Volume 10 — South Carolina Reports

Before MACKEY, J., at Laurens, September, 1877. This was an action in the name of the State of South Carolina against George P. Moseley, Sheriff, and the sureties on his official bond. The case is fully stated in the opinion of the Court. I. The Sheriff is exclusively an executive officer of the Court, without either administrative or judicial functions or duties.

Before KERSHAW, J., at Richland, August, 1877. This was an action by Rufus N. Lowrance, William B. Lowrance and Joseph R. Black against Thomas J. Robertson, executor of John Caldwell, deceased. The case will be fully understood from the report of the Referee, the exceptions thereto and the judgment of the Circuit Judge. The report of the Referee is as follows: The complaint alleges: 1.

Before TOWNSEND, J., at DarlingtoN, October, 1875. This case came before the Court upon the report of the presiding Judge, which is as follows: “At the October Term, 1875, of the Court of General Sessions for Darlington County, Samuel J. Blackwell was indicted for retailing spirituous liquors without a license.

BEFORE COOKE, J., AT PlCKENS, March, 1876. This was an action by R. Press Smith against John C. Mallone and W. N. Craig, Sheriff. The case is as follows: On November 1st, 1873, the plaintiff executed and delivered to the defendant, Mallone, a mortgage of real and personal property to secure the payment of $20,000.

Before CARPENTER, J., at Rici-ilahd, Deoember, 1876. These were petitions by N. A. Bull and several others for writs of mandamus to' compel the County Treasurer of Orangeburg County to receive bills of the Bank of the State of South Carolina in payment of their taxes.

<p>A devise to A for life of all testator’s real estate, the same to be “sold and equally divided — one-half to ” A, “ to dispose of as she pleases at her death,” with remainder over as to the other half: Held, That the power “ to dispose of as she pleases at her death ” could be executed by deed.</p> <p>where the instrument by which a power is claimed to have been executed is the proper one and the question is whether the power was in fact executed by the terms therein used, such question is one of intention merely; and if that appears from recitals or a description of the property or otherwise, the power is well executed.</p> <p>Testator devised to his wife L. all his real estate during her natural life, and directed that at his wife’s death all his land should be “ sold and equally divided — one-half to my wife L., to dispose of as she pleases at her death,” and the other half to others: Held, That the power “to dispose of as she pleases at her death” was well executed by a marriage settlement, wherein L. recited that she was possessed of considerable property, both real and personal, to wit, a tract of land, &e., which she became possessed of by virtue of the last will and testament of her late husband, being thereby entitled to a life estate in the whole land and to an absolute estate in one-half,” and then conveyed her whole estate of land and slaves to 0, in trust for the use and benefit of herself and her intended husband, “and at her death the tract of land, as far as she may have any legal interest, to be divested of all trust and vested in fee simple in the said B., her intended husband, or his legal representatives, should he die before her.”</p> <p>Where the power is to dispose of the proceeds of a sale of land, it may be executed by disposing of the land itself.</p>

Before REED, J., at Charleston February Term, 1877. Held: where by his will the estate in unrestricted terms was given to the wife to convert it into a life interest, unless such disposing intention in their favor is manifest from the words employed.” The requisitions, under these circumstances, are that the provision shall be expressed in words that are imperative “that the subjects should…

Before COOKE, J., at PiCKENS, August, 1877. These were two actions, one by John S. Walker against' W. Walker Russell and the other by Eleanor J. Walker against same defendant. The case is sufficiently stated in the opinion of the Court.

Before CARPENTER, J., at RichlaNd, May, 1877. Action by William H. Stack against the Charlotte, Columbia and Augusta Railroad Company to recover damages for an alleged breach of a contract made the 29th of January, 1870, between the plaintiff, party of the first part, and defendant, party of the second part, a copy of which is as follows: “That the party of the first part, for the consideration herein mentioned, covenants and agrees that he will, at his own charge and cost,…

Before REED, J., at Orangeburg, May, 1876. Action by Thomas H. Zimmerman against A. Perry Amaker and others, to recover damages for waste alleged to have been committed by the defendants as tenants of the plaintiff and to restrain them from the further commission of waste. The case is stated in the opinion of the Court. The defendants appealed. The Court below erred in granting the plaintiff’s motion. 1.

Before COOKE, J., at OcoNee, February, 1876. Action by M. Jane Roberts, wife of John Roberts, as adminis-tratrix of John B. Johns, deceased, and Lila Johns, by guardian ad litem, against James A. Johns as administrator of James Johns, deceased, and Samuel H. Johns. The complaint alleged and prayed: 1.

Before COOKE, J., at Orangeburg, October, 1875. Action by Thomas E. Rickenbacker, administrator of Louis H. Zimmerman, deceased, and Anna A. Zimmerman, against Ida Zimmerman, Ella Zimmerman and Cornelia Zimmerman. The case will be sufficiently understood from the judgment of the Circuit Court and the opinion of this Court.

