Volume 16 — South Carolina Reports

Before Thomson, J., Richland, April, 1879. These were two actions heard together. Held: then no school tax could be levied; or if meetings were held and not formally conducted, and a sale made thereunder for taxes, the title would be defective; a very small tax illegally levied (laid on) would vitiate the title. If you find such meetings were not held, the court instructs you the title is defective.

Before Mackey, J., Edgefield, April, 1880. This was an action commenced in September, 1878, by Mrs. S. E. Moore and others, the heirs at law of W. N. Moore, deceased, and by Mary P. Lake and others, the heirs at law of Thomas Lake, deceased, against Bennett Holland, assignee of J. M. Bichardson; Lycurgus Charlton, Judge of Probate, and successor in office to D. L. Turner; B. Gr.

<p>Original application to the Supreme Court.</p> <p>Petition for mandamus to the comptroller-general, filed December 7th, 1880, by John Lynch, trustee of Mary E. Allen, and heard on petition, order to show cause and return, on May 2d, 1881. The opinion states the case.</p>

Before Townsend, J., Edgefield, October, 1877. Milton A. Prater, executor of James M. Whittle, deceased, against Rebecca Whittle, the widow of testator, and his other heirs; application to prove will in solemn form, after demand by the widow that it should be so proven. The trial was had in the Court of Probate for Edgefield, in 1872. Other facts are stated in the opinion.

<p>Before Pringle, Recorder, Charleston, January, 1881.</p> <p>These were two actions in the City Court of Charleston, brought by the city council of Charleston against "W. J. Oliver to recover license fees, in the one case for publishing a daily paper, and in the other for job printing, and, also, in both cases, the penalties for non-payment, the complaint also demanding imprisonment for thirty days if the judgment was not paid. Defendant demurred and answered as follows:</p> <p>First. The defendant above named demurs to this complaint, because:</p> <p>1. It is a criminal action, and not cognizable by complaint; and,</p> <p>2. Criminal and civil proceedings cannot be combined in the same form of action as are set forth in the complaint; and,</p> <p>3. The plaintiff hath no right to pass the ordinance of 17th December, 1879; and,</p> <p>4. No assessment or notification thereof has been or is alleged to have been given to defendant; and,</p> <p>5. A license is not a tax in Charleston city; and,</p> <p>6. There is no imprisonment for debt in this State.</p> <p>Second. The defendant, for answer to said complaint, says:</p> <p>That he never contracted with the plaintiff touching a license.</p> <p>He prays to be hence dismissed with his costs, &c.</p> <p>The judgment of the court, rendered by Hon. W. Alston Pringle, recorder, was as follows:</p> <p>The following statement of the law and facts covers the ground taken in both demurrers and the answers:</p> <p>The allegation that the defendant is indebted to the plaintiff is a sufficient allegation that neither the license nor the penalty has been paid.</p> <p>The legislature, by the act of 1st March, 1870, authorized the city council of Charleston to require payment for licenses from persons engaged in business in the said city. By another act of the same date, the legislature authorized the city council to impose imprisonment in the alternative for all violations of the city ordinances.</p> <p>The ordinance of the city council, under which the defendant is liable for the payment of the licenses and penalties for which these suits are brought, imposes an imprisonment of not more than thirty days as an alternative in default of payment. There is no provision in the ordinances limiting the requirement for a license to persons employing more than one hand.</p> <p>It has been already decided that the licenses required by the ordinances of the city council of Charleston are taxes. Cooley Tax. 13-14.</p> <p>Under this authority the defendant is liable for the amount of the licenses and the penalties, and, in default of payment, to an imprisonment of thirty days in each case, and the judgment should be so entered up.</p> <p>Defendant appealed, in both cases, to this court, upon the following grounds:</p> <p>1. Because, the demurrer should have been sustained for the reasons set forth therein, which are re-asserted.</p> <p>2. Because the act of 1870, authorizing the city to require payment for licenses for “ all trades and professions,” is unoonstitutional under Sections 20 and 33 of Article II., and Section 12 of Article I. of the State constitution, and Section- 10 of Article I., Articles I., "VTU. and IX. of the United States constitution.</p> <p>3. Because the ordinance of 17th of December, 1879, is ultra vires, in its prohibitory clause, of the act of 1870, which contains no prohibition; is illegal in its requirements for license for want of any prohibitory act, and is unconstitutional under the foregoing sections of the State and United States constitutions, as well as under Section 20, Article I., of the State constitution.</p> <p>4. Because, “All taxes * * shall be considered and held as a debt payable to the city,” by the fifty-second section of the city ordinance of 1870, and the demand sued for is styled “a debt” in the complaint.</p> <p>5. Because the demand is not for taxes, but for penalties, which are “ monetary obligations.”</p> <p>6. Because the act of 1st March, 1870, relates to the police powers of the city, and not to taxation, and if it relates to the latter it is unconstitutional, under the foregoing sections of the State and United States constitutions.</p>

<p>1. Under Section 337 of the Code of Procedure, attorneys are entitled to have their costs and disbursements inserted in the entry of judgment — the amount of costs which they are entitled to receive, and of disbursements paid to officers for fees, being regulated by the subsequent act of 1880 (17 Stat. 296).</p> <p>2. The theory of the law is that the fees of sheriffs and witnesses are disbursements paid by the prevailing party, but it is not error in the taxing officer to charge them in the bill of costs as due to those officers.</p> <p>3. In the absence of any showing to the contrary, it must be assumed that witnesses were entitled to the fees allowed by the clerk in his taxation.</p> <p>4. The production of a subpoena writ is not essential to entitle a witness to the taxation of his fees; and, quere, is it necessary for the witness to show that he has been subpoenaed ?</p> <p>5. The act of 1880 (17 Stat. 303), in its repeal of Section 330 of the code, also repealed the proviso, which was made a part of that section by the act of 1878 (16 Stat. 409), limiting costs to an amount not exceeding the recovery.</p> <p>6. Even if the clerk erred in the ground taken to support his taxation, it cannot avail the appellant here.</p> <p>7. Semble: Disbursements should be taxed under the fee bill which was of force at the time they were incurred. This case distinguished from ICapp & Rothsehild v. Loyns, 13 S. O. 288.</p>

Before Hudson, J., Lancaster, October, 1880. This was an action commenced July 29th, 1873, by Dilla Small and Uriah Small, devisees of John B. Small, against Marion Small and others, heirs and devisees of the same John B. Small, and against Mary Small, his widow; and, upon the death of Mary Small, it was revived against her devisees.

<p>Before Hudson, J., Chester, October, 1880.</p> <p>Action was instituted in January, 1880. The opinion states the case.</p>

Before Hudson, J., Lancaster, October, 1880.' These were actions by Walker & Trenholm against A. M. Kee and B. M. Miller and T. G. Cureton, assignees of Stevens & Cureton, and of Cureton, Ardrey & Co.; and by The Mer•chants’ and Farmers’ National Bank, of Charlotte, N. C., against the same defendants. The two actions were commenced in 1879? and were afterwards consolidated and heard together.

