Volume 13 — South Carolina Reports

Before Eraser, J., Orangeburg, May, 1879. Tbe defendant, Erwin Corley, was indicted for stealing a cow of the value of $12. One count laid the property in a person named, “and another count in some person or persons to the jurors unknown.

Before Kershaw, J., Charleston, November, 1878. This was a controversy without action between Mark Reynolds and C. O. White. The facts agreed upon state neither more nor less than is sufficient for a proper understanding of the case. They are as follows : Facts. — 1. Tlie plaintiff is a planter, residing on his planta- . tion in Sumter county, and the defendant resides in Charleston -county. 2.

<p>Before Aldrich, J., Greenville, July, 1879.</p> <p>Action by William E. Earle against P. D. Cureton, to recover . possession of a tract of land purchased at sheriff's sale,, under judgment entered in the case of Detheridge v. Earle, for costs taxed against Detheridge, for which Cureton was surety. It did not appear that there was any summons, rule or notice served upon Cureton that such judgment would be taken. The Circuit judge charged the jury that so long as the judgment and execution remained of force, the sheriff had authority to sell; that the judgment is presumed to be right and regular until set aside by a court of competent jurisdiction. Defendant excepted. Verdict for plaintiff. Defendant appealed.</p>

Before Pressley, J., Spartanburg, June, 1879. Action by Miles P. Mason against Elias Johnson, on guardianship bond, commenced February 3d, 1879. .

Before Wallace, J., Fairfield, September, 1879. This was a petition in the Court of Probate by Mary T. Phinney against William Johnson for dower in lands of which her husband died seized, and which had been sold under a judgment obtained against her as administratrix of her husband’s estate.

Before Thomson, J., Spartenburg, October, 1879. Indictment for burglary and grand larceny.

Before Fraser, J., Charleston, June, 1879. The Circuit decree referred to in the opinion, will be found at length in 11 8. G. 527, where the case, upon its first hearing, is fully reported. After the dismissal of that appeal, the remittitur, announcing the result, was filed in the office of the clerk of the Circuit Court for Charleston county.

Before Pressley, J., Spartanburg, June, 1879. Action for accounting by Laura C. Black and Ophelia Briggs, distributees of the estate of Susan White, against W. H. White and J. H. McMillan, administrators of said estate, commenced by petition in the Court of Probate for Spartanburg county, in May, 1877. Susan White died intestate in December, 1875.

<p>Motion to dismiss appeal upon the ground that notice of the appeal was not served upon the clerk of the Circuit Court, as required by Section 353 of the code of procedure.</p>

<p>Motion to dismiss appeal. The case is sufficiently stated in' the order of the court.</p>

<p>1. This court has no original jurisdiction to require from the appellant, who has removed to another state, security for the costs of his appeal.</p> <p>2. Security for the costs of a case, including the costs of appeal, could be required by the Circuit Court only from an absent plaintiff, and not from one who is made a party defendant to an action of interpleader. Semble.</p>

This was an original application, on January 15th,_ 1880, by the Hon. Le Hoy F. Youmans, attorney-general, for a writ of mandamus to compel the Hon. Johnson Hagood, comptroller-general, to proceed with the levy of taxes under the act of December 24th, 1879. 17 Stat. 115. The petition set forth the following matters: 1.

Original application to this court by John C. Swearingen for discharge from custody under writ of habeas corpus. The case is fully stated in the opinion of the court. The petitioner is not a fugitive from justice. Burr. L. Diet.; 2 Carter 396; 1 Archb. Or. Pr. & PL 140. There must be an actual fleeing from justice, and of this the governor of the state of whom the demand is made, as well as of the state making it, should be satisfied.

Before Hudson, J., Greenville, November, 1878. Petition under mechanics’lien law, commenced by J. W. Murray against Sallie F. Earle. The case is sufficiently stated in the opinion of the court. Judgment for defendant, and plaintiff appealed. cited Gen. Btat., eh. GXX., § 10; Potter's JDwar. 196 ; 4 Gray, 289 ; 5 Heath 409 ; 5 Luteher 415; 1 Id. 474; 2 MaC. 218; Phillips on Meoh. Liens 57, 58, 124; Bodini v. Winter, 32 Md. 130. cited Gen. Btat., eh.

Before Fraser, J., Abbeville, April, 1879. This was an action brought in 1877, by B. B. McCrosky and Irene C., his wife, and Flora P. McCrosky, against John T. Parks and Elizabeth C. Upton, administrators of the estate of John G. Barrett, the sureties on the administration bond, two infant children of John G. Barrett, and others. Irene C. Mc-Crosky and F. P. McCrosky were children of the intestate.

Before Aldrich, J., Greenville, July, 1879. The case is stated in the opinion of the court.

Before Mackey, J., Greenville, April, 1878. Action by Otis T. Mills against the Greenville and Columbia Railroad Company for damage done to his crops of corn, &o., in June, 1876. Action commenced October, 1876. Brushy creek, near the city of Greenville', passed through a culvert under an embankment, over which the track of the de-. fendant company passed.

Before Kershaw, J., Orangeburg, October, 1878. This was an action for the recovery of money commenced September 12th, 1874, by Joshua G. W. Stroman against W. A. O’Cain and others, administrators of J. H. O’Cain, and A. B. Smith. By consent it was referred to a referee in connection with a creditor’s suit.

Before Fraser, J., Charleston, July, 1879. Action by Charles T. Mitchell against Peter Nelson and William F. Colcock, Jr., commenced in January, 1879. The case is fully stated in the Circuit decree, which is as follows: This case was heard by me, by consent of counsel, in open court, without a jury, at the term of the Court of Common Pleas for Charleston county, ending July 11th, 1879.

Before Pressley, J., Abbeville, September, 1879. Action commenced in September, 1877, by A. J. Graham against W. H. Moore, for the recovery of a tract of land.