Before REED, J., at Charleston, March Term, 1876. Action by D. A. J. Sullivan against William Byrne.

<p>Before NORTHROP, J., at Spartanburg, March, 1877.</p> <p>Action by L. Briggs against J. Winsmith.</p> <p>The ease is as follows:</p> <p>On the 1st of January, 1871, defendant gave to one John Pratt his sealed not for $1,701.25, payable twelve months after date, “with interest from date at the rate of twelve per cent, per annum.” On the 8th of March, 1871, Pratt assigned the note to J. F. & J. B. Cleveland, who afterwards assigned it to the plaintiff. Sevéral credits were endorsed upon the note — one of 29th January, 1872, for $204.15; another of 10th March, 1873, for “the interest to the 1st of January, 1873,” and a third, of 31st January, 1874, for $200.</p> <p>The case was upon Calendar No. 1, for trial by a jury, but by consent the issues of fact were submitted to the Court.</p> <p>The plaintiff proved the execution of the note and admitted the credits. The defendant offered no testimony.</p> <p>The Court gave judgment as follows:</p> <p>This action having been brought to trial by the Court, a trial by jury having been duly waived and a decision thereon rendered for the plaintiff, it is now, on motion of Elford, counsel for plaintiff, adjudged that the plaintiff recover of the defendant, J. Winsmith, twenty-three hundred and seventy-one dollars and sixty-four cents, with interest at twelve per cent, per annum, and costs.</p> <p>The defendant excepted, and appealed on the ground that His Honor the presiding Judge erred:</p> <p>1. In refusing a continuance and forcing the defendant to trial.</p> <p>2. In allowing interest on said note at the rate of twelve per cent, per annum after its maturity.</p> <p>3. In allowing any other interest except at the rate of seven per cent, per annum.</p> <p>4. Because His Honor made no findings of either law or fact.</p>

Before WIGGIN, J., at Beaufort, December, 1877. Action by Randal Wyman and his wife, Amy Wyman, against Josephine A. Hoover and her husband, George H. Hoover. The case is as follows: Judgment by default was entered in this case by plaintiff, and the defendant, Josephine, now moved His Honor the Circuit Judge, after due notice of the motion, for a rule to show cause why the judgment should not be set aside, on the ground that no summons had been served upon her.

Before HUDSON, J., at Chester, March Term, 1878. Action by W. Lyle Roddy against Thomas Purdy for the recovery of real estate. The case is as follows: The plaintiff claimed the land in dispute under a tax title from the Auditor of Chester County to him, bearing date May 18th, 1874, on which day it was sold by the County Treasurer and bid off by the plaiutiff. The sale was for delinquent taxes of the fiscal year commencing November 1st, 1873.

<p>Where the charter of a municipal corporation clicl not in express terms confer upon it a corporate name, and, although a name was given to the town itself, all the authority and powers of the corporation were conferred upon the Town Council: Held, That an action against the Intendant and Wardens of the Town Council of, &c., was properly brought.</p> <p>A bond given by a municipal corporation for a debt incurred by it in executing a contract which the corporation had authority by its charter to make is valid and binding.</p> <p>The Act of 1871 in relation to the town, of Yorkville did not create a new corporation and substitute it in the place,of the old corporation created by the Act of 1849, but such Act was a mere amendment of the Act of 1849, the corporation remaining liable for debts contracted by it before the Act of 1871 was passed.</p> <p>A bond given by a municipal corporation, under its corporate seal, subscribed by the Intendant of the town, and countersigned by the Clerk and Treasurer of the Council: Held to be in the usual and proper form, and to be binding upon the corporation.</p> <p>A plea of the Statute of Limitations is,inapplicable to an action upon a bond given in June, 1861, by a municipal corporation.</p> <p>A bond given by a municipal corporation for work done in macadamizing the streets of the oorpopation: Held to be valid and binding, and that the consideration might be proved by evidence aliunde.</p> <p>Where a municipal corporation has authority under its charter to issue bonds to a certain amount, a bond given by it within the limited amount is at least prima facie valid; and if the corporation had previously exhausted its authority by issuing other bonds to the full extent of its power, the onus of showing the fact is upon the corporation.</p> <p>A proviso to an Act authorizing a municipal corporation to issue bonds to a certain amount, that the private property of the citizens should not be liable for the payment of the bonds except by a regular and uniform taxation, was simply intended to protect the private property of the corporators from liability for the payment of the bonds, and not to preclude the holders thereof from obtaining judgment against the corporation.</p> <p>A clause in the charter of a municipal corporation, granted in 1819, giving the corporation the same powers over the streets and roads of the town as those vested in the then Commissioners of Roads, did not prevent the corporation from issuing its bond for a debt contracted by it in improving the streets of the town.</p>

Before KERSHAW, J., at Chester, October TerM, 1877. Action by the Cheraw and Chester Railroad Company against R. I. White to recover a sum of money alleged to have been subscribed by the defendant to the capital stock of the company.

