Volume 18 — South Carolina Reports

Before Aldrich, J., Edgefield, March, 1881. Action by J. G. Tompkins, Lucy G, Tompkins and B. A. Tompkins, a minor, against S. S. Tompkins and J. W. Tompkins, as executors of the last will of James Tompkins, deceased, James L. Tompkins and F. A. Tompkins, commenced April 23d, 1877, for settlement of the estate of James Tompkins and for an accounting by the executors.

Before Mackey, J., Charleston, April, 1881. This was an action by Holmes & Durham against the First National Bank of Wilmington, in the State of North Carolina, commenced in October, 1879. The opinion states the case. The order of the Circuit judge was as follows: National banking associations are the creatures of Congress, and are fiscal agents of the government. Bank of Bethel v. Pahquioque Bank, 14 Wall. 383.

Before. Fraser, J., Richland, December, 1881. Petition by E. B. Benson & Co. in re Gibbes v. Greenville and Columbia Railroad Company, and the State, ex relatione the Attorney-General, v. same. The petition was based upon a contract made by letter, and which is fully stated in the opinion.

Before Hudson, J., Sjiartanburg, April, 1881. These were two actions commenced by James T. Pearson on March 7th, 1878; one against Elizabeth Carlton, Anna Wad-dill and others, distributees of James Carlton, deceased, and tbe other against J. M. Fowler, Sanford Brockman and others, the same defendants as in the other case, except Elizabeth Carlton. The opinion states the facts of the case.

Before Fbaseb, J., Laurens, July, 1881. Action for partition of a tract of land of which J. Newton Bolling died seized. Elizabeth Wilson and others, children of James and Lucinda Johnson, were plaintiffs, and the defendants were, at first, Tandy M. Babb, administrator de bonis non of J. N. Bolling, and Amanda Bolling, widow; and after her deathr Tandy Babb, as heir-at-law of the widow of J. N. Bolling, and the widow and children of Melmoth Babb.

<p>Before Pressley, J., Chester, November, 1881.</p> <p>Action by John O. Hardin against William C. Howze, S. C. Howze et al., commenced August 24th, 1880. The opinion states the case.</p>

<p>Before Wallace, J., Richland, March, 1882.</p> <p>The opinion states the case.</p>

Before Fraser, J., Bichland, December, 1881. At the hearing of this appeal, Hons. A. P. Aldrich and J. H. Hudson, Circuit judges, sat in the places of the Chief Justice and Mr. Justice McGowan, who had once been of counsel in the •causes. This appeal is a sequel to the case to be found reported in 15 S. G., at page 518. The opinion fully states the case.

Before Cothran, J., Edgefield, October, 1881. This was an action by John M. Bell, as executor of George Bell, deceased, against Angeline M. Towell> Elizabeth B. Landrum, Henrietta M. Timmerman and Emily G. Shaw, commenced in September, 1881, for a construction of testator’s will, which is copied in full in the opinion of this court. The Circuit decree was as follows: This action is submitted on the complaint and answer of defendants.

<p>Before Aldrich, J., Pickens, January, 1882. •</p> <p>Indictment against James Turner for retailing'without license. The opinion states the case.</p>

Before Thomson, J., Charleston, June, 1880. This was an action by William Sharp' against Henry W. Kinsman, commenced January 14th, 1880. The facts of the •case are stated in the opinion. The presiding judge sustained •a demurrer to the counter-claim, overruled a motion for non-suit, and .charged the jury as follows: , - The plaintiff says that the defendant, Kinsman, on the 5th, ■6th and 7th January, 1880, forcibly broke into and entered lands of the plaintiff.

Before Wallace, J., Darlington, September, 1881. Action by the plaintiffs against Joseph J. Ling, Isaiah L. Wright, James M. Hunter and Ira M. Harrell, commenced August 20th, 1878. The opinion states the case. cited the authorities referred to in the opinion, and also the following: 2 De G. & J. 609; 3 Ilurlst. & O. 437; 59 Ga. 685; 18 Wall. 662; 64 N. Y. 385;. 1 Pet. 61; 1 Story Eq., § 190.