Before Aldrich, J., Spartanburg, March, 1879. ' Action commenced February 23d, 1878, by Joseph Lawrence against Henry Grambling, for damages in trespassing upon land. By consent of parties an order was passed directing the issues to embrace the title to the premises as well as damages for the trespasses. Henry Grambling claimed title as the purchaser of the land in dispute at sheriff’s sale, as the property of Lawrence.

Before Kershaw, J., Aiken, April, 1879. The case is fully presented in the Circuit decree, which is as follows: This case came on to be heard at the February Term of the Court of Common Pleas of Aiken county, but there not being time to conclude the hearing, the saíne was concluded by consent of counsel in April, after the courts of the Second Circuit were over.

Before Hudson, J., Aiken, June, 1879. This was a motion noticed by Robert Garvin, May 26th, 1879, to set aside as erroneous a judgment rendered by Judge Reed, at Aiken, in - September, 1877, in favor of defendant in an action between Robert Garvin and John Garvin. The motion was based upon affidavits. The motion was heard June 6th, 1879, during term, and refused, upon the ground stated in the opinion of this court.

Before Kershaw, J., Barnwell, .February, 1879. Tbis was an action instituted in June, 1876, by John L. Yillalonga against Sarah A. Hicks, J. C. Miller and W. H. Kennedy, upon a bond for tbe payment of money. Isabella M. Hickson, upon her own petition, was made a party defendant, and claimed the bond as her property.

Before Townsend, J., Horry, June, 1877. Action commenced November 16th, 1875, by Ethel Lee against William L. Buck, B. L. Beaty, Joseph Todd and others, to recover the value of two mules, Kit and Jack. The claim for the value of Jack was abandoned before the hearing of the appeal. On December 31st, 1872, W. F. Hardee gave to Joseph Todd, to secure a debt, a mortgage upon four mules, Kit, Jake, Pete and Jack.

Before Kershaw, J., Darlington, October, 1879. Action by Adrian & Vollers v. Stephen Lane, commenced December 31st, 1878.

Before Hudson, J., Georgetown, November, 1879. This action was commenced in May, 1878. The case is fully stated in the opinion of the court. The charge of the judge to the jury was as follows : Whatever A. J. McQuaid, as a member of the firm of Morgan & McQuaid, did to procure towage for the “ Thomas Morgan,” would make Arthur Morgan responsible.

Before Wallace, J., Darlington, March, 1879. This was an application to the Circuit Court, in June, 1878, for a writ of certiorari, commanding a trial justice to certify the-record of a judgment rendered by him in favor of the defendants. here against the relator, and setting forth several matters upon which it was claimed that the judgment was erroneous, and that the trial justice was without jurisdiction of the case. The judgment was entered May 28th, 1877.

Before Hudson, J., Charleston, March, 1879. Nothing need be added to the statement of the case contained in the opinion of the court, except the Circuit decree, which is as follows: This cause was heard upon the pleadings and the testimony taken before the referee. The action is for the foreclosure of a mortgage, given for the purchase money of certain lots of land, with machinery, buildings and structure thereon, known as the Tyler Cotton Press..

Before Mackey, J.,-Lexington, September, 1879. Action by John Minnick against H. A. Fort, administrator, in a trial justice’s court. Judgment for defendant, and plaintiff, without making motion before the trial justice for a new trial, appealed to the Circuit Court. Because of the failure to make such motion, the Circuit judge dismissed the appeal.

Before Pressley, J., Spartanburg, June, 1879. This was an action commenced on February 12th, 1879, by W. W. Thompson, as sheriff, against C. P. Wofford and J. K. Jennings, for the foreclosure of a mortgage given to secure the payment of the purchase money of a tract of land sold by the sheriff hinder a decree of the court in an action for partition. Defence was failure of consideration to the extent of the balance claimed.