<p>A joint action upon a joint and several bond, given by two obligors, may be maintained against the surviving obligor and the executors of the deceased obligor. Where the nature of the case so demands, separate judgments may be entered against several defendants; as, for instance, where the action is against a surviving obligor and the executors of a deceased obligor, and the verdict is a general one for so much money, separate judgments may be entered against the defendants.</p> <p>The personal goods and effects of a decedent vest in his personal representative from the moment of his death, and he, whether he be executor or administrator, is the proper and only party to sue for and collect the choses in action of the estate, and it makes no difference that he has an interest in the chose sued on by assignment from a legatee.</p> <p>Where the owner of slaves conveyed them to another, reserving a life estate, the relation thereby created between him and the other was not that arising from bailment, but he simply remained owner of a life estate in the slaves, with power to sell and dispose of such estate as he pleased.</p> <p>Where one having a life estate in slaves transfers such estate to another, the contract between them is one of sale and not of letting to hire.</p> <p>A covenant to protect vendoo of the covenantor in the possession of the slaves purchased during his natural life was not broken by the emancipation of the slaves before his death.</p> <p>Where matter is alleged in an answer which might have been, but was not, sot up as a counter claim, and there is no prayer for judgment thereon, it must for all the purposes of pleading be taken as a mere defense and not as a counter claim.</p> <p>Implied warranty of soundness is not excluded by an express warranty of title.</p> <p>Where in an action for the purchase money of a chattel the defense is unsoundness, if defendant has not returned or offered to return the chattel, he must pay what it was worth.</p> <p>A receipt for a smaller sum than that apparently due, expressed to be in full, must be taken as true until the contrary is proved.</p>

Before NORTHROP, J., at Anderson, September Term, 1877. This was an indictment against William B. Strickland and two others. William B. Strickland was found guilty on the second count. He moved in arrest of judgment, and, the motion having been refused, he appealed to this Court. The opinion of the Court contains everything that is necessary to a full understanding of the ease.

Before KERSHAW, J., at York, September Term, 1877. Action by Samuel W. Jackson against J. C. Patrick. The case will be sufficiently understood from the'decree of the Circuit Court and the opinion of this Court. The decree of His Honor the Circuit Judge is as follows : Kershaw, J. This action was brought on to be heard at the September Term of the Court of Common Pleas for York County, 1877.

<p>Where an executor makes advances to legatees in unequal proportions, he has the right, after equalizing the payments so as to put all the legatees upon an equal footing, to reimburse himself for such advances out of any surplus of assets that may be in his hands; and if he should die before reimbursing himself, his executor, who, by qualifying as such, has become executor of the first testator, also may make the reimbursement after having equalized the payments.</p> <p>The proper mode for the distribution and settlement of the residue of an estate, where there had been payments or advances to some of the legatees in unequal proportions and others had released their interest or made assignments thereof to the executor, prescribed.</p> <p>The executor of asolé executor is the representative not only of his own immediate testator but also of the first testator, and may retain, for the benefit of the estate of the second testator, out of anyfunds of the first testator that may be in his hand, an amount sufficient to satisfy a claim held by the second estate against the first.</p> <p>An executor who died in 1863, and who had neglected to make annual returns, held not-to be entitled to commissions.</p>

Before COOKE, J., at Charleston, December, 1877. Action by Jeremiah J. C. Cleveland and Florence Cleveland, his wife, assignees of F. E. McKenzie, against Charles H. Cohrs, to foreclose a mortgage of real estate given by him to Francis E. McKenzie to secure the payment of a bond for $2,500. The facts upon which' the decision turned sufficiently appear from the' opinion of the Court.

Before COOKE, J., at CharlestoN, November Term, 1877. This was an action by Theodore G. Barker against William B. Smith for foreclosure of a mortgage. The case upon which the appeal was heard is as follows: The complaint is filed for the foreclosure of a mortgage given by the defendant to the plaintiff to secure a bond, a part of the purchase money.of a lot of land in the city of Charleston.

Before KERSHAW, J., at Chester, October, 1877. Action by William H. Rosborough against Samuel McAliley and John L. Harris to recover the amount of a sealed note. The case is fully stated in the decree of His Honor the Circuit Judge, which is as follows : Kershaw, J. This action was brought on to be heard at Chester, at the October Term, 1877, upon a question of law made by the pleadings.

