Volume 12 — South Carolina Reports

Before Mackey, J., at Oconee, March, 1878. The complaint is as follows: The plaintiff, complaining against the defendants, John D. Werner and William J. Stribling, doing business as merchants in the towns of Walhalla and Westminster, in the state and county aforesaid, under the name, firm, and style of Werner & Stribling, and Eliza A. Earle, shows to the court as follows : 1.

<p>1. Richardson v. Ghappel, 6 S. C. 146, and Haynesworth v. Bischoff, 6 8. (7. 159, explained.</p> <p>2. A mortgage by the heir-at-law of land inherited is not such an alienation within the meaning of 3 and 4 W. <6 M., 2 Stat. 533, as will defeat the claims of the decedent’s creditors, so long as the mortgagor retains the possession. See Simons v. Bryce, 10 S. G. 354.</p> <p>3. But where, upon condition broken, the mortgagee takes possession of the land, under a power given in the mortgage, the mortgage thereupon operates as an alienation.</p> <p>4. A power of sale, in case of default, contained in such mortgage, but unexercised, would not be an alienation; but a sale under decree of foreclosure would be.</p> <p>5. A surrender of possession by mortgagor to mortgagee would constitute an alienation, but a mere assignment of the rents of the mortgaged premises would not be so regarded.</p> <p>6. A decree, from which no appeal was taken, directed a foreclosure and sale at a future day, unless a specified sum was previously paid, with the privilege to plaintiff, in case of deficiency, to enroll his decree and issue execution for balance due; a money decree was instantly enrolled and execution issued for the whole sum specified. Held, that the debt was liquidated by the decree, but that the enrollment and execution were erroneous, and created no lien on the defendant’s property. Distinction drawn between this case and Blake v. Heyward, Bail. Bq. 201. Haskelb, A. J., dissenting.</p>

<p>Before Thomson, J., at Kershaw, February, 1879.</p> <p>This was an action for divorce from the bonds of matrimony, upon the ground of defendant's adultery. It was commenced December 12th, 1878, eight days before the approval of the act of December 20th, 1878, (16 Stat. 719), repealing all laws of this state relating to the granting of divorces. The defendant failed to appear or answer. The parties were married January 4th, 1869. His Honor the Circuit judge dismissed the action, holding that the court could not hear testimony or render judgment under a repealed statute. The plaintiff appealed.</p>

Before Aldrich, J., at Chester, November, 1878. This was an action on a sealed note, given by defendant, Hamilton, as principal, and Walker as surety, to C. S. Brice, the intestate of the plaintiffs. The answer admitted the execution of the note but plead payment, and set out the payment of several sums of \money at various dates, by Hamilton to C. S. Brice, and the same payments were also set up by Hamilton as a counterclaim, for money had and received.

Before Aldrich, J., at Chester, November, 1878. This was an appeal from the Court of Probate. The plaintiff was the widow of Sample Alexander, and demanded dower in a tract of land belonging to defendant. The land had been sold as the property of Sample Alexander, in 1868, during his lifetime, under a judgment upon which there was due over $2000. It was purchased by the brother of the plaintiff in that judgment for $500, and re-sold by the purchaser, in 1875, for $1500.

<p>Before Aldrich, J., at Chester, November, 1878.</p> <p>This was an action commenced in November, 1875, for breach of warranty contain*'! in deed from J. G. Smith to plaintiff on January Bfh, 1858. xTo alleged breach was a deficiency in the number of acres, and also in a lot at a railroad station. The deficiency was clearly proven. The defendants claimed title under J. G. Smith, exactly how does not appear. The defendants plead the statute of limitations. It appeared in testimony that the defendant, Guy, ana one Smith, as executors of J. G. Smith, sued Bratton, the plaintiff here, for balance due on his bond for purchase money of this land, and recovered a verdict March 15th, 1869. Upon the declaration in that case was endorsed, in the handwriting of the attorney for Guy and Smith, executors, the following: “ It is understood that the verdict in this case has been agreed upon without prejudice to the defendant’s claim on the warranty.” (Signed,) Melton, Hart &■ Melton, plaintiffs’ attorneys.</p> <p>At the close of testimony for plaintiff, .the defendant moved for a non-suit. The court overruled the motion and defendants excepted. The defendants requested the judge to charge the jury that the action was barred by the statute of limitations, and plaintiff cannot recover. This was refused, and exception taken. The jury found a verdict for plaintiff. Defendants appealed to this court, upon the exceptions taken in the court below.</p>

<p>Before CaepeNter, J., at Edgefield, April, 1876.</p> <p>This was an action of assumpsit ■ brought by the plaintiff in 1866, against Jacob Lagrone, for the value of certain cotton. The defendant dying after action brought, it was revived against his executors. Plaintiff then filed an amended complaint, demanding judgment for $3765, for nineteen bales of cotton, and for $2922.80, for sixteen bales of cotton. The demands Avere set forth rather in the form of a declaration Avitli several counts, one on a quantum meruit, another on account stated, &e. The defendants accepted service of this amended complaint on March 16th, 1870, in Avords folloAving: “We accept service of amended complaint, and waive all irregularities as to additional cause of action.” The defendants set up íavo sealed notes in discount. Also that plaintiffs’ claim had been adjudicated in 1865 by the military authorities, as appeared by the following papers:</p> <p>Edgefield C. H., S. C., August 10th, 1865.</p> <p>Whereas, it has appeared to my satisfaction that Jacob Lagrone, a citizen of this district, is entitled to the unmolested possession and sale of a certain lot of cotton claimed to have been purchased by Carson Warren, also a citizen of this district :</p> <p>It is hereby ordered that the said Warren refrain from any interference with the said Lagrone, or his agents, or the cotton in dispute between them, except in due and proper form; and that if he does so interfere he will lay himself liable to arrest and punishment. (Signed)</p> <p>Witness: L. W. Metcalf,</p> <p>M. C. Butler. Captain 33d U. 8. C. T.</p> <p>I). P. LagrONE. Commanding Post Edgefield, 8. C.</p> <p>Headquarters, Depart, of Georgia, Augusta, August 31st, 1865.</p> <p>The cotton sold by Lagrone, which had previously been sold to Warren, will be delivered to Simons, to whom Lagrone sold it. Dr. Lagrone called on me some four weeks since, and stated all the facts in this case, and I advised him to sell the cotton. (Signed) ,</p> <p>.Tames B. SteadmaN,</p> <p> Major-General Com. </p> <p>At the trial plaintiff introduced testimony to show the purchase of the cotton by him from Lagrone, and the price of cotton in 1865, and its sale by Jacob Lagrone. Defendants moved for a non-suit, upon the ground that the action should have been trespass or trover, and not assumpsit. The motion was refused and defendants excepted. The defendants offered in evidence the papers set forth in their answer together with statement of Capt. Metcalf; his Honor ruled them inadmissible, and defendants excepted. The defendants introduced testimony to show that the cotton belonged to Jacob Lagrone at the time he sold it. They also proved their notes.</p> <p>The jury found a verdict in favor of plaintiff for $5933.82.</p> <p>Defendants moved for a new trial on the minutes, upon the following grounds:</p> <p>1. Because his Honor erred in overruling the motion of defendants’ counsel for a non-suit, made upon the grounds that the testimony in behalf of plaintiff showed that the action was improperly brought; that the action should have been trespass or trover, and not assumpsit; and in allowing the plaintiff to go to the jury upon the pleadings as presented.</p> <p>2. Because it is respectfully submitted his Honor the presiding judge erred in not allowing full force and effect to the act of the general assembly of this state, entitled an “Act to quiet rights vested under military orders.” approved and ratified on the 22d day of September, A. D. 1868 • the defendants’ testator, Jacob Lagrone, having under and by virtue of the military orders of Capt. L. W. Metcalf, 33d U. S. colored troops, then stationed at Edgefield C. H., and the orders of Major-General James B. Steadman, stationed at Augusta, Ga., against rights which were intended to be, and were, as defendants submit, quieted and determined by said orders; and in not allowing full force and effect to said orders issued in August, 1865.</p> <p>3. Because bis Honor erred, as it is respectfully submitted, in not instructing the jury upon the evidence that the said testator having acted in the alleged conversion and sale of the cotton in question, under and by virtue of the said military orders, he should not have been held accountable either for the cotton, its value, or for interest from the date of the alleged conversion and sale.</p> <p>4. Because his Honor erred in his instructions to the jury that they should allow interest from the date of the alleged conversion, whereas interest, if allowed at all, should have been allowed only from the date of the demand by plaintiff, and no demand was proved.</p> <p>5. Because the jury, in arriving at their verdict, regarded the alleged contract for the purchase of the cotton as having been made with reference to confederate currency as a basis of value, whereas there was no proof to justify such a conclusion, but on the contrary there was positive and direct proof, uncontradicted and unimpeached, that said contract was made with reference to gold and silver.</p> <p>6. Because the testimony showed that the value of the cotton •alleged to have been converted, at the date of the alleged conversion, was twenty-one and one-half cents per pound; and the jury erred in estimating said cotton at said time at thirty-five cents per pound.</p> <p>7. 'Because, it is respectfully submitted, the jury erred in disregarding the testimony that established the fact that the contract between plaintiff and defendants’ testator was rescinded previously to said alleged conversion, inasmuch as the cotton was not to be delivered until paid for, and no tender of payment was ever made.</p> <p>8. Because it is respectfully submitted that his Honor erred in charging the jury, as matter of law, that the contract had not been rescinded, instead of charging that there was testimony to :show that the contract had been rescinded, and tending to show that defendants’ testator had a right to sell the cotton.</p> <p>9. Because the verdict of the jury was excessive, oppressive, not warranted by the law and evidence, and contrary to the law and evidence.</p> <p>The order upon the motion for a new trial is as follows:</p> <p>1. It is ordered that the motion in arrest of judgment and all the grounds for new trial are overruled, except the ground as to ■excessive damages.</p> <p>2. That the ground as to excessive damages be sustained.</p> <p>3. That said motion for a new trial be and the same is hereby granted, unless the plaintiff within thirty days from the date hereof remit on the record the sum of $2975.82 of the verdict, as of the date thereof, in which case said motion is dismissed, without costs.</p> <p>The defendants appealed to this court from so much of this order as—</p> <p>1. Overrules the motion in arrest of judgment, and all the grounds of new trial, except the ground as to excessive damages.</p> <p>2. As denies the motion for a new trial, in case the plaintiff, within thirty days from the date of said order, remits on the record the sum of $2975.82 of the verdict, as of the date thereof.</p>

<p>Before Carpeistbr, J., at Eiehland, February, 1875.</p> <p>The facts bearing, upon the merits of the case are immaterial to a proper understanding of the opinion of the court. It was an action of interpleader, and the issues of facts raised between the defendants were submitted to a jury. The jury found a verdict in favor of Owen Smith & Co. On the same day Earle moved for a new trial, and the motion was refused in these words: “ That the motion for new trial be and is hereby overruled and refused.”</p> <p>From such refusal, and from the judgment entered up upon the verdict, the defendant, Earle, appealed to this court.</p>

Before Townsend, J., at Marion, May, 1876. In this case Hon. W. H. Wallace, Circuit judge, sat in the place of Associate Justice Mclver, who had been of counsel in the cause. The Circuit decree sets out all matters necessary to a full understanding of this case. It is as follows: This is an action for the foreclosure of a mortgage.

<p>Before Mackey, J., at Barnwell, September, 1878.</p> <p>It would seem that the defendant executed a mortgage to the plaintiff upon a certain tract of land, excepting therefrom a homestead reservation, the limits of which were not defined either in the mortgage itself or by previous assignment. This action was brought by plaintiff to foreclose his mortgage, and defendant failing to answer, an order was obtained that a sale should be made “after a homestead has been set off to the defendant, Bostick, out of the mortgaged premises.” Commissioners were then appointed under the provisions of the homestead act of February 22d, 1873. The commissioners made their return, to which the plaintiff filed exceptions. After hearing testimony •upon the matter pf these exceptions, the Circuit judge set aside the return and assignment of homestead, and ordered a reappraisement by other appraisers named in the order. From this order the.defendant, Bostick, appealed to this court.</p>

Before Hudson, J., at Charleston, March, 1879. This, and twelve other cases involving the same question, were brought before the Circuit Court for Charleston county, by petitions, filed after the passage of an act entitled “An act to facilitate the collection of taxes,” approved December 24th, 1878; and they were all heard together.

<p>1. A municipal corporation has no power to levy taxes without express authority granted in its charter for that purpose.</p> <p>2. Query: Can a municijial body be compelled by mandamus to levy a tax to pay judgments recovered against it ?</p>