<p>1. In action by a former lunatic to recover a lot of land sold during his lunacy under proceedings to which he was no party, instituted by his committee, the defendant may introduce in evidence the record of' the probate court adjudging the plaintiff to be a lünatic and appointing a committee of his person and estate.</p> <p>2. It is the well settled policy of the law to support judicial sales in all cases where the court has jurisdiction.</p> <p>3. An action at law for the recovery of the property of a lunatic or damages for its detention, must be brought in the name of the lunatic by his committee, but where equitable relief is sought in the Court of Chancery, it seems that the committee may sue alone and Without using the name of the lunatic as a party plaintiffj and that the judgment will be as binding upon the lunatic’s estate as if he were personally present.'</p> <p>4. And where in such action the property of the lunatic has been sold for the purpose of paying his debts, the proceeds of sale have been so applied, and the purchaser has bona fide erected costly improvements, the purchaser is subrogated to the rights of the creditors to whom the payment was made and may retain possession until re-imbursed.</p>

Before Kershaw, J., Newberry, November, 1880. Action by David H. Wheeler, individually, and as survivor of Wheeler & Hiller, against the county of Newberry, commenced in September, 1879. The opinion states the case.

<p>Before Aldrich, J., Abbeville, February, 1882.</p> <p>The opinion states the case.</p>

Before Kershaw, J., Abbeville, February, 1881. Hon. Thomas B. Fraser, judge of the Third Circuit, sat in the place of Mr. Justice McGowan, who had been of counsel in ■the cause. It was an action by Jacob Miller against Wiley Flail, commenced in March, 1879, for a specific performance of the bond recited in the opinion of this court, or for a sale of the land.

Before Aldkich, J., Anderson, February, 1882. This was a prosecution against Sherman Smith and four other defendants. The opinion fully states the case.

Before Cothran, J., Bichland, November, 1881. Action by Hirshkind & Co. against Morris Israel, Charles Elias and Jesse E. Dent, sheriff, commenced February 14th, 1879. Afterwards, on motion, certain attaching creditors of Charles Elias were made parties defendant. The case is fully .stated in the Circuit decree.

Before Aldrich, J., Anderson, March, 1882. The indictment, verdict, sentence, and notice and grounds of appeal, constitute the brief in this case. They are sufficiently stated in the opinion. cited 1 Arch. Or. P. & P. 806, 61, 62, 65; Whart. Mom,. 35, 157; 2 Rail. 75; 1 Male P. G. 437-9; 40 Eng. L. & Eq. Rep. 357; 3 Gilman 381; 47 Ml. 323; 10 Ohio St. 460; 2 Rish. Or. Proc. §§ 3, 4; 33 Gratt. 834; 2 Green Crim.

Before Kershaw, J., Abbeville, February, 1881. Action by Amanda B. Carter agáinst J. F. C. DuPre, commenced December 29th, 1879.

Before Hudson, J., Aiken, March, 1882. This was an action by William S. Howard, Sr., against J. R. Henderson and J. F. Henderson, commenced in September, 1881, to recover the rents of the tract of land described in the deed, which is stated in the opinion of this court. J. R. Henderson died pending action, and his administrator answered, raising no issue of title.

Before Hudson, J., Aiken, February, 1882. This was an action in the Court of Probate to require Uriel X. Gunter, sole qualified executor of the will of Daniel B. Gunter, to carry out its provisions. The will was as follows : In the name of God, amen!

Before Pressley, J., Charleston, June, 1880. This was an action by the executors and devisees of Edmund Hyatt, deceased, of the State of New York, against William McBurney, William Hasseltine, Alfred L. Gillespie and T. R. McGahan, members of the late firm of Hyatt, McBurney & Co., and Caroline Carson. The purpose of the action and the facts generally are stated in the opinion.

Before Cothran, J., Bichland, November, 1881. 'This was an action by W. W. Chapman against T. J. Lipscomb, superintendent of the South Carolina penitentiary, commenced in August, 1879. The nature of the action and the pleadings are stated in the opinion of this court.