<p>Befoee NORTHROP, J., at UNION, February, 1877.</p> <p>Action by Alexander E. Susong against William H. Vaiden, and Margaret E. Bishop as administratrix of L. Gordon Bishop, deceased.</p> <p>The judgment was for the plaintiff, and the defendant, Margaret E. Bishop, appealed.</p> <p>The case is fully stated in the opinion of the Court.</p> <p>The action is upon a joint promissory note made by W. H. Vai-den and L. Gordon Bishop, payable to the plaintiff. The note was given for a debt due by Vaiden alone to the plaintiff, and Bishop was a surety only. Bishop, the surety, dying, leaving Vaidén, the principal, surviving, the action is brought against Vaiden and the administratrix of Bishop. Vaiden is insolvent.</p> <p>The only point in this case is whether the estate of Bishop, the surety, is discharged from the payment of the debt. The note being joint only, the plaintiff cannot recover thereon against Bishop’s ad-ministratrix.</p> <p>Upon the death of one of the makers of a joint note his representatives are, at law, discharged, and the survivor alone can be sued. — Towers vs. Moor, 2 Vern,, 98; Simpson vs. Vaughan, 2 Atk., 31; Richter vs. Poppenhausen, 42 N. Y., (3 Hand,) 375; Boykin vs. Watson’s Administrators, 1 Tr. Con. Rep., 157.</p> <p>If the joint maker, so dying, be a surety merely, his estate is absolutely discharged, both at law and in equity, the survivor only being liable.— Getty vs. Binsee, 49 N. Y., (4 Sickels) 385; Piekers-gill vs. Lahens, 15 Wall., 143; United States vs. Price, 9 How., 91; Rawstone vs. Parr, 3 Russell, 424, 539.</p> <p>This principle has been well settled and established by the Courts of this country and in England. It is fully discussed in the foregoing cases, wherein numerous authorities, American and English, are cited, all sustaining the doctrine and showing a uniform current of decision.</p> <p>In the case of United States vs. Price, (9 How., 91,) the Court say: “ The obligation of a surety arises only from positive contract. The liability is construed strictly, both at law and in equity, and the liability of the surety cannot be extended by implication beyond the terms of his contract. If he contracts jointly with his principal, it is a legal consequence, known to all parties, that his personal estate will be discharged in case he should die before his principal. Such being the law, it may be considered as part of the written condition of the bond, and equity will not interfere to extend the liability as against his estate on the ground that such discharge arises from the mere technicalities of the law.”</p> <p>In Getty vs. Binsee, (49 N. Y., 385,) the Court, after saying the survivor is discharged at law, proceed: “It seems'to be equally well settled that if the joint obligor, so dying, be a surety, not liable for the debt irrespective of the joint obligation, his estate is absolutely discharged, both at law and in equity, the survivor only being liable. In such case, where the surety owed no debt outside and irrespective of the joint obligation, the contract is the measure’ and limit of his obligation. He signs a joint contract and incurs a joint liability, and no other. Dying prior to his co-maker, the liability-all attaches to the survivor.”</p> <p>In the case of Rawstone vs. Parr, (3 Russ., 424, 539,) creditors claimed to prove a joint note against the estate of a deceased surety, the surviving makers and principals being insolvent. The Master of the Rolls allowed the claim, but his decree was reversed by the Chancellor, Lord Lyndhurst. — See also notes to Thomas vs. Frazier, 3 Ves., Jr., 399.</p> <p>The case of PicJcersgitt vs. Lahens, (15 Wall., 143,) is'the latest, and is also directly in point. The Court say: “ It is very clear that the estate of Lafarge is discharged at law from the payment of the obligation in controversy on the familiar principle that if one of two joint obligors die the debt is extinguished against his representative and the surviving obligor is alone chargeable. It is equally clear that in this class of cases, where the remedy at law is gone, as a general rule a Court of equity will not afford relief, for it is not a principle of equity that every joint covenant shall be treated as if it were joint and several. The Court will not vary the legal effect of the instrument by making it several as well as joint, unless it can see, either by independent testimony or from the nature of the transaction itself, that the parties concerned intended to create a separate as well as a joint liability. If, through fraud, ignorance or mistake, the joint obligation does not express the meaning of the parties, it will be reformed so as to conform to it. This has been done where there has been a previous equity which gives the obligee a right to a several indemnity from each of the obligors, as in the case of money lent to both of them. There a Court of equity will enforce the obligation against the representatives of the deceased obligor, although the bond be joint and not several, on the ground