Volume 14 — South Carolina Reports

Before Thomson, J., Abbeville, Associate Justice McGowan, having been of counsel, did not sit at the hearing of this case. The order of the presiding judge fully states the case. Held: and subscriptions made under the provisions of said act.

<p>Before Aldrich, J., Charleston,</p> <p>From the brief furnished in this case, no fuller statement is possible than -that this action was brought by the mother, of three bastard children upon a recognizance entered into May 24th, 1876, before M. B. Delaby, trial justice, whereby Saulsberry Bright and Thomas B. Smalls acknowledged themselves indebted to the State of South Carolina in the sum of $900, with condition underwritten, as stated in the opinion of this court; that $6.25 was endorsed as a credit thereon by Delany, trial justice, in June, 1876, and $6.25 as a further credit by Chisolm,trial justice, in August, 1876; -that Smalls defended the action ;- that the verdict was for defendant; that plaintiff moved for a new trial, which was refused, and that she then appealed to this court upon the following grounds:</p> <p>1. Because the bond upon which the suit is brought is a judgment of a court having jurisdiction over the subject matter therein contained, and the said judgment, whilst unreversed, cannot be impeached in a collateral way, and the court erred in allowing said judgment to be impeached or questioned by the defendant.</p> <p>2. Because the court erred in holding that the bond was void, it being “ for the support of three illegitimate children,” instead of being for the support of one illegitimate child.</p> <p>3. Because the bond is in accordance with the statute under which it was taken, and which allows one or more children to be provided for in the same bond, and the court erred in not Sustaining it.</p> <p>4. Because the defendant is estopped from denying the validity of the bond, he having, since the execution of the same, made two payments thereon, thereby curing any defects in said bond, and the court erred in not so holding.</p> <p>5. Because, if the bond is irregular in being for the support of too many children, it is good for the support of the first child therein named, and the court erred in not so holding.</p> <p>6. Because the bond, if not good under the statute, is good at eommon law, being a voluntary obligation on the part of the defendant, Smalls, and the court erred in not so holding.</p>

Before Eraser, J., Abbeville, Andrew Edwards died in February, 1870, and J. G. Edwards and Epaminondas Edwards qualified as his executors. Under a power in the will, the lands of testator were sold December 20th, 1870, and E. Edwards and M. L. Edwards, sons of testator, purchased jointly the Home tract for $2339.88, and paid $851.22 upon their purchase, leaving $1488.66 unpaid. Of the cash payment, M. L. Edwards paid $565.62, and E. Edwards $285.60.

Before Fraser, J., Charleston, This was an appeal by plaintiff from an order of non-suit. The ease is sufficiently stated in the opinion of the court.

Before Fraser, J., Barnwell, This was an action by T. C. Pender to recover from J. W. Lancaster, sheriff of Barnwell county, damages for the sale of a horse, which, as a work animal, was exempt from levy and sale, and to recover the balance due upon the execution paid by plaintiff under protest, after levy upon his land.

Before Aldrich, J., Colleton, March, 1880.- This was an application dated in February, 1880, for leave to substitute a new record for a judgment of the Court of Common Pleas for Colleton district, entered up in April, 1859, and burned in the City of Columbia on February 17th, 1865. The order was granted, and defendant appealed.

Before Hudson, J., Darlington, This was an action instituted before a trial justice by H. Sternberger to recover from John McSween $45.30, the value of a¡ bale of cotton purchased by McSween from one L. Morris, and re-sold before action brought.

Before Kershaw, J., Sumter, This was an action brought by Charles M. Pfeifer & Co., in their behalf alone, against Herman Schwerin on an acceptance in favor of Charles M. Pfeifer & Co. and against John W. Dargan, assignee, under a deed executed by Schwerin for the benefit of his creditors.

Before Wallace, J., Chesterfield, This was an action commenced in January, 1878, by the Cheraw and Chester Eailroad Company against Ellison B. White. The complaint is as follows : The above named plaintiff, complaining of the defendant, respectfully shows to this court: 1.

Before Wallace, J., Chesterfield, This ease was heard in conjunction with the next preceding case. The differences between the complaint and demurrer there and here are sufficiently indicated in the opinion of the court. The judgment of the Circuit Court was as follows : This is an action brought by the plaintiff to recover the value of a landed subscription to the capital stock of the Cheraw and Chester Eailroad Company.

Before Pressley, J., Bichland, This was a bill in equity, filed by John Bauskett, in February, 1867, to foreclose a mortgage given him by Lana J. Hancock, in 1856, to which bill James M. Bhett, E. J. Arthur and L. D. Childs, subsequent purchasers from the mortgagor, were made parties defendant. These defendants answered. Some testimony was taken, but before a hearing, Bauskett died in 1867, and E. J. Arthur died in March, 1868.

¡Before Wallace, J., Newberry, The nature of this action is sufficiently indicated in the ■opinion of the court. To these statement of facts as therein contained it will be proper to add a few other matters appearing in the brief. The complaint alleged that no administration had ever been granted upon the estate of the said William F. Graham until (hat granted to this plaintiff; and this was neither admitted nor ■denied in the answer.

Before Kershaw, J., Chesterfield, Action by Robert T. Gaston to recover from Mary A. Brock certain lots of land in the town of Cheraw. Verdict for defendant.

Before Fraser, J., Williamsburg, Action commenced in July, 1879, by J. H. Parker & Co., against Louis Jacobs, sheriff of Williamsburg county. The presiding judge ordered a non-suit upon the motion of defendant. Plaintiff appealed. The property in dispute was levied upon as the individual property of W. A. Ward. The other facts are stated in the opinion.

Before Northrop, J., Newberry, Indictment for bastardy. Defendant was convicted and sentenced, and appealed upon the several grounds considered in the opinion of the court; but counsel for both appellant and respondent argued only the last ground, viz., whether the alternative sentence of imprisonment was within the power of the court.

Before Mackey, J., Richland, Action commenced in May, 1879, by the State of South Carolina against C. H. Baldwin, W. J. Dufne and J. H. Kinard, upon the official bond of Baldwin, county treasurer of Richland, dated February 1st, 1871, to recover $1543.63 for the state, and $1611.11 for Richland county, of moneys collected for taxes during fiscal year of 1873, and ascertained to be due upon settlement made with comptroller-general in September, 1874.

Before Thomson, J., Lancaster, This was an action commenced in January, 1879, by Walker & Trenholm against A. M., Kee, and against B. M. Miller and T. G. Cureton, assignees of Stevens & Cureton, to recover from Miller and Cureton a chattel mortgage given to Stevens & Cure-ton, in February, 1878, to secure the balance due upon three promissory notes, two of which endorsed in blank with the firm name of Stevens & Cureton, had been transferred in June, 1877, by Ardrey, Cureton…

Before Frasee, J., Charleston, Petition under act of 1878, (16 Stat. 695), to establish a judgment, based upon an audit by the county commissioners of an open account.' The audit fixed the amount of the claim, but not the date of payment. The case is fully stated in the opinion. Under their grounds of appeal, the plaintiffs claimed interest from the audit, interest on the judgment, and the costs of the judgment and of this proceeding.