Before Fraser, J., Barnwell, September, 1879. The case is stated in the brief as H. F. Townsend against Simon Brown and others, In re M. M. Duncan, demandant, against Simon Brown, defendant.

Before Aldeich, J., Greenville, July, 1879. Action by tbe State of South Carolina on the relation of A. Detheridge against Perry D. Gilreath, sheriff of Greenville county, and the sureties on his bond. The opinion states the case. Verdict was for defendants.

Before Kershaw, J., Newberry, November, 1880. Action commenced October 1st, 1879, by Tabitha A. Campbell against Nancy Moon and John S. Moon, for the recovery of real property. The opinion states the case. The charge of the presiding judge is not stated in the brief.

Before Aldbich, J., at Chambers, September, 1879. Action by John V. Stribling against James A. Johns, in Oconee county. The opinion states the case. The order appealed from was as follows: This is a motion to extend the time in which to perfect an appeal. Appeal is not a right; it is a privilege of which the party desiring to avail himself can take advantage by complying with certain conditions.

Before Mackey, J., Pickens, September, 1880. Motion by E. H. Lawrence and J. L. Gravely, in action by Clin L. Durant, Probate judge for Pickens county, against I. H. Philpot and these relators. The facts are substantially stated in the opinion of this court.

Motion to dismiss appeal. Susan B. Alexander, and another, against T. M. Alexander, administrator, and others. No papers have been furnished the reporter, except the opinion of this court.

Before Hudson, J., Marion, April, 1880. Action commenced in September, 1879, by John H. Ellen, by Caroline M. Ellen, his guardian ad litem, against William B. Ellen, for the recovery of land. Verdict being for plaintiff, defendant moved for a new trial upon the same grounds, substantially, as were taken in his exceptions to the order of the Circuit judge overruling the motion.

<p>Before Wallace, J., Spartanburg, March, 1880.</p> <p>Petition by Albert Gray against E. C. Walker, to enforce mechanics’ lien, filed June 25th, 1879.</p> <p>To the statement of facts in the opinion of this court, the following extracts from the testimony may be properly added:</p> <p>W. E. Walker testified for plaintiff: Am husband for defendant; Hughes authorized me to look after the building; if I had seen building going on wrong I should have notified Hughes; think I called attention of Gray to plastering off in large room, and asked him to replaster it; I spoke to Gray just as I would to any other employe of Howerton.</p> <p>Albert Gray recalled : W. E. Walker was about the house a good deal while I was at work on it; looked over the work going on; spoke to me about plastering; knew I was there at work; never heard of any objection to my working there, nor ever received any notice that I could not have lien on work for my pay; Hughes was there once or twice; saw me at work.</p> <p>This is all the testimony bearing on the question of consent or knowledge. Neither Hughes nor Mrs. Walker were examined.</p>

Before Thomson, J., Spartanburg, October, 1879. Action by Sallie Howard against John W. Wofford and others. The opinion makes as full a statement of the pleadings as can be gathered from the brief, except that the demand for judgment in the complaint was “ against the defendants for the said sum of two hundred and eighty-one dollars, and costs.” In other particulars, the opinion sufficiently states the case.

<p>Before Wallace, J., Bichland, July, 1879.</p> <p>Action by Caleb Bouknight and Sarah W. Poole against John P. Brown.</p> <p>The exceptions to the referee’s report, the Circuit decree, and the opinion of this court constitute a sufficient statement of the •case.</p> <p>The exceptions were as follows:</p> <p>The plaintiffs except to the report of Francis W. Fickling, referee herein—</p> <p>1. In that the said report does not contain a statement of the facts found and the conclusions of law separately.</p> <p>2. In that the referee admitted in evidence the record of the suit in equity, Nathaniel Bynum v. John Gray Bynum.</p> <p>3. In that said report finds that the proceedings by William Bynum were instituted for the purpose of setting aside the will of Drury Bynum, on account of the third clause thereof, and that the will was set aside by a court of competent jurisdiction.</p> <p>4. In this, that the report finds:</p> <p>a. That Drury Bynum, by conditional devise to his executors, defeated his gift for the benefit of the issue of his illegitimate daughter.</p> <p>b. And that this gift was a contingent remainder, and fell with the precedent particular estate in Sarah upon which it is found to have depended.</p> <p>c. That the gift to Sarah was void.</p> <p>d. That the Statute of Limitation is a bar to the action.</p> <p>e. That the legal estate remains in the trustees.</p> <p>5. In this that the report orders and adjudges the complaint to be dismissed, and the costs and disbursements to be paid by plaintiffs.</p> <p>The Circuit decree was as follows:</p> <p>As regards the plaintiffs’ first exception to' the report of the referee, it is proper to say that the report was filed in the early part of the year 1878, and sets out facts and matters of law with sufficient distinctness to convey clearly what the findings of fact and law by the referee are.</p> <p>The plaintiffs’ second exception is also overruled. Section 13, Gen. Stat. 346.</p> <p>The third exception relates to the finding by the referee that the will of Drury Bynum was set aside.</p> <p>There is no doubt that the will of Drury Bynum was a valid instrument as to all persons except his legitimate son, William Bynum. It was competent for him to avoid it. Hull v. Hull,. 2 Strobh. Eq. 192; Breithaupt v. Baushett, 1 Rich. Eq. 465. How was this to be done ? He is put to his election, either to take under the will, or to avoid the will. When his election is made, his right accrues and vests. Ch. Harper says, in- Breithaupt v. Baushett, “I will not say but that, by possibility, if the will had contained no provision for the wife, or only an illusory one, there might be ground to conclude that she had elected, during her life-time, to take against the will, and that her representatives came, not for the purpose of avoiding it, but to enforce rights already vested by her election;” of course, any positive aet of election would bé stronger evidence of election than the possible effect of the provisions of the will upon the mind of the wife.' Then, if Wm. Bynum elected to avoid the will, his right to avoid it accrued, and, if contested, would be enforced by the court. The bringing a bill to set aside the will would be one mode of indicating an election; but not the only one. It is clearly deducible from the evidence that he did elect to avoid the will. It appears from that part of the record of the case of Wm. Bynwn et al. v. Jamies Bynum and others, which we have, that by the consent and-acquiescence of all the parties in interest, who were living at the time, an arrangement was made by which the estate of Drury Bynum was divided without reference to the provisions of his will. This agreement amounted to an election, by Wm. Bynum, to avoid the will, and a recognition by those whose rights, under the will, were adverse to his, of his right to avoid it, or of its actual avoidance as to all the parties who were sui juris. And this suit of William Bynum et al. v. James Bynum et al. could have been brought for no other purpose than to bind those who were not sui jwris, and not in esse, by the election of William Bynum to avoid the will. The court, in that case, after instituting inquiry according to its customary methods, pronounces a decree which necessarily implies an avoidance of the will, this avoidance made up by the acts of the parties and the decree of the court. All the parties before the court are concluded by that decree. Are the plaintiffs in this action — the representatives of R. C. Shiver and Sarah W. Evans — concluded also ? R. C. Shiver and Sarah W. were not in esse at the time of the decree. They were the children of Sarah Shiver, unborn at the time of the decree/ to whom an estate was limited bver after the death of Sarah Shiver, by the will. They were contingent remaindermen. If the will was in operation at the time they were born, the estate opened and their interest became vested. But the will, by acts of parties- and decree of the court, was absolutely set aside and avoided, and the rights of contingent remaindermen under it barred. In support of this view, it will not.be necessary to do more than to-refer to the opinion of Ch. Dunkin, concurred in by Harper, O’Neall and Wardlaw, in Van Lew v. Parr, in which this point is elaborately discussed. In that opinion, on page 346 of 2 Pick. Eq., the following language is used: “Unless this court had authority to dispose of the fee-simple of the estate for the payment of debts, it is quite clear that it could not be reached. If it had the authority, not having the contingent remaindermen before the court, the validity of the title, executed by the officer of the court, is not open to objection. But if the court can make a good title for the payment of debts, if it has authority in any case to dispose of the fee, not having those in remainder before it, the exercise of that authority in cases of partition, or for the change of property, becomes a question of discretion, and not of jurisdiction.” In this, a case of partition, the court has exercised its discretion, and has expressly disposed of the fee, and the remaindermen are barred.</p> <p>According to the conclusions of this decree, the complainants have no right of action, and the remaining questions raised by the decree need not be discussed. The complaint is dismissed, with costs for defendant.</p>