<p>Before Thomson, J., Richland, April, 1879.</p> <p>Action commenced November 12th, 1870, by Harvey Terry against M. J. Calnan, receiver, and the stockholders of the Commercial Bank of Columbia. For a proper understanding of the questions decided by this court, the case is sufficiently stated in. the Circuit decree, which is as follows :</p> <p>This complaint was filed by the billholders against the receiver- and the stockholders, for the purpose of having the assets in the hands of the receiver applied, as far as the same would avail, to the payment of the bills held by the plaintiffs, and of recovering the balance due on said bills from the stockholders, by reason of their liability under Section 4 of the charter of the bank. 12: Stat 212.</p> <p>This cause, after a hearing before the Circuit Court, was appealed to the Supreme Court, and by that court remanded, with directions for certain issues of fact to be first inquired into before the Circuit Court should decide the case upon its merits. One of these issues was the ascertainment of the date of the failure of the bank. The defendants, who are stockholders, having set up the defence of statute of limitations, the efficacy of which depends upon the date of the failure of the bank, applied for and obtained at a previous term of this court, an order for the referee to report upon the issue of the date of failure. The plaintiffs appealed to the Supreme Court from this order, and the appeal was not sustained.</p> <p>The defendants now submit their case upon this one issue of the defence of the statute of limitation as depending on the date of failure of the bank. This defence, if sustained, would render unnecessary all other inquiries as to facts, and also unnecessary the consideration of all other issues of law raised by the pleading. The referee reports “ that the Commercial Bank of Columbia, S. C., suspended specie payments and failed on the 30th day of-November, 1860, which fact, together with the evidence taken, i§ submitted.”</p> <p>To this report the plaintiffs except.</p> <p>The cause then comes before me for a hearing, without a jury, on April 25th, 1879, upon the report of the referee, the exceptions thereto, and the defence of the statute of limitations set up by the defendants. The right of the plaintiffs to follow the assets of the bank in the hands of the receiver, is not questioned. After hearing the pleadings, the report of the referee, the exceptions thereto, and the argument of counsel for the plaintiffs and the defendants, I have arrived at conclusion as follows upoq the issues submitted:</p> <p>The section of the charter upon which the plaintiffs rely, provides—</p> <p>“ Section IV. That in case of the failure of said bank, each stockholder, copartnership, or body politic having a share or shares in such bank at the time of such failure, or who shall have been interested therein at any time within twelve months previous to such failure, shall be liable and held bound individually for any sum not exceeding twice the amount of his, her or their share or shares.”</p> <p>For the purpose of this decision, I assume that under this section the stockholders are liable to the billholders for the payment of the unredeemed bills held by them, whenever the stockholder had, or ivas interested in, shares as specified in the section quoted.</p> <p>The first question to be considered is, when did the bank fail? The referee reports that the failure occurred on November 30th, 1860, and bases his conclusion upon the fact that the testimony establishes that upon that date the bank suspended specie payment, or ceased to pay or redeem its bills with specie. The testimony reported fully establishes this latter fact, and is not disputed by the plaintiffs. The testimony further shows that the suspension was notorious, or, as one of the witnesses states, “was known to everybody;” the bank never resumed, and after such suspension ceased issuing any of its own bills either for payment or in making loans. Hence, all the bills held by plaintiffs are bills which were issued by the bank, accompanied with the contract of its charter (or, as another court has held, with the ■contract impressed upon each bill,) that the bank would redeem or pay for such bills, specie, dollar for dollar. Now, upon No-' vember 30th, 1860, the bank ceased so redeeming its bills, and Jailed to make good its contract. Was not this the “failure” contemplated by Section 4? Our opinion is that a failure by the bank to fulfill any obligation or duty, or contract imposed upon it by law, is a failure in the contemplation of this section, rendering the bank or its stockholders liable, as provided in the section. The charter provides penalties to the state for certain •of these failures. These penalties the state had a right to remit, and these penalties the general assembly did remit, but any liability incurred to billholders arising out of the contract made by the bank to redeem its bills with specie, the general assembly ■could not affect by any law it might enact without coming in conflict with Section 10, Article I., of the Constitution of the United States. The general assembly could remit penalties to the state; it could protect the bank from a forfeiture of its charter, but it could not impair the obligation of any contract made by the bank with its billholders.</p> <p>I regard “ failure ” as the most comprehensive term that can be used in reference to a bank. A bank is insolvent when it is unable to pay its debts in the course of business; it is bankrupt when it fails to meet its business obligations, or does some act •connected therewith declared by law to constitute bankruptcy; and either of the foregoing cases constitute a failure. Besides, a failure on the part of a bank to perform ány contract made by it, or imposed by its charter, is a failure; although the bank might be able to perform such contracts, or might have done no act constituting technical bankruptcy. I therefore hold as a matter of law, that a suspension of specie payments by the Commercial Bank constituted, under its charter, a failure, within the meaning of Section 4. In my conclusion I am fully sustained by the reasoning and authorities cited in the decision of the United States Supreme Court in the .case of Godfrey v. The Merchants’ Bank of Cheraw, 7 Otto. This case was of a South Carolina bank, with a like charter to that of the Commercial Bank. That this suspension occurred on November 30th, 1860, there can be no doubt; and hence it must be concluded that the bank failed on that day.</p> <p>The exceptions to the referee’s report are, therefore, overruled, and the report is confirmed.</p> <p>The next question to consider is, whether the defence of the statute set up by the defendants, who are stockholders, be a good defence in bar of the action. That the statute is a good defence, was held by a unanimous court in the case of Carroll v. Green et al, 2 Otto 510, where Justice Swayne, delivering the opinion of the court, fully considers a charter the same as that of the Commercial Bank, and all the statutes of limitation of this state, giving full force and effect to the suspension caused by our stay-laws, and the decision of our courts thereon. I concur in the reasoning of, and authorities cited in, that ease, and hold that four years would bar the action. In this case the failure occurred on November 30th, 1860, and the action was brought on November 12th, 1870. More than nine years had run. From this deducting the five years’ suspension caused by the stay-laws, would leave over four years that the statute had run before action was brought. The plea of the statute must, therefore, be held as a good defence for the defendants, who are stockholders.</p> <p>It is urged that Section 132 of the code deprives the defendants of the right to avail themselves of the statute.</p> <p>Whatever might be my view of the effect of that section, it is a sufficient answer to call attention to the fact that the cause of action in this case arose before the passage of the code, and hence, under Section 96, cannot affect this action.</p> <p>It is, therefore, adjudged and decreed, that the complaint be dismissed upon the merits as to all the defendants who are sued in their capacity as stockholders, and that said defendants have judgment for their costs against the plaintiffs, the same to be taxed by the clerk of this court.</p> <p>From this judgment the plaintiff appealed to this court.</p>

Before Pressley, J., Richland, October, 1878. The facts of the case are fully stated in the Circuit decree, ■and again in the opinion of the court. The Circuit decree is as follows: The reports of the referee and the acts of assembly furnish the facts of these cases, as follows, to wit: In January, 1854, the defendant mortgaged all its property to C. M. Furman, trustee, to secure $800,000 of its bonds, payable in 1862, 1863 and 1864.

Before Pressley, J., Laurens, June, 1879. S. S. Farrar & Bros, obtained a judgment against Joseph Crews, April 17th, 1855, for $2417.51, besides interest and costs.