<p>Before Hudson, J., at Charleston, March, 1879.</p> <p>The Circuit judge passed an order directing the receiver of the Savannah and Charleston Railroad Company to purchase new iron and cross-ties and one new locomotive, at a cost not exceeding $75,380. Eor such expenditure the receiver was authorized to issue his pay certificates, to be paid, in the first place, out of the net income of the road not already, by order ‘of the court, •otherwise appropriated y and if not so paid, then on the sale of the road, out of the proceeds of such sale, in priority to the mortgages. He subsequently filed the following paper as a part -of his judgment:</p> <p>On the morning of the 18th of March, A. D. 1879, C. T. Mitchell, Esq., as receiver of the Savannah and Charleston Railroad Company, submitted to this court a report of the condition of the road, setting forth the gross income thereof for several years past, and stating that from this source sufficient has not been, and manifestly will not be, realized to keep the road in repairs and furnish the much-needed additional rolling stock requisite to the business. The report is full, and shows the absolute necessity of immediate repairs to the road, and the urgent call for additional and safe rolling stock. Reference to the report must be had for its details. In filing this report, Messrs. Memminger, Campbell and Young, representing chiefly the holders of the seven per cent, mortgage bonds, issued under act of 1869, applied to the court for an order allowing the receiver to purchase the necessary additional rolling stock, and to make the necessary repairs of the road, and in payment thereof to issue his certificates, which should stand as a lien on the road in preference of all mortgage liens.</p> <p>After discussion by counsel for and against the measure, the-court referred it to the superintendent of the road, Mr. C. S. Gadsden, and an engineer, to report to the court what repairs of the road are urgently demanded, and what additional rolling stock is really needed to enable the road to do the business-required of it. At five o'clock p. M. of the same day this report was submitted to the court. In substance the report stated that the road could be made secure and safe to the public by relaying-with new rails twenty miles of the track, and with the best of the old rails repairing the balance.</p> <p>That many new cross-ties are needed, and that of rolling stock there are needed two new engines and fifty new box-cars-. The estimated cost of these matters of purchase and repairs he puts at $110,000.</p> <p>Pursuaut to notice counsel appeared to defend and resist this proposed scheme of expenditure. The resistance came from a number of attorneys, representing chiefly the holders of the six per cent, bonds, issued under act of 1856, and recently declared by the Circuit Court to be a first lien on the road. In resisting the application aforesaid, they urged that sufficient notice had not been given; that the court has no jurisdiction to allow any expenditure to create a first lien; that the necessity therefor does not exist; that the matter should at least be-referred to a master of this court for examination and report; that the interest of their clients will be greatly jeopardized by the proposed creation of a first lien.</p> <p>On the contrary, it was urged that the court having assumed the custody, control and management of the road, is clothed with jurisdiction to order an expenditure and outlay sufficient to preserve the property, which being a public highway imposes on the court duties of the gravest character; duties and responsibilities not alone to the creditors, but to the public. That the expenditures asked are not for the improvement of the property, but for its preservation, a measure which will' redound as much or more to the advantage of the holders of the first liens, whoever they may be, as to other creditors; that unless the road be speedily repaired serious accidents to the traveling public are imminent, ■and great loss of business to the road. That already the owners of connecting lines have given notice that they will sever their ■connection with the Savannah and Charleston railroad as a connecting link of a through route, and will form other connections unless this road be put in repairs and made safe to the public. At the conclusion of the argument I announced my judgment ■orally in open court, and signed an order to carry the same into effect, which was placed on file in the cause.</p> <p>It has since been suggested to me that the order is open to a ■construction at variance with the judgment pronounced. To .avoid misunderstanding, I proceed simply to announce in writing the judgment orally delivered.</p> <p>I do not regard the controversy as arising on a motion of which formal and due notice is required. The receiver of the road in the discharge of his duty, laid before the court important information touching the responsible trust imposed upon him, which information, in the judgment of the court, calls for prompt and decisive action. Unfortunately, the course of litigation between the creditors of this road has become very complicated; has already produced much delay, is likely to produce much more delay, and prevents me from signing an order for the sale of the property, which would be more agreeable to my feelings, and more conducive to the welfare of all concerned. Pending this delay, this court remains the custodian and manager of the property through its constituted agent, and having assumed, must discharge the full measure of the duties and responsibilities of that management to the company, its creditors, and to the public. The court at present can make no order of sale, and hence the road must be suspended in its operations, or continued as a public highway.</p> <p>No one desires or asks that it be suspended. To suffer it to be operated at great hazard to human life, and at' the risk of loss to private property, without the means of responding in damages, would not only be an act of remissness and negligence in the court, but-would be criminal. The information laid before-me by the intelligent receiver and superintendent, satisfies me-that the exigency requires material repairs to preserve the property, and make the road a highway safe to travel and transportation, and leaves no doubt in my mind as to the duty of the court. I feel that I would betray the trusts reposed in me by the law were I to withhold action, and carelessly suffer this road, in its unsafe condition, to be held out to the public as a highway and thoroughway, without repairs. But I deem my power in this respect to be exhausted, by ordering only such purchases of rolling stock and repairs of the road, as are necessary to preserve the property in running order.</p> <p>I will, therefore, only allow the receiver to make an outlay in-this direction not exceeding the sum of $75,380, to be expended for the items of repairs and purchases set forth in his estimate, except the fifty box cars and one of the locomotives.</p> <p>In no event shall the face value of the certificates to be issued for the expenditures exceed the sum aforesaid, to wit, $75,380 in the aggregate, and the most scrupulous care and fidelity is enjoined upon the said receiver in carrying out this judgment, and the order based thereon of date March 18th, 1879. No rate of interest having been fixed for the certificates, in the said order, the receiver will see that they bear a rate not exceeding seven per centum per annum. Let this judgment be filed as of even-date with the order of March 18th, 1879, of which it forms a part.</p> <p>The holders of a certain class of mortgages outstanding upon this railroad property, appealed, upon several grounds, including that upon which the appeal was decided. So far as the arguments of counsel bear upon the point decided, they were as follows : ' .</p> <p>"We submit that said order has been made without due caution or deliberation, and, as appears by the record itself, without sufficient opportunity given to parties in interest, either to investigate the facts alleged in the reports of the receiver and the-superintendent of the road, or to examine the law applicable to the case, or opportunity given to the attorneys in the cause even to consult with their clients as to the advisability of the order, to obtain from them any information in their possession, or to receive any instructions whatsoever in the premises.</p> <p>That said order was made, as appears by the record, without the usual reference to a master, in a case in which the courts have held that such an order should be made with the greatest care and circumspection, with full notice to all parties in interest, and with ample opportunity given to them to examine witnesses and accounts, to produce testimony, and submit argument upon the facts and the law.</p> <p>That said order, as appears by the record, was made, after a reference for a few hours, to a referee, which reference was contrary to law, and the ox’der made upon his report without opportunity given to the parties in interest to appear before him for the purpose of examining evidence or submitting either testimony or ai’gument. Meyer v. Johnston, 53 Ala. 237, 346; Fosdiclc v. Schall, 9 Otto 235.</p> <p>The whole matter lay in the discretion of the court, and, in the effort to guide that discretion, the suggestions of counsel could not assume the technical form of a motion. The action of the court xnust be deemed spontaneous, and the first difficulty, therefore, which the present application to the Supreme Court presents, is whether it can be dealt with as an appeál.'</p> <p>The entire action is within the inner orbit of the court. The court has undertaken to manage. It has appointed its receiver; given him possession and directions. Difficulties occur in the management; he submits them to the court. There is no interference frpm without. It is the receiver (the agent of the court) who comes to his principal for instructions. That principal simply calls for ax’gument for his own enlightenment, and then gives his own instructions. This is one of the absolute necessities produced by the situation, and no fault can be found with the judge for exercising his judgment. The only question which can arise is, whether this judgment was so unwise as to call for the interference of the Supreme Court.</p> <p>The objections made to the action of the court are in part formal and in part substantial.</p> <p>The formal objection made to the want of notice is probably made from a want of knowledge of facts. Mr. Cutting’s solicitors were not informed of the condition of the road any sooner than the solicitors of the other parties. The report of the receiver was only known to them at the same time that notice was given to the other parties, and the receiver himself stated that he expected the court would sit for one or two weeks beyond the time when he made his report, and that he was as íxfuch concerned as they were when he heard that the court was so soon to adjourn, and that he acted in good faith by hastening on the matter at the time he reported.</p>

Before Aldrich, J., at Laurens, February, 1879. The prisoner was indicted for the murder of William. C. Kilgore, on December 2d, 1878. Besides the facts stated in the opinion of the court, it appears that while the jury was being empaneled, tlie solicitor ordered jurors to stand aside, without challenge or cause shown; but that the panel being exhausted these same jurors were recalled and presented to the prisoner.

Before Hudson, J., at York, March, 1878. The plaintiffs purchased a tract of land at sheriff’s sale as the property of J. B. Bratton; the defendant, Lowry, was in possession of this land, claiming it as his own, and Fenton Biggs was his tenant. This action was brought by the plaintiffs against the defendants to recover possession of the land and damages for its detention. J. B. Bratton was a member of the firm of Allison & Bratton.

Before Wallace, J., at Marlborough, February, 1879. The defendant, Sutherland, paid the execution in this case in full, less certain costs for serving witnesses, taxed up in the judgment in favor of the sheriff. The sheriff, W. P. Emanuel, refused to enter satisfaction on the execution, and this was a rule requiring him to show cause why he so refused. The Circuit judge ruled that the charges were legal, and discharged the rule.. The defendant appealed.

This was an original application to this court for a writ of certiorari. On December 24th, 1875, the general assembly of South Carolina passed two acts providing for the payment of certain claims against the state.

<p>Before Hudson, J., on Eighth Circuit, October, 1879.</p> <p>The opinion of the court fully states the case.</p>

Before Pressley, J., at Sumter, May, 1878. This was an action instituted in Sumter county by John W. Daniels, clerk of the court of Anderson county, against M. Moses, P. J. Moses, Henry Bytfcenberg, Marcus G. Kyttenberg and Joseph Kyttenberg. The facts are fully stated in the opinion of the court. The defendants appealed.* If no perfect title passed to M. Moses, then he held adversely to the world from time the last installment fell due. JRiee Eq. 373.

Before Townsend, J., at Marion. This was an action brought by George M. Brown, as assignee of his father, Moses W. Brown, against Christopher J. Coney, James A. Brown, Robert N. Brown, Mary P. Manheim and Michael Manheim.