<p>Before Pressley, J., Oconee, October, 1879.</p> <p>Hon. J. H. Hudson, judge of the Fourth Circuit, sat at the hearing of this appeal, in the place of Associate Justice McGowan, who had been of counsel in the case.</p> <p>Action by M. J. Roberts and W. O. Johns, as administrators of John B. Johns, deceased, and by Lila B. Johns against James A. Johns, administrator of James Johns, deceased, and Samuel H. Johns. On demurrer, it was held that Lila B. Johns was improperly joined. See Roberts v. Johns, 10 8. C. 101. The opinion states the case.</p> <p>The Circuit decree was as follows:</p> <p>James Johns died intestate in 1863, and the defendant, James A. Johns, is his administrator. On February 13th, 1865, he sold the personal estate, including slaves, on credit, the price payable in gold, and he himself purchased some of the slaves, giving his note for same, amounting to $1,365. This and other notes remained unpaid, when our new constitution was adopted in 1868, and then, by reason of the provision concerning notes for the purchase-money of slaves, and the homestead law, it was supposed that said notes could not be collected. Plaintiff is administratrix of John B. Johns, who was a distributee of James Johns, deceased. She removed to Georgia in 1865, and has ever since resided there, making occasional visits to this State. During a visit in 1869, she urged a settlement of said estate, and the defendant, James A. Johns, offered to divide the notes. That not being done, he delivered some of them to her for collection. She failed to collect any and returned them, then urging that the notes be sold- and the estate divided. This request was repeated by letter after she went home to Georgia. In November, 1869, the administrator applied to the judge of Probate for leave, which was granted, to sell said notes. There is some uncertainty about the dates. The order for sale seems to direct it to be made in November, but it was not made until December 17th, 1869. At that sale, the administrator, for a mere nominal sum, purchased his own note of $1,365. Most of the other notes were purchased by Sloan Dickson, who after-wards sold them to said administrator at the same price, but there is no evidence of any previous collusion or understanding between them; the proof is to the contrary of that. The administrator has made profit by collections on the notes so purchased. After the sale, his account was filed in the Probate office. Plaintiff was duly informed thereof, and of the balance due to her by said account out of proceeds of said sale. She signed a receipt in Georgia for said balance, and sent it by her husband to this State. He examined the accounts, inquired' into the matters, and on April 19th, 1870, received the said balance, and delivered plaintiff’s said receipt to the administrator. The balance so paid by him has been fixed by a decree of the Probate judge, made on March 7th, 1870, on the ex parte application of the administrator for a final discharge. The referee reports that said discharge was obtained without fraud, but is irregular and void.</p> <p>The date of the commencement of this suit does not appear in any paper before me. The report says it was less than six years after March 7th, 1870, and defendant’s first pleading or demurrer was served on November 13th, 1875. I assume that the case commenced more than five years after March 7th, 1870. The complaint alleges fraud in the sale of said assets, and the referee finds that there was no fraud therein. I concur with him. There is no allegation as to when the alleged fraud was first discovered, or that plaintiff was ignorant of it, when she received payment of the balance found due to her by the said decree. The administrator claims the benefit of said payment and settlement, and pleads the Statute of Limitations.</p> <p>As to the claims of the defendant, S. H. Johns, the facts are, that he knew of the said sale and the said decree of March 7th, 1870, and by it a balance was found due by him to the administrator, who sued for that balance before a trial justice, and obtained judgment, which S. H. Johns paid without appeal.</p> <p>My judgment as to S. H. Johns is, that his failure to raise before the trial justice the question of fraud raised in this case, and his payment of the balance found due by him in that case, forever bars him from litigating again any issue which would have been proper in that case. He, therefore, can recover nothing in this case.</p> <p>As to the plaintiff, my judgment is, that her settlement in April, 1870, is binding upon her. She cannot now claim that the sale of the assets was without authority of law and void, because she previously assented to and requested it. Nor can she claim that said settlement was made upon the erroneous supposition that the provisions of the constitution, concerning the purchase-money of slaves, and the homestead, made the said notes worthless. That was a mistake of law or rather ignorance of law, and she preferred the sacrifice, rather than risk the expense of having the notes sued.</p> <p>On the plea of the Statute of Limitations, the plaintiff claims that she is not a resident of this State, and that the running of the statute does not begin until the said decree of March 7th, 1870. I hold that the statute began to run when the act was done which she avers to be fraudulent, to wit, the sale of the assets, which was on December 17th, 1869. I fix this date, because of there being neither allegation nor proof fixing a subsequent date when the supposed fraud was discovered by the plaintiff. The sole cause of action is the supposed fraudulent sale; it therefore occurred at the time of the sale. At that time the Statute of Limitations, as settled by the case of Lavassmr V. IAgniez, 1 Strobh. 328, allowed live years to a non-resident, and this having been commenced more than five years after either date fixed by me or the referee, the statute is a complete bar to plaintiff’s claim, if even the confused state of law when said settlement was made, would justify me in setting it aside.</p> <p>It is, therefore, adjudged and decreed, that the complaint be dismissed, each party to pay his own or her own costs, and each to pay one-third of the costs of the referee and the officers of the court.</p> <p>From this decree the plaintiff appealed on the following exceptions:</p> <p>1. That it was error to hold that the claim of plaintiffs against the defendant for an account was barred by the Statute of Limitations, which does not run in favor of an administrator trustee against the distributees of the estate he represents, until such trustee does some act which imports to be a termination of his trust, and the pretended sale of the choses in December, 1869, was not such an act, nor under, any view was such an act done until the pretended settlement on March 7th, 1870, counting from which time the plaintiffs would not be barred.