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CHRONICLE AND SENTINEL.
AUGUSTA.
TUESDAY MORNING FEBRUARY 11.
d3* Our Ptlrooi in Wilke* will h»ve an op
portunity of paying their arrearage* to thin office,
to our Agent, Mr. Thomas G. Thompson, who
will be at the enimng Superior Court in Wilke*. |
The steamer Liverpool wa* to leave Liverpool
on the 20th Jan. She may be expected in about
a week. Her news will be twenty-five day a later.
__
The proceeds of the benefit for the wife and
children of the late Henry J.Finn, at the Tre
mont Theatre at Bolton, on Monday, the 271 h
ult. amounted to about $1,200.
An Augusta (Maine) paper, atatca that a man
named Jamea W. Wilde*, claims the merit of
Itaving cut the figure head from the frigate Con
atitution.
The British ship of war Cleopatra ha* captur
ed and aent into Jamaica, a Portuguese slaver,
with 289 Africans on board.
Paisas ivuu,—The Philadelphia U. S. (ia
xetle of Tuesday Inrt My*: “We are informed
that I hum as Dcsi.ip, Esq., President of the
Bank of the United States, yesterday made ar
rangements for an advance to the Slate of $870,.
000 on behalf of that institution ami such of the
other banks as might unite in it, amongst which
the Girard and Pennsylvania Banks have imme
diately agreed to participate to the extent of SIOO,-
000 each, h till provision is thus made for the
payment of all interest due on the public debt,
at home and abroad, ami a new proof furnished
of the sincere desire which is cherished by our
great State institution to uphold the best interest
of Pennsylvania, and to maintain bar faith un
tarnished.”
Correspondence of the Charleston Courier.
Wahhirutor, Feb. 3.
In the Senate, to-day, the debate on the report,
against the assumption of the State debts, wad
continued. It was expected that Mr. Tallmadge
would speak, and much interest was manifested
in hearing him—but he did not rise.
Mr. Clay, of Ala., took the floor, and, in a long
speech, argued that a distribution of revenue.
Whether from the lands or any other sources,
would be equialcnt to an assumption, and that an
assumption of the State debt*, in any form, would '
be an outrage on the Constitution, and, in every (
way inexpedient.
Mr. Crittenden spoke on the other side, and *
strenuously urged thu propriety of distributing, '
among the Siales, the proceeds of the sale of the i
public lands. He said ho was always in favor of
this measure, and was now the mole so inas
much as the Stales wore embarrassed, and needed
the money.
A number of memorial* were presented, pray
ing the imposition ol a moderate duly on im|H>rt
ed silk. There is reason to believe that this
measure will be generally called for, not only to
encourage the production of silk at home, but to
aid the revenue.
In the House, the printing committee was
chosen, vjva voce.,- and it consists of Messrs.
Black, of On Premia., of N. Y., Davis, of Inda.,
Kice Garland, of La., and Evans, of Me. The
first three voted for Blair & Rives as printer.,
but a majority of the Committee, will no doubt
be m tavor ol reducing the prices of printing.
I wo ballots were taken for Chaplain, but no
election was effected.
Much excitement seems to prevail, in the
Key-stone State, in relation to her bank* The
apprehension that the “Great Regulator," and it* '
tender, the "Girard,” will bo obliged to wind up, I
should a speedy resumption of specie payment* ]
bequired. is very general. It is reported, indeed,
dhat should the law, fixing so early a day as the
S6th of I eh., for a resumption, he passed, all the 1
banks in the State must surrender their charter*.
But, though the law referred to has passed the
Houae, by a large majority, it is very doubtful
whether it can pass the Senate, where the Van 1
Burcn prrty have a majority of only one. If fur- 1
ther appears, that Gov. Porter, and most of hi. ,
counsellors are somi-con»ervativ«, and will throw
their influence against the law.
Should it pass, it will create great agitation,
and will be likely to split the Denn cratic party in
and give that State to General
1
Washirotor, February 4.
Mr. 1 appan, the Senator from Ohio, and bro
ther of Arthur Tappan. of N. Y., has been ac
cused. not only formerly, but recently, of aboli
tionism. Actions speak louder than professions.