Before Aldrich, J., Charleston, Controversy without action upon an agreed state of facts. The bond of plaintiff, Robinson, to Mordeeai matured in two years, interest from date, at rate of ten per cent, per annum, payable quarterly in advance, the failure to pay these installments of interest when due, and also to pay state, county and city taxes upon the mortgaged premises, and to keep the buildings insured and in good repair, to be a forfeiture of the bond.

Before Wallace, J., Chester, To the full statement of this case made by the Circuit judge, it is only necessary to add the terms of the last receipt endorsed upon the execution, viz.: “June 7th, 1873. Received of V. Atkinson, Sr., thirty dollars in full of this case. (Signed) B. G. Yocom, sheriff of Chester county.” The Circuit decree is as follows : McKelvey died many years ago, having survived his wife.

Before Hudson, J., Williamsburg, The opinion fully states the case. The bond and mortgage are very long, filling eight pages of the brief; but so much of them as are material to the errors assigned are stated by the court.

<p>Before Mackey, J., Fifth Circuit,</p> <p>The case is fully stated in the opinion of the court.</p>

Before Kersiiaw, J., Chesterfield, In this case the Honorable Thomas B. Fraser, judge of the Third Circuit, sat in the seat of Associate Justice Mclver who had been of counsel in the cause in the court below. This was an action by Caroline M. Alsobrook, as executrix of Lemuel H. Alsobrook, against Franklin L. Alsobrook and others. F. L. Alsobrook was a son of Willis W. Alsobrook, and administered upon his estate; Elizabeth P. Alsobrook was the widow of intestate.

<p>Before Pressley, J., Orangeburg,</p> <p>The case is stated in the opinion of the court.</p>

Before Kershaw, J., Darlington, Hon. T. B. Fraser, judge of the Third Circuit, satin the place of Associate Justice Mclver, who had been of counsel. This was an action commenced February 21st, 1879, by Samuel W. Pegues to recover the possession of a tract of land purchased by him on January 6th, 1879, under judgment obtained in October, 1860, and revived in 1872.

<p>Original application. Special Term,</p> <p>In tin's case, Hon. Henry Melver, senior associate justice presided, and Hon. Joshua II. Hudson, judge of the Fourth Circuit, sat, by appointment of the governor, as one of the court, the chief justice, as a. party to the cause, being disqualified.</p> <p>The case is fully stated in the opinion.</p>

<p>Before Hudson, J., Charleston,</p> <p>This was an action by Edward H. Gadsden and Rebecca H., his wife, instituted in 1873 against William Whaley, sole qualified executor of Joseph Whaley, deceased, for an account of certain moneys alleged to have been given her by her grandfather, the said Joseph Whaley, in his lifetime, aud afterwards held by him as trustee for her. The plaintiff, Rebecca, was the only child of Thomas Whaley, who was a son of Joseph, and she was seventeen years of age at the time of her father’s death in 1855. She afterwards intermarried with E. H. Gadsden. The testimony showed that of the property so claimed, a large part was lost by unsecured investments made for Joseph Whaley, by William Whaley, his son and agent.</p> <p>Three executors were named in the will of Joseph Whaley, but William Whaley alone qualified. After the decree of Judge Hudson, and after appeal therefrom by William Whaley, William Whaley died. W. J. Whaley, another of the executors named, then qualified as such.</p> <p>The receiver of the estate of Joseph Whaley, appointed in the case of Fraser & Dill v. City Council of Charleston, William Whaley, executor, and others, notified counsel in July, 1879, that he was advised that no sufficient grounds existed to justify an appeal from the decree of Judge Hudson, and that further proceedings would be at the risk of the party taking them, for which neither the receiver nor the funds in his hands would be responsible.</p> <p>All other matters necessary to a full understanding of the case are stated in the. opinion of the court.</p> <p>The preliminary, and, at the same time, ruling question in this case is, did Joseph Whaley constitute himself a trustee of the fund in question for Mrs. Rebecca Gadsden at any time? If not, there is the end of the case. There is no formal instrument of trust. If a trust exists it must have been created, and must be established by parol, and from acts and circumstances, and loose writings and expressions. Is this practicable — and, if so, under what conditions ? A valid trust of personal property may be created, and proved by parol declarations. Hill on Trustees 57. But the subject matter and purposes of the trust, and the persons to take, must be clearly ascertained. Perry on Trusts, §§ 77, 86; 3 Brown’s Oh. 577, note; 3 Ves., Jr., 708 ; 3 Oow. 580. The following recent cases contain the latest and best exposition of the legal doctrines applicable to this case. 4 DeO., F. & J. 274; 1 Chan. Ap. 28; L. R. 19 Eq. 241. See, also, Lewin on Trusts, *82, *83, *98; Perry on Trusts, §§ 96-102. And analogous cases in 1 /S’. G. 181; 4 Id. 152; 5 Id. 461; 2 Hill’s Oh. 591; 3 Rich. Eq. 398; L. R. 20 Eq. 329; 97 U. 8. 639. According to the law as declared, the elements requisite to deprive a man of his own property for the benefit of another, when there is no other than a voluntary consideration, are these:</p> <p>If in the form of a gift; (1.) There must be an intention on his part to give; (2.) There must be an execution of that intention by appropriate act, so as to complete the gift.</p> <p>If in the form of a declaration of trust: If the trust is to be created by parol declarations and acts and circumstances, it must be by words and acts “ which admit of no other interpretation than that he himself had ceased to be, and some other person had become the beneficial owner of the subject of the gift or transfer, and that such legal right to it, if any, as he retained, was held by him in trust for the donee.”</p> <p>There is no such testimony in this case.</p> <p>Was there a trust created? Perry on Trusts, § 79. That is a question of fact, and has been settled. 1 8. C. 101, 116, 325; 4 8. C. .125, 249 ; 6 Id. 310. A trust in personalty may be created by parol. 4 Desaus. 505; 2 MoC. 255; 3 Hill 222; 6 Bioh. 315. The trust created, the cestui que trust could enforce her rights. Perry on Trusts. §§ 96-99. And although without valuable consideration, equity will enforce it. 18 Fes. 140; 6 Fes. 656; 1 'Keen 551; 2 Keen 124; 1 Hare 460; 1 Phillips 153. A very strong case is Gray v. Gray, 2 Simms. {N. 8.) 273. No particular form of words is necessary. 1 DeG., M. & G. 176; L. B. 3 Eq. 686; L. B. 4 Eq. 562 ; L. B. 10 Eq. 475; 2 Hill’s Ch. 591; 11 R. I. 266; 3 Cent. L. Jour. 315. As to enforcement of voluntary trusts when completed, see Perry on Trusts, § 98.</p>

Before Wallace, J., Lancaster, This was an action commenced in the Court of Probate in 1874, for the partition of the real estate of A. J. Stewart, who died intestate in i 864. His widow administered, and William G. Stewart, a son of testator, and entitled to one-third of his estate, received of the personalty more than his share of the entire estate, real and personal.