</p> <p>2. That as the plaintiff, M. J. Eoberts, resided beyond the limits of this State, and was ignorant of the actings of the administrator and the condition and value of the estate of defendant’s intestate, except from such information as she derived from the defendant administrator, no act in the course of administration, whether fraudulent or not, assented to or not, which inured solely to the benefit of the administrator trustee, at the expense of the distributees, could give currency to the Statute of Limitations, and certainly not before the effort at settlement in the Probate office, March 7th, 1870, from which date the plaintiff was not barred.</p> <p>3. That it was error to strain the law to give the administrator the protection of the Statute of Limitations from the hour of his own private fraud in the administration of the estate unknown to plaintiffs, and which, not done in a public office, and done without authority of law, it was not the duty of plaintiffs to know. The statute does not run in favor of a trustee from the hour of his committing an act of fraud to his ■own advantage, if not done in a public office in throwing off his trust.</p> <p>4. That under the facts, as found by the referee, and not controverted by the judge, showing that the sale of the notes and purchase of them by the administrator, out of which he made profit, and the pretended settlement and discharge were irregular, illegal and void, which was a series of acts of personal wrong and of injurious consequence to the plaintiffs and those whom they represent, it was error of law to hold that the plaintiffs were estopped by the receipt which the plaintiff, M. J. Roberts, signed, which receipt was prepared by the defendant, J. A. Johns, administrator trustee, and based on the fraudulent settlement of March 7th, 1870, which was founded on an ex parte settlement between defendants, J. A. and S. H. Johns, and the illegal sale of the notes and purchase of them by said administrator, and thus prepared was forwarded to the plaintiff, a married woman living in Georgia, and signed by her in entire ignorance of the facts of the case, except such information as she derived from the administrator, who, under the decree of Judge Pressley, if sustained, pockets his intestate’s personal estate to the exclusion of other distributees.</p> <p>5. Because it was error to sustain the report of the referee that there was no fraud, when the sale of a large debt due by the administrator' to the estate of his intestate for a nominal sum, was a fraud in law, if not in fact; and the sale of other notes,, some of which were on parties owning good real estate, and the consideration of which was not negroes, for a nominal sum, on a day different from that specified in the order of sale, without appraisement and without authority of law, and but few bidders being present, was a fraud in law, if not of fact. Prom sale of these notes the administrator has collected several hundred dollars, and will realize much more.</p> <p>6. Because it was error to hold that the Statute of Limitations began to run from the sale of the notes in December, 1869, and that plaintiffs were barred certainly in four years, or, as non-residents, in five years from that date, when the statute did not run until March 7th, 1870; and six years from, that date had not elapsed before suit brought.</p> <p>7. Because the effect of the decree is to hold that the administrator, whom the referee finds was a purchaser at his own sale cf a large amount of the notes sold, at a mere nominal price, can make profit out of his trusts to the injury of his cestuis que trust, which is error.</p> <p>8. Because the sale of the choses in action was upon a day. and at a place other than that specified in the order of sale; and the notes were thus sold without appraisement and without authority of law. The law authorizing such sale was not passed until January 14th, 1870; the sale having been made on the 17th day of December, 1869, the sale is therefore void.</p> <p>9. Because the decree is erroneous and unjust, and will have the effect, if not reversed, of covering an unbroken series of illegal, injurious and fraudulent acts perpetrated by a trustee for his own advantage, and the confiscation of the estate which it was his duty to protect.</p> <p>10. Because the decree is in other respects contrary to the . law., the evidence and justice of the case.</p> <p>There was no fraud in the sale of the notes. This court will not disturb the concurrent findings of referee and Circuit judge. 11 8. C. 155, 548; 13 Id. 37. Presumption is that administrator and Probate judge did their duty. 7 Rich. 511. The sale was valid. 13 Rich. Eq. 299; 9 Id. 221; Gen. Stat., Ch. XCIY., § 4. Plaintiff has waived her right, if any, by accepting the price. 3 Wait Ac. & Ref. 473. The defendant has been effectually discharged. Id. 157, 460. The Probate Court had jurisdiction. Const., Art. IY., § 1; Gen. Stat., Ch. XXIY., § 4; 14 8. C. 211. It is a proceeding in rem (3 Redf. Wills-412) and conclusive upon all persons. 2 Greenl. Evid., § 672; 9 Rich. 131 If not, publication was sufficient service. 14 Stat. 263; 1 N. & McC. 326; 6 Rich. Eq. 114; Potter’s Dwar. 484. The presumption is that all proceedings necessary to a discharge were done. 2 Spears 82; Bill. Mum. Corp., §§471, 643. Plaintiff became a party by acting on the judgment. 1 Tidd 513. She is bound by her husband’s acts. 8 S. G. 245; 1 Willard Ex. 389; Bioh. Eq. 59. The judgment of the Probate Court is conclusive. 1 Hill Gh. *21; 3 Strobh. Eq. 51; 4 Geo. 516; 2 Bioh. Eq. 63. No other court will set aside the judgment. 7 Bioh. 32; Bailey Eq. 330; 9 S. G. 80; 2 Id. 442. Plaintiff is bound by her - receipt. 3 Wait Ao. & Bef. 471, 473, 479; 1 Hill Gh. 128, 307; 2 MoG. 321. M. J. Roberts could not sue without her husband. 8 S. C. 245. And, therefore, W. O. Johns could not be added by amendment. 2 Fill. & Shear. 1046'; Wait An. Gode, 335, notes a.,f., n. and s. The action- is barred. The fraud, if any, was in the sale. 10 8. G. 106; 9 Id. 450; 2 Story Eq. 1521; 4 Bioh. 39; 2 Bailey 11, 51, 544. She was entitled to only five years. 1 Strobh. 328 ; 4 S. G. 257; 12 S. G. 42. Cause of action was not changed by the attempt to throw off the trust, but was point from which statute began to run. 3 Bioh. 448; 14 Bioh. Eq. 212; Bioe 319; 4 MoG. 423.</p>