Mr. 1 appan has, this day, cleared his skirts from
the abominable thing, by a course more hold and
open than any other Senator or member from any
non-ilave-hohling Slate lias yet taken.
Mr. Tappan stated that ho had received a num
ber of abolition petitions, with the request that he
would present them. He said, he could not com
ply with the requent; and he begged leave to give
his reasons full for refusing to present them.
His “ reasons” he proceeded to give at length :
and to prevent all mistakes or misrepresentation,
Inc read them—they are such us the South ap
prove and have always contei.dcd for. When
he concluded, Mr. Preston rose and expressed his
satisfaction at the declarations of the Senator, and
Mid that no difference in political views should
prevent him from thanking the Senator, in the
name ol the South and of our common country
for the manly and firm stand he had taken on this
occasion. Mr. Calhoun, and several other South
ern Senators, came up Mr. Tappan’s scat, and
took him by the hand with much apparent fooling,
ihts incident is the more interesting inasmuch us
Mr. 1 appan is the immediate successor of a gen
tleman (Mr. Morris) whose wild and fanatical, if
not treasonable, course on this subject, is fresh in
the memory of all. The most extravagant and
incendiary abolition speech that I ever read or
heard, was one delivered by (his Senator Morris
last year— in reply, if I recollect aright, to Mr.
t lay. h was no ordinary declamation. The
man was in earnest, and well matured w hat he
•aid, I remember the remark of a distinguished
Benator—“ he is making a great speech.” The
Uhto Senator said he was going home to set a
light on every hill-to rally his people Ac But
it appears that his light has gone out, and that h*
himself has been consigned to n.eritd oblivion; mid
he t. succeeded by an individual of the same po
litical party, nominally, but of very different no
tiont on this subject.
The assumption of the State Debts was again
debated to-day. Mr. Phelps, of Vermont, spoke
against the report. I must say that, in common
with others. I was utterly disappointed in the
speech, considering the high reputation Mr. H
brought with him. Mr. Calhoun took the floor,
ami the subject was passed over to give him an
opportunity to speak to-morrow. The Senate
was engaged all day in electing a Chaplain, Mr,
Bates was chosen.
Wasrirotor, February ft.
Mr. Calhoun to day, made one ol his most
successful speeches in the Senate, on the report
against the assumption of the Slate debts.
In the House, there was a great number of pe
titions presented on private and local subjects.
Prom the Philadelphia Inquirer.
We arc indebted to the Merchants’ Exchangei
for the following extract of a highly important
important letter from Harrisburg. We also feel
j bound to state that the course of Governor Porter
i in this matter, meets with the cordial approbation
of the reasonable of all parties. The peopk
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 :
Haiiuisburo, Feb. Ist,. 1840, >
12 o’clock, noon. >
Governor Porter to-day sent a message respect
ing the State loan. The Pennsylvania Bank
took 100,000 dollars of it; and answers from all
the other Banks were received, declining to take
any portion of it. The Governor recommends
the issue of Slate stock for the payment of inter
est on loans, and suggests a lenient course of le
gislation towards the Banks. He says :"I feel
bound to say, regardless of any denunciations
from any quarter, that 1 believe if too rigorous a
system of measures be adopted to coerce the pay
ment of all the liabilities of the Banks immediate
lo, the credit of the Slate must and will be se
riously and disastrously affected. Let an assur
ance be given to the public, that at a certain and
fixed day, within a reasonable time, such re
sumption will lake place, and that it will then be
permanent.”
Correspond net of the National Intelligencer.
New York, Feb. 3.
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
tween the English and the Chinese have become
so serious that the British residents have been
obliged to leave Macao, and take refuge on board
the ships of war, us wo have before heard, via
Singapore. The British trade with China was
totally sus|icndcd, 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
good deal of bad feeling between the Chinese
and the English, ami some skirmishes had taken
place. It was reported that several Chinese were
killed, and among them a Mandarin of rank.
('apt. Smith, commanding the British squad
ron, issued an order declaring a blockade of the
port of Canton, but afterwards revoked it. The
American trade continued without molestation,
and several vessels were employed under high '
rates of freight in taking British manufactures to
Canton. The remonstrance of (ho American
merchants respecting the blockade was the cause
of its revocation; but when the East India
squadron arrives, us constantly expected, it is not
at all improbable that the blockade will be re
newed.
