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CHRONICLE Art: ? SENTINEL
AIJGUi f A.
' i-.j 4 ■ —-—*
TUESDAY MORNIKt FEBRUARY 11.
- L ' y,-
Our Patrons in W* Its *ill have an op
portunity of paying their I I**»«ges to this office,
to our Agent, Mr. Tao* ♦G. Thompson, who
will beat the ensuing Sup Irior Court in \\ ilke*.
Ifoateamer Liverpool 1 as to leave Liverpool
on tht Both Jan. She nu be expected in about
a week. Her new* will b« wenly-five day* later.
The proceed* of the be efit for the wife and
children of the late Henn J. Finn, at the Fre
mont Theatre at Boston, n Monday, the 27th
Bit. amounted to about 200.
An Augusta (Maine) p .per, states that a man
named James W. Wilder* claims the merit of
having cut the figure heaq from the frigate Con
stitution.
The British ship of wa Cleopatra has captur
ed and sent into Jamaica,i a Portuguese slaver,
with 289 Africans on boa ,1.
Paxas Lvaxii. —Th» Philadelphia U. S. Ga
aette of Tuesday last say; • “We are informed
that Thomas Duxi.ap, } iq., President of the
Bank of the United Stab, |, yesterday made ar
rangements for an advance ;to the Slate of $870,-
000 on behalf of that inst ijtion and such of the
other banks as might unit; >in it, amongst which
the Girard and Pennsylvz ia Banks have imme
diately agreed to participaf to the extent of §IOO,-
000 each. Full provisit |is thus made fur the
payment of all interest a \t on the public debt ,
at heme and abroad, and ;i new proof furnished
of the sincere desire whic is cherished by our
great State institution to uphold the best interest
of Pennsylvania, and to j 'aintain har faith un
tarnished.” |
Correspondence of the 1 'harleston Courier.
Wv kiHIWGTOX, Feb. 3.
In rhe Senate, to-diy, debate on the report,
against the assumption oi, j.he Slate debts, was
continued. It was expec: U\ that Mr. Tallmadge
would speak, and much i, terest was manifested
in hearing him—but he <| ,J not rise.
Mr, Clay, of Ala., took he floor, and, in a long
speech, argued that a d ' tribution of revenue,
whether from the lands *r any other sources,
would be equialent loan: gumption, and that an
assumption of the State d »ts, in any form, would
be an outrage on the Cor, titution, and, in every
way inexpedient.
Mr. Crittenden spoke «y* the other side, and
strenuously urged the pr.tijriety of distributing,
among the >Siates, the priJecds of the sale of the
public lands. He said h«twas always in favor of
this measure, ami was sow the mote so t inas
much as the States were lobarrawed.andI obarrawed.and needed
the money. 1
A number qf memoria 1 were presented, pray
ing the imposition of arr derate duty on impert
-ed silk. There is reaso to believe that this
measure will be general!;} called for, not only to
encourage the production of silk at home, but to
aid the revenue.
In the House, the } intmg committee was
chosen, viva vote ,-- and t consists of Messrs.
Black, of Ga., Prentiss, t, X y. f Davis, oflnda.,
Kice Garland, of La., ar. i Evans, of Me. The
first three voted for Bh, dk Rives as printers,
but a majority of the Cm will no doubt
be in favor ol reducing th prices of printing.
two ballots were take; for Chaplain, but no
election was effected.
e ™ t#,nent s< M to prevail, in the
Key-stone State, in reli ion to her banks The
aprrehcnsioiithat the “G „ t Regulator,” and it.
tender the "Girard " will be obliged to wind up,
anotdil a speedy resum,,' ... of epecie payment,
beqmred,.. very general It is r ort( .j
hatahonld the law, fit „g ao carlv a da, a, the
15lh ot I eb„ for a rcaur ption, be passed, all the
B.!', k !h m k' . Sta ! e mUSI: urr< '" dcr <h«ir charters.
But, though the law rel red to has passed the
wh-T’ * rg ‘ “j° very doubtful
whether it can pass the Senate, where the Van
Buren prrty have a raaj. ity of only one. If fur
ther appears, that Gov. orter. and most of his
counsellors are semi-con Jrvative, and will throw
Itieir influence against t ;e law.
.S^nJrt P f aS ’ it . W ■' create Sreat agitation,
p *. hkely to spin he Demi cratic party in
Pennsylvania, and give that State to General
M asi ■ noton, February 4.
t J r : f \*T n ''r he Sem 0r from ° hio ’ “Od bro
ther of Arthur lappan. if N. Y., has been ac
tio^iL not r 7 f ° rmer,y but recenl ly, of aboli-
TT Ac }' ons *P™* than professions.