<p>1. County commissioners cannot be required to give a check unless there are funds in the treasury appropriated for the particular subject to which the claim belongs.</p> <p>2. Excesses in any specific appropriation, in the county treasury for a fiscal year, are applicable to other county claims for that year; an excess overall claims goes over to the next fiscal year.</p> <p>3. Funds being in the county treasury for the fiscal year ending October 31st, undrawn, but insufficient to pay audited claims for that fiscal year,, and no funds being yet collected for the fiscal year commencing November 1st, upon petition filed in January, a. mandamus was granted requiring the county commissioners to draw their warrant for one-third, or the October portion, of a trial justice’s salary, which was fixed by law and due for-the quarter ending December 31st.</p> <p>4. A salary fixed by law need not be audited, as the county commissioners' have no discretion to allow or reject it; when funds are in their treasury, applicable to its payment, it is their duty to draw a check therefor.</p>

Before Mackey, J., Richland, December, 1879. This case and the next succeeding case, Elder v. C. C. & A. R. R. Co., were heard in this court together, both involving a construction of the same section of the act incorporating the defendant company.

Before Wallace, J., Fairfield, September, 1879. This case and the next preceding case, Bonham v. C. C. & A. R. R. Co.,-were heard in this court together, both involving a construction of the same section of the act incorporating the defendant company. The case is stated in the Circuit decree, which is as follows: This is an appeal from a trial justice’s court, upon points of law.

Before Townsend, J., Edgefield, October, 1877. This was an action upon the bond of Isaac Boles, late sheriff . of Edgefield county, to which action his sureties were also defendants, to recover the amount of a judgment obtained by Lewis Jones, the plaintiff here, against one Mims. Boles, while sheriff, had sold property belonging to Mims for a sum exceeding the amount of the Jones judgment, which was the oldest existing-judgment against Mims.

Before Wallace, J., Edgefield, June, 1879. This ease having been once before this court, will be found reported in 11 S. G. 319. It will be there observed that the defendant appealed ■ from an order overruling a motion made in arrest of judgment, and that this court directed a new trial. The remittitur, sent down by the clerk of the Supreme Court, read as follows: “ Judgment.

Before Wallace,. J., Darlington, March, 1879. Action commenced in January, 1874, by Kapp & Rothschild against A. W. Loyns to recover $201.37, the price of goods-sold and delivered. Defence was failure of consideration. Verdict was rendered October, 1874, in favor of plaintiff for $24. Plaintiff demanded a taxation of costs in his favor, by the clerk of the court, which, being refused, he obtained a rule, March, 1879, against the clerk.

Before Pressley, J., York, March, 1879. For a proper understanding of this case, it will be well to read the case of Glenn v. County Commissioners of Yorh, 6 S. C. 412. Held: is the only test now proper. I therefore hold that their long acquiescence has ratified the action of their county commissioners.

Before Thomson, J., Richland, May, 1879. Action commenced in December, 1878, by C. H. Súber, as administrator of John Coate against Nancy Allen and others, heirs-at-law of J. M. Allen, the administrator de bonis non of Allen, the administrator of the first administrator, a surety of the first administrator, and the administrator of a deceased surety, and J. C. F. Sims, who, it was alleged, claimed a lot of land belonging to Allen.

Before Fraser, J., Anderson, February, 1879. This was an action commenced in April, 1877, by the plaintiffs against James T. Barnes, to charge him personally with the payment of the note set out in the opinion of the court. Plaintiffs had purchased the note from H. H. Scudday, for valuable consideration some time after its maturity.

<p>1. Where one endorses a note in blank under agreement with the maker that the blank shall be filled with a certain amount, and the maker fills it with a larger amount, and delivers it to the payee, who has no knowledge of such agreement, the endorser is liable to the payee for the note as written.</p> <p>2. If a note on the face of it, purports to be an absolute engagement to pay money at a certain lime, no parol evidence of an agreement at the time to renew and give indulgence will be admissible to defeat the action on the note.</p> <p>3. Hugely v. Davidson, 2 Mill’s Const. H. 33, limited.</p> <p>4. Whether the holder of a note has used due diligence to discover the endorser’s place of residence, is a question of fact for the jury ; but it is error to submit to them the inquiry' whether due diligence had been used in giving to the endorser notice of the dishonor of his note.</p>

Before Shaw, J., Richland, April, 1878. These were rules issued by the state against Charles M. Wilder and Ann E. Jackson, to show cause why a recognizance entered into by them, as sureties for the appearance of one Houston at the Court of General Sessions to answer to a bill of indictment, should' not be forfeited, Houston having failed to appear.

Before Wallace, J., Richland, July, 1879. Action by Carolina National Bank against William Wallace and William P. Geiger, executors of the will of Jacob Geiger, deceased. The facts are stated in the opinion of the court. The general rule laid down in Foster v. 8ineath, 2 Rich. 339, has exceptions.

Before Hudson, J., Orangeburg, January, 1879. Action by Norman A. Bull against John C. Rowe, to recover five hundred acres of land, purchased by plaintiff as the property of defendant at a sheriff’s sale, in the case of- Sarah Watt against John- C. Rowe.

Before Aldrich, J., Fairfield, September, 1878. The two cases are sufficiently stated in the opinion of the court. The judgment in the Douglass case was obtained November 4th, 1867, as stated in the opinion, but in the Armstrong case the judgment bears date November 12th, 1869. These cases were heard at April Term, 1879, and the cases were ordered to be re-argued, special attention being directed to the following questions: 1.

<p>Before Wallace, J., Darlington, March, 1879.</p> <p>The case is fully stated in the opinion of the court.</p>

Before Fraser, J., Greenville, April, 1879. The ease is fully stated in the Circuit decree, which is as follows : This case was heard by me at the regular term of the Court of Common Pleas for Greenville county, held by me in April, 1879. Certain issues of fact involved in the case were submitted to a jury who failed to agree on a verdict.

<p>Before Fraser, J., April, 1879, and Aldrich, J., July, 1879, Greenville.</p> <p>This case is stated in the opinion of the court.</p>

Before Waleace, J., Richland, July, 1879. Indictment against Hannibal Branham and March Harris, for burglary. The facts are stated in the opinion of the court. Parol evidence of the confessions were inadmissible, as they had been reduced to writing. Pressley’s Law of Mag. 208, 209; Roscoe’s Cr. Ev., tit. “Confessions;” 4 C. & P. 548; McNally’s Em. 45; 1 Leach 240, 310; 1 Busbee’s (N. C.) JR. 239.