The nows from Pennsylvania respecting the
banks and the Governor and Legislature is cre
ating something of a sensation in Wall street. —
New York, though a silent, is an intent lookor-on.
The dishonor of the great Key-stone State in
not paying the interest ($700,000) due on a part
of its debt on -Saturday last is a melancholy com
mentary upon the times. A delinquent State
making delinquency a penalty is a novelty in
American history !
The slock market is flat to-day. Prices are
all down very much. The course of Pennsyl
vania is very dispiriting, and the news from Eu
rope has not been favorable to speculation. Ex
change on England is 108 to 1084 ; on France,
6,30 to 5,274. Hut few billsJarc offering on
England.
The Mails East arc 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.
Correspondence of the Philadelphia N. American.
New York, Feb. 3, P. M.
There is rather more doing in Cotton to-day
at shady prices. A cargo of Southern Corn sold
at 62 cts. 5611-8.; Floi-.r firm, but dull. Stocks
just about as on Saturday ; United Stale* Bank
sold at 74.
Domestic Exchanges. —Philadelphia bill*, 6 ;
Richmond 7 ; Charleston 24 ; Savannah 8a 9 ;
Augusta 9a 111; Macon 9 a 10; Mobile 7a7J ;
New Orleans 34 a 4.
A remarkable case of dropsy occurred on the
person of Ann Stiles, of Windsor, Conn., aged
49, who has recently died. Thu disease com
menced in 1830. and since that time she hug had
seventy operations of water drawn from hen
weighing 3115 pounds, nearly 124 barrels.
Moke Suspensions.—A great many of our
subscribers have “ suspended" payment —at least
to the Printer. Some of them have gone to
Texas “to look for land.” Wehope they willbe
“ suspended” so they can take a good “ high”
look at the “ surrounding country”—that is to
say, wc hope they may have “ more elevated
views" th m e>er they had in this country—or, iu
other words, wo would be pleased to hear that
they have In-on " exalted” according to their de
serts—in which ease, d—n them, they will lie
“ haltered for the better.” —H illy Springs Re
publican.
The ArmcAx*.—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, wc are requested to say
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 Mint.—The branch mint in the city o*
New Orleans, has since it commenced its opera
lions last December, coined :
160.000 half dimes,
18,000 half dollars,
130.000 dimes,
9 396 quarter eagles.
Making in all, 317,396 pieces,
Ul kk run Rheumatism.—We see the follow
ing recommended for the euro of this annoying
complaint: “Spread raw cotton, about one quarter
ol an inch thick, on a piece of flannel, sufficiently
large to cover the part affected. CJuilt the cotton
to the flannel. *o a* to cause it to remain spread,
it When applied it will produce relief in a very
rt short time.”
From Ihe New Orleans Bulletin.
Separation of the Florida*.
A proposition is now before the Senate ot the
United States for the division of Florida into two
States. Many reasons are urged for carrying this
•t measure into effect. The Territory is amply large
:i enough to form two Stales. At present its boun
r, daries are more extensive than any single State in
n the Union. Hast Florida alone, it is estimated,
contains as many arres as the whole of Pennsyl
»t vania. The scope of the district west of thcSu
e wannee is equal to the united territory of Massa
* chusetts and Connecticut. There ran be no diffi
n cully, 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
1* population of West Florida is much the most
numerous—the settlements are more compact,
* an the facilities are ranch greater for carrying on
e an organized gnverment.—The Eastern province
s is sprinkled with a few settlements, scattered far i
‘ and wide over a large territory. The country is
" now the theatre of savage war, and promises to lie
* ‘the dark and bloody ground’ of the South for some
* limetocome. The innabitants, far these reasons,
1 do not feel able or willing to maintain an inde
' pendent State government, and prefer ramaining
' a while longer under the shelter of the Executive
■ arm. There are natural boundaries to the prov
‘ inces which indicate thei they should be keptsep
-1 urate and distinct. It may be difficult to suggest
‘ the reasons which induced our general govern
* ment to blend them in to one. Under Old Spain,
our impression is, they were separate colonies, un
der sepaiato 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 lie expected. The Northern States are jeal
ous, and would dislike to sec the power of the
Bouth 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 die*
tales 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 be expected,
will soon follow. To keep up the balance of pow
er in the confederacy, it would be 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 tiik Court or Chancery.
