Volume 17 — South Carolina Reports

<p>Before Thomson, J., Spartanburg, October, 1879.</p> <p>Action by T. A. Tinsley against Marcus Kirby and A. H. Kirby, commenced March 4, 1878. The opinion makes a full statement of the case.</p> <p>cited Const., Art. IY. § 21; Cení. Stat. (1872) 205, §§ 1, 2, 3; Brandt Sur., §§ 11, 12, 451; 22 Bid. 207; 4 La. Ann. 373; 60 H. T. 421.</p> <p>The appellants are estopped from denying the recitals of the bond sued upon. Bra/ndt Sun., §§ 29-31, 444; Big. Estop. § 272; 17 How. 442; 2 Pans. Gont. 789; 7 Bob. Prao. 389. A common law or voluntary bond of a public officer is valid and binding upon said officer and his sureties. 1 Bail. 211; 2 Mg O. 107; 7 Bioh. 232; 38 HP. 324; 2 Broolc,. 96; High Inj., § 961; Brandt Sun., §§ 12,13, 445; 10 Wall. 395; 1 Chit. Cont. 7. Under the terms of the bond in this case, both the defendants are responsible for the wrong-doing of M. Kirby. 8 S. C. 114; 1 Hill, 227; 15 Stat. 608, § 11.</p>

<p>1. The decision of an issue raised by a demurrer to the complaint does no more than adjudge the point of law involved.</p> <p>2. That a childless widow is entitled as against her deceased husband’s debts to the homestead allowed to the head of a family by the constitution and laws of this state, was the only point decided in Bradley v. Bodelsperger, 3 S. O. 227.</p> <p>3. All proceedings in the Court of Probate, whether pending or completed, for the assignment of a homestead as against debts contracted prior to 1868, are without the jurisdiction of the court, and therefore void ab initio, and hence in such proceeding there can be no adjudication binding upon any person.</p> <p>4. Long silence and acquiescence, induced by ignorance of the law in regard to the right of homestead, do not operate as an estoppel upon creditors.</p>

<p>1. A bond payable “ in three equal annual instalments from this date, with; interest payable annually until the whole be paid, — that is, one third Nov. 10, 1866; one other third with 'the like interest Nov. 10, 1867;- and the other third with the interest Nov. 10; 1868,” — draws annual interest on the several instalments after maturity as well as before.</p> <p>2. Wright v. Barnes, 10 Rich. Bq. 682, recognized and followed.</p> <p>8. The interpretation given by the circuit judge to a very obscure credit; endorsed upon a bond, sustained.</p> <p>4. This court will not ordinarily interfere with the discretion of the circuit judge in recommitting a report to a referee, in whole or in part, for further investigation. The judge may confirm the report as to' some of its findings of fact, and as to others recommit it for further, testimony and report.</p> <p>5. A trustee cannot introduce the book entries of her deceased attorney, to prove that rents were not received from the trust property during certain years.</p> <p>6. Where a lady trustee produced the tax receipts for all the years of her ■ trust save one, and there was no proof that the taxes for that one year-were not paid, and the attorney who had attended to all her business being dead, the circuit judge committed no error in presuming pay- • ment by her of the taxes for that year.</p>

<p>1. In a contest between two creditors of tlie deceased for administration! on bis estate tbe judge of probate properly issued letters to the greater creditor, although the appointment of the other petitioner was requested by the widow and by other creditors representing more than half-of the indebtedness of the deceased.</p> <p>2. Where none of the persons having a preference- under the statute-applies for administration, tbe judge of Probate maj'- consider their wishes in selecting an appointee, but he is not controlled by their suggestions.</p> <p>3. The administrator of one to whom the deceased was indebted is a creditor of the deceased within tbe meaning of Chapter LXXXYIII.,. § 1, Subd. 6, of the General Statutes of 1872.</p>

Before Kershaw, J., Greenville, April, 1881. This was a motion made by P. W. Dalton & Oo., judgment creditors of II. D. Gilbert & Co., to vacate a judgment of Ferguson db Miller v. FE. JD. Gilbert & Go. The notice of the motion was served upon the attorneys of record for the plaintiffs in the judgment sought to be vacated. The motion was based upon an affidavit in words following : Personally appears before me Julius II.