<p>Before Cooke, J., at Charleston, December, 1877.</p> <p>This was an action brought by plaintiff to foreclose a mortgage upon a house and lot in the city of Charleston, executed by defendant Joseph G. Thorpe ; and John B. Abney, who claimed the property under sheriff’s deed, was made a party defendant.</p> <p>Joseph G. Thorpe, a citizen of Graniteville, S. C., borrowed §1000 from his brother, William Thorpe, a citizen of Pennsylvania, July 25th,. 1870, and gave his sealed note, payable at. twelve months. In May, 1875, an action was commenced in Edgefield county against D. L. Turner, a former Probate judge,, upon his official bond, and against J. G. Thorpe and others, the 'sureties thereto. In February, 1876, J. G. Thorpe executed a mortgage to his brother upon the lot in dispute, to secure the payment of this note. On March 26th, 1876, judgment was-obtained at Edgefield against D. L. Turner, J. G. Thorpe, and others, for §3548.90. A transcript of this judgment was sent to Charleston, and, under it, the lot in that city was sold as the property of J. G. Thorpe in August, 1876, by the sheriff of' Charleston county. At that sale notice was given of this mortgage, which had been duly recorded in that county, March 29th,. 1876. John B. Abney was the purchaser.</p> <p>This is the mortgage here sought to be foreclosed, and (J. G.. Thorpe not answering,) John B. Abney resists the foreclosure, and claims the property to be his absolutely, upon the ground that the mortgage was fraudulent, and made to delay, hinder and defeat the just claims of the creditors of the defendant, and particularly the plaintiff in the suit against Turner and others.</p> <p>All the issues of law and fact were referred to James Aldrich, Esq., special referee, to hear and determine. In his report, the-referee states the pleadings and the facts, much of which has no-bearing upon the points of the case decided by this court. The report continues: - ■ ■ . ,</p> <p>J. G. Thorpe has not only failed to answer the complaint, herein, but is a most willing loitness in favor of plaintiff, and a. most unwilling witness for John B. Abney. Indeed, to obtain his testimony he had to be called by John B. Abney, and in his evidence he speaks of the proceedings in the case of State, ex reh. Abney, v. Turner and himself, as an attempt to rob him of his property. Again, J. G. Thorpe was the agent of the plaintiff in all his transactions, including even the management of the ■suit against himself, to the very payment of the fees of the plaintiff’s attorney. See the testimony of plaintiff generally; that of ■J. G. Thorpe and D. S. Henderson. Plaintiff is bound by what•ever J. G. Thorpe did as his agent. Bump on Fraud. Con. 203.</p> <p>Even where the creditor is not aware of the debtor’s intention to delay,' hinder or defeat the claims of another creditor, but learns enough to excite a suspicion of that fact, or accepts the preference, or the fruits of it, after he has learned that such intention existed in the mind of the common debtor, he will not foe allowed to retain the preference, nor can one avail himself of the fraud of another. Bump on Fraud. Con. 200; 3 Strob. Fq. 263; Rich. Eq. Cas. 122.</p> <p>While relationship between the parties (and here they are brothers) is not a badge of fraud that a secret trust existed, still “ they are the persons with whom a secret trust is likely to exist. The same principle applies to all persons with whom the debtor has a confidential relation. [Here the debtor was the agent of the creditor.] Any relationship which gives rise to confidence, though not a badge of fraud, strengthens the presumption that may arise from other circumstances, and serves to elucidate, explain or give color to the transaction.” Bump on Fraud. Con. 54, 55.</p> <p>“ In deciding upon the bona or mala jides of such a transaction, much importance is always attached to the fact that the ■security was taken, not as a pledge for money borrowed at the time, but for an antecedent debt.” 2 Rich. Eq. 162.</p> <p>Here the mortgages of May, 1875, were given to secure a debt alleged to have been contracted in May, 1873, and the mortgage in dispute was given in 1876, to secure a debt contracted in 1870.</p> <p>“The omission of the grantee to testify or to produce the •debtor, or any other important witness, is the ground for an unfavorable presumption, and frequently exercises an important influence upon the final determination of fraud.”</p> <p>Here the wife, son and daughter of plaintiff, and the wife of J. G. Thorpe, were important witnesses, and were not produced by grantee, plaintiff. They saw plaintiff pay to J. G. Thorpe the $1000 for which the note in dispute was given, and yet they do not testify.</p> <p>Where a judgment confessed is impeached by a creditor for-fraud, it is a circumstance entitled to considerable weight where the transaction is of a doubtful character that it was confessed pending the creditor’s suit. Rich. Eq. Cos. 410.</p> <p>I take it the same is applicable to mortgages. In this case the mortgage of 1876, the one involved herein, was given but a few weeks prior to the judgment in that case, and it reached Charleston for record but a week or two before the transcript, in the Abney case reached the same point. There seems to be a method in this chance course of action.</p> <p>I will briefly state some of the facts which indicate fraud t Plaintiff was a workman at $15 per week. If he worked all the time he made $780 per year, and it would require his entire earnings of nearly eight years to make a loan of $6000; and, allowing him but $280 per year to support himself and family, it would take his saving of twelve years to make the loan. $5000-of this money was sent in a registered letter (so J. G. Thorpe says) all the way from Pennsylvania to Graniteville, and yet no-receipt, no post-office registry, no witness even pretends to prove this remarkable transaction, save J. G. Thorpe, the debtor and agent, who kept them in his possession and had the mortgage foreclosed upon his own property. I never read of a case similar to this transaction. Again, J. G. Thorpe would give the mortgages and record them at his discretion. Again, when the $6000 mortgages were drawn by H. T. Wright, the $6000 note which they were given to secure was not shown to him.</p> <p>The $1000 mortgage of 1876 is in J. G. Thorpe’s handwriting-</p> <p>I will now leave this class of evidence, and it is by no means exhausted, and examine the positive testimony as to the mala fides of the transaction.</p> <p>Plaintiff says: “ I knew that the property (this in dispute) was advertised for sale before it was sold, and I told J. G. Thorpe to go ahead, foreclose the mortgage and save the property.” Plaintiff was not anxious to get his money, but wanted the mortgage foreclosed for what ? To “ save the property,” and J. G. Thorpe was tire man selected to “ save the property.”</p> <p>Plaintiff says J. G. Thorpe had the custody of the mortgage now in dispute all the time until it was handed to an attorney to' foreclose, and that the mortgage was, in fact, given without his knowledge, and voluntarily. The agent of J. G. Thorpe, who gave notice of this mortgage at the sale in Charleston under the Abney execution, also bid upon the property.</p> <p>Now I shall look over J. G. Thorpe’s testimony. He says: u I had been sued on Turner’s bond, and I gave the mortgage to William Thorpe, my brother, to secure him. I had a right to prefer a creditor.” “ I did not know that judgment was to be rendered against mo at March Term, 1876. I was on the jury here in Aiken at that time. I asked you [G. W. Croft] how long a mortgage had to be recorded in. Croft’s answer, sixty days. I «aid that I thought when a mortgagee was out of the state he had longer than sixty days. Croft’s answer, no. The next day I told Croft that I had sent the mortgage to be recorded.”</p> <p>J. G. Thorpe was asked why he had not recorded che mortgage of 1875, which included his Aiken property as well as this in dispute, but which was recorded in Aiken only. “ It would hurt the sale. * * * I put it in the first mortgage, intending to record it in Charleston, but changed my mind because of the «ale.”</p> <p>If this is not proof plain of a benefit allowed by plaintiff to J. G. Thorpe, and that J. G. Thorpe did exercise his powers to ■delay, hinder and defeat other creditors, I don’t know what is. J. G. Thorpe says that he got the $5000 on May 18th, 1873; it was all spent by the following fall, and can’t tell where it went, «except in vague generalities. “ I don’t remember that I mentioned to Mr. Wright about being sued on the Turner bond.” In this he is contradicted by H. T. Wright, Esq., who says J. G. Thorpe mentioned the suit both before and when he drew the mortgages. “I knew the court was to meet in Edgefield in March, and apprehended danger. I gave my brother the mortgage to protect him.”</p> <p>Here J. G. Thorpe in substance contradicts his statement that he did not know judgment was to be rendered against him in March, 1876; he did not Jcnow but apprehended danger. “I did not send this mortgage to be recorded until I heard of the judgment at Edgefield.”</p> <p>Here he contradicts both his other assertions as to knowledge of the judgment.</p> <p>“ I had an understanding that I was to live on the premises and pay rent after the sale.” This alludes to the Aiken property. “ I renewed the $5000 note of my own accord, because I knew of the suit.”</p> <p>H. T. Wright, Esq., says: “ J. G. Thorpe, at both Granite-ville and Johnston’s, told me that he was indebted to his brother, ' and that he wanted to protect him — to fix it so that his brother could be protected; that he did not want his property to go to the Abney suit. Thorpe said his object was not only to protect his brother, but also to protect his property from the Abney suit.” This is too plain for comment. G. W. Croft, Esq., in answer to what J. G. Thorpe said was the conversation between them at the Aiken court in March, 1876, says that J. G. Thorpe told him that “he would make a mortgage and send it to Charleston and have it recorded; and Thorpe is undoubtedly mistaken when he says that he told me he had a mortgage written. I am very positive of this.”</p> <p>This is most important, because the mortgage in dispute purports to have been executed three or four weeks prior to the date of this conversation.</p> <p>This is all the discussion of the law and facts I shall make, and, after a careful and pains-taking consideration of the great mass of testimony, I feel convinced that the $6000 note and the two mortgages given to secure it are pretensive and fraudulent, and that the mortgage, the cause of this action, was intended to delay, hinder and defeat the creditors of J. G. Thorpe, and particularly the judgment in the case of State, ex rel. Carey M. Abney, v. D. L. Turner and J. G. Thorpe. I have grave doubts but that this mortgage was intended only to defeat the Abney judgment, and that plaintiff knew all the facts.</p> <p>I was requested by the attorney of plaintiff to decide as to the validity of the note of 1870 for $1000, given to secure the money said to be borrowed, and which this mortgage was given to secure. I might reply as the court did in the cases of Fryer v.. Bryan, 2 Hill’s Eq. 56; Bickson v. Way, S Rich. Eq. 412, and Borne v. Free, 3 Rich. Eq. 403, that “ a court is not bound to disentangle a web of fraud, to ascertain if any good material be mixed in it;” but I will do as requested, though I am not certain but that my decision will be an obiter dictum.</p> <p>The note must stand, not so much from the evidence in favor of it, but because there has been no strong evidence against it. It has not been successfully impeached.</p> <p>My conclusions of the facts are that the mortgage, the subject of this action, was given to hinder, delay and defraud the creditors of J. Gr. Thorpe, especially the judgment in the case of State, ex rel. Carey M. Abney, v. D. L. Turner and J. G. Thorpe, and that the same is null and void.</p> <p>That the note is valid. My conclusions of law are that said mortgage must be and hereby is set aside and made of no effect,, the same being void because of fraud.</p> <p>That no judgment can be given as to the note, because this action is for foreclosure of the mortgage only. It has no demand for general relief, hence the complaint as to the note must also be dismissed, but without prejudice to the plaintiff’s right to proceed therein in any manner as he may be advised.</p> <p>That the complaint be dismissed, and the costs of this suit to be paid by the defendant, J. G. Thorpe, and the plaintiff, "William Thorpe.</p> <p>The letters referred to are as follows:</p> <p>“Philadelphia, Pa., June 20th, 1874.</p> <p>“Bear Brother: — I have contracting. I want all the money I have loaned paid to me as soon as possible; if I cannot get the money right away, I want it secured by a mortgage of your property. My family is all well, and they send regards to you all. Yours, a faithful brother,</p> <p>“ Wm. Thorpe.”</p> <p>“Graniteville, S. C., July 3d, 1874.</p> <p>“Dear Brother: — Yours of June 20th was duly received and particularly noticed, and in answer will say that I am willing to give a mortgage on all I have got to secure you in the payment of the money I borrowed from you. If I do not sell the two houses at auction this month or fall in Charleston, I will certainly give you a mortgage to secure the payment of the. note for $1000 I gave you in July, 1870. I know I promised to pay it several times before, but Mr. Leitch has tried to sell the two houses so often at auction, and failed to sell them, that I have been disappointed so often and could not help it. I will send you more interest as soon as I can, and you can credit it on the back of the note, as you did the other. I have nothing more of interest to write, only we are all well and hope this may find yon all the same; and with best wishes I remain as ever</p> <p>“Your affectionate brother,</p> <p>“ J. G. Thorpe.”</p> <p>The mortgage in dispute remained in possession of J. G. Thorpe until July, 1876, when he turned it over to D. S. Henderson, Esq., Mr. Henderson having shortly before received a letter from Wm. Thorpe, saying it would be turned over, and instructed that it be foreclosed.</p> <p>To this report of the referee exceptions were filed by the plaintiff as follows:</p> <p>1. That the referee erred in finding as matter of fact that the mortgage, the subject of this action, was given to hinder and delay the creditors of J. G. Thorpe, and especially the judgment in the case of Abney v. Turner, and that the same is null and void.</p> <p>2. That the referee erred in not finding as matter of fact that said mortgage was given as a bona fide preference to a creditor who held a valid, subsisting and meritorious debt.</p> <p>3. That the referee erred in finding, as matter of law, that said mortgage must be set aside and made of no effect, the same being void because of fraud.</p> <p>4. That the referee erred in not finding, as a matter of law, that said mortgage was valid, having found that it was given to secure a valid debt, and that the mortgage was really executed, though the effect of said transfer was to delay, hinder or defeat a creditor, yet the preference is valid in law; and even if the mortgage was given “ for the express purpose of defeating an execution,” yet it is valid, the debt being bona fide.</p> <p>5. That the referee erred, as matter of law, in not giving-judgment against the defendant and in favor of the plaintiff, as against J. G. Thorpe for the debt and costs by default, and as against Abney for the costs of trial; for, no matter what is the prayer, the judgment must conform to the facts proven.</p> <p>6. That said report is in many other respects inconsistent and contrary to the law and the evidence.</p> <p>On the 21st of December, 1877, the exceptions to the report of the referee were heard at Charleston before his Honor Judge Cooke, and on the same day his Honor announced his decision reversing the findings of fact and conclusions of law of the referee, and afterwards, on the 9th day of January, 1878, filed the following decree:</p> <p>This cause came on to be heard before me at Charleston, at the present fall term, upon the report of the special referee, James Aldrich, Esq., to whom had been referred all the issues, the testimony taken by him, the pleadings and the exceptions filed to said report by the plaintiff.</p> <p>The action is for the foreclosure of a mortgage upon the property hereinafter mentioned, found by the referee to be executed on the 17th of February, 1876, by the defendant, J. G. Thorpe, and delivered to the plaintiff. Said mortgage was given to secure a note for $1000, borrowed money, signed by said defendant, J. G. Thorpe, and made payable to the plaintiff. The referee finds, as matter of fact, that the said note is, and was, at the time of the making of the' mortgage, a valid and subsisting-debt, but that the said mortgage was given to hinder and delay the'creditors of J. G. Thorpe, and especially the judgment in the case of State, ex rel. Abney et al., v. Turner and Thorpe, (under which the defendant, Abney, claims title by deed subsequent to the recording of the mortgage, the said judgment also having been filed in Charleston county subsequent to said recording,) and that the same is null and void.</p> <p>The exceptions, taken together, raise two objections to the report: First, that the referee having found that' the debt was valid and subsisting as matter of law, he should have found the mortgage, given to secure said valid debt, valid and binding; and, second, that the referee was not warranted by the weight of the testimony in his finding that the mortgage was given to delay, hinder and defeat the creditors of J. G. Thorpe. After hearing argument from Mr. Henderson in support of the exceptions, and Mr. Croft, contra, and upon full consideration of the case, I am constrained to sustain, said exceptions.</p> <p>The debt being valid and subsisting, and the mortgage, the incident thereof, being fully perfected by signature, delivery and record, it follows, as a matter of law, that the same is valid, and as a preference it could only be vacated in the court of bankruptcy, if contrary to the act of congress in such case made and provided.</p> <p>This disposes of the report, and settles the case in favor of the plaintiff; but, upon a review of the case, I am satisfied that the, referee is wrong in his finding of fact that the mortgage is fraudulent, null and void, and said finding is set aside as contrary to the testimony.</p> <p>It is therefore ordered and adjudged that the said exceptions, as above set forth, be sustained, and the said report, as above indicated, be, and the same is hereby set' aside, with costs for the plaintiff, to be taxed by the clerk — the plaintiff’s costs, as allowed by law, to be paid out of the sale of the property; the defendant, John R. Abney, the answering and contesting defendant, to pay the referee’s fee and all other costs of the action.</p> <p>In furtherance of this decree, it is adjudged that the mortgaged premises described in the complaint be sold at public auction in the county of Charleston, by the sheriff of said county, upon the following terms, for cash: said sale to be on sale-day, in February next, or some convenient sale-day thereafter, after due legal notice; that the said sheriff execute to the purchaser or purchasers a deed of the premises sold; that, out of the moneys arising from said sale, after deducting the amount of his fees and expenses on such sale, the said sheriff do pay to the plaintiff or his attorney the sum of $1432.60 now due on said note, and dollars for plaintiff’s costs, (the clerk authorized to fill said blank,) with interest on $1432.60 from this date; that he hold the surplus money, if any there should be, subject to the further order of this court; that he make a report of such sale to this court at its next sitting; that, should there be deficiency as shown by said report, that the defendant, J. G. Thorpe, pay the same to the plaintiff, leave being hereby given for issuance of execution therefor.</p> <p>It is further ordered and adjudged that the defendants, and all persons claiming under them, be forever barred and foreclosed of all right, title, interest and equity of redemption in said mortgaged premises so sold, or any part thereof.</p> <p>The following is a description of the mortgaged premises :</p> <p>[Then follows a description of the premises.]</p> <p>Thompson H. Cooke.</p> <p>Charleston, S. C., December 21st, 1877.</p> <p>On the 16th of January, the defendant, Abney, served the following exceptions to the decision of Judge Cooke, to wit:</p> <p>Take notice, that the defendant, J. R. Abney, excepts to the decision of his Honor Judge Cooke herein, filed on the 9th day of January, 1878, and will move the Supreme Court to reverse said decision on the following grounds, to wit:</p> <p>1. That his Honor the presiding judge had no jurisdiction to hear exceptions to the report of the referee herein, and his decree is therefore null and void.</p> <p>2. Because his Honor erred in holding as a matter of fact that the mortgage was not given with the fraudulent intention of defeating the judgment in the case of State, ex rel. Carey M. Abney et al., v. D. L. Ikirner et al.</p> <p>3. Because his Honor erred in not sustaining the conclusions of fact as found by the referee, adjudging the mortgage mentioned in the complaint to have been given mala fide, and with the fraudulent intention to hinder and delay the claims of the creditors of J. G. Thorpe, and particularly the judgment in the case of State, ex rel. Carey M. Abney et al., v. D. L. Tv/rner et al.</p> <p>4. Because his Honor held that, inasmuch as the referee found the note valid, it followed as a matter of law that the mortgage was also valid, for it is respectfully submitted that such ruling is not the law, but is in direct conflict to the adjudicated cases in ■this state.</p> <p>5. Because the decree of his Honor the presiding judge is against the evidence, and contrary to law.</p> <p>1. If the debt is valid, does it follow, as a matter of law, that the mortgage is valid and bona fide ; or, may not the mortgage be made mala fide and with the fraudulent intent of hindering .and defeating the right of a creditor, notwithstanding the debt intended to be secured is valid, and therefore null and void? Bump on Fraud. Con. 197, 483; 4 S. C. 257; 2 Bail. 324; Rich. Eq. Cas. 410; 9 Rich. 106.</p> <p>2. It is contended that the referee’s conclusion as to the facts is the same-as the verdict of a jury, and his findings must stand ■unless they are clearly against the weight of evidence. Code, § 296; 6 8. C. 312.</p> <p>3. The evidence before the referee was sufficient to support his findings of fact. They disclosed several badges of fraud. Bump on Fraud. Con. 43-57, 202, 203; 1 Hill 16; 10 Rich. 72; Rich. Eq. Cas. 4,10,122; 2 Bail. 328. His conclusions should be sustained. 6 8. C. 140, 310.</p> <p>As to first exception, see Code, § 296. As to fourth exception, -see Rice Eq. 78; 10 Rich. Eq. 413. The security may be void when debt is valid, but only when the facts show an intention of aiding the common debtor. Rich. Eq. Cas. 410; 9 Rich. 110; Bump on Fraud. Con. 186. The facts do not sustain referee’s conclusion of law, and the Circuit judge properly overruled the finding. 5 8. C. 142; 4 8. C. 249; 2 Hill Ch. 32; Bump on Fraud. Con. 563. And this reversal should stand, notwithstanding the rule laid down in 6 8. C. 140; 6 8. C. 90, 379.</p> <p>The Circuit judge had no power to reverse the referee’s report. ■See Code, § 296, as interpreted in 41 How. Pr. 11. Objection to jurisdiction never comes too late. Code, § 171.</p>

Before Kershaw, J., at Spartanburg, March, 1878. Thomas Farrow died, leaving a last will and testament. The only question arising thereunder is as to the construction of so much thereof as is stated in the opinion of this court.

<p>1. In an action by a principal against bis agent, charging violations of a parol contract, the plaintiff, without objection from defendant, introduced in evidence a bond executed by such agent prior to the alleged breaches, conditioned for the faithful performance of his duties as such agenq Held, that the defendant had waived the right to make afterwards the objection that there was a variance between the pleadings and the facts proven. McIver, A. J., dissenting. „</p> <p>2. A referee may, after the hearing before him, permit the plaintiff to amend the complaint, for the purpose of conforming the pleadings to the facts proven. In this case, such amendment .was not necessary. McIver, A. J., dissenting, and holding further that, even if amendment was proper; the defendant should have had opportunity to answer.</p>

Before Aldrich, J., at Laurens, February, 1879. This was am indictment for grand larceny. The goods stolen' were a silk dress and other articles of ladies’ clothing, laid in the indictment as the property of John T. Duncan. The silk dress was bought by John T. Duncan for his first wife, who died in 1855; the other articles were purchased by him for his present-wife. The goods were stolen July 21st, 1878. Verdict — guilty. Defendant appealed.

Before Townsend, J., at Marion, July, 1877. This was an action instituted by M. S. McIntyre (formerly McClenaghan), the widow of John C. McClenaghan and executrix of his will, for a settlement of his estate. John C. Mc-Clenaghan, during his lifetime, was an attorney-at-law, and a member of the law firm of McClenaghan & Fairlee. Under the assignment of Dillon & Buss, Caldwell & Bobinson were preferred creditors.

Before Couet oe Claims, May, 1879. In the constitution adopted for South Carolina in 1868, under the authority of the acts of congress generally called the reconstruction acts, the… Held: but it is enough to refer to but a single other, and that is the case of Wagner v. Stoll et at., from this state., in which the Supreme Court of the United States has made a like decision, touching a like provision in the charter of the bank of the State of South Carolina. 17 Wall. 425.