Before Hudson, J., Charleston, March, 1879. See this case previously reported in 10 8. G. 224.

<p>1. An appeal lies from a judgment rendered in a special proceeding.</p> <p>2. A tenant, whose crop had been sold under proceedings authorized by the agricultural lien act of 1878, (16 Slat. 410) gave the notice to the sheriff prescribed in Section 8 of the act. Held, that he had thereby elected to seek the only remedy which this act afforded to the tenant, and that was an issue to determine whether the amount claimed was justly due.</p> <p>3. The tenant gave to the sheriff the notice and affidavit required by the statute, and the landlord filed in the clerk’s office a statement of the issue raised by such affidavit, and had it set down for trial at the next succeeding term of the Circuit Court. Held, that it was not necessary to serve upon the tenant notice of such filing, nor to have the issues framed by an order of the court.</p>

Before Pressley, J., Spartanburg, June, 1879. This was a bill filed in the court of equity for Spartanburg county, in May, 1868, by Thomas K. Cureton and Nancy ft. Mills, as administrators of Govan Mills, and Mary S. Cureton against It. H. Mills, J. C. Mills, J. B. Davis and William. Ballenger, for a settlement of the estate of Govan Mills, who died intestate in 1862, in South Carolina, in which state he was domiciled.

<p>Before Townsend, J., Edgefield, October, 1877,</p> <p>The case is fully stated in the opinion of the court.</p> <p>cited Code, § 134; 6 >8. C. 184; 25 N. F.625; 6 Wall. 134.</p> <p>cited Code, § 136 ; 6 S. C. Í19.</p>

<p>Before Wallace, J., Richland, July, 1879.</p> <p>This case is fully stated in the opinion of the court.</p>

<p>The sentence of the prisoner in the Court of General Sessions is the final judgment, from which alone an appeal may be taken.</p>

Before Wallace, J., Laurens, February, 1880. The case is fully stated in the opinion of the court. Defendant appealed from the order of the Circuit judge, holding the complaint to be sufficient to sustain a judgment. cited Code, § 165; 20 How. Pr. 184; 24 lb. 313; 19 Abb. 449; 1 Rob. 87; 2 lb. 56; 15 Abb. 352. The requisites of a complaint [Code, § 165,) as to demand for relief, is applicable only to cases in which a defendant does not answer.

<p>1. An action, was brought in the county of L, by the creditors of one deceased, to marshal assets, subject lands to the payment of debts, &c.; two tracts of the land lay in the county of L, and one of these tracts was claimed by one of the defendants, and another tract, which was claimed by other defendants, lay in the county of A. Held, that under an issue framed in this cause, the question of title to the lands in A might be tried in the county of L.</p> <p>2. Held, further, that there was no misjoinder of actions in the complaint. Súber v. Allen, ante p. 317, approved.</p> <p>3. The Court of Common Pleas is a court of general jurisdiction, and has power to try all cases, except such as are specially excluded from its jurisdiction.</p>

<p>Before Aldrich, J., Pickens, June, 1879.</p> <p>The case is fully stated in the opinion of the court.</p> <p>cited the code of procedure, Section 278 as amended, and Section 296.</p>

<p>1. A judgment creditor is not entitled to a decree adjudging a deed of conveyance made by his debtor to be fraudulent, until there has been return of nulla bona to an execution issued before the judgment.</p> <p>2. Plaintifis not claiming that the deficient evidence could be supplied, this court reversed the Circuit decree and dismissed the complaint.</p>

Before Aldrich, J., Laurens, February, 1879. McNinch, Irby and Blackwell, were jointly indicted for murder. A severance was ordered, and McNinch was separately arraigned, tried and convicted. See 12 S. C. 89. The state then elected to proceed with the trial of Irby, who was out on bail, and thereupon his counsel moved for a continuance.

Before Fraser, J., Charleston, June, 1879. To the statement of the ease as given in the opinion of the court, it is only necessary to add that the indictment was in the usual form charging a murder committed with a gun, but in the following description, the word “ wound, ” in brackets, was omitted: “ One mortal [wound] of the length of one-eighth of an inch, and of the depth of one inch, of which said mortal wound,” &c. There was only one count in the indictment. cited…

<p>Before Thomson, J., Spartanburg, October, 1879.</p> <p>The case is fully stated in the opinion of the court.</p>

Before Thomson, J., Abbeville, February, 1880. This is an appeal taken to this court by Sam McGreer, from a sentence based upon his conviction by the jury under an indictment for assault and battery with intent to kill. The exceptions are fully stated in the opinion of this court.

Before Aldrich, J., Charleston, January, 1880. For a full understanding of these cases, see the report of them: in 12 8. O. 314. After the remittitur was filed in the court below, a motion was made in behalf of Hand and others, holders of six per cent, bonds of 1856, for a sale of the property and a reference to carry out the directions of the Supreme Court.

.Before Aldrich, J., Charleston, November, 1879. This was a motion to set aside an attachment issued by the-clerk of the court upon the following affidavit: J. C. H. Claussen, the plaintiff above-named, being duly sworn, says: 1.

Before Aldrich, J., Charleston, December, 1879. The summons and complaint in this action were served October 21st, 1879. On November 12th defendant served notice of appearance, but never answered. On November 19th plaintiff’s attorneys served upon defendant’s attorney a notice that they would apply for a judgment by default. Defendant objected to-the docketing of the cause and to the order for judgment. The other matters and dates are given in the opinion of the court.