<p>1. Section 62 of the code of procedure requires a trial by jury in the-Circuit Court on appeal from the Probate Court, in those cases only where, according to the rules of law, a jury trial may be demanded.</p> <p>2. Section 276 specifies the classes of cases in which a jury trial may be-demanded as a legal right. In all other cases it is discretionary with the Circuit judge, and from his determination no appeal lies.</p> <p>3. On appeal to the Circuit Court from an order of the Probate Court revolting letters of administration, the Circuit jtidge committed no-error in refusing to submit to a jury issues of fact involving questions of fraud and waiver.</p> <p>4. Upon the application of the widow filed, within five weeks after the death intestate of her husband, the judge of Probate revoked the letters: of administration previously granted to a daughter of the intestate.. Held,, that in so doing he did not transcend his powers.'</p>

Before Thomson, J., Greenville, March, 1880. Action by’Sarah J. Hart, assignee, against John Bates, Sr., John Bates, Jr., Green L. Walker, Mary A. Walker, Sarah C. Good, and Valentine G. Wood — the last three being made parties under order of Judge Pressley. The facts and the order of the Circuit judge sufficiently appear in the opinion of this court. The exceptions are long, but they raise only the precise questions considered by this court.

Before Kershaw, J., Anderson, February, 1881. Action for partition and account instituted by Alice J. McCreary against Thomas Burns, Bobert Burns, and others, devisees and heirs at law of Anderson Burns, deceased. The opinion states the case.

Before Hudson, J., Charleston, November, 1881. Indictment against Edward Beadon. The report of the presiding judge was as follows : This indictment shows on its face jurisdiction in the Court of General Sessions, and concludes contra,formam Statuti. The finding of the jury may be referred to either count of the indictment; to the first count, ignoring the attempt to kill, or to the second count simply. In either view it is sustained by a good count.

<p>1. Officers, who hy virtue of their office are conservators of the peace,, have at common law the right to arrest, upon view, without warrant, all persons who are guilty of a breach of the peace or other violation of the criminal laws.</p> <p>2. And police officers of incorporated towns being charged with duties, which make them conservators of the peace, they have the same right of arresting without warrant.</p> <p>3. The offence of resisting a public officer in the discharge of his duty is within the jurisdiction of the Court of General Sessions.</p>

Before Hudson, J., Charleston, November, 1881. Indictment against Prince Smalls. The opinion fully states tbe case. Tlie report of the presiding judge was as follows : This indictment is in due form, and charges an offence within the jurisdiction of the Court of General Sessions, setting forth the murderous intent and aggravated circumstances ■of the assault and battery.

Before Kershaw, J., Charleston, July, 1881. This was an action by John H. Devereux against the Champion Cotton Press Company, commenced January 10, 1879. The case was once before in this court on appeal, and will be found reported in lé 8. O. 396. The opinion of the court, together with the judge’s charge, fully states the case.

Before Pressley, J., Bichland, July, 1881. Action for partition instituted by Jacob T. Barron against .Alice Dent and others, heirs at law of Samuel Dent, deceased.

This was a rehearing of the judgment rendered by this court in State, ex relatione JRichland County, v. Columbia, reported in 16 S. C. 412. It was an application for a writ of prohibition to prohibit the city council of Columbia from issuing any licenses to liquor-dealers until after payment by them of $100 to the county treasurer, according to the terms of the act of December 24, 1880 (17 Stat. 460).

Before Kershaw, J., Abbeville, February, 1881. Action by Frances E. Archer against William K. Munday, commenced August 11, 1879. It appears from the brief that James M. Calvert had three small children in 1846, and therefore the youngest of them must have attained his majority not later than 1867. The fourth clause of testator’s will is given in full in the opinion.

<p>Before Wallace, J., Marion, October, 1881.</p> <p>This case is fully stated in the opinion of this court.</p>

Before Pressley, J., Darlington, April, 1881. Action by Wiesenfeld, Stem & Co. against James E. Byrd and R. Sydney Smith, as executors of Jesse Keith, and Kate Keith as administratrix of J esse E. Keith. The Circuit decree thus states the ease: Jesse Keith and his son Jesse E. Keith were partners in trade until the death of Jesse, on 29th April, 1873.

Before AldRioh, J., Bichland, April, 1881. These were motions made by Angus B. Blakey in the six cases stated and heard together, to dissolve attachments levied in those cases upon real estate in Aiken, Barnwell, and Edgefield counties. The attachments were levied between January 1 and 8, 1881.

Before Mackey, J., Charleston, April, 1881. The attachments in these cases, Sarah C. Metts against the defendant corporation, and S. L. Patterson and E. L. Patterson against the same defendant, were levied in January, 1881. The deed of assignment to Angus B. Blakey was dated November 30, 1880, and recorded in the three counties named within fifteen days thereafter. Blakey’s notice of motion was served February 23, 1881. Other matters are stated in the opinion.

