 1802, that the note was not his, and it appear- ing that the witness was residing within twenty-two miles of Greenville Court-house. CJtoice, for the motion. The question for the Court is, whether the party, under the Act of 1802, on filing his plea, files also his aiiidavit, denying the signature to ^of^--! the note, the *plaintiff is not bo\ind to offer or produce the subscribing wit- ' -' ness to the note, or show that he has used due diligence in endeavoring to procure him. 2 Bay, 506 ; 1 McCord, 391 ; also, Plunket vs. Bowman, 2 McC. 138 ; 3 McC. 219. The subscribing witness to a bond or note, must be produced, if alive or within the State. 1 Starkie on Ev. 236. Totcnes, contra. It was not necessary, imder the circumstances, to prove the note by the subscribing witness — taking the admissions of the defendant. The admission of a party is sufficient to bind him in all cases, and is the highest evidence. If the witness to the note had been present, he could only prove what plaintiff admitted. 2 Johnson, 451 ; Hall vs. Phelps. Curia, per Richardson, J. The verdict is, perhaps right according to the evidence before the jury, and would have been satisfactory, but for the strict rules of law. The question is, whether the evidence received to prove the signatures to the note, was competent in law, when Kevll Huberts, the subscrilnng witness was within the reach of the Court, and might have been brought to testify, in person, to the contract he witnessed. In such a case, and at common law, the subscribing witness must have testified in person, and in case he were beyond the reach of the Court, then otiier witnesses, by proving his handwriting, and the signatures of the makers of the note would furnish legal, though secon- dary evidence of the same facts. (See 1 Starkie, 126-80, and the cases cited.) IJut docs the Act of 1802, (5 Stat, at large, p. 435,) alter this rule of the common law, in such a case ? The Act declares that " tiie absence of any witness to a bond or note, shall not be deemed a good cause for postponing a trial," &c. " But *307] ADAMS VS. CRIMAGER. 201 that the siguature to such bond, or note, may be proved by other testi- mony, unless the defendant, at the time of filing his or her i)lea should swear," &c., "that the signature to the bond or note, is not his orher's." In the case before us, one of the defendants had, in fact, so sworn, and that being done, it follows that the case was taken out of the provisions of the Act, and stood at common law as if no such Act bad been passed. We must then judge the case by the common law rules already noticed. But *it may be satisfactory to observe that the object of the rule, i-^qqo that competent or the best evidence shall be adduced, is not '- merely that conviction or belief of the jury, upon the facts of the case, shall be produced, but that such belief shall be produced by legal evi- dence ; and the decision of the Court turns upon that distinction. Why is it, that without competent evidence, no case can be heard, and nonsuits are ordered ? It is lest belief should be impressed upon the jury by illegal evidence, and verdicts be given thi'ough partiality, preju dice, or credulity, which are human weaknesses ; and the law being unable to control them, yet limit their influence by known rules or measures of evidence, which the Judge is to apply according to the legal character of the evidence offered It is plain, then, that the rule in question has a sound policy, similar to that of the Act requiring three witnesses to the last will, or to the rule of the civil law, which requires two witnesses to a fact. There is safety in such guards, against partial decisions, as well as frauds, and the uni- formity and coherence of laws depend greatly upon the adherence to its rules of evidence. However probable it may therefore be, that the evidence of Kevil Roberts will not alter the verdict, yet, the reasons of so established a rule require that there should be a new trial in order that the verdict may follow legal evidence. O'Neall, Evans and Butler, JJ., concurrecl. See 11 Rich. 318, and cases there cited. An. *JoHN Adams vs. F. Crimager. [*309 Where there are several executions in the sheriff's office against the same defendant, of different dates, the defendant may, on paying money to the sheriff, direct its application, and the sheriff, on rule, will be protected. A receipt from the sheriff, when money has been paid on a junior execution, is a discharge to the defendant pro tanto on the execution. Before Earle, J., at Lancaster, Fall Term, 1840. The plaintiff's execution was lodged IGth March, 1840. An execution at the suit of Weed, Benedict & Co., was lodged the 13th of April, 1840, against the same defendant, who paid to the sheriff, on iGth July, $178.14, wdiich he directed to be applied to the payment of the last mentioned execution, and took a receipt from the sheriff entitled of that case. This was a rule on the sheriff, who has the money yet in his hands, at 202 COLUMBIA, MAY, 1841. YOL. I. [*309 the instance of Adams, to show cause why the money sliould not be paid over to him, as the oldest execution creditor. As the money did not arise from the sale of property, the lien of the execution did not attach upon it. A payment of the money by the defendant, to the plaintiffs, Weed, Benedict & Co., themselves in person, would have been protected as a valid payment. It would have been a mere preference of one creditor to another, which, under the circum- stances, the defendant had a right to make. I think, on principle, the pavment of the money to the sheriff, makes no difference, as he gave directions how it was to be applied ; which directions the sheriff has con- sented to obey, by giving a receipt accordingly. The sheriff, on a,fi. fa. could not levy on the money in the pocket of the defendant, nor compel him to pay it to the execution of Adams. The sheriff had two exe- cutions, and the defendant selected which he would pay ; it is the common case of one owing several debts, and making a payment, directing the application of the money. The sheriff's receipt is at least a discharge of the defeudantpro tanto on the execution of Weed, Benedict &Co. I dismissed the rule, and the plaintiff appeals, ou the ground : *^10l *Tbat the Court erred in ruling that "where there are several ex- J ecutions in the sheriff's office, against the same defendant, of different dates, the defendant may, on paying money to the sheriff, direct its application; and that the sheriff is not bound to apply money, so paid, to the oldest execution." Clinton and Ilanna, for the motion, contended that money is subject to levy under execution, and it was the business of the sheriff to levy, iu this case, in favor of the oldest execution. Cited 1 McCord, 395 ; Dalton, 145. The execution goes as well against money as other property. 1 Cranch, 11 7, to show that money may be levied or under execution. 12 .Johns. 220 ; Id. 395 ; 2 N. & McC. 341 ; 1 Bail. 39 ; Means vs. Vance, 2 Uill, 40t]. In the case at bar, the sheriff received the money as sheriff. 4 McC. 8 ; P. L. 379. The oldest execution must be satisfied. Wright and McMullin, contra, (a) Curia, per O'Neall, J. We concur in the opinion of the Judge below, and adopt the reasoning by which he sustained it. It is, how- ever, necessary to add, that in doing so, we do not ciuestiou the authority of Sumviers vs. Caldwell, (2 N. & McC, 341,) nor of Means vs. Vance, (1 Bail. 40.) Generally, money is the subject of levy. But it cannot be said, that it is also subject to the lien of an execution. It has no ear- mark, by which it can be traced, and as the circulating medium of the country, it would not do to arrest its transfer from hand to hand by liens of which the receiver would be generally ignorant, and of which he would have no means of information. The most which can be said with certainty, as to the liability of money to levy is, that when it is within the power of the sheriff, as the property of the defendant in execution, it may be seized. But when the debtor delivers it to the sheriff, for one of his creditors, it comes into his hands and power, not as the property of the debtor, l)ut as the property of the creditor. It is paid to him as the the agent of the creditor, and extinguishes so much of the execution on (a) The f:<)urt refused to hear argument from the counsel against the motion, being satisfied with the opinion of tlio Judge below. REroRXER. *310] LUCAS vs. SANDERS & m'aLILLY. 203 which it is paid. There is then *nothing to bo levied l)y a senior [-;^oi i execution. In Means vs. Vance, (1 Bail. 40,) which was a rule '- against the sheriff, (as this is,) to show cause why he did not apply the money collected for the defendant, on an execution, to the plaintiff's exe- cution, Judge Nott said, "If, therefore, it had appeared that any other person had a legal, or even an equitable claim to the money, the Court ought not to have interfered in this way." This dictum would be enough for this case. For here, Weed, Benedict & Co. claim the money. It was paid to the sheriff for them : and hence, therefore, on rule, the Court would not deprive them of any right, legal or equitable, which they may have to it. Being paid to the sheriff, for them, he must pay it to them, and then if the plaintiff chooses, he may try their right to it by an action against them. The motion is dismissed. The whole court concurred. See Lynch vs. Ilanahan, 9 Rich. 191 ; Maddox vs. Williamson, 1 Strob. 24, and cases there cited ; 4 Rich. 130 ; 2 Rich. 528 ; Cheves, 113 ; 2 McM. 328. An. Richard Lucas vs. Sanders & McAlilly. One co-partner cannot bind another, by an obligation under seal, without express authority given or inferable from their course of dealing. Neither can a recovery be had against one, upon a paper purporting to have been made jointly, as upon a joint and several obligation. Before Butler, J,, at Chester, Spring Term, 1841. This was an action of debt, on the following paper: " One day after date, we promise to pay Richard Lucas, or his order, three hundred dollars, for value received. Witness our hands and seals, May 11th, 1836. " Sanders & Egger, [l. s.] George McAlilly, [l. s.]" *It was proved that tlie signatures were made by Egger, in the r^qio name of Sanders & Egger, at the time they were in co-partner- L ship, and by McAlilly. On the night that the note was delivered to payee, Egger left the State, and this is an action against E. Sanders & George McAlilly. The declaration alleges that the note was made by Sanders & McAlilly, (Egger being out of the State.) The evidence was that Sanders did not sign the note; and the effort to show that he had authorized Egger to sign it for hira, and for the firm, under seal, entirely failed, and the question made was, whether the plaintiff could recover against McAlilly alone. I held that he could not. The plaintiff moves to set aside the nonsuit, and for a new trial : 1. Because his Honor, the presiding Judge, decided that the plaintiff could not recover in this action, the suit being brought on a joint sealed note, executed by Egger, in the name of the firm of Sanders and Egger, and by George McAlilly, Egger not sued, (he being without the limits of the State.) 204 COLUMBIA, MAY, 1841. VOL. I. [*312 2. Because the Court decided that the plaintiff could not recover iu this suit against Georjje McAlilly. 3. Because the decision of the Court was contrary to law and the evidence in this case. M. Williams, for the motion. This case was brought under the Act allowing joint obligors to be sued, when one of the parties is out of the State. Cited Fleming vs. Dunbar, 2 Hill, 532. One co-partner can bind the firm, where it is shown that the profits arising from the contract went into the co-x^artnership. Lockhart vs. Bell, 2 Hill's Rej). 422 ; 1 Saunders' Plead. Grejg and McAlilly, contra, offered no argument. Curia, per Butler, J. The evidence in this case was entirely satis- factory, that Sanders had never given Egger express authority to subject bim to liability by an obligation under seal, and without such authority, either expressly given, or inferable from their course of dealing, Sanders could not be made liable on such a paper. Whether the paper in ques- 5^qiqn tion* could be regarded as the joint obligation of Egger & McAlilly, -' upon which one might be liable, the other being out of the State, is a question upon which I give no opinion. The case, as it now stands, is a joint action against Sanders & McAlilly. It is alleged that they made the note, when in fact, and in law, they did not. The position taken is, that in a joint action on a paper purporting to have been made jointly, a recovery may be had against one, as upon a several obligation. This is opposed to general authority, and express adjudications of the State. See Ives vs. Picket, (2 McC. 271;) Lockhart vs. Bell, (2 Hill, 422.) Motion to reverse Circuit decision dismissed. The whole Court concurred. See 10 Rich., 151. An. ' J. R. McKain vs. Jonathan Miller. Any h'tters, sucli as " L. S." or a circumflex scroll, made by a party in connection with tlie words ^^ sealed,'''' or "witness my band and seal," or proved by evidence altutide to have been intended as a seal, will constitute a valid seal. The intention of a party, where the letters "L. S." are annexed to liis signature, is properly a question of fact for a jury to decide. Before Earle, J., at Sumter, Spring Term, 1841. Thf jdaintiff declared in assumpsit on a promissory note, and proved on the trial an instrument in the following words : "$212 O.'i. Camden, March Gth, 1840. Six diiys :iflcr dntc, I i)roinise to pay James R.. McKain or bearer, two huiidrcfl and twelve doihirs and five cents, for value received, with interest from the 1st January, 1840, as witness my hand and seal. J. MILLER, [l. s.]" '314] m'kain v8. miller. 205 *'Mn *Tlie defendant's counsel, on tlie production of the paper, -' moved fur a nonsuit, on the ground that it was a sealed instru- ment, and therefore assumpsit could not lie. The instrument was a printed form, except the sums, dates and maker's name. The letters L. S. were printed capitals, and there was no scrawl of any kind to denote a seal, and no parol proof of intention. " Witness my hand and seal," was also printed. I did not consider it as a sealed instrument, and overruled the motion. The counsel then made the same question to the jury, and it was submitted to them by the Court, with ample instruc- tions, to say whether in fact the defendant intended, and the plaintiff accepted it as a sealed instrument, I explained the nature and office of a seal, and the materinl distinctions between sealed and unsealed instru- ments, especially in regard to the statute of limitations, and the order of paying debts against estates. I instructed them that less strictness was observed here on this subject than in England, and some other States ; that any letters, as L S., or a scrawl, made by the party, in connection with the words "sealed," or "witness my hand and seal," or proved by evidence aliunde to have been intended as a seal, would constitute a valid seal. The ])rinted letters L. S. only denoted where the seal should be, and were intended to represent a seal, were usually surrounded by a scrawl of the party, to denote a seal. In the absence of any thing done or written by the defendant here, to manifest an intention to adopt these letters as a seal, I thought the paper ought not to be regarded as a sealed instrument. The jury were of a different opinion ; and, as they were instructed to do in that event, they found a verdict for the defendant, assumpsit not being the proper action. The plaintiff appeals : 1. Because the printed letters L. S. at the end of defendant's name, does not constitute a sealed note, and is no seal. 2. Because, upon the proof made in the case, it was not the seal of the defendant. Curia, per Richardson, J. Whether the letters "L. S." annexed to the signature of Jonathan Miller, had been adopted by hiin for his seal, was a question of fact properly submitted to the decision of the jury. ReJph (t Co. vs. Gist, (4 McCord, *267.) And the jury having r:^qi- decided that such letters constituted his seal, the question for the •- Court to decide is, whether those two letters, not written, but in print, and standing without a circumflex, scrawl, or other visible mark of the pen of Jonathan Miller, can, in law, constitute his seal. It is not unfre- quent, that such letters, when circumscribed by a scrawl, either in print or handwriting, constitute, in practice, a seal. And we cannot lay it down as a rule of law, that the letters alone, if used for such a purpose, may not be a valid seal. Any stamp, ini})ression, or mark, made or adopted by the signer to a written contract, and annexed to his signature, as and for his seal, would seem to answer the purpose of sealing, in order to render such written contract a sealed instrument or deed in law. McKenzie vs. loor and Mathncs, MS. Dec. 1833; Rice's Dig. 212; 4 McCord, 239. In such a case, the question is upon tlie intention and will of the signer. Did he or not intend to subscribe and deliver the contract as his deed, and not as a mere parol or written instrument? 206 COLUMBIA, MAY, 1841. VOL. I. [*315 And did he or not, actually adopt the letters, as and for his mark and exhibition of a seal ? In a case like the one before the Court, where the signer affixes his name to the words, " as witness ray hand and seal," there is little room to question his intention to seal the contract. For I can lay no stress upon its Ijeing printed. And wherever the intention to seal is" so plain, the jury are warranted in inferring that the signer fulfilled his intention, practically, by adopting the printed L. S. as his promised seal. And this authenticates the contract, and renders it a deed in law, upon delivery. See Mitchell vs. Parkham and Davis, (Harper, 3.) The motion is therefore dismissed. The whole Court concurred. J. M. De Saussure, for the motion. C. W. Miller, contra. Note. This case was submitted by both of the counsel without argument. Reportek. See O'Cain vs. 0' Cain, 1 Strob., 402. Giles et at. vs. Maulden, 7 Rich., 11 ; 1 Bur., 308 ; 11 Rich., 131. An. *31G] * Pitman & Day vs. William Clarke. Hall & Co. vs. The Same. A Sheriff cannot be relieved from an attachment issued against him, nor can he have it dissolved, unless he can show that he has used all the means in his power, under the execution against the defendant, to obviate and repair the conse- quences of his former default ; and that the loss to be suffered, did not arise from his negligence, but from the absolute insolvency of the defendant. ■ Before Butler, J., at Lancaster, Spring Terra, 1841. This was a motion to dissolve certain attachments, which had been issued at the instance of the plaintiffs, against Leroy Secrest, late Sheriff of Lancaster District, as for a contempt, in not collecting and paying over the money on certain executions of the plaintiffs, against the defendant ; and also, for not returning the executions according to law. KULE AGAINST PLAINTIFFS. "An attachment having issued in the above cases, against Leroy Secrest, former slieriff, for not colloctiiig and paying over the money, and returning the executions, in the above cas'es ; and the said Leroy, since suing out the attach- ment.s, having sold all the property of defendant on the executions, and paid over the money, and returned the executions : on motion of Clinton, attorney for Leroy Secrest, it is ordered, that the j>laintiffs in tlie executions show cause, during the Hitting of tliis Court, why the attachments should not be dissolved ; and that service of tliis rule be made on the attorney on record." Tlie following cause was shown to the above rule : Thonirm ./. Wriijhl, the attorney for plaintiffs, in obedience to the rule served upon him, rerpiiring the i)laintiffs to show cause why the attachments sued out in thpir favor against Leroy Secrest, late shc^riff, should not be dissolved, respectfully submits for tliem the folbiwiiig cause, on oath. The executions in favor of the plaintiffs against Clarke, were lodged in the sheriff's office on the 1.0th April, 1839. By law, it was the duty of the sheriff to make the money and return the executions at the next term of the Court ^316] PITMAN ET AL. VS. CLAEKE. 207 succeeding *their lodgment, to wit: at Fall Term, 1839. All this, however, r^oyi the sheritf entirely failed to do, and during all this time, the defendant in '- the executions was continually engaged in selling and disposing of his stock of goods and merchandize, which, with a house and lot, constituted almost the only means out of which these debts could be levied. At Fall Term, 1839, a rule was taken out against the sheriff, to show cause why he had not made the money, which, on the 9th November, 1839, was made absolute against him, and it was ordered by the Court that he should x>ay the plaiutifis the debts, on or before the first Monday in December, 1839, or that an attachment should issue against him for a contempt. This time being allowed to the sheriff expressly to enable him to remedy his past default. But this order of the Court was likewise wholly disregarded by the sheriff, who permitted the defendant, Clarke, to continue, as before, to sell and dispose of his stock of goods, and conseqiiently, to diminish the available means out of wliich it was possible for him, the sherifl', to make the money. The house and lot of defendant, Clarke, was levied on, it appears, the 15th November, 1839, was not sold until the 3d of August, 1840, about nine months after he was ordered to pay the money. On the same day, the 3d August, as appears from the sheriff's sale book, the stock of goods and merchandise of the defendant was levied on, but not sold until the 3d November and 0th of December, 1840, more than twelve months after the order of the Court to pay the money. During a great portion of this time, as has already been stated, Clarke, the defendant in the executions, was engaged in selling off his stock, and thus wasting the means out of which the plaintiffs were entitled to have their debts satisfied, and out of which it was the imperious duty of the sheriff to have made the money ; and during the same time deponent was urging liim to do so. Besides, this deponent knows that the sheriff himself, after his levy on the goods, sold many of them at private sale ; deponent, himself, purchased some of the goods thus, and knows of others having so ])urchased. This deponent further states, as a fact, that when the goods were ultimately sold, a large portion of them, as the sales book shows, were knocked down to John C. Secrest, a minor son of the sheriff, but were in fact bid off at the sale by the sheriff himself, in *clear r*3]^g violation of law. This deponent, too, believes that the sheriff has not yet sold all defendant's property which was bound by these executions, to wit, a horse, and, it may be, something else. The deponent further states, that he is informed, and believes, and is ready to make appear, by proof, that long before the sale of defendant's goods, as set forth in the sale book, the sheriff entered into a i^rivate agreement with Clarke, for the purchase of the stock of goods which were bound by the executions, and that according to the estimate placed on them, in that contract, their value amounted to $1600 or $1700. That it was agreed between them, that to confirm this sale, the goods should be offered by the sheriff, and bid off by some agent for him, he to be responsible to Clarke or Clarke's creditors for the price agreed on as aforesaid. That in pursuance of this arrangement, the goods were put up in bulk, and bid off by the sheriff, or some one for him, in the name of his minor son John C. Secrest, and that subsequent to this sale, he took possession of the store, and sold many of the goods at private sale ; all which actings and doings were clearly and manifestly illegal and void. This deponent is informed, also, tliat the house and lot would have brought a much better price, if it bad been sold on a previous sale day, on which it had been advertised; but the sale was capriciously, or from some cause known to himself, put off by the sheriff, to a time when the individual who wished to purchase was not present. The goods, too, when sold, were knocked off in great haste, and hence, necessarily, at a reduced price. Certain this deponent is, that the plaintiffs in the executions against Clarke, have been greatly delayed and injured by the sheriff's course in this matter. Neither have the proceeds of the sale of the goods been paid over, unless within a few days a part may have been paid to the coroner. Neither has the sheriff to this day returned the executions according to law ; nor can this deponent procure them either from the clerk's or sheriff''s office. This deponent now submits, that in the order making the rule absolute, time was allowed the 208 COLUMBIA, MAT, 1841. VOL. L [*318 sheriff to make the money out of Clarke's estate, and if, within that time, lie had sold the whole of defendant's estate, he might have dissolved the attachment, nor would he have been opposed in that motion ; but, as he flagrantly neglected ^„, „, his duty, and disobeyed the *order of the Court, and as he has permitted ■^ Clarke's estate to be wasted, and as it is clear that the plaintiffs have been delayed, hindered, injured, and in all probability lost their debts, by his net^lio-ence and malfeasance, he is not now entitled to have the attachment dissolved. All which is respectfully submitted. Sworn to before me, this yth April, 1841. S. BECKHAM, Clerk. The following endorsements and returns are made on the executions of Leroy Secrest, sheriff, to wit : on the execution of Pitman & Day, as follows : ' ' Entered in my office, 15th April, 1839, L. Secrest, S. L. D." "I have levied on the house and lot, whereon the defendant lives, lying on Gay street. White street and B. F. Sadler's lot, and known in the plan of the town by Nos. 8 and 41, as the property of defendant. 15 Nov., 1839. L. Secrest, S. L. D." (Debt in part, $85.) "I have levied on the goods, wares, and merchandize, in defendant's store, as the property of defendant. 3 August, 184U. L. Secrest, S. L. D." "2d Nov. and tjth Dec, 1840. Goods sold for $851 85. An account of sales attached to this execution :" "I can find no more of the goods and chattels, lands and tenements of defendant, of which to make any other or more money. L. Secrest, S. L. D." Paid to the attorney, G. W. Williams, in the case of J, W. Kerrhy vs. W. Clarke, before sale of lands and goods, $350 46, of debt and attorney's cost, for which I detain out of the sales of the goods. Sales of the goods, - - - $851 85 Paid on Kerrby's case, to G. W. Williams, - - - $350 46 " Attorney's cost, in the above case, - - - - 11 .00 " Sherifl's cost in the above case, ... - 13 50 " " " in Hall & Co's case, - - - - 16 00 " " " in Pitman & Day's case, ... 14 50 — 405 00 $446 39 The following return is endorsed on the execution of Hall & Co., to wit : "En- tered in my office 15 April, 1839, L. Secrest, S. L. D. I have levied on the house and lot whereon defendant lives, on Main street, Gay street. White street, and B. F. Sadler's lot, and known in the plan of the town by Nos. 8 and 41, as the pro- perty of defendant, 15 Nov., 1839. L. Secrest, S. L. D." (Debt in part, $69.) Bid *^2m ^^ ^'^ Caleb Clarke, *at $700, 3d August, 1840. Bid paid, and titles made, 3d -' Aug., 1840. I have levied on the goods, wares, and merchandize in defend- ant's store, as defendant's property. 3 Aug. 1840. Leroy Secrest, S. L. D. 2d Nov. and 6 Dec, 1840, goods sold for $851 85 : an account of sales attached to this execution. I can find no more of the goods and chattels, lands and tene- ments of this defendant, of which to make any other or more money. L. Secrest, S. L. D. Sales of goods — how disposed of — see the case of Pitman & Day against this defendant. 5 Aug., 1840, paid to F. J. Wright, plaintiffs' attorney, $1000, of sales of land. L. Secrest, S. L. D. Eut'd, 4 March, 1841. H. HANCOCK, S. L. D. The sherill", on his part, upon taking up the rule, submitted the following affidavit : Personally appeared B. F. Sadler and J. Adams, and made oath, that they knew the property of \Vm. Clarke for the last two years ; that they also knew the time when it was exposed to sale by l,(!roy Secrest, late sheriff of Lancaster district, and believe tlie said property then sold for as much as it would have done at any time within one or two years previously. Tliat part of the property of said Clarke consisted of goods, wares, and merchandize, ho being a merchant. And we be- lieve tliat the way in which the said goods were sold was the best that could have been prescril)ed, and that they brouglit as much or more than they would if sold in any r)ther way. That they also believe the judgment creditors of said Clarke suffered no loss from tlic delay of said Secrest to enforce the said executions, furtlicr than tiie inconvenience arising from the delay of receiving the money. Sworn to and subscribed by \\. F. SADLER, J. ADAMS, W. G. COXE. *320] PITMAN ET AL. VS. CLARKE. 209 The Court, after licaring the cause for and against dissolving the attachments, as aforesaid, made this order. The plaintiffs, by their attorney, having shown sufficient cause to the rule taken out against them by Leroy Secrest, *Esq., late sheriff, r;jcqc)t requiring them to show cause why the attachment sued out in ^ their favor against him should not be dissolved, — on motion of Wright, ordered that the rule be dismissed. GROUNDS OF APPEAL. 1. Because his Honor held that he could not order the attachments to be dissolved, inasmuch as it would be setting aside the order of another Judge. 2. Because his Honor ruled that the contempt can only be purged upon the Sheriff's paying over to the plaintiffs, the whole amount of the executions upon which the attachments issned. 3. Because his Honor should have ordered the attachments to be dissolved, inasmuch as the sheriff, under the executions, sold all the property, real and personal, which defendant owned or possessed at the time, or since the lodgment of the executions, thereby putting the plaintiffs in as good situation as if the sheriff had sold before the return of the executions. Clinton, for the motion, cited Ex parte Thurman, 1 Bail. 605. A party can only require the sheriff to place them in the same position that they would be had he done his duty. There was no testimony that went to show that the plaintiffs in these executions have been damnified. That the sheriff could meet them on the facts, if the Court would order an issue to try whether the plaintiffs have sustained any loss. Cited Daniels vs. Capers, 4 McC. 237. Wright, contra. Curia, per Butler, J. I did not, on the circuit, nor do I now, cines- tion the authority of the cases o^ Ex parte Thurman, McGlane vs. Du- boze, (1 Bail. G47.) It was decided in these cases, that a sheriff could be relieved from an attachment ordered against him, by having it dissolved, when he had shown that he had used all the means in his power, under the execution against the defendant, to obviate and repel the conse- quences of his former default; and when it appeared the loss to be suffered did not arise from his negligence, but from the absolute insol- vency of the defendant in execution. There was *no negligence r^nc).-) or contumacy imputable to the sheriff in those cases, for disobey- L ing the positive instructions of the plaintiff, or refusing to comply with the order of the Court, to make the money, within the time limited. When a sheriff undertakes to vary from the requisitions of the law, in his mode of proceeding, and to consult his discretion and judgment, instead of obeying the mandate of the Court, he takes a position which entitles him to little favor and indulgence. A sheriff should never forget that he is a mere ministerial officer of the law, to execute, with little or no discretion, the judgment of the Court. The juilgment, when pronounced, is the voice of the law, peremptory and explicit, and should be implicitly obeyed by every officer intrusted with its execution. When it shall be regarded as a reproach, that a sheriff is ruled for not making money, except in cases of controversy and absolute inability to raise it under y/. fa., there will be fewer insolvent sherifl's, and a greater confidence in legal proceedings. When an officer asks for relief and forgiveness, he should YoL. I.— 15 210 COLUMBIA, MAT, 1841. VOL. I. [*322 either show that he has committed no wilful fault, or that he has done every thing in his power to repair it. The sheriff, in the case under con- sideration, does not occupy this situation. He wilfully omitted to do his duty in the first instance, and when he was ordered to be attached for his default, instead of proceeding forthwith to make tlie money, within a time allowed him, and when he was required to do so by the positive instructions of plaintiff's attorney, he delays and consults his own discre- tion — pursuing a course not sanctioned by the law, and one which would lead to great mischief if countenanced by this Court, that of selling at private sale, property levied on under execution. We cannot look beyond the return of Wright, the attorney, and that presents a case of culpable negligence on the part of the sheritf. Throughout he seems to have been utterly indifferent to legal process, and to have taken his own irregular and illegal course. He cannot com- plain if the consequences are visited on him. The decision below is affirmed, and this motion dismissed. The whole court concurred. See Connor vs. Archer, 1 Sp. 89 ; 2 Rich. 529. An. *323] *J. A. Kennedy vs. Joshua Sowden. The town coimcil of Columbia, under the act of incorporation, have the power to enact by-law:;, which shall be binding upon the persons and property, not only of the citizens of the town, but also of non-residents, when they come within the corporate limits of said town. Before O'JSTeall, J., Richland, Spring Term, 1841. This was a summary process in trespass to recover for a hog seized by the defendant, as a marshal of the town of Columbia. The plaintiff lives outside of the corporate limits of the town of Colum- bia. One of liis hogs was found at large in the street. The defendant, under the ordinance* of the 9th September, 1839, to prevent goats and * An Ordinance to prevent goats and swine from running at large within the limits of the town of Columbia. Be it ordaiiii"ram, who said to him, I am afraid your title from Thomson is not good. I am willing to give you, for the benefit of your family, $120(1 for the land, but I am afraid 1 cannot get good titles from you ; you must forbid the sheriff's sale, and I will bid and take the titles from the sheriff. The witness said lie agreed to this arrangement, and that when the land was offered for sal<-, he forliid {ho sale, saying, that whoever bought the land, would buy a lawsuit. 'I'h.r land was set down in the sheriff's books to John Rogers, but the titles was made to Aliram Mt'Junkin. The witness said that Abram never had paid him any tiling for the land; ho may have paid the amount of the Malone judgment, (al)out $lf)0;) that judgment was recovered on a joint and several note, 8ign.-d by liis father and himself; that lie was security on note; and that a separate judgment was recovered against each maker; the land was knocked off to Abram, or for liim, at $10, (it appeared here, that the plaintiff had got the laud ^3-44] GIST ET AL. VS. m'jUNKIN ET AL. 2^5 conveyed to him, on a bid of $16.) The witness said, that one Gregory had oflferod him $1200 for tlie land, if he would make him good titles. On his cross- examination he said, the money that was paid to William M. Thomson, was his own, althoujfh his father may have paid it. Benjamin Gregory said he was anxious to buy the land, and would have given $8 or $10 an acre ; oifered Jos. A. McJunkin $1200, if he would make good rights. On the day *the land was r^oAr sold, under the Malone judgment, witness asked Aljram about Jos. A.'s '- title. Abram said he did not think it good, and advised witness not to bid, or that he would involve himself if he did. No one bid at the sale but Rogers, and he made but one bid. The fact that the land was represented to be in dispute, made it sell for less than its true value ; the land was valuable. B. Johnson, the sheriff, said he advertised and sold the land, without any par- ticular instructions from Malone. There was an endorsement on the execution to proceed forthwith, and he proceeded under this instruction and the execution itself. L. B. Geter heard Abram McJunkin say, that the land had been bid off by Jolm Rogers, but it was for himself. Daniel Thomas said he came to the sale to bid for the land ; regarded it valuable ; that just as the sale was coming on, he inquired of Rogers whether there was any incumbrance on the land. Rogers replied, that any one who bought it, would buy a law suit. This evidence was objected to on the part of the plaintiff, and admitted by me, on the ground, that the connection in the transaction, alleged to be fraudulent, between Abram McJunkin and Rogers, was abundantly proved. Dr. Jeter said, that before the sale, he saw a good deal of intercourse between Abram McJunkin and Rogers ; they seemed to be in constant conversation, &c. In going home after the sale, he and Abram and others in conversation, A))ram said he was sorry he had bought the land. The witness said the land was worth from $10 to $1.5 an acre. William Davis, heard the defendant say the same thing at another time. Jos. A. McJunkin, recalled. About seven days after Malone's sale, he made a deed to Abram, in consideration of $1200 ; no part of which he has received. There wei'e several witnesses, who said they had often heard Abram McJunkin say, that the judgment of OrcUnarij vs. John T. McJunkin, was satisfied before the sale under it. Evidence on the part of the defendant : — John Ward said, he saw a note given by Abram McJunkin, to Jos. A. McJunkin, for $(iOO, which witness regarded as part payment of the land ; saw it in John T. McJunkin's possession ; saw Abrani sign a note, to Mrs. John T. McJunkin, for $200, for her dower. * Mr. Kesler, said he was present when Jos. A. executed the deed to r^o^p Abram. At the same time, Abram gave his note for $G00, and paid some '- money, but how much, witness could not say. The evidence here closed. Then, after full argument, the case was submitted to the jur}'. I held that Judge Harper's decree was not a final judgment, which, of itself, set aside the sale of Thomson." But the question was still open, whether John T. and Jos. A. McJunkin, by combination, have procured titles to be made by Thomson to Jos. A., at a less price than the real value of the laud, with a view to defraud John T.'s creditors. This question was distinctly submitted to the jury, with a full explanation of all the circum- stances which could effect either side. So of the sale under the Malone execution. This was a question of fact, which belonged to, and was sub- mitted to, the jury. What I have said embraces all the questions involved in the case or growing out of my charge. There is no foundation for second ground of appeal. I suffered the declarations of Abram McJunkin to be given in evidence, by witness sworn before rae, and said, that although the decree of Chancellor Harper must be received, nevertheless, the evidence re- VoL, 1—16 226 COLUMBIA, MAT, 1841. VOL. L [*346 cited in it, was not evidence received in this case. This, however, was unimportant, as the same evidence was given before me of Abr'am's decla- rations. I do not understand the meaning or reference of the fifth ground. I will not speak of all my omissions, but I say, that I never instructed the jury not to believe Jos. A. McJunkin ; for, on the main points of his testimony, I thought he told the truth. The plaintiffs did not recover as much land as that" described in the declaration, their verdict was for {he land whereon John T. McJunkin lived, and they can take no more than that under a writ onmbere facias possessionem, as it regards the rent. The proof was that defendants had been cultivating the land, about forty acres, for five years ; and witness said, land would rent from $2 to $3 per acre. I cannot now say, what was the estimate of the jury ; they found for the plaintiffs, the land and $300 damages. I was willing that the jury should have found less damages, as from Chancellor Har- per's decree, it appears to me that the McJunkins had been hardly used, in a way that approached oppression ; and as I said to the jury, I wish ^ -, they had pursued a proper mode to relieve themselves.* Upon -J the whole, my sympathy was with defendants, but I submitted the case without prejudice to the jury. The defendants appeal, on the following grounds. GROUNDS OF APPEAL. 1. T3ecause the title of William Thomson being legal and valid, he had a perfect right to give or convey the land to whom he pleased. And Joseph A. McJunkin, having paid his own money for the title of Thomson, had as perfect a right as Thomson. And the Court erred in charging the jury that they might find the conveyance from Thomson to Joseph A. McJunkin, fraudulent and void. 2. Because the Court permitted what the defendant, A. McJunkin, said in the case in Kquity, of /. T. McJunkin vs. Bates (f- Thomson, to be given in evidence, to defeat the title of Thomson, and consequently, his own title, when, according to the decree in the case, the title was not set aside, and is yet good and valid, and the Court charging the jury upon this evidence against the defendants. 3. Because the purchase of A. McJunkin, under the Malone judgment, was good and valid, and the Court erred in charging that the acts of A. iMcJunkin and J. A. McJuidvin, might be considered fraudulent, and vitiate the sale, when they had no agency in procuring the sale. 4. liecause the Court permitted the declarations and advice of Mr. John Rogers, to be given in evidence against the defendants ; and held, and took for granted, that Kogers was the agent of A. McJunkin at the time they were made. 5. Because the character of Joseph A. McJunkin was attacked by the testimony of two witnesses, and the evidence of his own deed ; and the Court omitted cliarging the jury upon this part of the case, or to give them any instructions, and said witness was unworthy of belief. 0. Jiccause the defendant, A. McJunkin, is a purchaser for a valuable con- sideratioii from .1. A. McJunkin, without notice of any fraud between J. A. McJunkin, J. T. McJunkin, and William 'I'liomson, if there was any. 7, Jiecauso tlie jury have not found the land sued for, nor the land described in the plaintifl's deed, and thoy have given damages for the rent or use of tlie land, anterior to the time when the plinntiffs actpiired a title. *348| *^' ^^''^''"^f' ^'"' plaintiir, having the oldest judgment, will recover the J proceeds of the former saU-s, and obtain tlio land also. y. Because the verdict is contrary to law and evidence. '348] GIST ET AL. VS. m'jUNKIN ET AL 227 Ilcrndon, for the motion — on the first ground. Title of William M. Thomson. Is this title a good one ? It is contended that this title is set aside by Chancellor Harper's decree, but by good authority, ho hoped to show that it was not set aside. It was not necessary for the defendants to go on and hold the reference under Chancellor Harper's decree, but it was the duty of the complamants to do so ; the omui was on them. The decree of the Chancellor in the bill in equity, was not final between the parties. There are two kinds of decrees in equity, final and interlocutory. And this decree will be found to be interlocutory. It is immaterial as to the defence in this case, whether the title be in the defend- ant or in others ; it is sufiicient to divest the plaintiff of his right, to show a better right than his; one in another. Harrison vs. Ilol/is, 2 N. & McC. 578. 2d Ground. A purchaser for a valuable consideration has a good title, though the party from, whom he purchased obtained his title by fraud. 10 John. 185. Also, S. P. Com. Law Rep. 35. Dawkins, contra. The questions of law were decided by the Court in favor of the defendants, and the only questions left to the jury, were those of facts. The question for the Court is, whether Thomson's deed was a valid one or not. A man's declarations are admitted, upon the ground that he will swear nothing against himself. 3d Ground— 12 Wendell Rep. 41. Thomson, same side. We go entirely against the title of William M. Thomson, and declare, that by the Chancellor's decree, Thomson's title was completely nulli- fied. Cited McCool vs. McClarei/, Harp. Rep. 486. *A. McJunkin was estopped by the Chancellor's decree, and any person r*o_aymeiit of debts, although of inferior degree ; and the court of Equity having undertaken to make provision for the payment of the bond debts out of the real estate, it was the fault or laches of the plaintiff, that he did not secure his del^t ; and the securities of the administrator were no further liable. *382l Curia, per Earle, J. From the number of cases in our *books of rejiorts, arising out of the liability of administrators and their securities, one would suppose that a new point could hardly arise. Yco I think there are some errors prevailing among the profession on this suitject, as I think there arc some ill-considered dicta scattered through the cases. One of these is, that no action at all can be maintained on the administration bond, against the securities, until the administrator has been cited before the Ordinary to account, and there has been a decroe against him. A creditor of the estate has no claim to go before the Ordinary r.)r an account; nor has the Ordinary any jurisdiction to de- cree tiic i)ayinent of his d(>l)t, or to make any decree that would avail him in the collection of if. WIkmi the suit on the bond is for the heirs at law or distributees, an account befure some tribunal is necessary, in order to ascertain fur what sum, after the payment of debts, the administrator is *382] THE ORDINARY VS. HUNT. 249 liable. A creditor suing on the bond, has only to establish his debt against the estate of the intestate, and show that assets have cotne to the hands of the administrator, sufficient to yiay it, which have been misap- ])lied. The conclusion of the Court, in the Ordinary ^s. Jones, (4 McC. 113,) is, that " no action should be had upon the bond, until by a proper course of proceeding, the claim of the creditor be established, and it be ascertained that there are assets sufficient to pay his demand, or a devas- lavit be clearly and formally established against the administrator." The evidence in the case before us, comes up to the requisition of the rule thus laid down. The demand of the creditor was established against the estate of Rouse, in the action at law against the administrator, in which there was a verdict for the plaintiff, after full defence, and on full proof. Had the plaintiff proceeded to suggest a devastavit, and fur- nished the evidence which was produced in Equity, or exhibited the pro- ceedings, he must have had judgment de bonis proj'iriis against the administrator, which would have fixed the securities, in a subsequent action against themselves. And it seems to me, that the only inquiry to be made is, whether the proceedings in Equity furnish sufficient evidence, that on accounting, under the decree of that court, for the personal estate, the administrator had assets to pay the demand claimed of him, and that he wasted them or misapplied them. The suit there was instituted by the heirs at law, for partition of the real, and an account of the personal, estate. A portion of the bond ^creditors, and among them r*oQo Glover, for whom this action is brought, interprosed a claim to •- be paid out of the real estate ; and upon taking the account of the per- sonal estate, it ajtpeared that assets had come to the hands of the admin- istrator, sufficient to pay Glover's.debt, which he applied to the payment of simple contract debts, after notice. This was a devastavit in him, which makes the securities liable. All the persons interested in the estate, wei-e parties to that proceeding ; which was in effect beneficial to the securities : for who.tever was received by the creditors out of the sales of the land, diminished their liability to that extent ; and they have very little reason to complain that they are only made liable for the balance. That the creditors resorted to Equity to obtain payment out of the land, in no degree lessens their claim to proceed at law against the administra- tor or his securities. And without giving effect to the report, confirma- tions, and orders in Equity, as res judicata, establishing a devastavit, the other evidence before the court below was enough for that purpose. The written notice of Glover's debt was served on the administrator, the 2Tlh January, 1830; and his account filed with the Ordinary, exhib- ited an amount of three thousand dollars, then in his hands, and paid, subsequently, to simi)le contract debts. This, with the return of nulla bona on the execution against the administrator, abundantly establishes the devastavit. The administrator has not performed his undertaking, faithfully to administer the personal assets. And the failure of the credi- tor to oljtain the whole of his debt out of the real estate, is no defence to his action against the securities, who arc justly liable, upon the same proof which would have been sufficient against their principal. There is no pretence for the charge of laches against the creditor, admitting that to be a valid defence ; although it would not be, for he gave timely notice 250 CHARLESTON, FEBRUARY, 1841. VOL. I. [*383 of bis demand ; and both the personal estate was exhausted, and the land sold for partition, before he obtained judgment. That a sufficient sum was not retained to pay all the bond debts, was not the fault of the plaintiff, but of the administrator, and the heirs at law. The judgment of the Circuit Court is affirmed. The whole Court concurred. Hunt and Thomson, for the motion. Grimke, contra. See Sup. 100 ; 7 Rich. 179 ; 3 Bur. 530 ; Wiley vs. Johnson, 6 Rich. 358. An. CASES AT LAW AKGUED AND DETERMINED IN THE COURT OF ERRORS OF SOUTH CAROLINA €>hnxksian, d^ebntarg, 1841. JUDGES OF THE COURT OF ERRORS. HON. DAVID JOHNSON, Chancellor. " RICHARD GANTT, Law Judge. " JOHN S. RICHARDSON, Law Judge. " JOHN BELTON O'NEALL, Law Judge. " WILLIAM HARPER, Chancellor. " JOSIAH J. EVANS, Law Judge. «' BAYLIS J. EARLE, Law Judge. " JOB JOHNSTON, Chancellor. " ANDREW PICKENS BUTLER, Law Judge. " BENJAMIN F. DUNKIN, Chancellor. James Murray vs. South Carolina Railroad Company. The Railroad Company are not liable to one of their agents for an injury arising from the negligence of another competent agent. Before O'Neall J., Barnwell, July Extra Term, 1838. This was an action on the case, against the defendants, for an injury sustained in their service. The plaintiff is a tailor by trade. He resided at Aiken, and applied to Capt. Robertson, the agent of the company, for employment. He declined employing him, on account of his intemperate habits and conse- quent rashness. He, however, went on to Charleston, and was employed as a second fireman, *on the 18th of May. He selected the r:(cqop engine and engineer to which he was to be attached and under '- whom he was to serve. William E. Perry was the engineer. About the 21th of May, 1837, the plantiff's second or third trip, as the engine was ascending the road from Charleston, near the Four Hole Swamp, just before entering an excavation, and within about three hundred yards of it, one of the witnesses (Johnson, the first fireman,) said he saw a horse 252 CHAKLESTOX, FEBRUARY, 1841. YOL. 1. [*386 standing near the commencement of the excavation, within ten steps of the road, feeding slowly towards it : he touched the engineer on the back, and asked him if he saw the horse ; he made no reply : the engine ran on : the plaintiff said to the engineer, " stop we are in danger :" the engine still proceeded, until within fifty or sixty yards of the horse : this witness said he then put his hand on the " escape steam valve," and told the engineer again to stop, for there was danger of running over the horse, and pointed towards him : he, the engineer, then shut off the steam : by this time the horse stepped upon the road, and there stood : the engine with the steam shut off, ran within six or eight feet of the horse : the engineer gave her all the steam she could carry, to carry her as quick as possible, and with the least danger, over the horse. At this moment, this witness took hold of the awning post, and swung himself outside the engine, for the purpose of jumping off on the left hand side of it : in this position he could see under the engine, which struck and ran over the horse : as ii left the road on the right hand side, the witness jumped off on the left. His post was on the left, and the plaintiff's on the right, of the engine : the break to stop the engine was on the right, and nearer the plaintiff than the witness : when the engineer shut off the steam, the brake was not let down : (he said he was too much agitated by fear to think of the brake :) had it been let down, the engine might have been stopped. As the engine left the road, the plaintiff's leg dropped between the foot board of the engine and tender, and as these two came violently together, when the engine stopped, his leg was crushed, and his thigh was afterwards amputated midway. This witness gave it as his opinion, very distinctl}', that the accident might have been avoided, and resulted from the carelessness of the engineer, in not stopping the engine as soon as cautioned : he thought that as the engine *^S71 ^^^ running only at the rate of ten or twelve miles per *honr, -I it might have been stopped before they reached the horse. He said it was not the fireman's duty to let down the brake, unless ordered by the engineer. Meredith, the conducter of the train, said, just as they emerged from an excavation, he saw the horse about fifteen yards from the road, moving from behind some bushes, and running in an oblique direction towards the road, and in the direction the engine was pursuing ; lie ran thus about twenty yards, when he leaped upon the road between the rails, just at the entrance of another excavation : as he did so, the engine struck him, and passed over him, and was thrown off the track. The engine was running from sixteen to twenty miles an hour From the time this witness saw the horse, he said that he thought the only way to avoid him was to outrun him. He said, that to stop the engine, it is the duly of the engineer to shut off the steam, and the firemen to let down the " brake ;" it is, however, the engineer's duty to order the fireman to let down the brake. Perry was proved to be a skilful professional engineer. The witnesses, Robertson and Ross, concurred in saying, that it was the duty of the engineer to shut off the steam, and the fireman to let down the brake, (and that was the particular duty of the second fireman) whether ordered by the engineer or not to stop the engine and jirevent any accident. About three hundred feet is as short a space as within wliich the engine can be stopped, when running at the average rate of fifteen miles an hour. *387] MURRAY V-9. RAILROAD COMPANY. 253 The jury were instructeil, tliat the plaintiff's service subjected him to all the ordinary risks and perils of the employment. Each officer of the company, as to strangers and inferiors, was to be considered as the com- pany ; and every connuand or act given or done by him, must be regarded as given or done by the company themselves. If a superior officer had given an order to an inferior, to do an act not necessary to be done, and not within the duty of the inferior, and in doing it, injury resulted to the inferior, then the company would be responsible. If, in running the road, a superior officer (the engineer) did his duty so carelessly as to subject a servant of the company to unnecessary danger, and which the servant could not avoid, then the company would be liable. But if the peril, from which the injury resulted, was unavoidable, or if the engineer did every thing ordinary prudence* suggested, to avoid it — and, r^ooq notwithstanding, a servant sustained injury, it would be one of the ^ risks to which his contract of service subjected him, and he could not recover. So, too, if the servant, (the second fireman,) did not do his duty, and to its neglect (as not letting down the brake) the injury might be fairly ascribed, then, in that case, his injury would be attributable to himself, and he could have no redress against the company. The facts under these instructions, were submitted to the jury. I thought, and still think, there was very little proof to justify a verdict, but still that little may sustain the verdict, $1,500, found by the jury for the plaintiff. The defendants appeal, on the annexed grounds. GROUNDS OF APPEAL. 1. Because the plaintiff, being a fireman actually employed on the car to which the accident occurred, cannot recover against the company in whose service he was. 2. Because the ordinary risks of the occupation of the plaintiff are to be sustained by himself, and the accident was the result of such risks. 3. Because the plaintiff himself was partly in charge of the car to which the accident occurred, and might have prevented it himself, by the timely discharge of his own duty. 4. Because the plaintiff, being a tailor by trade, imposed himself upon the company as a fireman, and tiio accident is attributable to bis own negligence and want of skill. 5. Because it was clearly proved, that there was no want of skill or diligence on the part of the engineer, or other servants of the company. G. Because the accident itself was unavoidable, and the verdict is contrary to the evidence in all these particulars. Col. Blaxding's Argument. It is of the utmost importance that the principle of the case shoiild be settled correttly ; not so much on account of the railroad, as of the public in general. The company can make its contracts with its servants so as to avoid liability, if this verdict should bo sustained. But this cannot be so easily done by others vrho come withiu the same principle. That principle, as contended for by the plaintiff, I take to be this: *that wherever an individual or company of rsoon individuals employ several persons to effect any operation, the mismanage- '- ment of one of those persons, during the operation, by which another of them is injured, will subject the employer to damages at the suit of the injured person. This the defendants deny, and contend that wherever a company (or individual) employs several persons to effect, by a joint effort, any business, each person so employed takes on himself all the risks of the service which do not result from the mismanagement or improper conduct of the company itself, and each servant 254 CHARLESTON, FEBRUARY, 1841. VOL. I. [*389 agrees to take on himself tlxe risk of all injuries to result from the mismanage- ment or negligence of the other servants of the company engaged in the same undertaking. To illustrate this view of the subject, let me state our views a little more fully. The comi>any are supposed to warrant that the service is not a more dangerous one than it appears to be. Thus they are supposed to warrant that #qqm the road is in ordinary repair ; that the engine is a good one, and that *the ■' engineer is competent. And if this is not true, to the knowledge of the James Mckray vs. The Railhoad Company. The evidence of William Johnson, witness for plaintiff. The witness being sworn, says he was present, and in the employment of the defendants, at the time plaintiff had his leg broken. It was about the last of May, 1837. It happened about thirty-four miles this side of Charleston, near Four Hole Swamp. The witness was the first fireman, and his position was on the engine. The engineer, the plaintiff, and the witness, were on the engine together. They ran on very well till they got to the Four Hole Swamji. When they had got within about three hundred yards of being out of the swamp, the witness saw a horse standing by the side of the road, in the edge of the swamp, and near the commencement of the excavation. As soon as he saw the horse, he asked the engineer if he saw the horse — the engineer made no answer. They ran on, ap- proaching the horse, and the plaintiff said to the engineer, stop, we are in danger. They ran on a piece further, nearer the horse, within fifty or sixty yards of him, when the witness put his hand to the steam valve, and told the engineer to stop again, for there was danger of running over the horse. The engineer then shut off the steam. By this time, the horse stepped upon the road, and there stood — the engine, with the steam shut off. ran within six or eight feet of the horse. Before, however, tlie engine got that near the horse, the witness took hold of the awning post, and swung outside of the engine, with one hand on the awning post, and one foot on the foot-board of the engine, in a swinging position, for the i^iar- pose of jumping on the left hand side of the engine. The witness could see the front wheels, by looking under. As soon as the engine struck the horse, it knocked him down, his fore legs on one rail and his hind legs on the otl'er. As soon as the hind or driving wheels struck the horse, the engine bounded up, and tlie witness sprang off on the left side, and the engine ran oil' on the right side. Wlien the witness jumped off, the engineer was on the right hand side of the engine ; the plaintiff was standing between the v/itness and tlie engineer, a little back, on the foot board of the tender. As the witness struck the ground, he rolled over and over twice, and got up, and went to see what had happened. The engineer asked him if he was hurt, he said no — and asked if any of them (the engi- neer and ))laintiff) were hurt; the engineer said no — the engineer then turned to Ulaintilf, and asked hiiu to hand a bucket of water to put out the fire — the witness ran round the head of the engine, and as he got round he heard the plaintifl' say liis leg was broken. Witness thinks if the engineer had tried to stop the engine, when he (the witness) first showed him the horse, he might have avoided the accident. The witness had seen the engine stoi>ped within a shorter distance. Tiic horse was not running. T/ic u-itness is dccidedli/ of the opinion that the arriilcnt iras ocaisioiial hi/ the neyliijt.nce of the cnijincer — thinks the engine was not going over ten or twelve miles an hour, and therefore thinks the engine could have Ixjon stopped. When the engine got within six or eight feet of the horse, the engin<^f the engineers to take in water at the twelve mile lK>8t, at Snuinicrville, an witness says ho had been about two months in the service of the company aa a flremau, wlicu the accident happened, and ha company with ^390] MURRAY VS. RAILROAD COMPANY, 255 company or their chief agent, and the danger is thus greater than the servant had a riglit' to expect, and from that cause he receives an injury, it would seem rational that the company should be liable. But the company cannot be sup- posed to warrant that each servant of the company shall always be watchful, and Perry about two weeks ; it was the second or third trip the plaintiff had made as fireman in the service of the company ; the witness and the plaintiff were receiv- ing a dollar a day as firemen. From the time the witness saw the horse till the accident happened, the engine passed through no excavation ; when the witness first saw the horse, he was standing, feeding on the right hand side of the road, about teu steps from it, and moving slowly towards the road; when witness asked the engineer if he saw the horse, he touched him on the back ; the en- gineer turned round, but said nothing ; the witness pointed towards the horse ; when the engineer shut off the steam, the brake was not let down ; the engineer gave no orders to let down the brake, which he generally does ; the brake was on the right hand side of the tender, and nearer to plaintiff than to witness ; had the brake been let down when the engineer shut off the steam, the engine might have been stopped. The witness was too much agitated with fear at the time to think of the brake. If the engineer had told the plaintiff to let down the brake, the witness covild have heard it. It was not usual with the witness to let down the brake unless ordered by the engineer. When witness first saw plaintiff after the accident, he was standing holding to something ; did not say he was hurt, till he attempted to get the water. His leg Avas broken between the foot-board of the tender and the foot-board of the engine, by the former running under the latter ; is not certain whether they took in water at the station twelve miles from Charles- ton or not, but does not think they did ; is not certain whether they had wood sufficient to carry them to Ross's or not, but is certain they had water enough ; the wood was picked, and was nothing but chips and trash. The engine made steam very easily. Thinks the engineer's intention in giving steam to the engine within six or eight feet of the horse, was to go over the horse quick, in order that the forewheels might strike the track on the other side. After they saw the horse, witness heard the plaintiff' tell the engineer to stop, for they were in danger. The engineer said nothing from the time the witness saw the horse till the accident happened. In reply — There were men on the road while the witness was there, who com- menced as firemen, acting as engineers, viz. : Alfred "Weed, Thomas Kingdom, and William Gillespie. About a week before the accident, Perry ran over a cow, which in the opinion of the witness might have been avoided. The business of a fireman is only dangerous when the engineer is not careful, or when unavoidable accidents happen. Coming out of the Four Hole Swamp there had been an exca- vation, but the dii-t had been carried off. He would not consider it his duty to put down the brake, unless told to do so by the engineer. It was the first time he spoke to the engineer about the horse, he put his hand on his back. Sworn to before us : A. PATTERSON, A. P. ALDRICH. TTie testimony of William C. Meeedith, taken by consent, for defendants. The witness being sworn, says : — That he was the conductor of the train of cars, on or about the 27th May, 1837, when an accident occurred on the railroad, near the Four Hole Swamp. The locomotive and tender were thrown off" the road. The accident happened iu this way : — after passing through an excavation, the witness saw a horse about fifteen yards from the road, moving from behind some bushes, running in an oblique diroetion towards the road, and in the direction the cars were going. The horse ran thus about twenty yards, when he leaped between the rails of the road, just at the commencement of another excavation, and where the rails were even with the ground, or what is call a surface road. As the liorso leaped between the rails, the engine caught him, ran over him, and was thrown off the track, as above mentioned. The witness was, at the time, standing on the foot-board of the hindmost car, when he first saw the horse, and until the engine 256 CHARLESTON, FEBRUARY, 1841. VOL. I. [*390 that no servant shall be injured by the negligence of another. Now, if this be not the true doctrine, some case can be found where the employer has been made liable at the suit of one servant for the negligence of another, by which he has been injured. These accidents have been numerous. They have for ages been was thrown oflF the road — on the same side the engine was thrown off, and" on which the horse approached the road, and saw distinctly what he has stated. There were from seven to nine cars in the train, and where the witness stood, was from one hundred and ten to one hundred and fifty feet from where the engine stood, and the train was moving at the rate of from sixteen to twenty miles an hour — the train was on ground a little ascending. To check the engine, it is the duty of the engineer to close the valve, and duty of the fireman to let down the brake — the witness was not in a position to see whether this was done, but thinks the valve was not closed till the horse crossed the road. When the witness first saw the horse, he thought the only chance to avoid coming in contact with liim, was to out run him, and was of that opinion till the collision took place. The witness does not know whether the brake was down. Mr. W. E. Perry was the engineer, and Wm. Johnson and the plaintiff were firemen. The witness does not know when the engineer first saw the horse. At the time the accident occurred, the plaintiff was standing, either in the tender, or on the foot-board of the engine ; that was his proper place. The plaintiff was not a passenger, he was in the service of the company as a fireman. Cross-examined. — The witness says, the engineer might have seen the horse .sooner than he did. The position of the engineer was a foot, or a little more, higher than that of the witness. The witness thinks, if the engineer had seen the horse one hundred and fifty feet sooner than he did, he might have so retarded the engine, as to have permitted the horse to outrun it. The hollow between the two excavations, is from sixty to one hundred yards wide. The horse might, by leap- ing both rails, have crossed the road from five to ten yards before entering the ex- cavation. In the deepest part of the hollow, the rails are not more than three feet from the ground ; the distance the engines at that time were instructed to go, was not to exceed fifteen miles an hour, as near as could be made. Thinks it waG possible for the engineer to have seen the horse before he got out of the first excavation. The engineer has the control of the firemen. If the engineer wishes to stop the engine, lie must tell the fireman to let down the brake. It is easier to stop the engine on an ascent, than on a descent. At the speed the engine was going at that time, and at that place, she could not have been stopped under one hundred yards. She could not have been stopped between the two excavations, but she might have been so retarded, that the horse might have avoided it. The valve was not closed till the horse crossed the rail. Perry was said to be a professional engineer ; he ran very well to the place the accident happened. The witness did say that he would not go on the train when Perry was the engineer ; the witness .said tliis, because he thought Perry ran faster than he ought to do, over certain parts of the road ; did not think he had been long enough on the road to be safe. Ho appeared to be cautious enough ; heard of his having run over a cow. Mr. Perry took in wood twice between (Jharleston and the place where the accident happ(Mied ; the distance is about thirty-four miles. It is not usual to take in wood and water at each station. The witness cannot attach blame to any jierson for the accident, from the facts coming within his knowledge. If Perry saw the horse time enough to stop, he was to blame ; but whether lie did see tlie horse in time, the witness cannot say. The engine was good — Ih-st rate. In Rc.jili/. — The witness acted as a conductor twenty-one or twenty-two months. If an engineer is attentive to his duty, he has not much time to look around, or notice objects on either side of the road. It is his duty to notice the road ahead, and the luadiinery. Tlie witness thinks there was wood enough aboard to carry the train to the next station. As to water he cannot say, as he knows nothing, as the water pipes were broken off. Sworn to before us : A. PATTIvRSON, A. P. ALDKICH. ^390] MURRAY 7-.^. RAILROAD COMPANY. 257 of daily occurrence. The blacksmitli, the carpenter, the ship ovnier, in fa(;t, in every occupation, where a joint effort is required to jierform any i)iece of Vmsiness, the employer intrusts many to effect it ; and every day it happens that some one of them is injured by the nef?Iig(;nce of another. Yet no case can be found where it was ever imagined tliat the eniph^yer *was liable for such an injury, r^^oq-i And this would seem to put the question to rest. For no reason can l>e ■- assigned why a railroad company should be subject to a rule which does not api)ly to every company or individual wlio engages many about the same busi- ness. If no sailor ever recovered against the owners, for an injury occasioned by the negligence of the master, mate, or other sailors; if one journeyman black- smith never recovered against his employer for a burn by the carelessness of his co-journeyman ; or if no instance can be found where, in all the various avoca- tions of life, the principal has been held liable to any of his agents for an injury by liis co-agent, it may be well asked, why a railroad company should be made tlius liable. The principle, as applicable to these cases, where one man or a company is to be made liable for the act of another person, is this : that no one shall be liable for another's act, except he has commanded it, or "has agreed to be so liable ; or where such liability has been imposed on him by law, from principles of policy, or for the public security." *iS'ow, it will hardly be supposed that in this case the company can be r*ono charged with an express or implied command to break the plaintiff's leg, '- or that the company ever agreed to be liable for the act. If they are liable at all, it must be on principles of policy, or for the public security. Now, let us see how far the public security would be promoted by making the comx^any liable to all its servants for injuries they may sustain by the negligence of their co-scrvants. The public security requires that every possible motive should be held out to every person engaged in running a train of cars, to use the utmost care ; that each should see that every other person engaged in the service does so ; that every other person is competent to his post, and that the road, engine and cars are in safe order. Whatever j)rinciple is best calculated to secure to the public all this, is that which the Court should adopt. If this will be best promoted by making each person engaged in running the train risk all injuries he may receive, without resort to his employer, then he should be excluded *from such resort. If want of such resort would make him more careful pKonQ himself, make him urge others acting with him to more care, M^ould induce '- him never to act but with those whom he knows to be competent, prudent, and careful, it is believed that the public would find security in it. Now, it is very certain that where he is denied all recourse, he will risk less than where he ex- pects a pension for life, or a sum in gross, for any injury he may receive in the service. This view of the case, it appears to me, is sufficient to establish the rule, that every person who enters into the service of a railroad company takes upon him- self the risk of all injuries he may sustain from the ignorance of the servants of the company who are engaged in conducting the train of cars, and that the security of the public requires the adoption of this principle. If, in ordinary joint efforts, when only the interest of the company is coiicerned, no case can be found where it has been decided that the principal shall be liable to one of his ^servants for the negligence of another, how much stronger is r^'yaA the reason for adopting the same rule in this case, where the safety and '- life of passengers are promoted and secured by it, and where a different rule would greatly diminish that security. Let us compare the case of the injury sustained by a servant of the company, from the negligence of its agents in concert with him, with the case of injuries received from similar negligence by strangers, passengere, or freighters. The liability of the com})any for the loss or damage to goods it takes to carry, is founded on principles of public policy. As common carriers, the company is liable for all losses, except from the act of God, or the enemies of the country, even when there is no negligence, and the principle in that case has no analogy to the one before us. In case of injury to passengers, the rule is different, and the company is liable YOL. 1.— 18 258 CHARLESTON, FEBRUARY, 1841. VOL. L [*394 for all injuries to tliem which arise from any negligent act of the agents of it. ^oqr-i The difference in that *case from ours is most striking. The passenger paz/s J the company for carrying him. The agent or servant is paid by the com- pany. The passenger has nothing to do in running the train, and if he should interfere, he would not only lose his claim on the company, but might be made liable to it in case an injury should happen. The agent or servant is bound to act, and act faitlifuUy, and to see that others engaged with him do so ; or at least is bound to inform his employers, if he sees negligence in others. The passenger can know nothing of the condition of the road, or works, or machinery, and has to trust for his security to his right to recover damages if he is injured. He has no information as to the competency, skill, or prudence of those who drive the train. But, on all these matters, the agents or servants of the company may be informed before they enter the service. With such a difference of information, and condition, it would be extraordinary if the same principle should apply to both. If the company, then, are liable to the passengers only for the misconduct *^Qfll ^^ negligence* of its agents, what is the extent of its liability to its serv- ■' ants for injuries sustained in conducting the train? Not for such as re- sult from negligence or misconduct of those with whom they act, but simply, as I have before stated, for such injuries as they sustain from being placed in a more dangerous service than that on which they agreed to enter. If the servant has been deceived by the company as to the nature of the service, and is injured, the company would be liable. As to the competency or care of those with whom he acts, he has the same means of information that the company possesses, and oftentimes much greater ; and when the persons who are to conduct the train enter on the service, policy requires that they should be sureties for each other ; so far, at least, as to exempt the company from any responsibility for injuries which one may receive from the carelessness of another. The rule as to sailors goes further than this. The owners of the ship are not liable to the sailors for injuries they may receive in the service, howsoever they may happen ; but if the ship is lost, they forfeit their wages, nor can they recover them but on full proof tliat the loss was occasioned by the negligence of the master. To save this for- feiture, they may prove negligence in the agent of the owners, but there has never been a case in which it has been permitted to show such negligence to cliarge the owners mth any injury the sailors may have received from it. But it may be said that the rule which applies where a stranger is injured by the agent by a neglig(;nt performance of his service, should be adopted. Here, tlie rule is, that a wilful act by the servant, by which a stranger is injured, will not charge the master or employer. The act must be done strictly in performance of the service of the principal, or he is not liable, for he cannot be presumed to -have ordered any other. And the rule is carried very far, where the principal is presumed to have ordered his negligent acts. But the rule is not, perhaps, founded on such presumption, but on the principle that the public security re- quires that tl)e emi)loyer, having engaged the agent, and placed him in a situation whore liis negligence may cause injury to others, shall respond to the person injured, and not leave him for redress to one who is wholly irresponsible. It can bo sustained on no other principle. Now, how far does this rule apply to our *397] ^'^^^ ^ '^'^*^ co-servant* who may be injured is employed to act with the person from whose negligence the injury has arisen. He chooses his situ- ation, and witl) whoni he is to act. They are all employed in a common cause, anil must share the connnon risk. They must look to each other for protection and safety, and 1)e thence induced to stimulate each other to care and diligence, niirl ].r.-v.'nt, by the (efforts of one, the consequences of the negligence of another. On this tlie public security dei)ends, and it would be greatly endangered were a different principle adopted. Let us consider the case in one other respect. When an injury of this kind liax haf.p<-nct, *would not all the hands hired by the defendants to manage her, be entitled to their wages ? There could be no more doubt that lliey wonld, than that a man "hired to drive my wagon to Charleston, who, by some unforeseen accident should lose his load, would still be entitled to his wages. This shows that in the very beginning there is such a diff»;rence in the law of a ship and that of a locomotive, that it is impossible the law of the former can decide the right of a ser- vant employed in the latter, to recover for an injury arising from the neglect of the engineer. iJut if it were otherwise, and this case depended upon maritime law, Btill I am inclined to think the plaintiff ought to recover. No exactly analogous case can be found. In riiillips on Ins. 4G3, Judge Story is *406] MURRAY VS. RAILROAD COMPANY. 265 represented as sayinji;, in the case of the Saratoga, "It appears to me, tliat upon the established doctrine of our law, where the freight is lost by inevitable accident, the seamen cannot recover wages, as such, from the shi]) owner." I concede that this dictum is the true law regulating a mariner's right to wages. If the freight was lost by the master's neglect, it could not then be ascribed to inevitable accident; and then, I think, the seaman would be entitled to recover If this is true in relation to wages, the same rule must hold as to the mariner's right to recover for any injury arising from the negligence of the master. But, it is said, it would be impolitic to make the defendants liable for any injury accruing to a fireman, from the neglect of the engineer. This would be worth inquiring into with great care in the Legislature ; but, in a Court, I think we have nothing to do with the policy of a case; the law of it is our guide. But if we are to look to the policy, then I should a''gue that the more liability imposed on the railroad company, the more care and prudence would be thereby elicited. This result is what the community desires. For it secures life and property, committed to their care. I think the motion ought to be dismissed. Gantt, J., concurred. J. Johnston, Ch., also dissenting. It may not diminish the force of the observations made by Mr. Justice O'Neall, if I *state very ^^^/^.. briefly the reasons which induce me to concur in his dissent. L It is admitted that the duties and liabilities between masters and hired servants, result only from the nature and terms of the contract which forms the relation ; and that neither party is allowed to extend or abridge the contract. That the master cannot exact other services than those stipulated for; nor, by any indirection, subject the servant to any other than the ordinary perils incident to the employment ; and that if he does, by any agency whatever, or by any means, whether of design or negli- gence, accumulate upon the servant, while in the performance of his duty, any dangers beyond these inherent in the service itself, they fall upon the latter, not as a servant, (for his contract does not bind him to endure them,) but as a man, and the law entitles him to redress. It is also admitted that these principles are not confined to cases where one servant only is employed, but prevail when a plurality are at the same time engaged by the same master. Their application, however, in cases of the latter description, depends upon the terms of the contract. If several jointly contract to perform a specified duty, the master is not liable to either of them for injuries resulting from the faithlessness or negli- gence of his coadjutor ; all of them being, substantially, agents for each other, to perform their joint undertaking. But when their engagements are several, each undertaking for himself, to perform distinct offices, in a matter susceptible of a division of labor, each stands to the master in the same relation, and is entitled to the same rights, as if he was the only servant employed. The master is responsible to him, as he would be to a stranger, for the misconduct of the others, who are exclusively his, the master's, agents. Now, this is admitted to be the general law upon the subject ; and it is applicable to the servants of a railroad company, as well as to those 266 CHARLESTON, FEBRUARY, 1841. YOL. I. [*40T of anv other employer, unless there be something to take thera out of its operation. Xo instance of master and servant has been pointed out where these principles do not obtain, except the case of a ship's crew ; but that stands clearly upon special grounds of usage. If the servants employed about a railroad, are excepted out of the ♦ 1081 general rules relating to ageucy,the exception, with the ^grounds J and reasons of it, must be shown, otherwise the employers will be as liable to any one engaged in their service, for injuries inflicted on him by other agents, in the course of their employment, as a planter would be to a hired hand for maltreatment by his overseer. I presume no one will contend that the rule applicable to service in a railroad company, is, that the company is not liable to any agent, for ami injury, provided the company can only show that another of its agents has inflicted it. Would it do to say, for example — and upon what principle could it be said — that a superintendent of the hands engaged in repairing the road, may, with impunity to the company, abuse his authority, to the injury of their health ? Or, if the cars were to be run at night, and, through the neglect of hands set apart to watch the road, and remove obstructions, the whole train were lost, and any officer or hand on board were crippled, certainly no one means to assert that none of these could claim compensation from the company, but must look exclusively to the irresponsible agents (perhaps slaves,) hired by the company, through whom the injury accrued ? And yet, how is the rule to be laid down — I wish to hear the rule stated — which would include that case and exclude this. The fidelity of the hands detailed to super- intend the road, in the case I have supposed, would be as essential to the coramfin enterprise of running the cars, as the fidelity of the hands on board to their respective duties. If the idea is indulged, that there is, in any Ijranch of this enterprise, an implied undertaking among the ser- vants to do the work jointly, and to waive the neglect of each other, what will constitute such an understanding ? Where are its limits ? Does it arise from the intimate connection of the hands ? Then, I wish to be informed what degree of intimacy, what strength of association, is demanded, to raise the implication ? Where is the line ? I give no oj)inion upon the evidence. I take the verdict for the facts ; and, according to the finding of the jury, the plaintiff faithfully per- formed his ])articular duty, and, while performing it, was injured by the faithlessness or negligence with which the company, acting in the person of unotlior agent, executed a duty incumbent upon them. Ought the plaiutiff's remedy tn be doubtful ? *409l ^'^^^^ elements of the contract between him and the defendants, arc these : on their part, so far as they were to contribute to the propelling of the cars, that 'they would carry him safely ; and, on his part, that on the trip he would perform certain offices. With respect to the last, he was their servant ; with regard to the first, he was their passen- ger; and as their passenger, they have crippled him. The distinction is plain, and the propriety of applying it would be as plain, if instead of being stationed where he was, he had only been a clerk, hired by the comjiuny to travel up and down in the cars, and take a minute of their operations. Yet, on princii)le, no discrimination can be drawn against *-J:09] BURGER, TAX COLLECTOR, acls. CARTER. 267 him on account of his being a fireman, and not travelling clerk; because ho had as little connection with, or control over, the department from which his injury sprang, or the agent to whom it was exclusively com- mitted by the defendants, as if he had been assigned any imaginable duty ill the remotest part of the train. Note. — Tliis case was argued before the present incumbent was elected to the office of State Reporter, which will account for the want of the iisual notes of the argument of counsel. He has been furnished by his Honor, Judge Richardson, with the argument of Col. Blanding, submitted by him, in his life time, to the Ajjpeal Court, which he has published with the case. The Reporter regrets, exceedingly, that he has not been furnished with the eloquent arguments (as he has been informed they were, ) of the different counsel who were engaged in this case. See 9 Rich., 93, 4G8 ; 4 Rich., 426; 5 Rich., 15; 1 Strob., 525, and other cases concerning passenger carriers. An. *Samuel Burger, Tax Collector, ads. The State, ex Re- r^tici LATioNE William Carter. '- The first clause of the Act to raise supplies for the year 1839, which directs "that a tax shall be raised and paid into the Treasury of this State, of one-eighth of one per cent, upon all purchases and sales of bullion, specie, bank-notes, bills of exchange, and stocks, which may be made by any brokers or agents in this State, for or on account of any bank, company or individvial without the State ; and also, upon all such purchases and sales as may be made by any such broker or agent upon his own account, or for account of others engaged in the same pursuits," held to be constitutional, but prospective in its words. By the tax Act of 17S8, the fiscal year is considered as beginning on the first day of October, preceding the enactment of the tax Act. A writ of prohibition will lie, to restrain the enforcement of a tax execution. Before O'Xeall, J., at Chambers, Charleston, February, 1840. This was an application for a writ of prohibition, to restrain the defendant, the tax collector of Saint Philip's and Saint Michael's from collecting a tax imposed upon the relator, under the provision of the first clause of the Act to raise supplies for the year 1839,(a) which directs " that a tax shall be raised and paid into the Treasury of this State, of one-eighth of one per cent, upon all })urchases and sales of bullion, specie, bank-notes, bills of exchange, and stocks, which may be made by any brokers or agents, in this State, for or on account of any bank, com- pany or individual without the State ; and also, upon all such purchases and sales as may be made by any such broker or agent, upon his own account, or for account of others engaged in the same pursuits." The same clause, in a previous part, imposes a tax of " sixty cents per hundred dollars, on factorage employments, faculties and professions." The relator alleges, that he is not a broker or agent within the meaning of the law ; but in making the purchases contemplated in it, he acts as a principal, and on his own account. It might be enough to disi)0se of the case, on this allegation in part, (a) 11 Stat., 1. 268 CHARLESTON, FEBRUARY, 1841. VOL. I. [*410 and direct the plaintiff to declare in prohibition, so that the truth of it luiirht be ascertaind by jury. The definition of the word Brokers, given in the Commercial Dictionary, is "persons appointed to transact business between *merchant and merchant, or merchant and tradesmen, in *'*^^ matters of money or merchandise, for which they received a stipu- lated commission," it may be that this definition would not embrace the relator. Still I have no doubt in construing the statute, that we may look to a popular meaning of a word not embraced in any strict definition. If the relator is a broker or agent, acting for a bank, company, or indi- vidual without the States, in making such purchases, although he may use his own funds, and although he might consider them on his own account, still, he may be within the sense and meaning in which the legislature used the words. I will not, however, pursue this matter, for I shall not avoid giving my judgment on the graver questions made. I have no doubt, the tax was intended to be imposed on such brokers or agents as usually make purchases of bullion, specie, bank notes, bills of exch'uige, and stocks, for any bank, company, or individual without the State, whether the purchases were made for or on account of the bank company or individual without the State, or for or on account of such brokers or agents themselves. Unquestionably, the object of it was, to subject to tax transactions of this kind, which could not be embraced in the tax ou factorage employments, faculties and professions-; and so far, if the law could be enforced against them alone, I should think the tax legitimate and proper. For it is not to be allowed to corporations or individuals of other States, to have, free from taxation, all tlie benefits of a business, in which, if our own citizens engage, they pay a tax on their income. But, so far as it would operate on the income of the brokers, derived from this business, then the effect of the Act would be, to subject it to two taxes at the same time, the tax of sixty cents ou factorages, &c., and the tax of one-eighth of one per cent, on all purchases and sales of bul- lion, (fcc. This could not have been intended ; for the Legislature of South Carolina never have done, and never will do an act of wilful injustice. If this, however, is the clear effect of the law, it might constitute a reason for holding it to be unconstitutional, on the ground, that the same thing cannot be twice taxed, without violating the guaranty of property, which our constitution secures to each and every one. This position is, however, not necessary to be assumed as *a * 4121 ■^ distinct ground of decision ; it may be resorted to in aid of the conclusion t< shall bo made. Act 17S8, (Public Laws, 439.) 'M. Tliat it is not unconstitutional, because there is no restraint upon the taxing ]»ow<'r. He cited Jac. L. D., as to the definition of taxes. Berneii vs. Tax Collrrtor, 2 Hail., ^4; 4 McC, 2(i(j; Com. Dig., letter A., Tit. Prohib. Prohibition will not lie aguiust a niiuisterial ollicer. Eac. Abr. Tit. Pro., letter J. ; 1 Cranch, 137. I/init, contra. I contend that the general power wliich it is admitted the Legi.slaliire jmwhohh, in si^liM-ting the subjects of taxation, must be controlled by the great fuiidaniental principles upon which free government is based. Taxation indud.s the power to collect, in a summary mode, the amount levied, from flic iicc'ssity of tlie case. This arbitrary, but indispensable power, mu.st be used only to the extent indispensalile for the public weal; not al)used, by applying it to the purposes of jwnal enactments, and under the guise of taxation, to impose penalties wliich aro to be collected by an iiuiuisition and execution by a collector, ^415] BURGER, TAX COLLECTOR, Cicls. CARTER. 271 without recourse to the ordinary tribunals of the country. The constitution protects the citizen from all judgments against his person or property, otherwise than by a judicial trial by jury, as heretofore used. Now, the true ditficulty is to ascertain whether, in truth, the imposition is a tax or not. But the nature of taxation must be ascertained by the general understanding of free government, and especially that from which we derive most of our principles of jurisprudence, modified by our free institutions. A tax, as generally understood, is a contribution by the people, in proportion to their estates, for the public expense. And as in this State taxation and represen- tation should concur, all who vote, should, as near as may be, pay equally ; and certainly it is unprincipled to tax what a man does, and not his property. Even a tax on the income of a peculiar profession, has at least this palliation, that it is proportioned to the property acquired by that calling. But a tax, as in this case, iipoji the operation itself, without regard to the fact, whether much or little or nothing is acquired by it, is a tax upon what a man does, and not upon his property. Neither is it like a capitation tax, where every individual pays an equal amount. ^Neither is it like a stamp act. The law denies its aid to recover r*^-!,- on contracts not engrossed on stamped paper, leaving it to the option of the "- party to buy this privilege. Nor is it a license, which is voluntarily sought for ; and the tax collector cannot collect a penalty for retailing without a license. It is a case for the Courts. Any attempt to impose is illegal, and the very amount of the alleged tax is one means of ascertaining the nature of the imposition. Taxes, to be legitimate, must be moderate; and excessive imposts, with a view to protection of one class, by exactions from others, are contrary to couunon right. The Legislature may prohil)it, and impose penalties for the purposes of general morality ; but taxation is not the mode of enacting or enforcing penal laws. Now, the law in question lays a tax "uj^on all purchases and sales of bullion, &c.," without regai'd to the income or profit arising from the purchase or sales. It is a penalty on such transactions, under the guise of a tax — it is an imposition upon a particular class of industrious dealers, not for revenue merely, but the amount is so enormous that it is calculated not to raise money, but to break up the business. The usual profits upon stock transactions and money transfers, is little, if anything, more than this tax. Fifty or eighty per cent, on the profits of a transaction is too clearly a penalty, or at least a tax, calculated and intended to he prohibitory. Is prohibitory taxation constitutional ? Equality of rights lays at the foundation of our institutions, and the perversion of the taxing power, to foster or prohibit any honest labor, is against common right, and unconstltutiiuial. Although no limitation is fixed expressly, yet the Article 1, section 15, Consti- tution of South Carolina, speaks of "Bills for raising Revenue," as tax bills. But it is said, the amount is not fixed; but sec. 4, art. 9, states, that "excessive fines shall not be imposed." This clearly shows that the people shall not be interfered with by excessive fines ; and a fortiori, taxes which are excessive are against the nature of our institutions. The case of Burnie vs. Tux Collector, shows, that under the pretence of taxation, you cannot enact penal laws. This Act is, therefore, unconstitutional. The proceedings of the tax collector are also illegal. The tax, like all others, relates to the 1st day of October. And as the transactions of the previous year were legal, and without any imposition at the time they transpired, to collect so large a sum as one-eighth of one per cent., when one-fourth is the highest amount of commissions, equal therefore to fifty per cent., is equally unjust and illegal. It is a penalty imposed after the act done. Calling it a tax does not alter its nature. If, on the contrary, the tax is prospective, then it is not due until the year expires, and the attempt to collect it, at the time the collector made it, was pre- mature, and the prohibition *must go. The very fact that it is a tax on actions r*!! " and not on property, renders it difficult to say when and during what periods ^ these actions are to transpire. Taxes are annual — that is, property is taxed once a year. But this Act does not limit the time to the past year or the present, and there is no time within which the return must be made ; and the tax collector might, every day, issue his execution as a sale was made. Is not this evidence 272 CHARLESTON, FEBRUARY, 1841. YOL. I. [*417 that it is a penalty ? The power of tliis court to interpose, results from the fact, that there are two kinds of law which this court is called on to administer— the Constitution, and the Acts of the Legislature. An Act of the Legislature contrary to the Constitution is not obligatory ; and, therefore, whoever attempts to enforce it against the citizen, impairs his rights, and the court must protect him. The Legislature having passed a law is functus officio. They cannot, after adjourn- ment, stay the execution of a law. It is only the judiciary who can act — without it, an iinconstitutional law may he enforced. All tribunals must be subordinate to the hiirhest. The tax collector acts judicially when he fixes the amount; assesses, that is, adjudges, that the citizen is bound to pay the State a sum of monev. If his judgment is wrong, the citizen has the right to the interference of this court. Whether prohibition be the mode, is immaterial ; and in this State, the strict meaning of that writ in England, has been enlarged for the beneficial purposes of protecting the constitutional rights of the people. Thus, the Com- missioners of the Tobacco Inspection, the Court of Wardens, and several other tribunals or boards, have been treated as courts, and prohibitions issued when they denied justice or exacted what was unlawful. Every board or commissioner exercising any jurisdiction over the persons or property of the citizen, is a judi- cial tribunal ; and the writ of prohibition is the proper writ to restrain their pro- ceeding. This Act is absurd, as it speaks of a broker or agent selling on his own account, when his being an agent implies that he acts for another. But it is clear, that the object of the Act was, to jirevent competition between brokers and the banks, who have abandoned their legitimate office of discounting paper coming to maturity where their capitals were located, and thus enable the banks to manage ex- changes so as to suit their own purposes. It is a perversion of taxation to create monopolies and interfere with the common rights of the whole community, to pursue their avocations under the protection of equal laws Bailey, in reply. All Acts from 1790, down to the passage of this Act, are re- trospective, if this Act of 1839 is decided to be so. A tax is in the nature of a contribution. A tax collector is not a judicial, but a ministerial, officer. *41S1 * Curia, per O'Xeall, J. In this case, I have been unable to -' discover any error in the opinion and judgment below. But a majority of the Court of Errors are not prepared to go as far as I did, and rule the clause of the Act of '39, under consideration, to be uncon- stitutional. They, however, agree with me, that it is, in its words, l)n)speclive, and did not justify the imposition of the tax assessed by the ta.x cijllector. The reasons assigned, in my opinion below, for this con- clusion, are satisfactory to them, and need not be re-stated. It has, however, l)cen objected by the Attorney-General, in his argu- ment here, that the writ of prohibition did not lie to prohibit the enforcement of a ta.x execution. I concede that if we were obliged to resort fur authority, in this respect, to English precedents, we could not sustain this i)rocceding. For, according to them, the writ of prohibition only lies lo prohibit the enforcement of the judgment of an inferior juris- diciion, where it lias i)roceeded without jurisdiction, or where, having jurisdiction, it has exceeded it. 15ut in this Slate it has had a wider operation. For the want of a Ijclter remedy, it has been allowed to restrain llie enforcement of tax oxeculions, JIow this i)ractice began, it is difficult, as well as unim- ]»ortunt, to ascertain. It may be that it was allowed on the notion that a tax collector, allhongh a ministerial officer, exercised a sort of judicial jiower, in deciding that a person who denied his liability to pay a tax, Kliouhl, notwithstanding, pay it, and in issuing an execution to enforce that decision. This last is so much an incident of the judgment of a Court *418] BUKGER, TAX COLLECTOR, ads, CARTER. 273 of general and limited jurisdiction, that when found to follow from the decision of a ministerial oiBcer, it may well justify the application of a writ to him, which would be otherwise wholly inappropriate. Be this, however, as it may, the practice is well established, has never been before questioned, has operated to tlie protection of the citizens ; and, so far as our experience or information extends, has effected no injury, and produced no inconvenience. "We are, therefore of opinion, that it ought not now to be disturbed, for tlie sa]ic ,99 Court is to hold all Act of the Legislature constitutional, unless ^ clearly repugnant to the paramount law of the constitution. Now, then, let us apply these well established rules, and such principles, in the construction of the tax Act of 1839. After several other taxes, the Act proceeds in these words, " thirty cents, ad valorem, on every hundred dollars, on the value of all lots, lands, and buildings, within any city, including all lots or portions of land on which buildings may he erected, in the immediate vicinity of any city, &c. Sixty cents per hundred dollars on factorage employments, &c. ; and on the amount of commissions received by vendue-masters, and commission merchants, &c., one-eighth of one percent, upon all purchases and sales of Inillion, specie, bank notes, bills of exchange and stocks, which may be made by any brokers or agents in this State, for or on account of any bank, company, or indi- vidual, without the State ; and also upon all such purchases and sales as may be made by any such broker or agent, upon his own account, or for account of others engaged in the same pursuits; to be ascertained and rated by the assessors and collectors throughout the State, according to the best of their knowledge and information," &c. It is supposed that the tax of one-eighth of one per cent, upon "bul- lion, specie," &c., may be unconstitutional. But such sales are the ways and means of profit and wages to the broker ; and, being protected, are subjects for taxation, like the sales of auctioneers or factors. And tlie tax is as well rated or measured by the amount of sales, as by the com- missions of the broker. They are the same measure essentially. It is argued that it amounts to a double tax. But that would only make it a high tax — not render it unconstitutional. All absentees pay a double tax ; upon the wise rule, that we should discourage the efflux of money. And assuredly, a double or high tax may be laid for other causes. Any man may act as factor, broker and auctioneer, and render return for each employment respectively. Rich men make returns for various property. And he that carries on many professions must do the same ; and ought not to complain, if all his ways and means are made to 276 CHARLESTON, FEBRUARY, 1841. VOL I. [*422 contribnte. In answer to this part of the argument, it ought to be ^ .f,o-i enough to say, that the *sales of " bullion, specie,'' &c., being tax- -^ able, the salesman must pay the tax laid according to law. But the great and true objection is, that this tax amounts to a penalty. If it be so, the relator is shielded by the ninth article of the constitution, already recited. But why is this tax more a penalty than the common tax upon auctioneers, factors or commission merchants ? This is not a pe- cuniary fine for doing an unlawful act, but a contribution for being pro- tected in making profit and wages — and of selling " bullion, specie," &c. It is, surely, one of the lawful ways and means of profit. For my own part, I do wish that we had here, in our commercial capital, the sales of all bullion, specie, bank notes, bills of exchange, and stocks, sold in the United States. Such a mart would do more for our foreign exchanges, perhaps more for our commercial advancement, than the great Western Railroad completed to the Ohio, and the direct trade with Europe, both of which are so justly desired ; and my only objection to the tax is, that it may check the influx of such rich ways and means. What would the Lord Mayor and Common Council of London think, if the sales of American and other foreign stocks were checked by a high excise duty. I trust that, in these incidental observations, it will be seen that the fairest play is given to the argument against the tax. I defend its constitutionality only. Under the head of penalty, the case of the State vs. Allen, (2 McC. 55) is relied upon ; and the argument is, that courts should be uniform in their decisions upon similar cases. This is most true. Therefore, let us consider that adjudication. In the mean time, I cannot but antici- pate that the argument, from uniformity will presently change sides. The tax Act of 1820 imposed, in terms, a tax of $1U,000 upon any person "who shall, after the passing of this Act, open, or keep open, any oCQce for the sale of any lottery tickets." The so-called tax was not measured, or rated, by the sales, profits, or success of the lottery office. It was the plain infliction of a specific fine, for opening, in future, such a source of excitement to gambling propensities as a lottery office. Whether the ofiice sold a single ticket or many thousand, the fine was the * 424] same. Of course, there was nothing *for the tax-collector to assess. The supposed tax bore, then, every mark of penalty or punishment for an act done, or at least, for a privilege assumed ; and it ibllowcd, that the party accused, must be first convicted by a jury, upon which the fine followed, subject to the pardoning power of the Governor. The ninth section of our present tax Act illustrates the principles of Allen's case. Any person may now purchase the privilege of vending lottery tickets for ^2000, but on default, he is subject to the same fine of 810,(100; so that it was, and is, a penal enactment. But the tax before the court, has no characteristic of the kind. But suppose that doubtful, nre we not, then, to api)ly the rules before laid down ? The construction is to lie favoral)lc for raising the supplies of the State ; and no Act is to l)e held unconstitutional, unless it be clearly at war with the constitution of the State. Of tliis last rule, I beg to be indulged in a brief exposition, for its mportance sake, on l)oth sides of the present case ; and especially because 't- F 'V, think that motions for prohibitions are getting somewhat *424] BURGER, TAX COLLECTOR, acls. CARTER. 277 rife. And it. may be better to resist their undue encroachments, than to have to cure their evils The constitution, and all statutes passed, are simply laws intended to be made, "in 2^fi'>'i materia'''- — upon the same subject. Every Act applies and illustrates some authority of the constitution, by practical .example and enforcement. It follows, that the secondary law of the Act, to be good and valid, must be inseparable from the jirimary princi- ples of the constitution, which is, at once, its source and its warrant, llence, it is, that we are to apply the principles of the one, in order to test the validity of the other. And hence, too, tlie unavoidable judicial duty, not privilege, so to apply the constitutional test, as to declare the supposed law of the Act, valid or void, as it may be found united with, or repugnant to, the law of the constitution. It equally follows, that where there is any union between the law and the constitution, the Act is within the Legislative authority. And being truly in pari materia, it must stand. If I may use a figure of speech — wherever the parent law of the con- stitution tolerates the Act as its offspring, it is legitimate, *how- r^i^r ever deformed in our eyes. And, of course, he that would ^ repudinte an Act, takes the burden of proving its repugnancy upon his own shoulders. To this exposition, let me add, that a revenue Act is among the last of all laws in which Courts should be placed in conflict with the Legis- lative department. Because the subject and extent of taxes are neces- sarily at the Legislative discretion, and Courts cannot interfere with the discretion, so vested in another department of government. Having now established, that the broker's tax is no penalty, but plainly a tax, within the legislative authority to tax ; and I would apolo- gize for exhausting time upon so plain a proposition, did I not feel, that a thorough conviction on that head of the argument, is the proper and unerring clue to the true exposition of the second and final proposition : I do not speak beyond my conviction, in saying — grant the first, you give the second ; and that the prohibition ordered, can be su})ported, only by upholding the entire decision of the Circuit Judge. And I now, therefore, lay down the proposition, so established, as decisive of the second question of the case. Doubtful words are expounded by their subject matter. If, then, the new tax upon brokers be itself constitutional, it is, then, to be assessed and paid, unless otherwise plainly expressed, like other and former taxes — i. e. under the Act of 1788, for expoundiug all our annual tax Acts. And all that I have said, upon the union between Acts and the constitu- tion, would apply equally to the Acts of 1839 and 1788 — we cannot uncouple them. And I might, here, well ask more than I demand — that unless the Act of 1839 be expressly future and prospective, as to the tax, it is ipso facto retroactive, and enacts a tax for the past fiscal year. And, I here admit, that if the tax on brokers were plainly prospective, it would then have one mark of a penal enactment, and militate against my first proposition. But let us turn untrammelled to the terms of the Act — " one eighth of one per cent, upon all purchases, sales," &c., which may be made, by any brokers or agents. '2'iS CHARLESTOX, FEBRUARY, 18J:1. VOL. I. [*J:25 Do these words mean "sales which may have been made," so as to relate back to the past fiscal year, or do they mean such sales as shall be ^ „-, made, after passing the Act of 1839 ? and *thus give no authority *'^" -I for the assessment made, of the 1st of October, preceding. j'irst The former is, in my judgment, the true grammatical construc- tion ; " sales which may be niade," mean — which may Aat-e been made, rather than sales which shall be made. I would say this, independent of the Act of IT 88. Because, Secondly It is the only construction that can make the words answer to the apparent, if not professed, object of the Act to raise supplies, in the usual way, by rates or taxes, upon things, rights, and profits, already protected and realized. Thirdly — It is the only construction that can couple the Act for raising the brokers' tax with the Act of USS, which has usually formed the exponent of all our tax Acts, and made the taxes laid relate back to the first of October preceding. And, Fourthly — The words used constitute the common phraseology of our tax Acts, in similar cases, and have been before construed in practice, to make the assessment relate back to the first of October. For instance, take the fourth tax laid by the very Act of 1839. " Thirty cents ad valorem," &c., "on lots," &c., "on which buildings may he erected^ No one has questioned the retrospective meaning of these words, and the established construction is, that the tax is laid on build- ings erected before the first of October last past." Does not the use of words make the law of their construction ? How, then, I ask, can it be, that "sales," &c., " which can be made," mean sales that shall be made after ])assing the Act ? Will the Court, by a new construction of such words, put it at the discretion of every householder in a town or village, to avoid the present tax upon his building, by submitting, that the tax is only on buildings that shall be erected, and thus make the exception introduced by the Act itself, in Allen's case, the common rule for the tax collector, in all his assessments of houses, " which may be erected ?" Will the Court instruct him to read the sentence as if written — shall be erected ? Wliat a practical illustration would we have that revenue laws are to be construed fuvoralily for the State revenue ! And what would become of the argument for uniformity ? But, if we want additional reason for the usual construction of tlie words, " may be erected," or " may be made" — have we not wliat is *jg^-i wanted, in the princii)le, that taxes are commonly* laid, and ^ ought to be laid, ui)on riglits that have been already enjoyed, under the protection of government? If this be a sound princii)le for raising revenue Ijy taxation, does it not lead us, as by the hand, to the retrospective operation of tlie words, "sales which may be made." Upon the wliole, then, in this case, so important in its principles — disabusing my understanding of the excitement caused by a new and high, and, ]»erhaps, unwise tax, and releasing it from authority, I can perceive no i)eiiaUy, and nothing repugnant to the constitution, in the tax laid on brokers. Nor can I discover that it differs from other similar taxes, in the time of its assessment. And the conclusion follows, that the deci- sion granting the i)roliibition, should be reversed ; and that the relator be re(jnired to declare in prohibition, in order to try the fact whether he *427] BURGER, TAX COLLECTOR, (ids. CARTER. 279 was a broker, within the meaning of the Act. This he denies ; and he must be heard upon the question of fact. For, in this, Mr. Carter is under the 9lli article of the constitution. And the tax will attach, or not, according to the verdict that shall be rendered, upon the question, is he, or not, a broker or agent, within the meaning of the Act. Johnston, Ch., signed neither opinion. See Citij Council ads. Weston, Harp. 340; reversed 2 Pat. 449, or 8 Curt. 171 ; Birney vs. Tax Collector, 2 ISaiL 654; Bulow vs. City Council, 1 N. & McC. 527; Copes vs. City Council, 10 Rich. 495, and cases there cited ; State Bank vs. City Council, 3 Rich. 342; State ex. rel., Ravenal et al. vs. City Council, 4 Rich. 28(3; State ex rel., Sebring et al. vs. Citij Council, 5 Rich. 561 ; State ex rel. Adyer vs. City Council, 2 Sp. Tl"9 ; 4 Stroh. 217 ; McMul. Eq. 144 ; 2 Sp. 491, 623; 10 Rich. 104, 240, 474. An. APPENDIX TO YOL. I. *It has happened, from time to time, that cases which should *429j have been reported, have, from accident or other cause, been omitted by my predecessors. In the course of a few years past, they have swelled to a considerable number, many of them containing decisions of much importance. At the request of their Honors, with an expense of some time and labor, I have collected, prepared, and now publish these cases; and trust that in doing so, I render a service which will be accept- able to the profession and the State. J. J. McMULLAN. CASES AT LAW FROM 1835, TO DECEMBER, 1840. NOT HERETOFORE PUBLISHED. The Bank of the State op South Carolina vs. John Bowie, (a) A verdict for a specified sum of money, "witli interest tliereon from the 16th February, 183G," is not void for uncertainty, either as to the principal sum or the interest ; biit the plaintiff is entitled to sign judgment for Loth, computing the interest according to the verdict ; even if the demand be unlicLuidated. Before Earle, J., at Barnwell, Spring Term, 1839. John Bowie bad been the agent of the Bank, at Aitkin, and had entered into bond, with several securities, for the faithful performance of his agency. Separate actions were brought against them, and a verdict was rendered for the plaintiff in these words : "We find for the plaintiff the sum of eleven thousand seven hundred and twenty-one dollars and eleven cents, with interest from the 16th Fcbruar}^, 1836." On the return of a rule to show cause, it was moved by Mr. Bellinger, for the defendant, to set aside the judgment, which was signed for the entire sum of principal and interest, according to the verdict, as irregular and void, for the excess over $11,721 11, unless the same should be remitted by the plaintiff. The motion was refused ; and a motion was made in the Court of Appeals to reverse that decision. *Appeal determined at Charleston, February, 1840. [*430 Curia, per Earle, J. When this motion was made in the Circuit Court, I thought there was something in it more entitled to consideration than I now find. I learn, on conferring with my brethren, and also from the bar, that this form of verdict is in very general use, and that it has not heretofore been questioned. So many rights have become vested under this form, that it would be extremely prejudicial to shake it, even if there were greater difficulty on the ground of principle than I think there is. A verdict must find the fact in issue; and if for the plaintiff, must assess his damages, if they be the subject of the action. It is said in Com. Dig. Pleader, " the verdict must find the fact clear to a common intent;" and elsewhere that "certainty to a common intent is sufficient." It would be idle here to enter into the distinctions between the different kinds and degrees of certainty required in pleading, which a learned Ch. (rt) S. C. again, 3 Strob. 439. 282 CHARLESTON, FEBRUARY, 1840. APP. VOL. I. [*430 Justice, in England, once denominated "senseless jargon." It -will be enough if the verdict here shall be found suflBciently certain to enable the Coui-t to render judgment upon it. It is said, (Com. Dig.) "A verdict is bad in ejectment for four acres of land, if it find the "defendant guilty of eight pieces of land, without other certainty; and in an action on a penal statute, which gives a penalty for every oiTence, if it find the defendant guilty, contrary to the statute, but do not say how often he is guilty." If the jnry, in the former case, had found the quantity in each of the eight pieces of laud, or in the latter how often the defendant was guilty, the Court might have given judgment, for the means of removing the uncertainty would have been furnished. So in Wwdhmii's case, decided this term, a ver- dict of guilty only, on an indictment against the defendant, for stealing twenty head of cattle, was held to be bad. Suppose an action qui tarn were given in such a case, and on the trial the juiy should find for the plaintiff, and that the defendant stole ten head of cattle ; the amount of the recovery is rendered certain enough ; and the Court would only direct the clerk to compute the sum from the finding of the jury. The objection here is, that the demand of the plaintiff was not liqui- dated ; that the jury could only give interest by way of damages, and they have not so allowed it The case was one in which it was clearly proper that interest should be allowed The jury have found for the plaintiff on the issue, and although they have not assessed a specific sura for his entire damages, yet they have furnished certain data by which the Court can, with the same facility, ascertain the amount, as in the case of a promis- sory note, on which there is judgment by default, and it is referred to the clerk to compute. They have ascertained and assessed the sum for which the defendant was liable, on the IGth February, 1836, from which date ^,o|-i they *allow interest, and the Court has only to direct the clerk to -J compute the interest. This Court perceives no sufficient ground to set aside the judgment, although it is a more regular and better practice to find a round sum ; where the demand is not liquidated. Motion refused. In tlie other cases against the securities, the same motion was made and likewise refused. See Sup. 302. 2in. Note. — In Ilarri/fon vs. Allen, (2 Bing. 4,) the verdict was for £196, with in- terest from March, 1819, and no objection taken in point of form ; and the same form of verdict will bo found in 4 Munf. 37, without exception, although there was an appoal on other grounds. Reporter. *431] BANK VS. LEVY. 283 The Bank of the State of South Carolina vs. Jacob C. Levy. The Bank of Charleston vs. The Same. To enable a garnishee in attachment to retain the goods in his hands, it is not necessary that he should prove himself to be a creditor entitled to bring an action ; it is enough if he establishes a lien, even for outstanding liabilities in- curred for the defendant, and absent debtor, which creates a special property, until discharged, and overreaches the claim of the attaching creditor, (a) An agent here, who, for a commission, negotiates exchanges for a house in New York, who buys bills on Europe for them, and to raise the funds for that pur- pose, draws and sells bills upon them at home for corresponding amounts, some of which they accept, and others do not, and the bills are protested, such agent, on the failure of the principal house, has a lien on any funds or securities which come to his hands for his principals, to secure himself against these outstanding liabilities, although in fact he may not have paid any of the bills. And there is no difference between bills accepted and not paid, and bills not accepted. Tlie lien extends to 'all equally. Nor does it make any diffei'ence, that the funds and securities come to hand after the liability is incurred, and therefore were not looked to as an indemnity at the time. Before Earle, J., at Charleston, May Term, 1839. On the 13th day of April, 1837, the Bank of the State of South Caro- lina sued out an attachment against J. L. & S. Joseph & Co. The Bank "^of Charleston also sued out an attachment against them ; both r^ioo made returnable to May Term, 1837, and copies thereof were duly ^ served on Jacob C. Levy, as garnishee who, on the tirst of January, 1838, made the following return, on oath : " Personally appeared the said Jacob G. Levy, of Charleston, merchant, on whom copies of the writs of attachment in these cases respectively have been served, who, being duly sworn, maketh oath and saith, that he has not now, nor had at the time of service on him of the said copies of the said writs, or either of them, nor has he at any time since had in his hands, custody, possession, or power, any moneys, goods, chattels, debts, books of account, lands, leasehold estates, and chattels real, belonging to the above named J. L. & S. Joseph & Co., or either of them, or in which they have, or either of them has, any right, claim or property whatsoever ; save and except that at the time of the service on him, the said Jacob C. Levy, of the copies of the said writs of attachment against the said J. L. & S. Joseph & Co., he, the said Jacob C. Levy, held in his hands sundry accepted bills of exchange, promissory notes, securities, and other property spe- cified and set forth in a schedule hereunto annexed, subject to his claims as creditor, in possession, and as collateral security for, and on account of, purchases made, moneys advanced, and responsibilities incurred, by him, the said Jacob C. Levy, for the said J. L. & S. Josei)h & Co., and on account between the said J. L. & S. Joseph & Co., and him the said Jacob C. Levy. That they, the said J. L. & S. Joseph & Co., are justly due and owing to him, the said Jacob C. Levy, in the full and just sum of two hundred and five thousand two hundred and nine- teen dollars, ninety-three cents, for purchases made, moneys advanced, and re- sponsibilities ircurred, by him, the said Jacob C. Levy, for them, and on an account between them and him, the said Jacob C. Levy. That since the service on him. the said Jacob C. Levy, of the said copies of the said writs of attachment, some of the said bills of exchange and promissory notes so held by him, the said Jacob C. Levy, have been paid, to the amount of seven thousand six hundred and thirty-four dollars, forty-seven cents ; and that since the service on him, the said Jacob C. Levy, of the said copies of the said writs of attachment, he, the said Jacob C. Levy, has absolutely assigned, transferred, and delivered all the moneys (a) See 1 Rich. Eq. 360. 284 CHARLESTO:^, FEBRUARY, 1840. APP. VOL. I. [*432 collected by him as aforesaid, camounting to seven thousand six hundred and thirty-four' dollars forty-seven cents, and the remainder of the said bills of ex- change, promissory notes, securities, and other property, in the said schedule hereunto annexed mentioned, to Robert B. Gilchrist, under a deed of assignment to him, of the twenty-ninth day of September last, in trust for the creditors of him, the said Jacob C. Levy, according to the trusts declared in the said assign- ment, duly proved and recorded in the ofiice of the Secretary of State, in Charles- *jQQi ton aforesaid, in *the books of miscellaneous records, 5 U. S. page 47, forty- -• seven, to 55, fifty-five, and hereby specially referred to as part of this return. ' ' To this return of the garnishee, the plaintiffs in attachment filed their suggestions, expressing their dissatisfaction with, and denying the truth of, the return as made by the garnishee, of the indebtedness of the said Josephs & Co. to him, the said Jacob C. Levy ; in the sum of money expressed in said return ; and also denying the right in law, as claimed by him, the said Jacob C. Levy, to retain the said moneys and securities, for payment of money as creditor of the said J. L. & S. Joseph & Co., in possession ; and the indebtedness of the said J. L. & S. Josepli & Co., to the said Jacob C. Levy, in any sum exceeding or equal to the value of the moneys, and securities for the payment of money, so levied on and attached. Pending these suggestions, the garnishee, Jacob C. Levy, filed his declaration as creditor in possession, pursuant to the attachment Act, and annexing an account current between himself and the said J, L. & S. Josei)h & Co., in which the said J. L. & S. Joseph & Co. were debited with sterling and other foreign bills of exchange, purchased by the gar- nishee, Jacob C Levy, on their account, and transmitted to them, with the commissions and other charges, to the amount of four hundred and thirty-two thousand, four hundred and twenty-one dollars, twenty-five cents ; and credited with bills drawn by the garnishee on, and paid by, the said J. L. & S. Joseph & Co., at maturity, and the proceeds of paper and other funds remitted by them to Jacob C. Levy, the garnishee, amounting to two hundred and twenty-seven thousand two hundred and one dollars, thirly-two cents. On the nth June, 1839, a verdict had been rendered in that proceed- ing in favor of the said Jacob C. Levy, to the amount of two hundred and five thousand, two hundred and nineteen dollars, ninety-three cents, with interest from the 25th of April, 1837, being a balance due on the aforesaid account, on which verdict judgment has since, to wit : on the 15th June, 1839, been entered up for two hundred and thirty-seven thou- sand and thirteen dollars, seventy-eight cents. On the trial of the suggestions, the garnishee introduced this recovery in evidence ; also, sundry letters from the said J. L. & S. Joseph & Co. to the said Jacob C Levy. In one of these letters, dated 20th April, 1837, the Josephs & Co. express the most anxious concern on account of the situation in which the garnishee, Jacob C. Levy, had been placed, by Ills agency in iheir affairs, portraying their own sinking condition, and the small hope which remained of meeting with relief. In reference to tlie garnishee, Jacob C. Levy, they say : "We are happy that you have the means in your power to protect yourself, as far as the i)aper goes which is in your hands for collection ; the proceeds of that paper, you will apply to the rniuidalion of the claims against you and ourselves, *433] BANK VS. LEVY. 285 arising: from your drafts." The debit side of the account of the garnishee, Levy, was not disputed by *the plaintiffs, at the trial of the sug- r^^Ao^ gestions, but it was contended by them that the Josephs & Co. '- were entitled to be credited in that account with the bills of exchange drawn by Levy on them, accepted by them, and dishonored at maturity, and protested bills and notes discounted in Charleston, with the endorse- ment of Lev)'', and unpaid at maturity ; and a paper was adduced in evidence liy the plaintiffs, submitted by the defendant, at their request, containing a statement of bills drawn by J. C. Levy on J. L. & S. Joseph & Co., protested for non-payment, for which the said J. C. Levy had placed funds in their hands ; the said J. L. & S. Joseph & Co. being credited with the amount of the said bills at the time they were drawn, and the same afterwards withdrawn from the account current between the said parties when the said bills were dishonored, amounting to $179,506.64 ; and a statement of protested bills and notes discounted in Charleston, with the endorsement of J. C. Levy, for the nett proceeds of which J. L. & S. Joseph & Co. were credited on account current, at the time of discount, and the same withdrawn from the account current, said bills and notes being unpaid at maturity, amounting to $19,64:7.02. In that paper was also contained a statement of bills drawn by J. C. Levy on J. L. & S. Joseph & Co., protested for non-acceptance and non-payment, for which the said J. C. Levy had placed funds in their hands ; the said J. L. & S. Joseph & Co. being credited with the amounts of said bills, at the time they were drawn, and the same after- wards withdrawn from the account current between the said parties, when the said bills were dishonored, amounting to $5,407.29, and refused acceptance by the said J. L. & S. Joseph & Co. It was admitted at the trial of the suggestions, that the same were properly withdrawn from the account current between the said parties, and the said J. L. & S. Joseph & Co. properly chargeable with the amounts thereof ; and the only question as to the mode of stating the account current between the parties, was, whether the said J. L. & S. Joseph & Co. should be credited with the amounts of bills di'awn on them by J. C. Levj^, accep- ted by them, and dishonored at maturity ; and the amounts of the pro- tested bills and notes discounted in Charleston, with the endorsement of J. C. Levy, and unpaid at maturity. It was further contended on the part of the plaintiffs, that J. C. Levy, in his transactions with J. L. & S. Joseph & Co., acted only in the capacity of an agent ; and to show this, several letters from J. C. Levy to the Bank of the State, were read in evidence. The first letter, of April 7th, 1837, contains this clause: " I yet hope that having acted virtually as their agent, always depending on the wealth of that house, that in good faith, some discrimination may eventually be made by them to protect the drafts drawn by me, for which full remittance was always made, previously, or on the day they were drawn, up to the last hour, all of which was done for a commission that looked to the labor only, without reference to risk." In the letter of June, 1837, he says, "for a very small commission, I have *incur- r^^^o- red the whole of my liabilities; and have never participated in L ' *^^ any gain, or expected profits from the heavy operations that passed through my hands." The presiding judge was of opinion that the garnishee could not be 286 CHARLESTON, FEBRUARY, 1840. APP. VOL. I. [*435 considered as a creditor in possession, in regard to the bills accepted and protested for non-payment, inasmucli as he bad in fact paid nothing on them himself. That until such payment, the Josephs & Co., could not be said to be indebted to the garnishee, in the meaning of the attach- ment Act. In regard to the unaccepted bills, he thought it might be held otherwise. Under these instructions of the Court, the jury found that the garnishee was a creditor for the amount of the unaccepted bills, but not for the bills protested for non-payment. The finding of the jury is in these words : " We find that the garnishee is a creditor in posses- sion, to the amount of six thousand and sixty-six dollars and seventy- seven cents, and that the residue of the funds specified in his return, were the property of the absent debtors, at the time when the attachments were levied." The a-arnisbee moves for a new trial, on the following grounds : 1. That his Honor erred in the opinion expressed by him to the jury, that the defendant, in the transactions between himself and J. L. & S. Joseph & Co. acted only as their agent ; and that whether he acted in that capacity or not, he was not entitled, under the attachment laio, to retain the funds in question as creditor in possession, beyond the amount of his unaccepted bills, drawn by him on the said J. L. & S. Joseph & Co. 2. That his Honor erred in his charge to the jury, when he stated that the defendant could not recover against J. L. & S. Joseph & Co. on the account stated by him, beckuse the said J. L. & S. Joseph & Co, had accepted the domestic bills drawn by the defendant, which were dishonored at maturity ; and that the defendant could maintain no action against the said J. L. & S. Joseph & Co. on the said stated account, until he paid the said domestic bills accepted as aforesaid. 3. That the verdict of the jury was contrary to law and evidence, in this, that as it was proved that the defendant was responsible for a large amount of domestic bills drawn by him on the said J. L. k iS. Joseph & Co. accepted by them, aud dishonored at maturity, his Honor should have charged the jury, and the jury find accordingly, tliat the defendant had a lien on the fund attached, to indemnify him for his responsibility. 4. That a banker has a general lien on funds in his hands, to secure him for his advances or liabilities for the absent debtor, which cannot be defeated by an attachment. 5. That a factor or agent has the same lien, to the same extent as a banker. *4.^f 1 *^" '^'^^^ ^ ^''^'^ "^'^ funds, to secure for responsibilities, cannot be de- ■l foated by an attachment. 7. That the verdict of the jury was, in other respects, contrary to law and evidence. Appeal determined at Charleston, February, 1840. Curia, per Gantt, J. Two principal questions arise in this^case. The first is, whether, by the general law, the garnishee, as a creditor in possession, lias a right to retain the securities in his hands for the general balance of his account against the Josephs & Co. ? Aud if so, 2. lias the attachment Act deprived him of that right ? The garnishee, in the argument in these cases, has been designated by various appellations, such as banker, bill broker, factor and agent. Judging, however from the nature of the transactions which he carried on for the Josei)]is & Co., the most appropriate designation of the character in which he acted, would be that of bill broker. Whatever the name may be, by which he ought to be distinguished, I feel very confident *436] BANK VS. LEVY. 287 that he was of that class of persons privileged by the common law and the usages of trade, to retain the securities in his hands as creditor in possession, on account of the responsibilities which he had brought upon himself in the direct line of his agency for the Josephs & Co., for whom he acted. Whitaker in his treatise on Liens, p. 35, says, that bankers have a lien on all paper securities in their possession, for the general balance of their accounts. And at page 89, he reiterates the same position, with this addition, "not only for debts accruing on the particular account for which the securities were deposited, but also, fur a general balance due to them on other accounts from the same employer." Selwyn, whom I esteem as amongst the most accurate of authors, in treating of the defence to the action of trover, says, " The most usual defence to this action is, that the defendant has a lien on the goods, or a right to detain them." And then proceeds to inquire under what cir- cumstances a party ruay insist on this defence. Among a great variety of persons who are entitled to a general lien, in respect of a general balance of account, in speaking of bankers, he says, " So where a banker has advanced money to a customer, he has a lien upon all the securities which come into his hands, belonging to that person, for the amount of his general balance ; unless there be evidence to show that he received any particular security under special circumstances, which would take it out of the general rule." And he refers to the case of Davis vs. Bow- sJier, 5 Term Rep. 488, sec. 2 ; Selwyn, p. 1287, 1288. In 2 Livermore, p. 34, it is said, " The law' gives to the agent a qualified right over the property of his principal, in his possession, to hold it until* payment is made of what he is entitled to receive." r^to^ This right is denominated a lien, and is defined to be " a right in ^ ' one man, to retain that which is his possession belonging to another, until certain demands of him, the person in possession, are satisfied." In the case of Kruger vs. Wilcox, reported in Ambler, p. 252, the following is the marginal note of the case. "A factor gains a lien on goods consigned to him from his correspondent, for the balance of tiis account, as well as for the duties, &c., and may retain for such balance ; but if he parts with the possession of the goods to the owner, he loses the lien for the balance of accounts." Lord Hardwicke says, in giving the judgment of the Court, "This is a case of bankruptcy, in which this Court always inclines to equality; yet, if any person has a specific lien, or a special property in goods, which is clear and plain, it shall be reserved to him, notwithstanding the bankruptcy." And Livermore, p. 38, that "Since this case, which was in 1755, it is settled that a factor has a lien upon goods consigned to him, as well for his general balance, as for the incidental charges attending the particular goods in his hands; and that it is in favor of commerce, for the convenience of trade, and with a view to encourage them to advance money upon goods in their possession, of which must come to their hands as factors, that their right of lien has been allowed and so much favored ; and that this lien upon the goods of his principal, is not only for the general balance of his ac- count and for his advances, but also, for the amount of any sum for which he may have become security for his principal." To show that the lien extends to a case of suretyship, by the factor or agent for his 288 CHAKLESTOX, FEBRUART, 1840. APP. VOL. I. [*437 principal, the case of Brinkwater and another, assignees of Doivding, (a bankrupt,) against Goodwin, reported in Cowper, 250, is referred to. I have examined, the case, and the opinion of the Court, as delivered by Lord Mansfield. To avoid prolixity, I insert only the principle decided, which is, "that a factor who becomes surety for his principal, has a lien on the goods sold by him, for his principal, to- the amount of the sum for which he has so become surety."' Paley on Agency, (at p. 109,) says, "It is now fully settled, that a factor has a lien upon each portion of goods in his possession, for his general balance, as well as for charges arising upon these particular goods ;" and adds, that since the case of Kruger vs. Wilcox, (which I have before referred to,) it has never been controverted, but is now received as a known principle of law, too clear to be disputed ; and that this lien attaches, not only upon the goods in specie, but upon the pro- ceeds and securities received in the course of his business ; and he refers to a variety of authors in support of these positions. Cowper, 251 and 225; 2d East, 227; 3d B. & P. 489; and Willes, 400. If, then, the positions adverted to be correct, no doubt it follows, undeniably, that the garnishee in the cases before us, as the agent of the Josephs & Co., *1^81 ^^^ ^ qualified right of *property in the securities of the Josephs -I & Co. in his possession ; and there is nothing in the circumstances of these cases to deprive him of the benefit of that lien which the law invests him with. The right is derived to the garnishee from the liabil- ities incurred, in virtue of his agency and transaction of business for the Josephs & Co., and which, from the return made by him as garnishee, exceeds, very far exceeds, the amount of the funds of which he had possession, and which constitute the subject matter of these issues. The garnishee had a right, as creditor in possession, to retain these securities, until the liabilities which he had brought upon himself by his agency for the Josephs & Co. were removed. To the credit of the garnishee, nothing of unfairness in the various transactions in which he has been engaged for the Josephs & Co., as their agent, is either imputable or imputed to him. He has, indeed, been charged with a want of caution, in making himself responsible for the Josephs & Co., when he might have avoided such responsibilities by aOixing his name in these transactions as agent merely. On this head, there arc no specific proofs adduced ; the presumption is, that it was required of him to act in the premises as he has done. And the general disappointment produced by the failure of the Josephs & Co., may, it is to be lioped, lead to more caution with all parties in future. The right of the garnishee, as creditor in possession, being thus fully recognized, we are to enquire. Secondly, whether, by the terms of the Attachment Act, the right has been taken away from him. This will depend, exclusively, upon the con- struction to be given to the seventh clause of the Act, in the following words. "But if the person or persons so summoned, shall appear at the return of the writ, and lay claim to the said monevs, goods, chattels, or other things, and, upon oath, deny the same to belong to the absent debtor, or that he hath any moneys, goods, chattels, debts or books of account l)elonging to the aljsent debtor, if the plaintiff shall rest satisfied therewith, then the said attachment shall be discharged ; but if not, then *438] BANK Vfi. LEVY. 289 the claimant or claimants, or person or persons, so summoned as afore- said, shall be put to plead the same, and the matter shall be tried by a jury forthwith, &c. And the i)arty that shall be cast in the same, shall pay to the i)revailing party such reasonable costs and charges as shall be allowed and taxed," &c. This clause of the attachment Act, was intended to advance, not abridge the rights of the garnishee. His claim to the funds in his hands, made by his return, is conclusive, unless the plaintiffs can show th^t there is no foundation, in fact or in law, for the claim. This cannot be done, for the lien is undeniable. The creditors can be in no better situation than the Josephs & Co. Would they be permitted to recover in trover, without paying the liabilities of the garnishee? Uncpiestionably not. The clause in the attachment Act, giving to a creditor in possession the right to *declare for his debt, was not intended to abridge any r^ .oq common law right which existed. It may furnish, in many L instances, a cumulative remedy. It has no reference to the garnishee's lien. This is secured to him, although there be not any present indebted- ness for which he could maintain an action. It stands in the place of a remedy by action, and it is only necessary to show, by the relation of confidence between the parties, the garnishee has made advances or in- curred liabilities, for which the funds in his hands may be necessary as an indemnity, and then the lien attaches. It is not necessary that the insolvency of the Josephs should be shown ; the creditors are in their place; and if the Josej^hs could not recover the funds without paying the liabilities incurred by tlie garnishee, it follows, that the plaintiffs cannot defeat his lien, or put him to the proof of an actual present indebtedness. I see nothing in the act to deprive the garnishee of his lien on the securities in his hands, for the liabilities incurred as the agent of the Josei)hs & Co., and the jury, under the charge of the presiding judge, having by their verdict, infringed upon the garnishee's rights, a new trial should be granted. RicriARDSON, O'Neall, and Butler, JJ., concurred. Earle, J. I am satisfied that I took an erroneous view of the attach- ment Act, when I held, below, that the garnishee could not retain the property, unless he was a creditor entitled to bring an action. I have no doubt that there may exist a lien where there is no legal debt ; and such a lien under the first section of the Act, would give a special property, which would enable the garnishee to hold. I think too, that I was mistaken in supposing that the garnishee, here, puts his right to retain, altogether on the ground of being a creditor in possession. His return is susceptible of a ditferent construction, and may well sustain his claim, if that be founded in law. That is the important question; and although I agree that the case ought to go back for a new trial, I am not satisfied to lay down the law as broadly as the court has resolved to do. Since the case of Kruger vs. Wilcox, it has not been questioned that a factor has a lien for a general balance; and later cases have allowed such lien for outstanding liabilities. This general proposition, although broadly laid down by Paley, Livermore, and Story, in their several Vol, 1—20 O90 CHARLESTON, FEBRUARY, 1841. APP. VOL. I. [*439 treatises, is derived from the cases of Drinkicater vs. Goochcin, (Cowper, 251,) and Hammond vs. Bardaij, (2 East. 257.) They are the cases cited in all the compilations where that rule is laid down. And I think that they do not sustain the lien of the garnishee here. Other cases have likewise been relied on, Pulfeney vs. Keymour, (3 Esp. N. P. Ca. 182;) King vs. Lee et ah, (6 Pr. E. R. 269.) Meeker vs Wilson, (Mass. Rep.) Ingersall vs. *Vanhokkerlin, (7 Cowen R. 270.) some *440J j;,jfj.]igi^ and some American, to establish the same proposition. But when examined, they will not be found to touch the point made in this case. They are all cases where the responsibility has been incurred on the credit of the particular goods on which the lien was claimed. They are cases of acceptances given upon consignments made or promised ; and the leading case, that o'l Drinkwater vs. Goodicin, was decided by Lord Mansfield, on the ground of express contract. Hammond vs. Barclay, was a case of acceptance given upon the consignment of a ship and cargo ; so w^as Pulteney vs. Keymour. And the obvious distinc- tion between all that class of cases, and this, will be made manifest by the marginal note. "If a broker advances money, and gives his accept- ances, on the credit of goods lodged in his hands, the owner cannot demand them without full indemnity " So in The King vs. Lee, the point decided is, that a factor to whom goods have been sent for sale, and who has accepted bills of exchangs, drawn on him by his principal, to the amount of their value, has a lien upon them. An accumulation of authorities to establish so plain a proposition, as that a factor has a lien for a general balance, and that an attachment will not overreach an actual lien when it exists, was hardly necessary. Levy, the garnishee, does not stand upon that footing at all. And the question, whether he is entitled to a lien, may depend on facts yet to be ascertained. Lien or not, it is true is a question of law ; but the facts out of which it may be claimed, are for the jury. Lord Mansfield said, in Green et al. vs. Farmer et al., (4 Rurr. 2221,) that the convenience of commerce and natural justice, are on the side of liens ; and that courts lean that way, 1. AVhere there is an express contract ; 2. Where it is implied from the usage of trade ; or 3. From the manner of dealing between the parties ; and 4. AVhere the defendant has acted as factor. There is nothing in this case to show that a lien arises on either of the grounds stated by Lord Mansfield. There was no contract, and no usage of the particular trade. The manner of dealing between the parties, leads to the opposite conclusion ; and whether he be called factor, banker, or bill-broker, he has n<» lien, if it be manifest from the manner of dealing, that he never looked to an indemnity, and that he relied on the personal credit of his customers. Mr. Story, in his well digested treatise on the law of Agency, says, that " no lien will arise where there is an express agreement Ijclween the parties not to insist upon it; or where it is clear, from the whole ■^transactiijn, that the party trusted to the personal credit of his dcl4<»r." Such is the language of Livermore, and Chancellor Kent; and such, also, is the i)ositive language of Lord Mansfield, in Green vs. Farmer. The whole correspondence between the Josephs and Levy, and the letters from Levy to the Bank, lend very strongly to show that he never *440] MUNRO VS. LAURENS. 