Before Wallace, J., Edgefield, and Mackey, J., The summons to show cause, in this case, bears date January 29th, 1879, but it does not appear when ifc-was served. The case is fully stated in the opinion of this court.

Before Carpenter, J., Edgefield, The Circuit decree is as follows: In this cause a bill was filed by W. D. Jennings, who sued in that behalf as the next friend of the following children, minors: B. F. Calhoun, W. E. Calhoun, P. A. Calhoun, A. G. Calhoun, P. E. Calhoun, of whom he was subsequently appointed guardian ad litem, and by Robert Middleton and his wife, M. E. Middleton, M. A. Calhoun, G. C. Calhoun and T. T. Calhoun, on May 18th, 1868, in the Court of Equity for…

Before Aldrich, J., Colleton, The tract of land, whose possession is the subject of dispute in this case, was sold by the sheriff of Colleton county, Robert Black, on sale-day, in January, 1*80, under a decree of Judge Fraser, rendered in a cause to which this plaintiff, Gustavus W. Klinck, was not a party. The decree ordered a sale to satisfy the claim of Martha P. Godfrey, for dower, and directed the sheriff to put the purchaser at such sale into possession.

Before Wallace, J., Bichland, This was an action commenced in February, 1879, by William J. Fell, endorsee, against the endorsers of a promissory note for $835, made by Bichard Tozer, payable to the order of George L. Dial, and endorsed by George L. Dial and John C. Dial. The note was not presented at maturity for payment, nor was notice of non-payment given to the endorsers.

Before Wallace, J., York, These two actions were tried together, being actions against Samuel B. Moore, executor, for the payment of legacies under the will of John S. Moore, to Laura S. Springs, now Davidson, and Buena V. Springs, now Fielding. The report of C. E. Spencer, Esq., referee, in the case of Davidson v. Moore, thus states the facts: 1.

Before I^kessley, J., York, This was an action commenced June 21st, 1876, by James M. Ivy against W. I. Clawson, and after the death of defendant in 1877, revived against T. W. Clawson and C. E. Spencer, his executors. The prayer of the complaint was for an injunction to restrain the defendant from selling the property of the plaintiff, (who derived title through Sadler,) under an execution of W. I. Clawson against said Sadler.

Before Wallace, J., York, This case is fully stated in the Circuit decree and opinion of this court. The Circuit decree is as follows: This cause Was commenced originally in 1860, as an action on a sealed note, in which Samuel A. Black was plaintiff, and William E. Bose and another were defendants.

<p>1. By tlie first section of an act of incorporation, a railroad company were declared to “be, and they are hereby created, a body politic and corporate and in a subsequent section it was enacted “ that when $100,000 shall have been subscribed, and $1 on each share shall have been paid in, the said company may organize and proceed to work.” Held, that this requirement was sufficiently complied with when $100,000 were subscribed, and a sum in gross paid in equal to $1 upon every share subscribed.</p> <p>2. Held, further, that a failure to comply strictly with these requirements would not have affected the corporate existence, but would have been an irregularity only, which could not defeat the right of the corporation to recover a stock subscription.</p>

Before Wallace J., Chester, This was an action by J. K. Coleman, against the town of Chester. The complaint was as follows: 1. That the defendant is a body corporate, duly created and organized by and under the laws of said state. 2.

Before Wallace, J., Lancaster, This case having been heretofore twice before this court, will be found reported in 7 8. O. 131, and 9 8. C. ,376. After it was last sent back to the Circuit Court, the orders of reference mentioned in the opinion were made. The referee submitted his ■report, consisting almost wholly of a statement of accounts; but the items objected to and brought to the attention of the Circuit dourt, are indicated by the exceptions taken thereto.

Before Thomson, J., Richland, This was an action commenced in 1869. The facts are fully stated in the opinion of this court. The Circuit decree, after stating the facts, concluded as follows: What title passed by such sale ?

Before Wallace, J., York, This case is fully stated in the opinion of the court. A motion may always be renewed upon sufficient grounds. 1 Till. & Shear. Pr. 432; 4 Abb. Pr. 404; 4 Wait’s Pr. 612; 26 How. Pr. 396; Voorh. Code, 634 b; 75 N. Y. 599. The code, Section 197, authorizes the relief asked here. Counsel here, as other distinguished counsel in Brickman’s case and others, thought Judge Aldrich’s order appealable. And the direct provisions of the statute misled.

Before Mackey, J., Greenville, Action by William A. Harrison against John Bailey, commenced in 1877.

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

Before Mackey, J., Anderson, The case is fully stated in the opinion. contended that there was no difference between a note payable one year after date and one payable one day after date: if so, at what period would the line be drawn? That the words, “interest to be paid annually,” apply to the manner of payment, and not to the rate, as in 2 8. O. 253.

Before Mackey, J., Abbeville, This was an indictment for forcible entry and detainer at common law against W. T. Jones and J. W. Ware. Defendants moved to quash the indictment on the ground that there is no such offence in this state; and after a verdict of guilty, they moved in arrest of judgment upon the same ground. Both motions were overruled and the defendants were sentenced. They appealed, alleging error in the Circuit judge in refusing their motions.

Before Pressley, J., Abbeville, Upon the call of this case at April Term, 1880, of the Supreme Court, it was found that the defendant’s sentence had not been pronounced. The hearing of the case was suspended, this court holding that the appeal should be from the sentence. See 13 8. C. 439. At the next succeeding term of the Circuit Court for. Abbeville, the sealed sentence was opened and pronounced, and defendant appealed. The case is fully stated in the opinion.

Before Wallace, J., Greenville, Action by W. P. Vaughan, payee, against Elizabeth Fowler. The case is fully stated in the opinion of this court. Whether the seal was put to the note before or after its execution, the alteration of the note thereby made was not of a character to invalidate the note. To render it void there must be a material alteration. 2 Pars, on Cont. (3d ed.) 226-7. An immaterial alteration will not avoid. 2 Chit, on Cont. 1168, notej1.

This was a motion for a rehearing of the points decided in Sullivan v. Speights, 12 8.. O. 561. The case is fully stated in-the opinion.