Mr. 1 appan has, this da . cleared his skirls from
e abominable thing, h a course more l>old and
open ban any other Ser tor or member from any
nomslave-holdmg State as yet taken 3
Mr. Tappan slated th he had received a nunv
t*r of abolition petition- with the request that he
would present them. I . said, he could not com
ply w.th the request; ai Jhe begged leave to give
hjs rea 3ons in ~u ll for , fusing to present them
His reasinis he proce< led to give at length :
and to prevent all m,stalls or misrepresentation,
he read them they are luch as the South ap
prove and have always ontei.ded for. When
he concluded, Mr. Prest, a rose and expressed his
sa n a J |r ededan ions of the Senator, and
rlf a i views shou * d
name of the South and our **
for the manly aud JSS C °" nt ? ’
occasion. Mr. C’alhout ml a taken on this
ern Senators, came up , | N? d tT*' °^ T S^th *
took him by the hand w. 8 seat » a °d
Tl,i. incident i. the inoi ! irte.p— loc^m "‘
tlematTf ll" U
the memory „f»||. Th
mcend.ary abolition spe eh that I e.ef r " a d or
heard, was one deliver*., hv this Senato M
last vear-mreplv. iff ***** arigh t. to Mr
Clay. It was no ord* iary declamation. The
man was m earnest, an. well matured what he
ZtJ ren,ember s he r. nark of a distinguished
Senator-, he ,s makm a great speech.” The
Ohio Senator sa.d be w| s going home te set a
light on every hilj—tu . |J V his people. &c. But
,ight a . S * ‘hat he
he is succeed I menld oblivion; and
litical Dartv ' 111 Ivit^ua i the same po-
S Z
debated to-day!' Mr' v. T' 216 Dcllls was “S*** 1 *
against the re’porL | J s^ke
with others. I was uU , ln common
speech, considering the u Z h In the
brought with him. M C ilho. l UUtlon Mr. P.
and the subject was pas ed over tVglve
opportunity to speak ! - narrow. T he T ?
? Wami!»o*ojG February 6. \
Mr. Calhoun to day, made one ot hia most |
i successful speeches in the Senate, on the report
1 against the assumption of the Stale debts.
! In uhs House, there was a great number of pe
| titiorui presented on private and local subjects.
| -
From the Philadelphia Inquirer.
We are indebted to the Merchants’ Exchange* ;
for the following extract of a highly important
important letter from Harrisburg. We also feel
bound to state that the course of Governor Porter,
i in tbU matter, meets with the cordial approbation
!of the reasonable of all parties. The people
have entrusted him with an office of the deepest
! responsibility; and so far as the credit of the
State is concerned, he seems disposed to discharge
his duty in a fearless and truly Pennsylvanian
spirit :
Harbisbcrg, Feb. Ist, 1840, >
12 o’clock, noon. 5
Governor Porter to-day sent a message respect
ing the State loan. The Pennsylvania Bank
| took 100,000 dollars of it; and answers from ail
i the other Banks were received, declining to take
any portion of it. The Governor recommends
' the Issue of State stock for the payment of mter
' est on loans, and suggests a lenient course of le
gislatlon towards the Banks. He says : “I feel
bound to say, regardless of any denunciations
from any quarter, that I believe if too rigorous a
system of measures he adopted to coerce the pay
ment of all the liabilities of the Banks immediate- !
10, the credit of the State must and will be se
riously and disastrously affected. Let an assur
ance lie given to the public, that at a certain and
fixed day, within a reasonable time, such re
sumption will take place, and that it will then be
permanent.”
Correspond nee of the National Intelligencer .
New York, Feb. 3. 1
By an arrival from Canton, we have news to
the 25th of September, a month and a half later
than we have received before. The troubles be- i
tween the English and the Chinese have become
so serious that the British residents have been
oblige ’ to leave Macao, and take refuge on board
the ships of war, as we have before heard, via
Singapore. The British trade with China was
totally susjtended, and there was no prospect of •
an adjustment of the difficulties without aid from
England. The opium trade was still carried on
briskly under the British flag. There was a j
good deal of bad feeling between the Chinese -
and the English, and some skirmishes had taken )
place. It was reported that several Chinese were J
killed, and among them a Mandarin of rank. j
Capt. Smith, commanding the British squad- \
ron, issued an order declaring a blockade of the <
port of Canton, but afterwards revoked it. The j
American trade continued without molestation, •
i and several vessels were employed under high
rates of freight in taking British manufactures to 1
Canton. The remonstrance of the American
merchants respecting the blockade was the cause
of its revocation; but when the East India
squadron arrives, as constantly expected, it is not
at all improbable that the blockade will be re
newed.
The news from Pennsylvania respecting the
banks and the Governor and Legislature is ere- 1
ating something of a sensation in Wall street.— 1
New York, though a silent, is an intent looker-on. |
Tiae dishonor of the great Key-stone State in ,
not paying the interest ($700,000) due on a part 1
of its debt on Saturday last is a melancholy com- 1
mem.ary upon the times. A delinquent State
making delinquency a penalty is a novelty in <
American history! I
The stock market is flat to-day. Prices are
J i
all down very much. The course of Pennsyl- j
vania is very dispiriting, and the news from Ea- |
rope has not been favorable to speculation. Ex
| charge on England is 108 to 108£ ; on France, *
i 5,30 to 5,275. But few offering on j
; England. i
The Mails East are very irregular. The New
England newspapers reach us at long intervals.