<p>Beforé Wallace, J., Charleston, March, 1878.</p> <p>For the previous history of these cases in this court, see, in the following order, 5 S. O. 182, 8 8. G. 207, 6 8. G. 307, and 10 8. G. 406.</p> <p>These cases having been referred to William Alston Pringle, Esq., as special referee, he filed his report, in which he fully states all the questions of fact involved, and thoroughly discusses the points of law arising thereunder. The following are his conclusions of fact upon the matters determined by this court:</p> <p>The Charleston and Savannah Railroad Company was incorporated by an act of the general assembly of the State of South Carolina, ratified on the 20th of December, A. D. 1853. 12 Stat 271. On the 20th of December, A. D. 1856, (12 Stat. 543), the legislature passed an act, of which the following is a copy. [The act is fully set out in the opinion of the court, and is therefore omitted here.]</p> <p>Under this act the company issued six per cent, coupon bonds to the amount of $505,000, which were guaranteed by the state, according to the provisions of the act, of which guaranty the following is a copy:</p> <p>The provisions of the act of assembly, passed December 19th, 1856, having been complied with by virtue of the authority therein contained, the full and complete payment of this bond is guaranteed by the State of South Carolina, and the faith and funds of the said state are hereby pledged to secure the payment of the principal thereof, and of the installments of interest due or to become due thereon.</p> <p>(Signed) T. J. Pickens,</p> <p> Comptroller-General. </p> <p>On' January 1st, 1858, the company conveyed to I. W. Hayne, Edward Sebring and E. M. Beach, trustees, in trust to secure the payment of seven per cent, interest-bearing bonds, to the amount of $1,000,000, about to be issued, all its then present and future to be acquired property, and all franchises, rights and privileges of the said company, of, in, to or concerning the same. The said bonds were issued and sold to a large amount.</p> <p>By an act of the general assembly, approved December 21st, 1865, (13 Stat. 368), the state authorized the company to borrow the sum of $500,000 upon a first mortgage of the property of the company, and for this purpose the state postponed the lien of the act of 1856, and directed that it should be a second lien on the said property of the company; provided that the holders of the endorsed bonds of said company, and the judgment creditors of said company, consent and agree, in writing, that their bonds and judgment be postponed, and become liens on said road next after the state lien. • But the plan of effecting a loan under this act failed from a number of causes.</p> <p>By the result of the war. the company was reduced to insolvency, the road broken up, the bridges destroyed, great part of the iron was carried off and lost, and the road was no longer capable of being used.</p> <p>• Under these circumstances the trustees, under the deed of January, 1858, at the suggestion of a number of the creditors representing bonds to the amount of $604,000, secured by that mortgage, proceeded, by virtue of the powers contained in the deed, to foreclose, and on the 20th of November, 1866; the mortgaged premises were sold, subject, nevertheless, to the lien created by the act of assembly of 1856. The advertisement under which the road was sold, stated that the bonds secured by that lien amounted in all to the sum of $505,000, bearing interest at six per centum per annum, payable semi-annually, and having an arrear of interest due and unpaid of about $140,000, and that the principal of the said bonds was due on March 1st, A. D. 1877. At the sale the road, subject to the above-mentioned lien, was purchased by G. W. Williams and others, for themselves and as trustees for their associates, for the sum of $30,000.</p> <p>On December 21st, 1866, (13 Stab. 438), an act was passed to incorporate the Savannah and Charleston Eailroad Company. This act, after reciting the charter previously granted to the Charleston and Savannah Eailroad Company, the lien created by the act of 1856 to secure the payment of the bonds of the Charleston and Savannah Eailroad Company, the mortgage to I. W. Hayne and others, the insolvency of the company and the foreclosure of the said mortgage, and purchase, by George W. Williams and others, for the use of the holders of the said bonds, granted a new charter to the said purchasers and their associates, by the name of the Savannah and Charleston Eailroad Company, with all the usual powers and privileges of railroad companies. The twentieth section of the act expressly provides, “that the company hereby formed shall assume and be held liable for the payment of the six per cent, interest-bearing bonds whereon the guaranty of the state has been endorsed, and the lien of the state is, in-every respect, preserved and hereby reaffirmed.”</p> <p>On January -29th, 1867, by a decree entered in the suit of Charleston and Savannah It. JR. Co. v. Hayne et al., trustees, et al., which was a suit originally instituted to enjoin the sale of the road by the trustees, under the mortgage of 1858, the sale by the said trustees was confirmed, and it was ordered inter alia, that the said trustees should execute and deliver to the new corporation, the Savannah and Charleston Railroad Company, upon their paying and securing the purchase money in the manner therein directed and required, a conveyance of the mortgaged premises, advertised and sold on November 20th, 1866.</p> <p>The new company was duly organized, took possession of the road, and endeavored to reconstruct the same. They attempted to borrow money for that purpose, but the lien of the act of 1856 defeated such attempt.</p> <p>The condition of the road in 1869 is thus described by Mr. C. S. Gadsden, the engineer and superintendent of the road, Mr. Fisher, the treasurer of the road, and Mr. Campbell, whose evidence accompanies this report.</p> <p>The road was in operation in May, 1869, to Coosawhatchie; the remainder of the road, some forty or forty-one miles, was destroyed, that is, all wooden structures, including bridges, were destroyed or useless, half of the iron of the road, for the forty or forty-one miles, was gone, having been carried away either prior to the evacuation of the line or subsequently. The road, beyond Coosawhatchie, was unproductive; the company had no means by Avhich they could make up that portion of the road, without resources outside of' the means of the road. At that time it would not have been practicable to make those forty miles available — the only means of raising money Avas by postponement of the prior lien. The road was first reconstructed as far as Salkehatchie, with money obtained from the hire of all the rolling stock to the South Carolina Railroad Company, for from $8000 to $12,000 per month, on a lease Avhich ended in August, 1866,- and as far as Coosawhatchie by iron, or the sale of iron, taken from the rest of the road beyond that point. The road rested at Coosawhatchie for more than a year, from the close of 1867, till May, 1869. The trains ran to Coosawhatchie as soon as the road was completed to that point. The country was broken up and the road made no earnings, except from local traffic, and had no surplus over expenses. The estimated value of the rolling stock at the close of the war was $94,450. Under these circumstances the company had no other means of repairing the road than by a loan, but they were unable to effect this as long as the lien created by the act of 1856, in' favor of the state, was the prior lien. The company, therefore, in 1869, presented a memorial to the legislature; setting forth a statement of the condition of the road, and praying that the state should consent that the company may secure, by a mortgage, to take priority of the state statutory lien, a new loan of $500,000, if so much should be necessary to rebuild and complete the road in the first place; and then, secondly, to pay off the arrears of interest now due on the six per cent, bonds guaranteed by the state.</p> <p>The legislature referred this memorial to the attorney-general for his opinion as to the right of the state to postpone her lien and subordinate it to the mortgage, to be executed as prayed for by the memorial.</p> <p>The attorney-general gave his opinion that the state had a right so to postpone the lien of the act of 1856.</p> <p>Whereupon the legislature, on March 2d, 1869, (14 Stat. 201,) passed an act entitled “An act to enable the Savannah and Charleston Eailroad Company to complete their road.” The act is as follows:</p> <p>“An act to enable the Savannah and Charleston Eailroad Company to complete their road.</p> <p>“Section 1. Be it enacted by the senate and house of representatives of the State of South Carolina, now met and sitting in general assembly, and by the authority of the same, That the Savannah and Charleston Eailroad Company is authorized and empowered to borrow and raise the sum of not more than five hundred thousand dollars, to be used in extending and rebuilding their road, under the provisions of their charter.</p> <p>“ Sec. 2. That for this purpose the said company is hereby authorized and empowered to issue bonds to the amount of not-more than five hundred thousand dollars, payable twenty years, after the date thereof, with coupons attached for interest, at the rate of seven per cent, per annum, payable semi-annually.</p> <p>“ Sec. 3. That the said company is hereby further authorized and required to fund and redeem the coupons for interest of the bonds of the Charleston and Savannah Eailroad Company,, guaranteed by the state, now past due, and that may fall due on -or before the first day of September, eighteen hundred and sixty-nine, by issuing therefor an equal amount of their bonds, with coupons attached, with interest payable semi-annually, at the rate of seven per cent, per annum, and the principal to become due in twenty years after the date thereof; and the payment of the said bonds, so to be issued in substitution for interest coupons, shall be guaranteed by the state in the same manner, and as fully as the said original bonds of the Charleston and Savannah Eailroad Company are now guaranteed, subject, however, to the provisions of Section 6 of this act.</p> <p>“Sec. 4. The bonds hereinbefore authorized for rebuilding said road shall be used exclusively for the building thereof and the outfit of the same. No salary shall be paid to any officer of the said road out of the funds so raised by this act.</p> <p>“ Sec. 5. The said railroad company shall deposit the interest on all their aforesaid bonds, as it becomes due, with the financial agent of the State of South Carolina in the city of New York, and shall notify the creditors of the same by public advertisement in one newspaper in New York, one in Charleston, and one in Savannah; and if said company shall fail to pay the interest on its debt within six months after it shall have become due, or fail to pay or provide for the payment of the principal of its debt within six months after it shall have become due, it shall be the duty of the comptroller-general of the state, and he shall have the power to take immediate possession of said road, with all its appurtenances, and lease the same to responsible parties, who shall have control thereof until the general assembly shall, by law, provide for the settlement of the affairs of said company in the interest of all its creditors. The governor of the state is hereby authorized and empowered to appoint two directors to represent the state in the direction of said company.</p> <p>“ Sec. 6. That the present lien of the State of South Carolina on said road shall, upon the issue of the bonds provided for in and by the first section of this act, be postponed and become a second lien; which said second lien shall extend over and cover the whole road, its outfit and real estate, as fully as is already provided for by law. The said road shall be completed by the first day of January, eighteen hundred and seventy.</p> <p>“ Sec. 7. This act shall not be of force until the said Savannah and Charleston Railroad Company consent to the amendment of their charter, so that the property of said corporation shall be subject to taxation in conformity with Section 2 of Article XII. of the constitution, and said consent be certified, under the seal of said company, to the comptroller-general and secretary of state. Upon the filing of said consent the said .charter shall be deemed and held to be modified in conformity with said section of the constitution; provided, that no tax shall be assessed or levied upon said road until the same shall have been completed.”</p> <p>On July 1st, 1869, the Savannah and Charleston Railroad Company issued bonds to the amount of $500,000, under a mortgage to William Aiken, James Robb and G. W. Williams, as trustees, which recited the act of March 2d, 1869, and represented that it was a first mortgage on all the present and future-to-be-acquired property of the said company, not including, however, the chartered franchises, powers and privileges of the said company. This mortgage was duly recorded.</p> <p>It is in evidence that the application to the legislature for a postponement of the state lien was publicly discussed in the newspapers, and was generally known.</p> <p>The bonds issued under the mortgage of July 1st, 1869,-were negotiated with the contractors who rebuilt the road, and for other purposes connected with renewing the road.</p> <p>Besides these bonds the company, under the provisions of the third section of the act of March 2d, 1869, issued another class of bonds, to the amount of , for funding and redeeming the coupons for interest of the bonds of the Charleston and Savannah Railroad Company, which fell due before September 1st, 1869. These bonds were guaranteed by the state, and were declared subject to the provisions of the sixth section of the act of 1869, which postponed the lien of the act of 1856, and declared that that lien should be a second lien on the road.</p> <p>The shareholders of the Savannah and Charleston Railroad Company, at their annual meeting, held on the 8th day of February, 1871, authorized and directed the directors to issue bonds of the company to the amount of $300,000, payable twenty years after their date, with interest, payable semi-annually, at the rate of eight per centum per annum.</p> <p>The directors accordingly issued the said bonds, secured by a mortgage to Andrew Simonds, H. H. De Leon and E. Bates, of all the property of the company, its estate, rights, privileges and franchises in this state and Georgia, according to and under the sixth section of the charter of the company. The mortgage deed is dated March 21st, 1871, and is duly recorded.</p> <p>As to the claims of the estate of G. A. Trenholm and Rev. W. T. Potter.</p> <p>On March 14th, 1858, the Charleston and Savannah Railroad Company purchased from Nathaniel Heyward a tract of land called White Hall, together Avith adjoining tracts situated in St. Bartholomew’s parish, containing in all eight hundred and twenty-two acres. Through the land thus purchased the Charleston and Savannah Railroad Company laid out their track and constructed their road, and the track thus laid out is the same now in the possession of and used by the Savannah and Charleston Railroad Company. In payment of this purchase, the Charleston and Savannah Railroad Company delivered to Mr. Heyward its four separate bonds, three of which were for the payment of $5000 each, and one for the payment of $4800.</p> <p>And, to secure the payment of these bonds, the company mortgaged to Mr. Heyward the lands thus purchased from him. By subsequent assignments, the said bonds passed into the hands of G. A. Trenholm and the Rev. W. T. Potter. On August 14th, 1866, proceedings were commenced against the Charleston and Savannah Railroad Company in the Court of Equity, for the foreclosure of the mortgage by which the bonds were secured.</p> <p>On November 20th, 1866, all the property of the Charleston and Savannah Railroad Company was sold, and subsequently all of the said property was conveyed to the new company, the Savannah and Charleston Railroad Company. The new company were not made parties to the proceedings commenced against the old company for the foreclosure of the mortgage on the White Hall tract. But on June 17th, 1875, G. A; Trenholm and the Rev. W. T. Potter, the assignees of the bonds secured by the mortgage of White Hall, intervened by petition in the case of D. Hand v. Savannah and Charleston Railroad Company, setting up the mortgage and reciting the proceedings which had been taken, and which had ended in a decree for foreclosure and sale.</p> <p>As to the claim of the state for taxes.</p> <p>The sixth section of the act of March 2d, 1869, concludes as follows: The said road shall be completed by January 1st, 1870. The seventh section of the same act concludes as follows: “ Provided, that no tax shall be assessed or levied upon the said road until the same shall have been completed.”</p> <p>In the opinion of Mr. Gadsden, the engineer of the road, and of Mr. Campbell, the road has never been completed; the connection with Savannah not being on its own track, the road cannot transport freight and passengers from city to city on its own track.</p> <p>There is a satisfactory connection with Savannah at the Georgia end, but that connection does not belong to the road; the length of the road from the western bank of the Ashley river to the crossing of the Central Eailroad of Georgia, is one hundred and one miles. A bridge across Ashley river was always contemplated.</p> <p>The first plan was to cross Ashley river at Bee’s ferry, and afterwards it was proposed to cross at other points. The road has not yet been completed at either end. The plans and estimates of the company and engineers contemplated a starting from this side of Ashley river, the eastern side, with a bridge over the river. The road has never entered Savannah on its oavii track. The terminus of the track of the road is three miles from Savannah. There are many estimates for a bridge over the Ashley.</p> <p>On the part of the state the following facts were submitted:</p> <p>The Charleston and Savannah Eailroad, as originally projected, contemplated a bridge across the Ashley river on the west side of the city of Charleston. The line on which the road was finally built strikes the western bank of the river (which is there about one quarter of a mile wide) at a point just opposite the city itself. The depot, or place for receiving and delivering freight and passengers, was placed on the other side of the river (the eastern) within the limits of the city, and nearly exactly opposite the terminus of the road, on the western bank. The road bed and track were finished and in condition for transporting freight aud passengers before the bridge across the Ashley was constructed. The road, as then built, extended from the point mentioned on the western bank of the Ashley to a point a little more than three miles from the city of Savannah, where it met the line of the Central railroad. Beyond this point the Charleston and Savannah railroad never built any road bed or track. By an arrangement with the Central railroad they used the track and depot of the latter in common, and the Charleston and Savannah railroad ran their trains over this track to the depot, at a point within the corporate limits of Savannah. No bridge across the Ashley ever was built by the Charleston and Savannah Eailroad Company. A bridge across the river was built shortly prior to the war by a company called the Charleston Bridge Company, at a point above the line of the Charleston and Savannah railroad.</p> <p>At the beginning of the war the Charleston Bridge Company allowed the railroad to lay a track upon their bridge across the river, but the road itself never either owned or built the bridge.</p> <p>The Charleston and Savannah railroad was in operation for some time before the bridge across the Ashley was built. Passengers and freight were carried to and fro over the railroad, and delivered and received at the depots already mentioned in Charleston and Savannah. The transportation over the Ashley river was effected in boats provided by the company and belonging to it, without any charge additional to the regular fare and freight over the road.</p> <p>The track of the road, as laid over the bridge of the Charleston Bridge Company, ran continuously from the west bank of the river across the river on the bridge, and to the depot within the limits of Charleston.</p> <p>This bridge across the Ashley, and a great part of the railroad itself, were destroyed during the late war, and the Charleston and Savannah railroad was sold soon after the close of the war, and purchased by certain persons who were afterwards incorporated as the Savannah and Charleston Eailroad Company.</p> <p>The bridge across the Ashley has never been rebuilt.</p> <p>The road now is, and has been since-March, 1870, in working order, and engaged in the transportation of freight and passengers between Charleston and Savannah.</p> <p>The railroad company receives and delivers its freight and passengers at its depot in Charleston. - The transportation across the river is effected under the care, responsibility and supervision of the Savannah and Charleston Railroad Company, in a large steamboat, the property of the company.</p> <p>The passengers and freight are placed in the cars of the company on the western bank of the river, and in them transported to a point within the limits of the city of Savannah. In like manner, freight and passengers from Savannah to Charleston are received in Savannah, transported over the road to the end of the track, on the west bank of the Ashley, taken across the river in the company’s steamer, and delivered at the depot in Charleston. The railroad company has, from time to time, advertised for through freight and travel, claiming that its connections were complete and its communications thorough.</p> <p>Up to the year 1875, the arrangements with the Central railroad continued, the Savannah and Charleston railroad using the track and depot of the former. In that year a rupture occurred, owing to an alleged failure on the part of the Savannah and Charleston railroad to meet its engagements, and pay its rent for the use of the track and depot of the Central railroad.</p> <p>Since that time a connecting line or track has been built from a point just across the point where the Savannah and Charleston railroad meets the Central railroad, to a point within or near the limits of Savannah,, connecting with the line of the Atlantic and Gulf railroad; and this line is now rented by the Savannah and Charleston Railroad Company, who now make use of it for the transportation of freight and passengers. The road bed and track is not the property of the Savannah and Charleston Railroad Company.</p> <p>The State of South Carolina, claiming that taxes were due from the Savannah and Charleston Railroad Company, has levied the following sums upon the road as taxes so due: * * * *</p> <p>A bill was filed in the United States Circuit Court for the District of South Carolina, in March, 1872, by George N. Miller, a stockholder of the railroad, to enjoin the collection of these taxes. The injunction was refused and the bill dismissed. From the decree of the Circuit Court an appeal has been made to the Supreme Court, and the case is now on the docket.</p> <p>The referee’s conclusions of law were that the lien created by the act of 1856 was not merely for the indemnity of the state, but attached to the bonds themselves, and was a part of the ■contract with the bondholders; that in the fifth section of this' act the state did not reserve any right to interfere with this lien; that the condition of the road could not authorize the state to postpone this lien; that the holders of 1856 bonds were not •estopped from asserting their lien, because of their failure to ■object to the mortgage of 1869 and the sale of bonds thereunder; that the holders of the guaranteed redemption bonds issued under the third section of the act of 1869, by accepting these bonds, have accepted, as to them, the provisions of the act of 1869; that the claims of Trenholm and Potter are a first lien on the land described in the mortgage to Heyward; and that ■the consent of the railroad company to surrender its exemption from taxation, being in- consideration of the postponement of the lien of the act of 1856, which was beyond the power of the legislature and inoperative, that the state was not entitled to her taxes. The report concludes as follows:</p> <p>“Since writing the report I have been, on July 3d, 1877, served with the copy of a suggestion that the state retires as a party to these proceedings in all’questions, except that in relation to the liability of the company for taxes. But if the principles of the report are correct, the retirement of the state will not affect the rights and relations of the other parties to the .several actions.”</p> <p>SUGGESTIONS OE ATTORNEY-GENERAL.</p> <p>And now comes the State of South Carolina, by James Conner, the attorney-general, and gives the court to understand and be informed that the act entitled “An act to protect the interest of state whenever payment of interest now due remains unpaid on bonds issued by any railroad company, and whenever the guaranty of state is endorsed,” approved March 7th, 1871, under and by virtue of which proceedings were filed on the day of , 187 , by the attorney-general of the state, against the Savannah and Charleston Eailroad Company, (In re Hand v. Savannah and Charleston Railroad Company,) has been repealed by act of the general assembly, approved the 23d day of May, 1877, and that the State of South Carolina is no longer a party to the proceedings in the above-entitled cause, or bound thereby, or by the judgment in the said cause, except so-far as regards the claim for taxes due the state by said Savannah and Charleston Eailroad Company, made and filed in the above-entitled cause.</p> <p>Jambs Conner, Attorney- General.</p> <p>To this report voluminous exceptions were taken by several parties before the court. Upon the report and exceptions, his Honor Judge "Wallace rendered the following</p> <p>DECREE.</p> <p>On hearing the report of W. Alston Pringle, the referee herein, and the argument of counsel, it is ordered that the report b.e confirmed and stand as the judgment of this court, except as will be herein specifically mentioned. In the judgment of this court, the lien created by the act of 1856 is vested in the state for the benefit of the holders of those bonds and coupons issued by the Charleston and Savannah Eailroad Company, and guaranteed by the state according to the terms of that act, and for the payment of these bonds and coupons. It will not be necessary to inquire how far and in what manner this court might proceed to execute the trust so created, éven if the state were not a party to these proceedings. According to the suggestions filed by the'attorney-general, the state is a party, at least, as to all questions relating to the liability of the company for taxes and the lien for the same claimed by the state.</p> <p>Neither will it be necessary to inquire how far the state may be a party for one purpose and not for other purposes.</p> <p>In this case the state is a party seeking the enforcement of a lien upon the property of a company, confessedly insolvent, for taxes, the payment of which cannot be had without a sale of the mortgaged property.</p> <p>The state, therefore, must be considered as a party seeking a sale of the road and other property under the decree of this court, and is a party to this action in such manner and to such an extent as to be bound by the' title to be given to the purchaser under its order of sale.</p> <p>On account of the fact that more than half a million of dollars is represented by each class of the bonds which are respectively claimed to be the first lien, it is probable that no outside purchaser will be found, and it will become necessary for the bondholders to protect their respective interests at the sale.</p> <p>How can this be done intelligently and effectively by either class of bondholders, unless the question of the priority of their claims has been finally adjudicated by the court of last resort? A part of the road lies in the State of Georgia.</p> <p>It is not necessary at this time to inquire how much of the property of the company this court cair order to be sold. It is sufficient to consider that such a question would cast a cloud upon the title at the sale, and that it is for the interest of all concerned that, when sold, the entire road and all the property of the company should be sold with a clear and unquestioned title to the purchaser.</p> <p>It is to be presumed that the necessary proceedings will be instituted in the court of the State of Georgia for the adjudication of the rights of parties in the portion of the road lying in that state; and that by the comity of the respective courts, or by the agreement of parties, a time of sale, assented to in each jurisdiction, will be eventually fixed upon.</p> <p>It is therefore ordered and decreed that all the property of the Savannah and Charleston Eailroad Company included and described in the several deeds and mortgages proved in this case, and all the property of which the said company is seized and possessed, be sold by W. D. Porter, master, at such time and upon such terms and conditions as may hereafter be directed by the further order of this court.</p> <p>It is further ordered that the Savannah and Charleston Eailroad Company, and all the parties to these proceedings, and all persons claiming under them, or either of them, be forever barred and foreclosed of all right, title, interest and equity of redemption in the mortgaged premises so sold.</p> <p>And it is further ordered that out of the proceeds of sale the liens be paid by the said master, in the order and for the amounts (when amounts are set down) recommended in the report of the referee, except as to the claims of W. D. Gillison, Thomas H. Gregorie, the heirs or devisees of Thomas W. Gillison and Frederick R. Blake, in relation to which claims an order in the cause has been signed, bearing date April 24th, 1878, based upon a compromise of said claims by the parties thereto.</p> <p>It is further ordered that if, after paying the liens according to the orders herein established, there should be a balance in the hands of the said master, the same be held subject to the further order of this court.</p> <p>It is further ordered that all the parties to these proceedings have leave to apply at the foot of this decree for all necessary papers.</p> <p>From this decree appeals were taken by the several parties' against whose interests it operated; the grounds whereof will appear from the opinion of the court.</p>