Before Pressley, J., Greenville, Action by Hewlet Sullivan to recover $150 from John R. Jones, for an alleged trespass in taking and carrying away certain millstones, of ibe value of $100. Defendant took the millstones from plaintiff’s mill, without injury to the freehold. The case is stated in the opinion. The plaintiff appealed upon the following grounds: 1.

Original application to the Supreme Court. The facts are stated in the opinion. 1. The constitution requires (Art. II., § 30,) that before entering upon the duties of their respective offices, all officers of the state shall take the oath therein prescribed. It is evident that plaintiff had not qualified until this oath was-taken. 2.

<p>1. County commissioners may require road bands to open a new road, and a refusal to obey without proper excuse, is a misdemeanor, cognizable by a trial justice’s court.</p> <p>2. A road worker cannot excuse his default by the objection that the road ordered to be opened will injuriously affect the constitutional rights of the owners of the land through which it passes, the land-owners themselves making no complaint.</p> <p>3. No formal indictment is required in a trial justice’s court.</p> <p>4. Where an appeal is taken from the sentence of a trial justice to the Court of General Sessions, the case should not be heard de novo.</p>

<p>Motions to dismiss appeals. The cases are fully stated in the opinion.</p>

Before Pressley, J., Charleston, Action by John H. Devereux against the Champion Cotton Press Company for injury to his realty by reason of the unlawful use by the defendant of its property near that of plaintiff. The jury found a verdict for the plaintiff for $1000, under the circumstances stated in the opinion of the court.

<p>1. Trial justices have no jurisdiction of the offence of stealing, taking away or letting loose a boat under the act of 1695, (2 Slat. 105, and Gen. Stal., ch. CXXIX., 10,) for whether the offence be larceny or trespass, subject to criminal prosecution, the penalty, being indefinite in amount, may exceed the limits prescribed for such inferior court.</p> <p>2. Damages, indefinite in amount, given by statute for a trespass, may not be sued for in a trial justice’s court.</p> <p>3. A forfeiture of §20 cannot be recovered in a trial justice’s court, under a statute which provides for its recovery in a court of record.</p> <p>4. A trial justice’s court being an inferior court, has jurisdiction only of matters expressly conferred; and the act of 1695 does not expressly confer jurisdiction, nor are the penalties therein provided within the terms of the general grant contained in Chapter XXV., of the general statutes.</p>

<p>1. For work done by a clerk of court officially, he can recover only such compensation as is fixed by the fee-bill; but preparing a new index to judgments and decrees is no part of the regular and ordinary duties of such office.</p> <p>2. A Circuit judge has no power to bind the county to pay for work done upon the public records of his court, in accordance with the recommendation of the grand jury, nor can he refer it to a master of the court to fix the proper compensation for such work, nor, upon report made, order payment.</p> <p>8. In the absence of contract no action will lie against the county commissioners demanding payment for work done upon public records of the Circuit Court, although such work, when done, was used by the public.</p> <p>4. The county commissioners are the legally constituted agents of the county, and to them alone is given the power to contract county obligations.</p>

Before Pressley, J., Hampton, The case is fully stated in the opinion of the court. The prisoner was not in this court at the hearing, his presence having been waived by his counsel of record.

<p>1. The act of February 15th, 1872, (15 Stat. 42), which empowers a landowner to secure a right of way over the lands of another, violates none of the provisions of the constitution of this state.</p> <p>2. This act, in authorizing a road or highway to the nearest highway, was intended to secure to parties a way of ingress and egress, by whatever name called, to the nearest highway, and does not coniine the referees to a location upon the nearest line to the highway.</p> <p>3. This act is of force throughout the state, as well within the limits of incorporated cities and towns as elsewhere, except where acts of incorporation, by express words or by necessary implication, exclude it. There is no such exclusion in the charter of Little Rock, Marion county.</p> <p>4. Where one opens a road over his own land, from the back part to the highway, and afterwards, by deeds without reservation of a right of way, conveys the intervening lots to others, who close up this road, he is not estopped from demanding that a road be opened to him over those lots nnder the act of 1872.</p> <p>5. Prohibition is the proper remedy for keeping referees appointed under this act within'the limits of their jurisdiction.</p> <p>6. But prohibition is preventive only, and, therefore, after the road has been opened and this quasi court dissolved, redress cannot he obtained under this remedy.</p>

Before Mackey, J., Abbeville, At the request of the defendant’s counsel, this court heard this appeal in the absence of the prisoner. The case is fully stated in the opinion.

<p>1. In an action to recover the possession of real estate, an order refusing plaintiff leave to file a supplemental complaint, setting up a title deed to the land in question, is appealable.</p> <p>2. Plaintiff can recover only upon the cause of action existing when suit was commenced; and therefore in an actipn for the recovery of reahproperty, he cannot, by supplemental complaint, set up a legal title acquired after suit brought. Bank v. Manufacturing Company, 3 Slrob. 190, recognized and followed.</p>

Before Pressley, J., Pickens, Action by S. D. Crenshaw against John S. Thackston and N. T. Wilson, commenced in August or September, 1879. The mortgage bears date February 8, 1876, and was given to secure the payment of a sealed note for $346.55, with ten per cent, interest, due January 1st, 1877.

Before Aldrich, J., Barnwell, This action was commenced January 7fch, 1878, and was upon a promissory note, made by J. B. Zorn, the defendant, on January 29th, 1876, for $157.51, and payable to the order of Wroton & Dowling, at their office,' in Charleston, on October 1st, 1876, and endorsed before maturity to the Bank of Charleston National Banking Association, as collateral security to a note of Wroton & Dowling, given for money borrowed from plaintiff, the collaterals…

Before Peessley, J., Anderson, Hon. Thomas B. Fraser, judge of the .third circuit, sat at the hearing in this court, in the place of Associate Justice McGowan, who had been of counsel in the court below.

Before Pressley, J., Abbeville, This was an action commenced July 17th, 1878, by Francis M. Godbold, as executor of John Vance, deceased, against Nuella E. Vance, (widow of testator,) Nannie M., Sarah, Mary A., and Thos. W. Godbold (grand-children) and James C. Moore and others, creditors of John Vance. In April, 1872, John Vance made his will, whereby inter alia he devised and bequeathed as follows: 2.

Before Aldrich, J., Barnwell, This was a rule issued February 17th, 1880, upon J. W. Lancaster, sheriff of Barnwell county, to show cause why he should not be required to pay over to the relators, Warren, Wallace & Co., money realized under a warrant to enforce an agricultural lien. The warrant was entitled Warren, Wallace & Co. v. Thomas P. Lawton, as administrator of the estaté’ of B. W. Law-ton. The lien was executed May 2d, 1879.

Before Pressley, J., Pickens, Action commenced February 13th, 1879, by Exodus Sheriff against A. J. Welborn, for recovery of possession of a tract of land, formerly the property of N. H. Welborn. Judgment was rendered in the United States District Court for the District of South Carolina, on August 4th, 1874, in favor of the United States against N. PI. Welborn.