A large Public Meeting has been held in Boston*
upon the subject of the destruction of the Lex
ington, which resulted in the appointment of a
committee of fifteen to investigate the cause of
steamboat disasters.
j
I Correspondence of the Philadelphia N. American.
New York, Feb. 3, P. M.
There is rather more doing in Cotton to-day
jat shady prices. A cargo of Southern Corn sold
at 62 cts. 561b5.; Flour firm, but dull. Stocks
just about as on Saturday ; United States Bank
! sold at 74.
I Domestic Exchanges. —Philadelphia bills, 6 ;
! Richmond 7; Charleston 2s; Savannah 8a 9;
j Augusta 9 a 10 ; Macon 9$ a 10 ; Mobile 7 a 7J ;
I New Orleans 3$ a 4.
A remarkable case of dropsy occurred on the
person of Ann Stiles, of Windsor, Conn., aged
49, who has recently died. The disease com
menced in 1830, and since that time she has had
seventy operations of water drawn from her,
weighing 3115 pounds, nearly 12$ barrels.
More Suspensions.—A great many of our i
I subscribers have “ suspended” payment—at least !
!to the Printer. Some of them have gone to I
| Texas “to look for land.” We hope they will be
| “ suspended” so they can take a good “ high”
look at the “ surrounding country”—that is to
say, we hope they may have “more elevated
views” th in ever they had in this country or, in
other words, we would be pleased to hear that
! they have been “ exalted” according to their de
| ser,s m which case, d—n them, they will be
| “haltered for the better.”— HA!y Springs Re
i publican. s
| The Afric ans—The fact stated in this paper
that an appeal had been made, from the late de
cision of Judge Judson, in behalf of the Afri
cans, by their friends, we are requested to say is
incorrect. We had our information from a re
sponsible source, and supposed it to be true. It
was, no doubt, premature.— New Haven Herald,
The Mist.-—The branch mint in the city o*
? r P^ 16, has Slnce commenced its opera*
I lions last December, coined :
160.000 halt dimes,
18,000 half dollars,
130.000 dimes,
9396 quarter eagles.
Making in all, 317,396 pieces.
CCHE FOR R HE F M AT, BR. W, see the f„|| ow
mg recommended lor the cure of this annov!
complaint: “Spread raw cotton, about one
ot an inch thick, on a piece of flannel, suffioi em]v
largo to cover the part aflecled. Qmlt the cotlon
to the flannel, an a» to cause it to remain spread.
When applied it will produce relief in*atery
short time.”
From the New Orleans Bulletin.
Separation of the Fioridas.
\ proposition is now before the Senate ot the
United States for the division of Florida into two
States. Many reasons arc urged for carrying this
measure into effect. The Territory is amply large
enough to form two States. At present Us boun
daries are more extensive than any single State in
the Union. Mast Florida alone, it is estimated,
contains as many acres as the whole of Pennsyl
vania. The scope of the district west of the Su
wannee is equal to the united terrilory of Massa
chusetts and Connecticut. There can be no diffi
culty, then, on the score of a lack of land enough
to constitute two States. Another strong argu
ment in favor of the arrangement, is founded on
the wishes of the inhabitants themselves. The
population of West Florida is much the most
numerous —the settlements are more compact,
an the facilities are mnch greater for carrying on
an organized goverment. —The Eastern province
is sprinkled with a few settlements, scattered far
and wide over a large territory. The country is
now the theatre of savage war, and promises to be
‘the dark and bloody ground’ of the South for some
time to come. The innabitants, for these reasons,
do not feel able or willing to maintain an inde
pendent State government, and prefer romaining
a while longer under the shelter of the Executive
arm. There are natural boundaries to the prov
inces which indicate tbet they should be kept sep
arate and distinct. It may be difficuU to suggest
the reasons which induced our general govern
ment to blend them in to one. L nder Old Spain,
our impression is, they were separate colonics, un
der sepaiate colonial governments, and were dis
tinguished by different names. Motives of econ
omy may have led to place the whole of Florida
under one territorial organization. Now, howev
er, since one section has acquired the ability and
manifested the inclination to support an indepen
dent State constitution, we see no objections that
can be urged with justice against the arrange
ment. Notwithstanding this, a strong opposition
may be expected. The Northern States are jeal
ous, and would dislike to see the power of the
South augmented by the division of one slave
holding State into two. The division would
give the South two more votes in the Senate than
it would have otherwise. This fact would have
more weight than a thousand good reasons in ar
raying against the measure the whole abolition
strength in Congress. In spite,- however, of all
the outcry that politicians, blinded by prejudice
and fanaticism, may raise in opposition, the dic
tates of common sense and justice, will compel
the Union to make the concession to the South.
Two new States in the North are already apply
ing for admission. Others, it may he expected,
will soon follow. To keep up the balance of pow
er in the confederacy, it would he wise to provide
against the preponderance of Northern interests,
by the creation of two new States out of the only
Territory remaining in the South, thus creating
East and West Florida into separate Federal sov
ereignties.
From the Charleston Courier.
The State of South Carolina.
In the Court of Chancery.
January Teh*, 1840.
Perris Pell, et. al. vs. E. O. Ball , et. al.