291 looked to an indemnity ; that he relied solely on the wealth and personal credit of *the Josephs. Take his letter to the' Bank, of the 7th r^^ ii-i April, and can anything be more explicit. " I yet hope, having L acted virtually as their agent, always depending on the wealth of that house, that in good faith, some discrimination may eventually be made." " All of which was done for a commission, that looked to the laljor only, without reference to the risk." And indeed their letter, of the 20th April, in which they say, " You have the means to protect yourself, so far as the paper goes which is in your hands for collection," seems to exclude the notion, that either they or he, up to that time, had any view to a lien, which would not have needed their authority to enforce. The whole of his liabilities were incurred before the securities came into his hands. He, therefore, could noff have looked to them for in- demnity, because he could not anticipate that he would receive them. It would be just as reasonable to allow a lien to every endorser or security, who obtains accidental possession of the goods of his principal. How can it be supposed that he could have looked to a lien on securities for 40 or $50,000 yet to be received, when incurring liabilities to the amount of $400,000. I cannot, therefore, unite with my brethren in saying, as matter of law, that Mr. Levy had a lien. Whether he was banker or bill-broker, it seems to me very obvious that he was dealing on their credit, or his own. If he looked to theirs, it is clear, on authority, that he has no lien ; a fortiori, if he dealt upon his own, he can claim none. This, however, is a question of fact which ought to be sent to the jury with suitable instruction. And such is my judgment. In the case of the Bank of Charleston, I am satisfied that the letter of the Josephs, of 20th April, 1837, which was anterior to the attachment, constituted a valid transfer or assignment of the assets claimed. As garnishee, he had a right to claim and hold under that, against the attachment. See Martin vs. Solomon, 10 Rich, 539 ; 6 Rich, 178, An. *Martin E. Munro vs. Edward R. Laurens. [*442 The rule of Court («) which provides that a plaintiff who does not proceed to trial on the fourth call of his cause, or obtain a continuance, shall be nonsuited, is not only within the power of the Court, but is expedient and proper, and ought to be enforced. In such case, where a nonsuit has been ordered, or the cause has been struck off the docket, the Cowt will not set aside the nonsuit, or restore the cause, at a subsequent term, on the affidavit of the plaintiff, that he was misled by the Clerk's order for judgment by default, and supposed that final judgment had been obtained, although his attorney may have died in the mean time. Before Earle, J., at Charleston, May Term, 1839, The plaintiff, several years ago, brought his action of assumpsit, and («) 19th Rule, Mill Company, 36. •>9'2 CHARLESTON, FEBRUARY, 1841. APP. VOL. I. [*442 on flling his declaration, as the defendant had entered no appearance, obtained an order for judgment by default, and the cause stood on the writ of inquiry docket. He took no further steps ; and at May Term, 1S38, the cause having remained five terms on the docket, his Honor, the presiding Judge, ordered it to be struck off. At May Term, 1839, the plaintiff'nioved to reinstate the cause on the docket, and to have leave to execute his writ of inquiry, on an affidavit, stating that the late Mr. Cross was his attorney, who died in 1836 ; that after his death, the plaintiff, on application to 'his administrator, obtained the record, with an order for judgment endorsed thereon, from which he supposed final judgment had been obtained, and therefore retained it in his hands, without further inquiry, until he made an assignment for the benefit of his creditors. The motion to reinstate the cause was refused ; from which decision the plaintiff appealed, and renewed his motion in the Court of Appeals. Appeal determined at Charleston, February, 1840. Curia, per Earle, J. In the argument, a wish was expressed that the Court would lay down some rule on this subject. It is only necessary for the Court to say, that it will adhere to the rule already adopted ; for the plaintiff" can take nothing by his motion, unless the Court departs from its own rule, and makes his case an exception. It is but reasonable that a plaintiff, who brings a defendant into Court, to answer to an action, should proceed to the trial of it, with all convenient dispatch ; and this is required by positive law. To insure this end, the Court, in the exercise of the powers vested in it, has adopted the following rule : " If any issue, writ of inquiry, or summary process docketed, shall be called four Courts, and not tried, the plaintiff shall be called, and if he does not immediately go to trial, he shall be nonsuited, unless it shall appear that it had been continued at the defendant's motion, or other satisfactory cause shall be *i4^1 ^^lo^^'f^ to the Court, on *oath, to prove it was not postponed from -^ the plaintiff's neglect, or unless the plaintiff', at such fourth call, obtain a further continuance." The plaintiff's cause had remained on the docket, and had been called five successive terms, and at the fifth call was struck off. The defendant having entered no appearance, could make no formal motion for a nonsuit; but he was, nevertheless, entitled to the benefit of a rule, made, in part, for his protection from vexatious delay ; although he had not thought fit to plead, yet he had a right to be heard on a writ of inquiry, so far, at least, as to see that the plaintiff proved his demand, and did not recover too much. It was fair to pre- .sumc that he was therein Court for that purpose; not that he was a defauUing debtor, benefited by the delay, when the plaintiff, after five terms, failed to bring forward his proof. The rule is peremptory, and it is perhaps to be regretted that it is not more rigidly enforced. The Court perceives nothing in the affidavit, to induce it to restore the cause. It may be questioned whether the Court has the power. The order was not appealed from. The defendant w^as entitled to an order for nonsuit, or of non liroa. as no cause was shown for further continu- ance ; and under that state of the case, I should doubt the power of the Court to restore it. If it had, the cause shown is insufficient. It *443] ALSTON VS. m'dowall et al. 293 amounts only to this, that the phxintiff's business was neglected, perhaps by his attorney while alive, certainly by himself since. The decision below is affirmed. Gantt, Richardson, O'Neall and Butler, JJ., concurred; Evans, J., absent. Phillips, for the motion. Bailey, contrn. See 1 Bay, 31. An. *WiLLiAM Alston vs. Thomas McDowall. [*444 The Same vs. William 0. Clarke. (o) Although an actual possession of twenty years will raise the- presumption of a grant, yet, where the i^laintifF made a survey of many contiguous tracts, with the intermediate and dividing boundaries distinctly represented on the plat, doubted whether a possession of twenty years on one only of the several tracts would raise the presumption of a grant to all the lands included within the survey. In such case a plaintiff cannot rely on a possession of twenty years on one of the tracts, to raise the presumption of a grant to himself of all the lands contained in the survey, when he produces original grants to othei'S for several of the tracts, (being those in dispute,) of a date anterior to the commencement of his possession. The defendants being in possession of these, and the plaintiff having produced the original grants, he must show that he has acquired the title of the grantees by conveyance, by adverse possession, or such possession, with other proof, as would raise the presumption of a conveyance. An entry for the purjiose of survey, will not create the bar of the statute ; nor will such entry, together with the possession of the grant, without other proof, raise the presumption of a conveyance from the grantees. The defendants being in actual possession of the tracts so granted, of which the plaintiff never had possession ; held, that the plaintiff' could not recover without proof of title. Before Earle, J., at Horry, Fall Term, 1838. These were actions of trespass to try titles to several tracts of land. Tlie plaintiff gave in evidence, an original grant to John Alston, for two hun- dred and forty-three acres, dated the 4th June, 1735 ; a grant to Daniel Dwight for one thousand and eighty-five acres, dated 3d September, 1735 ; and a grant to Andrew Broughton for two hundred and twenty-seven acres, of the same date. These tracts were identified by a surveyor, and a trespass was proved by McDowall on the two former tracts, and by Clarke on the latter. The plaintiff then offered in evidence a plat made by William Hemmingway, a surveyor, on 25th August, 175)7, of seven contiguous tracts of land, containing three thousand five hundred and forty-one acres, as the property of the plaintiff, with these remarks and references in the margin. "A. Granted to Thomas Brown, November 29, 1735, for one hundred and twenty-nine acres. B. Granted to John Oldham, June 2lj, 1736, for three hundred acres. C. Granted to William Alston and Thomas Brown, November 28, 1735, and June 26, 1736, for six hundred and thirty acres. D. Granted to Andrew Broughton, September 3, 1735, for two hun- dred and twenty-seven acres. E. (J ranted to ReVj. Daniel Dwight, September 3, 1735, for one thousand and eighty-five acres. F. Granted to John Alston, June (a) See Alston vs. Collins, 2 Sp. 450. An. 294 CHARLESTOX, FEBRUARY, 1840. APP. VOL. I. [*444: 4. 1735, for two hundred and forty-three acres. G. Is four hundred and sixteen acres surveyed for Col. Alston, August 25, 1797;" with this further certificate in the margin. "A plan of three thousand five hundred and forty-one acres of land, the property of Col. William Alston, by an actual survey made August 25, 1797, by William Hemmingway, surveyor." See annexed plat. ^' . *A plan of three thousand five hundred and forty-one acres of land, the -' property of Col. William Alston, by an actual survey, made August 25, 1797, by William Hemmingway, surveyor. A. Granted to Thomas Brown, November 29, 1735, for one hundred and twen- ty-nine acres. B. Granted to John Oldham, June 26, 1736, for three hundred acres. C. Granted to William Alston and Thomas Brown, November 28, 1735, and June 26, 1736, for six hundred and thirty acres. D. Granted to Andrew Broughton, September 3, 1735, for two hundred and twenty-seven acres. E. Granted to Rev. Daniel Dwight, September 3, 1735, for one thousand and eighty-five acres. F. Granted to John Alston, June 4, 1735, for two hundred and forty-three acres. G. Is four hundred and sixteen acres surveyed for Col. Alston, August 25, 1797. It was proved tliat James Newton occupied a house at the ferry, with a small field on tlje tract C; tliat lie was put in possession l)vtlie plaintiff; with autliority aud directions to look after other lauds of the plaintiff in the neighborhood, and *445] ALSTON VS. m'dowall et al. 295 to see that no trespasses were committed iipon*tliem ; that this possession p^. , , continued, with the exception of short intervals, when others took his place, '- for upwards of twenty years before suit brought. It was further proved, that the plaintiff was in the habit of cutting timber on the ferry tract, for the us(; of his plantations ; but no actual occupation or possession was proved in either of the three tracts granted to John Alston, Dwight and Broughton, and no act of owner- ship, except that of making the survey in 1797. The ]tlaintifi' offered in evidence no conveyance or other derivation of title, from either of the grantees of those tracts, wliich alone were in dispute, and relied on the general plat, with the possession of twenty years at the ferry as suificient. The Circuit Court, on a motion for a nonsuit, was of opinion that this was not enoug-h to confer title to the several tracts in dispute, the original grants of which were produced ; and the plaintiff was nonsuited. A motion was now made to set aside the nonsuit, and for a new trial. It was first argued at February Term, 1839, when it stood over, and was ordered to be re-argued at February Term, 18-40, when the judgment of the Court was delivered by Earle, J. The claim of the plaintiff to recover in these actions, depends on principles which I had supposed to be well settled. There can be no doubt that an actual possession of twenty years, will authorize a jury to presume a grant, or in some cases a conveyance, (o) But the precise point which arises here, does not seem to have been made before. The ])laintiff produces a plat made at his instance, by a public surveyor, in 1797. This is not a survey of a single entire tract, but of seven con- tiguous tracts, the intermediate boundaries of which are as distinctly marked out as they could have been in a separate survey of each, with a statement in the margin, that the different tracts have, in fact, been granted to different persons. Whether such a survey, with an actual possession on one only, for twenty years, would authorize the presump- tion of a grant to the plaintiff of all the land contained within the seven tracts, may well be doubted. But such a presumption cannot arise in direct opposition to the proof; the plaintiff cannot set up a grant to himself, to the whole of the lands contained in the survey, from a posses- sion beginning in 1797, when he produces an original grant to another, for part of the lands, in 1735. Presumption, in aid of title, where there has been a long possession, stands in the place of proof; but it cannot supercede or overthrow it. And when the plaintiff has produced a grant to John Alston, to Daniel Dwight, and to Andrew Broughton, he must show that he has acquired their title. An adverse possession would have enabled him to do this ; or such a possession, with other proof, as would authorize the presumption of a conveyance. Nothing short of an actual possession would answer either of these *ends. It must have been r^ i < ^ such a ])Ossession as would enable the real owner to sue. It is '- only upon his forbearance to sue, that the title is barred by the statute, in one case, or that the presura{)tion of a conveyance arises in the other.(&) The possession, therefore, should have been actual, open and notorious ; an occupation of the very soil, the title to which is alleged to be barred, or a conveyance of which is intended to be presumed. A mere entry for the purpose of survey is no such occujiation. It might be regarded as a trespass, which would sustain an action; but it is not a continuous pos- (rt) 11 Eich. 425. An. {h) Supra, 354. An. 296 CHARLESTON, FEBRUARY, 1840. APP. VOL. I. [*447 session, which would confer title. If the plaintiff had actually obtained a deed from John Alston, or from Dwight, or Broughton, such au entry and survey, with the possession at the ferry, might perhaps enable him to give it in "evidence without proof, if thirty years old. But surely it would not dispense with the deed altogether. A constructive possession follows the title, where there is no actual possession. It cannot be allowed to prevail against the title. The ])laintiff had no actual possession of the tracts granted to John Alston, Dwight and Broughton. If they had the title, the constructive possession was in them; and if the defendants had pi'oduced the grants to them, they must have defeated the plaintiff's actions. It would seem strange to say, that a plaintift" may recover on proof, which, if produced by the defendant, would prevent him from recovering. This, it should be borne in mind, is not a case of an entry by force, and of actual eviction. The defendants did not enter upon the plaintiif, who had no such possession as would enable him to maintain trespass quare clausiim freyit. Pearson vs. Danshy & Nelson, (2 Hill, 466.) By the production of the grants to John Alston, Dwight and Broughton, he separated these tracts from the other lands in the survey, both in regard to title and possession. The defendants entered upon them as wild uncultivated lands, and were in possession. Since the ease of Faysoux vs. Prather, (1 N. & M'C, 296,) it is well settled that a defendant in trespass to try titles, may defeat the plaintiff by showing title in a stranger. And it would be a total alteration of the law to say, that in such case a plaintiff may sustain an action by showing a better title than the defendant. He who has actual possession, not obtained by a tortious eviction, is to be regarded as the owner until a perfeci title is proved. Whether the possession of the defendants was otherwise right- ful, and under good title, it seems immaterial to inquire, as the plaintiff produced no other evidence of title than the possession of the grants, and a .surveyor's plat, made at his instance. That would as well authorize the presumption of a descent cast, as of a conveyance. It is true, as stated by Mr. Starkie, " A jury may find in all cases, a grant, conveyance or release, or such cogent and legal, though circumstantial, evidence, as is sufficient to convince their minds that a grant or conveyance, essential to *4481 ''''^ transfer, according to the *nature of the property, has been -• actually executed." (.3 Evid. 1225.) But here there is nothing iu fact, to lay the foundation of such a presumption. The law presumes, from a long possession, that what ought to have been done has been done. Arthur vs. Arthur, (2 N. & M'C, 96.) But there is no proof that John Alston, Dwight or Broughton, ought to liavc conveyed to the plaintiff; and no circumstance from which an inference can be drawn that they did convey ; except the possession of liie grants and the survey. And I apprehend, no case can be found, in which a conveyance has been presumed from such facts, where there has been no actual possession of the land claimed to have been conveyed. A niiijority of the Court is of opinion that the nonsuit was properly ordered. Gantt iind ]ticnAKD«ON, J J., concurred. O'Neall, J. In these cases, I differ from my brethren who sustain *448] YOUNG vs. WATSON. 297 the nonsuits. The plaintiff's plat, made by Ilemmingway, Auj^ust, '97, included the land on which the defendants have trespassed. This unquestionably defined the extent of the plaintitl's claim. His possession within it had constructive effect to the extent against every one, except the grants elder than that survey, and lying within it. As against them it would not create the bar of the statute. But the bar of the statute, and iriere presumptions in fact, are very dilferent things. His possession within tliat survey, including grants to other persons, for more than twenty years, and his adduction in evidence of those very grants, were circumstances from which a jury might have found the execution of the intermediate conveyances. But I do not rest the case upon this view. For the plaintiff's posses- sion under color of title, was enough to enable him to recover for a trespass committed within its limits by any one who had no title. Indeed, his possession put the defendants to the proof of title. For they entered upon him ; and if he could have maintained trespass quare clausum frecjit upon this proof, then it is, I think, equally clear, it was sufficient evidence of title to entitle him to go to the jury for the land and his damages. Possession under Hemmingway's plat at any point, was con- structively a possession of all the land within it; and an entry by the defendants upon any portion of that survey, was a trespass upon the close of the plaintiff, and for this disturbance of his possession, he is entitled to damages, unless the defendants could justify. Bull, X. P., 103 ; Burn, 291 ; 2 Saund.; 110; 2 J. K, 22 ; 10 J. R., 338. This goes upon the legal notion that he who is in the possession of land, is the rightful owner. If this be true in one form of action, it must *be so in all. Reason and propriety dictate that this should be r:):- jq the conclusion of our Courts. He who invades a possession ought •- to show his right. I think, therefore, the motion to set aside the nonsuits ought to be granted. See Binder vs. Bonbon, 9 Rich. 26; AlcCoIman vs. Wilkes, 3 Strob. 480. .-In. CuARLES D. Young rs. Alexander Watson. In trespass to try titles, where the defendant has not acqiTired his possession by a tortious eviction, or actual disseizin, the jikiintiff must make out a perfect title in himself. It is necessary to show that the land has been granted, either by the production of the grant, or by proof of such possession in the plaintiif, or some one from whom he derives title, as will authorize the presumption of a grant. A possession of sixteen years, which terminated in 1791, insntficient for that purpose ; and the plaintiff producing no other title, was nonsuited. Before Earle, J., at Charleston, May Term, 1839. Trespass to try titles to certain lands on Acheson's Island and Wa- shavv Creek, on Santee. The plaintiff claimed as heir at law of his father, and by descent from his grandfather, Charles Young, who died 298 CHAELESTOX, FEBRUARY, 1840. APP. VOL. I. [*449 abaut 1S03. The title of Charles Yonng:, the grandfather, was fieri ved from Alexander Inglis, and to sustain it, office copies of the following deeds, under proof," deemed sufficient to entitle them to be read, were produced and read in evidence. 1. A deed of conveyance, dated the 8tli of November, 1798, from Alexander Inglis and ^Yilliam Ma'rshall, Executors of Alexander Inglis, deceased, to George Wagner, for the lands described in the declaration. The deed recited certain proceedings in Chancery, by the creditors of Inglis, to subject the real estate to the paj-nient of debts, on which a decree was pronounced, directing a sale of the lands by the executors, and that they should make titles to the purchaser; and that the heir at law, and the devisees, should join in and confirm the titles within six mouths after attaining the age of twenty-one years, or show cause to the contrary. The proceedings in Chancery were not in evidence, and there was no deed of confirmation by the heir or devisee. *2. A deed of conveyance from George Wagner to Charles Young, dated ■* J 20th April, 1709, for the same lands. It was proved by Mrs. Mary Brown, that Inglis owned a plantation on South Santee, called Washaw, but whether it embraced any land on Acheson's Island, she did not know. She understood that Mr. Wagner bought part of the plantation and Mrs. Horry a part. Mr. Inglis acquired his lands on Santee by marriage. He took possession of his wife's lands at the death of her father, in 1775, and had possession of them and cultivated them until his death, in 1791. She did not know that the land held by Inglis, was the same that is now in dispute. The plaintiff relied ©n this proof of possession by Inglis, as sufficient to constitute title in him; or at least, as sufficient to enable him to re- cover in this action against the defendant, who showed no title. Ou a motion for a nonsuit, the Circuit Court was of a ditfereat opinion ; with- out regard to the defect in the plaintiff's title, in not producing the proceedinjrs in chancery, under which the sale w^as made by the executors of Inglis, and for want of the deed of confirmation by the heir and devisees. Nonsuit ordered ; which it was now moved to set aside. Appeal determined at Charleston, February 1840. Cur in, per Earle, J. What has been said in Alston vs. 3IcDoivaJI,(a) renders it unnecessary to say much here. The plaintiff, it is admitted, made out no title. And the defendant is not proved to have been a dis- seizor. The question made by the counsel in argument, did not arise. The endorsement which the plaintiff is required to make on his writ and declaration, gives character to this action, which is to try titles. I have not heard it doubted, that in such case, the ])laintilf, where there has been no tortious eviction, could only recover on proof of good title. It would !«' of very little use to go l>ack to the feudal system for the origin of land titles. — Whether or not the land in this State should, in point of law, all l)e jiresnmed to have been granted, is a question of policy, which we need not consider, much less decide. There can be no acquisition of title against the Slate, except by grant, or a possession which will authorize the presumption of a grant. Less than twenty years will not answer that purpose. And a i>laintiff can only make out a perfect title, by prodnejiig u grant, or by proving such a possession in himself, or some one from whom he derives title. A possession of sixteen years only, (a) Sup., 444. An. *450] GOLDTHWAITIIE & EVANS VS. BTRANT. 299 pupposinc: it clearly proved to have been of the lands in dispute, which terminated fifty years ago, cannot stand in the ])lace of title. It cannot be allowed to ])revail against the actual possession of the defendant, who did not enter upon the plaintiff, and which, for ought that ajipeurs, may be as rightful as that which the plaintiff formerly held. Until the true title appears, we must regard the ^actual possession, when not forcibly r:|:4ci obtained, as the best evidence of it, and entitled to protection. ^ Motion dismissed. Gantt, Richardson and Butler, JJ., concurred. O'Neall, J. Where the plaintiff's possession, actual or constructive, is entered upon, I think that such possession is evidence of title to put the defendant to prove his title. (a) In this case, I understand the plain- tiff or his ancestor never had possession, actual or constructive. T, therefore, am satisfied with the nonsuit. Pelirjru and Hunt, for the plaintiff. Mayzick and 3Iemminger, contra. GOLDTHWAITE & EVANS VS. LeWIS H. BrYANT. Tlie right of property in goods attaclied, if claimed by the garnishee, or by another, may be tried in the form of a feigned issue, wherein the garnishee or otlier claimant is plaintiff, as well as in any other form. Where a third person, not served as a garnishee, lays claim to the goods attached, and is allowed to come in with the privilege of a garnishee, and to make up a feigned issue as plaintiff, to try the right of property, whereby he gains possession of the goods, if he afterwards discontinue, and withdraw the record, he cannot then require a suggestion to be filed by the plaintitf in attachment, who is entitled to judgment against him as a defaulting garnishee. Before Earle, J., at Charleston, May Term, 1839. A foreign attachment, at the suit of the plaintiffs, against the defendant, was levied on a mare at livery, and Matthews, the keeper of the stables, was made a garnishee. An order for sale was made, and rescinded at the instance of one Naylor, who claimed the mare, and he had leave to come in as garnishee, and contest the right of property. An issue was made up, and stood for trial. When called, the attorney of Naylor moved for leave to discontinue, which being granted, he withdrew the record. Afterwards, during the term, a motion was made by the attorney of the plaint ills in attachment, for leave to sign judgment against Naylor as ^defaulting garnishee ; which was resisted, upon the ground that r^^Ko Naylor having denied the right of property in the absent debtor, ^ it was for the plaintiffs to become the actors in the suggestion, and to disprove the return. But the Circuit Court granted the order for judg- ment against him, which he moved the Court of Appeals to set aside. Appeal determined at Charleston, February, 1840. Curia, per E.uile, J. Whatever may be the correct practice in regard (a) 3 Strob., 480. An. 300 CHARLESTON, FEBRUARY, 1840. APP. VOL. I. [*452 to issues made up to try the right of property, under the attachment Act, it is unnecessary to determine. The practice has been very general, if not uniform, in Charleston, to do this in the form of a feigned issue, in which the party claiming in opposition to the attaching creditor, is the plaintiff. Such was the case here ; and no doubt, the question can as well be tried in that form as any other. When Naylor came in and claimed title, he jilaced himself in the position of being an actor in the subsequent proceeding ; he obtained possession of the mare, and rendered an action of trover unnecessary. The discontinuance was ordered at the instance of his counsel. If he had repudiated the issue, he could not have made that motion. By making it, he admitted himself to be the plaintiff in the proceeding; as having instituted, and as having a right to abandon it. Having discontinued, the condition on wiiich he rescinded the order of sale was not complied with, and the parties must be restored to the position which they occupied when he interposed. He can claim no better position than Matthews, in whose place he was substituted, that of a garnishee in possession, admitting the right of the absent debtor. It would be productive both of hardship and delay, to allow him to shift liis ground, and to have now all the advantages of an original garnishee, denying the right of the al)sent debtor ; conceding, in such case, the cor- rect practice to be, that the plaintiff in attachment should be the actor in the suggestion and issue The judgment of the Circuit Court is affirmed. Gantt, Richardson, O'Nball, and Butler, JJ., concurred ; Evans, absent. Thompson, for the motion. Bailey, contra. See 1 Rich., 4G0 ; 1 Strob., 244. An. *453] *J. F. Entz, Survivor, vs. Mills & Beach. An auctioneer's clerk is not such an agent, within the statute of frauds, whose entry will hind the party ; unless the authority of the clerk (to make the entry) lias been specially obtained from the party who is to be bound by his act, or he has afterwards, assented to be charged by it. Before Earle, J., at Charleston, May Term, 1839. This was an action of assumpsit to ixjcover the price of sundry articles sold liy Entz & Williams, of whom the plaintiff is survivor, at auction, on the l;Jtli July, 1«:38, and charged to the defendants. It was an e.Ktensive sale made by Trenholm, Smith & McCormick. The entries in their sales book were made by their clerk, who was offered as a witness to prove them. The sale was conducted in the following manner: ^McCormick was the auctioneer. When an article was knocked down, the name of the purchaser was repeated aloud, with the article and the price, to the clerk, who was within ten or twelve feet, and he made the entry in the book. One of the defendants was present, and did pur- chase. The clerk supposed he must have heard their names repeated as ^•453] ENTZ VS. MILL & BEACH. 301 the purchasers of tlie particular articles set down to them at these prices ; but the clerk received no directions from him to make the entries, nor did either of the auctioneers actually see the entries made. McCormick examined the books the next day, and found them correct. The defend- ant who made the purchases, when the bill was rendered made no objec- tion to the prices, but refused to take the articles, except nine casks of wine, and thirty-seven casks of oil, which they accepted and offered to pay for. Each purchase made a separate entry. Those accepted were lots 21 and 69. The entries in the sales book were rejected as evidence, and the plaintiff had a verdict for the price of the wine and oil. The plaintiff moves for a new trial, on the ground of error, iu exclud- ing the books. GROUNDS OF APPEAL. 1 That in the ca?e of a sale at auction, where the purchasers knew at the time of the sale, that they were named publicly by the auctioneer, as the bidder ; and also the articles they had bought, and the prices paid for them ; and the auctioneer, at the time and place of sale, announced to his clerk the names of such persons as purchasers, and the articles purchased, and the prices — who at the same time and place made an entry of the same iu the sales book of the auctioneer — that this was a sufHcicat memorandum to take the sale out of the statute of frauds. 2. That where a purchaser is j^rcsent at a sale by auction, and hears his name announced as a buyer, with the articles bought, and the prices for the *sarae, and is subsequently furnished with a bill of parcels of the articles r* . - 1 sold, and makes no objection to the bill of parcels, this is a sufficient ■- recognition of the correctness of the original memorandum made by the clerk of the auctioneer, and of which the bill of parcels was a copy, to authorize such original memorandum to be used in evidence, and to take the sale from the operation of the statute. 3. That when a person is present at a sale by auction, and is announced by the auctioneer as a purchaser ; and also, at the same time, the articles sold, and the i)rices, are announced, and an entry or memorandum to that effect, and including these particulars, is made by the clerk of the auctioneer, and the person announced as the purchaser does not dissent from the assertion made that he was the purchaser of such articles for such prices, that this is a sufficient authority fur the clerk to make a memorandum of such a sale, so as to charge such person as a purchaser, and to take the sale.from the operatiou of the stat- ute of frauds. 4. That where a purchaser is furnished with a bill of the articles sold, and the prices at which the same were sold, and takes one of several parcels which had been sold, and all of which are enumerated in the bill furnished, and does not deny the sale, nor the prices affixed to the articles, but only objects to the quality of the articles sold — this is a sufficient recognition of a previous contract, to authorize the iutroduction iu evideuce of the original memorandum made by the clerk of the auctioneer, and of which the bill furnished was a copy. 5. That where an auctioneer publicly announces an individual as a purchaser, and such person is present, and does not dissent, nor deny the assertion made of !iis being the purchaser; and at the same time the auctioneer names the articles sold, and the prices, and none of these are denied; and, subsequently, a bill of parcels is reudered to such person, to which he does not object, and accepts one of the several parcels charged to him iu the said bill ; this is a suUicientcoiitirniation of a memorandum made at the time and place of sale by the clerk of the auctioneer, of tiie name of the purchaser, the articles sold, and the prices, and of which the bill of parcels was a copy — so as to authorize 302 CHARLESTON, FEBRUARY, 1840. APP. VOL. I. [*454 the introduction in evidence of such memorandum, as sufficient to charge him as a purchaser, and to take the case from the statute of frauds. Appeal determined at Cbarlestou, February, 1840. Curia, per Earle, J. The fundamental principle which pervades the whole law of agency, is, that an agent cannot delegate his authority ; he cannot appoint a sub- agent ; he cannot substitute another in his place. Where the Courts in England and in this country held an auctioneer, who made a sale, to be the agent of both the vendor and purchaser, it was per- ^ .-r-i haps* a departure from the letter of the statute, but justified by -I the necessities of business. To hold an entry by the clerk of aa auctioneer to be a compliance with the statute, would be virtually a repeal. If it had not been seriously argued, I should have considered the point too plain to be disputed. AYe understand the practice is general in Charleston, for the clerks to make the entries. How such a mistake has arisen, it would be needless to conjecture. It has. been ruled otherwise, both here and in England, In Jleadoics vs. Meadoics, the very point was made and decided, that an entry by the clerk of the auctioneer was not a compliance with the statute, (3 McCord, 458,) and the case of Coles vs. TrecoUdck, (9 Yes, 251,) there referred to, decides the same point, that whatever may be the usage of trade, an auctioneer's clerk is not an agent within the statute, whose signature will bind the party, unless the authority of the latter has beea specially obtained, or he has assented to it afterwards. The authority of Lord Eldou is always of the highest consideration, and having been relied on to sustain the case cited from McCord, it would be of no avail to cite other cases. In Mea- doics vs, Meadoics, the sale was made iu !North Carolina, but their statute is the same. And is it not obvious, upon the reason of the thing, that the clerk is not the authorized agent of the buyer ? The sale is made by the auctioneer. lie is the mutual agent of the parties, and the very ground. on which his entry is held to bind the purchaser, is, that it is made upon the s}iot, at the time, and under the confidence inspired by his official cliaracter. Such an entry is supposed to be made in the presence of the parties : for it is only upon that ground that he can be considered the agent of the purchaser. When the clerk is twenty yards, or twenty feet, distant at the time the article is knocked down, and makes the entry from the mouth of the auctioneer, what security has the auctioneer that the entry is according to the fact ? It would be as reasonable to hold that an entry made the next day, or a week after, would be binding. It was argued, and the suggestion was countenanced by one of the Court, that the vendue Act has made a change on that subject. I think clearly otiierwise. Tluit Act seems to have" been framed in conformity with the decisions of the Courts on the statute of frauds. Conceding that the auctioneer is the agent, and may bind the purchaser, it has pro- vided that lie sliall keep books, in which shall be entered all sales, whether pul)lic or private. It would seem to follow, as an obvious conclusion, that the enlries which are required to be made, and which, when proved, according to Carler vs, Bennett, (Ril, Ca. 28T,)(a) are enough to enable ('/) -6 mil, 254. An. *455] STATE VS ARTHUR & GtJIGNARD. 303 the auctioneer to recover either the price of the article sold, or the difl'ereiice between a first and second sale, must be made by the auctioneer himself. He is the person licensed, who gives bond, and takes an oath ; and the legal eil'ect of his entry to bind the partfes arises from his oQicial character, and tiie ^confidence reposed in him by both. A clerk r^^rp known to neither is entitled to no such conlidence, and his entry, ^ not made in the presence of the purchaser, and with his assent, is not a compliance wilh the statute, and does not bind. The motion to set aside the verdict is refused. Gantt, Butler and Richardson, JJ., concurred. Magrath, for the motion. Frost, contra. See Cathcart vs. Kernaghan, 5 Strob., 130; Wolfe vs. SJiarpe, 10 Rich., G3; Christie VS. JSimpson, 1 Eich., 410; 3 McC, 458. An, The State vs. Arthur and Guignard. Whore two Justices, under the habeas corpus Act, had admitted a person to bail, who -was cliarged with murder in the warrant, it was held that they were guilty of an escape, and might very properly be indicted. Before Richardson, J., Richland, Fall Term, 1838. The defendants were justices of the quorum, and admitted to bail John Whitecotton, committed upon a charge of murder, and who was brought before them upon a habeas cor'jms. Upon motion of the solicitor, they were ordered to show cause why they should not be indicted for a misdemeanor, in admitting Whitecotton to bail. They showed cause, as follows : " That the said Whitecotton was brought before them, together with the warrant of commitment, the coroner's incpiest, and the affidavits annexed, by which it appeared that Abner Striplin was the slayer ; that the deceased died of the blows received at his luind, and no fact appeared to establish any concert between Whitecotton and Striplin in relation to the act. The respondents believed tliat, independent of the habeas coiyus Act, they had a right to bail. Two justices had such power by the common law, and neither the statute of Westminster 1st, nor the statute of 2d Phil, & Mary, has, in terms, taken it away. If these statutes have been so con- strued, it has not come to their knowledge. Ed. J. Arthur, JAxMes S. Guignard." *The Court ordered an indictment to be given out, from which order r* i-- the defendants appealed, upon the grounds : '- 1st. That they had power by law to bail the prisoner. 2d. That the case was one in which it was proper to grant bail. Appeal determined at Columbia, Fall Term, 1838. Curia, per Earle, J. I very much doubt the propriety of deciding important legal questions in this incidental way ui)on a rule to show cause ; and also, whether the order of the Circuit Judge was the proper 304 COLUMBIA, FALL TERM, 1838. APP. VOL. I. [*457 subject of appeal. He directed an indictment to be preferred against the defendants, and as they conld not be affected by proceeding, until thev were put on tlieir Ij'ial, it seems to me that the proper time and mode of making the question on their power to admit to bail, would have been on the trial, and by plea. As the question, however, has been argued here on the appeal, it is thought best to express the opinion of the Court on the subject. It would seem to be sufficient for the purpose, to refer to the case of the Slate vs. Ecerett d- Potter, (Dudley, 295,) and to examine the com- mitment. The charge is "that the said John Whitecotton did wilfully and feloniously kill and murder the said Hiram Addison." Here is a felony plainly expressed in the warrant of commitment ; and is the very exception made by the habeas corpus Act, which excludes a party from the benefit of its provisions. The subject of bail is regulated by English statutes, made of force. The leading statute is Westminster the 1st, c. 15, in the construction whereof it hath been held, that those imprisoned for the death of a man were declared to have been always irreplevisable ; (2 Hawk. P. C. Ii7,) and there is no statute giving to one or two Justices the power to admit to bail persons declared not to be bailable by the statute. After an examination of all the statutes, Mr. Sergeant Hawkins says, " that Justices of the Peace have no power to bail any person not replevisal)le by the above mentioned statute of West. ], c. 15." And altliough the Act of Assembly of 1712, (2 Stat, large, 399,) gives power to any two Justices, one to be of the quorum, to execute and put in force the habeas corpus Act, yet, by the provisions of the latter, a person charged with murder, " a felony, plainly and specially expressed in the warrant of commitment," is not to be admitted to bail. He is in con- finement by a warrant, in the language of the Act, "for a matter of offence, for the which, by the law the prisoner is not bailable." If, therefore, the Justices had no express authority by any other Statute or Act, and if the prisoner's case is excepted out of the provisions of the habeas corpus Act, they were guilty of an escape, in admitting him to bail, and were properly ordered to be indicted. The Judges of the Court of Common Pleas and Sessions, having all the power of the Court of King's Bench, may bail in all cases of offence *4581 ^''''^^^^'^^') ^according to circumstances ; and this either in term ' ^ time, or at chambers. They will look into the depositions, and examinations, and into the inquest ; and take other evidence, if need be. But this is by virtue of their original and inherent superintending power, and not derived from the habeas corpus Act. Any number of inferior magistrates united, have no such power, and it would be of dangerous tendency to confer it upon them. W'hile at the bar, I prosecuted an indictment, against two Justices, for admitiing to liail one charged with the murder of a slave, and they were convicted and lined. (a) Motiun dismii^seil Gantt, r.icirAiiDsoN, P,UTLER and Evans, JJ., concurred. De Saussure for the motion ; J. 1). Edwards, Solicitor, contra. («) Vide Acts 1S30, page 15. .See 11 Kiel). 63; Dud. 295. An. ^458] STATE VS. GUNTER. 305 The State vs. Erasmus Gunter. A question of credit between two witnesses, is to be left to the jury, and their find- ing will not be disturbed, notwithstanding it may be contrary to the views of the presiding judge, expressed in his charge. Before Earle, J., Richland, Spring Term, 1836. This was an indictment for buying corn from a negro man slave, named Bob, belonging to the estate of David Myers. James Gi-ay, the only witness produced on the part of the prosecution, proved the offence, substantially as laid in the indictment. He was living with the defend- ant as a hireling. Slept in the house, which contained only two rooms. The defendant occupied the inner or small room. Bob knocked at the window of the small room where defendant slept. Learning who was there, defendant directed Gray, who slept in the outer room, to open the door. Defendant went out. Bob brought about four bushels of corn, which they (defendant and Bob, ) carried to the barn, and on their return defendant paid him for the corn, in meat, tobacco, and whiskey. It occurred an hour or two after dark. Afterwards, Bob brought about two bushels *of com, a Uttle before day, and the defendant bought it, and r^^^c) paid for it in the same way. The negro made himself known as before, by ^ knocking at the window, and the defendant went out to the door and received the corn, paying for it after they returned from the barn ; a night or two only^after the former time. The witness admitted that he had quarelled with defendant, who refused to pay him his wages, and on that account he had got mad, and parted with him. On the part of the defendant, EUzabeth Gray, (sister of the former witness, ) deposed, that she Lived with defendant all the time James did. She occupied the inner room, where defendant slept, and she deposed that no such dealing or transaction ever took place within her knowledge ; and if it did occur at all, it would seem she must have known it. Other witnesses were called to the character of Gray, both to discredit him and sustain him. Several deposed that they would not believe him, while others knew no cause why they should not ; and would believe him. Dr. Briggs, who seems to have known him best, gave him such a character as should have overthrown his testimony altogether, according to the opinion of the presiding Judge, but the jury thought otherwise, and found the defendant guilty. It was a question of credit between two witnesses ; on the one'hand, one of whom had quarrelled with the defendant, and the other was his paramour ; on the other, between a witness whose character was proved to be bad, and a defendant whose character was not proved to be good. Appeal determined at Columbia, Fall Term, 1836. Curia, per Evans, J. Tliis was one of that class of cases which a jury are more competent to decide than this Court. The evidence was contradictory, and the question was, whom the jury should believe. They have decided, and I do not perceive any such palpable error, as should induce this Court to iuterfere. The motion is refused. Butler, Earle and Richardson, JJ., concurred. De Saussure for the motion. Elmore, Solicitor, contra. See Infra, 494. Yol. I. —21 306 COLUMBIA, FALL TERM, 1839. APP. VOL. L [*460 *460] *J. A. M Devall vs. Ivy Taylor. If the proceedings of a justice, from -wlioin a writ of Domestic Attachment issued, shows upon its face, that the justice had no authority to grant the attacliment, or if it fail to show that he had, then no judgment could be given upon it, either by himself or the circuit court, but the whole in an absolute nullity ; and it is of no consequence in what way the defect is brought to the view of the Court, or at whose motion it is quashed. Before Earle, J., at Abbeville, Fall Term, 1839. This was a writ of domestic attachment, levied and returned. On motion being made for a decree, the attention of the Court was called to the affidavit of the plaintiff, for the purpose of obtaining the attachment, which stated the indebtedness, and that the defendant was about to remove out of the State personally, or so absconded and concealed him- self that process could not be served on him. And it was moved, by Mr. Burt, to set aside the attachment, for insufficiency in the affidavit to give the justice jurisdiction. The order was made accordingly to quash the attachment, which the plaintiff now moves to set aside, and for a decree. GROUNDS OF APPEAL. 1. Because the defendant in attachment cannot appear by attorney, until the attachment has been dissolved. And no one except the defendant, can take advantage of irregularities in the attachment. 2. Because the Court will not, upon motion, set aside an attachment for irregularity. Appeal determined at Columbia, Fall Term, 1839. Curia, per Earle, J. The attachment Acts authorize justices of the peace to grant writs of attachment, in certain cases, on the oath of the plaintiff, returnable, either to the next court for the district or before themselves, according to the amount sued for. The cases provided for, in which justices have this extraordinary jurisdiction, are — 1. Where the debtor is removing out of the district privately ; 2. Where he absconds and conceals himself, so that the ordinary process of law cannot be served ui)on him ; 3. Where be intends to remove his effects. Although it has been held, in McKenzie vs. Buchan, (1 N. & McC, 205,) that' the oath of the plaintiff, estal)]ishing the ]iarticular state of facts which gives juri>dicfion to the justice, need not be in writing, yet it is clear, both on general principle and on authority, that it should be recited in the writ. This is universally true, of all courts of inferior and limited jurisdiction, thnt their proceedings must show, upon their face, that the subject matter i.s within their jurisdiction, else they will be regarded as nullities. And *4611 ^^^^ ""'"y ^'^"^'" *^^''' ^^ found in the English courts, and in our own, of their being quashed on motion. The general rule, as stated by tlic Court in Winford vs. Poxoell, (2 Lord Raymond, 1310,) in regard to inferior courts, is, that nothing shall be intended to be within (he jurisdiction, that is not expressly averred so to be ; though, in the case of a superior jurisdiction, nothing shall be intended out of it. (0 Mod., 223; .'3 Mod., 322; Str., 8 ; 6 Term., .583.) Wherever a special authority is given to justices, it ought to appear that the authority has been exactly pursued. And, said Lord Chancellor *461] EASTERBY VP. HKILBRON. 307 Pratt, in a case before him, " I do not see to wliat purpose we exercise a superior intendency over all inferior jurisdictions, unless it be to inspect their proceedings, and see whetlier they are regular or not. I have often heard it said, that nothing shall be presumed, one way or the otlier, in an inferior jurisdiction." If the proceeding show, upon its face, that the justice had no authority to grant the attachment, or if it fail to show that he had, then no judgment could be given upon it, either by himself or the Circuit Court ; but the whole is an absolute nullity ; and it is of no consequence in what way the defect is brought to the view of the Court, or at whose motion it is quashed. The case of Hagood vs. Hunter, (1 McC. 511,) is exactly this case, and perhaps it would be enough to refer to it. There the affidavit was, that the defendant "was about to remove from and without the limits, or so abscond and conceal himself." Here the oath is, that " he is about to remove out of the state, personally, or so abscond and conceal himself." To authorize the attachment, there should be a i)rccise allegation of some one of the three categories which give jurisdiction. To be about to remove out of the State, personally, is very different from being in the act of removing privately out of the dis- trict, and would not authorize the justice to grant the attachment. There is as much reason to suppose the writ issued on that part of the oath as on the other. Indeed, I would consider an affidavit, or the recital of one, in the disjunctive, as bad, although either of the facts deposed to might be sufficient. This is very unlike the cases of Havis vs. Ti-app and Gres- ham vs. Deale. (2 N. & McC. 130.) There the motion was to allow the defendant to introduce affidavits of himself and others, to contradict on the oath of the plaintiff, and to quash the indictment because it was not true. This was refused, because it would make up a collateral issue, upon a point on which the Act had provided that the oath of the plaintiff should alone be sufficient. And the Court properly refused to go into evidence aliunde, when the attachment was regular and valid on its face. The attachment here was properly quashed in the Circuit Court ; and the motion is refused. Richardson, Gantt, O'Xeall, Evans and Butler, JJ., concurred. Wardlaio and Ferrin, for motion. Burt and Thompson, contra. See Supra. 2(j4 ; note 2(i6. An. * George Easterby vs James Heilbron, [46i The same l's. The same. In the construction of covenants, the intention of the parties must govern, where the intention can be ascertained from the instrument itself. Parol proof is not admissible to explain a deed of covenant, where there is no ambiguity. Before Earle, J., at Charleston, . These were actions of rep)levin, in which the parties, pleadings, and evidence were the same. The defendant avowed for rent in arrear. Pleas, lion tenuit, and no rent in arrear; to which, in the second action, was added the further plea of no rent in arrear, nisi a certain sum, which was tendered. 308 CHARLESTON-, FEBRUARY, 1840. APP. VOL. I. [*462 The premises demised consisted of the lot at the northeast corner of Cluu-ch and Queen streets, " together with the three brick tenement dwelling honses thereon ; and also the brick buildings now in the progress COPY OF THE LEASE. South Carolina : — Jlemorandum of an agreement, made and concluded upon, by and between Dr. James Heilbrou, of Charleston, of the one part, and Captain George Easterby, of the same place, of the other part. The said James Heilbron, for and in consideration of the simi, or yearly rent, hereinafter mentioned, has agreed to let, lease, demise, and to farm let, and by these presents, doth let, lease, demise, and to farm let, nnto the said George Easterby, all that certain messuage, piece, and parcel of land, situate, lying and being in the City of Charleston, at the North East corner of Church and Queen streets, measuring and containing on Church street one hundred and sixteen feet, and on Qui'i-n street sixty-six feet, together with the three brick tenement dwelling houses, and other buildings thereon, and also the brick buildings now in the pro- gress of erecting thereon, and all the buildings, hereditaments, and appurtenances, to the aforesaid premises belonging, for the term of five years, commencing on the 10th day of July, in the year of our Lord one thousand eight himdred and thirty- six, and ending on the tenth day of July, in the year of our Lord one thousand eight hmifli-ed and forty-one ; subject, nevertheless, to the covenants and consi- derations hereinafter stipulated. The said George, Easterby, in consideration of the above letten premises, doth covenant, jjromise and agree, to pay unto the said James Heilbron, his lawful attorney, executors, administrators, or assigns, for the use and occupation or rent of the said messuage, piece, or parcel of land, with the buildings already erected thereon, at the rate of three hundred dollars per annum, payable quarterly, until the brick buildings on Church street, appurtenant thereto, now in the progress of being erected thereon, are completed and finished ; and as soon as the said brick buildings on Cliurch street, appurtenant thereto, are completed and finished, the said George Easterby, for himself, his executors and administrators, doth covenant, promise and agree, to pay unto the said James Heilbron, liis certain attorney, execu- tors, administrators or assigns, for the use and occupation or rent of the whole of the said premises, the yearly rent or sum of one thousand three hundred dollars per annum, from the time of such completion, delivery or tender, during the resi- due of the continuance of this lease, payable quarterly ; and doth also coA'enaut, promise and agree, well and truly to keep the said premises, and use them, as the intention of this agreement directs, and at the end of the said term, on the tenth July, in the year of our Lord one thousand eight hundred and forty-one, to sur- render and deliver up the same, to the said James Heilbron, his agent, executors, arossiljle foundation of some explanation or extenuation, yet to come. Upon tliis evidence, the questions rejected were predicated. " Was the land |»retty nigh worn out ?" " Did Gantt cultivate the land seven or eight years ?"(«) And lastly, as if to demonstrate that the crimination of Eagan was aimed at, the two former questions were reiterated in the third. " Was the testimony of Eagan true or not ?". In this third ques- tion, wo liavc the precise gist of the inquiry before the Court, i. e. Was the oltject to criminate Eagan ? Now I ask, how was it possible for Engan to be prepared to resist the evident crimination intended to be («) See 2 Sp. 1. An. ^470] EAGAN VS. GANTT. 315 brought out by such questions, when placed in such a connection with the evidence just given by Williams ? Unless the plaintiff had been put on his guard, by a plea that the charge of perjury would be justified ? Without such a plea, he ninst have been surprised to find the tables thus turned upon him. And such surprise attests the necessity of requiring, that the plea should have been filed on the part of Gantt. The plea of justification is not abolished. Its place is found, whenever the intention is to criminate the ])laintiff, by proving the slanderous words true. The Court therefore concur with the presiding judge ; and the motion is refused. Johnston, Evans, Johnson, and Gantt, concurred. Butler, J., dissenting, I dissent from the opinion of the Court in this case. The defendant did not wish to assume the perilous position of deliberately imputing perjury to the plaintiff by filing a plea of justifi- cation, which could alone be supported by proof of a perjury. — That is, that ^plaintiff had taken an oath, in a judicial trial, to a fact r-^ _, material to the issue, and which was deliberately and wilfully false. L When the defendant made the charge, he may not have been acquainted with all the legal ingredients of the crime imputed to the plaintiff, and at the trial, he may not have been able or willing to prove all that would be required by the plea of justification. But does it follow that he should have been deprived, for the want of such plea, of an opportunity of showing, that defendant had been culjjably negligent in making his estimates before he was sworn on a former trial ? The defendant did not offer to prove that plaintiff had committed a perjury, he offered to show that plaintiff had said in his oath what was in fact not true ; that is, the land in question was not near worn out, and that Gantt had not cultivated it seven or eight years ; and in doing this it would not have followed that plaintiff had been guilty of a wilful false- hood. If defendant had been permitted to introduce his evidence, he might have shown that the land was somewhat used, but not nearly worn out, and that Gantt had cultivated it for four or five years, but not seven or eight ; or he might have shown that plaintiff had sworn with a reck- lessness and ignorance of the true facts, which was culpal^le in a high degree, but not legally criminal ; that he had spoken "unadvisedly with his lips," where it had been in his power to have informed himself, and to have given correct information on the matter in controversy. Should a party be deprived of showing these things, because he cannot make out a crime against the plaintiff to justify the words spoken ? Cannot a party excuse himself by showing something by way of extenuation, without being driven to a plea which would impose on him the necessity of con- victing plaintiff" of a technical crime ? If a defendant is deprived of this evidence, this is his situation ; he cannot plead justification, because he has not evidence enough to support it, and if he does not justify, he is deprived of all evidence to excuse himself, by showing that plaintiff had committed a mistake, or had been guilty of great negligence in making statements giving information to the Court. The plain tilf in his evidence on a former trial might have testified to what was not true, without its being criminally false, so as to fix on him the imputation of perjury. The extent of the evidence offered by defendant and rejected by the Court, 316 COLUMBIA, FALL TEKM, 1837. APP. YOL. I. [*471 was to show that plaintiff had not testified truly, as to the degree of wear and deterioration of the hind, and the time it was occupied. In giving his evidence, the plaintiff may have made a mistake, or he may have been culimbly negligent ; and how could defendant show either without the evidence which was excluded ? In what way could he have availed him- self of the benefit of this evidence ? If it could have been of any service to him, he has been precluded from it unjustly by the rule laid down. I have always understood the rule to be, that a defendant in slander could introduce any evidence under the general issue, to reduce the damages by ^g-, showing that he had grounds for what he had *said of the plaintiff, -' and that he could show any grounds not amounting to the crime imputed ; but where he contends for an entire verdict, he must show that he did not use the offensive words ; or if he intends to maintain the truth of them to the extent of their legal import, he must do so under a plea justification. I will suppose a case, that A. said of B. that B. was guilty of larceny ; an action was brought ; A. could show that B. had traded with a negro, under suspicious circumstances, showing that he had traded for stolen goods ; the charge would not be supported by the proof under plea of justification ; but should the defendant, on that account, be deprived of the testimony under the general issue to reduce the damages ? Any thing less than the crime imputed should be given in evidence, under the general issue ; but where evidence is offered to prove the crime charged, it should be a plea of justification, to authorize its admission. O'Xeall, Harper and De Saussure, concurred. Caldicell and Summer, for the motion. Bauskett and Cavghman, contra. See 10 Ricli. 417 ; 1 N. & McC. 268. An. The State vs. Horatio Blease. It is not necessary, in an indictment under the Act of 1754, (P. L. 335-6,) for aiding a slave in running away and departing from his master's employment, to set out and aver the means used in aiding the slave to run away. It is suf- ficient for all purj)osos if the indictment charge the offence in the words of the Act. It must definitely and directly charge the defendant with aiding the slave in running away, so that his master has been deprived of his services ; the name of the slave, and the name of his master; the time and place, &c. Before O'Neall, J , at Edgefield, Spring Term, 1S3T. The prisoner was indicted under the 3d clause of the 1st section of the Act of 17.54, (P. L. 33.5-0, )(rt) for aiding a slave in running away and dc|>arting from his master's service. The'indictinent charged the offence in the words of the Act, but did not set out the means employed by the defendant in aiding the slave to run away. It was proved that a slave, the projjcrty of Francis Bettis, whose name was Jim, ran away from his (a) 7 Stat. 426. An. *472J STATE VS. BLEASE. 317 master's service, on the night of the 24th of December, 1836 ; on the 26th of 'December, 1836, he was found in Schrivon County, State r^i-ro of Georgia, and a paper was produced l)y him as a pat^s, and '- taken from his possession, of whicli the following is (I believe) a literal copy. " This is to show my boy Jesse a leaf to hire is own time for next year." signed, " William Uarnes." • On the 24th of December, 1836, Jim was seen at the house of the prisoner, in the suburbs of the village of Edgefield, in company with the prisoner, nailing boards upon his pailings. The paper found in posses- sion of the runaway, was proved, by A. B. Addison, Esq., to be in the handwriting of the prisoner ; he had seen him write twice ; of the first occasion on which he had seen him write, he said heJiad no recollection, at the time the prisoner was arrested ; and, therefore, he requested him, in his presence, to write his name, which he did, and it was from his knowledge thus acquired, that he thought the paper was the handwriting of the prisoner; he was shown a paper, which afterwards was proved to have been written by Thomas Blease, the brother of the prisoner, and said that it looked like the writing of the prisoner, though not so much as the paper taken from the possession of the runaway. He said that the prisoner's pronunciation was very like the spelling of the words in the paper; he drops the "h"in some words, and sounds it in others, to which it does not belong. An order, admitted by the prisoner to be his genuine handwriting, was offered by the State, and admitted by the Court, notwithstanding it was objected to by the counsel for the prisoner. The rule on this subject is stated by the Court of Appeals in the case of Bowman vs. Plunkett, (2 McC. 518, )(a) to be, that where there has been jwimn facie proof of handwriting, and it is still a doubtful cpiestion, genuine writing of the party may be submitted to the Court and jury, to enable them to decide, by comparison, whether the writing produced be that of the party. This rule was laid down in a civil cause, but I am not able to discover why it is not a proper rule in a criminal cause. In one, as well as the other, it is intended to answer a question of fact by the best means in our power. The prisoner had resided at Edgefield for a few years, and during that time had been industrious and correct in his dealings ; and the witnesses all agreed, that they had heard nothing against him until this ati'air occurred — and, therefore, said he was of good character. It was objected, on the part of the prisoner, that he could not be guilty under the Act of 1*754, inasmuch as the Legislature, at the last session, had provided a different punishment for giving a ticket or permit to a slave. The Act of 1836, (&) was not before me, and could not then be obtained, as the Acts (from the f^ult of the State Printer, or the Secretary of Slate) had not been sent to the different districts for distri- bution. I had, therefore, to judge of the law from the statement which Mr. Speaker Wardlaw was able to give from memory; and I am grati- fied to find, on meeting with the Act at the last Court on my circuit, (10th Aiiril, 1837,) within twelve miles *of the capital, that no error r*^tji was committed in this behalf. It provides, "That if any person '- shall give a ticket or written permit to any slave, the property, or being under the charge of another, without the consent or against the will of («) Sup. 129 ; 3 Rich. 3b3. An. (b) 6 Stat. 552. An. 318 COLUMBIA, FALL TERM, 1837. APP. VOL. I. [*-474 the owner or other person having charge of such slave, authorizing such shive to be absent, or to deal, trade or traffic, such person shall be liable to be indicted, and on conviction, be punished by fine, not exceed- ing one thousand dollars, and be imprisoned not exceeding twelve months; the entire tine thus imposed, to be given to the informer." I thought, and so' instructed the jury, that this Act provided for a different oifence from that before the Court. As to the first branch of the Act, it was nothing more than a re-enactment of the 4th section of the Act of 1740, with an increase of the penalty. Construing it by that, or as in Xiari materia, it was plain that it was intended to punish the giving to a slave a pass for occasional absence, unconnected with the fact of running away. In this case, under the Act of 1754, it was necessary that the pass should have been delivered to the slave, to aid him in running away and departing from his master's service. I thought, and so instructed the jury, that if the paper found in the possession of the slave, was delivered to him by the prisoner, with the intent to aid him in running away, that then the prisoner was liable to the penalty of the Act of 1754. In deciding upon the prisoner's guilt, I told them that every thing depended upon the fact, whether tlie paper found in the possession of the slave, was the handwriting of the prisoner; if it was, from that fact, and the further fact that the slave, just before running away, was seen in the company and employment of the prisoner, they might presume he deli\X!red the i)apcr to the slave to enable him to run away. In deciding upon the handwriting, I told them that piHma facie proof had been made, which might be rebutted by the vv'ant of opportunity, on the part of the witness, to be familiarly acquainted with his handwriting; the fact that he doubted whether the paper written by Thomas Bleasc, was not written by the prisoner; a comi)arison with that pai)er, or the order admitted to be genuine. So tlu; i)roof might be corroborated by the skill of the witness in judging of handvvriting, and their own opinion, on comparison, of the identity of the handvvriting of the genuine order, and the ))aper found in the possession of the slave. Though it appeared to me, I said to the jury, that there was more similitude of the paper found in the possession of the slave, to the paper written by Thomas Blcase, than to the order written by the prisoner. But I told them, the question of handwriting was one of fact merely, and for them alone. I explained to the jury, that if they entertained a reasonable doubt, upon the facts proved, of the guilt of the prisoner, they ought to acquit him. The jury found the prisoner guilty; and I cannot say that I am dissatisfied with it. *'l'ije prisoner appeals, and moves in arrest of judgment and for a new on the grounds of misdirection bv the Court, and error in law. 'J trial, Appeal determined at Columbia, Tall Term, 1837. Curia, per Butleii, J. The ground taken in arrest of judgment, cannot be sustained, according to the view which has been taken of it by a majority of the court. The defendant is indicted in the words of the statute which created and delincs the oifence with which he is charged. He is definitely and directly charged with aiding a slave in running away, so that his master was deprived of his service. The name of the slave and the name of his master ; the time, plar.'e and fact of rendering *475] STATE VS. BLEASE. 319 the aid, ami the purpose for \vliic]i it was rciulcrcd, and its accomplisli- meiit, are all stated. Those arc the facts and circumstances which constitute the olfcnce; and of which the defendant had a right to be informed for every legal purpose. Tiiat is, that he might be enabled to judge, whether or not, he was charged with an iiidictal»le offence, and to enable him to plead a conviction or acquittal on this indictment, in bar of another indictment for the same offence ; and also to enable the court to ]ironounce a certain judgment on it. The means which a defendant may use in the commission of such a crime, might be innocent in themselves, separately considered, and as various as the device and craft of men could suggest. It would have been no criuie for the negro, Jim, to have rode the defendant's horse ; for defendant to have given him money and a ticket to go on the railroad, or a letter to a captain of a vessel. Each one of these things may be done innocently; and they become criminal, only when they are used as means to effect a criminal purpose. If they should enable a slave to run away, so tliat his master loses his service, by the design of the party who employed them., a crime would be perpetrated, by the end which they had effected. It is the end accomplished, and not the means employed, that constitute the offence. I can perceive no more reason for setting out in an indictment, the means used in aiding a slave to run away, than to set them out in an indictment for stealing and inveigling a slave. In the two latter cases it never has been thought necessary. These offences are created and enumerated in one clause of the same statute, the statute under which the defendant is indicted. It would be as impracticable, aud as little necessary to state the means used in the one as the other; some of the same means might be used in all of them. It might be a very effectual means of stealing or enveigling a slave, to give him a ticket. The purpose for which it might be given would cliaracterize the offence. A case can be put, in which it would be impossible to set out the means employed in aiding a slave to run away from his master, and yet, a defendant would be clearly guilty. Suppose a party were to admit, opeidy and without *disguise, deeming it a merit rather than a r-j^.-jn crime, that he had procured A. B.'s slave to run away, and that he '- had furnished him the means to make his escape to Boston, could he not be convicted by his own confession, upon an indictment, charging his crime in the words of the statute, without specifying any means ? The very attempt to set out the means might, and would frequently, defeat the indictment; for nine times in ten, the evidence would show different means from those set out ; and it is a settled rule, that the means must be proved as they are set out, when it is necessary to set them out in an indictment. There is a class of cases in which it is necessary to set out the means by which the offence is committed. When the particular means which are used to efl'ect a criminal object, are essential to consti- tute the offence, it is a general rule, that such means must be described on the record, to enable the court to see that the jury have founded their conclusion on proper premises. A single instance will illustrate this position. In an indictment for obtaining money by false pretences, it is necessary to specify the pretences, to see whether they fall within the purview of the statutes. It is necessary, because some pretences are not enumerated in the Statutes of Henry the 8th and George the 2d. If 320 COLUMBIA, FALL TERM, 1837. APP. VOL. L [*476 there were a statute against canying bowie knives and other deadly weapons, enumerated, an indictment under it should specify the weapons prohibited. In an indictment for libel or swindling, the libellous pub- lication and the fraudulent practices should be set out, because they constitute the offence. And so of other offences of the like kind. But not so where the means are indifferent, and the end effected by them is the offence. Adjudicated cases will only serve to illustrate these posi- tions and distinctions. Telley^s case, reported in Leach, is nearer like the one under consideration, than any other quoted. The defendant was indicted under the statute of George the 2d, against aiding and assisting of persons to attempt to escape out of lawful prisons. The indictment stated, that defendants were aiding one Jodell Idswell to make an escape, then and there being a prisoner, &c. Objections were taken to the indictment, on a motion in arrest of judgment; but it was not contended that the means used should have been set out ; thus conceding that it was unnecessary; as far at least, as it could be negatively conceded. I think it far from being an unimportant circumstance, that the solicitor has pursued the form prescribed in Grimke's Justice. The precedent was taken, no doubt, from some form of indictment made out by some .skilful and experienced Attorney General living in Charleston ; for it is known that Judge Grimke's precedents were collected in this way. In the case of the State vs. GantreU,'a) decided in 1834, Judge O'Neall has laid down, very correctl}', the distinction where the words of the statute should be pursued, and where the offence should be otherwise more fully and particularly described. :^ ,HH-i *Iu the first ground taken for a new trial, it is contended, that -J if the defendant was guilty of any offence, it was that described in the Act of 1836. By this Act, it is made a misdemeanor to give another's slave a ticket without authority to do so. But because it may be a misdemeanor, in itself, to give a slave such a ticket as that contem- plated in the Act of 1836, it does not follow that it may not also be a means used in tjie commission of a crime. If it be given with a view to aid a slave to run away, in defiance of his master's authority, and not to return, so that the master may lose his property in the slave, it must be regarded as a means to commit a crime under the Act of 1754. If, how- ever, it be given to a slave, by one not having authority, to enable him to be absent, but in contemplation of his return to his master's authority ; or to enable a slave to go, and from place to place, to trade or attend to some business of the ])er6on giving the ticket, it would be regarded as a misdemeanor, under the Act of 1836.(6) In the Act of 1140, the form of a ticket to be given to a slave is prescribed ; and in a subsequent clause, a fine is im))osed on any one who shall give such a ticket without authority. The Act of 1836 should be construed in reference to this Act, both as to the character of the ticket, and the offence which may be committed by giving it. The 2na ground for a new trial, involves a question of fact whicli belonged to the jury. The 3rd and 4th grounds, depended on the character of tlie evidence given by Mr. Addison. From the report of the presiding judge, and the admissions of the Solicitor, and the counsel for the defendant, the witness testified as follows :— That he had seen the defend- er) 2 Ilill, 389. An. (;,) 7 stat. 308, § 3, 4. An. ^477] STATE VS. BLEASE. 321 ant write but twice, once in signing his name some years ago, just after be arrived in this State; and the other time, when the defendant signed his name to a recognizance on his admission to bail. He, witness, never saw prisoner write anything but his name. The ticket offered in evi- dence, did not have the name of the prisoner. The first signature had made no impression on the mind of the witness, and he did not pretend to liave formed any opinion from that. The witness saw another signa- ture, to an order which the prisoner had acknowledged to be his ; and which the witness identified, by having written a certificate beneath it ; this, and the signature to the recognizance, formed the only legitimate source of witness's primary information and opinion of the prisoner's handwriting. These may have made an impression on the mind of the witness, and have fixed such a standard in it, as to authorize him to give an opinion on the disputed i)aper. — The question is, had he such a standard, to which he could refer for his belief and opinion, independently of the papers themselves ; and which it seems were in court ? (a) Or had he formed his opinion by a comi)arison of the characters of the dif- ferent papers ? Upon this, in some measure depended the pr^imafacie testimony of the witness, which was the predicate of all that followed ; and it seems to me that what followed, had more influence on the witness's mind than anything else, to wit — the *peculiar pronunciation of r-jtitTC. the prisoner, and an actual comparison of handwriting on the ■- stand. The presiding judge left it to the jury to decide the case, in some measure, on the skill of the witness. " A person who has seen a witness write, and retains no distinct recollection or impression of the handwrit- ing, may revive his memory by looking at the paper he saw written ; yet, he will not be allowed to form his opinion from any supposed knowledge which he may have acquired by comparing the characters of the respect- ive writings." — (See 4 Carr. & Payne, p. 1.) These reports are found in Eng. Com. L. Rep. vol. . The practice of allowing witnesses to testify, at all, from their supposed skill in comparison of hands, is now ex])loded in the English courts, as may be seen by the cases referred to in the case I have quoted. Mr. Addison certainly had some reference in his mind to the characters of the signature which he saw made. He may have had no impression existing in his mind independently of these papers ; if so, his mind had come to its conclusion, rather by reference to them, than by referring to a standard previously existing in his own mind. The witness certainly made a comparison on the stand ; and whether the whole of his testimony w^as not founded on comparison, or supposed knowledge, acquired by comparison, is not entirely certain. When a witness has distinctly given competent evidence of handwriting, proving it, prima facie, the auxiliary, and in my mind, the unsatisfactory, testi- mony by comparison may be resorted to. The case of Bowman vs. Plunkett, assumes that competent, but doubtful, evidence, had been given before comparison by the witness of writings admitted to be given, was allowed. I do not wish to lay down any rule in conflict with that opinion ; I will only say, however, if that had been a criminal case, it would have been probably sent back for a new trial. Doubts arising upon nice distinctions of law, should be solved in favor of the accused ; (a) See 3 Rich. 383. An. YoL. I..-22 :V?'J nui'MiuA, r\i.i. tkkm, lS;n. ait. \oi,. i. |*l-7S nml to SUV tlio Icjist t>rit. this ctiso is not iVi'o iVoni (loul>t on (lif law. In onnitul ousos, this oonslilor!»ti»>n slioiiM liavo its intlii(Mu><>. To sit in juilgmout on tho lit'i^ of a unui, is tln> highest power thut run bo ti»>h\u:atoii to, or oxoroisod l>y, any l\nnian trilninul ; nnd sl\(>nhl lunor Uv o\(Mvisod l»nt in oont\>ruiity with tho jM'ost-riptions o( strict law, ami npon salislai*- torv tostimony. I'nrostriotinl t»>stin»ony ami slirowtl oonjoiMnro, tnay fjt>- quontly rosnlt in truth, and aiil jnstii'<> ; hnt in linn>s o{' ajyitation. tlioy may ho niado nso of, as fatal nionnvS, to g'ratily tho ilonninds of projndioo. unii snhsorvo tho oiuls o( tyrainiy. Striot biw is a t\)rtross of protoolion anil (iolouoo. in tiun>s of violoiu'o. It is nj;ht that wo shonid maintain onr poonliar institntiv>ns, hy a laitht'\il, toarloss, and impartial administra- tii^n v>t'tlio hvws of tho \i\m\. lUil justioo shonhl balanoo niooly with hor soah's hot'oro sho strilvos witl» hor sword. Lot (ho dol'ondant Imvo a now trial without prt-jmlioo. 1!\ \Ns, U.VNrr. and K\iuakoson, ,1,1., ot>nonrrod. *i-«)l *l''AUt.K, J. Althong'h I ontortaimui a ditVoront oi)inton at (lio " J ttri»nunont, 1 iuolitio tv> auroo that tho imliolmont may bo gvunl, without avorrini;- v>r sotting out tho \noans by whioh aid was otVorod. On a sonnil oonstruotiou of tho Art, lu>wovor, it sooms to bo omtoodod, that tho olVonoo was not oi>mploto on tho part of tho dofonilant, unloss tho slavo di»l aotnally rm\ away. This faot, thorofi>ro. oonstitntos a n\atorial part of tho ohargo, and should havo boon allogoil, as a distinot substantivo avormont, with timo and plaoo, in lU'dor to bring' tho otVonoo within all tho matorial words of tho Aot ; nor is it suIVumo\U that snoh faot bo sup- pliod, as it is in this indiotuuMit, by poriphrasis. intondn\ont or oonolnsion. (3 Hawk. or»i. oh. !.■;>. ^t,ii") It is a mistako to su[>poso, that it is always "^utlioiont to allogo tho otVonoo in tho moro words of tho statuto ; for whoro it consists of sovoral aots, thoy should oaoh bo avorrod, with tho samo j)artioularity as at oo>»uui>u law. This oxi-opiion was i\o\ arguod at tho bar; and tho Court has not oonsidorod it. Uul 1 am unwilling to sftuotion, ovon by silonoo, a dofootivo ploa^ling in a oai>ital oaso, 1 think tho indiotmont insuttloiont. Tho soooml count doos not sot forth tho ohargi' with sulVu"iont oortainty and prooision. I otuiour fully \\\ granting tho motion for a now trial, on tlio gronmls prosontod bv Mr. .lustioo Uutlor. iri<^/(i// and Han/Ziwi', for tho mv>tion. CahluYll, Solioiivu*. contra. Norit. — Tho grounds of apjH>al in this onso ooiiUl not l>o t\unislu>il by tlu> Olork of llko A\>jH'jil I'ourt, t'lvdv ttu'iruot tiju'iug Ih'oii tUod, I pivsumo, witli tho orijjiurtl |»«j>i4 ; o MoO. 444. An. '4H()] DILLARD VS. WALLACE. 323 *A. J. DiLLARD VS. JkANNETTE WALLACE. [*480 Where an overseer hcas Ijcen guilty of neglect, and some small departure frorn the terms of his contract, and these are known to his employer, and he is still continued as her overseer, it will he considered as a waiver of them as grounds to rescind the contract. Before O'Neall, J., Union, Fall Extra Terra, 1837. This was an action of covenant brought for the recovery of the plaintifTs wages as the defendant's overseer, at the place called the Meadow Woods. The defence was various, to wit., that the negroes had been worked in too cold weather, that one was whipped improperly, that an old woman and ihe milk woman were employed Ijy the overseer differently from his employer's instructions, that the ijlaintilF had ground and eat some of the defendant's wheat, that he had not gathered any peas, that the fodder was so badly handled and put up that the whole was injured, and two stacks were wholly w<;rthless; that the defendant's cotton was either fraudcntly packed, or picked out and packed in such a wot state as to ruin it, and that the crop of Col. Gist, or a part of it, which the defend- ant was bound to pick and pack, was by the plaintiff fraudulently packed. The proof was very clear and abundant that the plaintiif made an extraordinary crop, one hundred and six bales of cotton, and four thousand five hundred bushels of corn. The defendant made no objec- tion, at any time, to the payment of his wages; that he had not planted as much corn and sown as much oats, as he was by his contract bound to have done. It was during the argument that this objection was raised. I thought the evidence would warrant the jury in presuming that the crop had been planted according to the contract There was some evi- dence, that, during the extreme cold weather in February, 1335, the defendant's negroes were at work, and kept from the fire by tSe plaintiff; it also appeared that in the course of the winter, LS34-1835, a negro man of the defendant's, (Leckie,) was badly frost bitten ; but whether this was from the act of the plaintiff, did not appear. The plaintiff whipped a negro woman for sending a child from Meadow AVoods to the defendant's house, the defendant complained about it, and the plain- tiff said if he had done wrong he was sorry for it. An old woman, whose duty it was to attend to the children, was put to milk the cows. And a woman (Minder,) who had previously milked, and who was a crop hand, was put to cook ; this was after the plaintiff's marriage, in the summer or fall of the year ; the defendant knew of it, complained about it to the plaintiff, but still suffered him to go on as her overseer. The defendant had kept some wheat for seed at the Meadow Woods, she aban- doned the idea of sowing it, and then the plaintiff had two or three bushels ground into flour and used it. This fact was also known to the defendant, and on her son making some objections'"' the i)laintiff r^io-i said he could not live on nothing. (If I recollect correctly, the '- defendant was to find the plaintiff.) U[)on these several facts and the defences arising out of them, I thought that the defendant's knowledge of them, and subsequent acceptance of the plaintiff's services as her over- seer, was a waiver of them, as grounds to rescind the contract. If she 324 COLUMBIA, FALL TERM, 1837. APP. TOL. I. [*481 had sustained any damage thereby, she might have claimed for it by way of discount, but she had not filed any discount in the case. As to the crop of peas, there was some evidence, from the plaintiff's own declarations, to show that a large quantity was made. None was gathered. But it appeared satisfactorily from the evidence of Col. Martin, that although a large crop was planted and promised finely, yet that the earlv frost prevented it from maturing. In the progress of the case, Mr Thomson proposed to show that the plaintilf had received the proceeds of the defendant's negroes' crops, (say $163,) and claimed a deduction for the same from his wages. To this it was replied by Mr. Dawkins, that the plaintiff had either paid it to or for the negroes, according to the defend- ant's instructions, and that not expecting such a defence, they were not then prepared to meet it ; he therefore objected to the defendant's defence, in this behalf, on the ground that she could only claim it by way of discount, which not being filed, she could not be permitted to give any proof touch- ing the matter. The objection was sustained. In the progress of the case, Mr. Thomson referred to the Act of 1747, P. L. 215, by the 3rd sec. of which it is enacted that if the overseer employ any of the negroes of his employer, upon his own account, he shall pay 10s. per day to the owner : the same Act directs that this shall only be recovered before a justice of the peace, and that the information of the negroes shall be suflicient evi- dence to charge the overseer, unless he will exculpate himself by his own oath. I thought, and so ruled, that the objections to any defence arising out of this Act, were fourfold : first, that there were no facts proved in the case to which it could apply : second, that the 10s. per day was a penalty, and could only be recovered, (if at all,) before a justice of the peace : third, that if recoverable here it could only avail the defendant by way of discount : and fourth, that the Act was obsolete. These obser- vations dispose of what I regard as the mere trash of the case, and brings the court to the main and the real defences 1st. As to the fodder : Wm. R. Wilburn, Dr. Peak, Warren Taylor and Col. Gist, thought the whole fodder, (20 stacks,) was put up wet and was rotten and worthless. Mr. J. W. Williams, a very experienced planter and overseer, said that two of the stacks were bad. Mr. Daniel Wallace said several were bad : the plaintiff, on the day of the first exarainatioa of tiie fodder, brought some bundles from the gin house which were good, and said that that in the stacks when put up was equally as good, and he couhl notaccount for it becoming injured. Messrs. Wilburn and Taylor ♦4821 ''"'^ ^^^^ ^fodder had been put up too green. Col. Martin and Mr. Browning said the season for taking fodder was a broken one, the early part good— the middle bad, and the last good : they both spoke of a field of 40 acres being pulled by the plaintiff on a day which promised to be fair, but before it could be taken up it rained upon it. Mv. Amhrose Ray, a very intelligent and respectable farmer of the neigh- borhood, .said thai 18 of the stacks of fodder were good, two were bad : tliat tlieir condition resulted from the blades being wet by rain after they were i»ulh,'d. This part of the case seemed to me to present a naked question of fact ; if ilie jury concurred with Wilbuni, Tavlor, Peak and Gist, they might fnid for the defendant ; but if on the other hand they concurred with Mr. Ray, they might find for the plaintiff. 2ijd. As to the defendant's own cotton crop, the [iroof was somewhat *482] DILLARD VS. WALLACE. 325 various : it was not nicely handled in picking it ont : it was somewhat trashy, and some of it was wet. This mi^-ht have been the fault of the owner ; for the proof was, that to enable Mr. Rice, who had married one of the defendant's daughters, and who was about removing- to ^Mississippi, to get some of the negroes, the crop was gathered very rapidly. The proof was clear, that at least one bale of the defendant's cotton had Ijeen packed too wet and was spoiled ; some of the witnesses thought that two bales were in that condition. Thirteen bales were opened, and Col. Gist thought they were all unfit for market. According to the plaintiff's and defendant's contract, he was to have $3 for every bale weighing 310 lbs. In this parcel of 55 bales which were alleged to be fraudulently packed, many of them weighed less than 310 lbs. and I am not certain that any exceeded it. The whole crop of 106 bales, was sold at a general average of $15 20 per cwt. This was as much as was generally realized for the cro}» of 1835, by the neighbors Upon this part of the case I instructed the jury, first, that if the ])laintift' fraudulently packed a single bag of the defendant's crop ; or second, that if the cotton was, by his direction, or by his neglect, picked and packed when too wet, that then in either of these cases, they might find for the defendant. 3rd. As to Col. Gist's cotton. He proved (and al)out the facts stated from his testimony there can be no doubt,) that part of his Tyger River crop, 48 bales, were ginned at the defendant's gin at Meadow Woods under a contract with her ; 18 bales brought a fair price, four of the remain- ing 30 were plated, and the other 26 were wet. The overseer of Col. Gist went with the cotton to the gin, and was present at the packing of the 30 bales, either in part or in the whole. Upon this part of the case, I instructed the jury that if the plaintiff fraudulently packed Col. Gist's crop, then on this ground they ought to find for the defendant. The jury found for the i)laintiff his entire wages ; and as the questions were naked questions of fact, I should not be disposed to disturb the verdict. *GR0rNDS OF APPEAL. [*483 1. Because the contract was not proved as laid ; the plaintiff was bound by his contract to plant as much as two hundred acres in corn, and as much as eighty or ninety acres in oats, and there was no proof as to the quantitv of either. 2. Because the defendant should have been allowed some deductions from plaintiff's wages as her overseer, as it was clearly proven that the cotton and fodder were greatly damaged, and still he was allowed by the jury Ids full wao-es. 3. Because the Court erred in charging or instructing the jury, thatlhe defendant could not overlook any fault or offence of the plaintilT, without forever barring herself from recurring to the same again, as a ground of complaint, even in conjunction with subsequent violations of the duties of his station, but that she must complain at the time of the act done, or she could not be heard in Court. 4. Because the Court rejected evidence as to $163 in the hands of plaintiff", belonging to defendant, which he haJ received as her agent while acting as her overseer, the proceeds of cotton sold for her negroes, on the ground there was no discount filed, when in fact that was a part of his duty as her overseer. 5. Because the Court ruled that the Act of 1747, under the head of " over- seers of plantations," was obsolete. 6. Because the cotton was certainly fraudulently packed, and the fodder put up in a rotten condition, or soon became so ; and whether these things occurred 326 COLUMBIA, FALL TERM, 1837. APP. VOL. I. [*483 in consequence of fraud or negligence on bis part, the legal consequences were the same. 7. Because the verdict was against law, and the evidence, and the cliarge of the judge. Curia, j)er Evans, J. I have looked into the agreement and the decla- ration in this case. The declaration is in the common form, setting ont the agreement, and averring a general performance on the plaintiff's part. The plea alleges three breaches; first, that the plaintiff did not plant the quantity of corn and oats stipulated in the agreement ; second, that he did not take proper care of the negroes, and horses, mules, &c. : third, that be did not take proper care of the crop made on the plantation. These were the breaches alleged, and upon which the issues were founded, as I suppose, for no part of the pleadings, subsequent to these, have been fur- nished the Court. Upon this state of the pleadings, and the report of the presiding Judge, this case is to be decided. On the first ground, I would remark that, if there had been no proof of performance, or the plaintiif had proved a different contract from the one set forth in the declaration, or if the consideration consisted of various parts, as in Brooks vs. Loivry, (1 jS". & McC. 342,) and they were not *i8n ^^^ °"^ *'" ^^^^ declaration, and substantially proved on the trial, -' the plaintiff must have failed ; but in this case, every part of the contract is set out, and performance of the \vhole averred. Now, if the plaintiff had offered no proof of performance, he should have been non- suited. But as some evidence was offered on this point, and as this evi- ence was satisfactory both to the jury and the presiding Judge, this Court is not disposed to disturb the verdict on that ground. The second and the sixth ground are substantially the same, and involve the question made in the third assigned breach, to wit, that the plaintiff did not perform his duty in gathering the fodder and in packing the cot- ton. The evidence of default in these particulars is very strong, and I certaiidy should not have been disposed to disturb the verdict if the jury bad found for the defendant. But my experience has taught me that a jury who know the parties and the witnesses is much more competent to decide pure questions of fact, than a Judge who is an entire stranger. And if to this be added, that the Judge who heard the evidence and understood the case much better than 1 can from a written report, has certilied that he is satisfied with the verdict, I think it would be unwise to interfere. I would not have it un lerstood, that by the sanction of this Court, juries are to be allowed without control to si)ort with the rights of liligiints in court. If they undertake to decide without evidence, or capriciously to disregard the facts of the case, a new trial ought to, and 60 far as depends on me, will, be granted. But I cannot say it has been done in this case ; and the defendant's motion on these grounds must fail. _ As to the third ground, which alleges error in tlie charge of the presi- ding Judge, in n^lation to some small departures of the plaintiff from his duty, I agree with him. Tlie facts were known to the defendant when they occurred. It niigiit have justilied her in putting an end to the con- tract, or entitled her U) an abatement in the price by way of discount ; l)ut surely it cannot be allowed, after an overseer has served faithfully to the end of tlie year in all other particulars, that his emi)loyer shall avoid the i)ayment of the whole wages for some fault committed in the begin- *484] STATE VS. IRBY. 327 ning of the year. I concur with the presiding Judge (a) "tliat the defend- ant's knowledge and subsequent acceptance of the plaintiff's services as her overseer, was a waiver of them as grounds to rescind the contract." I think the Judge decided correctly in rejecting the evidence in relation to the negroes' crops. If it were a part of his duty as overseer under the contract, it should have been assigned as a breach, or some notice as a discount should have been given to enable him to meet the charge. In relation to the fifth ground, I would remark that this Court does not agree with the presiding Judge, that the overseer's Act of 1747, (b) is obsolete. I am not aware of any attempt to enforce it, but I do not think the non user has been long enough or suiBciently established to declare the Act ^obsolete. In all other respects, the opinion of the r-^Aor. Judge is correct, and needs no further illustration. •- Upon the whole, I am unable to discover any error in the charge of the judge or the verdict of the jury which would authorize the interference of this Court ; and the motion is refused. Gantt, Richardson, Earle, and Butler, concurred. A. W. Tliompson, for the motion. Dawkins, contra. The State vs. R. Irby, Adm'r op C. Irby. It is a part of the official duties of a coroner to collect tax executions that are placed in his hands, vrhere the sheritF of the district is the tax collector ; and his securities are liable for his neglect, or any default which he may make, in not collecting them, &c. Before Evans, J., at Marlborough, Fall Term, 1836. The special verdict in this case finds that Charles Irby was one of the securities of George B. Whitfield, formerly coroner of Marlborough dis- trict ; that Joshua David, then sheriff, and also tax collector, for the said district, issued and lodged with the said Whitfield, the coroner, divers tax executions, for which he never accounted ; and presents the question whether the securities of Whitfield are liable for this default. This pre- sents the question, whether the collection of these tax executions was a part of the official duty of the coroner. By the Act of 1803, (see 2 Brev. 289, )(c) the tax collectors are required to place their tax execu- tions against such as " shall make default in payment of their taxes, for collection in the hands of the sheritF, or coroner, when the sheriff is inte- rested, of the districts respectively, and iu the hands of no other person whomsoever." By the Act of 1706, (1 Brev. 186,)((Z) the coroner is directed to serve all writs or processes directed unto hira, against the provost marshal, and also in all causes iu which the marshal is plaintiff. This Act is suffi- ciently comprehensive to authorize the coroner to execute any tax (a) McCracken vs. Hair, 2 Sp. 258. An. lb) 3 Stat. 697 ; see 10 Rich. 131 ; 11 Rich. 172. An. (c) 5 Stat. 456, I 18. An. (rf) 2 Stat. 273, I 11 An. 328 COLUMBIA, FALL TERM, 1836. APP. VOL. I. [*485 execution issued against the sheriff; and the Act of 1803 must have contemplated other cases than such as the sheriff was defendant in. The ^ words are, "to the *coroner, when the sheriff is interested." Now, -I it seems to me, that the sheriff is interested in the tax executions issued by himself; and that the Act of 1803 was intended to enforce the case under consideration. It is therefore considered that the postia be delivered to the plaintiff. GROUND OF APPEAL. Because the c(>llectioD of the tax executious was not the official duty of the coroner, and his securities are not liable for his neglecting to collect them. Curia, per Evans, J. This Court concurs in the opinion of the presiding judge, and the motion is refused. Gantt, Richardson, Butlee, and Earle, JJ., concurred. Graham, for the motion. Withers, Solicitor, contra. See Act of 1839, 11 Stat. 54, § 41. Jesse B. Turner vs. D. Wallace, Administrator. The plaintiflf lived with his father (defendant's intestate) from 1828 up to the time of his death in 1834, in the capacity of an overseer, for which he was to receive a certain portion of the crops annually. It appeared that he never received all of liis share of the cotton crops before the death of defendant's intestate, and that his father acknowledged to one witness that he owed his sou more than the value of a certain slave called Anthony, whom he intended the plaintiff should have, over and above his distributive share of his estate. Defendant's intestate made a will, but for want of proper attestation it was not admitted to probate ; in that he left the boy Anthony to plaintiff: Ileld, that there was a sufficient consideration to support the action of assumpsit, and the verdict of the jury for the plaintiff was sustained, and a new trial refused. Before O'Xeall, J., at Union, Extra Fall Term, 1836. This was an action of assumpsit, to recover the sura of §800, for work done for the intestate, by the plaintiff, who was his son. In 1828, the plaiuliff was about removing; the deceased said he must not go; it would ruin him. lie and his family, from that time to the death of Mr Turner, in 1834, lived on the plantation of the latter. The "'4871 1','"'"''^ attended* to the farm, and all of his father's business. The crops of corn were divided, the cotton crops were sold, and according to the testimony of Mrs. Turner, (the widow of the deceased,) the proceeds were paid to the deceased. The plaintiff got sugar and coflfee, generally at the stores in the neighborhood. Ilis debts were genernlly paid l)y his father during the whole time he lived with him. The decj>ased admitted that he was in debt to the plaintiff, and said that at his death lie would leave him enough to make it up to him. Shortly before his death, not more than four days, he attempted to make a will, *487] TURNER VS. WALLACE. 329 but from not having; it properly attested, it could not be admitted to probate. In that paper he bequeathed to the ))lainti(T', over and above an equal share of his estate, a negro man named Anthony. He told Mr. Page, who drew that paper, that he owed the ])laintiff more than the value of Anthony, and wished therefore to secure him to ])lainti9". Anthony sold at the sale for rather more than $800. The year in which the deceased died, the plaintiff retained out of the cotton crop sold, one- fourth, as his share. The plaintiff administered on his father's estate, but his administration was revoked ; in a few months, he came to an account before the Ordinary, and did not then make his claim. The Court thought the case one entirely of fact, and after overruling a motion for a nonsuit, submitted the case to the jury, stating to them that they must be satisfied, before they could find for the plaintiff, that the defendant was liable to pay him for his services, that he was in arrear to him, on that account, and that at the time of making his will, he admitted that he owed the plaintifl:' as much as the value of Anthony. The jury found for the plaintiff. ^ The defendant appeals on the annexed grounds : For a nonsuit ; 1st. Because there was no legal promise proven, or any consideration upon which the action can be sustained. 2d. Because the evidence did not take the cause out of the statute of limitations, which was pleaded. 3d. Because, IVoni the evidence, it was fairly to be presumed old Mr. Turner intended what be said as gratuitous. For a new trial : 1st. On the same grounds, so far as they are applicable to this motion. 2d. Because, it appeared clearly from the evidence, there was no considera- tion to support a promise, as the plaintiff received full compensation for his services on his father's plantation, and there was uo other consideration attempted to be proved. Because the verdict is contrary to law and evidence. * Curia, per Gantt, J. We see no reason for disturbing the verdict of the jury, and the motion is dismissed. The whole Court concurred. Herndon, for the motion. Dawkins, contra. See Hunter vs. Hunter, Ex''or of Finley, 3 Strob. 321. An. [=^'488 330 COLUMBIA, FALL TERM, 1835. APP. VOL. I. [*488 IN THE COURT OF 3. The State vs. John La Creux. In an indictment for inveigling, &c., Edmond, the slave of L. J. Cross, it was held not necessary to allege tliat L. J. C. vras the owner or emploj-er of the said slave. It is sufficient if the charge is laid, "one negro slave of L. J. C." The material words of the statute under which an indictment is framed must be used. It is not necessary to allege in an indictment by what means or how the prisoner aided the slave in departing from the service of his master. Before Richardson, J., Orangeburgh, October Term, 1835. This was an indictment for inveigling, &c., the slave of L. J. Cross, named Edmond, and containing an account for aiding Edmond to run away. Several objections were made to the form of the indictment, which were overruled by the Court. J. Whitemore and Taylor proved a pretty clear case of inveigling, and the jury found a verdict of guilty, from which the defendant appeals, and moves in arrest of judgment, upon the grounds set forth in the notice of appeal. The motion for a new trial depends upon the precise evi- deuce, and that in arrest, upon the form of the indictment, and require no further report of the case. GROCXDS OP APPEAL. 1. Because the indictment does not allege whether the said Leonard J. Cross was the owner or employer of the said slave Edmond. 2. Because the first count in the indictment alleges that the prisoner in- veigled, stole, and carried away the said slave, which is repugnant and void. 3. Because in the said first count, the prisoner is indicted partly under the first and partly under the second clause of A. A. 17.54. (a) *489l *^" ^^^^"s^' i" the second count, it is not alleged by what means J and how the prisoner aided the said nefjro in running away. f). Because the two counts state distinct and different offences, which make the indictment repugnant and void. And for a new trial. 1. Because there was no evidence at all to support the second count. 2. Because the evidence offered was insufficient to support the first count. 3. Because the verdict was, in general, contrary to evidence and law. * Curia, per O'Neall, J. The prisoner has moved, upon various grounds, to arrest the judgment ; the first of which is, that the indict- ment does not allege that the said Leonard J. Cross was the owner or employer of the said slave. The charge is laid " one negro slave of Leonard J. Cross." This is sufficient. For the statute does not make it necessary that the word owner and employer should be used in the indictment, in order to bring the offender within the statutory definitions, which is to " inveigle, steal, or carry away any slave, so that the owner or cnjploycr of the said slave shall be deprived of the use and benefit of the siiid slave." It is enough if such w«n-ds are used as show from whose possession the slave was inveigled, stolen, or carried away, and that this (a) 7 Stat. 426. An. *489] STATE VS. LA CREUX. 331 person, who is in law regarded, for tlic purposes of a case like the present, both as owner and employer, was deprived of the use and benefit of the said slave. TljdC second gi'ound is, that the charge in the first count of the indict- ment, that the prisoner inveigled, stole, and carried away the said slave, is repugnant and void. This supposes that at least two distinct offences are charged by the words used ; but this is not necessarily the case. For to inveigle, so that the owner or employer be deprived of the use and benefit of a slave, is to steal and carry away ; and although there may be cases of a stealing and carrying away in which there is no invei- gling, this does not render a charge in which all are contained, repugnant and void. It only superadds, and the circumstances which must be proved to make out the offence is laid. The indictment is in the material words of the Act of the Legislature, and this is the well-established rule by which such an indictment is to be framed. (Stark. Crim. Plead. 249.) It conforms, in using all the words of the Act, although they import more offences than one, to the precedent under 7 G. 2, c. 21 ; Stark. Crim. Plead. 244 ; and also under the 45 G. 3, c. 89, for forging a bank note, 3 C. C. P. 1049. The third ground is, because the prisoner is indicted partly under the first, and partly under the second clause of the Act. This supposes that the words "so that the owner or employer be deprived of the use and benefit of the said slave," applies exclusively to the second clause, and not to the first. This is not so, they apply to both, as will be seen by referring to Covington's case, 2 Bail. 569. *Fourth. It was not necessary to allege by what means or r^, iQQ how the prisoner aided the negro in running away and departing L from the service of his master. The fact is charged in the words of the Act : and it would be just as reasonable to ask that the means and man- ner of inveigling should be stated. Fifth, If the counts are for distinct and sepai'ate offences, it would be no ground on which to arrest the judgment, (a) The prisoner might have asked and compelled the prosecutors to elect on which the case should proceed. Not liaving done so, the conviction can be applied to either, and on either, enough appears to justify the judgment of death against the prisoner. The facts proved, however, apply to the first count, and to that, the Court is bound to refer the verdict. This is also an answer to the first ground for a new trial. For it is wholly immaterial whether there was or was not any evidence on the second count. On the second and third grounds for a new trial, it is sufficient to remark, that the evidence of the prisoner's guilt here, is precisely the same as in Covington's case, and after the labored examination which it received from my brother Johnson, it cannot be necessary to say any thing more upon the subject. Tiie motions in arrest of judgment and for a new trial are dismissed. Johnson and Harper, JJ., concurred. Bellenger, for the motion. Elmore, Solicitor, contra. (a) 3 Stxat. 514, 51G ; 2 Bail. 72. See Supra, 472, State va. Bkase ; State vs. McCoy, 2 Sp. 714; State vs. Posey, 7 Rich. 4y7; State vs, Anderson, 1 Strob, 400; 3 Rich. 172. An. The defendant was hanged. 332 COLUMBIA, SPRING TERM, 1835. APP. VOL. I. [*490 B THE COUPJ OF 3. Thomas Evans r6!. Herbeet Hinds. The docket of the Court in the sum. pro. jurisdiction, with this entry, "Alex. Gre Robert J. Gregg. ) Gee, Attorney. Ent. \ Decree, ... $24 00 4 April, 1822. ) Attorney, . . 9 46 Clerk, ... 1 .-iO Sheriff, ... 1 75 Levy on one hundred acres of land adjoining lands of R. Howard. Offered the land for sale in Ortol)er, and no bid to be had: (ith April, 1824, sold the above land, and knocked off to I<;ily Gasrjne, at ten dollars, and same paid ; sheriff's deed to (ias.jue, Gth April, 1S24. He conveyed to plaintiff', 22d September, 1830. Defendant also claimed under sheriff's sale. He introduced a record and judg- ment of Jiirhard Howard \s. R. J. Greqq, on a bond, dated Aug. 17, 1822, for $100(1, judgirient 31st Oct., 1825, execution same day; sale 3d Jan., 182(), to Richard Howard ; sheriff's deed same day ; recorded, 27th January, 1829. Several olyections were made to the plaintiff's recovery, besides the want of proof as to the existence and loss of the judgment and execution, and the insuffi- ciency of the evidence by which they were supplied. It was alleged the execution of Alex. Grrgg vs. R. J. Gregg, was satisfied. Tlio proof was on that point as follows : Wm. (iregg deposed that Alex, (iregg told him before the sale of the land, that Tart, tlie sheriff, had paid him up; and afterwards, in the sheriff's offu-e, Howard inquired if he had got his money. He said yes, I have got it ; and Tart said lie had paid it. Howard said, I am glad of it, for now my mortgage IS good. On tlio same point, R. J. Gregg swore that it was not paid off. There ^-192] EVANS VS. HINDS. 333 was certcainly no proof of *the payment of costs, for wliicli the land might r^,qcf have been sold, as well as for the debt itself. The ground assumed was, '■ that the sheriff himself had paid it off with his own funds, and therefore the execution was inoperative ; and it is well settled that the sheriff cannot in general keep open an execution which he has himself paid off; against the defemlant he could not enforce it. But if the defendant make no objection, can third persons ? It was objected further, that the execution of Greyg vs. Gre>/g, was out of date, and therefore inoperative, and the levy was void. It was lodged 4tli April, 1S22. The sale was made Gth April, 1824. The levy was without date ; if made within the year and day which the execution had to run, then the authority to sell was complete, even after the lapse of that period, without renewal. There was no proof on the subject. I submitted to the jury that in the absence of proof, the general princii^al that public officers will be presumed to have done their duty, until the contrary appear, might aid the plaintiff''s case. That it was the duty of the sheriff" to levy the execution or return it within the year and day ; if levied, it was not necessary to return it, and therefore as lie afterwards proceeded to sell, they might jiresunie that the levy was made within the lawful time. Another objection to the plaintiff's recovery was, that his deed from the sheriff had never been recorded. On this point it was proved by Elly Gasque, that Howard knew of his having purchased the land before he bought ; that he paid taxes for the land, and had a tenant on it. I submitted to the jury whether Howard had ex- plicit notice of Gasque's deed, and instructed them if he had, that the deed was valid without recording. On the question of fraud in the sale to Gasque, which was much relied on, the evidence was fairly submitted to the jury. Many of the circumstances accom- panying the transaction were suspicious. The land was worth six or seven hun- dred dollars, and sold for ten dollars. In the other transactions about the same time, concerning the negroes of Gregg, and in which the sheriff' and Gasque were active agents, there can be no doubt that there was fraud. Yet, both Gasque and Gregg swore that there was no understanding or agreement ; that Gasque paid his own money for the land, which has never been refunded to him by any one, and after paid, sold the laud to pay his own debts. I refer the Court to my notes on this point, and to an abstract of the entries in the sheriff's books. The jury found for the plaintiff, and the defendant appeals, on the grounds annexed : 1st. Because no judgment of the Court was given in evidence, or produced, or shown to have existed, which would authorize a sale of the land by Tart, sheriff, to Elly Gasque. *2d. Because it did not appear that the execution by which the land is r.^ , „,, pretended to have been sold, was of active force at the time of the levy ^ or the sale. It was lodged 4th April, 1822, and the land sold Gth April, 1824. The presumption is, it was not offeree, and the Judge should have so charged. 3d. Because the cause of Alexander Gregg vs. lluljcrt J. Gregg, by virtue of which the sale of the land was attempted, was paid by sheriff Tart, to the plaiutiU', long before the sale. 4th. Because the deed made by sheriff Tart, to Elly Gasque, not being recorded, as the law requires, was absolutely null and void as to creditors, of whom Mr. lloward, under whom the defendant claims, was one. fjth. Because the deed from Tart to Gasque, not being recorded, as required by law, was void as to subsequent purchasers, of whom lloward under whom defendant claims, was one, and no notice to lloward before his purchase was proved. Gth. Because the sale by sheriff Tart, and purchase by Gasque, was for the benefit of Tart, the sheriff, and Kobert J. Gregg the defendant in execution, and therefore fraudulent and void, and his Honor should have so charged the jury. 7th. Because the verdict of the jury, was contrary to law and evidence. 33-i COLUMBIA, FALL TERM, 1836. APP. YOL. L [*493 Appeal determined at Columbia, Fall Term, 1835. Curia, per O'Neall, J. The first ground is fatal to the plaintiff's action. For until the judgment was produced, or its existence and loss proved, the plaintiff could take nothing from his purchase at sheriff's sale. The evidence clearly shows that no judgment in fact ever existed, and hence it follows that the execution and sale under it, were alike un- authorized and wrongful. The case of 3IcCaU vs. jBoadvrighf, (2 Hill, 488,) cannot be distinguished from this, and its authority supercedes the necessity of argument or investigation. The motion for nonsuit is granted. Johnson and Harper, JJ., concurred. Graham, for the motion. Clones, contra. See 5 Rich. 372 ; 10 Rich. 395. An. IN THE COURT OF 10.-1836. *494] * Daniel D. Free ads. The State. To discredit a witness, it is incompetent to oflfer testimony to prove that the witness has been guilty of stealing. Where incompetent testimony has been received, and no objection is made at the time of its reception, counsel have the right to comment upon it before the jury. Before Gantt, J., at — , Fall Term, 1836. The defendant was convicted on a charge of trading with a slave. The trading consisted in having sold to a slave three yards of cotton shirting, at twenty cents per yard. Matthew Petigru was introduced as a witness to prove the trading. To show that I'etigru was not entitled to credit, testimony was offered, proving that he had been guilty of taking two great coats in Columbia. In the cross examination of Petigru by defen- dant's counsel, he was asked questions respecting the cloaks, for the pur- pose of discrediting his testimony. The evidence was conclusive that Petigru did take the cloaks. The first ground taken for a new trial is correctly stated. I did restrain the counsel within the specified limits, and 1 refused to permit them to draw conclusions from the evidence of Pctigru's guilt. I may liavc narrowed down the rule to the injury of the defendant. The extent to which counsel may go, appears to be clearly settled. If tliu jury should be permitted to draw conclusions for themselves after !i full development df the real character of the witness, whose testimony is impeached, then the counsel were restricted within limits too con lined. *494] FREE ads. STATE. 335 GROUNDS OF APPEAL. 1. Because his Honor, the presiding Judge, erred in refusing to allow the defendant's counsel in argument to impeach the credit of the witness Petigru, by adverting to and relying upon the testimony brought out under the decision of his Honor, that the witness Petigru had stolen two cloaks and a jug. 2. Because his Honor erred in charging the jury that the testimony, that the witness Petigru had stolen two cloaks and a jug, would not impeach his credit, and that they were bound to regard him free from the guilt of larceny. 3. Because without the testimony of Petigru, there was not sufficient credible testimony to warrant the jury in finding the defendant guilty. Curia, per Butler, J. The testimony introduced to show that Peti- gru had been guilty of having taken two coats, with a view to discredit him, was clearly incompetent ; and there is little doubt that the presiding ♦Judge would have rejected it, if an objection had been made to r^.ar, its competency. I assume, as it is inferable from the facts re- L ^"^"^ ported — that uo ojection was made to the introduction of the testimony. The question is, how was it to be regarded after it was permitted to go to the jury. Incompetent testimony is frequently received by consent ; indeed parties are, sometimes, sworn themselves in their own case. When such testimony is so received, it is usually regarded as competent testi- mony is — to be believed or not believed, as the jury may think proper. The effect and influence of testimony must depend upon the minds of those who are to be governed by it. What weight will be given to testi- mony is a question for the jury, and not for the Judge. Xo one mind can prescribe limits to the belief of another, nor say what influence evi- dence is to have in producing belief. The Judge who tried this case says, " I did restrain counsel within the specified limits, (I suppose the limits specified in the grounds of appeal,) and I refused to permit them to draw conclusions from the evidence of Petigru 's guilt." This, the Court is of opinion, the Judge could not do. After the evidence was fairly before the jury, counsel had a right to comment on it, as on any other evidence. The motion for a new trial is granted. The whole Court concurred. Gregg, for the motion. Player, Solicitor, contra. See Supra, 458. An. 336 COLUMBIA, SPRING TERM, 1837. APP. VOL. I. [*495 IN THE COURT OF 6 LAW JUDGES. The State ex rel. John R. Donaldson vs. Meekin Townsend. It is no ground to arrest the election of a Sheriff, and to eject him from office, because the election at one of the polls in the district was managed by one manager, assisted by another appointed by the Senator, under the Act of 1828, p. 39, without any objection being made to the appointment on the part of the representatives. Before Richardson, J., at Marlborougli, April Term, 1837. Motion for an information in the nature of a quo tvarranfo, requiring Meekin Townsend to show by what authority he holds the office of Sheriff. An election was held for Sheriff of Marlborough, the second Monday of January last ; at Brownsville, one of the places of election, the poll was *iQfi1 *™^"'^g^d ^"cl conducted by one manager, originally appointed, •^ and one appointed by the Senator alone, the other representative being out of the district. By including the poll at Brownsville, Towns- end was elected ; exclude the poll and he was not elected. There are in Marlborough six places of election, and three managers at each place. On the Thursday after the election, twelve of the managers met at the Court House, counted the votes, including the votes taken at Browns- ville, declared Meekin Townsend duly elected, and gave him a certificate. Afterwards, on the same day, and before the hour of four o'clock, P. M,, John R. Donaldson, one of the candidates, protested against the election in writing, on the ground that the election at Brownsville, being managed and conducted by only one manager, was illegal and should not have been counted Seven of the twelve managers who counted the votes and declared and certified the election, certified that they believe it was illegal and should be set aside. Townsend sent his certificate of election to the Governor and was commissioned Sheriff. The holding of the election by only one manager was a mere irregularity, of which the managers were the proper judges. They counted the Brownsville poll, and their decision is conclu- sive. The ol)jection to the certificate of the managers was, that the poll at Brownsville should have been holden ; it was illegally managed, there- forevoid. But I considered it, at most, an irregularity, within the juris- diction of the assembled managers, and their decision conclusive. The election had been fairly conducted at the place and in the manner directed by the Legislature. The appointment of one manager by the Senator, unol)jccted to by the Representative, was competent. The object of the power given to the Senator and Representative is remedial of a frequent inconvcMieiicc (of the al)sencc of one or more of the original managers,) and to -nsure a fair election. This object is to be chiefly regarded. I did not jjcrceive, tliat, even had the poll been holden by one manager alone, that it would have been utterly void, (though irregular,) so as to place the respondent in the situation of an usurper of office", and authorize *496] STATE Ex rel. Donaldson vs. townsend. 337 this Court to arrest his commission. Such irregular poll would have been the consideration of the managers, not for this Court. GROUNDS OF APPEAL, Because, from the facts of the case, information in the nature of a quo toar- ranto ought to have been ordered. Curia, per Richardson, J. The election of sheriff was given to the people by the Act of 1808, 2 Brev. " Sheriff," sec. 71. (a) To be managed as the election of Senator and Representatives. The managers of the polls are to declare the result of the election, and certify it. Upon their certificate, the .Governor gives commission to the successful candi- date, and he goes into office. Under all the evidence of ofifice which I *have referred to, Mr. Townsend presents himself as the rightful r^\(\^ incumbent. Is he to be ousted ? It has been decided, in the ^ case of the State vs. DeLesseline, (2 iMcC. 53,) that it takes a majority of the managers of all the polls to count the votes and declare the election. And it is now urged, that no less than a majority of the managers for each poll are competent to hold it. But we know that the House of Representatives have upheld as a member, the candidate who received a majority of the votes, including a poll so holden by one or two or more managers. Such a legislative decision is imposing authority, when we consider that Sheriff's elections are ordered to be holden and managed as elections for the Legislature. To this authority we may add, that a dis- tinguished judge has said, in the case of the State vs. Huggins (State Rep. 139,) that one manager may hold the election. And I should therefore hesitate to say, there being no other objection, that in such case the election would be utterly void. This is the judicial province. We may arrest the certificate and commission, if they infract the law or the constitution of the State. The judges are to see that no usurper of office shall keep it ; the rest is within the legal jurisdiction of the managers and the Governor. But there is no necessity for deciding absolutely upon that point. By the Act of 1828, p. 39, the delegation of each dis- trict is authorized to substitute managers of polls, in cases of vacancy. (6) And in the instance before us, the Senator of the district, in the absence of the single Representative, filled up the vacancy of one of the original managers ; and this appointment is not objected to by the Representative. In such a case, when the proper object is merely to ascertain the true vote and appointment by the people of their officer, and that purpose has been answered, as we are assured by the certificate of the managers, I can scarcely call it an irregularity, liut assuredly this manner of holding the poll to receive the votes,' has infracted no plain rule of law or the principles of the constitution, to justify this Court to arrest the election, and eject the incumbent from his office. The motion is therefore dismissed. Butler, Earle, and Evans, JJ., concurred. Graham, for the motion, Mr. , contra. See Cheves, 267; 2 Rich., 6. An. (a) 5 Stat,, 569, An. (6) 6 Stat., 94, § 2. An. YoL. 1—23 338 COLUMBIA, FALL TERM, 1835. APP. VOL. I. [*498 IN THE COURT OF 3. *498] *Alex. Hamilton vs. James J. Langley, The Same vs. George C. Mayson. In an action on the case for slander in charging the pLaintiff with perjury, the colloquium stated in the declaration set forth the trial of an indictment for a riot ; the record produced on tlie trial was for a riot and assault ; held, to be an imma- terial variance. So, a slight variance in the names of the defendants in the indictment, as set out in the declaration and contained in the record, may be cured by parol proof of the identity of the persons. Before Earle, J., at Edgefield, Fall Terra, 1835. These were both actions of slander, for similar words, spoken by both defendants of the plaintiff, charging hira with having sworn a lie on the trial of an indictment. There was a verdict in the first case for the plain- tiff for one dollar, and in the other for one hundred dollars, both being submitted at the same time, under the same argument and charge, and on the same evidence. _ Both parties appeal, and as the objections of the defendant apply to the pleading on a motion for a nonsuit, they will be first disposed of 'JMie colloquium in the declaration set forth the trial of an indictment. The Stale vs. John H. Robinson, Irvine Huchi- xon. George G. Mayson and F/nlip Ogilsbee, for riot. The indictment jtrodnced on the trial, with which the minutes of the former trial corresponded, was Tlie Stale vs. John H. Bobinson, Irvine Huchison, Philip Gglibee and Gonway Maijson, riot and assault. It was proved that George C. Mayson, and Conway Mayson, and Philip Ogilsbee and Philip Ogilbee, are the same identical persons ; but it was ob- jected, on the motion for nonsuit, that the variance was fatal, and could not be supplied by parol. In the first place I came to the conclusion, after some deliberation, that the variance was immaterial. On this sub- ject the cases are numerous, and not free from contradiction, and without undertaking to refer to them or collect them, I was of opinion that as an assaul,t was an usual constituent ingredient of riot, and the greater neces- sarily includes the less, it was still an indictment for riot, although it era- braced a count f(n- an assault. In fact, the oath of the plaintiff which was alleged to be false, applied strictly to the charge of riot, and the defend- ants were convicted of riot. The variance in the names was also imma- t<'rial, and if otherwise, it was co!n])etent to cure the variance by proof u^i the identity of the p(u-sons. The old strictness on this subject is much abated, and since the case of 7Jn',s/o)i & Wright, the Courts seem in Eng- land to be always endeavoring to tic up the generality of the proposi- tions {a) But the distinction between that and all similar cases and those under consideration, is that in the former the i)aper or record set out con- (a) 2 Doug., OG.'). An. *499] HAMILTON VS. LANGLET. 339 stitutes the *plaintiff's cause of action, the gravamen of his case, r^Anq the foundation of his injury. Here, on the contrary, it is mere ■- inducement to the statement of the injury, the mere occasion in reference to which the slander was uttered, and the same strictness is not required. Indeed, I doubt the necessity of producing tlie record at all, and 1 think on principle, and that authority may be found, that the occasion of the taking of the oath alleged to be false, the trial, and all the colloquium, may be proved by parol. I overruled the other objections to the declaration contained in the defendant's grounds. The fact was enough, that it was an indictment for riot, for that was sufficient to show that the Court had jurisdiction of the cases, and of course the power to administer the oath. In an indict- ment for perjury, the materiality of the oath is essential, but in a civil action it cannot be.(o) The presumption is, that what a witness swears is material, and if the defendant expects to avoid a recovery on that ground, he must show that the particular oath charged to be false, was on an immaterial point. How far it w^ould avail him, I would not say. The jury found, as already stated, verdicts for plaintiff, and the plaintiff appeals on several grounds. As to the first, it is sufficient to say that there was no olijection made to the defendant's going into the proof of the facts and circumstances on which they relied to create suspicion ; at least I remember no formal objection, and I have taken note of none. Second, I considered it competent for the defendant to impeach the oath of the plaintiff on any point he chose. Suppose he had not specified any point or particular at the time of the speaking, surely he might on trial show it false in any particular; and if he does specify, I do not perceive he should be bound by it as by a technical rule of pleading. I need not remark further on the others. It is difficult to conceive how the juries could have come to results so different on the same evidence. The verdict for one dollar was surely too small, with the other there is no reason to be dissatisfied. Defendant's grounds for a nonstdt. 1. Because there was a material and fatal variance between the record offered in evidence and that described in the declaration. 2. Because there was no allegation in the declaration that the Court in which the indictment was tried, had jurisdiction of the case or had power to administer an oath. 3. Because the declaration did not allege that the oath of the plaintiff had been taken on a point material to the issue. Plaintijfs grounds for a neio tried. 