that the lending to both creates a moral obligation in both to pay, and that the reasonable presumption is the parties intended their contract to be joint and several, but, through fraud, ignorance, mistake or want of skill, failed to accomplish their object. This presumption is never indulged in the case of a mere surety, whose duty is measured alone by the legal force of the bond, and who is under no moral obligation whatever to pay the obligee, independent of his covenant, and, consequently, there is nothing on which to found an equity for the interposition of a Court of chancery. If the surety should die before his principal, his representatives cannot be sued at law, nor will they be charged in equity. The general doctrines on this subject were presented at large in this Court in the case of the United States vs. Price, (9 How., 91,) and they are sustained by the text writers and books of report in this country and in England.”</p> <p>The principle is recognized as well settled by the Court of Appeals of this State. Chancellor Harper, delivering the opinion of the Court in the case of Pride vs. Boyce, (Rice’s Eq., 288,) says: “Upon an examination of the cases, they seem to establish a rule of this sort: that if the joint obligation be created merely by the bond or covenant where there was no previous liability, in that case no relief will be afforded against the estate of the deceased obligor in the event of the insolvency of the survivor; but if there was an antecedent debt to which both parties were liable, as in the case of partners, then the Court infers, without direct proof, that the instrument was made joint by mistake, and relieves, accordingly, by setting it up as a joint and several bond.”</p> <p>But it will be said the decisions in South Carolina are otherwise. The cases are three in number, to wit: Executor of SJvubrieJc vs. Executor of Livingston, 1 DeS., 320; Lainhart vs. Administrator of Reilly, 3 DeS., 590; Smith vs. Martin, 4 DeS., 149. These cases are all upon joint bonds, and the estate of the surety was held liable; but the point was not urged that the estate of the surety was discharged because he was surety, but merely because he was dead. The argument was that the estate of a deceased joint obligor is discharged in equity as well as at law — thNwithout reference to his situation, whether as principal or surety. This will appear from the opinion of the Court and the authorities cited by the Court and counsel. Not one of the authorities cited by the Court or counsel in either of the cases sustain the position that the estate of the surety will be held liable. In the first case, (Shubrich vs. Livingston,') two authorities only are cited in the opinion, viz., Ratcliffe vs. Graves, (Vern., 196,) Ship vs. Huey, (3 Atk., 91,) in both of which the bonds were joint and several, and they were cited on another question. Simpson vs. Vaughan, (2 Atk., 31,) Bishop vs. Church (2 Ves., 100, 371,) and Rivers vs. Kennedy are cited by counsel. In the case of Rivers vs. Kennedy the bond was joint and several. Tn Bishop vs. Church the condition of the bond was joint and several, and each of the obligors participated in the consideration. [See this case cited in Hoare vs. Contencin, 1 Brown’s C. C., 27; Raw-stone vs. Parr, 3 Russ., 424, 539; Thomas vs. Frazier, 3 Ves., 399.] In Simpson vs. Vaughan the bond was joint only, but it was given by Nut & Baker, partners, (so styled in the bond,) for a joint loan, and for that reason the Court relieved. But the Lord Chancellor says “it cannot be laid down as an invariable rule that the Court will do it in every case.”</p> <p>In the second case, Lainhart vs. Administrator of Reilley, two authorities only are cited, viz., Executors of Shubrich vs. Executors of Livingston, supra, and Madox vs. Jackson, 3 Atk., 406. In the case of Madox vs. Jackson, the bond was joint and several. Lord Thurlow says, in Hoare vs. Contencin, 1 Br. C. C., 27: “The case in Atkins [Madox vs. Jackson’] has nothing to do with it; it is the case of a joint and several bond.”</p> <p>In the third case, Smith vs. Martin, (4 DeS., 149,) three cases only are referred to by the Court, viz.: Primrose vs. Bromley, Administrator of Mead, 1 Atk., 90; Bishop vs. Church, 2 Ves., 100, 371; Thomas vs. Frazier, 3 Ves., 399. In Primrose vs. Bromley, Moore, Mead and another were assignees of a bankrupt, and gave bond to account for such sums as they, or either of them., might receive. The Lord Chancellor held the bond to be several as well as joint. Besides Mead was a principal and had received moneys as assignee. As to Bishop vs. Church, see above. In Thomas vs. Frazier, the bond was given by John and Walter Ewer, partners, and the intention of the parties to be bound severally was admitted. The cases cited by counsel are Simpson vs. Vaughan and Madox vs. Jackson, already referred to.