Johnston, Chancellor.
The admirable preparation and argument of
this cause have enabled the Court to form a judg
ment, satisfactory to itself, at an early day; which,
at the earnest solicitations of the parties, it has
tens to announce ; although, for itself, in a mat
ter so important, it would have desired further
time, and better opportunities than the hurry of
term time admits of for assigning the reasons of
its decision.
The case belongs to a highly interesting head
of law, upon which there is. as yet, very little of
positive decision ; particularly in the common
law Courts. I refer to cases where some right is
made to depend upon the question, which was
the survivor of two or more persons, who have
perished, by the same calamity.
Much, I may say, every thing, depends, in my
conception, upon two considerations: First, The
nature of the calamity, itself—it is open to ob
servation and evidence, or is it withdrawn from
all scrutiny, and consigned to conjecture 1 Se
cond, The nature of the right dependant upon the
survivorship—is it mutual, or is it of such a na
ture that it one of the parties happens to be the
survivor, he deserves nothing from the other, but
simply retains what before belonged to him;
whereas, if the other had been the survivor, he
would have had an accession from the deceased 1
Where the nature of the calamity is entirely
unknown, it would seem, at first view, that there
are no rules of reason, or of law, by which the
case ran be decided ; and yet, as there are cases
of this description, in which there must be a de
cision—in which a refusal to decide, would be a
decision • so there are rules, applicable to some
of them, very well known, particularly to the
common law, by which a decision, entirely con
sistent with reason, can be made. I allude to the
rule which must, without contest, be applied to a
case where the persons, upon whom the right
depends, may h-.tve gone abroad, and have not
been heard of for such a length of time, as to
raise the presumption of their death. The cir
cumstances under which they perished are whol
ly unknown, but the rule is well settled, that the
last seen or heard of, shall be judged the survivor.
\ et there may be cases of absentees, in which
the rule mentioned cannot be applied : as where
both parties emigrated together, were last seen to
gether, or were last heard from at the same time.
1 his would reduce them, within what, in the ar
gument, has been called the conjectural class.—
here are other conceivable cases—not only con
ceivable, but which, indeed, not unfrequently oc
cur, where, although the nature of the calamity,
is inferred with a high degree of probability, yet
t e priority of death among the victims is conjec
tural: as where they have sailed in the same
vessel, which is known to have been lost, leaving
no surviving witness, or has never been heard of.
I here are other cases, still, where the nature of
the calamity is well known, where, indeed the
catastrophe has happened within the view of ma
ny witnesses—where the survivo ship must i*.
left to conjecture ; as where the victims were in
closed within a house, and perished by a sudden
explosion.
Now, it is admitted that, within this category
the English and American courts have heretofore
carefully avoided the adoption of any rule of de
cision. The cases have gone off on compromise
or we?e decided upon a rule adapted to the ques
tion before the Court, and not the question of
right as transmuted by survivorship. Thnc
W-BUck.Rep. 640.) where
General tManwix, with his wife and a daughter
by a former marriage, sailed from Dublin for En’
gland, in the same vessel, which was never after
wards heard of, the question was—who was enti
tled to the administration of the General’s estate
his next ot kin. or the maternal uncle of the
daughter who had perished ? For the maternal
uncle it was contended, that, in analogy to the
c.v.l law. it should be presumed tjiat the daugh
ter survived the father. But the Court held that
the question before it, concerned the right of ad
ministration only, and not the right of distribu
eh , % £ fa , VOr ° f the next of ki « of
J®, ' V 8? m p aylor 0 T - Di plnck, (2 Phillirn:
261- s Ecclcs - Rep. 259,) where a husband
appointed his wife Executrix and residuary Leg
atee, and both were subsequently shipwrecked to
gether. and drowned, and the contest w as between
the next of kin of the husband, and the next of
t kin iff the wife. The evidence left it doubtful,
which of the parties survived, upon which the
judge granted administration to the next of kin
of the husband ; remarking: lam not deciding
that the husband survived the wife.” Tnere are
yome observations in the opinion of the Court,
which do bear upon the question of urvivorship,
and intimate that as the wife’s kindred claimed
administration, on the score of survivorship, they
were bound to prove it. But the closing remark
of the Judge shews, I think, that in questions of
administration, the Court does feel itself called
upon to undertake a very exact decision of the
case of survivorship; the right of distribution
being always left open. So, also, in Wright v.
Sarmuda (2 Phillirn. 266, [note] S. C. I Eccles.
Rep. 253 reported also under the style of Wright
v. Netherwood, 2 Salk, 593, (note) where the
subject of survivorship was somewhat considered,
the iudgment was given on the real question be
fore the Court, which was, whether a will, made
by Nelherwood, was, under the circumstances,
revoked by his subsequent marriage, and the
birth of issue. In the case of Selwyn, (3 Hag.
748; 5 Eccles. 3 Rep. 254) where the Court
treats somewhat of the same subject of survivor
ship, in conjectural cases, the question was as to
the right of administration ; and it was granted
to the applicants without objection.