1. Because the Judge permitted evidence of the justification in fact under the "plea of the general issue," and on points in which the plaintiff's testimony had not been impeached hy defendants, when speaking the slanderous words. *2. Because his Honor charged that the proof of defendants militating r*r()Q against the oath of plaintiff, should necessarily reduce the damages. ' ^ 3. The verdicts were too small, and were inconsistent. Curia, per O'Xeall, J. Upon the motion for a nonsuit, this Court coucurs in opinion with JNIr. Justice Earle, and principally for the rea- (6) See 2 McM., 118. An. 340 COLUMBIA, FALL TERM, 1835. APP. VOL. L [*500 sons whicli he has given. The rule stated by Starkie in his treatise on Evidence, (4th part, page 1603,) that where a fact is simply alleged without vouching any instrument, and the instrument is used as mere evidence, a variance will not be fatal if the substance of the allegation be proved, covers the point made by the defendant on the motion for a nonsuit, for a variance between the record set out and that offered in proof. The record was, it is true, particularly alleged, but still it was a mere allegation of the record, without vouching it, and as in substance it was made out, it was sufficient. The Court of General Sessions is a Court of general jurisdiction, (a) and it was unnecessary to allege that it had jurisdiction of the indictment. So, too, it was unnecessary to state that the oath of the plaintiff was taken on a point material to the issue. As soon as it appeared from the declaration that the defendant's words applied to a legal swearing on the part of the plaintiff, it became in legal contemplation an imputation of perjury. As to the first and second grounds of a new trial, the Judge's report explains away the first, and on the second we concur with him. Upon the third ground, I would remark that a question of damages is particularly for the jury, and it must be a manifest case ot error upon which we would undertake to interfere. The opinion of the presiding Judge, that the damages found were too small, cannot help the plaintiff; for notwith- standing we are disposed to give effect to his opinion in all cases where it can be done, yet this is one of those cases in which he had not the means of saying that the verdict was against evidence. For the damages are more discretionary than otherwise with the jury. The motions are dismissed. Johnson and Harper, JJ., concurred. Wardlaw and Wa7^dlaw, plaintiff's attorneys. Griffin, defendant's attorney. («) 2 McMuL, 116. An. See 2 Sp., 592; 2 Rich., 580. An. *501] STATE, Ex reJ. golem an vs. maxcy et al. 341 IN THE COURT OF ERRORS. *TiiE State, ex 7'elaiiovp. I. H. Coleman vs. Hart Maxcy, rt-PyQ\ E. J. Arthur et al. ^ The Act of 1836, in regard to vagrants, is held to be constitutional. The powers conferred iipon a Court of Justices by the Act of 1830, in regard to vagrants, is no violation of tliose parts of tlie Constitution which provide "that no man shall be deprived of his life, liberty or projaerty, but by the judgment of his peers, or by the law of the land ;" and that " the trial by jury, as here- tofore used in this State, shall be forever inviolably preserved." A proceeding for vagrancy under the Act of 1836, is not barred by a prosecution in the Court of Sessions for gaming. Before Earle, J., Columbia, at Chambers, 23d Nov., 1837. The relator, under the Act of December, 1836, had been preceded against as a vagrant, on the following charge :(a) " That the said I. H. Coleman has, within the last six months, within ten miles of the South Carolina College, kept or used a house as a house for gaming ; and that the said I. H. Coleman, within the last six months, within ten miles of the South Carolina College, has aided or assisted in keeping or using a house as a house for gaming ; and that the said I. H. Coleman has, within the last six months, kept a faro bank, or other device for gaming, within ten miles of the South Carolina College." On the hearing before the justices and freeholders, on the 9th inst., he was convicted, and adjudged to be a vagrant. The record of the con- viction states the acts charged in the same form. This proceeding was instituted on a requisition, in writing, signed thus : " John D. Edwards, Solicitor, by R. W. Singleton, acting Solicitor." A motion was made before rae, for a prohibition to the Court of Jus- tices, kc, to restrain them from proceeding to enforce their sentence, on several grounds; mainly, as to the sufficiency of the information and con- viction in point of form ; the bar created by the pending of a prosecution for gaming, in the Court of Sessions ; the jurisdiction of the Court, and the constitutionality of the Act of 1836. The several grounds of oI)jec- tion were deemed unavailing ; and on full consideration, the motion for a prohibition was refused. The relator giving notice of his intention to appeal, the Court was ordered to forbear proceeding, until the hearing of the appeal. The appeal was heard in the Court of Errors, at Columbia, Dec, 183T. Curia, per Earle, J. In the argument here, several questions have been raised and discussed, on the regularity of the proceedings of the Court, and on the sufficiency of the intbrmation, warrant, and conviction, in point of form. These points I do not regard as properly presented for consideration, on a motion for prohibition. The proceedings before («) 6 Stat., 554. An. 342 COLUMBIA, DECEMBER, 1S37. AFP. VOL. J. [*501 the Justices are required to be returned to the Circuit Court, to be filed away of record there. The conviction bein^ summary before an inferior ^,„g-, and limited jurisdiction, *a motion will be in order, to quash it for ■^ any sufficient cause apparent on the face of the proceedings, either for irregularity or insufficiency. I do not perceive that there is any objection to either, that ought to prevail. If the same technical precision and accuracy were required in the proceedings before Justices, that are necessary in indictments, the administration of criminal justice would be rendered almost impracticable. The principal ground of objection lies at the root of the whole proceeding, and assumes that the Act of the Legislature of 1836, nnder which it has arisen, is in violation of those parts of the Constitution wliich provide "that no man shall be deprived of his life, lil)erty or property, but by the judgment of his peers, or by the law of the land," and that "the trial by jury, as heretofore used in this State, shall be forever inviolably preserved." This presents a very grave question, and the discussion of it, if equal to its importance, might occupy a great deal of time, and would afl'ord employment for the greatest ability. The 2d sect of the 9th article of our State Constitution, part of which I have quoted, is drawn, as every one knows, from Magna Charta, adopted under King John, and subsequently confirmed by other princes, and lastly by Edward II. ('0 ^^ the construction of the words " law of tlie land," it seems to be held in England, that the expression embraces the common law and the statute law down to the end of Edward 2d's reign. By analogy, it has been held in this State, that the same terms used in our Constitution, must embrace the common law as then adopted liere, and the statutes of (Jreat Britain, and of this iState, made of force, and in oiteration at that time. So the Gth sect, relative to the trial by jury, as heretofore used, taken in connection with the 2d, which secures trial by peers, would seem to imply that the institution of trial by jury was to be preserved and enjoyed according to the law of the land then known and in operation, I tliink it may well be questioned, whether the 6th article was intended to impose any further restriction on the Legisla- ture, or to secure any larger right to the citizen, than the 2d section intended to secure. It cannot be supposed that inconsistent provisions on tlie same subject would be inserted in an instrument so carefully drawn and so fully considered. The 2d section had already secured life, liberty and property, except by the judgment of peers, or by the law of the land. When the 6tli section (k'clares that the trial by jury, as heretofore used, shall be pre- Kcrved, I suppose it meant otdy that it should continue to be used except where it was superceded or dispensed with by the "law of the land," under the former section. In the construction of these words, it has iK'cn lieM, both in England and here, that they do not mean merely the coninif)n law and statutes, but that they recognize and embrace the pro- ceedings of the various courts of ascertained jurisdiction, known to the law, "as the several mutters determinable, summarily, by one or more Oi) :i T)<-sH. Eq., 47R; 2 Bail., f,77; 1 Bay., 391; 1 Bur., 471; 2 Sn., 767; 5 Rich., J 07, 1J5; 10 Rich., 4 to. A,i. *502] STATE, Ex rel. coleman vs. maxcy et al. 343 justices of the peace," says *Dr. Sullivan, (2 Lect., 262;) and r*-r)o Waties' Justice, iu Zylstra's case,(a) enumeratiuf^ the exceptions L to the trial per jxires, includes "the courts of justices of the peace, because they are sanctioned by long use, and it may be said, by a po])ular adoption of them," and for other considerations. A freeman, therefore, is not to be deprived of his life, liberty or property, but by the judgment of his peers, or by the law of the land ; that is to say, by the judgment of some competent judicial tribunal, known to the law, and proceeding upon some rule of action prescribed by the Legislature, according to the accustomed forms, or as Lord Coke has it "by due process of law." I cannot but think it would be too rigid a construction of the 6th sec- tion, concerning the trial by jury, to say that the Legislature can, in no case, in all time to come, confer upon such courts as have been referred to, as exceptions to trial ^jer ^mres, any jurisdiction, in matters civil or crim- inal, which they had not at the adoption of the Constitution. I think it more liberal and sensible to construe the 6th in connection with the 21 section. That fundamental instrument should not be construed like a deed conveying an estate or granting a power. It is a political regula- tion, and should receive such interpretation as to secure the peace and good order of society, so far as is compatible with the liberty of the citizen. We are led to inquire how stood the subject of vagrancy, at that time. Idle and disorderly persons, vagrants, are terms often occurring in the old statutes. They have been from time immemorial, in England, subject to the summary jurisdiction of justices of the peace. (Com. Dig. Justices ; Burn's Justice, Vagrants.) And by the Stat. 11 Geo. 2, ch. 5, no less than seventeen different classes or descriptions of persons are declared to be vagrants, who may be apprehended, tried iu a summary manner, and on conviction, be imprisoned and whipped. Our Act of 1787, (6) much less rigorous in its provisions, appears, nev- ertheless, to have been modelled on that of George II. It enumerates the various descriptions of persons who shall be deemed vagrants ; and it is obvious that its penalties are directed against all those idle and disorderly persons, who either have no visible means of living, or who pursue such means of gaiinng a livelihood as are dishonest, or subversive of the peace and good order of society. Among these are " al! who acquire a liveli- hood by gambling or horse-racing, without any other visible means. " The mode of proceeding is prescribed ; and on conviction, the defendant is required to give security for good behaviour for twelve months, and on failure may be committed A fair copy of the proceedings is required to be returned to the next Court, to be filed of record ; and if the Court shall not think fit to discharge the offender, he may be sold, or whipped, or put to hard labor. The Act of 1836, under which this conviction has been made, enacts that if any person shall, within ten miles of the South Carolina College, keep or use any house for gaming, or keep or use any faro bank, or other *device for gaming, he shall be proceeded against as a vagrant, r,-^-Ai and on conviction, shall be deemed such, and be required to give ^ security for good behaviour, and that he will not offend against the Act («) 1 Bay., 389. An. (Ij) 5 Stat., 41. An. 344 COLUMBIA, DECEMBER, 1837. APP. VOL. I. [*504 for three years ; and in defanlt, to be proceeded against as in other eases of vagrancy. And it is urged that the Legislature cannot, at pleasure, inake°vagrant?, by Act, of any class of persons, that whim or caprice may prompt ; and this may be conceded without affecting the argument. Tliough, if vagrancy be in itself an offence, it would not be easy to pre- scribe a limit "to the power of the Legislature, to subject any class of the vicious, idle and dangerous to its penalties. But in the Act of 1836, they have not departed from the enumerated classes in the Act of 1787, viz.: — all those who gain their liveliliood by gambling or horse-racing, having no other means. In the Act of 1836, a person is subjected to the penalties of the former Act, who gains his living, in part, by keeping a gambling house or faro bank in the vicinity of the College, without inquiry as to his other means of living. And it would seem, that the danger to the institution here, or the prejudice to the community at large, is just the same, whether the keeper of a gambling house or faro bank has other means of gaining a livelihood, or not, admitting that to be a vicious and dangerous one, within the scope of the Act of 1787. It is objected that it is beyond the power of the Legislature to consti- tute this new class of vagrants, and authorize them to be proceeded against as such, under the provisions of the Act of 1787, because it de- ])rives a man of his liberty without a trial by his peers ; because the trial by jury is not preserved as heretofore used. I consider the Acts against vagrants, as they are embraced in those of 1787 and 1836, as highly ben- clicial ; and if carefully and rigidly enforced, that they would prevent much of the crime that is peri)etrated in the country. If, however, they are violations of the constitutional rights of the citizen, I should be very unwilling to lend the aid of this court to enforce them. "The maxim then, is," says Dr. Sullivan, "that no man shall be taken and committed to prison, hnt per judicium parium, vel per legem terras.''^ 2 vol. Lect. 265. According to the interpretation which, I have endeavored to show, lias been put ni)on those words, even in connection with the 6th Section of the 9th Article, concerning trial by jury as heretofore used, can it be said, that a person charged under either Act, and carried before the court of justices for vagrancy, is taken and imprisoned otherwise than by the law of ihe land, or due process of law ? I cannot come to that conclu- sion ; the court which tries him is known to be the law of the land ; has l)een, from time immemorial, part of the law of tiie land; and its whole proceedings are l)y due i)r(.)cess of law ascertained and established. Here we naturally come to incpiire, what are the true ends and purposes *5051 ^^ ^^^ ^^^^^ against vagrants ? I think they have been imperfectly* ^ understood, at least so far as relates to the jurisdiction and pro- ceedings of the magistrates. I tliink it is not the main purpose of those Acts, to |)roceed Ijy way of ])unishing for an offence; for vagrancy in il.sclf, can luirdly l)e deemed a distinct offence. The Acts seem rather intended to afford some adequate security to the public, against the flanger to be appreliended from the several classes of persons enumerated, all of whom, from their want of honest employment, or from their vicious jnirsuits, may well l)e considered as dangerous to society. The proceeding at first, tlierefore, is merely infpiisitorial, to ascertain the means of living, and the mode of life, of Ihi; suspected person ; and if it be found that he lias no vi.sil^ie means of living, or pursues a vicious aud dishonest course *505] STATE, Ex rd. coleman vs. maxct et al. 3-1:5 of life, tlien that the orderly and virtuous portion of the community shall have some security against the depredations to be apprehended from such a character. This security is atforded by a recognizance for good behaviour, for twelve months, under the Act of 1787, and for three years, under the Act of 1830 ; or by confiueraent until the next Court, to which, also, the proceedings are required to be returned. The office of the justices here terminates. In case the bond is given for good beliaviour, the object to be attained is accomplished ; the security against ai)prehended miscliief is afforded. If it be not given, the suspected jterson is turned over to the Court of Sessions, That Court, on looking into the proceedings and evidence, may discharge, if they are insufficient. Under the Act of 183G, the grave question woukl arise, whether, if the Court should not see fit to discharge, it would be authorized to sell the services of the persons charged, or to order him to be whipped, or to be put to hard labor. These are the alternatives under the Act of 1787 ; and I think they have been generally practised on, although the same constitutional scruples have been often urged. Yet, it would seem not i^ be a violation of the right of trial by jury as heretofore used, for the Court, as before remarked, was a part of the law of the land, and the trial there, was always without jury. The question, whether, under the Act of 1836, the Court could l)roceed to act on the conviction of the justices, without further trial, does not necessarily arise here, and no opinion will be expressed by tlie Court. It is a question which the Circuit Court must first decide for itself. Supposing, however, under either Act, that the Court should feel itself fettered by the constitutional objection, or should not be disposed to adopt the rigorous alternatives provided in case the defendant has not given the security, there is another course wh'ch may be pursued by the Court, in virtue of its general powers of criminal jurisdiction. The Court being in possession of all the evidence taken before tiie justices, if it should not see fit to discharge the offender, may order him to be indicted there for such offence as the evidence shows him to have com- mitted, and bind him over for *his ajjpearance, or commit him r:(:rn/. for trial. If no distinct offence be exhibited, the Court may still, L if the evidence warrant it, require him, as a measure of precaution, to give security for his good behaviour, and on failure, commit him as a suspected person. If this view be correct, the Acts are divested of those features wliicli are apt to be regarded as rigorous and oppressive. It follows, I think, that a proceeding for vagrancy, would not be barred by a prosecution ])eiMMng in the Court of Sessions for gaming. If the security is given to the justices, there is an end of the proceeding ; for it is clear, that it is not meant as a punishment for the offence of gaming. The Act of 1836, seems to contem])late a ))rosccution for that offence sej)arately, by making a provision for increasing the costs. The Court is of opinion that the Judge below was right to refuse the prohibition ; and the motion here, to reverse his decision, is dismissed. Evans, Richardson, Johnson and Johnston, concurred. Gantt, O'Xeall and Butler, dissenting. Black, for the motion. Edward, Solicitor, contra. See Sup., 72; Commissioners of New Town Cut vs. Seabroolc. 2 Strob., 564; Crosby vs. Warren, 1 Rich., 385, 390. An. llEPOPiTS OF CASES AT LAW, ARGUED AND DETERMINED COURT OF APPEALS AND COURT OF ERRORS OP SOUTH CAIIOLIXA, FROM NOVEMBER, 1841, TO MAY, 1842, BOTH INCLUSIVE. [WITH AN ArPl'^NDIX ( ONTVlNINii SJMK E\RLlin CASES.] BY J. J. M' MULL AN, STATE REPOUTER. VOLUME IL SECOND EDITION, CHARLESTON, S. C. M'CABTEE k DAWSOX, 116 MEETING STREET. 1859. [IN THE FIRST EDITION.] TO THE PUBLIC. This volume of Law Reports closes my labors as State Reporter. How far I have discharged my duty, to the satisfaction of the State, I am unable to determine. But if I have failed, in any one particular, to do my duty, it was from causes over which I had DO control, or from a want of judgment in the performance of them. I have to ask, again, the indulgence of the profession, for the great delay in the appearance of this volume. It has been delayed far beyond what I had intended ; but it was not from any wilful neglect, that it has been delayed, but rather from such an indis- position, as would not allow me to perform labor of the kind that was necessary to its completion. I trust that no serious loss has been occasioned by its non-appearance, and that, though late in its appearance, it will come in such a shape as to be acceptable. A few of the omitted cases, promised, are subjoined. And should the health of the undersigned, and a sufiicient inducement be offered — he will endeavor, (although not now in the service of the State) to collect and present another volume of Law Cases, omitted by previous Reporters, since 1830. Perhaps a few Equity Cases may also be given. J. J. M'MULLAN. Lancaster C. IT., October 1, 1843. CASES AT LAW AUGUEU A^'D DETERMINED U THE LAW COURT OF APPEALS OF SOUTH CAROLIXA. Coluntbia, ^cccmbcr, 1841. JUDGES PRESENT DURING THE TERM. HON. RICHARD CTANTT,(a) HON. BAYLIS J. EARLE, " JOHN S. RICHARDSON, " ANDREW PICKENS BUTLER. " JOHN BOLTON O'NEALL, " DAVID LEWIS WARDLAW.(/0 " JOSIAH J. EVANS, The State of South Carolina vs. D. G. Wylie, Sheriff, et al. 1. The Act of 1839, regulating the office and duties of sheriffs of this State, and dispensing with the return of " nulla bona'' heretofore required against sheriffs, before commencing actions on their official bonds against the securities, does not do away the necessity *of the return of ^^ nulla bona'' where the sheriff ^^^ was elected and gave bond before the passage of the Act of 1839. ^ 2. The Act of 1839 is prospective, and applies only to those sheriffs who have been elected and given bond since its passage. 3. Where the sheriff, making tlie return of executions in his office, to the clerk of the Court, previous to each Court, as required by law, omits to make the proper return, he will not be permitted to make it subsequently, '^ nunc pro tunc." Before Gantt, J., at Fairfield, Fall Terra, 1841 ; who reports the follow- ing as the facts of this case. This was an action of debt, brought on the official bond given by the defendant, David Wylie, the Sheritf of Fairfield district, and tiie other defendants, as his sureties. On the part of the plaintiff, the following testimony was ofifered : 1. A certified copy of the official bond given by said Wylie, and the other defendants, as his sureties, dated October, 1836. (a) Resigned during the Term. (b) Elected during the Term, in the place of Hon. R. Gantt, resigned. He qualified, and took his seat with the Court, as one of the Appeal Judges. [All the cases of this term, in which his concurrence or dissent does not appear, were decided before he took his seat : the cases not being rei^orted in the order of the time of decision. An.} *3] 352 COLUMBIA, DECEMBEK, 1841. VOL. II. [*2 2, Sundry unsatisBed writs o^ fieri facias against said Wylie, some of which wei'e lodg-cd in the office of the Coroner of Fairfield district, in July, 1840, and others lodged in the office of the present Sheriff of Fair- field district, in November, 1840. 3 The book of returns made by the present Sheriff of Fairfield, according to the provisions of tlie Act of 1827. entitled "An Act to pre- vent the frequent renewals of executions," marked on the outside as liaving been filed in the clerk's office^ in February, 1841. Three of the executions against David G. Wylie, and which are still unsatisfied, are contained in this book of returns ; but no entry is made as to the state or condition of said executions, nor any reason given why the money had not been made. In the progress of the trial, plaintiff's counsel moved for leave to amend these returns, by permitting the Sheriff to fill the blank, nunc pro tunc, according to the facts then existing; or for leave to examine him as a witness, in regard to those facts. Sundry writs of capias ad satisfaciendum, against said Wylie, upon which he was arrested on the 7th April, 1841. The petition of said Wylie, for the benefit of the prison bounds' Act, together with the sciiedule and assignment *of the whole of his estate and effects, was also given in evidence. Plaintiff was prepared to prove breaches of the condition of the bond ; but the defendant's counsel moved for a nonsuit, on the ground, that there was no return of nulla bona on any fi. fa. against said Wylie, before the commencement of this suit; and the motion was granted by the Court. From the order of nonsuit, the plaintiff appealed, on the grounds : 1. Because a return oi^ nulla boiui on aji.j'a. against said David G. Wylie, was not necessary to the maintenance of this suit, 2. Because there was sufficient return of tinal process against said David G. Wylie, according to the Act of Assembly of 1827, to sustain this action ; and if iluit return was defective, leave ought to have been granted to amend the same. 3. Because there was sufficient evidence of the insolvency of said David G. Wylie, for the maintenance of the above suit against his sureties. McCall, for the motion. Cited the Act of 1839, and contended that by this Act tht! Act (if 1795 was repealed, and the return of nulla bona was dispensed with. Tlio words "the bonds may be sued at any time," makes no distinction between j.rincipals or sureties. Cited Bac Al). Tit." Stat. Letter F. The later intention of tlie Lcf,nslature mu.st prevail. He insisted tliat where statutes are inconsistant, tlie first Kives place to the last ; 4 Sec. Act 1839 ; 7 Stat, at Large, 26. The return of nulla bona is a mere matter of evidence, to be required by tlie Court, before it can jiroccr-d to judgment against the sureties. Tlie Act of 1839 repeals that pro- vision. Tlie Ai-t dispensing with ])roof by a subscribing witness, is analogous to tills, and yet it never lias been held, that on a contract, before that Act, it could not Im; ]>roved liy proof of handwriting. At th<' iiassage of the Act of 1839, defendants had incurred no liability, and there was no suit brought; Brev. 24-GO ; G Bac. 383, Stat. Letter F. 50; pari viateria, r, T. R. l(j. *41 *'''be Act of 1839, regulating returns, dispenses with nulla bona returns. Ah to t)ie ameiidnuint of tlie return, cited 1 Taunt. 23, 221 ; 3 Mass. Rep. 230; 2 Htra. 1123; Han. UH ; Repeal of Stat.; 1 McMulL 09, 338; Dud. 1G5; 3 Hill, 19U; Bail. Eersons who undertake generally, or in a sum, certain, that the defend- ant, if convicted, shall satisfy the plaintiff, or render himself to proper custody." It is plain, therefore, if the Legislature intended to use the words as legal, technical terms, that the bail pieces offered here have the proper condition. That they intended nothing new, is to be inferred from the fact, that they have merely put in one clause, provisions, which before existed in different acts. The case of Fife & Co. vs. Clark, had given construction to them, and settled the course of practice, and if the Legislature had intended to introduce a new rule, they would have made an entirely new provision. This was not done, and hence, I take it they intended the old construction should prevail. Independent, however, of that, I think that a bail piece, to answer the action and pay the condem- nation, would have no greater legal effect, than one conditioned "to pay the condemnation money, or render himself prisoner to the Sheriff of the district aforesaid." If it be bail, it is plain that the party may be sur- rendered. It is called, " bail and special bail" in the Act ; and in addition to this the bond is to be conditioned to answer the action. What is that, unless it be security for the party's appearance ; and if he be not in the custody of his keepers, how can they undertake for his appearance ? Again, the undertaking is to pay the condemnation. Cannot that be effected in two ways ; 1st. By a payment in money, and 2d. By a render of the body ? For while the body is in custody, the plaintiff can have no other satisfaction. It is at least, so long, to be re- garded as the highest degree of jjayment. If he docs not produce sati.s- faction, in fact, it may be, that the party may resort to other remedies. But the surrender of the body is the very utmost which the creditor can demand in payment. In Young vs. Grey, (Harp. 40,) the bond, I know, was conditioned, as these plaintiffs would have this to be, and yet in it, it was said, as settled law, "the bail might have surrendered their princi- pal." This being the case, and the condition, demanded *by the r^ir plaintiffs having no greater legal effect than that used I)y the de- ^ fendants, we should not be warranted in refusing the bail pieces. But I am entirely satisfied with the case oi Fife d- Co. vs. Clark, (3d McCord, 347.) It ruled correctly, that the form of the bail jiiece, required under the attachment Aets, should conform to the form required for bail above, or bail to the action ; and the Act of '39, has not altered the law in this respect. The motion to reverse the decision below is dismissed. Evans and Earle, JJ., concurred. Gantt, J. I heard this case and concur in this opinion. Richardson, J., absent at the argument ; but examined the opinion, and was satisfied with it. IVilson and Martin, for the motion. Wardlaw and Perrin, contra. See Act of 1843, 11 Stat., 256; 10 Rich,, 59. An. 360 COLUMBIA, DECEMBER, 1841. VOL. IL [*15 Chancy Cherry, (bearer,) vs. Jonathan Fergeson. He -who brings an action, on a written instrument, must set it out correctly ; and tliat whicii lie offers in evidence, must correspond with that which he has described. The name of the original payee, to a promissory note, is an essential part of the description. And a misrecital is fatal. Before Gantt, J., Chester, Fall Term, 1841. This was a summary process, tried before his Honor, Judge Gantt, at Chester. Fall Term, 1841, of which his Honor reports, as follows : " S. Process on note of hand, purporting to be payable to J. Good- wright, or bearer, for the sum of $28 50, signed, Jonathan Fergeson, and ^, .-, dated 24th June, 1840, on *which is a credit of $3, of the 11th -I December, 1840. A regular appearance had been entered for the defendant ; on the case being called for trial, the counsel for the defend- ant relied on a variance between the original and copy process, in this, that the name of Fergeson was left out in the copy, the statement in the copy being, that "Jonathan, the defendant, is indebted, tf-c." "It was urged, also, that the person, to whom the note was made pay- able, was "Goodnight, and not Goodwright," as stated in the process ; as the said Jonathan had appeared by attorney, and as the note was made payable to bearer, in which character the plaintiff sued out the process. I overruled the objection, and decreed for the plaintiff." The defendant renewed liis motion in the Appeal Court for a nonsuit, and to set asitle the decree of his Honor, in this case, upon the ground : That the note sued on, and the one offered in evidence, were different. The note sued on, purported to be made payable to "John Goodwright," and the note offered in evidence, was payable to one '• John Goodnight." The atlcjafa and jirobata, not corresponding, the Court should have sustained the defendant's motion for a nonsuit. Curia, xter Earle, J. Whether the omission of the surname, of the defendant, was such a defect, as would avail him, in any form, it is imma- terial to consider ; when he appeared by attorney, and pleaded to the action, he waived the objection. The other ground of the motion is of more weight. He who brings his action, on a written instrument, must set it out correctly ; and that which he offers in evidence, must corres- pond with that which he has described. It was necessary for the plaiu- tiff to set out in his process the note, from which he derived his right of action, that the defendant might know the nature of the demand, to which he was called upon to answer. The name of the original payee was an essential part of the description. And a misrecital was fatal. Good- night is a different name from Goodwright ; and there was nothing to obviate, or remedy the variance between the process, and the proof. The *lf-| plniiitiff, therefore, could not recover, and should have *been non- -l suited. The decree for the i)laintiff is set aside, and the motion for nonsuit is now granted. llrcHARDsoN, O'Neall, Evans, Butler, JJ., concurred. WrI'jId and McMullan, for the motion. Eaves and Thompson, contra. See 3 Rich., G9, 175; 1 Strob., 58. An. 17] m'lean vs. ex'ors. of green. 361 John M'Lean vs. Ex'ors of Green. Defendants, executors of Dr. Green, Late of Colnmbia, after advertising a sale of the negroes, belonging to the estate of their testator, to take place in the town of Columbia, on a certain day : on the day appointed by previous notice, proceeded to sell the negroes, at public out-cry ; but before olforing any of them for sale, announced publicly, and advertised the bystanders, that they did not warrant the soundness of the slaves ; but the genuineness of the title. Held, that this was a sufficient notice to exonerate and exempt the executors, from a recovery against them, on an action for an implied warranty of soundness — also, held, that the onus did not lie on the defendants, to prove, whether the plaintiff heard, or was aware of the terms of the sale, or not. Before O'jSTeall, J., at Columbia, Spring Term, 1841. Assumpsit on the implied warranty of soundness of a negro man, Edinburgh, sold at auction, by the defendants, with the other estate of Dr. Green, and purchased by the plaintiff. When the sale of the negroes was about to begin, and when the bidders were generally collected, the defendants caused it to be publicly announced, as part of the conditions of the sale, in regard to the negroes, that the title would be warranted, but not the soundness. Edinburgh, being bid off by the plaintiff, he complied with the terms of sale, and accepted a bill of sale from the de- fendants, warranting the title, but containing no warranty *of sound- p^, ^ ness. There was no proof on one side, or the other, whether the *- plaintiff was present, or absent, at the public announcement of the condi- tions of the sale. And it was contended for the plaintiff, that unless he were proved to be present, he was not bound by them. The Court instructed the jury, that the refusal to warrant the sound- ness of the negroes, at the commencement of the sale, attached to each negro then sold; but that, any after representation of the soundness of this negro, would be a warranty. The jury found for the defendants, and the plaintiff moved to set aside the verdict, on the ground of misdirection. Curia, per Earle, J. The sale, in this case, seems to have been an extensive one, and probably continued through several days. The printed advertisement of the sale, in the Gazette, was not produced, and, probably contained only a notice of the time of the sale, and the things to be sold, with, perhaps, the terms of credit, and the mode of securing payment. There were no written, or i)rinted conditions of sale exhibited, or otherwise made known, on the day. It seems to follow, therefore, that the verbal declarations of the defendants, at the sale, constituted the conditions, by which they and the purchasers were to be bound. If there had been but a single negro sold, it is conceded on the part of the j^lain- tiff, that the announcement of the defendants, that they warranted the title only, and not the soundness, would have been binding on the pur- chaser. But it is insisted, that each negro constituted a separate sale, and that the verbal condition announced, did not attach to every individual negro subsequently sold to different purchasers; and that bidders, not proved to have been present at the beginning of the sale, are not to be presumed to have known the condition thus announced. There is much difficulty in laying down a rule on this subject, that shall be free from objection. There is no doubt that, at an auction sale, in regard to the entry in writing, under the statute of frauds, to bind the 362 COLUMBIA, DECEMBER, 1841. VOL. IL [*18 purchaser, each article constitutes a separate purchase, and requires a *ian proper entry. But it would be extremely inconvenient, =*=and, it -I seems to me, without any corresponding advantage at an auction sale of fifty negroes, by the same person, on the same day, in pursuance of ])revious notice, to require, in the absence of printed, or written con- ditiiins, that the seller should announce, on offering each negro, the whole terms and conditions of sale. These may embrace many particulars, as, for instance, cash or credit, if the latter, for how long; the nature and form of the security ; whether with, or without warranty, either of title, or soundness, or of both. Sales at auction should be accompanied with the most perfect openness and fairness. If the hour of sale is fixed by pre- vious notice, the announcement of the conditions, verbally, before the hour, would not suffice. If made after the hour, or in case no hour be fixed, if made at the beginning of the sale, when the bidders may be sup- posed to be all assembled, and in such way, as to attract the attention, and reach the ears of the crowd ; I can perceive no reason, why it should be repeated on the sale of each particular negro. In the case supposed, would a person to whom a negro had been knocked down, towards the end t)f the sale, on the same day, be allowed to disclaim the purchase, on the ground of being required to pay cash, when he supposed it was a sale on credit, not being present when the terms were announced ; or on the ground of not being aware of the terms in any other particular ? If printed or written conditions are exhibited in one place, only, the bidders are presumed to know them. If they are published aloud, at the be- ginning of the sale, why should not bidders be presumed to hear them ? There are, always, terms of sale, and although not exhibited in writing, it is reasonable to suppose, that he who bids, has first inquired. The refusal to warrant the soundness of negroes was, here, only one of the conditions of the sale, of which the purchaser was as much bound to take notice, as that he would be required to pay part cash, or to give his note at sixty days, or his bond at twelve months; and if fairly and publicly announced, at the beginning of the sale, to the crowd of bidders, I think, would attach to the sale of each negro, in that gang, on that day. And such was the sale to the plaintiff, in this case. lie did not prove that *.7A-| I'C was absent when the announcement *was made, or that he came " -^ to the place of sale afterwards, even if such proof could avail him, A majority of the Court thinks that the defendants are not required to pnjve that he was present. Tills action is on the implied warranty ; and it is material to bear in mind, that after the negro was bid off by the plaintiff, as the defendants allege under their refusal to warrant the soundness, he complied with the other lorms of sale on his part, and accepted a bill of sale, from the defendants, warranting the title only. Now, it is true, that an express warrHtity of title docs not exclude an implied warranty of soundness. (a) But when the question is, whether the warranty of soundness was part of the Cf)ii1raet, the acceptance of such a bill of sale alfords strong evidence, that tilt' plaintifl' was not ignorant of the refusal to warrant. Motion refused. IliciiAUDSoN, O'Xrall, Evans, and Butler, JJ., concurred. Blavk and Arthur, for the motion. Gi'erjg and De Saussure, contra, («) I'oat,, 333. An. See Boinest vs. Leiguez, 2 Rich,, 464. An. ^21] BAKER, JOHNSON & CO. VS. BUSHNELL. 363 *Baker, Johnson & Co. vs. Abner Bushnell. [*21 The sureties to a prison bounds' bond are not liable for the costs, incurred in defeating the discharge of their principal, on his application under the prison bounds' Act. But costs may be taxed against the principal alone, in an issue to try the validity of his schedule. Before O'Neall, J., at Edgefield, Fall Term, 1841. The defendant applied for the benefit of the insolvent debtors' Act. The ])laintiffs objected to his discharge, and filed a suggestion contesting Lis schedule. After two trials at yiisi jwius and in the Court of Appeals, it was held that the prisoner was guilty of an escape, and could not, therefore, be discharged. The plaintifis claimed now to tax costs against the defendant on the issue disputing his schedule, and to recover the same against the defendant and his securities, on the prison bounds' bond. The presiding Judge ruled, that as the law gave no costs, none could be taxed ; that they could not be recovered against the defendant's securities. The plaintiffs appealed, on the ground of error in the Judge, and insisted that, by law, they had the right to tax their costs against the defendants. Griffin Sf Burt, for the motion. Cited the Act of '88, and said, that by the authority of this Act, the Judge is directed to submit the issue to a jury. On a feigned issue, costs abide the verdict: cited Burr., 1021 ; 4 T. R., 402. Carrol, coutra. Cited 2 N. & M'C, 377 ; Act of '27 ; P., 55, fee biU. Curia, 2^er O'Neall, J, This Court is entirely satisfied, that the costs of the issue, in which it was held that the prisoner was guilty of an escape and could not therefore be discharged, could not be inclnded in a verdict on the prison bounds' bond, against the defendant and his securi- ties ; and the case of Leslie and Calhoun vs. Taggart, ct al.,(a) decided at this Term, may be referred to as a perfect analogous authority, on this very point. But it seems, that the plaintiffs' attorney merely intended to claim to be allowed to tax costs against the defendant alone ; and after a full review of all the authorities, I think he is entitled *to do so. r^^^g The 7th sec. of the prison bounds' Act, 5 Stat at Large, 80, enacts L — ' that " when the prisoner is accused of fraud, the Judge, or Justice, before whom the prisoner is brought, shall direct a jury to be empannelled and sworn to determine the fact." This makes the case a suit at law between the parties, on the question of fraud, or no fraud : and whether such a case arise by operation of law, or by the order of the Court, the rule is, I think, that the party, prevailing in the issue, is entitled to tax costs. In Fabre vs. Zylstra, 2d Bay, 148, the issue was made up under the insolvent debtors' Act, which does not direct the question of fraud to be tried by a jury. But, the Judges thought that it was the proper course. In allowing the issue, they did not make any order directing the costs to abide the event, which certainly would have been done, if the law had been otherwise. In Denton vs. English, 2 N. & M'C, 377; the the question, as to costs, arose on an appeal from the Ordinary and they (rt) Post., 71. An. 364 COLUMBIA, DECEMBER, 1841. YOL. II. [*22 were not allowed ; and that case has led to the confusion, on the matter of costs on feigned issues at law. When it is examined, it will be found, however, to rest on the peculiar features of the case before the Court. The verdict was not to be followed by a judgment of the court of law ; it was to be returned to the Court, out of which the appeal came, and would there have its final effect ; and hence, costs at law could not be awarded. Judge Colcock, who delivered the judgment, rested his opinion very much upon that view. For, he said, speaking of an issue from Chancery, as an illustration of the question then in hand. " The costs do not follow the verdict, as matter of course, but the finding of the jury is returned to the Court that ordered it, where the costs are discre- tionary." In a subsequent part of his opinion, he says, "where an issue feigned is ordered by the Court, and a verdict, the costs may be made to abide the event : but there, it is considered, as a case arising in Court, and stands on the footing of all other causes originating in the Court, and may be regulated by order." At first, I was disposed to take the view suggested by the closing words, which 1 have quoted, and to lay it down, that in all collateral issues made up by the order of the Court, or *9Q1 ^y operation of law, the Court must direct the costs to *abide the -■ event. And, in most cases, such a practice is very commendable. In issues, ordered by the Court, it ought always to be pursued, (a) It lias, in such cases, the sanction of Posey vs. Underivood, 1 Hill, 266. But in issues which the parties are entitled to make up, as a matter of legal right, or when the Court neglects to make an order on a feigned issue, regulating the payment of costs, I am satisfied costs follow the result of the case so made. In attachment cases, where the return of the garnisliec is discharged and an issue is made up, the Act subjects the party failing, to costs, Westmoreland vs. Tippens, 1st Bail,, 514. In Oldknoio vs. Waimoright, and Rex vs. Foxcroft, Burr., lOH, it was a feigned action under a rule, by consent, to try the right of election to the ollicc of Town Clerk of Nottingham. By the order, directing the issue, costs were to abide the event. At page 1022, is found the judgment of Lord Mansfield, upon the question, whether the costs of the quo xoarranto and mandamus, out of which the feigned action arose, should be taxed against the defendant, as well as the costs of the feigned action. He said that "the costs on the civil side (arising on the issue only) wotdd, of course, abide its event, xoithout needing any rule, or consent for that purpose, (that point having been fully settled long before the making of the present consent rule.") In Iloslcins vs. Bevlcley, 4 T. R. 4, there were feigned issues, and it was held that costs, as a matter of course, followed the event. But the Court intimated an opinion, that as feigned i.S!iu('S were only granted by leave of the Court, it would be prudent, in future, when they permitted such issues to be tried, to compel the parties, that the costs should be in the discretion of the Court. In Herbert vs. Williamson, 1 Wils., 324, it was ruled, tliat the costs followed the verdict on a feigned issue; and in it, the Judges use the strong expression "cost.s, by law, follow the verdict." They also draw the distinction between issues ordered from another Court, and issues arising at law ; and assign the reason why costs at law are not allowed in the former. (a) G Ricli., 293, 323; Rich., 271. An. *23] TERREL ET AL. VS. EASTERLING. 365 They say "on an issue directed by Chancery, this Court gives no costs, but the finding of the jury is returned to Chancery and the costs there are in the discretion of Court, becaut^e the statutes giving costs do not extend to that Cou7~t." In *I{ex vs. Fhillips, Id., 260, the issue was to r:^^^ try tlie validity of a by-law, it was held that costs followed the L judgment on the feigned issue. From this review of authority, I think it is clear, that the plaintiff in the issue, under the prison bounds' Act, is entitled to tax costs against the defendant, so far as the same may be provided for by the fee bill of 1827, (Acts of 182*1, page 55.) The motion to reverse the decision below is dismissed ; but the plaintiffs have leave to tax the costs of the issue against the defendant alone. EiCHARDSON, Evans, Earle and Butler, J J., concurred. See 10 Rich., 14; 6 Rich., 293, 323; 1 Strob., 116; 1 Rich., 26. An. In Rice vs. Gist, 1 Strob., 82, all wagers were held unlawful. There seems theu to be an impropriety in giving to an issue, for trial of a disputed fact, the form of an action to recover a wager, — which form is the technical feignpcl issue. A suggestion on one side, and traverse on the other, is easier, and violates no rule. An. John Terrel et al. vs. Evander Easterling. Where a testator, by his last will, devised certain real estate to the plaintiffs, as trustees for his daughter, (therein named,) reserving the "sawing timlier," growing thereon. It was held to be a good reservation, and sufficiently explicit to be understood. Before Earle, J., at Marlborough, Spring Term, 1841. Whose report is as follows : — Trespass quare clausum fregit, and cutting and carrying away the plaintiff's timber. William Pledger made his last will and testament on 10th August, 1825, and died. lie devised and bequeathed his whole real and i)ersonal estate to his wife, for life. After her death, he devised to John Terrel, and the other plaintiffs, " the following tracts of land ; one tract, where Mr. Emanuel now lives, and the lower half of a tract lying between Ilerendenes Prong and Crooked Creek, next to Mr. Crossland's land, {the sawing timber excepted ;'''') then ^follows a bequest of negroes, "in trust, nevertheless, to per- r^j-gc mit my daughter, Mary Ann Emanuel, to use and enjoy the same, ^ to her sole and separate use, &c., during the time of her natural life," with limitation over. He next devised to the same persons, " the upper half of the same tract, between Herendenes Prong and Crooked Creek, the sawing timber excepted,''^ with a l^equest of negroes, in trust, for the use of his daughter, Caroline Williams, for life, with similar limitations. The testator, lastly, devised to the same persons, as follows : " all my lands, which I have not hereinbefore disposed of^, also," &c. ; then fol- lows a bequest of negroes, "in trust, nevertheless, to permit my son, Philip Williams Pledger, to use and enjoy the same, during his natural life," &c., with limitations. 366 COLUMBIA, DECEMBER, 1841. TOL. II. [*25 At the death of the testator, there was a saw mill, on a tract devised to Philip W Pledger, after the death of the widow, and which lay adjoining the tract," between Herendenes Prong and Crooked Creek, devised in equal portions to Mrs. Emanuel and Mrs. Williams; and out of which, the sawing timber was excepted. After the death of the tenant for life, Philip W. Pledger entered upon the saw mill tract, sold and conveyed it, together with the right to cut sawing timber, on the tract devised to Mrs. Emanuel. To perfect the title, there being judg- ments, he caused the Sheriff to levy on and sell the same tract, who also conveyed the right to cut sawing timber, as appurtenant thereto. Under these conveyances, the defendant entered, and claimed and exercised the right of cutting sawing timber, on the tract devised to Mrs. Emanuel, as appurtenant to the saw mill tract. For that trespass, this action was brought. The persons appointed as trustees were also nominated, as executors, after the death of the widow ; but they never qualified, nor otherwise took upon themselves the executive of the tracts ; and never interfered in any manner with the management of the property. Mr. Emanuel and his wife were in possession of the lauds, devised to her, at the date of the will, and have been so, ever since. It will be perceived from this statement, that several questions arose; 1, as to the right claimed by the defendant to cut sawing timber, under the ^.-jp-| grant of Philip W. *Pledger; 2, as to the right of the plaintiffs to -' maintain this action. In regard to the first, I consider the reservation, contained in the words, " sawing timber excepted," in the devise to the plaintiffs, in trust for Mrs. Emanuel, as incompatible with the enjoyments of those rights, that are inseparable from an estate in fee ; repugnant to the nature of the estate devised, and therefore void ; in the same manner as would be a condition, that the grantee should not commit waste, or take the profits, or that his wife should not have dower, and the like, I consider it, also, void for uncertainty, both as to the person in whose behalf it was made, and as the other lands to which it was to be appurtenant ; and that this uncertainty could not be renewed by proof, aliunde. Supposing the objections not to be good, and that the reservation was valid, constituting a separate right or interest, independent of that of the devisee, I con- sidered that it did not pass to Philip W. Pledger, under the general words, "all my land which I have not hereinbefore disposed of;" but that, as an inheritable right, it descended equally upon the heirs at law, of whom there were four, as a joint interest to be enjoyed like other rights of like kind, jointly, or to be jointly assigned; and that the defendant, as the assignee, or grantee of IMiilip W. Pledger, in regard to this right, took nothing. In regard to the second question, as to the right of the plaintiff's trus- tees, to maintain this action, I was inclined to think they could not, and that the action should have been by Emanuel and wife; I thouglit it safer to refuse the motion for nonsuit, and instructed the jury to find for the plaintiffs, reserving the question, and with leave to the defendant, to enter a nonsuit, if the Court sliould be of opinion, that the action is not ■well brought by the present plaintiffs. *26] TERREL ET AL. VS. EASTERLING. 367 GROUNDS OF APPEAL. 1st. Because bis ITonor, Judge Karle, erred in decidinjr on the motion, in the Court below, tliat the plaintiiFs, who are trustees by virtue of a clause of the will, f^iviug to the cestiii que tru.sf, (who was in possession at the execution of the will, and continued in possession to the time of action,) *alife estate, pr,y and after her death, to the heirs of her body, with a still farther liuiita- L tion, upon failure of issue, at her death, the plaiutiifs never having had posses- sion, exercised authority, or taken upon themselves any execution of the trust, could maintain an action for an injury to the possession. 2d. Because the trust was executtul, and the lands vested in the cestui que trust, who, alone, could maintain this action. 3d. That the ces/ni que trust, being in possession at the time of the execution of the will, and continuing in possession, exclusively, to time of this action, was a tenant for life, with the right of committing waste, and could, alone maintain an action for injury, merely to the possession. 4th. That the right, to cut saw-timber, was reserved by the testator, and conveyed by a subsecpient clause of the will, to the said trustees, for the use and behoof of P. W. Pledger, for life, with a limitation over, under the name of land, and the said P. W. Pledger went into the use of the same, and sold to defendant's father, with the mill tract, to which it was intended to be, and was appurtenant, and was levied upon, and sold by the sheriff to defendant, to perfect the title, on a judgment obtained against the executrix of the will, on a debt due by testator, in his lifetime. 5th. That the right to cut saw-timber is a property, of the nature of an incorporeal hereditament, and is subject to a levy, and was properly conveyed by the sale of the sheriff, and the sale of Pledger, inasmuch as it was reserved by the testator, and sold upon a judgment, on a debt due by him, in his lifetime. McQueen, for the motion. This case, may it please your Honors, was submitted to his Honor, upon legal questions, in the Court below, and was so tried, by supplying a few matters of fact on proof, and comes now before you upon the motion for a nonsuit. The first ground, as to the plaintiffs' right to recover, presents two questions. 1st. Is the trust an executed trust, or is it executory? 2d. Suppose it to be •executory, can the plaintiffs recover for an injury to the possession; they never having taken upon themselves the execution *of the trust, nor having been r^.jn in possession : and the cestui que trust, in the actual possession, from the time ^ of, and even before the making the will, to this time. The first question, then, may it please your Honors, I presume, will be decided mainly upon the face of the will, and the application of those principles, that have heretofore been estal)lished, in cases involving the same questions. The lands here in question, with all the other lands, are loaned to the widow of testator, for life, and after her death, to be divided, in the following manner. They are, then, given to John Terrel, and others, to wit : one tract, tvhere Mr. Emanuel now lives, and the lower half of a tract, lying between Herendencs Prong and Crooked Creek, next to Mr. Crossland's land, (the sawing timber excepted.) "In trust, nevertheless, to permit my daughter, Mary Ann Emanuel, to use and enjoy the same, to her sole and separate use, without the control or interference of her husband, during the term of her natural life, and after her death, to convey the same to the heirs of her body ; but should my said daughter die, leaving no heirs of lier body, surviving hetj then I give the said lands and negroes to the said," trustees, &c. Let .lis see, then, what estate is this. I will not attempt here, to trace the doctrine of uses and trusts, but will only say, that when there is nothing farther to be done by the trustees, to vest the use of a freehold estate, it is an executed trust, and vests the legal estate. In 4 Kent's Commentaries, p. 303, this doctrine is found, "the cestui que trust is seized of the freehold, in contemplation of equity, the trust is regarded as the land, and the declaration of the trust is the disposition of the land." Again, on page 305, same volume on executed trusts, may be found as follows : " It is executed, either when the legal estate passes, as in a 368 COLUMBIA, DECEMBER, 1.841. VOL. II. [*28 conveyance to B., in trust, or for the use of C, or when only the equitable title passes, as in the case of A., conveying to B., to the use of C, in trust for D., the trust, in this last case, is executed in D., though he has not the legal estate, and all the cas*es decided in our own State sustain the position, that when nothing remains to be done by the trustees, to give the use, it is executed, and the estate ^^ *vests ; and I have found no case decided, in our own Courts, or elsewhere, ~ -I that does not declare the trust executed, when the trustees are not required to convey, or to receive, and pay out, or apply the profits and rents, to make repairs, or do some acts, in the management of the estate. In fact, in a large majority of the cases, the receipt and disbursement of the rents and profits, settle tlie question. In this case, then, what single act is to be done by the trustees, to vest the use in the wife of Emanuel ? She is in possession at the time of the date of the will, as appears on its face, and I see no authority clearly given to the trustees, even to enter on the premises. The lands, after the death of the widow, were to be divided, and it is not denied, that Mr. Emanuel was, at the time, in the posses- sion of the portion given to the use of his wife, and has continued so ever since. The wife then has been in the enjoyment of the use given her, the trustees are to allow her that sole and separate use, they are to take no charge or notice of the rents and profits, to do no other act, that I can perceive, and how can the trust be executory ? The estate, at her death, is to go to the heirs of her body, which, ac- cording to weU-settled law now in tliis State, are her heirs generally. See the case of Ramsey vs. Marsh, 2 McCox-d, 252, also the case of Jasper vs. Maxwell, Equity, 357. In this last case, this doctrine is laid down, "Equity always com- pels the trustee to surrender the legal estate to the cestui que trust, unless the receipt of the profits by the trustee, is necessary to efl'ectuate the intention of the creator of the trust;" filso, see the case of Hopkins v>i. ]Vard, G MuJif. 41 ; and the case of Cleary vs. McDowell, et al., Cheves, Rep. 140 ; and also the case of Pringle and others, Trustees, vs. Allen, 1 Hill's Chancery, 135. But it may be said, the fact, that the will requires the trustees to convey to the lieii"s of the body of Mrs. Emanuel, will make it executory. This is not antece- dent to the enjoyment of Mrs. Emanuel's life estate, and, in fact, cannot be of serious consideration, because no conveyance to them would be necessary ; the law, by the statute of uses, conveys to them in such a case as this, and such a requi- ^oQi sition,* requiring no more than the law does of itself, will be regarded as an ■' useless expression. Then, the fact that the estate is not to be subject to the control or interference of the husband, will be relied upon ; but in what way is he to be i)rohibited ? The trustees are not to take the rents and profits ; they are not to take the possession of the premises ; they are not to lease the lands, and no express or impUed right, that I can see given them, will allow them to do either, or, in fact, any other specific act of dominion. Suppose now the trustees were to assume the right of entering on the premises and turning off the cestui que trust, unless the husband would refrain from any, the least interference, or control, could they take the possession and lease out the premises, or could they hold the possession, under any implied right ? I cannot think so ; for, according to the case of Jas])er vs. Maxwell, before cited, equity would compel them to surrender the sole and separate use and enjoyment to the wife, who is to render the trustees no account of tlie rents and profits, and, as a legal consequence, she must retain that enjoyment for her lifetime, and it is not certain indeed but that the testator intended Ity the words "convey the same to the heirs of her body" above alludi'd to, that she should convey the same to the heirs of her body ; and if the will will bear that construction there is an end to this controversy. By u(jticing the next succeeding clause of the will, we find the following, "but should my said daughter die leaving no heirs of her body, surviving her, tlien I give tlio said above land, and negroes, to the said John Tenvl," and now what are wo to infer from this, but that sliould she leave heirs at the time of her death, the wliolu catato is gone ? I need not say to your Honors, that the terms, heirs, and licira of her body, in this State, are, in legal contemplation, the same, and tlio law will construe the term and give it its legal meaning. If so, then this must be an estate in fee, or, at m(;st, in fee for hfe, with remainder to other persons, and must bo vested. If tlie testator did not so regard it why reconvey ^30] TERREL ET AL. VS. EASTERLING. 369 it to tlie trustees ? He had before given it to tliem, in trust, and if he had not intended that it should pass, upon her leaving heirs of her body, which the law construes for him to be heirs generally, *wliy again give it to the trustees? p^q-i This seems to me to be a fair construction as can be made, harmonizing the '• words of the will and the law of the land, and I see no subsequent clause of the will to change that view. There is a part of the last clause of the will, which is in these woi'ds, viz. : " and in case both my daughters, Mary Ann and Caroline, should die without leaving any children surviving them, then I give the estate, hereinbefore left to their use, to such of my other children as may be then living, or their heirs," of which there may be some notice from the other side, because the word, children, is used ; but it seems to me that this clause is in favor of my above position, rather than against it. It gives, if it be allowed to apply to the clause, making the first devise to Mrs. Emanuel, a life estate, at least, to her, and it is immaterial as to any other effect, and indeed the words ^'children or their heirs'^ seem to me in the very last of the clause to make it a fee simple, or at least a vested remainder in their children, or their heirs. And this clause puts the question at rest, on the right given in the first clause, in relation to Mrs. Emanuel, to her or the trustees, as it may be construed, at her death, to "convey the same to the heirs of her body," for it will pass at her death, by operation of the statute of uses, to the remainderman, whoever he may be. I did not design, may it please your Honors, in the commencement of this, to spin out argument to this length ; but rather to cite your Honors to authorities bearing on the points, and will leave the construction of the instrument without farther comment. But should your Honors construe the instrument to create an executory trust, then the question presents itself, whether these plaintiffs can maintain this action for an injury solely to the possession. The trustees never took upon themselves the execution of the trust, and never were in possession ; but the ccitai que trust has always had the occupancy, actual, and upon this ground I think the plaintiffs must surely fail. The action of trespass quare clausum /'regit, according to all authority, is for injury to the possession, and without the trustees taking on themselves the execution of the trust, they certainly can maintain no action ; they caimot even *contend for a constructive possession, upon the possession of the cestui que r^qo trust, unless they had acted, L -■ But suppose it maybe said, that they were trustees as to this trust, the farther question arises, can they not, being in the actual possession, maintain this action where the cestui que trust is in the actual enjoyment and possession; can her possession be their possession ? They had no right to the possession, they were not even to have charge of the rents and profits, no right of entry to take charge of the rents and profits, the cestui que trust was not even to account to them for them, but is exclusively entitled to them for her lifetime. Whose right, then, is affected and to be remedied in this form of action ? Surely the person whose property is injured ; suppose it had been corn growing in the field that was taken, would the trustees have to account for it ; or would it merely affect the interest of the cestui que trust / Surely the latter. She would have a right to gather and use it, and render no account to the trustees. I can find no case authorizing one, even having a right to the premises, without actual possession, in himself, at the time, if the premises be occuj)ied by any one, to bring an action of trespass quare clausum /regit ; and belie vhig that the bare suggestion of this view to your Honors will be sufficient will not dwell longer in argument upon it, but cite your Honors to the following cases : Danford vs. Lowreii, 3 Haywood, 68, which declares that trust estates are subject to the same rules as legal estates in every case, dower excepted; also the case ua Cheves' Rep., 140, above referred to; also the case of Amick vs. Frasier, Dudley's Rep., 340 ; also a case, Campbell vs. Arnold, 1 John- son's Rep., 511, where this doctrine is laid down " a lesser cannot maintain trespass, quare clausum /regit, against a stranger for cutting down and carrying away trees while there is a tenant in possession, the action can only be brought by the tenant in actual possession ;" also a case, Hare? vs. J/' Cauley, 4 Term Rep., 489, is the following: A. having let his house, ready furnished, to B., cannot maintain trcsiviss against the Slieritf for taking the furniture under an execution Vol. I.— 25 370 COLUMBIA, DECEMBER, 1841. VOL. IL [*32 against B., thongli notice Tvere given that the goods belonged to A., because trespass is founded on a tort done to the possession, which vras not in A. at the time ; ^„o-i also a case, ^Crosby vs. Wadsworth, 6 East., 602, is the following: "one who J has contracted with the owner of a close for the purchase of a growing crop of grass, then for the purpose of being mown and made into hay, by the vendee, has such an exclusive possession of the close, though for a limited purpose, that he may maintain trespass, quare cluusum /regit, against any person entering the close and taking the grass, even with the assent of the owner. ' ' I have rested so confidently on the above grounds, that I have confined my efforts in this case principally to them, and will not dwell lengthily on the other grounds of appeal. But should your Honors entertain different views from mine in relation to those grounds, then I sxibmit, that the right of cutting saw-timber was a legal right, not incompatible with the nature of the conveyance. Suppose it were a fishery, or a right of way, would it be illegal or incompatible ? I respectfully think not, and will only cite your Honors to 4 Kent's Commentaries, 310, part tJ ; there it is laid down, "Every estate and interest, not embraced in an express trust, and not otherwise disposed of, remains in or reverts to the person who created the trust." Then, if this is a right, it remained in the testator, and even if not disposed of in any subsequent clause of the will, there was no violation of the right of these plaintiffs in cutting it : they have nothing to complain of and cannot recover. In such case the parties in i^ossession would certainly have to bring this action, or, at most, the persons having the legal right to immediate possession. It escaped my notice at the time of the trial, or rather the decision on statements, that the t;heritf stated that he did not levy on the right of cutting saw-timber on Mrs. Emanuel's land, but included it in the deed ; nor did I know it until the amendment of the report received from his Honor ; but as to the levy, the report now settles the cxuestion. But I submit this view earnestly to your Honoi'S, that the riglit of cutting the saw-timber was conveyed to the trustees for the use of P. W. Pledger, in the residuary clause of the will, by these words, "all my lands which I have not hereinbefore disposed of." Under the term lands, accoi'ding to Judge Blackstone, incorporeal hereditaments may pass, and every interest, real ; ^^04-1 and the right of *cutting saw-timber having been reserved, thp lands •^ adjoining the Mill tract, it seems to me, might pass iinder the general term used, if the defendant had have shown by parol that it was intended to be appur- tenant by tlie testator, and has been so considered by all the parties interested ever since the testator's death. If your Honors will refer to the clause of the will giving to William Ellis Pledger a devise or bequest, you will find that the testator, tlien intending to give to him an interest, and rights in the realty, says "the following land;" and under the term land, he gives only the privilege of running his new mill race through such land as it then ran through, also the privil<'g<; of rnttin;/ timber, making a dam and raising the water, for a mill on annthcr tract of land. And if this would amount to an ambiguity, then the defendant sliould have been allowed to prove by parol, and to liave shown the understanding and 'intention of the testator, and of all the parties in interest afterwards, by wliidi tliis right has been used by several who rented and indeed contracted for and used tlie mills, on the tract conveyed to P. W. Pledger. If, Ihcn, th(! trust be executed in P. W. Pledger, and the right to cut saw-timber passed to hiui, his conveyance alone to the defendant is sufficient ; or even if the trust )« niendy executory (as to all of which the arguments above, as to Mrs. Enianu.-rs part, will apply), yet, I take it, allowing the right to have passed to hiiu to cut the tind)er, his conveyance of the land, and that right as cestui que trust alone, Ib sufncient to vest the right in the defendant for his lifetime ; see the ca«e Kllioll vs Anrntronn, 2 Blackf., 1!)8 (found in 2 liquify Digest, 4S3), wliich aayw, tliat " tlio estate of a re^itni que trust may be sold and conveyed by him, as well as any otlu-r ewfate." If this be law, and the cestui que trusthad this right, he lia« parted from it for his lifotimo. All of which is respectfully submitted. J. W. MrQUEEN. 12th May, 1841. I will only add tliat Mrs. Einnmi.l has a numerous family of children now living. *35] TERREL ET AL. VS. EASTERLIXG. 371 *Dudleii, for Appelleex. The first ground of appeal assumes that the restni ^^r,. f]\ip trust, being in possession wlien the trespass was committed, tJiat tlie '• plaintiffs, who are the trustees, cannot maintain this action ; and secondly, that the plaintiffs never took upon themselves the execution of the trust, or exercised any authority in relation to the trust estate. So that the first inquiry is, could the plaintiffs sue at all, as trustees ? and the second is, if they could, would not the circumstance of the cental que trust being in possession, prevent them from main- taining this action ? If the legal estate is in the trustees, they are the proper persons to sue for an injury to the land, unless precluded by the objection arising from the want of possession. In general, he who has the legal right should bring the action for an injury done to it. The ground taken, assumes that the trustees, in this case, had not the legal right, because they had never exercised any authority over the trust estate, or taken upon themselves the execution of the trust. The fact is not admitted, that the trustees ever have so disrobed themselves. They may not have been very diligent or watchful over the interests of their cestui que trusts, but they have been siiificiently so, to secure the very objects for which the trusts were created. They have suffered the property to remain in the hands of those who were to be benefitted by it, and have had no active agency in its management, simply because their interference was unnecessary. Their part was fully acted, in seeing that the corpus of the estate was not wasted. They have exercised ii > authority over it, because no attempt has been made to defeat the objects of the trust. Would an officer forfeit his commission because he did not " charge bayonet" in time of peace, when the foot of an enemy was not upon the land? Would a trustee be in a worse condition, because he did not ride over the triist estate and direct the farming operations, when the cestui que trust had no need whatever, for his services, and could do much better without, than with him ? It is enough, as with the officer, that he comes forward when he is needed. In fact, the position taken by the appellant, when reduced to its simplest terms, is this — that a trustee loses his authority, because he does not seek opijortunities to exercise it unnecessarily. *It is submitted, that in point of law, a trustee to whom the legal estate n^op is conveyed, remains the owner of it, until he renounces his authority by *- "^ deed, whether he assumes the management of the trust estate or not. Cruise's Dig. Title, xxxii., c, 26, par, 2, 3, 4. To divest himself of the title he must disclaim by deed. This is the only evidence of his refusal to accept. The bare inactivity of a trustee cannot have that operation. This doctrine is again asserted, Cruise's Dig., Title xii., c. 4, par. 59. It is not pretended that the plaintifl's in this case have so disclaimed. On the contrary, if such had been their wish or intention, the appellant might have availed himself of this part of his defence, viz. : procuring them to do so before the trial. With two exceptions, all the trustees reside within the limits of the district where this action was brought, and were accessible to the appellant, who might have consulted them as to their wishes in relation to a disclaimer. And as an additional circumstance, one of them was present at the trial, and witnessed its progress from the beginning. So much then, for the right of the plaintiflFs to sue as trustees, disconnected with the question arising out of the possession. As to this, which is the second inquiry arising out of the appellant's first ground of appeal, the appellee will endeavor to maintain, 1st. That the landlord may bring the action, unless the tenant has a right to the possession, in exclusion of all others. This is to be inferred from what is said in 1 Ch. PI., 175, that witliout an exclusive interest, case is the proper remedy. By which, may be understood, that unless the tenant has an exclusive interest in the possession, he cannot maintain trespass ; so, also, in 1 Ch. PL, 174, it is said the action lies, however temporary the interest, if it be in exclusion of others. So that it would seem, that to deprive the landlord of the right to bring this action, he must have given to his tenant an exclusive interest in the possession. The true principle, perhaps, is this — that whenever the landlord has the right of property, and the right of immediate possession, he may maintain this action, in any case where the defendant is not in possession. It is laid down in 1 Ch. PI., 179, that trespass cannot be main- 372 COLUMBIA, DECEMBER, 1841. VOL. II. [*36 ^.,„, tainecl where the right of possession* is in reversion, which justifies the ' ^ inference, that it can be, where the right is not in reversion. The owner is always constructively in possession, where there is no one to dispute that right with" him. This action was sustained, where there was an agent in possession, to prevent depredations, though the agent cultivated a part of it for himself. 3 McC, 4i4. This must have been, because the agent had no exclusive right, and that the owner could retake the possession whenever he pleased. That to maintain trespass, the jilaintiif must hare possession, is no less the law, in relation to actions brought for injuries to real, than to personal property. It has been often decided, that in actions of trespass, brought for injuries to personal property, it is sufacient, that the plaintiff has the rl(/ht of inunediate jiossession. In Archbold's Civil Pleadincs. 22, it is said, that if an injury is done to a horse, whilst in possession of a bailee for hire, the owner must bring case, and not trespass ; but that trespass lies where the horse was only lent. This must be, because the owner had the right to reduce the horse to possession at any time. To the same point is 8 Johns, Re]i., 432, where it is said, that to maintain trespass the plaintiff must have such a riglit as entitles him to reduce the goods into possession at any time. So, also, is i Hill, 404. Thus far, the appellee has endeavored to demonstrate, that although a tenant maybe in possession, where a trespass is committed upon land, yet tlie owner of the land may maintain this action, if the tenant has not such an Interest in the premises as is inconsistent with the landlord's right of immediate possession. 2d. The appellee will attempt to show, that a cestui que trust in possession, is Irat a bare occupant under the trustee, and that his possession is not inconsistent with the right of immediate possession, which the plaintiff should have, in order to entitle him to maintain this action. The authorities on this jjoint are Jeremy on Equity, 27, where it is said, that the possession of the trustee is the possession of the cestui que trust. And in Esp., N. P., page 432, it is laid down, that the possession of the latter is the possession of the former. That this relation should be so intimate and amicable, results from the duties of tlie former, which consist in the defence of the land, the permanency ^qo-i *of the profits, and the execiition of estates. Cruise Dig., Title xii., c. 4, par. I -' 4.. To perform these duties, it is necessary that the trustee should have the power at all times to enter upon the estate, for the protection of the interest of the cestui que trust. The former cannot acquire a title under the statute of limita- tions. 3 AlcC, 467. Their jjossessions, then, Weing one and the same, are not inconsistent with each other, and the trustee has not only the right of possession, but the legal possession itself, through his cestui que trust. 3d. The appellee submits, tliat a cestui que trust, in possession, is but a tenant at will to the trustee; and if so, that the latter may maintain this action for a trespass, injurious to the fieeliold. As an authority on the first branch of this jiroposition, see 1 Cruise Dig., 412, 3 pai-., where it is said, that a cestui que trust, in possession, is considered in a Court of law as a tenant at will, to the trustee. See also 1 Chitty Ceu'l. Pr., 750. As to tlie second branch, see 1 Hill, 2(10, where it is laid down, that a landlord may bring trespass, qwire clausum frcyit, for an injury to the freehold, though a tenant at will was in possession. Tlie foregoing authorities seem to establish, that the plaintifl's in this case may claim the riglits of trustees, and that one of those rights is, to bring the present action for an injury (cutting trees) to the freehold, though their cestui que trust was in posst-ssion. The >ccond ground, taken by the appellant, is, that by the words of William ]'l<-(lg(i's will, the trust was executed in the cestui que trust, and therefore, that he iilonc ^-liouid bring the action. Wlicther a trust is executed or not, depends upon the intention of him who cn-ated it, as manifested by the instrument declaring the trust. 1 Cruise, Dig., 414, par. lit. It sliall not be executed, when any object is to be effected by the legal estate remaining in the trustees. 1 Hill, 41:3, as when made for the separate UHc of a married woman, 1 Cruise Dig., 413, par. 15— do., 414, par. 19; or as was the case in 1 Hill, 413, where the trust was to protect the property from being s old for C. P.'s debts, and to provide a home for his family. So that the (juestion «3'.-| •'"''"'«. wa.s tliere any object to be effected by declaring this trust, and «would the execution of the trust defeat that object ? This depends upon the words ^39] TERREL ET AT. VS. EASTERLING. of the will, from which we must collect the intention of the testator, and then determine whether liis intention woulil he defeated in declaring this trust executed. The words of the will are (so far as they relate to the disposition made of the tract of land here trespassed upon), "in trust, nevertheless, to penuit my daughter, Mary Ann Emanuel, to use and enjoy the same, to her sole and separate use, without the control or interference of her husband, during the term of her natural life, and, after her death, to convey the same to the heirs of her body," &c. Here there is an object to be effected, viz. : to permit the testator's daughter to iise and enjoy the same, without the control or interference of her husband. If this trust is to be construed as executed, then the whole estate will be placed under the control of her husband, and thus defeat the very object wliich the testator had in view in creating it. So, then, there is an object to be effected by confining the legal title in the trustees ; and the Court will not construe this trust executed, particularly as it was made for the separate use of a married woman, in whose favor the Courts will ever, if possible, so construe a devise made for their benefit. 1 Cruise Dig., 413. par. 15. The third ground of appeal requires no comment, as it is already answered by the remarks made upon tlie first and second. The fourth assumes, that the testator reserved the right to cut saw-timber from this tract, which right was bequeathed to P. W. Pledger for life, who sold the same to defendant's father, and that to confirm the title, the land, with this right, was levied on, and sold by the Sheriff to the defendant, under an execution against the testator himself. It is conceded, that such a reservation was made ; but it is denied that P. W. P. ever made such sale. There was no evidence of it on the trial. It is also insisted, that under tlie words of the will, this reserved right did not jiass to P. W. Pledger at all, and was altogether undisposed by it. The words ax>plicable to this question are, "«// my lands which T have not hereinbefore disposed of'' Would a right to cut saw-timber pass under the word " lands ?" It *would, r^L^a if such a right may be classed as real estate. Is it? Timber, growing upon '- land, is a chattel interest, 1 Comyn on Contracts, 74. So is Wheat. 1 N. Y. Dig., 558. If so, then the right to cut timber growing upon this land, could not pass under the words, "all my lands." There was no evidence, that the Sheriff sold the right to the defendant's father; His sale-book shows positively that he did not. In fact, is such a right capable of levy and sale, by a Sheriff, under execution? See Bac. Abr., Title Sheriff, N. 5, where it is said, that " if one be a tenant for years, without impeachment of waste, and a fi. fa. come put against him, the Sheriff cannot cut down and sell timber, for the tenant had only power to do so, and no interest, as he hath in standing corn, which, upon a f. fa. against him, the Sheriff may sell." In this case there was but a power, which the Sheriff could not levy iipon or sell. It is conceded, that he sold a part of tlie testator's land : but, admitting that he had the authority to levy upon the reserved right in question, this cannot avail the defendant, unless he put in execution and sold that right. His own sale-book, as well as his evidence on the trial, established most conclusively, that he neither levied upon or sold it. His deed to the defendant's father conveys it, but that is mere waste paper, without a previous levy, iipon all that the deed purports to convey. The only view in which the defendant can expect to be benefitted is, by showing that this right was appurtenant to the tract which he bought, and passed to the purchaser by the sale of the land, as an incident follows its principal. To be appurtenant, it must arise from the express words of the testator's will, or from the long asserted and exercised use of the right to cut timber from the particular tract on which trespass now sued for was committed. No one will pretend that the testator has made it appurtenant, by his will ; then, it remains for the defendant to show that he, and those under whom ho claims, have exercised this right, without interruption, for the space of twenty years. The testator died in 1825 ; his widow died in 1832, having occasionally cut timber upon the tract, now in possession of the plaintiff's cestui que trust, though not without frequent complaints and interruption on his part. The same state of things continued on the part of P. W. *Pledger and defendant's father, until March, 1840, wlu-n ^., this action was brought. So that, neither from long continued use, from the '- express words of the testator's will, from the sale of the Sheriff, or from private 874 COLUMBIA, DECEMBER, 1841. VOL. II. [*41 I'outract with P. W. Pledger, can the defendant establish any right to cut the timber in question. Tlie appellant's fifth ground has been anticipated in the remarks made upon the fourth. The attention of the Court is particularly called to the report of the presiding Judge, which, in every instance, speaks of the ^' right'' to cut saw-timber, and not vi the .-iaic-timber itself. If the defendant cannot establish liis right to cut timber, under the sale by the Sherifi", he must show that P. W. Pledger sold it to him, and that he had a right to do so. Curia, per O'Neall, J. The only ground, which will be considered, is the fourth. For the judgment to be pronounced upon it, will dispose of this case. The testator, in the third clause of his will, after the death of bis wife, devise to the plaintiffs, as trustees for the use of his daugh- ter, Mary Ann Emanuel, "the following tracts of land, one tract where Mr. Emanuel now lives, and the lower half of a tract, lying between Hereudeues Prong and Crooked Creek, nest to Mr. Crossland's land, (the sawing timber excepted.") Is this exception good ? If it is, the plain- tiffs are not entitled to recover. For the defendant cut none other, than the sawing-timber, in which the plaintiffs would, in that event, have no interest. I propose to examine this question, with the aid of such lights, as authority may give. For it is one of strict law ; and if the exception be consistent with it, no one can say it is contrary to the intent Df the testator. His words plainly show, that he did not intend to devise "the sawing timber." To begin with Lord Coke, Co. Litt. 41, a, it will be found, that after speaking of a reservation, he says, " and note a diver- sity, between an exception, (which is ever of part of the thing granted, and of a thing in esse,) for which exceptis, salvo, propter, and the like be apt words ; and a reservation, which is always, of a thing not in esse, *ioi '-"^^ newly created, or reserved out of the land or tenement. ^Poterit ''■^ enim quis rem dare ei partim rei reiinere, vel partim de pertin- entiis et ilia pars quam relinet semjyer cum eo est et semper fuit. But out of a general, a part may be excepted, as out of a manor, an acre, ex verba (jeneroli aliqwd excipitur and not a part of a certainty, as out of twenty acres, one. " This quotation, in its quaint English and Latin, is not exactly clear, at first view. But the meaning is, when there is a con- veyance, by general words, covering an entire whole, made up of such quantities, or things as may be separable, in such a case, an exception of a part is good, and does not pass under general words. It would, how- ever, be different, where the words defined the precise quantity conveyed, as twenty acres ; in such a case, an excei)lion of one acre, being incon- sistent with the i)revious grant, could not be allowed. Api)ly the law, thus explained, to this case, and it is plain, the exception is good. For Ihe dfvise is of two tracts of land, by general words, except the sawing timber. The devise of the land would, unless restricted, carry limber .-landing ui)on Die land. Yet it is but a part of the land, which the tes- tator might have severed from it, or sold to another, and being, therefore, a sf'pnrabic i)nrt, it might be excepted. But it is unnecessnry to follow nj) tliis matter, through the various authorities, to which reference might be made. The substance of them all, will be found in Preston's edition, of She))pard's Touch.^tone, mnrg. page, 78. 1st. vol. In that authdrity, the following pa.ssages are fuiuid. "And if one grant land, excepting the timljer trees iherciqK.n, or excepting the trees thereupon; or if a ^42] TERREL ET AL. VS. EASTERLING. 375 man sell a wood, exccjitiiip; twenty of the best oaks, and show which, in certain, (or to be taken at his election, or by assignment of tlie grantee ;) these are good exceptions." So, if one have a manor, wherein is a wood, called the great wood, and he grant his manor, excepting all the woods and under-woods, that grow in the great wood, and all the trees that grow eli;evvhere, this is a good exception." These sentences show plainly, that an exception of timber trees is good, provided it be sufficiently defi- nite, to ascertain what was meant. 'Vhe only objection, which could be urged to the exception under the will before us, would be, that the words " sawing timber," did not define, sutficiently, the timber intended *to r^ - o be excepted. But there can be no force in that objection, when it ^ is conceded, as it is by the report, that none but timber, of the character described in the will, was cut. Independent, however, of this, the terms "sawing timber," are of as certain meaning, as "timber trees" in Eng- land, or "rail timber" in this State. They mean such timber, as is pro- per to be sawed into boards and scantlin. In the pine region, it would be confined to pine timber. In oak and hickory land, it would embrace all the other varieties, which are sawed and used in boards, or scantlin. The motion for a nonsuit is granted. Richardson, Evans, Earle, Butler, and Wardlaw, JJ., concurred. Abstract fkom the will of Wm. Pledgee. 1st. All the real and personal estate, given to widow for life. 2nd. A tract of land, to Wni. E. Pledger, and negroes. 3d. To John Terrel, Josiah J. Evans, James Forness, James Irby, and W. E. Pledger, the tract of land, whereon Emanuel lives, (the sawing timber excepted.) and eight negroes; "in triist, nevertheless, to permit my daughter, Mary Ann Emanuel, to use and enjoy the same, to her sole and separate use, without the control or interference of her husband, during the term of her natural life, and after her death, to convey the same to the heirs of her body. But should my said daughter die, leaving no heirs of her body, surviving her, then I give the said above lands and negroes, to the said (trustees,) to permit my son, Philip Williams Pledger, to use, occupy, and enjoy the same, during his natural life, and after his death, to convey the same to the heirs of his body." 4th. Another tract of land and negroes, to same trustees, for Caroline Williams, with limitation similar to the above, with a devise over to Mrs. Emanuel, to hold by her, as in the 3rd clause. 5th. To same trustees, " all my land, which I have not hereinbefore disposed of," and twenty-three negroes, "to permit my son, Philip Williams Pledger, to use and enjoy the same, during his natural life, and after his death, to convey the same to the heirs of his body. But should he die, without any such heirs, then the said trustees are to divide tlie same, equally, amongst my surviving children, the issue of any deceased child, taking the share of any of my children, who may be then dead. But the shares of my daughters, Mary Ann and Caroline, are to be subje(;t to the same trusts and limitations over, as the estate, the use pf which is hereinbefore given to them. This clause is, however, intended to prevent my son, Philiji, from wasting the property. Therefore, should he prove to be indus- trious and frugal, I do, hereby, authorize and empower the said trustees, or a majority of them, should they think it prudent to do so, to convey the property hereinbefore described, to him absolute, whenever "he shall be married, and have a child or children," and in case both my daughters, Mary Ann and Caroline, should die without leaving any children surviving them, then I give the estate, hereinbefore left to their use, to such of my other childi-en, as may be then living, or their heirs. r*44 *6th. Ehzabeth Pledger, Executrix, during life, and afterwards the trustees. 376 COLUMBIA, DECEMBER, 1841. VOL. IL [*44 Elizabeth Pledger, qualified as Executrix. After her death, no one else has qualified. I certify, that the foregoing is a correct abstract of the will, of Wm. Pledger. JOS. DAVID, Ordinary, M. D. April 30th, 1841. See Clark, et al, vs. Way, 11 Rich. An. John M. Felder vs. Henry Bonnett. 1. On a question of location, a new trial will more readily be granted, than on mof?t other cases depending upon facts, in consequence of their near approach to questions of law. 2. Natural boundaries, in questions of location, are to prevail, unless there may be some doubt about them, and this doubt is certainly removed by artificial marks. In such a case, the artificial marks will have efleet, although of inferior degree. 3. Where a survey called for Dean's Swamp as a boundary, it was held, that the creek, or main stream of the swamp, was intended, and not the outer edge, or margin of low, marshy land, that frequently bounds the main stream. 4. The declarations of a tenant, after he has aliened his right and interest in the land, is inadmissible evidence to prove where a line ran, or a tree stood, (a) Before Richardson, J., at Orangeburgh, Fall Term, 1841. This was an action of trespass to try titles to a tract of land, lying on Dean Swamp. The decision of the case depends, mainly, on the location of the tract of land granted to William Hall, for four hundred and seventy-two acres, in January, 1792, from whom the plaintiff deduced title. A diagram is annexed, which will explain the questions made, as to the location. A. B. C. D. E. F. and G. represent the tract of four hundred and sev- enty-two acres, granted to William Hall. M. N. 0. and P. is a grant to one Clarke, for two hundred acres, dated June, 1772, now owned by the jilaintill". H. I. K. and L. represent the lines of a grant to Henry Me- iMifiiael, f(ir ninety-seven acres, dated 23d November, 1835, devised to defendant, and is the land in dispute. Numbers 4 and 5, are two tracts granted to Hall, in 1801, and now held by the plaintiff. The tres- pass was admitted. 1, 2, and 3, are in both McMichael's grant, and the grants to Clarke and Hall. *ifi1 *The William Hall tract, of 472 acres, calls, on one side, for the -I "edge of Edisto Swamp," and on the other, for "Dean Swamp," and on the side of Dean Swamp, neither course nor distance are given in the plat. It was insisted for plaintiff, that the 7'un of Dean Swamp was intended, and for defendant, that the edge of the swamp. No mark tree was found from D. to A., and tlie course and distance stopped chains Bliort of the run of Dean Swamp, at A., which is now, and has been for many years in cultivation. On tlie part of defendant, John Corbctt said, that at a survey of these lands, some twenty years ago, he was present with William Hall, Mr. Coalter, and Major Felder, on the dividing line, M. Q., and they found («) Bee Laud vs. Lee, 2 Rich. lO'J ; Kettles vs. Kettles, 4 Rich. 422. An. 45*] FELDER VS. BONNETT. 377 M /. 1 \ ' \ \\ ^ 11 ^ — E 1) 378 COLUMBIA, DECEMBER, 1841. VOL. IL [*46 a Pine corner somewhere about IS"., and, upon that occasion, Hall said he had not run to the creek. Objection was made to the admission of Hall's declarations, because made long after he parted with his interest, in 1798. The objection was overruled. On the part of plaintiff, Allen Porter stated that McMichael admitted the plaintiffs claim, before he run the 97 acres, and offered to purchase a small ])ortion within the lines of the grant which he obtained in 1835, below X. R. There were a few acres cultivated by those under whom plaintiff claims, within the lines of the McMichael grant. The line K. I. does not define the edge or margin of the swamp, and the surveyors differed as to the number of acres of swamp in the McMichael grant ; and they also differed in the representation of Dean Swamp, in con- nexion with the Clark survey. The plaintiff's surveyor locates the line N. 0., on the western side of the run, which is in conformity with the original plat, whilst the defendant's surveyor intersects the run with that line. The witnesses stated that the stream is, and always has been, called Dean Swamp. The jury found the following verdict : " We find for the defendant, all the swamp laud lying within the new survey granted to H. McMichael, in Dean Swamp, that is not covered by the Clark survey, nor the survey made in the Edisto River Swamp." ^ I --1 *The plaintiff appealed, on the grounds : '-' 1. Because the grant to William Hall, under which plaintiff claims to hold, embraces all the land in dispute, and being older than the grant under which defendant claims, the verdict should have been for the plaintiff. 2. Because the evidence clearly established, and the verdict admitted, the plaintiff's claim to a large portion of the land in dispute, yet the jury found for ■the defendant. 3. Because the verdict is uncertain, and does not define, or settle the rights of the parties. 4. Because the declarations of Hall, from whom plaintiff deduced title, made long after he had parted with his interest in the lands, ought not to have been admitted in evidence. Lastly. Because the verdict was contrary to, and without evidence. Curia, per O'Neall, J. Question of location approximate so nearly to i)urely legal questions, that a new trial is more readily granted for erfur in them, than in any other class of cases dependiiig upon facts. (w) For rules of location are legal rules, and the facts to which they are to be applied, arc often of such a character, that there can be no mistake in judging here of their effect. The first rule of location is, that natural l)oun(liiries are to prevail, unless there may be some doul)t about them, and this doubt is certainly removed by artificial marks. In such a case, the latter, although of inferior degree, will have effect. In the case bfore us, the survey of William Ilall calls for Dean Swamp as its N. K. boun- dry. The only difficulty which could arise, would be, w^hethcr the sur- veynr called for the swamp of tlie creek, or the creek itself, by the name ' ! I»';in Swamp. If there were any artificial marks, which would lead n.-. i'» <-oii(;lude that the surveyor stoi)ped at the margin of the swam]), then we would be at liberty to adopt it as the boundary; but, in their {o-\ heen any communication* on the subject, between Groner and the -' plaintiff. As between him and the defendant, it was competent for him to revoke, at pleasure, any order given for the payment of the money, before it was paid. If the undertaking was not such as I have supposed, and the understanding of the parties, likewise, why was not a check drawn at once on the treasury, in favor of the plaintiff, to pay Groncr"'s note ? I think there was no legal undertaking to pay, founded on any consideration, proceeding from the plaintiff, to sustain this action. The defendant might, gratuitously, have undertaken to collect this note for the plaintiff; if he did so, and the note was intrusted with him for that purpose, and he entered upon the performance of the trust, he would be bound to act honestly, and would be answerable for the damages, if he were guilty of culpable negligence. The action here, however, does not rest upon these grounds, which it will be time enough to consider when they come before us. The motion to set aside the decree, and to enter a nonsuit, is granted. O'Neall, livANS and Wardlaw, JJ., concurred. Butler, J., dubilante. RicHAiiDSO.v, J., dhsenting. The only important question in this case, ia, whether there was any legal consideration, to support the written nssumplion of Fort, to pay the note of Groner ; and, thereby, render his assumption binding in law, according to the statute of frauds. Groner had requested Fort to pay the note to Pope; whereupon, Fort t(Jok possession of the note, which was payable to bearer ; Fort then made his written assumption, upon a copy of the note. What was the consideration ; whether the note was assigned, by the delivery to Fort, *63] POPE VS. FORT. 389 or was placed in hi.s bands, as an indemnification only ? Still, Fort either accepted it as, and for a guaranty, or as assignee by the delivery. In either case, it was a security for his assumption and, therefore, a valuable consideration. If he took the note as his own, he was fully paid for his assumption. If he took it as a bailee, he then held a i)ledge for *his indemnity from loss. Fort could not lose, in any event. For r.^^ , he undertook to pay the note, only in case he received Groner's L money. But he chose, for greater security, to hold the note, while, at the same time, Groner was precluded, by Fort's assumption, from all claim to his money. Here were, then, two considerations for Fort's assumption; the deposit of the note, payable to bearer; and Groner's preclusion, from his right to the money, by his own authority. Thus Fort stood secured, and counter secured. And either was enough ; if we are to regard the doctrine, so well laid down in Eggart vs. Bm^nnhire, in 3 McCord's Reports, 163, and so fully reconsidered in the case of Filer & Givens. To show how small a consideration is required to support an express moral contract, and to prevent good faith being broken, for want of it, see the cases collected in note "A." in the ap- pendix to 3d McCord's Reports. In the case of Duncan vs. Gadsden, Harper, 364, the written assumption on Ogden's note, was this; "the within amount, I promise to i)ay, when in funds, for Robert Ogden ; the ])eriod not to exceed six months." But the funds were not proved, and the case failed. But, suppose the funds had been received, then, would not the consideration have been good, or must the consideration be, always, in preaenti '} In such cases, I apprehend, that the consideration is money expected ; which, when realized, by the receipt, verifies the con- sideration ; which was before, (like the assumption itself,) executory and conditional only. It is like the acceptance of a bill, if the funds of the drawer should come to hand, which is a binding contract, only, if the funds come. Here, the consideration is executory, not in presenli, yet good in law. But, without urging the doctrine so far ; I ask, if Groner could have recovered the money of Fort, after Fort had assumed to i)ay it, at Groner's request, to Pope ; and, also, held Groner's note, payable to 'bearer, for the very amount ? He could not. Then, was not Fort equally bound to pay it to Pope ? He certainly could not, legally, keep it for himself. Substantially, Fort had the conditional release of Groner for the money, had fulfilled the condition, by his express assumption to Pope. But, he prudently took the note, for perfect safety sake. How these facts can be construed into no consideration "^for his assump- ^^ . tion, I cannot perceive. It seems to me, that the statute was L fulfilled to its letter ; and the rale of the common law, airainst " nuda Xmcta,^^ to its reason and spirit. In the case just decided, of Moo7'e vs. jDenson,(^) Ballard jdaced in the hands of Hemphill, the note of Denson, to counter-secure Colclough, for his assumption, to pay Ballard's debt to the bank. Xow if Colclough, upon this security, to pay Ballards' debt to the bank, was not bound so to pay, then the assign- ment of Benson's note to him was a nudum pactum and void, and our decision is erroneous. But, suppose Colclough had afterwards actually received the money of Denson, and had chosen to pay it over to Ballard, (rt) MS. 390 COLUMBIA, DECEMBER, 1841. VOL. II. [*65 instead of tlie bauk, how could that have lessened his liability to tlie banl< ? This was what Fort did; he received the money, realized the consideration of his promise to Pope, and chose to pay the money over to Groner, instead of Pope. But, was not both he and Colclough in the coraraoa situation of a surety, who undertakes, in writing, to pay the debt of a third party, after being indemnified. Or of a broker, who lends his name for a premium, or upon counter-security being first placed in his own hands. But the proper way to adjudge the case, would be to take it at the moment before Fort paid the money to Groner, and ask, to which of the parties would the Court have assigned it, under the statute of frauds, which so wisely requires an assumption in writing, in all such cases, and under the common law, which, as wisely, requires some consideration, or good cause for the assumption, to be either expressed or proved ? The rest of the case is not very important, but I would save it from any estoppel in law, which would go to fix a principle for other cases. *G6] *H. A. Culpepper vs. E. B. Wheeler et al. In an action of trespass to try titles, to a tract of land, in order to give in evidence an attested copy of the deed, under wliich the party claims the land in dispute, it is only necessary to prove the existence of the original and its hiss. That it cannot be found after a diligent and proper search, with those who should have the possession of it. Before Earle, J., at Marion, Fall Terra, 1841, who made the subjoined report. The land in dispute was granted to Henry Lambert. The plaintiffs are the heirs at law of Mary Godbold Smith, and claimed one half of the tract under a deed of conveyance, said to have been made by Laniljcrt, tlie grantee, to Mary Godbold Smith and her sister, Julia Ann Smith. The original deed was not produced, and an office copy was allowed to be read in evidence under the following proof. The deed purported to bear date 9lh February, 1805, and conveyed two hundred acres, the lower part of the tract granted to Lambert, by specific boundary. James Tait married Julia Ann Smith, one of the grantees in the deed, and entered upon her portion of the land in 1825, under that deed, which she had in iier jiossession at the time of her marriage. He and his wife sold and conveyed their part of the land to Benjamin Holt, and he supposed he gave the original deed to Il(;lt, who afterwards sold and conveyed that part of the land to the defendant Wheeler, who has been in jiossession ever since. The (Iced, from 'I'aitand wife to Holt, was executed in 1830, and from Holt to the defendant in 1832. Holt is now living in Mississippi. It appeared further in evidence, that Wheeler had also claimed to have accpiired title to llif moiety of the land belonging to Mary G. Smith, or to the plaintill's, her ludrs, ulthougli he did not set up this title on the trial. A.L. Scarborough purcliascd this part of the land from the defendant, and took a convey- ance. But he subsequently sohl and re-conveyed to the defendant. The *6G] CULPEPPER VS. TTIIEELER ET AL. 391 original deed from Lambert was not in liis possession, nor did he see it. If delivered by Holt to the defendant, it was retained by him, as he was in i»ossession of the remainder of the land. The witnesses to the oritri- nal deed, or persons bearing the same names, were living in the neigh- borhood at *the date, but are now dead. The deed appeared to p^^_ have been proved and recorded about 1828, and Levi Oldliam, before ^ whom it purports to have been proved, was then an acting Justice, and is still living. The defendant was a deputy in the office of the Clerk and Reg- ister at tlie same time. Written notice was given to the defendant to produce the deed, and his return in writing was read, stating, that after diligent search among his papers, the deed could not be found. On the foregoing proof, I allowed the office copy to be read in evi- dence, and the plaintiffs obtained a verdict, which it is now moved, on behalf of the defendant, to set aside, on the ground, that the existence and loss of the deed of Henry Lambert to Mary G. Smith and Julia Smith, was not sufficiently proved to authorize the admission of an office copy in evidence. Darr/an, for motion. 1 Bay, 495 ; 1 M'C. 318; 2 Hill, 525 ; Id. 542. Sims, contra. 3 Stat, at Large, 303, § 30, A deed is as good evidence as the original and ought to stand. He calls for a review of Purvis vs. Robinson. The Court refused permission to argue that question. Curia, per Earle, J. The argument on the part of the defendant assumes, that in order to admit an attested copy of the deed from the register's office, it is not only necessary to prove the existence and the loss of the original, but that there should be some proof of the actual execution ; no case has gone thus far. In Purvis vs. Jiobi)ison,(a) it was only held that the record, or an attest copy, should supply the loss of the original. So in Dingle vs. Bowman, and in Turnipseed TS Hawkins, 1 McC. 177-272, it was held only necessary to prove the loss of the original, in order to admit the attested copy as secondary evidence. The cases of Peay vs. Pickett, and JPLaurin vs. Talbot, [h) have introduced no change in the rule, but relate only to the kind and degree of evidence which shall be deemed sufficient to establish the loss of the original ; and both result in the same conclusion, that there is no better way to prove the loss of a thing, than to show that it has been sought for *where it ought to be, where it is usually kept, and might be ex- r^/.q pectcd to be found, and that it has not been found. It is true Mr. ^ Justice Harper, in JPLaurin vs. Talbot, sjjcaks of the jn-oof afforded there, of the deed's existence ; and says, it is hardly possible to prove the loss of a deed, without giving some evidence of the existence and contents, or gen- eral purport. The evidence in the case before us, of the existence of the original deed, as a genuine paper, is fuller and stronger, than it was in 3PL'nirin vs. T'llbot, and of the same kind. Tait, who married one of the grantees, in the deed, and under whom the defendant derives title, found in the hands of his wife, at the time of their marriage, a deed pur- porting to be a conveyance from Lambert, such as the plaintiffs set up for the land in question ; under that deed he entered upon the land as his wife's property, and held possession until he sold to llolt, who entered, («) 1 Bay, 493. .!«. (6) 3 M'C. 318 ; 2 Hill, 525. An 392 COLUMBIA, DECEMBER, 1841. VOL. II. [*68 and afterwards sold to the defendant — and he has been in possession ever since, claiming title to the moiety of Julia Ann Smith, under the same deed, the existence of which he denies, and requires to be proved. The entry of one of the grantees, and the continued possession since 1825, under her title, affords abundant evidence of the existence of the deed as a genuine paper, as well as of its general contents and purport ; even if the cases, on the construction of the Act of 17 31, (a) required such proof. The language of the Act is, that the records of deeds, " duly proved before a'jastice of the peace in the usual method, and recorded, &c., and also, the attested copies thereof, should be deemed to be as good evi- dence, in law — and of the same force and effect, as the original would have been, if produced." It has been held that the original, if in exist- ence should be produced. If lost, or if, after proper search, it cannot be found, its being proved in the usual mode, before a justice of the peace and recorded, is, I apprehend, suCQcient evidence that it once had exist- ence. Xext, as to the evidence of its loss. It was delivered to Holt, who conveyed to the defendant, in 1832. The title deeds should accom- pany the possession, and be in the hands of the owner. And it is a rea- sonable conclusion of fact, as well as a presumption of law, that when n-.nni Holt conveyed to the defendant, he likewise delivered the *title -^ deed. Holt is a resident citizen of a distant State, not amenable to process issuing here, and incompetent as a witness, if he were. If he did not deliver it to Wheeler, the deed may well be considered beyond the reach of the plaintiffs, and, therefore, lost ; and if delivered to "Wheeler, which is far more probable, we have his own declaration, in wriiing, that after diligent search the deed cannot be found. If, under such circumstances, the attested copy from the records is not competent, the registry of deeds is a mockery. The whole Court agrees that it was properly received, and the motion is refused. Richardson, O'Xeall, Evans, Butler, and Wardlaw, JJ., con- curred. Darrjan, for the motion. Sim?i, contra. See O'Neall vs. Lhell, 9 Ricli. 374 ; Act of 1843. 11 Stat. 255. An. TiiK Treasurers vs. The Executors of McPherson. The Same vs. The Same. After tlio lai)so of twenty years, the conditions of a Sheriff's bond will be pre- sumed to have been performed. Before O'Xeall, J., at Gillisonville, Beaufort District, Spring Term, 1841. Those were actions of the debt on the official bonds of Deveaux, Ford and Ferguson, former Sheriffs. They were brouglit to recover sums received by them for the State, and with which they were respectively charged on the l)Ooks of tlie Treasury, more than twenty years before action was broujjht. The only question made in the cases was, (a) 7 Stat. ITU, I 39 ; See Purvis vs. Robinson, &c. *70] LESLIE AND CALHOUN VS. TAGGART, ET AL. 393 *whether, after a lapse of twenty years, performance of the duties, p^.^^ conditioned to be performed in an official bond, would be pre- ^ sumed. The presiding Judge held, that it would. The plaintiffs sub- mitted to verdicts for the defendants and appealed. Because the Court erred in deciding' that, after a lapse of twenty years, perforinaiice of the duties conditioned to be performed, in an official bond, would be presumed. Curia, per O'Neall, J. "We are satisfied with the decision of the Judge below. It has been again and again ruled, that the presumption of performance of the condition, upon an official bond, from the lapse of time, will arise, as well as the presumption of payment of a money bond. It is no objection that the State is the party against whom the presump- tion is set up. It is true that the maxim " nullum tempus occurrit regi,^^ applies to the State, but by that I understand that the King, in England, find the State, here, cannot be barred by the statute of limitations. A legal presumption is not set up as a statutory bar. It is a legal conclu- sion after the lapse of twenty years (without some countervailing proof,) that a fact then existed, (which cannot now be proved,) sufficient to defeat the right of the State. Such as that the State, twenty years ago, granted a tract of land, or received the money charged on the books of the trea- sury against the Sheriffs, Ford and Ferguson. The motion is dismissed. Richardson, Evans, Earle, Butler and Wardlaw, JJ., concurred. Edwards, Solicitor, for the motion. Singleton, contra. See 11 Rich. 424. lin. ♦Leslie & Calhoun vs. James Taggart, et al., sureties of r^^-, John Taggart, Sheriff. '- ' The sureties to a Sheriff's bond are not liable for the costs, incurred in establishing a nulla bona return against their principal. Before O'Neall, J., at Abbeville, Fall Term, 1841. This was a suggestion filed by the plaintiffs, to recover, on the bond of Jno. Taggart, late Sherifl" of Abbeville district, the cests incurred by them in establishing a nulla bona against him. The jtrcsiding Judge ruled, that the sureties were not liable for such costs, and therefore quashed the suggestion. From this decision, the plaintills appealed, and moved to reverse the same, on the ground of error, in the decision of his Honor, the presiding Judge. Wilson, for the motion, cited and relied on 2 Vol. Stat. HOG, marg. p. 1120, and 1 HUI, 398. Wardlaiv, and Perrin, contra : Submitted the case without argument, or refer- ence to arrthority. Curia, per O'Xeall, J. In this case it is only necessary to look into the defendant's bond, to decide that they are not liable for the costs of 394 COLUMBIA, DECEMBER, 1841. VOL. II. [*71 cases, to establish a return of "nulla bona," against their principal. The condition is " that Jno. Tagrffart shall well and trnly perform the duties of the office of Slicriff, of Abbeville District, as now, or hereafter required by law, daring the whole period he may continue in office." Under it they are liable for money, by him collected and not paid over, and for all damages sustained by his failing to perform his duty But they have not undertaken to pay the costs of cases, which might be brought against their principal, and much less have they undertaken to pay the costs which may be incurred, in establishing a nulla bona. The Legislature required the plaintiffs to obtain that evidence, before they could resort to the sureties. It was one of the guards interposed between them and the Sherift"'s creditors. But there is nothing in that which can make them liable. They have the right to say there is our bond, according to it we will pay, beyond it we will pay nothing. The motion is dismissed. Gantt, Richardsox, Evans, Earle, and Butler, JJ., concurred. See Supra, 21. 10 Rich. 445 ; 8 Rich. 413 ; 4 Rich. 212 ; 1 Strob. 27 An. *T2] *JoiiN W. Smith rs. Jno. Pickenpack. The possession of a small slip of land, for ten years, (adversely,) witli a fence, will give a good title to tlie laud, under the statute of limitations. Before Butler, J., at Spartanburg — Extra Term, 1841. This was an action of trespass to try title to a small slip of land of fifty yards length, and one link in breadth. Or it might better be characterized to say, that it was to try the right to a fence. Both parties claimed under a Mr. Bearden, who had divided a tract of land between his two sons, John and Ben. The plaintiff claimed under Ben, and the defendant under John, through intermediate owners of the land In 182.3, Wynne Bearden, the son of Ben, run a fence from the road to the opposite side, on what he supposed was the dividing line. In 1826, the defendant, who was then the owner of the other part of the land, pe- titioned to Wynne Bearden to join fences. Permission, however was refused, and Pickenpack, the defendant, to enclose a new ground, run his fence obliquely till it struck Bearden's fence, at a ground pole; and thence run it parallel with the other to the road, interlocking all that way— so that, at onetime, there were two fences standing. 'One dis- appeared, and the cpiestion was, whose fence had been left, as the common dividing fence between the ])arties. Dr. Smith, the ])laintiff, who became the owner of his land (the Bi:n Bearden part) in 1830, contended that the orv/uv.y] fence, put up by Wynne Bearden, was left, and that defendant had joined to it— whilst the defendant contended that plaintiff had taken down his fence, and joined to the one put up by him (defendant) in 1826. The evidence was satisfactory that the plaintiff had joined to defendant's fence, and had taken his away sometime in 1826, or 1827. The jury so found, fur they foun. and D. to intersect on it ; and the course of both these lines would go to an island. On the line from D., a station is fouiid at H., and the distance *called for would stop at C, on an island r-^.^^n without crossing the creek. It could never have been supposed '- by the original surveyors, that the lines from B. and D. should cross Bull Swamp, before they intersected ; otherwise they would have represented the creek as they did the island. To get to K , the creek is crossed twice, and the course from B. widely deviated from, and the distance from D. greatly extended ; not only perverting the shape of the original plat, but making a corner where there was no island to be found ; for it was not pretended that any island was found to the right of Bull Swamp. It appears to me clear, that the fourth corner must be located on an island, and that C. is on the very island represented and called for, as no other was found corresponding with it. This is a conclusion drawn from an inspection of the plats and grants, and is abundantly warranted by the positive, and, I think, satisfactory evidence of the witnesses, par- ticularly that of Pearson, (a) In questions of location, juries will not be allowed by the Court, to commit palpable errors. We think the jury, in this case, has committed such an error, and, therefore, grant the defendant's motion for a new trial. Richardson, O'Neall and Evans, JJ., concurred. T. W. Glover, for the motion. Whilmore, Solicitor, contra. ^Alexander Young vs. John A. Kennedy. [*S0 1. When a defendant, in an action against him as administrator, fails to i>lead ^^p/rne administravit,'^ but rests his defence upon the plea of ^^non est factum,'^ or some other plea, and a recovery is had against him on such plea, the judg- ment thus obtained is ' ^ prima facie' ^ evidence to charge the administrator in an action suggesting a ^' devasturit;^^ and the return of nulla bona on the execution, is evidence of the same character. 2. Tlie return of nulla bona is not conclusive, and the defendant is not precluded from showing tliat he had no assets of the intestate's estate to be administered. Before Butler, J., at Kershaw, Fall Term, 1841. This was an action of debt, suggesting a devastavit, so as to make the defendant liable for a debt which had l^een recovered against him, as the administrator of his brother, Andrew Kennedy. Plea, not guilty, and issue joined. In the action against defendant, as administrator, on a sealed note by his intestate, he pleaded " non est factum.''^ This was the only plea. The jury found a verdict for the plaiutitf, October Term, 1840. Judgment signed 31st October, 1840, nud Ji. fa lodged same day, to make the money out of the effects of intestate, &c lleturn by the sheriff, nulla bona. The plaintiff closed, contending that he had made a j9?'imra facie showing, that defendant had had in his possession assets to pay the debt, and had wasted them. A motion was (a) Supra, 47. An. 400 COLUMBIA, DECEMBER, 1841. VOL. IT. [*80 made for nonsuit, upon the ground that plaintiff had not made a suffi- cient showing to recover in this action against the defendant. The Court overruled the motion, and the plaintilf took his verdict for the amount of his debt, &c. The defendant moved to set aside the verdict, and renewed his motion for a nonsuit in the Court of Appeals, on the ground, that the showing of the plaintitf was not sufficient to entitle him to recover in this action against the defendant. Mr. Smart, for tlie motion. 1st Sauud. Note 8, 219 ; Rice's Rep. 219. Mr. De Saussure, contra. States the question, whether the judgment recovered, and nulla bona returned, will charge the defendant. 1st At. 292 ; Bac. Ab. Tit. Ex'ors and adm'rs, let. M. Givens vs. Porteous, 1 McC. 379. ^Q, -| * Curia, pei' Butler, J. The precise point ruled on the circuit, -' and that upon which the judgment of this Court is now asked, may be thus stated : When a defendant in an action against him as adminis- trator, fails to plead plene achninistravit, but rests the defence entirely on some plea denying the liability of the intestate, such as payment, or 7io?i est factum, &c., and a recovery is had against him on such plea, is not a judgment, thus recovered, prima facie evidence to charge the ad- ministrator in an action of debt, suggesting a devastavit ? and if so, is not the return of nulla bona, on the execution in the case, evidence of the same character, to show that the assets which were administered, had been wasted ? An affirmative decision of this proposition, does not de- prive the defendant of an opportunity of showing that he liad no assets of the deceased to be administered, or to show that he had not wasted them. Such a decision as thai might, in this State, operate unjustly, as it might be in the power of the administrator to show that, instead of wasting the assets, as might be inferred from the sheriff's return, they had been taken away from him subsequent to the first trial, by the judg- ment of a competent Court ; or, perhaps, that he had regularly disposed of them, according to law, to superior demands, (a) I am not, therefore, pre- pared to go so far as to say, that if an administrator or executor omit to plead pley^e administravit in the first action, and a verdict is had against him, it operates as a conclusive admission of assets ; or that nulla bona should be held as conclusive evidence of devastavit. The English deci- sions would seem to go this far. In the case o^ Ervinrfs Executors vs. Peters, 3 T. R. G85, the subject was fully considered. The defendant had been sued on a bond executed by his testator, and others, twenty-four years Ijcfore suit l)rought. lie put in a plea of payment, and a verdict was had against him on such plea; ^ fi. fa. was taken out on the judgment, commanding tlie sheriff to cause the debt and damages to be levied of tlie goods and chattels of the testator in the hands of defendant, if he had so much thereof in his hands to be administered, and if he had not so much, &c., then to cause tlie said damarjes, {only) to be levied of the *821 V^^'^V^^ goods and chattels of the defendant *himself. Upon this, -• the sheriff, after calling to his aid a jury to try the question, certi- fied that no goods could be found, eitiier of the testator, or defendant, in his bailiwick, (the same having been taken away,) to satisfy the debt or damages. This was all the evidence of a devastavit that was offered by (a) See 1 Sp. 277. An. *82] YOUNG l-S. KENNEDY. 401 pliiiiitiff. The Court held tliis sufficient, and, indeed, a couchisive ii(Jniission of assets. Lord Kenyon strujrjried hard to free himself from the restraints of autliority, sayinj^ it struck him as extremely hard on the (iefenihint, but as hard as it was, he must submit to the law, as it had l)eeii settled by the current of authorities. His lordslup further remarked, '• that it seemed extraordinary, that the judecment in the first action, should not be a judgment de bonis jjropy-iis, if the executor be liable, at all events." Buller, J., had no such difficulties; but said the law was both well settled, and agreeable to reason, He concludes his judgment in the following terms: " Here, the simple question is, whether an exe- cutor or administrator, who has no eifects in his hands to be administered, and will not take advantage of that defence at the proper time, shall be permitted to do it afterwards. Now, it is an universal principle of law, that if a party do not avail himself of the opportunity of pleading matter in bar to the original action, he cannot afterwards plead it, either in another action founded on it, or in a scire facias. According to these views, the defendant in the case before the Court, would be barred by the recovery in the former action, from setting up any defence in this. Although, in form, the judgment was against him to be satisfied, de b'oiis tesfatoris, yet, in effect, it wonld fix liis absolute liability. I think in justice, however, he should not be placed in this situation. But he should l»e rather regarded as standing in the position of a defendant, who had pleaded plene adniinistraint, with a finding of assets in his hands. In such a case, a judgment would be only good for the amount of assets found, although it would be a falsification of the plea denying any assets. In the foregoing decision, Lord Kenyon refers to the decision of Lord Mansfield on this point, in the case of Harrison vs. Beckles, "There, to an action of assumpsit, the defendant pleaded non assumpsit and plene admiuistravif..''^ It was insisted, that if the plaintiff could prove* r;;:oq assets administered to any small amount, the plaintiff must have a '- verdict for the whole of his demand. But Lord Mansfield said the law was certainly understood to be so, and there were a hundred cases so determined. This struck him as wrong and absurd ; and after consulta- tion with the other judges, it was agreed that the plaintiff ought not to recover ttf the executor, more than the assets in his hands The jjlaintitf proved two notes, which amounted to i.'80, and took verdict on the non assumpsit for that sura, and having proved £25 assets unadministered, he took a verdict on i\\Q pleyie administravit for that sum, and judgment quando, &c., for the residue." In the case under consideration, I think it was competent for the defendant to have limited the verdict to the actual amount of assets which he had in his hands to be administered. It would be unjust to punish a defendant, who, as administrator, believed no debt was due, with the absolute payment of the debt; because he failed to sustain a plea put in, in good faith, such as payment, k(i., denying the existence of the debt. But an omission to plead piene odniiniMrnvit, will, in all cases, raise the presumption that the defendant has assets sufficient to pay the debt; and, in a second action, suggesting a decastafit, a plaintiif should not be required to prove the assets, l)ut the onus should be thrown on the defendant to relieve himself from liabilitv, by either show- VOL. I— 2T 402 COLUMBIA, DECEMBER, 1841. VOL. II. [*83 ing that he had nothing to satisf}- the judgment, or the extent of assets inhis hands, &c. This the defendant refused to do, when he had it in his power to have made a satisfactory development of his administration. I presume, however, as well from the ground of defence taken by defend- ant, as from what was stated in argument, that he ought to pay the debt, and that the verdict is entirely correct. The judgment of the Court was founded in a most favorable interpretation of tlie law; and the defendant has no cause to complain. I would wish to limit the judgment to the point made, to wit : that tlie evidence to charge ])laintitf was, at least, 2)rima facie. The plaintiff might have contended, under English de- cisions, that it was conclusive. Until, however, the law is thus settled ^ -| here, I shall be satisfied with the decision made on *the circuit, -J which being confirmed, the motion of defendant is refused. Richardson, O'Xeall, Evans, Earle, JJ., concurred. See Caldwell, Administrcitor of Charr vs. Miclieau, Administrator of Bromc, 1 Sp. 276, holding the evidence conclusive. 2 Hill, 450. Rice, 323. A?i. The Camden Orphan Society vs. Joseph Lockhart, et al. 1. The statute of limitations, will run against the title to lands, claimed by a cor- porate body, such as the Camden Orphan Society. 2. Wliere a party enters upon land, as the tenant of another, he cannot dispute the title of the party, under whom he entered, by attorning secretly to a stranger. Before Butler, J., at Kershaw, Fall Terra, 1841, who reports the follow- ing statement of facts : This was an action of trespass, to try titles to a tract of land, con- taining five hundred acres, lying on Deep Fork of Black river. It appeared from papers on record, in the office of the Secretary of State, copies of wliicli were given in evidence, that the land in dispute had been in a grant of forty-eight thousand acres, to Thomas Lowndes, made by the Lords proprietors, in 1721, and that the same lands had been receded by the grantee, Thomas Lowndes, to the crown, after it assumed the government of the Province of South Carolina In 1775, Edward Lowndes, had the laud in dis]iute, with several other tracts of five hundred acres, surveyed for him. The survey was made by one John Belton, D. S., and was recorded in the proper office. A memorial was al.so recorded in the same office, purporting to have been made by Edward Lowndes, and certified I)y the same John Belton, in which it is recited, *851 '''^' ^'^^^® '"'"'^ '""^ '^*''^" granted to *E(lward Lowndes, with a J reserviition of quit rent to the crown. No grant could be found in the land .ifficcs, as appeared by a certificate of the deputv Secretary of Stale and the deputy Surveyor General. The plaintiffs made the usual ofUdavit. that no sucli grant was in their possession. They relied upon the above statemejit of facts, to raise the i)resumption of a grant, and that it had been destroyed or lost, k21, made his possession, the posses- sion of tlie plaintiffs. 5. Because from the legal proceedings had, the question of tenancy was one of law, not fact, and his Honor should have so charged the jury, and not left it to them to decide. J. J/, pe Saussure, for the motion, Reads the acknowledgment of tenancy, 1S21. Nonsuit in 1S24, by the production of the written memorandum of tenancy. This is inconsistent with this verdict. His defence, on the ground of this tenancy, was a renunciation of his defence under Mdore, .O Stat, at Large, 4S, Escheats 3. Within five years, party comes in and compensation. Wm. F. Dp. Smisnurp, contra. Was Jloore a party to the inqiusition of escheat ? It merely applies to the heirs of the parties seized. 2 N. k Mo(;. i570, note :573. Title acquired by tenant, cannot be set up. Harjier 70, l^cr. vs. Dmnis. Law Journal, 114, 125. QiiM-n,'. How can J-ockhart's possession be adverse after the recognition of the plaintifTs title, by becoming their tenant. Curia, per Butler. J. I shall regard this case here, as it was regarded on the Circuit. As a contest between the plaintiff and the *88] CAMDEN ORPHAN SOCIETY r.s. LOCKIIAliT ET AL. 405 lioirs of Moore. The grant under wliich the defendants claim, can avail iliera notliiiip:, except as color of title, to indicate the extent of their pos- session. For it could have availed them nothiiij!;, during the lifetime of Lowndes, as tiie land was, at his death, in the actual jiossession of no i>ne; and after his death, while the title was in the State by esclieat, it was not the subject of grant. At Lowndes's death, the title being in the State, as was established by the proceedings is escheat ; the Statute of Limitatioiis(a) could not run against the State, in favor of Moore or *any one else. It may be assumed, as it is stated in the foregoing r^on ])roccedings, that Edward Lowndes died in 1790. At that time, ^ then, the right to the laud, reverted to and was vested in the Slate, and was subject to be sold under the Act of 1787,(6) or to be disposed of, l)y any specific legislative enactment. By an Act of Assembly, passed in 1779, ((') the escheated lands in Kershaw district, to the amount in value of 89000, were vested in the Camden Orphan Society, which, as a corporate body, had power to sue for these lauds, as fully as any natural person would have had, under a general grant. Tlie jilaintiffs having thus acquired this right, under a special Act of legislation, must be governed l)y the same legal principles, that would operate on other i)roprietors.-. These general propositions are fully sustained by repeated decisions of our own State. The case of Wilkins vs. Ttui, 3 McC. 518, establishes the point, that the Statute of Limitations will run against the trustees of an Academy, who had vested in them the title of escheated lands by a special Act of the Legislature. Not from the time of inquisition and office found, but from tlie time the title was cast upon or was acquired by the trustees. Moore, by his tenant, Lockhart, took possession of the laud in contro- versy in 1815, and held it adversely till 1821 without question. Tiiis was a period of six years and by the operation of the statute, he acquired a perfect title to the exclusion of all the world. The question then pre- sents itself; has he been divested of tliat title by the adverse possession of plaintiffs after that time. From 1821, it is contended that the plain- tiffs were in by the possession of Lockhart as their tenant. Whether Lockliart continued to be the tenant of Moore, or had become and was the tenaiu of plaintiffs, after that period was a question of fact that was sul)mitted to the jury on the evidence. It does appear, that in 1821, Lockhart entered into an obligation to pay rent to plaintiffs. Whether he ever jtaid the rent for that year, or acknowledged his liability to pay it afterwards, did not appear. I think the evidence well warranted the conclnsion, that after that year he continued to hold for Moore. For, in 182(), Lockliart actually bargained in the '''name of Moore, r*(\,( part of the land to Porter, who is now in possession, under ^ Moore's title. But I hold it out of the question that the plaintiffs could have availed themselves of Lockhart's possession to defeat Moore's title, uidess it could have been shown, that Lockhart had assumed an open and hostile attitude to his original landlord. Having entered under Moore, he could not dispute his title by attorning, secretly to a stranger. The law will not allow the rights of a landlord to be prejudiced by the treaciierous conduct of his tenant. Before a tenant can claim against his ('/) Supra, 70. An. (i>) 5 Stat. 46. An. (r) 5 Stat. 3G3. An. 406 COLUMBIA, DECEMBEK, 1841. VOL. IL [*90 landlord he must give him open notice directly or by some decisive act, that the tenant is holding in his own right, or in that part of another. No such notice was s:iven to Moore. On the contrary, he had every reason to believe that^Lockhart was always holding in his right, Moore was not even made a party to any of the proceedings against Lockhart, and there was not the least evidence that he knew of Lockhart's having entered into anv obligation to pay rent to plaintiffs. Upon this point we are well satisfied with the finding of the ju^\^ The ground was taken, though I think not seriously insisted on, that after the land was sold, under tne proceedings of escheat, the title of all parties having any claim to the same, was thereliv and then, extinguished and barred. Upon read- ing the Act of 1787, it will be found, that these proceedings were con- clusive alone, on the representatives of Lowndes, and could not affect strangers to them. Motion refused. Richardson, O'Neall, Earle, and Evans, JJ., concurred. *91] *WiLLTs Benson vs. M'Bee & Alexander. J. Richardson vs. The Same. J. Hawkins vs. The Same. E. Hawkins vs. The Same. S. Turner vs. The Same. Where grain, received at a mill as toll, was mixed up, and became the subject of traffic, between the defendants, each being part owner, and interested in the proceeds of the sale. It was held that they were partners, in that particular business. Before Butler, J., at Greenville, Extra Court, August, 1841. This was an action of assumpsit for grain sold and delivered to the defendants, as partners. Tlie grain (wheat) was delivered to Alexander alone ; luit it was alleged on the i)art of the plaintiff, that it was delivered to him while he had cluirge of McBee's mill, and as the partner of McBee. The whole question in the case was, ivhether Alexander bought grain on account of himself and McBee, as partners, or exclusively on his individual account^ This depended very much on the course of dealing with tlie public, and the fact, whether McBee had shared in the profits of wheat bonglit l)y, and delivered tf), Alexander. It appeared by articles of agreement entered into by McBee and one Michael, dated 2(lth June, IM'2'.), that the latter was to take charge of McBee's mill on Reedy River, neur (ireenville Court House, and was to have one-third of the tolls as a conipcMsalion for his services. The agreement contained a clause to the effect that .Miclnicl was at lil)crty to manufacture the wheat, arising from the lolls, into Hour, and to sell it on account of McBee and Michael ; the former to have two-thirds of the nett profits, and the latter one-third, and Itoih to !»o lial)le for l)ad dcl»ts. (See the agreement, which is not before me.) Tills agreement continued in force till April, 1830, when Michael ^91] BENSON ET AL. VS. m'bEE & ALEXANDER. 407 (luit tlie mill, alleging that he could make nothing by it, and Alexander took charge of it, under the same agreement, with a memorandum endorsed thereon, to this effect : that the said agreement was mainly to govern the parties. Some short time after, Alexander took charge of the mill, which was enlarged, by the addition of another mill-house. He commenced the purchase of grain, to raise and sell pork, &c., &c. For grain thus bought, he would give his individual *note, at some p^^ times, and at others would settle for it by giving credit to customers •- at the mill, on their action for flour, bran and pork sold to them. These accounts against such persons were kept in books, marked the books of McBee iS: Alexander. These accounts, thus kept against the dealers at the mill, were readjusted and settled in a book, purporting to be one between McBee & Alexander themselves. The books were kept with some complication and confusion, and will again, as they were on the trial, be referred to l)y counsel. Tliey were called for, under notice by the plaintilf, and were relied on to show that McHee had received, in his settlement with Alexander, a share of the profits of pork, beef and flour, sold by Alexander, and that he had, thereby, recognized Alexander as his general partner in all the transactions of the mill. These books, and the following evidence, will put the Court in possession of the case. Edmund Waddill said lie had known the mill for many years — Alexander kept it for fourteen years — ijuit it at his failure, which occurred siiddenly, some short time before the commencement of this action — has seen the parties settle frequently — McBee required an annual settlement of their accounts, and on such settlement, he would take two-thirds, and give Alexander one-third of the profits — the mill ground a good deal of wheat, and had many hired hands employed about it. A. co-partnership wagon and team were attached to the mill — it did the hauling for the mill. Besides the wheat arising from tolls, a great deal of other wheat was bought at the mill, which, as well as the toll wheat, was ground up into flour. This witness said that this was what was called a merchant mill, and that he thought it was the custom of such a mill to buy grain and manufacture it into flour, as well as to take toll. He said he did not know that McBee liad ever pur- chased grain, or had sanctioned the contracts of Alexander for grain purchased by him. Peter G. Gerard and T. Walker, Esqrs., and others, said they had paid ofl" accounts for flour, bran, &c., which were presented to them in the name of McBee & Alexander. (Gerard said he had paid such an account to McBee since the failure of Alexander. Walker said that McBee was *an attentive man to business, r^no and lives not far from the mill. Dr. Rabe said he wanted to buy seed wheat — forty bushels — and spoke t > Alex- ander, saying he wanted Benson's wheat, as it had taken the prize. Alexander consented to let him have it. Witness called, but Alexander said that wheat was gone, but he would get more of the same kind. Witness called again, and got forty bushels of wheat, which he understood to be Benson's wheat. He gave his note, payable to McBee & Alexander — he was sued — and he paid the amount of the judgment to Luther McBee, son of defendant. A judgment on a note given by Felix (ireen to McHt>(> & Alexandiu*. was produced in evidence. Samuel fr. McClanahan once saw McBee holding his horse, and in conversation with Alexander, near the house of the latter. As witness approached, heard McBee say, I want you to borrow or get money for me, you can do it as well as I can. McHee wa.s then going to his factory, ancl after making the remark, rode off. He was about fifteen feet off, when Alexander said to y>itness, can you let us have some money ? or can you lend me some money ? and said you can get my note, or McBee will give his note, or we will give our note ; it is just as you please. Ulti- mately, witness let Alexander have $2150. and took his individual note for it. That note has been frequently renewed. Once jjaid an account at mill for wheat, 408 COLUMBIA, DECEMBER, 1841. VOL. IL [*93 made out in the name of McBce & Aloxandor— at another time he got some seed wheat, which was in hogshead, and whic-li Alexander said was Benson's wheat. Tlie price of the wheat, twenty bushels, was credited on Al«^xander's note. Eabe's servant was at mill, and got wheat at the same time, and of the same kind he did. Before the conversation above alluded to, which was four years ago, he had fre- quently let Alexander have money. Witness sold Alexander railroad stock. John Hawkins says he was in the habit of carrying his wheat to the mill, and selling it to Alexander — Alexander owed him, at one time, as much as $2(XiO — he woulcf frequently have settlements with Alexander, when he (the witness) would ^^. produce his book, kept hy his son, (the *witness being illiterate,) and Alex- ^ J ander would produce his book — the entries corresponded, and settlements were made by these books— that book looked like that produced in Court. (It was alleged by plaintiff that this was a different book from that in Court, and should be jjroduced ; but it was denied that there was any such separate book as that described by witness.) Samuel Williams said that he drove wagon for his father, and hauled wheat from Benson's to mill. Enos Williams said he was the regular wagoner of the partnership wagon and team — he was employed by Alexander, while he had charge of the mill, and since his failures he has been employed by McBee For four years witness was em- ployed by Alexander, during that time he hauled a good deal of flour to Augusta — would sell it and pay over the proceeds of sale to Alexander. Sometimes he would haul other articles for different persons — once went to Tennessee with yarn, and other goods. Tlie barrels of flour, which he hauled to Augusta, were marked "^ Retdif River Mill, Greeiirille" — this, the only mark. When he sold flour, he did so in the name of Alexander — once stored some in his name — never had con- versation with McBce on the subject — got all his instructions from Alexander. Alexander charged McBee with two-thirds of the expense of trip — would charge him with two-thirds of corn, purchased with Alexander's money, or furnished by Alex- amlcr. The following receipts and due bills were offered to establish the bill of particu- lars : Receipt to Benson of one hundred and forty-three bushels of grain, delivered at mill, in March, 1840, signed and certified by Alexander to be true. Due bill. Due Willis Benson, on settlement, $200, dated in 1837. (signed) Alexander. AnotJier due bill for $38, signed by same, dated 2d February, 1839. William Choice was the attorney of McHce & Alexander — collected a note given by Liniestone Springs Company, payable to McBee & Alexander — has paid accounts for pork, wheat, ^c, made out in the name of McBee & Alexander. Before iir)r-i Alexander's failure, which was suddeidy, *and while McBee was in Charles- ton, his credit was very good — the general impression was, that he was making money, and in thriving circumstances. Alexander gave $1500 for shares in the railroad company ; they were sold at $140. He lost, while he had the mill, a woman and a b(»y. The witness said ho had a note in his hand, payable to Hawkins, by Alexander, wheii it was presented for payment, Alexander said when •MiHi-e returned he would put his name to the note, which McBee, however, refused to do. .Jeremiah Cleveland sold corn to Alexander, who said part was for himself and jiart for Mcbee. Alexander gave his own note, and paid it. This corn was not Hawkins'. .lobn Hawkins says the coni sold l)y Cleveland was delivered to McBee's driver, and ill McMee's own wagon. W. HIasingame, the clerk, was (ince present when Alexander lent Col. Ware $12xander told him that he had let McBee have $3000 in gold and silver, as paper money would not answer, the exchange would be lost by such way, &c. Samuel Bigham knows that McBee paid for machinary at the North — some paid for six years ago, and some two or three years ago — paid for some in gold, three years ago. Witness was a partner of McBee in a cotton factory, ■^and gave p.. „^ notes in the name of McBee, Allen & Co. McBee has a gold mine in North ^ "- ' Carolina. EvuiExcE IN Reply. .John Richardson says ho hehl notes against Alexander ; on one occasion ap- plied for money ; Alexander paid him some in gold, and upon witness remarking that it was pretty money, Alexander said yes, he did not let it always go out ; that he had up stairs a peck of suidi money. The witness had delivered at mill, wheat and barrels, and took Alexander's individual note, thinking it abundantly good, though he thought that McBee was in copartnership in all thV mill business. Various accounts were produced, in which money had been paid to Alexander, on accounts due Alexander & McBee. The case was submitted to the jury, under instructions on the p:eneral priMci|)les of the law api)lical)Ie to copartnerships. I held that, under the articles of ajrrecmcnt, McUee was a partner in the mnnufacturo and sale of flour, arising from toll-wheat ; that he had permitted himself to 410 COLUMBIA, DECEMBER, 1841. VOL. IL [*97 be held out as a partner, to that extent at least, by the manner of dealing with the public. Accounts were made, and suits brought in the name of McBee k Alexander. I further said, that strangers to the subsisting contract, between McBee & Alexander, might hold McBee liable, as a partner, for grain delivered at the mill, when there was nothing to show that Alexander received and bought the grain on his individual account. In many instances, persons who had given their notes to McBee & Alexander, or who had accounts standing against them for flour, bran, &c., paid them oft' by the sale and delivery of grain at the mill. From this mode of dealing, such persons might well regard Alexander as acting within the scope of the copartnership between himself and McBee, upon the ground that the latter had made him his agent to make such contracts, and to transact the general business about the mill, on the faith of his name. This course of dealing was calculated to deceive the pul)lie. Notwithstanding it may have been the design of the parties to limit their *QQn partnership to the tolls, still it was competent for persons *to con- -' tract with Alexander, as to all matters not strictly embraced in the business of the farm. They could make him their agent to buy and sell wheat for them, or to do anything else with which they believed McBee was not interested. The rights of such persons could not, however, be destroyed by such a mode of trading, if they could show that McBee, in fact, shared the profits of such transactions. And it seemed to me, that was the point of view in which this case should be regarded ; for one may sultject himself to the liability of a partner, either by permitting another to use his name, where, in fact, he was not interested, or where his name is not used, by sharing the profits of the concern, under an agreement, expressly, or by implication, existing between the parties. This presented a question of fact: Did the plaintiff deal with Alexander in selling him his wheat, as the partner of McBee, from an honest belief that McBee, had ]iermitted Alexander to use his name ? or, if not, had he shown that McBee had shared in the profits of wheat purchased by Alexander? I was strongly inclined to believe that Benson had sold the wheat to Alex- ander, on iiis own individual responsibility. By his own showing he had taken notes signed alone I)y Alexander, and had filed his demand against Alexander, with a view to receive his share of the proceeds of his pro- ]»erty. If this was so, I stated to the jury, that this case would be reduced to this simple point: Had McBee shared in the profits of wliciit Itought, and flower sold, manufactured from such wheat? There was no positive evidence on the point; it was a subject of inference, from the course of dealing in other matters. For instance, it was said, and I suppose estal)lislied by evidence, that McBee had participated in the sale of l>eeves and pork, and some other articles, for which there was no express stipulation in the original agreement. The agreement limits the l)iisiii.