</p> <p>These cases should be overruled. — 1 Kent., 477; Seabrook vs. Seabroolc, 10 Rich. Eq., 507, 508. But it is not essential to the success of the defendant here that they should be overruled. Each of the three cases are upon bonds, and the obligors bound themselves, their heirs, executors and administrators. Not so here. “ Where the obligation exists only in virtue of the covenant, its extent can be measured only in the words in which it is conceived.” — Sumner vs. Powell, 2 Mer., 36. '‘The surety has a right to stand upon the very terms of his contract. Courts of equity construe their contracts with strictness, and they are not to be bound by implication beyond the very terms of the contract.” — Miller vs. Stewart, 9 Wheat., 681.</p> <p>1. The obligation of the two makers of the joint note identical as to the payee.</p> <p>2. At common law the distinction between joint contracts and contracts joint and several had relation to the remedy.</p> <p>8. The reason for this distinction was unknown in chancery, and under the Code does not exist.</p> <p>4. A contract joint in its terms is in effect joint and several.</p> <p>5. The surviving joint debtor being insolvent, the estate of L. Gordon Bishop is liable for the whole debt.</p> <p>1. The obligation of the two makers of the joint note is identical as to the payee.</p> <p>They are both absolutely bound by the terms of the instrument for the payment of the money. The extrinsic fact that one was a surety can raise no equity against the payee, there being no allegations of acts upon the part of the payee that would release a surety. None are pretended.— Carson vs. Sill & Jones, 1 McM., 77; Story on Procedure Notes, 1.</p> <p>2. At common law the distinction between joint contracts and contracts joint and several had relation to the remedy.</p> <p>In Collins vs. Griffith, (2 P. Wms., 313,) the Chancellor, speaking of a joint and several obligation, said: “The creditor lent his money upon terms to have a security upon which he might sue the obligors severally if he thought fit.” • In Ayer vs. Admin, of Buford, (2 Mill., 319,) the Court held the estate of the deceased joint debtor was discharged, for the reason that the form of the contract required that the joint debtors should be sued together; and since the same judgment could not be rendered against the survivor and the representatives of the deceased, the survivor and the representatives could not be joined. — 11 Johns., 101; Chitty on Bills, 155.</p> <p>3. The reason for this distinction as to the remedy was unknown in chancery, and under the Code does not exist.</p> <p>The remedy was only a question of jurisdiction. — Ayer vs. Admin, of Buford, 2 Mill., 321. Since there was no plain or adequate remedy at law, the Courts of equity have uniformly had jurisdiction. — Primrose vs. Bromley, 1 Atk., 89; Cowel vs. Sikes, 2 Russ., 191; Lainhardt vs. Reilly, 3DeS., 148; Smith vs. Martin, 4 DeS., 148.</p> <p>In Cowel vs. Sikes, (2 Russ., 191,) “in a creditor’s suit for administering the assets of B, a joint creditor of A and B was permitted to prove, A having become bankrupt, and it appearing that there were no joint assets of A and B.”</p> <p>In Simpson vs. Field, (2 Cases in Ch., 22,) the estate of the deceased obligor, being a surety, was held discharged, as the remedy at law had been lost. It had been lost by a strict adherence to the inflexible rules of pleading of the Courts of common law.</p> <p>Sections 141 and 159 of the Code of Procedure annul the common law rule, adopt the rules of chancery, and all persons “necessary to a complete determination of the questions involved ” are to be made parties.— Yorks vs. Peek, 9 How. P. R., 201; Voorhies vs. Baxter, 1 Abb., 45; West vs. Randall, 2 Mason, 181; 2 Atk., 510; Leigh vs. Thomas, 3 Ves., 312; Treseot vs. Smith, 1 McC. Ch., 301.</p> <p>This appears to be reasonable, notwithstanding the instrument creating the debt is joint. It is, nevertheless, a debt, and should bind the estate after the death. The obligation makes the estate, and not the person, liable.</p> <p>The administrator representing the intestate can maintain, and is liable to, any action arising ex contractu as effectually as the intestate. — Co. Lit., 209; 1 Comyn on Contracts, *528.</p> <p>4. A contract joint in its terms is in effect joint and several.</p> <p>This proposition is but a corrollary of the preceding. It must be true, since a judgment against joint debtors can be satisfied from the joint property, or the seperate property of each.</p> <p>5. The surviving joint debtor being insolvent, the estate of L. Gordon Bishop is liable for the whole debt.</p> <p>This is also a corollary of foregoing propositions, but is supported by additional authority and precedents.</p> <p>The contract of Bishop survives, the remedy remains, the estate is primarily and only liable, and it is expressly held in Lainhardt vs. Reilly (3 DeS., 590,) and in Smith vs. Martin (4 DeS., 148,) that the estate of a deceased surety is liable for the whole debt, the principal being insolvent.</p> <p>Therefore His Honor the presiding Judge was correct in directing the jury to find for the plaintiff against the defendants.</p>

