er did the act, is not supplied by the concluding averment

in the indictment, and is fatal.

The motion is granted.

Justices Colcock, Nott, Gantt, Richardson & Huger,

concurred.

Thompson, for the motion.
Earle, Sol. contra.

CHARLES IRBY vs. JOHN W. VINING.

It is sufficient notice of the dissolution of a copartnership, if such cir cumstances be proved, as leave no rational doubt that the party knew of the dissolution.

Marlborough district, October Term, 1822.

Tried before Mr. Justice Gantt.

THIS was an action brought on a note of hand, signed Vining & Wilson, and dated 3rd April, 1820. The note was subscribed in the hand writing of Wilson, and it was admitted that the defendant and Wilson had been merchants trading under the firm of Vining & Wilson, and that the plaintiff had been one of their customers.

G. B. Whitfield and R. Carloss were examined by the defendant, and stated that in the months of April and May, 1818, Charles T. Stewart, Vining, the defendant, and Wilson, entered into copartnership under the firm of Stewart, Wilson & Co. at the same place. That they had no knowledge of any separate firm afterwards existing under the firm of Vining & Wilson. The defendant then offered to prove that the plaintiff was a customer of Stewart, Wilson & Co's. was frequently at their store, lived in the same neighborhood, and that an advertisement was posted up at the house lately occupied by Vining & Wilson, and then by Stewart, Wilson &

Co. stating that the copartnership of Vining & Wilson had dissolved. The presiding Judge held that nothing less than personal notice to the plaintiff of the dissolution of the copartnership of Vining & Wilson, would be sufficient to discharge the defendant from his liability, and rejected the testimony, and decreed for the plaintiff. A new trial was moved for on the ground that the presiding Judge misstated the law in determining that nothing less than actual and personal notice was sufficient.

Mr. Justice Colcock delivered the opinion of the court: In the case of Jacob Martin vs. Wm. Walton & Co. (1 McCords Rep. 16,) and the case of the Bank of So. Carolina vs. Humphreys & Mathews, (Ibid, 388,) the court have determined that that which is tantamount to a personal notice, shall be sufficient. If such circumstances are proved as leave no rational doubt on the mind that one knew of the dissolution of the copartnership; this is certainly as satisfactory as direct and positive proof. It is in fact, all that is meant by the rule; for where a copartnership had existed for a long time, and an extensive business carried on, it would be difficult if not impossible to send to each customer direct and personal notice. The evidence, therefore, should have been received, and if it had not been satisfactory, the decree would have remained. The motion is granted.

Justices Johnson, Huger, Richardson and Nott, concurred.

Campbell, for the motion.
Ervin, contra.

JAMES PARKS vs. H. DUKE.

An indorser of a sealed note is not liable as an indorser, and' where he suffered judgment to go against him, he was not allowed to recover the costs so incurred from the drawer.

Laurens district, Spring Term, 1822.

THIS was an action by the plaintiff to recover from the defendant, the amount of costs paid by him in consequence of his assignment of a note made by the defendant to him, on which assignment he had been sued by Wm Cobb, to whom it was passed, and had suffered judgment to go against him by default. The note was in the following words:

"On the first day of January next, I promise to pay to James Parks, sen. or order, one hundred dollars, for value received. Witness my hand and seal, this 19th March, 1819. Signed, Hardiman Duke." Witness, John Garlington. Endorsed in the following words. dorse the within note for value received, to Wm. Cobb, July 2, 1819. JAMES PARKS, JR."

Test, Samuel Irby.

66 I en

On the trial below, the presiding Judge decreed for the plaintiff, and a motion was now made to reverse that decree, because the plaintiff, Parks, was not liable to an action on the note as endorser, and should have defended himself against the action.

Mr. Justice Colcock delivered the opinion of the court: This is certainly not a negotiable note. It is under seal. The scrawl must be considered as a seal, because it is clear the parties so considered it. The attestation of the maker says under my hand and seal. The plaintiff was not then liable to be sued as indorser, and might have defended himself against the suit and non suited the holder, It was then his own fault that he has been subjected to costs, and consequently he has no right to recover them back from the defendant.

The motion is granted.

Justices Johnson, Huger, Gantt and Nott, concurred.

Porter, for the motion.

O'Neal & Irby, contra.

YATES, Adm'r. of PHILIPS, vs. JOHN P. BOND.

There is no implied warranty at Sheriff's sales. The rule of Caveat Emptor applies.

Assumpsit.-Tried before Mr. Justice Johnson, at Lexington, October Term, 1822.

THIS was an action of assumpsit on a note of hand.

All the facts of the case were admitted, which will appear from the following statement : It appeared that the tract of land for which the note was given, was once the subject of dispute in the Court of Common Pleas, between George Patterson, the plaintiff's intestate, and the defendant, and that Patterson had recovered a verdict for it.It further appeared, that the land was levied on by the sheriff under an execution, and for the purpose of making an advantageous sale, it was sold on twelve months credit by the direction of an agent, Mr. Stark, and the defendant bid it off, and gave his note for the purchase money. Upon a re-survey of the land, after the purchase, the defendant found a considerable part of it was held in possession, and claimed by another person; of this he was prepared to give evidence on the trial; but his honor who tried the case entertained some doubts as to the propriety of the evidence, and finally overruled it. The defendant now moved the court for a new trial, on the ground, that a recovery by the plaintiff's intestate of the land in question ought not to have precluded the defendant from giving in evidence, by way of discount, the claim of third persons to the same land.

Mr. Justice Colcock delivered the opinion of the court: It has been long settled that a purchaser at sheriff's sale has no warranty. The right of the defendant is sold, and if it should turn out that he has no right, or if the property be defective, the purchaser must sustain the loss. The maxim of caveat emptor applies. (2 Bay,

169-70. 2 Const. Rep. 143, and the case of Herbemont vs. Sharp, Ante, 264.)

In addition to the doctrine of law, the defendant had litigated the very title under which he purchased, and may fairly be presumed to have had a knowledge of every

claim to the land.

The motion is dismissed.

Justices Johnson, Huger, Nott and Richardson, con

curred.

Butler, for the motion.
Stark, contra.

THE STATE vs. JAMES T. WILLIAMS.

In a capital case, the court Held it was not sufficient cause to change the venue, that the prisoner swore he believed he could not obtain an impartial trial, because a sum of money had been raised by subscription by some of the citizens of the district to apprehend him, he having escaped from the sheriff.

Newberry district, Fall Term, 1822.

Tried before Mr. Justice Johnson.

THE prisoner was charged with the offence of negro stealing, and on being brought to the bar, moved the court for an order to change the venue, stating on affidavit that he believed he could not obtain a fair trial in that district. The fact on which that belief was predicated, as stated on behalf of the prisoner, was, that there had been a sum of money raised by subscription by some of the citizens of the district for his apprehension, (he having escaped from the sheriff on his first arrest.) The presiding judge refused to grant the order, and a motion was now made to reverse that decision, on the ground as stated in the brief, viz: