Volume 17 — South Carolina Equity Reports

<p>1. The validity of a testamentary disposition of personality, depends exclusively upon the laws of the country where the testator was domiciled at the time of his death.</p> <p>2. A mere relinquishment of actual residence is no abandonment of domi-cil, if there is no intention to change it; as where a man leaves home for temporary purposes, as for a voyage, for foreign travel, for health or pleasure, or business of a temporary nature. In all such cases, there is animus revertendi.</p> <p>3. Abandonment of a man’s domicil, however deliberate, is no destruction of it, unless he shall have acquired a new one. From the necessity of the case, the last residence, although intentionally and permanently forsaken, must still be regarded as his domicil. But the acquisition oí a new domicil, which is much more a question of fact than of law, will be credited on far less evidence than would otherwise be required.</p> <p>4. Where one has abandoned his domicil with the avowed intention of not returning, and of living in another place, a very short residence will suffice to create a new domicil, and the force of residence, as evidence of domicil, is increased by the length of time it has continued, but time alone is not conclusive.</p> <p>5. The true basis and foundation of domicil is the intention, the quo ani-mo, of the residence.</p> <p>6. The apparent or avowed intention of constant residence, not the manner of it, constitutes the domicil.</p> <p>7. J. M. L. made and duly executed his will on the 5th of May, 1836, bequeathing his whole estate, except a small portion to his wife, to his illegitimate children ; and having first made sale of all his property, except his slaves, removed with them, during the fall of that year, to the State of Alabama. He left this State with the avowed intention of not returning, and of going to the West to live. In Alabama, he hired out his slaves, and in. May, 1837, died, at a house where he had taken lodgings as a boarder. It did not appear from the testimony, where the testator was, between his emigration into the State and the time of his death.</p> <p>8. It was held, that as there was no evidence where the testator was in the interval, he must be presumed to have been where he was found at the time of his death, and that, prima Jade, he was domiciled at that place.</p> <p>9. Also, that this presumption was not rebutted from the fact of the testator’s former residence in South 'Carolina, it having been shew n that he had intentionally and permanently abandoned that — and that as the proof was that the testator might be expected to remain in Alabama, unless called elsewhere by some particular circumstance, he was domiciled in that State at the time of his death.</p> <p>10. Also, that the will of J. M. L. as to his personality, was not avoided by the Act of 1795, (5 Slat, at Large, 271,) there being nothing shewn in the common law, as prevailing in Alabama, to impair its validity, nor any Statute suggested to this effect.</p> <p>11. Although the testator had left his wife behind him, yet as her residence had not been her husband’s, but that of her son-in-law, this did not determine his domicil.</p> <p>12. The rule, that the place where a married man’s family resides, is generally to be deemed his domicil, may be controlled by circumstances.</p> <p>13. The Act of 1795 is remedial, and should be construed so as to suppress the mischief contemplated by it.</p> <p>14. Thus, where the testator, while an inhabitant of this State, had given to the defendant, who had married his illegitimate daughter, a negro girl, and had also, indirectly, transferred to him a tract of land by an advance of money as a purchase of it, so that in effect the land was the thing purchased by the one party, and gratuitously accepted by the other — these gifts were construed to be for the benefit and advancement of tfestator’s daughter. And, also, as coming within the true intent of the Statute, if exceeding, at the time they were made, one fourth of the clear value of the donor’s estate.</p> <p>15. In construing this statute, where there is a plurality of gifts, the property first given should be valued at the time of the gift, and compared with-the nett value of the entire estate of the donor at that time, (the property given included,) and the gift is to be held void for so much as the property given may have exceeded in value one fourth ofthe whole. If the first gift should fall short of one fourth, it is valid. But when a second gift is made, the subject of the first donation should be brought down and added to the second ; and these two are to be valued at the time of the second gift, and compared with the nett value of the whole estate of the donor at that time, as before described, and the second gift will be void for so much as it, with the prior gift, shall exceed in value the proportion described in the Statute. And this process should be repeated as to each succeeding donation which may be made.</p> <p>16. As it regarded the slave given, it was held, that even if the gift were void under the statute, the property being given again by the will was good; as a party having two titles, one good and the other bad, may claim under the title most advantageous to himself.</p> <p>17. As the foreign domicil of the testator could have no effect on real property, the gift of the land was held void, if, when made, it exceeded one fourth of the donor’s estate' — the excess not being made good by the will, but remaining as if never given.</p> <p>18. Supposing the land to have exceeded one fourth of the whole estate owned by the donor at the time it was given, estimating both the land and the residue at that time, (which is the proper time of valuation,) could after accessions to the donor’s property, left by him at the time of his death, be taken into account, for the purpose of supporting the gift 1 Also whether, supposing the land to have exceeded one fourth of the estate of the donor, the donee should account for the excess, or whether it should not be taken off by the process of partition ? Opinion reserved on these questions.</p>

This case came up on an appeal from a decree of Chancellor Dunkin, before whom it was heard, at Spartanburgh, June Term, 1842. The facts and the evidence will appear from the decree. Dunkin, Ch. The petitioner was the owner of a tract of land, containing about two hundred acres, situated on the waters of the Pacolet, under a grant from the State, dated 4th Nov’r. 1816.

The cause was heard before Chancellor Johnson, at Charleston, February Term, 1843. By a decree of his Honor Chancellor Johnston, in July, 1842, this case was referred to the id aster, Mr. Gray, from whose report the facts and the objects of the bill of complainants will be fully understood.

<p>The Court does not consider itself bound to adhere to the strict order of the docket, if there be any reason of justice, necessity or convenience for departing from it; and if upon looking into the judgment and grounds ofap: peal, it plainly appears to the Court to he frivolous, it is a good ground for a departure from the ordinary course. In such case appeal dismissed;</p>

<p>1. Marriagesettlement executed by and between complainants in November 1838. The husband became of age in August, 1839. Bill filed Feb. 1843 to set aside the settlement, on the ground of the alleged minority of the husband. Under ordinary circumstances, it would be too late to ask the aid oí the Court in vacating the deed on account of non age.</p> <p>2. The settlement being of the wife’s estate only, the assent of theintended husband was only necessary to repel any presumption of fraud on his marital rights; and for this purpose, it was no more necessary that he should have attained twenty-one years of age, .than to the validity of the marriage ceremony. Knowledge would be presumed to supply the deficiency of age. i</p>

Hugh Swinton Ball was married to Ann Elizabeth Channing, at Boston, on 8th March, 1827. Both he and his wife were then minors, and without a father living. Held: in the Massachusetts Hospital Company, $25,-000, being part of an amout which had been received from the guardian of his wife, on 5th Nov., 1829, and re-deposited the same day in his own name.

