Volume 15 — South Carolina Reports

Before Wallace, J., York, November, 1879. Action commenced January 26th, 1878, by York county against a former treasurer of that county, John L. Watson, for an accounting of county funds which had passed through his hands. The issues as presented to this court, by the appeal, involved the defendant’s liability for a loss occasioned by the failure of a bank, and also the matter of an alleged overcharge-against the treasurer.

Before Aldrich, J., Aiken, April, 1880. This was an action instituted June 26th, 1879, by Paul F. Hammond against the Port Royal and Augusta Railway Company, upon two causes of action, which are sufficiently stated in-the opinion of this court.

Before Thomson, J., Richland, March, 1879. This was an action commenced September 30th, 1878, by Thomas Agnew to recover two hundred acres of land from Robert Adams. Agnew claimed as purchaser at sheriff’s sale under-executions against Adams. The defendant claimed that the tract ■described in the complaint was his homestead, duly assigned and laid off to him before the sheriff’s sale.

Before Kershaw, J., Kershaw, February, 1880. This case is fully stated in the Circuit decree, which is as follows : This action was tried before me as an equitable action, without a jury, upon the pleadings, evidence and arguments of counsel.

Before Wallace, J., Marion, April, 1879. Action by Eliza J. Evans against John D. McLucas, for the recovery of the possession of a warehouse, and for rents and profits. Tbe case is fully stated in the opinion.

Before Mackey, J., Kershaw, September, 1879. Action by Hampton Johnson and John Johnson, trustees of Isabella Joiner, against T. H. Clarke, as executor of Henry H. Clarke, deceased, and against T. H. Clarke. The judgment demanded was against T. H. Clarke, as executor, &c., to be levied of the goods, &c., of H. H. Clarke, &c., “and if none, then of the further goods, &c., of T. H. Clarke.” The case is stated in the opinion.

Before 'Wallace, J., Newberry, February, 1880. Action commenced May 16th, 1879, by William T. Huff against William Watkins, for $1000 damages for employing Jordan Butler, a servant of plaintiff, under the contract stated in the opinion, the defendant having knowledge of this contract. At the trial the presiding judge asked if either party had objection to any of the jury presented.

Before Hudson, J., Fairfield, September, 1880. This was an action commehced in June, 1880, by David B,. Flenniken to recover from Clough H. Scruggs a bay mare, of the value of $150, and for $100, his damages.

<p>Before Thomson, J., Spartanburg, October, 1879.</p> <p>Action upon sealed note by H. H. Thomson against F. M. Sexton, commenced January 28th, 1878. The case is fully stated in the opinion.</p>

Before Pkessley, J., Barnwell, June, 1880. Action commenced April 13th, 1880, by Joseph Ashley as •committee of William Ashley, the younger, a person of unsound mind, against William A. Holman and William A. Bailey, as •executors of the will of William Ashley, the elder, deceased.

Before Fraser, J., Pickens, March, 1879. This action was commenced April 14th, 1875, by John Hel-lams, surety, against Elihu W. Abercrombie, principal debtor, to-foreclose a mortgage given for indemnity, and upon the death intestate of the plaintiff was continued by his administrator, John R. Hellams. The liability of plaintiff and defendant was on a sealed note-to John Woods for $200, which note was executed November 8th, 1858.

Before Pressley, J., Charleston, February, 1880. Action commenced January 5th, 1880, by John L. Ancrum against F. Wehmann, for $620, with interest, for a steam yacht, which had been sold to plaintiff at public auction, December 16th, 1879, and purchased by defendant; and that plaintiff had tendered and was still ready to tender the possession and a sufficient bill of sale.

Before Pressley, J., Charleston, April, 1880. Tbis ease, brought up on appeal under the title of City Council of Charleston v. Dorothea Blohme, was a rule upon Mrs. Blohme to show cause why she had not complied with her bid of $2500 for a lot of land in the city of Charleston, purchased in October, 1879, under a decree of foreclosure rendered in the case of City Council of Charleston v. Mary A. Byan.

Before Wallace, J., York, November, 1879. Action for recovery of land commenced June 17th, 1876, by H. F. Adickes, William McGill and Thomas McGill, against John T. Lowry and Fenton Diggs. The case may be found reported in 12 8. O. 97. At the second trial the defendant was allowed to amend his answer, so that it might set up the defence of possession since January, 1872, under a contract then made for the purchase of the land in dispute here.