January Tkrm, 1840.
Perris Pell. el. ul. vs. E. O. Ball, et. nl.
Joi'nston, 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 letter opportunities than the hurry of
term time admits of for assigning the reasons of
its decision.
'Flic 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 if 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 can 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, bn applied to a
case where the persons, upon whom the right
depends, may have 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.
Yet 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.
. This would reduce them, within what, in the ar
gument, has been called the conjectural class.—
> There arc other conceivable cases—not only con
ceivable, but which, indeed, not unfrcquently oc
cur, where, although the nature of the calamity,
is inferred with a high degree of probability, yet
( the priority of death among the victims is conjec
tural : us 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.
There are other cases, still, where the nature of
j the calamity is well known, where, indeed the
catastrophe has happened within the view of ma-
Jny witnesses—where the survive ship must be
left to conjecture; as where the victims were in
closed within n 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 dc
r cision. The cases have gone oil’ on compromise,
- or were decided upon a rule adapted to the ques
tion before the Court, and not the question of
s right as transmuted by survivorship. Thus, in
- Rex. v. Dr. Hay, (I W. Black, Rep. 640,) where
l General Stanwix, with his wife and a daughter,
I. by a former marriage, sailed from Dublin for En
j 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 ol kin, or the maternal uncle of the
daughter who had perished I For the maternal
uncle it was contended, that, in analogy to the
civil law. it should be presumed that 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
tion. and decreed in favor of the next of kin of
the father. So in Taylor v. Diploek, (3 Phillim:
, Eccles; Rep. 259,) where a husband
[ appointed his wife Executrix and residuary Leg
atee, and both were subsequently shipwrecked to
i gether. and drowned, and the contest was between
the next of kin of the huaband, and the next of
km of the wife. Toe evidence leu it doubtful,
which of the parlies survived, upon which the
judge granted administration to the next of kin
of the husband; remarking: “ I am not deciding
that the husband survived the wife.” There are
some 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. 80, also, in Wright v.
•Sarmuda (3 Phillim. 266, [note] S. C. 1 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 judgment was given on the real question be
fore the Court, which was, whether a will, made
by Netherwood, 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
i 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,
Leet. 37,) 11 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
ol 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 Ihe parties, their age, stiength,
health and habits, which w.ll in some degree at
least rescue the decision from the imputation of
rash conjecture, and placc.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 be those
which are essential to the judicial institution it
self, and lo 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 info 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 ol'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 ofthe fact; (here is the secondary proof,)
and in defaultnf 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
scries 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 ran extract any thing, lo solve
the important question, to which it has given
rise.
The Pulaski, according to the testimony, left
Savannah on Wednesday the 13th of June, 1838,
with many passengers, and arrived at Charleston
that evening. The next morning, Mr. and Mrs.
Ball, their adopted daughter Emma, and servant,
having gone on board at Charleston, she departed
for the North, and pursuer! her course, until
about 11 o’clock of that night; when, most ofthe
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
per deck, (called the hurricane deck, in contradis
tinction lo 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, Caps. Dubois, was sleeping at the time.
The gentlemen’s forward cabin was much tern; its
floor ripped up, and its bulk head driven in; and
Major Twiggs, whose berth was there, gives us
reason to suppose, that many perished in that part
of Ihe vessel by the explosion. The gentlemen’s
after cabin (which was under the main deck, and
immediately 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
deck, more or less shattered. The vessel was
careened to the larboard, and ns she dipped, began
instantly to fill with water. In a very short time
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
the centre, where the breach was, and all hope
that she could hold together was abandoned. She
parted amidships, and the forward and after parts
pitched into the water, towards the centre, at an
angle of nearly thirty degrees. The gentlemen’s
after cabin was now entirely filled, and the for
ward cabin was certainly in as bad a condition.