Before Kershaw, J., Charleston, July, 1881. This action was commenced April 28th, 1880, for damages for •a levy on defendant’s property under an execution issued by the -city court of Charleston, in February, 1879.

<p>Before Hudson, J., Newberry, February, 1881.</p> <p>The opinion states the case.</p>

<p>Before Kershaw, J., Beaufort, November, 1881.</p> <p>This is an appeal from the following order of the Circuit judge. Other facts are stated in the opinion.</p> <p>The claim of the relator is founded upon services rendered by assistant assessors in making the assessment for taxes in-the year 1876, for which the relator holds the checks of the auditor on the treasurer of Beaufort county, as provided for in section 84 of the act of 1874, p. 762.</p> <p>By that act, $1,000 were set apart to pay the expenses of the assessment, which was required to be paid out of the first money ■collected for the year for which such assessment was made. In this instance the funds collected were paid out without providing for these claims. Here, lately, other funds have come into the hands of the treasurer on account of the taxes of that fiscal year. And the object of this proceeding is to procure a writ of mandamus to compel the application of this fund to the claims of the relator, which were not paid as they should have been out of the money formerly collected. If they had been so paid there would have been a different set of claims displaced, which would have remained unpaid, but which have been satisfied out of money applicable first to the claims of the relator. There therefore does not appear any reason to doubt the equity of the present claims, and they ought to be paid unless there be objections of a legal character preventing the relief demanded.</p> <p>If the funds now in the hands of the treasurer had been paid out at the time when the other taxes for that year were collected and before any payments had been made from the entire fund so collected, there can be no question that the fund would have been charged with the payment of claims like this. And it would have made no difference whether they were paid out of the money first collected or the last. In other words, there was no specific appropriation of the identical $1,000 first collected, so as to give the assessor the right to those specific dollars, and-only to those, so that when these had been improperly paid out to the other parties the assessor had no right to be paid out of other funds left in the treasury. I do not think that the lateness of the time at which this fund has come into the treasury can affect the rights of the relator. The taxes collected oh account of that year, (1876,) whenever received, constitutes a fund applicable to those claims, which, under the act, constitute a class of claims preferred to the extent of $1,000, payable out of that fund.</p> <p>This special preference was necessary in order to procure an assessment to be made, without which there could have been no taxes collected. They are necessary expenses of administration, without which, the laws would be inoperative upon which the maintenance of the government depends. I do not think, therefore, that they come under the general class of liabilities of the county, to be thrown into the category of past indebtedness. The legislature very distinctly indicated this by the peculiar provisions of the act of 1874, placing them upon an entirely different and peculiar footing. I have given consideration to the various objections urged at the bar and in the return of the respondent, and find nothing to justify a refusal of the relief desired by the relator. The act providing for a division of the counties of Beaufort and Hampton, and a division of the debt between them cannot affect this question, nor can any confusion result im consequence, since reference was required to be had in such division to the unpaid taxes due Beaufort county.</p> <p>It is ordered and adjudged that a writ of mandamus do issue to command the treasurer of Beaufort county to pay the claims of the relator as demanded, but without costs.</p>

Before Kershaw, J., Charleston, July, 1881. This was an action by Vm. P. Russell and Nathan Frye, copartners, under the name and style of the Charleston Rice Milling Co. against Charles S. Bennett and others, copartners, doing business under the firm name of C. S. Bepnett & Co. The ■ summons bears date January 10th, 1881. The opinion makes-. a full statement of the case.

Before Kershaw, J., Aiken, September, 1881. This was an action by Marina S. Gunter against the Granite-ville Manufacturing Company, commenced October 4th, 1879, for $10,000 damages for the loss of an eye, caused by a shuttle flying from its place while a loom was being repaired, in work hours, by one Harling, the loom- repairer. The case was tried in September, 1880, and a verdict was rendered for plaintiff for $2,000.