<p>Before Aldrich, J., Edgefield, March, 1881.</p> <p>Indictment against Hughes Johnson for carrying a pistol concealed about his person on January 30th, 1881. The defendant was convicted and sentenced to imprisonment in the penitentiary at hard labor for six months.</p>

Before Thomson, J., Beaufort, November, 1880. Action commenced June 6th, 1877, for the recovery of $750 for the inspection of phosphates at Port Royal, in 1875 and , 1876. According to the proof, $40.35 for inspection, and $25 for the chemist, of Georgia, had been paid to the plaintiff. There was no proof whatever, in the case, of the value of plaintiff’s services.

Before Wallace, J., Union, April, 1880. Action by Charles Bolt, as administrator of the estate of Joshua P. Dawkins, deceased, against Sarah A. Dawkins (widow), B. F. Dawkins and Nannie E. Tench (children), and Sarah A. Stringfellow and others, creditors of Joshua P. Dawkins’ estate. The action was commenced January 10th, 1878, and was in the nature of a bill for sale of land in aid of assets, the personalty received by the administrator not exceeding $200.

Before Hudson, J., Kershaw, June, 1880. This was an action for the settlement of the estate of Wiley Kelly, who died intestate in 1873, instituted by his daughter, Emily C. Wilson, against Jane K. Kelly, Geo. W. Kelly, J. F. • Kelly, W. D. F. Kelly and other distributees of the intestate, and John B. Shaw, administrator, and others. Upon the single point brought by the appeal to this court the case is fully stated in the opinion. • -

Before Mackey, J., Orangeburg, January, 1881. Action commenced September 6tb, 1879, by Martha J. Bannister and Edward E. Reese against William H. Bull, William Eogle, Stephen Bannister, A. Z. Bannister and C. U. Bannister, for the recovery of a tract of land. The plaintiffs and the defendant, W. H. Bull, both claimed title under the residuary clause of the will of Adam Shuler.

Before Thomson, J., Abbeville, February, 1880. The reporter has not been furnished with a brief in this case, but the opinion seems to state the case fully. The title of the case is M. M. Tarrant against I. Gittelson.

Before Mackey, J., Richland, November, 1880. Action commenced in May, 1878, by the county of Richland against Daniel B. Miller, as clerk of the board of county commissioners for Richland county. The facts are sufficiently stated in the opinion of this court. The case seems to have been referred to the master, upon whose report the case was heard by the Circuit judge, without a jury. His findings of fact and conclusions of law were as follows: Findings of Fact. 1.

<p>1. “The County of Richland” and “Richland County” are equivalent phrases, and in an action by that county, either designation may be used.</p> <p>2. The board of county commissioners is not a court in such sense that its record may be pleaded in bar as evidence of a former recovery, or as res judicata in respect to a claim against the county allowed by the board.</p> <p>3. While not a court, it is the agent of the county in regard to all matters within the scope of its agency. As to all such matters requiring discretion and determination, their acts are gnosi-judicial-and binding upon the county until set aside for fraud or collusion in a direct proceeding- brought for that purpose; but those involving the exercise of no judgment, are ministerial, and, if erroneous, are void.</p> <p>4. Where the board acts upon claims fixed in character and amount by law, as salaries, tax costs, &c., their action involves no discretion, but is purely ministerial.</p> <p>5. The county may recover, from a clerk of court, moneys illegally or excessively charged by him for fees in State cases, even where his accounts have been audited by the board of county commissioners, approved by the Circuit judge, and warrants issued for their payment, and payment received from the county treasurer.</p> <p>6. An action to recover the penalty for fees illegally charged, may be instituted by any party injured by the charge, and is not confined to parties to the cause in which the fees were taxed. Therefore, for illegal and excessive fees' charged against a county, or collected from it, by a clerk of court, the county may bring action for the penalty prescribed by law, and their right to recover cannot be affected either by the action of the board of county commissioners in approving the account, or by the payment of the money by the county treasurer.</p> <p>7. In action to recover, on a first cause of action, a sum of money, for fees illegally collected, made up of several items, and on a second cause of action for a penalty for such illegal charges, the answer interposed a plea “ that in respect to many of the items constituting the said alleged cause of action, they are barred by the Statute of Limitations in such case made and provided.” Held, that this plea was not separately stated so as to make it intelligibly distinguished as a defense to the second cause of action, and was, therefore, insufficiently pleaded.</p> <p>McIver, A. J., dissenting.</p>

Before Hudson, J., Fairfield, September, 1880. Action by George W. Witte and Arnim F. Witte, doing business as partners in a cotton factorage business under the firm name of Witte Brothers, against Saling Wolfe, Sarah S. Wolfe, Simon Baruch and other defendants, who were lien creditors of the two defendants first named.

<p>Before Mackey, J., Charleston, April, 1881.</p> <p>The opinion fully states the case.</p>

Before Aldrich, J., Marion, November, 1880. This was an action by George A. McIntyre and others, children of Archibald McIntyre, deceased, (the testator,) against Robert C. McIntyre and others, children of testator. All the children of testator’s children were parties defendant. Archibald McIntyre executed his-will April 28th, 1850, and died within a month afterwards. The widow of testator died in February, 1880.

Petition for rehearing of the ease of Brooks v. Brooks, 12 8. O. 422, filed by R. Gr. M. Dunovant for himself and as guardian ad litem for his children, and by J. C. Lark and James Mansfield, creditors of J. C. Brooks. The reporter has been furnished with a copy of the points of counsel, but not with a copy of the petition. At the same time at which this petition for rehearing was argued, the main case was again argued in this court on its second appeal.

Before Wallace, J., Newberry, May, 1880. This was an. action instituted in February, 1880, by James IL Mendenhall and his sister, Pauline Eliza Scott, against George S. Mower, trustee, Nancy Mayes, as administratrix of William G. Mayes, deceased, and all the children and heirs of deceased children of the plaintiffs.

Before Wallace, J., Newberry, May, 1880. This was an action commenced June 21st, 1874, by the children of Hillary B. Mangum against the executors and devisees of David B. Piester, and against Thomas M. Neel, Henry Koon and John R. Lea veil — the last-named as a creditor of David B. Piester — for the recovery of a tract of land. The plaintiffs claimed under the will of • C. Griffin, which was as follows: In the name of Qod, amen.

<p>Before Macicey, J., Charleston, March, 1881.</p> <p>Motion by plaintiff to vacate judgment in case of Ransom Cooper v. William Smith. The opinion states the case.</p>

Before Wallace, J., Greenville, July 1880. This was an action by Samuel H. Pressley, as executor of the will of Sarah Eliza Evans, against E. T. Kemp and Giles L. Glazener, commenced August 19th, 1879. The testimony was taken, mostly, in open court,.was to some extent conflicting, and was very voluminous, covering thirty-six pages of the brief; but the points at issue are clearly indicated by the questions submitted to the jury.

Before Thomson, J., Beaufort, November, 1880. Motion by H. M. Parnell for leave to revive action by serving and filing a supplemental complaint. The opinion states the case.

Before Thomson, J., Barnwell, October, 18,80. Both of the actions above stated, were commenced in Januáry, 1880, the'first on the 7th, the second on the 17th. The note of April 17th, 1874, referred to in the opinion, was as follows: $1,000. Allendale, S. C., April 17tli, 1874.

Before Mackey, J., Barnwell, June, 1881. The appeal in this case, which is fully stated in the opinion, was from the order of Judge Mackey, directing the sheriff to. pay over the money in his hands.