Before Fraser, J., Abbeville, November, 1881. Held: nor since, and that no time has been appointed for such an election. Judge Fraser heard the motion and granted it, on payment by the plaintiffs of $15 costs.

Before Thomson, J., Union, October, 1879. Action by Mathew S. Lynn against J. S. B. Thomson, Wade Fowler, and J. 0. Spears for damages done to the plaintiff’s lands within the past twenty years by a dam which had existed for a century, and also for damages for injuries resulting from the raising of the dam.

Before Kershaw, J., Orangeburg, May, 1881. Action by Elizabeth 0. Renneker and J. H. Renneker, Jr., her husband, against Auken Warren. Yerdict was for defendant. The plaintiffs moved for a new trial on the minutes, and ■that being refused appealed to this court. Upon the points ■decided by this court the case is fully stated in the opinion.

This is a motion to dismiss an appeal from a final judgment upon the ground that this appellant had given notice of appeal from an intermediate decree in the cause, but had failed to perfect his appeal, thereby waiving it.

Before Aldrich, J., Lexington, February, 1881. This was a petition for homestead presented by Mrs. Carrie S. Lewie, widow of Dr. F. S. Lewie. Dr. Lewie died in June, 1813, considerably in debt, but it does not appear that there were any judgments against him. The most valuable part of testator’s lands were sold in 1814 by the executors under a power in the will. In March, 1815, an action in the nature of a creditor’s bill was instituted by IT. IT.

Before Hudson, J., Laurens, February, 1881. Hon. Tbomas B. Fraser of the Third Circuit sat in the place-of the chief justice, who had been of counsel in the cause. This was an action by James W. Watts against L. W. C. Blalock for five hundred dollars damages. The opinion states-the pleadings and some of the facts of the case. The testimony shows that this guano house was built by plaintiff in 1875 by permission of the Laurens Railroad Company.

Before Thomson, J., Charleston, June, 1880. This is the second appeal in this case; the first will be found reported in 12 S. G. 9, and should be read in connection with the opinion here. The report of the referee, G. D. Bryan, Esq., the Circuit ■decree, and the opinion of this court fully state the case.

Before Kershaw, J., Abbeville, February, 1881. Held: “ that after decision of the ease by the Supreme Court the Circuit Court cannot grant a motion for a new trial on the ground of newly-discovered evidence, but must execute the mandate of the Supreme Court.” I do not consider the cases of Prvngle v. Sizer, Y S. G. 131; Knox dé Gill v. S. G. R. B. Go., 5 S. G. Y3, and Whaley v. Bank of…

Before Mackey, J., Charleston, March, 1881. Held: together with the statement of the condition of all the coupons on those bonds as far as such condition has been ascertained by the proof submitted.

Before Kershaw, J., Abbeville, January, 1881. Hon. Thomas B. Fraser, of the Third Circuit, sat in the place of Mr. Justice McGowan, who had been of counsel in the cause. Action by Reuben J.Paris against J. E. C. DuPre, as sheriff of Abbeville county, commenced January 31, 1879.

Before WallaCe, J., Laurens, May, 1880. Hons. J. H. Hudson and T. B. Eraser sat in tlie place of tbe Chief Justice, and Mr. Justice McGowan, who had been of counsel in the cause. This action was commenced in 1812 by W. F. A. Dickerson and Lucy W., his wife, and the minor children of|the latter, against William-T. Smith and John B. Smith, executors, and Joel F. Smith, James Smith, Mary Smith, Basil H. Smith and Charles L. Smith. The opinion makes a statement of the case.

