Reports of Cases at Law, Argued and
Determined in the Court of Appeals by William Randolph Hill,
Reuben Pitts, Sheriff, vs.. The Admr's
of Joseph A. Wicker
Newberry, March Term, 1836, before Mr. Justice Butler
The husband gave a bond to the Sheriff for the purchase money on a sale for partition of land, to a distributive share of which his wife was entitled; and after the bond became due, he paid the shares of the other distirbutees on the bond, leaving the wife's share unpaid, not credited, on the bond, or receipted for , and died. Held that the husband, not having reduced the wife's interest into possession, nor addigned it in his life-time, it survived to the wife, and was recoverable in an action on the bond, in the name of the Sheriff.
The presiding judge made the following report:
"Debt in bond given for the purchase money of land, sold as the property of Jacob Epting. Jacob Epting died intestate sometime previous to the year 1822, leaving a widow and several children, and leaving land, and other property, subject to distribution among them. The widow married Wicker, the intestate of defendant's. Proceedings were instituted in the Court of Comm on Pleas by the children of Epting, against Wicker and wife, for the partition of Epting's real estate. The land, by an order of the court, was sold in December, 1822. Wicker became the purchaser of two tracts, and gave his bond, (the one sued on) to the Sheriff, for the purchase money, $1000, payable in December, 1823, and December 1824. Another tract was sold to George Setzler. When Wicker's bond became due, he paid off the children's share of it, and had the bond receipted for the amount paid. His wife was entitle to $333 1/3 of the bond. No receipt was entered on the bond for this sum, and this sum now appears to be due on the bond. The bond remained in this situation for several years before Wicker's death. The only question in the case is, is Wicker entitled to a credit on the bond for the above amount?
"It seems from testimony introduced, that Wicker, just before his marriage, said it was not his intention to claim any of Epting's land, by his marrying his widow. This was said to obviate some objection to the marriage made by some of Epting's relations. In a settlement with the Sheriff, Wicker did receive a part of the purchase money arising from the sale of land. The receipt to the Sheriff, dated 17th March, 1834, was for $26.28cts., which must have been money paid by Setzler, who purchased another tract. I did not regard this evidence as changing the character of the case, in a strict legal point of view. The bond may be characterized as a chose in action of the wife, due by her husband at his death. It was, to be sure, due to the Sheriff for the wife. Wicker could have had the bond credited in his life time, for the amount due to his wife, if he had chosen. But the receipt was not entered, and the question arises, have Wicker's representatives a right to the credit on the bond of $333 1/3? If so, the plaintiff can recover nothing. Perhaps equity might regard Wicker as a trustee, to hold the bond for the separate use of his wife. But at law, it must be regarded as a debt due by the husband of the wife, and extinguished by their relation. In other words, the amrital rights of the husband attached as soon as the bond became due. The bond was in the custody of the Sheriff, and as the agent of all the parties, he held it for the true owner. Property in the hands of the guardian of a female will vest in the husband after her marriage, by virtue of his marital rights. Davis vs. Rham, 1 M'C. Ch. Rep. 191"
The plaintiff appealed, and now moved the court to set aside the non-suit, on the ground of error in the decision of the circuit judge.
The State vs. William
Before Earle, J. at Newberry, Fall Term 1835
The presiding judge made the following report of the case: "Indictment for gaming with a negro under the late Act (Act of 1834). The gave specified in the indictment was Rattle and Snap. Several witnesses were examined: one, at least, called the game rattle and snap, as state-a game with cards and dice: one or two others called it raffle and snap. The former is the true name by which is was said to be familiarly know in the country. I thought there was no variance in the proof. It was objected on the constitution of the Act, that betting was essential to constitute the offense. I thought clearly otherwise, from the phraseology of the Act, and the purposes in view in passing it. The words are comprehensive_"whoever shall gave with any slave or other person of colur, or shall bet on the sides or hands of those who game, or shall be present, aiding or abetting," shall be guilty of the offense. I so charged the jury. I thought there was sufficient evidence of betting likewise.
The jury convicted the defendant, and his counsel appeals, on the annexed grounds:
1) Because the court erred in charging the jury that it was immaterial whether any betting was proved or not.
2) Because there was no proof of gaming or betting.
3) Because the indictment charged the defendant with a game called rattle and snap, and the proof was that it was raffle and snap.
The Court of Common Pleas cannot give judgment for a sum less than twenty dollars, arising out of a matter, except in cases where the plaintiff's demand has been reduced by defendant's discount: and, therefore, where the plaintiff bought his action on a contract for the breach of a warranty of soundness on the sale of a horse, and the proof was that he was entitle to less than twenty dollars; held to be within the exclusive jurisdiction of a magistrate, and the plaintiff was non-suited.