<p>Before "Wallace, J., Aiken, February, 1881.</p> <p>Action by C. G. Tutt, trustee, against the Port Royal & Augusta Railway Company, commenced June 23d, 1879. Tutt was trustee duly appointed in the place of G. "W. Miller, deceased. The opinion gives a sufficient statement of the deed, of trust, and otherwise states the case.</p> <p>The appellant renewed in this court his motion for a non-suit, upon the following grounds:</p> <p>1. Because under the terms of the trust deed the conveyance of the right of way over said lands, executed by said H. R. Cook to the railroad company, gave at least to the said railroad company a license to enter upon and build their road over said lands, and that until said license was revoked the defendants were lawfully upon said lands, and this action could not be maintained.</p> <p>2. Because the conveyance of such right of way, executed by Cook to said company, taken in connection with the knowledge -of the trustee of the proposed construction of a railroad over said lands, and his failure to object thereto, authorized said company to enter upon said lands for such purpose without giving the notice required by Section 75, Ch. 63, of the Revised Statutes, or was a waiver of said notice; in either case said company acquired •such right of way, and the action could not be maintained.</p> <p>3. Because the alleged owner of the land having permitted the railroad company to enter upon the construction of their highway over said land without previous compensation, the plaintiff could not bring this action to dispossess the defendants .and for damages, but was restricted to his petition for compensation as provided by Section 83, Ch. 63, of the Revised Statutes.</p> <p>4. Because Miller, the trustee, in 1870, while knowing that Cook had given the railroad company the right of way over said lands, having interposed no objection to the construction of the railroad over the same, but having permitted said company to lay out valuable improvements thereon in ignorance of his claim, and having remained silent during his life-time, and until after the purchase thereof by these defendants, and the same being-true as to Mrs. Cook, the plaintiff is estopped from bringing this action, at least during the life-time of said H. R. and Helena Cook.</p> <p>The defendants also moved for a new trial on the folknving ground, viz: Because the judge directed the jury to find for the plaintiff the land in dispute and damages.</p>

<p>Before Wallace, J., Marlborough, September, 1881.</p> <p>Action by Thomas W. Williams against Harriet Irby. The opinion states the case.'</p>

Before Cothran, J., Kershaw, September, 1881. Indictment against James Clyburn and Ella Sheorn for murder. When put upon their trial, defendants were informed that only thirty-two jurors were present, one juror not having been sworn and three having been excused by the presiding judge. Other facts are stated in the opinion. From the sentence of the court, Clyburn appealed.

Before Pressley, J., Darlington, March, 1881. In this case, Plonorable Joseph B. Kershaw, of the Fifth Judicial Circuit, sat in the place of Mr. Justice Mclver, who had been of counsel in the cause. Action commenced in September, 1876, by C. J. Coney and Mary A., his wife, against W. B. Timmons and R. B. Garner, and afterwards, upon the death of Garner, revived against his administrator and heirs-at-law.

Before Thomson, J., Barnwell, September, 1880. Action by Thomas F. Hogg against B. G. Pinckney and R. Q,. Pinckney, commenced August 5th, 1879, in Barnwell county, then transferred on defendants’ demand to Charleston county, where they resided, and afterwards changed to Barn-well, by order of the judge, on account of the convenience of witnesses.

Before Aldrich, J., Sumter, June, 1880. Action by I). B. McLaurin, widower, and Henry J. McLaurin and others, children and grandchildren of Mrs. Agnes D. McLaurin, who died in 1863, against J. Harvey Wilson and others, heirs-at-law of Isaac James Chandler, commenced in 1872.

Original application for writ of prohibition. This application was in the name of the State on the relation of Richland county against the City Council of Columbia, heard December 19th, 1881.

Before Pressley, J., Darlington, March, 1881. In this case, the Honorable Joseph B. Kershaw, presiding judge of the Fifth Circuit, sat in the place of Associate Justice Mclver, who had been of counsel in the cause.

Before Fraser, J., Laurens, July, 1881. Hon. J. H. Hudson, of the Fourth Circuit, sat in the place of the chief justice, who had been of counsel in the case. Action commenced in April, 1873, by Turner B. L. Wood, against James M. Shockley and Cassie B. Shockley, his wife.

Before Wallace, J., Marion, October, 1881. Hon. J. B. Kershaw, of the Fifth Circuit, sat in the place of Mr. Justice Mclver, who had been of counsel in the cause. Action by James N. Stevenson and Mowry & Co., creditors -of Samuel F. Gibson, against John Wilcox, C. H. Evans and S. A. Durham, sureties on the bond of A. L. Evans. The -opinion states the case.

Before Kershaw, J., Aiken, September, 1881. Action by Hudson B. Burckhalter against. Thomas W. Coward, commenced in July, 1881.

Before Pkbssley, J., Darlington, April, 1881. Action commenced, in July, 1880, by L. A. McCall against D. D. Cohen and the other parties named in the opinion as ■defendants, and also against G. W. Brown. The opinion fully states the case.