<p>1. C. S. and wife, by deed of the 8th October, 1829, in consideration of natural love and affection for their children, bargained and sold to one P. R., amongst other things, certain slaves with the future issue and increase of the females, in trust, that C. S. and wife, and the survivor of them, should have and use the slaves for life ; and after the death of the survivor for the use of their children, absolutely discharged from all further trust; and it was covenanted that the trustee, at the joint request of the husband and wife, or of the survivor of them, should sell and dispose of any of the property conveyed, and invest in other property, subject to the operation of all the trusts and uses expressed and declared in the deed. The wife died on the 26th October, 1836, and on the 29th of the same month and year, C. S., by deed of that date, released to the trustee all the interest he had in the properly in the deed abovementioned, and requested the trustee to sell the said property and invest the nett proceeds (after payment of certain debts that he had contracted, and the funeral expenses of his wife,) in other property that might be more for the benefit of said children , and in trust, that he would have hem educated out of the interest and income, if possible, if not, to apply so much of the share of each to that purpose, as might be necessary.</p> <p>2. Under this deed the trustee, before the death of C. S., sold certain of the slaves, paid the funeral expenses of the wife, besides certain debts and expenses of C. S.</p> <p>3. The trust expressed, that the trustee shall sell and dispose of the property at the joint request of the husband and wife, or at the request of the survivor; held not to mean that the trustee shall carry into effect any particular contract of sale which the husband and wife should indicate, but that upon the previous request of the husband and wife, or of the survivor, the trustee should ma.ke such sale as should seem to himself advisable.</p> <p>4. The Court of Law, 2 McMullan, 280, having decided that the title of the purchaser to the slaves sold by the trustee was good at law, both on the ground of his legal title and power to sell; held, that this decision must prevail. [1]</p> <p>5. If the trustee sold in pursuance of his power, the title of the purchaser could not be affected, or the slaves directed to be specifically given up, although he may have sold with the intention to dispose of the money in violation of his trust.</p> <p>* 6. It would seem that the only question to affect the purchaser in such case, would be, whether he was bound to see to the application of the purchase money; and in general our Courts have held that purchasers are not so bound. 2 Dess. 375. [2]</p> <p>7. The trustee being accountable for the fund in his hands, and his account being before the Master, the question whether he should be allowed for paying the debts of the tenant for life, and the funeral expenses of his wife, to await the coming in of the Report; the complainants at the same time having leave to make the question, whether if the purchasers knew that the trustee intended to misapply the money, and paid it to him with that knowledge, they might not, in the event of his insolvency, be compelled to make good«my deficiency of the fund.</p>

<p>1. Partition may be effected amongst die distributees of an estate, if each, should purchase to about the amount of his share, give bond for the amount, and then the bonds should be settled ; each receiving or paying whatever amount his purchase might exceed or fall short of his share — the bonds then to be cancelled. But until such settlement and cancellation, there can be no distribution. Till then they would be liable on their bonds in case of any unexpected debt arising, or for any balance exceeding or falling short of their shares. In contemplation of law, it is not the property, (of which they are merely purchasers, as any other individuals would be,) but the money secured by the bonds, which is the subject of partition.</p> <p>2. J. S. P. as administrator de bonis non of the estate of E. G. dec’d. under a decretal order of the Federal Circuit Court, directing said estate, both real and personal, to be sold, the former, by the marshall, and the latter, by the administrator, as well as the estate of W. S. G. dec’d. who had been the executor of E. G. proceeded to make a sale in January, 1832. There was an agreement between the surviving devisees of E. G. or rather between the husbands of his daughters, previously to the sale, that each should purchase to about the amount of the share of the estate to which his wife would be entitled; that bonds should be given for the amount of the purchases, which bonds, however, were not to be paid; but on a final settlement, after the decision of a suit then in the Federal Court, these should be mutually given up or cancelled. Defendant J. S. P. was a party to this agreement, had married a daughter of E. G. who died in Nov. 1832, and had employed certain persons to make purchases for him. Their receipts, of dates anterior to the death of his wife, purported to have received, as administrators of E. G. for his wife, the price of slaves purchased by them. A. G. one of th,e devisees of E. G.' was not a party to this agreement, hut his receipt of Nov. 1834, was produced for certain bonds received on account of his share of the estate, and some correspondence to show that the parties contributed to make his share equal to the others.</p> <p>3. But the parties not having purchased to the exact amount of their interests — that of defendant, J. S. P., exceeding the rest — Held, that all the purchasers were liable on their bonds to make up the share of A. G., which was not ascertained till after the death of defendant’s wife, and that if defendant gave up the bonds of the purchasers, he would be liable as administrator, for so much money received. The estate of E. G., not being fully administered at the death of defendant’s wife, his marital rights did not attach, in respect of his agreement and purchase.</p> <p>4. Where the funds of the wife, for which the husband is suing, are in a court of competent jurisdiction, an order to pay to the husband, is such an appropriation that the marital rights will attach, notwithstanding the subsequent death of his wife before the actual payment,</p> <p>5. Certain funds of the estate of E, G., being in the Federal Court, a decree of that court, directing defendant’s proportionable share oí it to be paid him in right of his wife, held sufficient for his marital rights to attach.</p> <p>6. The decree of the Federal Court directing the funds of the estate of E. G. in the hands of the Clerk, acting as Master, to be paid over in certain proportions to his distributees, held, not void for want of jurisdiction, because the relief claimed by the plaintiffs was refused, and the bill dismissed.</p> <p>7. With respect to an inferior court of limited jurisdiction, the circumstances which give it jurisdiction must appear upon the face of its proceedings, and if they do not, the judgment will be void. But the judgment of a superior court of general jurisdiction, can never be void for want of jurisdiction. Nothing shall be intended to be out of its jurisdiction, which is not shown to be so in the course of the suit. However irregular and erroneous its judgment may be, it must be respected by every other tribunal, until arrested by the Court itself, or reversed for error on appeal.</p> <p>8. According to the practice of the Courts of the United States, if the circumstances which give jurisdiction do not appear on the record, and the objection be taken in the course of the suit, they will refuse to entertain jurisdiction; or if the Circuit Courts should do so, the judgment may be reversed for error.</p> <p>9. But it has never been held, that with respect to the judgments of other tribunals, the judgment would be void for such defect.</p> <p>10. If any question of civil right, may be directly or indirectly brought before the Court, this constitutes it a Superior Court of general jurisdiction.</p> <p>11. The allegation of the circumstances which give jurisdiction may be traversed in the Courts of the United States.</p> <p>: 12. The jurisdiction of the Courts of the United States is not limited with respect to the matter of the civil action which shall be brought before them, when the parties, plaintiff and defendant, are citizens of different States, but only as to persons.</p> <p>13. A limitation in respect of locality, does not render a court inferior, if there be no other limitation.</p> <p>14. A decree may be made between co-defendants upon the proofs and pleadings in the cause, though the bill may be dismissed, with respect to the relief claimed by the plaintiff.</p> <p>15. E. G. had executed a note to J. H., on the 1st of January, 1818; the latter had also an account against the former, for which W. S. G. had given his note, signing himself “Executor of E. G.”</p> <p>16. In the account which was ordered to be taken in the Federal Court, between the Executor and legatees of E. G., these demands were brought forward. The Clerk reported in favor of the note, but against the account, on the ground that- it was extinguished by taking the note; that it became the personal debt of W. S. G., and as his estate was insufficient to satisfy a judgment obtained by complainants, there were no assets out of which it could be paid. The Clerk also reported, that the note and account were admitted by the Executor, in February, 1825. J. H. excepted to the Report, on the ground that his account was not allowed; but the exception was overruled, and the Report, in this respect, confirmed. The Judge in his decree stated that the exception was very clearly not tenable, and “ had been abandoned by the Solicitor.” Held, by this Court, that it was not competent for the representative of J. H. to renew the demand.</p> <p>17. J. H. purchased property at an Administrator’s sale, gave his bond for the amount, and, on the same day, executed a mortgage, conditioned to be void on the payment of the sum stated in his bond. The mortgage made no reference to the bond, but on the production of the latter, it was found to have been altered, so as to be conditioned for double the amount actually intended to be secured. Although the alteration in the bond rendered it void, yet this did not affect the mortgage, which, it was held, must be taken as evidence of the debt. [1]</p>