<p>Before Aldrich, J., Greenville, July, 1879.</p> <p>This case is fully stated in the opinion of the court.</p>

Before Fraser, J., Colleton, October, 1879. This was a petition by Dora W. Moore to the Court of Probate, alleging that the estate of her deceased husband, R. T. Moore, was insolvent, and praying that a homestead might be admeasured to her out of her husband’s lands, and an exemption of his personalty be also assigned her. This was resisted by the administrator, who .was also a creditor.

Before Mackey, J., Williamsburg, March, 1879. The case is fully stated in the opinion of the court, but it may mot be amiss to add that when the Circuit judge ordered the case to the jury, the defendants still declined to answer or defend the new action.

Before Fraser, J., Abbeville, April, 1879. McGowan, A. J., having been of counsel in this cause, did not ■sit at the hearing. This is an action brought in August, 1870, by James S. 'Cothran, as executor of Joel J. Cunningham, deceased, against ■John Knox. The pleadings and facts of the case are stated in ■the report of Ellis G. Graydon, Esq., special referee, to whom :it was referred to state the accounts.

Before Fraser, J., Abbeville, April, 1879. Held: That the division of the residuum under this clause should be made “ per capita.” 2.

Before Fraser, J., Charleston, July, 1879. For a full understanding of this case, see the reports of the case upon previous hearings in 8 S. O. 318; lb. 344; 11 8. O. 486.