There were some persons on the forward part of
the vessel, nearly :.ll of whom speedily perished;
but the greater portion were in the after part, in
cluding one or two who had passed, by swim
ming from the forward to tl e after part. Os those
on the after part, as many as could climbed tothe
promenade deck, but there were many, mostly la
dies.among whom was Mrs. Ball, who remained
on the main deck. These, ns that deck sank
deeper and deeper, retreated along the gang-ways
by the ladies’ cabin, towards the stern. The
i, ; promenade deck, t>> the action of the waves, wt» '
e burst from the top of the boat, and was submer
n ged, with all that were on it. Whether the stern
S of the boat was submerged at or after this time is
e uncertain. Horne of the witnesses think it was
t, submerged even before the promenade deck, oth
>■ ers that it was not s ibmerged at all. All these
J events had taken place, according to most of the
y witnesses, in about from forty to fifty minutes, ac
k 1 cording to others, in less time.
'f | Some few escaped in boats, others on parts of
d 1 the wreck, and others on rafts constructed by
e ; them os they could, amid the horrors of the im
a pending destruction.
’• Os Mrs. Ball nothing is known after the aub
i. merging of the promenade deck, nor for some time
I before. Before that event, her cries were heard
e 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
f cording to one witness who knew her, she came
• out of the Ladies’ cabin, and began to call upon
t her husband. The scene was one of terror, as
- may be supposed, but although a crowd was in
> stuntly gathered, at that part of the vessel, there
I was not much noise. The surrounding horrors
seem to have subdued the sull'ercrs, and in mute
• astonishment they contemplated the fate, which
• awaited them. Even the wheels had stopped.
1 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
I 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.
I Ball was heard abovt all others, calling upon her
i husband. She ran forward to the chasm, caused
by the explosion; retraced her steps; and contin
■ ucd 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 hitler despair and anx
ious enquiry ; and, acsording to all, it was lifted
in shrill tones, carrying an irresistable appeal to
> all hearts,
Mr. Ball was neither seen nor heard. Mrs.
Dali 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. Ho 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 wiitten
! 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
wiihout mutuality, the burden is on the plaintiffs,
who claim through 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 arc to prove the fact
of survivorship, it does not follow that they are
' to prove it to demonstration. All reasonable in
-1 ferenccs will be drawn from the best evidence,
suggested by the case; and although at last wo
may be far from arriving at any thing like cer
tainty, although, indeed, there may remain much
1 obscuriiy and doubt, yet if we have evidence on
' ly sufficient to lead us out of the regions of con
■ jecture, we must follow it.
1 I shall not, (because it is unnecessary) resort
1 to the bare fact, that Mrs. Ball was the last per
son seen, or determine whethei that alone is not
' sufficient to raise a presumption, in analogy to
1 the doctrine which prevails in cases of absence.
r I incline, however, very strongly, to the opinion,
1 that where the evidence has traced the parties
1 into a common danger, which proved fatal to
1 both, the last one seen or heard, with the opera
■ ( tion of the cause of death, must be ailjudged the
■ shi vivor, 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
9 death has occurred stands in the of place of time;
E which is employed only as that the parlies have
1 died. When they died relatively may be judged
of in this case, as in that, by considering which
I was last, known to be alive.
> I prefer, however, to put the case upon the
II ground of probability, arising from the evidence;
'• upon a belief engendered by a combination of the
' circumstances; and upon the superiority of pos-
J live proof, over conjecture or over probability.
1 It will be remembered that the explosion pro
c duced its most fatal effects in the gentlemen’s for
- ward cabin, and that that was the first part of the
• vessel which submerged. That the alter cabin
‘ was also much injured. That from the forward
■ ; cabin many persons never escaped. From the
? ; after cabin, so far as we know from the evidence,
r all did escape except Judge Cameron, an infirm
‘ old man. But from the description given of its
condition, it is possible that some others may
■ : have been detained, eithi r from being hurt, or
1 | otherwise until the cabin filled.
l> i It is certain that Mrs. Ball escaped the explo
'■ sion. Is it certain that Mr. Ball did 1
I Mr. Bali engaged a berth in the after cabin.—
J The probahiliy is that he got it, but this is far
8 from certain. The boat came with many passen
t gers from Savannah, which may have occasion
-8 cd Mr. Ball to have beon displaced and transfer*
II red forward. I think, however, it is not probable,
' that he was so transferred, because by an arrange
-11 raont between the Agonls at Savannah and at
Charleston, they were entitled to let the berths
in alternate order, throughout the boat; and wc
8 know that some of the passengers, who came
11 from Savannah, had not the advantage of preoc
e copying the after cabin, and that some of the
• | Charleston passengers were let into that cabin.
e i Mr. Ball, therefore, was probably in that cabin.