<p>Before Wallace, J., Kershaw, June, 1879.</p> <p>Action by George W. Witte and Armin F. Witte as Witte Bros, against T. H. Clarke, Sallie L. Clarke, T. W. Lang, Harriet M. Lang, L. McCandless, T. L. Boykin and several judgment creditors of T. H. Clarke, commenced March 6th, 1877. By supplemental complaint filed in September, 1877, Mrs. Louisa G. Clarke was made a party defendant. The nature 'of the action and the facts are fully stated in the opinion of this Court.</p> <p>The Circuit degree was filed December 2, 1879. Omitting its statement of undisputed facts, it was as follows:</p> <p>The supplemental complaint raises a question as to the validity of the judgment of the Probate Court adjudging that Louisa Clarke is entitled to dower in Green Hill plantation, and demands that she be required to establish her right to dower in this Court. This is asking in effect that the judgment of the Probate Court be treated as a nullity. This can only be done when it appears that the Court is entirely without jurisdiction -of the subject matter in relation to which the judgment is pronounced. Jurisdiction in the allotment of dower is conferred by the constitution on the Probate Court. Errors of law by that Court, in a proceeding within its jurisdiction, can •only be corrected by appeal in the manner provided by law. The right of appeal from the Probate Court may be exercised by any one “interested in any final order, sentence or decree,” ■of that Court. Any person desiring to exercise his right to have revised a proceeding in the Probate Court by the Circuit •Court, must pursue the remedy established by law. There was no appeal in this case and the judgment is final and conclusive, and is proof of every fact necessary to support it. There is no proof of fraud or of secresy, nor want of proper parties.</p> <p>The next question relates to the validity of the assignments by Sallie L. Clarke to Thomas W. Lang and Leslie McCandless. Burwell Boykin died in 1861, leaving his last will and testament, by which, among other things, he bequeathed to his daughter, Sallie L., the sum of four thousand dollars, which was to take effect upon her attaining the age of twenty-one years, or marrying, but which she was not to enjoy until it was secured to her free from the debts, liability, contracts and disposition of any husband she might have.</p> <p>The manifest intent of the testator was to create a separate estate for the benefit of his daughter that could not be taken by the creditors of her husband, or in any way be alienated by him. This much was expressly provided for. Nothing was said in the will as to the power of Sallie L. to control or dispose of the bequest. At the time the will was executed, a married woman had no power to alienate, dispose of or pledge, for her husband’s debts, her separate estate. This rule has been changed by the constitution of this State adopted in 1868. We must suppose that Burwell Boykin, if he intended that his daughter should have power to alienate her separate estate, would have expressly bestowed the power upon her, as without such bestowal und.er the law as it stood in 1861 she could •not do so. The state of' the law at the time, taken in connection with the omission by the testator to provide for any control of her separate estate by his daughter, forces the conclusion that he did not intend that she should control it. If she had remained unmarried until she attained the age of twenty-one years, then while sole she would have had the power to dispose of her beneficial interest and thus defeat the trust; but the moment she married, disability intervened.</p> <p>The power of married women over their property rights is enlarged by the 'constitution of 1868, and the law enacted in pursuance of it. This trust, however, is unaffected by the change in the civil status of married women. When a contract is made it is presumed to be made with reference to the existing law applicable to its terms, and a subsequent change of the law does not affect the law of that contract in existence at the time it was entered into; so, in analogy to this rule, a trust created must be presumed to have been created with reference to the law as it existed at the time, and a subsequent change of the law leaves the trust unaffected by the change. I conclude, therefore, that the assignments of the mortgage by Mrs. Sallie L. Clarke to Lang and McCandless are void and of no effect. This debt of the separate estate of Sallie L. Clarke does not bear interest, the funds being in the possession of her husband.</p> <p>Miss Harriett M. Lang, holding a mortgage of both Jumping Gully Creek plantation and Green Hill plantation, must first exhaust the proceeds of the sale of Jumping Gully Creek plantation and for any balance go upon the Green Hill plantation, after prior liens upon Green Hill plantation are extinguished.</p> <p>It is ordered, adjudged and decreed, that the order enjoining Mrs. Louisa Clarke from proceeding to enforce her judgment of the Probate Court for dower in Green Hill plantation be set aside and vacated. That the assignment by Mrs. Sallie L. Clarke to Thomas W. Lang and Leslie McCandless are null, void and of no effect. That Green Hill plantation be sold and the proceeds of the sale be applied first to the costs and expenses of the proceedings in dower by Mrs. Louisa Clarke in the Probate Court. Next to the payment of the judgment in dower by that Court in favor of Mrs. Louisa Clarke. Next to the payment of four thousand dollars, without interest, to T. L. Boykin for the use of Mrs. Sallie L. Clarke. Next to the payment of the balance, if any, on the debt to Miss Harriet M. Lang, secured by mortgage bearing date 25th March, 1870, the proceeds of the sale of Jumping Gully Creek plantation being first applied thereto. Next to the mortgage debt of the plaintiffs herein. And next to the debt of Miss Harriet M. Lang, secured by mortgage bearing date 17th March, 1876. That Jumping Gully Creek plantation be sold and the proceeds be applied to the debt to Miss Harriet M. Lang, secured by mortgage bearing .date the 25th March, 1870. That T. IT. Clarke be barred and foreclosed of all equity of redemption in Jumping Gully Creek plantation and Green Hill plantation. That the parties or any of them have leave to apply at the foot of this decree for orders fixing the time and terms of sales ordered herein.</p> <p>The'exceptions to this decree are given in the opinion.</p>

Before Thomson, J., Spartanburg, October, 1879. In this case Hon. T. B. Fraser, Judge of tbe Third Circuit, sat in the place of the Chief Justice, who had been of counsel. Action by Joseph Walker against William H. Walker and Mary E. Walker, commenced May 25, 18J5.