<p>1. Complainant P. entered into an agreement with the Charleston Hotel Company, 23d February, 1837, for the keeping of a Hotel then being erected, for the term of seven continuous years, to commence on the day that the building should be finished and furnished. Agreement recorded in the office of the Secretary of State, 29th May, 1838. On the completion and furnishing of the building, complainant entered into possession, but on the night succeeding the day of his doing so, the Hotel was destroyed by fire. The company resolved to re-build, and upon their suggestion the articles of agreement as originally entered into were modified by the parties, signed and sealed 7th July, 1838. Recorded in the office of the Secretary of State 30th March, 1839, and in that of the Register of Mesne Conveyance 12th May, 1840. In this agreement it was stipulated “that the said parties have agreed for the keeping of the Hotel, now in progress of construction, in Meeting street, by the said P., for the term of seven continuous years, to commence on the day the building shall be finished and furnished, which day shall be indorsed by the said parties on this memorandum, upon the following terms, to wit: That the said P., as landlord of the said Hotel, shall provide for the same, but shall contract no debt on account of the concern without first obtaining the sanction of the Board of Directors of the Company: that he shall procure and engage all waiters and servants, and the same discharge at will and pleasure; reside with his family in the Hotel, but free of all charge for board or rent; conduct the same in the manner contemplated by these presents, and have the sole and exclusive management thereof,bestowing upon it his entire attention; that the furniture shall be procured and purchased by the said Charleston Hotel Company, and shall he considered as part of the capital invested; but shall, at the expiration of the said term, be returned to them by the said P., or his personal representative, in the like order and condition in which they will be received by him, (ordinary wear and tear and unavoidable accidents excepted.) It is understood that the amount of forty-five thousand dollars shall be expended in the furniture of the house, and that of that amount, the sum of thirty thousand dollars shall have been purchased and placed in the Hotel, before the house shall be considered ready for occupation, and the balance shall he purchased within six months after commencement of operations, if required by the said P.</p> <p>2. “ That the said P. shall keep constantly in his employment a competent book-keeper, who shall keep the books of the said Hotel, according, as nearly as possible, to the most approved checks and usages adopted by well regulated mercantile establishments. Should the directors consider the said bookkeeper incompetent, or otherwise disapprove him, he shall, be discharged by the said P. on the aforesaid directors making known that wish to him ; and P. may discharge him at any time, and procure another book-keeper, subject to the same disapproval by the parties. The books of the establishment shall always be open for the examination of any member of the Board of Directors, and shall be balanced on the first day of each and every month, so as clearly to exhibit the gross receipts oí every month, the expenditure of the same, and the cash on hand.” The agreement then provides that the nett profits remaining on hand at the expiration of every year, and after deducting the expenses of the Hotel, should be divided in certain proportions, varying according to the amount of the annual income, but finally provides that if the nett annual income should fall short of ten thousand dollars, the said P. should nevertheless and at all times be entitled to the sum of four thousand dollars, as an annual compensation for his services; and if the nett annual profits amount to any intermediate sum between those specified in the agreement, the sum should be divided between the parties pro rata, according to the scale established. It was further agreed that in ascertaining the nett profits, no- account should be taken as charged against P., either for rent, or interest of capital invested in the building and furniture ; that the company should keep the same under insurance, and in case of the destruction of the same by fire, during the continuance of the term, the same should be re-built and furnished, and again placed under the care ofP., on the same terms and conditions as before mentioned, for the remainder of the term; the said P. to receive, during the re-building and furnishing thereof, the sum of four thousand dollar’s per annum.</p> <p>3. It was provided, that should the company fail to receive the amount of their policies of insurance, to any material extent, it should not be obligatory on them to re-build and re-furnish the Hotel — that the nett profits appearing on the books, might be drawn by the parties, on the first day of every month, in proportion to their respective interests, according to the scale established; and sums so drawn should be accounted for in the annual division of profits.</p> <p>4. It was also agreed, that P’s. contract should be “ purely personal, not transferable to any one whatsoever by the said P., nor in any manner liable for his debts.” It was provided, that if P. should die before the expiration of the second year, and before the commencement of the seventh year of the term, the personal representative of the said P. shall receive from the company the sum of five thousand dollars; and if the death of the said P. occur at any time during the seventh year of the term, the personal representative of the said P. shall receive from the company a sum of money to he named by three referees, of whom one shall be nominated by either party, and the third by the two so named. A system of strict accountability was to be maintained by P. from the servants or agents under him, such as found in the most approved managed Hotels in the United States. Complainant put in possession 24th October, 1839, the building being finished and furnished.</p> <p>5. For the’purpose of availing themselves of the benefit of the Acts of the Legislature, “ for re-building the City of Charleston,” the company applied to the Bank of the State of South Carolina for a loan, and on the 21st January, 1839, executed to the Bank a bond in the penalty of $150,000, conditioned for the re-payment of all loans the Bank might make to the company, and a mortgage of the lot on which the Hotel was to be built. Mortgage recorded in the office of the Register of Mesne Conveyance 22nd January, 1839. A loan of $75,000 was effected, but before making it certificates were produced from the various public offices and submitted to the Attorney General, who certified his satisfaction with the title. , There was no certificate, however, produced from the office of the Secretary of State.</p> <p>6. To procure furniture for the Hotel, the company borrowed the promissory notes of forty individuals, for $1000 each, and to indemnify them, on the 23d May, 1839, executed a penal bond to certain persons, trustees, in trust for the lenders of the notes, and for the same purpose a mortgage of the house and furniture. Upon the execution of the mortgage, at a general meeting of the lenders of the notes, complainant, Page, requested that it might be made subject to his contract, and was told by the President of the Company that he would do nothing to impair his contract.</p> <p>7. On the 27 th June, 1840, the trustees of the lenders of the notes filed their bill against the Hotel Company to foreclose their mortgage on the house and furniture, and obtained a decree, which, on the filing of complainant’s bill of July, 1840, was suspended until the further order of the Court.</p> <p>8. Complainant’s bill alleged a prior lien under his contract, and prayed process against the trustees, the President and directors of the Bank, the Hotel Company, and William Kelly, as also for an injunction against the President and Directors of the Bank, to restrain the enforcing of their mortgage, but this not being moved for, under the provisions of the Acts “ for re-building the City of Charleston,” they caused the Hotel to be advertised for sale, which, on the 2nd March, 1841, was purchased by the City Council, who, under the said Acts, had guarantied the loan. The trustees filed their separate answer 8th February, 1841, and the President and Directors of the Bank answered 15th February, 1841, in which all notice or information of complainant’s contract is denied and protection claimed.</p> <p>9. On the 26th April, 1841, complainant P. filed a supplemental bill to enjoin an execution in the nature of a fi fa, sued out by the trustees, under their decree for foreclosure j also to enjoin an action of trover brought by the trustees for the furniture against complainant, and an action of trespass to try title brought by the City Council, to recover possession of the Hotel. The bill prayed process against the trustees and the City Council The trustees answered on the 15th June, 1841, and on the same day the Hotel Company answered both 'the original and supplemental hills. The City Council answered the supplemental bill 15th June 1841, denying that complainant was entitled to any lien, either in law or equity against them. W. Kelly never filed any answer. The Hotel Company filed a bill against complainant, P.. for an account of his transactions in conducting the Hotel. 'The City Council also, for an account of the profits of the Hotel since they became the purchasers, and for possession of the same.</p> <p>10. The object of complainant was to enjoin the actions brought against !him, and to be 'quieted in the possession of the premises.</p> <p>11. This contract, as between complainant and the Hotel Company, held Sufficient to constitute a lease, but not having been recorded, under the provisions of the Act of 1817', (6 Stat. at Large, 67,) he was not entitled to enforce its performance against the City Council.</p> <p>12. To supply the want of registration, notice must be full, explicit, and clearly proved.</p> <p>13. Héld, that the Bank and the City Council were not affected with suf-ifieient notice -of'Complainant’s contract</p> <p>14. Lis pendens, which is notice to rebut an 'equity, will not supply the Want of of registration.</p> <p>15. The well known ground on which alone courts have thought themselves authorised to dispense with t'he words of a statute, as in the aaala-gous case of the Statute of Frauds, is that the Legislature is not to be supposed to have intended that a statute made for the prevention of fraud, .should itself be made the instrument of fraud.</p> <p>16. There being no ground of fraud in'the present case, 'the purchaser, having only purchased the reversion with the subsequent accruing rents, 'there could be mo ground to authorize a departure from the positive 'terms of the statute.</p> <p>17. Held, thát the City Council came within the principle of a purchaser from á lona fid'e purchaser without notice.</p> <p>18. Held, that the mortgagees -of the furniture were entitled to a delivery 'of it, but müst pay their 'own costs.</p> <p>20. Delivery of possession 'of the Hotel decreed, and also an aCfrount fob rents and profits.</p> <p>21. Where there is a decree for delivery of possession, an account'of</p> <p>mesne profits to the trpe o,wper follows as a, matter of course; though the possession may have been that of a tresspasser, Cruger ys, Daniel, May Term, 1843,</p> <p>22. In accounting to the City Coupcil after their title accrued, held that P. must account, not for the share of income and profits reserved by his contract with the Charleston Hotel Company, but on the principle of quart* turn valebat</p> <p>23. P’s, contract being void, as to the City Council, there was no ground on which the \ could sustain a bill for the deliyery of possession, nor any necessity for it; nor could they sustain a bill for mesne profits alone, The City Council, therefore, to pay the costs of' their hill, and P, the costs of their action at law,</p> <p>24. The mortgagees of the furniture not entitled to an account of hire, quantum valebat Against the Hotel Company, entitled tq interest on their debt.</p> <p>25. The mortgagees of the furniture, as against P,, held entitled to such proportion of the profits as the Company would have been entitled to for the furniture, as distinguished from the Hotel,</p> <p>26. The Hotel Company to pay the costs of their bill; and as between complainant and the company, costs to depend on the account to be taken, The qther costs of the bill to be paid by complainant, P,</p>