5 j But there is a po-sibility that he was in the for
l> i ward cabin, and if so, in the greatest danger, from
f the explosion. Nrs. Ball was clear from that
! danger certainly, Mr. Ball only probably. Here
1 was one chance for hit destruction, from which
8 she was exempt.
Supposing that Mr. Ball was in the after cab
,! in. Ihe probabil. ty is that he was not killed
by the explosion. ‘The certainty is that Mrs.
Ball was not. But the condition of that cabin,
as described by some of the witnesses, coupled
with the fact that at least one man was not able
to escape from it. before it filled, rcndciv the de
struction es Mr. Ball in that place by no means a
| visionary supposition.
Here was another chance for Mr. Ball’s de- i
' struction, from which his wife was cerlainlu
free. y i
(
I
On the deck. We Avion,- that Mrs. B ttll
there, as yet uninjured by the exufesion thefu* i
ing of the cabins, and all preceeding danj.
from which many had already perished. 77 ' -
certain. Is it certain that Mr. Ball hud hith 1 * 1 *
escaped, and was the person who tluew the °
into the boat? It may he that he was th e ? Uat
I think it hardly probable. I should hav’ J
thought that he was the man, if he had been so C
at any time near his wife, or had answered to -
heart rending calls. But it is more probable tl ”
some one else, in the hurry of the moment,',, 81 I
have mistaken Mr. Ball’s coat for his own'."' ’
thrown it into the boat, than that an affection,, 1
husband and brave man, as Mr. Ball is proved?
have been, should have heard such appeal,
were made to him, by his wife, and should ?
I such a time as that, have failed in his dim- f
\ her. * w |
We are sure that she was there. I thint ,
was not probable that he was.
We have indubitable evidence that she had so
far escaped ; the same evidence, with a moral pi
force which cannot be resisted, convinces us thl,
he must have already perished, or he would hav. ~|l
been by her side.
Here are circumstances, some of which, um ?
our nature shall be utterly changed, cannot well I
deceive. Here is a combination of circumstan. '
ces, all 'tenuing to the same conclusion; and al- |p
though some of them, by themselves, arc not v trv I
forcible, yet when it is seen that they all harmnii. *
izc, the effect must be to beget bel e’.
I have, from all these considerations, formed
the opinion, that, Mrs. Ball survived her h Us .
band.
It remains to consider the effect of this fact,
upon the distribution of the property, under the
will, and by operation of law.
i he legacies must be disposed of, as provided
for in the contingency which has happened, o|
the testator’s death without leaving issue. Sud,
as have lapsed must be distributed, (for want of a
residuary clause in the will) as intestate proper- k
ty between Mr. Ball’s wife, and mother; accord. I ”
ing to the construction put upon the acts of 1791 I-,
and 1797. in the case of Trapp v. Billinas !« I
M. C. ch. R. 403.) '■* J
The legacy to the adopted daughter, Emm«, f
clearly lapsed, and is so distributabl -.
The interest in the crops, as defined in the
wijl, given to Alwyn Ball, in conjunction with
Elias O. Ball, does not lapse by the pre-deceasc
of Alwyn, but vested, (according to the case of
Pcrcival v. Thomas, recently decided,} in Eiiv.
O. Ball as survivor.
A question has been raised, though not argu
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 Nonets’ ma
jority, limited over to the brothers ofihe tcatator
until another event in the will described, is to he
considered lapsed, and intestate, after that lime.
The impression of the «lourt is, that it does not
lapse, hut that there is evidence of a strong inten
tion on the face of the will, lha- this half should
follow the disposition made of the other half.
Another question was suggested, whether if ft
should turn out, that the testator devoted any
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, (Mepshew and its plea,
sure grounds, for instance,) the amount so expend
ed, should not bo 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 he entitled to the whole.