Before Thomson, J., Charleston, June, 1880. Hon. W. H. Wallace, of the Seventh Circuit, sat in the place of Mr. Justice Mclver, who had an interest in the cause. This was an action commenced in November, 1878, by the Union Bank of South Carolina, in behalf of itself and other creditors, against the Wando Mining and Manufacturing Company and all its stockholders.

Before Pressley, J., Richland, July, 1881. This is a second appeal of the case reported, 15 S. G. 36, action by Thomas Agnew v. Robert Adams. At the second trial the following agreement was signed by the attorneys of record. It is agreed that the testimony given on the former trial, as stated in the brief for the Supreme Court, subject to the objections and exceptions therein taken, shall be the evidence on the new trial.

Before Kershaw, J., Abbeville, January, 1881. Hon. T. B. Fraser, of the Third. Circuit, took -the seat of Mr. Justice McGowan, who had been of counsel in the cause. Petition by Nellie IT. Jones againt Jacob Miller for dower, filed in the Probate Court of Abbeville, June 1Y, 18Y9. The facts stated in the brief appear in the opinion of this Court.

Before MacKey, J., Charleston, May, 1881. This was an action by Amelia L. Annely and Julia A. Blake, as devisee and executrix of Anna M. Annely, to foreclose a mortgage given by John W. Lewis, on his one fourth interest in the Commercial Wharves of Charleston, to secure the payment of two bonds of the same date and for the same amount, payable, one to Amelia L. Annely and the other to Anna M. Annely.

<p>1. The whole transaction connected with, the closing of an account by note being in writing and set forth in the pleadings; there was no error in passing upon a petition to have such account paid out of the receiver’s fund without ordering a reference to take testimony.</p> <p>2. After order passed constituting the officers of a railroad company, in effect, receivers of the road, the company continued to conduct its business as before, officers were annually elected and no separate books were opened by them as receivers. During this time a note was given by this corporation in its corporate name, signed by the president and treasurer as such in settlement of an account for running expenses. Held, that the existence of such corporation was not interfered with, or its officers displaced, and that the note so given was not made or received with reference to the receiver’s fund.</p> <p>3. Whether a note was received as payment of an account is a question of fact depending upon intention, but such intention appears here from the manner of closing the account by note for balance, together with receipt for such note expressed to be in settlement, and,a deposit of collaterals to secure the payment of the note.</p> <p>4. Besides, the payee of such note having transferred it with the collaterals for value, and the collaterals having been sold by the transferree, the original cause of action on the account, if still existing, was then destroyed.</p> <p>5. If the account was properly chargeable against the receiver’s fund, it was a mere equity, which did not attach to the note given by the corporation and to the collaterals intended to secure it.</p>

Before Pressley, J., Richland, July, 1881. Action by Ann S. Rodgers, widow, and her children, against the Mutual Endowment Assessment Association of Baltimore, Maryland. After service of the summons as stated in the opinion, defendant wrote to counsel to represent it.

<p>1. After issue joined by answer and reply the action may be dismissed dn defendant’s motion if tbe complaint does not state facts sufficient to . constitute a cause of action.</p> <p>2. An original action on tbe equity side of- tbe court for injunction to restrain a corporation from throwing off gases to tbe injury of plaintiff’s person and crops, will not lie — there having been no judgment in the court of law establishing the existence of such private nuisance and measuring the damages.</p> <p>3. The exception to this rule is found only in extreme cases, as where the thing itself is shown to be a nuisance per se, or where the mischief is irreparable and not capable of compensation in damages.</p> <p>4. In compromise of an action pending at law and for valuable consideration, plaintiff released defendant from all claim or right of action on plaintiff’s part for damages, past and future, resulting from the operation of defenddnt’s works, and covenanted not to sue for damages arising from this cause. Held, that this prevented a suit in equity for injunction as well as an action at law for damages; and, moreover, that there can be no injunction without a legal right to damages.</p> <p>5. Such release and covenant operated to estop plaintiff from doing what he bound himself under seal not to do.</p> <p>6. Neither erroneous advice, nor error of judgment by plaintiff as to the future effects, nor the suggestions of defendant, one or all, would invalidate this covenant.</p>

Before Fraser, J., Abbeville, November, 1881. At tbe hearing of this appeal Hon. J. H. Hudson, of the Fourth Circuit, sat in. the place of Mr. Justice McGowan, who had been of counsel in the cause. The order of. the Circuit Judge fully presents the case, and its statements will be found in the opinion of this Court.