<p>L. P. Descoudres and Peter Crovat, Merchants in Charleston, being largely indebted to the plaintiffs, failed, and some years afterwards, plaintiffs arrested Descoudres in New York, where he happened to be found, and on the 14th May, 1822, recovered a judgment against him in the City Court of New York. Pending the action, Descou-dres was admitted to the benefit of the New York Act for the relief of insolvent debtors, and according to the New York law, judgment was rendered against his property only. Napier, Anderson and Descoudres, all lived in Charleston. And in 1828, Descoudres set up business there, under the name of L. P. Descoudres & Company, under which name the business was carried on until his death. The plaintiffs, on the 11th January, 1837, commenced an action against him on the judgment, to which he pleaded the Statute of Limitations. While this action was pending, Descoudres died on the 11th July, 1837, having made his will, and appointed Gidiere executor. Gidiere proved the will, and made an inventory, in which the stock-in-trade of L. P. Descoudres & Co. was returned as assets of his estate. Plaintiffs renewed the action against Gidiere to which he pleaded payment and plene administrcivit. On the 26th June, 1838, this bill was filed, and a motion made for a receiver. Defendant filed an affidavit stating the assets that he had received, and the sums that he had paid away in discharge of the debts of L. P. Descoudres. Whereupon his Honor, Chancellor Dunkin, ordered him to pay into Court the balance in his hands, $1,568 36; and a further amount of $4,664 78, charged as retained for his own debt, making in all, $6,233 14; and to place in the hands of the commissioner, the notes, (fee., belonging to the estate; and the commissioner was to proceed to collect them. The defendant not complying with the order, an attachment issued against him for a contempt. On the 29th January, 1839, he put in his answer; and averred that he was a partner of Descoudres; and claimed the right to apply the assets in his hands, being the proceeds of the stock-in-trade of L. P. Descoudres & Co., in payment of the debts of L. P. Descoudres <fe Co., as the surviving partner.</p> <p>June, 1839, the cause came on to be heard, on the bill, answer and evidence. His Honor, Chancellor Dunkin, pronounced against the alleged partnership, and ordered an account of the estate of Descoudres. Mr. Gray, the master, to whom the case was referred, made a report, and supplemental report, and among the debts reported, the sum of $10,063 99, with interest from 14th May, 1822, as due to the plaintiffs on the New York judgment. To which report, the defendant excepted, on the ground that the judgment was barred by the Statute of Limitations, and that the funds in respect of which the defendant was charged, were assets of L. P. Descoudres <fe Co. And being then in custody for disobedience of the order of June, 1838, presented a petition, praying that the attachment might be suspended till after the sitting of the Court of Appeals.</p> <p>In May, 1840, the cause came before Chancellor Johnson, who overruled the exceptions, but granted the petition, upon defendant’s giving security for his appearance, and gave him leave to amend his answer, by adding an allegation that the plaintiffs’s demand was barred by the Statute of Limitations.</p> <p>Defendant appealed from the decree of Chancellor Dun-kin, on the ground, that the weight of evidence was in favor of a partnership ; and that he was entitled to an issue for the trial of the question.</p> <p>And appealed also from Chancellor Johnson’s order confirming the report, on the ground, that the judgment of plaintiffs, being recovered in New York, is a simple contract debt in South Carolina ; and that after the lapse of fourteen years and upwards, without any acknowledgment of debt, or demand made, the same is barred by the statute of limitations.</p> <p>In March, 1841, the cause was heard in the Court of Appeals, when their Honors, the Chancellors, were pleased to order that the cause be referred back to be heard in the Circuit Court, for the purpose of receiving evidence to rebut the plea of the statute of limitations.</p> <p>At the sitting of the Court of Equity for Charleston, in January 1842, the cause came on to be heard before his Honor, Chancellor Johnson-, who made the following decree.</p> <p>Johnson, Ch. — One of the questions involved is, whether the statute of limitations is a bar to an action founded on a judgment obtained in a sister State. The cause went up to the Court of Appeals from a decree of the Circuit Court at June Term, 1839, and it was, by order of that Court, referred back to this Court, to let the complainant into proof to take the case out of the statute, in the event the Court should be of opinion that the statute was a bar. No further evidence has been offered, and I am called upon to decide whether the statute is or is not, a bar.</p> <p>The question has not been argued, and I wish it to be distinctly understood, that the decision which I shall give is merely pro forma, to enable the party to carry it up, that it may receive the solemn consideration of the highest tribunal, which is thought necessary on account of the importance and novelty of the question.</p> <p>The Supreme Court of the United States is understood to have decided that the statute is a bar, and the Court of Appeals in this State have, in several cases, decided that it is not a bar. I shall, therefore, in conformity with the decisions of our Court, declare, and it is hereby declared, that the statute is not a bar to such judgment.</p> <p>The defendant appealed from the order overruling the defence on the statute of limitations, and insisted that the plaintiffs’s action was barred, and that the bill should be dismissed.</p> <p>The question presented td the Court, is to be solved by reference to the 1st sec. 4 art. of the constitution of the United States; and the Act of Congress; May 26, 1790, Sec. 1st; and the Statute of South Carolina, called the Limitation Act, 2d Yol. Stat. at Large, p. 683.</p> <p>The defendant has pleaded the statute of limitations in bar of the complainant’s claim, which is founded on a judgment rendered in the Courts of New York, against the defendant’s intestate, L. P. Descoudres; and the question is made, whether under the Constitution and Act of Congress, and the Act of Limitation of this State, it is a valid plea. The complainants contend that the plea is not available, because their debt is a debt of record, and not a demand founded on a contract of lending, or without specialty.</p> <p>The plea of nil debet was decided not to be a good plea. The counsel made the point, that the record was valid only as evidence; and that if a record, mtl toil record could not be pleaded — but. a certified transcript is as valid in the same manner as in cases from our various circuits.</p> <p>The answer is ready. It is record evidence, and can only be averred against, by matter subsequent or fraud — or perhaps want of jurisdiction in the Court, as will be insisted hereafter.</p> <p>The constitution of the United States is the law which this Court is sworn to maintain, and no misconstruction of that law even by the supreme Court, can repeal the constitution. This Court, however, would consider the decision of the supreme Court as the most authentic construction of the constitution, and although the law gives jurisdiction to review State decisions by writ of error, yet each Court must follow its own deliberate construction — it is only where doubts exist that a decision concludes the doubt. Mills vs. Durea, 7 Cranch; 482.</p> <p>“ If in the State court, it has the faith and credit of evidence of the highest nature, viz: record evidence, it must have the same faith and credit in every other court. Congress, therefore, have declared the effect of the record, by declaring what faith and credit shall be given to it.” Story, Justice. “It remains only then to enquire in every case what is the effect of a judgment -in the State where it is rendered.” Id.</p> <p>“ It is beyond all doubt that the judgment of the Supreme court of New York was conclusive upon the parties in that State; it must, therefore, be conclusive here also.” Id. All this proves that both the letter and object of the Statute of Limitations exclude judgments, where there is no danger of the loss of vouchers. The decision is conclusive at the time the judgment is entered, and then the presumption of payment must arise from lapse of time, or subsequent circumstances. It is not the case of a debt never proved judicially, and dependent on evidence to be passed on by a jury.