I think I may safely conclude, that (as observ
ed by Chancellor Kent; 2 Com. 350, part 5,
Lect. 37.) “ the English law has hitherto waived
the question.” lam not, however, prepared to
abandon, as delusive, all efforts to attain rules, ca
pable of deciding the fact of survivorship, even
in cases denominated con ectural. I have said,
that there are cases where, owing to the quality
of the right, depending on the survivorship, the
exigencies of society demand a decision, and will
take no denial. Where the right is not mutual,
it may be safest, and perhaps in such instances,
the rule should be, as stated in some of the cases,
to which I have referred, to abstain from any
thing approaching to conjecture, and leave the
right untouched, unless it can be shewn by rea
sonable evidence, that the party who is to take
derivatively, was the survivor. But there are in
stances, such as cross remainders, and partner
ships, and such as would have arisen on joint ten
ancies before the abolition of the jus accrescendi,
(as in Broughton vs. Randal, Cro. Eliz. 502)
where there must be a decision, and to which the
rule just mentioned cannot be applied, without in
fact deciding for one of the parties, and against
the other, by refusing to decide at ail; and where
indeed that may not be the only consequence.—
I should, therefore, be loth to admit, that our
law is not capable of reaching, and deciding these
cases, and all others, which the peace and order
of society require to be determined. And, in
deed, there will generally be found something in
the condition of the parties, their age, strength,
health and habits, which will in some degree at
least rescue the decision from the imputation of
rash conjecture, and place it rather upon the foun
dation of evidence and probability, than tremu
lous presumption.
But where there is any evidence whatever,
even though it he but a shadow, it must govern in
the decision of the fact. There is nothing which
more distinguishes the common law, than the
preference which it constantly gives to evidence,
over all artificial presumptions, unless it he those
which are essential to the judicial institution it
self, and to the preservation of social order. The
common law encourages a resort to every fountain
from which truth can be drawn; it listents to wit
nesses ; it looks into the internal evidence of
things; it contemplates the whole of the circum
stances: and then draws its conclusions, according
to the preponderating probability.
This is the rule of reason, which has a place,
and is of the essence of every code, in every
country. Thus in the Code Civile, (liv. 3, tit. 2.
no. 720.) it is provided that if several persons en
titled to inherit from each other, happen to perish
in the same event, (to which the Louisiana code
adds, byway of illustration, “such as shipwreck
or battle or conflagration.” p. 298 chap. 4. art.
930) without the possibility of knowing, which
died first, (here is the primary proof) the presump
tion of survivorship is determined by the circum
stances ofthc fact; (here is the secondary proof,)
and in default of these (the internal circumstance
or circumstances of the fact,) lastly by rules en
acted in the code, as applicable to cases of a mere
conjectural character.
If the case is divested of proof and the exigen
cy demands it, resort should be had to extraneous
circumstances. If it contains internal evidence
and no more, that must be resorted to : but if to
this witness can be added, bearing positive testi
mony or detailing facts, from which reasonable
inferences can be drawn, these furnish the most
satisfactory proof.
In what I have said hitherto, I have contem
plated a case, where the cause of death consisted
of one disaster, whether of more rapid or of slower
operation. But where the danger consisted of a
series of successive operations separated from each
other and each capable of inflicting death upon
the victims according to the degree of the expo
sure to it, there is certainly more scope for testi
mony, and for inference, from circumstances,
than in other cases.
Let us now turn to the case of Mr. and Mrs.
Ball, and see, if from the mournful circumstances
of their fate, we can extract any thing, to solve
the important question, to which it has given
rise.
Ihe Pulaski, according to the testimony, left
Savannah on Wednesday the 13th of June, 1838,
wito many passengers, and arrived at Charleston
that evening. The next morning, Mr. and Mrs.
Sail, their adopted daughter Emma, and servant,
having gone on hoard at Charleston, she departed
or the North, and pursued her course, until
about 11 o’clock of that night; when, most of the
passengers having retired to their berths, the star
board boiler exploded. By the explosion, an ex
tensive breach was made on the starboard side of
the vessel. Her main deck was blown off, par
ticularly on the starboard side, thus destroying
the communication between the forward and after
part of the steamer. The forward part of the up-
I per deck, (called the hurricane deck, in contradis
tinction to the after part, which is called the pro
menade deck.) was blown off, carrying with it
the wheel house, in which the commander of the
boat, Capt. Dubois, was sleeping at the time.
1 he gentlemen s forward cabin was much torn- its
floor ripped up, and its bulk head driven in- and
Major I wiggs, whose berth was there, gives us
reason to suppose that many perished in that part
of the vessel by the explosion. The gentlemen’s
after cabin (which was under the main deck, and
-mediately beneath the ladies’cabin, which was
on that deck) was also injured. Some part of
the floor was ripped up, the bulk head partly driv
en in, and the stairs communicating with the
decs, more or less shattered. The vessel was
careened to the larboard, and as she dipped, began
instantly to fill with water. In a very short tfrr.e
the hold was filled, and the water gained the lev
el of the floors of the gentlemen’s cabins. It rose
higher with great rapidity; the vessel settled to
t t W C h ntre ’ Ti h t re t ! he b T° h Was ’ and aM hope
that she could hold together was abandoned. She
parteu amidships, and the forward and after par's
pitched into the water towards the centre, Lt an
i 3 26 ° f ” ear, y th,rt y d «*rees. The gentlemen’s
i after ca b» n was now entirely filled, am j the for _
ward cabin was certainly in as bad a condition
There were some persons on the forward part of
V,T ’ " ear ’ y aU ° f seedily perished
bm the greater portion were in the after part in'
eluding one or two who had passed bv
ming from the forward to tl e after part Os ik'™'
on the after part, as many aa eouldclimhcd
promenade deck, but there were many, mat ° la'
Tbt:-
deeper and deeper retreated along the ga^-way.
