TIME. Where a collector was required to give public notice of the sale of real estate, for taxes, by advertising in a newspaper once a week for three months, it was held, that an advertisement within the week succeeding a former advertisement, but after an interval of eleven days, was sufficient. Ronkendorf v. Taylor, 4 Pet. 349. TRESPASS. 1. To excuse a trespass on the ground of accident, it must appear to have occurred without the least fault on the part of the defendant. Jennings v. Fundeburg, 4 M'Cord, 161. 2. Thus, where the defendant, in an action of trespass, was in pursuit of runaway negroes, who ran from him, and he fired his gun towards them, intending to shoot over their heads, to induce them to stop, and one of the negroes was killed by a random shot, it was held that the owner was entitled to recover his value of the defendant. Ib. 3. Where a tract of land was sold by a sheriff under an execution against the defendant, in an action of trespass to try titles, by the purchaser against the defendant, the defendant will not be permitted to give evidence that the title of the land was not in himself, but in another, whose tenant he was. O'Neal v. Duncan, 4 M'Cord, 246. See JUDGMENT, 4. TRUST. A purchaser from a trustee without notice, will hold the property discharged from the trust. Hudnal v. Wilder, 4 M'Cord, 294. USES AND TRUSTS. Whether a use is executed or not, under the statute of uses, must depend on the intention of the grantor, expressed in the grant. If the trustee is simply to hold for the use of the cestui que use, then the statute transfers the use into possession. But where it is necessary to the execution of the trust, that the legal estate should remain in the trustee, then the use is not executed by the statute as where lands are devised to trustees for the use of a married woman, in trust to pay the rents and profits to her, or to such person as she should appoint, without the control of her husband, or to permit her to take the rents and profits, for her separate use, &c. Escheator of St. Phillips v. Smith, 4 M'Cord, 452. See ALIEN, 6. USURY. 1. The taking of interest in advance by a bank for sixty-four days, on a note given for sixty days, is not usury, if by the usage and custom of the bank the note was not due and payable until the sixty-fourth day. Thornton v. The Bank of Washington, 3 Pet. 37. » 2. Where such a note is renewed by the discount of another note on the sixty-third day, though on the new note interest for sixty-four days is deducted, it is not usury. Ib. 3. The requisites to constitute usury are: 1. A loan either express or implied: 2. An understanding that the money lent shall or may be returned: 3. That a greater rate of interest than is allowed by law, shall be paid. Per M'Lean, J. Lloyd v. Scott, 4 Pet. 205. 4. The intent with which the act is done is an important ingredient to constitute this offence. An ignorance of the law will not protect the party from the penalties of usury, where it is committed; but where there was no intention to evade the law, and the facts which amount to usury, whether they appear on the face of the contract, or by other proof, can be shown to have been the result of mistake or accident, no penalty attaches. Per M'Lean, J. Ib. 5. In consideration of $5000, A granted to B an annuity or rent charge of $500, payable annually, to be issuing out of and charged upon certain houses and lands, with a right to distrain in case of non-payment of the annuity, and B covenanted that if A, at the expiration of five years, paid to him $5000, with all arrears of the rent, he would release and extinguish the annuity thus created. A afterwards conveyed the houses and lands to C, subject to the payment of the annuity. Held, that as this was admitted to be a contract for the loan of money, it was a usurious transaction, and that C might avail himself of the usury as a defence against a claim for the rent, asserted by a distress. Ib. 6. An annuity may be purchased like other property, and inequality of price, of itself, will not make the contract usurious. Ib. 7. If a party agree to pay a specific sum, exceeding the lawful interest, provided he do not pay the principal by a day certain, it is not usury. By a punctual payment of the principal, he may avoid the payment of the sum stated, which is considered as a penalty. Per M'Lean, J. Ib. 8. Where a loan is made to be returned at a fixed day, with more than the legal rate of interest, depending on a casualty which hazards both principal and interest, the contract is not usurious; but where the interest only is hazarded, it is usury. Per M'Lean, J. Ib. 9. Usurious securities are not only void as between the original parties, but the illegality of their inception affects them even in the hands of third persons who are strangers to the transaction. Ib. 10. Where a note, originally founded on a good consideration, is afterwards sold for less than it is nominally worth, this does* not make a case of usury. Harick v. Jones, 4 M'Cord, 402. See WITNESS, 13. VERDICT. Where, in an action on a bond on a plea of nil debet, the jury have found a verdict for ten cents, the court will not, after a lapse of ten years, interfere with the verdict, although an error might possibly have been committed. Belser v. Irwin, 4 M'Cord, 380. WAGER. 1. No wager concerning any human being, is recoverable in a court of justice. Phillips v. Ives, 1 Rawle, 36. 2. Therefore, a wager, whether or not Napoleon Bonaparte, would, within a specified time, be removed or escape from the island of St. Helena, was held to be illegal and void. Ib. WARRANT AND SURVEY. 1. It seems, that the ninth section of the act of the 8th of April, 1785, requiring that surveys should be made after the warrants are delivered to the deputy surveyor, is not confined to the purchase made of the Indians in 1784. Barton v. Smith, 1 Rawle, 403. 2. Independently, however, of legislative enactment, a survey made previously to a warrant, is void; and is not rendered valid by the receipt of the purchase money and acceptance of the survey. Ib. WILL. 1. A testator used the following words in the first clause of his will: 'My widow to remain and enjoy this my mansion house and farm during her widowhood.' He, in a subsequent clause, devised the same premises with an additional quantity of land, to his grandson forever. Held, that the latter clause was not inconsistent with the former, and that the grandson took a fee simple subject to the use of the wife during her widowhood. Petters v Petters, 4 M'Cord, 151. 