Before Fraser, J., Georgetown, March, 1880. Held: time and again, to be a mere “ desoriptio persones.” Beazley v. Bunn, 8 Rich. 346; Ab. Forms 140, note ■ Olmstead v. Vreden-burgh, 10 Sow. Pr. 217. There may have been a good reason for establishing such a rule, though I cannot see now any valid reason for retaining it, and it seems to be against the whole spirit of the code.

<p>1. The statement of a juror on Ms voir dire in the bearing of the jury that “he had said he thought the prisoner was guilty and ought to be hung,” and the volunteered opinion of a witness for the state from the stand that he would not believe the prisoner on his oath, are no grounds for a new trial of one convicted of murder.</p> <p>2. The prisoner was arraigned in open court, in the presence of the clerk, by one who had'been appointed deputy clerk and was acting as such, although he had not formally complied with all the requisites of a legal appointment. Held, that the arraignment was valid.</p> <p>3. While the law presumes malice from the mere fact of intentional killing, yet when all the facts are brought out, there is no room for presumption, and the state, who affirms the malice, must prove it. State v. Coleman, 6 S. C. 185, approved.</p>

<p>1. Under judgment against an administratrix, who was also widow, the unimproved lands of the intestate were sold, and the purchaser erected thereon valuable buildings, after which the widow brought her action for dower. Held, that she was entitled to her dower of the lands so improved, and that it should be estimated according to1 the value of the premises at the time of assignment.</p> <p>2. The question of the widow’s estoppel by her laches to claim dower in the value of the improvements was adjudicated in her favor on the former hearing of this case. 13 S. O. 25.</p> <p>3. But the widow being practically in possession of the bare lot until the sheriff's sale, and having forborne for a long time to assert her claim, interest was allowed only from the date of the possession by the last purchaser— the defendant here.</p>

<p>Before HunsoN, J., Fairfield, September, 1880.</p> <p>Action by James M. Beard, George F. Beard, Sarah E. Beard, Joel A. Beard, and James M. Beard, administrator of W. W. Beard, against John D. Stanton. The case is fully stated in the opinion of this court.</p>

Before Wallace, J., Newberry, May, 1880. Action by George W. Williams & Co. against Thomas M. Paysinger, David H. Wheeler, David B. Werts and James M. Sanders. The case is fully stated in the opinion. The facts appear only in the report of the referee.

Before HudsoN, J., Darlington, March, 1880. Hon. A. P. Aldrich, judge of the Second Circuit, sat in the place of Mr. Associate Justice Mclver, who had been of counsel. The case is stated in the opinion, and other facts will be found in the Circuit decree.

Before Mackey, J., Richland, November, 1879. To the case as stated in the opinion, it will be necessary to add Very little. The complaint alleged the death of the mortgagee, that he had left a will appointing the plaintiffs executors, and that they had duly qualified, &c. Neither the will nor any ■copy of it was offered in evidence, and the only evidence submitted of its existence and proof, is that contained in the recitals in the letters testamentary.

Before Thomson, J., Charleston, July, 1880. Held: in an action of replevin, to be certain enough to declare for fourteen skimmers and ladles, without saying how many there were of each.

<p>1. A prisoner was sentenced to imprisonment “in the state penitentiary at hard labor, for the term of two years from this date, February 27th, 1879;” but, by reason of his appeal, was not transferred from the county jail to the penitentiary until July 31st. Eeld, that the time for the commencement of the punishment was not of the essence of the sentence, and that the prisoner’s term in the penitentiary was for two years from July 31st, 1879.</p> <p>2. By the terms of this sentence, interpreted in the light of the laws then in force, this convict might be hired out, by the directors of the penitentiary to. work on a railroad.</p>

Before HudsON, J., Lancaster, September, 1880. Action commenced November 23d, 1877, by Joseph F. Wallace, trustee for the creditors of J. Leroy Davis against J. H. Foster and J. C. Foster, upon a sealed note, given by defendants December 8th, 1857, for $618.59, payable to L. H. Massey, assignee of J. L. Davis, twelve months after date, with interest payable annually. The case was referred to J. J. Hemphill, Esq., as special referee for final determination and report.

Before Kershaw, J., Richland, June, 1880. . It will not be necessary to repeat the facts which are set forth in the opinion, but it will not be amiss to state some of the matters more fully. Jacob Burriss, as administrator of Milford Burriss, brought suit against the Greenville and Columbia. Railroad Company for a recovery upon thirty-two lost bonds, of which four were first mortgage, the others non-mortgage.

• Before Pressley, J., Marion, March, 1881. Indictment against Richard James, Ben James and Louis James for murder. Louis was acquitted, and Richard and Ben were convicted. During the progress of the trial Jack Johnson and Kelly Mc-Rimmon were offered as witnesses for the state against Richard James.