I by the lad,.*' rahtn, toward, the .till The
promenade deck, by the action of the waves, was
burst from the top of the boat, and was submer
ged. with all that were on it. Whether the stern
of the boat was submerged at or after this time h
uncertain. Some of the witnesses think it was
submerged even before the promenade deck, oth
ers that it was not submerged at all. All these
events had taken place, according to most of the
witnesses, in about from forty to fifty minutes, ac
cording to others, in less time.
Some few escaped in boats, others on parts of
the wreck, and others on rafts constructed by
them as they could, amid the horrors of the im
pending destruction.
Os Mrs. Bail nothing is known after the sub
merging of the promenade deck, nor for some time
1 before. ° Before that event, her cries were hoard
by one witness, who had gained the promenade
deck, as they proceed'd from the place she still
occupied on the deck below. No witness speaks
of her afterwards.
Within a few minutes after the explosion, ac
cording to one witness who knew her, she came
out of the Ladies’ cabin, and began to call upon
her husband. The scene was one of terror, as
may be supposed, but although a crowd was in
stantly gathered, at that part of the vessel, there
was not much noise. The surrounding horrors
seem to have subdued the sufferers, and in mute
astonishment they contemplated the fate, which
awaited them. Even the wheels had stopped.
Nothing but the sound of the waters, which were
somewhat disturbed, and the hasty exclamations
of friends, as they sought each other out, and the
noise occasioned by such preparations as the
more active and prudent felt themselves called
upon to make, for themselves and others under
their charge, were heard. But the voice of Mrs.
Ball was heard above all others, calling upon her
husband. She ran forward to the chasm, caused
by the explosion; retraced her steps; and contin
ued to traverse the starboard gangway in search
of him, uttering his name in tones so elevated by
her agony, that it reached most parts of the vessel,
and seems to have made an indelible impression
upon all who heard it. Her cry, according to
one witness, was a cry of bitter despair and anx
ious enquiry ; and, according to all, it was lifted
in shrill tones, carrying an irresistable appeal to
all hearts.
Mr. Ball was neither seen nor heard. Mrs.
Ball was heard by all, and seen by many, but no
response was heard to her cries, nor was any one
seen to approach her, for her protection or conso
lation. Two witnesses, who knew Mrs. Ball,
saw her, but. did not see him. One of them pass
ed and repassed her, in a hurried manner to be
sure, but did not discover him.
He was neither seen nor heard after the explo
sion, unless he was the person referred to by two
witnesses, who state the following circumstance.
Very shortly after the explosion, a boat was let
down on the starboard side of the steamer into
which some persons descended. As the boat was
lying below, some gentleman came to that side
of the deck, and throwing a coat into the boat,
called to those in it to hold fast a moment, and
instantly disappeared. He never re-appeared,
but the next day the coat was found, to be a
black dress coat, of a large size, (such was the
size of Mr. Ball ) and in one of the pockets was
discovered a shirt collar, on which was written
the name of Ball, with some initials, which the
witnesses have forgotten.
Now, these arc the circumstances of the case.
It is not a case of an unknown calamity, nor
of one withdrawn from observation; nor is it a
case where the calamity was of instantaneous op
eration. It is a case for testimony and to be de
cided on testimony.
I incline too to the opinion, that as the right,
on the part of Mrs. Ball, was derivative, and
without mutuality, the burden is on the plaintiffs,
who claim tnrough her. to prove that her right
vested, that she was the survivor. Without con
sidering it necessary to decide that this is the pro
per rule here, I shall undertake to be governed by
it. No conjectural inference, no inference ex
cept from evidence will be drawn on behalf of
the plaintiff. They must make out their case, or
the rights of Mr. Bell will be permitted to remain
as they were.
But because the plaintiffs are to prove the fact
of survivorship, it does not follow that they are
to prove it to demonstration. All reasonable in
ferences will be drawn from the best evidence,
suggested by the case; and although at last we
may be far from arriving at any thing like cer
tainty, although, indeed, there may remain much
obscuri y and doubt, yet if we have evidence on
ly sufficient to lead us out of the regions of con
jecture, we must follow it.
I shall not, (because it is unnecessary) resort
I to the bare fact, that Mrs. Ball was the last per
j son seen, or determine whethei that alone is not
sufficient to raise a presumption, in analogy to
the doctrine which prevails in cases of absence.