<p>Before Hudson, J., Chesterfield, February, 1880.</p> <p>The defendant, Jacob Williams, was convicted of petit larceny, under an indictment charging him with the larceny of two wagon wheels and two taps, of the value of $22, in October, 1879.</p> <p>The report of the presiding judge is as follows:</p> <p>There was conflicting testimony upon the question of the value of the property alleged to have been stolen, as well as upon the question of the guilt of the defendant. The weight of the testimony was, in the opinion of the court, in favor of a valuation above $20. The jury, however, being the sole and exclusive judges of the testimony, under full instruction from the court as to the law of the case, and the distinction between grand and petit larceny, rendered a verdict against the defendant for the latter. Whereupon his attorney moved the court in arrest of judgment and to discharge the defendant, upon the ground that the Court of General Sessions is without jurisdiction of the crime of petit larceny, and without authority to pronounce sentence upon the defendant in this case. After full argument by the ■solicitor and counsel for the defendant upon the motion, it was overruled, and the defendant was sentenced to six months confinement in the state' penitentiary at hard labor.</p> <p>In support of the judgment, I assign the following reasons: The case of State v. Harper, 6 S. C.. 464, is relied upon by the defendant’s counsel as conclusive of the law of this case. I am aware of the grave responsibility I have taken in disregarding that case, but I know that there is widespread dissatisfaction among the lawyers of the state with the law as therein announced, and a general desire that it be reviewed and re-affirmed or overruled. In no way can this be effected, so far as I can see, unless it be by appeal from a Circuit judgment in conflict with it. Such a judgment I have rendered in the present case, because the lava ■of that case (State v. Harper) has never carried conviction to my mind, and is a fruitful source of embarrassment in administering the law of larceny in the state. After a careful examination of the constitution of the state and the law of the land, I can find nothing which prohibits the Court of General Sessions from pronouncing judgment upon a verdict like the one rendered in this instance. It is a well-established doctrine of criminal law and practice, that if one be charged with a grave offence, which includes one of an inferior degree, the jury may discharge the ■defendant of the higher crime and convict him of the less atrocious, and judgment will be pronounced for the lesser crime so found, unless authority so to do is denied the court by clear and binding negative enactment. Neither in the constitution nor the statute law does it appear that to the Court of General Sessions is jurisdiction of the crime of petit larceny denied; Section 18, Article IV. of the constitution, gives to it “exclusive jurisdiction of all crimes not otherwise provided for by law.” Clearly, then, if the jurisdiction of a crime is otherwise provided for by law, the ■exclusive jurisdiction of the Court of General Sessions would be taken away, but not its jurisdiction; that would remain and be ■concurrent with that of the other tribunal, unless to the inferior tribunal exclusive jurisdiction should be given, or unless to the superior tribunal all jurisdiction should be in totidem, verbis, denied. The Court of General Sessions retains exclusive jurisdiction over any and all crimes, unless jurisdiction thereof be conferred upon an inferior court, in which event the two would, hold concurrent jurisdiction. But if, in the enactment, jurisdiction is entirely denied to the Court of General Sessions, or exclusive jurisdiction is conferred upon the inferior courts, then, and not otherwise, does the Court of General Sessions lose its authority.</p> <p>A statute, which simply confers jurisdiction of a crime on an inferior court generally and not exclusively, cannot be construed to deprive the Court of General Sessions of its jurisdiction, but the jurisdiction would remain concurrent with that of the inferior court. The language of the constitution in Section 18, Article IN.,, is broader and more comprehensive in preserving a general criminal jurisdiction to the Courts of General Sessions, than it is in Sections 15 and 16 of the same article, in conferring a general civil jurisdiction upon the Courts of Common Pleas, yet the Supreme Court has not hesitated to declare that the latter court has concurrent civil jurisdiction of contracts, in-which jurisdiction has, by the constitution, been given to justices of the peace, and by statute to trial justices. See Burge v. Willis, 5 S. O. 212.</p> <p>. The reasoning of the court in this case is pithy, satisfactory and conclusive, and is in harmony with the uniform tenor of decisions of the courts of England and America in similar cases.</p> <p>It accords with the judgment of our own Court of Appeals in State v. Walker, 14 Rich. 37, and State v. Sullivan, 14 Rich. 282, and the cases therein cited; and also accords with the reasoning and judgment of our Supreme Court in State v. Simmons, 4 S. (X 72. All these cases were relied upon by Attorney-General Melton in his able argument, in State v. Harper, but they aré summarily disposed of by the chief justice in the conclusion of the judgment, by the declaration that they have no application to the point presented in State v. Harper. These cases and the cases from England, cited by the court, all hold the doctrine as one unquestioned, that “ nothing shall be intended to be without the jurisdiction of a superior court but that which specially appears to be so, and nothing shall be intended to be without the jurisdiction of an inferior court but that which is expressly alleged.” In Burge v. Willis, it is declared that when a court is vested with general original jurisdiction under the constitution, it cannot be divested of that jurisdiction by the legislature establishing another court with the same or a like jurisdiction. “ Unless there be that in the constitution of the state which deprives the Court of General Sessions of jurisdiction of the crime of petit larceny, or which empowers the legislature to do so, it is clear, upon authority, that the jurisdiction remains. The most that can be said is, that the constitution, by Section 19, Article T., confers exclusive jurisdiction upon justices of the peace, or other officers authorized by law (to wit, trial justices,) of ‘ offences less than felony, and in which the punishment does not exceed a fine of one hundred dollars or imprisonment for thirty daysand in Section 22 of Article IV., jurisdiction of prosecutions for assault and battery and other penal offences less than felony, punishable by fine only.”</p> <p>It certainly cannot be successfully contended that the crime of petit larceny is embraced in either of these sections, nor has the legislature, since the adoption of the constitution, by any enactment, so defined the crime of petit larceny, and limited its punishment as to bring it within the category of offences set forth in either of said sections. From a proper construction of the acts of the legislature in connection with the strong language of the constitution in Article IV., Section 18, I am more inclined to the opinion that courts of trial justice are entirely without jurisdiction of the crime of petit larceny, than I am to the opinion that they have exclusive jurisdiction of that grave offence, separated, as it often is, from the felony of grand larceny, by a distinction scarcely perceptible, and sometimes infinitessimal. For the crime of grand larceny, to wit, the stealing of goods of the value of $20, a convict may be and often is punished by confinement at hard labor in the state penitentiary for years, while, under tire law of State v. Harper, one guilty of stealing goods of the value of $19, under the most aggravating circumstances, cannot be punished by imprisonment exceeding thirty days in the county jail, nor by fine exceeding $100, which fine, in ninety-nine cases out of a hundred, is nugatory, because of the poverty of the convict. It would require the law to be so written in the most explicit terms to convince a rational mind that the legislature or the people in convention assembled, intended that it should be thus. A distinction so utterly at variance with common sense and justice, cannot be rectified by the law-making power of the land too soon, if it exists in the constitution or in the statute law. We are constrained to think that a correct interpretation of the constitution and laws of the state will remove this anomaly and bring order out of confusion, regarding the crime of larceny.</p> <p>To justices of the peace represented by trial justices, the constitution gives jurisdiction of the crime of assault and battery, yet the Courts of General Sessions are constantly trying accusations of this offence. Original jurisdiction in cases of bastardy is also conferred upon this inferior tribunal, and yet numerous cases of bastardy are being tried in the superior court; and. so of .the whole catalogue of misdemeanors, except this most aggravated of all, petit larceny, and for its commission a premium is held out by making the punishment thereof a mere farce.