It must be referred to the commissioner to take
the recounts, and to report a proper mode of ma
king a settlement upon Mrs, Taveao.ofwhat she
may recover in this case, according to the prayer
prepared in her answer.
In closing this judgment, I cannot sufliccntly
testify my respect, for the honorable dispositions
manifested by all parties. An appeal to the law
was made, only because the minority of some of
them rendered a compromise difficult if, not im- >■
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 raleably.
J. JOHNSTON.
•The will of Mr. Ball bequeathes to Mrs. Ball
all the property he acquiree by his marriage with
her—Ed’s. Cour. j
COMMERCIAL.
Latest dates from Liverpool, Dec. 25
Latest dales from Havre ..Dec. 19
AUGUSTA MARKET~
Cotton. —The receipt of accounts from Liverpool
to the 25tU, has not affected oui market for this ar- w
tic eat all—it still goes off’freely at the prices of '®f
last week. Wc now quote 5 to 8} cents as the
extremes of the market.
Freights —ln consequence of the rise in the
river freights to Savannah are down to $1 perbale;
to Charleston, by Rail Road, J cent for square !
bales and J for round.
From the Savannah Shipping and Commercial List,
February 7.
Cotton —Arrived since the 31st ult 15046 bales
Upland and 538 bales S I Cotton, and cleared at the
same time 1029 bales Upland and 24 i do 8 I Cot
ton, leaving a stock on hand, inclusive of all on
ship-board not cleared on the 7th inst, of 32053
bales Upland and 1493 bales S I Cotton. The river
having risen, the supply of the Upland this week
has been large, and being likely to continue so for
some time, holders have been willing sellers at a
concession of } a }c in all qualities below good fair;
the scarcity of shipping and consequent high rates
of freight, have exercised a dc pressing influence on
the value of the article. The sales co uprise 5956
bales, viz :14at5};21at6;37at 6} ;17at 6} : :
24 at 6} ; 152 at7; 41 at 7} ; 72at7+; 41 at7|;
72 at 7} ;41at 7} ; 151 at 7 } , 32 at 71; 876 at
8; 112 at 8}; 618 at 8$; 221 at 8» ; 1412 at 8i;
203 at 8 9-16; 481 at 8}; 567 at SJ 5 112 at Sj ; ?r|
406 at 9; 129 at 9}; 121 at 9} The business in
S Island amounts to 188 bags, at former rates, viz; j*l
4at2o; 16 at 21 ;17 at 21}; 26 at 22; 6at 22} i U|
57 at 23 ; 15 at 23} ; 20 at 23} ; 27 at 24. f*
Receipts of Cotton at the following places since T
October Ist. 1839 1838
Georgia, February 7, 97891 119486
South Carolina, January 31, 12595 G 102103
Mobile, January 25, 49345 .13192 s
New Orleans, January 25, 408316 215826
Florida, January 11, 8547 IBSOO
North Carolina, January 11, 3131 3168
Virginia, December 4, 6000 4250
699219 505571 €
The following is a statement of the stock ofcot-f
ton on hand at the respective places named.
Savannah, February 7, 33546 25041
South Carolina, January 31, 19887 2759.)
Mobile, January 25, 23305 69602 -vi.
New Orleans, January 25, H 1394 85732
Virginia, Dcccmbsi 4, 1500 1500
North Carolina,,January 11, 1000 1500
Augusta & Hamburg, Jan. 1, 35000 28945
Macon, February I, 44477 16500
Florida, February 11, 3250 6100
Philadelphia, January 25, 1350 2600
New York, January 22, 14000 22000
288709 287115
Rice —The demand for this article throughout the
week continued good at the full prices of last week.
The principal sales have been from s2j a $3.
Flour —ls dull, and we have no change in price a
to notice. Sales of Howard-street at $7 ; Canal
at $8 a Bj.
Corn —Is retailing from store at 65 a 70c, accord- F|
ing to quantity.
Groceries —ln Coffee, Sugar, and Molasses, a fair
retail business doing. Sales at auction of 50 hhds
N 0 Sugar, a good article, at ss} a 5j ; 150 bbls N
O Molasses, at 30 a 31c ; 300 bags Cuba Coffee,
from store at 10 a 11}.