MICHAEL P. WALSH ads. THE STATE.

If it be not necessary to set out the words in a libel literatim, yet at least it must be set out in intelligible language, shewing the sense and meaning of the words. And where the words laid were "worse that the lowest vagabonds, &c." and the words proved were worse than the lowest vagabonds," the court granted a new trial.

IN this case the indictment imported to set forth the words, according to the substance, and not according to the tenor of the libel. The words set forth were as follows, "you are, without exception, the meanest man and the greatest rascal I ever came across or heard of; you are worse that the lowest vagabonds, &c."

But the libel offered in evidence contained the words as follows: "You are, without exception, the meanest man and the greatest rascal that I ever came across, or heard of; you are worse than the lowest vagabonds, &c."

The court charged the jury that the same strictness of proof was not required, nor the same variance fatal, where the indictment set forth the libel according to the substance that is required, or would be fatal, where the libel is set forth according to the tenor.

The jury found the defendant guilty.

The defendant moved the Constitutional Court for a new trial, upon the ground of misdirection of the court, and in arrest of judgment, upon the ground that the indictment should set forth the libel according to the tenor, and not according to the substance.

Mr. Justice Richardson delivered the opinion of the

court.

The question made in this case is when a count sets forth a libel, not by the tenor, which word presupposes a correct copy of the libel, but merely by the substance, whether such substance, i. e. the sense and meaning of the libel, must not be still set forth and exhibited in the very

words, i. e. in correct verbal extracts taken from the body of the libel itself, or may it be done in any other synonimous language, which, although differing in words, yet preserves the sense and meaning of the libel.

I am much inclined to the opinion that whether the libel be set forth according to the tenor or the substance, still the libellous matter must be made to appear from the very words of the libel; for if these do not appear, how could the defendant take the judgment of the court, whether the words he had written or published constituted a libel or not; and how could he plea-! a former acquittal in law, of a second prosecution? (See 3 Burn. &c. Anid. Wrights vs. Clement, 503. Starkie 304, 234, 319. 1 Chitty, Crim. Law, 234, 169, 173. 1 Doug. 193.)

But as it is unnecessary, no final opinion is given upon that question.

The libel must be set forth, if not literally, at least by intelligible language, shewing the sense and meaning of the libellous matter. But what sense similar to that expressed in the plain libel, "worse than the lowest vagabonds, &c." can be found in the words, "worse that the lowest vagabonds?" In the latter sentence, we have merely an unmeaning collocation of words in the place of a very intelligible and libellous charge.

The libel therefore being set forth neither literally in its own words, nor substantially by its sense, a new trial is granted.

Justices Colcock and Nott, concurred.

Gregg, for the motion.

Jeter, Sol. contra.

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WILLIAMSON vs. CUMMINGS.

WHERE a defendant states by affidavit that he has a substantial de fence, and plainty shows that there had been a mistake between himself and his attorney, the court will suffer such defendant to enter pleas and make his defence, notwithstanding no appearance had been entered the first term, after the service of the writ. Such indulgence will be allowed whenever by misfortune or mistake his appearance has not been entered at the usual time. (See Parr vs. Evans, 1 Mc Cord, 283. }

JOSEPH MICKLE US. ALLEN BAKER.

No special order for bail need be endorsed upon a writ, where the plain tiff swears to a particular sum due upon the rescission of a contract.

Tried before Mr. Justice Gantt, at Kershaw, November Term, 1822.

A SUMMONS was issued by the plaintiff against the defendant, charging that the defendant was indebted to the plaintiff $57, and interest, for money had and received.

To this process was attached, an affidavit, signed and sworn to according to law, in the following words:-"Personally appeared before me Joseph Mickle, who, on oath, saith he drew an order on Capt. D. Grafton, in favor of Allen Baker, for fifty-seven dollars, which order has been accepted and paid, as Baker says, by said Grafton, and that the consideration for which the order was drawn, was a horse, valued at fifty-seven dollars, which proving to be unsound, was returned to the seller Baker, and again received by him; and that the said Baker is justly indebted to said Joseph for money had and received, fifty-seven dollars, and that he is a transient person."

No order for bail was endorsed on the process, but the sheriff arrested the defendant, and took bail.

On motion, the presiding judge ordered the bail to be discharged, on the ground that there was not an order for bail by a Judge or Justice of Quorum, endorsed on the pro

cess.

The plaintiff moved to rescind the said order to discharge the bail, on the ground that no special order for bail was necessary to authorize the sheriff to arrest, and that the arrest was legal, and the bail bound, and therefore the bail was improperly discharged.

Mr. Justice Richardson delivered the opinion of the

court:

In order to hold a defendant to bail, without a special order, under the act of 1769, (P. L. 273,) it is requisite that the affidavit should state a. specific sum due, for or upon what due, and that it had arisen from a contract express or implied, as the claim must be in the nature of a debt.

The affidavit in question states $ 57 due, being the price of the horse, returned and accepted by the defendant; which acceptance raised an implied contract to return the price.

Supposing then the facts true as sworn to, the former contract for the sale of the horse had been rescinded, and the price remained in the hands of the defendant, as holder of money to the use of the plaintiff. It became a debt. The affidavit was therefore sufficient without a special order, and the motion is therefore granted.

Justices Huger, Nott and Johnson, concurred.

Levy & Me Willie, for the motion.

J. C. Carter, contra.

DAVID RAMSAY and others, Trustees, &c. vs. ROBERT MARSH.

Col. Laurens, by his will, devised to Dr. Ramsay and wife all his lands at Long Cane, &c.-"To hold the same to them and their heirs, in trust to, and for, the use and behoof of his grand daughter Franceɛ E. Laureas, during her life, and in case she should have a child, or children, or grand child, or grand children living at her death, then he devised the same to such child, &c. to their heirs forever;" the court Held that the legal estate vested by the Statute of Uses in the cestui que usc.

TRESPASS to try title-tried at Abbeville.

This action was brought by the plaintiff's as trustees for Frances Eleanor Henderson, (late Laurens,) a feme covert and devisee, under the last will and testament of Col. Henry Laurens.

Mr. Justice Gantt dirceted a non-suit, on the ground that the legal estate was in the cestui que use, and not in the trustees; and that the action ought to have been bro't in the name of the legal owner. The present was therefore a motion to set aside the non-suit, on the ground that the law of the case was mistaken by the presiding judge.

Mr. Justice Gantt delivered the opinion of the court: The clause in the will of Henry Laurens, under which the devisee claims, is in the following words:

"I give and devise to my daughter, Mrs. Ramsay, and to Dr. Ramsay, all my lands at Long Cane, in the district of Ninety-Six, containing in the whole about six thousand acres, together with all my lots in the village of Hamstead, and all my marsh in the front thereof, (which lands I have estimated at one thousand seven hundred and fifty pounds, although in my conscience, I believe them to be worth more than double that sum,) to hold the same to them and their heirs in trust, and to and for the use and behoof of my grand daughter, Frances Eleanor Laurens,