<p>Before Hudson, J., Greenville, July, 1881.</p> <p>This was an indictment against William Dodson, Pleasant Adams, Joseph Burton, Rich Bates and Fletcher Maddox, for arson, in burning a large building in the city of Greenville, known as the Academy of Music, during one of the nights of 1879, the same being, at the time, occupied in part as a sleeping apartment. At the first trial, Fletcher Maddox pleaded guilty and was sentenced to be hung. The others .were convicted and sentenced, but appealed to this court and obtained a reversal of the judgment. On their second trial, they were again convicted and sentenced, and again they appealed.</p> <p>Omitting its statement of facts bearing upon grounds of appeal based upon the insufficiency of evidence in certain particulars, the report of the presiding judge was as follows:</p> <p>An effort was made in behalf of defendants to have the-case continued because of the absence of several (two) witnesses alleged to be material. These witnesses were shown by the return of the sheriff and by other evidence, to be absent from the State or not to be found, and one of them to be incompetent. The witnesses- being without the jurisdiction of the court, in view of - all the surrounding circumstances, I deemed it my. duty, in the exercise of a sound discretion, to order the trial to proceed. From the information derived from the statements and argument of counsel, I then thought, and still think, that no injury was done the defendants in refusing this motion— which I could not have granted consistently with the rules of sound discretion, in view of the long time this charge had been pending, its previous tedious trial ami the great uncertainty of ever obtaining the attendance of the witnesses.</p> <p>The organization of the jury was greatly delayed and rendered very tedious by lengthy examinations and cross-examinations of each juror on his voir dire before being presented, and by the exercise of the right of challenge by each defendant separately. A number of persons stated on their voir dire that they had formed an opinion regarding the guilt or innocence of the prisoners, were biased by such opinion and felt that they could not stand indifferent in the case. The challenge for cause against them was of course sustained. Others stated that they had formed an opinion, but stated further that such opinion arose from what they had heard of the case or from the report of newspapers, which, however, would not in the least influence their minds as jurors if sworn in the ease. They stated that they were sensible of no bias or prejudice whatever, for or against the defendants or either of them, and would stand entirely indifferent and be governed alone by the evidence to be adduced. Answering thus, they were presented, but in every instance were challenged peremptorily, and no juror was empaneled except those who, on their voir dire, swore that they were without opinion in regard to the guilt or innocence of the •■accused — were entirely free from bias, and stood indifferent between the State and the prisoners at the bar. Such boni et legales hominis and none others, were sworn as jurors in this -case.</p> <p>In the progress of the trial, the State’s counsel offered in evidence the written statement and confession of the defendant, William Dodson ■ to this the defendants’ counsel objected, because the said Dodson had been previously convicted of two infamous offenses and had suffered punishment therefor. The ■court ruled that in no event could the confession of Dodson be evidence except as against himself, and its admissibility ivas not destroyed by reason of his infamy. If freely and voluntarily made, it should be admitted for what it might be, in the opinion of the jury, xvorth, as against Dodson and no other. It appearing to have been freely and voluntaiily made by Dodsoxx, and reduced to writing by another and signed by Dodson, the ■statement was admitted to be x’ead by the jury, they being duly cautioned that it should xxot and xxxust not be at all weighed by them, save oxxly as against Dodsoxx.</p> <p>Fletcher Maddox, who had been jointly indicted with the other defexxdaxxts, and pleaded guilty at the first trial, and against whom sexxtence of death had been pronoxuxced, was teixdered by the State as a witness for the prosecution. The coxxnsel for the defendants objected that this witness not only had beexx sentenced to be hanged for this arson, but had been twice previoxxsly convicted of larcexxy, oxxce for grand larceny, in 1879, axxd, subse■qxxently, for petit larceny, for both of which offenses he had suffered the penalty of the law. To this the couxxsel for the State replied by producing a pardon in due form by the executive of the State for each of the crimes, and also a general pardon for all past offenses against the laws of the State. No allegation nor proof was made of any offense save these crimes for which he held specific pardons.</p> <p>I held that these pardons restored the competency of Maddox as a witness in our courts, but not his credibility. He stood as a competent witness, but whose credibility was impaired by infamy ; but how far he was to be believed was a question for the jury. I remember no contest over the competency of any other witness offered by the State, and the exceptions and grounds of appeal make mention of no other.</p> <p>On behalf of the defendants, Hattie Burton, wife of the defendant Joseph Burton, was offered as a witness, but objected to by counsel for the State. I held her incompetent. Joseph Burton being jointly indicted with the otherá, his wife, who is clearly incompetent to testify in his behalf, is, also, by the rules, of evidence, excluded from testifying in behalf of his confederates and co-defendants.</p> <p>The case is one of great importance; it excited, as is usual,, great interest in the community, and brought forth the warmest zeal and highest powers of intellect of learned counsel for the State and defendants. A large number of witnesses appeared on the stand, and the voluminous testimony consumed much time in development. At the close of the argument I proceeded to deliver my charge to the jury. To them I carefully defined the crime of arson, and, in doing so, read the statutes of the State defining the offense. I earnestly cautioned them not to. consider the statement and confession of Dodson, except as-against himself, and that as against him, even, it was for them to say what weight they should attach to it.</p> <p>In speaking of the witness Maddox, I told the jury, as I have stated above, that his testimony was before them as that of an infamous man and as an accomplice in this grave charge. It was for them to say what credit should be given to his testimony ; and it was my duty to tell them, that whilst it is lawful to convict upon the uncorroborated testimony of air accomplice, yet it is unsafe to do so, and that they should seek for facts and circumstances, established by credible witnesses, in corroboration of Maddox before believing him. In my entire charge, I rigidly confined myself to my strict duty in expounding the law, avoiding comment on the testimony, and leaving the facts of the case entirely to the jury. No excejfiion at the time was taken to my charge by either side, nor did the counsel for the defendants make any request to charge any legal proposition; nor was I requested to call the attention of the jury to any statute prescribing the punishment for the offense.</p> <p>The jury rendered a verdict of guilty against each defendant on trial, and their counsel, upon the grounds set forth in the proposed case, and which need not be here repeated, moved the court for a new trial, and in arrest of judgment. I refused the motion and pronounced against the convicts sentence of death. ■</p> <p>The motion for a new trial and in arrest of judgment, is now renewed before the Supreme Court, upon the grounds urged before me. The case as proposed by the appellants, with the solicitor’s allowances and disallowances, comes to me for settlement and for my report. Perhaps I cannot better complete this, my report, than by noticing seriatim but briefly the appellants’ grounds of appeal in order merely to correct misconceptions ^nd errors of fact, and to place the case in its true light before the Supreme Court.</p> <p>I remark on ground of motion for new trial:</p> <p>1. The rale observed in presentation of jurors has been sufficiently explained. None were presented who did not swear that they were indifferent, and could give the defendants an impartial trial, notwithstanding impressions made upon their minds from reports and rumors, and no juror was sworn who had formed any opinion at all, or who expressed the least bias.</p> <p>2. Plattie Burton was held an incompetent witness, because she was the wife of Joseph Burton, a co-defendant with the others — a fact which the appellants’ counsel omits to state.</p> <p>3. The admission of William Dodson’s statement and confession as evidence against himself alone, has been explained.</p> <p>4. No further explanation is required as to 'the competency of Fletcher Maddox as a witness. Specific pardons restored his competency.</p> <p>5. This ground is erroneous in its statement. The court did not refuse to allow the solicitor to point oiit the statute upon which the indictment was based. It was pointed out to Mr. Stokes by the solicitor, and it was read by the court in charging the jury.</p> <p>(i. This ground arises from misapprehension. Mr. Stokes, in the heat of argument, was in eloquent but extravagant terms urging upon the jury that, if convicted, the defendants would be hanged, and that their innocent blood would be upon the hands ■of the jury. He had said much as to the severity of the punishment, when T interrupted him only so far as to remind him that the jury were, not responsible for the law7; they must not be frightened out of propriety by the severity of the punishment.</p> <p>7. This exception is erroneous in representing me as giving the same instruction as to the confession of Dodson and testimony of Maddox. It fails to draw the distinction. Dodson’s confession was carefully restricted as affecting him alone. The testimony of Maddox, affecting all, the jury were told, should be corroborated, as I have explained.</p> <p>8. So far as the recommendation of mercy is concerned, it is the province of tlie jury in all cases to incorporate it in their verdict. There was nothing in the evidence tending to mitigate the offense of any one of these men, if guilty; and I suppose this is the reason why no mention of the matter of mercy was made by the counsel for the State, nor for the defendants, nor by the court. In fact, so frightful was the arson, that the whole burden of the argument, both for the State and the defense, was, that if guilty, they must be hanged. And this fate was so strongly held out by Mr. Stokes in terrorem over the jury as to call for the interruption by the court above stated. It was competent for defendants’ counsel to plead for and to urge mercy in behalf of all or either of them, and to read them the statute. It was competent for him to ask the court to instruct them upon their power in this respect, and its consequence if exercised. This he failed to do, and cannot now7 be admitted to charge the omission to the court.</p>

<p>1. In action against an executor upon an implied contract of the testator to pay for timber trees of the plaintiff cut and removed by the deceased, it is not essential to a recovery that plaintiff should prove title to the land from which the trees were cut; but -the Circuit judge erred in instructing the jury that mere proof of plaintiff’s possession of the land would' entitle him to recover the value of the trees, unless the defendant showed a better right. The real issue involved was the ownership of the trees.</p> <p>2. In such action, a plat found among the records of a prior cause between this plaintiff’s father as defendant, (then holding in right of his son, a</p> <p>. minor,) and another party as plaintiff) involving the title to the land from which the trees were cut, was competent evidence to show the extent of this plaintiff’s claim under color of title.</p>

<p>Before Wallace, J., Hampton, March, 1881.</p> <p>Action by Samuel P. Maner and others, devisees of James W„ Lawton, deceased, against B. J. Wilson and U. B. Wilkinson,, commenced in April, 1879. The opinion states the case.</p>

<p>Before Aedrich, J., York, June, 1881.</p> <p>The opinion states the case.</p>

Before Aldrich, J., Ilichlaiul, March, 1881. This was an indictment against Thomas Sims, Jupiter Mitchell, Joseph Thomas and William Mikell. Mitchell was acquitted, and the other three convicted. They appealed.