Before Kekshaw, J., Laurens, September, 1880. Hon. T. B. Fraser, judge of the Third Circuit, sat in this court on the hearing of this cause, in the place of Chief Justice Simpson, who had been of counsel in the court below. Action by Nancy A. Caldwell against John W. Little and L. R. Brooks, as administrators of David Williams, deceased. For a full understanding of the points decided by this court, the case is clearly stated in the opinion. The plaintiff appealed.

Before Pressley, J., Anderson, September, 1879. In these cases, which were heard together, the Hon. Thomas B. Fraser, judge of the Third Judicial Circuit, sat in the place of Associate Justice McGowan, who had been of counsel in the court below. They were three actions commenced June 29th, 1874, in the name of the State of South Carolina, ex relatione Lydia A. M. Yan Wyck, Mary Maverick and eight others, against Isabella H. Norris and thirty-four other defendants.

Before Wallace, J., Richland, July, 1879. Action by Caroline J. Geiger, Isabella C. Geiger, Juriab E. Geiger, John A. Geiger and Frederick Ann Geiger against George Kaigler. It does not appear when the action was commenced; the brief says “ it was begun by summons and conplaint.” The complaint states that Henry J. Geiger, the son of testator, died under age and unmarried, and that Alexander Geiger, the executor, died in 1868. The case is fully stated in the opinion.

Before Kershaw, J., Chester, June, 1880. This was an action commenced August 11th, 1879, by John S. Bratton against Benjamin H. Massey, the heirs-at-law of W. T. Gilmore and certain creditors, who, together with the plaintiff, had established demands against the estate of W. T. Gilmore, under proceedings had in the Circuit Court for Chester county, in 1869. B. H. Massey was also sole heir-at-law of Mary E. Gilmore. The case is stated in the opinion.

Before Pressley, J., Charleston, February, 1880. Associate Justice Mclver declined to sit at the hearing of this appeal, because of his being a stockholder in the plaintiff corporation. By consent of counsel, the case was heard by the two remaining justices.

Before HudsoN, J., Richland, July, 1880. Hon. A. P. Aldrich, judge of the Second Judicial Circuit, sat at the hearing of this appeal in the place of Associate Justice McGowan, who had been of counsel. This case involves a contest between creditors of the Green-ville and Columbia Railroad Company. It is therefore a branch of the parent-case reported 13 S. O. 228, but raises points not there considered.

Before Wallace, J., Charleston, November, 1880. These were petitions by E. W. M. Mackey, and the other parties mentioned in the opinion of this court, presented to Judge Wallace, then holding the Circuit Court in Charleston, for writs of mandamus to compel E. L. Eoche, T. W. Carwile and H. J. McCormack to count the votes at “ Brick Church ” and “ Ten Mile Mill” precincts.

Before Wallace, J., Union, April, 1880. Action by M. F. Scaife, M. E. Nowell and E. E. Mills against J. S. B.. Thomson, Wade Fowler, J. C. Spears, and H. H. Thomson, administrator with the will annexed of I regret that for want of time I will not be able to give the reasons fully that have governed my conclusions in this case.

Before Mackey, J., Charleston, February, 1881. These cases were an indictment against Mack Gathers for assaulting and resisting an officer, and an indictment against James Smalls for a like offence. It does not appear when the indictments were found, nor when the offence of Gathers was alleged to have been committed. The assault was made by Smalls, according to the indictment, on June 20th, 1880.

Before 'Wallace, J., Charleston, November, 1880. This was an indictment for the murder of Peter Broughton, ‘by stabbing, charged to have been committed by the defendant, -Caesar Collins. The wound was given June 7th, 1880, in Charleston county, and the deceased died in the city hospital in the city of Charleston on July 20th, 1880. The exceptions allege errors of the Circuit judge in certain rulings upon testimony.

Before Aldrich, J., Colleton, March, 1880. The defendant, Gabriel White, was indicted for the murder of Frederick Bellinger in January, 1880. At the trial, the original panel having been exhausted, the names of talesmen including •some who resided more than five miles from the court house, were placed in the hat. During the drawing, the sheriff stepped aside to speak to some one, at which moment the name of a juror was drawn, the sheriff not seeing it.

Before Pressley, J., Charleston, March, 1880. This action was commenced October l&th, 1879, by Mary A. Hyatt and Joaquin Delmonte as executors of Edmund Hyatt, deceased, and Mary A. Hyatt, Mary E. Hyatt and Julia Del-monte, devisees and heirs-at-law of said Edmund Hyatt, against William McBurney, William Hasseltine, Alfred L. Gillespie and Thomas B. McGahan, members of the late firm of Hyatt, McBurney & Co., and Caroline Carson.