<p>Before Pressley, J., Richland, November, 1878.</p> <p>The nature of this action and the terms of the act of March 13th, 1872, (15 Stat. 220,) construed by the court, are sufficiently stated in the opinion of the Chief Justice. The facts connected with the loan of $75,000 by J. L. Neagle, which preceded the passage of this act, are set forth in the Circuit decree.</p> <p>John Alexander was mayor of Columbia from April, 1870, to April; 1874. Holders of bonds issued under the authority of the act of March 13th, 1872, were parties defendant to this cause. The bonds issued under this act are called city hall bonds. They were first put up for sale at auction in the city of Columbia on June 19th, 1872, all the advertisements required by the act having been duly made. At this sale $100,000 in bonds were sold, of which C. Waring bought $10,000 in bonds, and he paid for them in claims then held against the city for work upon the city hall, and the remaining $90,000 were bid in by John Alexander for the city, under instructions from the city council not to let them go for less than a limit which exceeded the sum bid. It was then announced that the sale was adjourned to October 2d, 1872. The second sale was advertised in the Columbia and Augusta, and possibly the Charleston papers. At the second sale $50,000 in bonds were sold, some of which were bid in by third parties, and the remainder were bid in for the city. One of the purchasers at this sale was the Central National Bank, which held a note of the city for money borrowed in June, 1872, and the price of the bonds was applied in payment of this note. Public notice was then and there given that the sale was adjourned over to December 2d, 1872. The third sale was advertised to the same extent as was the second. At the third sale $100,000 in bonds were sold and were all bid in for the city.</p> <p>The bonds bid in by the city were disposed of afterwards by the corporate authorities by private negotiation. Some were sold directly to purchasers, others were deposited as collateral security to secure loans made by the city, and on default of payment, some of them were placed on market and sold. Of the bonds bid in by Alexander, he retained $750 for a debt due to himself by the city. Alexander, and other defendants who were holders of city hall bonds, did not answer in this action.</p> <p>This statement, together with the Circuit decree, the grounds of appeal, the opinion of the court and the dissenting opinion, fully presents the case.</p> <p>The Circuit decree is as follows:</p> <p>The city of Columbia is oppressed with a heavy burden of debt, and the relators seek in this case to relieve her from a portion thereof. They allege that her bonds, amounting to $250,-000, issued by authority of the act of March, 1872, are void and should be canceled. In the issue of said bonds important provisions of the said act were disregarded, as following, to wit:</p> <p>First. That before such issue certain other bonds previously issued were not recalled and canceled, as required by the first section of said act.</p> <p>Second. That the bonds issued under the act were not advertised and negotiated “ by public sale,” as its third section required.</p> <p>Third. That, contrary to the sixth section of said act, much of the proceeds of said bonds was wastefully and fraudulently used for the current expenses of said city.</p> <p>Fourth. That “ an accurate abstract” of the said act was not, as required by its eighth section, printed on the back of the said bonds.</p> <p>The first of the said allegations has reference to a fraudulent contract, which, before the passage of the said act, had been made between J. M. Allen and the city council of Columbia for building a new city hall. After that contract had been executed, the city council, under pretence of raising money for that purpose, borrowed from J. L. Neagle the sum of $75,000, and, as security for the same, pledged to him its bonds, amounting to $250,000. These bonds so pledged were, by the said act of March, 1872, to be recalled and canceled before the issue of the new bonds therein authorized, and this requirement was not performed according to its letter. The new bonds were issued and sold at public sale on June 19th, October 2d and December 2d, 1872, but the old bonds were not in possession of the city council until November 28th, and were not canceled in fact until December 8th, 1872. If, therefore, the. first section of the said act be construed literally, its mandate was not complied with in the said issue.</p> <p>But previous to the said issue, very soon after the passage of the act, the city council had borrowed money from B. K. Scott and the Carolina National Bank, and had paid to J. L. Neagle the debt for which the old bonds were pledged. All that time the understanding with B. K. Scott and the bank was that these pledged bonds should remain as security for the new loan until bonds of the new issue could be prepared to replace them. Under this agreement the old bonds were subsequently redeemed and canceled on December 8th, 1872.</p> <p>I hold that the said arrangement and its completion was a substantial compliance with the said act; the first and sixth sections must be construed together and so as not to contradict each other. If they be construed separately and literally, then the first section would require that the old bonds be canceled before the new be issued, whilst the sixth section would require a sale of new bonds in order that the proceeds might redeem the old bonds by paying the debt for which they stood pledged. Here, then, by construing the two sections separately, according to their letter, would be two priorities, each demanding precedence of the other, and that would be impossible. I therefore find it necessary to harmonize them by looking to the spirit and purpose of the act, and there its meaning seems to be that, before the new bonds be issued, some certain and positive arrangement was to .be effected whereby to recall and cancel the old bonds, and so make it certain that the city should not, in any case, be liable at the same time for both issues. That arrangement having been made and successfully completed, it accomplished the full purpose of both sections of the act; it paid the debt previously contracted for the said city hall, as required by the sixth section of the act, and canceled the pledged bonds, as required by the first section. When that was done, the whole transaction, “nuncpro tunc,” assumed the date of the contract which accomplished it, and the intent and spirit of the act was complied with.</p> <p>2. As to the requirement that the said bonds should be negotiated only by “ public sale,” that, also, seems to me to have been substantially complied with. They were duly offered at public sale, but, to prevent needless and ruinous sacrifice, a limit as to the price they must sell for was fixed by the city council, and such bonds as were not bid for at that price were bid in by the mayor of the city, who afterwards, for its benefit, sold them at private sale. The testimony herein proves this to have been a wise plan; it most certainly obtained a higher price for the said bonds than unlimited public sale would have reached. It is, therefore, the case of an agent authorized and directed to sell only at public sale who voluntarily incurs personal risk by bidding in the property so sold. If he afterwards sell it at a less price, he himself must pay the loss; but if he make profit by such subsequent sale and allow the benefit thereof to his principal, his conduct in that respect will not be unlawful or invalid, and a principal could rarely be found who would refuse to ratify such act of his agent.</p> <p>But even if the sale of the said bonds were not according to the requirements of the said act, it could not now be impeached; its performance was entrusted to the city council, which, by its recital on the said bonds, states that they were issued by a “ public sale thereof,” and that recital is, under the law, a sufficient protection to any purchaser for value.</p> <p>3. As to the allegation that the proceeds of the said bonds, contrary to the sixth section of the act, were applied to the current expenses of the city, it is not, to any material extent, sustained by the testimony offered in this case. Previous to the passage of the act the $75,000 which had been borrowed, under pretence of building therewith the city hall, had been recklessly squandered; only $12,000 of it can be pretended to have been paid on account of the said building, and yet not so much as $2000 of it remained in the city treasury when the act was passed. But that wasteful expenditure was cured by the act. Its sixth section expressly directs that debt to be paid out of the proceeds of the bonds therein authorized. The provision of that section cannot be supposed to refer to any debt other than the $75,000 due to Neagle, because the city had not, up to that time, contracted any other debt which could be designated as one “ heretofore contracted for the construction of the new city hall and the new market.” It is manifest, therefore, that though the $75,000 had been previously squandered, yet the lender was to be paid first out of the proceeds of the bonds which the act authorized. To pay that and the interest thereon required nearly $80,000. The sale of the said bonds produced only $148,364, thus leaving less than $70,000 for the construction of the new city hall and the new market, and the improvement of the streets, the extension of the water works, “ and any other improvements judged advisable by the said mayor and aldermen."</p> <p>Under these unlimited powers the most active schemer in that body could scarcely have devised any plan for spending that balance which would not have been within the vast scope of the said act. But whatever might have been the result of such effort, it is certain that the trial was not made. The testimony herein shows conclusively that more than the said balance was-applied to the special purposes of the act. And the fact that certain debts due for current expenses were paid out of the proceeds of said bonds does not falsify this conclusion, inasmuch as the accounts show that these payments, thus temporarily taken from the construction fund, were afterwards restored to it, when needed, from other resources of the city treasury.</p> <p>But if that had not been done, and if part of the said $70,000 had been fraudulently misapplied, that would not have rendered the bonds invalid. They are negotiable securities, and purchasers thereof, even suspecting that the proceeds are to be misapplied, are not bound to inquire of that matter. No mere-suspicious circumstances or negligence of the purchaser, nothing but bad faith in him, will impair his title, and I do not find in this case any proof of such bad faith.</p> <p>Lastly. The remaining allegation of the relators refers to the printed abstract of the act which was placed on the said bonds. They say that it omits the condition precedent of the first section of the act, which required the old bonds to be canceled before the new could be lawfully issued. But the act entrusted that duty to the mayor and aldermen, and made no provision for the correction of such abstract as they might prepare. They, therefore, were the sole judges of its sufficiency, and their recital on the bonds that the said abstract was in compliance with the act is a complete protection to the bondholders.</p> <p>I have reached the above conclusions most reluctantly. The act was drawn with consummate skill, so as to inspire the utmost confidence of purchasers, and it seemed to contain every provision necessary for the protection of the said city, yet in its sixth section it adroitly inserts the provision which its framer intended for his own benefit. By that he has recovered the $75,000 which he had lent the city for ivasteful and fraudulent purposes. It is very manifest that the whole city hall scheme originated in fraud and bribery. The said loan was only an ill-disguised bribe to purchase for the lender an exorbitant contract. Public clamor compelled him to surrender it, and then he devised the said act, whereby he regained the money he had lent, and retained, besides, $12,000 paid him' in advance for work to be done, but not done — except to the extent of the value of $7,000. I cannot reach him by any proper decree in this case. My inclination in every case would be to inflict loss upon all who, knowingly, to the loss of the public, lend their money for wasteful purposes to reckless and dishonest rulers. But the law limits my authority, and the sixth section of the said act effectually protects those who lent their money to pay that debt, which it directed to be paid.</p> <p>It is therefore adjudged and decreed that the relators be denied the relief which they seek, and that their complaint be dismissed, without costs. .</p> <p>From this decree the plaintiff appealed, upon the following grounds:</p> <p>1. Because the decision does not contain a statement of the facts found and the conclusions of law separately, as required by law.</p> <p>2. Because the court erred in deciding that the recalling and cancellation of the bonds issued to the amount of $200,000, August 21st, 1871, “ after the issue of the bonds under the act of March 13th, 1872,” was a substantial compliance with the said act; whereas the court should have decided that the requirement of such recalling and cancellation, “ before the issue,” was an indispensable condition precedent, and until the condition was complied with the power to issue such bonds did not exist, and that all bonds issued under the said act prior to the performance of the said condition precedent are, therefore, null and void, and do not constitute obligations of the said city; and the court should have decreed that such bonds be delivered up to be canceled.</p> <p>3. Because the court erred in deciding that the negotiation of bonds issued under the act of March 13th, 1872, so far as the same was effected at public auction not duly advertised for the period and in the newspapers designated by the act, and so far as the said bonds were bid in for the city and subsequently negotiated privately by the mayor and aldermen, was a substantial compliance with the act; and because the court erred in deciding that such negotiation cannot now be impeached, for that it “was entrusted to the city council, which, by its recital on the said bonds, states that they were issued by a public sale thereof,” and thereby gives, “ under the law, sufficient protection to any purchaser for value;” whereas the court should have decided that the negotiation, as made, was not a sufficient compliance with the requirements of the act; that the sales at auction to the city were pretensive and void, and did not authorize the subsequent issue of the bonds by private negotiation; that the said statement on the bond being of a fact contemporaneous with the sale and delivery of the bond, of which all parties had equal means of knowledge, and as to which the mayor and aldermen were not invested with authority to decide, could not be made the subject-matter of recital so as to operate by way of estoppel.</p> <p>That if such recital could in any case estop these plaintiffs, it cannot be pleaded by holders of the said bonds, who (not “purchasers for value” or bona fide holders within the technical meaning of the phrases) were parties to the negotiation thereof, cognizant of each and every violation of law therein and partakers of the fraud, and that in the hands of such parties the bonds so negotiated are null and void, and do not constitute obligations of the said city, and the court should have decreed that such bonds should be delivered up to be canceled.</p> <p>4. Because the court erred in deciding that the sixth section of the act of March 13th, 1872, expressly directs payment of the loan of $75,000 due to Neagle out of the proceeds of the sale of the said bonds, whereas it should have been found that this amount was borrowed as well “ for other purposes necessary for the support of the city government,” and the court should have decided that the proceeds of the sale of the bonds were applicable only to such portion of the said loan as was actually expended in the construction of the new city hall and the new market, and that the remainder of the said loan, having been negotiated without power and without authority of law, did not constitute a valid obligation of the said city.</p> <p>5. Because the court erred in finding that the proceeds of the sale of the bonds issued under the act' of March 13th, 1872, were not to any material extent applied to the current expenses of the city, the facts being conclusively established that the total amount received from this source is $148,364, and the amount expended on the city hall and market, from all sources, is $71,-926, leaving $76,438 as applied for the most part not to “the improvement of streets, the extension of water works or any other improvements judged advisable by the mayor and aider-men,” but to purposes of extravagant and fraudulent expenditure, whilst a large amount of debt contracted for the erection of the city hall is yet unpaid and the construction of the city hall has not yet been completed.</p> <p>6. Because the court erred in deciding that, under what is termed “the unlimited powers” in the act, “the most active schemers could scarcely have devised any plan for spending the balance” remaining after the payment of the Neagle loan “ which would not have been within the vast scope of the said act;” whereas the court should have decided that under the said act an amount had been expended or-set apart sufficient'for the construction of the new city hall and the new market, and any and all expenditures of this fund for other purposes were unauthorized and in violation of law.</p> <p>7. Because the court erred in deciding that there was no proof of such bad faith in the application of the purchase money of said bonds as would impair the title of the holders thereof; whereas the court should have found that the purchases by the Carolina National Bank, the Central National Bank and Robert K. Scott, directly from the mayor and aldermen, were made for the purpose of applying the proceeds in payment of claims against the city held by these parties respectively, which, to the knowledge of and in collusion with these parties, were contracted for and applied to purposes not contemplated by the said act of March 13th, 1872, and which, having heen incurred without power and authority, were not legal and valid obligations of the said city; and the court should have decided that the payment of the said claims out of the proceeds of the sale of said bonds was conclusive evidence of such bad faith as would constitute these purchasers trustees by virtue of a constructive trust, and should have decided that said bonds were issued in fraud, and are therefore null and void, and of no obligation against the city; and the court should have decreed that such bonds be delivered up to be canceled.</p> <p>8. Because the court erred in deciding that the validity of the bonds was not affected by the omission to include in the abstract of the provision of the act, printed on the back of each bond, the condition precedent of the first section, “ which required the old bond to be canceled before the new could be lawfully issued ;” and that the mayor and aldermen were the sole judges of the sufficiency of the abstract, and that their recital on the bond that the said abstract was in compliance of the act is a complete protection to the bondholders; whereas, the court should have decided that the act not being a matter peculiarly known to the mayor and aldermen, but one of which all parties are presumed in law to have knowledge, the recital of the abstract thereof on the back of said bond could in no way afford protection to the bondholder, there being no judicial action or decision devolved upon the mayor and aldermen thereby, and the omission of any reference to the condition precedent contained in the first section, “ which required the old bonds to be canceled before the new could be lawfully issued,” and of any recital that such condition had been complied with, operated as notice to all purchasers of said bonds that the said condition precedent had not been performed, and also of the purpose of the said mayor and aider-men to disregard this imperative requirement of the act, and put each and every of them upon inquiry at their peril.</p> <p>9. Because the court did not find that certain bonds, as set forth in the complaint, held by the Carolina National Bank, Robert K. Scott and other defendants, had been pledged by the mayor and aldermen to the South Carolina Bank and Trust Company as collateral security for a loan created and expended for .general purposes of the city government, and were purchased by the said defendants with notice; and that the bonds held by Thomas B. Jeter had been pledged to him by the mayor and aldermen as collateral security for a loan created aud expended for general purposes of the city government; and because the court did not decide that the city council were without power or authority to borrow money for general purposes of expenditure, or for any purpose to negotiate the said bonds by way of pledge, and the bonds so negotiated were wholly null and void and of no obligation against the said city; and because the court did not decree that such bonds be delivered up to be canceled.</p> <p>10. Because the court did not find that -the bonds held by the defendant, John Alexander, have never been sold or hypothecated, and were held by him without power or authority; and because the court did not adjudge the same to be null and void and ■of no obligation against the city, and did not decree that they be delivered up to be canceled.</p> <p>11. Because the court erred in failing to find as matter of fact that the bonds held by the defendants, the Carolina National Bank of Columbia, S. C., Robert K. Scott, the Central National Bank of Columbia, S. C., the Citizens’ Bank of Petersburg, Va., Clark Waring, Fanny C. Wallace, Harriet English, S. F. Trotti, Thomas B. Jeter and John Alexander, were procured by these defendants by direct and immediate negotiation with the mayor and aldermen, with notice of all the matters of fraud and irregularity alleged in the complaint; and because the court erred in deciding that these defendants are entitled to the benefit of the protection of the law accorded to bona fide holders for valuable consideration without notice, otherwise characterized by the law as “ innocent third parties.”</p> <p>'12. Because the defendants, Thomas C. Dunn, Robert K. Scott, C. J. Carroll, George A. Shields, John Alexander, John S. Wiley, The National Bank of Spartanburg, S. C., and Acacia Lodge, No. 94, Ancient Free Masons of South Carolina, having failed to answer the complaint, the court did not find the matters of fact alleged therein in reference to the bonds held by these defendants, and adjudged the same sufficient in law to render the said bonds null and void and of no obligation against the said city; and because the court did not thereupon decree that the bonds held by the said defendants should be delivered up to be canceled.</p> <p>13. Because the court erred in decreeing that the relators be denied the relief which they seek and dismissing their complaint.</p>