Before Fraser, J\, Abbeville, November, 1881. Hon. J. H. Hudson, of the Fourth Circuit, occupied the seat of Mr. Justice McGowan, who had been of counsel in the cause. Action by Louisa J. Pratt, Margaret Clinhscales, and others against Leonora McGhee, Claudia Ellis, John B. Ellis, and Bobert Pratt, executor, for partition, account for advancements, etc. The opinion states the facts of the case.

Before Aldrich, J., Laurens, September, 1881. Hon. J. H. Hudson, of the Fourth Circuit, sat in the place of the Chief Justice, who had been concerned in the cause. Action by John R. Finley et al. against Y. B. Robertson. The opinion makes a full statement of the case.

<p>Before Wallace, J., Darlington, September, 1881. '</p> <p>Action by Elizabeth Vaughan against C. W. Hewitt and. E. Keith Dargan, commenced in July, 1881. The opinion states the case.</p>

<p>1. A description of the note without a statement of the indebtedness for which the note was given is insufficient to sustain a confession of judgment.</p> <p>2. A confession insufficient in the statement required by the statute is not irregular merely but invalid, and may be" assailed by a junior judgment creditor.</p> <p>8. And being invalid, it cannot be corrected by amendment.</p> <p>4. Motion is a proper proceeding on the part of the junior judgment creditor to set aside such invalid confession.</p> <p>5. And it should be set aside under the motion, notwithstanding property of the judgment debtor has been sold under the confession, and purchased by the plaintiff in that judgment.</p> <p>6. And such motion is not barred by lapse of time, when made within five years after the confession of judgment was entered, especially where the moving party has not been guilty of laches. This case distinguished from Clark v. Porcelain Manufacturing Company, 8 8. C. 22.</p> <p>7. A judgment may be valid as between the parties, and yet void as to third persons.</p>

<p>1. This court cannot review an order of the Circuit Court opening a default on affidavits and motion noticed within two months after judgment rendered. -,</p> <p>2. If the motion was made under section 197 of the code of procedure, it was a matter within the discretion of the Circuit Court, and therefore not appealable; if made under the act of 1869 (Gen. Stat. ch. cv. § 2) it depended upon issues of fact and upon proof which was to be satisfactory to the presiding judge, and therefore this court cannot review his conclusions.</p>

Before Kershaw, J., Newberry, December, 1880. Action by Jane E. Wallace against William C. Johnson and B. 33. Holman, commenced February 5, 1878. The opinion states the case. It being conceded that the husband has had no exemptions of real or personal property set apart to him, and that the goods distrained are worth less than $500, the act of 1874 (15 Slat. 589) is sufficient to exempt this property to the wife.

<p>The court having found that an absolute deed to land, of which the defendant had seized the possession, was intended for a mortgage, the mortgagor, who instituted the action, is entitled to an order of reference to have the debt due ascertained, and to have the premises sold for its payment — the surplus, if any, to be paid to the plaintiff.</p>

Before Aldrich, -J., Abbeville, January, 1882. Indictment against Sam Hamilton, for stealing cotton from the field. There were no requests to charge, and no exceptions to the charge -as made, and no motion for new trial. Other matters are stated in the opinion.

<p>Before Pressley, J., York, October, 1881.</p> <p>Action by B. B. Kennedy, administrator, against S. B. Moore, executor. Tbe opinion states tbe case.</p>

Before CothkaN, J., Fairfield, February, 1882. To the statement of the case contained in the opinion of this court should be added so much of the report of the presiding judge as is not there stated.

Before Pbessley, J., Laurens, February, 1882, This was an indictment against Neel Coleman for the murder of his son by cruel treatment. The opinion states the case. There was no report by the presiding judge.