Before Kershaw, J., Laurens, In this case, Hon. T. B. Fraser, judge of the Third Circuit, sat in the place of Chief Justice Simpson, who had been of counsel in the court below. The case is fully stated in the opinion.

Before Thomson, J., Greenville, Action commenced February 17th, 1880, by Hewlet Sullivan against the Sullivan Manufacturing Company, William D. Sullivan, assignee, and G. W. Sullivan, Sr., G. W. Sullivan, Jr., D. D. Moore, and P. P. Cureton, as directors. The case is sufficiently stated in the opinion of this court. The Court of Equity has no jurisdiction in this case, and this objection never comes too late. Rich. Eq. Cas. 249; 14 Rich. Eq. 154.

<p>Before Pressley, J., Charleston,</p> <p>This was an action commenced August 7th, 1879, by Florian C. Mey against George W. Williams and William Birnie, co-partners, doing business under the firm name of Williams, Birnie & Co., for the recovery of thirty-four bonds of the city of Savannah, new, of the par value of $33,500. F. C. Mey having afterwards died, Harriet A. Fripp and Edward McCrady, Jr., executors of his will, were substituted upon the record as plaintiffs. Williams defended; Birnie was not served.</p> <p>The defendants were partners, doing a general commission and banking business in the city of New York, from May 1st, 1877, until May 20th, 1879. On April 29th, 1879, F. C. Mey sent to Williams, Birnie & Co., thirty-three bonds of city of Savannah, new, for $1000 each, and one like bond for $500, with instructions to collect the past-due coupons, and to hire a box in the vault of the safe deposit company, and to put the bonds in the box, and keep the key until he went to New York in the summer. These instructions were carried out, according to the statements in letters received by Mey from Williams, Birnie & Co,, one of which enclosed a receipt for $15, for one year’s hire of box in the safe deposit company’s vault. This receipt was dated May 2d, 1879, and was in the names of “William Birnie and Florian C. Mey.” This receipt was sent to Mey, enclosed in a letter signed Williams, Birnie & Co., which stated that they had placed the key in an envelope addressed to him, and put in their safe. Mey made no complaint as to the form of the receipt.</p> <p>Birnie obtained large loans from the Fourth National Bank of New York, in the name of the firm, upon the credit of col-laterals deposited, Greenville and Columbia B. B. bonds and others, vithout the knowledge of Williams, and without any entries upon their books showing such loans, One loan of August, 1877, for $25,000, and one of March, 1879, for $15,-000, were secured by these railroad bonds and others. On May 12th, 1879, a clerk of Williams, Birnie & Co. presented to the bank ar order in the handwriting of Birnie,' signed with the firm name, directing certain of these deposited bonds to be released, and thirty-four city of Savannah bonds, new, par value $33,500, to be substituted in their stead, which was done. These were Mey’s bonds. The evidence does not further trace the surrendered bonds. Upon due notice. given, these Savannah bonds vere sold by the bank December 10th, 1879, for $23,422, which was credited upon the indebtedness of Williams, Birnie & Co.</p> <p>In June, 1879, demand was made by Mey upon Birnie for the Savannah bonds, and also for the keys of the box in the safe deposit company’s vault. A like demand was made upon Williams in July following. Mey did not recover the bonds so demanded, nor any of them, nor the keys.</p> <p>Af the trial, and after proof of partnership and debt, as stated in the opinion, the testimony of John Grimball, Esq., of New York, taken by commission, was offered to prove the demand on Birnie for the bonds and keys, and what Birnie then said about the matter. Upon objection, the court ruled that demand and non-delivery might be proved, but that as this conversation was subsequent to the dissolution of the partnership, the statements and admissions of Birnie were inadmissible against Williams, and Birnie not being before the court disputing the complaint, the testimony could not be introduced at all.</p> <p>Verdict for defendant. Plaintiffs moved for a new ¡rial, which was refused, and they appealed, upon the following grounds:</p> <p>1. That the plaintiffs were entitled, on the trial, to have read to the jury the testimony of Mr. Grimball as to the declarations and admissions of Birnie, the co-partner of Williams, having relation to a state of facts existing during the co~partiership, although made after the dissolution of the firm, and that his Honor should not have excluded it, and erred in doing so.</p> <p>2. That the letter of Williams, Birnie & Co., of May 2d, 1879, was not evidence of the fact that the bonds were placed in a box of the.safe deposit company, taken for Mey, as he had instructed them, and that his Honor should so have changed the jury as requested by the pfiaintiffs, and erred in refusing to do so.</p> <p>3. That his Honor erred in charging the jury that tie plaintiffs must show that the securities upon which the loan to Williams, Birnie & Co. was originally made, actually went lack into the assets of the firm, and that the firm received the bmcfit of them, notwithstanding it was in evidence that they hid been withdrawn by the order of the firm and delivered to tip agent of the firm.</p> <p>4. That his Honor erred in that he charged the jury in respect to matters of fact.</p> <p>On November 22d, 1880, defendant Williams gave noiice in writing to plaintiffs that he would move the Supreme Coirt on Monday, November 29th, 1880, to dismiss the appeal for iiregularities in preparing and serving the case. The rule of thiscourt required eight days’ notice to be given of such motions, and that the motion should be made on “ the day fixed for the call of causes from the Circuit to which it appertains.” The day fixed, for this Circuit at this term was Tuesday, November 30th.</p>

Before Pressley, J., Union, This was an action by Berry Coleman and Emily, his wife, J. Monroe Smith and Sarah, his wife, and Margaret Farr, against James B. Smith and his sureties, commenced in the Court of Common Pleas, April 20th, 1876. Emily, Sarah and Margaret were sisters, daughters of Margaret Farr. Margaret Farr died intestate, and John Brown and James B. Smith administered upon her estate.

<p>Before Hudson, J., Sixth Circuit,</p> <p>This case is sufficiently stated in the opinion. See, too, Claw-son v. Hutchinson, 11 8. C. 323.</p>

Before Wallace, J., Spartanburg, Action commenced in trial justice’s court by F. P. Talmadge against J. H. Oliver, to recover a horse. The case is fully stated in the opinion of this court.