2. All the personal estate which a man has, at the time of his death, passes by his will, although acquired after the time of its execution. Case of Elcock's Will, 4 M'Cord, 39. 3. A will, as to personal property, is considered as having existence only from the death of the testator, and not from the time of its execution; and must be executed according to the provisions of the law in force at the time of the death of the testator. Ib. 4. Thus a testator, in 1823, made his will of personal property, which was attested by two witnesses only, according to the provisions of the law in force at that time. By the statute of 1824, of South Carolina, it is required, that wills of personal property shall be attested by three witnesses. The testator died in 1825, leaving no other will. It was held, that the will was void. İb. 5. A testator bequeathed to his wife his negroes, naming them. The will then proceeds as follows: Item, I bequeath to my wife one sorrel mare, one brown cow. Item. All my household furniture, and the increase of the said negroes, during her natural.' Held, that all the sentences were to be considered as one clause, and that the wife took a life estate in the negroes, the word life being clearly omitted. Geiger v. Brown, 4 M'Cord, 418. 6. Where a testator, after bequeathing to his wife a life estate in certain negroes, proceeds thus: "To my son I bequeath all my lands, &c. and my other negroes, with the remainder of my personal estate, shall be kept together for the use of my children.' Held, that the residuary bequest did not include the reversionary interest which would be left after the death of the wife in the negroes given to the wife. Ib. 7. A testator in his will used the following words: 'I give unto my wife H. B., my two female slaves, L. and H.; I also give her one third part of my income annually, during her life, to revert after her decease to my estate.' He then gave to his son and to his heirs, one third of his income, and to his daughter, the remaining third of his income, for her sole benefit during life, and then to descend to her heirs lawfully begotten. The will then proceeds: 'After the decease of my wife, the whole of my estate to be equally divided between my son and daughter, and their heirs lawfully begotten.' Held, that the wife took an absolute estate in the two slaves, and not merely a life estate. Blewer v. Brightman, 4 M'Cord, 60. 8. Where a testator bequeaths slaves to a tenant for life, without any further disposition of them, they revert, upon the death of the tenant for life, to the testator's legal representatives. Geiger v. Brown, 4 M'Cord, 418. 9. A subsequent statute cannot affect a devise of land by a testator who died before the act was passed. Boatwright v. Faust, 4 M'Cord, 439. 10. A will made in another state, and executed according to the laws of that state, will be effectual to pass the personal property of the testator in South Carolina, though not executed according to the laws of the latter state. Gause v. Gause, 4 M'Cord, 382. 11. A will made in another state, according to the laws of that state, but not according to the provisions of the laws of South Carolina, either as to real or personal property, cannot be admitted to probate in the latter state, in the first instance 1b. 12. The decree of the ordinary against a will is not conclusive against the rights of a devisee of the lands, or of one who takes 49 VOL. IV.-NO. VIII. a power to sell lands, or their privies. Crosland v. Murdock, 4 M'Cord, 217. 13. So, if he allows a will, his probate is not evidence against the heir at law. lb. 14. An instrument in the form of a deed being voluntary, and to take effect at the death of the maker, may operate as a devise of real estate. Singleton v. Breman, 4 M'Cord, 12. 15. A testator directed his real estate to be sold by his executors, and that when sold and the money collected, they should pay all his just debts and all the just debts of his son L., contracted up to the date of the will, but none that he might contract after that date. He then directed that his wife should have and enjoy all his estate, real and personal, during her life, and that at her death, one moiety should be left at her own disposal. The other moiety he directed to be put out at interest for the use and benefit of his son L., for him to receive the interest of the same annually during his natural life; and at his decease, the principal and interest of the same to be at his own disposal. The wife survived the testator, and died intestate. The son L. survived his father and mother, and died intestate, leaving the plaintiff, his only child. Held, that after the death of the widow, without appointment, one half of the estate vested absolutely in the son L. as next of kin, and was liable to his debts; and that as to the other half, it went to the son L. for life, and after his death, without appointment, to the plaintiff as next of kin to the testator, and was not liable to the debts of the testator's son L. Thomas v. Thomas, 1 Rawle, 112. 16. Although land devised is not expressly charged with the maintenance of infirm children of the testator, yet, if such an intention can be clearly collected from all the parts of the will, considered in reference to the testator's circumstances, the charge will attach upon the land, and follow it into the hands of subsequent purchasers. Ripple v. Ripple, 1 Rawle, 386. 17. The words any earthly property,' in a will, if they appear from the context not to have been intended to include real estate, will be confined to personal property. Brown v. Dysinger, 1 Rawle, 408. WILL, Probate of. See EXECUTORS AND ADMINISTRATORS, 1, 2, 3. WITNESS. 1. Where a third person brings an action on an administration bond in the name of the ordinary, endorsing his name on the record, and acknowledging himself liable for costs, the ordinary is a competent witness to prove the bond. For the record can never be given in evidence for him in any future action in |