-ss r)f ili{. roiiccrn to the flour manufactured from toll-corn. But the ground tjikcn was, that in the progress of their business, the parties had enlarged the sphere of their partnership operations, and had extended them to ih(! purchase and side of uU articles bought at, or arising from the mill. The books were mainly relied on to establish this. Whether this was the case, or not, was a question of fact, which I left to the jury. *cj9 I *Tliejury found f.u- the plaintilf, $143, which was as much as I -J think he proved of his demand. ^99] BENSO.V ET AL. r.9. m'bEE & ALEXANDER. 411 GROUNDS OF APPEAL. 1. Because his Honor, Judge Butler, instructed the jury that, by the articles of agreement, the defendants were partners. 2. Because his Honor instructed the jury, that if McBee received the profits of beef, pork, or other articles, sold by Alexander, they might piesunie he was a partner in the purchase and sale of j^n-ain. 3. Because there was no evidence that McBee participated in the profits of any grain, or other commodity, purchased and sold by Alexander, and the verdict is unsupported by evidence. [The«e several actions were tried before Evans, J., at Greenville, Fall Term, 1841, and one depending upon the same state of facts, before Butler, J., at the same place, August Term, 1S41. In order that the opinion of the Ap]>eal Court may be more fully understood, the reports of their Honors, on the trials below, are given entire.] Before Evans, J. These actions were all founded on contracts made with Alexander for the sale of grain, as wheat, corn, oats and fodder. In all of them, the main question was, whether there was a co-partnership between the de- fendants. Mcliee owned, at Greenville, a large mill, employed in gene- ral, as toll-mill. For many years, before 1830, one Michael had been the miller. The agreement between him and McBee was, tliat he was to attend the mill, and receive for his services one-third of the toll, and McBee two-thirds. Michael to sell McBee's toll, and if he chose, he could sell his own share along with McBce's; and if he did, they were to share the loss. Michael, besides the one-third of the toll, was to have the screenings. In 1830, .Alexander succeeded Michael, and by an endorsement on the agreement of ^Michael, it was stipulated, the same contract, until another should be made, was to govern between Alexander and McBee. It appeared from the accounts rendered, and the books kept in the name of McBee* and Alexander, that various articles r^i^r. were charged as sold to customers, such as pork, pigs, cattle, '- flour, wheat, corn, salt, molasses and screenings; and that several cus- tomers were credited with corn, wheat, rye and fodder, in the mill books. It was contended by the defendants, that Alexander had mixed up his own ])rivate affairs in the mill accounts. It is very certain, that many of the articles charged to customers in the books, such as the screenings, i)igs, salt, eared that about $500 had been col- lected and divided between McBee and Alexander, in the ratio by which the profits of the mill were divided. The balance of the debt was trans- ferred to Mr. Cleveland, but McBee claimed two-thirds of it. It also appeared, that in 1839, Benson sold to Alexander and delivered at the mill one hundred and forty-three bushels of wheat. A part of this wheat, it was said, was sold to Kabe, for seed, and charged on the mill books. 412 COLUMBIA, DECEMBER, 1841. VOL. II. [*100 A note was afterwards given for Rabe's account, inclurling the wheat, j.ayable to McBee and Alexander, which note was sued, and McBee, after the failure of Alexander, received the money ; but it did not appear he knew for wliat the note was g-iven. It also appeared from the evidence of ]\Ir. Turner, that when Alexan- der applied to Hawkius for some corn, he said he had bought wheat of Brock ; that the mill did not make enough to supply their customers ; some of them were out, and there were many of them who looked to the mill for their bread, as he (Hawkins) did to his cornerib ; it would take one more load to supply them. Hawkins, who was examined as a wit- ness in the other cases, stated the same. Mr. Hoke proved that Alex- ander said he got wheat from Turner, at $1 37, or $1 50 per bushel ; said if, (.■,-, he *was obliged to have it to supply their customers. Riehard- -J son, who was examined in Turner's case, said, Alexander, when he got some grain from him, said the mill was out, and could not supply their customers. It appeared also, that for many years, McHee & Alex- ander had a wagon on co-partnership, the profits of which were divided in the same ratio. This wagon hauled much of the grain which the ]»laintitl' sold to Alexander. Large quantities of corn, oats and fodder were hauled and put in the crib, at Alexander's house. Alexander used out of it to feed his own stock, and sold to wagoners. The horses used to the partnership wagon, were also fed out of it ; but the wagoner was directed to measure every thing he used for these horses, as Alexander -aid he charged McBee with two-thirds. The books showed regular settlements np to 1835, but none after. It was fully proved, on the part of the defendants, that Alexander had sent off and sold at Augusta and other places, large quantities of flour, which had been sold in his name, with the proceeds of which, sometimes salt, sugar and other articles were purchased. These articles he sold to various persons, and some charges for them are found in the mill books; but Alexander told the wagoner he paid the same freight as was charged, to other persons, and directed correct accounts of freight and expenses to be kept, as he had to account to McBee for his share of the freight of the flour and other articles transported in the copartnership wagon. It was clearly proved that Alexander bought wheat and other grain, as he said, on his own account, and ground it at the mill for his own benefit ; that he was in as good credit as any man in that county; and one of the defendants, Richardson, said he would as soon have his money in Alex- ander's hands, as in the bank. No witness said he ever understood there was a general partnership ii) the buying of grain, or selling of grain, or Hour, other tiiaii the profits of the mill. Very few knew anytliing of the terms on which Alexander kept the mill, and only one person had. ever seen the agreement, and that only a short time before the failure. There was no entry, in any of the books of the partnership produced, *102l ^^ "'^ wheat, corn, kc, for which the *plaintifl's in these cases sued ; but it appeared some leaves had been torn out of some of the Ijooks, and lienson said when he and Alexander settled, Alexander referred to ii liook for an account of his wlieat I did not, however, think that the condition of the books alfcjrded anv evidence that they had i)oeu mutilated I., suppress anything for tlie defendants' beneflt, yet the jury ui;iy iiave thought, oUierwi.se. *1()2] BENSON" ET AL. VS. m'bEE & ALEXANDER. 413 In Ricliardsoii's case, the action was on three notes, signed by Alexan- der, amounting to $576. Tliey were counts for wheat sold and delivered. The proof established the delivery of four hundred bushels, on whicli $100 had been paid. Verdict for $300. There was nothing to*identify the notes with the wheat delivered. In Hawkins' case, the cdurse of dealing seemed to be, that Alexander bought, for several years in succes- sion, the plaintitPs crop of wheat, amounting in all, the witness thought. to one thousand bushels, besides large quantities of corn, fodder any other wagons. The plaintiff kei)t an account, and at the close of each year's dealings, settled with Alexander, and took his notes. About Januar}^, 1889, he received $.500 from Alexander, and some money before that time. The notes were consolidated, and one note for $1000 taken. The action was on ti)is note, and another note for $90 ; all the notes were given for grain. Haw- kins' son had some interest in the grain which was sold to Alexander, but was an undivided interest, and he had been paid by his father the amount of his share in the crops. I did not understand any note had been given to the son, but he cropped with his father, and was entitled to a share of the proceeds. The jury found for plaintiff, $1090, the amount of the notes. There had been a large payment made at, or about the date of the large note, more than enough to extinguish all interest, and I told the jury I thought if they did find for the plaintiff, they might give the amount of the notes, as the evidence proved a debt to that amount for grain. In Turner's case there was proof of the delivery, in the same way as in the other cases, of wheat, corn and *fodder, to an amount much r:)i' 51 ; Richardson's, $215 11, and the dividend of Emory Hawkins, $U 16. It should be stated as a part of the case, that Alexa'nder was McBee's brother-in-law, in whom he greatly confided, and that he seldom visited the mill. It appeared that he had been in co- partnership with three other gentlemen in merchandise ; that he never examined the books, and settled by the accounts as made out by his co- ^. -, partners. It was *stated, the accounts charged in the books held ' -1 by Alexander, in the name of McBee & Alexander, amounted, for two successive years, to more than §2,100, whilst the cash book, in which the settlements were made, never exhibited a larger sum than about 81,600, and generally less, as divided between them. I was of opinion, and so charged the jury, that according to the arti- cles of agreement, there was a copartnership in the sale of the grain received at the mill, as toll, but unless the copartnership extended beyond this, the plaintiffs could not recover. The extent and suljjects of a co- l)artnership, as between the parties, was ascertained by the article, but as these were secret, and known only to the partners, those who dealt with it could know the objects of the partnership only by the business that was transacted, and the things in which they dealt ; and if the evi- dence was satisfactory, that the buying of wheat and other grain was a part of the regular business of the mill, carried on for the mutual benefit of the defendants, then McBee was liable. So, also, he would be liable, if he knowingly suffered Alexander to hold him out as a partner, and had thus obtained credit for the grain, on the partnership account; but of this I thought there was no evidence. The jury were instructed, also, that McBee would be liable, if the grain bought by Alexander from the plain- tills was carried into the partnership account, and McBee did, in fact, receive his share of the proceeds of the sales of the grain and forage, so brougiit from the plaintiffs. In all the cases stated, the jury found for tile pluintitl's On some others, on grounds independent of the copartner- ship, they found for the defendants. I do not think any thing was said as to McBee's receipt of profits without notice. If the grain was bought for the partuer.ship, and sold for its benefit by Alexander, and McBee received his share of the profits, if any, I thought his liability arose from l)articipation in profits, or loss of that particular transaction, and bis knowledge or ignorance was immaterial. From these vordicts the defendants appealed in all the cases, because his Honor charf,aHl tho jury that the articles of agreement, between the delVudants, were a copartnership. * 1 051 . * ^'"^'"' P*^^ Evans, J. It is objected to the charge of the pre- -• siding Judge, in these cases, that the jury were instructed, that by the articles of agreement, the defendants were partners iu the sale of the gruinreceived as toll at the mill. The elementary writers define a part- iier.'^hip to be, a contract between two or more persons, to i)lace their money, effects, labor, and skill, or some, or all of these, in some lawful lousiness, or truQic, and to share the profits and bear the loss iu cerlaiu *1()5] BENSON ET AL, VS. m'bEE & ALEXANDER. 415 proportions. 3 Kent Com., 23. (a) There is a class of cases, wliere a portion of the profits of a business may be given, by way of compensation for personal services ; as in the case of an overseer, whose wages dej-ends on tlie quantity of produce made, and the price for which it is sold; and of a clerk in a store, who receives, in lieu of certain wages, a share of the profits. But these persons are mere agents, with a contingent salary. They have no property in the things out of which the profits are to arise. Alexander had no interest in the mill, and so far as that was concerned, he was correctly styled in the articles as a miller ; he was not McBee's partner in the mill ; but when the grain received as toll was mixed up, and became the subject of traffic, each being part owner, and interested in the proceeds of the sale, I thought at the trial, and still think, that they were partners in that particular business. The lines which divide partnerships from other joint interests are very shadowy. None of the elementary writers have succeeded in making them out clearly ; and as it would be an unnecessary investigation in this case ; and, especially, as there is some diversity of opinion among my brethren, I do not propose to attempt, (if, indeed, the thing be practicable,) to lay down any rules by which to determine, in all cases, whether the articles make the parties partners, or not. As a general rule, it seems to me, that relation will exist, wherever there is a joint property in the thing sold, and a mutual interest in the result of the sale. The partnership, in these cases, if it existed, by the articles, extended only to the sale of the grain received as toll ; it did not extend to the buying of grain, and the juries were ex- pressly instructed, in all the cases, that McBee was not liable, under the articles, for the grain and forage purchased by * Alexander from r^iA^ the plaintiffs. The question of partnership, as between the de- '- fendants, was to be decided by reference to the articles ; but as to others, to whom the articles were unknown, the question was to be decided by the ostensible business carried on in their name and for their benefit. It was very clear, from the evidence in these cases, that, besides toll-wheat and corn, Alexander carried on a traffin in wheat, flour, corn, and other articles, both in buying and selling, and some, at least, of these articles, were carried into the books of account kept in the name of McBee & Alexander, and were included iu accounts rendered, and in notes taken in their name. From these facts, it was argued that a partnership, more extended than that embraced by the articles, did exist between these parties, in fact : extending to the buying and selling of wheat, corn, and the other articles embraced iu the demands of these plaintiff's. I cannot say that the evidence, unexplained, does not admit of that interpretation. It was attempted to account for these circumstances, by showing, that everything besides the toll, was, in fact, Alexander's property; but instead of kee[)ing a separate book for his own private dealings, when- ever he let a customer of the mill have an article which belonged to him- self, he charged it in the account of the purchaser, on the books of McBee & Alexander; but when he and McBee settled, these articles being his private property, were excluded from the settlement. That that was the fact with many of the things charged, such as screenings, i)igs, pork, and ))eef, there was no reasonable grounds to doubt; and, in my judgment, (a) See Pierson vs. Stcinmeijer, 4 Rich. 31 G. An. 416 COLUMBIA, DECEMBER, 1841. VOL. II. [*lv)6 it was very probable that it was the fact in relation to the other things ; but the books were kept so loosely, that I cannot say the jnry were not authorized by the evidence to come to a different conclusion. And if from the proof, they were satisfied that a partnership existed between the defendants, extending to and embracing within its scope, the wheat, corn, and other things purchased by Alexander from the plaintiffs, then McBee is liable ; and in this point of view, it is not material whether the plaintiffs trusted Alexander alone, or not, for if McBee was a partner of Alexander, and shared in the profits of the business carried on by him, he would l)e *liable, although his participation was not known to, -J or any credit given to him by, the plaintiffs; as he would then stand on thefooting of a secret partner, and be liable as such. Independent of the ground of actual partnershi|», there was some evidence that McBee participated in the proceeds of the sales of Renson's wheat ; and also, that the wheat and corn bought of some of the other plaintilfs, was to supply the regular customers of the mill, and charged in their accounts; and the jury were instructed, that if the wheat and other articles, thougli bought on Alexander's credit, were mixed up. with the wheat and corn belonging to the mill, and sold for the mutual benefit of McBee and Alexander, then McBee would be liable to the plaintiffs, on the ground of participation in the profits. Every partnership is more or less limited. None are so extensive as to embrace every thing ; and one partner may carry on a separate business on his own account, in those things which the co-partnership does not embrace; and so long as he keeps it separate and distinct, so long it will be his own business ; but when iie mingles it with the co-partnership effects, and sells it for the mutual benefit of all the partners, and the proceeds of the sale is carried to their joint account, and the profits divided among t'lera, then they will be liable in that particular transaction, on the ground of partici- pation in profit. They have had the benefit of the thing purchased, and should be liable to the seller, because, by taking a jtart of the l>rofus, they take from the creditors a part of the fund which is the pro|)er security for the payment of the debts. (3 Kent 27, and the cases there referred to ) The only remaining ground of appeal which.-was urged in this Court, and \ipon which it is thought necessary to say any thing, other than what is contained in the report of the presiding Judge, is the second, in whicli it is claimed tliat the defendants should have had a credit for the sums in Rolierts' hands, as the i)laintiffs' proportion of Alexander's assigned estate. I do not understand that Mr. Roberts is the agent of the plain- tiffs, lie was the assignee appointed by Alexander to sell his ])roperty, *1081 "'"^ '"'•'' '''"^ f''''>ts. pro rata. Tiie plaiiitiOs, it is true, *consented and re(inosted him to act, but so long as the money remains in his hands, it is no payment to them. Tiicy have not consented to receive it as u payment of their demands against McBee and Alexander. On the contrary, some of lliom have expressly declined to receive it on that neconnl. i;-sidos this, as to a part of' the plaintifls, they have other demands than tliosc recovered in these actions ; and the proportion of Alexander's estate to which they are entitled, according to Mr. Robert's Matement, is ilieir i.rojio.'iions of their whole dcnuiiids, a:ul not the *108j GLOVER VS. HUTSON". 417 proportion of what they have established in these cases, as a debt due by McBee and Alexander. In reviewing the legal questions involved in these cases, I do not perceive the defendants have been able to establish their proposition, that there was error in the charge of the presiding Judge, on any of the legal questions involved. Four of these cases were tried before me, and I am free to confess, the evidence on the questions of partnership and participation of profits, was not such as to satisfy my mind of McBee's liability, but I cannot say there was no evidence from which the jury might not draw a contrary conclusion ; I cannot, therefore, see how we can interfere with the verdicts, without trenching upon the legitimate province of the jury. I am willing, whenever called on, to take the responsibility of deciding the law of a case, and in general, to leave to the jury the undivided responsibility of deciding the facts. In the consideration of these cases, my remarks have been more par- ticularly directed to the four cases tried before me. Benson's case, which was tried before my brother Butler, does not vary in any material point from the others, and should share the same fate. The motions, in all the eases, are dismissed. EiCHARDsoN, O'Neall, and Butler, concurred. Earle, J., absent. (a) See 11 Ricli. 105 ; 4 Rich. 309 ; 2 Strob. 471. An. *C. Glover, Assignee op Cresswell, vs. R. Hutson. [*109 Where there has been a breach of the warranty of a slave, and the party purchas- ing has been deprived of the slave, by a paramount title, tlie measure of dama- ges, for the breach of such warranty, is the price paid for the slave. [The right of action is not taken away by paynient to the warrantee of the price which the slave, after having been taken from him was sold for ; but the quantum of recovery may be thereby diminished. An.'\ This case was tried before his Honor Judge Gantt, at Abbeville, Fall Term, 1840, who reported the facts of the case to the Appeal Court, but as they are sufficiently detailed in the judgment of the Court pronounced by Evans, J., it is thought to be unnecessary to give more than is therein recited, which will be sufficient to a proper understanding. Assumpsit for breach of warranty. Curia, per Evans, J. It is necessary that I should make a state- ment of the case in order that the opinion of the Court may be understood. In about 1837, the defendant Ilutson sold to W. Cresswell a negro woman named Violet for the price of seven hundred dollars. At the time of the sale J. Wardlaw had an unsatisfied execution in the sheriff's office against Hutson for one thousand live hundred dollars. On the 15th October, 1838, Hutson recovered against Cresswell a judgment for seven hundred and sixty-one dollars and sixty cents, the amount of note and interest given for the price of Violet. Before the sale day in November, 1838, the sheriff of Abbeville, bv the direction of Wardlaw, levied his Vol. L— 28 418 COLUMBIA, DECEMBER, 1841. VOL. II. [*109 execution upon Yiolet as the property of Hutson. At the same time he had in his possession Hutson's execution against Cresswell and perhaps others. These were levied on all CresswelPs other property. The rest of the property levied on the sheriff took into his possession, but left Yiolet with Cresswell. At the sale day in November all the property was sold according to the levies ; that is Violet was sold as the property of Hutson to satisfy Wardlaw's execution, and the rest of the property was sold to satisfy the cases against Cresswell. On the 13th November whicb was a few days after the sheriff's sale, Wardlaw directed the sheriff to apply the proceeds of the sale of Yiolet, to wit, three hundred dollars, to the satisfaction of the cases against Cresswell, and on the 15th No- vember, the amount of Hutson's execution against Cresswell for the price of Yiolet was paid to Wardlaw, in part of his case against Hutson. At October term, 1838, Charles J. Glover, the plaintiff, recovered a judg- ^,,„-, *ment against Cresswell, and on the 28th of October, Cresswell -I was arrested on a ca. sa. at the suit of Glover, and in order to obtain his discharge under the prison bounds' Act he assigned to Glover amongst other things as follows " a chose in action or demand against Robot Hutson of seven hundred dollars, being the price of a negro woman bought by William M. Cresswell of the said Robert Hut- son, which slave was afterwards sold by the sheriff under a /?. fa. against Robert Hutson and as his property, at the suit of Joseph Wardlaw." It was to recover this demand founded on an alleged breach of the warranty of the title of Yiolet that this action was brought. On the trial of the case at Abbeville before Judge Gantt, he was of opinion, and so charged the jury, that by the sale of Yiolet, as Hutson's property, there was a breach of warranty, for which the plaintiff was entitled to recover back the whole purchase money ; but the jury with a view to do justice between the parties, found a verdict for about three hundred and fifty dollars, thereby deducting from the price of Yiolet, the sum for which she was sold by the sheriff, and probably a small balance due on Hutson's execu- tion against Cresswell. From this decision the defendant appeals on several grounds, but they resolve themselves into this : that there is no such breach of the warranty as will entitle tl:e plaintiff" to recover. The plaintiff also appeals, because his verdict is far less than the whole price which Cresswell paid Hutson for Yiolet, but he is content to let the ver- dict stand. If the sum for which Yiolet was sold by the sheriff, to wit, three hundred dollars, had been applied to the satisfaction of Wardlaw's execution against Hutson, I think there could be no doubt but that this would have been a breach of the warranty. It is equally clear that it was the duty of the Sheriff so to apply it, and that he would have done 80 but for the subsecpietit order of Wardlaw. Now if Wardlaw five or six days after the sale could defeat Cresswell's action, I can see no reason why he might not do it at the end of as many weeks or months, and this would put it in the power of Wardlaw at any time to determine whether the sale of Violet was or was not a breach, and thus Cresswell's right of action would dejtend on the volition of another and not on himself. ♦Ill] ^."Pl'O^e^'i'css^'t-'Il's other property had paid *all the cases against him and there had been no case to which the three hundred dollars could ai)ply ; would he l)e obliged to take this money if Wardlaw should abandon his right to it ? I presume this proposition can hardly be main- Ill] DALRYMPLE VS. LOFTON". 419 tained. Uuder the warranty Cresswull was entitled to have the negro, and if deprived of her by any paramount title or lien, he was entitled under the law of this State, to have his money paid baek as the measure of damag'es. But it is said CrcsswcU was in failing eircurastances and the sheriff had executions against him which he might have levied on Violet. This may have been the case ; and it is probable that the sheriff would have so levied these executions, but he did not do so. lie levied and sold under Wardlaw's execution, and we cannot know that she would have been sold if Cresswell had been left to contend with his own creditors. He might have made some arrangements to save her ; or if she had been sold, so that liis creditors were to receive the money, she might have brought more than she did ; which was less than half of what Cresswell paid for her. It may be that the very fact that by the levy, she was abstracted from Cresswell's means of paying his debts, may have drawn down his creditors upon him at that time. Upon the wiiole, it seems to me the sale under Wardlaw's execution was a breach of the warranty, and it did not depend on WaMlaw's will to determine whether Cresswell should recover back the purchase money or not. The fact that Ilutson [Cresswell ? An.^ has had the benefit of the sum for which the shei-iff sold Violet, would seem in justice to reduce the damages by that amount, and as the jury have allowed it, and the plaintiff is content with the verdict, this Court is not disposed to interfere. The motion is dis- missed, Richardson, Earle, and Butler, JJ., concurred. O'Neall, J., dis- sented. Burt and Thompson, for motion. Wilsoyi, contra. *S. M. Dalrymple vs. Wm. Lofton. (a) [*112 1. In an action of slander, where the words spoken, were, that the "plaintiti' had sworn falsely iu giving evidence, before a certain Justice Johnson, in a trial heard before liim," it is not necessary to aver in the declaration, that the justice had jurisdiction of the cause in which the plaiutilT was sworn as a wit- ness, or that his testimony was material. Both of these are j)resumed, until the contrary appears. 2. If there be a colloquium [prefatory averment, An.'\ referring to the trial of a cause before a Justice, in which the plaintiff was examined as a witness, and in it, it is averred, that the defendant, speaking of such trial and testimony, spoke the same words, they would be actionable. They impute a false swearing, in a court of justice, which prima facie, imjiorts perjury. If these general facts m« averred be proved, it is enough on the part of the plaintiif. 3. It is the right and duty of a Jud.^je, to instruct the j ury fully upon the law arising out of the facts proved — and in an action of slander, where the defend- ant had charged the plaintiff with having sworn falsely before a Justice, in a certain trial in which the plaintiff was examined as a witness, the defendant, on the trial of the case, had the right to have the jury instructed, whether the evidence of the plaintiff before the Justice, was imuiaterial to the point ui issue or not. And ujion the refusal of the presiding Judge so to instruct the jury, a new trial was gi-anted. (o) S. C. again, 2 Sp. 5S8. An. 420 COLUMBIA, DECEMBER, 1841. VOL. IL [*112 Tried before Gantt, J., at Newberry, Fall Term, 1840, who reports the facts of the case as follows : This was an action of slander, in which the jury gave a verdict for the plaintiff. The declaration contained several counts. That a suit had been tried before Jesse Johnson, Esquire, a justice, wherein William Lofton, adniinstrator of James M. Dillard, was plaintiS; and Jeremiah Joiner was defendant. That in the trial of the said case, the plaintiff, S. M. Dalrymple, was sworn as a witness, and gave testimony, and that it was 'in reference to the testimony thus given by the plaintiff, before the magistrate on said trial, that the defendant said he had not sworn the truth, that he had sworn falsely, as alleged in the declaration, and that the defendant meant to charge the plaintiff with having perjured himself. The defendant relied on the pica of the general issue, and that alone, Yery many witnesses were sworn in the case, and when the evidence closed, the counsel for defendant moved for a nonsuit, on grounds similar to those taken in the grounds of appeal, — which were overruled. The Court had previously overruled the going into evidence, to show ^.,„-, what was proved before the magistrate, *and that, too, on an -I objection properly raised on the part of the counsel for the defendant. I did decline to charge the jury as I was requested to do, because I was of opinion that the facts involved in the issue made up, were whether the words alleged in the declaration to have been spoken, were proved, and whether the meaning given them by the innuendo, was correct ; advantage, (if any could be taken,) for defects or omissions in the decla- ration, must be, by pleading specially, and not having been specially pleaded to, they were admitted to be true ; all allegations material in a cause, which are not traversed by the defendant, are admitted to be true, and for these, judgment by nihil dixit maybe entered up by the plaintiff. The grounds of objection noticed in this appeal, appear to me to be either on matters immaterial and irrelevant to the issue, or such as were falsified by the evidence which was offered. I quote the fullowing authorities, as illustrative of the law, applicable to this case, viz. : Selwyn's N, P., p. 1160, Mid., 11G4 and IIGG. In the case of Xiven vs. Munn, 13 Johnson's Reports, 48, where, in an action like the itresent, and a verdict for plaintilf, it was attempted to arrest the judgment on the following grounds: 1st. That it is not expressly averred that the testimony of Niven was in a cause, in which the justice had jurisdiction ; and 2ndly, it is not expressly stated, that the testimony s])okun of was upon a point material in the cause — the motion failed, and the plaintiff had judgment. The two cases are very similar as to the facts, and the case quoted, shows that if the declaration in the case at bar was less full in its statements, still the omission would not Ijc fatal. 'I'hc (lorcndiint appeals, and moves for a nnnsuif. 1. IJt'funHt; the avornieiits alleged that the plaintiff was sworn as a witness for and on beliiiU'ol' the defendant, on the trial before the justice, which was not proved as iiilejred. 2. iJfCttUse it apiieared, by the eviilence of tlie plaintiff, that the tcstniony of *llo] DALRYMPLE VS. LOFTON. 421 tlie plaintiff", before the justice, in *i-o]ation to wliioh he was charged witli t; , i i false swearint;:, was not material to the point then in issue. ^ 3. Because the words proved did not support tlie words laid down in the declaration. For a new trial. 1. Because his Honor refused to charcc the jury (on boinjr specially rorpiested so to do,) that if the evidence o-iven by the plaintilf, before the justice, was immaterial to the point in issue, that the action could not lie sustained, giving as a rei^son, that the olyection should have been made by the [)leadings. 2. Because it fully appeared by the testimony, that the evidence given by the plaintiiT before the justice, was immaterial to the point in issue, which was a question of law, on which his Honor refused to charge the jury. 3. Because his Honor held, that under the pleadings, the defendant could not show that the evidence given by the plaintiff' before the justice, was immaterial to the point in issue, inasmuch as the defendant had pleaded the general issue. 4. Because his Honor permitted the plaintiff" to prove the contents of what the plaintiff' had sworn before the justice, (although not alleged in the declara- tion,) and afterwards refused to decide or charge that it was material, or immaterial to the issue before the justice. ji. Because his Honor charged the jury, tliat the declaration contained a sufficient allegation of the cause of action, and that the evidence fully sustained the counts therein, and that the only question for them was the amount of damages. And in arrest of judgment. 1. Because there was no averment in the declaration that the justice before whom the plaintiff", in this suit, was sworn, had jurisdiction of the cause, and that the evidence given by the plaintiff" on that trial, was material to the point in issue. 2. Because the declaration of the plaintiff in other particulars, was wholly iusufficieut, in law, to warrant the finding of the jury. *Fair, for the motion. Cited 1st Hawk. 218, 223 ;^ 1 McMull. 499, Ham- p^-^- ilton vs. Langley. He contended that the phiiutifit" was bound to show the '• materiality of the testimony. Take, said Mr. F., the evidence of Esquire Johnson, and the testimony was shown to be immaterial. Cited 20 J. R. 341 ; cannot recover where immateriality appears. Cited also, 13 J. R. 81 ; 20 ib. 344 ; 9 Cow. 31 ; 1 Wend. 475 ; 12 ib. 500 ; 16 ib. 450. Pope and Caldwell, contra. Cited 5 .1. R. 1S8, as to actionable words ; 1 Bail. 595, words explanatory; Starkie on Lib. 85, 86; 11 Wend. 38 ; 16 do. 450. The burden rests on the defendant, to show the immateriality of the evidence. [Note. — The declaration, or a copy, to make this case more intelligible, should accompany the report of this case — biit the Reporter has never been furnished with one, and consequently cannot publish it. — Ixep.'\ Curia per, O'Neall, J. Tliis was an action of slander, for words spoken. The declaration sets out, by way of inducement, tliat a case had been pending before and tried by Jesse Joiinson, one of the Justices of the qati(c, l)ut it may be, for aught which api)ears *117] DALRYMrLE VS. LOFTON. 423 Oil Ihe Judge's notes, that such was the fact, and after verdict, unless it be phiin that no such testimony was f2.'iven, it is in vain to ask for a non- suit. Tlie od ti'round for nonsuit was not arg-ued here ; and we may, therefore, conchide that it was intended to be al)aiidoned. If, however, it was not, it is only necessary to refer to the Juds^e's notes, to see that the words were, in substance, proved as laid. The 2d ground of the motion for nonsuit and all the grounds for new trial relate to the same question, whether the materiality of the testimony given by the plaintiff to the issue before the justice was, in any shape, or by either party to be inquired into on the trial of this case. There is a wide distinction between words, which in themselves import a crime, and words, which in themselves have not that meaning ; but which have that effect by their reference to some extrinsic circumstances. In the lirst class, if the person uttering the words does not, at the time, add other words, which apply them to a transaction out of which no crime couid arise, or if the witnesses do not understand them as so ai)i)]Ying, then no matter to what subject the party speaking really intended to apply them, the words are actionable. Fegram vs. Styrom, (1 Bail. 595.) In the second class, the words are actionaljle by being connected with the extrinsic circumstances, which raise the belief that a crime was imputed. To say of one "you swore a lie before Esq. Lampkin," without a collo- quium is not actionable, (a) For it may be that the oath was extra judicial^ But if there be a colloquium, referring to a trial of a cause before a justice in which the plaintiff* was examined as a witness, r:i.iio and in it it is averred that the defendant speaking of such trial and ^ testimony spoke the same words, they wonld be actionable. For under such circumstances, they impute a false swearing in a court of justice, which i^rima facie imports perjury. If these general facts so averred be proved, it is enough on the part of the i)laintift". For, as. was said by my brother Earle, in the case ol Hamilton vs. Langhy, "the presumption is, that what a witness swears is material, and if the defendant expects to 4ivoid a recovery on that ground, he must show that tlie jyoj'ticidm-' oath charged to he false tvas on an immaterial point.''^ If the defendant can- not show that in point of fact, no perjury could have been committed in the transaction to which he alluded, then, he is answerable for the legal consequences of slander, no matter what might have been his intention. But if the defendant can show, that perjury could not arise out of the transactioD to which he alluded, then, I think, he will have shielded him- self from the consequences of his rash speaking. For the ground on which the action of slander for words actionable, per se, proceeds is, " that if true they wonld subject the plaintiff to infamous legal punish- ment. "(&) If the defendant is able to show that even if his words be true, that yet no crime could exist, how can it be pretended that the jilaintiff" in slander can be entitled to recover damages when the ground of the action is removed ? To affirm this question a person must believe that a building can stand after the foundation has been swei)t away. By way of illustration, let us suppose, that the defendant could show, that Mr. Justice Johnson, who tried this cause and whose jurisdiction is limited to matters of contract, had issued a summons in slander, and that the (f/) 2 N. cSc McC. 3()4. An. (6) 10 Rich. 118. An. 424 COLUMBIA, DECEMBER, 1841. VOL. II. [*118 plaintiff, on the trial of that case, had been examined as a witness, and t'lat it was of his testimony thus given the defendant spoke, when he uttered the words, would not such a showing as satisfactorily show, that there could not arise an imputation of perjury from the words spoken, as would be the case, if the jilaintiff, as a witness, had never been sworn or examined ? 1 think so. For if the justice had not jurisdiction in law, there was no suit, no oath, no examination. So if the testimony given ^,,„-| was clearly immaterial* to the issue, it follows that, as one of the J ingredients of perjury is wanting, the plaintiff's words, although prima facie importing a crime, yet, when sifted, cannot have that mean- ing, because out of the matter to which they referred there could not be perjury, (ffl) I should hence conclude from general reasoning, that the defendant might inquire as to the materiality of the testimony given by the plaintiff on the trial before the justice, and show, if he could, that it was wholly immaterial. This I think consistent with all authority. In Palmer vs. Bogan, So. Ca. Rep. (Cheves,) 52, (which is very imperfectly reported, and which will, I hope, be more fully done in a note to lliis case,) the defendant argued, that he was entitled to a nonsuit, on the grotnid, that the materiality of the plaintiff's testimony, to which the defendant's words referred, was not shown. The Court, in the opinion, did not contest the ground, but showed that the materiality was suffi- ciently established. The plaintiff's testimony in that case was given in the Court of Common Pleas, and we all then thought, that it was suffi- cient for the plaintiff to show that in fact a suit was tried in the Common Pleas, in which the plaintiff was sworn and examined as a witness : but as it was unnecessary for the decision of that case to give that opinion, it wus withheld. That opinion is, however, consistent with this. For there, there was no attempt on the part of the defendant to show the immateriality. His complaint was, that the plaintiff" 's proof M-as not enough to go to the jury. I iiave referred to the case from 2 Blackford's Rep. 242 ; and it is fully to the puint, that if the materiality be not shown by the plaintiff, it is not a ground of nonsuit, and so far, I fully agree with it. There is nothing in it which impinges the doctrine that the defendant may inquire as to the immateriality, and if it is made out by the defendant, that it would be a good defence. In Chapman vs. Smith, 13 J. R. 78, the great Judge, (Mr. Justice S|)encer,) who delivered the opinion of the Court, after overruling the objection that the Justice's jurisdiction was not averred in the declaration and the objections to the verdict, states tlie precise rule for which I am contending. " On the trial (he says) it would have been competent to either party, to inquire in reference to *1201 )^''"^ "^^^^ ^^ ^'**^ ^evidence given the words were spoken ; and if "^ -■ it had appeared that they were spoken of evidence entirely imma- terial, it is not to be i)resunii.'d that the i)laintiff below would have olttained a verdict." lljid. 81. In Crookshanks vs. Grar/, 20 J. R., 344. the precise point was made, and decided. Woodvvorth, J., speak- ing of it .said, "on the trial of this cause it was competent to either party to in(piire, in reference to what part of the evidence given, the worils were spoken, and if they were spoken of evidence entirely immaterial, («) See 2 Sp. 7. An, *120] DALRTMPLE Vfi. LOFTON. 425 the plaintiff cannot recover." Ibid, 349. In Power vs. Price, 10 Wend. 450, in a note, the Ciiancellor states tlie rule to be, " where the words spoken are such as naturally to make the impression upon the minds of the hearers, that the part}' s[)oken of has been guilty of the crime of per- ^iiry, it is not incumbent upon the ])arty prosecuting an action for the speaking of such words, to prove affirmatively that the testimony given by him was material, but the burden of proving its immateriality, and that there was no intention to impute the crime of perjury, rests with the defendant." After these authorities, the rule for which I am contending may be considered as definitely settled. It only now remains to apply it to this case. The defendant, under it, has no })retence to call for a non- suit. The case v^'n?. prima facie, made out by proof of the publication of the words, in reference to the trial before Esquire Johnston, in which the phiintilf was examined as a witness. If it had appeared from the plainiilT's proof, that the testimony was to an immaterial point, then the ])laintitf ought to have been nonsuited. But it is not clear, from the proof of the magistrate, (which was the testimony on the part of the plaintiff,) that such was the fact. In a subsequent stage of the case, and on the part of the defendant, it may be, that the proof under the plead- ings showed that the testimony could not have l3een material ; for it is plain, that the case before the Justice, from the statement in the declara- tion, was in the right of Dillard alone, while the proof given, applied to a defence which could only be legally set up against Dillard & Dalrymple, or Dalrymple, as survivor of the firm. This was, however, to be con- sidered by the jury ; and the defendant had, therefore, the right to have *tliem instructed, that if they believed the fact to be that the testi- r^.191 mony given by the plaintiff, and to which the defendant's words ^ referred, was immaterial, that then they could not be regarded as legal slander. In Christie vs Coivell, 14 Petersdf. Abr. mnrg. p. 083, the words were, "he is a thief, for he has stolen my beer." " It appeared that the defendant was a brewer, and that the plaintiff" had lived with him as a servant, in the course of which service he sold beer to different customers of the defendant, and received the money for the same, for which he had not duly accounted. Lord Kenyon directed the jury to consider whether these words were spoken in reference to the money received and unac- counted for by the plaintiff, or whether the defendant meant that the plaintiff had actually stolen beer; for if they referred to the money unac- counted for, that being a mere breach of contract, the word, thief, would not make it actionable." That case, perhaps, goes beyond what I think the true rule as to words, in themselves, imputing a crime. For in such a case, there must be something to qualify the legal sense of the woi'ds attending their publication Yet, where the words, as in this case, depend upon something extrinsic to make them slanderous, it furnishes the true and proper rule; for, in such a case, it is for the jury to say, whether the words applied to immaterial testimonj', and if they did, they should have been told, as Lord Kenyon told the jury, in Christie vs. Cowcll, that they were not actionable. This instruction the presiding Judge refused to give, supposing that under the pleading, the question, whether the testimony given by the plaintiff before the Justice, was innuaterial, could not arise. In this he was clearly mistaken ; for the question arose on the proof, not on the pleading. And, as in every other 426 COLUMBIA, DECEMBER, 1841. VOL. IL [*121 case going to a jury, the parties are entitled to have them fully instructed upon'the^'law arising out of the facts proved. This was not done, and, as a matter of right, the defendant is entitled to a new trial, the motion for which is, therefore, granted, Richardson, Evans, Earle and, Butler, JJ., concurred. *122] *Geofrey Palmer vs. M. B. Bogan. Decided December, 1839. Opinion by O'Neall, J. The ground in arrest of judgment cannot avail the defendant, for it was ad- mitted on the argument, that two of the counts in the declaration were, beyond all doubt, good.(«) Where some of the counts are good, and some bad, the verdict is referred to, and stands upon the good counts. Neall vs. Lewis, 2 Bay. 204. The ground for nonsuit is equally unavailing. The defendant, according to some of the proof, said that "the plaintitf swore a lie" in the case of Boc/an vs. Sumner. To one of the witnesses he said this was done to injure him. To others he pointed to the particular evidence, the difl'erence between him and Grice, in their testimony in the same case. In more than one of these conversations, he said Herndon said, in open Court, Grice or Palmer swore a lie, and there, point- ing to Palmer, is the scoundrel. The proof was clear, that Palmer was ex- amined as a witness for the defendant, Sumner, in a case in the Court of Com- mon Pleas for Union district, between M. B. Bogan, plaintilT, and Mill Sumner, defendant. On this testimony, I refused to nonsuit the plaintiff, and I still think that I was right, and in that opinion my brethren concur. Let it be con- ceded, that in the declaration should be stated, not only the colloquium about the suit, aud that the plaintiff was examined as a witness, and about his evi- dence given on the trial, but that it should also be alleged, that such evidence was on a point material to the issue, and that the defendant, speaking of and concerning it, uttered and published the words. All this is done in the decla- ration, and th(> only question is, was the materiality shown ? We all think it was abundantly shown by the facts, 1st ; that the witness was examined in defence of a case, in the Court of Common Pleas : 2d, that the defendant said the testimony was falsely given to injure him. 3d, that the defendant, here, ^the iilaiutiff here,) contradicted the plaintiff's testimony by examining Grice. 4tb, tliat a lawyer, learned in tlie law, (according to the defendant's account,) should have conuncmted on the difference between Grice's and Palmer's testi- mony, and used the harsh expression that Grice or Palmer swore a lie, and there, pointing to Palmer, is the scoundrel. These four circumstances abun- dantly jtrovo the materiality of the alleged false swearing, which is all that the defendant's coiinstd demanded, aud I am not disposed to follow him au inch Iwyond the jioint necessary to be decided. The Court are satisfied with the cliarge to tlie jury. We are also satisfied that the Judge below exeVcised a proper discretion, in excusing the foreman of the jury, Mr. Sims, and in order- ing the case f)n. 'J'lie m.otions in arrest of judgment, for nonsuit and new trial, are disnuHsed. Ga.ntt, Evaxs, Eari,k, and Bi'tlkk, .JJ., concurred. (^0 3 Strob. 341 ; 2 Hill. 054. An. Bee next preceding case. An. CASES AT LAW ARGUED km DETERMIKED IN THE COURT OF ERRORS OF SOUTH CAROLINA, Columbb, December, 1841. PRESENT HON. DAVID JOHNSON, Chaxcellor. " WILLIAM HARPER, Chancellor. " JOB JOHNSTON, Chancellor. " BENJAMIN F. DUNKIN, Chancellor. " JOHN S. RICHARDSON, Law Judge. " RICHARD GANTT, Law Judge. " JOHN BELTON O'NEALL, Law Judge. " JOSIAH J. EVANS, Law Judge. " BAYLIS J. EARLE, Law Judge. " ANDREW PICKENS BUTLER, Law Judge. John A. Donald, Administrator de bonis non of Robert Gray vs. Charles Dendy. 1. Where a testator, in his last will, used the term, (in relation to a bequest of slaves,) " I will and bequeath Sarah, and all her increase'' — ^the term, all her increase, was held to refer only to such children of the slave Sarah, as were born after the making of the will. 2. Parol evidence is only admissible to explain a latent ambiguity. If a testator devises his estate to a person, or class of persons, )jy name or description, and it should turn out that there is no person of the name, or that will answer the description, parol testimony may be introduced, to ex2ilnin to whom the testa- tor intended the be(Hiest to be applieil ; for there is a latent ambiguity, which, if unexplained, would render the will inoperative. Whatever is necessary to explain the ambiguity of the legatee, is equally applicable to an ambiguity in the description of the legacy itself. Tried at Abbeville, March, 1840, before Butler, J., whose report of the case is as follows : Trover for uegroes, Sarah Ann aud her infant child. These negroes were sold at sheriff's sale, under Ji. fa. against West Donald, and bought by defendant. Sarah Ann is daughter of Annis, the 428 COLUMBIA, DECEMBER, 1841. VOL. II. [*123 daughter of a necrro woman by the name of Sary. The right to Sarah Ann depends on the rijrht to Annis, and, as it is contended, the right to Annis depends on the history and title to Sary ; so that it will be neces- sary to go far back to get at the history and true title to Sary. *i9n *Robert Gray, the alleged intestate, married ahoul '96, or per- -l haps before, Nancy, the daughter of Alexander Donald. At the time of the marriage, Alexander Donald lived in Chester, and Robert Gray in Fairfield. After the marriage, Alexander Donald sent Sary to his daughter and son-in-law, who shortly aftericards, removed to Abbe- ville, bringing with them Sary. Xot long after the removal, and perhaps in connexion with it, Alexander Donald moved to Abbeville, and lived there till his death, not far from Robert and Nancy Gray. I^efore A. Donald's death, which happened in 1803, Sarah had a child, called Annis. Whilst the parties lived in Fairfield, Sary had been spoken of in the family, as "entailed" property, and not subject to the debts of Robert Gray, and she was so spoken of in Abbeville, before and after Alexander Donald's death. Alexander Donald left a will, by which he appointed John Donald, his son, and Andrew Gray, his son-in-law, his executors. Among other clauses in the will, is one to this purport — giving to his son-in-law and daughter, Robert Gray and Nancy, during their joint lives, and to the survivor of them, and at the death of the survivor, to the children of the marriage, three negroes, Peter, Little Frank, " Sary, and all her in- crease." At the time Sary and Annis, her child, were in the possession of Robert and Nancy ; Frank and Peter went into their possession under the will ; Sary (not Annis) being mentioned in the same clause. Robert Gray died in 1811, leaving a widow and three children, viz. : !Mary Ann, who married West Donald, Elizabeth, who married James Donald, and a son, Robert Douglass Gray. His widow, Nancy, took out letters of administration, and had the personal estate appraised ; two of the appraisers were John Donald and Andrew Gray. S'O-y and Annis were appraised, and returned in the inventory as the property of the intestate, but were never sold for distribution The widow held tJiem till she intermarried with Charles Thompson, some time in 1812. After the marriage, she moved, with her husband to Newberry, taking with her the negroes, Frank, Peter, Sary and Annis. Her husband, Thompson, died in Newberry, and she returned to Abbeville, bringing back the aforesaid *12"1 *"^f^'"o^^- While she was widow of Thompson, she sold Sary -^ and some of her children, Edy, Stephen and perhaps wnother ; she retained Annis till her death. Ill 1823, Nancy married Andrew Paul, and had the negroes Annis and others; Paul died in January, 1825. After his death, by some arrange- ment wit!) Hill, the executor of Paul, the negroes were delivered up to widow, iis there was some legal question about their title; the widow also took sonic, portion of Paul's estate, under the same arrrangemcnt. Some time in the summer of the same year, Mrs Paul died intestate, leaving Klizaljclh, who married James Donald, and Robert Douglass (J ray, her children, surviving her. Mary Ann, who had married West Donald, died in 18-2(I, leaving her husband and several children surviving licr ; some of the children are y<'t under age. James Donald administered on the estate of Nancy Paul, and a division *12o] DONALD ^-5. DENDY. IN ERRORS. 429 of her estate was made among ber cliildren and their representatives, or supposed representatives. Sealy AValker was guardian of Robert Douglass Gray, then under age, and received the share assigned to him. James Donald received his wife's sliare ; West Donald was present, and received a part, either for himself, or for his children, lie received An7iis and Sarah Ann ; they were sold oflerivards for his debts. He died in 1834, and one of his sons, John A. Donald, administered on the estate of Robert Gray, deceased, and asserted his right as adniinintrator de bonifi non, to the negroes in question, upon the ground that they had never been legally disposed of in a due and legal course of administration. He now contends, that they are to be regarded as a part of the estate of Robert Gray, which, as it appeared by the evidence, has no creditors. The various grounds of objection to the recovery of plaintifi", were taken below, that arc now taken in appeal. Tlie first question in point of order was, whether Annis and her child passed under the will of Alexander Donald ; if so, the plaintiff had no interest. My own individual opinion was, that Annis had passed under the will under the terms of "Saraband all ber increase." Tlie Court of 'Equity had othe7-tvise determined, and I did not feel at liberty to question that decision *The property was still in specie, and could be identified as rji^iQ/- part of the estate of Robert Gray, it never having been converted '- into any other form by Nancy, the administratrix; nor did I think the marriage of Nancy could operate as a legal gift and transfer to the hu.-;- band. She took the property to have it administered and disposed of according to law, and not having done so, it was suliject to administra- tion by the administrator de bonis non. If her letters had been revoked during ber life time, this would have been unquestionable. I left it to the jury to determine whether Robert Gray took Annis, subject to the future control of Alexander Donald. If so, I thought the property ought to go as Robert acknowledged it should go. The evi- dence on this point was not satisfactory, and in candor, I think the case was decided according to my notions of the law ; and if I was wrung in any point, I was also wrong in this, for I rather assumed that the pro- perty was part of the estate of Robert Gray, fairly subject to the claim of bis administrator, and that he should recover the value of the negroes. My judgment would modify somewhat the propositions made by defendant, but for safety to bis rights, I admit that I overruled all bis objections. GROUNDS OF APPE.iL. The dofendant appeals, and moves for a new trial, because of misdirection of the presiding Judge, in overruling the following points, which were made by the defendant on the trial below, and whicli will be again urged in the Court of Appeals, viz. : 1. That after collection of all the assets, and payment of all the debts of an intestate, the legal estate in the residue, in the hands of an adniinistrutri.x, upon her death, goes to her representative, and nut to un administrator de l.ouis non of the intestate ; and the remedy to compel distribution aud account is at equity, and at the instance of the distributees, and not at law, at the suit of an administrator de bonis non. 2. That the legal estate in the chattels of an inte.'^ 1 *Robert Gray and Nancy were married before the period to which the memory -* of any witness extended; supposed soon after therevolutionaiywar ; one of the witnesses remembered Sarah as far back as '96 ; she was tlieuayoung woman, without a cliild, in possession of Robert Gray, in Fairfield, said to have come from Alexander Donald, but how, or when, unknown to the witness. She had one child, Annis, in Fairfield, prior to the removal in '98 ; three other cliildren, Ej^s&x, VAy, and Stephen, were born in Abbeville, before the date of Alexander Donald's ^v^ll, in IW.i, and one child, Nancy, afterwards. All of these children continually remained witli Robert Gray until his death, except Edy, whom he sent to his son- in-law. West Donald, soon after West's marriage, whicli took place the year after Alexander Donald died. Rolici-t Gray said, and Nancy Gray said, and it was talked of in the family, both in Fairfield and in Abbeville, before and aftor Sarah had children, that Sarah was "entailt'd;" and after the death of Robert Gray, Nancy always claimed the negroes in her possession, as hers for her life, independent of all right in R. (Jray's estate. In speaking of Sarah being "entailed," one witness supposed that refer- ence was had to a former will of Alexandtsr Donald's ; and another witness either supposed the same, or did not understand by wliat instrument she was " entailed." Administration of tlie estate of Robert Gray was granted to Nancy, 1st April, ISll, an>l (le bonis non to tlie plaintilf, in .July, 1839. Administration of the estate (»f Nancy wJis granted in 1825, and the division took place the same year ; but whether it was of her estate, or under the will, or some agreement, did not appear. In tli<> inventory of her estate, tlie negroes are not included. Little Frank, I'eter, Edy, lilssox, Stephen, and Nancy, are included in the inven- tory of 11. Gray's estate, as well as Sarah and Annis ; the inventory signed by the appraisers, and not by the administratrix. And (except Edy, claimed by West Doualil, and Sarah and Stephen, sold Ijy Mrs. Thomson,) ail of these negroes, 1'2S] DONALD ?•.|.arcd with the situation of Ihe i)roi)erty, it seems quite too strong an inference to say, that the intention of the testator to include Annis in the Ijccjucst of Sary and all her increase, appears "by clear ex}n-ession, (a) .Scc! Roxhnroiujh vs. llcmphUl, r> Rich. Eq. 105 ; 4 Strob. L. 212 ; Semh. Cont. McMul. Eq. 451 ; 1 llidi. Eq. 3t)6. An. *131] DONALD VS, DENDT. IN ERRORS. 433 or necessary implication, on the *face of the will itself." But in r^ion the case oi Donald vs. WCord & Bendy, Rice's Eq. R. 330, the L ^^ Court of Appeals in Equity, giving construction to the same clause of this will, held, that the terms " all her increase," passed only the after-born children, and that it was not distinguishable in principle, from Seibles vs. Whatley. That decision is not conclusive on these parties, nor in this Court. But if the correctness of that judgment were more doubtful, the Court would regard it as due to the satisfactory administration of justice, that the determination should not be disturbed. The motion is dismissed. JonNsoN, C, and RicHAEDsoN, O'Neall, Evans, and Gantt, JJ., concurred. Wardlav) and Perrin, for the motion. Burt, contra. As to issue, see Tidynan vs. Rose, Rich. Eq. Cases, 299. ToL. I.~29 CASES AT LAW ARGUED ASD DETERMINED IN THE LAW COURT OF APPEALS OF SOUTH CAROLINA, Charleston, debruarn, 1842. JUSTICES PRESENT. HON. JOHN S. RICHARDSON, HON. ANDREW PICKENS BUTLER. " JOHN BOLTON O'NEALL, " DAVID LEWIS WARDLAW. " JOSIAH J. EVANS, Hon. Batlis J. Eakle was absent during this term, from indisposition. Isaac Harris vs. R. &. J. Caldwell. Where a shop-keeper, himself, sold and delivered goods to a party, and during the same day, the entries were made by another person, who occasionally acted as clerk for him, it was held, that the book was no evidence of the debt, and tliat the evidence was inadmissible. Vide Hurts vs. Neujville, in a note. S. P. Before Earle, J., at Charleston, May Term, 1841. Assumpsit on an open account for goods sold and delivered. The plaintiff, a shop-keeper, ])roduced his book, and proved that the goods *1341 "^''^ ^ ^ delivered by him, *but that the entries were made, ^ under his direction, on the same day, by another person, whom he occasionally employed for that purpose, but who was not present when the goods were sold and delivered. Tlie person who made the entries was also sworn, and proved that they were made by him, under the direction of the plaintiff. His Honor ruled that the book was no evidence of the debt, and the plaiutilf was nonsuited. lie now pivoa notice that lie will appeal, and move to set aside the nonsuit on tlu- Kroiind, that tlie book was us good evidence as if the pluiiitiir had made the enlrii's with his own hioids. Mazurh; fr,r the motion— cited 1 Brev. Dig. Act 1721, p. 315, (r() and said : is it .^HHential tliat a fihop-keeper should make the entries with his own hand ? 1 Rice's Dig. 2tj4. Tlie wife sold ; entries were made by her husband. I'he wife ought to liave been exaniined. (a) 7 Stat. 108, ^ 10. See 1 Bay, 41. P. L. IIG. 3 Stat. 799. Index Books. 134] HARRIS r.1 ''^'^o^'^'^'cd ^^ retained, according to the *rights of the parties, as "■^ tliey miglit be adjudged in this case. Pending this suit, Harkins died. The plaintiffs sued his administrator for the damage done to the cotton, and recovered $358.61, for which sum, on the 30th of July, 1839, they entered up judgment. On this judgment which had been recovered, subject to the plea q{ plene adminidravit praetet^ the plaintiffs received their dividend of the effects of Harkins, amounting to $215.16, leaving a baliiiicc of their damages, $143.45, still unpaid. At the close of the plaintiffs' case, the defendant moved for a nonsuit on the grounds, Ist. Tiiat the action ought to have been in the name of the consignees. 2d._ That there was still a balance of freiglit due to the carrier, after allowing the plaintiffs to discount their remaining damages against it. The freight being $250, the balance of damages unpaid $143^45, there («) S. C. before. Rice L. 203. An. ♦142] EWART VS. KERR. 441 remained $106.55 of freight still due, for which the carrier and the defendant, his aprent, had a lien upon the seven bales of cotton, no tender of this balance of freight having been proved. On the first ground it was ruled by the Court, that the proof was clear that Boyce, Henry & Walter were merely the agents of the plaintiffs, to sell the cotton ; and that they had, therefore, no such interest under the consignment, as divested the plaintiffs of their right of property. On the second ground, it was held, that at the bringing of this suit, the damage done to the plaintiffs' cotton exceeded the freight. That they subsequently recovered a part of it, was in aid of the defendant, by relieving him from a portion of the sum in his hands, to which the plaintiffs were entitled. It could not affect their legal rights, to recover against the defendant when their action was brought. The motion for nonsuit was overruled. The case went to the jury, who were instructed, if the cotton was injured in the possession of the carrier, by any thing else than such as arose from the act of God, or the enemies of the country, that then the carrier would be liable for such injury, and that it would, to its extent, defeat his right to freight. They were told that in the action *of r*i io trover, the plaintiffs were entitled to interest on the value of the ^ thing converted from the time of conversion, and that here, after they had allowed the deduction of the sum paid by Harkins' estate, they would be entitled to interest on the balance of their damages in the hands of the defendant from the conversion. The jury found accordingly; the defendant renews, in the Court of Appeals, his motion for nonsuit, on the grounds taken on the Circuit, and iuiliug iu that motion, he moves for a new trial, on the grounds : 1st. That no interest should have been allowed on the balance of damages, §143.45, prior to the judgment against the administrator, 30th July, 1839, as until then they were unliquidated. 2d. The plaintiffs had demanded interest on their damages in their action against tlie administrator of Harkins, and tlie jury had refused to allow it. 3d. That if the lilaintiffs were entitled to a verdict, under the circumstances, the damages should have been only nominal. Curia, per O'Neall, J. This case indirectly makes the same ques- tion which was formerly decided, (a) and with which we remain satisfied notwithstanding the frequent direct and indirect reviews to which it has been subjected. No one ever doubted that a carrier's lien consists in a right to retain his cargo until paid his lien. But when he retains only a part and not the whole, I think he may be fairly required to measure the part retained by the amount due, if, in point of fact, he had no lien on account of damages sustained by the plaintiff in the transportation of the goods, then the allowance of the balance of freight due to him is a new matter in mitigation of damages. The true view of the case is to consider it as standing ujion the proof, that the plaintiffs' cotton was damaged to the amount of three hundred and fifty-eight dollars and sixty-one cents, which is a greater sum than the freight due, and when this was shown the defendant's right to retain for freight was also gone. For it all properly ought to be absorbed in (a) Rice, 203. An. 442 CHARLESTOX, PEBRUARY, 1842. VOL.11. [*143 damages ; and if in the action brought by Ewart vs. Harkins^H admima- *i ill ^'^ofor, the ^defendant had set off the freight, the whole matter would -J have been free from difficulty. If he did not choose so to do, the plaintiffs' right cannot be thereby affected. The utmost which Harkins, in whose place the defendant is, could now ask in the case against him, would be to diminish the damages in trover by deducting from the amount for which the cotton sold, as much as might remain of the freiglit, after deducting the uncollected balance of the damages found for the injury done to the cotton. This was done in this case, but it is said the defendant is injured by this course. How ? He has two hundred and fifty dollars of the plaintiffs' cotton in his hands. If Harkins had set off the freight in the action against him, the defendant must have paid this whole sum, with interest and costs; as it is, he has one hundred and five dollars and fifty-five cents left in his hands to be accounted for to Har- kins, out of which he may retain his costs. In this way it seems to me he is benefitted. But it is agreed the plaintiffs get more in the way in which they proceeded than they would if the freight had been deducted at law. If that had been done, they would have recovered the whole sum retained by Kerr for freight, two hundred and fifty dollars, and their dividend on one hundred and forty-eight dollars and sixty-five cents, the balance of their damages, say eighty-six dollars and seven cents, making an aggregate of three hundred and fifty-eight dollars and sixty-one cents. Now they receive their dividend on three hundred and fifty-eight dollars and sixty-one cents, the damages found two hundred and fifteen dollars and sixteen cents, and one hundred and forty-three dollars and forty-five cents, the verdict in this case, making an aggregate of three hundred and fifty-eight dollars and sixty-one cents. But they pay on account of the freight, the balance left in Kerr's hands one hundred and six dollars and sixty-five cents, which must be deducted from the last aggregate, which leaves the amount really obtained by them by the course of actions to which ihey have been driven two hundred and fifty-one dollars and ninety-six cents, less by eighty-four dollars and eleven cents than the sum to which they would have been otherwise entitled. But these considerations really have nothing to do with this case ; the recovery of damages against Harkins' administrator could not restore the defendant's lien. It was ended from the fact of injury done to the plain- tiffs' cotton to a greater amount. After the recovery, Harkins' adminis- trator might have brought a cross action for his freight, against which any l)alaiice due in the former recovery would be set off. Without all this circuity tliis has been done in effect by the verdict here. The other grounds relating to interest may be disposed of at once, by simply re- ♦1451 *'""''''''"^ '''^t where the thing converted, is reduced to money, in tiie hands of the defendant, the smallest measure of damages in trover, is always the amount received from the conversion, with interest from the time of conversion. The motion is dismissed. Evans, Butlkr, and Wardlaav, JJ., concurred. McCreadij and Cuhhccll, for the motion. Petricjru and Lcscsne. contra. 145] THE TREASURERS VS. OSWALD ET AL. 443 The Treasurers vs. John Oswald, et al. Where a sheriflf has been sued on his official bond, and to the plea of perforraanco, there is a replication, by plaintiiFs assignin;^ as a broach, "that the sheriff, during his term of office, to wit, on tlie 1st January, 1821, and on divers days betwoon tliat day and tlie 2r)tli January, LSI?, had and received, for and on account of the plaintiff, &c., a large sum of money, to wit, the sum of .$2,39G 92, and that tlie same was not paid over." To this replication, there wore special demurrers. In the Appeal Court, the demarrers were overruled, and the rei>li- cation was sustained. Before O'Xeall, J., Colleton District, Spring Terra, 1841. These were actions of debt, on the official bond of Wm. Oswald, late sheriff of Colleton, during his terra of office, from February, iSlt, to February, 1821. To the ])leas of performance, the plaintiffs replied, and assigned for breach, that the said sheriff, during his term of office, to wit, "on the first day of January, 1821, and on divers days between that day and the 25th of January, 1817, had and received, for and on account of the said Treasurers, and their successors in office, a large sum of money, *to wit, the sura of $2,396.92" and that he did not pay the sarae r^i sheriff is bound to take notice of the liens in his office, and to pay money raised by him under official authority, to the oldest execution; ♦155] COOPER VS. SCOTT. 449 and when he pays money to a junior execution, he does so at his own risk, and will be held liable for the consequences, either by rule or action at law. His liability to be ruled, is explained and defined in the twenty- first section of the Act of 1839, page 30 — "If any sheriff shall fail to execute and return final process in any civil suit, or to pay over money when demanded, that has come into his hands as sheriff, to the party entitled thereto, and shall be unable, on the return of the rule to be issued against him to show sufficient cause, he shall be liable to be attached for a contempt, and may be ordered by the Court in which such suit has been brought, to pay the debt and costs," &c. The party entitled to the money, should always have it paid over to him when demanded. When there is a contest for the recovery by dif- ferent bona fide contending parties, it is sometimes not very easy to say who is entitled to receive it. In such cases, the sheriff should be re- garded as a stakeholder, and should hold his hand until the adverse claims are subjected to adjudication. This he must do entirely in good faith, and without collusion with either party. In most cases of dispute, he can judge for himself; and when right, he will, as a matter of course, be protected by the judgment of the Court — and when he withholds money from a party entitled to it, he will not always be exempt from the summary o])oration of a rule, by showing in his return, that he had acted in good faith, and did not intend a wilful contempt of the Court. A rule will always go where the legal rights of the parties can be made to appear from a conceded statement of facts. But where the facts are dis- puted, and the law depends on their development, the parties should be left to their action at law, or should enter into a consent rule to make up an issue to ascertain their rights. We think tlie sheriff was right in first satisfying the mortgages that were put in his hands, as they were older than the fi. fas. in his office, and operated as liens on some of the property sold. The mortgagees were present, and it seems, consented to release their lien, by taking the proceeds* of the property sold. It was competent for them to do r^icp so; and the sheriff", having acted as their agent, was justifiable in L satisfying these claims in preference to the execution creditors. After satisfying the mortgages, the balance of the money in the sheriff''s hands should have been paid to the oldest execution — provided it was raised by the sale of the defendant's own property. For I think it would be in the power of a third jierson to suffer his property to be sold, to pay the debts of the defendant in execution. In such case, he could pay the junior execution in preference to the senior fi. fa., and could, if there should be a surplus, direct the di.^position of the balance in the slieriff" 's hands to his own use. I understand from the return of the sheriff, that he approjiriated the money arising from the sale of Rose and her children, to a junior execution, at the instance of J. T. Scott, who claimed the negroes as trustee. That is, as legal owner of the property, he suffered it to be sold to pay the debt of W. R. Scott, upon the ground that his legal title was not perfect till that debt was paid. But he contends, that as it regards this judgment of which Dr. Buford is assignee, Rose and her children never were, in fact, lial)le to its lien. Whether the trustee is right or not, I shall not undertake to determine ; that depends on facts which are contradicted, and principles of law ai)plicable to them. The Vol. I.— 30 450 CHARLESTON, FEBRUARY, 1842. VOL. IL [*156 position taken by Dr. Buford's counsel may be well founded, and I do not say that it is otherwise; it is not, however, entirely free from doubt — for if it were, I would not hesitate to enforce the rule against the soeriff, notwithstanding his return. An unquestioned right may as well be protected by rule as by action. The ground taken is, that the plain- tiff's execution should be presumed, and even regarded as paid, from the fact that the sheriff knew of it, and satisfied a junior lien from the sales of defendant's property. This would be the case if the property was defendant's at the time of sale, and was sold by the sheriff in execution. It may be, that the deed to J. T. Scott was fraudulent as to all the creditors of W. R. Scott, as well as to Chandler & Graham, whose junior execution has been satisfied. ^,..,-, The deed was voluntary, and may have been fraudulent* — but J not necessarily so, from the fact of its being voluntary. That must depend on the circumstances and situation of the donor at the time the deed was executed. The general presumption would be, that it was fraudulent as to all prior creditors. If it should turn out otherwise, upon a full investigation of the facts, it would show that the motion was premature, and should not be granted — it not being right to make one person's property pay another's debts, because it was sold by the sheriff. The right of the trustee to direct the application of the funds in the sheriff's hands, depends both on the fact of his being the bona fide owner of Rose and her children, and of his subjecting the property to sale at his own instance. If the affirmative be true, the sheriff' might be regarded as the trustee's agent to raise money for another's benefit. Prudence, at least, requires that we should not deprive the parties of an opportunity of litigating their claims according to the common course of the law ; or to have an issue made up to try the question involved in dis- pute. In this view of the subject, the Court think that the motion should be granted, and an issue is directed to be made up to try the question, whether the money in the hands of the sheriff should not be applied to the payment of the judgment of Cooper vs. Scott. In that issue, Dr. Buford is to be the actor, but must proceed in the name of G. W. Coo))er, the plaintiff on the record, or in his own name, as assignee, if he be in fact the assignee of the judgment. Richardson, O'Neall, Evans and Wardlaw, JJ,, concurred. *15S] *Faulknee & Rogers vs. The Augusta Insurance Company. A party insiiriiifj goods, &o., with an insurance company, is not obliged to demand payiiH'iit of tlio contributors, before bringing suit against the insurers. Tried before Eari.e, J., at Charleston, June Term, 1841. This was nil action on a policy of insurance, made in Charleston, and dated 7th April, 1«4(», by which the defendants underwrote $G,270, on .iroods per schooner Ksloll, at and from Charleston to Mobile. It was proved tliut the Estell, on the -JUth April, 1810, struck on the Florida *158] FAULKNER & ROGERS VS. INSURANCE COMPANY. 451 Keef, and was taken off by the wreckers, carried into Key West, and libelled for salvage, and part of the goods sold to pay the salvage and expenses. On the arrival of the vessel at Mobile, the captain took au average bond, in which Harrison & Blair, the agents of the plaintiffs, joined. The average was adjusted by Mr. Stringer, an insurance broker — the plaintiffs were credited with §1,735 34, as their loss, being the amount of their goods sold, and charged with $SV9 52, for their con- tributory part of the average; the difference between those suras, say $S55 82, was the amount to be contributed towards the $1,735 34, by the ship and the other owners of merchandise. No measures were taken to recover the contribution, and the captain of the Estell sailed without settling, but on the 1st July, 1840, a demand was made on the defendants, and this action brought to recover the total amount of the loss. The defendants proved, that in this place the custom in such cases is, to receive from the vessel and owners of the cargo their contribution, and from the insurers the balance, which is the average loss. His Honor charged the jury, that the plaintiffs were entitled to recover from the insurers the total loss, and were not obliged to wait for the adjustment of the average, and the jury, under the instructions of the Court, found a verdict for the plaintiffs for $1,735 34, with interest from 1st September, 1840. The defendants moved to set aside the verdict, and for a new trial, unless the difference between $1,735 34, and §879 52, be remitted, on the following grounds : *lst. That tlie loss of the plaintiffs was a general average, and the r^;., -f, amount was $879 52. L' ^->-^ 2d. That the insured had an ample remedy for the recovery of the contribu- tion due to them in Mobile, and would have recovered if they had not been insured. But if they, or their agents, suppressed the demand against the vessel and cargo from favor, it was a fraud on the insurers ; and if they did so from negligence, the consequences of their neglect should be borne by them- selves; and that the verdict should have been for $879 52, and no more. Curia, jyer Richardson, J. This case presents but one question of law : were the insured obliged to wait for the adjustment of the average loss ; or to demand the contribution of the other shippers, or in any way to pursue the contributors, before demanding the total loss of their own shipment, against the insurers ? No doubt is entertained that such loss is embraced by the policy. The question is upon the condition and time of demanding it. And as little question is made, that either the insured or insurers may recover of the other shippers, their respective contributions according to the adjustment, made and average bonds taken in this case. But each of the present parties would avoid that alternative, and put it upon the opposite side. Which has the legal right to choose ? This question is for our adjudication. Little argument can be drawn from the conduct of the captain of the vessel. He, in case of loss, is the agent of all concerned. 2 Mass. 561. Until abandonment, in all cases, the" goods saved remain the property of the insured, and he is, of course, bound, in justice, to do what he can to diminish the ultimate loss of the under- writers ; (Mass. 614,) the true and unavoidable loss being all he is entitled to. But when the loss has occurred within the policy, it becomes 452 CHARLESTON, FEBRUARY, 1842. VOL. IL [ xo.v the loss of the underwriters : and the rig:ht to recover vests, in the insured. Both the right and liability are in virtue of the policy, which is a contract of indemnity ; and they both follow at the moment of the loss. Can, then, this right or liability be suspended by the obligation to do what may be done for the insurers, in a matter which may be done as well by themselves ? The average bond is taken in order to divide *iAm ^^® '°^^- '^'^ decide *whose is the loss, decides which party is -■ obliged to pursue the contributors for his own interest and neces- sity. It is true, that the insured may do so. But it does not follow, that he has his immediate right to indemnity from the insurers suspended, unless he does so. Like all men who have two remedies, he make take either, at his own discretion, or even pursue both, until indemnified by one or the other. But no further. This is a general principle of the common law, and must have its influence upon all contracts which are submitted for their mere legal intendment, or constructive obligations. Again : the right of the insured to demand contribution of the other shippers, arises from his right of property in the goods lost, for the com- mon good of all the shippers. It is independent of the policy, as in the case of jettison, where there is no insurance. But if there be any insurance, the insurers come in for the ultimate benefit. As to the authority of decided cases, and the opinions of respectable jurists, they leave the question very open for the judgment of the Court. In New York and Massachusetts, (1 Carne's, 212; 1 Johns. 412; 6 Mass. 3lS,) it has been decided in favor of the right claimed by the insured, to demand indemnity of the insurers, immediately. Chancellor Kent recognizes this as the proper rule of law. And Abbott, page 396, informs us that, in England, the average loss is commonly paid in the first instance, by the insurers. These authorities have weight on the other side. la Pennsylvania, (4 Bin. 502,) the same question has been ruled in favor of the insurers. The insured, in the first instance, is to demand the con- tribution, and some jurist recommend this as consonant to justice, from the usual position of the insured, and the obligation to do all that can be done for the insurers. It could, therefore, be scarcely an error, were we to decide, from mere authority, for either party, in order to lay down the general rule which the Court has now to do. But looking at the strict, legal right of the insured, and to the unquestionable liability of the insurers upon the policy, as a contract of indemnification to the former, the Court does not perceive how the insured can be suspended in their right of action, by the mere qualified obligation first to deiuand contri- *1G11 '^^"^'*^" °^ ^'"^ other shippers. This is often *done from self- -i interest, or justice to the insurers. But in many instances, the obligation to do so might be inconvenient — perplex with suits, and impede the very object aimed at by the policy of insurance — immediate reimbursement of the insured, in the value of the goods lost. In order that the voyage might not be retarded, or its fruits lost, which would be contrary to tlie general ends of insurance, to extend commerce and advance its success. And these are to be answered by the immediate reimbursement promised by the insurers. I would think, therefore, that tlio adjustment of average loss among the different shippers, and the average bond, are to be considered as a counter indemnity to the insurers, afier i»aying the whole loss. And that this view of their office *l(;i] MENLOVE VS. OAKES. 453 gives the foundation of the true rule ; that tlie insured are not obliged to demand jiayment of the contributors, before suing the insurers. The motion is therefore, dismissed. O'Neall, and Evans, JJ., concurred. Wabdi^\w, J., dissenting. I dissent from the opinion of the majority of the Court. It is contrary to the good faith required in all contracts of insurance, for the insured to put the underwriters in a worse condition than tlie in- sured would have been in, if no insurance had been made. The excess of the plaintiffs' goods sold for salvage, over their share of the average was in truth an advance made by them for the other shippers ; and the average bond taken by the master, the common agent, was a mutual covenant, signed by all the persons concerned, binding themselves to pay each his contributary share of the average on demand. The agents of the plaintiifs, when they and all others concerned, were together in the port of destination, after adjustment of the average, do not appear ever to have made a demand, but have contented themselves by sending the adjustment and average bond to the underwriters, looking to them for entire indemnity. Tlie underwriters may pay and may recover from those bound to make contributions, by suits in the name of the plaintiffs, but now that the shippers are separated, what hope is there for the under- writers that *they will be able, at reasonable expense, to procure ^^!;1/»c> remuneration ? A demand by the agent of the plaintiffs, at the L time when they should have made it, might have effected complete justice without expense or circuity; and I think that, without showing that this demand was ineffective, or was in some way excused, the plaintiffs should, not be permitted to recover from the underwriters more than their share of the average. 2 Marshall on Insurance, 5-47 ; 2 Phil, on Insurance, 127. Butler, J., concurred in the dissenting opinion. Petrigru and Lesesne, for the motion. H. A. De Saussure, contra. Edward Menlove vs. Samuel & Z. B. Oakes. Where one of two parties, or joint contractors, was served with a writ in the State of New York, and judgment by the statute of New York was obtained against both; afterwards, suit was brought in South Carolina, against the party not served. JJeld, that the defendant in South Carolina, was not concluded by the recovery in NevT Y'ork ; that it was only prima fucie evidence of the extent of his liability, but that he nught avail himself of any defence, which he might have had to the original cause of action. It was further held, that the judg- ment, outsi was an action of debt on a judgment recovered in New York, 454 CHARLESTON, FEBRUARY, 1842. VOL. II. [*162 under the following circumstauces The note upon which the judgment was based, was a joint note. The defendant Z. B. Oakes, was alone served. By the law of New York, in a suit on a joint contract, if one of the parties be served, the plaintiff may proceed to judgment against ^,„„-, both, and have execution against the joint *goods of both, and -J may so levy it, or of the goods of the party served Against the party served, the judgment is declared to be final and conclusive, but to the party not served the right is reserved of making any defence, which he could to the original cause of action. Under this statute, it has been held in New York, that an action of debt would lie against the party not served, on the judgment, but that he could make to it any de- fence which he might to the original cause of action. The defendant," Samuel Oakes, pleaded specially, the circumstances under which the judgment was obtained, the law of New York, and statute of limitations. It appeared that in 1834, the note on which the recovery was had, was in the hands of the plaintiff's counsel for col- lection ; that defendant then promised to pay it. The judgment in New York was recovered in 1839, and this suit was afterwards brought. The presiding Judge was of opinion, that the plaintiff could not recover against Samuel Oakes ; and ruled, that as to him, the plaintiff's action stood upon the same ground, as if it was upon the original cause of action, and as against that, the statute of limitation would protect him. Upon the Court's expressing these views, the plaintiff's counsel submitted to a nonsuit, and moved the Appeal Court to set it aside, upon various grounds, which will be fully understood by the opinion of the Court. Mr. Tliompson, for the motion. Cited and relied on 2 Rev'd. Stats. N. Y., 377 ; 6 Cow., G95. 6 Wend., 206 ; 6 J. R., 97 ; 2 .J. R., 87. Conld the defendant, Z. B. Oakes, in New York, plead the statute of limitations ? cited 2 Bail., 217; 1 Hill, 439; 1 Faust, 214, declares suits against a partnership good, when one is out of the jurisdiction, and the other is served within the State. The original contract is merged; 18 .1. R., 459; 1 Bail., 242; 1 Wend., 311; 1 Wash. Circuit Court decisions, 17; 2 Pet. Dig., 545; 13 76., 312. Mr. Frost, contra. Said, what is the effect of a recovery, against the partnership, where one was not served? In Miller vs. ^ filler, 1 Bail., 242, the rule is, clearly, *1641 *'''^*^ a party can only be concluded who is served, 9 Mass., *4ti2. It is com- petent for the Court to inquire, as to the jurisdiction, both as to subject and ])arty ; cited 13 J. R., 192. What is the effect of the judgment in New York ? According to the course of common law, none but a party properly in Court is concluded. In outlawry, although judgment, it is not a confession, 2 Sell., 277 ; Plow, 941 : 1 Wils., 78; 1 Stark., IGl ; 22 Wend., 260. The Act of New York was in the ]ila(c of outlawry. It should be construed as our own act, upon the same subject. It ol/viates the effect of non-joinder. 6 Stat, at Large, 211, repeals the former. Curia, per O'Xkall, J. The statute of New York, 2 Revised Statutes, 377, ])ro\j^des in its first section, that " in actions against two or more persons upon any joint dbligation, contract or liability, if the jiroccss issued against all the defendants, s/m// have been duly served iijxHi rilhcr of litem, the defendant so served shall answer to the plain- tiff, and in such case the judgment, if rendered in favor of the plaintiff, shall be against all flic defendants, in the same manner as if all had been served with process." Jn the second section, it is provided, " such judgment shall be conclu- *164] MENLOVE VS. OAKES. 455 sive evidence of the liability of the defendant, who was personally served with process in the suit, or who appeared therein, but adainat every other defendant, it shall be evidence only of the extent of the plaint iff"'. -i demand, after the liability of such defendant shall have been estab- lished by other evidence. The 3d and 4th sections are intended to so reprulate the execution to be issued under such judgment, as to give it full force and ell'ect against the defendant served, but to protect from its operation the defendant not served in person and properly, except so far as he might be interested in property belonging, in i)artnership, to him and the defendant served. Reading the statute without the aid of note or comment, I do not per- ceive how there ever could have been a dispute, that as against the defend- ant, the judgment was anything more than one in form, and tliat in substance it concluded nothing against the person not served. For the provisions "against eveiy other defendant, it shall be *evidence only of the r^,-^(>r^ extent of the plaintiff's demand, after the liability of such defend- L aut shall have been established by other evidence," plainly shows, that it was intended only as a final judgment against the defendant served, and that every thing was left open against the other. If this was not so, why was it provided that it should not even be evidence of the extent of the ])laintiQ's demand, until after his liability was established by evidence ? This was ])utting the plaintiff to jirove his case from the beginning. When this is so, there can be nothing like a judgment in its appropriate legal sense. For, according to that, it is the final evidence of the Court on the rights of the parties. Here, however, the whole matter is yet to be sifted, before the Court can decide that the defendant is at all liable. Pveferring, however, to the New York cases, and being governed by them alone, I apprehend that the same result will be obtained. In Carman vs. Toivnsend, 6 Cowan, 695, and 6 Wend., 206, it was ruled by the Supreme Court and Court of Errors, that on such judgment, an action of debt might be maintained against the defendant not served. That this conclusion was adopted, more to save a remedy to the plaintiff against the defendant, than any thing else, is apparent from the reasoning of Chancellor AValworth, in the Court of Errors, (6 Wend., 209.) For he holds, that the original promise was merged in the judgment, and hence, if the plaintiff could not maintain in form an action of debt founded on the judgment, he would be without remedy. After examining the subject, he concludes "the legislature un(p;estionably had no other ol)ject in view, than to save useless expense, and at the same time, to protect the rights of the absent defendant in that suit, without discharging his liability to the plaintiff, in an action on the judgment." lie then goes on to answer the objection, that this conclusion would dei)rive the defendant of his defence, and remarks, "it has never yet been decided, that by a course of pleading, adapted to the particular case, the defendant, who is arrested in a suit on such judgment, may not avail himself of any defence, which it would have been competent for him to urge in the original action, bad he been brought into Court." *ln Hal lidaj/ vs. jM'Bougall, 22 Wend., 270, the Chancellor r^^QQ said, "when an action is brought against several persons, as joint *- debtors, all of whom appear and deny their joint indebtedness, the plaintiff is obliged to make out, by legal evidence against each, not only 4:56 CHARLESTON, FEBRUARY, 1842. VOL. IL [*166 that he is personally liable for the debt, but also, that he is jointly liable, with all his co-defendants; but when part of the defendants admit their individual and joint liability, either by their pleading or otherwise, or when they are outlawed, or proceeded against as absentees, by a return of the capias, by the sheriff, as to them not found, or that no pergonal judgments can be rendered in the suit against them, on their individual property, the plaintiff is only to produce evidence, which will be sriffi- cient, as against those who appear and defend the suit, to establish their pint liability, with their co-defendants. After these expositions of the statute, by an eminent New York jurist, sustained by the Supreme Court and the Court of Errors, I do not per- ceive how it could be pretended there, that the defendant not served, when arrested, could not plead the statute of limitations to the action. For it is a defence, showing that the defendant is not now liable to be charged with the original debt. It is a matter not at all concluded by the former recovery. For the party now setting it up, was not before the Court, and it follows, if it was not necessary that there should be proof in the former suit to charge him, none of his rights can be, by the conclusion of that suit, in any way affected. But when to this is added, the fact that the statute was intended merely to enable the plaintiff at law, to collect his debt, if he could, out of the parties served, but at the same time, to protect the rights of the absent parties, there would seem to be no room to doubt, that by proper pleading in an action of debt on that judgment, in the State of New York, any defence might be set up by the defendant, not served in the original case, which it would be com- yietent for him to make to that case, if it was now to be tried. Indeed, I think, the true view in New York, is to regard the defence by the defend- ant, to the action on the judgment, in the same point of view, as if the *ir71 oi"'P^i"id action was trying, '*'and considered as commenced against -' the defendant when he was served with process. But, be this as it may, it is very clear, that the judgment thus obtained in New York, can have no exira-territorial effect. For, as against the jv.irty not served, it cannot be regarded as a judgment, further than as a mere means by which the partnership effects in New York, are made liable to the joint debt. In this respect, it is analogous to judgments in attachment, or decrees pro confesso, against absent defendants in equity. The ))rinciple here advanced, is very fully illustrated and enforced in Millrr vs. Miller, 1 Bail. 242. In Jhiclner vs. Archer, 1 McMull., 85, 86, where the question was as to the validity of an Ordinary's decree, against a defendant residing out of the State, Karle, J., in pronouncing the judgment of the Court, said, " it is fssenlial to the validity of a judgment, that the Court should have jiirisdieiioii of the person and the suljject matter. AVhen such is the fact, the judgment is conclusive between the same party and those in privity with them, upon all the matters in controversy, which it purports to have deciderj. Hut I apprehend the want of jurisdiction may be set up against a jmlgment, whenever it is attempted to be enforced, as a new and Hul)stantive cause of action, or where a benefit is otherwise inciden- tally claiincd under it. In Lr.starjrtte, Ordinary, vs. Executors of Ford, 1 McMullen, 80, note, which was an action on an administration bond against the surety — *16*] MOORE VS. BURBAGE. 457 the principal (the administrator) was absent from the State — it was attem))t(cl to charge tlie surety upon a decree in Equity, obtained apjainst the absent defendant, by publishinfr a rule. It was held, that the decree could only operate u])on the matter in dispute, on the property of the absent defendant, within the State. In that case, it was said, at ])a2:e 87, " for as to the defendant himself, so long as he remains beyond the juris- diction of this Court, it cannot be enforced by any action on it, in another State." From these cases, it may be reduced as a settled principle, that a judgment like the one before us, is, outside of New York, the same as if no judgment had there ever been pronounced against the defendant, not within her *jurisdiction. So considering the case, the party r^jgg must fall back on the original cause of action ; and then there is L no doubt, in any way in which it may be put, that the statute of limita- tio!is, which is the " lex fori,^' is a bar to the plaintiff's action. The motion is dismissed. RicnARDSoN, Evans, Earle, Butler, and Wardlaw, JJ., con- curred. As to the statute of limitations affecting the judgment of anoth(?r State, see Napier vs, Gidion, in Errors, Sp. E-j., 215. ^1h. Wm. Moore, Assignee, vs. J. C. Burbage. Where there has been a general demurrer to a plea, and a joinder in demurrer, and the demurrer has been sustained, leave will not be given to plead over. Before Earle, J., Horry, Eall Term, 1841. This was an action of debt, on a single obligation by the the defend- ant, to pay Joseph A. Burbage, or order, the sum of six hundred dollars, and assigned to the plaintiff; plea, that the defendant had paid up the sum of money, and discharged himself from the said obligation, accord- ing to the tenor and effect of the same. That the said obligation was given to the said Joseph A. Burbage, to pay to one James R. Burbage, which said sum of money the said Joseph A. owed to the said James R., and that he, the said defendant, has paid to the said James R. Burbage, the said sum of money, according to the contract of the parties, when the said obligation was made by this defendant. Demurrer to i)leas and joinder in demurrer. The ])lea was overruled as insufficient; and there- upon, the defendant moved for leave to plead payment, (.so/c// ad diem de novo,) which was refused ; and the plaiutiflf had judgment to recover his debt, with the interest and costs. *The defendant gave notice that he would move the Court of Appeals pipq to reverse i/iejiidf/ment on demurrer in this case, on the grounds : •- 1. Because the plea overruled was substantially a good plea of payment, and any defect iu the form could only have beeu taken advantage of by special demurrer. 2. Because his Honor the presiding Judge, ought to have granted defendant's motion for leave to strike out the said plea, all besides the general plea of payment. 3. Because his Honor ought to have granted defendant's motion to plead over. 4:58 CHARLESTON, FEBRUARY, 1842. YOL. II. [*169 Curia, per O'Xeall, J. There can be no doubt that the defendant's plea was bad, on general demurrer. For if it had stopped at " that the defendant had paid up the said sum of money, and discharged himself from the said obligation, according to the teuor and effect of the same," this, although untechnically pleaded, yet, being in substance an allegation of " payment at the day," might have been sustained. - But the plea went on to show how the payment was made, and stated a payment to one not entitled to receive ; this clearly rendered the plea bad in substance, and hence the general demurrer was properly sustained. But it is contended, that the motion to plead over or amend, ought to have been allowed. In MacFarland vs. Dean, Cheves 67, it is said "a judgment in special demurrer is nothing more than that the party against whom it is pronounced should plead over or amend, on payment of costs." This is a departure from the English rule. For there the judgment would be final, unless the party obtained leave to amend. The change is, how- ever, necessary, under our free allowance of amendments, and hence it was thought advisable to consider special demurrers as opposing an obstacle of form merely, which might be obviated by pleading over or amending. This was, however, no great departure from the English precedents. For the amendment after special demurrer, joinder, argu- ment, and even judgment thereon, was freely allowed by the English *17m C^^iii'ts, as will be seen by referring to Halton vs. ^Walker, 2 -■ Stra. 846 ; Pollyblank vs. Hawkins, Doug. 330, and Sexton vs. Rohison, Doug 620. But after a joinder in general, demurrer, and judgment thereon, it may be laid down as a general rule, that an amendment will not be allowed, (a) In Cates vs. Curreton, Harp. Law Rep. 400, leave was given to amend after a joinder in demurrer; but that was after it had been ascertained the case could not be tried, and therefore no delay could follow from allowing it. In this case, the trial was in progress, and to have allowed an amend- ment, or that the defendant should plead over, might have delayed the plaintiff by compelling him to seek for evidence to meet a defence, into which he knew, from the state of the pleadings at the commencement of the trial, the defendant could not go. This is a decisive reason why the amendment cannot be allowed. In addition to that, we know from the facts stated in the plea, which has been ruled to be bad, of what the defence was made up. It is plain from them, that the payment alleged to have been made, could, never, in any shape, avail the defendant. There would be no proi)riety (if we thought we had the power) to allow an amendment to be made, which would present in form a good legal defence, altogether unsupported by the fact. The motion is dismissed. Evans, Buti.kr and Wahdlaw, J J., concurred. ]\Ir. Jlarllce, for the motion. («) .Soe 10 Rirh. 371, 04; G Rich. 27, 395; 5 Rich. 3G1 ; 4 Rich. 14, 23. Contra, 7 KL-li. 4:i2 ; 5 Stiob. 157 ; 1 McM. 291 ; 1 N. & McC. 88, 108 ; 3 Hill, 197; Chc'v. 94.. 171] SAMS VS. RHETT. 459 *B. B. Sams vs. Albert Riiett. E*!*^! Plaintiff, one of the brothers of Francis Sams, (deceased,) paid to the defendant, attorney for tlie executors of the late Governor Hopkins, of Geor^ria, S'-l^, who, it appears, had a judgment against the said Francis Sams, for Sl(i:^l 31, with interest, from 18th February, 181 S, besides costs. At the time of the paj-ment of the money to defendant, by plaintiff, a 'compromise was effected between them, and this sum of 881;"), was to be considered as an entire discharge of tlie whole debt, or defendant was to procure from the executor an assignment of the case to plaintiff, as plaintiff might elect. Subsequent to the date of the compromise, defendant, as attorney of the executors, assigned to plaintiff the case above alluded to, but plaintiff, after cfnisultatiou with counsel, refused to accept defendant's assignment, as he was not tlie attor- ney, in fjict, of the owner of the case, or even attorney on record in the case. Defendant refused to become responsible for the amount paid, but promised jilain- titf, tliat he would not pay over the amount he had received, until he procured an assignment to him from tlie executors of Hopkins. Some short time after this promise of defendant, to procure the assignment of the case, or that he would withiiold the money, defendant i^aid over the money to the executor, C. H. Hojjkins. Under the circumstances of this case, it was held, first, that this was a personal undertaking, on the part of defendant, and was founded on a sufficient consideration. It was held, secondly, that the cause of action, which accrued to the plaintiff, on the non-performance of this personal undertaking of defendant, was barred by the statute of limit/itions. Wore tlian four years having elapsed, from the pa^nnent of the money, by Rhett to Hopkins, and the bringing suit. Before "Wardlaw, J., at Gillisonville, January, Extra Court, 1842. The following- is the history of this case : In January or Feljvuary, 1836, Charles H. Hopkins, son of Gov. Francis Hopkins, late of Georgia, came to Beaufort, bringing with him the exem))lilication of a judgnient, obtained November, 1823, in the Superior Court of M'Intosh county, Georgia, by John Floyd, Richard llichardson, John Carnochan and W. Carnochan, qualified execntors of Francis Hopkins, against Francis Sams, for $1031.31, with interest from IStli February. 1818, and $12 costs, upon a bond made by Francis Sams, jiayable to "William Robertson, and assigned to Francis Hopkins. As Charles H. Hoj>kin3 testified, he was authorized to take all proper steps for the collection of the debt ascertained by the said judgment, bat it did not appear that he ever had a power of attorney. Francis Sams had removed from Georgia, and died in this State, before 1836. The defendant, then an attorney at law, under the name of Albert Moore Smith, was retained by C. H. Hopkins. A citation to procure adminis- tration of *the estate of Francis Saras, was sued out, and some rji^iw.-, proceedings were threatened against Louis Sams, and the plaintiff, •- '"^ B. B. Sams, brothers of Francis Sams. What interest these brothers had in the estate of Francis Sams, did not appear, except that C. H. Hopkins, in his testimony, spoke of the plaintiff's having received negroes, which he says were smuggled from Georgia, by Francis Sams. The plaintiff applied to Col. De Treville for counsel, and having been advised to pay nothing, resolved, notwithstanding to compromise, rather than permit any interference, by C. H. Hopkins, with the estate of Francis Sams. 460 CHARLESTON, FEBRUARY, 1842. VOL. II. [*1T2 Terms of compromise were accordingly adjusted between the plaiutifif and the defendant, and the following agreement signed by them. ^^ Beaufort, February 9, 1836. " ExEcnxoES OF Hopkins rs. Fkaxcis Sams. "It is ajrreed between the parties, whose names are hereunto subscribed, that on condition of $700 being deducted from the whole debt in this case, and one-half the residiie then relinquished, Dr. B. B. Sams shall pay the remaining half, and Albert M. Smith, attorney of Hopkins, shall then give a general and entire discharge of all demands, in the said case, or, as the said B. B. Sams shall elect, an assignment of debt to him. " ALBERT M. SMITH, Attornei/ of Ex'' or Hopkins. "BERNERS B. SAMS." Before the payment of any money, on 10th February, 1836, (as Col. De Treville fixed the date, by reference to papers, ) the plaintiff and defendant came to the office of Col. De Treville, counsel for plaintiff; C. H. Hopkins not being present. Tlie defendant then had in his hand the exemplification of judgment, with the fol- lowing assignment annexed to it, viz.: "ExECCTOKS OF Francis Hopkixs ^ vs. > Debt on bond. Fkancis Sams. y ^, H.q-1 "In consideration of the sum of eight hundred and fifteen *dollars, paid ' -' me in hand, the receipt whereof I hereby acknowledge, I assign all right, title and interest, which the plaintiffs in the above suit have, in the judgment olitained by them, against the said Francis Sams, (an exemplified copy of which judgment is hereunto annexed,) to Dr. Berners B. Sams, of Beaufort, South Carolina. "ALBERT MOORE SMITH, Plaintiff"' s Attorney. " Witness. Bexj. R. BYTnEwoon. ''Beaufort, South Carolina, February 10, A. D. 1836." Col. Pe Treville being informed of the proposition to assign the judg- ment, but not knowing of any written agreement between the parties, (which he never saw or heard of, before the trial,) objected that the defendant was not attorney on record, that even an attorney on record could not assign a judgment, and that Charles H. Hopkins was only one of several persons interested in the judgment ; and in the conversation that ensued. Col. De Treville asked of defendant, " Suppose Dr. Sams should pay, will you be responsible, if he should be called on again ?" Defendant answered, "No, I won't do that; but, I loill promise not to pai/ the money over, until I procwe a proper asav/nment of the judg- vienl, or an assignment from the proper p)arties.''^ It was then distinctly understitod, that the money should be paid, and that an assignment should be procured from those who had authority to assign. Either from whiit was said, or as a legal inference, the witness. Col. De Treville, colh'cK'd, that the assignment should be i)rocured from tliose who had authority to assign, within a reasonable time, Col. De Treville, and as he believes, (he plaintiif, understood in this conversation, that Uie defendant was acting for (). II. Ilupkins, and that C. II. Hopkins, was one of the heirs of Fnincis Hopkins and in some way represented the executors of his father; altli(tuirh no authority was shown, or distinctly mentioned. But the pl'iinliir treated with the defendant, and not with Charles H. *173] SAMS vs. RHETT. 461 Hopkins The parties left the ofBce : shortly afterwards, plaintiff re- turned, with a receipt for the money, and the exemplilication, with the assignment above coi)ied, annexed to it ; and then, the plaintiff requested Col. De Treville to remember what *had taken place ; and in con- r^^ir^ sequence, the Colonel fixed it in his memory, and is very precise, L especially as to the words of defendant's promise. On the 25th February, 1836, the defendant settled with C. H. Hopkins, and paid to him what C. H. Hopkins, (who lives in M'Inlosh county, fifty miles from Savannah,) examined by commission, without mentioning the sum, says was " in full." A receipt given by C. H. Hopkins to defendant, was produced by the defendant, which showed a payment 25th February, 1836, on the judg- ment executors, Hopkins vs. Francis Sa7ns, by defendant, to C. H. Hopkins, of $407.50, "in full." No notice of any payment seems to have been given to plaintiff; and C. H. Hopkins says, the settlement between plaintiff and defendant took place 25th February, 1836, at the voluntary offer of plaintiff, and that the defendant was authorized to accede to the terms proposed by ])laintiff. It did not appear that any thing further occurred in the matter, until the summer of 1840. Some conversation, not proved, then took place between the parties ; and in a conversation with Edmund Rhett, Esq., speaking of the assignment, and money paid, the plaintiff said, " mine is not a legal claim — I rely on his honor." On 20th July, 1840, the plaintiff s'ent by Mr. Ellis, to the defendant, the following letter, viz. : " To A. Rhett, Esq. "Deak Sir: — You will oblige me by your fiual answer, (for wliicli I before applied unsuccessfully,) to the following questions : Have you procured a regular assignment to me, from the executors of Francis Hopkins, or any other person duly authorized to make such assignment, of the judgment in the case entitled, the executors of Francis Hopkins vs. Francis Sams? If you hare, be good enough to deliver it to the gentleman who hands you this ; if you have not obtained the assitjnment of the said judgment, or cannot obtain it, have you paid over the money, which I deposited with you on the 10th February, 1836, to wit, eight hundred and fifteen dollars, to any, and what person, interested in the said judgment ? If you have not. you will oblige me by returning it to me, as early as you can conveniently do so. Your answer to the above, you can *either commit to writing, or if rjfi-r you prefer, communicate it verbally to the gentleman who hands you this. '- "Your humble servant, i, "BERNERS B. SAMS. ''Beaufort, July 20, 1840." The defendant said to Ellis, that he had procured no assignment, besides that procured from Mr. Hopkins ; and immediately afterwards, by some other hand, transmitted to the plaintiff the following answer, viz.: "Beaufort, July 20, 1840. "Dear Sir: — Your note, through Mr. Ellis, I have received, and I returned a verbal answer ; but it appearing, on a second perusal, somewhat more formal than such communications usually are, I think it best, for both of us, to put my answer into this written form. "As I have told you before, I do not remember the transaction referred to as you do ; but am sincerely disposed to use any influence I have with Mr Hopkins, to procure such another assignment of the judgment, as will remove your fears, wholly groundless and unnecessary, as I am convinced they are. You are really in no nore danger of being compelled to pay the money again, than to discharge 462 CHARLESTON, FEBRUARY, 1842. VOL. II. [*175 the national debt of Great Britain. No law, with which I am acquainted, requires it of Tou. At the same time, I repeat what I have said from the first, that I acknowlcdo;e no legal claim on me, or claim of honor, to take any step in the mat- ter. I will wi-ite to Mr. Hopkins, as soon as I get home. Politics, with one thing and another, have put it out of my mind till this time ; but I have every disposi- tion to resi>ect your apprehensions, by doing all in my power to relieve them. ' ' I remain, very respectfully, your obedient servant, "ALBERT RHETT. •' P. S. — Tliis is the only answer Mr. Ellis is authorized to deliver you." The plaiutifF replied as follows : ^' To A. Rhett, Esq. ^-, ,.(>-, "Deak Sir: — So much of your verbal answer, as satisfies *my first J inquiry, viz.: ^' That you had not procured any other assignment of the judg- ment, in the ca<:e entitled, the executors of Francis Hopkins vs. Francis Sams, than the one whicli had already been given liy Mr. Hopkins," had been delivered b}' Mr. Ellis, before I received your note. I regard it as a sufiicient answer to the first question. In yoiu* note, I find no answer to my second question, whicli permit me to repeat. " Have you paid over the money, which I deposited with you on the lOtli day of February, 1836, to wit, eight hundred and fifteen dollars, to any, and what person, interested in the said judgment?" Be good enough to answer this question, yes, or no. "If you have not paid over the money, will you be good enough to acknowledge this as a demand upon you for the amount, to be remitted to me in any safe way you may please to select. iS'either the j)robability of my being called on again by claimants under the judgment, nor the extent and nature of your obligations to me, are, in my opinion, proper subjects for discussion here. You must therefore par- don me for declining to reply to so much of your letter, as contains your opinion upon these points. Should you withhold, or deny me the information sought, I shall regard your silence as evidence that you have j)aid the money over : or that, still having it, although unable to obtain a proper and legal assignment of the above mentioned judgui(>nt, you refuse to return it to nie. "Waiting your rejily, I remam, your obedient servant, "BERNERS B. SAMS." The defendant rejoined as follows : «' Grahamville, July 29, 1840. ''Dr. B. B. Sams. " Dkau Sir: — I have no objection to answer, with perfect frankness, any and all of your inquiries, about your business, with the executors of Hopkins. "But your nianner of addressing me is not, as I conceive, suificiently polite. You ouglit to know me well enough, not to forget, that it is not in your power, or that of any man, to draw from me anything at all in act or expj-ession, while you *1771 '*"*'*'''' yoi'" feelings to make you depart *from that style of courtesy, which it belongs as much to your own character, as a gentleman, to observe, as mine. " Vou should remember,, too, that in asking for information, it is but common fairness to state tlic purpose for which you want it. When you satisfy me that you liavf not intended ti) be rude, and as to the object you have in view by your iiiti-rrist, 184(1.) In all cases of injury arising from carelessness, or iK'glig.-iic', thr statute runs from the time; of "the act being done, from svhich the injury arose, and not from tii(* injury, or the discovery of it. Jh-ee vs. llorlbeck, Cowp. (154 ; //ou-ellvH. Youuf/, 12 Com. Law Rep. 1(>7 ; '/Jatteh/ vs. Falkne.r, 5 Com. Law R.'p. 2SH ; Short f,- MrCarth,/, same, 403 ; Troup vs. Executors of Smith, 20 JoliiiM. 33 ; MrJjowall vs. Executors of Goodicjjn, 2 Mil. Const. Rep. 445 ; Motlei/ ^ 181] SAMS VS. RIIETT. 465 Muntgoviery, 2 Bailey, 544 ; Executors of Tliomas vs. Execufors of Ervin, Cheves, 22. Tho appellant's counsel has argued that Mr Khett stood towards Dr. Sams in a fiduciary relation, and that the statute will not run until some act is done by Mr. Rhett, to terminate the agency. This argument would well ai)ply in the Court of Equity, particularly as the counsel treats the parties in the light of trustees and cestui que trust, when he contends that the statute runs only from the time of the discovery of the payment over. In the case of 7'roup vs. Smith, 20 Johns. 33, abov<; referred to, it was held, the statute would run from payment over, whether discovered or not. It was argued, that the statute would only run from demand made in 1840 ; but this cannot apply, because the demand was not necessary to constitute a cause of action, which is the case when the statute runs from demand. The payment over was a breach, and gave cause of action. In the case of Smith j^"- Bythewood, Rice, 245, the Court held, that when a note was payable on demand, the statute run from the first existence of the note ; no de- mand, beyond the service of the writ, was necessary, and it was not even entitled to days of grace, though having no date. Again ; this was a promise indefinitely, no time being fixed for its fulfilment ; the party promising having it in his power to defeat the intention at will, (viz. : paying over the money for a difi'erent pur- pose from that intended, ) and under the authority of the case of AJcDowall vs. Ex^ors of Goodwyn, 2 Mill's C. K. 441, the statute was a bar. There cannot be a doubt, that if the statute was not a complete! bar on the 10th February, 1840, it must liave been so on the 25th *of the same month and year, (the four r^iQ.T years from payment over having elapsed, ) and the suit was not commenced '■ until August, of the same year. Curia per 'Eya'ss. The written contract, dated 9th February, stipu- lates, that on the payment of a certain portion of the judgment, the de- fendant, as attorney of Hopkins, should give a general and entire dis- charge of all demands, or as the said 13. B. Sams shall elect, an assign- ment of debt to him. From this agreement the plaintiff has certainly no cause of action against the defendant, for not procuring an assigment of the judgment. If any such right of action exists, it arises out of the verbal stipulation proved by Colonel De Treville, to have been made on the 10th February, the day after the written agreement was signed. That stipulation, as proved, was, " that he (the defendant,) would not pay the money over, until he procured a proper assignment of the judg- ment, or an assignment from the proper parties." We think with the presiding Judge, that this was a personal undertaking, and that it was founded on a sufficient consideration, to wit, the i)ayment of money by Sams. A very slight matter, either of benefit on one side, or lo.ss o^n the other, is a sufficient consideration to support a promise- ; so that the only question about wliich there is any difficulty, is, whether tlie i)laintifF's action, arising out of this breach of contract, is barred by the statute of limitations. There is no doubt of the correctness of the principle con- tended for by the plaintiff's counsel, that as between principal and agent, the statute of limitations does not, in general, run, because there is no right of action until demand. The difficulty of the case is, to determine the precise relative position of the parties. I do not perceive there is any foundation for the main argument of the plaintiff's counsel, that, by the contract, Rhett was Sams' agent to buy an assignment from the executors of Hopkins. The money was not paid on any such contract as this. The money was paid on the contract ot ille 9th February, to Rhett, as the agent of Hopkins, u])on his stipidation not to pay it over until he procured an assignment of the judgment. The plaiQtifiTs complaint is not that the defendant still keeps the monev and Vol. L— 31 ^ j> . 4:66 CHARLESTON, FEBRUARY, 1842. VOL. IL [*183 :^:-,no-] *therefore, the plaintiff has a right to recover it back, as paid on -I a consideration that he has not performed, but that he has violated his promise, and paid over the money, without procuring the assignment, according to his promise. The general principle is, that the statute of limitations begins to run whenever a cause of action accrued to the plain- tiff, or, in other words, whenever the plaintiff can sue the defendant for a breach of his contract. Now there can be no doubt that when Rhett paid the money, in violation of his agreement, he was liable to action on his contract. It was broken, and the statute of limitations commenced to run from the day the plaintiff could have brought an action against him. But, it is supposed, no cause of action accrued to Sams, until he was informed of the breach of Rhett. I think it wholly immaterial, whether he knew it or not. If he did not, of which there is no evidence, except that it may be inferred from his letters, it was his misfortune, and he is not the first man who has lost his right of action by his own inat- tention to his business In this particular, the case is like Executors of Thomas vs. Ervin.(a) If the defendant had fraudulently got possession of the plaintiff's money, or had deceived him by misrepresentations as to its misapplication, that might, perhaps, have altered the case. The defend- ant is only bound by his promise. Thei'e is no pretence of any right to sue him on any other ground than a violation of his promise. More than four years elapsed after a cause of action accrued to the plaintiff, and we are of opinion, the plaintiff's action is legally barred. The motion is dis- missed. O'Neall and Wardlaw, JJ., concurred. Butler, J. I am inclined to the opinion, that the defendant should be regarded as a bailee, and did not hold the money adversely until de- mand, and, therefore, could not avail himself of the statute of limitations. RTciiArnxsoN, J. I dissent from the decision of the Court in this case. I think tiie defendant was bound to keep the money until he had obtained ♦ ISil ^^^ ^^' ^^'^^^ ^ legal assignment* of the judgment from the exec- -' utors of Francis Hopkins, or a legal acquittance from them. That, therefore, the i)ayment of the money over to Charles II. Hopkins, was merely voluntary and gratuitous ; and of course, until Dr. ISams had notice of such a transfer of the money to Charles H. Hopkins, or of a refusal to return it, or tlie defendant had procured the legal assignment of the judgment, he, the defendant, stood in the character of the agent, either to pay over the money to the executors, or to procure the proper assignuu;nt ; and, therefore, the statute of limitations could not attach until after the corresijondeuce of 1840. («) CliovoH, 22. See Clark vs. Reeder, 1 Sp. 298. Roxhorowjh vs. Albrujht, 4 Rich. 40. All. 184] SMITH VS. SINGLETON. 467 Jacob Smith t-*-. C. J. T. Singleton. In an action of trespass and assault and battery, where the battery has been com- mitted by several, and a recovery had afjainst one, such recovery may be pleaded in bar to an action for the same battery brought against another. Before O'Neall, J., at Beaufort, Spring Term, 1841. The following is his Honor's report of the case : This was an action for a trespass on the person of the plaintiff", com- mitted by the defendant, Lucius C. Kobert, and others. The plaintiff brought several actions, and at a previous term, recovered a verdict of damages against Lucius C. Robert, for the same assault and battery of which the plaiutilT comiilained against the defendant, and on that verdict judgment was entered up, and was fully paid and satisfied. The defend- ant tendered to the plaintiff tlie costs of this action, and pleaded the recovery had by this plaintiff against Lucius C Roberts, for the assault and battery of which he complained against him, and *averred (-:(cior that that recovery had been satisfied, and that he had tendered to •- the plaintiff the costs of this case. The plaintiff demurred generally. I was anxious (if I had been at liberty to do so,) to sustain the demur- rer. For the battery was, from what I learned in other trials, during the term, an erroneous one, committed by the defendant ; Robert was only an aider and abettor in its perpetration. The recovery against him was, I think, for twenty dollars. But, on authority, there can be no clearer proposition than that the plea was a bar to the plaintiff's action. In Buller's N. P. 2, (referring to Yelv. 68,) it is said, "so if a battery be committed by several, and a recovery had against one, such recovery may be pleaded in bar to an action for the same battery brought against another." In Haivkins vs. Halton, 1. N. & M'C. 318, the point was presented for the consideration of the Constitutional Court. The opinion of the Court was delivered by Mr. Justice (now Chancellor) Johnson. He gave the following as the law on the subject : " It is unreasonable, that a party should have more than one satisfaction for the same injury ; and although there may be several wrong-doers, and the party injured may maintain actions against them severally, yet each is liable for the whole entire damages sustained ; and the law, abhorring a multiplicity of actions, will presume that the jury in any one of the actions, would give him damages to the extent of the injury, and forbids that he should prosecute a further remedy after there has been a satisfaction. But, until there is a satisfaction of the damages assessed, a recovery could not 0))erate as a bar to an action against another of the joint trespassers ; because it is possible, from the insolvency of the first defendant and various other causes, the plaintiff might never be able to obtain his redress. It was, therefore, clearly in- cumbent on the defendant to have averred a satisfaction in his plea of former recovery." In another part of the oi)inion, the Judge states the rule thus, " if there has been a recovery against one of several joint trespassers, the plaintiff may proceed against the others, until there is a satisfaction of the damages recovered against some one of the defendants ; and if he elect, as he *may do, to the satisfaction of any one of the r^^io/. judgments, the Court will, on the payment of the costs in the ^ 468 CHARLESTON, FEBRUARY, 1842. VOL. IL [*186 other cases, order satisfaction to be entered on all the judgments." This statement of the rule gave rise to the notion, that before the plea of tlie former recovery, averring satisfaction, could be sustained, it must also aver, that the case pleaded to, had been tendered ; and in the sub- sequent stage of the case of Haiokins vs. Hailon, that very objection was presented and sustained at Nisi Prius, and the decision was unques- tioned by appeal. The rule, as now recognized in practice in this State, is stated in Fai-k vs. Hopkins, 2 Bail. 411, in the following words: " For a trespass, and other injury, ex delicta, which may legally arise from the joint act of two or more, the party injured has the right to sue all the wrong-doers, jointly or severally as he may think proper. If he brings separate actions against each of them, a recovery against, and satisfaction of the damages by one, will, upon the payment of the costs in the other cases, bar a further recovery." The plea conforms to all these requisites. The demurrer was overruled and there was judgment in bar for the defendant. The plaintiff appeals, on the ground that " there was error in ruling that the recovery in the suit against Lucius C. Robert was a bar to the suit against this defend- ant." Martin, for the motion, insisted that notwithstanding the current of English decisions, they could not apply in this State, for this reason. In England, the damages against joint trespassers cannot he apportioned between the trespassers, according to the deijree of participation of each — in this State they may be. (See first case in Bay, White vs. McNeeJy et al.) The reason for the rule not existing here — the rule of law should not, therefore, apply. Hittson, contra. In addition to the cases referred to by the Court, in the report of the case, relied on Coc/ce vs. Jenncr, Hobert, 66 ; Cobhett vs. Barnes, William Jones, 377 ; Bird vs. Randall, 3 Burr., 1353 ; Livingston vs. Bishop, et ah, 1 John, 291. *187l *Curia, per O'Neall, J. This Court for the reasons given -' below, are satisfied with the decision ; but as this case was attempted to be distinguished from the cases referred to in the report, on the authority of White vs. 3IcNeehj and others, 1 Bay, 11, it may be well enougli to show that no such distinction can be allowed. It is true, we early dejjarted from the English rule, that in a joint action of trespass, the jury cannot sever in their damages. The case of W/iile vs. McNeely, in 1784, ruled, that the jury in such a case might sever and aiii)orti()n the damages according to the degree and nature of the ofT('Mce coraniiltod by each defendant. The wisdom of such departure is, I think, very questionable ; but it has been in practice ever since con- foniu'd to ; and we are now asked to give it a further extension, by abolishing another well-settled principle, that in several actions for a joint trespass, a recoxery against one defendant, the satisfaction of it, and the payment of the costs in the other cases, will bar any recovery against the other defendants. It is sup])osed that this principle, and the consequences of a recovery in such a case as While vs. McNeehj, cannot stand together. For it is asked if a recovery against one of several joint trespassers, and satisfac- ti(.n, be a bar to a recovery against the others, why would not the payment of the danuiges found against any one of the defendants in a joint action, bar the coih'ction of the danuiges found against the others ? The answer is obvious— in several actions, the law supposes the jury to *187] PARKERSON VS. SIMONS & EPPING. 469 find against any one, the entire damages sustained by the plaintiff, and therefore, satisfaction in one is satisfaction in all. But in a joint action, when the damages are apportioned, the aggregate of all the damages found is the damage of the plaintiff ; and hence satisfaction by one, of his part, is not satisfaction for all, and of the whole. The motion is dismissed. Richardson, Butler, Wardlaw, JJ., concurred. See dissenting opinion in Union Bank vs. Hodges Sf Smith, 11 Rich. An. *JoHN Parkerson vs. Simons & Epping. [*188 Defendants, (chemists) were in the practice of filling a certain soda fountain for one Hopkinson, who rented this and another fountain from the plaintiff. Hop- kinson absconded, leaving the soda fountain in the possession of defendants, who had first filled it. Plaintifi" brought this action of trover for the conversion by defendants. Held, That there was no such tortious conversion, as would enable plaintiflF to sustain trover, and a nonsuit was ordered. Tried in the City Court, Charleston, January Terra, 1842, before the Recorder. This was a process in trover for a soda fountain ; it appeared in evidence that plaintiff rented to one Hopkins, two soda fountains ; that Hopkins was in the habit of getting defendants to fill these fountains for hiin. The early part of last summer, Hopkins absconded, leaving one of these fountains in the possession of defendants, who had filled it. Parkerson demanded the fountain ; his right of property was not disputed, but the defendants refused to deliver it up, claiming to have a lien for the filling. It was in evidence that after the refusal and before suit brought, defendants said to Parkerson that he could have the fountain if he chose to call for it. Plaintiff's counsel, however, stated in evidence that just before snit brought, he called on defendants, who said that the business must be legally settled. Another witness stated that the contents of the fountain could have been drawn oft" by defendants and retailed by them without any loss. The recorder thought the conversion proved, that the defendants had no lien for the filling, and decreed for the plaintiff the value of the fountain, say thirty-five dollars. The defendants appealed, upon the subjoined grounds : 1st. Because the action being in trover, the plaintiff failed to prove a con- version of the poods in question, and ought to have been nonsuited. 2d. That the defendants having sliown to the Court that they had a good and substantial lien upon the property in question, they were entitled to a decree. 3d. That the said decree is, in other respects, contrary to law. *J/r. Walker, for the motion. 1st. Where there is a lien and notice given, ^^, ^^ and no tender made, there can be no conversion. Mo. on Lieu., 28: 125 At. '- "" 470 CHARLESTON, FEBRUARY, 1842. VOL. H. [*189 2d. The fountains were hired, and there was no proof of the determination of the contract. Bac. Ah. Tit. Trov., 602. Mr. Elliott, contra. The lien can only exist when the labor and material of the mechanic is mingled with the article. Curia, per Butler, J. By a contract of hire the plaintiff had let one Hopkins have the soda fountain, which is the subject of this suit. Hop- kins, while a retailer of soda water, and while he was the special owner of the fountain, placed it with the defendants, who were chemists, to have it filled. The defendants reoud, not to Lesesne, l)ut to phiintiff. On this evidence plaintiff closed and rested his case, and defendants' counsel moved for a nonsuit, on the grounds : 1. or variance between the declaration and the proof. 2. Of incurable irre<>:idarity in the i)roceetlings in replevin, subsequent to the declaration and confession ofjudgnieiit. 3. or incompetency in the present plaintiff to sustain the action, he having been no party to the replevin suit, and the judj^mcnt in his favor being, there- fore, a nullity, and the assiguuieut of the replevin bond to him illegal. The motion for a nonsuit was overruled by the Court, and the case went to the jury. The Court declined to charge the jury, whether the original distress was lawful or unlawful. The jury found for the plaintiff, the amount sued for, with interests and costs. A motion was made before the Court of Appeals at ^Charleston r^i-. j qo for a nonsxdt or in arreM of jiuUjment, on the grounds takeu ^ at the trial, and for a nexo trial, on the additional grounds : 1. That his Honor, it is respectfully submitted, should have charged the jury, that the original distress, in this case, was unlawful, having been made by one' to wliom no rent was due, and who had no power to appoint a badiff to make the distress. 2. That the verdict was contrary to law and evidence. Yeadnn, for the motion, said — Can an agent of a landlord appoint a bailiflf to distrain ? If this action had been commenced against Clayton, the waiver of error in the confessiun of judgment on the declaration might have been sustained; but tliis action is against the surety, and must fall. When the surety entered into the bond, he entered into an obligation to prose- cute his suit to effect, &c. On the 1st ground. The declaration was not supported by the proof. Can a party not allowed to sue come in and enter up judgment and exejution ? Could Harris take an assignment of the replevin bond? Can a sheriff assign a replevin bond to a stranger to the record 't The avowant is the only person to whom the bond can be assigned. Pftiijru, contra, contended that there was no irregularity, but if there was, it could not avail the surety in this action. It must be taken that Harris was the landlord, and, consequently, had the right to ajqioint an agent to act for him. The aiient, then, having the right to distrain, by authority from the landlord, could afi)poLut a baililf to act for him. The in fgularity complained of is the difference between the affidavit and the warrant of distress. If one acts for another, and his acts are afterwards confirmed by the person, it is a good authority ; cited Thomas vs. Yutvs, 1 McM. 179. Whenever a party may recover against the agent, he may also recover against the principal, cited 2 McC. 1C4, *Tulvande vs. Crips. Replevin only lies in r^jt-ic^Q case of a taking for rent. It is not concurrent with trespass or any other ^ ' action. Clayton, by confessing judgment, has waived all right to complain. Harris is the real avowant, and the party cannot prevent him from coming in. The sheriti" had the right to assign his bond, as he did. Ycadon, in reply, said he represented the surety in this case, and not Clayton. He denied that Clayton had forfeited his bond, and, consequently, that the surety is not liable. If the bond has not been forfeited, how can the party recover 476 CHARLESTON, FEBRUARY, 1842. VOL. IL [*199 to whom the hond was assigned ? The case of Talvande vs. Crips, cited by the opposite counsel, was not a case in point. ' Mr. Yeadon pointed out the difference between this and the case cited ; referred to the case of Steadman vs. Givens ^ Nathans, MSS. (Infra, 202.) Curia, per Butler, J. It must be conceded in this case, that the only parties that were liable to be sued in replevin, after the proceed- ino-'s in distress had been commenced, were Lesesne and Buckheister, The one assumed the position of landlord, and by warrant under his own .seal, constituted the other his bailiff. Harris may or may not have ' authorized the distress warrant to be issued, or might or might not have adopted the acts of the parties under it This is not, however, conclu- sive of the question in the case. After the action of replevin had been commenced, the rights and relation of the parties underwent material changes ; Harris, the true landlord, came in and adopted and confirmed all the acts of his representative and agents. It might not have been in the power of Lesesne to avow for rent due his principal, as he did not perform the office of the actual bailiff. As against Lesesne, the tenant Clayton might have been able to maintain his right to the property replevied — no rent being due to Lesesne himself, and he not having any of the rights of the actual landlord. But where the distress has been made for rent due the landlord, it is in his power to come in and sanction the distress, and thereby to enable the bailiff to justify the taking, for *«>nni ^^^^ ^" arrear, in the name of the landlord. Tlie case of *Sfead- -■ man vs. Givins (& Xathans, decided in 1834, was in some parti- culars like the one under consideration. Givins, acting as the agent of Mrs. Wigfall, appointed Nathans his bailiff, to execute a distress warrant for rent alleged to be due Mrs. Wigfall. It was held, that Givins had no right to issue such a warrant in his own name — nor could he avow for rent due to another. But Judge Harper, who delivered the judgment of the Ap))eal Court, confirming the Circuit decision made by himself, con- cludes thus : " Subsequent assent amounts to authority, (Saund. 347, n. 4.) If Givins had any actual share in making the distress, and they had authority from Mrs. Wigfall, or she was willing to adopt their act, both should have justified as bailiffs. Or perhaps, if Givins was not actually present at the taking of the distress, but had authority from Mrs. Wig- fall to employ Nathans as bailiff, he might have pleaded non cejDit. In that case, the authority of Nathans would have been direct from Mrs. Wigfall ; he should have justified as her bailiff, while Givins being merely regarded as the medium through which the authority was conveyed, would not have been considered as a party to the taking." In this case, it can- not be doul)ted that Mr. Lesesne had full authority from Harris to collect the rent, and to employ all necessary and legal means to effect the end. The Ijuiliff, Buckheister, was accordingly employed to make the distress, for his act was adopted by the subsequent assent of the landlord. All the acts tiuit had ijeen done, were under a derivative authority from Har- ris. He was the party interested ; and was it not competent for him to assume his jiosiiion on the record, as the rightful avowant ? The tenant's own acknowlcdgnicMt of his landlord's right to the property distrained, as estaliii.shed l)y the confession of judgment, precluded him from making any objcdion to the regularity and propriety of the proceeding. The great object of the action of replevin is to settle the controversy about rent; *200] KECKLET ads. HARRIS, adm'r. 477 with this view, the landlord's rights should always be regarded ; in such cases there can be no valid objection, why he should not take the place of his mere representative and bailiif. In the case of Talvande and Cripps, 2 McCord, 165, Judge ISTott remarks, after speaking of the nature of the action of rei)levin, " The procedings, *therefore, ought to be so modelled as to preserve rif()(^■, the relative rights of the parties. The plaintiff has a right to ■- "^ make the landlord, (or the party destraining) a party to the action, as well as the officer executing the warrant. So, on the other hand, the landlord may come in and be made a party, and defend his bailiff against the actiou ; in the same manner as a landlord may come in and be substituted in the place of his tenant, in an action of trespass to try title." This view of the law in that case was carried out, by allowing the heirs to come in and maintain the avowry that had been put in by the original party on the record, after his death. The distress had been made by an administrator, the goods destrained by him were replevied by the tenant ; but the action was not allowed to abate by the death of the avowant : bnt those who claimed under him were allowed to establish their right to the rent. The bond was no doubt given by the i>]aiiitiff with security, to return the goods again, if he should fail to establish the wrongful taking. That bond must always inure to the benefit of the true party in interest ; and where he is regularly let in on the record, he has all the rights of the original avowant ; and when he cannot have his goods returned by a retorao habendo, he is entitled to have the bond a.ssigned to him to go against the surety ; for without such bond he would never have been deprived of the benefit of the distress. It is true, that but few of the British statutes(a) on the subject of replevin, have been made of force in this State, by express enactment, but they have been adopted in practice ; and under this practice, replevin bonds are assignable to the avowant on the record. (6) When the writ of execution fails to give indemnity for the injury which the landlord has sustained by the replevin of the goods, the surety to such a bond subjects himself to all the liabilities of his principal ; and when the principal fails to return the goods detained, aiid nulla bona, returned on i\\Gfi. fa., the surety is then to l)ecome answerable. He must abide the acts and become lial)le by the default of the principal. At any rate, he cannot make abetter defence than the ])rii)cipal could have made ; nor take exceptions which the principal could not have taken. At no part of the proceedings in this case, *could the present defendant have interfered to exone- r:^.^^.^ rate Clayton from liability to pay rent to the plaintiff; and why ^ "^-^ should he now be permitted to relieve himself from liability ? We concur in the circuit decisions, and dismiss the motion. RicnARDSO.v, O'Xeall and Evans, JJ., concurred. (a) Soe 1 Sp. 286 ; 2 Ricli. 402. (6) 1 McC. 300; Act of 1839, 11 Stat. 36, § 55. An. ■178 CHARLESTON, FEBRUARY, 1842. VOL. II. [*202 n THE COURT OF 3. GiTENS & Nathans ads. T. Steedman. Before Butler, J., at Charleston, February Terra, 1834. The following is the report of the presiding Judge. The facts ofthis case are these : A warrant of distress was levied on the eoods and chattels of the plaintiff, signed by Givcns, agent of Sarah Wigfall. But the warrant recites that it was issued for rent due by plaintiff to defendant, Givens, as his landlord. Upon reading the warrant, it would appear, that the relation of landlord and tenant existed between Givens and Steedman. It is true, Givens signs himself, ayeiit of Sarah Wiyfall, but that does not make him so. In this avowry, Givens endeavors to protect himself, for the distress made under his authority, by alleging that rent was due one Sarah Wigfall. If he issued his warrant upon his personal responsibility, as I think he did, he cannot protect himself by avowing that rent was due to another. At any rate, he cannot do so without showing his authority, either to enter or to authorize a bailiff. No such authority is shown or averred. He commenced the proceed- ings on his own responsibility, and ought not to protect himself, by avowing that another person was entitled to the rent. One may make himself the tenant of the agent of another, and in that case, the agent could destrain, because the relation of landlord and tenant, would exist between them. The tenant ought not to claim against the terms of the demise under which he holds the premises. He may be tenant to another by a steward, but he con- sents to it. 1 doubt whether the landlord can delegate his authority, to enter and destrain, except to a bailiff, duly authorized for the purpose. Can a landlord delegate to an agent, the authority to make a bailiff? If he can, the authority of the agent should be of as high a character as that required for the bailiff. Aud when such agent avows for rent, he sliould show his authority. A tenant may be willing to subject himself to a landlord, from whom he leases, but not to an agent with whom he is not acquainted, and who might exercise his delegated authority capriciously. The remedy by distress is summary, and ought to be watched with jealousy ; at least it should not be unnecessarily extended. It is a rule of law, that rent must be reserved to him from whom the land proceeded, or to his lawful representative, and cannot be reserved to a stranger, Kent Com. 3 vol. o70. . The relation of landlord and tenant is somewhat personal, and none but those who own the land sliall have rent reserved or have tlie jiower to collect it by distress. The landlord n)ay enter himself or by *2()3] ''ii^ iigi^iit, l)ut it should be an agent expressly *with authority to enter. J In tliis case, Givens did not enter, but authorized a bailiff to enter, without even showing authority. 'J"he demurrer was sustained. GROUNDS OF APPEAL. 1. Tli;it tlic l;iii(ll.M(l lias the power to appoint an agent to sign a distress warrant, aud crcjilo ;i l);iilitr to distrain. 2. 'J'liat the a;,'.'iicy o!' .Icilin (iivenn was sullicicntly averred on the record. 3. Tliat tlie plainliir by the pleadings recognized "and admitted the agency. 4. That the i.ower vested in Givens as agent was legally executed. If not, the *20^] GIVENS & NATHANS ads, STEEDMAN. 479 plaintiff could not take exception to it, nor could the Court know it, as nothing in relation to the mode of execution appeared by the pleadings. 5. That the avowry need not be by the landlord, but may be by an agent. 6. That the decision sustaining the demurrer is, in other respects, contrary to law. Titos. S. and //. Grimke, for the motion. Ycadon, contra. Curia, per Harper, J. We think the avowry defective, and the motion must be refused It is said, that the terras, " making cognizance" or " well acknowledges," imports a justification in the right of another. 2 Chit. PI. 557, N. C. "Avow" in like manner, imports a justifying in one's bwn right; and in the same place we are told, that if one avows and the other acknowledges, without saying, as bailiff to the first, it will be error. The defendant, Givens, avows the taking, thus importing a justification in his own right, and shows the rent due to Mrs. Wigfall ; and Nathans acknowledges, as bailiff of Givens, whom the avowry shows not to ha\e been the landlord. Any agent to make a distress, is termed n bailiff. "If a man take cattle for services due to the lord, if the lord afterwards agree to the taking, he shall be adjudged his bailiff, though he was not his bailiff in any place before." 1 Bac Ab. Tit. Bailiff, 6. Subsequent assent amounts to authority. 1 Saun. 347, n. 4. If Givens had any actual share in making the distress, and they had authority from Mrs. Wigfal!, or she was willing to adopt their act, both should have justified as bailiffs. Or perhaps, if Givens was not actually present at the taking of the distress, but had authority from Mrs. Wigfall to employ Nathans as bailiff, he might have pleaded non cepit In that case, the authority of Nathans would have been direct from Mrs. Wigfall, and he should have justified as her Iniiliff ; while Givens, being merely regarded as the medium through which the authority was conveyed, could not have been considered as a party to the taking. The motion is dismissed. Johnson, concurred. 480 CHARLESTON, FEBRUARY, 1842. VOL. II. [*204 IN THE COUHT OF ERRORS. *-''(U1 *The State or South Carolina vs. E. Waterman, et al., " -^ sureties of J. L. E. Easterling, late Sheriff of Georgetown District. Tliese were actions of debt on the official bond of Easterling, deceased, late Sheriff of Georgetown district. The writs were issued to Spring Term, 1836, and the actions were prosecuted for the benefit of one Taylor, of New York. On the 2l>th April, 1836, after the commencement of these suits, C. & C, wlio were judgment creditors of Easterling, filed a bill in the Court of Equity for George town district against his executor for an account. On the 27th of the same month, the Court made an order for the creditors to file statements of their claims on oath, by the 1st January, 1837, with the Commissioner ; and another order, enjoining them from proceeding at law against the executor. The time for filing claims was afterwards extended to Januaiy, 1838. In January, 1838, the Commissioner made a report of claims which had been filed in his office against Easterling, in his official capacity only ; and the Court thereupon made a decree that the sureties pay the amount of said claims to the Commissioner, and that execution issue against them accordingly ; and further, that the credi- tors of the sheriff who had failed to file their claims, be perpetually enjoined from pursuing the same against the sureties. Taylor's claim was not filed in the Commissioner's office, and, at Fall Term, 1838, these cases, which had been on the writs of inquiry docket since Fall Term, 1836, were struck off. Notice was afterwards given to the defendants that a motion would be made to restore them ; and at Spring Term, 1839, such a motion was made, and affidavits offered on both sides. After hearing counsel, the Court made an order to restore them to the docket. The defendants gave notice of an appeal from this order, but did not prosecute it. On tlie call of these cases for trial, at Spring Term, . 184(i, the defendants again moved to strike them from the docket, and his honor. Judge Evans, presiding, granted the motion. Held, that it was an improper order in the Court below, and the cases were ordered lo be restored to the docket. Before Evans, J., at Georgetown, Spring Terra, 1840. Tlie above abstract presents the facts of this case, as they existed at tiie lime liie oidei- was made by his Honor, and the following are the grounds upon which the appeal was carried up, and which were argued in this Court. GROUNDS OF APPEAL. 1. Because tlie decree of tlie Court of Ecpiity, in the case of C. & C. against the e.xcculor of Kusteriing-, cannot have any lurllier effect than to exonerate the executor. The sureties of Easterling, us sherifl', are certainly liable for all claims against the shcrilf, whether filed and proved agreeably to the order of the Court, or not, so long as the amoifnt paid by them and distributed under Haid decree, is not equal lo iIk; penalty of their bond. *20r>| *'■"*■ l^,'-'"'^"^^*' tliti injunction, ordered by the Court of Equity, cannot effect 'J'aylur's rigiits, as he was never a party to the proceedings in the Court of E(|uily ; neither were the sureties of Easterling. 3. The (Tedilors of the sheriff cannot be restricted to a shorter period for bnnguig suits against the sheriffs sureties, on their bond, than that established by the law of the land. 4. Because the motion to strike the cases from the docket again, was irregu- lar, and ought not to have been entertained. *205] STATE VS. WATERMAN. IN ERRORS. 481 Curia, per Wardlaw, J. These cases were struck from the docket, either because it was supposed the injunction, ordered in Ecpiily, pre- vented the Court of hiw from proceeding, or because, under the view which was taken of the equity proceedings, all further attempts Ijy the plaintiff at law, were considered hopeless. But it does not appear to this Court that the Court below should have interfered to prevent the plaintiff from proceeding, if he would. An injunction restrains those upon whom it is properly served, accord- ing to tiie order and practice of the Court of Equity ; for breach of it, remedy may be had in the Court from which it issues ; but it is not served upon a Court of law ; and although a Court of law, regulating its own ])ractice, will sometimes, in reference to advantages which, l)y reason of an injunction procured by himself, a defendant at law might also ol^tain from lai)se of time, notice the fact that proceedings have been suspended by injunciion. yet it will not undertake to prescribe or enforce the duty of its plaintiff served with an injunction, but taking care that no surprise be operated, or unfair advantage gained, will leave him to determine his course, at his own i)eril. AYhether there was an injunction, whether it had been served upon the plaintiff, whether it restrained proceedings against the sureties, who were bound by it, are all questions for the Court of equity, which the Court of law was not properly called on to decide, and had not the means of determining The plaintiff, if advised to pursue his *rights further, rt-ona must for himself choose between proceeding at law, and going into ^ equity, to prove his demand upon the foot of the decree rendered there. The Court has been pressed to lay down general rules upon the sul)ject of creditors' bills, but being well content with the course of decision hitherto had on that subject, and })erceiving that, to the reasons upon which the jurisdiction and beneficial interference of equity in the adminis- tration of complicated and insolvent estates are elsewhere rested, may here be added the disturbance of legal priorities, which necessarily results from the sale by a sheriff, under execution, of the lands of a deceased insolvent, the Court declines to do more than decide the questions pre- sented at the threshold of the case in hand. The motion is granted, and the cases restored to the docket. Richardson, O'Neall, Evans and Butler, JJ., and Johnson, Harper, Johnston and Dunkin, Chancellors, concurred. Pelijru and Lesesne, for the motion. Hunt, contra. See Riley's Ch. Ca. 192. An. Vol, 1—32 4:82 CHARLESTON, FEBRUARY, 1842. VOL. II. [*207 ,^g„^ , The Treasurers vs. Stiles Rivers et al., Sureties of Wil- -"'-I LiAM Oswald, late Sheriff. In an action of debt on a slieriflF's bond, where the defendants pleaded perform- ance, " and the breach assigned by the plaintiff -was, that it was the duty of the sheriff to collect and pay over all tax executions which might be lodged, and that on the first day of June, 1835, there were tax executions to the amount of $1,739 78 lodged in his office, and that he did not collect and pay them over." To the plea of performance, there was a replication by the plaintiff, and the defendants demurred specially for the cause that the tax executions making the ao-trreo-ate were not specified. The demurrer was sustained, and the Ajjpeal Court refused to reverse the decision. Before O'Neall, J., at Colleton, Spring Term, 1841. These were actions of debt on the official bond of Wm. Oswald, the late sheriff of Colleton district, during bis term, commencing in 1825. The defendants pleaded performance, and the breach assigned, was, that it was his duty to collect and pay over all tax executions which might be lodged, and that on the first of June, 1825, there were tax executions to the amount of $1739 78, lodged in his office, and that he did not collect and pay them over. The defendants demurred spe- cially, for the cause, that the tax executions, making the said aggregate, are not specified. The Act of 1801, (Acts of 1801, p. 426,) directs that "the tax collec- tors shall take the sheriff's receipt for such executions for taxes as they may have lodged with him ; which receipt they shall produce in settle- ment with the treasurer ; and it shall be the duty of the Treasurer to transmit without delay, to the Comptroller, certified copies of all such receipts, to the end that he may be enabled to inspect the conduct of the sheriff thereon." The Act of 1813, (Acts of 1813, p. 21,) provides, that the sheriffs, within ninety days after the lodgment of tax executions, " shall make to the Comptroller a full and complete return thereof;" and failing to do so, the Comptroller is directed to " cause him to be debited ia the books of the Treasury, with the full amount of his receipts ;" and the Act declares, that he shall not afterwards be entitled to any credit for executions by him afterwards returned "nulla bona,'^ or " non est inventus." *208l *^^ ^^^ under this last Act, that the Solicitor undertook to -j su]i])ort his replication. The Court ruled, that it derived no aid from it. If his replication had set out, that the sheriff stood debited on the l)Ooks of the treasury to the amount of $1739 78, for tax executions lodged, and not returned, as by his receipt of the first June, 1825, and that he had failed to pay this sum, then it might have been a breach well assigned under the Act. But as the replication now stands, it charges the lodgment of sundry tax executions to the amount of §1739 78, and that they were not collected and i)aid over. This breach, it will be observed, does not comjilain that they were not returned within ninety flays after lodgment, l)ut proceeds on the general liability of the sheriff for not collecting and paying over. The object of pleading, is to nar- row the grounds between the jtarties in its several stages, and to reduce general charges to more definitencss and precision, as the parlies con- *208] BOWLING ET AL. (uh. HODGE. 483 tinnc to plead, so that the defeiidants may know the very matter with which the plaintiff' proposes to charge them. The replication here leaves everything uncertain. The demurrer was sustained. The plaintiffs appeal, ou the ground that the decision was contrary to law. Curia, per O'NEAiiL, J. This Court concurs in the judgment below. It is plain that the breach assigned, does not make the sheriff liable for the tax executions lodged. For it is not his duty to collect and pay over in all cases ; it is his duty to collect, if he can, and when collected, to pay over — but if he cannot collect, it is his duty to return "nulla bona,^^ or " non est inventus ;^^ and if he so does his duty, he is dis- charged. For anything which appears on the face of the replication, the sheriff may have, within proper time, returned every execution lodged with him, "nulla bona,^'' or " 7ion est inventiis.'^ Independent, however, of this, I think when the plaintiff's cause of action embraces many items or subjects of the same kind, and to each of them, if particularized, the defendant may have a defence, of which he could not avail himself, by a general answer to the replication, then it ought to set out the particulars. This, I think, *distinguishes r:(:c)/-|Q this case from the rule so well and correctly stated in 2 Saunders, '- 411, note 4. Here the defendant's principal may have paid over some of the execu- tions — some he may have returned "nulla bo7ia,^^ some he may have returned " non est inventus.''^ Here are three distinct defences, which could not come in under a general traverse of the replication. Hence the necessity for more particularity, and a clear assignment of the parti- culars in which the sheriff failed to do his duty. The motion is dismissed. BiCHARDSON, Evans, Butler, and "Wardlaw, JJ., concurred. Edwards, for the motion. Rhett, contra. See Supra, 14G. An. John Dowling, et al. , ads. John Hodge. Where proceedings were instituted in the Court of Ordinary, for partition and sale of real estate, and the citation or summons issued by the Ordinary, with the probate of service and return, never has been recorded or returned to th&. Ordinary's office, parol evidence is admissible to prove its existence, &c., in an action of trespass quare claitsum frcgit. Before Richardson, J., at Gillisonville, Fall Term, 1841. _ The subjoined report of his Honor, with the grounds of appeal, fur- nishes the history of this case and the points in issue between the parties. This was an action of trespass to try title to a tract of land, marked C, on the jilat adduced. The plaintiff showed a grant to Theophilus Barnes, October, 1793, for four hundred acres, who was in possession forty *years. In 1818, r^o-\n he divided the tract into four parts, "A. B. C. and D." He L -^" 484 CHARLESTON", FEBRUARY, 1842. VOL. II. [*210 crave A. B. and D. to his children, and retained C. After the death of Tlicophilus Barnes, proceeding-s were had before the Ordinary ; the land (O'w^as sold and purchased l>y John Hodges, the plaintiff ; sheriff's title to hira 3d August, l!<39. The tract C, was located and the tres- jiass proved. The defendant's counsel made objections to the regularity of the pro- ceedings before the Ordinary ; which were all overruled. The defendant also set up title by possession, and proved a very long possession. But I considered it plainly permissive and not adverse to the plaintiff's title. , And accordingly I charged the jury that the title of the plaintiff was plain and legal ; that none of the supposed irregulari- ties in the proceedings before the Ordinary, could invalidate the sale nuide by the sheriff to hira. That the long possession proved by the defendant, appeared to me to have been by the permission of the grantee ; and if so, it could not give the defendant title by possession. But the jury were the final judges, whether such possession had been permissive or adverse. The jury found for the plaintiff, and the defendant appeals on the fif- teen grounds annexed. These grounds require a narration of nearly the entire evidence, as noted from the proceedings before the Ordinary, and also of the manner of the defendant's possession of the land. The evidence is as follows : Evidence. 1st. Grant to Theophilns Barnes for four hundred acres, October, 1793. 2(1. Thomas Hanker. Grantee was in possession thirty or forty years. In 181S he had tlie huid divided into four parts, A., B., C, and D. — C. he retained, and gave the rest to his children. 3d. Proceedings in the Court of Ordinary to divide, &c. First, citation (but service does not appear.) Second, order to sell, April, 1S38. (These arc from the Ordinary's record book : originals not produced.) 4th. Title of sheriff to John Hodge, 3d August, 1839. *2m * ''• ^^' J^^9^^'^^^' Saw the citation, and witness took the oath of W. ' Mulligan that he served the citation on John Dowling and wife. R. G. Norton, Ordinary, lias searched and cannot find the original citation or summons ; he finds the petition. Tlios. Afankur. Has seen the original citation in hands of Mulligan, and his affidavit of service. (The competency of this evidence and Hogarth's, objected to.) Grantee sold A. — B. was given to a son, and D. to James Dowling, son of defendant ; B. was the eastern, and D. the western boundary of C. Cross-rxamincd. Witness was present when the Ordinary gave the order of sale to the .shuriir, and Dowling objected. Dowling had part of the land in cultivation, and had permission to cultivate it. Dowling had it in cultivation for fifteen, certainly ten years. ir. J/. J/>,ijartli. Knows the land, &c., has seen James, John, and Madison Dowling at wmiam must be coniiiiuuicated, otherwise not ; 17 Weud. (331, is but a continuation of tJie c.'is.f of '.I Wend.; 11) Pick, 81. He had tlie riglit to insure all, althouf;h a part iiiay be assij,'ued and assured elsewhere. The policy to the Coluuibia Company rov.-rs a greater amount of goods, 18 Pick. 523. The assignee might recover all, although a part only was assured for his benefit, 2 Marsh, on Ins. (3.54. If the second policy wore attached, a return of the premium ought to have been made. //. A. Dp SausHure, contra, said, the action is upon the contract. The goods are his own, and insured in that policy alone. It declares the consequence of a double assurance; the; policy is to bo void. No notice of such assurance makes it void. The fact, that two actions have been brought for the same loss, on the two policies, '224] NEVE VS. COLUMBIA INSURANCE CO. 493 shows that it is a douhle assurance. The plaintiff had the legal interest in the goods, whan they were assured. He had an interest to pay his judgment to Kohnke and to retain the balance. By the verdict of the jury, he is concluded from examining now the second ground of defence, in relation to misai)prehension and fraud. The first ground is irrelevant, because the real issue was, whether the same goods were twice assured ; the second and third are also irrelevant. The Judge's illustrative remarks are no grounds for a new trial. Memminger, in reply, said, what is a double assurance? Cited 3 Kent Com. 280. Two insurances on the same risk *and same intei-est, 4 Dall. 351 ; r#925 12 Mass. 214; 1 Marsh. 146, 152. Kohnke clearly had an insurable '- " interest, 1 Camp. 401; 5 B. & P. 299; 1 lb. 315; 3 Kent, 371. Was the Charleston insurance, an insurance of Kohnke? 6 Cranch, 274; 12 Mass. 80; Phill. on Ins. 41, G4. A mortgagor may insure a ship and not disclose the mortgagee. It is not necessary to disclose the interest, 2 T. R. 188 ; 2 Cains 13, note ; 2 Wash. 152. A party may divide his interest and insure as he can, Hughes, 91, 92. A broker may insure in his own name, and the parties may recover according to their respective interests. The law will make the parties to a double insurance, contribute rateably. Neve did not own the first insurance, when he was insured the second time. As to the assignment, cited 1 H. B. 239 ; 7 T. R. 347 ; contracts by specialty and by parol, 1 N. & McC. 249 ; bonds may he assigned by parol, 19 J. R. 95 ; choses in action may be assigned by delivery. The policy cannot be assigned, except in equity. The assignment or delivery operates alike. The plaintilF never had the first assurance. Kohnke never could recover beyond his particular interest, 9 E. 702 ; Phill. on Ins. The assignee after acceptance, may bring the action in his owia name, 8 Mass. Re^j. 517 ; 20 Marsh. 800 ; 17 Wend. (J31, rules that after assignment, the party may insure again, without notice of the first. The risk is not the same. There is a limitation in the Charleston policy, not in the Columbia. The conditions are construed strictly. Curia, per Butler, J. In approacliing the questions in this case, many of the difficulties have been removed by the opinion of the Court, in the case of Neve for Kohnke vs. The Charleston. Insurance Com- pany. (a) "Whether the stociv of goods described in this policy, was the same as that described and covered by the Charleston policy, was a ques- tion of fact, properly submitted to the jury, and so far from our being dissatisfied with their finding, we think there was sufficient evidence to have warranted it At the time the goods were sold to Neve, they were estimated to be worth not more than $2,200, and it seems probable, at least, that at that time he had no means of his own to increase the stock, and the profits must have been excessive *if by them he subse- r^j^Qop quently increased its value to $4000 or §6000. He himself suf- L *''" fercd his stock of goods, at two different times, to be valued at $3000, by taking a policy on them, at each time, for $2000. This question of fact being settled by the verdict, we must assume that two different policies have been taken, on the same stock of goods. And the main question in the case now occurs, was the policy on which this action is brought a double policy, and procured to be made without notice or by a suppres- sion of trutli, in relation to the first? Because if so, it is void by the terras of the policy itself, which contains this explicit clause: "In case the buildings or goods herein mentioned, have been already, or shall be hereafter insured by any policy issued from this office, or by any agent for this office, or by any other insurance company, or by any private insurer, such other insurance must be made known to this office, and mentioned in (a) Inf. 237. An. 49-1 CHARLESTON, FEBRUARY, 1842. TOL. II. [*226 or endorsed on this policy, othericise, this 2JoUcy to he voicV^ The Charleston policy is not mentioned in or endorsed on this policy; and I think the evidence was entirely satisfactory, that no notice at all of the former policy was given to the underwriters of this; otherwise, why was there not a memorandum of it ? Stript of all the extraneous circum- stances, the question resolves itself into this : Was Neve, the plaintiff, bound to give notice of the first policy? In fair dealing and good faith, we think he was. If he had parted with his entire right in the first insurance, by an equitable assignment to Kohnke, he might possibly have felt himself at liberty to take this policy without notice. I am, however, very far from sanctioning such an idea. He had the exclusive title to the goods insured, and does not occupy the position of a mortgager, who had assigned to his mortgagee a policy taken to secure his interest, and who might have been at liberty to take out another policy to secure his own, to wit : an equity of redemption. Such was the case in 7th and Hth Wendell, referred to in another opinion. There are many good objec- tions to the judgments on this point, in the cases referred to, but I am not called on to review or sanction these decisions. They may well stand on their peculiar facts, whilst the question in the case before the ^c)i)y,-\ Court would not be affected by them, for it has been shown, that *at "^ -J no time had Neve parted with his entire interest in the Charleston policy. He placed it in the possession of his judgment creditor, with only an equitable and limited interest in it. Independent of Kohnke's lien on the papers, Neve still could have collected the policy, and realized from it $]U00. In fact, it was legally his policy, and honesty required that he should have given notice of its existence, before he procured the one on which this action is brought. In addition to the fact of his giving no notice, as required by the policy, he suppressed the truth in relation to the former one, for he said to Mr. Robinson, that there was no other policy on the stock of goods, and that he had stood his own underwriter. If this be true, (of which I have little doubt,) the plaintiff was guilty of a flagitious fraud, which in fact, made his policies worth more than his goods, and if he could have realized the sums called for by them, it was bis interest that his goods should have been destroyed, as they were about three months after the last policy was taken, and about twenty days before the expiration of the first. Courts should sustain insurance companies in discountenancing double policies, as they weaken the inducement of tiie assured to take care of their property, and thereby jeopard the security and safety of whole cities. Prudence as well as justice, induces us to sanctifju the verdict of the jury, which has condemned the bad faith of the plaintiff. Insurance companies run risks, which is the source of their profits, but they are entitled to have good faith observed toward tliem. The motion is refused. Evans and Wardlaw, JJ., concurred. O'NiiAiJ,, J., having an interest in the Company, gave no opinion. '228] DERXY acts. FERGUSON & DANGERFIELD. 495 *Jane Dehay ads. Ferguson & Dangerfield. [*228 Where an action is l)rought by a party, on a hond given under the Trover Act of 1S27, "to be answerable for all damages wliich the defendant may sustain by any illegal conduct, in commencing and conducting the said action of trover," and the party sueing on the said bond recovers, a new trial was ordered, unless the plaintiff would release all the verdict except so much as was rendered for the taxed costs of the former action. Vide Brown vs. Spann, 3 Hill, 324, and note thereto. Before Earle, J., at Charleston, May Terra, 1841. Debt on bond ; pleas, non est factum, and non damnificatus. One Rhamo had brought an action of trover against these plaintiffs, for fourteen negroes, valued at $10,000; under the Act of 1827, he made the necessary affidavits, and the plaintiffs were required to give bond. Rhame, on filing his declaration, likewise entered into bond, with the present defendant as his surety, to be answerable, according to the pro- visions of the Act, for any illegal conduct in sueing out the said writ, or instituting the said action of trover. On the trial, there was a verdict for the defendants in that action, (the present plaintiffs,) and they had judgment and execution for their costs, with a return of nulla bona, whereupon they brought suit upon the bond given by Rhame and this defendant, on filing the declaration in trover. The plaintiffs offered no other evidence of illegal conduct in bringing the action, than the affidavit setting up a false claim to negroes not his own, and causing the plaintiffs to give bond in a large amount. They offered the record with the ver- dict and judgment for the defendants, and claimed for damages the counsel fees paid, and agreed to be paid, and the taxed costs of the action. The presiding Judge thought that the question arose only on the statute, and that making a false affidavit, and commencing a ground- less action, as was manifested here by the verdict, did constitute illegal conduct, under the Act, and made the defendant liable in this action. The jury were told that the plaintiffs were entitled to recover the charges of defending themselves from the false claim of the former plaintiff in trover, and that part of a counsel fee agreed to be paid, properly con- stituted an item of those charges. Tlie jury found for the plaintiffs, accordingly. *GROUNDS OF APPEAL. [*229 1. That his ITonor erred in charging that the verdict for the defendants, in the original action of trover, was sufBcient proof of the groundlessness of the action, and the falsity of the affidavit made to snpport it, and indeed was the test of the "illegal conduct," in commencing and conducting the original suit, which, under the trover Act, entitles the present plaintiffs to damages against the defendant. 2. That bis Ilonor erred in charging that the costs, and the counsel fees also, of the defendants in the original action, and as well the costs and portion of the counsel fees remaining unpaid, as the portion of the latter actually paid, were recoverable in the present action. 3. That tke verdict was, in other respects, contrary to law and evidence. Yeadon, for the motion, cited and referred to Spann vs. Brown, 3 Hill, 324 ; Bull. N. P. 11. The Act of 1627 merely subjects the sureties to the liabilities of the principal. 496 CHARLESTON, FEBRUARY, 1842. YOL. II. [*229 Petigru, contra, said tliat it was illegal to make a false claim in trover, luider the Act of '27. The liability for costs, arises from the illegal conduct of l)riiiging a false action. The counsel fee ought, as a matter of course, to follow. The party is amerced for bringing a false and groundless action. Curia, per Evans, J. la the case of Brown vs. Spann, 3 Hill's Reports, a construction was given by this Court to the trover Act of 1827 ; and, at the request of the counsel for the plaintiffs, we have heard further argument, and reconsidered that decision. But the re-argument has not changed the opinion expressed in that case, so far as it goes. So much, therefore, of this case, as involves the right of the plaintiffs to recover the counsel fees paid by them in the case of Ehame vs. Ferguson & Dangerfield, must be governed by the case of Broion vs. Sponn. But the question of costs did not arise in that case, and we are of opinion the plaintiffs may be allowed to retain so much of their verdict as covers *9'-^nl ^'^® taxed costs in Rhame's case, *without conflicting with the -' case of Brown vs. Spann. In that case, it is said, in general, the Courts are open to all who conceive themselves injured, and all may lawfully bring their complaints before the Court for adjudication. The only legal consequence of failure, is the payment of such costs as the law allows. In Buller's Niai Prius, it is said, " it is not actionable to bring an action, though there be no good ground for it, because it is a claim of right, and the plaintiff finds pledges to prosecute, and is amerceable pro f also clamore, and is liable for costs. It would seem from this, that although a man may bring an action without a legal cause, where there is no malice, without subjecting him- self to action for damages ; yet it is so far regarded illegal, as to subject him to the ])ayment of costs. The Act of 1827, no doubt, intended to require of the plaintiff the guaranty of a bond, with security, to satisfy any legal liability growing out of the action of trover, as well to secure the payment of damages where, by law, they are recoverable, as the costs where, as in this case, the plaiutifT is insolvent and unable to pay. "We are therefore, of opinion, a new trial should be had, unless plaintiffs shall release all their verdict, except so much as was rendered for the costs of the former action ; and it is so ordered. Richardson, O'Xeall and Butler, JJ., concurred. Wardlaw and Earle, absent. See Jeter vs. Glenn, 9 Rich. 380. ♦231] *Nathaniel Heyward vs. Eliza Searson. Whore a plaintifr, in an action of trespass to try title, has discontinued his suit, he haa no ri^ht to call upon a .Judge to certify his plat, when he is not properly iMifore tho Court. Th(3 certificate of the .Judge, if granted, would be extra judi- cial. Ik'forc Richardson, J., at Gillisonville, Fall Term, 1811. This was an action of trespass to try title, discontinued by the plaintiff. *231] HEYWARD VS. SE ARSON. 497 The defendant moved that slic bo i)ernrnted to introduce her surveyor, appointed by the Court, and swear him to the fact that lie liad platted the locui< in quo; and that the plat produced, represented it; and that the presiding judf^e should then certify, that the plat was the one made by the defendant's surveyor, under a rule of survey. The motion was refused, and the defendant appeals, and moves to reverse the decision on the annexed grounds. GROUNDS OF APPEAL, 1. Because the Act of 1744 provides, that if the plaintiff, in an action of ejectment, sun't-rs a nonsuit or discontinuance, he shall be barred, unless he recommence within two years ; which Act would be a nullity, unless the locus in quo is defined. 2. J3ecause by our practice, the description of tlie loois in the dochiration is loose and general, and without a plat, does not exhibit or fix the land in dispute. 3. Because the practice of the Court, is to certify the plat used on the trial, for the reason stated in the second ground, and the reason holds equally good in a case of nonsuit or discontinuance. Curia, per Richardson, J. Where a trial for land has taken place, and a verdict has been given, the judge certifies the surveyor's plat as a memorial, that that very plat is the one referred to by the jury, as pre- senting an accurate map of the land adjudged to the plaintiff or the defendant. But in the case supposed by the motion, the plaintiff having before discontinued his action, was already out of Court, as much so as if the discontinuance had been ordered years before; and no question liaving been decided, *the Judge could hold no cognizance of the rights r*wToi 01 the parties. '- The certificate of the plat would, therefore, have been altogether extra- judicial, and a piece of gratuitous testimony, in a contingent case, which had never been tried, and might never arise. As to the provisional rights of the defendant, which may arise under the Act of 17 44, (a) if the plaintiff shall not recommence his action within two years after the present discontinuance, they will de})end u})on such omission. And should that occur, the land that X. Heyward will have so abandoned, by his neglect, must, I apprehend, be such as he has described in his declaration. But the Court ought not to do an extra- judicial ex parte act, upon the mere assumption that such neglect is to take place ; on the contrary, both parties should be left precisely in the situation they have been placed by the discontinuance. The defendant to enter up judgment, and the plaintiff to look to the consequences that may arise under the Act of 1744, if he should neglect his right of bring- ing a second action within the time limited. The motiou'is, therefore, dismissed. O'Neall, Evans, Butler and "Wardla-w, J J., concurred. Wm. F. Ilutson, for the motion. J. D. Ednards, contra. (<0 3 Stat. G12. An. YoL. I.— 33 498 CHARLESTON, FEBRUARY, 1842. YOL. II. [*233 *233] *G. Heisembrittle ads. City Couxcil. The City Council of Charleston have the right tinder the constitution of thifs State, of passing an ordinance to prevent shop-keepers, (other than those licenced hy ' the city.) from keeping any spirituous liquors, wines, &c., in their shops or in any adjacent room. Tried ia the City Court, before J. Axon, Recorder, at Charleston, November Term, 1841. This was a process for a violation of a city ordinance, prohibiting the having of spirituous liquors in a room adjacent to his shop. Tliere was no question as to the fact of the liquor being there. The only question was, whether the defendant was owner of the shop. The following is the testimony. Isnnc A. Rutland, sworn, proved the liquor in shop, that defendant was in the charge and management of the store, that he went there as deputy sheriff to arrest defendant on civil process, he asked indulgence until he got some one to put in charge of /»'.< shop. James A. Millar, sworn, said he saw defendant at the door of his shop, on 16th January last, has seen him serving at the counter ; a charge was made by witness as Marshal, against the owner of this store, for exposing goods on pavement ; directed the notice of tliis charge to Mr. Heisembrittle ; the brother of defendant came and paid the iine. Plaiutiif's testimony closed. Defence. M. H. Meyor, sworn, said that Henry Heisembrittle was tlie owner of that store, (corner of Church and Chalmers streets,) last January; was at Henry Heisem- brittle's store in Meeting street, about that time, when the owner of the house where the shop is kept, brought a lease of it to Henry Heisembrittle. Cross- examined, has known defendant two years, witness has been here since 1835, knew Henry about the same time ; Henry owned a shop in Meeting street, saw him there week before last ; knows that Henry slept at his shop in Meeting street ; has been ^Q., , -■ there with him until eleven o'clock at niglit, and left him there as his *home ; -' don't know if he owns that shop now. When he first knew defendant, he was clerk on South Bay ; has seen defendant at the shop, corner of Church and Chalmers streets, for about twelve months ; has seen Henry sometimes in Meeting street, and sometimes at the corner of Church and Chalmers streets. IJcnrij Heisembrittle, sworn, said he owned the premises at the corner of Church and Clialmers streets, in January last : he paid the fine alluded to by Millar ; has since sold the shop to BnlnnnUe. Cross-examined, he lives now in King street. Defendant is now clerk of Bulwinkle, at the same shop, he leased the house from Mr. Monznn ; his brother (defen:.-)qQ story wooden building, with shingle roof, and in the cellar. No, 31 L " State street, Charleston, occui)ied by him (William Neve) in the grocery business, and as a residence." On the night of the 27th of April, 1840, the building and entire stock was consumed by fire, and on the 28th, the next day, Neve rendered iu a statement to the defendants of his loss, amounting in the aggregate, to $6,500. A question was made iu the case, as to the statement, and I have annexed a copy of it to this report. Tlie same day on which Neve rendered his statement to the defendants, or soon after, Mr. Moise, who was the legal adviser of Kolinke, and in whose possession the policy had been jilaced by Mr. Klinck, the day after the fire, went to the office of the defendants, and gave to the President, ^Mr. Street, notice of the claim of Kolinke, and seemed to have inquired as to tlie intention of the Com- pany, for Mr. Street informed him, that he would ])refer to submit the matter to the board of directors, before he would give an answer. The next day, or soon after, .Mr. Moise called again, and J\Ir. Sireet then informed him, tiiat the Company declined paying the amount, because Neve had effected a second insurance, and because the directors believed 502 CHARLESTON, FEBRUARY, 1842. VOL. II [*239 tliat the premises had been fired by Neve, or some objection similar in substance, and manifesting that they supposed Neve had not acted fairly in the matter. Nothing further passed between the parties — and soon after this action was commenced for the present plaintiff. At the trial of the case, the fire, and the destruction of the building and contents, were proved. The value of the stock was not a matter concern- ing which the witnesses agreed. The stock in the store was proved to have consisted of groceries, licpiors, and some inferior or common dry goods, such as homespuns. And it seems that one side of the store was kept for these dry goods, but the value, as a portion of his stock, was not proved, except generally, that the goods were of a common kind. Mr. Estill thought the whole stock worth about $4,0U0, but his opinion ■was leased upon the price that Neve had asked for the stock about six months before the fire, on some occasion when Estill introduced a friend *oim ff 'his to *Neve, in consequence of learning from his friend, that -• he was desirous of engaging in that kind of business, and learning also from Neve, that he was desirous of selling out his interest in the stock, and changing his business. Except from this circumstance, and a cursory view of the store, when he was making his purchases, he professed to know nothing of the value of the stock. Mr. Burckmyer thought the stock was worth about $1,500. Mr. Rose, who was engaged to take an account of the stock at the time of the sale from Kohnke to Neve, proved that it was then put down at $2,200. Mr Robinson thought the stock was not worth more than 2 or $3,000. Upon this proof the plaintiff rested his case. For the defendants, several objections were urged. 1. Thiit there hud been no conipliunce with the eleventh condition of the policy — that no certificate, as is required by the terms of that condition, had been proved to have been submitted to the defendants — that a strict compliance with this, was in the nature of a condition precedent, and without proving per- formance, there could be no cause of action. 2. That the interest of Kohnke in this stock, was not an insurable interest, and if it was, it should have been so described, in the policy, and so represented at the time of maiiing the insurance. 3. 'J'liat there was no assignment of the policy. That mere delivery of the policy did not give the holder the rights of an assignee, but only of a depository who had no higher right than the original assured. 4. That tlie ])olicy being void, so far as Neve was concerned, by the second insurance, which he had made without notice, it was void also in the hands of all parlies who claimed through hi"i. 5. That there was sufficient evidence of fraud, to warrant the jury in render- ing in a verdict for the defendants. In relation to the second insurance, the following provision appears in tlie policy, "and if the saiil assured, or his assigns, shall hereafter make any other insurance on the .same property, and shall not, with all rcason- ♦ 241 1 ^'*'^' (JiliRcuce, *give notice thereof to this Company, and have the -I same endorsed on this instrument, or otherwise acknowledged by them in writing, this policy shall cease, and be of no further effect." The .same grounds that were taken below to resist the recovery, are now taken on the apjjcal, and I will give the result of my judgment, rather than my reasons for it, on each one, in the order iu which they arc stated. *241] CHARLESTON INS. & TKUST CO. a(h. NEVE. 503 1. I regarded a compliance on the part of tlic plaintiff, with the 11th condition in the policy, as a condition precedent; and that t lie defend- ants had a right to reqnire a certificate from a clergyman or justice of tiie quorum, stating that he believed the property insured iiad been destroyed accidentally or without criminal design by the i)laintilf — no such certificate was produced on the trial. The certificate of one Jef- fries was produced, who was not proved to be, nor was he, I believe, either a clergyman or a justice of the quorum. From the fact that plaintiff was advertised by plea of the defendant, that such certificate was required, it might be inferred that he could not produce one ; for I am inclined to think, that he would iiave regarded it as a snflicicnt compli- ance with the condition, if the ])roi)er certificate liad been produced at the trial. Although this preliminary proof was necessary to subject the Insurance Company to liability, it was, nevertheless, in their i)Ower to waive it, and to rely exclusively on other grounds of defence ; and it was contended, on the part of the plaintiff, tiiat such evidence had been waived, when the policy was presented for payment. This depended entirely upon what Mr. Street said to Mr. Moise — Mr. Moise seemed to have regarded it as a waiver, as the proof was not insisted on at the time, and it may have been so — when, however, the agent of the Com- pany said, that his refusal to pay was founded on the belief that Neve had fired his own house, as well as that he had effected a double insu- rance, it seemed to me (and I said so to the jury) it was not a waiver of any evidence that was requisite to satisfy the Company that the house was not burnt by design. As I observed by adjudicated cases, that this is always a question of fact to be sul)mitted to a jury, I sul)mit- pg -c, ted this to the finding of the jury. What is or is not a waiver of L "^ -■ preliminary proof, must depend on circumstances, and the language used at the time. In general, I thiidc it is right that the Company should insist on the proof, at the time the policy is presented for [)ayment after the loss. 2. It was apparent that Kohnke had no legal interest in the property insured. His only interest was that of a general lien by his judgment, to the extent of $1,000. 1st, was this an insurable interest; and 2d, was it the interest which the Company had in view at the time the policy was under-written ? I am now inclined to think, as I thought on the trial of the case, (though I did not think so on the trial of another case with which this is connected,) that a lien by judgment may be made the sub- ject of insurance — it is insurable, provided it be made known to the underwriters to be the subject of the policy. The great security which the underwriters have against the risks insured against, is, that the assured shall have an interest to preserve the property — hence they will rarely insure beyond the interest of the assured. The underwriters con- sented in this case, that the policy might be assigned to Kohnke, and from that circumstance, they may have been aware of Kohnke's interest. I would infer, however, that they supposed the confession of judgment was for the wtiole amount of the goods sold. I said to the jury, that if they were satisfied that the Company knew what Kohidce's interest was, they might regard the policy as covering it for his benefit. 3. On this ground I had great doubt — the assignment was not written until after the risk had occurred, but the policy was put into Kohnke's 504 CnARLESTOX, FEBRUARY, 1842. VOL. II. [*'2 1^2 possession nt tho time it was executed. Iiulecil, it was said that Nevo never had possession of the i)aper — was the delivery to Kolinke a g-ood assi-xnnient ? The policy beiuf"- a chose in action, was not assignable, so ns to ltnnbia ollice. ^Vhere the us- snreil have double ])olicies, they have little interest to take care oi' tho jM'operty insured, anil might yield to a crinunal temptation to ilestroy it. AVas, then, the making the second jiolicy a double judicy ? This depends on the character of the lirst, and Neve's interest in it. Uut for the last, the lirst would have been good for $_*,00t), to be ilividinl between Neve and Kohnke. .Vs far as Neve's interest was concerned, 1 thought it forfeited by his fraud. Did this deprive him of the right of recovering for Kohnke the extent of his equitable iiderest '/ — I thought not.. Tho jury found against the defendants on all [joints in which Kohnke was concerned, anil found for tlie plaintilV the amount of Kohnke's interest in the policy, to wit, $1,000 with interest. SlnUmciit of the loss of William Neve on his stock in trailc at theftre on the 11th April, 18tt), in the Vharleston Insurance and Trust Conipani/, for !?2,(HH\ assit/nvd to C. F. Kohnke — store situated in State street. Amoiitit of stiM'k in store, $(!,r)00, Avliieli eonsisted of litiuors, to wit: WiMi> .•mil IJiiiiuly, - $,''),, "4H1 I'liiiiT, .Me, ;iii(l Cider, l!tH> Qrocorii'.H, to wit ; Hu-ar. Tea, aihl IJir,-, .Vc., ."ve., 1,000 $(;,500 Ttioro was imtliin^' s.hvimI. *2M| "liKOlNUS OF AlTKAIi. 1. Tliiit llieeomlilioa in tlie poliey, us to the mode and form of stating u loss, is IV condilidii iireeeiient, on the \uu-i of the ussiueii, and that until the loss and claim is niiide us direetcil in the said eoiulitioii, tlieri> is no euiise or right ol'aetion uguiiisl the insurer, 'riiiit ia this ease, there was no sanieient proof of a waiver of a ]u'eliiniiiury itrool", or unv part of it. 'J. 'i'ii.il the party pluiatill, nmst piuvi- an interest existini-- at the time of the *2-44] CHARLESTON INS. & TRUST CO. ads. NEVE. 505 niiikiiig of the policy, ami at the time of the loss. And that in this case there was iiu proof of an interest at the time of n)ukin<( the insurance. 3. That a ])olicy on <^roce)'ies and liquors, assi<,nied to a judgment creditor, does not protect the judgment creditor in case of loss. Because a judgment is not an insurable interest, and because if it is, it is not covered by a policy on groceries and licpiors, but ought to be described specially. 4. That an assignment of a policy of insurance, to be valid, so as to entitle the assignee, to a right of action against the assured, must be a perfect transfer of the right of the assignor, executed in as formal a manner as the instrument to be assigned. 5. Tiiat the possession of a policy without assignment in writing, gives the party holding the policy, only the rights of a depositary, and makes him liable to all the defences against the original insurer. 6. That the second insurance by Neve vitiated his claim, and all parties claiming through him. That Kohnke, being a mere depositary, and claiming through Neve, is barred of all claim, from Neve having avoided the policy by a second insurance, without notice. 7. That the facts of the case sufficiently made out a case of fraud, which is sufficient to avoid the policy of insurance. 8. Because the verdict was in other respects against law. Magrath, for the motion, cited first, as to the question of preliminary proof, 6 T. R. 7H» ; 2 IT. B. 577, note ; 1 II. B. 258 ; Hughes on Ins. 390 ; Ellis on Ins. 10. The conditions* of tlie i)olicv, Mr. Magrath contended, must be compUed r*24ii with: cited (J Wend. 488; 2*^ Pet. 53; 7 Cow. 4tJ5 ; 12 Wend. 457; PliiU. '■ on Ins. 15b', 157. The conduct of the president of tlie company did not dispense with the necessity of tlie preliminary proof; was there in tlie acts of tlie president any waiver ? 2. Was there an insurable interest 1 cited 1 Phill. on Ins. 27 ; 4 B. P. C. 431 Ins. 18. 3. If there is an interest, it must be set out fully and truly : cited 1 Pliill. G4 4 Taun. 331 ; 2 ,1. Cas. 353 ; 3 Ikirn. 1401. 4 and 5. As to the assignment, cited Bac. Abr. Title Assignment ; 2 Co. 56(5 the note J. Phill. on Ins. 11. The assignment must be a perfect transfer of the right of the assignor, executed in as formal a manner as the interest assigned. One in the possession of an interest delivered to him as a lien for his security, has a mere authority to receive in the name of the principal ; and hence any defence against him is good: 10 Sarg. & Rawl. 412; Harp. 334. He has a mere equity, and is of course liable to the same defences which the original insurer would have. The assignee is considered as tlie original insurer. 5 Pick. 81 ; 8 Wheat. 268. The (jth ground depended upon the previous assignment. Kunharrit, contra, said, 1st. That the preliminary proof might be waived ; and in support of this proposition cited 6 H. & J. 408. The proof will not be required, when payment is demanded it is considered as waived : 2 J. 192. 2ud ground, cited Phill. on Ins. 17. If there is a possibility of loss, the party has an insurable interest : Pliill. on Ins. 53 ; 1 Marsh, on Ins. 1(15 ; 2 lb. 789. Is it necessary to mention the interest? 10 Pick. 40 ; 1 Caines, 27(3. Both of those cases decide that question in the negative. 3rd. He contended that the jiolicy was for the benefit of Kohnhe, 9 Wend. 404. No act done by Nfve could atlect Kohnke, 1 N. & McC. 449 ; 5 Wheat. 277 ; 2 Bay. 209 ; 9 E. 72 ; Park, on Ins. 280. A party having a partial interest may recover the whole amount assured, 18 Pick. 523. Moise, on same side, alluded to the attempt of the *Insurance Company r^oig to get rid of their liability, on technical grounds, as being inconsistent with •- general principles. 1st. Is there any evidenee that .Jelfreys is not a magistrate or a clergyman ? It is for the defendants to sliow that he was not a magistrate or clergyman ; cited G Cow. 404 ; Dud. 150 ; 7 Cow. 4(55. The proof was waived by the president with the consent of the directors ; this was sufficient, 20 Pick. 389 ; waiver, ur that proof was made, may be presumed, 2 Wend. 64 ; the silence of 506 CHARLESTON, FEBRUARY, 1842. YOL. II. [*246 the defendants is evidence of a waiver, 10 Pet. 540 ; 9 Wend. 404. A mortgagor or mortgagee each mav insure, and the mortgagee may insure in the name of the mortgag-or. 1 Bay. 24(3. Interest insurable, Marsh. Ins. 91 ; any thing is insur- able, IPet. 103- 3 Kent. Com. 276; pecuniary loss is enough. The consent of the Insurance Company, and the possession by Kohnke, is evidence sufficient of the assignment to him. Harp. 15U ; payment to the holder of a bond endorsed in blank discharges the obligor. The company made the policy negotiable by their consent. 1 Hill, 172 ; an assignee may fill up a blank assignment. 3 Coke. Rep. 26 : 8 lb. 85 ; 1 Salk. 301 ; 1 Burr. 502 ; Shep. Touch. 58 ; 2 Tread. 770. A deed delivered for the use of another is sufficient. Curia, per El'tler, J. This case presents some questions of intri- cacy, rather from the confusion with which the parties have made tlicir contract, than from any difficulty in pronouncing on the justice and legal character of the principles involved Policies of insurance are made on the confidence that the contracts under them will be observed and kept in good faith by all the parties connected with them ; and they sliould be freely and liberally construed by Courts to effect the intention of the par- ties; when the risk occurs which is covered by the policy, the under- writer should promptly indemnify the assured, without evasion or com- plaint. On the other side, the policy sliould always be obtained on fair representation, and the risk should not be subsecpiently increased by fraud and misrepresentation. The finding of the jury in this case con- victs Neve of a fraud, and is a censure on the company for insisting on the preliminary proof, so far as Kohnke is concerned ; one may be just, but I think the *other is not ; I thought at the circuit, and am still inclined to the same opinion, that the defendant had a right to insist at the trial on the production of the preliminary proof, as a condition precedent to the plaintiff's recovery. A majority of the Court think, however, that the proof was waived by the company when demand was made for payment of the policy, and they therefore sustained the finding of the jury on this point. It is always in the power of the under- writer to insist on the evidence alluded to, at the time the policy is pre- sented for payment ; and when it cannot be produced by the assured, it would be strong evidence that the risk had not been the result of acci- dent. At any rate, having contracted with the underwriters, that a stranger would do some act to entitle the assured to recover, the stii)ula- tioii, however unreasonable, must be complied with ; I do not think my- self that such a stipulation is unreasonable. It is founded in prudence, and should not be dispensed with on the part of the underwriter, when there is good ground to believe that the risk has been brought about by fraud and criminal design. The defendants in this case may have for- borne to demand tlie preliminary proof, under some a})i)rehension that if it had Ijoen ])roduccd, it might have prejudiced their case on the trial of the main issue. I do not think that any intention of a waiver on their part. Hut their conduct may have deceived others, who might have been aljle at the time t(» comply with a specific regidation, if it had been made. And as they did not make the requisition at the time, it is perhaps right. This jxtint must therefore be regarded as ruled against the de- fenflants by the verdict of the jury. All the other grounds resolve themselves into this question. Had Kohnke, at the time the [lulicy was e.\ecuted, or afterwards, any interest *247] *24:72 CHARLESTON INS. & TRUST CO. ads. NEVE. 507 iu it tliat can be recognized and protected in a Court of law ? And if so, was it such an interest as could not be destroyed l)y the hand of Neve ? Which involves the further question, had Neve any interest at all in the policy after it was transferred to Kohnke by delivery ; retain- ing no right iii himself? It is certain that by the terms of the policy Kohnke had no legal interest in it that could be enforced in his own name. The policy is taken in Neve's name on property of which he *had the legal title. The i)remium of two thousand dollars for r*243 property valued at three thousuuil, at the rate of two and a half per cent, was paid by him. In placing it in possession of Kohnke, by the consent of the underwriters, to " a.s.-jin-e" Kolmke, as it is exi)rcssed, he gave Kohnke thereby only an equitable interest.('r ) Such, however, as a Court of law will recognize for the purpose of doing justice in a strictly legal proceeding in the name of the assured. Had the policy been assigned in the most solemn form, it would not have given Kohnke a legal right to sue in his own name, or to insist on any legal right. Iu such case he would have had no more than an equitable interest. As a de- pository, he has the same interest, if the policy was delivered to him before the risk happened, of which there could be no serious doubt. liV' hatever his interest was, though equitable, we think was acquired howi fide by the consent of the company. They knew the circumstances under which the goods was insured ; that they were in the actual possession of Neve, while the other had a general lien on them. And the company undertook to protect this general lien by letting the policy go into the possession of Kohnke as his assurance ; and they could not deprive him of the benefit of this security without fault on his part. If it had been otherwise, per- haps, the risk would not have happened, as it may have increased Neve's interest to procure another policy, and diminished his diligence in taking care of the goods in his store. The vigilance of self-interest is the eye of prudence ; and when that is weakened, the underwriters of a policy increase the danger of their liability. They must do what they intended for Knhnke, and cannot let his rights suffer by the wrongful acts of Neve. "We think, therefore, that as this action was in fact for Kohnke's benefit, he was entitled to be indemnified to the extent of his injury. According to this view, it will appear that Kohnke had not an absolute, exclusive and indefeasible interest iu the policy ; but that as an additional security to his confession of judgment it was contingent, collateral and cumula- tive. In no event was it worth to him more than $1000, whilst it might have been worth to Neve $2000. Could it be questioned that Neve had it in his power to redeem this *security, and to acquire a per- r^ji-^in feet right to it by satisfying the judgment ? Suppose he had paid ■- off the judgment in two days after it was confessed, would the under- writers of the policy have been entirely discharged ? Such a pretence, on their part, would have been inconsistent with common sense, and their undoubted intention at the origin of their contract. They never could have supposed that they had improved their condition, when they consented that Kohnke should be assured or have an assignment of the policy. They always regarded themselves as liable for $2000, provided goods to that amount should be destroyed accidentally by fire. The (a) See 5 Strob. 146 ; 11 Rich. 437 ; 7 Rich. 405. 508 CHARLESTON, FEBRUARY, 1842. VOL. II. [*24^ fact of suffering: two parties to be interested in the same policy, could net diminish their liability. As an action on a policy of insurance is one of indemnity, no party can recover beyond his loss ; and if but twenty dollars' worth of goods only had been destroyed by the fire, no party could have recovered beyond that amount; and for the like reason, should no party be allowed to recover beyond his actual interest. The jury, therefore, properly restricted the recovery of the plaintiff in this case, to Kohnke's loss, notwithstanding goods to a larger amount may- have been destroyed ; for Neve, by his own unfair dealing, subsequently deprived himself of any right to avail himself of any interest under this policy ; as it contains the common clause, that if any subsequent policy should be obtained on the same stock of goods, without notice, this policy should be void. As it will appear, in another case, a secondary policy was obtained without notice, and for that reason it is right that Neve should forfeit his rights under this by his own fraud. It is said, however, that Neve having parted with all right to this policy, he had no interest in it ; and, therefore, he was at perfect liberty to procure another without notice. That suggests a recurrence to the question, what interest had Kohuke in this policy ? I have before said that he had the defeasible interest of a surety — and I think that this view is fully supported by the final judgment in the case of Bohert vs. The Traders^ Insurance Com- 2Xiny, 9 Wend. 404, 4Y4 ; 17 Wendall, 631. In that case Robert had procured policies of insurance on certain buildings, which were mort- gaged to one Bolton. The policies, by the consent of the com- *9Tnl P^^^'* '^^'ere assigned to Bolton. After the houses were burnt, -■ Bolton, in the name of Robert, recovered judgment on his poli- cies ; this judgment was paid off by and assigned to Robert — who thereby claimed all the rights intended for him under the original policy, and it was decided that his right to the policy was restored so soon as he removed the mortgage, or paid the judgment rendered on its fore- closure. The case was elaborately considered and carried through all the Courts of New York. See it as reported in Wendell, G31. Senator Edwards delivered the final judgment in the Court of Errors. Speaking of this question, he says : " Let us then in the next place inquire how far the rights of the parties were aflected by the assignment. Thomas Robert owed Francis Bolton a debt of $5500, secured by his bond and mortgage on the buildings in question, &c. He owned three policies of insurance, in each of which it was stipulated that the interest of the assured was not assiguiiljlc without the consent of the company manifested in writing. That right being obtained, &c., the policies were assigned to Bolton, as colhiteral security for the payment of his mortgage. Did the fact, that they were so assigned, give Bolton the absolut'e indefeasible interest in the policies, or only a collateral interest for the time being ? I am of opinion that he had only a collateral interest, liable to be divested when- ever Rol)ert paid the mortgage ; and when the company consented to the assigiinicnt, they consented to it for the purj)Oses for which it was made, and tliis consent gave him the right then ; but this could not alter or diminish the extent of tlie lial^ility of the company." This case does go so far a.s to say that after Robert had made his assignment, he could take another policy on his interest as mortgagor without notice of the policy assigned. I suppose that was on the ground that he could act bona fide *250] BOIES & STUKE (ids. THE STATE. 509 in taking a subsequent policy whilst the right under assignment subsisted. Whetiior I could sanction, by my judgment, this part of the case, I am not called on to determine. For the right of recovery on the different policies, would depend on the interest at the trial — and the second policy might be worth little or nothing, if there could have been a full recovery on the first. The point I wisli to present, *is, that the t^j^qki first policy was not absolutely vested in the assignee, Kohnke — L and all that could be recovered on it was Kohnke's interest, when Neve had forfeited his right under it. Had Kohnke held the policy under an assignment made cotenii)oraneously with its execution, as his only secu- rity, then he would have been entitled to recover the whole amount, pro- vided the goods destroyed were of no less value than that amount at the time of the fire. In Hamhleton vs. Mead, 2 Burr. 1210, Lord Mansfield said : " the plaintiff's demand was for an indemnity ; his action then, must be founded on the nature of the damnification, as it really is at the time of the action brought." The recovery of Kohnke might have been less than the $1000, but could not have been more. This shows that he had not the entire interest in the policy ; and if the whole amount could have been recovered, it would have been as much for the benefit of Xeve as Kohnke — the one having a legal and the other an equitable interest. Keve's right became extinguished by his taking another policy without notice of the existence of the first. In attempting to procure two poli- cies, he forfeited, by the terms of the policies themselves, his right to recover on either, as will be seen when the case of the Columbia C(jmpany comes to l)e considered. We think the jury have hit the justice of the case, and therefore refuse this motion to set aside their verdict. Richardson, O'Neall, Evans, Butler, and Wardlaw, JJ., con- curred. *BoiEs & Stuke ads. The State. (r/) [*252 Wliere two persons wore jointly indicted for receiving stolen goods, and one of them w.-is acquitted, the acquittal of one does not operate as a discharge to the other. Before Earle, J., at Charleston, May Term, 1841. The defendants were jointly indicted for receiving stolen goods ; pleaded not guilty, and were tried together. The verdict was, guilty as to Boies, and not guilty as to Stuke. There had been a former indictment against them for the same offence, including the charge of larceny; and on the hearing, this was quashed by the Circuit Court ;(^) the Attorney-General appealed from this decision, and this motion was still pending when the present indictment was found by the grand jury. The counsel for the defendants relied on this to abate the present prosecution, and pleaded it in abatement, or had leave to do so. But the plea was overruled, and the case was sent to the jury, who, on very (rt) Same parties, two other cases, 1 McM. 189, 191. An. (6) 1 McM. 189. An. 510 CHARLESTOX, FEBRUARY, 1842. YOL. II. [*252 clear evidence, convicted Boies. The Court overruled the other o:round taken, that as they were jointly indicted, there must be proof of a joint receiving, and that both must be convicted, or neither; and the jury were instructed that they might convict both, or either, according to the evi- dence. A motion was made in this case, in arrest of judgment, or for a new trial, on the following grounds: Ist. Because the indictment, in this case, charged a joint receiving, and the acquittal of one of the defendants, operated as a discharge to the other. 2d. Because the evidence in this case did not prove a joint receiving, which was necessary to the conviction of the defendants, under the charge in the indictment. 3d. That his Honor erred in refusing permission to the defendants to plead in abatement, nnnc pro tunc, the pendency of a prior prosecution for the same cause, ruling that such a plea was immaterial. 4th. That the defendants having been jointly indicted for a joint offence, a conviction against one only, cannot be supported, and his Honor erred in so *2531 ^1^''^''8'"'»- -■ ''Slh. The verdict was contrary to law and evidence. Kunhardt and Yeadon, for the motion, cited, in support, 2 Eng. Crown Cas. 257. II. Bailey, Attorney- General, contra. Curia, per Evans, J. The first, second and fourth grounds in this case, are founded on the supposition, that as the defendants were indicted for a joint offence, the proof, to authorize the conviction of either, must correspond with the allegation. On the civil side of the Court, if a joint contract be alleged, the proof must correspond ; but for torts, the rule is different; a verdict maybe rendered against as many as are proved to have participated in the tort; and for those who are not guilty. The same rule prevails in the Criminal Court. The indictment may charge many, but if the proof be only against one, he may be convicted and the others acquitted. The authority cited from 2 English Crown Cases, 257, docs not, as the defendant's counsel supposed, sustain his position. It goes no further than to maintain what no one doubts, that successive acts cannot be given in evidence under a count charging a joint act. The third ground was not argued, and is considered as abandoned. The motion is refused. Richardson, O'Neall, Butler and Wardlaw, JJ., concurred. Earle, J., absent. *254] *The Commissioner in Equity vs. Thomas McWhorter. Where an nnautliorized inquiry has been instituted in the Court of Chancery, and so dnclarod hy the Court itself, the deposition of a witness wlio deposed in the clinncery casf, and wlio has since died, will not be received by a court of law in n suhscijneiit cause between tlic same parties. Before O'Neall, J., at Barnwell, Spring Term, 1841, who reports as follows : The negro slaves of the late Charles Milhouse, deceased, not specifi- *254] COMMISSIONER IN EQUITT V io wit: Bakxwell District, j Thomas M'Wliorter, Richard W. Walker, and William P. Walker, were sum- moned to answer to Alfred P. AMrich, successor in office of Gasper J. Trotti, Com- missioner in Equity for Barnwell, of a plea of debt, that they render unto him the full and just sum of thirteen hundred and forty-six dollars, which to him they owe, and from him unjustly detain, and so forth. And whereupon, the said plaintilf, by Patterson, his attorney, complains that whereas, the said defendants, on the thirteenth day of February, in the year of our Lord one thousand eight hundred and thirty-seven, at Barnwell, in the district and State aforesaid, by their certain writing obligatory, commonly called a bond, sealed with the seal of the said defendants, acknowledged themselves held and firmly bound unto the said Gasper J. Trotti, commissioner as aforesaid, in the aforesaid sum of thirteen hundred and forty-six dollars, to be paid to the said Gasper J. Trotti, his succes- sors in office, or assigns, when they should be thereunto afterwai'ds required. Nevertheless, the aforesaid defendants, although often required, the said sum of thirteen hundred and forty-six dollars have not as yet rendered, but the same to the said Gasper J. Trotti, as such commissioner, or to the said plaintiff, his succes- sor in office, refused, and still refuse to render; wherefore, the said plaint ifl', as commissioner aforesaid, is worse and hath sustained damage to the value of one hundred dollars, and therefore he brings suit, and so forth. And the said plain- *2601 *'ff P™fliices here in Court, the writing obligatory *aforesaid, which testifies the debt aforesaid, in the form aforesaid ; the date whereof is the day and year above written, and so forth. PATTERSON, Plaintiffs Att'ij. Ami the said defendant saith that the within supposed writing obligatory is not the act and deed of the said defendant, and of this he puts himself on the country, and so forth. BELLINGER & WIMBISH, Defendant's Att's. The plaintiff will take notice that the defendant admits the execution of the liond, Mild under the Act of Assembly of 1831, will offer evidence to show that the negro, (for wliose purchase the bond was given,) was diseased at the time of sale, and of no valm;. BELLINGER & W., DcfcndanVs xUVs. And the plaintiff doth llie like. PATTERSON, Plaintljff's AtVy. CLERK'S OFFICK, ) I hereby certify that the foregoing are true copies of the JiarmixU Distrirt j declaration, plea, notice and similiter, in the order in which, they stand on tlie original record. ORSAMUS D. ALLEN, C. C. P., Per V. J. WILLIAMSON. ^260] BECK VS. MARTIN 515 Ann Beck vs. W. E. Martin. The general rale of law is, that partners are bonnd by the acts of each other ; and where one of a law partnership obtains the possession of a letter (containing an authority to take care of the interests of the plaintiff,) directed to the other partner, and acted under the instructions contained in the letter, it was held, that the i)laintiff was lioiind by the act of the partner, as much so as if he to whom the letter was directed had received it, and acted upon it. Before Richardson, J., at Gillisonville, Fall Term, 1841. This was an action of trover to recover a negro, (Richard.) Ann Beck held a mortgage of Richard and several other negroes, from her brother, Josiah Beck. Col. Rice, sheriff" of Colleton district, got possession of the mortgage; and having also junior ^./a's. against Josiah Beck, sold Richard at public out-cry ; and the defendant, W. E. Martin, became the purchaser. *The question made was, whether the sale so made precluded r^^.cfc-i the rights of Ann Beck, under the mortgage, and vested the title •- to Richard in the purchaser, under the circumstances attending the sale. Ann Beck had, through her agent, Williams, enclosed the mortgage in a letter to Albert Rhett, authorizing him to take care of her interest, &e. Rice, the sheriff, received this letter, took the liberty of opening it, and having so got possession of the mortgage, sold Richard, under it, on sale-day in April, 1840. This happened during Court at Walterborough. But Albert Rhett did not arrive till the day after, and knew not of the agency confided to him by Ann Beck, before his arrival. In the mean time, his brother and professional partner, Edmund Rhett, had arrived on sale-day, and hearing of the sale intended under the mortgage, got possession of it from Rice, and also of the letter to Albert Rhett, and forbid the sale, Wm. Branch, deputy-sheriff, stated, that after Richard had been bid off, Edmund Rhett directed Rice to tender the bill of sale to the purchaser, and demand the money. This statement was altogether denied by Edmund Rhett. Rice, however, made the bill of sale, and received the purchase money. This summary may perhaps be sufficient, as the grounds of appeal turn chiefly upon the charge to the jury- The presiding Judge charged the jury, that the rights of Ann Beck could not be affected by the sale so made by Rice ; that, as her agent, Albert Rhett did not even know of his agency, till after the sale ; Edmund Rhett could not have been his sub-agent, under any implication ; that Edmund Rliett being the professional partner of Albert Rhett, did not, of itself, authorize him to act in the place of his absent brother, so as to affect the rights of Ann Beck, even if he had directed the bill of sale to be tendered, &c., as stated by Branch. The agency was to Albert Rhett alone. The plaintiff ought, therefore, to recover, and the defendant be left to his own resort to Rice, who had assumed the agency without authority. The jury found for plaintiff, and the defendant appeals, on the grounds : *1. Because his Honor charged that the sheriff was not authorized to pogo sell under the mortgage. '- 2. Because his Honor charged that an agent cannot appoint a sub-agent. 516 CHARLESTON, FEBRUARY, 1842. TOL. II. [*262 3. Because, although it was proved that Messrs. E. & A. Rhett were partners in business, his Honor charged that Mr. Ed. Rhett could not confirm the sale, because the mortgage had been enclosed in a letter directed to Mr. Albert Rhett. 4. Because his Honor charged that a mortgage sent to a lawyer was not a professional matter, but was private business. .0. Because if the sheriff proceeded under mistake, it was caused by the plaintiff's agent, and she is bound. 6. Because a purchaser is not bound to inquire into the regularity of a sale, when he sees avendor in possession of a legal instrument. 7. Because the verdict was, in other respects, contrary to law and the evidence. W. F. UnUon, for tte motion, said : 1. A mortgage sent to a lawyer is professional business. Tlie profits arising from such business is considered a part of the partnership profits ; that it is directed to one partner instead of the fii-m, does not alter the question. It was proved E. h A. Rhett were partners in Walterborough ; that Ed. Rhett con- firmed the sale by Rice, and his connexion with his brother made him Miss Beck's agent, and his confirmation was the confirmation of his jjrincipal. 2. A party purchasing is not bound to inquire into the regularity of the pro- ceeding, if he sees the vendor in possession of a legal instrument. So of^\ fa. 1 Bail. 512 ; why not of a mortgage ? 3. A mistake occasioned by a party's agent is binding on the party ; 10 B. & C. 75.5 ; 2 Bay, 90, 112; 2 M'C. R. 251. If there is any mistake, it was occasioned by Miss Beck' agent, Mr. Rhett. 4. Miss Beck's agent stood by, and did not forbid the sale until the negro was bid oflF. She is bound ; 1 N. &M'C. 334. Colcoch, contra. *9fi^1 "^ Curia, ^9er Evans, J. It appears from the report of this *" -■ case, that the presiding Judge charged the jury that " Edmund Rhett's being the professional partner of Albert Rhett, did not of itself autliorize him to act in the place of his absent brother, so as to affect the rights of Ann Beck, even if he had directed the bill of sale to be tendered, &c., as stated by Branch." The agency was to Albert Rhett alone. The correctness of this as a legal proposition, is brought in question by the grounds of appeal, and it iDCcomes the duty of this Court to decide it. The business confided by William's letter to Albert Rhett, was to take care of the plaintiff's interest against Beck's creditors. This he could only do by ascertaining what her rights were, according to law, and then decide what course would best protect and secure them. Her rights were in collision with the creditors of Beck ; and to decide what these rights were, as well as liow they were to be protected and secured, were questions requiring legal knowledge to decide and determine. The business, therefore, committed by the plaintiff to Mr. Albert Rhett, was one which had connection with his professional em})loyment ; and if, in the exercise of the authority thus committed to him, he had ordered the Bale of tiic negro, or had received tlie money afterwards, in confirmation of the sale, there would be but little doubt that the plaintiff would have been bound. Assuming, therefore, (and I think there is no reasonable ground to doubt it,) that the business committed by William's letter to Mr. All)ert Rhett, was professional, is not he, and consequently his principal, bound by the act of Mr. E. Rhett, the professional partner of Albert Rhett ? The general rule is, that partners are bound by the acts of each other, in all matters within the scope of the partnership business. It is ♦263] BECK VS. MARTIN. 517 on the principle that the act of one is the act of both ; that each agreed, on the formation of the partnersliip, that the other should act for hiin in all matters connected with their partnership business. The acts of each are the acts of both, and neither is at liberty to disaffirm what the other does. In this matter, therefore, the act of E. Rhett may be considered as the act of Albert Rhett. If a plaintiff should write a letter of in- struction to one of a law copartnership, directing the commencement *or prosecution of a suit, and the letter should come into the r;(cr)/%^ hands of the partner, who should commence the suit without '- consulting the one to whom the letter was directed, could the act be dis- affirmed by either the principal or the other partner, unless it should appear that the power was specially and exclusively delegated to the one to whom the letter was addressed ? Or if a man in the country should, by letter addressed to one of a firm in the brokerage or commission busi- ness, direct the purchase or sale of some article of property, could not another partner, in the absence of the one to whom the letter was addressed, cCFect the sale or purchase, so as to bind the principal ? It can hardly be denied the plaintiff would have been bound by the acts of Albert Rhett ; and by the very nature of a partnership, the acts of Edmund are the acts of Albert Rhett, by which he is as much bound as if he had acted himself If, therefore, Mr. Edmund Rhett did authorize or afiirra this sale, it seems to me the plaintiff is bound by it. I do not say he did any such act. I sliould rather conclude from the testimony, he did not ; l)ut these are matters which should be passed on by the jury and as the presiding Judge in his view of the law thought them immaterial, a majority of this Court are of opinion a new trial should be granted, and it is so ordered. Butler and "Wakdlaw, JJ., concurred. Richardson, J., dissenting. — The motion for a new trial depends upon this question, was the Judge correct in charging that the rights of Ann Beck could not be affected by the acts of Edmund Rhett ? It was assumed that Edmund Rhett had not been made her agent by the letter written to Albert Rhett, although Albert and Edmund Rhett were partners at law. This question is new, and requires consideration. The letter to Albert Rhett was in these words : " On the suggestion of Mr. Beck, I enclose a mortgage of some negroes of his to Miss Beck. My purpose is, to enable you to protect her interests from all Beck's creditors." This was the power of attorney. At the time of the sale, Albert Rhett did not even know of such a letter, and of course Edmund Rhett could not have acted with his privity. He must, then, have been a mere volunteer, *nnless he could himself derive the rights of an ^;^9oc agent from the letter to Albert Rlictt, and had authority from it ^ " to ratify the sale of Richard which he had forbidden in the first instance. But there are many objections to such a construction in favor of Edmund Rhett's agency : 1st. The authority was in writing, and confined to Albert Rhett; and he, not even knowing of it, could not have accepted it. It follows that no one could have had the right to assume his agency, or acceptance, when neither existed. 2dly. It was a special agency under Mr. Williams, the general agent 518 CHARLESTON, FEBRUARY, 1842. YOL. II. [*265 of Ann Beck, and ought to be construed strictly and confined to the special agent named by the general agent. Xo one else ought to impli- cate him or his principal. 3d. It was an agency ia fact, and not to an attorney at law to do professional business, in its terms to protect her interests from all Beck's creditors. Tiiis could not give the power to sell or convey away the property. It was to protect and guard it from being sold at all, in order to protect her right and title to the negroes, or to interpose her prior claim to all creditors. It is the same as if to protect her interests in a tract of land, or piece of furniture, which would be neither to sell nor destroy her title, ])ut to protect it. This may be a very strict construction, but the agency had no more of a ])rofessioual law character, than if it had been to pay her taxes, or to look to her interest in a consignment of goods, claimed by another ])orson, or to superintend her plantation or negroes. A lawyer acts often as an agent in fact ; and the rule that the principal cannot be bound, unless by his own agent, acting within the authority delegated, must be preserved, else we infract the first principle of the law of ])rincipal and agent, and make one man bound by the acts of another, without his own consent. It is upon this strict view, that I question whether Albert Rhett Inmself could have ratified the sale made hj sheriif Rice, and kept within the special written agency of William's letter. How could such an act ♦ Ofifil P^'^^c^'t 1'^'^ interests? *But I feel clear that Edmund Rhett had " -' no agency whatever. But assume, for a moment, that the power to sell tlie negro was given, and also, that the professional partner of Albert Rhett, although unknown to Ann Beck, became also her agent, by construction of law — this would be going very far by implication, assuredly. But, shall we go further, and say that the two Rlietts were not only her agents, but her Joint and several agent ? Where can we find neces- sity or reason for this imi)lication ? If a stranger must be introduced by legal intendment, why go another step, and say such stranger may act witlioiit the advice, consent, or knowledge, or even before the acceptance of Albert Rhett, the only agent practically confided in and named by the principal? Should we not rather say, under any construction, that Edmund Rhett could be no more than nnWvd Jointhj, and not severally, witli Albert Rliett, and, therefore, his several or individual acts could not afl'oct the rights of Ann lieek ? Under any other and further impli- cation, she Would be deprived of her rights by law, without her own consent, privity, or any confidence apparent from her letter of attorney to All)ert Riiett. The im|ilicalion that o])erates so strongly, should be unavoidable, and from nmiuostionable pi-eniises, in order to force us to such a conclusion, by mere const rnetion. I need scarcely here do more than refer to the settled doctrine of joint agencies. .Judge Story on Agency, p. 44, sums up the doctrine, as made by adjudged cases, thus: "Where an authority is given to two or more persons to do an act, the act is valid to bind the principal only when one ^266] BECK VS. MARTIN. 519 of tliera concur in doing it. For tlie authority is construed strictly, and the power is understood to be joint, and not several," &c. " So," he continues, "if an authority is given to two persons jointly to sell the property of the principal, one of them cannot separately execute the authority," "Indeed, so strictly is the authority construed, that, if it be given to three persons jointly and severally, two cannot properly execute it ; but it must be done by one or l)y all." " However, the rule of inter- pretation is not so rigid as to overcome the apparent intentions of the party, if the words can be so construed as to reach the case. Thus, if an *authority be given A. B., or either of them, a joint or several r^nr.^ execution will be valid." L " "' It is plain from this exposition, that powers to two or more persons, are strictly and always joint, unless literally or unquestionably several from their intent and necessity. There is very little room for construc- tive intendments in the law of agencies. But there is a caution in the doctrine in dealing with the rights of the absent, that is most wholesome, and in just accordance with that of the statute against frauds, to suffer no man to be made liable for another's debt or default, except upon his own written assumption. IIovv drictJy joint, then should be the agency of any man who is joined by implication to the named agent. Look into the facts of the case. Rice takes the letter to Albert Bhett from the post office, assumes the friendly liberty of opening it, and proceeds under the mortgage he found enclosed. The transactiou reaches the ears of Edmund Rhett at the moment of the sale. He promptly forbids the sale as Albert Rhett is absent. But according to the witness Branch, he afterwards told the sheriff to tender the bill of sale and demand the money. The sheriff does so, delivers the negro, and keeps the money for his own security. But under the doctrine just laid down, I ask, in what one link in this series of gratuitous acts, is Ann Beck to be held as assenting or implicated ? There can be no reproach to the purchaser whatever. He must stand a suit at law, that he may recover over against Rice. But his right of property depends upon the assent to the sale by Ann Beck, as indicated by her power of attorney, when united with such gratuitous acts of other persons. It is in those acts that I can perceive no influence to alter her right. She seems as little implicated in the whole transaction, as if her agent, Williams, had never written the letter to Albert Rhett, who (Rhett) repudiated the sale the moment he heard of it, although he uttered no reproach against Rice for opening the letter. And I take occasion here to state, that I never witnessed a trial, notwithstanding its contradictions, in which all parties were more free from personal or any unpleasant allusions. As a majority of the Court think differently from me, *my r^^r>c> impressions of the power of attorney however strong must be L "^ mistaken. But as the point is new and peculiar I will add a word more, on the authority of decided cases. I can find none finally adjudged, so as to be of express authority. But in that of Edmonatoii ar/ainst Wri(/hf, 1 Campbell, p. 88, we may find a decision of Lord Ellen- borough, of some importance still. Wright had negroes in Jamaica. Mr. Lecky, Edmondstou's partner, was his attorney on record, who had the management of the negroes ; 520 CHARLESTON, FEBRUARY, 1842. VOL. II. [*268 the negroes were shipped to Georgia by order. But the captain not haviiig'a permit, the negroes were forfeited. To release them, Edmond- ston ])aid £1,200, as a compensation, which he sought to recover against "Wriglit. The question, it will be seen, was, whether the general powers of Lecky could be exercised by his partner, Edmondston. Lord Ellen- borough ruled "that it was a voluntary payment," and held, that the plaintiff (Edmondston,) could possess no general authority as partner of Lecky, zi-/io^-e powers as attorney on record, were clearly incommuni- cable ; and, as manager of the gang of negroes, he (E.) was "functus officio,^' after delivering them on board the ship. Verdict for defendant. Now then, for the general agent, read Albert Rhett, and for his partner, Edmondston, read Edmund Rhett, and we may say, with the same reason, that Albert's powers were "clearly incommunicable" to Edmund; but communicate them and they are not still joint powers. But the case before us is stronger, because Albert Rhett could not physically or morally have communicated his powers, as he had not accepted and knew not of their existence, until after the sale, and after the supposed exercise of his agency by Edmund Rhett. But ought not the opposite side be required to show the authority for his claim to such an exception in the law of agency ? And are we not then with too little reason, opening a new and wide way for the entrance of imputed agencies ? And should we not do it at least with these qualifications, that it can only follow the acceptance by the named partner ? And then we build joint, and not several agency. If so, the verdict for Ann Beck is right. onQ:(.-| And I must be allowed to repeat now, before Albert *Rhett -^ personally accepted, and thereby created the agency to the co- partnership, no agency could arise. "Why such an agency belongs to the profession of the law, so as to be translated to Edmund Khett, by the letter falling into his hands ; or how, after it had been translated to him, it became in his hands both a joint and several agency, I cannot percieve. In a word of common sense — how a series of liberties taken, and of trespasses done, by the sheriff, when afterwards interwoven with the hasty interference of Edmund Rhett, on account of the apparent agency of his Ijrother, could divest the plaintiff of her rights, does not strike my understanding. Docs not the gratuitous character in the beginning fol- low the transaction throughout, and keep the whole estranged from the plaintiffs ? I would, therefore, support the verdict upon the established strict construction of agencies, and would not the less support it " in odium spolialoris ;'^ and so let the sheriff, who began and ended the trespass, respond in damages to the purchaser of the negro, O'Neall, J., concurred with Richardson, J. '270] BRAVEBOY Clils, COCKFIELD. 521 *M. Braveboy ads. AV. J. Cockfield. [*270 Where a prosecution against a party never legally existed, lie cannot maintain an action for malicious prosecution. Tried before Mr. Justice Earle, at King's Tree, Fall Term, 1841, whose report of the case is as follows : This was au action on the case for a malicious prosecution. On the information of the defendant, a warrant was issued by a magistrate for the arrest of the plaintiff. The information embodied in the warrant was, that " the plaintiff feloniously did take, steal, and carry off, his (defend- ant's) negro boy Tobe ; and did, with force and violence, carry off his said I)oy, out of the said district." The i)laintiff was arrested in Marion district, where the warrant was countersigned by another Justice. The warrant was issued on the 12th of August, 1839, and the plaintiff' entered into recognizance on the next day. Tlie defendant, in person, applied to the justice, and made his complaint, that his negro had been taken off while he was at meeting ; and that ho thought the persons he named, of whom defendant was one, had done it, and he wanted proper process against them. The justice thought it a case of felony. He read the affidavit to the defendant before he was sworn. He delivered the war- rant, when issued, to the defendant and a constable, who went away with it. Defendant himself carried the warrant to the constable, Yarborough, who had it backed, (countersigned) and made the arrest in Marion. To several persons, after the warrant was taken out, the defendant said he did not believe plaintiff was actually concerned in the carrying away of the negro, but that he was along, and aided the Burketts, who were the other parties charged. The prosecution was abandoned at the first terra ; no bill was given out, and the plaintiff was discharged. A civil action was brought in Marion for the negro, which resulted in favor of the defendant. When the defendant delivered the warrant to Yarbo- rough, and it was backed by Justice Askins, in Marion, he said he would not be in Cockfield's place for half he was worth. I refused a motion for nonsuit. *It was proved on the defence, that the negro was carried off r.^^w, from the defendant's residence in August, 1839, in the day time, L -" but privately, when the family were absent from home. The plaintiff came first to the house, and called Tobe with him to the fence, and incpiired if his master was at home, and conversed with him some time ; the plaintiff then rode along the fence, and called another of the negroes to him at the fence, and had some conversation with him. This occurred about twelve o'clock. The witness who proved these facts, with the wife of the defendant, then left the place ; and in the afternoon of the same day, i)erliaps in an hour, the negro Tobe was carried off by two men, named Burkett, father and son. The defendant, who was at church in the neighl)orhood, was sent for, and the foregoing facts communicated to him. He went immediately to make liis complaint to the justice ; and it was proved by a witness sworn for the defence, that while he was at church, the plaintiff had been at his house, talking with the negro ; that the Bur- ketts had afterwards carried him away ; and that the plaintiff had crossed the river with them. He left the matter mostly to the justice, and ex- 5'2'2 CHARLESTON, FEBRUARY, 1842. VOL. II. [*2T1 pressed his regret that tlie plaintiff, with whom he had always been friendly, should be charged with such a thing. He complained that his negro "had been taken away, or stolen and carried off, and demanded redress according to the course of law ; he wanted to recover him ; but according to another witness, he said the plaintiff had aided the Burkett's, who had done it ; that he had been seen there, &c. It w^as fully proved that the defendant soon became satisfied that the plaintiff should not have been included in the prosecution, or regretted that he had been ; and he did what he could to atone for it. He excused himself on the ground that he was informed by his wife and sister, that the plaintiff had been at his house the same day, talking with Tobe, and that he had crossed the river with them the same day ; and, therefore, he thought that the plaintiff knew of it. There was other proof also, that the Burketts had long before set up a claim to this, and other negroes, in possession of the defendant; had gone to his house to make a demand ; and that he replied, that they *9'-9-l li'^d no sort of claim, and forev/arned them from attempting* to '"'-' take them. The defendant justified himself by saying he had the advice of two justices, who thought it stealing ; but afterwards, on getting other advice, found he was wrong, and did all he could to stop the prose- cution. I submitted the cause to the jury with ample instructions. I did not think there was probable cause for the prosecution, if Burkett had a bona fide claim to the negro, known to the defendant, and had taken him in the assertion of that claim. I submitted to them, if they found the affirmative of those propositions for the plaintiff, then he should have a verdict. If the claim of the Burketts had been a mere fraudulent pretence to seize the negro, so as to avoid the charge of felony, and they had carried him off beyond the reach of the defendant, there would have been good cause of prosecution against them ; and I thought the proof would war- rant the proceeding in that case against the plaintiff. I did not, in any view, consider it a case for heavy damages, and the jury found for the plaintiff twenty dollars. From this verdict the defendant appeals, and moves that the same may be set aside, and a nonsuit ordered, on the following grounds : 1. Tliat it appeared by the pliviutifl''s evidence, that he was never lawfully arrestod, nor even for one instant detained, on the prosecution of the del'endant. 2. Tliat the defendant having stated to the magistrate the facts and ciicum- stancos (in which his complaint was founded, which facts and circumstances the plaintiff did not attempt to disprove, or even deny, the magistrate, and not the ilHterate defendant, is responsible for the institution of a prosecution for felony, if tiioso facts and circumstances did not warrant such a prosecution. 3. That tiie plaintiff wholly failed to prove the want of probable cause ; and all the evidence produced by him on that point, went directly to show the existence of sufficient reasonable and j)robable cause to justify a prosecution. 4. I'liat tliore was no evidence whatever of malice ; the existence of which was in fact wlidlly disproved by the plaintiff's own witnesses. *273l *''^h.)ul(l the motion for a nonsuit fail, the defendant then moves for a ' J new IridI, on the same grounds, all of wliich, so far as they depended on evidence, were incontroverlibly establisiied by the evidence introduced on the part of the defendant; and the jury were bound to find in couformily to the law aiijdicalde to it. And in .support of the motion for a new trial, the defendant will rely upon the fiirtlier ground, that the verdict was without evidence, against evidence, and contrary to law. Bailey, for the motion. Ilarllee, contra. [*2U ♦273] BRAVEBOY culs. COCKFIELD, 523 Curia, per O'Neall, J. I tliink the motion for nonsuit ought to have been granted on two grounds. 1st. Tiicre was no legal arrest of the ])resent plaintiir, to answer the carge of negro stealing. If the war- rant had been pro[)erly countersigned by Justice Askin, and the constable of Williamsburg had been duly authorized to execute it, I think it would have been sufBcient. But the instrument preceding the justice's signa- ture on the back, is anything else than countersigning or authority to execute the warrant. The words used are plain English, and must be understood according to their meaning. They give a license from Mr. Justice Askin to constable Yarborough, " to rest and remain" in Marion district. It may be, the w^ords were intended to authorize an arrest and detention, but they certainly have no such appropriate meaning, and we have no right to give it to them, from the belief that they were igno- rantly used, (a) Public officers using plain English words ought to be supposed to understand their meaning. The defendant and constable Yarborough may be liable for false imprisonment, in arresting the plain- tiff without warrant ; but the defendant cannot be liable in malicious prosecution, when the prosecution never legally existed. The plaintiff is uot helped by the defendant's recognizance to prosecute, or the plaintiff's to appear and answer; neither of them are appropriately conditioned as papers on the criminal side of the Court, they apparently relate to a case between party and party. 2d. I think there was proof of "abundant probable *cause." To come understandingly to a just conclusion, it is necessary to understand what is probable cause. Any thing which will create in the mind of a reasonable man the belief that a felony existed, and that the party charged was in any way concerned in it, is probable cause. The mere letting fall a prosecution does not raise an implication of a want of probable cause. The only cases where that is implied, are when the grand jury find no bill, or the defendant is acquitted by the petit jury, and the presiding judge orders a copy of the indictment, (i) From the statement in the report, it would seem that the plaintiff relied on "the letting fall the prosecution" as evidence of want of probable cause. This was not enough. But we would not now nonsuit the plaintiff on this ground, if iu the progress there was a semblance of a want of probable cause shown. But it was plain there was not. In the absence of the defendant, one of his negroes was taken privately out of his plantation, by men who pretended, but who in point of fact had no claim to him. The plaintiff was seen before the negro was taken off, talking privately to him, and afterwards to another. The same day he was seen crossing the river with the men who took the negro away. The defendant stated these facts to tlie justice, who thought the present jjlaintiff and the Bur- ketts (who carried off the negro,) liable to the charge of negro stealing, and so advised the defendant. After this statement who would hesitate in saying that the defendant had reasonable ground to believe that the plaintiff had committed the felony with which he charged him ? There is no dispute about these points. Tlieij ahow plain probable cause, and (f7) Pee 4 Strob., 208. An. (b) See Fulmer vs. Jlarman, 3 Rich., 576. Ford vs. Kelserj ^ Deas, 4 Ricli., 374. An. 52i CHARLESTON", FEBRUARY, 1842. VOL. II. [*274 hence the plaintiff must fail. If authority be necessary to sustain this view of tlie case, it will be found in Fields vs. Gibbes, decided by the Court of Appeals at Columbia, in May, 1837. (MS. Ati.) The motion for a nonsuit is granted. RicnARDSON and Waudlaw, JJ., concurred. Butler, J., I am in favor of a new trial. <;.---, *EvANS, J. I think there was a sufficient arrest ; but that there ^^'^-l was probable cause for the prosecution, and I concur on that ground. James L. Ross, Sheriff, ads. David Gavin, et al. By the fee bill of 1840, the ten times the excess, which the officer is made liable to forfeit to the party injured, is "to be recovered by suit in the Court of Common Pleas, in which no imparlance shall be allowed ; or by rule, in the case of sheriffs, or by sum. pro. in the cases of magistrates and constables, where the penalty may not exceed 820." By the fee bill of 1839, (of which that of 1840 is amendatory, so far as relate to sheriffs,) the ten times the excess is to be recovered by suit in the Court of Common Pleas, in which no imparlance shall be allowed, or by rule, when the penalty may not exceed twenty dollars. Putting tliese two acts together — it was held, that the qualification in the Act of 1840, when the penalty may not exceed 820, as applying to the rule in the case of sheriffs, and to the sum. pro. in the case of magistrates and constables. Before Richardson, J., at Walterboro', Fall Term, 1S41. The following opinion of the Appeal Court fully presents the history of the case. Curia, per Wardlaw, J. The defendant, James L, Ross, seeks by rule to make the sheriff liable for ten times the amount of excess of fees improperly charged. No written order was entered on the Circuit; but the presiding Judge refused the order proposed to make the sheriff liable for ten times the excess, and expressed his opinion that he should be liable for the supposed excess of $32 79, and ten per cent, thereon ; hold- that it was a matter of discretion to impose, by way of punishment, according to the circumstances, any penalty short of ten times the excess. The dereiidant asks his proposed order from this Court, and the whole *g-/j-] maltor has been reviewed. Avoiding *any expression of opinion -I not now required, as to the question whether, in a fit case, discre- tion should be allowed as to the amount, or ten times the excess taken as a fixed penalty or forfeiture, this Court is not satisfied that fees have been improperly cliarged to the amount of the excess stated by the clerk; or that in any view it can take of the excess, the proceeding by rule is here correct. Upon ten executions against the same defendant, fully paid to him, the Sheriff has charged in each case for his commissions twe per cent, on the first $300, and one per cent, on the balance ; the clerk, aggregating the whole collections, allows two per cent, on the first $300, and one per cent. *21G] ROSS ads. GAVIN ET AL. 525 only on the entire balance. The clerk proceeds upon a literal construc- tion of the words — " Commissions on all moneys collected by him." But these words as well embrace all moneys collected from all defendants, as all moneys collected in all cases against the same defendant ; and if they are to be confined to moneys from the same defendant, stronger reasons both of construction and expediency would confine them to moneys in the same case. The fee bills, in their whole scope, where a contrary in- tendment does not plainly appear, necessarily contemplate the services of officers in a particular case ; and instances are easily imagined of confu- sion and injustice from an attempt to group various cases. Commissions constitute the main compensation for the trouble and responsibility of the sheriff in receiving and paying away moneys, charging and discharg- ing himself in his execution book, making calculations, applying moneys according to the rights of various plaintiffs, and taking receipts — and if the compensation, adjusted so as to afford an adequate remuneration in a case of small amount, and not an excessive one in a case of large amount, is to be reduced, because the defendant is unfortunate enough to have various executions against him, it should at least appear that by that circumstance the trouble or responsibility of the sheriff is diminished. Where the sheriff" is to have refunded to him an outlay, as in the case of atafe vs. Beckett, (3 McCord, 290,) for printer's bill for advertising, or as in the present case, for keeping mules and dieting negroes, &c., it is reasonable and proper that money expended or labor bestowed in refer- ence to the ^subject rather than the case, being once paid should i-jjcn^t, not be multiplied by construction; but such matters are easily dis- L tinguishable from the services expected to be performed in every case, and in reference to which the fee bill has prescribed such rates of charge as were supposed likely, in view of the probable number of cases, to afford a reasonable compensation to the officer, (a) Many of the observations made as to commissions, apply to mileage, which the clerk allows but once, although charged by the sheriff on the levy of every execution. The words of the Fee Bill of 1840(6) are "levy- ing attachment or execution, besides mileage, one dollar ;" and in a pre- vious part, "for serving every writ, &c., besides mileage, one dollar;" " mileage to defendant's or witness' residence, or place where found, going, but not returning, five cents per mile." The expressions indicate the propriety of the charge in each case. If mileage is to be charged but once, because but one ride was taken, although many writs carried, then an inquiry must be instituted of the number of writs carried by a sheriff at once, and the first mile divided between all, the second between those not served in the course of the first, and so on, until it can be ascertained how many remained to share the charge for the latter por- tion of the journey. If a levy be unnecessarily made on many execu- tions, where one would have served, a question, ditfereut from that now under consideration, might be presented. ►Striking from the excess, ascertained by the clerk, all that relates to commissions and mileage, the balance would be $6 75 ; and as to the defendant's right to claim ten times that reduced excess, the Court is of opinion that it cannot be investigated on rule. By the Fee Bill of (a) See 2 Rich., 23. An. {h) 11 Stat., 104, I 2. An. 526 CHARLESTON, FEBRUARY, 1842. YOL. 11. [*2T7 1840, the ten times the excess, which the officer is made liable to forfeit to the party injured, is " to be recovered by suit in the Court of Common Pleas, in which no imparlance shall be allowed ; or by rule, in the case of sheriffs, or by summary process, in the cases of Magistrates or Con- stables, where the penalty may not exceed twenty dollars." By the Fee Bill of 1839, (a) (of which that of 1840(6) was amendatory, so far as concerns sheriffs,) the ten times the excess " is to be recovered by suit ^ntron in the Court of Common Pleas, in which *no imparlance shall ''J be allowed, or by rule, when the penalty may not exceed twenty dollars." Putting these acts together, this Court regards the qualifica- tion in the Act of 1840, " when the penalty may not exceed twenty dollars," as applying both to the " rule in the case of sheriffs," and to the "summary process in the cases of Magistrates or Constables." The provision as to Magistrates Constables seems to have been intro- duced, in a sort of parenthesis, because only the Act of 1840 spoke of those officers whose small fees, increased ten fold, might not some- times exceed twenty dollars, and without such provision it might have been supposed that the Court of Common Pleas could not take cogni- zance of a case below twenty dollars, and so within the exclusive juris- diction of Magistrates. As to sheriffs, no reason could have existed why the summary proceeding by rule, held in 1839 inapplicable, where the amount exceeded twenty dollars, should in 1840 be extended to an indefinite amount. There is much propriety, in reference to our consti- tution, and the rights of the citizen, in holding that a highly penal provi- sion should not, above that sum as to which the right of trial by jury has ordinarily been heretofore preserved, be enforced by a proceeding which is peculiarly arbitrary and severe. The rule against the sheriff, H. W. Rice, is therefore discharged. Richardson, O'Xeall, Evans and Butler, JJ., concurred. Edwards, for the motion. Cam, contra. See 2 Strob., 3SS. An. *279] *C. M. Creiger et ux. vs. Benj. J. Smith, (c) TVhoro an action of assumpsit has been bronglit in the name of the husl)ancl and wife, and the declaration alleges the promise to have been made to the husband and wife jointly — witliout stating the interest of the wife, or any reason why she was joined. It was held a good ground in arrest of judgment, and the verdict of the jury did not cure the defect. Before Wardlaw, J., at Gillisouvile, January, Extra Court, 1841. The circumstances that gave rise to this case, will be fully understood from the argument and the opinion of the Court, without any further detail. («) 11 Stat., 11, § 2. An. (6) 11 Stat., IOC, § 8. An. {r) S. C. Supra, 140. An. '279] CREIGER ET UX. VS. SMITH. 527 Wardlaw, J. — The declaration in assumpsit alleges the promise to have been made to the husband and wife jointly, without an}- statement of the wife's interests, or any reason shown why she should have been joined. The defect is plainly one which is not cured by the verdict, and which is fatal upon motion in arrest of judgment. 1 Chit. PI. 20 ; 2 Wm. Bla. 1236 ; 2 Caines' Rep. 221 ; 2 Bur. 170. The plaintiff's counsel, opi)Osing a technical objection on his part to the technical exception now taken to what he considers a very merito- rious recovery of the plaintiff's, has insisted that this motion sliould be overruled, because there is a defect in the office copy, which the ap})ellant has produced under the Slst rule of Court, which requires that the ap- pellant relying on an exception to the record, shall procure and bring up an office copy. The office copy here produced, contains the decla- ration, plea, similiter and verdict, and is said to be defective, because the notice of a discount which was offered is not contained in it. If it appeared that the omission made by the officer might keep from view any tiling that could influence the decision, it is proljable that the Court would give time for remedying the defect, rather than dismiss the appeal. But it is not even alleged that there was any thing i)eculiar in the notice of discount, or that it could have caused the defect in the declaration ; and it would be extreme severity to reject an oflice copy, which presents all that is necessary for understanding the motion, because something immaterial is omitted. If the notice of discount be essential, why not *also the writ, the sheriff's return, and the r^goA venire ? The office copy required by the rule is not a perfect ^ exemi)lification. In the common parlance of the profession, the pleadings are called the record, although in absolute strictness it may be untechnical to call them so, whilst they remain in poper before entry of judgment. The appellant here has produced all that either party could have occasion to refer to, and has obeyed the rule, according to the usual practice of the Court. The motion is granted. Richardson, O'Neall, Evans, Butler, and Earle, JJ., concurred. W. F. Hutson, for the motion, argued — in all cases, if the wife be jninted in the action, her interest must he expressly stated in the declaration, and cannot be intended. 1 Chit. PL, 20; C, 20. Jac, 044. 2 Caines Rep., 221; 2 Black., 123(5 ; 1 Bar., 75, 249. But it may be objected, that the husband had a right to bring the action alone. This does not avail. See 1 Chitty, 19 and 20. It is not too late too move in arrest of judgment, though the plaintiif might have demui-red. Bidgooil vs. Way and tcife, 2 Black., 1236; Abbott i^~ Blojield, Cro. Jac., (544; Holmes §• Wood, 1 Bar., 75 and 249; Venters vs. England and icifc, 1 M'C, 14; Chapman and icife vs. Hardy and wife, Brev. Rep. S. P., 1 M'C, 578. E. and A. Rhett, contra. 528 CHARLESTON, FEBRUARY, 1842. VOL. II. [*281 *2S]] *A. J. Pyron et ux. vs. Edward Mood. (a) Wliere there lias been a jiost-nnptial agreement, between two parties, and a deed of trust is executed (to a third party as trustee), of certain slaves, for the use and benefit of both husband wife, during life, upon the death of either, to the the use of the survivor, and after the death of both, to the use of the children of the marriage, with a power to sell and reinvest, at the request of husband and wife, or the survivor of them ; and after the death of the wife, the trustee, at the request of the husband, sold the slaves and conveyed them to the defendant. It was held, that the purchaser's title was good. That the trustee had not only the legal estate in the property, but he had the power to sell, and at law, the title could not be disputed. Before Butler, J., Charleston, January Term, 1S41, whose report of the facts of this case is as follows : This was an action of trover for five negroes. The plaintiff, Prjon, married one of the daughters of Charles and Rachel Simons, and he, with the other minor children of the same parents, bring tlie action against the defendant, who bought the negroes in question from Peter Redheimer, the trustee of Rachel and Charles Simons, in their lifetime, and as the case will turn on the right of Redheimer to sell, under certain deeds of trust, it will be necessary to advert to them, and the circum- stances under which they were executed. Charles Simmons married the sister of Redheimer, his habits became intemperate, so much so as to excite the fears of his friends that he would waste liis property and leave his family destitute ; and with a view of securing the property which he had, for the use of himself and his wife during life, and after their death to their children, he and his wife executed a deed of trust to Redheimer. This deed was executed 8th October, 1829. After reciting the objects for whicli it was made, ahd describing the property conveyed, part of which was the negroes in controversy, it contains the following clause, to wit, to have and to hold, and so forth, " in trust to permit and suffer the said Charles and Rachel Simons to have, use, occupy and enjoy the above granted ])remises, and to receive the interest, income and emoluments aris- ing therefrom, for and during the joint natural lives of them, the said Charles and Pviichel, without being subject and liable to the debts, &c., of the said Charles and Rachel ; and from and immediately after the death of either of them, the said Cliarles and Rachel, then in trust to permit and sulfer #2301 *^''C survivor of them, the said Charles and Rachel, to have, use, "-' occupy and enjoy the above granted premises, and to receive the interest, income and emoluments arising therefrom, for and during tlie life of Hiiid survivor; and from and immediately after the death of such survivor, then in trust, to and for the use, benefit and behoof of the issue of said marriage, if more than one, as tenants in common and not as joint tenants, their heirs, executors, administrators and assigns ; and if but one, to tiiat one, his or her heirs, executors, administrators or assigns, free, clear and absolutely discharged of and from all and any further trusts whatsoever." The above property continued in the possession of Charles and Rachel til! the death of Rachel, who died 2Gth October, 183G, and her husband, Charles, died November 9th, ensuing. He was (a) E.vamincd, perhaps overruled, in Rice ads. Burnett, Sp. Eq., 589, 591. An. '282] PTRON VS. MOOD. 529 fouiul dead, witli a bottle that had some spirits in it, and a bottle of laudamini. An inque8t was held over the body : verdict that the de- ceased came to his death l)y drinking ardent spirits and taking laudanum. With a view to show that Redhcimer sold the property now in contro- versy, before the death of Charles Simons, tlie survivor, and of course with his consent, the plaintiff offered in evidence the bill of sale from Kedheimer to the defendant, and which he contended bore date 2d March, 1837, and that it had been fraudulently ante-dated to 2d November past, and in the sixtieth year of American Independence — the word sixty-first having been erased and sixty inserted. Tliis is noticed by memorandum above the name of the witness Carson, who was not present when the paper was given in evidence. He was sent for, and being sworn, said that the bill of sale bore its true date, and that he was certain it was exe- cuted in thirty-six and not thirty-seven, and he said he had no doubt that it was executed in good faith and in conformity with the ex})ress under- standing of the parties, Charles Simons and Redheimer. Here it appeared that Redheimer had the children of said Rachel and Charles, and was educating and supporting them. Mr. Carson said it was understood these negroes were unproductive, and was sold for the purpose of having their proceeds invested in other productive property. It will be seen, if the deed bore its true date, it was executed seven days before the death of Simons, and that it *was so executed, I r^goo have no doubt. For the purpose of showing that Charles Si- ^ mons, the survivor, had given his assent to the sale of this, as well as other property contained in the deed of October, 1829, the defendant ofifered in evidence a deed, bearing date 29th October, 1836, executed by Charles Simons to Redheimer. This deed, after many recitals and expla- nations of its objects and designs, contains this clause : " And whereas, most of the negroes are young and unable to work, producing no income to the estate, this conveyance is therefore made to the said Redheimer, that he will sell any or all of said negroes at the best market price, and invest the proceeds (after paying the said debts and funeral expenses of the said Rachel Simons) in other property that will be more for the benefit of the said children, and in trust that the said Peter Redheimer will take the said children in charge, and have them educated, &c., out of the income arising out of said trust estate," (See deed.) This, it was contended, referred to and was in conformity with the last clause in the deed of 1829, which is as follows : — " And lastly, it is hereby covenanted and agreed between the said Charles and Rachel Si- mons, and Peter Redheimer, that at any time when it shall appear bene- ficial, or for the interest of the said Charles or Rachel, to sell or dispose of any of the above mentioned property, that the said Peter will sell and dispose of the same, at the joint request, or at the request of the survivor of them, and vest the proceeds in other property, which shall l)e imme- diately sul»ject to the operation of all the uses and trusts expressed in this indenture." I will not here undertake to give the reasons of my judgment below, on the construction of the deeds and clauses of deeds which affected the rights of the parties concerned. I held, that by the deed of October, 1829, Redheimer had the legal title in him, and that it continued in him until the death of Charles Si- ToL. I.— 35 530 CHARLESTON, FEBRUARY, 1842. VOL. IL [*283 mons ; or, to state the converse of the proposition — that the trast was not executed in Simons and wife, during their joint life, or in the sur- vivor. The true object of the deeds being to deprive Charles Simons *9Si1 '^^ ^"y control of the property at any time, *to the prejudice of -J his wife and children. After the death of his wife, Charles sur- renders his interest to the trustee during his life, for the purpose of main- taining the children, and gives an express authority to sell and invest, &c., for the purpose of effecting the true end of the trust. The whole question was, whether the title was made to defendant while Redheimer was trustee, for, if so, the title would be good in a Court of law. Another question, however, was submitted to the jury, viz. : did Simons assent to the sale to defendant in his lifetime, or was the sale, in fact, made with- out his assent and after his death ? This was the question mainly argued, and upon it, the jury found for the defendant. Deed of Sth Octobek, 1829. State of South Carolina. Tliis indenture made the eighth day of October, in the year of our Lord one thousand, eight hundred and twenty-nine, between Charles Simons and Rachel Simons, of the city and district of Charleston, and State aforesaid, of the one part, an /• Witnesses for Simons. Harriet A. Redheimer, ) -^ IhOMAS E. DeVEAUX, ) tp rr ^ ,, n, ' y ror Irustee. Mathew Muggkidge, ) South Carolina, Charleston District, Thomas E. Deveaux, being duly sworn, made oath that he was present, and saw Charles Simons, R. Simons, and *Peter Redlieimer, trustee, sign, seal r*9Qy and deliver this instrument of writing, for the uses and purposes therein '- mentioned, and that he, with John Rivers, Harriet A. Redheimer, and Matthew Muggridge, witnessed the same. Sworn to, before me, this 9th October, 1829. Recorded 9th October, 1829. Wm. Ed. Hayne, Qu. &N. P. Secretary of State's office, Charleston, So. Ca., Dec. 29th, 1841. The foregoing is a correct copy of record in this office, in Miscellaneous record book, H. H. H. H. H., pages 413, 414. Examined and certified by THOMAS S. JONES, Dep. SecHy State. Deed of 29th October, 1836. State of South Carolina, Charleston District. Know all men, by these presents, that I, Charles Simons, of the District and State aforesaid, in consideration of the love and afi"ection I bear my son, Charles John Simons, my daughter Sarah Christina Myrick Simons, my daughter Harriet Ann Simons, and my infant son, James Peter Simons, all born of my wife, Rachel Simons, and also in consideration of the sum of one dollar to me in hand paid at and before the sealing and delivery of these presents, the receipt whereof is here- by acknowledged, do hereby alienate, transfer, convey and release all my right, title and interest in and to the following slaves, namely, Polly, Hannah, Thomas, Billy, John, James, Sarah and Robert, together with the future issue and increase of the females, unto Peter Redheimer, in trust, nevertheless, and to and for the proper use and behoof of my aforesaid children, Charles, John, Sarah Christina Myrick, Harriet Ann and James Peter, all minors, (the eldest being in her twelfth year, and the youngest in his second year, ) or the survivor or survivors of them, should one or more of my said children die without issue and before coming of 532 CHARLESTON, FEBRUARY, 1842. VOL. II. [*287 age, and to his, her or their lawful heirs forever. Whereas, by a certain inden- ture or deed of trust, made and executed at Charleston, in the District and State aforesaid, on the eighth *day of October, one thousand eight hundred and -' twenty-nine, by the said Charles Simons and the said Rachel Simons, his wife, three of the said slaves, namely, Polly Hannah and Thomas, were duly conveyed to the said Peter Redheimer, in trust for the children of the said Charles and Rachel Simons, then alive, namely, Charles, John, Eliza Ann, and Sarah Christina Myrick Simons, but Eliza Ann having died, and the infant child, James Peter, in tliis deed mentioned, having been born after and since the date of the aforesaid deed of trust, and the said Charles Simons, by and with the consent of his said wife, Rachel, (since dead,) in her lifetime obtained, wishing to release and convey unto the said Peter Redheimer, in trust as aforesaid, the life estate of him, the said Charles Simons, in said deed of trust reserved, he, the said Charles Simons, hereby releases and conveys the said life estate, with all other rights, titles and interests in the said three slaves, and the issue of the feiiudes, from and after the date of the said deed of conveyance, unto the said Peter Redheimer, his exe- cutors and administrators, to and for the trust, uses and purposes aforesaid. And whereas, two of the negroes in said deed of trust conveyed, namely, Polly and her child Thomas, have been, since the date of said deed, sold and delivered to for and during the lifetime of the said Charles and Rachel Simons, according to the reservation in said deed, whereby the remainder alone can vest in the said Peter Redheimer, trustee as aforesaid. Now, the said Charles Simons ratifies and conjirms said remainder in said trustee, rested by virtue of the afore- said indenture or deeds of trust. And whereas, the slave Billy herein conveyed, has been purchased by the proceeds of the sale of the said life estate of the two negroes, Polly and her child Thomas, by him the said Charles . Simons sold and delivered for the term aforesaid. Now, the said Charles Simons, for the above consideration, hereby sells, trans- fers and conveys the said slave Billy, (being one of those above conveyed gen- erally) unto the said Peter Redheimer, trustee as aforesaid, to and for the uses and purposes aforesaid. And whereas, all the slaves and other property in said deed of trust conveyed, came into the possession and ownership of the said Charles ♦ocQi *Simons by his marriage with his wife Rachel. In consideration of wliich, ■' (with the considerations above mentioned,) he makes and ratifies this deed to secure the said estate to the issue of her body. And whereas, certain articles of household furniture in said deed conveyed and specified, have been, since the date thereof, sold and delivered in part, and other articles purchased. Now, the said Charles Simons hereby sells, conveys and releases all his right, title and in- terest, to as many of the said articles as remain in his possession, (an inventory of whicli is hereunto annexed) unto the said Peter Redheimer, trustee as afore- said, U>r the uses and purposes above mentioned. And whereas, the said Charles Simons has contracted certain debts, to the amount of about three hundred dollars, which he requires to be paid out of the proceeds of the said estate by the said Peter Redheimer, trustee, as aforesaid : and the said Peter Risdlieimer, on his part, undertakes the said payment, on the terms of this deed being fully complied with. And whereas, most of the said negro«!S are young and unable to work, producing no revenue to the estate, this conveyance is therefore made to the said Peter Redheimer, that he will sell any or all of the said negroes, at the best market price, and invest the nett proceeds, (after paying the said del)ts, and tlu^ funeral and other expenses of the said Racliel Simons,) in other property that will be more for the benejit of the said chil- dren ; and in trust that he, the saiil Peter Redheimer, will take the said children in diargo, and liave them educated, as far as possible, out of the interest or rev- enue arising from the said trust estate. But should it become necessary for the said trustee to take a part or all of the said capital, for paying the maintenance, oducation and other expenses of the said children, he is hereby enjoined, and it is the true iiit(rnt and meaning of these presents, that he, the said trustee, shall not pay away, for or on account of any one of the said heirs, more than his or her dividend of said i)riiicipal. And in trust, that the said Peter Redheimer shall use all due economy in tin; management of the said estate, and cause to be edu- cated and maintained ea) 1 Sp. .^3(J An. '305] ST. PniLIP's CHURCH ad.o. WHITE. 543 If, however, O'Driscoll was entitled, still the plaintifTs must fail in this case ; for the Descottes are not, in any event, or in any wise, entitled ; and henee, too many plaintiffs being before the Court, they cannot suc- ceed. (a) In Hammond's N. P. 223, it is said: "The consequence of inattention to these rules, where it consists in joining too many as plain- tiffs, are the same in all forms of action. Where the defect is apparent upon the record, the defendant may demur, arrest the judgment, or reverse it by error, or he may plead the general issue, and thereby succeed at the trial." The motion is dismissed. Richardson, Evans, Butler, Earlf. and Gantt, JJ., concurred. This case was argued in the Appeal Court, at Charleston, first, February Term, 1841. It was held under advisement until February Term, 1842. See Ford vs. Ilindeman, 7 Rich. 166 ; Keenan vs. Keenan, 7 Rich. 349 ; Burnett vs. Noble, 8 Rich. Eq. 58. An. *St. Philip's Church ads. John White. [*306 The books of a tradesman or mechanic are admissible in evidence only to prove the performance and delivery of work done within the mechanic's shop. Where the work is done outside of his shop, or on the premises of the party charged, such as building or repairing a house, or any other fixture, there can be no necessity for books, for the work is apparent and palpable. In the City Court of Charleston. — Tried before his Honor the Recorder, July Term, 1841. This was an action of assumpsit to recover an account for laying a stone pavement in front of St. Philip's Church. The evidence in detail is given, together with the Recorder's charge to the jury, for a full and proper understanding of the case. "Defence. — Work not done in a workman-like manner, and that the city council, and not the Church, was the contracting party with White. George Tliompson, sworn — Said he examined the stone pavement in question ; he is a bricklayer, and a judj^e of work of this sort ; it appeared to be very well done ; thought it a workman-like job ; one or two stones liave settled ; the pave- ment is rather flat ; no water, however, can lay on it ; there is a great descent north and south ; it has a descent towards the street, but don't show it ; he ex- amined it last Thursday, (two days before ;) $'J3'J is a reasonable charge for such work ; there are fully two thousand five hundred and forty-four feet of flagging. Cross-examined — lie said the object of the inclination of a pavement is to throw off the water ; the water runs north and south, and off to the street ; never saw water settle under the porch ; the jiavement is two and a half inches lower on the outer than the inner edge ; tlie width under the porch is twelve or fourteen inches ; the eye caunut detect any slope in the pavement, unless you go off some distance ; the wall of the church is about two liundred feet ; under the porch the width of the pavement is twelve feet, less in some other parts. //) riply — He said the pavement is a curve ; the water don't settle in puddles so as to annoy passengers. John ]Vhit&, plaintiff, introduced his books of original entries ; the entry was (a) 1 Sp. 99 ; 1 Bail. 306. An. 5-i4 CHARLESTON, FEBRUARY, 1842. VOL. II. [*306 ^.,„_, made as soon as the work was finished.* The books were objected to ; ob- J jectiou overruled. Here evidence of plaintiff closed. DEFENCE. Charles Parker, sworn — Said he is city surveyor ; gave White directions how to proceed with this work ; he was called upon by White, after the work was fin- ished, to measure it for him ; he refused ; his work did not correspond with his directions ; witness told the mayor he would not measure the woik ; he produced a memorandum, dated 19th August, 1839, detailing particularly the defects, with a plat of the pavement, to which I refer as part of his evidence ; says it is not a workman-like job ; it ought to be taken up ; White knew witness represented the city, and that he give his directions as such ; he knew he could not be paid by the city without his certificate ; he refused to give it ; White ought to take uji the whole of this work to make it a good job; he said he could not pretend to guess at the quantity, knowing there were curves. Crofs-exa mined — He said he did not make the contract with White ; he had nothing to do with the churcli ; represented the city ; the custom is, in sucli cases, for individuals to pay the workmen, and look to council for reimbursement of their portion ; there is an inclination to the north ; but a large portion to the south there is no inclination at all ; in one place there is an inclination inwards to the wall. In reply — He said he supposes the pavement could be taken up and relaid at from five to seven cents per square foot ; the pavement of the portico was laid before he laid out the work for White ; don't think as much of the pavement ought to stand as that table, (pointing to the table in court,) to do it in a practical way. Charles P. Frazer, sworn — Said he was at the time clerk of the commissioners of the streets ; the city got work of this kind done for $2 20 per square yard ; the kind of work White did commands the highest price ; accompanied Parker on one occasion while the work was in progress ; saw Parker make White take up some of the work ; White has done no other work for the city, except some cross- ^of)Q-i iiig places ; witness called on Mr. Trescot, the chairman of the *vestry -' of the church, and urged him to have this work done, assuring him the city would pay one-half of the cost ; the custom is, sometimes, for the city to pay the mechanic directly ; sometimes to pay the owner of the premises where the work is done, and the mechanic looks to him ; Parker would never give more than one certificate ; whoever held that got paid. William BroklchaiJc, sworn — Said he was working at the church the time this work was done ; he is a judge of such work ; thinks it a fair job; it is a sub- stantial job ; done in a workmanlike manner ; thinks it worth twenty-five cents a foot ; he has passed there in rainy weather ; has been caught there in showers ; never saw water stand there. Henri) J. JJurbi/, sworn — Said he works near the church ; travels over the pave- ment six times a day, and thinks it a fair job ; passed in rainy weather ; was never incommoded ; a fair pavement for throwing oif water. William T. White — Said he works with his father; has frequently done work when individuals and the city divided expenses; invariably sends the bills to iiidivitluals ; laid a great many pavements in Broad street, when the owners and city divided the expenses ; his father always looked to individuals for payment. Rirhurd YeaJon, Esq., sworn — Said he was a member of council for one year ; the usage was for the owners to apply to council for permissi(ni to lay flag stones, and fr)r tlie city to pay one-half of the cost. The land on whiih the pavement was lairl was admitted to l)elong to the city, having been conveyed to them by deeil l»t;foro the work was done. Jutward AkCradij, Esq. — Admitted that on the part of the church he had of- fered t.i i.,-iy oiM^-half of tlu; bill, and tendered the amount and costs, and did say if re(iuired would ]iay it in specie. William Hell, swurii — Said he has seen the pavement ; examined it particularly the other morning ; it is a very fine job; done in a workmanlike manner; has seen pavements with more descent ; this throws off the water sufficiently well ; *308] ST. rniLip's church ads. white. 545 never found water lying on it ; tlie object of descent is to throw the water off; it has done this. Here the testimony closed. *A motion was made for a nonsuit, on the ground stated in [-:(:ooq the notice of appeal, which was refused, and the case went to the L jury. The Court charged the jury that there were two questions for them to decide. 1. Was the work done in a workman-like manner ? 