<p>Before Thomson, J., Charleston,</p> <p>Action commenced by Joseph A. Bilderback, James Spann Boyce and Latimer Boyce against James P. Boyce, trustee, and Mary E. Boyce, for possession of the “ Merchants’ Hotel,” in Charleston. It was referred to W. D. Porter, master, to hear and determine all the issues in the cause. The report of the master, after stating the facts (which it is unnecessary to repeat, as they are fully set forth in the opinion of this court,) was as follows:</p> <p>There is no reference in Samuel Boyce’s will to the power or the property, and the evidence shows that he died seized and possessed of other real property on which the will might operate. The first and principal question in this case is whether the will of Samuel J. Boyce is to be regarded as a good execution of the power given him by the will of his father, Ker Boyce, in relation to the Merchants’ Hotel. The settled rale in relation to wills is that the intention of the testator must be carried into effect. But to ascertain this intention, particularly in relation to the execution of powers, the courts in England adopted, from time to time, certain artificial rules, which they regarded as signs or demonstrations of intent; at one time an express reference to the power was required, but in Bennett v. Aburrow, 8 Ves., Jr. 616, Sir William Grant said, “that is not necessary.” But it was in the application of the rules that the greatest difficulty arose. The case of Doe d. Nowell v. Boahe, in 1825, 2 Bing. 510, contains a very full review of the English cases. It showed that the judges differed very much as to what should or should not be regarded as the evidence or demonstration of intent. The distinctions and refinements resorted to created great dissatisfaction, which was judicially expressed, from time to time. At last, in the case of Nannock v. Horton, Lord Eldon, speaking of the rule distinguishing power from property, said: “I am not sure it [the rule] does not oblige the court to act against what might probably have been the intention nine times out of ten.” 7 Ves., Jr., 398. In Amory v. Meredith, 89 Mass. (7 Allen) 399, it is stated that after the death of Lord Eldon, his successor, as master of the rolls, reversed the decision, accompanying his judgment with the remark, “ I fear that the intention of the testatrix may be defeated by my decision.” A curious commentary, this, upon the application of arbitrary rules to the ascertainment of intent in a will. Sir Edward Sugden (Lord St. Leonard) has reviewed the cases in his book on Powers. He says it is impossible not to be struck with the number of instances where the intention has been defeated by the rule distinguishing power from property. Sugd. on Powers, vol. I.,p. 401, § 76.</p> <p>It is said that Lord St. Leonard was contemplating a remedy through the courts, but by the statute 1 Victoria, c. 26, in 1837, the rule was changed, and it was declared that a general devise of real or personal estate in a will should operate as an execution of a power of testator over the same, unless a contrary intention should appear in the will. The question now is, how do our courts stand in relation to the doctrine distinguishing ' power from property in a will? Will, or will not,a general devise in a will operate as an execution of a power, when a contrary intent does not appear ? It is conceded by counsel on both sides that there is no adjudged case in our state settling the question. My own examination has found none. It is a new question, res integra, and our courts are now, for the first time, to entertain and settle it. It is argued that we are bound by the old rule of construction, inasmuch as the act of 1712 makes the common law a part of the law of the state. Unless there has been a recognition of it in our courts, I do not consider that any old rule of the English Chancery Courts is binding upon our courts, unless it commends itself' to our reason, and certainly not where those courts have formally abandoned it. In the case of Ring v. Huntington, 1 Mills’ Const. R. 165, Judge Cheves said: “The act of assembly [1712,] as it has been practically construed, contained rather a privilege than a command to adopt the common law except in its great and leading principles, and we, in effect, have only adopted it when we thought it reasonable and just; at least we have not thought it necessary to adopt it when .it was clearly unreasonable, absurd and unjust. If this be the spirit in which we are to view the rule under consideration (that a man shall not be allowed to stultify himself by alleging his mental incapacity in avoidance of his own act,) we shall not be much embarrassed with it, and we may declare that, though it may be the law of England, it is no part of our law.” This is the unanimous and clear opinion of the court. To the same effect are-the cases of State v. Com’rs of Roads, 1 Mills’ Const. R. 55; State v. Allen, 1 MoCord 525. Why, then, should our courts feel under any obligation to follow a rule which the English courts have tried and abandoned, on the ground that it tended to defeat, rather than carry out, the intention of the testator, and which the English parliament, doubtless on the recommendation of their Lord Chancellor and the judges, repealed and reversed by statute nearly fifty years ago? The rule of the English statute is certainly simpler and more conformable to reason. The rule of reason is, that when a man makes a general devise he means to include all the property he has the power to dispose of, unless there be something in the will to indicate the contrary. In Massachusetts the rule of the English statute is adopted. Amory v. Meredith, 7 Allen 397. See, also, White v. Hides, 33 N. Y. 380., The rule distinguishing between property and power has not become so firmly established in this state that our courts should feel under obligation to follow and adopt what the English courts have long since abrogated as unjust and unreasonable, and what the American courts are repudiating, either by judicial decision or under the stress of statutory, enactment. 4 Kent (12th ed.) 335, note.</p> <p>In a note to Blagge v. Miles, 1 Story 458, Judge Story says: “ All these refined and subtle distinctions in relation to the execution of powers are swept away by statute in England, and the doctrine has settled down in that country to what seems to be the dictate of common sense, unaffected by technical niceties.” As we are not complicated with any previous decision, and are left free to adopt what shall be considered the most reasonable rule, my conclusion is, that the will of Samuel J. Boyce is a valid execution of the power of appointment vested in him by his father’s will in relation to the Merchants’ Hotel. My further conclusion is, that if the Merchants’ Hotel passes under the will of Samuel J. Boyce, it passes charged with his debts, and that if it does not pass under his will, it goes to his children under the will of Ker Boyce. 4 Kent 340, and cases cited.</p> <p>To this report the plaintiffs excepted, and the case was heard upon such exceptions. The decree of the Circuit judge was as follows:</p> <p>It is well to ascertain the interest which Samuel J. Boyce took under the will of his father, Ker Boyce. The devise of the Merchants’ Hotel was to certain persons, as trustees, to permit his son, Samuel J. Boyce, to take the income for his own use and maintenance during his natural life, and after his decease, to the use of such person or persons as he, by his last will, may appoint. Is this power of disposal a property, or only a naked power ? The court will not imply an absolute estate when the interest of the donee is expressly limited to a life estate. Pulliam v. Byrd, 2 Strob. Eq. 142; Wilson v. Gaines, 9 Rich. Eq. 420. "Where an estate is devised to one for life, with the remainder to such persons as the tenant for life, or any appointor shall direct and appoint, and in default of such appointment to a person or a class of persons in esse, the remainder is vested, notwithstanding the interposition of the power. The estate is vested in the remaindermen, subject to be divested by the execution of the power. Williman v. Holmes, 4 Rich. Eq. 475. It appears from the authorities as the law of England, and of this state, that Samuel J. Boyce had no interest in the property but' for life, with a power of appointment by his will. 2 Orabb’s Law of Real Prop., § 2060. So that unless his will took effect as an appointment, the Merchants’ Hotel could not pass thereby. The questions are, 1st, did he execute his power of appointment? and if so, 2d, did he execute it cofrectly, or was he in excess as to part? The plaintiffs allege there was no execution of the appointing power. It is stated by the master in his report that there is no reference in the will' of Samuel J. Boyce to the power conferred by it, nor to the property mentioned in Ker Boyce’s will; and it is further stated that Samuel J. Boyce had other real property on which this will might operate. It may be observed here that there are cases, especially where married women have a testamentary power of appointment, where wills will be intended an execution of the power, though it contains no reference to the power or the instrument creating it. Churchill v. Libben, 9 Sim. 447; Heyer v. Linger, Hoff. 2. And the reason is obvious, that as formerly a married woman could not make a will, her will not expressing the power shall be referred to it. Rose v. Eives, 3 Aik. 156. What do the English cases say is a valid execution of a power by wills? Though,a will does not state that it is made in execution of the power, yet if it plainly refers to it, and comprises the subject of the power, it will be deemed a good execution. Weelock v. Gill, 1 Russ. 575; Walker v. Mackie, 4 Russ. 76. A testator having a power of appointment over certain freehold and copyhold estates, and being seized of other freehold estates, devises all his freehold and copyhold estates without reference to the power; held an execution of the power as to the copyhold estates, but not as to the freehold estates, which were subject to the power. Lewis v. LeweUyn, 4 Russ. 81. The principle involved in this case was fully considered in the case of Sarah Trymmer’s will. The syllabus of the case, as stated in the decisión of the Court of Common Pleas, is: “A devisor being seized of a moiety of certain lands in Surrey, having, by her own creation, a power of appointment over the other moiety, which she had purchased of her nephew, who succeeded her sister in the possession of it, and having no other real estate, devised all her freehold estate in Surrey to J. It., on condition that out of the rents and profits he should keep the whole in tenant-able repair, and under limitations framed, to keep the property as long in her family as possible. Held, that this devise was, under the circumstances, a good execution of the power. Doe d. Nowell v. Doolie, 9 E. G. L. 476. The case was carried, by writ of error, to the Court of King’s Bench and the judgment reversed. 11 E. G. L. 653. And from the King’s Bench the case was carried to the house of lords, and the judgment of the King’s Bench was affirmed. 19 E. G. L. 139.</p> <p>In the house of lords, Alexander, C. B., said: “ My lords, there is no difference of opinion among the judges in this cause.” I may venture to say, that in no instance has a power or authority been considered as executed unless by some reference to the power or authority, or to the property which was the subject of it, or unless the provision made by the person entrusted with the power would have been ineffectual. It would be extremely dangerous to depart from these rules in favor of loose speculation respecting intention in the particular case. It is, therefore, that the wisest judges have thought proper to adhere to the rules I have mentioned, in opposition to what they evidently thought the probable intention in the particular case before them. If authorities can settle a principle, these would seem to be sufficient.</p> <p>So conclusive did they appear to Sir Edward Sugden, that in his work on the Law of Property, he says: “ A general devise would not, under the old law, operate as an execution of even an unlimited power of appointment, unless the power or the estate were referred to, or the testator had no other real estate to satisfy the devise.”- Sugden’s Law of Prop. 493. But is the present a proper case for the adoption of the principle that a general devise will carry property held only under a power of appointment ? The intention of the donor must govern. The will of the devisor, Ker Boyce, negatives the idea of absolute property vesting in Samuel J. Boyce by the express gift for life, for the use only of the income, the power of appointment to some person or persons precluding the idea of Samuel J. Boyce’s appointing to himself, and the gift of the property to others, if no appointment be made. The different uses of the property, and the different modes of enjoyment, are evidence that the testator did not contemplate the entire interest would vest in his son. The appointee takes by authority of the instrument which creates the power, not of the instrument by which it is executed; that is, he takes in the same manner as if his name had been inserted in the power, or as if the power and the instrument executing the power had been incorporated in one instrument, and, consequently, he takes as if all that was in the instrument executing had been expressed in that giving the power. 2 Ordbb, §§ 2028, 2029. Would it consist with the supposed intention of Ker Boyce to devise property for the payment of his son’s creditors, whom he could not know, and by the execution of a power granted by him, divert the property from his grandchildren, whom he did ? Would not such a result probably be as much against the intention of the donor of the power as was supposed to be by Sir William Grant in the case of Jones v. Tuoher, 2 Mer. 533, where a woman had a power to appoint £100 by her will, and a few articles of furniture; she made her will, bequeathing £100 to plaintiff, which was held an execution of the power. Sir William Grant said that in his private opinion the intention was to give £100, which the testatrix had the power to dispose of, though he could not have judicially declared it executed. 6 Bing. 478. But if the will of Samuel J. Boyce be a good execution of the power, shall his appointment be extended so as to include his debts? The power of appointment is to the use of such person or persons as he may, by his last will, appoint. This power is not general; it is limited with respect to persons and its mode’of execution. The persons are to be designated by the appointor, not generally for such uses and purposes as the appointor shall declare; but it is to such persons as the appointor may name. Property over which dominion was exercised by virtue of a general power, is considered absolute property as far as to be liable for debts; but if it be a particular power to appoint for third persons named in the power, and not for the benefit of the donor of the power, the conclusion is different. 4 Kent 340. In strictness, how can the creditors of Samuel J. Boyce, not named, come in under a general clause, “ I direct that all my just debts be first paid ?” How are the debts to be paid; by money? So far from a sale'of the “ Merchants’Hotel,” the will of Ker Boyce intends and declares only the use of the income of the property to his son Samuel for life, and after the use of Samuel, to his appointees, and on failure thereof, then in the same form to his children or their issue. No change of the property is declared. Powers in this state have been construed strictly, and appointments not within their meaning held invalid. Thus, a power in a will to sell such property as may be useless, will not authorize an' executor to sell any property as he may choose. MeGants v. Bee, 1 MeC. Gh. 393. So a power to appoint by will is not executed by a mortgage to creditors with foreclosure and sale. Bentham v. Smith, Gheves’ Kq. 33. In the case of "Withers v. Yeadoh, a power was given by the will of John Wagner to his son, George Wagner, to give property by his last will and testament to a child or children, or any of them. George Wagner, by his will, attempted to execute this power by giving all the property to his wife, and also delegated his power of appointment to his wife, and son, John Wagner. The court held that no appointment was made, because the children being designated, no appointment could be made to the wife, and that although the property was given to him in terms which would imply ownership, yet there being a power of appointment, and children answering the description of appointees, the appointment should have been made. The result was the court held George Wagner made no appointment, and that all the children of John Wagner were entitled to the slaves given, and realty devised to George Wagner. 1 Rich. Eq. 324.</p> <p>The court finds as facts, 1st. That Ker Boyce, now deceased, made his will as stated in the pleadings. 2d. Samuel J. Boyce, now deceased, made his will as stated in the pleadings. 3d. That Mary Lane Bilderback, now deceased, made her will as stated in the pleadings. And conclusions of law, 1st. That the will of Samuel J. Boyce is not a valid execution of the power under the will of Ker Boyce. 2d. That if the will of Samuel J. Boyce be a valid execution of the power as to the devisees, it cannot appoint for payment of Samuel J. Boyce’s debts, and that no such appointment is made. 3d. That the children of Samuel J. Boyce are the tenants in fee of the Merchants’ Hotel, under the will of Ker Boyce.</p> <p>It is ordered, adjudged and decreed that the exceptions of the plaintiffs be sustained. The conclusions of law of the master are overruled, wherein they differ from the conclusions of the court, as above declared.</p> <p>James P. Boyce, trustee, appealed.</p>