Before TOWNSEND, J., at Darlington, Jote, 1876. This was an action by Theodore D. Wagner and Rowena Warley against Samuel W. Pegues for an injunction to restrain the sale of a tract of land. His Honor refused the relief demanded and made a decree dismissing the complaint. The defendants appealed. The case will be sufficiently understood from the opinion of this Court.

Befoee MAHER, J., at Beaufort, Deoember, 1874. This was an action by Harvey Terry against Alfred M. Martin. The complaint alleged that under an Act passed 13th February, 1854, by the General Assembly of the State of Georgia, the Merchants’ and Planters’ Bank, located at Savannah, was duly incorporated with a capital of two millions of dollars, divided into twenty thousand shares of $100 each.

Before NORTHROP, J., at Newberry, October, 1876. This was a motion to vacate an order confirming a report of a Referee made in 1869 in the case of John L. Hill and others against Joseph Watson as administrator of Thomas Watson, deceased, and others.

Before THOMSON, J., at Aiken, April Term, 1878. This was a rule to show cause, issued in a case entitled W. H. Harrison, assignee of John M. Clark & Sons, against the Southern Porcelain Manufacturing Company. The case is stated in a brief, of which the following is a copy: This is a rule to show cause, issued by Judge Thomas Thomson at the April extra Term, 1878, of the Court of Common Pleas for Aiken County.

This was a petition to the Supreme Court by Silas Ingram against J. T. Kenningtou and others, as the Board of County Commissioners of Lancaster County, praying for a writ of mandamus to compel the respondents to levy and collect a special tax sufficient to satisfy a claim held by the relator against the Board of County Commissioners.

Before SHAW, J., at Richland, April Term, 1878. This was a petition by Leora A. O’Neale praying for a writ of prohibition to restrain Francis W. Fickling, Trial Justice, and David Utley from the further prosecution of an action, so called in the petition, which the said David Utley had commenced before the said Trial Justice to eject the petitioner from certain premises in the city of Columbia of which the said David Utley claimed to be the owner in fee and that the…

Before WALLACE, J., at Charleston, February, 1878. This was a second trial of the case of Chandler vs. Geraty, reported 5 S. C., 501, to which report reference should be had for a full understanding of the case as now reported.

Before MACKEY, J., at LaNcaster, September Term, 1877. This was an action by James B. Reeves against Amanda Sims to recover the possession of lands. The complaint alleged that the plaintiff is seized in fee of the premises and that the defendant is in possession. The answer merely contained a general denial of the allegations of the complaint.

Bepoee MACKEY, J., at Lancaster, October Term, 1875. Held: when it was heard upon an affidavit by the plaintiff, dated 17th August, 1877, which stated: “ That in the trial of the above case for the recovery of said note the defendant was allowed credits as discounts — one for ten dollars and another for seventy-five dollars — for which said amounts the plaintiff had given the defendant…

Before MACKEY, J., at Spartanburg, October Term, 1877. Action by Stephen D. Mason, administrator of James Mason, deceased, against John Winsmith.

Before NORTHROP, J., at Abbeville, September Term, 1877. This was a petition by Elihu Davenport and Katie, his wife, against Elizabeth Caldwell, for partition of real estate and account, originally brought in the Court of Probate for Abbeville County, and appealed to the Circuit Court of the same County.

Before CAEPENTEE, J., at Eichland, May, 1877. This was au action by Margaret C. Simons and others against Sarah M. Bryce and John C. Bryce, executors of Campbell E. Bryce, deceased, and George W. Williams and others. The case will be understood from the decree of the Circuit Court and the opinion of this Court.

Before REED, J., at CharlestoN, JuNE, 1877. This was an action by John L. Faber against J. G. Police to recover damages for the breach of a contract for the sale of a lot of land in the city of Charleston. The case was referred to Samuel Lord, Jr., Esq., to take testimony and report the facts, together with his opinion on the title tendered by the plaintiff to the defendant.

Before KERSHAW, J., at Yore, , 1877. This was .an action by Jonathan N. McElwee and others against Burritt T. Wheeler and others to recover the possession of a tract of land.

Before REED, J., at Charleston, July, 1877. This ease will be found reported in 5 S. C., 182; 6 S. C., 307, and 8 S. C., 207, and by reference to those reports the nature and object of the action will be understood.

<p>Testator devised to each of his three grandsons a tract of land, “ to him during his natural life, and then to his children forever;” but if “ either of my said grandsons should die without leaving a child or children capable of inheriting the share of the property I have given to him, then and in that case it is my will that the share so given to him shall go to and be divided between the survivors; or if two of the 3 should die without either of them leaving children capable of inheriting their or either of their shares, then it shall go to the survivor during his life, and then to his children forever.” The will also contained a residuary clause by which the testator devised “ all of his other property, of every kind and description whatsoever, to his said three grandsons, to be equally divided between them.” Bach of the three grandsons died without children: Held, That each of the three grandsons took an estate for life in the land devised to him, with remainder to his children and with cross remainders between him and the other devisees in case he died without children, — the survivor taking all the lands upon the death of two of the de-visees, neither of them leaving children; and that upon the death of tho survivor, leaving no children, the residuary clause took effect and vested the estate in all the lands, from the death of the testator, in the three grandsons absolutely and in fee.</p> <p>A residuary clause of all the testator’s “ property, of every kind and description whatsoever,” carries all his interests in real estate otherwise undisposed of by the will, whether such interests be vested, or future, contingent or reversionary.</p>

Before SHAW, J., at Marion, November, 1877. This was a petition in the Court of Probate of Marion County by Richard Jordan against Franklin J. Moses and Montgomery Moses, executors of the last will, and testament of Napthili Phillips, deceased, praying for an account and settlement of the estate of the testator and for a sale of the real estate for the payment of debts. The petition was filed on the 9th January, 1877.