</p> <p>The case of Flournoy vs. Durke, 2Brev. 257, which ruled that nul tiel record was not a good plea, is not law. It was very crudely considered, if we may judge from the report, and this sentence of Judge Story is a death blow to it: “ If it be a record conclusive between the parties, it cannot be denied but by plea of nul tiel record, and when Congress gave the effect of a record to the judgment, it gave all the collateral consequences. There is no difficulty in the proof. It may be proved in the manner prescribed by the Act, and such proof is of as high a nature as an inspection by the court of its own record, or as an exemplification would be in any other court of the same State.” If this is law, the case of Flournoy vs. Durke is not; and if the decisions of the Supreme Court are good in one instance they are so in all.</p> <p>The objection that execution cannot issue, applies to every circuit court in the State. An execution only issues from the district where judgment is obtained ; and yet, debt on judgment, no one questions, may be brought in any other district, else no writ could be served on a defendant out of the district, to revive the judgment.</p> <p>The dissenting opinion of Judge Johnson itself admits the judgment, “ as conclusive evidence of the debt,” and it requires a keen casuist to distinguish between the difficulties suggested in the case supposed by him of “ a judgment for $150,000 founded on an attachment of a cask of wine.” Whether the judgment is a record to be tested by nul tiel record, or conclusive evidence nil debit, if it be in fact conclusive, the form of pleading is, in either case, immaterial. The objection is to the article of the Constitution itself; and the apprehension that States will pass absurd laws, is no ground for abolishing regulations to render good ones effectual.</p> <p>The case of Bissell vs. Briggs, 9 Mass. 452, gives the history of the clause in the Constitution. Even before the revolution, although independent colonies, the constant intercourse rendered it important that judgments in each should be conclusive in all, and the stat. 14 Geo. 3d, c. 3, so • enacted in relation to the “ neighboring colonies,” and it is not to be wondered' at that the fraternity and increased intercourse produced by the common struggles of the revolution, the association of the confederation, and finally the union, which made us one people, should have resulted in adopting a universal rule applicable to the whole republic.</p> <p>Judge Parsons, delivering the opinion of the Supreme Court of Massachusetts, expressly rules, p. 466, that the Constitution intended “ to place judgments recovered in any of the courts of the United States, on better grounds than judgments rendered in any other State or country; and that judgments of this last description only, cannot be now considered, as foreign judgments.”</p> <p>“ They cannot be contradicted, or the truth of them denied.” How then can a Statute of Limitations, explicitly applicable to actions “ of debt upon any lending or contract without specialty,” apply to such a debt 1</p> <p>The only question open, is the jurisdiction of the court. Id, 467.</p> <p>The opinion of Judge Sewall in this case is also an instance of great ingenuity and great bewilderment on this same subject. He is right in saying that “ if any thing is adjudicated in the judgment of courts of general jurisdiction, it is that the case decided by them and the parties to the cause, are within their jurisdiction.”</p> <p>Yet his reasoning and that of all who have attempted to pare down the positive enactments of the Constitution, is wholly inconclusive. They admit that the Constitution and the Act of Congress do make the judgment of a sister State “ conclusive evidence;” but they deny its effect as a judgment; and yet a judgment out of court is chiefly valuable as conclusive evidence of the debt. But the true question is to be met on the very words of the Constitution and the Act of Congress. It will not do for this State to have recourse to the spirit, that is, the construction of the Constitution, to get at a meaning either opposed to or enlarging or diminishing its plain letters. A licenciouf construetion may suit the interests of to-day, but it will rece upon us in an evil hour, when our own example will be quot against us. It is strange we do the framers of the Constitution such wrong as to suppose they did not mean just what they'said when they used plain language. The constitution enacts first, that “ full faith and credit shall be given in each State to the public Acts, records and judicial records of every other State.” There cannot be any thing short; the word is “full” as evidence, except the jurisdiction. These are interpolations. The word is full faith, not partial faith and credit. The next clause is as unequivocal. It says, “Congress may, by general laws, prescribe the manner in which such Acts, records and proceedings shall be proved, and- the effect thereof.” It must be wilful perversion alone that can deny the power thus to fix the mode of proof and the effect of such public Acts, records and judicial proceedings; and if Congress has prescribed by such laws that they shall have the same faith and credit as they have “ in the courts of the State from whence the said records are or shall be taken,” is it not downright interpolation to say, except always “ the jurisdiction of the court,” or “ except that “ such judgments may be pleaded to and resisted upon grounds not admissible in the courts of the State.” “ Such faith,” does not mean other faith — less faith. “ Nihil simile est idem.” Whatever then may be the evils pointed out as actual or possible^ the argument should be addressed to Congress, which has the power to declare the effect thereof, and may modify their general laws as they please. As long as the Act remains, if a judgment constitutes record evidence in the State whence it is taken from, such faith and credit also must it have in every other State. As long as the principle applies, “ transit in rem judicatam,” to a judgment in any State, and the parties are concluded, so long such faith and credit extends and accompanies the exemplifications in due form in every other State. The “ effect” is the re* suit of the faith and credit. If the faith and credit is not to be questioned, the effect is to conclude the parties. To deny that “ nul toil record” is a good plea, is to deny that it is a reply to the demand ; to say that this incontrovertible evidence of debt exists. It is impertinent for a defendant to offer proof where the case of the plaintiff is by law not to be controverted. Why then is not “ mil tiel record” a proper plea? And what hinders the issue being established by a transcript made by law equivalent with the original ? See 6 Pickering’s Rep. p. 237.</p> <p>A judgment of a sister State then, is no longer a foreign judgment ; much less is it a debt “ upon lending or contract without specialty.” A judgment is higher than specialty, and therefore includes it. “ Omne majus in se conLinet minus” and no one pretends that the Statute of Limitations can be pleaded to a specialty, therefore it cannot to debt on judgment from a sister State.</p> <p>The case of Hall and others vs. Williams and others, 6 Pickering’s Mass. Rep., is worth an attentive perusal, for both its merits and its faults. After a most logical argument, leading directly to the opposite conclusion, the court decided that if by the record it does not appear that the defendant was served with process, “ he may be allowed to avoid the effect of the judgment here, by showing that he was not within the jurisdiction of the court which rendered it, for it is manifestly against first principles that a man should be condemned either civilly or criminally without an opportunity to be heard in his defence.” Now, every court owes it to comity, to presume that it has not violated first principles by so wanton an act as condemning a man unheard. The judgment necessarily presumes, whether it appear by the record or not, that the parties were properly before it, and if the record be indeed defective in that particular, the court where it is entered may be called on to vacate it.</p> <p>But whatever may be the strict reasoning, it is very certain that even the opinion of the Supreme Court will be rejected, or construed away, when it establishes doctrines, however strictly true, which affect the rights and legislation of the States ; and the remarks of the Chief Justice of Massachusetts, in 6th Pickering, p. 243 and 4, go the whole length to shew that even the decrees of the supreme Court are imperative against State doctrine j and in fact the decision of Judge Parsons, in JBissell vs. Briggs, has superceded that of Judge Story in Mills vs. Durea% and the jurisdiction of a State court, even a court of general jurisdiction, is a subject of enquiry ip a suit based on a judgment of a sister State; but where the parties were before the court, the judgment is conclusive.</p> <p>But all this shews that a State court may think for itself, even although the Supreme court have decided the question; and so; the case of McElmoyle & Cohen, 13 Peters, may not be conclu/ sive, except of that case. Let us then consider the case of iF Elmoyle vs. Cohen, in 13 Peters, 312.