<p>Where two attachments are levied upon personal property of the same debtor at different hours of the same day, the one first levied has -no priority of lien, hut the two take rank together.</p>

<p>Before Aldrich, J., Kershaw, February, 1881.</p> <p>Action by John M. Russell against William L. Arthur, commenced January 1, 1879. The opinion states the case.</p>

<p>1. In action on a note the answer alleged that the plaintiff was a lunatic; at the trial plaintiff’s attorneys admitted this allegation and moved, without previous notice, for the appointment of a guardian ad litem, for the plaintiff, and .the appointment was made. Held, that the amendment was within the discretion of the presiding judge, and this discretion was properly exercised.</p> <p>2. It is only when the defendant so fully admits the plaintiff’s case as to entitle plaintiff, in the absence of affirmative defence, to his judgment, that the defendant is entitled to open and reply.</p> <p>3. The lapse of twenty years raises a presumption of payment as to sealed notes and bonds, which, though not a presumption of law, is a presumption of fact that has acquired an artificial force subject to be rebutted by such facts only as would revive an unsealed note barred by the statute of limitations. There must be in rebuttal something more than mere belief deduced from the weight of testimony; the stay law, the war and the lunacy of plaintiff are not circumstances sufficient to rebut this presumption.</p>

Before Pressley, J., Chester, October, 1881. Action commenced February 9, 1881, by the National Bank of Chester against I. L. Gunhouse, Myer Wachtel and Samuel Gunhouse, constituting the firm of I. L. Gunhouse & Co., and Fanny Kaufman, for foreclosure of mortgage. The plaintiff’s mortgage is stated in the opinion; the mortgage held by Fanny Kaufman was to secure the repayment of money advanced by Moses Strauss on the two notes of $5000 each, described in* that mortgage.

<p>Wiiere a mortgage covers three parcels of land, one of which is sold by the sheriff under an execution junior to the mortgage and purchased by the mortgagee at an under value, the proportion which.the true value of the parcel purchased bears to the whole mortgaged property, and not the bid at the sheriff’s sale, is the proper credit on the mortgage debt; and the mortgagee may then foreclose his mortgage on the unsold parcels for the balance remaining unpaid.</p>

Before Fraser, J., Greenville, November, 1881. This was an action by Jane 0. McFall and’ others, children of John 0. Sullivan, deceased, against William E. Sullivan, administrator of J. 0. Sullivan and others, legatees and devisees under the will of the said J. 0. Sullivan, commenced in 1881, for a settlement of the estate of the testator. The case depended upon the construction of the following will: In the name of God, amen, I, John 0.

<p>1. In an action on a policy of fire insurance issued by a Virginia company, the Circuit judge refused to admit in evidence a certified copy of proceedings in the courts of Virginia which showed that this debt had been attached in the hands of this defendant under an attachment there issued against this plaintiff. Held that this refusal was error.</p> <p>2. The admissions by a local agent of the defendant company of the principal’s liability to pay the loss were improperly received in evidence, it not having been made to appear that the local agent was authorized to adjust losses or had other powers that would make such admissions binding on his principal. And they were no part of the res gestee.</p> <p>3. The declarations of a third person concerning a box left with him by plaintiff just before the fire was clearly hearsay evidence, and therefore inadmissible.</p> <p>4. Where fraud is relied on in defence, it is incumbent on the defendant to show it, although the complaint alleged that there was no fraud.</p>

Before Aldrich, J., Abbeville, February, 1882. Action by Cornelia E. Crawford against A. E. Crawford, and S. A. Crawford, executors of James E. Crawford. The opinion states the referee’s report, the order of the Circuit Judge, and the facts of the case. The plaintiff excepted to the order of the Circuit Judge because it overruled the exceptions to the Master’s report.

<p>Before Cothran, J., Kershaw, September, 1881.</p> <p>Action by Charlotte A. Cantey against Ann W. Whitaker, for the recovery of land, commenced December 30, 1880.</p> <p>Defendant’s attorneys, in argument before the jury, claimed ' a verdict upon the ground, among others, that plaintiff had failed to prove any title to the land in dispute, and had failed to show that the land in dispute was embraced in any of the •deeds offered in evidence. The presiding Judge said that he thought it was understood that the land described in the deeds embraced the tract in controversy, and had so entered it on his notes. Defendant’s counsel said there was no such understanding, and he did not admit that the deeds embraced the disputed portion of land. The Judge then said he would allow plaintiff to supply the requisite proof if she could, and at the conclusion of the argument of defendant’s counsel, plaintiff called E. B. Cantey, who testified that “ He knew the land described in the •deeds, and that the tract occupied by defendant was embraced in them and in the larid now claimed by plaintiff.” His Hon- or noted the exception of defendant to the introduction of this evidence, and plaintiff’s counsel closed the argument before the jury. All other matters are stated in the opinion.</p>