<p>Though, as a general rule, where plaintiff sues upon a note, the defendant cannot give payment in evidence without pleading the same, yet where complaint alleges certain credits, and that there is a specified balance due for which judgment is claimed, defendant can give other payments in evidence under a general denial of the allegations of the complaint.</p> <p>Part payment of the amount due on a sealed note made in compromise of an action on the note held to he supported by sufficient consideration and to have discharged the balance due.</p>

<p>It is competent for tlie Court, in equity eases, to review the findings of a Referee upon questions of fact and reverse the same.</p> <p>Where an instrument requiring a seal is produced in Court with a seal opposite the name of the signer, and no suspicious circumstances appear upon the face of the instrument or otherwise, the onus is upon the party objecting to the introduction of the instrument to shew that it was not under seal when signed.</p> <p>Where secondary evidence of the existence and contents of a record are introduced, without proof of its loss or destruction, and no objection is made at the time to the want of such preliminary proof, such objection cannot afterwards be made.</p> <p>A compromise made by a trustee, without leave of the Court, sustained, it appearing that the compromise was just, fair, proper and for the best interests of the estate.</p>

Before PRESSLEY, J., at Richland, Fall Term, 1878. This is the same case of Montgomery vs. Scott which is reported at length in 9 S. C., 20, to which, as there reported, reference should be had in order to understand the case as now reported. The appeal was heard upon a brief, which is as follows: This cause came to trial before His Honor B. C. Pressley at the Fall Term, 1878, on Calendar No. 1, as suggested in the decree of the Supreme Court ordering a new trial.

Before REED, J., at Andersou, May, 1877. This was an action by C. A. Moore against Joseph N. Byrum and Wm. Held: Justice Swayne delivering the opinion, that the mortgage clause in the lease could not operate as a mortgage, because the crops to which it related were not then in existence, but that when the crops grew the lien attached and bound them. The Court in that case announced its decision without giving its reason.

Before MACKEY, J., at Lancaster, August Term, 1877. This was an action by Pleasant M. Plyer against L. A. Parker and Britton Parker on two sealed notes given by the defendants. The defendant L. A. Parker pleaded a counter claim for money due to himself upon an account for agricultural supplies furnished by him .to the plaintiff.

Before ALDRICH, J., at Richland, July TerM, 1878. This was an action by Edmonds T. Brown against Manuel Morris. The action was commenced on the 15th day of January, 1877, the answer filed in February thereafter, and on the 14th day of February a warrant of attachment was issued in said action upon an affidavit by the plaintiff’s attorneys, setting forth: 1.

Before ALDRICH, J., at Richland, June, 1878. ■This was an action by Samuel W. Mobley, as trustee .of Victoria Walker, against Jesse E. Dent, as Sheriff of Richland County, to recover damages for wrongful taking by the defendant from the possession of the plaintiff certain gbods and chattels.

Before ALDRICH, J., at Richland, August, 1878. This was a bill in Equity, filed in 1866 .by Robert G. Lamar, trustee of Mrs. Eliza Stark, wife of Theodore Stark, and others, against the Charlotte and South Carolina Railroad Company.

Before PRESSLEY, J., at Lexington, September Term, 1878. This was an action by Isaac V. Bardin against Samuel P. Drafts, as Sheriff of Lexington County, for the recovery of personal property which the defendant had seized as the property of Elkins and Bardin under process against them. The plaintiff executed the proper undertaking with sureties, and thereupon the Coroner received the property from the defendant and delivered it to the plaintiff.

Bepoee MACKEY, J., at Lancaster, August Term, 1877. Two actions by Louisa A. Potts against William Bonds on two sealed notes. The defendant pleaded in each case a receipt in full and also a counter claim. The jury found for the plaintiff in both eases, and the defendant moved for a new trial, and, in support of the motion, relied upon affidavits of newly-discovered evidence. His Honor made an order that the motion be granted and that the verdict of the jury be set aside.

BefoRE SHAW, J., at RichlaNd, April Term, 1878. This was an indictment for bigamy against Nathan Whaley for marrying one Charity Collins when Betsy Moore, alleged to be the wife of the defendant, was still living.