Bledsoe vs. Thompson. manded that Thompson's trust or agency should be regarded irrevocable; nor one in which two principals had mutually constituted a common agent, the entire fulfilment of whose agency, as originally defined, had become necessary to vindicate the supervening legal rights of either of the two; nor one in which legal rights of a third person had arisen upon a partial execution of an agency created by Bledsoe. It is a case in which the defendant held for the plaintiff an illegal wager (one at least which the law does not sanction, though an indictment might not lie); and in such case we have the opinion of the English Court, that either party, even the loser, may recover from the stakeholder the money deposited by him, whether the wager, or event, be decided or not; provided he demand his money before the same be actually paid over, after the event, to the winner: (vide Hastelow vs. Jackson, 15 Eng. Com. Law R. 204.) Without, therefore, prosecuting the inquiry into any other grounds that might be discussed in such a case as this, the foregoing considerations have brought us to affirm the conclusion on the Circuit, and to adjudge that the motion be refused. And it is ordered accordingly. O'NEALL, WARDLAW, FROST and WHITNER, JJ., concurred. Motion refused. Columbia, November and December, 1852. Elizabeth W. White vs. The Charlotte and So. Ca. R. R. Company. In estimating the "loss or damage" to a land-owner by the right of way taken by the Charlotte and South-Carolina Railroad Company, the Jury may estimate the value of the land occupied by the Company; the deterioration of parcels isolated; the alterations of arrangement required about the homestead; the loss of time, and expenditures, caused by any increase of care or distance which had been occasioned; and the injury to the value of the place as a stand for a public house. Before WARDLAW, J., at Chester, Full Term, 1852. The report of his Honor, the presiding Judge, is as follows: "This was an appeal by a land-owner from the assessment made by Commissioners, of the damage done to her land by the right of way through it, taken by the Railroad Company. (See the Charter, 11 Stat., Sec. 19, 1848. Sec., 1846.) "The land consists of two tracts, near to each other, but not adjoining, both within two miles of Chester village-one containing two hundred acres, the other nine acres. The Railroad runs through the first tract for half the distance, with an embankment five or six feet high; and for the other half with a cut, varying in depth from three to fifteen feet; leaving but one crossing, which is where a public road crosses. Directly in front of the house, forty-seven yards from the door, the cut is six feet deep. Three small parcels of land, lying between the Railroad and the public road, are so isolated and misshapen as to be unworthy of fencing. A field, formerly within a quarter of a mile of the house, can now be reached only by going down the Railroad on one side, and up it on the other, a distance of a mile and a quarter. A barn and two stables have been separated from the mansion; and a well and a few fruit trees, at an old settlement, have been injured. Upon the second tract, the Railroad passes over one corner, with a high embankment, occupying one acre, and leaving the other eight acres open to the public road, which bounds the tract on one side, and uninjured, except that communication with places over the Railroad is interrupted, or made circuitous. White vs. Railroad Company. "The defendant's husband, in his lifetime, twenty years ago, bought the first tract in several portions, at $4 an acre, or thereabouts; and afterwards he built upon it a two-story frame house, painted and well finished, (the contract price of which was $700,) and made other improvements. He kept a house of entertainment, particularly for horse-drovers. The house is enclosed by palings; between these and the Railroad is the public road, and a short distance from the house the public road forks. "The Commissioners assessed the damages as follows: First tract Eight and a half acres taken, at $20 an acre $170 40 35 245 Enhancement of value, 200 acres, at $1 per acre 200 "Three brothers-in-law of the appellant, her only witnesses, gave various opinions as to the value of the parcels cut off, and as to the items of damage done; but all agreed that the tract was by $500 less valuable than it would be if no Railroad was in the district. The value of the stand for a place of entertainment, some of them said, was destroyed; but one of them seemed plainly to consider the deep cut in front of the house, and consequent inconvenience, as the principal cause of deterioration. "For the Company, it appeared, by one witness, that the small tract, which in 1845 had been bought for $60, when it was mostly in woods, had since been cleared, and now brings a rent of $30 a year; that $20 an acre has been offered for it, and Columbia, November and December, 1852. $350 asked; and that the appellant offers the other tract at $12 an acre. "The only remaining witness testified that, in his opinion, the intrinsic value of the whole land for agricultural purposes did not exceed $5 an acre; that all the lands in the neighborhood had been raised in price by the Railroad, and that he would certainly take the land as it now is, rather than take it without a Railroad in the neighborhood.. "I directed the jury that this was a question of compensation, not one of trespass, and therefore that certain violations of the Charter, spoken of on the part of the appellant, could not be considered; that they should estimate "the loss or damage" on one side, and the "benefit and advantage" on the other, and if the former was greater, find the excess for the appellant; that under the latter head would fall any increase in the price of the land, or increase in the comforts or facilities of the land-owner, in diminution of his labor or expenses, appreciable in money, and caused by the Railroad; under the former head would fall, not matters of sentiment or fancy, but such losses and inconveniences as could be estimated in money: amongst which were the value of the land actually occupied; the deterioration of the parcels isolated; the alterations of arrangement required about the homestead; the loss of time and expenditures, caused by any increase of care or distance which had been occasioned; and the injury, if any had been done, to the value which the place had as a stand for a public house. "The jury found for the appellant $250." The Company appealed and now moved for a new trial, on the grounds 1. Because the presiding Judge erred in admitting evidence of damages wholly conjectural, and incapable of pecuniary valuation. 2. Because the presiding Judge erred in charging the jury that the damage to the appellant's stand, as a place of public entertainment, might be considered in estimating the damages to her land. Holland vs. Ingram. 3. Because the evidence was, that the enhanced value of the lands of the appellant exceeded the damage arising from the construction of the road of the Company. 4. Because the damages found by the jury are excessive and unreasonable. McAliley, for appellant. Dawkins, Thomson, contra. Per Curiam. In this case the Court is satisfied with the re sult. The motion is dismissed. O'NEALL, WARDLAW, FROST, WITHERS and WHITNER, JJ., concurring. Motion dismissed. James R. Holland and wife vs. John U. Ingram, Ex'or. A witness who is promised by the plaintiff a sum of money if he will attend as a witness and the plaintiff gains the case, is incompetent to testify for the plaintiff. Before WHITNER, J., at Kershaw, Fall Term, 1851. In this case-trover for negroes-his Honor's report is as follows: "The plaintiff having stated his case, offered his first witness, one H. D. Coats, who being sworn on his voire dire, denied having any interest in the event of the suit, being, as he said no blood-kin to any of the parties. "After much prevarication, he said he had been offered $100. by the plaintiff to ensure the suit, to which he replied, 'Your money perish with you.' |