<p>Before CarpeNter, J., December, 1875, and Pressley, J., October, 1878, at Edgefield..</p> <p>In the action first above stated, John Hampden Brooks, as executor of the will of his father, "Whitfield Brooks, and as executor of his mother, Mary P. Brooks, asked for a construction of both wills, and the instruction of the court as to the several questions arising thereunder. All other parties in interest were made defendants, who by answer demanded an accounting of both estates. This action was commenced in 1871.</p> <p>The second action was instituted in 1872 by M. C. Butler, assignee, and others creditors of James C. Brooks, a son of Whitfield and Mary P. Brooks, against James C. Brooks, J. Hampden Brooks, executor, and W. P. Butler — the last-named having been named as assignee under an assignment for the benefit of creditors, but who refused to act. This action claimed the benefit of the assignment made by James C. Brooks of his interest in the estate of his father after the termination of his mother’s life estate therein, and demanded an accounting by J. H. Brooks, executor, and the payment to them of J. C. Brooks’ interest.</p> <p>Whitfield Brooks died in 1851, leaving of force a last will and testament. After making some specific bequests, the will proceeds:</p> <p>9. If any one or more of the negro slaves hereby specifically bequeathed to my beloved son, John Hampden Brooks, shall die before he has attained to the age of twenty-one years, the loss of the slave or slaves so dying during the minority of the said John H. Brooks, shall be made up to him by substituting in the stead of the slave or slaves so dying another slave or slaves of like value, or a sum of money equal to the value of the slave or slaves so dying, to be taken from the residuum of my estate, and I desire and direct that during the minority of my said son, John Hampden Brooks, all and singular the property and estate hereby devised to him shall be and remain in the custody and possession of his mother, and that in respect to the income and profits thereof during his minority she shall therefrom defray and discharge all the charges and expenses of his maintenance and education, but beyond that shall not be in any wise accountable or chargeable therefor.</p> <p>10. The portion and share of the estate of my lamented mother-in-law, Mrs. Mary Carroll, deceased, which in and by her last will and testament is devised to my beloved wife for the term of her natural life, with remainder to her children; I do hereby, give, devise and bequeath to my beloved wife, Mary P. Brooks, to be had and held by her not merely for and during ber natural life, but absolutely and in fee forever, with power to dispose of it by deed or will, and to do all other acts respecting the same as fully and perfectly to all intents and purposes as though she were the unqualified and unrestricted owner thereof; and for the purpose of making this disposition valid and effectual, I hereby provide and declare that all and singular the devises and bequests in favor of my children and each of them, in this will contained, are and shall be held and taken to be upon the express condition that they and each of them shall assign, release and relinquish to my beloved wife absolutely and unreservedly all and singular their and each of their said rights, interest and estate in remainder accruing to, or vested in them in and by the will of their said grandmother, Mrs. Mary Carroll, deceased, as aforesaid.</p> <p>11. All and singular the rest and residue of my estate, both real and personal, of every description, I give, devise and bequeath to my beloved wife, Mary P. Brooks, for and during the term of her natural life; and after her death it is my will and desire that the same shall be sold and the proceeds thereof equally divided among my children in fee, share and share alike.</p> <p>12. I request of my beloved wife that she will annually make certain gifts and presents to the negro slaves bequeathed to her for life, according to a memorandum that I deliver to her.</p> <p>13. I authorize and empower my beloved wife, out of the estate hereby devised to her for life, to make such advancements as she may choose to any one of our children, always provided, however, that within six months after any such advancement or advancements shall have been made to any one of them, she shall make advancements of like value to the others of our children ; and provided further, that this restriction shall not be construed to extend to small gifts or presents not exceeding $20 in value.</p> <p>14. It is my will and desire that my beloved son, John Hampden Brooks, shall at the death of his mother be entitled to take as parcel of his portion of the residuum of my estate, and at the valuation to be placed upon it by five disinterested persons to be appointed by the executors of my will, all that portion of my lands comprehended within the following boundaries, that is to say, a straight line running from the oak corner on the Mims tract to the grape-vine corner next to G. W. Holloway’s land, the dividing line,, between my land and the lands of Z. W. Car-wile, A. P. King, Hr. John Mobley and James Dorn, the Matthews road, and the dividing line between my lands and the lands of Wiley Kemp, Thomas Payne and James Mims.</p> <p>15. All the residue of my lands lying between the parcel of land carved out for my son, John Hampden Brooks, as provided for in the preceding clause, aud the tract of land I have already given to my beloved daughter, Ellen Dunovant, I desire and direct shall be taken at the death of my beloved wife by my said daughter as parcel of her share of the residuum of my estate, and at a valuation to be fixed upon by five commissioners, disinterested persons, to be appointed for that purpose by my executors, if my said daughter chooses.</p> <p>■ 16. I nominate constitute and appoint my beloved wife sole executrix of this my will for and during the term of her natural life, and after death I confide the execution of the same to my three sons, Preston S. Brooks, James C. Brooks and John Hampden Brooks, as the executors thereof; and I do hereby invest my said executrix and executors with full power and authority to sell and to do all other acts necessary to the execution of this my last will and testament.</p> <p>Whitfield Brooks left a large estate, consisting of plantation, negroes, horses, .mules, cattle, &c., besides silverware, furniture, Ac. His widow, Mary P. Brooks, and four children, survived him, viz., Preston S., James C. and John H. Brooks, and Ellen Dunovant. Mary P. Brooks qualified as executrix, and took possession of the estate. Shortly thereafter she paid the claim of Cornelia Cross, as stated in Judge Pressley’s decree. She sold two slaves belonging to tlie life estate. Other sales and purchases by her, and improvements added, are stated in the Circuit decree.</p> <p>In 1860 judgments were obtained against James C. Brooks, upon which writs of capias ad satisfaciendum were issued, and in 1861 he was arrested, and having applied for the benefit of the insolvent debtor’s act, and made an assignment of his entire estate, was discharged from custody. His schedule contained inter alia the following: “Whatever interest I may have, in remainder or otherwise, in my father, the late Whitfield Brooks’ will, after the death of my mother, Mary P. Brooks.” William P. Butler, the assignee, declined to accept the appointment, and never acted as assignee, and no one else was ever substituted in his stead.</p> <p>In October, 1871, James C. Brooks assigned to J. H. Brooks so much of his interest in his father’s estate as would amount to $1500, and to John E. Bacon so much of the same as would amount to $500. In 1872 he assigned to J. H. Brooks, as executor of Mary P. Brooks, all of his interest in his father’s estate.</p> <p>Before that time, in December, 1870, Mrs. Mary P. Brooks died. Her son, Preston S. Brooks, and her daughter, Ellen Dunovant, had survived their father, but predeceased their mother — the former leaving a wife .and four children, the latter a husband (B. G. M. Dunovant) and four children. Mary P. Brooks left a will, and appointed J. H. Brooks sole executor, who qualified as such, and also then became executor of his father’s will. She gave a plantation of nine hundred and fifty acres, called Turkey Creek, to her son, J. C. Brooks, in trust, after paying for his own maintenance, for his children. Her remaining estate, after a few specific legacies, she divided among her son, J. H. Brooks, and the children of her deceased son and daughter — to each one-third. Clause 12 reads as follows:</p> <p>“ If the debt due me by the said B. G. M. Dunovant for the purchase of my said house and lot in the village of Edgefield, of which he is now in possession, shall not be paid by him within one year next after my death, then, and in that event, the contract to him for the sale of the last-mentioned premises shall be on my part renounced and forever abandoned; and the said house and lot; to be valued at the sum of $5000, shall belong to and vest in my said daughter and her children as parcel of her and their share of my said residuary estate; if such share shall be worth more than $5000, and if such share shall be of less value than that sum, then the said house and lot shall stand charged in favor of the other shares, with so much money as shall suffice to produce equality in value among all the residuary shares.”</p> <p>Mi’s. Brooks; before her death, held a certificate of deposit for $2000 in a bank in Columbia. It was claimed by J. H. Brooks, after her death, as his property, by gift from his mother, and he received the money. The only testimony upon this point (his ■own being objected to) was that of his wife. She testified as follows:</p> <p>“ Witness is the daughter-in-law of Mrs. Mary P. Brooks; resided in the house with her from the time of witness’ marriage until Mrs. Brooks’ death — about three years; Mrs. Mary P. Brooks spoke to witness more than once about the indebtedness of Chancellor Carroll to Mrs. Brooks, and said that she intended to give it to J. H. Brooks; that she had written to Messrs. Pope & Haskell about it, and that she intended to arrange the matter when she went to Columbia, which she expected to do soon; witness does not remember that Mrs. Mary P. Brooks ever mentioned the amount of the indebtedness; it was some thousands; during her last illness Mrs. Mary P. Brooks asked for the certificate of deposit of the amount due by Chancellor Carroll, when it was brought to her, and she gave it to J. H. Brooks; witness does not remember exactly what she said, but it was something equivalent to ‘now it is done;’ Mrs. Mary P. Brooks always made the impression on witness’ mind that she intended to give this particular money to J. H. Brooks, saying ‘ that she felt he would need all she could give him, as he had lived so long with her without a home of his own.’</p> <p>“ Witness does not remember seeing Mrs. Mary P. Brooks take the paper in her hand and deliver it to J. H. Brooks; saw J. H. Brooks take the paper.</p> <p>“ -f - Upon reflection, saw Mrs. Preston Brooks bring the paper and give it to Mrs. Mary P. Brooks, who gave it to J. H. Brooks.” Shortly after Mrs. Brooks’ death, J. H. Brooks had the lands of Whitfield Brooks’ estate appraised, and also procured an appraisement of the rent for the year 1871. He continued in possession for several years afterwards. There was a great deal of testimony upon the question of rents. A number of witnesses testified as to the sum for which, in their judgment, it would have rented at public outcry. It was also shown what were the products of the place during these years, and what rents were received by J. H. Brooks from his tenants.</p> <p>After the death of M. P. Brooks, the executor made payments, to J. C. Brooks, on account of his interest in his father’s estate out of the proceeds of the life estate which had fallen in, and without notice of the general assignment made in 1871. Among the assets of Whitfield Brooks’ estate was a note on A. P. Blocker, which was never collected by the life-tenant or her executor, and never could have been enforced by legal proceedings.</p> <p>At the time of W. Brooks’ death he was indebted for the purchase money of certain slaves. His widow paid the debt out. of moneys received, from her mother’s estate. She did not return these slaves upon the inventory of her testator’s estate filed by her in the proper office. Her executor claimed the amount se paid as a credit upon her accounts as executrix, which was-refused by the referee.</p> <p>S. B. Griffin, Esq., being referee, made his report, submitting the testimony taken and his conclusions of fact, with a statement of accounts. Exceptions taken thereto by plaintiffs and defendants were heard by his Honor Judge Carpenter, who filed his decree in December, 1875. He directed all the lands of W. Brooks to be sold, sustained the gift of the certificate of deposit, subject to the rights of M. P. Brooks’ creditors, approved the charge of the rent for 1871 at the amount fixed by the appraisers, and allowed the counsel fees paid by the executor to be credited on his accounts, but directed that no more should be allowed. Upon all other matters the decision was reserved, and the report was recommitted.</p> <p>Exceptions to the second report of referee Griffin were- beard by his Honor Judge Townsend in October, 1877. In February, 1878, Judge Townsend resigned his seat upon the bench before rendering his decree. By order he was afterwards appointed referee in the causes, and, as such, submitted his report, accompanied by a statement of accounts, in which he allowed credit to the executor for counsel fees paid after the date of Judge Carpenter’s order.</p> <p>On exceptions to the report of Townsend, referee, his Honor Judge Pressley heard the causes at October Term, 1878, and January 2d, 1879, filed the following</p> <p>DECREE.</p> <p>The facts of this case bearing on the legal issues discussed by the referees are fully stated in their reports, and from the mass of testimony attached thereto, I gather other facts which bear on some legal points in which I differ from the referees.</p> <p>Judge Carpenter has decided the point that the $2000 given to J. H. Brooks, by his mother, was a valid gift. All other points in the case are yet' undecided.</p> <p>The plan of the referees for estimating the rent to be paid by J. H. Brooks, for Poseíands, is doubtless the best under the circumstances, but I add $100 a year to their estimate for the last four years. This is done, not as overruling their finding on the facts, but only as enforcing that policy which, in the case of doubt, charges the highest rate to an executor who uses his testator’s land without having tested its rental value at public auction.</p> <p>The referees rightly award to the creditors of J. C. Brooks his share of his father’s estate. They take his portion of the land, furniture and silver-plate, according to the priority of their judgments. The other assets which had no corporeal existence in 1861, when he took the benefit of the insolvent debtor’s act, must be divided pro rata amongst his other creditors of that estate. His said share has not. been forfeited for want of the release to his mother which his father’s will required; her payments and advances to him under the said will conclusively prove that he did deliver the said release. I do not agree with the referees that J. H. Brooks, executor, is responsible to the creditors of J. C. Brooks for so much of his' share as was paid to him in 1871 and 1872, before they filed their complaint. He cannot be presumed to have had notice of the said assignment made so long ago.</p> <p>In the matter of the accounts of J. H. Brooks, executor, I find in all the reports of Mr. Griffin a very serious error, which Townsend, referee, also adopts. They charge the said executor with the whole indebtedness of his mother to his father’s estate, whereas he should have been charged with only the cash balance of his mother’s estate in his hands. Also, there is too much interest charged against him; he could neither have lent out the money on interest nor have paid it to the devisees whilst so many questions of doubt remained to be settled. Under such circumstances reasonable time for proper action is always allowed, and in that case an executor is not usually charged with interest until the end of the twelve months after his qualification.</p> <p>As to .the indebtedness of Mrs. Brooks as life-tenant and executrix under the will of Whitfield Brooks, I differ from both of the referees. They both charge her with the whole inventory, and crediting her with certain payments and advances, and with the value of the emancipated slaves, hold her responsible for the rest of the said inventory. This balance is further reduced by referee Townsend, who allows her the value of such articles as were consumable in the use. To this allowance exception has been filed.</p> <p>The class of decided cases which charge the inventory of the personalty to the life-tenant are not applicable to this case. They all rest upon the presumed intention of the testator that the life-tenant should sell such articles, invest the proceeds, and use only the income, thus leaving the principal intact to the remainder-men. But no such intention can be presumed in this case; the testator expressly directs that his estate shall be sold after the death of the life-tenant. The said estate, therefore, falls under the case of Calhown v. Fergeson, 3 JRieh. Eq. 160, which holds that where a plantation, with the slaves, provisions and other articles thereon, is bequeathed in mass to a life-tenant, he or she is trustee for the remaindermen, and is bound by proper care and diligence to keep up the whole estate to its original value. But, if such care and diligence be used, and nevertheless a deficiency in the value of such estate should arise from causes beyond the control of the life-tenant, then he or she is not responsible for such deficiency. Under this rule the referees do not charge the value of the emancipated slaves, and, by the same rule, they should not have charged any depreciation in the value of the vehicles, implements of agriculture, or of the work animals, which, as one of the results of the late war, fell upon this estate no heavier than upon others the best managed in this state.</p> <p>I can see no reason why a life-tenant should be held chargeable for losses which other persons, the most prudent and the most careful, had to suffer, and could not prevent in their own estates. Holding that this life-tenant is not so chargeable, unless for default of care and lack of proper prudence, I have carefully examined the mass of testimony attached to the referees’ reports, and find therein no shadow of proof that Mrs. Brooks was ever wanting in faithfulness to her trust. There is no evidence, and not the slightest probability, that she applied to her own use any of the money on hand at the death of Whitfield Brooks, or any of the proceeds of the notes, accounts or cotton which he left. The whole of these was about $5700. He must have owed some debts, such as physician’s bill, overseer’s wages, and other items incident to a large family and several plantations with numerous slaves. Besides these were the usual expenses of administration, including the usual and necessary counsel fees. As the executrix kept no account, it would scarcely be possible to prove payments of this character after the lapse of more than twenty years, and after the death of the said executrix. But if notwithstanding the almost positive certainty that she did make payments of considerable amounts in that behalf, credit for the same be denied for her want of proof, yet even the items now proved to have been paid by her, including her lawful commissions, exceed the money which she received by more than $1500. In making this estimate I include her commissions, not only on the said $5700, but also on the proceeds of a large amount of real and personal property, which, soon after the death of Whitfield Brooks, she sold and divided as his will directed. Townsend, referee, supposed that she did not account for that property in her lifetime, but at the hearing of this case it was admitted by all the parties that immediately after the sale the proceeds were fully divided.