Before IíulsoN, J., Lexington, June, 1880! ■ The defendant, Squire Clark, was indicted in February,T 880, for the murder of Walter Scott Hook, in Lexington county, on October 8th, 1879. The deceased was found dead upon the railroad track at day-dawn on October 9th, the body showing unmistakable signs of having been run over by one or more trains of cars.

Before THOMSON, J., Sumter, February, 1881. This was an indictment against Wesley Toney, Reece Toney and Lawrence Toney, for malicious trespass. The report of the presiding judge is as follows : “ The said defendants were indicted for malicious trespass. The act charged was the beating and wounding, against the act of assembly, of a cow of JD. E. Keels, the prosecutor. The proof was that on November 1st, 1880, the cow was seen in Wesley Toney’s lot or cow-pen.

Before Aldrich, J., Barnwell, July, 1880. Motion made at Chambers, July 3d, 1880,'in behalf of H. M. Myers, executor of Gideon S. Brown (who died in 1878,) to set aside renewal execution of Duncan, Malony & Co. against G. S. Brown, issued May 11th, 1880, by Robert Aldrich, as attorney for the plaintiffs, upon grounds affecting the regularity and validity of the renewal. The opinion states the case.

<p>In a trial de novo in the Circuit Court on appeal by the defendant from the judgment of a trial justice, the plaintiff is entitled to open and reply; and the denial of this right is appealable to this court.</p>

Before THOMSON, J., Orangeburg, May, 1880. Action commenced September 9th, 1874, by Zipporah R. Shuler, against William H. Bull and Waring Bull. Pending suit Waring Bull died, and the action was continued against W. H. Bull alone. The nature of the plaintiff’s claim and of the defences are stated in the opinion.

Before ThomsoN, J., Hampton, October, 1880. Indictment against Asa Scott and five others for arson, burglary and grand larceny. The opinion states everything that is to be learned from the meagre brief in this case. cited 4 Humph. 194; 2 McLean 325; 10 Ga. 46; 29 Ala. 62; Boscoe’s Cr. Ev. 122, 123, 188; 11 S. C. 275; 3 Strob. 523, note; 1 Mete. 13; 14& O. 628; 7 8. C. 283; 14 Bich. 169. cited Archh. Cr.

Before ThomsoN, J., Sumter, February, 1881. This was a controversy without action instituted in February 1881.. The will here construed bears date January 4th, 1868. The opinion states the case. cited Oo. Lit. 112, b, note 144 • 2 Roper on Leg., § 1460; 1 Hill’s Ch. 367 ; 6 Ves. 100; 1 Jarm. on Wills 593; 16 Ves. 135; 8 Cow. 277. cited 7 Bligh 56 ; 2 Williams on Ex’rs (2d Am. ed.) 789; 4 Kent 270; 1 Jarm. on Wills (Perk. ed.) 677 ; 19 Johns. 20; 8 Rich. 88.

Before THOMSON, J., Aiken, September, 1880. This was an action by Marina S. Gunter against the Granite-ville Manufacturing Company, a body corporate, commenced October 4th, 1879, for injuries to the plaintiff in the August preceding, resulting in the loss of her right eye, to her damage $10,000. ' The defendants admitted the injury, but alleged that it was the result of an accident incident to her employment, was caused by a fellow-servant, and by her own gross negligence.

<p>Before Aldrich, J., Marlborough, September, 1880.</p> <p>Action by Thomas W. Williams against Harriet Irby, commenced in December, 1879, and tried by a trial justice in March, 1880. The opinion states the case.</p>

.Before Mackey, J., Bichland, October, 1879. The plaintiff association commenced business under its charter in the city of Columbia in 1873. The defendant, John Dorsey, became a member of the association in January, 1878, by purchasing five shares for $295. In the same month defendant borrowed $1000 on these five shares, upon the terms mentioned in the opinion of this court.

Before Frasee, J., Richland, November, 1880. Action by William W. Chapman against Thomas J. Lipscomb, as superintendent of the South Carolina penitentiary, commenced in August, 1879. The case is stated in the Circuit decree, which is as follows: An action was brought by the plaintiff to recover one hundred and seventy-one thousand brick, or the value thereof.

Before ThomsoN, J., Beaufort, November,1880. This action was commenced February 5th, 1878, by William J. Verdier, against the defendant corporation, for the recovery of real property, and damages for its detention. The opinion states the case as fully as does the brief. No grounds of appeal are given.