2 Was the defendant liable to the i)lainti(f, and if so, to what extent? On the Grst question, the evidence was summed up and submitted to them. On the second, the jury were told they could derive no aid from custom; if any had been proved, it was not sufficiently uniform, or of sufficient durntion, to presume that this contract was made in reference to it. The books of the i)laintiff charged the work to defendant, at the time of its completion, and it appeared to the Court, from the evidence of Frazer, that it was properly so charged, and that the church was the contracting i)arty with White, and he says he called on Mr. Trescot, the chairman of the vestry, and urged him to make the contract with White, assuring him that coun- cil would defray half the cost. That White did the work, was not denied. There was no evidence of any contract with the city, and it appeared by account sued upon, that White was the workman of the church. The evidence on this point was summed up and submitted to the jury, as a question of fact. They found a verdict for plaintiff for the full amount of his demand. The defendants appealed from the verdict in this case, and moved in the Appeal Court, first, for a nonsuit, on the ground, that no express contract was proved, and none could be implied, as the work was done in a public street, over which the defendant had no control, and could not have prevented its performance. And failing in this motion, then for a new trial on the following grounds : 1. That the plaintiff's books were incompetent evidence, and ought not to have been admitted to prove either the liability of the defendant, or the measurement of the work. 2. That books of entry are competent evidence only of goods delivered, or jobs done in the shop or premises of the shop-keeper, tradesman, or mechanic. 3. That defendants, upon the testimony, were not liable *l'or more r*-.irt than one-half, in any event; there being no proof of a custom, such as ■- '^ was set up on the part of the plaintiff, to entitle him to recover the whole from the defendants. 4. That the verdict was contrary to law and evidence. Mc Creadji, for the motion, said the church did not deny their liability to pay one-half of the price of the work done. Tlie question is, were the books of the plaintiff admissible ? Were they competent testimony ? Cited 2 Bay, 172 ; 2 lb. 3ii2 ; 1 Brev. 105 ; jailer's books have been excluded, 3 Brev. 251. There was no necessity for his books ; the work is apparent, and will speak for itself ; 2 Brov. 127. A scrivener's books have been held not to be evidence, and the books of planters are excluded; 2 Brev. 157; 1 N. & McC. 151. Note books are not evidence to prove a special contract. In Ferguson vs. Ford, A. D. Ib2l3, a party can only prove the usual items of a merchant's contract. The books are incompetent to prove an item for cash lent, or any special contract ; 1 N. & McC. 130. The dictum was, that shop-books of a mechanic are evidence to prove spe- cific articles in the way of his trade. Loss of time could not be thus proved ; 1 N. the tenor of the note. The case of Nelson vs. Dubois, 13 J. II. ■- 175, seems to me to be this case. The note in that case was made by Brunbridge, payable to the plaintiff; and on the back of it the defendant wrote his name. The note was made by Brunbridge, for the price of a horse, which Nelson would not agree to sell him without security. This note was written by Dubois, who, after Brunbridge signed it, wrote bis name on the back of it, and delivered it to the plaintiff, and said he con- sidered himself bound to pay the note, and guaranteed the payment of it. The analogy of that case to this will be perceived by remembering that the note here was made to procure money, and that the object of Beau- bien's signature was to make it good to the plaintiff; and that when the note, thus signed, was delivered to the plaintiff, he sent to Zealy the money. In the case of N'elson vs. Dubois, 13 J. R. 115, Spencer, J., said, " I confess I do not perceive that this case is at all within the statute (of frauds and perjuries ;) the defendant's promise is not to pay on default of Brunbridge, but is an original undertaldng as surety ; and the defendant State op South Carolixa, ) j ti n ^ -di„ . ^ „ ^ S- 111 the Lommon Meas. Beaufokt District. j D R. Beaubien was attached to answer to George M. Stoney, in a plea of trespass on the case, and so forth, to his damage, fourteen liundred dollars. Whereupon the plaintiff complains : For tliat the defendant did, on the thirteenth day of December, Anno Domini, 1838, together with one John ]M. Zealy, make their certain promissory note, their own proper hands being thereunto written, by which said note, the defendant did jointly and severally with the said John M. Zealy, promise to pay or cause to be paid unto the plaintiff or his order, the full and just sum of seven hundred dollars, on or before the first day of May, then next ensuing, fur value received. By reason whereof, and by force of the statute in such case made and provided, and made of force in this State, the defendant became liable to pay to the plaintiff the said sum of money, in said note contained, according to the tenor and effect of said note. And being so liable, the said defendant afterwards, to wit : on the same day and year aforesaid, at Beaufort, aforesaid, and within the jurisdiction of this Court, in consideration thereof, upon l;im did assume, and to the plaintiff the said sum of money then and there faithfully promised, that he, the said defendant, would well and truly pay, according to the tenor and effect of the said note. And for that the .defendant, on the day and year aforesaid, in consid(>ration that the plaintiff' would lend and advance to the said John M. Zealy, a certain large sum of money, to wit: seven hundred dollars, which he the jdaintiff had occasion for, on a credit from that time to the first day of May, then next ensuing, and take the note of him the said John M. Zealy, payable at that time, he, the defendant, undertook and promised to guaranty to the plaintifl" the payment of the said note ; and that the plaintiff, confiding in tlie said promise and undertaking of the defendant, did, on the day and year aforesaid, lend and advance to the said John M. Zealy, the sum of seven hundred dollars, on a credit from that tinu,' to the first day of May, then next ensuing, and took liis note, therefor, payable to the plaintiff or his order, on the day last mentioned ; to which said note the defendant became a party, his own proper hand being thereunto written as guaranty for the payment thereof, and tlien and there faithfully x'romised and undertook to pay the same, if payment thereof was not made by him the said John M. Zealy, on the day last mentioned as aforesaid ; and that "the said John M. Zealy did not, on the first day of May 550 CHARLESTON, FEBRUARY, 1842. YOL. 11. [*317 ^^ .-, *is as much liolden, as if he had signed the bod}' of the note." ^^'J This view of the case was concurred in by all the Court, (except Tan Xess,) and I thougiit it presented the true rule by which this case was to be decided. It was supported by Frampton vs. Dudley, 1st N. & M'C. 128; Ecde>i vs. Ballard, 2d McC. 388. The jury found for the plaintiff, and the defendant appealed on the sub- joined grounds for a nonsuit : 1. Because the proof offered by the plaintiff, did not sustain any one of the counts in the declaration. 2. Because a note of hand simply endorsed by one who is not a party to it, does not of itself amount to a note within the statute 3 and 4 Ann, ui'On which he can be sued as drawer; and his Honor erred in ruling, that the defendant's name on the back of the note sued on, was equivalent to his signature at the bottom of the said note. And failing therein, for a new trial, on the grounds : 1. Because the jury ought to have been charged, that a note like the one sued on, and endorsed by a person not a party, raises the presumption that the endorser intended to bind himself as second endorser only, and not as drawer ; and that that ])resumption should prevail, until the contrary was shown. 2. Because the testimony showed clearly that the defendant, in putting his name on the back of the note, intended merely to bind himself as an endorser; and tluit the plaintiff understood his obligation or undertaking to be merely as an endorser according to the custom of merchants. 3. Because his Honor erred in charging, that inasmuch as the said D. R. last mentioned, pay the said sum of money in said note contained, but the same, and every part thereof, did then, and from thtoceforward hath continually refused and neglected to pay, and still doth refuse, whereof he the defendant liad notice ; hy reason whereof, the defendant hath become liable to pay to the plaintiff the said sum of money in said note contained, according to the tenor and effect of said note. And fm- the defendant, on the day and year aforesaid, at Beaufort aforesaid, was indebted to the plaintiff in another sum of seven hundred dollars, for money by the plaintiff, before that time, laid out, expended and paid for the said defendant at his sjjecial instance and request ; and for other money by the plaintiff, before that time, lent and advanced to the use of the defendant, and at his special instance and request ; — and for other money by the defendant, before that time, liaoi ^^'i'^'^' ^^ endorser of the note, as it was not payable to him., *J. -J Parker said, " what then was the effect of his signature ? It was to make him absolutely liable to pay the contents of the note." And it ■was ruled, by the whole Court, that he was liable as an original pro- missor. In vs. , 4 Pick'g, 311, the same point was decided. Baker vs. Bn'ggs, 9 Pick'g, 121, was on a similar note — on the Circuit and on the appeal to the Supreme Court, it was held, that the defendant was liable as an original promissor, and was rightly declared against as such. In INIassachusetts it is considered now as settled law, that when a defendant writes his name on the back of a note not yet due, payable to a third person, he will be treated as an original promissor, unless he can show that his contract was not intended to have that effect. I think the same rule must be deduced from some of the New York eases, when they come to be fully analyzed and considered. in Herrick vs. Carman, 12 J. R. 159, the action was against the defendant as endorser. The circumstances material to be noted were, Ryan applied to L. Carman & Co., for credit, which they refused. He made his note i)ayable to L. Carman & Co., or order, which the defendant endorsed. — Ryan presented the note, to L. Carman & Co., and obtained the goods he wanted. They sold the note to the ])laintifF, at a discount, di.-^closing all the circumstances, but endorsing the note. The defendant was held not li\d)lc. Spencer, J , however, remarked, "had it appeared that the plaintilf endorsed the note for the purpose of giving Ryan credit with L. Carman & Co., then I should have considered him liable to them or any sulisequent endorsee, and the defendant's endorsement might have been converted into a guaranty to pay the note if Ryan did not, according to the decision of the Supreme Court in Massachusetts, 3 Mass Rep., 274." JoHcchpi vs. Adavif^, is the case referred to by Mr, J. Spencer. In that case, it was held that an endorsee for valuable consideration of a note not negotiable, may write over the name of the endorser a promise to i)ay the contents of the note to the endorsee, who may maintain an action on such promise. Taking the two cases together, it may be fairly inferred, Ihat the doctrine intended to !)e maintained by that able Judge, *3'^11 ^^^' '^' ^l'^"'"^''"' ""'^ ^'"^t when Ihe deh-nd ant's *act, by his knovv- -• ledge and with his assent, gave credit to the maker, then that he might be treated as originally liable for the payment of the contents of the note. Jn Til man vs. Whfidvr, (17 J. R. 32C,j the count was on the de- *321] STONEY VS. BEAUBIENl 553 fendant's endorsement of a similar note, as a guarantee — it was held that the plaintiff could not recover. In Nelson vs Dtibois, (13 J. R. 175,) the recovery was sustained on the third count in the declaration, which considered the plaintiff's under- taking as a gMiarantee. It is true that the first count was against him as milker. It does not appear to be noticed bj' Spencer, J., who ruled that the evidence offered to charge the defendant, and excluded on the circuit, was admissible under the third count. This reasoning, however, through- out, proves that the defendant's undertaking was original, and not col- lateral, and that his liability arose from the act of writing his name on the note, intending to make it good to the plaintiff. The words, " the defendant is as much holden as if he had signed the body of the note," are far from being equivocal; they plainly import that the defendant might be liable as maker. I am aware that there are other cases in New York, which may seem to have a contrary tendency. They, however, do not, so far as I have been able to examine them, touch on the doctrine which I deduce from the cases cited. In Frampton vs. Dudley, (1 N. & McC. 129,) the Court of this State first directed its attention to this subject. The note there was payable to the plaintiff or I)earer. Tiie defendant wrote his name on the back of the note ; the declaration counted against hira — first, as endorser; second, specially, that the defendant agreed to become security for the drawer, and therefore endorsed it; third, for money had and received Under these counts the Court ruled the j^laintiff could not recover — holding that under the second count no sufficient consideration was stated. But the Court intimated a strong opinion, that if the defendant intended to become a party ''to the original contract,^^ he might in some other form be made liable. The reporters suggested the inquiry, whether he might not 1)6 made liable as drawei*. In Eecles vs. Ballard, (2d McC. 388,) the Court responded to that query, by ruling that the endorser of a note ^payable to bearer shall be considered as the drawer of a new bill, r^oc).^ If I was comi^elled to rest this case here, I should think I had ^ done enough to vindicate the decision below. For certainly the weight of authority is altogether in favor of it. Indeed the case of Eecles vs. Ballard touches the very point. For when it ruled that the endorser of a note, payable to bearer, niust be regarded as the drawer of a new bill, it was upon the ground that his contract was otherwise h'gally in- 0}>erative. In the case before us the same result v.'ould follow, if we could not come to a similar conclusion. For to endorse a note payable to another can have no effect, if it does not make the defendant liable as the maker of the note. The English cases will, I think, lead us to the same conclusion. In Hill vs. Lewis, (Skinner, 410,) C. J. Holt, before a jury of mer- chants, and with their assent, ruled that a bill payable to bearer was not endorsealde ; yet, if it be endorsed, the endorser shall be charged — for every such endorsement is as a new bill. Why, it may be asked, was this ruling made ? It was because the endorsement of such a bill could not have effect in its legal and technical character, and was therefore not sub- ject to the rules governing that class of contracts, and hence the Court 554 CHARLESTON, FEBRUARY, 1842. VOL. IL [*322 was obliged to regard it as a new bill, direct ing the payment to the eiidorserof the contents of ihe note according to its tenor and effect. In Hodges vs. Steicart, (1st Salk. 125,) the second point ruled was, "thongh an assignment of a bill payable to J. S. or bearer, be no good assignment to charge the drawer with, in an action on the bill, yet it is a good bill between the endorser and the endorsee, and the endorser is liable /ci an action for the money; for the endorsement is as a new bill." To the same effect was the ruling of the Judges in Nicholson vs. Sege- wick, (1 Ld Ray'd. 171;) Tasset & Lee vs. Servis, (1 Ld. Ray'd. 743-4 ) These cases abundantly prove that one who writes his name oa the back of a note, payable to bearer, becomes originally liable for the contents. The reason why that is the lav?^ — because otherwise no legal effect would result from the endorsement — applies forcibly to the case DOW in hand. A promises to pay B, or order, money, and C, in order to *Qoqi ?'^'^ ^^'™ credit and to ''make the note good, writes his name oa " -' the back of it — unless this be regarded as a several undertaking to pay the note, it can have no legal effect from the paper itself The object and duty of Courts is to enforce contracts, not to set them aside; and hence, unless there is something which renders it legally inoperative, it should have effect according to a fair construction. Looking to the note before us, and construing the words in connection with the names of Zealy on the face and Bcaubien on the back, it is no strained or unrea- sonable construction to say that on the 13th of December, 1838, each of them promised to pay to George M. Stoney, or order, on or before the 1st of May next ensuing, the sum of seven hundred dollars, for value received The motion is dismissed. Richardson, Evans, Butler, and Wardlaw, JJ., concurred. See Cnrpenter vs. Oaks, 10 Rich. 19 ; Ambler vs. IliUier, 9 Rich. 244 ; Baker vs. iScott, .') Rich. 310 ; Pride vs. Berhley, 5 Rich. 539 ; CocJcrcll vs. Milliny, 1 Strob. 444 ; Graij vs. Bell, 2 Rich. 71. An. The Treasurers, for James Malony, vs. William B. Buckner, Sheriff. 1. On a suprgpstion filcrl against a sheriff, (after judgment has been obtained against him on his official bond,) suggesting other breaches of liis bond, he may plead double if he chooses, but he cannot traverse and demur both, to the same portion f>f the suggestion. 2. Wliatcvcr a sherilF does, or omits to do, in his official character as a public officer (under tiie Act of 1829), properly recognized, whereby damage results to another, seems to be a violation of tlie duties of his office, and the damage proved rtiay be recovered under the bond. Fees improperly charged constitute such damage; but a penalty or forfeiture given to the party injured, for his more ample reparation, and for the punishment of the sheriff, seems not to be damage, Lilt fRllier a chanre of gain, which, by increase, the law bestows upon the suf- ferer; such penalty or forfeitun; maybe recovered against the sherilf by suit, "in which no imparlance shall be allowed," but does not constitute such a demand as may be rec(iv<>re.l under the bond, against the sheriff and his sureties, for liis breai'h of oiricial duty. Before Waui.law, J., Bcaufurt, Extra Term, January, 1841. In this rase the plaintiff suggested, as a breach of the official bond of *323] TREASURERS VS. BUCKNER. 555 William B. Bnckner, late sherifif of Beaufort *district, his exaction r^n:)i on certain executions in his office against the plaintiff, of illegal l costs, to the amount of $ • , and claimed to recover the penalty of ten times the excess as allowed by the Act. The defendant pleaded the general issue, and also demurred specially, showing for cause, that this was not a matter for which the sheriff's sureties were liat)le, and should not, therefore, have been suggested as a breach of the sheriff's olficial bond. The demurrer was sustained. From which the plaintiffs appealed, on the grounds : 1. Tliat the cause of action was rightly suggested, as a breach of the sheriS's official bond : and, 2. That the judgment was, otherwise, contrary to law. E. R/ictt, for tlie motion, said the defendant pleaded the general issue and demurred. Cited 1 Saund., note, 58. The defendant cannot plead and demur both. Referred to Treasurers vs. Bates, 2 Bail. 379 ; 5 Bac. Abr. 447, 448, 457. Second ground. Is the exaction by the sheriff, of illegal costs, a breach of his official bond ? 2 Hill, G47 ; 2 Brev. Rep. 229. McCarthi/, contra, said the only ground made was, that the cause of action was well stated. He contended the penalty could not be recovered under the bond. Is the sheriff liable for extortion in taking more costs than he ought ? • Curia, per Wardlaw, J. A formal decision only of this case, was made upon the circuit, and a report by consent of counsel prepared for taking the opinion of this court. It now appears that a judgment on his bond has been obtained against Buckner only, and not against his sureties ; that what is called a general issue was a general traverse of the suggestion tendering an issue, that the special demurrer was a sort of special plea, in which, whilst the lialiility for the excess of fees exacted over the legal fees is admitted, the liability for ten times the excess is denied ; that there was an order of court permitting the defendant to plead double, and that the plaintiff joined in the issue tendered by the special demurrer or plea. *The plaintiff now objects that defendant could not both plead rj^r,c)r and demur to the same parts of the suggestion, and insists that ^ the defendant shall not have advantage of his demurrer. The case of TJie Treasurers vs. Bates, 2 Bail. 379, which first intro- duced or recognized, from necessity, the practice of suggesting further breaches after one judgment upon a sheriff's bond, in directing the course of proceedings, contemplates that the defendant shall ])lead to the sugges- tion, and refers to the case of Gainsford vs. Griffith, 1 Williams's Saunders, 58. By the English practice under the statute 8 and 9 W. 3, c. ll,(fl) a suggestion is employed to set out breaches existing at the time of the judgment, and the defendant is not required to plead to such suggestion, as the plaintiff must, at the execution of the writ of inquiry, prove the breaches and recover damages accordingly; ^or, further, or subsequent breaches, a scire facias is employed, to which defendant pleads as to scire facias in other cases ; but the pleading, whatever it may be, goes to the right of recovery, and after the establishment of that right, in taking the inquisition or executing the inquiry, the amount of damages is accommodated to the proof that the plaintiff may oil'cr. lu («) Not made of force here. An. 556 CHARLESTON, FEBRUARY, 1842. YOL. II. [*325 like manner, the practice in this State directed as to a sheriff's bond, pre- supposes a judg-nient already obtained, which is to stand as a security for the damages that may be proved, and whilst it prescribes a suggestion rather than a scire facias as a simpler proceeding, it allows the defend- ant to plead, because the breaches suggested will be for the benefit of a new party, and in the nature o^ further breaches, and because in the matter of the breaches, or in occurrences subsequent to the judgment, there may be good ground for the defendant to deny his liability. But suppose the defendant sliould make default in pleading to the suggestion, shall the plaintiff have judgment? That he has already, for the penalty. Shall the amount of damages, laid in the suggestion, be taken as admitted ? Then there would be no writ of inquiry, but an ascertainment by confes- sion. Tlie true view seems to be, that the defendant cannot, by any de- fault or error of pleading, be put in a worse condition than that of au ordinary defendant in an action of debt or bond, conditioned for the per- *Q0P1 formance of ^'covenants, after plaintiff's recovery of judgment for " -' the penalty; the facts and circumstances must be proved before a jury, who shall assess the damages accordingly. Objections to those por- tions of the suggestion which state the former recovery, and matters of defence subsequent thereto, are waived by neglect to plead, or improper pleading; an assignment of breach, which the Court would have held insufficient, may go to the jury, if there be no demurrer; but by no im- plied admission, arising from the pleading, can the defendant be held beyond his liability to such damages as the plaintiff may prove to have arisen from the breach assigned. The pleading, so far as concerns the defendant's liability for any breach, and as concerns matter of form, apart fi'om the assignment of breach, should be like that to a scire facias upon judgment — and so far as concerns his liability for the breach suggested, and matters of form in tlie assignment of it, should be like that to a replication assigning breaches after a plea of performance. (a) As there are in this case obvious errors of pleading, and some misunderstanding exists between the counsel, tlie defendant is permitted to strike out all after the suggestion, and plead de novo, })leadiiig double if he chooses, but not traversing and demurring to the same portion of the suggestion. The main question presented by the appeal is as to the extent of the defendant's liability, in au action on his bond, for fees improperly ex- acted. (^) The condition of the sheriff's bond is, that "he will well and truly perform the duties of said office, as now or hereafter required by by law. during the period he may continue in said ofiQce." Act of Assem- bly, LS2!). Whatever, in tlie execution of his office, or in the character of a public officer ])roperly recognized, the sheriff may do or omit, whereljy damage results to another, seems to be a violation of the duties of his odice ; and the damage jiroved may be recovered under the bond. Fees improperly charged constitute such damage; but a penally or for- feiture given to the party injured, for his more ami)le reparation, and for the punisiiment of the sheriff, seems not to be damage, but rather a chance of gain, which, Ijy increase, the law bestows upon the sulVcrer. Such penally or forfeiture may be recovered against the sheriff by suit, in) Rftfi Norton vs. Mullninn, 4 Slrol.. ?,->Q ; Bank vs. Bowie, 3 Strob. 442. An. {!,) SUUv v.i. Yniujue, tj lUcli. 'ill ; 1 Rich. 307. An. *326] TREASURERS VS. BUCKNER. 557 "in which no imparlance shall be allowed," but does not *seera r:jcoe)'T to constitute a demand which, under the bond, may be recovered ^ against the sheriff and his sureties, for his breach of official duty In the case of Lesley <& Calhoun vs. Taggart, decided at Columbia, December, 1841, it was held, that under sng-gestiou upon a judgment on the bond of a sheriff, there could not be recovered the costs of suits, in case and assuuii)sit, by which tiie delinquency of the sheriff, and amount of the dam- ages thereby occasioned, had been previously ascertained. It was there no less the personal duty of the sheriff to pay such costs, than here to pay the ten times the excess claimed ; and his liability to pay costs occasioned to the plaintiff's damage more clearly apparent than any damage which is here seen to result from the neglect to pay the ten times the excess, (a) With these directions a new trial is ordered. Richardson, O'Neall, Evans, and Butler, JJ., concurred. See Sup. 146. The Treasurers vs. W. B. Buckner. Where a glierifF has no process giving him authority to receive money, a person who pays to his deputy cannot look to him. And where one, deceived by no show of authority, pays money to J. S. himself, then being sheritl', that which the sheriff had not authority to receive, J. S. personally is lialile for, and not the official bond of the slieriff. But should the sheriff, having writs which au- thorize him to collect, exact from the debtor more than was lawfully' required, even without levy, the payment is not voluntary, and it is a violatiou of his official bond. Before Wardlaw, J., at Beaufort, January Term, 1842. This was a suggestion of breach on the official bond of William B. Buckner, late sheriff of Beaufort district, a judgment having been pre- viously obtained therefor. The breach alleged was an exaction by the sheriff, from the plaintiff, under and by virtue of sundry executions in his office, of the sum of two hundred and fifty-six dollars and tliirty-two cents, over and above the amounts due on the said executions. Plea, the general issue The plaintiff *being admitted to have proved r^ogo his case, the defendant moved for a nonsuit, on the ground that '- the exaction complained of, not having been made by actual levy and sale under the execution, was no breach of the condition of the sherift''s bond, and the motion was sustained. From which the plaintiff appealed, on the grounds : 1. That the cause of action was rightly suggested, as a breach of the sheriff's official bond : and, 2. That the judgment was, otherwise, contrary to law. Mr. RlieU, for the motion, cited 1 McCord Rep. 395 ; Cheves' Rep. 113. McCarthy, contra. Curia, per Wardlaw, J. This case, like another between the same parties, just decided, was heard upon a report prepared by counsel, after a jjro forma decision on the circuit ; and to the other, reference may be (a) 4 Strob. 31. An. 558 CHARLESTON, FEBRUARY, 1842. VOL. IL [*328 had for the opinion of this Court as to the practice in suggestions after a judgment upon a sheriff's bond, and as to tlie general measure of lia- bih'ty on sucli bond. What in this case is called a nonsuit, might have been better called an order to quash the suggestion. Where a sheriff has no process giving him authority to receive, a per- son who pays to his deputy cannot look to him ; Chiles vs. Holloway, 4 McCord, 164 ; and if one, deceived by no show of authority, should pay to J. S., himself, then being sheriff, that which a sheriff had not authority to receive, his recourse would be to J. S., personally, and not to the sheriff's bond. But where a sheriff, having writs which authorize him to collect, exacts from the debtor more than can lawfully be required, even w^ithout levy the payment is not voluntary ; 1 McCord, 395 ; Cheves's L. R. 113 ; and the sheriff either wilfully abuses his office, or negligently or unskilfully performs his duty, so as to violate the condition of his official bond. The order of the Circuit Court is set aside, and a new trial ordered. Richardson, O'Neall, Evans, and Butler, JJ., concurred. See 1 McM. 310. An. *329] *F. Y. PoRCHER ads. Richard Caldwell. 1. Where Ww unsoundness of a slave is known to a purchaser at public sale, lie cannot maintain an action on the implied warranty of soundness. 2. Where a purchaser of a slave takes a bill of sale, or written warranty, and omits to insert a clause warranting the soundness, it is a reasonable inference that no warranty of soundness was intended. The presumption of warranty, however, is not conclusively rebutted, but it is a circumstance which should always be submitted or presented to the jury. Tried in the City Court, July Terra, 1841, before his Honor the Recorder. This was an action of assumpsit on an implied warranty of soundness of a negro woman named Lucia, and the following is the testimony takea by the Recorder, on the trial of the case : " Thoman lii/an, sworn, said he has seen this woman ; ^'^50 is a large price for her, if sliR w sound Cross-examined, thinks the price of $350 large, becanse she is at least furty-soven years of ago ; some at forty-five are worth less ; he has had a great deal to do with negroes in the last eighteen months. In repli/, he said he is an auctioneer, and has sold a great many negroes ; his opinion is formed from the sales he lias made, and from what his neighbors have made. Ih-. Wariiif/, sworn, said he was called to see Lucia 15th March last; attended nutil '22d. Slie was laboring under suppression of urine; he directed some mild m<-asiir«'H ; returned in tw() hours and inserted the catheter, and found it was not what lu^ Huj)p()spd ; not a wine-glass of water came from her ; thought it then local irritation d<-pen) Thus there can be no doubt that an express declaration that' the seller will not warrant, effectually destroys the presumption. So, also, it has always been held, that where the nnsoundnoss was known to the buyer, he could maintain no action on the implied warranty. Besides these, there are many other facts which altiiough not so conclusive, go to rebut the presumption. Among these i.s the omission to insert the warranty in the written contract, where there is one. If the purchaser takes no written warranty he trusts wholly to (a) Soo TimrodvH. Shorlhrnd, 1793, 1 Bay. 324; Watson vs. Boatwriglit, \ Rich. 40'.i ; SUrvnx VH. CItoppell, 3 Strob. 83 ; Crouch vs. CulbreatL 11 Rich., 10. An. (Jb) 3 Rich. 4G4. An. *333] PORCHER ads. CALDT^'ELL. 561 his implied warranty, both as to title and soundness ; but where he takes a written warranty of title, and omits the warranty as to soundness, it is certainly a fair argument to deduce from this the inference, that there was an absence of intention to warrant beyond what is contained in the written title. (a) I do not say that the presumption is concjusively rebutted by this; but it is a circumstance entitled to consideration, and should i)e presented always to the notice of the jury. The evidence in this case is that the disease was chronic, and had existed, the doctor thought, f(^r thirteen years at least. Caldwell told Gadsden he knew her well, she was unsound, he had her in his service, and the woman herself declared at the sale she was unsound. If these facts are true, there can be no doubt that Caldwell took the risk of soundness on himself, and his omis- sion to have the clause of warranty of soundness inserted in the title, would seem to lead to the conclusion that no warranty of soundness was intended or expected. But is said that everything which happened at the time of the sale is established by the evidence of (iadsden, the auctioneer, alone, and that the jury were the proper judges of the extent to which they could confide in his recollection of the facts. This is true, and if that were the only circumstance, I should be disposed to let the verdict stand, as we have done in many other cases. But there are other circum- stances. It appears from the evidence of Schroudy, that she had been in the employment of Caldwell and his family, and it is a fair inference that the exisience of this chronic disease was known to him, or at least that he knew she was unhealthy, and should not have purchased r:i:r,.T< without the security of a warranty. Besides this, it does not ap- '- pear that the important fact, that he took a written warranty of title without a warranty of soundness, was brought to the view of the jury as one of the facts which, connected with the others, would lead to the con- clusion there was no warranty intended or expected. The motion is therefore granted. O'Neall, Bltler and "Wardlaw, JJ., concurred. Earle, J., absent. (a) Sup. 20. A7i. See 2 Rich. 470. Also Wood vs. Ashe, 1 Stroli. 407 ; 3 Strob. G4. An. YOL. I.— 37 CASES AT LAW ARGUED AND DETERMINED. IN THE LAAY COUliT OF APPEALS OF SOUTH CAllOLIM. Columbia, gTaj), 1842. JUDGES PRESENT. HON. JOHN S. RICHARDSON, HON. BAYLIS J. EARLE, " JOHN BELTON O'NEALL, " ANDREW PICKENS BUTLER. " JOSIAH J. EVANS, Wakdlaw J., absent, liokliiig tlie Circuit Court in Clxarleston. Walter V. Foster vs. William Gault. 1. A constable, in the discharge of an official duty, is not bound or required by law to look beyond the process which requires him to act. If the Court issuing tlie iirocess has jurisdiction over the matter in wliich he is required to ac't, it is lii.s duty to execute the process. He is neither permitted or required to look beliind it to see if the Court has done its duty, and complied with all that the law i-equires as a prerequisite to the issuing of the process. 2. A ministerial officer, whose duty it is to execute a jjrocess, is justifiable under tliat process, unless it be void, and not merely voidable. Before Evans, J., at Union, Spring Term, 1842. Tliis was an action of trover, under the following circunistauees. One William llunnells sued out a domestic attachment against the plaintiff and his fallier, William 1\ Foster, for a debt under $20. The process was placed in the hands of the defendant, an acting constable of the district, *3Q,;-| who seized upon and took into his possession *a mare, the subject of this action. The evidence was very satisfactory, that the mare was the jiroperty of the plaintilT. The magistrate condemned the mare tf) be sold, to satisfy the jiidgnient in favor of llunnells, and the con- staljle, in piirsmmce of this order, sold the mare. This was the conver- sion complained of. The magistrate slated, that before issuing the attachment, he took a bond from the plaintilf, HiinncUs, but did not reipiire security, as he was amply .sullicicnt. The presiding Judge, in his report, states that "/ do *336J FOSTER VS. GAULT. 5G3 not remember the words of the affidavit, but I think they xcere sub- stantidlhj what is required by the attachment Acta.^^ The jury were chari>;ed by the court, tliat so far as the constable was concerned, it was wholly immaterial whether there was security to the bond or not. The question was, whether the constable, a mere execu- tive olficer, was bound to look beyond the {)reee[)t under which he acted. The jury found for the defendant, and the plaintiff appealed, on the following grounds : 1. Because his Honor the presiding Judge erred in charging the jury that a magistrate's judgment and order for sale, predicated on a domestic attach- ment, in a case where the plaintiff in attachment had not given bond with surety, as the law directs, to indemnify the defendant, was, nevertheless, sufficient to justify the constable in selling the defendant's property. 2. Because the affidavit of the plaintiff in attachment, under which the property of this plaintiff was sold, was informal, and consequently the magis- trate's order for sale void, and conferred no power on the defendant to sell the plaintiff's property. 3. Because the law and evidence entitled the plaintiff to recover. TIerndou, for the motion, cited Acts 1839, p. 29, sec 30, («) aftd contended that a magistrate's jurisdiction being a bmitcd one, and liavinsx no otlier powers, the party should hring liimself nnder tlae specific provisions of the Act ; and he referred to the case of ILiiijiiod vs. Hunter, 1 JlcCord, 511. It is necessary, in all process issuing from an inferior ^jurisdiction, that the magistrate should specify i)ar- r*qo7 ticularly the authority under which he acte the sheriff was entitled to recover of a plaiiitiif who had lodjred process ap:ainst the same prisoner whose case is now before the Court, the amount of his jail fees. The judijment of the Court, for the entirely satisfactory reasons assigned in it, was against the demand of the sheriff. As far as we are informed, the situation of Evans, since that time, has been in no wise changed; that is, he has neither made an assignment or surrendered his property; and but for the Act of 1839, it is conceded the sheriff would be without remedy The sherifTs right to recover in this action depends entirely on the construction of the last Act referred to. The 30th section of the Act of 1839, ])age 31, is in the following words: "When any person shall be taken on mesne or final process, in any civil suit, and from inabiUly to pay fhe demand, debt or damages, or find bail if *committed to jail, and such person has no lands, tene- r-.,.., ..^ vients, goods, chattels, or choses in action, whereby his mainte- - "^ '■' nance in j«il can be defrayed, the plaintiff, or person at whose instance such person shall be imprisoned, shall pay and satisfy the same ; or if such person, or his attorney, shall refuse or neglect, after ten days' pre- vious notice, to pay or give security to pay the same, when demanded, the sheriff or jailor in whose custody such prisoner is, may discharge hini from confinement; provided, however, that such prisoner shall, before he be discharged, render on oath, a schedule of his estate, and assign the same." - At the time Evans was committed to jail, he had abundant means to satisfy the damages recovered by defendants ; and he preferred going to jail rather than subjecting his property to the operation of a Ji. fa. He made his own choice, and surrendered his person rather than his property. Jlis going to jail did not arise from inability to satisfy the demands against him. At that time he left his property, to come and surrender himself in discharge of his bail ; and by his voluntary imprisonment, he has deprived his creditors of the means and security which they would otherwise have had a right to resort to, in satisfaction of their recovery. For, if he had not taken off his property when first arrested; or if, after he had given bail, he had remained out of the State, these judgments would have been satisfied, cither by his property or his bail bond. In the first instance, then, even under the Act of 1839, the prisoner was not in a situation to subject the defendants to liability. But in the second place, had he. at the time these actions were commenced, no lands, goods, or choses in action, whereby his maintenance in jail could be defrayed ? There was no evidence that he had divested himself of the property wliich he had when he was committed, much less that it had been destroyed or wasted, so that it afforded no available income subject to the control of the prisoner. All that was said was, that the property was out of the State, and could not be reached by the sheriff. That may be, and still the prisoner may have abundant means at his command; he may have had regularly transmitted to him tiie proceeds of his crops, and have his money at interest, or in bank ; and in such cases the sheriff' *could r:i:.T , , no more reach it than if it was out of the State, without an order ^ from Evans himself. The inability to pay cannot depend on the location of the property, or the peculiar form in which it may exist. The fact that a person's funds may be abroad, does not deprive him of his right to 568 COLUMBIA, MAT, 1842. YOL. II. [*344 control and coramand them at pleasure. They may be drawn on by bill, taken y)ossession of by an agent, or converted into money by sale. The ability of a prisoner to pay for liis subsistence, must frequently depend on his own volition to command the meaa§ in his power; and when he wilfully refuses to pay, because he does not choose to command them, this should not constitute the inability contemplated by the Act. lu fact a refusal to assign and deliver, would, in general, be evidence that he had means, but which he was unwilling his creditors should have the benefit of. It would be singular, indeed, if a wealthy prisoner could compel his creditors to support him because liis property happened to be in another State; and such might be the case, where one contumaciously puts his creditors at defiance, by sending his proyterty away after his arrest. What had become of the income of the prisoner's property for the last five years ? He either has it himself, or it is in the hands of agents, or the property has be«u destroyed. Suppose that after the tea days notice prescribed by the Act of 1839, the prisoner had been dis- charged, and thereupon he had filed his schedule, showing that he had large possessions in a ueighboring State, or money in bank in this State, how would this be consistent with his inability to pay his jail fees ? The prisoner's ability must not be confounded with the shei'iff's power to enforce his remedy, for the latter must depend more upon the description than the situation of assets. W'C think that the sheriif in this case was bound to have shown that Evans was unable to pay, for the want of means, before he could hold tlie present defendants liable to the demands against them ; and it may be, that at the time this action was commenced, Evans's means were entirely wasted or destroyed by the act of God, or by the wilful acts of others, without any fault on his part. And if so, the sherifl' ought not to Ije compelled to support him, but might be authorized to discharge him ^5,.-| under the *Act, or to compel the parties to this suit to pay the -■ prisoner's board ; for although the prisoner's contumacy should give him no advantage, it should not subject the sheriff to prejudice. It would seem to be parado.xical that any one should be compelled to sup- port another when he is aljundantly able to supi)ort himself. As far as we can see, this is Evans's situation ; he is requiring others to feed him because he has wronged them, aud does not choose to sujjport himself. It may Ije, however, that he is entirely without means ; and I would not have the sheritPs right to recover pay from the present defendants, to depend so much on Evans's original ability to pay the demand for which he was committed, as upon the fact of his inal)ility to pay the jail fees at the time this action was commenced. So long as the prisoner can pay, the party who committed liim is exempt from liability ; but when it can be shown tiiat he is unaljle to do so from the want of means, then the sheriff may estal)lish his right to recover in this action. According to these views, we think a new trial should be granted. PiiciiARDHON and Earle, JJ., concurred. O'Nkaij. and Evans, J J., dissented. See G Ricli. 233; 3 Strolj. 101; 1 IlUl' 422; Dud. 71. An. *346] LAMAR & DANIEL VS. REID. 569 *Lamar & Daniel vs. William R. REiD.(a) [*346 Peter Lamar vs. The Same, Felix Crosslin vs. The Same, 1. Wi'its of forei.i,'!! attachment were issued agcainst the defendant and Jane" Reid, jointly — d(u'lar;iti(ins against the defendant alone, suggesting Jane Reid to be the wife of defendant, /n'ltl to be fatal on special demurrer, 2. It seems that the proper course of discontinuance, where two defendants have been joined in the same writ, is by leave of the Court to discontinue. Leave to discontinue will never be refused, but it must first be obtained. This is the usual practice, and this j)ractice has good reason — so says the Court, Before Richardson, J., at Abbeville, Spring Term, 1842, The facts of these cases are as follows : The plaintiff?; issued writs of foreign attachment in each of the above cases, against William R. Reid and Jane Reid, In their declarations tliey declared against William R. Reid alune, suggesting that Jane Reid was the wife of William R. .Reid. To this there was filed a special demurrer, for variance between the writs and the declarations. Joinder in demurrer. The Court sustained the demurrer, and-the plaintiffs appealed from the decision of the Court sus- taining the demurrer, upon the subjoined grounds : 1st. That his Honor erred in holding that Jane Reid, & feme covert, and wife of defendant, William R. Reid, had been properly served and made a party, by process of attachment against the property of William R. Reid. 2d. Because, admitting that Jane Reid, the wife, could and had been served •with process, and made a party, his Honor erred in holding that upon a writ sued out against husband and wife, a declaration against husband alone, suggesting the relation of the parties, was bad on special demurrer for variance between writ and declaration. 3d. Because the decision is, in other respects, contrary to law, Wihon, for the motion, said, Jane Reid, being a feme covert at the execution of the contract, the contract itself was a nullity. He cited 4 Taunt, 4(>S, The contract is joint and several, and Jane Reid never has been made a party to the sxiit. The plaintiffs could proceed without* noticing her, 1 Hill Rep. 229, i-xq m Sadler vs. McKee. The proceeding in attachment is only to bring the *- defendant into Court, and make him a party ; 1 Tread. Cons, Rep, 83 ; 2 McC. 27t), Actil792; 2 Brev. 170; as to process against partners, Act 1823, p. 34. Because there is no difference between the original writ and the decraration, in ordinarv cases, it does not follow, of course, that it should not be, in cases of attachment. Chittv Plead, 52; 4 Burr, 21fc0;. Chev, 233, 185; 1 B. & P. 49 ; 4 Term, 094; 3 Hill.'215 ; 3 Johns, 530, 53' ; 1 Bing, 68, or 8 C, L, Rep. 253 and 297 ; 17 ih. 309 ; 1 B. & P. 19 ; 10 C, L. Rep. 218 ; Harp. 215 ; leave to amend, xh. 400 ; 1 Peters, 46 ; 15 Johns, 483. Burt, contra, cited Fitch vs. Heise, Chev, 185, and said that case was conclusive. Curia, per Richardson, J. In the case of Fitch vs. Heise, (Chev, Rep. 185, j this Court decided that where two joint(/;) obligors had beea served with the writ, and the plaintiff suggested a discontinuance as to one, and declared against the other alone, the declaration was bad upon the special demurrer. The Court will generally give leave to discontinue, as a matter of course, yet leave must be first obtained by the usual practice; and this (o) S, C. Sup. 10, (6) Qu. Joint and several. An. 570 COLUMBIA, MAT, 1842. VOL. IL [*347 practice has good reason. The names of men often influence tlie mind and l)ias a trial by jnry; and therefore Courts guard strictly against the introduction of any but the exact legal parties -to a suit a-t law; and whether the objection be to the withdrawal, or adding a party, the prac- tice is t!ie same, and has the same reason. The relative position of the litigants is not to be altered at ])leasure of either ]iarty. In the case before us, the plaintiffs sued William and Jane Reid upon their note, and in attachment. The defendants gave security, dissolved the attach- ment, and appeared in person. The case then stood precisely as that of Fifch vs. Heise. Mrs. Reid was in Court. Afterwards the plaintiffs assumed, and the fact may have been so, that Jane Reid was the wife of the other defendant, and proceeded against Wm. Reid as if she had not been made a party; but they should have first ol}tained the leave of the Court before they could change the relative position of the parties made *'-jJsl '^'y themselves. *In many cases, much consequence might follow ''-' from the change. Notwithstanding, therefore, some cases which might indicate a different practice elsewhere, we would adhere to our own. The demurrer is consequently sustained, but the plaintiffs have leave to discontinue, as to Jane Reid,^«) upon paying the costs of the demurrer, and to declare against the other defendant, giving a rule to plead de novo. O'Xeall, Evans, Earle and Butler, JJ., concurred. William Jacobs vs. McBee & Alexander. "Where the sealed note of one of a partnership firm is taken for a debt due by the firm, the simple contract of the partnership is extinguished by the sealed note. Before Evans, J., at Greenville, Fall Terra, 1841. This was a case wherein the plaintiff attempted to charge McBee, as a partner with Alexander, in the purchase of grain. It appeared from the proof, that some grain had been delivered, and that the plaintiff had accepted and taken Alexander's sealed note in payment for the debt. The presiding Judge held, and charged the jury, " Tiiat the simple eon- tract of the partnership was extinguished by the sealed note of one of the partners." . From this decision the plaintiff appealed for a new trial, upon the ground of error in the direction of liis Jlonor the presiding Judge, that the sealed note of one partner is an e.xtinguishment of the simple contract debt of the firm. Yonnij, Hinrij and Wardlmv, for the motion. Virrij and Towns, contra. ♦3401 *Cvria, per Evans, J. There is no doubt about the general principle, iliat a bond or other contract under seal, will extin- guish a simple contract; or, to speak more accurately, the inferior Bccurity is merged in the higher. This principle applies equally where ('0 See 3 Strob. 252; 1 McM. 212; 2 Hill, 422 ; 2 Rich., 12. An. *349] JACOBS vs. m'bee & Alexander. 571 the bond of one partner is given for a partnersliip debt, as to other cases. Bnt it is supposed tiic case of Fleming, 7^>.s.s 3artanburg, and claimed the proceeds of the sale in Laureus. Rule discharged. From the foregoing judgment of the Court, the plaintiffs appealed and renewed their motion in the appeal Court. Sullivan, for the motion. Irby, contra. Curia, per Eai^le, J. It is very well settled that an execution once levied u])cu suflicient personal property, is to be regarded as satished until the levy is disposed of (fl) Mazijck & Bellas. C'otV, 2 Bail. 101. In Clerk vs _ Withers, Lord Raymond, 1012, Gould, J., said, " the defendant by this seizing of his goods in execution, is discharged of the judgment ;" and Holt, Ch. J., said, "the defendant may plead 'levied by^. /a.' in bar to an action on the judgment." And this would be triie, although the sheriff might waste the goods or misapply the money. If the action here had liceu upon the. former judgment as a new cause of action, the ])laintiffs would doubtless be permitted to prove that the horses levied on were not sold by the sheriff, but were, in fact, restored to the pos.se.ssioii of the defendant himself, and thus rebut the presumption of satisfaction arising from the levy. Here the attempt is Ijy rule to obtain funds which the sheriff has made by the sale of other property, upon an cxeculioii lodged more than ten years after that of the plaintiffs. By the levy of tiieir execution on two horses which we are to presume, until the *3521 |-''^"^'''>''y Jipi'cars, was enough to pay their debt, as that *with the interest and costs, did not much exceed thirty dollars, their lien upou (a) See May vs. Hancock, MS. Dec. 1829 ; 1 Rice's Dig. 303, { 47. An. ^352] BANK VS. SIMPSON-. 573 other property of the defendant was suspended until the horses were dis- posed of and found insullicient. Nor could it be restored by their owq act in releasing the levy, after the levy and sale under the junior execu- tion. The plaintiffs suspended the sale, by directing the sherilf not to advertise ; but they still retained their hold upon the property under the levy, and if their execution is not satisfied, may proceed to retake it, if they can. Motion refused. Richardson, O'Neall, and Evans, JJ., concurred. The President and Directors of the Bank of South Carolina vs. Oliver Simpson. Where a party (defendant) is temporarily absent from tlie State, and a copy writ, with a notice endorsed thereon, is left at his residence during his absence, it was held to be a good and valid service of such writ. Before Richardson, J., at Edgefield, Spring Term, 1842. This was an application to set aside the service of a writ. Motion granted, and service ordered to be set aside, upon affidavits of the absence of the defendant from the State until after return day. Defendant stated in his affidavit, "that on the 15th of February, 1842, he left his resi- dence, in Edgefield, on a visit to North Carolina, and remained in North Carolina till the 16th of March, 1842, when he again entered the State, and reached home on the 20th of March, and on the 22d was handed the copy writ by a servant. Defendant also states that he understands this action is brought against him as bail of Wiley Milton, *vvho left ti^j.^^q the State insolvent, and now resides in Dallas county, Alabama, •- and that he has not had time to procure and surrender said Milton in his own discharge. The defendant states that he has been surprised, and conceives himself in danger of being injured. Defendant also states that he did not leave home with the view of avoiding legal process, and that he has no white member of his family." Defendant afterwards made another affidavit, in which he stated, "that he meant to say in his first affidavit that he had no wife or children residing ivith him, norany other while person having authority to attend to any such matters as his affidavit alluded to.'''' Defendant admitted in the second affidavit, that there were three white persons about his house but not in his employment, 5. B. Mays, deputy sheriff, stated, by Avay of af&ilavit, that on the 3d of Jlarch, 1842, he left a copy of this writ at the house of the defendant, and that at the time there were three white persons present, viz. : Belk, O'llallowell and Garrett, and informed them that he had left the writ, and that soon after he left the house he received a note from Garrett, by the hands of O'Hallowell, desiring to know something about the writ in this case. He states that Wiley Milton lived within three or four miles of defendant for several years before his removal. R. R. Hunter swore that O'Hallowell had been living for the last three or four months at the defendant's, and that since Wiley Milton had given the bail bond, till liis removal, he had lived within a short distance of Oliver Simpson. The plaintiff appealed, and moved to reverse the order setting aside the service of the writ, on the following grounds : 574 COLUMBIA, MAT, 1842. VOL. II. [*353 1. Because service by copy, left at the notorious jilace of residence of the defendant, is good and legal service. 2. Because"theca?ual absence from tlie State, of the defendant on return day, is not a ground for setting- aside the service of the writ, inasmuch as he returned immediately thereafter, and before the first day of the term, 3. Because the service of the writ is legal. „„. ,, *Burt, for the motion, cited 3 Statutes at Large, 118 ; 1 McCord, 566 ; 3 '^^^-' ih. 84. Carroll, contra, cited 2 Statutes at Large, 611-13 ; Treamble of the Act of 1713; Act of 1720, 3 Statutes at Large, 118 ; Act of 1791; 2McGord, 2j0, Williamson vs. Cummiti.(a) Curia, per Butler, J. There seems to be no doubt that the writ was left at the defendant's residence, in the manner prescribed by the Act of 1737 \'h) that is, it was put in an obvious part of the house, by the deputy sheriff, with a notice to a white man residing there in the absence of the defendant, but not present at the time that it had been so left ; and it is e(pial]y certain that the defendant got possession of the writ before Court, and wlieu he had an opportunity to enter his appearance. The question arises on the construction of the Act of 1720, (c) whether the de- fendant falls within that description of persons who may be served with process in their absence, by having a copy left at their residence. That Act provides, " that in case the defendant absconds, or absents himself so that he cannot be found, the sheriff may serve him by leaving a true copy of such writ at the dwelling house, or the most usual and notorious place of the residence or habitation of the defendant, with a proviso that the Act shall not be construed or extended to any persons gone off from this settlement, and not being actually resident in the same when such copy shall be left," &e. The proviso shows that all persons retaining resi- dences in the State are liable to the provisions of the Act. Neither the duration or place of absence is limited or designated, nor could they well be. It has, however, been repeatedly decided, that the fact of a defend- ant being out of the limits of the State, at the time of such service, will not be sufilcient to set it aside. In the case of Frean ads. Crook- shank, 3 McCord, 85, the defendant was in New York at the time the coi)y was left ; and in another case, 1 McCord, 666, the defendant was ia Georgia. Yet in both these cases the service was held good ; and if it had ap|»eared that the defendants did not receive the copy until after return-day, tlie case before the Court could not be distinguished from them. 355*1 '^' '*' ^^^^ ^ circumstance which *did not seem to have been re- garded important, as it is not adverted to: nor do I think it caa make any dilTercuce, for,' whether absent from home in the State or out of it, the noiicc, constructive notice, would be the same. Territorial l)Osition cannot change the nature of the notice. It is true, a sheriff can- not serve a party personally by delivering process to him in another State or district ; for lie must act within his own jurisdiction, to make his acts valid ; and when witliin his own district, he leaves process at a defendant's liouse during his absence, but with an intention to return, it is made as good as i)crsoiud service by the provisions of the above Act, the residence being substituted for the person. And if it were not so, (") 7 Stat. 2(13, ? C. An. (h) 7 Stat. 190, g 5. Ati. (t) 3 Stat. 118. An. *355] BANKS VS. SEARLES. 575 plaintiffs would be subjected to great delay, and in some instances their cause of action niis^ht be entirely defeated. There can Ijc little danger in holding that in all cases of temporary absence, a defendant may be served by copy left at his house, whilst the contrary doctrine would operate unequally, and interfere with valual)le rights ; for \n cases of hardship and injustice, as is suggested by Judge Johnson in the case quoted, the court can give the party relief, by either letting him enter an appearance before judgment, or opening the judgment to allow him an opportunity to nuike a defence. The defendant in tlie case before the court, had a right to enter his ai)pearance without leave of the court, Or consulting the opposite ])arty. The diihculty in which he finds himself involved, arises out of his relation to Milton, and not out of any unfairness or irregularity in the service of the writ. He cannot well complain of either ignorance or surprise. We think the circuit decision should be set aside. Motioa granted. O'Neall, Evans and Earle, JJ., concurred. See 11 Rich. 20. An. Jacob B. Banks vh. Pleasant Searles. [*356 A note giron in part as compensation, and partly to compromise a prosecution for an assault and battery, is not void, the consideration being adequate to sustain the action. Before 0'iS"EALL, J., at Edgefield, January, Extra Term, 1842. This was an action of assumpsit on a note of hand. The defendant relied on the defence that it was given to compound a criminal prosecu- tion. It appeared that the plaintiff had been badly beaten by a man named Yancey Freeman. The defendant, with others, was charged with being concerned in the affray. Indeed, the defendant was sui)posed to be the agit^itor of the whole affair. The plaintiff procured a warrant to be issued against all supposed to be concerned, including the defendant, and was about suing out a writ in trespass, when, at the instance of the defendant, the whole matter was compromised, and the defendant gave his note for $200. The defendant was allowed to go into an investigation of the fight, and to show, if he could, that he was wholly unconnected with it. In this, however, he certainly failed, for the proof was abundant to show, that if he did not cause the assault and battery to be committed, he was at least a party to it. Tlie jury were told, if the note was given to compensate the plaintiff for the injury he received, and the defendant was concerned in the assault and battery, that notwithstanding it might have been also agreed that the prosecution should stop, yet the note might be recovered. If the defendant was wholly unconnected with the assault and battery, and the note was given to compromise the prosecu- tion alone, then it could not be recovered. The jury found for the plaintiff, and the defendant appealed on the annexed grounds : 1. That the note in this case, having been given to conipruuiise a criniiual prosecution, was void, fur want of cuusideratiou. 576 COLUMBIA, MAY, 1842. VOL. TL [*356 2. Because the note, in any point of view, was void, as part of ita considera- tion was the compromise of the criminal prosecution. „„.-, "GrIJfin, for the motion, cited 2 Hill, 625 ; 1 Bail. 588; Chev. 178, Scott "^^'J vs. Gillman; 3 Taunt. 226; Chitty on Bills, 98, in a note; Bail, on Bills, 563 ; Chitty on Contr. 51, 53(3 ; 15 Pick. "529 ; 7 Term, 197. Bni-t, contra, contended that the consideration of the note was sufficient. He said an indictment for an assault and battery could scarcely be considered a criminal prosecution. He cited 2 Hill, (525, and relied upon this case as full authority. Ci/r?a, per O'Xeall, J. In this case we concur in the instructions given by the judge below to the jury. There is in every assault and battery a public offence and a civil injury. The compensation of the latter has always been encourag-ed by the imposition of a much less pun- ishment, where it has been made than would have been otherwise done. Indeed, it is not regarded as of any great importance to the public, that common assaults and batteries should be severely punished. It is gener- ally supposed, if the parties be reconciled, and compensation to the party injured is made, that all the ends of justice have been answered. If, therefore, the defendant was liable to answer for the injury which the plaintifif sustained, he will be regarded as making his note the measure of damages ; and hence it could not be assailed as in the whole or in part resting on an illegal consideration. The jury have found that the de- fendant was answerable for the assault and battery, and according to the rule stated, his note must be sustained. The three cases previously decided in this State on this subject, I regard as perfectly reconcilable with each other, and as sustaining the rule laid down in this case. In Corley vs WiUinms, 1 Bail. 588, the indictment was against Kirksey, for an assaidt and battery. The defendants were his securities ; he absconded. To compromise the matter, and stop the prosecution, they gave their notes for twenty-five dollars each, and the magistrate gave up their recognizance. It was held that the whole consideration of the notes then was to stop the prosecution, and therefore illegal. This was the only view which could be taken of that case, for the defendants were in no shape liable for the civil injury ; they were alone connected with the criminal i)rosecution. So *'S5S1 *'" '^^''"''■''^ ^s. Hyhert, Chev. 177, the note was given by a third ^ person to a mother, for an assault and battery on her child, where there was no allegation that the battery was so enormous as to deprive her of his services, and where it was given to prevent a prosecution, it was lield that the note could not be recovered, because the mother had no right of action for such an assault and battery on her child. This was jilacing the defendant's exemption from liability on the ground that there was no consideration, not that it was illegal. In ^Mathiaon & Kiiujshnj vs. Hants, 2 Hill, G25, the defence was, that the note was given in satisfaction of an assault and battery committed by the defen- dant ; it was held that it was a good consideration. This case settled, as I conceive, the rule that where the defendant is liable for the assault and battery, a note given by him to settle it is founded on a legal considera- tion. The motion is dismissed. IlicuARDsoN, Evans, Eaklk, and Butler, JJ,, concurred. See Hudson vs. Brown ^ Smith, 11 Rich. An. '359] MULDROW VS. BACOT. 577 *nUGH MULDROW, ASSIGNEE, VS. N. A. BaCOT ET AL. [*359 1. Every prisoner in execution is entitled to the prison bounds, on his giving to the sheriff security to remain within them, and to render a schedule on oath witliin forty days ; provided, if he intends to take the benelit of the insolvent del)tors' Act, passed in 1759, he or she has not been in actual confinement forty days. 1. Whenever the prisoner intends to take the benefit of either of the said Acts, if he has the privilege of the bounds, he must, according to his bond, render a scliedule on oath. 3. Where the prisoner renders in a schedule on oath, of his whole estate, he has the right to apply for a discharge, under either of the said Acts. If he applies for a discharge under the Act of 17f^8, he need file no jjetition, but the Clerk, is required, witliin ten days after the receipt of the schedule, to give notice that the prisoner will be discharged, and tlie schedule assigned, unless satisfactory cause to the contrary be shown before one or more of the Judges of the Court from whence tlie process originates, or one of the Commissioners of special bail. 4. It is the duty of tlie Clerk to give the notice, and it must be done witliin ten days after the filing of the schedule ; but the notice must be given on the application of the prisoner. He must elect, and not the Clerk. The insolvent debtors' Act requires the application to be made by petition ; the other Acts require no petition. Before Wardlaw, J., Darlington, Spring Term, 1842, who reports the facts as follows : "Debt upon prison bounds' bond, which, besides the usual conditions, contained also the following words : " and shall assign his schedule, according to law," which were intended to make it conformable to the requisition of the Act of 1841, (o) which extends the bounds of prisons. Breach alleged, that the defendant had not made an assignment of his property at the expiration of the tirap allowed by the prison bounds' Act. The debtor was arrested under ca. sa., and soon afterwards, (viz. : 29th January, 1842,) filed in the clerk's office a schedule of his whole estate, accompanied by his oath of its truth. The schedule contained no other direct intimation of its purpose. The clerk, without remembering any particular directions given to him, said that he posted a ten day rule ; but the rule not having been produced, nor accounted for, objec- tion to proof of its contents was made and sustained. No petition was filed, no application for discharge was made, and no assignment was ever heard of. The defendants contended that the condition of the bond was not such as tlie Act of 1841 requires; and if it were, *that the debtor r^opo might still file his petition under the insolvent debtor's Act as the ^ schedule was as suitable to that Act as to the prison bounds' Act ; and that, until the expiration of the notice which he would be required to give, nnder the insolvent debtors' Act, the condition of the bond would not be broken for want of an assignment. I held that the words before recited, although not apt, might be considered as a substantial com- pliance with the Act of 1841, so far as regards the assignment required, and that the schedule showed the debtor's purpose to resort to the prison bounds' Act, and not the insolvent debtors' Act, because it was sworn to, because it was unaccompanied by a petition, and because the («) 11 Stat. 153. An. Vol. I.— 38 578 COLUMBIA, MAT, 1842. VOL. II. [*360 clerk was left to give the nsual notice. And I held, that after the forty days mentioned in the bond, the debtor could not commence his resort to the insolvent debtors' Act. Under my directions, the jury found for the plaintiffs the balance due on the ca. sa., $35 42, and the defendants have given notice of an appeal on the annexed grounds. After the trial, the debtor presented his petition, showing that he was under arrest by virtue of the ca. 6'a., before mentioned, and various other writs of ca. sa. ; that he had filed a schedule, and was desirious of the benefit of the insolvent debtors' Act, praying a ninety day rule to be published, &:c. Conceiving that the validity of the proceeding would be hereafter inquired into, and would not be effected by an ex parte motion and that the debtor should not be hindered in his resort to a remedial statute, by any mistake which I may have made, I directed the clerk to file the petition, and to give a copy of the rule for publication." GROUNDS OF APPEAL. 1st. That his Honor erred in charging the jury that a debtor who intends to take the benefit of the insolvent debtors' Act, is obliged to file his petition for that purpose with the clerk of the Court, together with his schedule, within forty days from the date of the bond which he has given for the prison bounds. 2d. Because that part of the condition of the bond containing these words, "and shall assign his said schedule according to law," svas void, inasmuch as it ^oz-i-i was not in *eonformity to the requisition of the Act of 1841, and his J Honor should have so charged the jury. 3d. Because there was no breach of the conditions of the bond. Law, for the motion, cited the Act of 1841, p. 153, extending the prison bounds ; also Powell on Contracts, 395, 396, 397. Sims, contra, on the first ground, cited A. A. 1759; (a) 2 Brev, Dig. 148-9; A, A. 1788, sec. 3, 4. 86 ;(&) 2 Brev. Dig. 158. As to the form of the bond, the Coui-t will look to a substantial rather than a literal compliance with the require- ments of the statute. Juri sunt in litera; sunt in cortice. Cited, also, A. A. 1841, 153-4 ; Treasurer vs. Bates, 2 Bail. Rep. 362 ; Anderson vs. Foster, 2 Bail. Rep. 501. Dargan, same side, said the absence of a petition at the time of filiAg the schedule, is proof that the defendant intended to take the benefit of the Act of 1788. Another fact of the defendant's intention to take the benefit of the Act of 1788, and not that of 1759, is the fact that ito oath or affirmation is required under the Act of '59. Cited 2 McC. 108, Treas. vs. Stephens; 1 Bail. 111. ^[oses, in reply, contended that there was nothing in this case that prevented the defendant from taking the benefit of the ninety day Act, at the expiration of ninety days from the filing of the petition. Cited Act 1788, Brev. Dig. 158, 79 sec. Tliere is no difference whether the defendant applies for discharge under the ten day or ninety d;iy Act ; if he intends taking the prison rules, he must swear and file liis hi hedule within forty days from the date of his bond. He is not obliged to fil<; liis petition within forty days. Cited Act 1841 ; 3 Washington Rep. 10; 2 McC. 293. Cvrin, per Evans, J. It must be borne in mind that the defendant Bacot was a prisoner in execution on civil process, and all the obser- vations, which 1 propose to make on the construction of the Acts of the Legislature applicable to this case, will be restricted to such persons. By the 3d section of the Act of 1788, P. L. 456, commonly called tlie (a) 5 Stat. 78. An. (?,) 4 gtat. 86. An. *361] MULDROW VS. BACOT. 579 prison bonnrls' Act, it is provided that all priaoner^ in execution *on any civil p?'ocess shall be entitled to the benefit of the rules, r-^oc^ bounds and limits, provided he or she shall, within forty days ■- after being; taken in execution, give satisfactory security to the sheriff that he or she will not only remain within the said rules, bounds or limits, but will also, within forty days, render to the clerk a schedule on oath or atlinnation, of his or her whole estate, or so much thereof as will pay or satisfy the sura due on the execution, by force of which, he or she shall be confined. By the 4th section, the clerk is required to give notice, within ten days after the receipt of the schedule, tiiat the prisoner will be lilxsrated and the property assigned, unless satisfactory cause to the contrary is shown. By the bth section of tlie same Act, if any person conOned on execution (unless such person has been in actual confinement above forty days) be determined to deliver up all liis or her estate and effects, and to take the benefit of the Act for the relief of insolvent debtors, passed the 7th day of April, 1795, he or she may do so, although he or she may liave given bail to the action, or not surrendered him or herself within ten days after arrest, or not presented a petition within forty days after confinement, or not been actually confined three months, provided he or she shall comply with the other requisites of the said Act. By the 1st section of the Act of 1759, P. L., 247, if any person be sued, arrested, or im|)leaded, for any debt, duty, or demand, and shall be minded to surrender all his estate towards the satisfaction of the debts wherewith he stands charged, it shall be lawful for such person, within one month after he or she shall be taken in custody, to exhibit a petition to any court of law whence the process issued against him, certifying the causes of his imprisonment, together with an account of his or her whole estate, upon which the court shall cause the petitioner to be brought before them, and also the creditor, &c., to be summoned by public notice to be given three months, &c. By the Act of 1840,(a) any prisoner in execution on final process, who shall refuse for ten days to make an assignment of the estate and effects embraced in his schedule according to the order of the Judge, &c., he shall no longer be entitled to the bounds. By the Act of 1841, every *prisoncr in execution, who shall take the benefit of the rules shall r^q^q be obliged not only to render the schedule now required, but ^ shall also, at the expiration of the notice prescribed under the insolvent debtors' and prison bounds' Act, respectively, assign and surrender, as far as in his power, the property mentioned in the said schedule, and in default of such assignment and surrender, the bond for the rules shall be forfeited, &e, I have thus embodied, in this opinion, all the various Acta of the Legis- lature which apply to this case, in order that the provisions of them may be collected together, and the meaning more easily ascertained From a review of them, I think the following conclusions may be drawn. 1. That every jvisfoncr in execution is entitled to the bounds, on his giving to the Sheriff security to remain within them, and to render a sche- dule on oath within forty days; provided, if he intends to take the bene- (a) 11 Stat. 121. An. 580 COLUMBIA, MAY, 1842. VOL. IL [*363 fit of the Act for the benefit of insolvent debtors, passed in 1759, he or she hiis not been in actual confinement forty days. 2. Whenever the prisoner intends to take the benefit of either of the said Acts, if he has the privilep^e of the hounds, he ranst, accordin.o; to his bond, render a schednle on oath. The cireunistance, therefore, that Bacot, in this case, had rendered a schedule on oath, affords no criterion whereby we can determine under what Act he intended to api)ly for his discharire, as seems to have been supposed by the circuit Judjre. 3. Where the prisoner renders in a schedule on oath of his whole estate, he has the right to apply for a discharge under either of the said Acts. If he applies for a discharge under the Act of 1788, l)e need file no petition, but the clerk is required, within ten days after the receipt of the schedule, to give notice that the prisoner will be discharged, and the schedule assigned, unless satisfactory cause to the contrary be shown before one or more of the Judges of the court from whence the process ori- ginates, or one of the Commissioners of Sjiecial bail. In this case no peti- tion was filed, and therefore, if the prisoner made any application for dis- charge, it was not under the insolvent debtors' Act, which requires the application to be made by petition. The Act requires the clerk, within i^ont I ten days after the filing *the schedule, to give notice, but then -" that must mean he shall give notice on the application of the pri- soner, for if the clerk is bound in all cases to give the notice, whether a))plied for not, then the clerk has the election, and not the prisoner, whether he shall be discharged under the one Act or the other. In this case it is contended Bacot's bond is forfeited, because he did not assign his schedule at the cxi)iration of the ten day rule posted by the clerk. If this rule had been posted in pursuance of the application of the prisoner, then I think he had made his election to apply for a discharge under the Act of 1788, and it may be was bound to assign at the expiration of the notice, in order to save his bond. But the evideiice on this point is by no means satisfactory, and was not submitted to the jury. The opinion of the circuit Judge seems, from the report, to have turned on the fact, that the schedule was sworn to, as a sufficient evidence of the election of the prisoner. In this I think he was clearly in error, and that the case maybe submitted to the jury on the other point, a new trial must be ordered. Tlie Court is of opinion, with the circuit Judge, that the bond was suflicient to bind the parties, so far as it was attempted to charge them in this case. Motion granted. Ejcilvudson, O'Xeall, Earle and Butler, JJ., concurred. See Brevard vs. Wijlie, 1 Strob. 41. An. '365] LITTLEJOHN VS. JONES. 581 *JOHN LlTTLEJOIIN r.S. L. D. JuNEP. ,['365 The owner of a private ferry may so use it (althou,2;h on a road not opened by public authority, or repaired by public labor,) as to subject himself to the liability of a common carrier, if he undertakes for hire, to convey across the river all persons indifferently, with their carriages and goods. But this is a question of fact, to be determined by a jury, and when once passed on by a jury, will not be disturbed, unless for misdirectiou in the Judge who heard the cause. Before Earle, J., at Laurens, Spring Term, 1842. This was an action of trespass on the case, arising out of the following state of facts : Tiie defendant, living on the Enoree, has mills on the river, and owns the hind on both side. He has a ferry there for his own convenience, used as an appendage to tlie mills and plantation. Such a ferry has been kept there by those who have owned the property for thirty years. A road leads to the ferry and mills from the main market road, on both sides of the river, which was not established by public authority, and has never been considered a public road, nor worked on as such. On the 1st of June, 1840, the plaintiff's wagon, with others in com- pany, returning from Charleston, laden with goods, turned off the market road, on which the ferry wsis broken up by the freshet, to cross at the defendant's. Whilst the plaintiff's wagon was in the act of being driven into the flat, the chain which confined it to the bank was broken, and the flat forced out into the stream. The team and fore wheels had passed into the flat, and the chain broke as the hind wheels struck upon the end of tne flat, and thus prevented them from entering, and left the hinder part of the wagon suspended in the water. The team were cut loose and and two of the mules were drowned, and the plaintiS''s goods were damaged in the wagon, to the amount of $G50. It was sought to make the defendant liable, on the ground of his being a common carrier. There was no proof that the plaintiff paid, or had agreed to pay, or was told he would have to pay. He relied on what was alleged to be the common use of the ferry for all who travelled that way, and the habit of the defendant to receive pay from those *who r^.onf. passed. It Wiis proved that three carriages and five wagons were L put over the river at this ferry the day before the plaintiff's wagon, and that for each of them the defendant received pay, saying to one person, " the charge was fifty cents," and to another, "all ferries were allowed double price in high water." Another witness proved that he had often crossed there, and always paid ferriage to some one, whoever put hira over, once to the defendant himself, and once to his son. On the other hand, it was proved that the ferry was a private ferry, used only for the convenience of the mills and plantation, that no ferryman was kej)t there, that the miller, a negro with a wooden leg, put over such as desired, and accepted what was offered, which he kept; that lads who came to the mill frequently did the same thing, that no charge was made, but that strangers usually offered to pay, and it was usually accepted. Several persons testified that they were in the habit of crossing there, and were never charged, and never paid. It was proved that the plaintiff's party, 682 COLUMBIA, MAT, 1842. VOL. H. [*366 before they left the main road, were told that it was a private ferry, and not a public one. Several of the party did pay the defendant after cross- ing, to whom he said he made no charge, but who insisted on paying him for his trouble. The jury were instructed that the defendant was liable for the damage sustained by the plaintifl", if he undertook, for hire, to convey the wagon across the stream, although at his private ferry. There seems to be no exception to the charge, and it need not be here fully stated. Another ground of action was, that the defendant was guilty of gross negligence. It was alleged that the chain was insutTicient, and that even slight diligence was not used in preparing the bank fur the admission of wagons. To this it was replied, that many loaded wagons and carriages had passed the day before ; and on that occasion, that the first wagon that crossed was a much larger and heavier wagon than the plaintitTs. And the charge was retorted, that the loss was owing to the want of skill and diligence on the part of the driver of the plaintiff's wagon. It was a question of fact, and submitted to the jury, with such remarks as do not appear to be found fault with, and without the intimation of any opinion on the part of the Court. Verdict for the defendant. ^oj-'-i *The plaintiff appeals for a new trial, on the grounds : ""-' 1. Because the defendant's ferry was a public one, established by more than thirty years' use. 2. Because all the witnesses on both sides, proved that strangers had always been charged at the deieudaut's ferry, consequently he was liable as a comniou carrier. 3. Because the defendant was guilty of gross negligence, and theref\)re the verdict should have been for the plaintiff. 4. Because the verdict was against law and evidence. Boho, for the motion, contended that the keeper of a ferry, unless he advertises that he does not intend to charge, is ;jnwrt facie understood to be responsible for losses. Either the keeper of a^public or private ferry is responsible if the party crosses with the belief that he has to pay, and that the owner is responsible. He contended that inasmuch as persons had crossed this ferry the day before the plaintifl' did, and the defendant received pay from them, it was reasonable that they would be charged also, and this was sufficient evidence to charge the del'emlant. If the defendant ever charged before this crossing, he l>ecame a common carrier, and was, therefore, liable to the plaintiff. Cited 1 N. & McC. 17 ; 2 til. ];). If a party takes persons or goods to carry, he is presumed to charge, unless he advertises to the contrary. Cited Law of Carriers, 10. Burt, contra, said it was a jury case, and this Court would not disturb their finding, unices lor misdirection, which was not complained of. Younij, same side. Is the defendant a common carrier? Cited Story on Bail. 322. Do the acts of defendant show that this was a public employment 1 Referred to 2 N. & McC. 21. 'J'hirty years' use of a ferry does not constitute it a public ferry. The plaintiff was bound to inquire before he entered the tlit whether this was a pnbli(i ferry and the defendant responsil)le. The plaintiff did make the iiKjuiry, and was infornu^d that it was not a public ferry. Plaintiff was advertised, and ill) ^llow(■d, by his own acts, that he did not e.xpect to be chaiged. It was a private road leading to a private ferry. It was not chartered, and only kept for private use. *3631 *C'«'''«. V")' Kaiu.e, J. It is said by the Court in Cohen vs. IIume,{a) "That it is not now to be made a question whether a (a) 1 M'C. 444. An. *368] LITTLEJOHN VS. JONES. 583 ferryman is a common carrier. Tliat lias l)cen acljudcrpd in Cook vs. Gourdine, and recognized in Milea vs. Johnson, (1 McC. 157.")(a) When we look to the definition of a common carrier, one who under- takes for hire or reward to transport the j^oods of such as choose to employ him, from place to place, it seems straiifre that it should have ever been doubted here, that the owner of a public or chartered ferry is to be regarded as a common carrier. For notwithstanding what is said by Mr. Justice Nott in Cook vs. Gourdine, I can see no real differ- ence between the transportation of goods in a boat across a stream from bank to bank, and along a stream from one point to another. Nor does there seem to be any reason why this liability should be confined to per- sons who keep chartered ferries on public roads. A man may so use his private ferry, on a road not opened by public authority, nor repaired by public labor, as to sul)ject himself to the lialjility of a common carrier; if he undertake^? for hire to convey across the river all persons indifferently, with their carriages and goods. Whether the defendant had made himself so lial>le, was a question which depended upon the habitual emi)loyment of the ferry heretofore, inasmuch as there was no proof that the plaintiff paid ferriage or had agreed to pay. An express contract for payment of a specific sura was not necessary to charge the defendant, nor indeed an express contract that he should be paid any thing. It is equally clear that he was not liable as a carrier, if the undertaking was gratuitous, and so regarded by the parties. This question was submitted to the jury, upon the proof of the previous usage there — whether he had so used the ferry as to induce the common belief that he conveyed passengers and their goods for compensation ? Whether he had held himself out to the world as ready at all times to convey across the stream such as traveled that road for the customary rates of ferriage ? or the contrary. The ferry was an appendage to the plantation and mills ; there was no ap- pointed ferryman habitually employed ; travelers from distant places usually offered pay, and it was usually accepted ; but this was not con- sidered a charge so much as a mere gratuity,* and was retained r^oga by the person who actually officiated as ferryman, instead of being ^ claimed by the defendant or paid to hira. Under such circumstances it could hardly be said that he incurred the obligation to convey across the stream all who apyilied and offered to jjay ; or that when he did under- take, he subjected himself to the liabilities of a common carrier, as a per- son performing the work for a reward. The Court perceives no sufficient reason to disturb the verdict of the jury, which has been found on the belief that the undertaking of the defendant was without reward. That there has been a ferry there, used by those wlio have heretofore owned the properly, for thirty years or more, cannot help the plaintiff, if the use has been strictly private, as the jury suppose. The defendant has not set up any right by prescription, and until he does, we need not consider what he may claim. The question of gross uegligeuce was also disposed of by the jury. Motion refused. Richardson, O'Xeall, Evans and Butler, JJ., concurred. See 5 Rich. 22. An. (a) 2 N & M'C. 19. An. 584 COLUMBIA, MAT, 1842. 70L. II. [*369 Oliver Simpson, Adm'r of Michael Ryan, deceased, vs. John Barry, Where money has been placed in the hands of a party, as agent or hailee, with instructions, for a i);irtii'uhu' purpose, and the bailee has acted in pursuance of these instructions, the administrator of the person placing the funds, cannot sustain an action of assumpsit against the bailee, for the particular fund. Before O'Neall, J., at Edgefield, Extra Term, January, 1842. This was an action of assumpsit. The facts which were brought out, without any objection as to the state of the pleadings, were as follows ; The deceased was a Roman Catholic ; the defendant is understood to be *Q-ni pi'ipst of the *same communion. The deceased some time before -I his death, placed in defendant's hands $170, to be deposited in one of the Augusta banks, for safe keeping, which was done. In his last illness, the defendant visited the deceased, and he directed him to keep $30 or $40 for charity, and the balance to send to his mother, in Ireland. The deceased died at the house of the plaintiff, in Hamburg, South Caro- lina. The defendant then was, and still is, a resident of Augusta, Georgia. He produced in evidence a power of attorney from the deceased's mother, authorizing him to collect his entire estate. The plaintiff administered in South Carolina, and arrested the defendant with a bail writ, in Ham- burg. This writ was returnable to March Term, 1840. On the 8th of Se))teraber, 1840, the defendant administered in Georgia. The presiding Judge held, that inasmuch as the fund in dispute was on deposit in one of the banks of Augusta, Georgia, the ])laintiff's adminis- tration in South Carolina gave him no right to its administration ; and this was more especially the case after the defendant had administered in Georgia. The counsel for the plaintitf sul)mitted to a nonsuit, with leave to move the Court of Appeals to set it aside, which he now does, on the accompanying grounds : 1. Because the residence of the intestate being in South Carolina, drew within the jurisdiction his chattels and credits ; and the plaintifF, as the admin- istrator, was entitled to the possession of them. 2. Hecaii.'^e the grant of adiuinistration to plaintiff, being prior in date to the grant of administration to defendant, the title to the fund in question had been fi.xed in the plaintiff, and could not be divested by the subsequent adniiuistration of the defendant. 3. Because the grant of administration to the defendant, after the coin- niencenuMit of the suit, constituted no defence, inasmuch as the case must be dutermiMcd by the state of things at the conimencement of the suit. 4. Because the defence of defendant should have been made by puis darri/'n Cfniliiiiiiuicr, and could not be made under the general issue, which was the only plea j)lca(led. *37n * C'lrrolJ, for the motion, cited and relied on Story's Treatise, 272; also from 4:51, 432, in a note; 7 .John. Chan. Rep. 4t ; 1 Williams on Execu- tors ; 2 Hail. Kep. 428 ; Rice Rep. 314. Griffin, cf.jitra, referred to 1 N. & McC. 237 ; 1 Chitt. Black. 433 ; Storv's Con. Laws, 433, 13 chap. 2d edit. ; 7 .Johns. Chan. 45 ; 1 lb. 153 ; 2 Mass. ; 3 lb. 413. Curia, per O'Nkalt-, J. If it be true tliat the money of the deceased was deposited l)y the defendant in one of the banks of Augusta, Georgia, in his own name (and it is perhaps in this point of view, on a nonsuit, *311J BRONSON VS. STROUD. 585 that tlie case should be refranlod,) it is then necessary to inquire whctlier this case can be sustained? The defendant, it must be reniemljered, was tlie agent and bailee of the deceased; he acted in precise conformity to bis instructions, and it is plain that the deceased would have no right of action, unless the defendant had refuse!, upon demand made, to account for the fund. The i)resent plaintiff" has no other or greater rights than his intestate. The defendant could not, therefore, be regarded as debtor to the deceased, until he had in some way appropriated his money to ins ownuse.(//) No demand was proved. This is enough to show that the action now under consideration cannot be sustained. It is, therefore, unnecessary to consider the effect of the two administrations in Georgia and Soutli Carolina. The motion is dismissed. Evans, Earle and Butler, JJ., concurred. *Thomas Bronson r8. CiiANEY Stroud, [*oT2 The parol promise of a party to pay the deht of a third person, or to sign a note with him as security, is a colhiteral undertaking, and void, iiiider tlxe statute of frauds. There is no distinction between a promise made before and after tlie delivery of the goods. The promise, iu order to charge the party, must be in writing. Before Earle, J., Greenville, Spring Term, 1842. This was a special action on the case, for refusing to give a note of hand for certain hogs, which the plaintiff alleged were sold to the defendant, or delivered to David Henning on the credit of the defendant, and on his undertaking that he would sign a note with Henning for the amount, when tlie same should be presented, aud which he afterwards refused to do when requested. The su!)joined report of his Honor, Judge Earle, will fully explain the facts and the points made iu the court below, and the questions decided by the court. " One Black, a witness for the plaintiff", deposed that he had hogs at Greenville for sale; that Henning applied to purchase ; that the plaintiff replied that he must be made safe; that Henning talked privately with Stroud, who then returned and said to the plaintiff" he would be Hen- ning's security ; told him to let Henning have the hogs, stipulating the number that Henning was to get, but added that he lived some thirteen or fourteen miles off, and wished to return home that evening, and could not wait until the hogs were weighed, but directed the phiintiff, when they were weighed, to make the calculation and draw the note for amount, and let Henning sign it, and then bring or send it to him, and he would sign it with him. He said he would go in with Henning in the note for the hogs. The hogs were accordingly delivered to Henning on this under- standing of Stroud A note was drawn and signed by Henning, aud presented afterward to Stroud for his signature, which he refused. (a) See Barber vs. Anderson, 1 Bail. 360. An. 586 COLUMBIA, MAT, 1842. VOL. IL [*3T2 " Henning was likewise sworn, and deposed that when he was pur- chasing the hogs, the phiintiff said that he was requiring security of all who dealt with him ; that he told the plaintitF to take the note to Stroud, expecting he would sign it ; he did not know that he would do so ; he ^oHo-i *had not spoken to him for that purpose. He had dealt a great -I deal with the plaintiff before, and did buy of him afterwards on credit. " A motion was made for a nonsuit, on the ground that the under- taking of the defendant was collateral, and within the statute of frauds. The question was not free from difficulty. I thought it depended on this, to whom the credit was given in the first instance. On the evidence of Black, I thought it clear that the plaintiff had reiused to sell to Henning, except upon Stroud's promise to sign the note with him; the fact of taking a note from Henning proved nothing to the contrary, as it was a joint and several note, intended to be signed by Stroud, according to the agreement. And as Stroud directed the plaintiff to let Hentung have the hogs, prescribed the numljer, and only did not sign the note, because he could not wait, I thought it not unreasonable to conclude that the credit was given to him alone, and that the undertaking was not within the statute. I thought that there was a difference between a promise to sign a note with Henning, which would have bound him directly for the whole amount absolutely, and a promise to pay the amount if he did not. I overruled the motion for nonsuit. " Henning was re examined for the defendant. He told Stroud that Brons(Ui required security from him. He had no doubt that Stroud would sign the note. Bronson retained the note he gave him, demanded and received payments on it, and finally brought suit for the balance, (in which he obtained judgment,) before this action was brought against Stroud. The other evidence offered seemed wholly immaterial. The same i>oint was made before the jury as on the motion for a nonsuit. I instructed the jury, if they were satisfied either that Stroud purcliased the hogs, or that they were delivered to Henning solely on Stroud's credit, and on his promise to sign a note with Henning, that I thought it was an original contract, not within the statute of frauds, and the plaintiff should recover ; if the hogs were sold and delivered to Henning, and the credit was given to him, on his prouiise to give security, even with the defend- ant's promise to sign with him, then the defendant should have verdict. jj..,H i-i The third exception *to the charge arises out of a remark in com- -' menting on the cases cited, of goods charged to one, and an attempt to make another liable. Here there could be no such evidence, from the nature of the article soldi The taking of the note from Henning was, in the first instance, according to the agreement, and proved nothing as to wIkhii the credit was given. I did not say that a promise before or after delivery made any ditterence as to the liability of the defendant, as sup- \)0M'{\ in the fourth ground. The i)romise being made before the plaintiff would deliver the hogs to Henning, was a circumstance which tended to show that the credit was given to Stroud. The facts that the plaintiif returned the note, demanded payment from Henning, waited until it fell due, then sued him, before he resorted to Stroud, were calculated to lead to the opposite c()ncliisi(ni. Tlie eflect of these circumstances was sub- mitted to the jury, with the frc'ucral instruction above recited, " Verdict for the plaintiif for the balance of the price of the hogs." *374] BRONSON VS. STROUD. 587 The defendant appealed, and renewed his motion for a nonsuit on the followinfj grounds : 1st. Because tlie case made out by plaintiff was a " special promise to answer for the default or niiscarriag'e of another person," without any " auree- ment,"- " memorandum or note thereof," being in writing and signed by the defendant. 2d. Because the proof was, on the part of the plaintiff, that the defendant had vi'rballji promised to go Hcnning's security for the purchase of forty hogs, and afterwards refused. 3d. Because the proof was, that Henning contracted for the hogs, pnrcha.ted them of plaintiff, they were dellpfred to him, he made use of the meat, ijave //Is* note for the purchase money, when it became due pn/d $l(>0 on it, was sued for the balance, and a judgment obtained. Fall Term, 1840. 4th. Because the proof did not support the only count in the declaration, ■which alleged that defendant purchased the hogs for himself. For if there had been any such proof the defendant and Henning should have been used joinili/, *and a separate action against the defendant would not lie on a, Joint r^^l^ contract by bim and Heuuiug. ^ And for a new trial. 1st. Because his Honor erred in charging the jury thafit was an original contract on the part of the defendant, and therefore not within the statute of frauds and perjuries. 2d. Because his Honor erred in charging the jury that Stroud, the defendant purchased the hogs himself, and that no credit was given to Henning by the plaintiff. 3d, Because his Honor charged the jury that the law applicable to the case would have been different if tlie plaiiitilf had only charyed Henning with the price of the hogs, and not taken his note for it. 4th. Because his Honor charged the jury that the promise made by Stroud, the defendant, being before the hogs were delivered to Henning, made a difference, and took the case out of the statute. 5th. Because his Honor charged the jury that if they believed the testimony of Black, a witness for the plaintiff, he was entitled to recover. 6th, Because the verdict was, otherwise, against law and evidence. Perry, for the motion, said, was the credit given to Henning or not ? If Stroud was an original purchaser, the declaration conld not be sustained. He cited, in support of his views of the case, 2 L. Ray. Kep. 1085 ; 2 T. R. 81 ; 1 Salk. 27 ; 1 Mc.C. 104; 2 L. Ray. 224; 6 Rand. 509; 1 H. Black. Rep. 120; Roberts on . Frauds, 218 ; 1 B. & P. 158 ; 1 McC. 395 ; 8 Johns. 29 ; 1 McM. 280. Yoiing, contra, contended that the verdict should be sustained. Whether it was an original or a collateral undei'taking, in either eveirt the verdict must stand. To whom was the credit given !" To whom were the hogs delivered ? To Hen- ning, as the agent of defendant. The undertaking of the defendant was original. Cited 4 Taunt. 611. If one apply to another to deliver goods to a third person, and j)romises to accept a bill, or promises to sign a note for the goods, this takes the case out of the statute of frauds. *The verdict in this case could be r^o-,' sustained on the count in the declaration for deceit. Towns, in reply, contended that this was a collateral and void undertaking, and came clearly within the provifiions of the statute of fi-auds. He cited Coniyu on Contracts, 51. There is a dillerence between a conditional and absolute under- taking. 1 Comyn on Contracts, 53, 54 ; 1 t-aund. Rep. 211, note I ; Chitty on Contracts, 202-4, 576. Curia, per Evans, J. From the evidence in this case, I think it is pretty clear, that but for Stroud's promise, Henning- would not have got the hogs from the plaintiff, and therefore it may be said, in some sense, that the credit was giveu to Stroud ; but that is always the case where *'. n] 588 COLUMBIA, MAY, 1842. VOL. II. [*376 the creditor refuses to trust a debtor unless he is "made safe," by tlie promise of a third person. If a mercliant sajs to A, I will not trust you with my goods, and thereupon B says, let him have the goods, and I will see you paid, in such case, although the goods would not have been delivered but for the promise, it has never been supposed thar 13 was liable, without writing, if the creditor looked in any way to A for the payment of the debt; but if no credit whatever was given to A, then B would be regarded as the one to whom credit alone is given, and would be bound by the promise. The promise of Stroud was, that "he would be Henning's security," that he would sign a note " with him" for the amount. The case then, presents this cpiestion, whether a parol promise to be another's security, or to sign a note with him, upon the faith of which property is sold and delivered, is not void under the statute of frauds. The 4th section of the statute of frauds provides " that no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default, or miscirriage of another person, unless the agreement upon which such action be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." It is said by Chitty, (Chitty on Con., 402,) if the person for whose use goods are furnished be liable at all, the defendant's engagement, though it were the chief inducement to the plaintiS' to supply the *goods, is collateral, and must be reduced to writing. It is also said in the same work, that the statute applies if the third party he at all trusted. The principle thus stated is well sustained by the authorities. Thus, in Buckmyer vs. Uarnall, 2 Ld. R., 1(I85, the plaintiff declared that the defendant, in consideration that the plaintiff, at his request, would lend to one English a horse promised, that English would re-deliver the horse. At first some of the Judges doubted if this was not an original or direct undertaking ; but after consultation, it was decided that the defendant was not liable on this parol agreement, because English might be sued in detinue for the horse. So, also, in Matson vs. Wliarhnm, 2 T. R., 80, Justice Buller says, "the general rule now taken is, if the person for whose use the goods are furnished is liable at all, any ])r(unise Ity a third person to pay that debt must be in writing, otherwise it is void under the statute of frauds." In this case a distinction was attempted to be made between jiromises before delivery and after, but the Court denied there was any such distinction. These are quoted as the leading cases, in most of the cases since decided, both in England and the American States, and are so referred to in the case of Leland vs. Creyon, 1 McC, 100; In that case, Judge Gantt, delivering the opinion (»f the Court, says, if Leonard, to whom and for whose use the poods were delivered, was originally liable to be sued, then the promise of Creyon was collateral and void. The.se authorities, with numerous others wliich might be cited, go to establish the i)rinciple that if there be any lial)ility on tiie party to whom the goods are delivered, upon which an action may be brought, the promise of a third person to pay the same debt, should be in writing. The principle is further illustrated by those cases which establish a promise to pay the del)t of another, subsisting at the time of the promise; such as the case of Corbel vs. Cochran, Riley's Law Cases, 44. All these cases go on the ground that the original *e377] BRONSON VS. STROUD. 589 debtor was wholly discharj^ed. Unless that had been the case, the ])romise could not have been binding; it would have been collateral, and within the statute of frauds. What, then, was the promise of the defend- ant ? At the utmost, it is no more than a promise to be Ilenning's security, ns stated by the witness in one part of his *examination, r:(:q.,o or as Slated in another part, to sign a note with Henning for the •- price of the hogS. So far as the obligee is concerned, the law makes no distinction between principal and security. He has a right to look to all, and on a joint and several contract, may hold each liable, severally, to him. ]^ut if the rule be, as I suppose, that both cannot be liable on a parol agreement at the same time for the same debt, uidess they are joint contrnctors, if Henning was liable at all, Stroud was not. This liability was not to be exclusive, but was according to the agreement to be super- added to Henning's, by signing his name to a note to be signed also by Henning. Taking the agreement therefore as proved, and giving it the oidy rational interpretation which it will admit of, to wit : that if Bronson would deliver the hogs to Henning, the defendant would sign with Henning a joint and several note for the payment of the money, I can come to no other conclusion but that the promise of the defendant was not a primary, or original and direct undertaking, but was what is usually in the cases decided, called a collateral undertaking, which is not perhaps in all cases the most appropriate term to convey the idea. But if, as we are at liberty to do, (Cliitty, Con., 404, and cases referred to.) we look to the conduct and acts of Bronson to aid us in the interpretation of the contract, there can be but little doubt of what was his interpretation of it. He retained the note, received part payment from Henning, treated it as his note, sued and recovered judgment on it, and never resorted to Stroud until after Henning's insolvency. As the plaintiff held Henning liable to him for the debt, then Stroud's promise was to pay Henning's debt, and should therefore have been in writing. H the credit had l)een given to Stroud, the promise would have been that he would pay the money, or give his own note for it. If such had been the fact, then he would have been liable It is supposed this is like the promise to accept a bill of exchange, which, it has been held, is binding, although it be by parol, (4th Taunton, 64,) but that case is in no respect like this. (a) The acceptor is ])resumed to accept a bill on the faith of the funds in his hands, of whicli the bill is an appropriation. His undertaking and ]ial)ility is not for the debt or default of another. He, and he alone, is primarily ''liable. No other is liable except on his default. His r:j;.3>yQ is not a promise to pay the debt of the drawer, but to ai)ply the *- drawer's funds in his hands to the payment of the drawer's debt, or according to his order. I tliink, therefore, the verdict is wrong. There is no evidence to sustain it on the i)romise, and there is nothing to support the count for deceit. The only remaining question is, shall there be a new trial, or a nonsuit. There is no dispute about the facts. The case has been considered on the evidence given by the plaintiff. The facts being ascertained, the legal effect of them is a question of law as declared in the case of Leland vs. Creyon, 1 McC, 105, and it being the opinion (a) See 2 Sp. 37S. An. 590 COLUMBIA, MAT, 1842. YOL. II. [*3T9 of this Court, that the itlaiotiff cannot recover on his own evidence, a nonsuit shonld have been ordered on tlie circuit. The motion for a nonsuit is granted. Richardson, O'Neall, and Butler, JJ., concurred. Earle, J., (dissenting.) Notliingcan be better settled, or more gene- rally understood, than the distinction between original and collateral undertakings, with reference to the statute of frauds. Where tiie debt of the third ])erson alleged to be assumed, has previously existed, it is not difficult to determine the liability of the person making the guarantee, for it must be in writing, unless the former debtor be discharged But where the debt is incurred at the same time that the promise is made, as in this instance, the liability of the promissor becomes a mixed question of law and fact. Had Bronson sold the hogs to Henning, and taken his note before the defendant's promise to sign with him, it would clearly have been a case within the statute. But the whole was a simul- taneous transaction. The defendant said, " let Henning have the hogs, and I will go in a note with him for the amount." It is not an under- taking to pay if Henning should not ; it is not a promise that they will jointly pay. It is a promise that he will do an act, which, when done, would have bound him at once for the whole debt. I cannot agree, therefore, that by force of its express terms, the undertaking was to become Henning's security merely ; or that by any necessary implication *^9nl ^'^^ *credit was given to Henning, or given to both of them jointly. ■^ For when the plaintiff refused to let Henning have the hogs until defendant undertook, he furnished an equal ground to believe that the credit was given wholly to the defendant. There was no joint under- taking at all, and when the plaintiff took Henning's note, he did not thereby manifest that he gave credit to Henning alone, or jointly with the other, because he cannot otherwise claim from the defendant the per- formance of his engagement. When he retained the note, and accepted payment of ])art from Henning, he was doing what he well might do, using Henning's direct engagement in writing to pay him the money, given, it is true, after the defendant's undertaking, but certainly not super- seding it. At tlie utmost, it was a case in which the question of liability depended clearly upon this — to whom was the credit given in the first instance ? and this was i)roperly for the decision of the jury, to whom it was submitted. The rule, as extracted from the English cases, is thus expressed in 2 Leigh's N. P., 1025. "It is a question for the jury in such cases, whether credit was given to the defendant before the debt was incurred, or to another as the principal, taking all the circumstances of the case into consideration." Such was the course pursued in Kcite vs. Temple,-\ B. & P., 157, where a lieutenant in the navy was sued for clothes furnished the crew of his vessel, by a slop seller, on this promise, " I will see you paid at the pay table; are you satisfied ?" There was a verdict for the i)laintiff, and although the court granted a new trial (a nonsuit was not thought of,) it was upon the circumstances of the case wliich it was thought ought to be submitted to another jury. So in Darnell vs. Trait, 2 Carr. & Pay., 82 ; an action by a schoolmaster against an uncle for the schooling of his nephew, carried to the plaintiff's *380] STATE 1-.9. THURSTON". 591 school by tlie boy's mother, without any instructions as to who was liable. The defendant, when tiie bill was sent to him, said, " quite right, I am answeral)le." The Chief Justice left the question to the jury, as to whom the credit was given. In Storr et ah. vs. Scolt, 6 C. & P., 241, in the same kind of case, where the defendant, as steward of certain races, selected at the shop of the plaintiff a gold cup, saying, " you must send the cup as usual, I suppose, to the *clerk of the course," which r^ooi had been frequently done by the plaintiff before, Lord Lyndhurst ^ said to the jury, " the question is, upon whose credit the cup was fur- nished ?" and left it to them to say, whether the credit was to be given to the defendant, or to the clerk of the course. In Leiand vs. Creyon, 1 McC, 100, where the Court ordered a nonsuit, the goods were not only charged to a third person on the plaintiff's books, but there was no promise by the defendant at all, and the attempt was made to charge him, by a memorandum on the books, made by the plaintiff himself seve- ral days after the delivery of the goods. It cannot be doubted that the defendant would have been liable upon his undertaking to accept a bill, 15 E. C. L. R. 45 ; or to give his own note ; or I should say, also, upon his promise to endorse Henning's note, to be afterwards procured, if the article was delivered upon the credit of this promise. I cannot perceive tliat it makes any difference that it was a promise to sign a note with the other, if the credit was given solely to hira on the faith of that promise. I admit fully, that the statute was intended to include every case of mere surety, whether the agreement to be answerable was collateral to a previous liability of the principal, or concurrent, and made at the same time with some promise or agreement creating a liability of such princi- pal delator. But I think there is quite enough here to sustain the ver- dict establishing that there was no credit actually extended to Henuing, and that the hogs were delivered on the credit of the defendant. *The State vs. James Rufus Thurston. [*382 1. The defendant was a common carrier, owned a boat on the Santee, and under- took to transport cotton, from Orangeburg district to Charleston, belonging to various persons. Before reaching Charleston, and while passing down the river, he communicated hjs intention (to one of the hands on board) of convert- ing the cotton to his own use. Aftei"wards, at ^^Euchaw Creet," in Charleston district, he consummated liis previous intention, by burning a portion of the cotton and disfiguring the marks upon the other bales by patching, and had the cotton shipped on board a steamer to Charleston, and sold and appropriated the sales to his own use. Upon an indictment for grand larceny in Orangeburg district, the jury were charged by the court: First. "That to convict the prisoner of larceny, there must be a taking and carry- ing away of the goods laid in the indictment, with a felonious intent, in the district of Oraii(jebiir(j." Second. "That Avhen the prisoner received the goods, if he intended to deliver them in good faith to the consignee in Cliarleston, then his subsequent fraudulent approi)riation of thena to his own use could not make him guilty of larceny." Third. "If when the goods were delivered to him he received them with the intention of stealing them, then it was larceny from the beginning, as laid in Orangeburg district." 592 COLUMBIA, MAY, 1.842. VOL. IL [*382 2. The prisoner was found guilty under this charge of petit larceny ; and the Appeal Court held, upon appeal, among other things : 1st. That the jury, under the circumstances, were at liberty to infer that the defendant, at the time he received the cotton in Orangeburg, intended to steal it and convert it to his own use ; and the verdict of guilty was very properly given. 2nd. That the cotton so stolen by the defendant belonged to three different indi- viduals, and he was very properly indicted in three cases, and a conviction in one case was no bar to a conviction in the two others. The stealing of the goods of different persons is always a distinct larceny. Before O'Neall, J., at Orangeburg, Spring Term, 1842. The prisoner was indicted for Grand Larceny in three several cases. In the first case tried, he was charged with stealing twenty-six bales of cotton, the property of Wm. Theiis. The prisoner was a common carrier, owning a boat on the -Santee. He undertook to deliver cottoa to Wm. C. Dukes, Charleston, at SI 50 per bale. He received the cotton ill Orangeburg district, and proceeded below the JSautee Canal to Euchaw Creek, into which he put and caine to anchor. This was in Charleston district. Going down the river, he disclosed his plan to appropriate the cotton to his own use to one of his hands, neighbor (Jarner ; and on his refusal to take part witli him, he said he would kill .any one that might betray him. He took the bagging off" three bales, and burned the cotton. With the bagging thus obtained, after cutting ^„Q.,-| out the owner's brands, he patched *the bales and had them re- -' marked W. P. by Dryden, one of his hands. He then directed Garner to deliver the cotton to Hume, at his lauding on the river, and to say that a steamer would be sent for it by Snowden — which was accord- ingly done, and the cotton sold and the proceeds paid over to Dryden, who was sent by the defendant to receive it. After Garner was brought to the jail of Orangeburg, as a witness, the prisoner told him he was owing him a good deal of money, and if he would swear to suit him, or do as he was desired, he and his brother would make him up $300 ; if he (lid not, he (Tlmrston) would put him in Williamsburg jail. The jury were instructed, that to be a larceny, of which the prisoner could 1)0 convicted, there must be a taking and carrying away of the goods liiid in the indictment, with a felonious intent, in the district of Oran(/t'bi(r(/. The possession was delivered to the prisoner as a carrier, and if when he received the cotton, he intended to carry and deliver it to the consignee, then his subsequent fraudulent appropriation of the cotton to his own use could not n)iike him guilty. But if, when it was delivered to him, he reccired it xoUh the intention of stealing it, then it was a larceny from the beginning, as laid in Orangeburg district. The jury found the j)risoner guilty of petit larceny. In the other cases, the larceny charged in each arose out of the same transaction, but was of different parcels of cotton belonging to dilforeut l)ersons. The prisoner relied on the previous conviction in bar of these indictments, and contended that the whole affair, though consisting of the cotton of various owners, was only one larcery. The court thought otherwise. Tlie evidence; alieady reported was given in them, and the prisoner convicted in each of the other two cases of petit larceny. ^383] STATE VS. THURSTON". 593 The prisoner moved for a new trial in all the cases : 1st. Because no larceny was proved ; the evidence making out only a breach of trust. 2d. Hi'canse the larceny, if any, was committed not in Orangeburg but ia Charlest(m district. And in the second and tliird cases especially, on the following ground: *od. Because his Honor ciiarged the jury that the prisoner was liable r*.iQj to be convicted under tlie two latter indictments, after conviction under L '^ the first, notwithstanding it was proved that the goods stolen, although the several property of tliree different individuals, were at one and the same time, and by one and tlie same act, appropriated by the prisoner. 4tli. Because, in all the cases, there is a difference between the allegata and probata, not described as one transaction. And the pri-oner further gives notice, that a motion will be made to set aside the convictions in the two latter cases, as irregular and void. Northrop, for the motion, said — The first and second grounds of appeal are for error in thi' charge of his Honor the presi for the alli'gation of stealing, implies that they did not belong to the accused, and the irime is made out if the things taken are described as chattels of value, or proj)erty. So Hale immediately after says, "An indictment (J'kW -4 verbtrarit li, and 20 jacks prcfii 20s. J'elonice cepit, &c., held good without shewing whose they are." JO Henry Vlth. Greater particularity is now required in indictments, hut it is apjiarent tliat tlie private injury is not the gist of the crime, but the offence to tlie sovereign or State, and wiiieh is prosecuted by public authority. (h) If a i)erHon at oik- and the same time, at on<> "and the same place, and by one and the same act, stenl the personal goods of several different persons, he has committed but one larceny, and is liable to but one indictment, trial, conviction and sentence tlierefor. This position is so clear and well established, tliat it is of rare occurrence to find ca-ses in wliich the contrary has been contended. Lar- *391] STATE VS. THURSTON. 597 ceny is simply the "felonious taking and carrying away the personal goods alieiii,'" wliftlicr of one or ,of many, known or unknown. Hnppo-^e on an indict- ment for stealing g<>oart or all of these identical goods — would not his jtlea of (iiiterfois acrptit or conrirt, on proof of the identity of the goods themselves, be a sufficient plea in bar ? If the position (A) be not sound, then, in this suppo.sed ca.se, the defendant Would be liahl<( to conviction for stealing, say " 20 Jarks pretii 2('s." tlie property of a jKjrson unknown, and after being punished then^for, he might be convicted of stealing ^ jacks pretii 5s., the property of A., and after l)eing jiunished therefor, he might be convicted .of stealing 10 Jacks pretii 10s., the projjerty of B., and after being punished therefor, he might be convicted of stealing the remaining 5 jacks pretii bs., the proixerty of C. ; for according to the rule which was laid down at Orangeburg, the indictments hemg all difierent in their allegations of owner- ship, the pleas of auterjois convict would have to be overruled. A'ow is it not evi- dent, that in each of the three last cases the defendant would have been tried for the same crinii' for which he was convicted iu the first ? Tlie whole ditfirulty is occasioned because tlie most usual mode of describing goods, is by alleging the name or names of the owner or owners ; and hence writers, in illustrating tlie nature of the pleas of auterfois acquit and convict, refer to the name or names of the owner or owners, as the dtsiynution of the ffoo'ls. It matters not, therefore, whether there be one or many owners, known or unknown, so far as the essence of the crime is considered ; that consists in the act and the aceompan3''ing intent. Suppose gamblers are jdayiug round a table, and liave placed their stakes, undistinguishable, as coins of the same denomination usually are. in a plate or cup, and the sum total of the stakes were taken uj) by a thief and poured into his pocket — is it not clear that he would have committed but one criminal act and one felony? If the game had been broken *up, the players r*oQo would have had a right each to his own stake — therefore, the thief took *- the property of different persons, who we will suppose are gone and unknown. Suppose he had been indicted for taking the coins of a i)erson unknown, and on evidence it appeared that one of the gamblers, unknown by name, Jiad placed five silver dollars in the plate— and that the thief had taken all the money — he would be convicted ; if again indicted for taking the coins of another person un- known, would he not show that he had been convicted for tJie act of stealing all the coins, — for those he stole were undistinguishable, — and that he could not be tried more than once for this olfence .' It is as liard to prove this position, as it is to demonstrate an axiom in mathematics. Probably authority is better in such a case than reasoning. Let it be reniemljered that grand and petit larceny are of the same nature, dittering only in the r«/«e of the thing stolen. Hale, Pleas of the Crown, vol. 1st, p. r>31, says, "If at the same time he steals goods of A. of the value of sixpence, goods of B. of the value of sixpence, and goods of C. of the value of sixpence, being perchance in one bundle or upon a table, or in one shop, this is grand larceny, because it was one entire felonij done at the same time though die persons Iiad sereral properties.''^ East's Pleas of the Crown, p. 934, in the case of Rex vs. TJiomas, "on a count for uttering several forged receipts, the court will not put the prosecutor to his election on which receipt to proceed," "as the receiiits were charged to have been uttered at one and the name time, and might constitute only one ofience of uttering many forged receipts. And accordingly it was proved, that the several receipts there stated were forged, and were uttered at one and the same time in one bundle by the prisoner." Leachs Crown Laws, vol. 1st, p. 538. Doran's case, per Chief Baron Eyre, "thi' grand jury cannot with propriety find two indictments for the same offence at the same time." 598 COLUMBIA, MAT, 1842. VOL. IL [*393 Burrows' Reports. Bex vs. Benfield Sf Saunders, 980. This case arose under an information filed for a libel upon several personx. The court " looked upon this to be ^ one oftence ; the gist of the charge is singinq of these songs in the * manner J and with the intent charged in the information." In Thnrston"s case, the gist of the charge is the taking and carrying away of the goods with the intent charged in the indictment. I presume it will be conceded, that if the felonious taking and carrying away the pei-sonal goods of several persons, is a distinct offence of larceny, it cannot at the same time be contended that it is a distinct larceny, and also sei-eral larcenies. It would be like the evil spirit whose name was Legion, because he was many. It is a rxile that "every count should charge the defendant as if he had committed a distinct offence;" yet the first form of indictment for larceny in Ghitty's Criminal Law, vol. 3, p. 950, charges as one larceny the stealing of several different articles of pro{.erty belonging to different persons. The position now contended for is not only reasonable as a logical deduction from the terms of the law, and established by the highest authority, but its converse would be iniquitous, and contrary to the spirit of our laws. When penalties and punishments are prescriixnl, they are considered as rods in the hands of the Roman Lictors, to be used by command of the Magisti-ate, and not at the caprice or enmity of a revengeful prosecutor. Can it be endured, that in such a case as this, it shall be optional with the prosecutor and Solicitor, whether the prisoner shall be subject to one or several trials and accumulated punishments? Common sense, law and huuianity, are all opposed. It seems unnecessary to make any ai>plication of the points discussed to the facts of the present case, as their relevancy is apparent. Edwards, Solicitor, conti-a, did not argue the case in the Appeal Court. Curia, per O'Xeall, J. The first and second grounds, ap])]yinfj: to all th^ cases, will be considered first, and together. For if the convic- tions are good, it is upon the ground that the prisoner, when he received the cotton, in Orangeburg, intended to steal it, and afterwards consum- *qnR-i mated that act. There is no doubt, as was said to the jury, *if -' the prisoner received the cotton, with the intention of carrying and delivering it, according to his contract, and afterwards changed his mind and fraudulently appro|)riated it to his own use, he would not have been guilty of a hirceny in Orangeburg district. It has been conceded here, that the act done at Euchaw creek, in Charleston district, was a plain laicetiy; and the otdy question is, whether the jury were at liberty to ascribe the Iteginning of the felonious intent to the time at which the prisoner received the cotton. It is plain from Garner's testin>ony, tliat on the voyage, and l)efore he reached iMichaw creek, the prisoner commu- nicated to him the scheme of appropriating the cotton to his own use. This, from any thing which ajipears, might have been in Orangeburg district, and is enough to sustain the verdicts. But I have no disposition to evade the question. For I iiold that tiie jury were at liberty to infer, from the feh>nious intent 'manifested at Eiu-haw creek, where the prisoner first Ijroke Ijulk, burned three bales of his load, and altered the marks of the others, and .sent on the cotton to a different consignee, under a false name, that he received the cotton intending to steal it; and when they came to that conclusion in fact, they did right in finding him guilty in Orangeburg (li>trict. In the ^late vs. Pleasant Gorman, (2 N. & McG. 1)0,) .Judge .loluison stated the law to be that "whatever might have bcL-n the old rule on the snl)ject, there can be no question that, at this day, a larceny may be commitled of goods obtained by delivery, from the owner, if done animo furandi.''^ In another part of the case, he states the ellect of the verdict to be conclusive of the question of the prisoner's *395] STATE VS. TnURSTON". 599 intent in receiving: the floods. For he says, "tli-at the prisoner {?ot pos- session of the horse, with tlie stealing of which he is charged, with a felo- nious intention, is determined by the verdict of guilty." Putting these two principles together, it is plain, that where the jury have evidence which may or may not bring them to that conclusion, they have the right to say, from all the facts, whether the felonious intent existed eo inHtanti, at the reception of the goods, or arose afterwards. Tiiis view has the sanction of a very eminent criminal lawyer. Archbold's Criin. Plead. 187, lays down the law as follows: " If A. obtain goods, animo furandi, or receioe them, *ha7-boring, at the time, an intention wronrifuUy to convert r^jconp them to Jris oivn ufte, it is larceny. Thus where the defendant L was employed to drive sheep to a fair, but instead of driving them to the fair, he drove them in a contrary direction, and sold ten of them on the morning he received them, and the jury were of opinion that at the time he received tliem, he intended to convert them to his own use : this was field to be larceny.''^ This comes uj) so fully to the cases before us, that I will not pursue this part further. The remaining ground only applies to the two cases last tried and will now be considered. It must be tested under the plea of auterfois coyivict. The same rules apply to it, as to the plea of auterfois acquit. Archbold's Grim. Plead. 88, speaking of the plea of auterfois acquil, says, "the true test by which the question, whether such a plea is a sufficient bar in any case may I^e tried is, whether the evidence necessary to support the second indictmeiit, would have been sufficient to procure a legal conviction upon the first." Inquire under this rule whether the evidence under the second and third cases, could have produced a conviction under the first? It is plain it could not. For in it, the stolen cotton is charged to be the property of "VYilliam Theus. In the second and tliird, the cotton is laid as the respective property of Mack & Fogle. The property must be proved, as hiid, or there can be no eonviction. Hence the proof, in this respect, must be different in each case ; and therefore, the plea could not be sus- tained. In The State vs. Ryan & Jones, (4 McC. 16,) the property stolen was laid to be the "goods and chattels of A. B. &c." It appeared that a part belonged to A., a part to B., and a part to C. ; it was held that the proof did not sustain the allegation. That case not only sus- tains the position which I have already laid down, but that the stealing of the goods of different persons is always a distinct larceny, (o) or may at lead be so treated by the S'dicitor, if in his discretion he thinks projjer so to do. The only authority which has been cited for the contrary posi- tion, is that from 1st Hale's P. C. 531. That, when examined, will be found to amount to no more than this, that several petit larcenies on different days of the goods of A. ; or of the goods of A. B. ct C , if com- mitted by one and the same act, may, in order to make *oul r+ooT the higher ojTence of grand larceny, be joined in one indictment. '- The first position laid down by that great Jndge and good man, Sir Matthew Hale, is, "If A. steals the goods of B., to the value of Qd., and at another time to the value of 8d., so that all put together exceeds the value of \2d.; yet this is held grand larceny, if he be indicted of them altogether." The result, by the authority, is made to depend upon the (rt) See State vs. JloUand, 5 Rich. 517. An. 600 COLUMBIA, MAY, 1842. VOL. 11. [*397 oflfences being united in one indictment. It is therefore not opposed to the view, tliat for tlie goods of B., stolen at different times, different indictments wonid lie. Again, he says, ''it fieems to me, that if he (the prisoner) steals goods of A. of the value of Gel, goods of B. of the value of tirf., and goods of C. of the value of Qd , being perchance in one bundle, or upon a table, or in one shop, this is grand larceny, because it is one entire felony, at the same time, though the persons had several proper- ties, and therefore if, in one indictment, they make grand larceny." This qualification again shows, that by treating the different larcenies as one act, they become one offence. But I apprehend that it never entered into the head of the learned Judge, that each of these could not be regarded as separate jjetit larcenies. . For that would be in favor of the prisoner, and hence, if separated by the solicitor, the Court would have regarded them according to their intrinsic character So, if they had been grand larcenies, an indictment would have laid for each ; and an acquittal in one, would not have barred the others. But the moment a conviction took place in one, it plight have suspended the others, and if clergy had been allowed and the judgment of branding had been executed, then that operating as a statute pardon, would have discharged the prisoner from the other indictments. (a) 2 Hale's P. C. 254. The motions in all the cases are dismissed. Richardson, Evans and Butler, JJ., concurred. Earle, J., dissenting. I am not satisfied with this conviction. It is the case of a common carrier, to whom goods have been delivered to be carried to a certain place, and who thereby acquired a special property and a legal possession. To make the taking in such case before the goods ^„Qg-| are brought to the place of delivery larceny, it *shonld be proved -^ that the delivery was fraudulently j^i'ociired, with a felonious intent to convert the property so acquired. Such I have always under- stood the law to be ; and such is stated by Mr. East, in his Pleas of the Crown, 2 E. P. C. 393, to be the result of all the eases. " It is to be collected from them," says he, "that if a person obtain the goods of another liy lawful delivery, without fraud, although he afterwards convert them to his own use, he cannot be guilty of felony. As if a tailor have cloth delivered to him, to make clothes with ; or a carrier receive goods to carry to a certain place, earaiices, or other inducements held out to them to repose this confidence in him. There is nothing therefore to distinguish this case («) See Act of 185], 12 Stat. 81. *398] STATE VS. TURNER. 601 from that of every otlier carrier who takes goods entrusted to him, before tlicy come to tiie phice of delivery ; and then the hirceuy is complete only upon the actual taking, which dissolves the privity and constitutes the larceny. Now whether the taking by the prisoner was of such a sort at the time and place of its being committed, I will not inquire. JJut 1 con- clude from the rule to which I have referred, that it could only be a larceny in Charleston district, where the cotton was converted. The case of four prisoners, Barnet and others, at Worcester, reported in 2 Russ. on Cr. 191, was of a similar kind, and it was held to be larceny at the place of taking. The case cited from Kelynge, 81, of the carrier who carried the j)acks of goods to the appointed place, and opened them and took tlie goods, is there put, it is true, upon the ground of an intent *originally not to take the goods upon the agreement, but only to r-^jcooQ steal them. The ground of decision, however, is put by all the ^ other writers upon a ditferent principle, that breaking the pjackage dis- solved the privity and made him a trespasser. 2 E. P. C. 696, 697. I see nothing in the proof here from which the jury could infer that the cotton was ol)tained with an intent to convert. If the rule adopted by the Court be correct, and the larceny was committed when the cotton was received, it follows that each parcel constituted a difierent oft'ence. See Post, 502 ; 5 Rich. 244. An. The State vs. Henry C. Turner. Wherever one of the counts in an indictment for trading with a slave is good, the court awards judgment upon it, notwithstanding the other counts may be bad. Before Richardson, J., at Edgefield, March Term, 1842. This was an indictment for trading with Isom, the slave of Jonathan "Wever, deceased, but under the care of J. R. Wever, (son,) and Oliver Hearn, overseer, by buying two bushels of wheat, and selling half a pound of coffee and two pounds of sugar. Tlie trading was proved, both by "Wever and Hearn, who had purposely sent Isom with tlie wheat in a bag. They saw the bag carried into the lumber room of the defendant, after it had been laid for a tew minutes by a fence, and heard it poured out — listened to the conversation between him and Isom in defendant's store, and saw th^' delivery of the coffee and sugar by him to Isom. On the other hand: Mays and Hall, (just after Wever and Hearn had left the premises, and having been discovered by Turner, ) were sent for by defendant. These *witnesses found a bag of wheat described as similar to Isom's lying r*4AA near the fence, but very unlike the wheat in defendant's lumber room, and '■ related some circumstances to indicate that Hearn and Weaver may have been mistaken, and never heard the wheat poured into a barrel, as they supposed : as Mays and Hall found no mixed wheats, and the empty barrels of tlie lumber room contained cobwebs, &c. The evidence in detail is annexed. Mrs. Tomkins and Mrs. Harris also supposed that Mr. Turner could have had no sugar or coffee for sale just at that time, as they could not get those articles a day or two before, and knew that Turner replenished with sugar and coffee shortly after. The case was submitted to the jury, who found the defendant guilty. 602 COLUMBIA, MAT, 1842. VOL. II. [*400 The defendant appeals, upon grounds of fact, which must be resolved bv the evidence ; and moves also in arrest of judgment. ' On this head, the jury were instructed, that the first count was bad ; because it did not negative the fact of Isom's having a permit from any one having the care of him. But that the second and third counts were good. And, therefore, if the trading had been verified by Wever and Hearn, to their conviction, and if Isom had been under Hearn's care, as alleged in the second count, or under Wever and Hearn, as in the third count, they might find the defendant guilty accordingly. *401] * Grounds iahen in arrest of judgment: 1. That there is no allegation in the first count in the iuJictmeut, that the TuE State of South Cakolixa, ) j.^ ^^•^. Edgefield District. ) At a Court of Sessions, begun to be holden in and for the District of Edgefield, in the State of South CaroHna, at Edgefield Court House, in the District and State aforesaid, on the third Monday in October, in the year of our Lord one thousand eight hundred and fortv-one, the jurors of and for the District of Etlgcfield aforesaid, in the State of South Carolina aforesaid, that is say : Upon their oaths present, that Henry C. Turner, late of Edgefield District, in the said State, on the fourth day of September, in the year of our Lord one thousand eight hundred and forty-one, with force aud arms, at Edgefield Court House, in the District of Edgefield aforesaid, did buy and purchase, of and from a certain slave, of the estate of Jonathan Wever, deceased, named Isom, who was then and there under the care and management of Oliver Hearn, two bushels of wheat of the value of two dollars, the said Isom then and there not having a per- mit so to sell, from or under the hand of the said Oliver Hearn, or from or under the hand of any person not having the care and management of said slave ; against the form of the Act of the General Assembly of the said State, in such case made and provided, and against the peace and dignity of the same State aforesaid. And the jurors aforesaid, on their oaths aforesaid, do further present, that the said Henry C. Turner, on the fourth day of Septeml)er, in the same year aforesaid, with force and arms, at Edgefield Court House, in the District and State aforesaid, did .deal, trade and traffic, with a certain negro man slave Isom, of the proper goods and chattels of Jonathan Wever, in his lifetime, who was then deceased, and which said slave was then and there under the care and management of John II. Wever, by selling to the said slave Isom, one half a pound of cojfi e and two pounck of brown sugar, the said slave then and there not having a permit, so to deal, trade and traffic, from or under the hand of the said John R. Wever, or from or under the hand of any other person having the care or management of the said slave ; against the form of the Act of the General Assembly of the said State, in such case made and provided, and against the peace and dignity of the same State aforesaid. And the jurors aforesaid, upon their oaths aforesaid, do further jiresent, that the said Henry C. Turner, on the fourth day of September, in tlie same year last aforesaid, with force and arms, at Edgefield Court House, in the District and State aforesaid, did deal, trade and traffic, with a negro man Klave named Isom, who belonged to Jonathan Wever, in his lifetime, and was tlien deceased, and the said slave was then and there under the care and manage- ment of (Oliver Hearn and John R. Wever, by purchasing and receiving of the Haid slave tu-n hushels nf wheat of the value nftivo dollars, and by selling and delivering to the said slave, one half pound of cotl'ec and two pounds of brown sugar; the said slave tln-n and tlierc not liaving a permit so to deal, trade and traffic, from and under the han.is of the said Oliver Hearn and John II. Wever, or either of tbeiii, or from and unck-r the hand of any person Iiaving the care or management of t}ie said slave ; against the form of the Act of the General Assembly of the said Slate, in sudi I'ase made and provided, and against the peace and dignity of the same State aforesaid. CALDWELL, Solicitor. *401] STATE VS. TURNER. 603 slave did not have a permit to deal froin any person having the care or nuiiiao-enient of him. 2. Tliat the third count is void for multifariousness, in alleging two or more distinct acts of trading. 3. 'IMiat none of the counts set forth an act of trading, as no price or con- sideration is alleged. 4. That none of the counts contain a sufficient description of the ownership or management of the slave. Grounds for a neiv trial: 1. That there was not sufficient proof of trading. 