<p>Before Aldrich, J., Aiken, April, 1880.</p> <p>This was an action by Thomas J. Lasure against the Granite-ville Manufacturing Company, commenced November 21st, 1877. The complaint demanded $10,000 damages for injuries sustained in a fall; and the proof was that plaintiff’s arm was broken, wrist dislocated, hip injured and slightly dislocated, and his face cut from forehead to chin.</p> <p>The charge of the judge to the jury was as follows:</p> <p>You will bear in mind that this case is not to be determined by the rule which applies to common carriers. When a railroad or steamboat company, or a stage coach, or any other conveyance for public travel, undertakes to carry passengers for hire, their contract is they will carry them safely, and they are liable in damages for any injury that may be received, except the same may be from the act of God or the public enemy. Hence, if a corporation undertakes to carry you or your goods from one place to another, for hire, it is liable for any injury to the person or loss of goods, whether it be from unavoidable accident or carelessness. But such is not the rule, as applied to employes in a factory or a railroad, or in any other industrial occupation. In such case, when a man engages to work for wages, he takes a certain amount of risks himself, and if an injury is received in the business in which he engages, the employer, be it railroad, factory or steamboat company, is not liable in damages unless it be made to appear clearly to you that the injury so received is the result of carelessness or negligence on the part of the employer.</p> <p>There can be no doubt that this plaintiff has been injured, and seriously injured. His face was cut open, his arm broken, and his hip injured. He has suffered great bodily pain and anxiety; been confined to his bed for weeks, prevented from the labor by which he made a sustenance, and a burden to his family and friends. Nay, more, he is still suffering from the injuries received at the time of the accident. If all this be the consequence of negligence or wanton carelessness on the part of the defendant, the Graniteville Company, they are liable in damages, and should be made to pay the penalty for their neglect. On the other hand, however, if this be one of the risks which every operative takes when he engages in the business of a factory, however great may be his injury, however painful his suffering, however permanent his hurt, the company is not liable, because it is one of the accidents which may or may not occur, and of which he takes the risk for hire.</p> <p>So that the first question presented to you is: Was the defendant guilty of carelessness or negligence which occasioned the injury, the pain, the anxiety and the loss of time of which the plaintiff complains ? The law makes you the sole judges of that question. I cannot assist you. In considering it, you will ask: Was this structure safe, or was it carelessly constructed? Was it kept in good repairs by ordinary diligence ? Did the defendant show that solicitude and concern for the safety of the persons in their employment which men of ordinary prudence exhibit in the conduct of their affairs? Was it one of those accidents that might have happened under the exercise of ordinary prudence, or was it the result of carelessness and neglect ? If the former, the company is not liable, because that was one of the risks the plaintiff took when he contracted to receive wages for his labors. If the latter, the company is liable, because the undertaking of the plaintiff was to work for wages, protected by the ordinary diligence which prudent men exercise in the conduct of their affairs. These are questions for you, and as you resolve them, so will be your verdict.</p> <p>Another question for your serious consideration is: Did the plaintiff contribute to this accident by his own negligence, or by his violation of the rules of the company ? And in this connection you will consider what was the rule of the company whose servant he. was. Was it a rule when a bale fell off the truck the employe was to send for the officer who had the road in charge ? Did he throw that bale of cotton with a sudden jerk, or did he lower it easily on his truck? Would the road have broken if the plaintiff had not thrown down the bale? Now, if he violated the rules of the company or recklessly threw his bale from the edge to the side on the truck or the platform, so as to occasion a sudden jar, which broke the support of the shoulder resting on the sill of the factory, did he not contribute to the accident? If so, the company is not liable, because he was deficient in that prudence which men ordinarily display in the exercise of their business.</p> <p>These are questions for your solution. As you solve them, so will be your verdict. While these great enterprises are to be held to the strictest responsibility, and made to pay for any damage resulting from their carelessness or negligence, yet they are not to be bled and stripped of their earnings because they are rich. By united capital they do that which individual capital cannot accomplish. They increase the general wealth of the State, which permeates society and a.dds to the industrial labor of the county. They employ, at liberal wages, hundreds of our people, men, women and children; furnish them with comfortable houses, good schools for the education of the rising generation, and help support the government by taxation. Hence you are to decide the case on the law and the evidence, not considering the poverty of the plaintiff or the wealth of the defendant. But while these corporations are dispensing these blessings, adding to the wealth of the State and increasing the comfort and happiness of the people, they must protect those whom they employ, and whenever one of their. employes is injured because of their carelessness or negligence, they are liable.</p> <p>You are not to find a verdict because the plaintiff is a poor man and the defendant a rich corporation, but according to truth and justice. Bemember this court is no respecter of persons— each case must be tried by the law and evidence applicable thereto. In all such cases there is a great deal of vociferation and earnest declamation about rich corporations and poor men, hard working laborers. You have nothing to do with this. Bender your verdict as between man and man. A corporation is simply the aggregation of individuals. In that union you will find capitalists, men of moderate means and widows and orphans. These aggregated make the corporation, and all of these — the capitalist, the man of moderate means and the widow and orphan — are as much entitled to your consideration and sympathy as the plaintiff. So, gentlemen, you will dismiss from your minds, “bloated corporations, wealth, large dividends, poor laborers,” and decide this case as between man and man, by the law and the evidence.</p>