</p> <p>Following these commissions is a payment by her of $1690, the legacy to H. Brooks; also, an advance of $1000 to J. C. Brooks to equalize his share with others who have received slaves to that amount. Then follows a payment of $3662 to Cornelia Cross. Concerning this item, it appears in the testimony that Whitfield Brooks, only six months before his death, filed his last account as executor of his father. It showed that he was their indebted to that estate in the sum of $6167.52, to wit, $2871.26 to the share of William Gillison and wife, and $3296.26 to the share of Charles Cross and wife, both the said items bearing interest from November 21st, 1849. There is no proof as to the time when the share of Gillison and wife was paid, or by whom it was paid, but the proof is very clear that Mrs. Brooks paid tire share of Cornelia Cross, which, with the interest and counsel fee, amounted to $3662.</p> <p>But the referees raise the legal presumption' that the payment to Cornelia Cross was made out of assets which Whitfield Brooks in his lifetime had reserved for that purpose from his father’s estate. I fail to-find in the testimony any proof whatever of the existence of such reserved fund, and the idea of its existence is completely rebutted by the fact that the decree of the court, under which said payment was made, did not order the transfer of any reserved fund or the collection of any assets of which Cornelia Cross was to have the proceeds; on the contrary, its direction was that Mrs. Brooks pay the amount, princijial and interest, and that direction is consistent only with the supposition that Whitfield Brooks, as executor, owed that amount to his father’s estate, having previously mingled its assets with his own. It is, therefore, very manifest that this payment was or should have been from the assets of the estate of Whitfield Brooks, and that, adding it to the other payments of his executrix and to her lawful commissions, it makes the amount of her payments for his estate greatly exceed what she received in money, even omitting the very considerable payments that she must have paid, but which have not been proved, and thus a large portion of the income of her life estate was dedicated to the benefit of the remaindermen.</p> <p>After this she further freely used her income to build on the plantation five cabins for the slaves, a large wheat barn, an additional stable for the work animals, and a large shed for the other stock. She also purchased brood .mares to keep up the supply of horses, and introduced improved breeds of cattle and hogs; she sold five of the old mules, and replaced them with five young and more valuable; and she kept such constant care of the slaves that they had increased, at the time of their emancipation, forty -more than when she received them. Thus by her constant care and diligence the whole estate was improved, until further improvement was rendered impossible by the late war. That left this estate as it did all others within its sweep. Her means to restore its losses perished with confederate money. She reserved from year to year unsold portions of her cotton crop, and after the war her own money, the proceeds of this cotton, was very largely expended by her in restoring the plantation, organizing labor, replacing the work animals and other stock upon the same-At the time of her death the cattle, hogs and sheep on the said plantation were appraised at more than those left thereon at the time of the death of her testator, but the mules, horses, plantation vehicles and other implements, were deficient. So, also, was the provision crop made during the last year of her life. For these deficiencies I hold that she is not chargeable. So far from having been a faithless trustee to the remaindermen, she did more after the war to restore and keep up the value of the estate in her hands than it was reasonable to expect of her, and very few planters in this state did so much for their own estates as she did for this.</p> <p>I therefore adjudge and decree that her estate be charged only with the sum of $816, the value fixed by the referee on the furniture and silver plate which she bequeathed to J. H. Brooks; also, that the proceeds of the work animals, cattle, hogs, plantation vehicles and tools left on hand at her death be carried to the credit of her testator’s estate. That being done, I hold her estate no further liable.</p> <p>The provisions of the will of Mrs. Brooks do not require special detail; after some small legacies, it directs an equal division of the rest of her property among her children. Her house and lot in Edgefield has been surrendered by Gen. Dunovant, who held it under a contract to purchase; his children now have possession of said house, and at a price named in the said will they are to keep it as a part of their share. Its rental value for the time they held it, to be fixed by appraisement or otherwise, must be added to that price.</p> <p>J. C. Brooks, for his children, is in possession of the Turkey Creek plantation, bequeathed to them; it also must be appraised, and its rental value fixed in order to equalize all the shares, as the said will directs.</p> <p>Let J. H. Brooks restate and file his accounts as executor of' each of the said estates, in accordance with this decree.</p> <p>The parties to this cause, all or any of them, may apply to me or to the judge of the Fifth Circuit, at chambers, for such other and further orders as may be necessary to execute this judgment and decree, and to settle the said estate in accordance therewith.</p> <p>From this decree appeals were taken by plaintiffs and defendants in both causes, upon the several grounds stated—</p> <p>By J. H. Brooks, as execulor of W. and M. P. Brooks, and J. C. Brooks.</p> <p>. 1. His Honor erred in adding $100 to the estimate of the-referees, report upon the rents of Boselands, for the last four years, such decision being contrary to law and evidence in interfering with the findings of facts by the referee, and also arbitrary and without foundation.</p> <p>2. His Honor erred in deciding that J. C. Brooks has executed the release required by the tenth clause of Mr. 'Whitfield Brooks’ will, there being no evidence of such execution, and the same being denied in the answers of the said J. C. Brooks and J. H. Brooks, executor.</p> <p>3. That his Honor erred in deciding that J. C. Brooks’ creditors can take at all in the present state of the pleadings, that portion of his land, furniture, and silver plate, under his father’s will, and that the same is distributable among his creditors according to the priority of their judgments — inasmuch as the said ¿T. C. Brooks takes no such property, and that all such interest as he does take under said will of whatever description, is but equitable assets in the hands of the executor, to be distributed pro rata among all of his creditors.</p> <p>4. His Honor should have dismissed the amended complaint of M. C. Butler, as assignee; J. C. Lark, survivor, et al., v. J. H. Brooks, executor, and J. C. Brooks, upon the grounds stated in the answer thereto, and in the ninth exception of the defendants J. H. and J. C. Brooks.</p> <p>5. That his Honor erred in decreeing that the children of Hen. Hunovant should take the house and lot in Edgefield at $5000, “as a part of their share” under Mrs. Brooks’ will, without decreeing further, as said will directs, that should that sum ($5000) be more than they were entitled to under said will, the said house and lot should stand pledged for the payment to the other legatees of such a sum as would equalize all the parties interested.</p> <p>6. His Honor should have decided the point made by the ■answer of J. H. Brooks, executor, and J. C; Brooks, and insisted upon in argument; that the assignment by J. C. Brooks to John E. Bacon and J. H. Brooks, of so much of his interest in his father’s estate as would amount to $1500 and $500 were valid, and should prevail as against the assignment under the insolvent debtor’s act, by said J. C. Brooks to his creditors. The facts being, that the said J. H. Brooks had no notice of the latter assignment made over ten years before the former, and never acted upon in any way by the assignee or the creditors; that property enough was assigned under the insolvent debtor’s .act to pay the debts of the said creditors, and that they took no steps for a period of over ten years to enforce the collection thereof; and that the said J. H. Brooks accepted the said assignments to the said Bacon and himself in good faith, and is bound to pay the same, and upon the grounds set forth in the pleadings and exceptions.</p> <p>7. That Judge Carpenter, in his decretal order of December 13th, 1875, should not have overruled the executor’s second exception, but should have decided that the life-tenant should not be held accountable in any way to the testator’s estate in remainder.</p> <p>8. That Judge Carpenter errs in the sixteenth paragraph of said decretal order, in deciding, that although the gift of the $2000 certificate by Mrs. Brooks to J. H. Brooks was valid, still that he should account therefor in case of the insolvency of her estate.</p> <p>9. That Judge Carpenter, in the seventeenth clause of the said decretal order, errs in deciding that J. C. Brooks and his children hold the Turkey Creek place subject to the creditors of Mrs. Brooks, and should have decided that they hold it absolutely and in fee.</p> <p>10. That his Honor should have decided the issues made by the executor in the first and fourteenth exceptions to the report of C. P. Townsend, referee.</p> <p>By B,. G. M. Dunovant and his children, and James C. Lark, survivor, a creditor of J. C. Brooks—</p> <p>1. Because his Honor erred in not holding that the estate of the life-tenant should be charged with the entire inventory of 1852, including provisions and articles consumable in the use, with the exception of the slaves not sold by her.</p> <p>2. Because in stating the accounts in reference to the liability of the life-tenant no credit should be allowed the life-tenant for abrasion and use of the furniture, plate, &c., the difference in value resulting from abrasion and use not having been determined by a sale of said furniture, plate, &c., at the death of the life-tenant nor by any lawful appraisement, and his Honor should have so held.</p> <p>3. Because in stating the account in reference to the liability of the life-tenant, the estate of the life-tenant should have been charged with the value of the two slaves sold by said life-tenant, and his Honor should have so held.</p> <p>4. Because the estate of the life-tenant should have been charged with the Blocker note, and his Honor should have so held.</p> <p>5. Because the executor, J. H. Brooks, should have been' charged with the rents actually received by him for the years 1871 to 1877 inclusive, and said rents should not have been determined upon by the speculative testimony and opinion of witnesses; and their Honors Judges Carpenter and Pressley, erred in holding that said executor was not chargeable with the rents actually received by him.</p> <p>6. Because the executor should not be allowed any commissions for the years in which he made no returns, and his Honor Judge Pressley should have so held.</p> <p>7. Because in the statement of the accounts of the executor by Beferee Townsend, he should not have been allowed credit for $1363.24 paid out in 1871 and 1872, when the payments for said years actually amounted to only $331.71, if so much as that, and it was admitted at the hearing before his Honor Judge Pressley, that the same was a clerical error, and his Honor should have held that said clerical error should be corrected.</p> <p>8. Because the crops made by the life-tenant in the year 1870 on the lands held by her as life-tenant constituted a part of her testator’s estate, and his Honor should have so held.</p> <p>9. Because no counsel fees should have been paid by the executor without leave of the court, after the order of Judge Carpenter refusing to allow further counsel fees, and his Honor Judge Pressley should have so held.</p> <p>10. Because his Honor Judge Carpenter erred in holding that the certificate of deposit of $2000 was a gift to J. H. Brooks by his mother, Mrs. Mary P. Brooks.</p> <p>11. Because his Honor Judge Pressley erred in holding that the life-tenant was entitled to credit for the amount paid to Mrs. Cornelia Cross under an order of the court, the proof being that it was not paid out of the life-estate, and there being no proof that it was paid out of the life-estate.</p> <p>12. Because his Honor Judge Pressley erred in holding that-the life-tenant was entitled to credit for the negro cabins and other improvements erected by her on the life-estate during her life-tenancy.</p> <p>13. Because his Honor Judge Pressley erred in holding that the life-tenant was entitled to commissions, and more especially that she was entitled to commissions on property sold by her, and of which she made no returns.</p> <p>14. Because his Honor erred in holding that the children of B. G. M. Dunovant are chargeable with the homestead lot in Edgefield village at $5000 and the rent, the proof being that said property was sold by the executor, who is chargeable with the proceeds thereof and with interest upon the same, and in any event said children are not chargeable with the same.</p> <p>15. Because his Honor Judge Pressley erred in holding that the Turkey Creek place is vested in James C. Brooks and children, it having been decided by Judge Carpenter that they hold it under the will of Mrs. Brooks and subject to her debts.</p> <p>16. Because his Honor Judge Pressley erred in holding that the estate of the life-tenant is only chargeable with $816 as the value of the furniture, plate, &e., received by her when she took charge of the life-estate, after giving her credit for the decrease in value from use and abrasion.</p> <p>17. Because his Honor erred in holding that the executor, J. H. Brooks, is not chargeable with interest on the funds received by him as executor until after the expiration of one year.</p> <p>18.' Because if the rule adopted by his Honor is the correct one for ascertaining the rent, then for the reasons stated by him he should have charged the executor with a larger amount for rent for the years stated by him, and a larger amount should have been charged for the years previous to those stated.</p> <p>19. Because his Honor erred in holding that the executor should only have been charged with the cash balance of his mother’s estate in his hands.</p> <p>20. Because his Honor erred in holding that the estate of the life-tenant “ should not have been charged with any depreciation in the value of the vehicles, implements of agriculture, or of the work animals,” she being bound under the law governing the case to keep the estate in all its departments up to the condition it was in when she received it.</p> <p>By R. G.'M. Dunovant—</p> <p>1. Because, by the decree, his Honor does not hold that the executor, J. H. Brooks, should be charged with the difference betwepn the appraised value of the lands of testator and the price for which they sold, he having held said lands until they were greatly depreciated in value, and contrary to the provisions of the will.</p> <p>2.Because J. H. Brooks should have been charged with the difference between the appraised value of the property sold by him January 5th, 1871, and the price for which he purchased it.</p> <p>By J. C. Lark—</p> <p>1. Because he holds that the share of J. C. Brooks should be distributed among his creditors according to their legal priority, and not as equitable assets.</p> <p>2. Because his Honor holds that J. H. Brooks, executor, is not responsible to the creditors of J. C. Brooks for what he paid over to J. C. Brooks before said creditors filed their complaint.</p> <p>By James Mansfield (creditor of J. C. Brooks.) Because his Honor held—</p> <p>1. That Judge Carpenter had never decided but one point in the case, to wit, that the gift of $2000 by Mary Brooks to J. H. Brooks was valid.</p> <p>2. That while recognizing the principle of law that an executor should be held liable to the highest rate of rent who uses his testator’s land without having tested its rental value at public auction, he only partially enforced the same, whereas he should have carried out said principle to its full extent, which would make the rent at $1000 per annum.</p> <p>3. That. J. H. Brooks is not responsible to the creditors of James C. Brooks for paying him, in 1871 and 1872, certain sums of money out of his father’s estate as a part of his share of the same.</p> <p>4. That the executor, J. H. Brooks, should not be charged with the indebtedness of his mother to his father’s estate; that referees should not have charged her with the inventory; “that the class of decided cases which charge the inventory of the personalty to the life-tenant is not applicable to this case.”</p> <p>5. That executrix did not apply to her own use the money on hand at the death of the testator, as also the proceeds of the notes, accounts and cotton on hand, while not accounting for the same, amounting to about' $5700, and that the executor did not receive, retain and appropriate entire commissions on each and all transactions when she was entitled to the same.</p> <p>6. That the proof is very clear that Mrs. Brooks paid the share of Cornelia Cross out of her own funds; whereas it is more than probable that she paid it out of the funds of testator, and that, with her usual prudence, reserved her commissions, while the pecuniary means and business character of testator totally negatives the idea that he had commingled said share and his own property, or did not leave a distinct and designated fund to settle it.</p> <p>7. That the crop of 1870 did not go to testator’s estate.</p> <p>8. That life-tenant should not account for the two slaves sold by her.</p> <p>9. That life-tenant should have credit for erecting negro cabins, barns, &c.</p> <p>10. That the house and lot in the village, now in possession of B.. G. M. Dunovant and his children, and the Turkey Creek plantation now in possession of James C. Brooks’ children, are not liable for indebtedness of life-tenant to testator’s estate; that the children of each (B,. G. M. Dunovant and J. C. Brooks) hold the same.</p> <p>11. That the executor’s estate is only chargeable with $816, on the value of the furniture, plate, &o.</p> <p>12. That the executor should be allowed credit for $1363.24, as paid out by him in 1871 and 1872, .instead of $331.71.</p> <p>13. That the scrip or certificate of deposit in bank was a valid gift.</p> <p>14. That both referees, Judge Carpenter and his Honor, erred in not holding the life-tenant, Mrs. Mary P. Brooks, and J. H. Brooks, her executor, to that strict accountability as trustees which the law requires; while recognizing the doctrine, neither has fully enforced the same.</p>