</p> <p>McElmoyle obtained a judgment against Levy Florence, in Charleston, on a promissory note. Florence moved to Georgia, died, and Cohen was his administrator. He was sued on the judgment in Georgia, and pleaded the Georgia statute of limitations and plene administravit, thus raising two questions ; first, whether the action was barred by that statute; second, whether the judgment was to rank in the distribution of assetts as a judgment, or a simple contract debt. Both questions are to be resolved by reference to the laws of Georgia. The statute of limitations of Georgia is'in these words: “ That all actions of debt on judgments obtained in courts other than the courts of this State, must be brought within five years after the judgment obtained.” But the statute of South Carolina, on that subject, is in these words: “ All actions of debt, grounded upon any lending or contract without specialty.” The whole case turns on this difference. The question whether a judgment of a sister State is a contract — a contract upon lending or without specialty, is thus presented. When it is considered that at common law there is no statute of Limitations ; that the Act is in derogation of the common law, and so must be strictly construed, it is decisive of the point in issue. The case must be brought within the letter or spirit of the Act, or the statute does not apply. It is not within its letter, for judgments are not contracts or specialties, but debts of record. It is not within its spirit. The statute of Limitations is a statute of repose, to prevent men’s estates being taken from them upon claims, when the evidence to rebut them may be lost by the casualties of time; when the counter proof is supposed to be lost. It is- a-wise and beneficent statute, and in proportion as the claiu]i is stale, the defence is both legal and moral. A man who defers a suit for ten or twenty years, may recover more than is due, or what has been long since paid, and ought not to su-percede intervening creditors, whose demands are recent. In almost every instance in which indebtedness is sought to be for the first time established, after a lapse of years, the defendant is justified upon every principle of morals to resist its being reduced to judgment. If any thing is due at all, the plaintiff ought to rely upon the sense of justice of the defendant, and not on the coercive power’s of the law. “'Vigitantibus non dormientibus sub-veniunt leges.” But this reasoning does not apply where the parties have had a full opportunity for trial on the merits, and after full defence the claim is established by the judgment of an impartial tribunal, and becomes matter of record. It is then res judicata.</p> <p>The vouchers are not liable to loss ; the amount and the indebtedness are fairly and fully established; and it is only by subsequent payment, or other cause discharging the judgment, that it can be annulled. It is true, that after twenty years, the common law presumes it paid, although that presumption may be rebutted; but until rebutted, the maxim applies, “ stat pre-sumptio donee probetur in contrarium.”</p> <p>Thus then a judgment does not come within the letter or the spirit of our statute of distributions. But it is said that ajudgment of another State is not a record, but only a simple contract. There is much false reasoning on this subject. It is said it ranks only as a simple contract in the distribution of an estate. This can only' be true where the original cause of action was a simple contract, for it will not be contended that a bond, because it is reduced to judgment in a sister State, will only rank as a simple contract. It cannot lose dignity by being carried into judgment. The true rule then must be, that judgments, in the Act regulating the distribution of estates, means judgments which have a binding efficacy, which constitute a lien within the State. The lien of a judgment only attaches to estates within the State where it is rendered. This reconciles the decision on that point with the provision of the constitution, and still leaves the judgments of the other States records — debts of record, fixed by record proof, and not “ contracts without specialty.” But in Georgia the lex fori has limited the recovery on foreign judgments to five years, and the only point decided in McElmoyle and Cohen, is that that law does not violate the provision of the constitution which gives full faith and credit to judgments of a sister State. Every nation may establish its own laws of her forum, which touch only the remedy and leave the right unaffected; and had Cohen been in South Carolina, where no such law of the tribunal exists, there could be no doubt of his liability. That this law restricting the remedy does in practice render the right nugatory and fruitless, is evident, and may be carried to an extent to substantially impair the obligations of contracts, is too true. A right without a remedy, is a delusion, but a requisition that rights should be enforced in a reasonable time, is perfectly consistent with justice. If the law of Georgia had prohibited altogether suits upon judgments in a sister State, a different question would arise, one to be resolved by reference to the prohibition to pass laws impairing the obligation of contracts, and giving to such judgments the same effect as they have in the State where they are rendered.</p> <p>It is decided thabthe Statute of Limitations of the lex loci con-tractus is not applicable, but only that of the place where suit is brought, so it is no part of the contract, but a restriction of the remedy. The decision, therefore, in 13 Peters, goes no further than to maintain the constitutionality of this lex fori of Georgia, and is no authority in this case ; and¿ it cannot be disguised, that the case goes to the extremest verge of State rights, in thus cutting off or curtailing the remedy upon a record, protected by the constitution, and especially as the very words of the constitution confined to Congress the power to1 declare “the effect” of such judgments in the several States, and they have declared that they shall have such effect as they would have in the States where they are rendered. What State can say that effect shall last five years 1 Why not another fix the limit to one year or one month, so as practically to defeat the constitution 1 and that too in a suit brought in the United States court by a citizen of another State. The argument is all against the Georgia law. How far policy may have bent the court to submit to this partial abrogation of the constitution, I will not say, but surely this court will not be seduced from its allegiance, and go further, and pronounce a judgment, thus protected, a mere contract, a chose in action; evidence of debt, subject to question; in fact, a simple contract. A judgment is not a contract. See 3 Black. Com. 295, 399. It is a more solemn matter.</p> <p>In our own courts there has been much contrariety of opinion. In Flournoy vs. Durke, 2 Brev. Rep. 257, it was ruled that if nul tiel record be pleaded to debt on the judgment from another State, the transcript of the record, duly certified, is conclusive; and in Brown's administrators vs. Winn, 2 Brev. Rep. 297, exemplifications from one district are as good as the original in the district where the judgment is recorded; and in Haimahan vs. Hathaway and Smith, 1st Brev. Rep. Ill, nul tiel record was held bad on demurrer. But the conclusive decision is found in Morton, & Co. vs. Naylor, 1st Hill’s Rep. 439. The decision is to the very point now submitted. That the Statute of Limitations of South Carolina does not in terms apply to a judgment from another State, and cannot be enlarged beyond its terms. The argument of the court is full and conclusive, and supports and recognizes the doctrine as maintained in Mills and Durea, Bis-sell and Brigs, 9 Mas. Rep. 463; Hall and Williams, 6 Pickering’s Rep. 232, 1st Mass. Rep. 405; Sewall’s opinion, and 7 Cranch, 4S5; 3d Wendall’s N. Y. Rep. 267; and that nul tiel record is a good plea, is established by necessary implication, see 13 Peters, p. 325. All these authorities place such judgments on a higher footing than mere foreign judgments, which are received only as prima facie evidence, while State judgments are conclusive, especially if the record shows the parties to have been within the jurisdiction. I have thus proved that by the constitution and the Act of Congress, and by the concurring decisions of Story, Parsons, Parker, and our own court, a judgment in a sister State is a record; that it is conclusive evidence^ — record evidence, and that it is not included in the Statute of Limitations of this State, and so cannot be pleaded to the debt of Mr. Napier, and that the complainant is entitled to a decree dismissing the appeal, and such decretal order as may necessary to enable the complainant to obtain payment of his debt as established by the circuit decree.</p>