<p>1. A deed conveyed land to “8., lier heirs and assigns (for and during her natural life, should she die without issue) ... to have and to hold the said tract unto the said S., her heirs and assigns for and during her natural life as aforesaid. Should she die without bodily issue, the said tract to revert to the children of D., deceased. But should the said S. have a child or children, then the said land to rest in them absolutely.” S. died without issue. Held, that, by this deed, S. took an absolute estate, which, at her death, intestate, passed to her heirs at law.</p> <p>2. This deed purported to have been made in pursuance of a prior agreement, and such agreement recited that S., the widow of one D., and the five sons of D. by a former marriage, had agreed to divide the property, giving to “ S. one-sixth in lieu of all claim of dower, the property coming to her under said agreement, she hereby agrees that she will take good care of, and if she should die without bodily heirs then she hereby agrees and covenants that, at her death, all the remaining property shall revert back to the heirs of D ”; provided,, the said sons took care of her while she lived if she became helpless or needy. The widow having become helpless and needy and not being assisted by the sons, Held, that the condition stipulated as that upon which the land was to revert not having been performed, the fee remained in S. under this agreement, and it mattered not that the sons were ignorant of her needs.</p> <p>3. There was nothing in this agreement or deed in the nature of a covenant to stand seized to uses.</p> <p>4. There is nothing in the agreement that would authorize the Court to reform the deed because of accident or mistake, the agreement itself showing an intention that the fee should not be reduced to a life estate except upon a contingency which never happened.</p> <p>5. The declarations of S. as to the nature of her estate amounted to no more than the expressions of an opinion, and were, therefore, inadmissible as evidence against her heir at law.</p>

Before Hudson, J., Spartanburg, April, 1881. Action by B. R. Smith & Co. against John E. Bryce, commenced January, 1880. Upon tlie points considered by this Court, the judgment of the Circuit Court was as follows: This action is by the plaintiffs, who are commission merchants and cotton factors of Boston, Mass., against their principal, John E. Bryce of Spartanburg, seeking to recover a balance alleged to be due them on an account stated between them.

Before Fraser, J., Spartanburg, June, 1881. Action by J. W. Burnett and Margaret his wife, against Marcus Burnett, Matthew Burnett, William M. Kinney, and Mary his wife, and J. B. Davis, executor, commenced January 25, 1879. To the facts stated in the opinion it will be necessary to add only that William M. Kinney and Matthew Burnett were the purchasers of the land sold by Davis, as executor.

Before Aldrich, J., Greenville, January, 1882. This was a motion made by defendants at Pickens to have certain attachments upon their property, under proceedings in Greenville, vacated.

<p>1. In action for dower, the defendant having produced a certificate of renunciation regular in form, the plaintiff may introduce evidence to show that at the time of such renunciation she was under the age of twenty-one years.</p> <p>2. A renunciation of dower made by an infant wife is no bar to her recovery of such dower when the right matures.</p> <p>3. The silence of the wife for twenty-eight years after the renunciation, while it was spread upon the records and other parties became purchasers, operated neither as a co'nflrmation nor an estoppel, she being all the while a married woman.</p> <p>4. The plea of purchaser for valuable consideration without notice is equitable in its character, and has no proper application to a claim purely legal like that of dower.</p>

<p>1. A succeeding Board of County Commissioners has no authority to review and revise the action of its predecessor in auditing and allowing’ a claim against the county.</p> <p>2. The statute of limitations does not apply to a proceeding in mandemvs, but where there is unreasonable delay, the Court, in the exercise of its discretion, will refuse to issue the writ, as iu this case, where the application was made ten years after, the claim was allowed, and seven years after liability denied, without any explanation, for the delay.</p>

Before Hudson, J., Laurens, February, 1881. In this case the Honorable T. B. Fraser, Circuit Judge, sat in the place of the Chief J ustice, who had been of counsel in the cause. Action by Margaret H. Dunlap, S. E. Dunlap and Hattie Teague against H. W. G-arlington, as trustee of Nancy Miller, Elo’ise W. Shell, Chaney M. Miller and W. D. Black. The opinion states the facts of the case.

Before Aldeioh, J., Pickens, January, 1882. Reese Bowen against the Atlantic and French Broad Valley Railroad Company and Elizabeth Major against the same. The opinion states tl?e case, but the charge of the judge to the jury in the Circuit Court should be given in full. It was as follows: “ The law of this case, to which you are to apply the facts, is contained in the act regulating the construction of these great highways of travel and trade.

<p>Before Wallace, J., Kershaw, February, 1882.</p> <p>The opinion fully states the case.</p>