I incline, however, very strongly, to the opinion,
that where the evidence has traced the parties
into a common danger, which proved fatal to
both, the last one seen or heard, with the opera
tion of the cause of death, must be adjudged the
survivor, unless there be something in the nature
of the circumstances to rebut the presumption, or
render it inapplicable. The analogy to cases of
absence is very strong. The proof here that the
death has occurred stands in the of place of time;
which is employed only as that the parties have
| died. When they died relatively may he judged
j °f * n this case, as in that, by considering which
was last knowm to be alive.
I prefer, however, to put the case upon the
ground of probability, arising from the evidence;
upon a belief engendered by a combination of the
circumstances; and upon the superiority of pos
tive proof, over conjecture or over probability.
It will be remembered that the explosion pro
duced its most fatal effects in the gentlemen’s for
| ward cab,n ’ and that was the first part of the
I vessel , whlch submerged. That the alter cabin
; was also much injured. That from the forward
I ca ),n man y persons never escaped. From the
! a J, te 1 r ? abln ’ 80 far as w e know from the evidence,
j all did escape except Judge Cameron, an infirm
old man. But from the description given of its
j f ondltlon * it is possible that some others may
have been detained, eith r from being hurt, or
j otherwise, until the cabin filled.
! . 11 is c f riain that Mrs. Ball escaped the explo
i sion. Is it certain that Mr. Ball did 1 *
\ rri Alr - Ball engaged a berth in the after cabin.—
Ihe probabiliy is that he got it, but this is far
i from cer tain. I he boat came with many passen
-1 fro £ ava nnah, which may have occasion
ed Mr. Ball to have hevn displaced and transfer
[f^. t ? rWar(l - 1 th,n *’ however, it is not probable,
•! he was so transferred, because by an arrange -
■ pf Ut . between the Agents at Savannah and ? at
| Charleston, they were entitled to let the berths
| >n alternate order, throughout the boat; and we
| know that some of the passengers, who came
trom Savannah had not the advantage of preoc
| lhe after cabin, and that some of the
i wc,e iot in, ° «b».
; B„; fhJ c t ’ r’-rr r baw * in ,ha > «■*„.
I “j ';'. " pO'Wbility that he was in the for
| the exnlnci' J the Srcatest danger, from
j the explosion. Nrs. Ball was clear from that
danger certainly, Mr. Ball only probably. Here
rr eX 6 ,. forto d ~" <’ L
Supposing that Mr. Ball was in the after cab.
■ in. Jhe prohabil ty is that he was not killed
v he explosion. The certainly is that Mrs
Ball was not. But the condition of that cabin*
as described by some of the witnesses, counted
with the fact that at least one man was not able
to escape from it, before it filled, renders th.
struction es Mr. Ball in that piece
visionary supposition. J dns a
Here was another chance for Mr Rall’o i
rr ,M ’ fromwhich
On the deck. We know that Mrs £5.1,
there, as yet uninjured by the explosion t t
ing of the cabins, and all proceeding d,',
from which many had already perished. Ta'
certain. Is it certain that Mr. Ball had h»h ***
escaped, and was the person who threw m ierto
into the boat 1 It may be that he was th/ C ° at
I think it hardly probable. I shoul/ / 3n ‘
thought that he was the man, if he had h ee ” ave
at any time near his wife, or had answered i/ een
heart rending calls. But it is more probahl/ ' er
some one else, in the hurry of the moment
I have mistaken Mr. Ball’s coal for his
: thrown it into the boat, than that an affect’
1 husband and brave man, as Mr. Ball is pro/T*
| have been, should have heard such anno 1 l ° *
were made to him, by his wife, and sho /f 38
j such a time as that, have failed in his j/. 81
! her. ' lo
We are sure that she was there. I th’ t
I was not probable that he was. Ifl *
| We have indubitable evidence that she h 1 I
: far escaped ; the same evidence, with a
j force which cannot be resisted, convinces a?
he must have already perished, or he would h*
been by her side. “ av *
Here arc circumstances, some of whi -h
i our nature shall be utterly changed ~a r, "
i , ,T ~ cannot welt
j deceive. Here is a combination of circumst/
ces, all tenumg to the same conclusion • an I 1
though some of them, by themselves are n * ’
forcible, yet when it is seen that they all h ‘
ize, the effect must be to beget bel J'
I have, from all these considerations f orm
the opinion, that, Mrs. Ball survived her 1
band.
It remains to consider the effect of thisf
upon the distribution of the property, under!/’
will, and by operation oflaw. * tfle
The legacies must be disposed of, as p rov j,j a
for in the contingency which has f
the testator’s death without leaving issue, s’ °l
as have lapsed must be distributed, (f or want of
residuary clause in the will) as intestate "prone *
ty between Mr. Ball’s wife, and mother; acc j, r j’
ing to the construction put upon the acts of 1791
and 1797, in the case of Trapp v. , n
M. C.ch. R. 403.) ‘ 0 *
The legacy to the adopted daughter, Emma
clearly lapsed, and is so distribuiabl ■.