<p>1. A note duly dated and signed by its maker, without seal, in words following : “On the first of November, 1877, 1 promise to pay to M. W. Gary, or order, without oflset, eight hundred and eighty-six dollars, for value received, with interest from date, interest after maturity at the rate of one per cent, per month, having deposited with said M. W. Gary, as collateral security, seven hundred and thirty-five dollars Greenville and Columbia railroad second mortgage coupons, past due. And in case this note shall not be paid when due, I hereby give the said M. W. Gary authority to sell the said security, or any part thereof, for my account, on the maturity of this note, or at any time thereafter, at public or private sale, at his discretion, without advertising the same, and to apply so much of the proceeds of said security to the payment of this note as may be necessary to pay the same, with all interest due thereon, and also the payment of all expenses attending the sale of the said security. If the net proceeds of the said security shall not cover the amount due on this note, I hold myself bound to pay the balance forthwith, after such sale, with interest at the rate of one per cent, per month,” is a promissory note, and negotiable.</p> <p>2. Semble. An endorsement, in blank, of a negotiable note renders the endorser liable to every subsequent holder; and in the absence of fraud or mistake, such liability cannot be affected by parol evidence.</p>

Before Eraser, J., Richland, December, 1881. The facts necessary to a proper understanding of this case will be found stated in the opinion. ' The orders appointing receivers need not be given, as they will be found in the Fifty-fowr Bond Case, 15 $. C. 304, in Ex parte Benson & Co., ante 38, and in •other cases. The Circuit decree, omitting its statement, was as follows: The first question is as to the validity of petitioner’s claim.