2. That the presumptive proof, under the Act of 1834, was insufficient, as the defendant was not indicted as a shopkeeper. • 3. That the description of the slave was falsified by the proof. WarJlaw, for the motion. Caldwell, Solicitor, contra. Curia, per Richardson, J. Both Hearn and Wever proved the trading of defendant with Isom, directly, by selling him the coffee and sugar, as alleged in the second count of the indictment. And that Isom was under their management. They also proved, circiimstantially, that Turner received the wheat of Isom and paid him, in part, with *coffec and sugar; which verified the whole trading charged in r^.n:) the third count. The defendant was not indicted as a shop- L keeper, although it appeared plainly that he kept a store. We cannot therefore, grant a new trial, upon the evidence, because it fully justified the verdict. Next, as to the motion in arrest of judgment. The first count may be admitted to be defective and bad, for the reason alleged in the first ground of the motion in arrest. The defendant had the benefit of that admission, by the charge of the Judge ; and was, of course, convicted under the second or third count — or under both. If one of them be good it is enough. But both are good. The second alleges Isom to have been under the care and management of John R. Wever; and the alleged trading was, in selling Isom coffee and sugar, without a permit. The third count varies from the second, in this — that Isom was under the care and management of both Hearn and J. R. Wever ; and that the defendant both sold Isom the coffee and sugar and purchased the wheat at the same time. These acts were not separate tradings, but sejiarate parts of the same trading. This count embodied the whole evidence as given by Wever and Hearn, and cannot be defective, by stating the whole trading, as consisting in the purchase of one article, and the sale of another. This third count included the second count ; and did more, by alleging that Isom was under the care of Hearn, as well as Wever ; and that the defendant purchased the wheat as well as sold the coffee and *sugar, either of which was a sufficient act of r^^no trading. But the two do not lessen the trading There is, then, '- no delect in either of these two counts ; and I need scarcely observe, that wherever one of the counts is good, the Court awards judgment upon it, (1 Salk. 384 ; 1 Johns. 7, 322 ; 2 Burr. 985; Doug. 723 ;){n) notwith- standing the other counts were bad. It was formerly otherwise, in civil (a) Sup. 122 ; 3 Strob. 341 An. 604 COLUMBIA, MAY, 1842. VOL. II. [*403 actions, in many cases, where the court could not tell but thflt the jury had awarded the damages upon the bad count. But never in criminal pi-osecutions, where the Court awards the punishment upon the good count alone, (a) This motion is, therefore, also dismissed. O'Xeall, Evans, Earle and Butler, JJ., concurred. J. ;M. Felder vs The LonsviLLE, Cincinnati and Charleston Railroad Companiy. Where the slave of the plaintiff, endowed with ordinary intelligence and acqnainted with the nature and manner of using the railroad, voluntarily laid himself down on the road and went to sleep, amidst grass so high as to obstruct the view at some distance, (over twenty feet ahead,) and in this situation, without any fault of the engineer, the engine going at its ordinary speed, passed over the body and killed the slave : It was held, that the plaintiff could not recover against the company for the price of the slave killed, under the circumstances, and ordered a nonsuit. Before O'Xeall, J., at Orangeburg, Spring Terra, 1842. This was an action on the case, for negligence in so keeping the rail- road, that thereby the locomotive and its attendant train, belonging to the defendants, ran over and killed a negro boy belonging to the plaintiff. The following are the facts of the case, as detailed on the trial below, and the points ruled by the court. *AOXl *^^ appeared in proof, that that portion of the railroad run- -' ning through the plaintiff's ])lantation, (called the Coalter place.) was overgrown with rank and luxuriant grass, so that an object like the boy lying upon the railroad could not be seen at the distance of twenty feet, as some of the witnesses said ; others, however, said, standing at the engineer's post on the engine, they could have seen such an object at the distance of two hundred feet ; but within that distance the engine could not be stopped. As the engine, on the 13th day of August, 1840, w^as ascending the road, at her usual time, and at her usual gait of twenty miles an hour, the engine ran over the boy belonging to the plaintiflF, who was lying on the rail, crushing and nearly severing his body transversely, from under- neath the right shoulder to the exterior point of the left. The body lay with the feet outside the track, the head and shoulders on the rail. The engineer did not see the boy, owing to the tall grass, until he was so near to him that he could not stop the engine The proof on the part of the defendants, was mainly directed to show that the boy was dead ijefore the engine i)assed over his l>ody. The sup- position on the part of the defendants was that he had been killed by the ]ilaiiitifl"'s driver, and laid u})on the road, so as to permit the engine to p:iss over his body. This point was fully explained, and carefully submitted, as a question of fact, to the jury. In finding for tlie plaintiff, they of course found that the boy was alive when the engine passed over his body ; and as this part of the case is unquestioned by the appeal it is unnecessary to state the evidence. (a) See 1 McM. 189 ; 7 Rich. 490 ; 1 Strob. 455 ; Cheves, 105 ; 3 Hill, 1. An. *404] FELDER VS. RAILROAD COMPANY. 605 The jury were instructed that the company was only liable, in this form of action, for the neglect of themselves or their agents. There was no blame to be imputed to the enirinecr. The only neglect on tiie part of the company which could make them liable was the suffering the road to be so overgrown with grass as to hide an object from the view of the engineer within such distance that he could not prevent the engine from passing over it. They were told that negro slaves were moral agents, capable of placing themselves in. or e.xtricating themselves from danger. If the boy (wiio was a plough-boy, and *iherefore capable of understanding the r:TC^Ac danger,) voluntarily or rashly placed himself in the way of tlie ^ engine, as she was approaching, then the plaintitf could not recover. But if the boy, without any knowledge of the approach of the engine, and in fact before she was in the neighborhood, lay down upon the railroad and was asleep, and therefore unconscious of the approach of the engine, and in that state she passed over his body, then the plaintiff might have a verdict. The jury found for the plaintiff the value of the boy. The defendants appeal on the annexed grounds : 1. Because his Honor charged that if the negro was asleep on the road, the company was liable. 2. Because the finding of the jury was contrary to law. Glover, for the motion cited, ou the first ground, 3 Starkie on Ev. 986 ; 11 E. 60 ; 2 Taunt. 314 ; 6 76. 29 ; 2 J. 283. Belleiujcr, contra, cited Legis. Rep. of '37, p. 25, for the definition of negligence. 2 L. Ray. 1089 ; 2 Esp. Rep. 544. Use must be in a lawful and proper way. Curia, per Butler, J. The only question involved in this case upon which it is the design of the court to deliver its judgment, should rest on a distinct statement of unquestioned facts, unconnected witli irrelevant cir- cumstances. The plaintiff's slave, endued with ordinary intelligence, and acquainted with the nature and manner of using the railroad, volun- tarily laid himself down on it and went to sleep, amidst grass so high as to obstruct the view at some distance over twenty feet ahead. In this situation, without any fault of the engineer, the engine going at its ordi- nary speed, passed over and killed the slave. There are two causes which may have contributed to this result. The first is the grass being so high as in some measure to restrict the view of the engineer, and therel)y preventing him from guarding against accidents as effectually as be otherwise might have done ; and the second, that of the boy volunta- rily and with reckless imprudence placing himself in danger, so as to bring upon himself the catastrophe. The one was a remote source of danger and could not be regarded as the proximate or necessary cause of the *accidcnt, for the engine might have run over the boy not- r*irv(> withstanding the high grass, as from the situation of the body it *- might not have been seen by the engineer until it was too late to stop the engine in its rapid ])rogress. The other cause was immediate and neces- sary ; for unless the boy had lain down on the road he would not have been hurt. This proposition then presents itself — should the company be held liable for an injury to a slave or other rational person, when there is no fault imputable to the engineer having direction of the locomotive, and 606 COLUMBIA, MAT, 1842. VOL. IT. [*406 when snch person with voluntary imprudence places himself in a situation of danger ? It seems to me that it would be a hard rule of law, repug- nant to common notions of justice, that would require the Court to sup- port the affirmative of this proposition. It would be to make the com- ])any not only liable for its own negligence, but for injuries arising from the fault and imprudence of others, and they strangers, too, in nowise connected with the employment of the company. If one were to put on the road a parcel of goods, and they were to be destroyed by the cars running over them without fault of the engineer, could such an one recover damages of the company ? I think not. So far from it, the party would be liable to an indictment for obstructing the road. Sup- pose another case — that a white man should go to sleep with a leg on the road, and that his leg should be broke, under any imaginable circum- stances preventing the engineer from seeing it at the time, could such white man take advantage of his own foolish imprudence to make the company liable for the injury he had sustained ? If so, the next step would be to make the company liable for all injuries which persons may sustain arising from their own rashness and want of foresight. One might recover because his horse ran away and threw him in consequence of the animal becoming frightened at the cars. And in this way the com- pany would be deprived of all benefit of their road, by being liable for damages to those who will not take care of themselves. It is su])posed, however, that the owner may recover for an injury to a slave, when he could nut recover for an injury to himself. I cannot well see the pro- priety or justice of this distinction. A slave is regarded as a chattel, but ^iO':! "^'' ^^^^'^ ^ chattel as brute animals, *that have not intelligence to -^ enable them to understand and conform to human arrangements of the nature of railroads. These latter may go on the road without knowing their danger, and have nothing higher than instinct to direct them in attempting to escape from it. With good reason, therefore, should the company be held liable for injuries done to them. The defect of the brute must be regarded and supplied by the agents of the com- pany — that is, where it goes into danger of its own accord ; but when it is put in danger by the voluntary design of the owner, the owner ought not to be allowed to convert his own act into a cause of action. In this respect a slave is like his owner ; he is a moral being of volition and in- telligence, capable, by his foresight, of avoiding danger, or of extricating liim.self from it by consulting his reason. In regard to the liability of common carriers, the difference between slaves and other chattels has been fully recognized by our Courts. In the case of McDonald vs. Clark, 4 -McC. 225, the distinction is taken. Slaves are there regarded as other passengers, who, amidst the dangers of a wreck, may consult their own reason to extricate themselves from it. Judge Johnson remarks — " There is tlien a radical difl'erence between the liability of a carrier with respect to the tran.^portation of a slave, and a bale of goods. The latter has neither the power of volition or motion, and is completely under his con- trol. The former is operated on by moral causes ; the latter only by phy- sical." Tiiis remark suggests a distinction which may well obtain with regard to the liability of the railroad company to those whom they may have in charge as passengers or in their employment, and mere strangers. The former have a right to look to the company to take care of them by *407] FELDER VS. RAILROAD COMPANY. 607 the exerci^^e of conipetcMit skill and reasonable ])rn(lence. Whilst the company would have a right to suppose that the latter would take care of themselves, or at least would not voluntarily put themselves in a dan- gerous situation. The duty of giving attention to one, does not extend to the others whose obtrusions would be calculated to lead to surprise and confusion. The law very wisely requires every one to rely on his own prudence; and he" should consult that before he undertakes to take advantage of the faults of others. The *case of Batterfield vs. r^ ,/^Q Forrester, 11 East, 60, is decided on this view of the sul)ject. It ^ appeared in that case that the defendant, for the purpose of making some repairs to his house, which was close to the roadside, had put up a pole across that part of the road, a passage being left by another passage, &c. The plaintiff left a public house not far from the place in question, at 8 o'clock in the evening, in August, when they were just beginning to light candles, but while there was light enough to discern the obstruction at one hundred yards distance, and which the plaintiff might have observed and avoided ; the plaintiff, however, w^ho was riding violently, did not observe it, but rode against it and fell with his horse, and was much hurt in consequence of the accident. Under these circumstances the jury found for the defendant, by the direction of the presiding Judge. On a motion for a new trial the verdict was confirmed. The judgment of Lord Ellenborough is full of good sense when he says, " A party is not to cast himself on an obstruction, which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right. One person being in fault will not dispense with another using ordinary care for himself. Two things must concur to support this action — an obstruction in the road, by the fault of the defendant, and a want of ordinary care to avoid it on the part of the plain- tiff." To the same purport is the case of Flown vs. Adam, 2 Taunt. 314. According to these views, the plaintiff had no right to avail himself of the omission of defendants to cut the grass down, when it appeared that his slave's own imprudence was the primary and proximate cause of his death. As the facts upon which the judgment of the Court is based, seem to be unquestioned, it would be useless to send the case back for a new trial. A nonsuit is therefore ordered. RicHABDSON, Evans and Earle, JJ., concurred. O'Neall, J. I dissent, on the ground on which the case was decided below. See Richardson vs. W. <$• M. R. R., 8 Rich. 127 ; Kelly vs. Citij Council, 4 Rich. 426 ; Zemp vs. W. ^ M. R. R., 9 Ricli. 93 ; McClenaghan vs. Brock, 5 Rich. 71 ; Liseman vs. S. C. R. R., 4 Rich. 414 ; 11 Rich. 291 ; 1 McM. 385, 409. An. 608 COLUMBIA, MAT, 1842. YOL. II. [*409 *409] *Yarnum, Fuller & Co. vs. Thomas Evans. 1. Where an attorney, acting under a power of attorney, from the attorney of the principals, recites in the deed of release, the power from the principals to the attorney, or person from whom he derives his powers, and in the body of the said release says, "by virtue of the autliority vested in me as aforesaid, and in the name and in behalf of the said Varnum, Fuller & Co." (the principals), "and others, I accept the provisions in the said assignment, made in this behalf, and do further release and discharge, kc. Signed J. Winslow, [l. s.] Attorney for C. P. M., J. Winslow, [seal] Agent for V., F. & Co." It was held, that this execution was in compliance with the rule which requires a deed executed by au attorney to be sealed and delivered in the name of his principal. 2. An acceptance of a provision under a deed of assignment, and a release of the principal, with the assent of the security, is equivalent to a discharge by opera- tion of law, and the rights of all concerned are the same under one as well as the other. Before Butler, J , at Marion, Spring Term, 1841. This was a special verdict, and from it tlie facts and matters in issue between the parties may be ftdly understood. The verdict is as follows : We find that the defendant and R. B. Wiggins & Co., executed the following note : "New York, 24th July, 1832. $1477 11-100. Twelve months after date we jointly and severally promise to pay to the order of A^arnum, Fuller & Co., at their counting room, No. 165 Pearl street, fourteen hundred and seventy-seven dollars 11-100, for value received. R. B. WIGGINS & Co., THO'S EYANS." That on the I4tli of March, 1833, R. B. Wiggins made an assignment to Thomas Evans, the defendant, and Edward 13. Wheeler, providing for the payment of the plaintiffs' debt, (among others,) in the first class of the debts enumerated — with a condition therein expressed, that all credi- tors who did not, within a specified time, execute a release to the said Wiggins, of all claims, except u[)on the property assigned, should be debarred from all benefit to be derived from such assignment. On the 1st of April, 1833, the plaintiff, among others, executed a power of attorney to C. P. Mallett, empowering him, or such agent as he *4l0l "''f?'^^ think fit to appoint, to *act in their beiialf, in making a -• settlement with the assignees of R. B. Wiggins & Co., and to execute such jtuper or papers as might be necessary to entitle them to the benefit of the a.ssignnient made by said Wiggins on the 14th of March, aforesaid. On the 8th day of April, the said Mallett, executed a power of attor- ney to John Winslow, reciting the above and appointing said Winslow l)is attorney in the transacting of said business — ratifying and confirming all and several his acts in the premises, as fully and effectually as if done by himself in his own proper jierson. (Signed) C. P. Mallett. [Seal.] On tiic 9th day of April, 1833, the said Winslow came to Marion Court Hou.se, and executed an instrument reciting the above-stated powers of attorney and asf-;ignnicnt., and declaring that " I, the said Win- *410] VARNUM, FULLER & CO. VS. EVANS. 609 slow, attorney and agent as aforesaid, in consideration of tlie provision made by said Wiggins, i!i his said deed of assignment, for the said Var- num, Fuller it Co., (and others,) and in consideration that they shall severally receive such amount of money from the above-named assignees, or eitlier of them, in proportion to their res[)ective interests in said assign- ment, as they shall be thereunto severally entitled in pursuance of the terms thereof, do hereby, by virtue of the authority vested in me, as afore- said, in the name and in behalf of the said Varnum, Fuller & Co. (and others) accept the provisions in the said assignment, made in this behalf, and do farther release and discharge the said Ricks R. Wiggins, and R. B. Wiggins & Co., from all further or other liability arising under and by reason of the following claims, being the amount respectively due the said parties, by the said R. B. Wiggins & Co., (then among others enu- merating the note sued on, and an account due the plaintiffs for $504 89 ) (Signed,) JOHN WINSLOW, [Seal.] Attorney for C. P. 3IaUett. JOHN WINSLOW, [Seal.] Agent for Varnum, Fuller & Co. We further find that Evans was not guilty of fraud in representing to Winslow, that the assigned effects were sufficient to pay the claim of the plaintiffs, but that Evans *assented to the release thus given, and r^i-ii that it was made at his instance and request, and for his benefit — •- Evans was the only assignee who acted — Wheeler refused to act. If the Court should be of opinion, from the facts thus found, that the plaintiffs are entitled to recover, then we find for them, the sum of two thousand three hundred and seventy-five dollars, thirty-five cents — if not, we find for the defendant. (Signed,) JAMES LANE, Foreman.'''' Upon the facts found in the foregoing special verdict, his Honor, the presiding Judge, pronounced the following judgment, in favor of the plaintiffs, for the reasons annexed. 1. Because the release having been taken by the surety himself, it was for his benefit, and not in derogation of his right. 2. The release should have been executed by the agent, Winslow, in the name of his principals, to have made it effectual against them. The form in which the paper is executed, would subject Winslow to its obliga- tions, while it imposes none on his principals. It purports to convey or release an interest, and as such, it should have been executed in the name of the plaintiffs by their agent. Let the postea be delivered to the plaintiff. The defendant appealed for a new trial, on the following grounds : 1. Tlie presiding judge erred in directing the postea to be delivered to the plaiutitr, because, altliough the release may have been tal^en for the benefit of llie defendant, there being no fraud, the effect was to discharge him from liability on the note, as an instrument. 2. Becau.se the release was executed in legal form. 3. Because, if it was not valid as a formal release, it was still valid and effectual, as a discharge by an authorized agent, on a sullicieut consideration. Dargan, for the motion, on second jround, cited Fash vs. lioss, 2 Hill. 2D4 ; YOL. I. —40 610 COLUMBIA, MAT, 1842. VOL. II. [*411 Taulor \s. McLean, 1 McM.; Welsh vs. Parish, 1 Hill Rep. 161 ; Covihe's case, 9 Coke ; 1 Salk. *95; 5 Com. Law Rep. 223 ; Burrell vs. Jones, 5 M. & S. 3 ■^^-^J 45 ; Ledbetter vs. Fanoio, 1 L. N. P. 356 ; 33 Com. L. 34 ; 10 Wend. 275 ; 6 Con. Rep. 464; 8 Pick. Rep.; N. E. J. Co. vs. De Wolf, 2 Pick. 222; 11 Mass. Rep. 26 ; 1 Camp. 184 ; 2 Wheat. Rep. 56 ; 4 McC. 323 ; 1 B. & Cress. 150 ; 2 B. e^ Ad. 328 ; 6 Ves. Jr. 305. Mclcer, contra, contended that the execution by parol and by deed are different- Tliis was an execution by deed. The instrument set up is void. Cited 1 Bail. 517 ; Prior vs. Colter, 2 Kent Com. 492-493. Cited also, Fash vs. Ross, 2 Hill ; and Tai/lor vs. McLean, 1 McM.; the State Bank vs. Kerr, 1 McM. 141. Curia, per O'Xeall, J. In this case I first propose to inquire whether the execution of the release was such as binds the plaintiffs. The attorney recites the powers from the principals to Mallet and from Mallet to himself, and in the body of the release says, " by virtue of the authority vested in me as aforesaid, in the name and in beJialf of the said Varnum, Fuller & Co., (and others) I accept the provisions in the said assignment made iu this behalf, and do further release and dis- charge, «fcc." The attorney executed this release as follows : John Winslow, [l. s ] attorney for C. P. Mallet. John Winslow, (seal) agent for Varnum, Fuller & Co. Was this execution a compliance with the rule which requires a deed executed by an attorney to be sealed and delivered in the name of his principal ? I am satisfied it is. It purports to be by the authorit}^ (the power recited,) and in the name and in the behalf of the principals. This is as ample an execution as if the deed had begun, "We, Varnum, Fuller & Co.," and had been executed "Varnum, Fuller & Co., by John Winslow, their attorney, [l. s.]" In thus stating an execution by Varnum, Fuller & Co., I am well aware that a firm cannot be bound by deed, unless each partner seal and deliver it, or assent to the execution by one for all. But as no such objection was urged against the execution, we take it for granted that the execution was, in this respect, binding, and the notice of it has been merely to pre- vent a misconstruction of our opinion. In Pryor vs. Coalter, 1 Bail., *41^'l ^^*^' ^^'^ Welsh vs. Parish, 1 Hill, 155, *there was nothing on -I the face of the deeds which showed that the act done was " in the name and in behalf" of the principal. Each purported to be the act of A. B. attorney of C. D. ; and hence the deeds could not be the deeds of the princi[)als. The dilferencc between those cases and this mark a plain and obvious distinction. This, although signed and sealed by the attorney, is declared to be by the authority and in the name and in the behalf of the principals, which was the same as if the attorney had said, by the authority of tlie principals and in their names and stead, I sign, seal and deliver this deed. About the validity of such an execution, no one could doubt, and this being ecpiivalent is equally good and binding. In Welsh vs. Parish, 1 Hill, 1G2, Judge Johnson recognizes Wilkes vs. Bock, 8 E. 142, as good law. For he says ''that case turned altogether upon the manner of signing the bond, and it was certainly very immaterial whether the name of the agent or principal was placed first, provided the undcrtakiiif/ or obligation, was in the name of the principal." Re- ferring to Wilkes vs. Jiock, it fully sustains the ))osition that the deed is the deed of the principal, if it ])urports to be in his name and behalf, no matter how it is signed by the attorney. In that case Wilkes and Brown *413] VARNUM, FULLER & CO. VS. EVANS. 611 had been co-partners. Bock was indebted to tliem by account. Brown was absent, but Wilkes was liis attorney ; tliere was some dispute about tlie payment of the account, and it was ap:rced to submit it to arl)it ration, and the parties entered into bonds to abide by the award. Wilkes, for hiuiself, and as attorney for Brown, executed their bond in this form, Matthias Wilkes, [l. s.] For James Browne; Matthias Wilkes, [i.. s.] The question was, whether Brown was bound l)y the award made up according!; to the submission. It was held that he was, inasmuch as the execution, from the bond itself, appeared to be done for him, and in his name, and by his authority. That decision touches this case. For it is no more a strict execution than is the case before us. From the release in this case, as well as the bond in that, the execution appears to be done for the plaintiffs, and in their name and by their authority ; and hence, on the authority of that case, is entitled to be supported. Nor is Combe's case, 9 Rep., 86, (which has given rise to all this *nicety f^a-ia about the execution of deeds by attorneys,) at all opposed to this ^ conclusion. That was the case of a surrender of a copyhold by an entry on the rolls of the Court. It was made by attorneys, but not in the name of their principal ; inasmuch, however, as in the entry the attorneys set out their power, and referring- to it, declared the entry to be in pur- suance of the authority thereby given to them, it was held to bind the principal. This, it will be noted, is a direct authority in support of the release in question. For it declares an act done in i)ursuance of a recited power made by the principal to be his act, and hence, as the same circum- stance is found in this case, it supports the view that the release here is the deed of the plaintiffs. But I admit that the entry there was an act, without sealing or delivery, and that in that point of view, this case is distinguished from the point there decided. The Court, however, in enforcing the judgment, stated the principle which gave rise to the rule governing this case. It was there said, " if attorneys have power, by writing, to make leases by indenture, for years, &c., they cannot make indentures in their own names, but in the name of him icho gives them warrant.''^ This is, I concede, the law governing all deeds made by attorneys, and to it their deeds must conform ; but this is done whenever, as, in this case, the deed declares it to be made in pursuance of the authority and in the name and behalf of tlie principal. From this review and application of the law, I think the release is good; and this brings up the question whether it discharges the defendant. I do not think it does. In the first ])lace, it does not seem to me that it is a discharge of Hicks B. Wiggins k Co. For it sets out that in consideration of the provision made by Ricks B. Wiggins, in his said 'deed of assignment, for the said Varnum, Fuller & Co., and others, and in consideration that they i>haU aevei-alli/ receive such amount of money from the alcove named assignees, as they shall be thereunto severally entitled in pursuance of the terms thereof, the provisions in 'the assignment are accepted; and Ricks B. Wiggins & Co., are released and discharged. The special verdict does not find that the ])laintiffs ever received any thing under the assignment ; and if they did not, I apprehend the release is without con- sideration, and is not binding *on the plaintiffs even, as against ^:^,■l- Wiggins. But be that as it may, it is clear, I think, in the second '- '^ place, that Evans cannot pretend that he is discharged. The assignment 612 COLUMBIA, MAY, 1842. VOL. II. [*415 was to him, and to protect him in his securityship ; to enable him to avail himself of the benefits of the assignment, the plaintiff's release was necessary to be executed. He procured it to be done, and the jury have found not only that he assented to it, but that it was for his beneBt. Under such circumstances, it cannot be a release of him. For the release of one joint or joint and several debtor only operates as a release to the other, when made without his knowledge or assent, on the ground either that by the terms of the contract it cannot be enforced against one, but must be against both, or if by the terms of the contract it may be enforced against one, then that it deprives him of a remedy against his co-debtor. This case is under the last branch of the proposition stated ; for the note of Wiggins & Co. and the defendant is joint and several. There is nothing therefore in the form of the contract to prevent a recovery agailist the defendant as a several promissor. The release deprived him of no remedy. For he himself was the assignee, and to make his remedy perfect, it was necessary to be executed. When therefore it was executed by his procurement, with his assent, and for his benefit, it cannot relieve him from the note to the plaintiffs. It is very analogous to a discharge, under the bankrupt or insolvent debtors' law ; either would discharge the principal ; but yet the security would be bound. An acceptance of a provision under a deed of assignment, and a release of the principal, with the assent of the security, must be equivalent to a discharge by operation of law, and the rights of all concerned would be the same, under one as well as the other. The motion is dismissed. Richardson, Earle and Butler, JJ., concurred. See Robertson vs. Pope, in Errors, 4 Rich. 502. An. Note. — The Reporter is not in possession of the different exhibits contaiiiing the evidence and all tlie facts that were before the Court ; but he Hatters himself that enough is furnished of the case to make it intelligible. Ho has given all that he received. *416] * James II. Cobb vs. Geo. W. Pressly, Sheriff. 1. A sheriff cannot recover, (in an action of assumpsit,) from a purchaser at sheriff's sale, for property purchased, where the purchaser is the owner of the execution in his olfice entitled to a preference from the proceeds of sale, unless he can show that a part of the money arising from the sales was applicable to the ])ayment of liis costs, and then only the amount of las costs. 2. When one being the owner of an execution, under which the sheriff sells, pur- cliases projxTty at the slieriff's sales, upon an action of assumpsit against him by tlie sheriff for tlie amount of his bids, he cannot avail himself by way of discount of the amount of liis execution in tlie sheriff's office, although his exe- cution is entitled to the preference in the sales. Before Riohardson, J., at Abbeville, Spring Term, 1842. This was an action of assunii)sit to recover $330 the price of a slave and cow bougiit I)y the defcndunt at tlie plaintiff's sale for cash, by *416J COBB vs. PRESSLY. 613 authority of executions against John Riley. It was admittofl that the defendant was the assignee of a case in wliich AVilliara B. Hill was the plaintiff against Riley, and thus, although there were junior executions, the money when received should be apiilied to the defendant's execution. It was also admitted that no rule had been made against the sheriff, but the money was claimed by a junior execution creditor. The defendant filed a discount under which he claimed the proceeds of the sale, as ap- plicable to the senior execution, and insisted that as the money would, if paid by him to the plaintiff, be applied to the execution of whicli he is assignee, the plaintitf shoidd not be permitted to recover against him.' The presiding Judge was of opinion, and so held, that the plain titf was entitled to recover, and thus the matter of the discount could not avail the defendant. The court also held tliat as the sale was fur cash, the plaintiff was entitled to recover interest on the price for which the property sold. The defendant appeals, on the grounds annexed to this report. 1. Because his Honor the presiding Judge held that the defendant's discount is inadmissible, and thus the matters therein stated could not avail the defend- ant in the form of law. *2. Because his Honor held that the plaintiff was entitled to recover r^ii j interest from the time the property was sold to the defendant. L Burt and Thompson, for the motion. Perrin, contra. Curia, 2'>er O'Neall, J. We all agree that the defence of the de- fendant as a discowif, could not be received ; for there was no demand on the part of the defendant against the plaintiff which could be the subject of a cross action. The defendant had the proceeds of the sale of Riley's goods in his own hands, and if he was entitled to retain he could have no claim against the sheriff. If he had not that right, still until he paid him the money he would have had no right of action on account of it ; so that the discount is out of the question, and the whole ease is resolved into the inquiry whether the sheriff could recover from the de^{inda.nt without shoioing that persons, other than tlie defendant, icere entitled to receive the money from him or that a part of it was appli- cable to the payment of his costs. It is generally true, that at common law, the sheriff is entitled to demand and receive the proceeds of a sale made by him, and to bring the money into court. But it is equally true, that when there is no reason for the enforcement of this rule, it ought not to prevail. Indeed one part of it is abrogated by statute. For noio where there is no confliciing claim to money collected on an exe- cution, the sheriff is bound to pay the same to the plaintiff in execution within ten days after he has received it, if demanded, under a i)enalty of 50 per cent. Act of UOG, 5 Stat, at Large, 284. Thomas vs. Fates, 1 McMuU. no. This abrogated the common law rule, that the sheriff was to bring the money into court in all cases. That is his duty now, only where there may be conflicting claims. Following up the reason on which the act is founded, that the plaintiff in execution is entitled to receive his money as soon as the sherifl" may collect it ; and considering its provision that when paid to him he is bound, at least within ten days afterwards, under a heavy penalty, to pay it to the plaintiff, the inquiry 614 COLUMBIA, MAY, 1842. VOL. 11. [*417 is presented to the mind, why do so senseless and nuojatory an act as to make the plaintiff in execution pay the amount of his bid by which he *p vs. Martin, 1 Sp. 238. An. '422] COOPER VS. HALBERT. 617 malicious intent. Such was tlie case in GosUa vs. WilcocJc, 2 Wils. 302, for maliciously causing; the ])laiiitiff to be arrested, in an inferior court, wliich had no jurisdiction, without any probable cause, the defendant not having at the time of such arrest and imprisonment any just or probable cause of action against the plaintiff. In that case, no doubt, trespass would lie for the arrest in a court having no jurisdiction; and as the pro- ceeding was adopted with an express malicious intent, in a court which the party knew had no jurisdiction, an action on the case would also lie, as the Court held ; both malice and the want of probable cause being alleged and proved, as they were essential to the action. It is true that the allegation that the defendant knew the Court had no jurisdiction was not contained in the declaration ; and the Court held it cured by the ver- dict and refused to arrest the judgment. In the case under consideration, the declaration was not referred to on the circuit, else I should hav^ been constrained to nonsuit the plaintiff for the want of a *suflQcient r^^go cause of action in the form adopted. It is alleged that the L verdict for the defendant, now plaintiff, on the trial of the former issue after the judgment was set aside, established that he was "not in arrears, nor in any wise indebted" to the defendant; but there is no averment that the suit was brought, or that the execution was sued out, " with malice, and without probable cause;" both of which are essential to this form,. of action, and which must be alleged and proved, as the Court said in Gof^lin vs. Wllcock. But inasmuch as the plaintiff was not arrested and imprisoned, nor held to bail, no action lies against the defendant for a mere malicious suit, however ground- less. Bui. N. P. 1 Salk. 14. No form of declaring, therefore, would have enabled the plaintiff to recover for having instituted and carried on a groundless action, although with malice. Could the defendant then have been made liable in an action on the case, for merely suing out an execution upon a judgment which had been rendered in his favor, and was still subsisting, although irregular ? No doubt, if a plaintiff sues out an execution upon a judgment which he knows to have been fully paid off and satisfied, or a second execution upon a former under the same circumstances, he would be liable to an action, with the proper averments that it was done with malice and intent to harass, injure and oppress. But here there is no such case. The judgment, at the time of execution sued out and levied, was still of force ; the defendant then, now plaintiff, had not appeared to defend, and there was an order for judgment by default, and the verdict which was finally rendered for him, after the judgment was set aside, is by no means conclusive that the de- fendant may not have had a probable cause of action, or may not have honestly believed that he had, both when he brought the action, and wlien he sued out the execution, which would have exempted him from liability in an action for a malicious arrest, if the plaintiff had been held to bail. Gibaon vs. Charter.^, 2 B. & P. 129 ; 3 Esp. R 34 ; 1 Camp. 295. If he was not liable for bringing the suit, however groundless, then he cannot be liable for suing out the execution, so long as the judg- ment was of force. Plad it not been set aside, he could never have been made liable in any form, either in case, or trespass, or assumpsit, or re- cover* back the money. Marryott vs. Hampton, D. & E. As it r^A-iA was set aside for irregularity, it was the same as if it had never ^ 618 COLUMBIA, MAT, 1842. VOL. II. [*424 had been rendered and he became a trespasser. To make hiin liable in case also, and thus accumulate the plaintiff's remedies, would seem to be unnecessary for the ends of justice. I will not say that it cannot be done with suitable averments and adequate proof. In such case, it would, at all events, be essential to aver and prove not only that the proceeding was malicious and without probable cause, but that the irregularity which avoided the judgment was in some way the act of the defendant or his attorney, and not the act of the Court, as it would seem to be, pro- cured by falsehood or fraud with intent to injure the plaintiff. There is not in the declaration any such averment of malice or the want of proba- ble cause, or any allegation that the defendant knew of the irregularity, nor any thhig from which these fiicts can be fairly inferred. The simple averment is that the defendant caused an execution to be levied, and the judgment was afterwards set aside. This presents a case in which tres- pass alone would lie. After verdict the Court will, by intendment, sup- pose every thing to have been proved which the allegations of the record require to be proved ; but nothing more. And where the declaration contains no cause of action, the defect is not aided by a verdict. Here every thing which constitues the gist of the action on the case is omitted, and the judgment must be arrested. The motion is granted. RiCHAiiDSGN, O'Xeall, Evans, and Butler, JJ., concurred. *425] *RoBERT Devlin vs. Simpson Kilcrease. 1. A party proving the declarations of another party concerning a trespass which had been committed, has the right to prove and give in evidence all the expres- sions that were used in the conversation relative to the trespass at the time, as well on account of their being a part of the same conversation as also to show to the jury the S])irit and feelings with which they were spoken. 2. It is the right and also the duty of a judge to comment on all the evidence of a case to the jury, and in cases of complicated facts to give to the jury the aid of his experience, discrimination, and judgment upon the evidence, as well as the law, so that he finally leaves the ultimate decision of all the facts to their judgment. This is the practice of all Common Law Courts, and such is the well-settled practice in South Carolina. Before Richardson, J., at Abbeville, Spring Term, 1842. This was an action of trespass for cutting the timber and poles of the plaintiff. The trees had been cut by defendant's negroes — and whether he ordered the trespass, was made a question by his counsel. This must aj)pcar from the evidence. The evitieiicc taken at the trial, and which has been reported by the presiding Judge, as his report of the case, is herewith subjoined, which with the grounds of appeal, will sufficiently explain the facts, and the questions made and decided by the Court. "Mr. A. Patt'in. The d(;fendant lived near to the plaintiff, on land of Kender- Hon. Heard defendant say liis l)oys had cut some rail-timber and some poles for chimney.s. He liad bren to i)laintiff to make up; but tliev would have to go to law. He liad as much money as plaintiff to spend at law ; and he could buv him ^425] DEVLIN VS. KILLCREASE. 619 and all he had, if they were black; spring of 1841, before the suit. Said he had gone to plaintiff, and plaintiff to him first, and could not settle. '■'Croxx-exa mined — Conversation at McClinton's store — As to the fii-st timber, lie said plaintiff would be satisfied to cut as much of his timber. He did not say whether he had authorized it or not ; but said his boys had cut it, &c. Witness did not attend to the whole conversation with McClinton. Said plaintiff was not willing to compromise the second trespass. Defendant attends closely to his negroes and business. "Mr. Samuel Lear d. Defendant said he had before cut *some two or r^Ao^a three timber trees and some poles, and plaintiff would not settle, &c. lie was contrary. '■^Cross-examined — Defendant said he offered to pay him, and he would not do it. Plaintiff was disposed to go to law ; said his boys had cut the timber ; did not say it had been done with his permission. "./o/(?! McLaren. Leased the land to defendant for Henderson, and offered to show defendant the lines ; but defendant said he knew them from Mr. Dill. The fence runs on the line three-fourths of the way. Henderson's near timber land had been pretty much cut up. '■'■Charles SprouH. Knows plaintiff's land ; not a large tract; timber scarce. Saw where the timber was cut ; two rail trees ; many poles ; some fifty yards from the fence, or one hundred yards from Henderson's wood-land. Henderson's land had many stumps. "Bai-t. Jordan. Examined the timber-land; appeared last February to have been cut recently ; two pine trees of four cuts each, one hundred rails ; a number of pole stumps, (twenty or twenty-five ;) some good trees for rails on Henderson's land. "The court charged the jury with all the facts, and especially to decide the question for themselves ; but turned their attention to the use made of the poles, (for chimneys, ) and to the expression of the defendant, as proved, and as indi- cating liis concurrence in the trespass. If so, they were told that the plaintiff' was entitled in law to recover at least the value of the trees taken, to whidi the jury might add reasonable damages for example's sake. The jury found for the plaintiff, §53." From which verdict the defendant appealed, on the grounds following : 1. That the proof was, that the trespass was committed by the defendant's slaves, and no proof that the defendant ordered or directed it. 2. That his Honor charged the jury that_ the defendant's offering to pay the jdaintifl" for the trespass, was an acknowledgment that the trespass was done by his orders. 3. That his ITonor charged the jury that he "believed that the defendant was guilty of the trespass ;" whereas, it being a matter of fact for the jury, and doubtful from the *testiuioiiy, it should have been left to the jury, with- pioT out any expression of opinion of his Honor, as to the guilt or innocence L of the defendant. 4. That his Honor admitted evidence that the defendant had said, (long after the trespass was committed,) "that if the plaintiff was black, he could buy him and all he had." 5. That the verdict is contrary to the law and the evidence. Pcrrin, for the motion, on the first ground said, that it was necessary to prove that the defendant had committed the trespass. The declarations of defendant that his negroes had cut the trees, was no evidence that defendant hail so ordered the cutting of the trees. The master is not liable in law for the trespass of his slaves, when not committed by his orders. The offer to pay hy defenilant is not sufficient evidence, for abstract justice would have prompted this offer ; but no offer to pay was intended to charge himself as giving the order to commit the trespass. On 3d ground, cited Graham on N. Trials. 620 COLUMBIA, MAT, 1842. VOL. II. [*427 4th ground. This is not such a declaration as would go to explain the character of the trespass. Cited Starkie Ev. ; 2 Maul & Selwyn, 77 ; 2 Starkie Rep. 314. The alia enormia only embraces such acts as are committed at the time of the commission of the trespass. Cited Treadway Rep. ; also, Dudley. Burt, contra, offered to argue, but was excused by the court. Curia, per Richardson, J. The fourth ground of the appeal, sup- poses that the expressions of the defendant to the witness, Patton, that " if Devlin was black, defendant could buy him and all he had," were in- competent. But these expressions were part of the conversation relating to the trespass, and his own offer to adjust the complaint. And the plaintiff had a right to adduce, before the jury, as well the spirit in which the defendant admitted the trespass done, as the facts. I do not per- ceive how else we could get fairly at what the defendant did acknowledge *i9Sl "1^^^^ ^^^^ subject, unless by hearing all he did say, leaving *it to -I the jury to apply the expressions for what they were worth, which was very little. The 2d and 3d grounds assume that the Judge ought not to indicate his own opinions upon the evidence, lest he should bias the jury. In this case such opinions were not more than indicated. But the frequency of such grounds of appeal leads me to remark, that according to the case of the State vs. Bennett, 2 Tr. Con. Rep, 692, it is the right of the Judge to comment upon the whole evidence to the jury. And in the case of the State vs. Caxmdoes, 1 K & McC. 91, it is decided to be not only the right, but also the duty of the Judge, in cases of complicated facts, "to give to the jury the aid of his experience, discrimi- nation and judgment upon the evidence as well as the law, so as he finally leaves the ultimate decision of all facts to their judgment. And such, I presume, is the practice of all common law courts. Of this, and from high autliority, I will give one illustration. Lord Brough ;m, com- mending the judicial character and conduct of Lord Ellenborough, says : " Lord Ellenborough was not one of those Judges who, in directing the jury, merely read over their notes, and let them guess at the opinions they have furraed, leaving them without any help or recommendation in forming own judgments. Upon each case that came before him he had an opinion ; and while he left the decision to the jury, he intimated how he tiiouglit himself. This manner," he continues, " of performing the office of Judge, is now generally followed, and most commouly approved." (See 2d Brougham's ]\Iiscellanies, Public Characters, p. -39.) See the cases collected on this head, in Graham on New Trials ; and I may add, such is the well-settled practice in South Carolina. The motion is therefore dismissed. O'Xeall, Evans, Earle and Butler, JJ., concurred. See 8 Rich. 140 ; 7 Rich. 478 ; 1 Hill, 227. An. ^429] HATCHER VS. HATCHER. 621 ♦Christiana Hatcher r.s. Lucinda Hatcher. [*429 1. Where the plaintiflf, being tenant for life, and the remaindennan, during his lifetime, entered into the following written agreement, "That the said C. II. do agree to let E. H. build on the land willed to him by his father, at the death of the said C. H.; the said C. II. do also agree that E. II. may ojien and make all the improvements on said land that he thinks proper. The said E. II. do agree not to interrui^t any thing that belongs to the said V. II. in person or property. If the said E. II. should interrupt or suiler any of his family to interi'upt any thing belonging to the said C. 11., the said E. H. do agree to pay the full value in cash or forfeit all the improvements on said land." It was Ilald, that the plaintiff had not, by this agreement, surrendered to the remainderman her free- hold for life. Tliat this paper conveyed nothing more than a tenancy at will, or a lease to terminate upon reasonable notice, or a privilege during his life and peaceable behaviour. 2. The Court say, "that in such anomalous agreements, we must look to the instrument itself for its own construction, as identixjal papers cannot be found already adj udged. ' ' Before O'Neall, J., at Edgefield, January, 1S42. This was an action of trespass to try titles. The plaintiff was the widow of Jolin Hatcher, and the defendant was the widow of Edward Hatcher, a sou of said John Hatcher. Tlie said John Hatclier devised the land in dispute to the ])Iaintilf for life, and after her death to said Edward Hatcher in fee. The plaintiff and Edward Hatcher entered into the following agreement. Memorandum of an agreement made and entered into this the twenty-seventh day of August, in the year one thousand eight hundred and thirty-three, between Christiana Hatcher, of the one j)art, and Edward Hatcher, of the other part, showeth : That the said Christiana Hatcher do agree to let Edward Hatcher build on the land willed to him by his father, at the death of the said Christiana Hatcher ; the said C. Hatcher do also agree that E. Hatcher may open and make all the improve- m.ents on said land that he thiiiks proper. The said Edward Hatcher do agree not to interrupt any thing that belongs to the said C. Hatcher, in person or property ; if the said E. Hatcher should inter- rupt or suffer any of his family to interrupt any thing belonging to the said C. Hatcher, the said E. Hatcher do agree to jyay the full value in cash, or forfeit all the improvements on said land. In witness whereof, we have hereunto set our signatures *and affixed our r^io/^ seals, this the twenty-seventh day of August, in the year one thousand '- eight hundred and thirty-three. C. HATCHER, [l. s.] EDWARD HATCHER, [l. s.J Witnesses — Alfred Hatcher, William .J. Turner. The plaintiff proved (in addition to the trespass, location of the land, notice to quit, &c.,) that Edward Hatcher in his lifetime, had greatly annoyed the plaintiff, by trespasses upon her negroes, horses, and other property ; but she failed to prove any demand of satisfaction in money for these trespasses. His Honor charged the jury, that the said agree- ment amounted to a release by the plaintiff to Edward Hatcher, of her life estate, and that Edward Hatcher had not forfeited his interest under said agreement, without proof of his refusal to pay in cash for his tres- pass on plaintifTs property. The jury, in pursuance of the charge, found a verdict for defendant. 622 COLUMBIA, MAT, 1842. VOL. IL [*430 The plaintiff appeals for a new trial, on account of error in the presiding Judsre, on the grounds : l.'That. according to the just construction of said agreement a tenancy at the will of plaintiff, was the only interest given to the said Edward Hatcher, which was terminated, as well by the acts of said Edward, as the notice given by plaintiff. 2. That all interest of Edward Hatcher, in the premises, was a personal privilesre. which died with his person. 3. That said Edward Hatcher forfeited all interest under said agreement, by interrupting the plaintiff in the enjoyment of her property. Wardlair, for the motion. Griffin, contra. Curio, per Richardson, J. The only question is. upon the proper construction of the agreement between Christiana and Edward Hatcher. Did she intend to surrender or release to bim her estate for life, so as to make the remainderman, thereafter, tlie exclusive owner ? That she ^ -, intended by the agreement to give some estate, or privilege, *to J Edward, is evident. But Mrs. Hatcher, being a freeholder during her own life, could, of course, make any lease, or give any less estate, tenancy, or privilege, without surrendering her freehold. In the contest for the one or the other of such estates, the court is to decide. And we are to bear in mind, that a freeholder for life, and one in fee simple, belong to the same class of estates. It is difScult to perceive in the agreement, that without any valuable consideration, or any recipro- cal benefit, she intended to surrender her entire freehold, when so many less estates might have answered the purpose of her evident gratuity, and object of peace. If Edward had been any other than the remainder- man, or a stranger, or Christiana the owner iu fee simple, could we con- clude that she had released her whole estate ? If the freehold be given, why give him the expressed privilege to build and clear the lands ? If so given, why make him, in a certain event, forfeit his improvements" only, which would be useless to her, if he kept the land, and inconsistent with the character of a freehold estate in him ? Such a forfeiture would have been idle in that case ; and therefore it presupposes the land still in her. In such anomalous agreements, we must look to the instrument for its own construction, as identical papers cannot be found already adjudged. In the instance before us, it may have been more than a tenancy at will ; but assuredly, not more than a lease to terminate upon reasonable notice, or a privilege during his life and peaceable behaviour, Mrs. Hatcher reserving still her freehold. A mere gratuity should be plain, and ought not to be extended to its utmost latitude and by mere construction against the giver, when a less estate, and a very common one, may have been intended for the gift. Some mere lease or privilege must therefore have been the object of the agreement, and when Edward died, it passed away, and her life estate stood unimi)aired by the agreement. The motion for a new trial is, there- fore, granted. Evans and Earle, JJ,, concurred. O'Nfall, J. I regret that I cannot take the view in this case which *431] HATCUER VS. HATCHER. 623 has taken by a majority of *my brethren. But were it not for the r-j^^toc) fact, that the report was prepared l>y counsel, and does not set out ^ the reasons of my judgment, I shouUl not care to state noiv the reasons of my dissent. As it is, I think it right and proper, that I should state the grounds why I did not concur in the judgment just read. An instrument like the one in this case, is to be fairly construed by reading all its parts together, as applied to the subject matter of which it treats. If there be any doubt, it is to be resolved against the grantor. Taking these rules as our guide, I think there can be little doubt that the grantor, Mrs. Hatcher, intended to surrender to the remainderman so much of her life estate in the land, as he might enter upon and improve, under the condition that the estate thus surrendered might be resumed, if he (tlie remainderman) should interrupt or suffer any of his family to interrupt any thing belonging to the said C. Hatcher, and should fail to pay the cash value of said interruption. If this be not the true interpre- tation, I would ask, why it was that the condition of forfeiture of the "improvements" to be made by the said remainderman was inserted in the agreement ? For, if it was only a tenancy at will, the grantor could enter, at any time after a notice of six months to quit at the end of the year. The condition of forfeiture shows that the tenant for life could not enter, until the forfeiture was incurred, and hence the notion of a tenancy at will is at an end. It cannot be, that it conveys only an estate for the life of the remainderman, for his covenants are not only for himself, but for his family, and the forfeiture is of the only roofs which he had pro- vided to cover his wife and children, after his own head had been covered by the clods of the valley. The general grant of the tenant for life is to the remainderman to enter at once upon the land, build and make any "improvements that he thinks proper." This was to all intents and pur- poses a surrender of her life estate in so much of the land as he might build upon and improve. To say that his estate was defeated by his death is to visit loss upon a man by the act of God, and which had not been prescribed as a condition of forfeiture or termination by the parties. Such a thing was never before heard of. *The only doubt which I ever entertained, was whether the agree- r^i^o ment could operate, from its form, as a surrender. That, how- ^ ever, has been removed by Smith vs. 31apleback, 1 T. R. 441. In that case Smith was the proprietor of the " Three Jolly Sailors at Rother- hite,^^ for a long terra of years. He demised the premises to Svvin, and Swin to Sellon. Smith afterwards applied to take the premises, and the following agreement, between Sellon and Anne Smith as the agent of her husband, was entered into, viz. : " Agreement between Mr. Smith and Mr. Sellon for the Three Jolly Sailors at Botherhite : Mr. Smith to have the house on the terms mentioned in the lease, and to pay £8 10s. over and above the rent annually, towards the good-will already, paid by Mr. Sellon." It was adjudged, that this was a surrender, and that the plaintiff was in under his original term, and that it was not a lease from year to year. If that agreement was properly construed to imply a sur- render, much more, it ai)pears to me, ought this to be so construed. Butler, J., signed neither opinion. 624 COLUMBIA, MAY, 1842. VOL. II. [*434 *434] *JoHN Clarke vs. M. H. Poozer. The* Same vs. J). H. Baxter. 1. Tlie general rule unquestionably is, that if the owner of a chattel hire it to another, he cannot maintain cither trespass or trover against a third person, in respect to any injury to, or conversion of it, during the time it is so hired. But to this general rule there is one exception, which is, if the bailee do an act inconsistent with the bailment, and calculated to defeat the rights of property of the owner, he may treat the bailment as ended, and maintain trovert. 2. Where a married woman, previous to her marriage, executed to the plaintiff a deed of trust, for certain lauds and slaves therein named, by which it was the duty of the trustee to permit the ce: • so hilled, maintain either trespass or trover against a third person, in resjiect to any injurij to or conversion of it. The case of Gordon vs. Harper, 7 T. R. 9, is an illustration of it. There, furniture leased with a house was wrongfully taken in execution, by the sheriff; it was held that pending the lease, the landlord could not maintain trover against the sheriff. Because to maintain such an action, there must be in the plaintiff a right of present possession, as well as of property, (a) So in Paine & Whitaker vs. The Sheriff of Middlesex, 21 Eng. Crown, L. R., 390, goods on hire were wrongfully taken in execution, it was held that the owner could not maintain trover. This ruling, it must be borne in mind, was by Mr. Justice Abbott. For it will hereafter appear, that he had previously carved out an exception to the general rule. In Bell vs. Monalinn & Love,(b) December, '38, this Court conformed very properly to the general rule, which I have stated. There, it was held, that the owner of a horse, who had hired him, could not maintain trespass against a constable who seized him in the possession of the bailee, and sold him. But to this general rule, there is, as I conceive, one exception, which is, if the bailee do an act inconsistent with the bailment, and *calcu- r;(:^q/> lated to defeat the right of property of the owner, he may treat •- the bailment as ended, and maintain trover. In Loeschman vs. Machlin, 3d Eng. C. L. Rep., 359, it was ruled by Abbott, J., that the hirer of a piano, who sends it to an auctioneer to be sold, is guilty of a conversion, and so is the auctioneer, who refuses to deliver it, unless the expense incurred be paid. That decision, regarded as an exception to the general rule, upon the principle which I have pointed out, makes the two decisions of that great Judge, Abbott, in the case o? Paine d Whitaker vs. The Sheriff of Middlesex, and Loeschman vs. 3Iachlin, perfectly reconcilable ; otherwise the conflict would be apparent and indefensible. In North Carolina, Andrews vs. Shaw, 4 Dev., TO, the following case is stated. William Butler conveyed a slave to the plaintiff', in trust for his (Butler's) family. The trustee hired the slave for a year to Butler, who removed to a distant part of the State, and sold him to the defend- ant. The Court held that during the year of hiring, trover would not lie. This point, it will be seen, is in conflict with Abbott's decision in Loeschman vs. Machlin, and if it was necessary for the purpose of this case, I should be inclined to overrule it, and follow the English decision. But it is not; for 1 rest my judgment upon a ground perfectly consistent wiih it. In it, the trust seems to have been a general one, and that there was no right of actual possession, in the cestui que trusts, or that Butler's possession was their possession. This hiring was not, therefore, incon- sistent with the trust. It might have been necessary to give it eft'ect.. But in the ease before us, the deed of trust declares the duty of the trustee, (the plaintiff) to be "to permit the said Jane Rebecca Brown, during the term of her life, the rents, profits, issues, interests and emolu- ments of the said tract of hand, heretofore mentioned, together with the (a) See Spriggs vs. Camp, 2 Sp. 181. Bellum vs. Wallace, 2 Rich. 80; Supra, 299. An. (fi) 3 Hill, 30. Ar. Vol. I.— 41 626 COLUMBIA, MAY, 1842. VOL. II. [*436 profits, hire, labor and services of the slaves aforesaid, and the use, profit and increase of the stock and furniture aforesaid, to Jiave, use, x>ossess and enjoy, without any limitation or condition whatever. Provided always, the same shall in no wise be subject to the control, debts, con- tracts, or intermeddling of any future husband, or other person what- ^ -. soever; and provided the said personal property *above men- * '-I tioned shall not be removed out of the district of Charleston with- out the consent and approbation, expressed in writing, of the said John Clarke." The cestui que trust, Jane Rebecca, after the execution of this deed, intermarried with Baxter, to whom the plaintiff hired the negroes, first in 1838, as evidenced by his note of hand, and they were in the pos- session of the cestui que trust, and her husband, in Orangeburg district, when seized in execution in January, 1841. The plaintiff, it was proved, said that he had hired them, that year, to the husband. If this be true, it was in direct violation of the trust, which was to permit Mrs. Baxter to have the services of the slaves, and that they should, in no way, be subject to the control, debts, or contracts of her husband. The contract of hiring, as between the husband and trustee, is void. For the trustee is to represent and to protect the wife's interest. He is to sue for her, so that she may be enabled to enjoy the property, according to the trust. If the hiring is good, and the sale by the sheriff good for the year, then the property is, in direct contradiction to the deed, made liable to the control, debts, and contracts of the husband. This cannot be allowed ; and the contract of hiring between the husband and trustee must be treated as in violation of the rights of the cestui que trust, and void. The motions are dismissed. Richardson, Evans and Earle, JJ., concurred. See Rice ads. Burnett, Sp. Eq. 589. An. CASES AT LAW AEGUED AND DETERMINED IN THE COURT OF ERRORS OF SOUTH CAROLINA Cljarkstoit ^fcbrimrj), 1842. The State vs. The Bank op Charleston, (a) After a bank has suspended specie payments, its charter (in contemplation of law) is forfeited ; hut where, after its charter was thus forfeited, it continued to exist (le facto, and exercised all the privileges and immunities previously granted by the Legislature, and the Legislature afterwards, by subsequent legislation, declared that the corporation shall exist — it was held to be a waiver by the State of previous forfeiture. Before Butler, J., at Charleston, May Term, 1841. This was a scire facias to vacate the charter of a bank, for having suspended specie payments ; and came upon a demurrer to the defend- ant's plea. The pleadings are as follows : DECLARATION. State of South Carolina, ^ t -, „ T^ ' > io wit. Charleston District. ) The State of South Carolina sent to the sheriff of Charleston district aforesaid, its writ in these words, that is to say : The State of South Carolina, to all and singular the sheriiFs of the said State, greetinfj: Whereas, in and by a certain Act of the General Assembly of the said State, duly made and ratified on the seven- teenth daj' of December, in the year of our Lord one thousand eight hundred and thirty- four, entitled " An Act to establish and incorporate another bank in the city of Charleston," after reciting that it was beneficial to the citizens of the said State, that another bank should be established in the city of Charleston,* r^xio in the district of Charleston and State aforesaid, it was provided and '- enacted, that subscriptions should be n^ccived for the purpose of raising the sum of two millions of dollars, to constitute the capital stock of the said bank, by certain persons, at certain places and on certain days, in the said Act mentioned and speci- fied ; and that all subscribers to the said capital stock, paying their subscription moneys respectively, and all persons who might afterwards become stockholders in the said company, upon complying with certain terms and conditions precedent, in tlie said Act mentioned, should be, and were thereby, incorporated, and made a corporation and body politic, by the name and style of " The Bank of Cliarleston, South Carolina," and should so continue until the first day of June, in the year Note. The pleadings are given entire in this case, believing that they will be acceptable to the profession, as valuable precedents for future reference. — Rep. (a) See Tlie State vs. Bank of South Carolina, 1 Sp. 433, 537. An. 628 CHARLFSTO^", FEBRUARY, 1842, VOL. II. [*440 of Piir Lord one thousand eight hundred and fifty-six ; with power articulars set forth in the defend- ant's special plea, and should therefore be decided on its own separate merits. I am satisfied that the special plea of the defendant is a suQi- cient and valid bar to the proceedings of the plaintiff; and I therefore overrule the ])laintiCf's demurrer, and award judgment for the defendant on the plea. The Attorney General, on behalf of the State, appeals from the judgment of his Honor, and moves that tlie same may be reversed, and judgment awarded for the State, on the several grounds of appeal taken from the judgment of his Honor in the case of The State against The Bank of South Carolina, which is above referred to by him, a copy *of which judgment and grounds of appeal is hereunto r* 44c annexed ; and upon the further ground : '- That the matters set forth in the plea of the defendant, in the present case, do not constitute a bar to the action of the State. Curia, per Harper, Ch. If the charter of the defendants was for- feited by the suspension of specie payments in 1837, and the forfeiture were incurred from the time of the act committed, we are of opinion that the Act of 1839, which is pleaded, must be regarded as a waiver of the forfeiture. If the process of quo warranto would be a proper one to try the question of forfeiture, it follows of necessity that the forfeiture is regarded in law as incurred from the time of the act committed. The very foundation of the proceeding is, that the defendants are guilty of 632 CHARLESTON, FEBRUARY, 1842. VOL. II. [*448 usurpation, by exercising their corporate francliise after the act by which forfeiture is incurred. la the case of The King vs. The City of London, so mucli referred to on both sides, and which is the earliest case we have upon the subject, to the quo warranto, the city pleaded its charter. To this the Attorney . General replied the acts which were relied on as the causes of forfeiture, and concluded "by which the mayor, commonalty and citizens, the privi- lege, liberty and franchise of being a body politic and corporate, did forfeit, and afterwards, by the time in the information, that liberty and franchise of being a corporation did usurp upon the King;" and ac- cording to this was the judgment of the Court. 8 Cobbett's State Trials, 1071. It was objected by Sir George Treby, the City Recorder, that if the defendants were charged with usurpation and not being a corporation, whether by forfeiture or otherwise, the information should uot have been against the city by its corporate name, but against par- ticular persons — the individuals composing the pretended corporation. Ibid. 1118. To which Sir Robert Sawyer replied, that until seizure they continued a corporation de facto. Ibid. 1154. Both seem to agree that de jure, the forfeiture is incurred from the time of the act committed. Sir James Smith's case is relied upon as tending to show that the quo *iiQl worrayito is not the proper process, and that the ^corporation -' continues till judgment. The question in that case, as reported in 4 Mod. 58, seems to be wiih respect to the validity of the judgment against the City of London. Lord Holt is made to say — " A corpora- tion may be dissolved, for 'tis created upon a trust ; and if that be broken, 'tis forfeited ; but a judgment of seizure cannot be proper in such case — for if it be dissolved, to what purpose should it be seized." " Therefore, by this judgment in the quo ivarranto, the corporation was not dissolved ; for it doth neither extinguish nor dissolve the body politic." "Whenever any judgment is given for the King, for a liberty which is usurped, 'tis quoad extinguatur, and that the person who usurped such a privilege, Hibertat, ch-.,' nulla tenus intromittat, &c., which is the judgment of ouster. But the quo ivarranto must be brought against particular persons." But if the quo warranto must be brought against particular persons, it should seem to follow that by forfeiture, the corpo- ration is dissolved both de facto and de jure. This would be a most dangerous doctrine, especially with regard to banlvs, whose contracts and transactions with third persons are so numerous. But in Skinner, 311, (where the judgment is more fully reported under the title of the King vs. Tlie City uf London;) nothing of this sort appears, and the judg- ment is made to turn on a totally diiferent point. It is said, the decision must depend, not on the judgment which was actually entered, but on the recital (jX it in the Act of Parliament restoring the privileges of the city of London. The statute recites the judgment, "the which is, that the liberty, francliisc, and privilege of the city of London, being a body politic, may be seized" — instead of "the liberty, &c., of being a body politic." The statute was held to be conclusive, that the body politic continued to exist; for a corporation may continue to exist, though de- prived of its franchises. The case of the King vs. Amery, 2 T. R. 515, was one in which ^449] STATE VS, BANK OF CHARLESTON. 633 there was a judgment on a quo warranto against the City of Chester, similar to that against the City of Loudon — that "the liberties, &c., shonld be seized" but " quosque," until the further order of the Court. Against the judgment it was argued that there could be no judgment * of seizure undev the quo ivarranto ; if any, it should have been r:(91 "'" '■"'"■'^ *tlierefore declared that it could not take etiect. But in the cas(! now b(;fore the court, the habendum is consistent with the premises, and they arc botli ])crfect and complete ; the estate conveyed there does take cllect, by vesting in Pririgle and Chartrand a present interest, and an absolute entate ; and that estate untrammelled and uncontrolled by any illegal condition, inserted in the terms of stipulation. Tlu! formal parts of a deed are, 1. Tlie premises. 2, The hahendum, which det(!rniinr!H wliat estate or interest is granted. .3. The terms of stipulation, which prescribe the conditions or terms upon whicli a grant is made. 4. Warranty. 5. Covenants. (J. Conclusion. The first part of a deed lias priority in law as well as in fact. 3 Dyer, 272 ; 14 Viner, 51, 50, lOU, 141, 145. *459] CARMILLE VS. ADM'r OF CARMILLE ET AL. 639 Judge IIiTOKK, in delivering tlio opinion of the Court of Appeals, Harp. L. R. 493-4, uses the following language, — "Where the premises of a deed arc not complete and perfect, resort must be had to the hahend ma to ascertain the inten- tion of the parties. It may then limit or. extend or frustrate the premises. But when the premises are complete and perfect, and the habendinn is at variance with them, and they cannot stand together, the hdbendum is void," not the deed. When Carmille executed the deed, ho knew the law. I don't mean merely the common jiresumption, that ho, like every other man, knew the law, but his will shows that he was fully aware of the Act of 1820, and his counsel who drew the deeds, advised him of their eifect. lie knew then that the deed he executed was a deed of gift, conveying and intended to convey an absolute and indefeasible es- tate to the grantees. By the deeds then, and under our own decisions, as I shall presently show, Carmille divested himself, his heirs and assigns, of all interest and estate which he held in the property, and passed to the grantees an interest in present!, which might have been levied upon and sold by the sheriff, for the debts of Pringle or Chartrand, or which, under certain circumstances, might have been attached by their creditors. Carmille left property, besides these negroes, amply sufficient to pay his debts. His creditors are not claiming. But suppose the creditors of Pringle and Chartrand were before the court, under an issue made up to try the right of property, as between them on the one part, and Carmille in his life *time, or his heir or legatee, after his death, on the r^Anr, other. Can there be a doubt as to what would be the instruction of the '- court to the jury, under the evidence as now adduced? Suppose Carmille in his lifetime, had brought an action of trover against Prin- gle and Chartrand for these negroes. Would not he have been estopped by the deeds ? If he would have been, then all those claiming under him are so likewise. And allow me to ask the attention of this court to the opinion of the Court of Appeals, as delivered by Mr. Justice O'Neall, in the case of Cline and Caldwell, 1 Hill, 425, 6, in which opinion the present Judges, David Joh.xsox and Wji. Hakper, concurred ; and under the law as there laid down, how is there any possibility of this court coming to the conclusion that the present claimant can recover. What says the court in that case at p. 425. — " That the deed from Jos. Caldwell to Cato Gallman was good as against the grantor, and all those (claiming as volunteers under him, even if it had been intended as an evasion of the Act of 1820." Again, at p. 426. — " The defendant, his principal and the intestate, are all in the place of Caldwell, and take no other or better title than he had himself ; after he had conveyed to Cato Gallman, he had none, and they of course had none.''' Just so here the complainant can take no other or better title than Carmille him- self had, after he had conveyed to Pringle and Chartrand, the defendants. He had 7ione, and she of course has none. How then, I would most respectfully submit, can lier claim to this property, in which it is decided she has no title, be sustained ? It is said, however, that to sustain the deed is contrary to the policy of the country, and at war with our peculiar institutions. W'ith this the court has nothing to do. The province of the Bench is to declare what the law is ; not what it ought to be. But I deny the position as to the policy of the measure AVhat is the court asked to do ? What is the question before the court ? Is it whether these negroes are bond or free ? No. It is simply whether they are the slaves of the plaintiff, or the defendants. This is the only issue made by the pleadings and by the evidence, and can the court travel beyond these, and base their decision on Mdiat may or may not be presumed to be the intention of the parties, after the judgment of the court is pronounced ? Besides, if presumptions are to have any weight, I *would ask of the parties before the court, which r^Ac-i is it most likely would be most willing to carry out this attempt to evade '- the law ; viz., whether the defendants, jierfect strangei-s to the negroes and to Carmille, would be most anxious to tly in the face of the law of the land, or whether the complainant would be willing to hold in the bonds of servitude, and bind with the chains of slavery, two brothers and sisters of the half blood ? So 640 CHARLESTON, FEBRUARY, 1842. VOL. II. [*461 much for the morale and policy of the case, with which, however, we have nothing to do. Take the case of A, the owner of a menagerie of great value, composed of animals /rce at ferocissimce naturce, and he was to execute a deed thereof to B, in the language of the premises and hahencJnm of this deed, and in the terms of stipulation he was to insert words to the following effect, viz. : "In trust, never- tlieless, and to, for, and upon the special use, trust, confidence, and condition" that the grantee within ten days should turn the wild heasts out in the public square. The deed is signed, sealed, and delivered, and the grantee takes posses- sion, and after the expiration of the ten days he gives the grantor notice that he intends to keep the animals, and to exhibit them for his own benefit, and proceeds to do so. A then brings his action vs. B. The deeds are produced, and the Court find B in possession of the deeds and of the property, (as in the present case.) "What, I would ask, would be the judgment of the Court ? The fact is, that in the deeds now before the Court, the premises and Jiabendum being "perfect and complete," the terms of stipulation must be regarded merely as surplusage, being nothing but the expression of a wish or a direction, which the party at the 'time of making it, knew to be idle and useless. The deeds, therefore, are valid to pass the estate, and the negroes are the slaves of the de- fendants. A gift, if you please ; but where is the law which says a man shall not give away his own property ? and a gift, even in exclusion of the legal heirs ; but show me the statute which prohibits a man, either by deed or will, from disin- heriting all or any of his children ? The case of the Bishop of Durham in 10 V. is relied on, and is indeed the foun- dation of the complainant's argument. jN'ow, I would respectfully submit that the decision in that case is no authority in this. It may be very good law for Westminster Hall, but not for this country. In England, chancery makes and models men's wills to suit their own notions of j^Ac-i^-, *the law of the land and the i^olicy of the government, and vouchsafes to "" -' allow no trust but such as they can meddle with, and execute or annul. The grand feature of our government and the ruling principle of our jurisprudence is, that the magistrate does not interfere with the jirivate coircerns of the individual. The reasons as connected with the policy of the government, not the people, which influence the judgment of the Court at Westminster Hall, do not exist in this country. Our Chancery is not the Chancery of that Bench, and indeed English law has nothing to do with this case, and the less weight it has in this country, in this or any other case, the better. We have never departed from the beaten path of British jurisprudence but the efTeet has been to elevate tlie stand- ard and improve the condition of the law. What they gave us as a sealed book, we have made an open letter. The temple of justice here is dedicated, not to a king and a great landed aristocracy, but to the sovereign people. The law of the land here is, that the owner of property has the right of parting with the possession, and either by deed or by will, of divesting himself, his heirs and assigns, of all title and estate therein. Where is the statute here, or even a decision of our courts, which gainsays this position ; and in England where gifts in mortmain were against the policy of the government? But even there, did tlie Court declare those gifts void until the statute had said so ? In this State, where a mai) gives to anotlier, for an object which is contrary to law, the C(,urt of Appeals, in ('line and CaldweJI, and Linam and Johnson, have said, lotidim rcrhis, the title has x>'issed from him and his heirs for ever. Where tlien is the descent to the heir or the title to the adnunistrator ? The Court then, under the law, as shown to be settled by their own decisions, cannot say the heir shall take, nor can they make a title for the administrator. Tliey must then leave the projierty where tliey found it, in the hands of the grantee ; ho taking it, as both grantor and grantee knew, at the time of the exe- cution of the deed, under a condition or trust, if you please, which being con- trary to law is void, and the execution of which would subject liim personally to the pains and jjenallies of the law, if any, in such case made and jjrovided. Till! sole (.lijecl of {he. present proceeding is to revert tlie title to the property #_j(..^, in llie administrator or the heir, which by the cases * above quoted it has been shown was out of the ancestor at the time of his death. This clearly '463] CARMILLE VS. ADM'k OF CAKMILLE ET AL. 641 could not have been done for the ancestor, if he had asked it in his lifetime, and it thercfon! cannot be done for the heir after his death ; it is beyond oven the extraordinary powers of the Court of Clianciuy. And, if it could have been done for the ancestor, where would have been tlie reason or sense of the Act, which would have given property back to a man who had shown himself, in the very act by which he divested himself of the title, viz., to use the language of the cliaucellor, by an undisguised attempt to evade the law, as utterly unworthy of the trust and responsibilities which the possession of property necessarily imposes ? But again, the case of the Bishop of Durham is a case of a trust under a will ; this is the case of a condition in a deed. The Bishop came into court with the property in his possession, as sole executor. It has been urged that this is a trust, not a condition ; now although every condition is not a trust, yet every trust is a condition. But as I have said, this is the case of a will ; so are the cases of Bostick and Walker Fable and Brown, lloveij and Deas, Monks and Field, and liham'e and Dangerjield. But the cases of Linaia and Johnson, and Cline and Caldwell, were cases of deeds, and the deeds were sustained. And again, the case of the I3ishop of Durham don't apply, even admitting that its authority has been, as is too often the case, followed by American j udges, merely because it is English law. The question which is made in this case could not legitimately have arisen in that. In that case, as is stated in 9 Ves. p. 397, "The Bishop, by his answer, expressly disclaimed any beneficial interest in himself personally." A case is only authority in reference to the issues made by the pleadings, and can be re- garded as settling no other principles than such as are involved in those issues. And I almost feel warranted in saying, that if a case like that of the Bishop of Durham came up before American judges for their consideration, and if it could receive, as it would deserve, a fair and candid deliberation, unbiassed by English law, and untrammelled by English decisions, that the judgment of an American court would be the reverse of the Lord Chancellor's decree. Another aspect in which this case is to be viewed is presented by that portion of the bill which pra^'S that the deeds may be set *aside, and one ground r^^g^ taken is, "that the same are void and unavailing, so far as they dispose of more than one-fourth part of the clear value of the estate of the said John Car- mille, after payment of his debts, under and by virtue of the Act of Assembly, entitled, 'An Act to provide for the maintenance of illegitimate children, and for other purposes therein mentioned, ' inasmuch as the said deeds were made for the use and benefit of a woman, the said Henrietta, with whom Carmille lived in adul- tery, and for the use and benefit of his bastard children by her." This ground, it seems to me, may be dismissed with a single remark. In the first place, at the time of the execution of the deeds, Carmille had neither wife nor child ; and secondly, Henrietta being a slave, his children by her are not bastards in the eye of the law; the A. A. then of '95 does not apply. The next ground taken in the bill is, that these deeds ought to be set aside, and the property ordered to be delivered up to the administrator for the benefit of the heir. First, because the deeds are voluntary and without consideration ; and second, because tliey are on trust void in law. The Com! of Equity does sometimes interfere on behalf of creditors, but it has seldom happened, if this is not the first time, that application lias been made to the extraordinary powers of a Court of Chancery on behalf of a volunteer claim- ing under the grantor, to set aside a voluntary convej-ance. A voluntary transfer by deed of a chattel in trust is valid, as between the par-- ties, without any consideration appearing. Brue vs. Wintlirop, 1 John. C. R. 329,. A voluntary deed of settlement fairly made, is always binding in equity upon the grantor, unless there is clear and decisive proof that he never parted, or intended to part, with the possession of the deed ; and if he retains it, there must be other circumstances besides the mere fact of his retaining it, to show that it was not intended to be absolute. Souverbye vs. Ardcn, 1 John. C. K. 24(i. In the case now before the court, the deeds and the property are both found in the possession of the grantee. Besides, the deeds which bargain, sell, and deliver this property to the grantees, bear date on the 2Gth February, 1830, on which day Vol 1—42 642 CHARLESTON, FEBRUARY, 1842. VOL. IL [*464 the verdict of tlie jury has established their due execution, and the hill in this case was not filed until the 16th of May, 1835, a period of more than five years. *A voluntary conveyance or settlement, though retained by tlie grantor J in his possession until his death, is good. 1 John. Ch. Kep. 329. There are many other cases wliich might be referred to, but it is useless to multiply authorities on this point. The Court of Equity here, like the English Chancery, has been known to inter- fere with people's wills, but not with deeds, except in cases of fraud, mistake, or where there is great equity. Now this is clearly no case of mistake, nor can we discover any very great equity in the application which is made, on behalf of one child of Carmille, to obtain a decree declaring his four or five other children slaves, and ordering them to be sold. Is it then a case of fraud ? There is no fraud as to Carmille's creditors, for there is no proof that he was in debt at the time he executed the deeds, nor does it ai^pear that they were made with a view to future indebtedness. There could be no fraud as to the heir, for Carmille was not even married at the time. "To invalidate a conveyance, the party must allege and prove it to be fraudu- lent," as said bv the court in the case of Jones and Briggs vs. Blake and wife, 2 Hill's Ch. Rep. 629, at p. (336. In tlie case of Smith and Henry, 1 Hill, p. 16, the court declared the deeds void. But that was done on behalf of creditors, and for tlieir benefit. Here the creditors are not parties, except incidentally, as represented by the administrator, who is one of the defendants, and even he is not claiming on their behalf, for it is manifest that the estate of the intestate, exclusive of these negroes, is amply sufficient for the payment of his debts ; at any rate, if there be a deficiency it ought to have been made to appear, but it is in fact not even alleged. The rule of the court always has been to support rather than destroy an instru- ment that has been fairly and solemnly executed, and I would respectfully sub- mit tliat the bill ought to be dismissed as to the defendants Pringle and Chartrand. 1st. Because the complainant, as against them, having made out no case either of fraud, mistake, or great equity, sufiicient to imi)air the validity of the deeds, they must stand. 2d. Because her claim is barred by the statute of limitations, more than five years having elapsed from the date of the deeds, viz., 26th February, 1830, to the filing of the bill on the 10th May, 1835. *4fin ^^' ^"-^c^iise the complainant could take no other or better *title than -' Carmille himself had, after he had conveyed to Pringle and Chartrand ; he, under the cases of Cline and Caldicell, and Linam and Johnson, had no title, and slie of course has none. She, therefore, having no interest, cannot sustain the bill. Ashby, for the motion also, said, 1st, The conveyance is absolute ; it is a gift. Cited 9 Ves. 232 ; 9 lb. 403. Gift for a horse would not be a trust. Dud. 220. What difierence is there between a gift for a slave and for a horse ? both are chat- tels, 10 Ves. 536; Co. Litt. 207; 2 B. C. 156, 157; Foub. Equ. B, 1, c. 4 ; 2 Wilson, 341 ; 11 Mass. 374; 2 B. & Aid. 368. A party shall not avoid his own deed on account of his own fraud. 2 Ves. Jr. IIG ; 3 P. Wms. 236 ; 6 Ves. 747 ; 2d ground, 7 Stat, at Large, 443 ; 2 lb. Act 1820, 139 ; Bin. Rep. 196 ; 1 Hill C. R. 134 ; 2 Hill C. R. 313 ; 3 Leigh, 492 ; 8 Cranch, 135 ; 5 Page, 114; 3 B. C. 271 ; 1 Strange, 447. A bequest to slaves is not void. Mr. Bailei/. contra, cited Lewer on Trusts, 175; 22 L. Lib. (New Series,) 89* U tlie trust Void or unlawful ? Cited 2 J'. Wms. 361 ; 1 Ves. 108 ; 3 Don. 194 ; 1 8. & S. 290 ; 2 Ves. & Beam. 294 ; 18 Ves. 463 ; 3 M, & R. 262 ; 1 E. 262 ; 1 lb. 508 ; 6 Ves. 52; 9 Ves., Morrice v^. Bishop of Durham; B. Ab. Tit. Con. 399 ; 97 Law Lib.; 10 Ves. 527. If he says, I give in trust, and it cannot be ascer- tained or executed, it is for the next of kin, 328. 1 Sch. & Lef. 22 Law Lib. 84; 2 At. 156; 6 Ves. (i8. A l^ill filed for the discovery of an illegal trust, a demur- rer will lie sustained. 3 M. 3!t'.t ; 2 B. 2(19 ; 1 Vern. 59, decides that eciuity will not enforce an illegal trust. 1 Bailey, 632. There can be no emancipation until the negroes are turned loose. ^466] CARMILLE VS. ADM'r OF CARMILLE ET AL. G43 The Act of '20 makes the deed void. 2 Hill C. R. 304; 1 Bailey, C32, it was supposed had decided this very question. The second deed, the first deed being bad, must be so too. 2 Devx. E. Cas. 440; 1 lb. 493; 1 Dev. L. Rep. 189 ; 2 Law Repository, .557 ; 2 Hawk. 120. The A. A. 1841 settles the question. It is retrospective in its operation. 1 Kent's Com. 408, 409, 455. Hunt, in reply, said the law was not retrospective, but prospective, and admits the law as it formerly was. The legislature have no right to pass such an Act, if it is refrarded as retrospective. Mr. Ihint contended that the Act of '20 was prospective by *every word, r* (^^ 3 McC. 93. All laws ought to be prospective. There is not one of the '- authorities of the cause on the other side that covers this case. In any point of view he cont(mded the deeds were good. The ("ourt of Equity does not decree for the distribution until administration. As long as the statute is iinchanged, there is no illegality in the trust. Every resulting trust must arise eo iiistante with the execution of the deed. Curia, per O'Neall, J .The case of Morrice vs. The Bisliop of Dur- ham, 9 Yes. 399, and the same case, 10 Ves. 521, was a trust to dispose of the ultimate residue of the testatrix's estate to such objects of benevo- lence and liberality as the Bishop of Durham in his own discretion shall most approve of; and the Bishop was appointed sole executor. The master of the rolls and the Lord Chancellor ruled that this bequest was a trust, and conferred no personal benefit on the legatee ; but that it was too indefinite in its creation, and could not therefore be executed ; and that as it was an estate undisposed of, in the hands of the executor, a trust resulted for the next of kin. From this summary of that case, it will be seen that it cannot reach this case. For there, tiiat was a dispo- sition by will, and the fund was in the hands of the executor, whose whole estate in equity is regarded as upon trust and confidence. So too the trust was not so declared that the objects of the testatrix's bounty could be ascertained from the will, and hence it could not be supported. The case before us stands upon deeds executed and taking effect in the life- time of the intestate, and the case must be considered as if the intestate was himself the complainant, asking that the deeds should be set aside. Without appealing to foreign adjudications, our own conclusively show that such a bill could not be sustained. For the complainant there would stand upon this footing, that he claimed to be relieved from his own act done in fraud of the law. Such a notion has no countenance any where. That the administrater, and consequently the distributee, seeking to avoid their intestate's deed for fraud, actual or legal, on his part, must claim in his right, and cannot have any superior equities, have been so often decided, that it is not necessary to cite authorities to prove it. Looking at this case in this point of view, there could be no diffi- culty in saying the complainant cannot recover. But I think the case deserves to be examined in *another aspect, and 1 am satisfied there is nothing in any point of view, in which I am able to regard the case, which ought to defeat the deeds. The Act of 1820(") (Acts of '20, page 22) merely declares "that no slave shall hereafter be emancipated but by the Act of the Legislature." Here it will be observed, that the Act does not declare a deed conferring emancipation void. It cuts off emancipation altogether, except by Act. If emancipation («) 7 Stat. 459. An. [*468 644 CHARLESTON, FEBRUAET, 1842. VOL. II. [*468 depended upon the execution of the deed alone, then the deed being wholly inoperative, the slave in such case would remain the property of the grantor, and no harm would be done. But the Acts of 1820 and ISOU(a) are regarded in pari materia; and when so construed, they make this legal provision, that a slave cannot be emancipated in this State, "but by the Act of the Legidature,^^ and if emancipated without an Act, that then such slave so emancipated, shall be liable to seizure and conversion to his own use by any person. Frazier vs. Frazier, 2 Hill's C. R. 304. Johnson vs. Linam, 2 Bail. 137- To constitute au emancipation, something more than the execution of a deed is necessary : there must be a " parting with the possession of the slaves by the owner or owners," and thus "permitting them to go at large and act for them- selves." Lenoir vs. Sijivester: Young vs. The Same, 1 Bail. G42. An invalid attempt to emancipate, so long as the possession remains unchanged, or the slave is in the possession of a legal owner, does not sub- ject him to seizure ; Cline vs. Caldwell, 1 Hill's Rep. 423. These jn'inciples have the sanction of so many cases decided by our own Court of Appeals, that I suppose they will be regarded as settled law. Having in a greater or less degree participated in the decision of them all, I \till not now attempt to fortify them by any other reasoning than such as is contained in the judgments pronounced in them. Taking the law to be as I have stated it, how can it be pretended by the distributee of the donor, that slaves which by him have been con- veyed to others, upon the trust and confidence that they would suffer them to work out tlieir own maintenance, upon the slaves paying an annual hire of one dollar, are to be regarded as emancipated contrary to the Act of 1820 ? They are still, to all intents and purposes, slaves. The persons to wliom they are conveyed (Pringle and Chartrand) have the right to govern and protect them. The hire which they })ay, h.owever, inconsiderable, is a constant recognition of servitude. At law, there *ifiQl "*^^^^" could be a pretence that the slaves were not the property* -' of Pringle and Chartrand, for at law the trust would not be noticed, unless it had been executed by emancipating the slaves. The State vs. Jihame and others, Dudley's Law Rep. Bhame vs Ferguson and others, Rice's Rep. 196. But if it could, then it is equally clear that the donor and those claiming under him, could not at law avail themselves of this objection. Cline vs. Caldwell, 1 Hill, 423 ; Chappell vs. Brown, 1 Bail. 528 It is only in equity that the trust can be looked to, and there the question arises which is now made, is the trust unlawful ? and which, as I have already shown, would (if it were) constitute no ground upon which the deeds could be set aside. The distinction is, where any thing is to be done to enforce an unlawful trust, equity will not set it up or enforce it, or in any way aid its execution, even against the party creating it. But where the case is reversed, and the donor comes to be relieved against it, his position, as the party perpetrating the unlawful act, closes llie Court against him, and he is left where he ought to be, to stand on the law ; if that heli) him, it is well ; if not he is punished, as he deserves to be. Had the Act of 1820 declared all deeds, upon trust, for the benefit of slaves, or intended to secure their freedom, void, then the parties repre- ('/) 7 Stilt. 442, § 7, 8, 9. *469] CARMILLE VS. ADM'k OF CARMILLE ET AL. 645 senting the intestate would have had no difficulty. For in that case they could have rested on the taw, and succeeded. But here their misfortune is, that there is no such provision. The utmost which can be contended for is, that the slaves have been emancipated contrary to law. For Pringle and Chartrand have the actual possession, and may, I suppose, have suf- fered the slaves to work out their own maintenance, paying an annual hire of one dollar. Admit that to be emancii)ation, what is the consequence ? Not that the slaves go back to the donor, Init that they are liable to capture ; and equity has no right to say any thing else, for such is the lex scrlpta. But the question whether the trust is lawful, is worth e.xamination. I confess I have never been able so to regard it. The object of the Act of 1820, was not to deprive a man of the right to do with his own as he pleases, but to prevent him from conferring freedom " within the State" upon a class of people, as to whom her policy demands that they should be slaves within her limits. If the deed, construed with its trusts, still makes the slaves of the donor, the slaves of the donees, the fact that he has desired that they should give to them the fruits of their labor, cannot be unlawful. They still are slaves chattels *personal, they still r:j: <-a are under the dominion of masters, and must so remain. For if ^ Pringle and Chartrand ever relax their hold upon them, and sufier them to go at large and act for themselves icithout their restraint, actual or constructive, they would be liable to seizure, and would become the slaves of the captors. Kindness to slaves, according to my judgment, is the true policy of slave owners, and its spirit should go (as it generally has) into the making of the law, and ought to be a ruling princi])Ie of its construction. Nothing will more assuredly defeat our institution of slavery, than harsh legislation rigorously enforced. On the other hand, as it hitherto has been, with all the protections of law and money around it, it has nothing to fear fvom fanaticism abroad or examination at home. If it was so that a man dared not make provision to make more comfortable faithful slaves, hard indeed would be the condition of slavery. For then no motive could be held out for good conduct ; and the good and the bad would stand alike. Such has never been the rule applied to our slaves, and such I hope it never will be. I am satisfied that there is nothing unlawful in the trust of the first deed, and if it be necessary to place the case on that ground, the Court are prepared to so rule. On all the other grounds, however, previously considered, we are satisfied that the deed is good and must have effect. The second deed is also, I think, good and valid. Tiie only thing which could effect it would be the unlawfulness of the trust, if it be unlawful. It is a good common law conveyance to Pringle and Chartrand of two slaves, for the use of other slaves conveyed to them. In such a case Pringle and Chartrand having the possession, have the right to say, it is a naked conveyance to them ; and that the trust is mere matter of advice and recommendation, which they may or may not regard. But suppose the trust is to be noticed, then it would be a gift to the slaves of Pringle and Chartrand, which is, I think, a gift to the owners. According to Fable vs. Broicn, 2 Hill C. R., 318, such a gift, even by way of devise, would prevail in equity. I do not agree to tlie reasoning of that case, however ingenious and able it may be. I concurred in the result merely. For I 646 CHARLESTON, FEBRUARY, 1842. VOL. IL [*470 hold that the personal property of the slave is the property of the master, and that anything personal given to the slave is given to the master ; and this I understand to be the opinion of the Court of Errors. Our legisla- ^ _,-, tive Act of 1740, § 34, P. L., 121, shows that *unless prohibited -' by Act, slaves might, by consent of the master, acquire and hold personal property, and that even in prohibited cases, a particular course altogether different from escheat must be pursued to subject the property of the slave to forfeiture. Our decided cases, with the exception of Fable vs. Broicn,{a) and the guardian of Salhj vs. Beathj, 1 Bay, 260, acknowledge the right of the owner of a slave to all his or her acquisitions. The case of the guardian of Sally vs. Beafty, denies the right of the owner, under special circumstances, to the acquisitions of a slave, and sustained the freedom of a negro, purchased by a slave out of her own earnings. That case goes further than I desire to go ; but it is ample authority to prove, that by the law of this State a slave might acquire j:)ersonal property, and that such a thing as an escheat was not an incident of it. The case of Hobson vs. Percy, 1 Hill, 277, holds that a master in possession of the personal property of his slave, may maintain trespass for an immediate and forcible injury done to it. That case was for an injury done to an article of property, which by the Act of 1740, § 34, slaves are prohibited from owning, and yet being in the possession of the master, it was regarded as his property. Looking back over our legislation, and our decided cases, and the usages of our people, I think that we are well sustained in saying that a slave may acquire and hold in possession personal property, {not prohibited to him or her by Act of the Legislature) with the consent of the master or mistress, and that such property is in laiv to be regarded as the property of the owner of the slave. Both deeds are therefore good, and must be sustained, unless by the Act of 1841, (11 Stat, at Large, 154,) entitled "an Act to pre- vent the emancipation of slaves, and for other purposes," they are rendered inoperative. That Act has been supposed to be retrospective, but on carefully considering it, I think all its provisions are future, and I rejoice that they are so. For I should have thought it a stain upon the purity of our legislation, if it had been true that the Act had been passed to defeat vested rights. That such an Act would have been contrary to our own constitution, which has declared that " no free man shall be disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or in any manner deprived of his life, liberty or property, but by the judgment of his peers, or the *472T ^^^"^ ^^ ^''^ land," seems *to me to be too plain to admit of argu- -• ment. Tlio motion to reverse the circuit decree is granted, and the complainant's bill is dismissed. Johnson, Harper, Richardson, Evans, Earle, and Butler, CC. and JJ., concurred. Wardlaw, J., absent at conference. Johnston and Dunkin, CC, did not sign the opinion. (") Infra, 4^7 ; 8 Rich. 32 ; 2 Rich. 425. Besifles tho cases cit(;d in this case, see Skrine vs. Walker, 3 Rich. Eq. 267 ; also, Vose vs. Unnnahnn, 10 Rich. 4G5 ; Esche.utor vs. Dangcrftcid, 8 Rich. Eq. 95; iJoufjfifirti/ vs. Doiiglurtf/, 2 Htrob. Eq. 6:5 ; Guilmetto vs. Harper, 4 Rich. 190 ; Vin- yard vs. Passaluigue, 2 Stiob. 5:JG ; uext case ; Act of 1841, 11 Stat. 154. Ati. B THE COURT or ERRORS. Mary Bowers et al. vs. Thomas B. Newmax. 1. A free person of color, by the laws of this State, may take and hold, convey by deed, dispose of by will, or transmit to his heirs at law, both real and per- sonal estate. 2. A slave may acquire property, but as he cannot hold, it inures to the master. 3. Freedom, when bestowed upon a slave by will, is usually spoken of as a legacy, which requires the assent of the executor, as other bequests. But should the executor withhold his assent to the legacy of freedom to the slave, the heir-at- law cannot retain him in slavery; for, upon the death of the testator, his right of freedom vests, subject only to be held by the executor liable for the demands of creditors. 4. After the lapse of twenty-eight years, the assent of an executor to a legacy of freedom will be presumed, and the claim of creditors satisfied or barred, and the possession of the slave (so bequeathed her freedom) of a tract of land also devised to her by the testator, and which she held undisturbed and in quietness, is sufficient to give her a title to said land, as a free person of color, against the heir-at-law, and all the world. 5. By the Act of 1824, it is enacted, that every "gift of land by devise shall be considered as a gift in fee simple, unless such construction be inconsistent with the will of the testator, expressed or implied." The word "^ereo/?er," in the first part of the section, is held to relate to the time of adjudication, in con- nection with the word ^^ considered,^' and not to the date of the devise. 6. Where the testator by his will devises in consecutive clauses, first to Judith, then to Barbara, each one-half of certain lands containing acres, to them- selves for life, with the power of disposing, and in default with remainder over; and afterwards, by a codicil to said will uses the following language: " 1 do hereby revoke that part of my will wherein I bec[ueathed to the within-named Judith and Barbara the three tracts of land between them," and afterwards continues: " I bequeath to the said Judith the place whereon she now lives, adjoining Jolui Newman's land, containing tliree hundred acres, under the con- tiiif/encies, limitations, and restrictions mentioned in mij said icill," and "I revoke that part of my said "will wherein I leave to the said Barbara that land below Silver Bluflf, being a part of three tracts of land, and in lieu thereof I leave her that whole tract of land adjoining the point, containing upwards of three hun- dred acres, the lowermost part of said land ; the land between the two parcels I left to the said Judith and Barbara I leave to the said Thomas, son of the said Rachel Dupre" — *7. It was held that the devise to the said Barbara in the codicil was r *_(--. not merely a substitution of one tract of land for another, to be held by '■ her for life only, and subject to the limitations of the original devise to her by the will of the testator, but was a devise in fee. Before Earle, J., at Barnwell, Fall Term, 1838. The action upon which this special verdict was predicated, was one to try titles to a tract of land. In order properly to understand tiie case, au abstract of the will of the testator Galphin is also subjoined. Special Yerdict. We find that George Galphin, by his last will and testament, dated the 64:8 CHARLESTON, FEBRUARY, 1842. VOL. IL [*473 Gth (lav of April, ITTG, gave her freedom to a colored woman named Barbara, then his slave ; and by a subseqnent clause, devised to her cer- tain lands (not then in dispute) for the terra of her natural life, with remainder over to such issue as she might leave living at her death, to be divided between and among them in such proportions and under such limitations, restrictions and conditions, as she the said Barbara by will or other paper duly executed, should direct or appoint; and in default of such appointment, then to be equally divided. By a codicil duly executed 14th February, 1718, the testator revoked that part of the will containing the foregoing devise to Barbara, and in lieu thereof devised to her without limitation during life, and also without words of perpetuity or inheritance, the lands now in dispute, and also without the remainder over to her issue, and without the power of ap- pointment to the said Barbara as to the mode of distribution provided for in the orignal devise. "We find that the said George Galphin departed this life in 1782, leav- ing the said will and codicil unrevoked. That the said Barbara, who intermarried with one William Holmes, entered upon the lands devised in the codicil, and continued in possession thereof until they were sold as her property under execution, and she was evicted by action at the suit of the purchaser in 1827. We find that Barbara Holmes departed this life in 18.30, leaving the plaintiffs, the issue of her marriage with William Holmes, who was also then dead ; and that the said Barbara died intestate, and without having executed otherwise the power of appointment in relation to the said land. *174.1 *^^e further find, that the defendant entered and occupied the -' land since 1830, as the tenant of Darling Peoples, the purchaser at sheriff's sale, who now claims. If the Court shall be of opinion that the plaintiffs are entitled to recover, then we find for the plaintiffs, the lands described in Allen's plat of survey, and marked with seventy dollars damage. If the Court should be of opinion that the plaintiffs are not entitled to recovery, then we find for the defendants. And we refer the Court to the entire will of George Galphin, which was in evi- dence. (Signed,) JOHN F. PEYTON, Foreman. Abstract of George GALrniN's Will. Tho to«tator first gives freedom, from the time of his death, to all legatees or devisees not then free, and especially to Barbara, daughter of Rose. Then having given freedom to two mulatto girls, and one Indian (daughter of Natechuchy), &c., &c., he leaves in four lengthy clauses, several tracts of land, and also from twelve to twenty slaves, with their children and increase, to Thomas and JIartha Galphin, children of Rachel Dupee, and to George and John, sons of JIaturney ; the lands and slnvr's heing given to each of them under the same restrictions and limitations as in the devise to Barl)ara. The testator tlien gives to Judith, daughter of Matiirney, one half of tliree tracts of land, two hundred acres of the cede^i lands, witli eigliteen slaves, their children, tScc, under limitations, as in the case of Barbara. He next gives to Barbara, the daughter of Rose, for and during her natural life, witliout imi)eachment of waste, tlie use of the lower half of three tracts of land, wliich said tracts run from Newman's line down to the point, con- taining in tlie whole about thirteon or fourteen hundred acres, with all the improvements tliereon, called Silver Bluflf. lie also leaves her seventeen slaves, *4T-4] BOWERS ET AL. VS. NEWMAN 649 .and tlieir cliildren, and future increase, &c. And npon the death of the said Barbara, lie gives tlie said lands and slaves unto the oliild or children of the said Barbara that shall be then living, in such parts and proportions, and for such estate and estates, and at and under such contingencies, limitations and restrictions, as the said Barbara shall by her last will and testament in writing, or other writing by her duly executed, direct, limit and appoint. And for want of such directions, limitation and appointment, he gives and bequeaths the said * lower half of r#j^wr the said throe tracts of land, with the slaves, &c., to and amongst all and '■ every the children of the said Barbara, that shall live to come of age or have issue, to be equally divided amongst them and their respective heirs and assigns forever, as tenants in common, and not as joint tenants. And if but one child of the said Barbara should live to come of age, or have issue, to that child alone, and to his or her heirs and assigns forever. Then after disposing of two slaves and several miinor articles, the testator proceeds thus : ' ' Also, it is my desire that in case any of the six devisees and legatees hereinbefore mentioned, namely, George, Thomas, John, Judith, Martha and Barbara, happen to die without having issue, or their issue die: That then and whenever a contingency of that kind happens to any of the said devisees, or any of their issue, that the estate, slaves, and issue of slaves herein intended for such devisee or devisees, and issue, shall be shared alike equally by my executors, or the survivors of them, amongst the survivors of the said devisees and legatees : and the land to be shared between the said George, Thomas and John : and the slaves and their issue to be shared equally between the said six devisees and their heirs." Having made the said Thomas and Martha residuary devisees and legatees, Galphin next provides, that in case the said six devisees and legatees should all die intestate, and without issue, all the estate given to them should go to his sisters and their heirs, share and share alike. The remaining portions of the will are entirely irrevalent to the matter in dispute. In the first codicil, the testator revokes that part of his will wherein he bequeaths to Judith and Barbara the three tracts of land between them, and bequeaths to the said Judith the place whereon she now lives, adjoining John Newman's land, containing three hundred acres, under the contingencies, limitations and restric- tions mentioned in the said will. Then having revoked several other parts of his will, he goes on to say : " I revoke that part of my said will wherein I leave to the said Barbara that land below Silver Bluif, being a part of three tracts of land. In lieu thereof, I leave to her that whole tract of land adjoining the point, con- taining U2)wards of three hundred acres, the lowermost part of said land. The land between the two parcels I leave to the said Thomas, son of the said Rachel Dupee." In the second codicil, he revokes a legacy of one negro to Barbara; and in the third codicil he gives to the said Barbara five slaves *and their r^An(> children, and future issue, unto the said Barbara, her heirs and assigns '■ forever. The will is dated 6th April, 1776. The first codicil, February, 1778. The second codicil, March, 1780 ; and the third, September, 1780. The will and codicil were sworn to before John Ewing Calhoun, of Ninety-six District, in AprU, 1782. Report of the Presiding Judge. This was a motion for leave to enter Judgment. Several questions arose. 1st. Whether by the same testament which manumitted her, the woman Barbara could take an estate in the land devised in either of the clauses. 2d. If she could, whether she could legally contract marriage so as to enable her children to take as issue under the first clause recited, the remainder limited to them. 3d. Whether under the codicil revoking that part of the will contain- ing the devise of lauds limited over to the plaintiffs, Barbara, if she could *477] G50 CHARLESTON, FEBRUARY, 1812. VOL. II. [*476 take at all, did not take an estate in fee, wliicli passed to the purchaser at f;lieriff's sale. Ou the first question, it seemed to be conceded, that Barbara, at the death of George Galphin, might be legally set free, there being no re- striction on the power of manumission. But the doubt was whether, as her freedom was a legacy which could not take effect if there were debts, and might require the assent of the executor, there was at the instant of the death any one in being capable of taking the particular estate so as to carry the remainder. But it seemed not to have struck the counsel that if incapable of taking under the will, the particular estate, she could not under the codicil take the estate in fee which he now claims for her. As the opinion of the Court was formed on another point, it seems to be unnecessary to decide that question ; nor, according to the view I have taken of the will, is it necessary to decide the question on the validity of the marriage. I hope it will never become necessary to decide that question against the legitimacy of the plaintiffs. On the third question, I was of opinion that the codicil is a clear une- quivocal revocation of the entire clause containing the devise of the particular estate to Barbara for life, with remainder to her issue. That the limitations and restrictions in that clause *\vere not intended to be annexed to the devise in the codicil, and that she took the estate there free from such limitations and restrictions ; and although there are no words of perpetuity or inheritance, she took under the codicil an estate in fee, which was liable for her debts, and became vested in the purchaser at sheriff's sale. It was therefore ordered that the Postea be delivered to the defendant, and that he have leave to enter judgment. The plaintiffs appeal, and move to reverse the decision, and for leave to enter judgment for themselves. Appeal heard at Charleston, in the Court of Errors, February, 1841. Bellinger, for the Appellants. The grounds taken by the defendant's counsel in the Court below, and the report of the presiding judge, make it necessary for the appellants to maintain the following positions : — L That in this State, free persons of color can take and hold an estate in real propi'.rti/. II. That Barbara Holmes (the colored woman from whom plaintiffs are descended), could contract marriage with a white man, so as to enable the issue to take under Galphin's will, the estate in remainder limited to them. HI. Tliat Barbara Holmes could be a devisee under the sa?ne will which gave her freedom, and thus could take the particular estate so as to support the remainder. IV. That if Barbara Holmes could not be a devisee under the same will which gave her freedom, this does not defeat the estate in remainder limited to her iBSue, the jdaintilfs. V. The lands in dispute were not bequeathed to Barbara Holmes in fee simple; but were bequeathed to Barl)ara Holmes for life, with remainder to her issue, the plaintiffs. In sujt])ort of these positions, he argued as follows: 1. That in tliis fcitate, free persons of color can take and hold an estate in real property. 1. Be(uanae it has been decided again and again on circuit, that such persons can take and hold an estate in personal property. ^477] BOWERS ET AL. VS. NEWMAN. 651 And in one case a bill in chancery for the payment of an annuity was supported, the objection being made that the comjjlainaiit was a free person of color. 2. Because, in Recti vs. J'aris/i, 1 M'Cord Ch. 58, a free mulatto was admitted without objections as a defendant in chancery, and claiming certain negroes. ■*3. Because, in SlugUion vs. Bremar, fcjtate Kep. 201, no olijection of this r^(.j.HQ kind was taken against a deed of a house and lot to a free woman of color, '- ' though such an objection (if sustainable) would have Ijeen fatal. 4. Because, in the State vs. Mary Ilays, 1 Bail., 275, the Court say: "the Acts of the Legislature, the decisions of our Courts, and the constitution of the State, concur in denying to the mulatto any civil rights beyond those incident to the holding and transmission of property" — which, in connexion with the context, can mean nothing less than this: that no Act of the Legislature, no decision of our Courts, and nn part of our constitution, prohibited the mulatto from holding and transmitting property, nor from enjoying the rights incident thereto. 5. Because, it being admitti'd that such persons can take and hold personal property, it is incumbent on the defendant's counsel to show that they are prohibited fi-om taking and holding real estate. (). Because, so far as arguments ab inc.onvenienti apply, it is less objectionable for such persons to take and hold real estate, than to be allowed to possess and accumulate personal property, and yet be debarred from the chief means of procuring settled and i^ennanent residences. 7. Because the state of freedom, ex vi termini, puts such persons in possession of all rights and privileges, from which they are expi-essly excluded. The defendant's counsel must disable the plaintiffs by the strength of his objection. 8. Because free persons of color certainly have rights — they are human beings under our government ; yet 1st. they are not free white citizens ; 2d. they are not Indians ; 3d. they are not slaves ; and there is no other status or condition to which they can be assigned, unless they be viewed as a class entitled to all the rights and privileges of free white citizens, saving those (many indeed) from which they are excluded by the provisions of the Constitution, by Legislative enactments or adjudicated cases. 9. Because the Constitution and Legislative enactments have imposed various disabilities on these persons, yet in no part of the Constitiition and by no Act of the Legislature are they prohibited from taking and holding real property. 10. Because we cannot sujjpose all those disabilities and prohibitions to have been needless and supererogatory ; they must -have been found necessary ; r*_i^Q therefore we cannot go beyond those disabilities and prohibitions. '- 11. Because, in Georgia (a State having similar institutions), express enact- ments have been found necessary. An Act 19 Dec, 1818, prohibiting free persons of color from pui'chasing or acquiring real estate or slaves. Lamar's Digest, p. 815. This was afterwards repealed, and the prohibition (with some exceptions) removed, as to real estate. — A. A. 22d Dec, 1820. Lamar's Digest, p. 820. 12. Because the whole course of legislation on this subject in South Carolina, has been in the negative and not in the affirmative — enactments of proliibition, and not of grants. Compare the course of legislation as to slaves, and as to free persons of color, especially in relation to criminal matters. 13. Because these persons from the earliest times have been in fact allowed to take and hold property (both real and personal) within the knowledge, without the prohibition, and therefore with the inii)lied sanction of the Legislature. 14. Because the Legislature have clearly and unequivocally expressed their sanction. Vide Acts of Assembly, each year imposing taxes on such persons, thereby admitting their right to hold property generally. So various Acts of Assembly, as to punishing such persons by fines. — A. A. 1740, P. L. 170. A. A. 1820, p. 23.— Is22, p. 10 and 12.— 1823, p. 63.— 1833, p. 40.— 1834, p. 13 and 15. Above all, A. A. 1822, p. 10, I 5, imposing a tax on all houses within the limits so guarded (by the Municipal Guard of Charleston), inhabited by negroes or persons of color, as tenants or owners. 15. Because the question has been expressly decided by the Appeal Court in the affirmative : The Heal Estate of Mrs. Hardcastle ads. the Escheator of Pineville 652 CHARLESTON, FEBRUARY, 1842. VOL. IL [*479 Academy. (Original manuscript.) Tried before Judge James, May, 1825. (a)— Elizabeth Hardcastle, a free icoman of color, died possessed of several tracts of land, -n-hich the Escheator of Pineville Academy claimed as escheator ; she having left no person that could claim the same by descent or purchase. The claim of the escheator was resisted by persons who represented themselves as next of kin. On appeal, determined, that by the common law of the State, the free descend- ^ ,„„, ants of a negro are entitled to hold lands, and *that where the evidence of -' relationship between the individuals claiming, and the deceased, is satis- factory, they may take by descent. II. That Barbara Holmes (the colored woman from whom plaintiffs are descended) could contract marriage with a white man, so as to enable the issue to take under Galphin's will, the estate in remainder limited to them. 1. Because if it is lawful for free persons of color to take and bold property (as I have shown), there is removed one of the chief objections to such marriages. 2. Because, under the civil law, though senators, their sons and grandsons could not marry a manumitted slave, this prohibition was founded on positive law, and did not extend to private men. Vid. Dio. book 16. Adam's Roman Antiq. 442. 3. Because, under the English Common Law, a freeman might marry a neife, or a villein a freewoman — the issue (contrary to the maxim of the civil law) would follow the condition of the father, but the marriage was lawful. 2 Blac. Com. 94. Litt. Sec. 187. "But the spurious issue of a neife, though by a free father, would be a villein, quia sequitur conditionem matris, quasi i-idgo conccptus," Vid. Bracton, book 1, c. 6, as cited in Hallam, 1st vol. p. 232. (Phia. ed.) Contra Blackstone and Litt. tit supra, as to the status of such spurious issue ; but this evidently shows that marriage might exist between such parents. 4. Because the chief objection against such marriages, the want of civil status in the person of color, has never been recognized under our laws, is not consonant with the spirit of our institutions, and certainly has no application in cases where the want of status arises from positive prohibitions of a certain and definite character and extent. Law Journal, p. 92. 5. Because, in Pennsylvania, Massachusetts, Virginia, North Carolina and Illinois, express statutory provisions have been found necessary to make such marriages unlawful. 6. Because the marriage of a white man with a. free ivoman of color, is not more contrary to law, than the marriage of an Indian with a free icoman of color, or a white man with an Indian, or citizen with alien. 2 Kent, 49. (n.) 7. Because no such objection is recognized at common law. Vid. 1 Blac. Com. 433. Kent's Com. part iv. Lee. xxvi. *4811 ^" because, our A. A. 1712, following the Stat. 32 11. 8, c 38, ^declares "all persons to be lawful (that be not prohibited by God's law) to marry." Vid. P. L. 55. 9. Because, if (as I have shown) a state of freedom ex ri termini, piits free persons of color in possession of the rights of free white citizens, save those from wliich they are expressly excluded, then most unquestionably such marriages are lawful, unless the objector can sliow positive prohibition, which cannot be done. Hence, I conclude, although such marriages arc revolting, and justly regarded as offensive to public decency, they are not contrary to exist intj laws. III. Tliat liarbara Holmes could be a devisee under the same will which gave her freedom, and thus could take particular estate so as to support the remainder. 1. It cannot be contended, that the mode of manumission was contrary to law. fJalphin's will took effect in 1782, eighteen years previous to the A. A." 1800, (2 Faust, 355, 7), prescribing the mode of manumission, and aftei'wards superseded by A. A. 1820, p. 22, probibiting emancipation. 2. Nor can it be contended, that there were debts against the estate of Galphin, which could bar the manumission. 3. Nor can it hn contended, tlie executor did not assent to the legacy of freedom. Such assent will be presumed. Toller's Ex'ors. p. .308. In Lenoir VB. Sylvester, 1 Bailey's Rep. G39, the Court decided that under the A. («) Harp. L., Riley's Ed., Appendix, 495. ^481] BOWERS ET AL. VS. NEWMAN. 653 A. 1800 (which required various formal proceedings), the mere assent of the executor to a life estate in slaves, was not an assent to freedom, bequeathed to those shives on the death of the tenant for life. But in this case, Barbara Holmes was in possession of the lands devised (see the special verdict), and sm-vAy prerious to 1800, if an executor assented that one who had been a slave should hold property under a will, this was an assent to freedom bequeathed by that will, to take effect eo instanti the testator died. The substantial objection is, that when the will took effect, Barbara Holmes was not yet frcd — therefore, being a slave, was incapable of taking the life estate ; in otlier words, it is said the bequest of freedom took effect, but not in time. This objection is unsustainable. 1. Because, if no debts existed at the time of Galphin's death to bar the bequest of freedom, then quoad debts, the bequest of freedom took effect eo instanti the testator died. 2. Because, if the executor did assent, even if there were debts, *they r^Aon could not, after such assent, affect the bequest of freedom ; such assent '- being irrevocable and being proof of assets. Toller's Ex'ors. p. 307, 310. State Rep. p. 21. 3. Because it is questionable whether the doctrine as to the executor's assent, applies with equal strictness to a bequest of freedom, as to a pecuniary legacy. A bequest of freedom ipso facto makes the legatee free eo instanti the wiU takes effect, unless the executor subsequently takes measures of prevention. 4. Because, even if the assent of the executor be essential, the bequest of freedom to Barbara Holmes, ipso facto, gave her an inchoate right, which though requiring the executor's assent to complete it, would yet prevent the devise to her from being void. Before assent, a legatee may dispose of his legacy. Toller, 311. 5. Because, assent of the executor, when given, would have relation to the time of the testator's death, and thus would have made Barbara Holmes capable of being a devisee. Thus, profits accruing between the testator's death and the assent, go to the legatees. Vid. Toller's Ex'ors, p. 311. "Such assent, shall by relation, confirm an intermediate grant by the legatee of his legacy." Ibid. 6. Because the objection itself furnishes an answer. If it be law that Barbara Holmes could not take the devise until assent of executor, Galphin must have known this, and in fact, an inspection of the will shows that Galphin meant "when Barbara Holmes shall be made free, by the OiSsent of my executor to the bequest of freedom, then let her take the devise, ' ' &c. See the doctrine in relation to devisees in ventre sa mere, and to other cases where the testator shows that he was aware that the devisee could not take immediately. Vide Fcarne Cont. Rem. 428. Bowel's Devises, p. 332. IV. That if Barbara Holmes could not be a devisee under the same will which gave her freedom, this does not defeat the estate in remainder limited to her issue, the plaintiffs. 1. Because in the case of Fable and others vs. executor of Fable, February, 1838, 2 Hill's Ch. 400, it was settled, that if land be conveyed to a slave, liis master would be seized of that land ; not for himself, but only until office found for the State ; and that a bequest to slaves is not void. Under the authority of this case, even though Barbara Holmes could not take in her own right the life estate devised to her, the estate in remainder would not be defeated. *2. More particularly, because in the said case of Fable and Fable, con- r^^^cq veyances, devises, &c., to slaves, (quoad being void,)' a,ie put on the same ^ footing as conveyances, devises, &c., to aliens. Now an alien can be a devisee, and can take and hold until office found. Vide Powel's Devises, p. 31(3. Also, if an alien holding a particular estate may, by fine, &c., defeat the re- mainder, (Vide Bowel, p. 318 ; 2 Kent, 61,) surelyhe can preserve it. 3. Because the case of the Escheator vs. Real Estate of Hester Smith, 4 McCord, 452 and 455, taken in connection with the above case of Fable and Fable, fully supports me in saying that no more than Barbara's life estate could have been escheated, because it was all the interest she had in the land ; and however her interest might have been affected by the laws of escheat, it had passed away ; 654: CHARLESTON, FEBRUARY, 1842. VOL. II. [*483 and the estate had become legally vested, according to the limitations of the will, in her issue, the plaintiffs, who labored under no disabilities. 4. Because, if the life estate was void, as being devised to one incapable of takin"-, be it remembered that this was an cxecntory devise, and therefore required no particular estate. Vide 2 Blac. Com. 173 ; 4 Kent, 236. V. That the lands in dispute were not bequeathed to Barbara Holmes in fee simple ; but were bequeathed to Barbara Holmes for life, with remainder to her issue, the plaintiffs. 1. This is the debateable ground ; for if free persons of color cannot hold real estate, and if Barbara Holmes could not take a life estate under the same will which gave her freedom, the defendant will not forget that he claims the land in right of Barbara Holmes, as devisee in fee simple under Galphin's will. 2. The grand rule of construction— "Devises are to be so construed as if pos- sible to effectuate the entire intention of the testator, if that intention is not opposed to the policy of the law against perpetuities, and. to this all other rules of construction are subordinate." Bedon vs. Bedon, 2d Bailey, 231. 3. The codicil (the first; devising the lands in dispute, contains no words of perpetuity or inheritance, nor any words indicating an intention to pass a fee. Without waiving the argument that the A. A. Ib24, p. 23, cannot affect a will which went into operation in 17S2, I undertake to show under the A. A. 1S24, sf,AQi-, tluit no construction is "consistent with the will of the testator *expressed -■ and implied, " but this : That the lands devised in the codicil are subject to the limitations and restrictions mentioned in the body of the will — that the codicil changed the subject matter, but not the terms of the devise. 1. Because Galphin expressly devised a life estate, and not a fee simple, the words which he used at that time conveying no other meaning. The A. A. 1824 might change the law, but it could not reach backwards through a vista of forty years, and make Galphin mean the contrary of what he meant and said. 2. Because an examination of the whole will and the codicils shows that Galphin meant to settle his property on the six devisees, (including Barbara Holmes, ) with limitations and remainders in favor of each other. This is expressed in the will, and there is notliing to contradict it in the codicils. 3. Because a comparison of the words and expressions used in the will, with the words and expressions used in the codicil, shows that by the codicil the tes- tator meant merely to change the subject matter of the devise — to put one tiact of land for another. 4. Because, on inspecting the codicU, we find that the testator, having in the will divided certain tracts of land between two of the said (6) six devisees, meant in the codicil merely to divide those same tracts among three of the said six devisees. 5. Because the limitations and remainders mentioned in the will are obviously not affected by the codicil as tofre of the devisees. Therefore, if the defendant's construction be correct, it will follow that Barbara Holmes not only took a fee simple in tlu; land devised to her, but might have taken as survivor to each and all of the said five devisees, none of whom could have taken as survivor to her. In otlier words, if tlie testator meant that Barbara Holmes should take a fee simple under the codicil, instead of a life estate as in the will, he surely would have altered the clause of survivorship as to her. f). ]5ecaus(;, in tlic third codicil, wliich does givfe Barbara certain property abso- lutely, the words are, "to the said Barbara, her lieirs and assigns for ever." 7. Because, thioughnut the will and codicil, the 7nnst minute and particular at- tenliim is jiaid to winds and jihrases. Evidently it was drawn by an expert. Evidently if a fee simple had been intended in the codicil, appropriate words would have been used. *4851 *^" J^*^'^'^'^^®) ^^'''""Kliout the will and codicils, there are not less than twenty-five places in wliich words of devise and bequest are used ; and wlierover the testator obviously meant a fee simi)le, we find him iising words of j»f r[)etuity or inheritance ; where not a fee, those words are wanting. !». Because the v qo fore, it was good and legal between a white person and a free ■- negro. 4th. That the descendants of a free negro, born in lawful wedlock, might take as devisees, under the description of issue, or as heirs. 5th. That the limitation in the will extended to the codicil, and was good, and under it the plaintiffs were entitled to recover. O'Neall, J. I agree with Chancellor Harper in all the conclusions to which he has come; and generally in the reasons which has led him to thera. But on the first question made, I do not agree to his reasoning in all respects. That a slave is to be regarded as on the footing of an alien enemy, is not in my judgment correct. Slavery in England, and in many other countries, originated out of that hard condition being imposed on captives taken in war. But civilization long since wiped off this stain 660 CHARLESTOX, FEBRUARY, 1842. YOL. 11. [*492 on contests between nation nnd nation. The captive now is no where, except among savages, regarded as a slave. In this State, the only slaves from captivity were" the few Indians who in the early settlement were thus treated. The great body of slaves are those who have been acquired by purchase. So far as human beings can be considered as goods and chattels, they have been and must continue to be SQ regarded. That that is their legal position is not questioned, but it is supposed that they must have the consideration of men laboring under temporary legal disabilities, in order to keep up the harmony of the law. That there isa great deal of truth in this general position, I freely concede. But I do not think that they can be regarded as laboring under the disability of an alien enemy. For, remove the disability, and what must be the legal result? they then stand as all other men possessed of their political, as well as civil rights. To emancipate would be to naturalize a slave, if he is legally to be regarded as an alien enemy. This never can be the result in ■South Carolina. The negro or his descendant is not, cannot be, a citizen. The true notion seems to me to be that the negro slave is to be regarded as a being of an inferior caste, not having, and never to have, any politi- cal status; but capable of acquiring and holding property by the consent of his master. Every acquisition thus made, is for the master's benefit. For if it either feeds or clothes him, it so far relieves the master from expense on his account. But when we refer to the Act of 1144, ^ -, *and every Act for the regulation and government of slaves -J passed since, we find that it was no novelty to the legislators of this State that slaves should own property. For the present, this general statement of my views on this portion of the subject will be sufficient. Consistently with them, I think that the consent of the master to the possession of property by his slave Barbara until she became free, is sufficiently manifested by his will. There would, however, be much difiSeuIty in saying that she could thus acquire real estate. But my mind is relieved from all difficulty by two considerations. 1st. I hold that her freedom and estate both took effect at the same instant, the death of the testator. For the assent of the executor to the freedom of Barbara, made her free at and from his death. 2d. On look- ing to the will it will be seen that the executors are made " guardians" of the real and personal estate devised. This constituted them trustees to take and to hold, until all disabilities (if any existed) were removed. See Supra, 472. Also, as to the legal capacity of a free negro, Eschcator vs. Estate of Uardcastle, Ilarp. L. 495, Appendix. An. APPENDIX TO VOL. II. Zach. Allen vs. Noel Johnson. 1. There is a material difference between proving a deed as a part of a chain of title, and introducing a paper as color of title to show the extent of a party's possession. In the first case it must not only be proved to have been in exis- tence before the party acquires rights under it, but when it purports to be less than thirty years old, its execution must be strictly proved. 2. To admit a deed in evidence as an ancient deed, continuous possession under it for thirty years is not always necessary. A less period than this will suffice, if there has been no inconsistent possession to conflict with it. A deed being found in an office, recorded, may be sufficient evidence sometimes ; and at all times such testimony may be received to show the antiquity of such a paper. 3. When a party indicates the boundaries of his land by stakes, for more than ten years, by which he shows the extent of his possession, and the boundary thus indicated is made known to the adverse party, who is interested to deny it, and they acquiesce therein, it is a good title to the laud by possession, with a color of title. Before Evans, J., at Chesterfield, Fall Term, 1836. The facts of this case appear from the circuit report, which is as follows : This was an action of trespass to try title. The facts of the case, so far as is necessary to nnderstand and decide the grounds made in the notice, were these. The plaintiff claimed the land under a grant to one Pittman, which, located according to its boundaries, cornered the locus in quo. Pittman conveyed to Harrell in 1819 ; Harrell to Mrs. Cook in the same year, from whom the plaintiff derives his title. Tlie subject in controversy was in part a triangular piece of laud containing forty acres. The defendant claimed it under a deed from James Killgore to himself, dated in 1808, in which it is described as a part of a tract of land granted to Francis Young for two hundred acres, in 1749. Only one corner of this Young tract was found ; in locating from which by course and distance, there being no other way of closing the lines, the land in dispute was not included. The deed from Killgore *to r^^ng defendant included the whole of the land in dispute ; but as the ^ Young grant could not be located so as to cover the disputed land, the defendant could only avail himself of it to make out a title by possession. To enable him to do this it was necessary to prove the deed, and posses- sion under it. The deed was dated in 1808. On the back was a pro- bate by one of the witnesses before a justice of the peace, in 1811 ; but the deed had not been recorded. The grantor, Killgore, made the initials of his name for a mark, and a witness who had often seen liim sign iiis name in this way, swore he believed it to be genuine. The witnesses wrote bad hands, indicating they were illiterate. One was dead, and the other had removed many years from the State. Full twenty years ago 662 APPENDIX TO VOL. II. [*496 the defendant cleared a part of this land, and had been in possession ever since. The field which he claimed contained eight or ten acres, but only a part of it (the witness says one-third) was of the disputed land. Two witnesses proved that seventeen years ago, which was soon after Mrs. Cook bought the Pittraan land, Johnson, the defendant, put up a line of stakes from corner to corner on the land conveyed to him by Kill- gore. These stakes were seen by four of the witnesses, and one of thera proved that after the stakes were put up, Johnson sent for Mrs. Cook, and told her the stakes were the line between them, and if she trespassed beyond it he would sue. She never set up any claim to the land beyond the stakes, and frequently cautioned those who worked for her, not to go on Johnson's land. I admitted Killgore's deed to go to the jury, as an ancient paper. I thought its antiquity sufficiently established. It was proved before a justice of the peace, in 1811, and the justice was the same Harrell who conveyed the land to Mrs. Cook. He has been gone from the country fifteen or sixteen years. The proof of Harrell's signa- ture to the probate was not very full, but I thought sufficient to go to the jury. The possession under the deed was twenty-one years, of a part, and the assertion of title to the whole by setting up the stakes, seventeen years. The presumption of a grant is now, I think, clearly established at twenty years, and as a necessary consequence of this, the execution of a deed could be presumed also. 1 Hill, 222 ; 2 Hill, 493, 592. In submitting this case to the jury, I told them that according to the view which I took of the Young grant, it could not be located so as to cover the disputed land, and as a consequence the ])laintiCf was entitled to recover, ^ „..