Before Thomson, J., Beaufort, November, 1880. Action by Lewis R. Sams against the defendant corporation.. The opinion states the case. It does not appear that the Port Royal Railroad Company took any notice of the letter of W. R. Clautman, set out in the opinion.

Before Mackey, J., Charleston, February, 1881. Action commenced December 18th, 1880, by Judith Brown against D. H. Buttz. The complaint alleged the facts stated in the opinion of this court, and none others, claimed $100 damages, and prayed judgment for such damages, and for the vacation of the transcript. No fraud was alleged. Other facts are stated in the opinion.

Before Wallace, J., Newberry, May, 1880. Action commenced August 12th, 1873, by E. S. Keitt against G. B. Counts and E. B. Subef, for tbe recovery of a steam engine- and carriage.

Before HudsoN, J., Chester, October, 1880. Action by Frederick E. Fraser, trustee, against Mary F. Davie and Churchhill B. Jones, his wife and children. The opinion sufficiently states the case. The Circuit decree is as follows : This cause has been heretofore heard on the Circuit, and on appeal in the Supreme Court, and has been there decided except in one particular.

Before Wallace, J., Laurens, May, 1880. At the hearing of this appeal the Hon. Thomas B. Fraser, judge of the Third Judicial Circuit, sat in the place of the Chief Justice, who had been of counsel in the court below.

Before Hudson, J., Eichland, July, 1880. In this case, Hon. A. P. Aldrich, of the Second Judicial Circuit, and Hon. T. B. Fraser, of the Third Circuit, sat in the places of Chief Justice Simpson and Associate Justice McGowan, who had been of counsel in the original causes.

Before Hudson, J., Marion, April, 1880. Francis W. Kerchner and Asa K. Walker, execution creditors, and Robert L. Singletary, execution debtor and claimant of ■ homestead, are the parties to this appeal.

Before HudsoN, J., Newberry, February, 1881. This was an indictment against Isom Workman and John P. í?atterwhite. The report of the presiding judge is as follows: The defendants were jointly indicted under Chapter CXXIX., Section 4, page 714, General Statutes. Upon their arraignment they claimed the right of twenty peremptory challenges each to the jurors. This I refused, and held them each entitled only to five peremptory challenges.

Before Thomson, J., Sumter, February, 1881. Action commenced in the Court of Common Pleas, January 2d, 1879, by William G. Kennedy against Frederick L. Reames -and Washington Miller. Miller was living upon the land on which the crop in dispute was made. Reames owned the land, but did not reside upon it. The opinion states the case.

Before PIudsoN, J., Lancaster, September, 1880. This was an action commenced on November 18lh, 1879, by the plaintiffs, against James H. W. Stevens and Thomas J. Cureton, who had been merchants and copartners, under the, firm name of Stevens & Cureton, and against B.. M. Miller and T. G. Cureton, trustees, under-an assignment made by Stevens & Cureton, for the benefit of their creditors.

<p>1. A rule was issued requiring a sheriff to show cause why he did not apply moneys in his hands d¿rived from a sale of the lands of one deceased to a judgment obtained against the deceased in his lifetime. Upon return made, the rule was referred to a referee, who reported a certain amount still due. To this report the administrator of the deceased filed exceptions, which, in substance, alleged that the judgment was paid. The report was confirmed. Held, that this proceeding was not res judicata as to creditors and distributees of the deceased not parties to the rule.</p> <p>'2. The proceeding by rule was proper, and the report, when confirmed, became a judgment binding upon parties and privies; but even if the administrator was a party and became thereby bound, his appearance would not bind his privies, unless he had a right to appear as a necessary and proper party.</p> <p>8. The creditors are privies of the administrator and bound by his legitimate acts, but not where his act related to the disposition of moneys arising from a sheriff’s sale of the intestate’s land after his death, under judgment obtained against him in his lifetime.</p>

Before Pressley, J., Anderson, September, 1879. Action commenced in 1879 by the plaintiffs against A. R. Campbell & Co. and Mary M. Campbell, upon the three notes set out in full in the opinion of this court. W. N. Mitchell was not served and A. R. Campbell put in no appearance. The three notes were given for a 'debt of A. R. Campbell & Co. to Pelzer, Rodgers & Co., then past due.

Before Pressley, J., Anderson, September, 1879.' The appeal in this case was from an order in supplementary proceedings commenced by Beuben Clinkscales, as administrator of Jeremiah Moore, under judgment obtained by the intestate in - October, 1876. The opinion states the case.