<p>Before Fraser, J., Richland, December, 1881.</p> <p>George W. Williams, as treasurer of a syndicate formed to assist the South Carolina Railroad Company, received from that •company as collateral security for advances made and to be made, certain securities, including two notes given by the Greenville and Columbia Railroad Company to the South Carolina Railroad Company, secured by a deposit of mortgage bonds of the former company, which bonds passed to Williams, treasurer, with the notes they were intended to secure. One of these notes was for $51,432, secured by 103 Greenville and Columbia Railroa4 second mortgage bonds, of $500 each, dated December 30th, 1876; and the other of the same date, was for $135,818.74, secured by 543 like bonds.</p> <p>All of these bonds were, after the maturity of the notes, sold by the syndicate, and G. W. Williams, as their treasurer, presented two petitions in this cause, asking in each for the payment of the balance due on the notes, respectively, out of the receiver’s fund, inasmuch as the notes were given for the necessary expenses of the road while in the hands of the receivers appointed by Judge Melton’s order of June 18th, 1872. The petition as to the note for $51,432, was disposed of by the opinion of this -court refushty b to be found reported as Ex parte Williams, 17 8. C. 396.</p> <p>This case is Lhu petijon as to the note for $135,818.74, which was also refused by the Circuit decree in this cause, and from such refusal no appeal was taken. But in answer to this petition, Clyde et al., holders of second mortgage bonds (and who as such would receive all the funds in the cause not absorbed by claims of higher rank) interposed as a counter-claim that the pledge of the bonds to the two notes above described was illegal, and that G. W. Williams, treasurer, should be decreed, to account for the said collaterals or their value.</p> <p>Judge Fraser also dismissed the counter-claim.' So much of his decree as relates to this counter-claim was as follows:</p> <p>The only question then left for my consideration is that of the counter-claim set up by W. P. Clyde and others, that the petitioner, George W. Williams, treasurer, should be held to account for the 543 and 103 second mortgage bonds above referred to, on the ground, as I understand it, that they were assets in the hands of the receivers, who sold them without authority, and that of this the petitioner was bound to take notice, so that in his hands the bonds were effected with the trusts under which the receivers held them. The counter-claim is filed by William P. Clyde, Thomas M. Logan and Joseph Bryan, on behalf of themselves and other holders of second mortgage bonds, who claim to be entitled to the net proceeds of the sale and income in the hands of the master. These are the same' parties who bought these bonds from the petitioner.</p> <p>The first provision of Judge Melton’s order was one which enjoined all creditors from commencing or prosecuting any suits against the corporation, or enforcing judgments already obtained by execution against the property. The second provision was one which put the property in the hands of the president and directors, and substituted the “order” and direction “of the court ” foi the will of the stockholders. The corporation, whose will is expressed only by the stockholders, were displaced by the order, and President Magrath, in his annual report for the fiscal year ending December 31st, 1872, says: “Under the operation of the orders growing out of these proceedings no suits could be instituted, and no payments made, except for ihff absolutely necessary wants of the road.” If this cleay^and correct view of their powers and duties had not begyPfost sight of by the president and directors, many of the embarrassing questions which have arisen in this administration would have been avoided.</p> <p>If any other orders of the court were necessary before they assumed any conduct of the business, then not one train could have moved from the depot, as no order was made except the one referred to, “ to continue to conduct and carry on the business of the said company.” The true conception of the scope of this order, in my view, is that every act of the president and directors was subject to the supervision and control of the court, and that to them, as to all receivers, necessary expenditures for labor and material would, as a matter of course, be allowed; but when they went beyond this to make permanent improvements and changes, speculative contracts for rebates, and the purchase and sale of bonds, they, and all who dealt with them, should have understood that their contracts might not meet the approval of the court. I find neither in the order itself or in any decision or dictum of the court any warrant for that unlimited power claimed in some quarters, and expressed by the words “ in like manner as they have heretofore done.”</p> <p>We must, therefore, look to other considerations to determine whether this is a valid counter-claim. The objection to the mode in which this counter-claim is presented has been waived at the hearing, and we must look to its merits. The peculiar order of Judge Melton was perhaps the best which could have been made for the interest of all parties in the abnormal condition of the country at the time it was made. Perhaps it was never intended to interfere with the corporate existence of the railroad company, and there is nothing in the order which does (see High on Receivers, § 397, note 2); and it does not follow that third parties who dealt with the president and directors in a manner lawful with them as officers, and unlawful as receivers, necessarily knew that they dealt in the latter capacity.