Before Johnston, Ch. Barnwell, May Term, 1842. From the decree, the facts of the case will he fully understood. Held: upon the plainest principles of justice, to be equivalent to recording. I think I collected most of the authorities, some years ago, in a decree pronounced by me in this court. For that reason, as well as because I presume this doctrine is indisputable, I shall abstain from an examination of these authorities here.

Before Dunkin, Ch. at Lancaster, July Term,, 1842, who made the following-decree : Dunkin, Ch. The defendant and Thomas Bird, deceased, were joint owners of fifteen acres of land, comprising nine small Islands in or adjoining the Catawba river, and known as the Hill Island Fishery. Thos. Bird died in 1828, intestate, leaving the complainants, his widow and daughter, his heirs at law.

<p>1. J. P. K. made a paper writing as follows: “ Know all men by these presents, that I, J. P, K. for the love and affection which I do bear to J. K. W., son of Catharine Wedeman, formerly Catharine Welch, after my death, to him and his bodily heirs, four negroes, with their future increase,” (naming them,) “ but in case he should die without bodily heirs, the whole of the said negroes, with their increase, to return to my estate. Given under my hand and seal,” &c.</p> <p>2. It was held, that if the words “ I give” be supplied “ after my death,” in this instrument, it could only operate as a testamentary paper; and not being legally executed for this purpose, was void.</p>

<p>1. Complainants were the grand-children of R. B., and through their mother C. B. claimed four twenty-sevenths of a tract of land on which was situated a gold mine, the defendants being in possession. They had purchased the land from J. B. who acted under an authority from the heirs of R. B. The mother of complainants was feme covert and never conveyed her title. The claim of complainants was sustained, and they were declared entitled to an account of the rents and profits.</p> <p>2. In raising the account the commissioner adopted the principle of allowing to the proprietor, in mining operations, one fourth of the gold found, clear of all charge of expenses in conducting the same, which was sustained by the Court.</p> <p>3. Held, that the defendants could not he regarded as the trustees of the complainants; and that they were entitled to the rents and profits which, as proprietors of the land, they would have received from any other person.</p> <p>4. The defendants, while in the possession of the premises, incurred expenses in defending their title at law against a person claiming by title paramount. Held., that the complainants were not bound to contribute in defraying the expenses of the suit.</p>

Before Johnson, Ch. Sumter, May Term, 1842. Held: that the third might, notwithstanding, recover against the defendant, to the extent of his interest, and that the damages might be so apportioned.

Before Johnston, Ch. at Cheraio, February Term, 1843. Bill for partition, &c. The bill in this case states that Alexander Lamb, the intestate, departed this life, leaving his widow, the complainant, and the following children his heirs at law, viz: John J. Lamb, Alexander T. Lamb, David Wm. Lamb, Maria Margaret Lamb, Samuel Sparks Lamb, Julia Elizabeth Lamb, Carney W. Lamb, Joseph A. Lamb, and Mary Jane Lide.

Before Dunkin, Ch. at Chester, June Term, 1842. By a decretal order made in the case of James Barber and others vs. Rebecca Barber and others, at July Term, 1835, for partition, it was ordered, that the slaves Ibby and Jane be vested in the complainant, (who was then married to Wm.

