ADAM TUNNO vs. CHRIS. HAPPOLDT, Adm'r of JNo. A Mortgage upon certain property, to secure a note (not under seal,) will not, under our administration law, give such creditor a priority, as in the nature of a deed, to simple contract creditors. Tried before Judge Richardson, at Charleston, in January Term, 1822. THIS was an action of assumpsit, brought by the holder of two promissory notes, against the representative of John M. Happoldt, the maker. The administrator of John M. Happoldt obtained leave of the court to file the plea of plene administravit præter, in addition to the general rule, and the question arose upon one item in the administrators accounts, viz: Whether a certain instrument in writing was to be ranked, in the legal order of payment of intestates debts, among bond creditors or among simple contract creditors. By consent of the counsel on both sides, a special verdict was found by the jury in the following words, viz: "And as to the defendants second plea of plene adminis travit præter, we find that the said John M. Happoldt departed this life, leaving no judgments or other debts of higher decree against him, but leaving one bond to the Union Bank, and one obligation or sealed instrument of mortgage and covenant to Thomas Ogier, and simple contracts to an amount far exceeding the assets of his estate. That the administrator of John M. Happoldt has paid off both the aforesaid bonds or obligations, and charged them on his accounts, and has in hand the sum of $784 49, to be divided in average proportion among the simple contract creditors. If the court should be of opinion that the aforesaid sealed instrument to Thomas Ogier is an obligation, and to be preferred to simple contract creditors, we find for the defendant on his second plea of plene administravit præter. But if the court should be of opinion, that the said instrument to Thomas Ogier, is to be paid in average and proportion only with the simple contract creditors, then, we find for the plaintiff." By consent of parties, the court below, without argument, pronounced judgment in favour of the defendants plea of plene administravit, with leave to appeal. And the present motion was made to reverse the decision of the court, upon the ground, that the said instrument should be ranked in the class of simple contracts only. Mr. Justice Richardson delivered the opinion of the court: The claim of Mr. Ogier was by simple contract, i. e. by a note. And the question is, can the mortgage deed change the character of the note, or give it a preference to other simple contract debts under the administrators law, I cannot perceive any reason in supposing the simple contract debt changed by the mortgage. That deed gave a particular lien upon certain property, but here its object and intent terminated, and otherwise left the note as it stood before, still a simple contract. The postea must, therefore, be delivered to the plaintiff, with leave to enter up judgment upon the special verdict. Justices Colcock, Nott, Gantt and Johnson, concurred. Gadsden, for the motion. Ford & De Saussure, contra. GEO. A. FISHER ads. ROTEREAU & WIFE. To call a person "a thief," "a bloody thief," is actionable; and though the words seem to have been spoken in a passion, yet the Court would not disturb the verdict. Verdict $400 for the plaintiff. 66 THIS was an action of slander, brought against the defendant for calling the wife of the plaintiff, a thief," "a bloody thief," words uttered by him with some heat, while an altercation was had between him and the said wife of the plaintiff, relative to some liberties taken with a young woman, whom the defendant attempted to kiss. They were accompanied by language and circumstances. which rendered it doubtful whether the defendant had any intention of accusing the wife of the plaintiff of having committed a felony, but showing that the words were merely rude and unbecoming expressions. A verdict was found for the plaintiff; and a new trial was moved for on the ground, that the words were not uttered in a sense actionable in themselves; and as no special damages were pretended, the verdict should have been for the defendant. Mr. Justice Richardson delivered the opinion of the court: The words charged were proved. It appeared that they were uttered in a verbal altercation between Mrs. Routereau and the defendant, in which, the defendant being irritated, became indecent in his behaviour, and may possibly have meant no charge of felony. Upon this point the strongest testimony was that of Mrs. Gerard, who said she understood the charge of theft, "as blackguard expressions," and not as a charge of felony. Yet she said further, "she believed he meant Mrs. R. had robbed or stolen," but she did not know of what. And finally said she did not understand the word felony." The charge was repeated three times. The last time, the defendant called Mrs. R. "a bloody thief." There was, perhaps, room also for concluding that the words were uttered in heat and passion. But they do ex vi termini import felony, and are slanderous. And whether spoken in another sense or in mere passion, depending upon intention, was the subject of evidence, and was fairly sub mitted to the jury, who, having found that the words were spoken slanderously, and this court perceiving no sufficient reason for ordering a new trial, the motion is therefore dismissed. Justices Colcock, Nott, Gantt and Johnson, concurred. Hunt & Bennett, for the motion. contra. 2 PAUL TRAPIER vs. J. L. WILSON. Under the act of 1791, granting to the Judges of the Court of Common Pleas, the power of determining all questions arising under Caveats, the Judge, for his own satisfaction, may order an issue of facts to be tried by the jury. The court is not bound to suspend the trial of such an issue, until it is taken to the Constitutional Court, to determine whether it be proper so to direct an issue or not. A grant located upon a small island, having the general course of the island, and calling for some marks, which could not be found, and for others on the margin of the island, and having a plat with the surveyors certificate appertaining, marked "The North Island," and in different places called "the Island," "the place" was Held to include the whole Island. Tried before Mr. Justice Richardson, Georgetown, April, 1822. On the day of 1820, Paul Trapier enteremanation of a grant for 500 ed a caveat to prevent the acres of land, upon a location made the 19th day of April, 1820, to John L. Wilson, because the said Paul Trapier claimed all the said land under a grant to Daniel and Thomas Laroche, dated the 11th day of May, 1739. Whereupon the following orders were made, "on motion of Edward P. Simons, attorney for John L. Wilson, the defendant, it is ordered that an issue be made up to ascer tain whether the land lying at a place called North Island, and run out for the said defendant, and for which, a grant has been applied, and against which application, a caveat has been entered by Paul Trapier, the plaintiff, be vacant land or not." On motion of Mr. Simons, it is ordered, that a rule of survey do issue in this case, directed to Thomas Skrine, on the part of the caveatee, and one other person, on the part of the caveator, to survey the lands in dispute." An issue was accordingly made up in the form of a wager to determine whether the grant to Laroche covered the land located for the defendant. At April Term, 1822, the defendant objected to the trial of this issue by the jury, which being overruled, the plaintiff adduced the grant to Laroche, which described the land as follows, "all that parcel or tract of land, containing eight hundred and fifty-four acres, and butting and bounding to the westward on salt-water marsh partly, and partly on a creek, and south-westward on Winyaw River or Bay, and to the Eastward on the sea, and to the northward on a place called the Basin, near North Inlet." The plat annexed to the grant, represented the land generally, as set forth in the grant. But on the south-westward, it noticed three specific station trees, i. e. "A cassena; an old stump, and a spreading live oak." At the southern termination of this line, the plat called for an old wreck. The southern boundary had neither the course nor distance laid down. The boundary to the cast, called for two natural stations, i. e. "The Look Out" and the "Land Hill," and two artificial stations, 66 a Dead Water Oak," and "two Stumps." At the northern termination of this boundary, it called for a stake. The course of this line appeared to change more or less at every station; but only the general course and distance were given in these words, "The general course is N. E. 12, 332 ch. to the Basin," and the course and distance from the southern termination to the first station, "The Look Out." This line called for the sea-shore, as its boundary eastward. |