Before Maher, J., Aiken, December, 1875. This was an action instituted in July, 1872, by Sarah Melton, in the Court of Probate for Edgefield county, against eight defendants, each one of whom had in possession a portion of a tract of land of which her husband, Wiley Melton, had been seized during coverture. Wiley Melton died in December, 1865.

Before Reed, J., Charleston, May, 1877. This was an action for a foreclosure of a mortgage, instituted by Amelia L. Annely and Julia A. Blake, as devisee and as executrix of Anna Maria Annely, against Wilmot G. De Saussure, executor of John W. Lewis, F. P. Lewis, J. W. A. Lewis, the Commercial Wharf and Cotton Press Company, and the heirs of John W. Lewis.

<p>1. A soldier of the United States army, indicted in the state court for murder, and convicted of manslaughter, was granted a new trial and then admitted to bail. Thereupon he filed his petition in the Circuit Court of the United States, praying a removal of his case to 'that court, and setting forth that the homicide was committed by the accidental discharge of his gun while he was one of a detail to assist a revenue officer of the United States government in arresting the deceased ; a writ of habeas corpus cum, causa was issued by the United States Circuit judge, and under that process the person of the defendant was taken out of the custody of the state authorities, and turned over to his commanding officer in another state. Held, that the sureties on his recognizance were liable for his failure to appear for trial at the succeeding term, of the state court. *</p> <p>2. The jurisdiction of the state court over a prisoner charged with a crime against the laws of the state, is not affected by the removal of the prisoner from the custody of the court by virtue of a writ of habeas corpus, issued by a United States Circuit judge under Section 648 of the Bevised Statutes of the United States.</p> <p>3. The writ of habeas corpus under this section is not an original, remediable writ, but merely an auxiliary process to bring the person of the petitioner within the jurisdiction of the United States Circuit Court.</p> <p>4. Every grant to the government of the United States by the constitution is limited to the powers expressed in the terms of such grant, or arising therefrom by necessary implication.</p> <p>5. Congress cannot confer upon the courts of the United States any jurisdiction or powers not granted by Article III. of the ponstitution.</p> <p>6. Congress cannot confer upon the United States courts original jurisdiction of a case involving an offence against the laws of a state, because that the defence interposed depends for its foi-ee and effect upon the constitution and laws of the United States.</p> <p>7. Meaning of the word “ case,” as used in Article III., Section 2, of the constitution of the United States, with regard to the appellate and original jurisdiction of the courts of the United States.</p> <p>8. The United States courts can have original jurisdiction of cases only where there is a demand of affirmative relief by plaintiff or defendant, based upon the constitution, laws or treaties of the United States.</p> <p>9. The Circuit Courts of the United States have no appellate jurisdiction over cases properly instituted in the state courts; and cases are removable to the former courts from the latter under the acts of congress, only where they could have been brought, in the first instance, in the courts of the United States.</p> <p>10.Martin v. Hunter, 1 Wheat. 304, and Cohens v. Virginia, 6 Wheat. 264, considered.</p>

<p>Motion to dismiss appeal, notice of appeal not having been served upon the clerk of the Circuit Court for the proper county, within the time required by statute. The appeal in this. case was taken before the act of December 19th, 1878, took effect. 16 Stat. 698.</p>

Before Kershaw, J., at Spartanburg, March, 1878. John Brown died in 1857, leaving a will, of which W. P. Brown and E. P. Brown qualified as executors.

Motion to dismiss appeal from decree of Aldrich, J., Green-ville, July, 1879. This was an equity cause, heard on exceptions to the master’s report, and decree rendered in open court, July 17th, 1879, during the term. It does not appear when the term was adjourned. Notice of appeal was given to respondent July 22d, judgment was entered August 9th, and the case, with exceptions, was served August 30th. The exceptions raised legal questions only.

Motion to dismiss the appeal. This was an action upon a.bond, tried before Fraser, J., and a jury, at Greenville, April, 1879. Thirteen days after the rising of the court, the appellants mailed to the address of the presiding judge a copy of their exceptions.

Motion to dismiss appeal. The decision of Fraser, J., was filed in the clerk’s office May 23d, 1879, which was during vacation. Defendants’ attorney read it same day and directed notice. of it to be served on attorney for plaintiff, which was done. Subsequently defendants’ attorney obtained a copy of the decision from the deputy clerk of the court. Afterwards, on July 26th, defendants gave notice of appeal. This was a motion by plaintiff to dismiss the appeal.

Before Wallace, J., Marion, April, 1879. Action for recovery of a tract of land. At the trial the Circuit judge permitted defendants to introduce testimony to show a valuable consideration. Margaret Lewis, mentioned in the deed, and one of the defendants herein, was a step-daughter of grantor, and Mary Rogers was her tenant. Verdict for defendants.

Before Aldeich, J., Abbeville, June, 1879. Indictment against Belton Sampson and Ben Seawright for burglary. The facts are all stated in the opinion of the court. cited 1 Bov/o. L. Did., tit. “ Appurtenance1 Bl. Com. 88; and State v. Ginns, 1 N. & McC. 583. As to the fine, Gen. Stat., ch. CXXIX., § 7. contended that State v. Ginns was decided by a divided court, and bad never been acceptable to the profession. As to the fine not invalidating the sentence,, he cited 1 Archb.

<p>Before Pressley, J., Chester, March, 1879.</p> <p>This was an action by B.. H. Glenn, sheriff of Chester county, to recover from the defendant a sum of money paid to him under a mistake of fact. Both plaintiff and defendant considered it a case in chancery because that mistake was the ground upon which relief was demanded.</p> <p>The goods of one Barber were attached by a constable under two trial-justice’s warrants of attachment on December 17th, 1874. The plaintiff, as sheriff, levied an attachment on the next day upon the same goods, under a warrant of attachment from the Court of Common Pleas in favor of Shannon. Under an order from the Circuit judge the property was sold, and the sheriff, after paying expenses, paid the balance to Shannon. In this action he sought to recover from Shannon so much of the money, so paid to him, as the two trial-justice’s attachments called for.</p> <p>The affidavits made before the trial-justice, and the complaints or warrants issued by him, alleged that Barber was absent from the state, or so concealed himself that the due process of law could not be served upon him. There was no service upon Barber. Judgments were entered against him but no executions were proved to have been issued. It was ruled on Circuit in this case that Barber was made a party in the trial-justice’s court by the attachment of his goods, and that he only could object to errors and irregularities there committed.</p> <p>The only witness examined was Glenn. He testified that he went with Shannon to make the levy upon Barber’s goods, under Shannon’s attachment, and found the constable in charge of the goods. The constable told witness of his levy, but exhibited no inventory. Witness then said to Shannon that the trial-justice’s attachments would have to be first paid. Witness then took possession of the goods. Some time having elapsed after the sale, and no papers being received from the trial-justice, witness supposed that those cases were settled, and paid balance in his hands to Shannon.</p> <p>The presiding judge held that the payment was under a mistake as to the facts, and ordered judgment for the plaintiff. Defendant appealed.</p>

Before Pressley, J., York, March, 1879. This was an action by Bond E. Feemster against Margaret L. Good, the widow of John H. Good, and their children. John H. Good died leaving a will, which directed his funeral expenses and all of his just debts to be paid.

Before Pressley, J., Laurens, June, 1879. This was an action on a sealed note, payable to Cullen Lark, upon the back of which are signed the names, “Cullen Lark,” “ Dennis Lark.” Plaintiff is the owner and holder. The complaint gives a copy of the note in its first paragraph.

Before Aldrich, J., Spartanburg, March, 1879. The nature of this action is fully stated in the opinion of the court. The waiver alluded to is thus stated in the report of the referee in the case for claim and delivery of the personal property : The plaintiff, at the opening of the case before your referee, having elected to ask a recovery in damages in place of specific delivery of the said mare, I find he is entitled to judgment against the defendant in the sum of, &c.

Before ThomsoN, J., York, June, 1879. In the administration of the estate of I). D. A. Belk, deceased, under proceedings in the Court of Probate, the assets were insufficient to pay creditors in full. Among the claims presented were sealed claims created before the passage of the act of March 9th, 1874, sealed claims created after that date, and unsealed claims contracted before, and others contracted after the passage of that act.

Before Aldrich, J., Newberry, May, 1879. Action on note. Defendant offered in evidence testimony taken by commission. When the commission was opened plaintiff’s counsel objected to the answers being read, on the ground that, so far as appeared to the court, the commissioners had not sworn to the printed oath on the commission or subscribed to the same, and that there was no record showing that the witness had been sworn.

Before Hudson, J., Anderson, September, 1878. This was an action by plaintiff against the defendant to recover the price of eight tons of Robson’s acid phosphate.

Before Aldrich, J., at Spartanburg, March, 1879.. The complaint alleged that Alie Lipscomb had conveyed a valuable tract of land to defendant and to H. V. Ross, in consideration whereof they entered into an agreement with Alie Lipscomb to board, clothe and provide other comforts for her; that she boarded with plaintiff for two years, and she was also provided by him with clothing, &c. Judgment was demanded for one-half of this account against the defendant.

Before Pressley, J., Spartanburg, June, 1879. The case is fully stated in the referee’s report, which is as-follows: This action was commenced by summons and complaint by Sarah Adams, to recover her interest in the estate of Elijah Turner, deceased. It was referred to me by an order of his Honor, the presiding judge, to hear and determine the issues in the cause.

Before Pressley, J., Richland, November, 1878. Hon. Thomas Thomson, judge of the Eighth Circuit, sat at-the hearing of this case in the place of Associate Justice Haskell, who had been one of the counsel in the cause. On March 31st, 1858, Jesse House obtained a judgment against Jacob H. Ledingham, in the Court of Common Pleas-for Richland district, for $800 and costs. October 1st, 1859, a payment was made upon the execution in the case.