The interest in the crops, as defined in the i
will, given to Alwyn Ball, in conjunction wi/ j
Elias O. Ball, does not lapse by the pre-decease
of Alwyn, but vested, (according to the caseo*
Percival v. Thomas, recently decided,) i n £[;„
O. Ball as survivor.
A question has been raised, though not arg u .
ed. whether the half of the crops, as defined in the
will, given to the wife, and in the event, which
has happened, of her dying before Nonas’ ma
jority, limited over to the brothers of the testator
until another event in the will described, is to be
considered lapsed, and intestate, after that time
The impression of the Court is, that it does not
lapse, hut that there is evidence of a strong inten.
tion on the face of the will, tha* this half should
follow the disposition made of the other half.
Another question was suggested, whether if it
should turn out, that the testator devoted anr
portion of the money acquired by him, in conse
quence of his marriage, in the purchase and im
provement of other property, specifically bequea
thed by him to his wife. (Vfcpshew and its plea
sure grounds, for instance,) the amount so expend
ed, should not be deducted Irom the amount to
which she would have been entitled as having
come to Mr. Ball through her. As the point was
not argued, I can only say, that I cannot call to ||
my mind any authority or principle, upon which
Mrs. Ball would not be entitled to the whole. *
It must be referred to the commissioner to lake
the recounts, and to report a proper mode ot ma
king a settlement upon Mrs, Taveao, of what she
may recover in this case, according to the prayer I
prepared in her answer.
In closing this judgment, I cannot sufficentk
testify my respect, lor the honorable dispositions
| manifested by all parties. An appeal to the law
was made, only because the minority of some of 1
them rendered a compromise difficult if, not im- 1
possible. It is not a case for costs. Let the
costs be paid out of the Estate before distribution,
and deducted from the amounts coming to the
parties rateablv.
J. JOHNSTON.
•The will of Mr. Ball bequeathes to Mrs. Ball
all the property he acquired by his marriage with I
her—Ed’s. Cour.
COMMERCIAL.
Latest dates from Liverpool, Dec. 25 JB
Latest dates from Havre Dec. h B
AUGUSTA MARKET.
Cotton. —The receipt of accounts from Liverpw I
to the 25th, has not affected oui market for thisx I
tic eat all—it still goes off freely at the prices * I
last w’eek. We now quote sto cents as tit 1
extremes of the market.
Freights —ln consequence of the rise in the f
river freights to Savannah are down to $1 per bale;
to Charleston, b}’ Rail Road, 4 cent for squire
bales and f for round.
From the Savannah Shipping and Commercial List\
February 7.
Cotton— Arrived since the 31st ult 15046 bale* |
Upland and 538 bales S I Cotton, and cleared at tti* I
same time 1029 bales Upland and 242 do S I Cot I
ton, leaving a stock on hand, inclusive of all c- I
ship-board not cleared on the 7th inst, of 32$ I
bales Upland and 1493 bales S I Cotton. The river 1
having risen, the the Upland this week ;
has been large, and being likely to continue so » r |
some time, holders have been willing sellers at a I
concession of 4 a in all qualities below good fab; §j
the scarcity of shipping and consequent huh rates 1
of freight, have exercised a depressing |
the value of the article. The sales co nprise of l|
bales, viz: 14 at
24 at 62; 15-: at 7; 41 at 7| ;72 at
72 at 7£ ;41 at
8; 112 at 8£ ; 618 at
203 at 8 9-16; 481 at 8f ; 567 at 8|; 1/2 at Sfi I
406 at 9; 129 at 9$ ; 121 at The business » 1
S Island amounts to 188 at former rates, vi*-' 1
4at 20; 16 at 21 ; 17 at 21 A ; 26 at 22; 6at 2»i ■
57 at 23 ; 15 at 234 ; 20 at 23j ; 27 at 24. ft
Receipts of Colton at the following places (
October Ist. 1839 1838
Georgia, February 7, 97591 I
South Carolina, January 31, 125986 102103 I
■Mobile, January 25, 49345 '
New Cleans, January 25, 405316 2155-J
Florida, January 11, • 8547 igj I
North Carolina, January 11, 3134 JJJ?
V irginia, December 4, 6000
6992 i 9 505571 I
The following is a statement of the stock 0 r
ton on hand at the respective places named-
Savannah, February 7, 33546
South Carolina, January 31, 19887
Mobile, January 25, 23305
New Orleans, January 25, 111394
Virginia, December 4, 1500
North Carolina, January 11, 1000 .
j Augusta & Hamburg, Jan. 1, 35000 ©
i Macon, February 1, 44477 % f
i Florida, February 11, 3250
j Philadelphia, January 25, 1350
New York, January 22, 14000 1
288709 |
Dice The demand for this article throughout
I week continued good at the full prices 0/ l»* l v
i The principal sales have been from a r * *
Flour Is dull, and we have no r |
to notice. Sales of Howard-street at 7* •
at $8 a Bi. . I
Corn —ls retailing from stoftjit 65 a 70c, a fCl
ing to quantity. v $ i
Groceries —ln Coffee, Sugar, and Molasses, > £
retail business doing. Sales at auction of ,
N O Sugar, a good article, at soj as|;
• O Molasses, at 30 a 3!c; 300 bags Cuba
i from store at 10 a llj.