Before Johnson, Ch., at Marlboro1, February Term, 1843. This was a petition for the removal of Gospero Sweet, as guardian of Asbury Sweet, on three grounds, to wit: 1. That the guardian had appropriated the funds of his ward to his own use. 2. That he had not paid the board of his ward. 3. That he had not paid for the tuition of his ward.

Before Harper, Ch., at Sumter, June Term, 1843, from •whose circuit decree the facts will fully appear.

Before Johnson, Ch., at JVeioberry, June Term, 1842, from whose circuit decree the facts of the case will be fully understood. Held: that any general disposition of his estate would raise the implication. The direction in this will, that his “remaining property” should be kept together until his oldest child should arrive of age, and then be divided, is the principal circumstance relied on to shew that the testator intended to exclude the complainant from dower.

Before Johnson, Ch., at Cheraio. Bill for account, partition and relief. The bill in this case was filed by the executor of Wm. Held: on the authority of Raulins vs* Goldfray, 2 Yes. 440, and other cases cited, that provision for the support of children, made by a will, was only in aid of their own means, and that these, no matter from what sources they were derived, must be exhausted before the fund can be touched, and that quantum of support must be measured by…

Before Johnson, Ch. at Union, Jane Term, 1843. Johnson, Ch. The late Jethro L. Reid appointed the complainant and Dr. L. B. Askew, the executors of his last will and testament, both of whom qualified. He died in 18--•, leaving a widow, Jemima, (who has since intermarried with Jesse Maybin) and three children; the defendant, Nancy, who has since intermarried with her co-defendant; Teresa, who has since intermarried with Maybin, and Jethro Reid.

Before Johnson, Ch.,at Edgefield, June Term, 1841. The facts of this case will be fully understood from the decree of the presiding Chancellor. Johnson, Ch. John Moore died in September, 1834, intestate, being at the time seized and possessed of a considerable real and personal estate. The defendant, Ann, her brother, Henry Moore, and her sister, Eleanor Moore, his nieces and nephew, were the next of kin, and heirs, and they were all aliens.

Before Johnson, Ch. at Chester, June Term, 1843. Bill for account and relief. Terza Street administered upon the estate of her first husband, Eleazer Lee, deceased, and Rebecca Graham, (now the wife of Dempsey Graham,)'and Roland Cornelius, were her sureties to the administration bond. Complainants are the children of Eleazer Lee. The first bill was filed against Terza Street, who then resided beyond the limits of this State, and a decree made thereon.

Before his Honor Chancellor Johnson, at Laurens, Jane Term, 1841. Bill for account, &c., The decree of his Honor, the Chancellor, who heard this case on the circuit, presents all the material facts so fully as to render any further report unnecessary. It is as follows : Johnson Ch. The Rev. Robert Buchan, of Stafford County, Virginia, died therein the latter part of the year 1803.

This was a bill for partition and relief. The bill sets forth, that John Rainsford was the grandfather of complainant.

Before Donkin, Ch., at Charleston, July Term, 1843. This was a rule upon the Master in Equity. The facts of the case will be fully apparent from the order passed, on motion of complainant’s solicitors, the rule, and return thereto..

Before Dunkin, Ch., at Colleton, February Term, 1843, Dunkin, Ch. By the last will and testament of Peter Bennett, late of Wadmalaw Island,… Held: that the gift of the daughters was absolute, though defeasible in the event of their dying during the life-time of the testator’s widow. There are other points of striking resemblance between the case of Galland vs. Leonard, and that before the court, besides the particular principle which it has been cited to illustrate.

Johnson, Ch. In 1797, the complainant intermarried with his present wife, Charlotte, both being aliens, and subjects of the king of France. They separated by agreement, and she returned to France, where she has continued to reside ever since, and has never been naturalized, or become a denizen of this State. He remained and has resided here ever since, and in January, 1826, he was admit-ed as a denizen citizen, according to the laws of this State.

Johnson, Ch. The bill in this case seeks a foreclosure of mortgage of Alexander Black, one of the defendants, to Eliza Osborn, one of the complainants, dated 20th May, 1829, and duly recorded on the 8th June next following, and states that the said Alexander Black had executed another mortgage of the same premises, to Timothy Street, deceased, as Executor of Wm.

The complainants filed this bill on the 1st March, 1842, for an injunction against the Bank Charleston, who had taken in execution certain negroes of Isaac Edward Holmes and Peter Gourdin, and for an account of the amount due on the various liens claimed by the complainants, the Bank of Charleston and the other parties.

Bill for Foreclosure of Mortgage. The bill stated, that George Kinloch and Thomas W. Mordecai executed to James Fife their joint and several bond, bearing date 23d April, 1836, in the penal sum of… Held: as tenants in common, was offered, by their joint consent, for sale, at public auction; at which sale, T. W. Mordecai became the purchaser of the lot and store described in the bill, assumed upon himself the payment of complainant’s bond, and took possession of the premises.

This case came up on an appeal from an order made by his Hon. Chancellor Dunkin.

Robert Wotlierspoon, James Rose, William A. Carson, Henry Gourdin, and Richard W. Cogdell, were managing committee of certain persons who had subscribed to the building of a theatre.

John Porter, Jr., by his will, dated 23d October, 1828, bequeathed all his estate to his wife, Esther Ann Porter-, and appointed her and his father, John Porter, and his friends, John W. Cheeseborough, Legrand G. Walker, and Anthony W. Dozier, his executors, and died in a few days afterwards, leaving his widow and five children, Charlotte Anzy, John, Eliza Cheeseborough, Hannah Esther, and Anthony Toomer, and indebted beyond the amount of his estate.

The reader is referred to Gheves’s Eq. Rep. page 99, and to page 48 of this volume, for the decisions of the Appeal Court heretofore made in this case, as well as for a statement of the facts… Held: that “ there w7as a part selected and appropriated for the debts“ especially,” says he, “when we consider the nature of the property, which is situated in the West Indies, and is liable to all his debts, independent of any will of his.

Before Jqiwsoií, Chancellor, who made the following decree; Johnson, Ch. On the 8th of April, 184Q, the Savan^ jxah and Augusta Steam Boat Company — a Georgia corporation — being indebted, in various sums, to the five following corporations of the same State, to wit, the Central Rail R'oad and Banking Company of Georgia; the Insurance Ba$k of Columbus; the Savannah Insurance and.

George Leake executed his will 23d Oct. 1819, and shortly thereafter departed this life; among other things, the said testator provided that the sura of $1500 should be raised by a sale of a portion… Held: that administration in such a case is unnecessary. With regard to administration to the wife, I am of a different opinion.

Befare Johnson, Ch. at Spartanburg, June, 1843, from whose decree the case will be fully understood. Johnson, Ch. The late Henry Foster, sen’r., departed this life in 1821.

Before, O’Neall, J., Colleton, Spring Term, 1842. This cause, though coming up from the Court of Law, it is deemed more appropriate to insert here.

The case will he fully understood from the following copy of the marriage settlement in question, and his Hon- or’s circuit decree, delivered at jEdgefield, June Term, 1842. A. T. Hodges, 1 J. S. Ioor, > Marriage Settlement. Wm. W. Íoor. ) The State op South CaroliNa, — Edgefield district.