</p> <p>Chief Justice Moses, in delivering the opinion of the court in State v. Harper, on page 471, in speaking of the intention of the framers of the constitution, says: “ Their purpose, it may well be supposed, was to create, by Section 19, Article I., of the constitution, an exclusive jurisdiction of such offences, less than felony, in regard to which the general assembly might, from time to time, annex as a punishment a fine not to exceed $100, or imprisonment not exceeding thirty days.”</p> <p>But this is just what the legislature has not done as to petit larceny, and having failed so to limit and define its punishment,, it remains an offence cognizable by the Courts of General Sessions.</p> <p>The grounds of appeal by defendant were upon the grounds, that the motion in arrest of judgment was improperly overruled ; that the court was bound to follow the decision in State v. Harper; that the Court of General Sessions had no' jurisdiction to try or punish the offence of petit larceny, jurisdiction being exclusively vested in courts of trial justices; that the 'verdict was equivalent to an acquittal; and that the conviction was improper, as the indictment charged a common law offence.</p> <p>1. The common law does not confer jurisdiction upon any particular courts, but merely makes an offence indictable, and the constitution and statute law fixes the forum before which it is to be tried.</p> <p>2. The constitution vests the whole judicial power of the state in a Supreme Court, a Court of Common Pleas, a Court of General Sessions, a Court of Probate, and a Court of Justices of the Peace, at the same time authorizing the general assembly to establish such municipal and other inferior courts as may be deemed necessary. Art. IV, § 1.</p> <p>3. To the Court of General Sessions which, by Article IV., Section 1, has “criminal jurisdiction only,” the constitution gives “ exclusive jurisdiction over all criminal cases, which shall not be otherwise provided for by law.” Art. IV., § 18.</p> <p>The only jurisdiction, then, conferred by the constitution upon the Court of General Sessions, when, by that instrument, it was meant to distribute among the different courts the judicial, power of the state, may be stated thus: “ It shall have none other than criminal jurisdiction and that shall be exclusive, but its jurisdiction shall be restricted to cases which shall not otherwise be provided for by law.”</p> <p>4. Original jurisdiction in “penal offences less than felony punishable by fines only” is conferred, on justices of the peace, and, therefore, are not cognizable by the Court of General Sessions. Art. IV., § 21.</p> <p>5. Already jurisdiction had been given to “justices of the peace or other officers authorized bylaw” to try summarily “all offences less than felony, and in which the punishment does not exceed a fine of $100, or imprisonment for thirty days,” and of such offences the General Sessions could have no jurisdiction. Art. I, § 19.</p> <p>Here the constitution, having conferred no other criminal jurisdiction on the Court of Sessions than an exclusive jurisdiction in cases not othenoise provided for, and having “ otherwise provided ” for cases less than felony, &c., ceases to speak, and we must turn to the statute law and the rulings of the Supreme Court to ascertain further and more certainly the extent of the “criminal jurisdiction only/’ meant to be conferred upon the Court of General Sessions by Article IV., Section 1, and the subjects of the “exclusive jurisdiction ” conferred by Section 18 of the same article of the constitution.</p> <p>6. In 1866, before the adoption of the constitution, the general assembly had declared the simple larceny of property below the value of $20 to be a misdemeanor, and considered a petit larceny. ■ 13 Stat. 407.</p> <p>7. By authority of Article IV., Section 1, of the constitution, the general assembly did establish the inferior court of trial justice with “jurisdiction of all offences which may be subject to the penalties of either fine or forfeiture not exceeding $100, or imprisonment in the jail or work-house not exceeding thirty days.”' Also to “ have jurisdiction of larcenies * * * if the property stolen does not exceed $20 in value.” The jurisdiction of the Court of Sessions in no case being concurrent with any other court, but always exclusive, this legislation deprives it of power to hear and determine such causes. 14 Stat. 402-3.</p> <p>8. Trial justices are the “ other officers ” referred to in Article IV., Section 1, of the constitution, and have all the jurisdiction conferred upon justices of the peace. State v. Fillebroum, 2 S. C. 404.</p> <p>9. If the Court of Sessions had jurisdiction of petit larcenies, the constitution has taken it away by conferring it on another court, for where a new forum is created for the trial of offences which belonged t® another, the old tribunal is deprived of authority. Righton v. Wood, Dud. 3 67; Mclver v. State, 2 S. G. 1; State v. Fillebroum, 2 S. G. 408; State v. Harper, 6 S. G. 464.</p> <p>10. The statute having created a misdemeanor of what was before a felony, the old law is gone, and the offender must be indicted under the new, and, of course, before the court to which jurisdiction of the new offence is given. State 'v. Wright, 4 McG. 358 ; Burton v. Watldns, 2 Hill 674; 1 Bish. on Or. L. 210, 638 ; State v. Raines, 3 McG. 533.</p> <p>11. The indictment should have been under the statute to warrant a conviction for petit larceny which is now only a statutory offence. 1 Bish. on Or. L. 210, 638; 1 Bla. 89; State v. Ripley, 2 Brev. 300; State v. Wright, 4 MoO. 358 ; Burton v. Wathins, 2 Hill 874; State v. MeLain, 2 Nre®. 443; State v. Fleming, 2 Strob. 470; Biaie v. Gray, 14 Rich. 174.</p> <p>12. There can be no conviction for a misdemeanor under an indictment for a felony. This is the well settled principle in English law. Otherwise a defendant might be deprived of privileges and advantages allowed in charges of misdemeanor, which are not allowed in cases of felony, and the charges are repugnant. 1 Bish. on Or. L. 814-15-87. See, also, State v. Wheeler, 3 Vt. 344; State v. Smith, MS., Dec., 1813; State v. Fant et al., Brev., [-MB'.]; State v. Howe, 1 Rich. 260.</p> <p>This common law rule is overturned by statute in some of the states, but not in this. It is only where there is a court for a misdemeanor as well as for a felony, that convictions for the former in the same indictment have been sustained; and before the cases of State v. Boise & Stuhe, 1 McM. 189; State v. Posey, 7 Rich. 490, it was held in this state that felonies and misdemeanors could not be charged in the same indictment. State v. Smith, State v. Fant et ah, State v. Howe, above noted.</p> <p>13. To argue that because the greater includes the lesser offence, therefore, in this case, the defendant might be convicted of petit larceny, is to ignore the very question of jurisdiction which was raised before the Circuit judge — for want of jurisdiction may present an obstacle t.o such conviction. State v. Raines, 3 McO. 533 ; Nelson v. State, 10 Humph. (Tenn.) 518; People v. Abbott, 19 Wend. 192; State v. Nutting, 16 Vt. 261; 1 Bish. on Or. L. 820.</p> <p>14. The verdict was an acquittal of the offence charged as it did not conform to the indictment. State v. Lohnman, Riley Gas. 72 ; 3 "Hill 67 ; Phil. Ev. 56 ; 1 Bish. on Or. L. 814-15-20-87; Freeman on Judg. 318.</p> <p>15. Judgment cannot be pronounced as written by the court. One convicted of misdemeanor for which no specific punishment is provided is only liable to fine and imprisonment without hard labor. Russ, on Or. 92 ; Stephen’s Dig. Or. L. 15 ; Rex v. Dunn, 12 Q. B. 1041. The pententiary is for the confinement of all offenders who shall have been convicted and sentenced according to law, to the punishment of solitary imprisonment or confinement therein at hard labor. 14 Stat. 92. The judgment is erroneous, being for a punishment to which defendant is not legally subject. 1 Bish. on Cr. L. 213, 711.</p>

Before Hudson, J., Sumter, September, 1879. Held: an order was made on January 15th, 1879, by his Honor, Judge Mackey, whereby he rescinded so much of the order made by his Honor, Judge Pressley, as appointed T. B. Fraser, Esq., referee, and all issues of law and fact in the cause were referred to Charles May-rant, Esq., master in equity for Sumter county, who held references — on…

Before Wallace, J., Marion, April, 1879. Held: as before stated, as a statutory mortgage. And to a bill for foreclosure of a mortgage, it has been held in many cases that a purchaser cannot set up the defence of purchaser for valuable consideration without notice. It was so ruled in Finch v. Shaw, and Collier v-Finch, 19 Bear. 500; referred to in notes to 2 Lead.

Before Townsend, J., Marion, March, 1876. In this case the Hon. B. C. Pressley, judge of the First Circuit, sat instead of Hon. Henry Mclver, associate justice, who-had been of counsel in the cause. Chief Justice Willard was-present at the hearing, but his term of office expired before the opinion was filed. The facts bearing upon the points decided are sufficiently stated in the opinion of the court. Ann Godbold, mentioned in the opinion, was the widow of Thomas Godbold.