<p>1. Appellant having submitted to a ruling, which admitted testimony against his objections, could not, of right, renew the objections here; but this court declined, of its own motion, to enforce the rule.</p> <p>2. In a case involving title to a piece of land of which neither party has had actual possession, private plats in defendant’s possession, made for former claimants through whom the defendant claims, áre admissible in evidence as part of his muniments of title, to show the extent of his claim.</p> <p>3. The Circuit judge having, upon inspection and without proof, admitted in evidence a paper purporting to be a grant of over a hundred years ago, found in the possession of a present owner of part of the land covered by the grant, this court, without further information upon the subject, cannot disturb his ruling.</p> <p>4. Deeds and other writings over thirty years old may be offered without formal proof of their execution, if the witnesses be dead, when there is no doubt as to their genuineness, and when they come from the proper custody.</p> <p>5. A deed of 1784, without any probate endorsed, and which was not registered, was properly admitted in evidence, the heir of the grantee having made plat covering the land, paid taxes, and cut some wood on it.</p> <p>6. A deed of 1772, bearing the signature of only one witness, A, but probated by another, B, before a justice of the peace, as duly executed by A, B and 0, and the signature of the justice being proven, was properly admitted in evidence.</p> <p>7. From possession of land, under color of title for twenty-five years, a grant is presumed.</p> <p>8. In a contest between two parties, neither of whom had ever been in actual possession of the land in dispute, but both claiming under color of title, the presiding judge properly charged the jury that if there was a joint occupation, the title must prevail.</p> <p>9. In locating land in dispute, marks and trees should govern in preference to courses and distances.</p> <p>10.Improper testimony was admitted, but as it was not material and could not have affected the result, this court would not disturb the judgment.</p>