Before Mr. Justice Butler, at Newberry, March Term, 1836
Sum. pro. for the breach of a warranty of soundness on the sale of a horse. It was proved that the horse was unsound at the time of the sale, having a disease called the bellows or heaves. How much this disease impaired his value was a question to be decided from the evidence-and from that the presiding judge was of opinion that the plaintiff was not entitled to twenty dollars, as damages; and the jurisdiction of a magistrate being exclusive for that amount, he held that he could not give judgment for the plaintiff, and accordingly ordered a non-suit, which the plaintiff now moves to set aside.
Fair & Pope, for the motion. Herndon, contra.
The State v. John
L. Harmon and Securities
Mr. Justice O'Neall, Newberry, Spring Term, 1837
The presiding Judge made the following report of the Case:
"This was a scire facias to estreat the recognizance of John L. Harmon and his securities, entered into before the clerk, after the defendant Harmon's conviction, on an indictment for bastardy, for the support of a bastard child.
"It was contended, that by law, the defendant, Harmon, was only liable for ? per annum, commencing from his conviction; or at most, only from the time the information was made against him. The terms of the recognizance were sufficiently broad to carry back the allowance to the birth of the child; but the case was considered by the Solictor and the defendant's counsel, on the construction of the ACt of 1795, 2 Faust, 74.
"The first position of the defendants is contrary to a plain and obvious reading of the Act; and their second position is overruled by a decision of the Court of appeals, of which Mr. Solicitor Caldwell has a note; and which he will bring to the view of the Court of Appeals.
"I ordered the defendant's recognizance to be estreated for the installments of ? per annum, from the birth of the child"
The defendant is by law liable to pay ? annually, commencing only from the time of his conviction, or from the time of his arrest, or at all events only from the time the information was given to the magistrate, on which the warrant was issued.
Curia, per Evans, J. I understand from the report, that the defendant, Harmon, had been convicted at a former court, of bastardy, and had entered into a recognizance for the maintainance of the child. The recognizance is not before us, but the presiding Judge reports that it was broad enough to carry back the allowance to the birth of the child. I presume it was entered into in pursuance of the sentence of the court, and in conformity with it. There was no appeal from the sentence. It was the judgment of the court, and were cannot; look beyond it, whilst it remains unreversed. We are all of opinion the defendants cannot now question the accuracy of the sentence, or avoid their recognizance, given in pursuance of it. Whether by law Harmon was bound to give such a recognizance, is not necessary to be decided in this case. I take this occasion, however, to say, that such was the decision in Compton's case, decided in 1827. This as, it has been supposed, has been overruled in McCnuney's case and Day's case. But these went no further than to decide that the father of a bastard child could not be tried or sentenced after the child was twelve years old. All these cases are in manuscript, and are noticed here for the purpose of collecting the authorities on the subject, and not of deciding on the true constitution of the Act.
The motion is refused.
Cases Argued and Determined in the Superior Courts of
Mary Woods, Widow
of Josiah Woods, and her four Children, against The Administrators of
Josiah Woods, deceased.
Upon, a writ of partition of lands, under the act of distributions, &c.
To this writ the defendants, who were sons of Josiah Woods by a former wife, came in a pleaded ne unques accouple in loyal matrimony, and upon issue taken thereon, the claimant, Mrs. Woods, proved her marriage to the deceased Josiah Woods in 1785, by a magistrate in Newberry county, George Root, Esq. and that she had lived with him from that time till the day of his death, during which time she had four children by him, who also claimed a distributive share of the deceased's estate.
The defendants, in order to rebut the effect of this marriage before the magistrate, gave in evidence that the claimant, styling herself Mrs. Woods, had been married to one Taylor in virginia, who, they alleged, was alive when this pretended marriage took place between her and their father; consequently, they contended, that neither she nor her children were entitled to any share or proportion of the deceased's estate.
In reply to this testimony offered by the defendants, it was admitted by Mrs. Woods that she had been married to Mr. Taylor, a former husband, but she proved that he had gone off and left her soon after the marriage, and gone into remote parts of the western country; that he had been absent for seven or eight years before she married a second time, and that a report had prevailed that he was dead, and died some time before her second marriage, which she verily believed at the time of her second marriage, though no actual proof of the fact was produced.
It also came out in evidence, that after the death of Josiah Woods, the intestate, the defendants and the widow quarreled about the division of the estate; that they had refused to allow her or her children any part thereof; that very high words had passed between them on the occasion,a and that she had been heard to say, in the heat of passion and debate, that she would have "all she took with her "when she was Taylor's wife, as she supposed they would "not allow her her thirds." She afterwards rendered in an account against the, and called herself Mary Taylor. Upon reflection, however, afterwards she was induced to give up this account, and make her demand regularly for her distributive share of her husband's estate, which she had now done in behalf of herself and children.