-, unless the defendant was protected* by the Statute of Limitations. '-I On this subject I told the jury that possession of a part of the land adversely to the claims of others, gave a good title, after ten years, to the extent of the tenant's claim. The evidence of this claim was what was usually called color of title. It might be in writing, as a grant, a deed, a contract to purchase, or bond to make titles which so described the land as to render it susceptible of identity, or it might be in parol, as ])roof that he had marked out the boundaries of his land by clear and defined lines, so as to indicate to the owner the extent of what he claimed. There is no question that the defendant has been in possession of a part of the land for a much greater period than the statute of limitations required, and if the deed from Killgore to Johnson was a genuine deed, it was such color of title as would give the defendant the wliole forty acres. 15ut independently of this deed, if the defendant marked out his lines by running a line of stakes from corner to corner, and more espe- cially if he gave Mrs. Cook, the then owner of plaintiff's land, notice of the extent of his claim, that this was color of title, and would give him a right to tiie whole disputed land. The jury found for the defendant. Plaiiitiffappoals. 1. Because his Honor crrcMl in charging the jury, that the possession by dtifendant of a smull portion of tlie land over the I'ittnian line, was a suflicic.-nt po.sse.'^ssion to give liim a title by the Statute of Limita- tions to the forty acres, included in the deed from Killgore to defendant, inusmiich us the; deed was not located. 2. BecauHehis Honor erred in charging the jury, that even if they considered the deed from Killgore to defendant spurious, yet if they believed that the *497] ALLEN VS. JOHNSON.— 1836. 663 defeiiclant put up the line of stakes from the pine corner in the new jTronnd to tlie pine stump in the old field, his possession of a piece of the old fiehl l)elow the new ground for ten years, gave him a title under the Statute of Limitations, up to the stakes. 3. Because the Court charged, that the stakes was a sufficient indication of the extent of defendant's claim ; that if defendant had in his possession any part of the land within the stakes for ten years, he would have a statutory title to the stakes. 4. Because the Court erred in permitting the defendant to give in evidence the deed from Killgore to defendant for forty acres, as *au ancient deed, i*^oq without proof of its execution, or possession under it. L Curia, per Butler, J. There is a material difTerence between proving a deed as a part of a chain of title, and introducing a paper as color of title to show the extent of a party's possession. In the first case, it must not only be proved to have been in existence before the party acquires rights under it, but when it purports to be less than thirty years old, its existence must be strictly proved. The deed from Killgore to defendant does not purport to be thirty years old ; and its execution was not otherwise sufficiently proved ; and if it had been offered as a part of defendant's chain of title, he not having had sufficient possession to give him title to any part of the land, it was not legally proved. To admit a deed in evidence as an ancient deed, continuous possession under it for thirty years is not always necessary. The primary object is to show that the deed has had an existence for thirty years. To do this, posses- sion under it for the whole length of time is the best evidence ; but a pos- session of a shorter period of time might suffice, if there has been no inconsistent possession to conflict with it. A deed being found in an office, recorded, may be sufficient evidence, sometimes : and at all times such testimony may be received to show the antiquity of a paper. These principles are discussed and explained in the case of Robertson vs. Craig and icife, 1 Hill, 389. Chancellor Harper does not lay down the law in that case, as contended, that there must be a continuous possession under a deed for thirty years, to admit it in evidence as an ancient deed. Upon an examination of his opinion, he rather comes to a diflerent con- clusion. But that which purports to be a deed from Killgore to defendant was properly admitted by the presiding Judge, as a paper to show the extent of defendant's possession ; and the only question was, was that deed in existence before the defendant went into possession of his land ? For it is admitted that it covers the land, and it was clearly proved that defendant's possession was more than ten years. I think it quite clear that the deed was in existence at the time defendant took possession, and it seems equally clear that he took possession and held under it; at least, this is a fact wliich has been established by tlie verdict of the jury. But on another ground there was color of title. The defendant had indicated for more than ten years the extent of his *po.ssession by putting r^c «qq up stakes. The boundary thus indicated was made known to ^ Mrs Cook who was interested to deny it and she acquiesced in it. The motion for a new trial is refused. Evans, Earle, Gantt and Richardson, JJ., concurred. Clinton and Ilanna, for the motion. Graham, contra. As to evidence of ancient deeds, see 1 Rich. 53; Cher. 82; 1 Bar. 3Gi; Rice, 106 ; 2 N. & McC. 40(3, 55 ; 1 Sp. 191. An. QQ4: ♦ APPENDIX TO YOL. II. [*499 Cornelia M. De Millen, per pro. ami, vs. James McAlliley. Wliere a deed of gift from a parent to his daughter (the plaintiff) of a negro, contained, among other things, after appointing trustees, the following pro- visoes, " Provided always, and these presents are upon this special trust and confidence, and upon this express condition, that the said trustees, their execu- tors, or administrators, shall and do permit and suffer me, the said G. De M., to use, keep and enjoy the profits of the said negro Ben, during my natural life, without paying or yielding any for the same or in any respect thereof. Provided also, that if I should remove the said negro Ben out of my possession, or the said negro should be removed out of my possession by any means what- soever, then the use reserved shall terminate, and the said trustees, or either of them, shall take the negro Ben into their possession, and apply the profits arising from him to the use of my said daughter, until she arrives at the age of twentv-oue years, or marries ; at which time the said negro Ben to be deliv- ered up to her, her heirs, executors, administrators, or assigns" It was held, 1. That the true construction of the deed was, that it was a convey- ance to trustees for the use of G. De M. for life, with a condition forfeiting his estate if he should part with the possession of the slave, or any one should take him out of his possession ; and in such case the profits were to be applied to the use and benefit of plaintiff, until her marriage or full age ; and if G. De M. should retain possession until his death, then the possession to be delivered to plaintiff. 2. That G. De Millen had a life-estate in said negro, which might be the subject of sale under execution. 3. That the reservation of the use of the chattel to the grantor for life made the whole deed fraudulent and void against creditors. Before 0'!Neall, J. at Chester, Fall Term, 1836, whose report of the case is as follow : This was an action of trover for the recovery of the value of a negro *»^fifn "^'^^ named Ben, sold by the sheriff of Chester, as the *property -I of the plaintiff's father, George De Millen, and purchased by the defendant. The case, it seemed to me, depended upon the construction of the deed from De Millen, conveying the negro for the use of his daugh- ter. That deed is as follows: "South Carolina, Chester District. Know all men by these presents, that I, George De ]Millen, of the State and district aforesaid, in consideration of one dollar, and the natural love and affection which I have and bear to my daughter Cornelia Margaret De Millen, and for and towards the better support and maintenance of lier hereafter, and for divers other good causes me thereunto moving, have given, granted, confirmed and sold, and by these presents do give, grant, sell and confirm, unto the said Cornelia Margaret De Millen, and to her heirs forever, a negro man slave, named Ben, about thirty-one years of age ; to have and to hold the said negro Ben, hereby given, granted, sold and confirmed, to her and to her executors, administrators or assigns, as hers and her own ])roper goods and chattels, from henceforth forever ; and I do hereljy nominate, constitute and appoint Peter Goza and Marlv Goza, trustees for the better carrying into effect the intention of this gift : Provideil always, nnd these presents are upon this si)ecial trust and con- fidence, and upon this express condition, that (he said trustees, their exe- cutors or adinitiistralors, shall and do peynnit ami suffer me, the said George JJc Milleyi, to use, keep and enjoy the 2)rofils of the said nefjro lien duriny my natural life, ivithout paying or yielding any for *500] DE MiLLEN VS. m'alilley. — 1^36. 665 the same, or' in any i^csjject thereof. Provided always, aUo, that if I should remove the said negro Ben out of my possession, or the said negro should be removed out of my possession by amy means whatso- ever, then the use reserved shall be terminated, and the said trustees, or either, shall take the negro Ben into their possession and apply the profits arising from him to the use of my said daughter, until she arrives at the age of twenty-one years, or marries, at which time the said negro Ben to he delivered up to her, her heirs, executors, ad- ministrators or assigns.'' After heariiii? the whole case, my opinion was demanded upon the deed, whether the ])laiutiff could recover ? And my opinion being against her upon it, a nonsuit was submitted to with leave to set it aside. It seemed to me that the true construction of the deed was, that it was a conveyance to trustees, for the use of George De Mil- ieu for life, with a condition forfeiting his estate if he should part with the possession of the slave, or any one should take him out of his *possession, and in such a case to apply the profits of the labor of r^cni the slave for the use of the plaintiff, until marriage or full age, at '- which time the negro was to be delivered to her; and if De Millen should retain possession during life, then at his death possession was to be deli- vered to the plaintiff. To say nothing about the manifest legal result of the title to the possession being in the trustees, and not in the plaintiff, I thought, 1st, that De Millen had a life estate which was liable to execu- tion, and which was properly sold by the sheriff; for the proviso defeat- ing that estate is a plain fraud on creditors. 2d, that the reservation of the use in the chattel to the grantor for life, made the whole deed fraudu- lent and void against creditors. The plaintiff appeals, and moves to set aside the nonsuit, on the annexed grounds : 1. 15eca,nse llie deed under which the plaintiff claimed, was a good and valid deed in law, and the legal estate in the negro vested in the plaintiff, so soon as the deed was executed, and the mere use of the slave reserved to the donor, did not vitiate the deed. 2. Because, so soon as George De Millen was deprived of the possession of the negro, the use reserved terminated, and the title of the plaintiff became perfect. 3. Because, from the proof offered, the Court should have sent the case to the jury. Curia, pier Gantt, J. The report of the presiding judge in this case is so full and explicit, and his reasoning so satisfactory on the law giving construction to the deed, under which the plaintiff rests her ch\im, that it is deemed unnecessary to add any thing further in sup]iort of the views talien by him. It is therefore adopted as the oi)inion of the Court, and the !ionsuit as ordered cannot be set aside. The motion is therefore refused. KiciiAiiDsoN, Butler, Earle and Evans, JJ., concurred. T. and M. Williams, for the motion. Gregg and McAlilley, contra. See Supra, 2S1 ; 2 Sp. Eq. 5S9. An. GQ6 APPENDIX TO VOL. II. [*502 *502] *The State vs. James Ferguson. TThere the prisoner found a siim of money on the highway, which he soon after converted to his own use, with various circumstances of fraud and concealment, it was Held, "that if the prisoner, at the time of finding the pocliet-book, and before he removed the money, knew it to he the property of the prosecutor," the conversion under these circumstances would be larceny. Tried before Earle, J., at Chester, Fall Term, 1837, who reports the the facts as follows : The prosecutor, James "W. Key, on the 1st of Dec, 1836, lost, on the highway leading by the prisoner's house, his pocket-book, containing about six hundred dollars in bank bills. Searching for it the next day, he met the prisoner, and informed him he had lost his pocket-book with some little money in it. On the first Monday of December, a few days after the loss, it was ascertained that the prisoner had a large sum of money, and being searched, it was found he had, including the amount passed oft" during the day, three hundred and thirty-two dollars, which was given up. Of that amount a fifty dollar and a ten dollar bill were positively identified by the prosecutor, as jiart of the money he had lost. Before the Justice, on his examination, which was regularly reduced to writing, the prisoner said that the Friday before, he went out into the road near his house, and found a sum of money, rolled up in brown paper, and tied wiih a string ; that he did not know how much there was ; that he had kept it until that day ; that he had spent a considerable part to difterent persons in the village, and that was the balance which was found on him. When the money was first found on him, and claimed as Key's, prisoner said, " No, it is money I have been laying up for years." When asked if he had not passed a fifty dollar bill to McKee, he replied, no, I have not. Being taken to McKee's the bill was de- livered up which he had passed, and which the prosecutor identified as one of his. On the way to McKee's the prisoner took Key on one side, and said, I want to make it up with you. Key said, I want my money. Prisoner asked, how much do you lack ? and added, he did not like to be carried into the store before all the i)eople. The inducement which was supposed to make any statement of the prisoner inadmissible, was this ; after they left McKee's store, and before he was carried to the Jus- tice's, John A. Bradley said to the prisoner, it was his o[)inion that Key *503"1 ^'^"^^ show him all the *indulgence in his power, if he would come out, and say where the rest of the money was. What tlie prisoner said to iSIr. Bradley then, was excluded. But I did not con- sider so slight a circumstance enough to exclude his statement before the Justice, on his examination officially taken, that he had found the money. He did not disclose where the balance was. The jjrisoner's house is the only one Ijetween the residence of the prosecutor, Key, and that of his father, where ho went the evening he lost the ])ocket-book, and where he mi.ssed it. The name of the prosecutor was written in the pocket-book. There was no room to doubt that the jirisoner found the i)rosecutor's money, and the only defence seriously urged was that larceny could not be committed of money found on the highway. If I had charged the jury as stated iu the 3d ground, that they must find a fact which was *503] STATE VS. FERGUSON. 1837. G67 pliysically impossible, else they must acquit the prisoner, it would have beea morally impossible for them to find him {guilty. I instructed the jury, if the ))risoner, at the time of finding the pocket-book, and before he removed the money, ?'. e. before he himself removed, carrying it with him, knew it to be the property of the prosecutor ; or not krwvving it to be the property of the prosecutor, if at the time of removing the money he did it with the intention to convert it to his own use, it was larceny. The jury found the prisoner guilty. GROUNDS OF APPEAL. 7/j arrest of judgment: Because the indictment does not charge that the prisoner, at the time of finding the money on the highway, then knew the same to be the property of J. AV. Key, the prosecutor. And for a new trial. 1. Because larceny cannot be committed by a finder, in taking up bank bills found on the highway. 2. Because the confessions of the prisoner, made after promises of favor made to bim by John A. Bradley and others, were admitted in evidence. See Bradley and Gooche's testimony, which show the promises were made before confessions proven by Key and Wood. 3. Because there is error in the finding of the jurj', as the Court charged the jury, that they must find that the prisoner, at the very instant he took up the money on the high road, knew the same to be the property of the prosecutor, or they must acquit *the prisoner, — which knowledge, from the evidence r*^A_i was physically impossible. '• 4. Because the verdict is not only without but against the evidence, the law, and the charge of the Court. Curia, per Earle, J. The prisoner found a sum of money on the highway, which he soon after converted to his own use, with various cir- cumstances of falsehood and concealment. On his trial for larceny, the Judge instructed the jury " if the prisoner, at the time of finding the pocket- book, and before he removed the money, knew it to be the property of the prosecutor ; or not knowing it to be the property of the prosecutor, if, at the time of removing the money, he did it with the intent to con- vert it to his own use, it was larceny." It is on the latter paragraph of this instruction that the doubt of the Court arises. Of the correct- ness of the first part of the instruction, no question exists in the mind of the Court. And if the same verdict had been found on that alone, the Court might have been entirely satisfied with it. On the other branch of the instruction, the Court is divided ; on that point no opinion is ex- pressed. But as it is possible the verdict may have been influenced, in some degree, by that instruction, the Court is unwilling that the defend- ant should suffer on a verdict, when the law is at all doubtful. A new trial is therefore ordered, without prejudice. Gantt, Richardson, O'Neall and Butler, JJ., concurred. See Supra, 382; 5 Rich. 241 ; 2 N. & McC. 90. An. 668 APPENDIX TO VOL. II. [*505 *505] *Bright Williamson vs. James King, Adm'r. op Bacot. 1. Where a demand is barred by the Statute of Limitations, nothing less than a direct promise to pay, and an acknowledgment of a subsisting debt, due and owing, and which the party is willing to pay, will take the case out of the bar of the statute. 2. The promise must be so explicit, that the extent of the party's liability will appear by the terms of the assumption. Before Evans, J., at Darlington, Fall Term, 1836. . This was an action of assumpsit on four notes, and a due bill, viz. : 1st. Note dated 6tli May, 1812, for £115 4s. 8d., with a credit en- dorsed of $500 in January, 1817 ; payable to plaintiff. :2d. Note dated 7th July, 1819, for $875 14, payable to Williamson & Prince. 3d. Due bill 20th .January, 1819, for $2 10. 4th. Note dated 23d January', 1821, for$43G 32, with credits endorsed for S278 67, the last of which is 27th April, 1822. This note is payable to Williamson & Lide or bearer. 5th. Note dated 3d February 1821, for $457 16i The amount due on these various demands, with interest, is now up- wards of $3500. The defendant pleaded the Statute of Limitations. Bacot died in October, 1833, and this action was brought at Fall Term, 1835. Bacot had been Sheriff of Darlington from 1821 to 1825, and there were, as was said, unsettled demands between the parties in mat- ters appertaining to that office. To rebut the plea of the Statute of Limitations, the plaintiff offer the following evidence : Peter C. CoggeshaU. — Within three years before Bacot's death, he heard a conversation between Williamson and Bacot ; Williamson's object seemed to be to avoid the Statute of Limitations ; plaintiff said, we have not settled for a long time, and proposed fixing a day for settlement : Bacot said it made no difference about fixing a day ; Williamson said, let us say before these gentlemen that nothing between us shall go out of date ; Bacot hesitated and said he had never pleaded anything out of date ; Williamson replied, in case of our death let us prevent our representatives from doing it ; Bacot reluctantly assented, but the witness did not remember the words he used. The conversation related to all transactions between them, whether of the sheriff's office or in any way in which *50G1 ^'"icbtedness could arise, *])at neither these nor any other specific debts were mentioned ; Thomas Williamson and Wingate were present. Thomas Williamson. — Heard the plaintiff frequently propose a settlement ; remembers that in the old Court House heard plaintiff speaking to Bacot about a settl(!iiient ; Bacot said it made no difference, as nothing between them should go cut of date. This was one, two or three years before Bacot's death. The Court said in charging the jury, " In charging the jury I laid down the rule in conformity with Young vs. Montpeoy, Bail. Hep. that there must \)Q, a promise to pay, or a clear admission that money was due, from which a ])romiso to pay would arise. I advised them that, accord- ing to my undcrstaniliiig of the rule, a promise generally not to plead the Statute, without reference to the demand sued for, was neither an e.xpress or implied promise to pay the debt for which the action was brought ; and they found, in conformity with my opinion, for the defendant." The notice of appeal is annexed. *506] WILLIAMSON VS. KING, adm'r. — 1836. 669 Grounds for neiv trial: 1. That the promise of the defendant's intestate not to plead the Statute of Limitations to plaintiff's demands, was sufficiently proved, and as proved was sufficient to entitle the plaintiff to recover. 2. That there was error in the charge of the presiding Judge, that a mutual promise between the plaintiff and defendant's intestate not to plead the Statute of Limitations to any demands subsisting between them at the time, was not sufficient to take the case from under the operation of the Statute of Limita- tions, unless there was in such stipulation express reference to the particular demand or debt intended to be revived. Curia, per Butler, J. The plaintiff's motion in this case, must be refused, on the authority of Young vs. 3Iovtpeoxj, reported in 2 Bailey. At the time the defendant's intestate had the conversation with plaintiff, some years before his death, he was under no legal obligation to pay any of the demands which the plaintiff has asserted in this action ; they were, then, not subsistinj^ demands, being barred by the Statute. The intestate Bacot might, however, have restored the demands and have subjected *himself to a legal liability to pay them, if they had not r^cAy been settled. ^ Nothing less than a direct promise to pay, or unequivocal acknowledg- ment of some specific demand or demands, would have subjected him to such liability. The promise must have been so explicit that his liability could have been made to appear by stating the terms of the understand- ing in a declaration, reference being had to the old demand for a con- sideration ; that is, the extent of the liability must appear in the terms of the assumption. If one were to say, I will not plead the Statute, to a specific promissory note, or account, or bond, the liability to pay might be so distinctly admitted and implied that the party could not avoid it : but the extent of the liability would also appear at the same time. But where there is no specific demand mentioned or referred to, how can this appear ? Bacot might have contested the original validity of some of the demands, if they had been mentioned ; others he might have said were paid. To have resuscitated an extinguished demand, he must have acknowledged it to be unsatisfied at the time he had the conversation ; which he did not. The case quoted by plaintiff from 8 Durn. & Ea. 181, will not sustain him. A credit was given on an account, by the consent of the party to be affected by it, within six years ; Lord Kenyon held that it amounted to an implied promise to pay the balance. But here there was a specific demand referred to, and the credit was made before the statutory bar had run. If the credit had been made after the expiration of the six years, there might have been something in the case. The motion for a new trial is I'efused. Evans, Earle, Gantt, and Richardsox, JJ , concurred. Dargan, for the motion. Wllkins, contra. See 6 Rich. 122. An. 670 APPENDIX TO YOL. II. [*508 *508] *Let\t[s Moultrie vs. Robert Jennings. It is noTV the settled law of the land, that a voluntary conveyance of a personal chattel, is good against a subsequent purchaser with notice, where there is no fraud in the gift. 2. The Act of the Legislature passed in 1832, on the subject of parol gifts, was never intended to do more than prescribe a rule to govern future cases. Its application could not extend to gifts created before its passage. Before O'Xeall, J., at Edgefield, Spring Term, 1837. This was an action of trover, to recover the value of a negro woman, Jinsey, and her two children. The right of the plaintiff to recover, depended upon a parol gift. The plaintiff was the youngest son of Lewis Moultrie, deceased, who was the stepson of Ebenezer Hill, who had no children. It was proved that Mr. Hill was much attached to his stepson. When the plaintiff was quite an infant, not more than two or three years old, in the year 1817, he was left with his grandmother and grandstepfather for a short time. On his mother's coming for him, Mr. Hill asked her, after some time, if Lewis had told her that he had given him a negro ? She said, no. He said he had given one to her daughter, Sally, who was named after his wife, and that he had also given Jinsey to Lewis, who was named after his father, who had helped him to work for his property, and that he intended to make the other children of Lewis Moultrie, deceased, equal to these two, by will. In the frequent visits of the ]ilaintiff and his mother to Mr. and Mrs. Hill, Mr. Hill would tell the plaintiff's mother that " Lewis's negro outgrew Sally's" and on some of these occasions, he would make Lewis bring in the negro child, Jinsey, to show her to his mother. To other witnesses, from ]823 to 1825, he said that he " had given''^ the negro, Jinsey, to Lewis Moultrie, the plaintiff; and it was always understood by one of the witnesses, that she belonged to the plaintiff. Subsequent to these declarations of Mr. Hill, on the 20th of January, 1829, he sold the negro, Jinsey, to the defendant ; but accord- ing to the testimony of Seato)i Moultrie, when the defendant first pro- posed to buy Jinsey, Mr, Hill told him that he had given her to the plaintiff. On the day on which the defendant bought Jinsey, a will, by which Hill had bequeathed her to the plaintiff, was burned ; and after it was burned in his presence, the defendant asked if there was any thing else against the negro, beyond Lewis Moultrie's claim. *5091 ""There was no other evidence in the cause which is necessary -^ to be reported. The defendant rested his defence upon the grounds, 1st. That there was no ])arol gift. 2. If there was, that he was a purchaser, for favorable consideration, without notice. 3. If he had notice, still as a purchaser for vahiable consideration, his title was good against the plaintiff, a mere volunteer. 4th. That the Act of 1832 made the gift void. On the first ground the presiding Judge thus instructed the jury, — " That to make a good and legal gift, there must be a delivery, or that which is equivalent. (Falford vs. Lamar, last July Session.) I told them that a delivery might be presumed from the words, "had given." That it was a mere question of fact, on which they had the right to decide. On the 2d and *509] MOULTRIE VS. JENNINGS. 671 3d, I said to the jury, that if tlie defendant was a purchaser for valuable consideration, without notice, that his title was in law to be preferred to that of the plaintiff. But if they were satisfied that he had notice of the j>laintilT's claim, then that his title would be defeated by the previous gift. On the 4th, I said to the jury, that the Act of 1832 must have a pros- pective operation and effect; that it could not defeat the plaintiff's title, which was perfect before its passage. The jury found for the plaintiff $1,500, and 1 was entirely satisfied of the correctness of the verdict. The defendant appeals. [No grounds of appeal appear ever to have been filed with the record of this case ; of course none can he given here. The grounds of appeal may he antici- X)ated, however, from the report aud the opinion of the Court. — Rep.] Curia, per Evans, J. Upon the 1st and 3d grounds, it is sufficient to say, that they were facts which the jury have decided to the satisfac- tion of both the presiding Judge and of this Court. In relation to the 2d ground, I think it unnecessary to say more than that since the case of JIudnal vs. Wilder, 4 McC. 305, it has been considered as the settled law, that a voluntary conveyance is good against a subsequent purchaser, with notice. Such conveyances have been set aside in favor of subsequent purchasers and creditors, on the ground of fraud; but it would be absurd to say that a purchaser was defrauded by what he had notice of, at the time he paid his money. The 4th and last ground *iiisists that ^:^-1/^ the Act of 1832,(«) on the subject of parol gifts, is a legislative '- interpretation of the law on that subject, and should govern the case, although the gift was made many years before the passage of the Act. How far the power of the Legislative department of this government can interfere with vested rights by declaratory laws, is a grave question, but one which will be decided promptly whenever it arises. AVe think it very clear that that part of the Act which relates to this case, was never intended to do more than to prescribe a rule to govern future cases ; and it would be as improper as it is unnecessary to express any opinion on the subject. The motion for a new trial is refused, Gantt, Earle, Richardson and Butler, JJ., concurred. Bauskett and Wardlaw, for the motion. Griffin and Pope, contra, (a) 6 Stat. 483, § 2. An. 672 APPENDIX TO VOL. II. [*510 The Teeasurers vs. "W. K. Clowney, (Com'r in Equity.) Where a commissioner iu equity (upon the filing of a hill for injunction in his office) granted an order, that a writ of injunction should issue, upon the party's complying with the rule, hy gi\ing bond and approved security — and afterwards took a blank bond, or one that was informal, and informed the defendants to the equity proceedings, that he had taken a bond — whereupon, they were deceived as to its informality, and were never undeceived, until upon a trial at law upon said bond, they found it had been taken blank, and was therefore void. It was held, that the commissioner was liable upon his official bond, to the parties restrained and enjoined by his order, for the amount of the damages which they sustained, by reason of his laches and neglect. [It is a contempt of the Court of Equity, for a plaintiflf at law whose process has been enjoined, to proceed thereon, after the order for injunction and before the writ of injunction, if he has notice of the order. An.'\ Before O'Neall, J., at Union, Fall Term, 1836. This was an action on the official bond of the defendant as Commis- sioner in Equity, for not taking bond from the complainant in Equity, in a bill for an injunction. It appeared that several of the creditors of the late Mr. O'Kiefe, having recovered judgments against his administrator, which were unpaid, instituted such subsequent proceedings as enabled ^p.,,-] them to recover a *judgment for the respective amounts due to -' them, in the name of the Ordinary vs. The Admi7ri>ifrator, 3Irs. O^Kiefe and her securities; upon this judgment, execution was issued and lodged in the sheriff's office. A bill in Equity was filed by Mrs. O'Kiefe and her sureties, praying an injunction. The commissioner granted the prayer, and ordered that the judgment be enjoined, on the parties enter- ing into bond and security to perform the decree of the Court. No writ of injunction luas issued. The sheriff entered in his books that "the proceedings were stayed, on account of an application for an injunction." It appeared that the commissioner, intending to take a bond from the complainants under his order, permitted them to sign and seal a blank paper. The bill progressed to trial, and on demurrer was dismissed with costs. The paper signed and sealed as a bond was properly filled up, subsequent to the signing and sealing; and after the decree, an action was brought upon it, and it was adjudged to be void, and the plaintiff was nonsuited. It appeared on this trial, that neither the plaintiffs at law, nor their counsel, Col. Ilerndon, knew that the bond was executed blank. On inquiring of the commissioner, (the defendant,) Col. Hern- don was informed that a bond had been given. O'lviefc's estate was insolvent, but the securities of the administrator were good. The de- fendant told Col. Ilerndon, at some time during the proceedings had on the blank bond, that the persons executing it, agreed to take no advantage of the fact, that it was blank. The case now made, it seemed to me, did not materially vary from that before the Court of Appeals,(a) when a new trial was ordered. I therefore said to the plaintiff's attorney, that I thought he could not recover, lie submitted to a nonsuit, with leave to nKjvc the Court of Appeals to set it aside; which he now does, on the grounds annexed. («) Infra, 516. An. *511J TREASURERS VS. CLOWN EY. 1836. 673 GROUNDS OF APPEAL. 1. Because, the Court erred in decidinof lliat it was necessary tliat a writ of injunction should actually issue to make the defendant liable. 2. Because, in this case, the givin;^ of the lilanlc bond and notice to the plaintill's, or their attorney at law, that a good bond was given, was sufficient, without a writ of injunction issued, to make the defendant liable 3. Because the complainant took a bond he knew to be void, ''and of r*-|9 which the plaintiffs at law, or their attorney, had no notice was taken L blank, until the trial at law on the bond. 4. Because the decision of the Court, upon the case made, was erroneous, and the nonsuit ought to be set aside. Curia, per Earle, J. This cause comes up a second time before this Court on a motion to set aside a nonsuit, ordered by his Honor who presided in the Court below, who conceived that the case made on the last trial, did not materially differ from that made on the first. This Court has come to a different conclusion ; and in pronouncing their judgment, setting aside the nonsuit, it is necessary to consider the grounds of the former judgment, in connection "with the prominent facts proved then, and now in order to show that the material facts, on which the opinion of the Court is now formed, were not in proof on the former occasion. This Court is too sensible of the importance of stability and uniformity injudicial decisions, to depart from those which have already been pronounced by their predecessors ; and we should not hesitate to sustain the nonsuit ordered below, however great the hardship which the plaintiffs w^ould suffer, if we did not perceive, to our entire satis- faction, that the plaintiffs may have justice, without overturning the former decision. And first, I think it obvious enough, from the terras nsed by Chancellor Harper, in delivering the opinion of the Court, that he had not before him the original order of the commissioner, enjoining the plaintiffs. He defines the writ of injunction, and the service, and proceeds, " the order of a Chancellor for the granting of an injunction is not certainly, of itself, an injunction ; nor does it restrain the party, unless the conditions upon which it was granted shall have been complied with and the party notified that they have been complied with, by being served with a writ." Tlie Act of 1825(a) extends to the master and com- missioners in Equity the power to grant injunctions, which shall continue in force until the answer is filed, " in the same manner as the Chancellors are now authorized to do." The order granted by the commissioner is in these words. " On hearing this bill read, and counsel on the part of the complainants, it is ordered that the sheriff, John Anderson, and the judgment creditors, be restrained from further proceedings at law, on the executions within complained of, until a dissolution of this injunction on proper application made to a Chancellor, on the complainants giving *bond and approved security," dated June 2.9th, 1827. It will [-*ciq also be borne in mind, that by the Act of 1784,(/>) notice of the •- application was required to the ])laintiffs at law. This must be pre- sumed to have been given ; as also, notice to the sheriff, who by law was compelled to stay proceedings ; and it now appears that he made such entry on his books. From this statement it will be perceived, that the order was not that a writ of injunction should issue ; but an order that («) 7 Stat. 330, § 10. An. (l>) 7 Stat. 209, I 9. An. Vol. I. —44 67i APPENDIX TO VOL. II. [*513 neither the sheriff nor the plaintiffs should proceed, but be restrained therefrom, on complainants giving bond. Both having received notice of the application, the presumption is that they were present when the order was granted. As they did refrain from proceeding, the presump- tion is that they did so out of respect for an order emanating from a competent officer. But I would not put the case on that ground, seeing there is ranch stronger. The bond was pretended to have been executed on the 2d July, 1827, the third day after the order. It had the sem- blance of being a good bond ; it was filed in the proper office ; taken by the commissioner, and in pursuance of the order, who made the order ; and the important facts are now in evidence, which were not proved before, that the plaintiffs immediately afterwards, on inquiry of the com- missioner, were informed by him that the bond had been given ; and that they never were apprised of the bond being void, until the trial of the action at law, which they subsequently instituted upon it. These facts, I conceive, present a case materially different from the former one. And the case now comes to this — were the plaintiffs at law, according to the rules and practice of the Court of Chancery, liable to contempt if they had proceeded at law, after such notice as they had received ? — admitting for the present that their right to recover here, depends upon that test ; for it has been put upon that ground by Chancellor Harper. The cases from 3 Atk. 564 and 567, are very much to the point, especially the last, where a plaintiff at law was held in contempt, who had proceeded after an injunction granted, although the writ had not issued. But there are later cases. In 0,-^borne vs. Tenant, 14 Ves. 136, a motion was made to commit the defendant and his attorney, for a breach of injunction to restrain execution under a judgment. The affidavit in support of the motion, stated that the defendant and his attorney were in Court when the motion was made ; theirs stated that they did not hear the order. ^.r-\Ai Lord Eldon said, "if these parties by their attendance *in Court "^ -^ were apprised that there was an order, that is sufficient ; and I cannot attend to a distinction so thin, as that persons standing here, until the moment the chancellor is about to pronounce the order, which from all that passed, they must know Avill be pronounced, can by getting out of the way at that instant, avoid all the consequences. Javies ys. Downs, 18 Ves. 521, is to the same point. These were cases of injunc- tions to stay proceedings at law. The same point has been ruled in relation to other special injunctions, in Kempton vs. Eve, 2 V. & B. 348, and Vasa7i(hm vs Hose, 2 J. & "W. 264. Let it be conceded that these cases apply only to an attempted evasion of the order, witliout allowing time for the condition to be complied with, and the writ to issue, and that they do not reach so far as an indefinite delay, as is clearly intimated in James vs. Doivnes ; yet the case is presented in a different aspect, when we consider that the plaintiffs were officially in- formed, in answer to any inquiry, that the condition had been complied with, and the bond given. AVithout inquiring further into the effect of the terms of the order, tliat the plaintiff be restrained eo inslante, for that depends on Equity practice, with which we are not familiar, (although we are informed Ijy a learned Chancellor, that it is not usual to issue writs in form, and tliat the order and bond are considered as restraining the party, who would be regarded in contempt if he pro- *514] TREASURERS VS. CLOWNET. 1836. 675 ceetled,) I put the case on tlie ground, that the complainants in Equity, having complied with the condition and given bond, were entitled to the writ of injunction, which might have issued at any moment. At that instant, the plaintifls at law being informed of this fact altogether refrain from further proceeding at law, and plead to the bill in Equity for in- junction, and proceed to trial there, with the knowlege of the com- missioner, and, as he knew in consequence of his information. Supposing then the bond to have been good, could the plaiutiCf at law afterwards say, that as no writ had issued, he would proceed at law ? I apprehend not. It would be just as if a defendant at law should move to set aside the service of a writ, which he had verbally accepted or agreed to waive, after pleading to the declaration. The plaintiffs had waived the issuing of the writ. They had afforded the complainants in Equity the full benefit of their injunction, under the belief induced by them, and by the commissioner, that every thing had been done necessary to entitle them to the writ. For the cause went on to final hearing on *the bill. In that state of the case, supposing the bond to have rn;;^!-- becn duly executed, and an action Ijrought on it, would it have L availed the complainants in Equity, defendants at law, to plead in bar, that in fact no writ ever issued, and therefore, the plaintiffs were noi actually enjoined ? To state the proposition is enough to refute it. They would have been estopped from denying that a writ had issued, after having the full benefit of it. The answer to that inquiry, I am disposed to regard as the true test of the defendant's liability in this action. If I have succeeded in showing that the plaintiffs would have been in contempt if they had proceeded at law, after waiving the writ and pleading to the bill, it would seem to be clear, and for a stronger reason that the complainants in Equity would be liable, on their bond, after failing in their bill. Here I will refer again to the opinion of the Court, on the former hearing, to show that their judgment w'as based on a su|)posed state of facts disproved by the present trial. " But if the defendant should neglect to give bond, after a reasonable time allowed for that purpose, or should give a bond manifestly informal and insuffi- cient, like the present, certainly the complainant would be guilty of no contempt in proceeding. The party certainly cannot be entitled to the benefit of the order, who neglects or refuses to comply with the terms on which it was granted. In this case I have no doubt that the plaintiff might properly have proceeded, after he discovered what sort of bond the defendant had given." From this it is apparent, that the Court supposed the plaintiffs at law to have been early informed of the informal execution of the bond ; or to have delayed without any information at all that a bond had been given. The fact turns out to be that they were informed that a good bond was given, and that they never knew other- wise until the trial of the action at law upon it, when it was too late to proceed on their executions. In fact they could not have known that the bond was otherwise than good, nor have discovered it to be other- wise, by any examination they could make. So far from being manifesfbj informal, it wore the appearance of a perfect instrument, and they had the assurance of the commissioner that it was so. What then is the liability of the commissioner? The uniform practice in this Slate, since the Act of nS4, has been for the commissioner to take the bond. He is 676 APPENDIX TO VOL. II. [*515 required to approve of the security. He is tlie ministerial officer to issue the writ; and whether it be most proper that the bond should be to him ^ -, *or to the plaintiffs at law, yet it is equally his duty to see that it -^ is taken and filed; as much so, as it is the duty of the Clerk in the Court of Common Pleas, to take the bond in cases of attachment. He has undertaken to do it. He granted an order restraining the plaintiffs eo instanie the bond was given ; and then informed them that the bond was executed ; which had the effect of an actual injunction, by w^hich the plaintiffs were restrained ; which had the effect of an actual injunction, by which the plaintiffs were restrained ; and by which it must be presumed he intended they should be restrained. If it had been otherwise, can it be supposed that he would have permitted the plaintiffs to go on to trial in Equity, without undeceiving them ? It cannot now be allowed, that he shall avail himself of the plaintiffs facility in waiving the writ, or of their respectful ol)edieiice to his own order, to screen him- self from the consequences of his negligence, or bis unmerited confidence in the complainants. If the commissioner did not intend that his order should operate, and yet knew that it had operated, as an injunction, it was incumbent on him to have apprised the plaintiffs of the necessity of a writ, and that none had issued ; or to give them the earliest notice that the supposed bond was a nullity. Having done neither, all the presump- tions are against him ; and the Court are all of opinion that he must be held lialjle on his bond, for the amount of the plaiutifis' damages. The motion to set aside the nonsuit is granted. Gantt, Evans, Richardson and Butler, JJ., concurred. Herndon, for the motion. Thompson , contra. As to Commissioner's ordering injunctions — See Ahlrich vs. KirUand, S Rich. 349. Act of 1840, 11 Stat. 110, ^ 8, 17. iN'orns vs. mV/Zoms, Id. 58. An. IX THE COURT OF 10. The Treasurers vs. W. K. Clowney. Before Gantt, J., Union, Fall Term, 1835. Judgments ^vere obtained at law against Amelia A. S. O'Kief, as administratrix of Thomas O'Kief. Afterwards an action was brought on the administration berson shall appear as attorney to the absent debtor, and will put in bail to answer the action, and pay the condemnation," then the uttachinent shall bo dissolved. 0. The 4th section of the Act of 1785, provides, "that all attach- INDEX. 685 ments shall be repleviable, hy appearance, and putting in special bail, if by the Court ruled so to do." 7. 'rhe?e provisions constitute the law upon the subject. /And the Act of 1839 has not altered tiie old law. Vidr 3 McC. Ml. Fife d- Co. vs. Clarke, as ilhislrative of the tato. Crosslin vs. Reed & Reed, etal. ii., *10 " 56 ATTORNFvY. 1. "Where an attorney, acting under a power of attorney from the attorney of the principals, recites, in the deed of release, the power from the principals to the attorney, or person from whom he derives Lis powers, and in the body of the said release says " by virtue of the authority vested in me as aforesaid, and in the name and in behalf of the said Yarnum, Fuller & Co." (the principals,) " and others, I accept the provisions in the said assignment, made in this behalf, and do further release and discharge, &c. Signed, J. Winslow, [r,.s.] attorney for C. P. M. J. Winslow, [seal] agent for Yarnum, Fuller & Co." It was held, that this execution was in compliance with the rule which requires a deed executed by an attorney to be sealed and delivered in the name of his principal. 2. An acceptance of a provision under a deed of assignment, and a release of the principal, with the assent of the security, is equivalent to a discharge by operation of law, and the rights of all concerned are the same under one as well as the other. Vannim, Fuller & Co. vs. Evans, ii., *409 608 ATTORNMENT. 1. Where a party enters upon land, as the tenant of another, he cannot dispute the title of the party under whom he entered, by attorning secretly to a stranger. Camden Orphan ISociety vs. Lock- hart, et at. ii., *84 402 AUCTIONEER. See Agent and Principal, 2. AYERMENT. See Pleas and Pleading, 3. Slander, 4. BAIL. 1. A plaintiff after the defendant had been arrested by virtue of an order for bail, has a right to discharge the bail from any liability ; and also to discharge the defendant without his consent, although he may have given bond for the prison rules, and filod his schedule, with the view of taking the Insolvent Debtors' Act. Clarke, McTicr & Co., vs. Simpson, 1., *286 187 2. A prisoner confined under an order for bail, and who has filed his schedule with the clerk, and given notice to his creditors of his intention to take the Insolvent Debtors' Act, cannot take this Act where he has been discharged by the plaintiff at whose suit he has been arrested. lb. 3. It is questionable M'hether a defendant can be arrested pending a suit, where he has l)cen previously arrested and held to bail, and by the plaintiS" discharged lb. BAILEE. 1. Where money has been placed in the hands of a party, as agent or bailee, with instructions for a particular purpose, and the bailee has acted in pursuance of these instructions, the adminstrator of the per- son placing the funds cannot sustain an action of assumpsit against the bailee, for the particular fund. Slm})soti, Adrn'r, vs. Barri/, ii., '^"309. 2. The general rule unquestionably is, that if the owner of a chattel Lire it to another he cannot maintain either trespass or trover against a third person, in respect to an injury to, or conversion of it, during 686 INDEX. the time it is so hired. But to this general rule there is one exception, ■which is, if the bailee do an act inconsistent with the bailment, and calculated to defeat the rights of property of the owner, he may treat the bailment as ended, and maintain trover. 3, Where a married woman, previous to her marriage, executed to the plaintiff a deed of trust, for certain lands and slaves therein named, by which it was the duty of the trustee to permit the ce-^tui que trui^t dur- ingtheterm of hernaturallife.to use, possess and enjoy the rents, profits, issues, interests and emoluments, of the said lands therein mentioned, too-ether with the profits, hire, labor, and services of the slaves afore- said ; and the use, profits and increase of the stock and furniture aforesaid, without any limitation whatever : provided always, the same shall in no wise be subject to the control, debts, contracts, or inter- niedling of any future husband, or other person whatsoever ; and pro- vided the said personal property in said deed shall not be removed out of the district of Charleston without the consent of the trustee (the plaintiff) first obtained in writing. The plaintiff hired the slaves to Baxter, with whom the cesfui que trvst had intermarried, and they ■were in his possession in Orangeburg district at the time they were taken by execution against the said Baxter, and sold. Hdd that the plaintifl' could maintain trover for the conversion of the slaves sold, against the purchaser at sheriff's sale, it being in direct violation of the terms of the trust. Clark vs. Fuoser ii., *434 62-1 13ASTAKDY. 1. Two indictments may be sustained under the Act of 1839, against the putative father of two bastard children, born at one birth, but the indictments and the recognizances should describe each child by name and complexion, hair and sex, or by some means of separate identity. The State vs. Derrick, I, *338 220 2. The Act of 1839, is a repeal of 1795, on the subject of bastardy. lb. BILLS OF EXCHANGE, NOTES AND BONDS. 1. A blpouk note signed by a firm with sureties thereto, and by one of the firm placed in the hands of the plaintiff, a factor in Charleston, as collateral security for acceptances of drafts, to be drawn on him by the firm, and afterwards filled up in good faith by the ])laintiff, in accordance with his instructions, with the sum of $5000. the sum agreed on by them at the time the note was left, was held not to be void, and that the plaintiff had the same right that an endorsee would have to fill up the terms of an endorsement above the name of his endorser. Carson vs. Hill d' Jones, i., *7G 50 2. The plaintiff after he accepted drafts drawn by the firm, to the amount of $7, .500, acquired as perfect a right to the note as if he had bought it ; and his right could only be divested, and the defendants' liabilities discharged by payment 10. _ 3. All the payors to a joint and several promissory note are prin- cipals, and their relation to each other does not effect their liability to the payee J^, 4. Where a guaranty is absolute in its terms, and definite as to its amount and extent, in such case no notice to the guarantor is necessary /^, 5. AVhcro a debtor does not direct the application of money paid to any specific demand, where there are two or more, the creditor who receives ihe money may make his own application lb 6. The surety is bound by the terms of the contract, and cannot be discharged unless the i)rincipal varies the terms of the original con- tract, by enlarging the time of performance lb. 7. A note given for usurious interest, by the Acts of 1777 and 1831 INDEX. ' 687 is void, as well in the hands of an innocent holder, as between the original parties to it ; and usury may be given in evidence under the plea of the general issue in assumpsit, the whole note having been given ibr usury. GaUlarcl vs. LeScugneiii; i., *225 146 8. The husband of a "feme sole trader," is a competent witness to prove usury under the Act of 1777 Jb. 9. He who takes a note after it is due, takes it subject to any defence which the maker can set up against the payee ; and when the action is in the name of an endorser or I^earer, to entitle the defend- ant to set up by way of discount, any matter between him and the payee, he must prove that the note was transferred after due, and that the matter of defence existed between them at the time of the transfer. Cain, Ex'x. vs. Spann, i., *258 169 10. A note dated January the 8th, 1838, with the words " with interest from the first day of January last," — Held, that the time from which interest was to be computed, was the first day of January, 1837. Calhoun vs. Reynolds, et al., i., *304 198 11. The rule of law is, that a doubt shall be solved against him whose business it was to speak without ambiguity lb. BOND. See Commissioner in Equity, 1. 1. A bond given under the Trover Act of 1827, to the sheriff, is not assignable; and the assignee of such a bond cannot sue, in his own name, on the bond. Smitk vs. Cook & Norris, ii., *58 385 2. A replevin bond, given to the sheriff by a party, to prosecute his action in replevin to judgment, is assignable, and the surety thereto is liable to the same extent that the principal would be. Keckly ads. Harris, ii., *196 474 3. Where an action is brought by a party on a legal bond given under the Trover Act of 1827, "to be answerable for all damages which the defendant may sustain by any illegal conduct, in commen- cing and conducting the said action of trover," and the party suing on the said bond recovers, a new trial was ordered, unless the plaintiff would release all the verdict except so much as was rendered for the taxed costs of the former action. Vide Brown vs. Spann 3 Hill, 324, and note thereto. Dehay ads. Ferguson & Dangerfield, ii., *228 495 BOOKS OF ACCOMPT. 1. Inadmissible when entry made by a person not present at the de- livery of the goods charged. Harris vs. Caldwell, ii., *133 434 2. Inadmissible to prove work done by a mechanic out of his shop. White vs. St. Philips Church., ii., *30G 543 BREACH OF AYARRANTY. 1. Where there has been a breach of the warranty of title to a slave and the party purchasing has been deprived of the slave, by a para- mount title, the measure of damages, for the breach of such warranty, is the price paid for the slave. Glover {Assignee) vs. Hutson, ii., *109.. 4L7 [The right of action is not taken away by payment to the warrantee of the price, which the slave, after having been taken from him, was sold for ; but the question of recovery may be thereby diminished. ^l?ij 2. Where the unsoundness of a slave is known to a purchaser at public sale, he cannot maintain an action on the implied warranty of soundness. 3. Where the purchaser of a slave takes a bill of sale, or written warranty, and omits to insert a clause warranting the soundness, it is a reasonable inference that no warranty of soundness was intended, 'i'he presumption of warranty, however, is not conclusively rebutted, but it is a circumstance which should always be submitted or presented to the jury. Porcher vs. Caldwell, ii., *329 558 688 INDEX. CARRIER. See Trover, 2, 3; Private Ferry, 1. CITY COUNCIL OF CHARLESTON. 1. The City Council of Charleston have the right, under the consti- tution of this State, of passing an ordinance to prevent shop-keepers, (other than those licensed by the city,) from keeping any spirituous liquors, wines, «tc., in their shops or in any adjacent room, Ileissem- hritth ads. City Council, ii., *233 498 CITY ORDINANCES. 1. To throw bales of cotton from the upper story of a cotton ware- house, (without the usual rope and tackle,) on any of the open spaces near such warehouses, where cotton is ordinarily exposed for sale, is a violation of the City Ordinance. City Council of Charleston vs. Elford, i., *234 ' 152 2. The Town Council of Columbia, under the Act of Incorporation, have the power to enact by-laws, which shall be binding upon the persons and property, not only of the citizens of the town, but also of non-residents, when they come within the corporate limits of said town. Kennedy vs. Sowden, i., *323 210 COLLOQUIUM, See Slander, 5. COMMISSIONER IN EQUITY. Where a commissioner in equity, (upon the filing of a bill for in- junction in his office) granted an order, that a writ of injunction should issue, upon the party's complying with the rule, by giving bond and approved security — and afterwards took a blank bond, or one that was informal, and informed the defendants to the equity proceedings, that he had taken a bond — whereupon, they were deceived as to its infor- mality, and were never undeceived, until upon a trial at law upon said bond, they found it had been taken blank, and was therefore void. It was held, that the commissioner was liable upon his official bond, to the parties restrained and enjoined by his order, for the amount of the damages which they sustained, by reason of his laches and neglect. The Treasurers vs. Clowney, ii., *510 672 COMMISSIONER OF ROADS. 1. The Boards of Commissioners of roads represent the people of the district or parish for which they are appointed, and are clothed by law with a certain authority to act for the public. They are not, however, a corporation, and have no corporate funds ; consequently they are exempt from private actions for neglect of duty. McKenzie vs. Chovin, i., *222 144 2. A single Commissioner is not liable for damages in a private action, for an injury which may have been the result of want of repairs in the roads, &c., in his particular section lb. COMMISSIONER OF SPECIAL BAIL. 1. Where an issue has been made up to try the validity of a debtor's Bchedulo, and a day appointed by the commissioner of special bail, for that purpose, and the jury are in attendance — the question of post- ponement or continuance, becomes a question of discretion, to be ad- dressed to the commissioner, who will never grant the motion, unless upon the jnost satisfactory showing. 2. A plaintiff will not l)e permitted to add new and other specifica- tions, to his suggestions of fraud, kc, against a debtor's schedule, after the issue lias been made up, and the parties are ready for trial. 3. 'I'lie notes of the commissiuner of special bail, taken on the ex- amination of a debtor, applying for his discharge under the prisoa bounds' Act, on his previous application for discharge in the same INDEX. 689 case, and before the specifications of fraud were filed, is inadmissible evidence to go to tlie jury, on trial of the validity of his schedule. Benthi vs. Page, ii., *52 38L 4. The Act of 1836, secures to creditors the right, either in person or by counsel to examine and cross-examine a party who is about to take the benefit of the prison bounds or insolvent debtors' Act, in the presence of the judge or commissioner of special bail, before whom he may be applying. And it is the privilege of such person's counsel, (seeking to take the benefit of either the prison bounds or insolvent debtors' Act.) to ask the defendant, when on his examination, such questions as he may think proper, in reply to such as have been pro- pounded (and answered) by the adverse counsel. 5. Whenever the commissioner or judge permits a party to amend his schedule, after specifications have been filed, suggesting frauds, n ads. The Stale, i., *126. . . 83 2. 'I'he circumstances attending a fighting with pistols, and the intention of the parties, are questions of fact to be left to the jury Ih. ELECTION. 1. It is no ground to arrest the election of a Sheriff, and to eject from office, because the election at one of the polls in the district was managed by one mauiigcr, assisted by anotlier appointed by the Senator, under tlie Act of 18-18, p. 39, without any objection being made to liie appointment on the part of the representatives. The State ex rel. Donaldson vs. Townisend, i., *495 336 INDEX. 695 EVICTION. 1. In case of eviction, by title paramount, the measure of damages is the price paid for the land, witli interest, reareson vs. Davis, i., *37 24 2. Consequential damages cannot be recovered for any inconvenience or loss which the vendee may sustain in his improvements, however expensive or permanent. {The rase of Jkiiniiig, Ex'or, vs. Withers, (3 Brev. Rep. 458, ) considered and coiijinjicd.) lb. EVIDENCE. See Trespass to try Title, 8, 10, 11, 12 ; Trespass 4, 5. 1. Parol evidence is inadmissible to expUiiii a written contract, or to vary it, unless where there is ambiguity. King t& Co. vs. Coldimj, 1., *133 88 2. The docket of the Court in the svm. pro. jurisdiction, witli this entry : " Alex. Gregg vs. R. J. Gregg — Decree for FlainfiJ)'," is not such evidence of a judgment, as will enable a purchaser of land at sheriff's sale, to recover in an action of trespass to try titles. Evans vs. Hinds, i., *490 - 332 3. The declarations of a tenant, after he has aliened his right and interest in the land, is inadmissible evidence to prove where a line ran, or where a tree stood, Fddcr vs. Bonneft, ii., *44 376 4. Parol evidence is only admissible to explain a latent ambiguity. If a testator devise his estate to a person, or class of persons, by name or description, and it should turn out that there is no person of the name, or that will answer the description, parol testimony may be in- troduced, to explain to whom the testator intended the becpicst to be applied ; for there is a latent ambiguity, which, if unexplained, would render the will inoperative. Whatever is necessary to explain the ambiguity of the legatee, is equally applicable to an ambiguity in the description of the legacy itself. Domdd vs. Dendg, ii., *123 427 5. Where a shop-keeper, himself, sold and delivered goods to a party and during the same day, the entries were made by another person, who occasionally acted as clerk for him, it was held, that the book was no evidence of the debt, and that the evidence was inadmissible. Vide Hurts vs. Keufville in a note, S. P. Harris vs Caldwell, ii., *133. 434 6. In an action for assault and battery, the preceding words or im- putations of the same kind as those which immediately led to the as- sault, if previously communicated to the defendant, may be offered in evidence, by way of mitigation of damages. 7. The inducement to the transaction, and all such particulars, in the conduct of either party, leading to the final act. or forming part of it, as seemed to show in what degree blame attached to them severally ; and such acts as would aid the jury in determining the just pleasure of damages, would be admissible evidence. Dean vs. Horton, ii., 147... 444 8. Where an unauthorized inquiry has been instituted in the Court of Chancery, and so declared by the Court itself, the de])Osition of a witness who deposed in the chancery case, and who has since died, will not be received by a Court of law in a subsequent cause between the same parties. Com'r in Equity Mc iHiorler, ii., 254 5L0 9. The books of a tradesman or mechanic are admissible in evidence only to prove the performance and delivery of the work done within the mechanic's shop. Where the work is done outside of his shop, or on the premises of the party charged, such as building or repairing a house, or any other fixtures, there can be no necessity for books, for the work is apparent and palpable. St. Philip's Church, ads. White, ii., *306 543 EXECUTION. 1. Where there are several executions in the sheriff's office against 696 INDEX. the same defendant, of different dates, the defendant may, on paying money to the sheriff, direct its application, and the sheriff, on rule, will be protected. Adams vs. Crimnr/er, i., 309 201 2. A receipt from the Sheriff, when money has been paid on a junior execution, is a discharge to the defendant pro tanto on the execution. Ih. 3. The sheriff sold a tract of land under execution, which was pur- chased by a third person, against whom the owner subsequently filed a bill in chancery, to set aside the sale, on the ground that the execution was satisfied. The Chancellor, upon examining the case, thought the fact of satisfaction was proved, and that the purchase showed it ; he, however, referred it to the commissioner, to inquire as to that fact, and decreed, if found for the complainant, that the sale and deed should be set aside ; otherwise, that it should stand. Subsequently, the parties compromised, and the purchaser's money and costs were refunded, and he, by the direction of the owner, J. T. McJunkin, conveyed the land to J. A. McJunkin. It was held, That the Chancellor's decree was provisional. That the sherifl''s sale and deed still subsisted. That the leiral title was still in the alienee of J. A. McJunkin. Gist et al. vs. McJunkin et al, i., *342 223 4. That a sheriff's sale, under an execution purporting to be satisfied, when the sheriff has in his office, at the time of the sale, a subsisting execution, is not void ; and the plaintiff in the subsisting execution is not entitled to have the laud re-sold, but is only entitled to the proceeds arising out of the sale lb. EXECUTION, OR MESNE PROCESS. See Prisoner, 1. EXECUTORS AND ADMINISTRATORS. 1. In a suit against the securities of an administrator upon their bond, where a decree of the Ordinary against the administrator is offered in evidence, it is competent for the securities to show that the administrator, at the time of the decree, had removed from this State and was resident in another; and therefore was not subject to the jurisdiction of the Court. Buckner, Ordinary, vs. Archer et al., i , *85 57 2. In such case, it is not competent for the Ordinary to make the absent administrator a party by publication in the Gazette, and the the securities may show that the Ordinary proceeded in that form, although the decree recites that the administrator was duly cited and made default. Such recital is not conclusive. See Lesterjette, Ordinary, vs. The Ex'ors of Ford, in note lb. 3. A decree in the Court of Equity against an administrator, with the return of " miUa bona" on the j^. J'a., (issued on the decree,) is prima farie evidence against the surety on the administration bond ; and it is not necessary after such proceedings to have a decree of the Court of Ordinary before commencing actions on the bond. Ordinary vs. Carlisle, i., *100 67 4. A surety of an administratrix, (whose intestate was the adminis- tratrix of an estate in her lifetime,) is not absolutely bound by a decree in the Court of Equity against his principal, for the devastavit committed on the estate of Vhich his principal's intestate was the administratrix, where he was not made a party to the proceedings; and he is not conclud(Ml from showing that his principal received notiiing of the assets with which she is charged lb. 5. Tlio sureties to an administration bond are not liable to the heirs at law f(u- the rent of land belonging to the estate of which their principal was the administrator under special circumstances. Allen, Ordinary, vs. Bruion d'- llarUee, i., *249 162 INDEX. 697 FEE BILL. 1. By the fee bill of 1840, the ten times the excess which the ofTicet is made liable to forfeit to the party injured, is •' to be recovered by suit in the Court of Common Pleas, in which no imparlance shall be allowed ; or by rule in the case of sheriffs, or by sum. pro. in the cases of Magistrates and Constables, where the penalty may not exceed $20." By the fee bill of 1839, (of which that of 1840 is amendatory, so far as relates to sheriff,) the ten times the excess is to be recovered by suit in the Court of Common Pleas, in which no imparlance shall be allowed, or by rule when the penalty may not exceed twenty dol- lars. Putting these two Acts together — it was held, that the qualifi- cation in the Act of 1840, when the penalty may not exceed .^20, as applying to the rule in the case of sheriffs, and to the sum. pro. in the case of ^Magistrates and Constables. Boss, Sheriff, ads. Gavin et al., ii., *275 524 FEME COVERT. 1. A feme covert cannot be made a feme sole carrier under the custom, or under the Acts of the Legislature of 1823 and '24. Ewart vs. Nagel, i., *50 32 2. The privilege of a feme sole trader does not reach beyond buying and selling merchandise. {S. P.\ Hill, 429) lb. 3. The will of a feme covert is void at law, and the Court of Com- mon Pleas, acting as a Court of Appeals from the Ordinary, cannot entertain the question of executing a will under a deed of settlement. This is a question purely for the Court of Equity. Shaw vs. Dawsev, i., *247 :.... 161 FEIGNED ISSUE. See Garnishee, 4, 5. FORFEITURE. 1. After a Bank has suspended specie payments, its charter (in con- templation of law,) is forfeited ; but where, after its charter was thus forfeited, it continued to exist de facio, and exercised all the privileges and immunities previously granted by the Legislature, and the Legislature afterwards by subsequent legislation, declared that the corporation shall exist. It was held to be a waiver by the State of previous forfeiture. The State vs. The Bank of Charleston, ii., *439. . 627 FORGERY. 1. The words warrant and order, in an indictment for forgery, describing the instrument forged, are synonymous with warrant or order. The State vs. Jones, i., *236 153 2. An instrument signed by a party, is, in legal parlance, the paper writing of such party. It is his signature which gives it that char- acter, and not the body of the instrument Ih. 3. Every indictment for forgery must set forth the instrument charged as fictitious, in words and figures, so that the Court may be able to judge from the record, whether it is an instrument in respect of which forgery can be committed lb. 4. If an indictment charges the forgery to be with intent to defraud an incorporated bank, and its corporate name is set forth, it is suffi- cient if it appears to be an incorporate bank within this State lb, 5. The cashier is a mere officer representing the bank, and a check drawn upon him as such is drawn upon the bank ; therefore, a fraud committed on him, is a fraud upon the bank lb. 6. The same indictment set forth that the paper writing, alleged to be forged, purported to be a warrant and order for the payment of money, and to have been drawn by one Tristram Tupper. It then set out the instrument in hcec verba, from which it appeared that it was 698 INDEX. signed T. Tupper, and averred that the prisoner made it with the in- tention to defraud Tristram Tnpper : Held, that there was no variance, and that the count was well framed 153 7. If an instrument from its face purports to have been made in Charleston, S. C, and it is proved the prisoner at its date was there, and had the same in his possession, it is sufficient evidence to show that it was made there lb. 8. If a prisoner is guilty in fact of forgery, his conviction may be sustained, either under the Acts of 1736-7, the Act of 1801, or at common law lb. FRAUDS AND STATUTE OF FRAUDS. 1. The parol undertaking of a third person to pay for articles pur- chased by another, is void, by the Statute of Frauds. Richardson vs. Richardson, i., *280 183 GARNISHEE. 1. To enable a garnishee in attachment to retain the goods in his hands, it is not necessary that he should prove himself to be a creditor entitled to bring an action ; it is enough if he establishes a lien, even for outstanding liabilities incurred for the defendant, and absent debtor, which creates a special property, until discharged, and over- reaches the claim of the attaching creditor. Bank of the State vs. Levy, i., *431 283 2. An agent here, who, for a commission, negotiates exchanges for a house in New York, who buys bills on Europe for them, and to raise the funds for that purpose, draws and sells bills upon them at home for corresponding amounts, some of which they accept, and others do not, and the bills are protested, such agent, on the failure of the prin- cipal house, has a lien on any funds or securities which come to his hands for his principals, to secure himself against these outstanding liabilities, although in fact he may not have paid any of the bills lb. 3. And there is no difference between bills accepted and not paid, and bills not accepted. The lien extends to all equally. Nor does it make any difference, that the funds and securities come to hand after the liability is incurred, and therefore were not looked to as an indem- nity at the time lb. 4. The right of property in goods attached, if claimed by the gar- nishee, or by another, may be tried in the form of a feigned issue, wherein the garnishee or other claimant is plaintiff, as well as in any other form. GohJthivaite t& Evans vs. Bryant, i., *451 299 5. Where a third person, not served as a garnishee, lays claim to the goods attached, and is allowed to come in with the privilege of a garnishee, and to make up a feigned issue as plaintiff, to try the right of property, whereby he gains possession of the goods, if he afterwards discontinue, and withdraw the record, he cannot then require a sug- gestion to be filed by the jilaintiff in attachment, who is entitled to judgment against him as a defaulting garnishee lb. GUARANTY, See Bills of Exchange, Notes and Bonds, 4. GOAL FEES. See Prisoner, 1. HAWKERS AND PEDLARS. 1. Books were sent up from Charleston to Columbia, and consigned to Folock. Solomon & Co., merchants and auctioneers in Columbia, by whom the freight from Charleston was paid, and sold by them, and the defendant, at auction and at private sale, for the use and benefit of the defendant : llehl, not to come within the purview of the Act of Assembly for Hawking and Peddling. The State vs. Belcher, i., *40. 25 2. A hawker and pedlar is one who travels from town to town, or ri INDEX. 699 from plantation to plantation, carrying to sell, or exposing to sale, goods, wares and merchandise ; but a single shipment of goods, regu- larly consigned to Polock, Solomon & Co., by the defendant, and sold by himself or them, for his use and beneflt, is not hawking and peddling within the meaning of the Act f 5 3. The defendent, a non-resident of this State, did sell goods, wares and merchandise, in a house in the town of Columbia, and is therefore, when properly indicted and convicted, liable to the penalties of the Act of Assembly of 1835, page 6. (Per O'Neall, J.) lb. HOLDER. 1. Holder is a word of the same import as bearer, and both may acquire a title by lawful delivery according to the terms of the contract. Putnam vs. Crymes d; Owlngs, i., *9 6 HUSBAND AND WIFE. See Bailee, 3. 1. "Where an action of assumpsit is brought in the name of husband and wife jointly, and the declaration alleges the promise to have been made jointly without stating what interest the wife had, or any reason is shown why she should have been joined, it is such a defect as cannot be cured by the verdict, and which is fatal upon a motion in arrest of judgment. (1 Chitty. PI. 20; 2 Wm. Bl. 1236 ; 2 Caines' Hep. 221 ; 2 Burr. 279.) Creiger et nx. ads. Smiih, ii., *140, 279.. . .. 526 IMPLIED WARRANTY. See Breach of Warrantij, 2, 3. INCORPORATIONS. See City Ordinances, 2. INDEMNITY. See Indorser, 2. INDICTMENT. 1. It is not necessary, in an indictment under the Act of 17.^4, (P. L. 33.5-6,) for aiding a slave in running away and departing from his master's employment, to set out and aver the means used in aiding the slave to run away. It is sufficient, for all purposes, if the indictment charge the offence in the words of the Act. It must definitely and directly charge the defendant with aiding the slave in running away, so that his master has been deprived of his services ; the name of the slave, and the name of his master ; the time and place, &c. State vs. Blease, i., *472 316 2. Id an indictment for inveigling, &c., Edmond, the slave of L. J. Cross, it was held not necessary to allege that L. J. C. was the owner or employer of the said slave. It is sufiScieut if the charge is laid " one negro slave of L. J. C." The State vs. La Creiix, i., *488 330 3. The material words of the statute under which an indictment is framed, must be used lb. 4. It is not necessary to allege in an indictment, by what means or how the prisoner aided the slave in departing from the service of his master lb, 5. Any trading with a slave, without a permit from his owner or employer, in buying or selling, for cash or on credit, for much or for little, is an indictable offence under the Act of 1817. State vs. Claus Vonglon, Jr., i., *187 123 G. A count for felony, and a count for a misdemeanor, may legally be joined in the same indictment. The State vs. Boise <£' Stake, i., *189 124 7. Where two persons were jointly indicted for receiving stolen goods, and one of them was acquitted, the acquittal of one does not operate as a discharge to the other. Boies ct Stuke ads. 'The State, ii., *252 509 8. Wherever one of the counts in an indictment for trading with a 700 INDEX. slave is good, the Court awards judgment upon it, notwithstanding the other counts maybe bad. The Stale vs. Turner, ii., *399 601 Tide, also Forgery, 1, 2, 3, 4, 5, 6, 7, 8, and Bastardy, 1. INDORSEE. 1. The protest of a note for non-payment, and legal notice to the endorser, binds the endorser for the payment of the debt. State Bank vs. /. C. Kerr, I, *139 91 2. "The surety is bound by the terms of his contract, and if the " creditor, by ajreement with the principal debtor, without the coucur- ^ " rence of the surety, varies these terms, by enlarging the time of "performance, the surety is discharged ; for he is injured and his risk " increased." Ih. 3. AVhere a new contract had been made by the defendant, Kerr, with the bank, (which he never complied with,) by which he was to have five years, by substituting new notes wth the same endorsers, in lieu of the suit ; it was held not to be such a variance as to discharge the endorsers lb. 4. Whese there is a special endorsement on a note, waiving the right to the usual notice of demand and refusal ; unless the endorse- ment is written by the endorser, its truth and correctness must be clearly proved to have come from his authority, or it cannot avail the endorsee Fowler vs. Fleminr/, i., *282 184 5. ^Yhere the endorser of a promisory note has secured himself against his liability, by an assignment or lien upon the whole, or a sufficiency of the maker's property as an indemnity, notice is not required to be given to him. Barrett ads. Charleston Bank, ii., '*191. 471 INFANCY. 1. Where a daughter (an infant) resides with her mother, before marriage, it will be presumed that she was properly maintained, until the contrary is proved ; for the mother is considered to be the proper judge of what is necessary for her, and should be consulted before a credit is given to her. Vide Connolly ads. Assir/necs of Hull, 3 McC. Rep. 6 ; Jones c& Danforth vs. Colwin and wife, i., *14 9 INJUNCTION. See Docket, 1. [It is a contempt of the Court of Equity, for a plaintiff at law, whose process has been enjoined, to proceed thereon after the error for injunction, and before the writ of injunction, if he has notice of the error. Treasurers vs. Clowney, 510. J./i.] INSOLVENT DEBTORS' AND PRISON BOUNDS' ACTS. 1. Before requiring a defendant, who applies for his discharge under the lusolcent Debtors' Ad, to join in an issue to try the fairness of his schedule, there ought to be some showing by affidavits ; but if the plaintiir, without affidavit, makes the charge by suggestion, and the defendant pleads, he waives his right to call for affidavits ; he admits by his plea that there is something to be tried by a jury. Baker, Johnson (l> Co. vs. Jiushnell, i., *GG 43 2. An applicant for his discharge under the Insolvent Debtors' Act, will not be permitted to discontinue or withdraw his application after a suggestion charging his schedule with fraud has been filed. Sher- man it' Dehruhl vs. Barrdt, i., *147 96 3. A defendant's schedule is amendable, under the discretion of the Court ; but it must be shown by affidavit, or otherwise, to the satisfac- tion of the Court, that the omission to insert the property omitted in the schedule, arose from ignorance, inadvertance, or mistake. He M'iU not be permitted to amend, if it will create surprise or delay to the other party Ih INDEX. 701 4. Whenever the right of a person to be discharged is resisted, on the groiuul of fraud, it is not necessary that there should be any show- ing on oath, unless the result of the allegation would be to delay the hearing of the debtor's application. In that event, the Court, in the exercise of a sound discretion, may require the creditor to verify his accusation by affidavits 96 5. The limitation of time in the 7th section of the Prison IJounds' Act, (P. L. 457,) applies solely to undue preference ; and a fraudulent sale or conveyance, and a fraudulent preference, are two distinct things lb. 6. A witness attending under a subpoena duces tecum, is not required to testify, but merely to bring into Court a paper which the party needs Ih. 7. Where an applicant for the Insolvent Debtors' Act has been dis- charged by order of the Circuit Court, and the order for his discharge has been set aside by the Appeal Court, the rights that he acquired by the order ceased and determined when it was reversed by the Appeal Court. Baker, Jolmxon & Co. vs. Bushnell, i., *272 178 8. Every prisoner in execution is entitled to the prison bounds, on his giving to the sheriff security to remain within them, and to render a scliedule on oath within forty daj-s ; provided, if he intends to take the benefit of the Insolvent Debtors' Act, passed in 1759, he or she has not been in actual confinement forty days. 9. Whenever the prisoner intends to take the benefit of either of the said Acts, if he has the privilege of the bounds, he must, according to his bond, render a schedule on oath. 10. Where the prisoner renders in a schedule on oath, of his whole estate, he has the right to apply for a discharge under either of the said Acts. If he applies for a discharge under the Act of 1788, he need file no petition, but the clerk is required within ten days after receipt of the schedule, to give notice that the prisoner will be dis- charged, and the schedule assigned, unless satisfactory cause to the contrary be shown before one or more judges of the Court from whence the process originates, or one of the Commissioners of special bail, 11. It is the duty of the clerk to give the notice, and it must be done within ten days after the filing of the schedule ; but the notice must be given on the application of the prisoner. He must elect, and not the clerk. The Insolvent Debtors' Act requires the application to be made by petition ; the other Acts require no petition. Muldrow, Assignee, vs. Bacot et al., ii., *359 577 INSUEANCE COMPANY. i. A party insuring goods, &c., with an insurance company, is not obliged to demand payment of the contributors, before bringing suit against the insurers. Faulkner ^' Rogers vs. Augusta Insurance Company, ii., *158 450 2. Where a party obtained from two different Insurance Companies a policy of insurance for the same stock of goods ; and by one policy, (to wit,) the one obtained from the defendants, it was expressly stipu- lated, "that incase the buildings or goods herein mentioned, have been already, or shall be hereafter insured by any policy issued from this office, or by any agent for this office, or by any other Insurance Company, or by any private insurers, such other insurance must be made known to this office, and mentioned in or indorsed on this policy otherwise this policy to bo void." lleld, first, that the ([uestion of whether the stock of goods described in this policy was the same as those described and covered by the policy in the Charleston Insurance 702 INDEX. Company, was a question properly for the jury, and their fiiuling will not be disturbed. Secondly, it was held, that the policy of insurance obtained from the defendants was void by the terms of the policy. It having- been obtained by fraud and misrepresentation. Hcve vs. Columbia Insur- ance Company, ii., *220 490 3. An Insurance and Trust Company have the risfht on a trial upon a policy of insurance, to insist and demand the production of the pre- liminary proof as a condition precedent to the plaintiff's recovery. But they may, nevertheless, have waived their right to call for such evidence by some act on their part, when the policy was presented for payment. 4. What is or is not a waiver of the preliminary proof, must depend on the circumstances and language used at the time. 5. Where a party took a policy of insurance from an Insurance and Trust Company, upon liquors, groceries, &c., and the same day on which the policy was executed, permission was given by them to assign the policy to a third person, it was held, that the party to ■whom the assignment was made was entitled to recover, to the amount of the interest which he had in the policy, notwithstanding the party to whom the policy was granted, had deprived himself of his right to recover by acts of fraud. 6. The plaintitt' placing the policy in the hands of a third party to "assure" him, by consent of the underwriters, gave to (Khonke) the third party only an equitable interest, but such an interest as a Court of law will recognize for the purpose of doing justice in a legal pro- ceeding. Neve vs. Colom,hia lastirance Company, ii., *237 500 INTEREST. See Bills of Exchange, Notes, &c., 10. JOINT CONTRACTORS. See Statute of Limitations, 14. JOINT TRESPASSERS. 1. In an action of trespass and assault and battery, where the bat- tery has been committed by several, and a recovery had against ono, such recovery may be pleaded in bar to an action for the same battery brought against another. Smith vs. Singleton, ii., *184 467 JUDGE. See Slander, 6. Trespass to try Title, 12. JUDGMENT. 1 A Court of law has the power to vacate or set aside its own judgments, when obtained by or founded in fraud. Dial <& Henderson vs. Farroiv, i., *292 191 2. The proper course to pursue, where a judgment is sought to be vacated, and affidavits are submitted by the defendant, is to take out a rule for the plaintiff, returnable to the next term of the Court, to show cause why the judgment should not be set aside lb. 3. The judgment under which the land is sold, at sheriff's sale, becomes a part of the title of the purchaser. Jones vs. Crawford, i., *373 ....!.. 243 JURISDICTION. 1. In bringing an action in the sum. pro. jurisdiction, to recover the penalty of $.^)(), under the Act of 1830, for the unlawful beating of a slave, it is not necessary that the plaintiff should aver in his process that the defendant was a white man. Caldwell, et al. vs. Langford, \., *275 180 2. Strictness of pleading is not required in the summary process jurisdiction lb. JURY. Larceny, 4. INDEX. 703 JUSTICES. 1. Where two Justices, under the Habeas Corpus Act, had admitted a person to bail, who wns charged witli iiiurdcr in the warrant, it was held that they were guilty of an escape, and might very properly be indicted. Tiie Stale vs. Arthur & Giiujnard, i., *456 303 KILLING- A SLAVE. See Railroad Compamj, 2. LANDLORD AND TENANT. 1. The wife of a tenant is a competent witness between tlie land- lord and a third person. Seii/Iiiifj vs. 3rtin, i., *252 IGi 2. Where the agent of a landlord under his own hand and seal, issued a distress warrant against the goods of the tenant, and consti- tuted a third party as bailiff to levy the warrant, it was held compe- tent for the landlord to come in and substitute himself for the agent on the record, and avow for rent in arrear. Keckly ads. Harris, Administrator, ii., *196 474 LARCENY. 1. The defendant was a common carrier, owned a Ijoat on the San- tee, and undertook to transport cotton from Orangeburg district to Charleston, belonging to various persons. Before reaching Charles- ton, and while passing down the river, he communicated his intention (to one of the hands on board,) of converting the cotton to his own use. Afterwards at " Euchuio Creek,'" in Charleston district, he con- summated his previous intention, by burning a portion of the cotton and disfiguring the marks upon the other bales by patching, and had the cotton shipped on board a steamer to Charleston, and sold and appropriated the sales to his own use. Upon an indictment for grand larceny in Orangeburg district, the jury were charged by the Court : First, "That to convict the prisoner of larceny, there must be a taking and carrying away of the goods laid in the indictment, with a felonious intent, in the District of Orangelairg." " Second, That when the prisoner received the goods, if he intended to deliver them in good faith to the consignee in Charleston, then his subsequent fraudulent appropriation of them to his own use could not make him guilty of larceny." Third, If, when the goods were delivered to him, he received them with the intention of stealing them — then it was larceny from the beginning, as laid in Orangeburg District." 2. The prisoner was found guilty under this charge, of petit larceny. And the Appeal Court held, upon appeal, among other things — 1st. That the jury under the circumstances, were at liberty to infer that the defendant, at the time he received the cotton in Orangeburg, intended to steal it and convert it to his own use, and the verdict of guilty was very properly given. 2nd. That the cotton so stolen by the defendant belonged to three different individuals, and he was very properly indicted in three cases, and a conviction in one case was no bar to a conviction in tlie two others. The stealing of the goods of different persons is always a distinct larceny. The Slate vs. Tiiurston, ii., *382 591 3. Where the prisoner found a sum of money on the highwa}-, which he soon after converted to his own use, with various circum- stances of fraud and concealment : it was held, "That if the prisoner at the time of finding the pocket book, and before he removed the money, knew it to be the property of the prosecutor," the conversion under these circumstances would be larceny. The State vs. Ferguson, ii., *502 C66 LIEN. See Garnishee, 2, 3. 704: INDEX. LEVY. 1. A levy upon sufficient personal property is prima facie evidence of satisfaction. 2. Where personal property had been levied on (ten years before,) of the defendants, and by the direction of the plaintiffs the sheriff did not advertise and sell, the plaintiffs will not be permitted to claim money arising- from other sales of the defendant's property under junior executions. Their lien upon other property of the defendant is suspended until the first levy is disposed of and found insufficient. Neither can it be restored by their own act in releasing the levy, after the levy and sale under the junior execution. Moore & Neshit vs. Kelly, ii., *350 572 LOCATION. See Trespass to try Title, 4, 5, 6. MALICIOUS PROSECUTION. 1. Where a prosecution against a party never legally existed, he cannot maintain an action for malicious prosecution. Braveboy ads. Cockfield, ii., *270 521 MECHANICS' BOOKS, ^qq Evidence,'^. MINISTERIAL OFFICER. See Constable, 2. NEW TRIAL. See Slander, 5. Verdict, 2. 1. Where the injury to a horse, (which has been found within the enclosure of another.) appears rather tlie I'esult of accident than design, and a decree for the pkiintiff, for the injury, has been given — a new trial will be granted. Joius ads. /S'e(/J i., *12 8 2. Where a trespass for beating a slave has been clearly proved, without any legal justification, and the jury find a verdict for the defendant, a new trial will be granted. Griinke vs. Houseman, i., *131.. 86 3. The confession of a clerk, in the absence of his employer, that he had sold wine to a servant girl, is not evidence to charge the employer; and a new trial will be granted to the absent defendant, without prejudice, The State vs. Boise tt- Stiike, i., *191 125 NONSUIT. 1. The rule of Court which provides that a plaintiff who does not proceed to trial on the fourth call of the cause, or obtain a continu- ance, shall be nonsuited, is not only within the power of the Court, but is expedient and proper, and ought to be enforced. Munro vs. Laurens, I, *442 291 2. In such case, where a nonsuit has been ordered, or the cause has been struck off the docket, the Court will not set aside the nonsuit, or restore the cause, at a subsequent term, on the affidavit of the plaintiff, that he was misled by the Clerk's order for judgment by default, and supposed that final judgment had been obtained, although his attorney may have died in the meantime lb. NOTE. See Consideration, 4. NUISANCE. 1. All roads laid out hy public authority mnsi be regarded as public roads, in the obstruction of which a nuisance may be committed. The State vs. Mohtey, i., *44 28 2. A road laid out by order of the County Court of Chester Dis- trict is a public road, unless discontinued by order of the Commis- sioners of Roads, or become extinct from long neglect or non user. . , lb. ORDINARY. See Court of Ordinary. OVERSEER. See Contract, 3. INDEX. "05 PAROL P:VIDENCE. See Evidence. Court of Ordinary. PAROL GIFTS. It is now the settled law of the land, that a voluntary conveyance of a personal chattel, is good against a subsequent purchaser with notice, where there is no fraud in the gift. 2. The Act of the Legislature passed in 1832, on the subject of parol gifts, was never intended to do more than prescribe a rule to govern future cases. Its application could not extend to gifts created before its passage. Moultrie vs. Jennings, ii., *508 670 PARTITION. See Court of Ordinary. PARTNERSHIP. 1. One partner, after the dissolution of the copartnership, cannot bind the other, by signing the partnership name, without express authority ; and notice through the public papers, to the plaintiffs, of such dissolution, is sufiBcient. Galliott & Lefevre ads. F. & M. Bank, i., *209 1 36 2. Each renewal of a note in bank, is a new contract lb. 3. One co-partner cannot bind another, by an obligation under seal, without express authority given, or inferable from their course of deal- ing. Lucas vs. Sanders & M'Alilley, ii., *311 203 4. Neither can a recovery be had against ane, upon a paper pur- porting to have been made jointly, as upon a joint and several obli- gation lb. 5. A promise by one co-partner, after dissolution of partnership, cannot create a new liability against the other partner, on a simple contract, barred by the Statute of Limitations before the dissolution. Steele vs. Jenninys & Beaty, i., *297 194 PATROL. See Courts Martial, 1, 2, 3. PARTNERS. 1. Where grain received at a mill as toll, was mixed up, and became the subject of traffic between the defendants, each being part owner and interested in the proceeds of the sale : It was held that they were partners in that particular business. Benson vs. McBee & Alexander, ii., *91 406 2. The general rule of law is, that partners are bound by the acts of each other ; and where one of a law partnership obtained the pos- session of a letter, (containing an authority to take care of the interests of the plaintiff,) directed to the other partner, and acted under the instructions contained in the letter, it was held, that the plaintiff was bound by the act of the partner, as much so as if he to whom the letter was directed had received it, and acted upon it. Beck vs. Martin, ii., *260 .515 3. Where the sealed note of one of a partnership firm is taken for a debt due by the firm, the simple contract of the partnership is extin- guished by the sealed note. Jacobs vs. McBee &; Alexander, ii., *348. . 570 PAYORS. See Bills of Exchange, Notes and Bonds, 3. PLEA IN BAR. See Joint Trespassers, 1. PLEAS AND PLEADING. 1. Upon the " non estfacturn" solely, a defendant cannot go into evi- dence of the failure of the consideration. He must give notice to the plaintiff of such matter. Vide Bolinqer vs. Thurston, 2 Mill's Const. Rep. 447 ; and 1 Hill, 370. Ragsdale vs. Thorn, i., *335 218 2, Wilful misrepresentation, or any other matter will go to show Vol. I.— 46 706 INDEX. that a bond, note, or other instrument, was void in its creation, may be given in evidence under the general issue 218 3. Where a declaration contains an averment that is foreign to the issue, and which may be rejected as surplusage, it need not be proved. But every material averment must be proved. Bell vs. Lakin, *3G4.. 237 POSSESSION. See Trespass to try Titles, 1, 2, 3, 10, 11, 12. See Statute of Limifatinns, 9, 10. 1. Although an actual possession of twenty years will raise the pre- sumption of a grant, yet, where the plaintiff made a survey of many contiguous tracts, with the intermediate and dividing boundaries dis- tinctly represented on the plat, doubted whether a possession of twenty years on one only of the several tracts, would raise the pre- sumption of a grant to all the lands included within the survey. Alston vs. MrDoical, i., *444 293 2. In such case a plaintiff cannot rely on a possession of twenty years on one of the tracts, to raise the presumption of a grant to him- self of all the lands contained in the survey, when he produces original grants to others for several of the tracts, (being those in dispute,) of a date anterior to the commencement of his possession lb. 3. The defendants being in possession of these, and the plaintiff having produced the original grants, he must show that he has acquired the title of the grantees by conveyance, by adverse posses- sion, or such possession, with other proof, as would raise the presump- tion of a conveyance lb. 4. An entry for the purpose of survey, will not create the bar of the statute ; nor will such entry, together with the possession of the grant, without other proof, raise the presumption of a conveyance from the grantees lb. 5. The defendants being in actual possession of the tracts so granted, of which the plaintiff never had possession: Held, That the plaintiff could not recover without proof of title lb. POST NUPTIAL AGREEMENT. 1. Where there has been a post-nuptial agreement, between two parties, and a deed of trust is executed, (to a third party as trustee) of certain slaves, for the use and benefit of both husband and wife, during life, upon the death of either, to the use of the survivor, and after the death of both, to the use of the children of the marriage, with a power to sell and re-invest, at the request of husband and wife, or the survivor of them; and after the death of the wife, the trustee, at the request of the husband, sold the slaves and conveyed them to the defendant — It was held, that the purchaser's title was good. That the trustee had not only the legal estate in the property, but he had the power to sell, and at law, the title could not be disputed, Pyron, et ux., vs. Mood, ii., *281 .528 PRIMA FACIE EVIDENCE. See Administrator, 1, 2. PRISON BOUNDS' BOND. 1. A Prison Bounds' Bond becomes forfeited, against all the parties to it, when the principal forfeits his rights to the beneOt of the law under which it was taken ; and the liability of the securities is fixed, UB soon as the plaintiff acquires his right to the bond by assignment. McCarlnj, Ex'or. vs. JJavi.s; et at., i., *34 22 2. The amount of recovery is the amount of the debt on which the defendant was confined lb. PRISONER. 1. A prisoner, confined in jail under execution of mesne process, is bound to maintain himself, so long as he has the means ; and where a INDEX. 707 sberiff or jailor has in his custody a prisoner, confined citlier under execution or final process, before he can recover pay for the mainte- nance of such prisoner, from the plaintiff at whose suit the prisoner is confined, he must show that the prisoner has no means of paying his jail fees, and nothing out of which he can be supported. Thoinanson vs. Kerr, ii., *340 5C.') PRIVATE FERRIES. 1. The owner of a private ferry may so use it, (although on a road not opened by public authority, or repaired by public labor,) as to subject himself to the liability of a common carrier, if he undertakes for hire, to convey across the river all persons indifferently, with their carriages and goods. But this is a cpiestion of fact, to be determined by a jury, and when once passed on by a jury, will not be disturbed, unless for misdirection in the Judge who heard the cause. Liillcjohn vs. Jones, ii., *365 581 PROBABLE CAUSE. See Action oa the Case, 2. PROHIBITION. 1. Where a detachment of the militia of the fourth brigade, South Carolina Militia, had been detailed, (by the brigadier-general of the brigade,) as a fire-guard, in the City of Charleston, under the Act of 1829, and before their term of service as such guard had expired, the officers and sergeants belonging to this detachment, together with all the officers, &c., composing the said brigade, had been ordered by the brigadier, under orders from the Governor of the State, to encamp and perform encampment duty — It was held that the fire guard and encampment duties did not conflict ; and a prohibition to restrain the collection of fines imposed by the court martial against the relators, for a neglect of the later duty, was refused. Ex. rela. Oakley et al. vs. Edwards et al., i., *215 140 2. A writ of prohibition will lie, to restrain the enforcement of a tax execution. Burger, Tax Collector, xs. Carter, ex re^a., *410 267 PROMISSORY NOTE. 1. Where a party writes his name on the back of a promissory note, payable to a third person, not yet due, without express words to show the nature of his contract, he will be held as an original promissor. 2. It seems the undertaking will be regarded as original, and not collateral. Stoncij ads. Beaubien, ii., *313 54S PUBLIC SALES. 1. Defendants, executors of Dr. Green, late of Columbia, after advertising a sale of the negroes belonging to the estate of their testa- tor, to take place in the town of Columbia, on a certain day : on the day appointed, by previous notice, proceeded to sell the negroes, at public outcry ; but before offering any of them for sale, announced publicly, and advertised the bystanders, that they did not warrant the sound- ness of the slaves ; but did the genuineness of the title. Hdd, That this was a sufficient notice to exonerate and exempt the executors from a recovery against tlicm, on an action for an implied warranty of soundness — also, held, That the onns did not lie on the defendants, to prove whether the plaintiff" heard or was aware of the terms of the sale, or not. McLean vs. Executors of Green, ii., *17 361 QUARE CLAUSUM FREGIT. See Court of Ordinary. QUANTUM MERUIT. 1. Plaintiff" was employed by defendant, to make a crop with him, in 1839, and was to receive for his services one fourth of the crop made. About the last of August, a misunderstanding arose. 708 INDEX. Plaintiff was dismissed, and in September following commenced this action : Held, That plaintiff, by commencing his action in September, after he was dismissed, treated the contract as being rescinded, and has waived his right to recover entire damages for the whole year ; and has restricted his right of recovery to a compensation for his services on a quantum meruit. Watts vs. Tutld, i., *26 17 EAILROAD COMPANY. 1. The Railroad Company are not liable to one of their agents for an injury arising from the negligence of another competent agent. Miirrai) vs. a?. C. R. R. Company, i. , *38.5 251 2. AVhere the slave of the plaintiff, endowed with ordinary intelli- gence, and acquainted with the nature and manner of using the rail- road, voluntarily laid himself down on the road and went to sleep, amidst grass so high as to obstruct the view at some distance, (over twenty feet ahead,) and in this situation, without any fault of the engi- neer, the engine, going at its ordinary speed, passed over the bodj and killed the slave : It was held, That the plaintiff could not recover against the company for the price of the slave killed, under the cir- cumstances, and ordered a nonsuit. Felder vs. Railroad Company, ii , *403 604 RAVISHMENT OF WARD. See Slaves and Free Negroes, 1. REPLEVIN BOND. See Bond, 2. REPLICATION. See Demurrer, 2. RULE OF COURT. See Nonsuit, 1, 2. SATISFACTION. See Levy, 1, 2. SCIRE FACIAS. 1. Where a verdict has been obtained against two defendants, upon a joint and several promissory note, and judgment has been entered up against both, and upon appeal, a new trial is ordered, unless the plaintiff discontinues as to one of the defendants : Held, That the plaintiff should discontinue before " scire facias" is brought. Kennerly vs. Walker, I, *in 78 2. To permit a discontinuance of one defendant to a record to be entered on the trial of a " scire facias," upon the plea of nul tiel record, would be irregular lb. 3. A general demurrer to a special replication to the plea of •' nul tiel record," will be sustained, unless the replication denies the plea. . lb. SEAL. 1. Any letters, such as " L. S." or a circumflex scroll, made by a party in connection with the words " sealed," or " witness my hand and seal," or proved by eviderice aliunde to have been intended as a seal, will constitute a valid seal. McKain vs. Miller, i., *313 204 2. The intention of a party, where the letters " L. S." are annexed to his signature, is properly a question of fact for a jury to decide. ... lb. SHERIFF. 1. Where goods have been levied on by a sheriff", under executions in his hands, and before they are sold, a writ of foreign attachment against the same defendant is lodged in his office, he may levy the attachment also on the goods ; and this is not such a case, where the property or fund is protected by being in the custody of the law. Day vs. Decker, i., *92 62 2. Merely loilging a writ of attachment in the sheriff's office, is not sufficient to attach the property or fund in his hands ; but the Court INDEX. 709 will permit him to accept service, even after rule and cause shown — nunc pro tunc (j2 3, Where a sheriff has collected money under execution in favor of the plaintiff, and before a demand is made on him by plaintiff" to pay over the money, he receives written notice from the attorney of cer- tain attaching creditors not to pay over, but to retain the sum collected in his hands — that they intend to file a sug-gestion to set aside the plaintiff 's judgment and execution, as fraudulent and void. Held that the sheriff was legally justified in retaining the money. Thomas vs. Yates, i., *179 118 4, If there are conflicting claims to money collected by a sheriff, and he recives notice and acts fairly and bona fide in the matter — does not use the money himself, but deposits it in bank to await the ultimate decision of the Court — he does not subject himself to the penalty of the Act of 1796 [b. 5. The Act of 1796 is somewhat penal, and should be construed with strictness in favor of the party to be effected by it lb. 6. A sheriff is bound to show, where he is sued under the Act, that he has acted fairly and in good faith, and that the money has not been detained for false purposes lb. I. A sheriff's execution book is, on account of its official character, received in evidence, as proving in general the official entries contained in it. So, too, an entry on an execution is admissible in evidence as part of the record. Secrest vs. Twitl)/ i., *255 167 8. The entry of the sale made by the sheriff, containing the name of the purchaser, is as effectual a signing, as if the sheriff had written the name of the purchaser to a formal contract lb. 9. A sheriff cannot be relieved from an attachment issued against him, nor can he have it dissolved, unless he can show that he has used all the means in his power, under the execution against the defendant to obviate and repair the consequences of his former default ; and that the loss to be suffered, did not arise from his negligence, but from the absolute insolvency of the defendant. Pittman & Day vs Clarke, L, *316 20G 10. The Act of 1839, regulating the office and duties of sheriffs of this State, and dispensing with the return of " miUa bona" heretofore required against sheriffs, before commencing actions on their official bonds against the securities, does not do away the necessity of the re- turn of " nulla bona" where the sheriff was elected and gave bond before the passage of the Act of 1839. II. The Act of 1839 is prospective, and applies only to those sheriffs who have been elected and given bond since its passage. 12. Where the sheriff, making the returns of executions in his office, to the clerk of the Court, previous to each Court, as required by law, omits to make the proper return, he will not be permitted to make it subsequently, " nunc pro tunc." The State vs. Wylic, el al., ii., *1. . . 351 13. After the lapse of twenty years, the conditions of a sheriff's bond will be presumed to have been performed. Treasurers vs. Execu- tors of McPhcarson, ii., *69 392 14. A sheriff is bound to take notice of the liens in his office, and to paj^ money collected by him under official authority, to the oldest exe- cution. And when he pays money to a junior execution, he does so at his own risk, and he will be held liable for the consequences, either by rule or action at law. See Act 1839, 21 sect. 30, defining sheriffs' duties. 15. "When there is a contest for money, collected by a sheriff in his official capacity, he is a stakeholder and must hold his hand (but iu 710 INDEX. good faith and without collusion with either party) until the adverse claims are subjected to adjudication. 16. A rule will always go where the legal rights of the parties can be made to appear from a conceded statement of facts. But where the facts are disputed, and the law depends on their developement, the parties should be left to their action at law, or an issue will be directed at law to try them. Coo-pp.r vs. Scott, ii., *150 446 17. On a suggestion filed against a sheriff, (after judgment has been obtained against him on his ofBcial bond,) suggesting other breaches of his bond, he may plead double if he chooses, but he cannot traverse and demur both, to the same portion of the suggestion. 18. Whatever a sheriff does, or omits to do, in his ofiBcial character as a public officer (under the Act of 1 829,) properly recognized, whereby damage results to another, seems to be a violation of the duties of his office, and the damage proved may be recovered under the bond. Fees improperly charged, constitute such damage ; but a penalty or forfeit- ure given to the party injured, for his more ample reparation, and for the punishment of the sheriff, seems not to be damage but rather a chance of gain, which, by increase, the law bestows upon the sufferer ; such penalty or forfeiture may be recovered against the sheriff by suit, "in which no imparlance shall be allowed," but does uot constitute such a demand as may be recovered under the bond, against the sheriff and his sureties, for his breach of official duty. Treasurers vs. Bucknor, Sheriff, ii., *323 554 19. Where a sheriff has no process giving him authority to receive money, a person who pays to his deputy cannot look to him. And ■where one, deceived by no show of authority, pays money to J. S. him- self, then being sheriff, that which the sheriff has not authority to re- ceive, J. S. personally is liable for, and uot the official bond of the sheriff. But should the sheriff, having writs which authorize him to collect, exact from the debtor more than was lawfully required, even without levy, the payment is not voluntary, and it is a violation of his official bond. Ibid., ii., *327 557 20. A sheriff cannot recover, (in an action of assumpsit,) from a purchaser at sheriff's sale, for property purchased, where the purchaser is the owner of the execution in his office entitled to a preference from the proceeds of sale, unless he can show that a part of the money aris- ing from the sales was applicable to the payment of his costs, and then only the amount of his costs. 21. When one being the owner of an execution, under which the sheriff sells, purchases property at the sheriff's sales, upon an action of assumpsit against him by the sheriff for the amount of his bids, he cannot avail himself by way of discount of the amount of his execution in the sherilfs office, although his execution is entitled to the prefer- ence in the sales. Cubb vs. Fresdij, Sheriff, ii., *416 612 ynOP KEEPER. See Evidence, 5. SLANDER. 1. On the trial of an action for slander, the defendant will not be permitted, under the plea of the general issue, to prove the truth of the words spoken, or any fact which will go to criminate the plaintiff. The plea of justification, in order to prove the truth of the slander, must always be pleaded. Eaijun vs. Gantt, i., *408 313 2. Jn an action on the case for slander in charging the plaintiff with perjury, the rolloquinni stated in the declaration set forth the trial of nn indictment for a riot ; the record produced on the trial was for a riot and assault ; held, to be an immaterial variance. 3. So, a slight variance in the names of the defendants in the indict- INDEX. Ill meut, as set out in the duclaratiou and contained iu the record, may be cured by parol proof of the identity of the persons, llamilluii vs. LauyU-y, I, *498 338 4. In an action of slander, where the words spoken were, that the " plaintiff had sworn falsely in giving evidence, before a certain Justice Johnson, in a trial heard before him," it is not necessary to aver iu the declaration, that the Justice had jurisdiction of the cause in which the plaintiff' was sworn as a witness, or that liis testimony was material. Both of these are presumed, until the contrary appears. .5. If there be a cf//w/»/(n;/, [prefatory averment. An.^ referring to the trial of a cause before a Justice, in which the plaintiff was examined as a witness, and iu it, it is averred, that the defendant, speaking of such trial and testimony, spoke the same words, they would be actionable. They impute a false swearing, in a court of justice, vi\i\(i\i, prima facie, imports perjury. If these general facts so averred be proved, it is enough on the part of the plaintiff'. C. It is the right and duty of a Judge, to instruct the jury fully upon the law arising out of the facts proved — and in an action of slander, where the defendant had charged the plaintiff' with having sworn falsely before a Justice, in a certain trial in which the plaintiff' was examined as a witness, the defendant, on the trial of the case, had the right to have the jury instructed, whether the evidence of the plaintiff' before the Justice, was immaterial to the point in issue, or not. And upon the refusal of the presiding Judge so to instruct the jury, a new trial was granted. Dalnjmple vs. Lufton, ii., *112 419 SLAVES AND FREE PERSONS OF COLOR. 1. Under the Act of 1740, any negro claiming to be free, has the right, by guardian, to bring an action of trespass in the nature of ravishment of ward; not only against anyone claiming property in, but against any one having the possession of such negro. JFeA/iC;- ads. Guardian Tom Brisler, i., *i35 89 2. AVhere one in his lifetime was seized and possessed of certain slaves, to wit: — " Henrietta and her four children, Charlotte, Francis, Nancy, John, and Elizabeth, and also Tilly and Mary"^and by deed bearing date 26th February, 1830, for a nominal consideration, assigns to the defendants, P. & C, the said negroes, Henrietta, and her four children (as above named) on the special trust, confidence and con- dition, that they will, from time to time, and at all times hereafter, permit and suffer the negroes above named, or any or all of them, and also the future issue and increase of the females, to seek out and pro- cure employment, and to work for their own maintenance and support ; and further in trust to allow them the said negroes, ikc, to receive and take for their sole use and benefit, all such moneys as they might obtain for their labor or otherwise, after paying to the trustees the sum of one dollar per annum and no more. 'I'he other deed jjurports to convey to the same trustees the slaves Tilly and Mary, in trust, to apply their labor to the use of Henrietta and her children as aforesaid, until her youngest child shall come to the age of twenty-one years, and then to sell the slaves Tilley and Mary, and divide the proceeds between Henrietta and her children, share and share alike. /■ was held— 3. That the deeds were good, and sufficient to vest the title to the slaves iu the defendants. That the negroes mentioned, viz. : Henrietta and her children, are still slaves under the dominion of tiieir masters, and must so remain. 4. That if the defendants should give them, under the deeds, the fruits of their labor, it is not unlawful. 712 INDEX. 5. That the second deed is a good common law conveyance to the defendants, of the two slaves, Tilly and Mary, for the use of other slaves. 6. That by the laws of this State, slaves may acquire and hold in possession personal property (not prohibited to them by Act of the Legislature) with the consent of their masters or mistress. And such property is in law to be rt^garded as the property of the owner of the slave. Cannille vs. Administrators of CarmiUe, ii., *454 635 7. A free person of colour, by the laws of this State, may take and hold, convey by deed, dispose of by will, or transmit to his heirs at law, both real and personal estate. 8. A slave may acquire property, but as he cannot hold, it inures to the master. 9. Freedom, when bestowed upon a slave by will, is usually spoken of as a legacy, which requires the assent of the executor, or other bequests. But, should the executor withhold his assent to the legacy of freedom to the slave, the heir at law cannot retain him in slavery — for upon the death of the testator, his right of freedom vests, subject only to be held by the executor liable for the demands of creditors. 10. After the lapse of twenty-eight years, the assent of an executor to a legacy of freedom will be presumed, and the claim of creditors satis- fied or barred ; and the possession of the slave (so bequeathed her freedom,) of a tract of land also devised to her by the testator, and which she held undisturbed and in quietness, is sufficient to give her a title to said land, as a free person of colour, against the heir at law, and all the world. 11. By the Act of 1824, it is enacted, that every "gift of land by devise shall be considered as a gift in fee simple, unless such construc- tion be inconsistent with the will of the testator, expressed or implied." The word " hereafter" in the first part of the section, is held to relate to the time of adjudication, in connection with the word "■considered," and not to the date of the devise. 12. Where the testator by his will devises in consecutive clauses, 1. To Judith, then to Barbara, each one half of certain lands containing acres, to themselves for life, with the power of disposing, and in default with remainder over. And afterwards by a codicil to said will uses the following language. " I do hereby revoke that part of my will wherein 1 bequeathed to the within named Judith and Barbara, the three tracts of land between them," and afterwards continues, " I bequeath to the said Judith, the place whereon she now lives, adjoin- ing John Newman's land, containing three hundred acres, under the coritinf/enries, limitations and restrictions, mentioned in my said will," and " I revoke that part of my said will, wherein I leave to the said Barbara that land below Silver Bluff, being a part of three tracts of land, and in lieu thereof, I leave her that whole tract adjoining the point, containing upwards of three hundred acres, the lowermost part of said land. The land between the two parcels J left to the said Judith and Barbara, I leave to the said Thomas, sou of the said Rachel Dupre." 13. It was held, that the devise to the said Barbara in the codicil was not merely a substitution of one tract of land for another, to be held by her for life only, and suliject to the limitations of the original devi.se to her by the will of the testator, but was a devise in fee. Botoers vs. Newman et al., ii., *472 646 STATUTE OF FRAUDS. 1. The parol promise of a party to pay the debt of a third person, or to sign a note with him as security, is a collateral undertaking, and INDEX. 713 void, under the statute of frauds. There is no distinction between a promise made before and after the delivery of the goods. The promise, in order to charge the party, must be in writing. Branson vs. iStrouJ, ii., *372 585 STATUTE OF LIMITATIONS. 1. Possession and the payment of the purchase money is a good equitable title, and a possession of ten years under such a title is good under the Statute of Limitations. Ellison vs. Cathcart, i., *5 3 2. After the Statute has run out, there must be "an express promise to pay, or an admission of a subsisting debt which the party is willing and liable to pay." Ilorlheck vs. Hunt, i., *197 129 3. Whether the acknowledgment proved is suEBcient to take a case out of the statute, is a question for the Court, and not one of evidence ~ or construction for the jury Ih. 4. The admissions by the defendant, within two year from the com- mencement of the action, that the cotton of the plaintiff's intestate was sliipped on board of his steamer, that it had been destroyed by fire, and that the controversy as to his legal liability was still pending, was held not to be a sufficient admission of his liability, on which the law would raise an implied promise. Administrator of Patton vs. Magrath, i., *212 138 5. The cause of action in this case accrued on the 3d December, 1832, and suit was brought by the plaintiff's intestate in May, 1833, and abated, before it was tried, by his death. In March, 1835, suit was renewed by the plaintiffs, and at February Term, 1839, of the Appeal Court, a nonsuit was ordered. In April following, this suit was commenced : Held, that the Statute of Limitations was a bar to plaintiff's recovery. That this suit could not be connected with either of the former cases lb. 6. A defendant is not precluded from availing himself of the Statute of Limitations, by the remark of his counsel, in argument, "that his client would scorn to take advantage of the statute, if it could be made to appear that the money had been applied to the business of the firm." Steele vs. Jennings & Bealey, i., *297 194 7. Where there is a plaintiff wlio can sue, and a defendant who can be sued, the Statute of Limitations begins to run. Bugg vs. Summer, i., *333 217 8. The Statute of Limitations is not suspended during the time that elapses between the death of an administrator and the administration de bonis non lb. 9. The possession contemplated by the Statute of Limitations, must not only be notorious and definite at one period, but it must, in some form, be continuous, during the statutory time : that is, it should be definitely used, for some purpose, for ten years. Porter vs. Kennedy, i., *354 230 10. Although "possessio pedis" does not require actual occupancy, it implies enclosure, and use of the grounds enclosed lb. 11. The enclosing and sowing down a small turnip patch on a tract of land, and occupying it but for one year, and occasionally cutting and hauling from it fire wood and other timber, will not be sufficient to defeat another, or give a title to land, under the Statute of Limita- tion lb. 12. The possession of a small slip of land, for ten years, (adversely,) with a fence, will give a good title to the land, under the Statute of Limitations. Smith vs. Pickenpack, ii., *72 394 13. The Statute of Limitations will run against the title to lands, claimed by a corporate body, such as the Camden Orphan Society. Camden Orphan Society vs Lockhart, et al., ii., *84 402 714 INDEX. 14. Where one of two parties, of joint contractors, was served with a writ in the State of New York, and judgment by the statute of New York was obtained against both ; afterwards, suit was brought in South Carolina, against the party not served. Held, that the defend- ant in South Carolina was not concluded by the recovery in New York ; that it was oxAj prima facie evidence of the extent of his lia- bility, but that he might avail himself of any defence which he might have had to the original cause of action. It was further held, that the judgment, outside of New York, was the same as if no judgment had there ever been pronounced against the defendant, not within her juris- diction ; that the party must fall back on the original cause of action ; and that the Statute of Limitations, which is the *' lex fori," would then be a bar to the plaintiff's cause of action. Menlovevs. Oakes, ii., *162. 453 15. Plaintiff, one of the brothers of Francis Sams, (deceased,) paid to the defendant, attorney for the executors of the late Gov. Hopkins, of Georgia, $815, who, it appears, had a judgment against the said Francis Sams, for $1,031.31, with interest from 18th February, 1818, besides costs. At the time of the payment of the money to defendant by plaintiff, a compromise was effected between them, and this sum of $815, was to be considered as an entire discharge of the whole debt, or defendant was to procure from the executor an assignment of the case to plaintiff, as plaintiff might elect. Subsequent to the date of the compromise, defendant, as attorney of the executors, assigned to plaintiff the case above alluded to, but plaintiff, after consultation with counsel, refused to accept defendant's assignment, as he was not the attorney in fact of the owner of the case, or even attorney on record in the case. Defendant refused to become responsible for the amount paid, but promised plaintiff, that he would not pay over the amount he had re- ceived, until he procured an assignment to him from the executors of Hopkins. Some short time after this promise of defendant to procure the assignment of the case, or that he would withhold the money, de- fendant paid over the money to the executor, C. H. Hopkins. Under the circumstances of this case, it was held, first, that this was a per- sonal undertaking on the part of the defendant, and was founded on a sufficient consideration. It was held, secondly, that the cause of ac- tion, which accrued to the plaintiff, on the non-performance of this personal undertaking of defendant, was barred by the Statute of Limita- tions. More than four years having elapsed, from the payment of the money by Rhett to Hopkins, and the bringing suit. Sams vs. Bhett, ii.,*171 459 16. Where a demand is barred by the Statute of Limitations, nothing less than a direct promise to pay, and an acknowledgment of a sub- sisting debt, due and owing, and which the party is willing to pay, will take the case out of the bar of the statute. IT. The ])romise must be. so explicit, that the extent of the party's liability will appear by the terms of the assumption. Williamson vs. Kiiig, ii., *505 668 SUCJGESTIONS OF FRAUD, See Commissioners of Special Bail, 2, 5. SUBP(ENA DUCES TECUM. See Insolve7ii Debtors, Q. SURETY. See Bills of Exchange, Notes and Bonds, 6. SURETY TO ADMINISTRATION BOND. See Exec'rs ^' Adm'rs. SURVEYOR. 1. A surveyor acting under a rule of Court cannot be allowed for his representation of separate tracts, ou his plat, when they are no part of the land claimed by the parlies, and are merely put down ou INDEX. 715 the plat as boundaries or evidences of the identity of the location. lie is only entitled to pay for one plat. But where the plaintiffs claim under two grants, and both are represented on the same paper, and also a grant or grants conflicting with those upon which the defend- ants rely, for each of these the surveyor may be allowed to charge. Kersliaio & Gilinan vs. Sfearns-, et al., i., *73 48 2. Where there are several cases, all depending upon the same lo- cation, the surveyor is only entitled to pay for one plat lb. TAX ACT, See Constitutional, 1, 2. TOWN COUNCIL. See Ciiij Ordinances, 2. TRADING WITH SLAVES. See Indictment, 1. TREASURER. See Company, 1. TRESPASS. 1. It is a well settled rule, that for all acts done under color of legal proceedings, where the court has no jurisdiction, or where the proceed- ing is irregular, trespass and not case is the proper form of action. See Harp. Rep. 486, McCool vs. McClunei/. 2. In an action on the case, where the plaintiff's declaration com- plained that the defendant caused an execution to be issued and levied upon his land and goods, and the same to be sold by the sheriff, and the money arising from the sale of the same to be applied to the satis- faction of the said execution ; and averred that afterwards the judg- ment upon which the execution issued "was set aside and rendered of no effect, &c., and afterwards a verdict was rendered in the same case for the defendant (now the plaintiff,) whereby it was established that the said defendant, (now plaintiff,) was not in arrears, or in any wise indebted to the said defendant," by means whereof the said plaintiff was greatly injured, &c. It was held that the declaration did not con- tain such a cause of action, as that the defect could be cured by the verdict of the jury, and a motion in arrest of judgment was sustained. Coojjcr vs. Halbert, ii., *4I9 614 3. A party proving the declaration of another party, concerning a trespass which had been committed, has the right to prove and give in evidence all the expressions that were used in the conversation relative to the trespass at the time, as well on account of their being a part of the same conversation, as also, to show to the jury the spirit and feel- ings with which they were spoken 4. It is the right, and also the duty, of a Judge, to comment on all the evidence of a case to the jury, and in cases of complicated facts, to give to the jury the aid of his experience, discrimination and judg- ment, upon the evidence, as well as the law, so that he finally leaves the ultimate decision of all the facts to their judgment. This is the practice of all Common Law Courts, and such is the well settled practice in South Carolina. Devlin \s. Killcrease, h., *42d 613 TRESPASS FOR BEATING SLAVES. See also, New Trial. 1. To correct a slave with a whip, giving him but fifteen stripes, when he is found without his master s enclosure, with a ticket or per- mit, accounting for his absence, is held to be a beating and abusing, within the meaning of the Act of 18c!9. Caldwell et al. ads. Lawjford, i., *27o 180 TRESPASS ON THE CASE. See Trespass, 1, 2. TRESPASS TO TRY TITLE. See Possession; also, Statute of LimiL- tions, 9, 10. 1. In trespass to try titles, where the defendant has not acquired 716 INDEX. his possessions by a tortious eviction, or actual disseizin, the plaintifF must make out a perfect title in himself. Young \s. Watson, i.. *A-id . 297 2. It is necessary to show that the laud has been granted, either by the production of the grant, or by proof of such possession in the plaintiff, or some one from whom he derives title, as will authorize the presumption of a grant _ lb. 3. A possession of sixteen years, which terminated in 1791, insuffi- cient for that purpose ; and the plaintiff producing no other title, was nonsuited lb. 4. On a question of location, a new trial will more readily be granted, than in most other cases depending upon facts, in consequence of their near approach to questions of law. 5. Natural boundaries, in questions of location, are to prevail, unless there may be some doubt about them, and this doubt certainly removed by artificial marks. In such a case, the artificial marks will have effect, although of inferior degree. 6. Where a survey called for Dean's Swamp as a boundary, it was held, that the creek or main stream of the swamp was intended, and not the outer edge or margin of low, marshy land, that frequently bounds the main stream. 7. The declaration of a tenant, after he has aliened his right and interest in the land, is inadmissible evidence to prove where a line ran, or a tree stood. Felder vs. Bonnett, ii., *44 376 8. In an action of trespass to try titles to a tract of land, in order to give in evidence an attested copy of the deed, under which the party claims the land in dispute, it is only necessary to prove the existence of the original, and its loss. That it cannot be found after a diligent and proper search, with those who should have the possession of it. Culpepjier vs. WJieeler, et al., ii., *66 390 9. Where a plaintiff, in an action of trespass to try title, has discon- tinued his suit, he has no right to call upon a Judge to certify his plat, when he is not properly before the Court. The certificate of the Judge, if granted, would be extra judicial. Heyicood vs. Searson, ii., *231 496 10. There is a material difference between proving a deed as a part of a chain of title, and introducing a paper as color of title to show the extent of a party's possession. In the first case it must not only be proved to have been in existence before the party acquires rights under it, but when it purports to be less than thirty years old, its execu- tion must be strictly proved. 11. To admit a deed in evidence as an ancient deed, continuous pos- session under it for thirty years is not always necessary. A less period than this will suffice, if there has been no inconsistent possession to conflict with it. A deed being found in an office, recorded, may be sufficient evidence sometimes ; and at all times such testimony may be received to show the antiquitj^ of such a paper. 12. When a party indicates the boundaries of his land by stakes, for more than ten years, by which he shows the extent of his posses- sion, and the boundary thus indicated is made known to the adverse party, who is interested to deny it, and they acquiesce therein, it is a good title to the land by possession, with a color of title. Allen vs. Johnson, ii., *495 .561 TROVER. See Bailee, 2, 3. 1. The Act of 1H27 makes the action of trover, commenced under its provisions, a proceeding in rem. ; and when a writ is issued and served, the chattel is in the custody of the law and cannot be distrained for rent. Hcigling vs. Main, i., *2.52 1G4 INDEX. 717 2. Plaintiffs brought an action of trover against defendant, for seven bales of cotton, part of a cargo shipped by them to their factors in Charleston, on board Michael Ilarkins' Bay Boat, the Belle. During the voyage the cotton thus shipped was damaged to the amount of $358 61 ; defendant detained the seven bales of cotton, under his lien as a carrier, for freight. The damage done to the cotton, exceeded the claim of freight. Held, among other things, 1st. That the factors, the consignees of the cotton, had no such interest as divested the plaintiffs of their right of action. 3. That where the injury done by the carrier to the cargo, exceeded the freight, to that extent the carrier's right to freight would be defeated. 4. That where the thing converted, is reduced to money, in the hands of the defendant, the smallest measure of damages in trover, is always the amount received from the conversion, with interest from the time of conversion. Ewart vs. Kerr, ii., *14L 440 5. Defendants, (chemists) were in the practice of filling a certain soda fountain for one Hopkinson, who rented this and another foun- tain from the plaintiff. Hopkinson absconded, leaving the soda foun- tain in the possession of defendants, who had first filled it. Plaintiff brought this action of trover for the conversion by defendants. Held, that there was no such tortious conversion, as would enable plaintiff to sustain trover, and a nonsuit was ordered. Parkerson vs. Simmons & Epping, ii., *188 469 TROVER ACT, 1827. See Bond, 1, 3. USURY. See Bills of Exchange, Notes, &c., 7, 8. VAGRANTS. 1. The Act of 1836, in regard to vagrants, is held to be constitu- tional. The State ex rel. CoUman vs. Maxey et al, i., *501 341 2. The powers conferred on a Court of Justices by the Act of 1836, in regard to vagrants, is no violation of those parts of the Constitution which provide " that no man shall be deprived of his life, liberty, or property, but, by the judgment of his peers, or by the law of the land ;" and that " the trial by jury, as heretofore used in this State, shall be forever inviolably preserved." lb. 3. A proceeding for vagrancy under the Act of 1836, is not barred by a prosecution in the Court of Sessions for gaming lb. VARIANCE. 1. Writs of foreign attachment were issued against the defendant and Jane Reid, jointly — declarations against the defendant alone, sug- gesting Jane Reid to be the wife of defendant: Held, to be fatal on special demurrer. 2. It seems that the proper course of discontinuance, where two defendants have been joined in the same writ, is by leave of the Court to discontinue. Leave to discontinue will never be refused, but it must first be obtained. This is the usual practice, and this practice has good reason — so says the Court. Lamar ds Daniel vs. lieed, ii., *346 569 VENDORS. 1. Defendant having about $4000, desired to invest it in Cotton for speculation. He accordingly applied to the plaintiffs, who were cotton brokers in the City of Charleston, and they purchased for him three hundred and sixteen bales ; procured an advance on their own respon- sibility of $12,470, to pay for the cotton so purchased; shipped it on board the Josepha, (a vessel designated by defendant,) and consigned it, according to the usages of trade, to a house in Liverpool. Subse- 718 INDEX. quent to tlie sailing of tlie vessel, the defendant refused to complete the contract. Upon this refusal this action was commenced. Verdict for plaintiffs, $4000. Held that the defendant was liable to the plain- tiffs as vendors; that there was a sale and delivery, and a new trial was refused. Robertson rf' GiifiUan vs. Shannon, i., *164 108 2. "Where the vendor sends goods, with his price marked upon them, and they are accepted by the vendee, the law will imply that they ■were taken on the vendor's terms ; unless it should appear otherwise, from the course of previous dealing between the same parties, or from some custom with which both were acquainted. Mitchell & Co. vs. McBee & Irvin, i., 267 1T5 VERDICT. 1. A verdict for a specified sum of money, " with interest thereon from the 16th February, 1836," is not void for uncertainty, either as to the principal sum or the interest ; but the plaintiff is entitled to sign judgment for both, computing the interest according to the verdict ; even if the demand be unliquidated. Bank of the Slate S. C. vs. Bowie, i., *429 C81 2. Where the verdict of a jury is contrary to the weight of evidence in a cause, and against the established rules of location, a new trial will be granted. Wolfe vs. Knotts, ii., *75 39G 3. After verdict, the Court will by intendment suppose everything to have been proved which the allegations of the record require to be proved ; but where everything which constitutes the gist of the action on the case is omitted, the judgment will be arrested. Cooper vs. Halbert, ii., *419 614 VINEYARD. See Agreement, 3. VOID PROMISE. See Consideration, 3; Statute of Frauds, 1. WAIVER. See Insurance Company. WARRANTY. 1. The plaintiff, in an action on the covenant of warranty of sound- ness, where there has been a recision of the contract, or where the property is dead or valueless, is entitled to recover back his purchase money and interest. And when he has offered to restore the property to the defendant, and he has refused to accept it, and the plaintiff is compelled to keep the property and incur expense on account of it, he may also recover such expenses. Seibles vs. Blackwell, i., 5G 36 WAY— RIGHT OF. 1. The erection of a gate across a way, claimed by the plaintiff, which is opened and shut at pleasure by all who pass, is not such an obstruction as would have the effect to extinguish the plaintiff's right, or of barring him of his remedy, however long it may have been erected. Barnwell vs. Magrath, i., *174 114 2. A right of way, by prescription, implies an adverse use of the way for twenty years ; and the party using the way, must use it as though he was exercising a right of property in himself, uncontrolable by the owner of the soil over which it runs, lloyg vs. Gill, i., *329 214 WITNESS. Sec Evidence. 1. Tlu! opinion of witnesses as to the existence of disease in a negro, who had not tlie aid of science to guide them, are inadmissible, unless sustained by facts showing the opinion to be true. Seibles vs. Black- well, i., *5G 36 2. 'I'he subscribing witness to a contract, whether under seal or not, mast be produced to prove the instrument, if alive, and within the INDEX. 719 jurisdiction of the Court. It is incompetent to prove it in any other way. Trammell vs. Roberts, ct al. , L, *30.5 199 3. A question of credit between two witnesses, is to be left to the jury, and their finding will not be disturbed, notwithstanding it may be contrary to the views of the presiding Judge, expressed in his charge. The State vs. Gunter, i., *45B 305 4. To discredit a witness, it is incompetent to offer testimony to prove that the witness has been guilty of stealing. Free ads. The State, i., *494 334 5. Where incompetent testimony has been received, and no objec- tion is made at the time of its reception, counsel have the right to comment upon it before the jury lb. WHIT. 1. Where a writ was tested on the 4th day of March, 1842, and made returnable to the 3d Monday in March next, it was held that the 3d Monday in March might well indicate the 3d Monday after the test of the 4th of March, 1842, or the 3d Monday next after the 4th Mon- day of March. Fosey vs. Branch, iL, *338 564 WRIT OF CAPIAS AD SATISFACIENDUM. 1. Defendant was arrested and in the custody of the sheriff by virtue of a ca. sa. at the suit of the Plaintiff, and had rendered in his schedule according to law, but refused to assign it. Held, that by his refusal to assign his schedule, he has not forfeited his right to remain within the prison bounds. Davis vs. Eiiff, i., *1 1 2. A defendant arrested under a ca. sa., who gives the usual bond, for the bounds, and without rendering in a schedule, or satisfying the debt, breaks the bounds, may, by Act of Assembly of 1839, be re- taken ; or, the plaintiff may proceed against the security on the bond : and if the security is insufficient he may have his action against the Sheriff, who shall be ultimately liable. Murray vs. Feay, i., *10 7 3. It is not necessary to have the order of a Court, in addition to the ordinary process of law, which the plaintiff has a right to have issued for the purpose of caption ; but, if the sheriff should refuse to obey the usual process, the Court will, upon a rule, enforce it lb. 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