Before Kershaw, J., Aiken, September, 1881. This ease is stated fully in the opinion.

Before Wallace, J., Sumter, June, 1881. Action by George M. Murray and Elizabeth N. Bradley against George W. Witte, G. M. Sanders and… Held: that “ where from payment made by the debtor or his representatives, or other cause, the mortgage debt will not be presumed satisfied, as between debtor and creditor, from lapse of time, no presumption of release -or satisfaction of the mortgage will arise in favor of one holding under a purchase from the mortgagor, although twenty…

Before Pressley, J., Marion, March, 1881. Action by John O. Wilson, as executor of the will of W. W. Braddy, deceased, against E. A. Braddy and others, legatees and creditors. The opinion states the case.

Before Mackey, J., Chaster, July, 1881. This was a proceeding by mandamus on tlio petition of- the State of South Carolina, ex relatione W. Banks Thompson, John O. Darby and Waties Pendergrass, as county commissioners in and for the county of Chester, against the Chemv and Chester Railroad Company, and William Hardin, as president, and David Hemphill as secretary and treasurer of said railroad company. The opinion states the case.

Before Hudson, J., Richland, July, 1880. This was an action by the State of. South Carolina against D. T. Corbin and William Stone, partners in the practice of law. The opinion fully states the case.

<p>Before Wallace, J., Marlborough, September, 1881.</p> <p>Action by Alexander E. Bristow against C. S. McCall. The opinion fully states the case.</p>

<p>Before Mackey, J., Lancaster, February, 1880.</p> <p>The case is sufficiently stated in the opinion.</p>

Before Wallace, J., Darlington, October, 1881. The case is fully stated in the opinion of this court. The will is very short and contains only what is copied into the opinion.

Before Kershaw, J., Aiken, September, 1881. Action by Paul F. Hammond against the Port Eoyal and Augusta Eailway Company. To the statement made in the opinion it will be necessary only to add the precise language which raised the points considered by this court. The motion for non-suit was based, in part, substantially upon the positions taken in the following requests to charge: 1.

Before Wallace, J., Darlington, October, 1881. Action by Abigail J. Harris against Samuel Marco, demanding $5,000 damages, for- assault and battery and false imprisonment, committed by defendant on the person of plaintiff on December 22d, 1879. The second exception correctly states the ruling of the Circuit judge and the matters connected therewith. The plaintiff stated in his proposed case the charge of the judge complained of in his first exception.

Before Mackey, J., Kershaw, September, 1879. Action by Mary A. R. Lupo and others, the children and heirs-at-law of Rebecca Copeland, against James H. True, Henry Moak, Andrew Moak and Jonathan Page. True was the party in possession of the land, Jonathan Page, it was alleged, held a mortgage on the property, and the Moaks were heirs-at-law of Laban W. Moak. The action was commenced in March, 1876.

<p>Before Wallace, J., Spartanburg, March, 1880.</p> <p>This was an action commenced February 5th, 1880, by R. T. Wilson & Co., Gustav Dambman and the Navassa Guano Company against the Atlanta and Charlotte Airline Railway Company. The complaint demanded $2,200 damages for the negligent burning of thirty-three bales of cotton belonging to the plaintiffs at Gaffney City, in Spartanburg county, on November 2d, 1879. The cotton was on a platform belonging to the town, near the railroad track. It had not been delivered to the railway company.</p> <p>W. J. Duncan, agent for the plaintiffs, testified that plaintiffs jointly owned the cotton; that the burnt bales contained 16,005 pounds of middling, worth at that time ten and a quarter cents per pound, but such cotton had since sold at twelve and three-quarters cents. The fire broke out on top of the cotton within a few minutes after the eastward bound passenger train had left the depot, after a stay of twenty minutes for dinner. The distance of the engine from this platform, whether it emitted sparks or not, and whether parties were at the same time sitting upon these bales 'smoking cigars, were matters upon which the testimony was conflicting.</p> <p>Defendant made certain requests to charge, which are correctly stated in the exceptions. Other matters are given in the opinion.</p> <p>His Honor charged the jury as follows:</p> <p>In this case there are three plaintiffs suing jointly, and the jury must be satisfied they were joint owners of the cotton alleged to have been burnt. If they were not joint owners they cannot recover, and the verdict must be for the defendant. If you find that they were joint owners, you must next inquire, first, how was it burned? If you find that the agents of defendant did not burn the cotton, then you must find for the defendant. Defendant is liable only in case of negligence. Defendant had the legal right to run its trains over their road. Defendant must have proper equipments on its trains. If trains are properly equipped and fires occur, and that is proved and no more, it would be no negligence, but accident, and defendant would not be liable. Negligence is absence of due care in performing any act. If any act is done in pursuing a right, and injury occur in the absence of due care, the defendant would be liable. If anything is done in pursuance of a right that common prudence forbids, defendant would’ be liable, because it would be negligence. To make it negligence the defendant must have been doing an act that, under all the circumstances of the particular case, the plain suggestion of prudence would forbid.</p> <p>Verdict for plaintiffs for $1,686.73.</p> <p>A motion on the minutes for a new trial was refused, and defendant appealed upon the following exceptions:</p> <p>1. Because of error in that the Circuit judge erred in overruling the objection of defendant’s counsel to the statement of W. J. Duncan as to quantity and ownership of the cotton, when such quantity and ownership was, he testified, shown by his books, the books themselves not being produced.</p> <p>2. Because the Circuit judge erred in not instructing the jury, as requested by defendant’s counsel, that, as a matter of law, Gustav Dambman was not a joint owner with the other plaintiffs in the cotton.</p> <p>3. Because the Circuit judge erred in not instructing the jury, as requested by defendant’s counsel, that, as a matter of law, the Navassa Guano Company was' not a joint owner with the other plaintiffs in the cotton.</p> <p>4. Because the Circuit judge erred in not instructing the jury, as requested by defendant’s counsel, that, as a matter of law, from the proof made by the plaintiffs, none of them were joint owners in the cotton.</p> <p>■ 5. Because the Circuit judge erred in not instructing the jury, as requested, “ that if the jury find from the evidence that the defendant corporation was provided with the most approved machinery for protection against fire, and that said machinery was worked by competent and careful employés, they will find for the defendant.”</p> <p>7. Because of error in that the Circut judge refused the motion for a new trial when the evidence was uncontradicted that the defendant corporation had provided the most improved machinery for the protection against fire, and said machinery was worked by careful, prudent and competent employés.</p>

<p>Before Keesi-iaw, J., Spartanburg, October, 1880.</p> <p>Tbe opinion states the case.</p>

Before Hudson, J., Laurens, February, 1881. At the hearing of this appeal, Hon. Benjamin C. Pressley, of . the First Judicial Circuit, and Hon. Thomas B. Fraser, of the Third Circuit, sat in the stead of the Chief Justice and Associate Justice McGowan, who were constitutionally disqualified. The action was by John J. McGowan as administrator de bonis non of William Hitt,, deceased, against Martin Hitt and Mary, his wife, and Aaron Wells.