The defendants now urged against her claim, that she had herself admitted that she had been married to a former husband, who had gone off to the western country, and who, four aught that appeared on this trial, might be alive at this day. That there was no proof of his being dead, or having been drowned, but a flying report to that purpose, and that common rumour was by no means a sufficient justification of a woman for marrying a second time, without some stronger or better proof of the fact. That she herself had admitted she was Taylor's wife since the death of the intestate, Josiah Woods, and had rendered in an account against the estate by the name of Mary Taylor.
For the demandant it was replied and argued, that she had very candidly admitted that she had been married to a former husband, who had gone off, left, and abandoned her for seven or eight years before she married a second time; that she did not even think of the second marriage until a report was current and generally believed that Taylor, her first husband, was dead, having been drowned. This, it was contended, was a sufficient justificaiton to her in taking a second husband. By the law of England, if a man or woman is absent seven years form the kingdom, and has all that time been continually abroad, whether the party living in England have notice or not, it is a sufficient excuse for marrying a second time, and will exempt the party so marrying from all the consequences of bigamy. So, in like manner, if the parties are absent from each other within the kingdom, and one of them having no notice of the other's being alive at the time, it will be justification for marrying a second time.
The case under consideration was till stronger in favour of the present claimant. Her first husband had left her and gone off into remote parts out of the state in which she was first married, and out of the limits of the state in which she was married a second time,and had been absent more than seven years, nor did it appear that she had ever heard from him during all that time; and what strengthens her case still more is, that it was currently reported and believed that he was dead, having been drowned, and it was not till after this report of his death that she married a second time. This, it was contended, completely removed every circumstance of suspicion or imputation of her misconduct, and left her perfectly at liberty to take a second husband, without imputation either upon her honour, her chastity, or her marital duties.
It was further urged on her behalf, that common fame and repute would prove and establish a pedigree, an heir at law to an estate; and, therefore, it ought to be admitted as proof to establish the death of a husband abroad in another country; and unless this kind of proof was admitted, one half of the widows whose husbands died in foreign countries, and who married a second time, might be deemed prostitutes, and their issue bastardized.
With respect to her own imprudent declarations to the defendants, they were words of heat and passion, expressions used at a time when her resentments had so far got the better of her reason, that she really did not know what she was saying, and, consequently, they ought not to be regarded. As to the account she gave in, that must have been done under an ignorance of her right, and her want of legal knowledge on the subject, which ought not to prejudice her. Under all these circumstances, it was said, that it ill became the defendants to endeavour to make a prostitute of their mother in law, and it became them still less, if possible, to attempt to bastardize four innocent half brothers and sisters, the issue of their father's second marriage.
The presiding judge, (Bay) in his charge to the jury, told the, that the only point of any difficulty in the present case was, whether the claimant, Mrs. Woods, at the time her second marriage, had good ground to believe her former husband, Taylor, dead? If she had, then all her legal rights followed such marriage. That seven year's absence of a husband in another country, without his wife ever hearing from him, was reasonable ground in law to presume that he was dead; but when, added to this, a report was current and believed that he was dead, it removed every imputation of improper conduct from her. That general repute and information was, in may instances, as much as could be obtained in a matter of that kind; and as no actual proof was offered in evidence that he was alive, it seemed to be a fair presumption that he was dead. If so, then the second marriage before the magistrate was good and lawful, for it has often been determined "that a marriage before a magistrate "in this country was good," and all her marital rights would follow as a legal consequence of the marriage.
As to the loose declarations of the widow, when she was enraged at being about to be turned out of house and home without a shilling, and her four young children at her back, he thought that the jury should pay no attention to the, they appearing to have been words of passion uttered without a knowledge of her right, which ought not prejudice her or her innocent children; and so with regard to the account rendered, for if she pretended to make an illegal demand upon the administrators, it was no reason why she should be debarred of her just claim.
The jury, however, contrary to the opinion of the judge, found a verdict against her.
This was a motion for a new trial.
The Judges, after argument, were unanimously of opinion, that the presumption of law, from the length of time the first husband had been absent without her ever hearing from him, and the report of his death, were strongly in her favour. That the presumption of law in support of marital rights was much more favoured than a presumption against the, especially when such unfavorable presumption went to bastardize the issue of a marriage, apparently legal and proper.
Rule for new trial made absolute.
All the Judges present.
N.B. On the second trail there was a verdict in favour of the claimants, in consequence of which she and her children had a distributive share of the deceased's estate apportioned off to them.
Cases regarding David Hentz
David Hentz, Ex-Parte, petition for
Bill for disposal of legacy of
Bill for account and payment of
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