<p>Before Wallace, J., Spartanburg,</p> <p>John Winsmith against John Dewberry, sheriff. The opinion states the case.</p>

Before Thomson, J., Charleston, Controversy without action, between Robert C. Oliver and Berkley Grimball. The marriage settlement, omitting the parts immaterial to the opinion in this case, was as follows: To have and to hold all and singular the said stocks, intecr ests and estates, unto the said L. H. Mouzon and his successors, and his and their heirs, executors and assigns forever.

<p>Motion by M. W. Gary, the defendant and respondent, to dismiss the appeal. The ease is fully stated in the opinion.</p>

<p>1. A citizen of Massachusetts died at his home, having in possession a bond and mortgage for money owing to him by a citizen and resident of South Carolina. The administrator cum testamento annexo of the deceased, for value assigned this bond and mortgage to another citizen of South Carolina, who brought in the proper court of this state an action against the mortgagor for foreclosure. Held, on demurrer, that such assignee had not the right or legal capacity here t^> bring the action.</p> <p>2. A grant of administration vests in the administrator only such movable property as may be found within the territorial limits of the government which grants it; but choses in action are bona notabilia of the state where the debtor resides, and are the subject of administration there.</p>

<p>1. After the remittitur has been sent to the court below, this court has no jurisdiction of a petition for a re-hearing of the appeal.</p> <p>2. The reasoning of this court constitutes no part of the judgment itself, which, in every case, is simply an order of affirmance, modification or reversal; and, therefore, when the judgment appealed from is affirmed, a remittitur, which states that the judgment of the Circuit Court is affirmed, is a correct transcript of the judgment of this court.</p> <p>3. A judgment rendered by this court after full argument, should not be disturbed under petition for re-hearing, except for the strongest reasons.</p> <p>4. Dial v. Gai~y, ante p. 573, affirmed.</p>

<p>1. Defendant, claiming the land in dispute by adverse possession under color of title, traced a deed under which he held to the custody of a master of the court, and proved the death of the master and an unsuccessful search for it in the office of the master’s successor; and then to show, by such deed, the extent of his claim, defendant offered secondary evidence of its contents, which was admitted by the trial judge. Held, that it was within the judge’s discretion so to do.</p> <p>2. When it is not known who were the subscribing witnesses -to an alleged lost deed, other evidence may be received to prove that the lost instrument was a deed of conveyance.</p> <p>3. Purchasers made entry upon the land under their deed, marked out their claim by survey and stakes, and upon the portion here in litigation built, a wharf on which to land lightwood, &c., and erected a boat-shed, and used both wharf and shed. Held, to be such acts of possession under-color of title as would ripen into title by possession.</p> <p>4. Such purchasers were joint tenants and one died, and under order of court the property was sold and purchased by the survivor, who paid his-, bid in full, but took no deed. Held, that the survivor did not hold under a different legal title or by a disconnected right.</p> <p>-5. Quere. May not an assignee in bankruptcy, without any order of the court, sell the bankrupt’s interest in lands held adversely by another?</p> <p>6. A party in possession of lands which were sold as the estate of a bankrupt by the assignee in bankruptcy, gave no notice of an adverse claim and bid for the property; neither he, nor those claiming under him, can afterwards object that the sale was unauthorized, because that he was an ' adverse claimant.</p> <p>7. Action was brought against A for the possession of land held adversely by him for less than ten years, but before trial he died. The plaintiffs in such action, having matured title by possession (as the verdict here shows), made their entry upon the land, and, subsequently, were ousted by the heirs-at-law of A. Held, that such heirs could not claim that their possession thus acquired was a continuation of A’s possession cast upon them by descent.</p>

Before Pressley, J., Richland, On November 6th, 1867, Samuel Jenkins conveyed to Francis Lopez, his executors and administrators, a half-acre lot in the city of Columbia, upon the following trusts : In trust, nevertheless, to and for the following uses and purposes, that is to say, for the sole and separate use, benefit and behoof of my said wife, Mary Jenkins, for and during the term of her natural life, provided she remain a widow in the event of the death of me, the said…

<p>Motion to restore to the docket of this court a case which had been dismissed by the clerk. At the time of appeal taken, Rule VII. of the Supreme Court required the appellant to serve “ three copies of the case, or brief as prepared for argument,” on the attorney of the adverse party within twenty days after the return of the Circuit Court had been filed in this court. If he failed to do so the respondent might, by notice in writing, require the service of such copies within ten days after the service of such notice, &c.</p>