</p> <p>To make the petitioner liable to this counter-claim, there must have been something in this transaction which affected him with notice that he was dealing with trust funds. If any third person, entirely unconnected with the company or its business, had been appointed receiver, the mere fact .of dealing in this way might have been sufficient, at least, to put a prudent man on his guard. It does not strike me that the same conclusion would follow here. There is nothing on these bonds which show that they were a part of the assets in the hands of the receivers, either as a part of the corpus or as being an investment temporarily made of the income, and there is no evidence to shoAv that they were not purchased with money, which the evidence shows was from time to time borrowed by the president and directors.</p> <p>If the old doctrine of lis pendens is any longer applicable, except as to the specific cases prescribed in the code, it will be found that it was only applicable to specific property, which “ must be so pointed out by the proceeding as to warn the whole world that they meddle at their peril.” See Lewis v. Mew, 1 Btrobh. Eq. 183; Edmonds v. Orenshaw, 1 McO. Ch. 261. Cash and negotiable paper not due are not affected in the absence of actual notice. Wade Latv of Notice, §§ 371, 372. I do not see Avhy corporation bonds can be subject to a different rule. “ There must be something in the pleadings or in the published notice at the time of the purchase to direct the purchaser’s attention to the identical thing, which is the subject of the litigation, the notice being purely constructive of the facts contained in the bill'and nothing more.” Wade on Notice, § 351.</p> <p>The purchase of these bonds by the South Carolina Railroad Company to secure an antecedent debt may not have had a sufficient consideration to support it, but the purchase by George W. Williams, as treasurer of the syndicate, from the South Carolina Railroad Company, AAras upon a neAV and amplh consideration, the loan of money or credit, which was sufficient even if the original purchase from the receivers had been tainted Avith a Avant of proper consideration.</p> <p>There is, hoAvever, another feature of this case which makes it a very peculiar one. In order to entitle litigants to the protection afforded by the constructive notice of the lis pendens, there must be diligence in the prosecution of the suit. I have' found no case where the parties lost that protection unless there was laches in reviving a suit which had abated. 2 Lead. Cas. Eq. 125, 126, 127; -but I see no good reason why it should not be lost by other conduct of the parties. In this case the order of Judge Melton was made in 1872, on June 17th, and for over six years, until 1878, November 23d, not one single report was made or called for from the custodians of the property appointed by the court. In the meantime, while enjoying the protection of the court from suits and executions, the lien creditors, including the holders of these second mortgage bonds, received their interest from the surplus income and from borrowed money from July, 1873, to July, 1877. Thus every holder of these bonds was a party to this infringement of the order of the court, and all who purchased these bonds, or any of them, are subject to such equities as existed against these bonds in consequence of these transactions.</p> <p>I think those who then held these bonds would be estopped from claiming, in the face of these proceedings (for they were all called in as parties to the suit), the protection of the lis pendens as amongst themselves, or in transactions with others who dealt in these bonds, on the faith that they were on the market, free from all entanglements, which might impose on them the character of trust funds, because they may have been at one time in the hands of those who, though officers of the company, were also receivers appointed by the court. I do not see how these receivers had any right to make a payment of interest on second mortgage bonds, to which the blue bonds and the guaranteed bonds were prior, or even the interest on these latter bonds themselves, under the order of Judge Melton.</p> <p>As to all creditors there was an exhaustive order to prove their claims before the referee, and President Magrath was right when he said to the stockholders that there could be “ no payments made” under this order; and when subsequently these lien creditors did accept for four years successively payment of their interest coupons, they opened the way to unsecured creditors to accept, I think with safety, any money or security they could obtain. Clyde and others, who now hold these bonds, I think ought to be bound as privies. 2 Lead. Cas. Eq. p. 653. I find no evidence to contradict the sworn statement of George W. Williams that he never qualified or acted as a director of the Greenville and Columbia Railroad Company, aiid if he was ever an acting director, I do not see how he can be made to answer to parties or their privies for acting without the authority of the court, who, to say the least, were equally at fault. The rights of parties who were not admitted to this premature division of assets, stand on a different footing, and some of them have been recognized by the court. The counter-claim cannot therefore be allowed.</p> <p>It is therefore ordered and adjudged that the petition be dismissed, each party paying his own costs.</p> <p>Clyde et al. appealed from so much of this decree as dismissed their counter-claim.</p>

Before Kershaw, J., Charleston, June, 1881. The opinion states the case. The order of the Circuit judge was as follows: I think the complaint is defective. The authority of Sir William Blackstone, construing the statute from which this is taken almost verbatim, indicates what a “ time ” or “ sitting ” is.

Before Hudson, J., Orangeburg, October, 1881. These were two prosecutions against the same defendant, Joel Padgett, for selling seed cotton on November 2d, 1880. In one case, the alleged sale was of three hundred pounds at nine o’clock *dt night, and in the other, of two hundred pounds at ten o’clock at night. Other facts are stated in the opinion.

Before Hudson, J., Barnwell, March, 1882. Action by J. Allen Tobin and August Zissett. The case is fully stated in the order of the Circuit judge, as follows: On May 14th, a. d. 1860, Duncan, Moloney & Co. recovered judgment, by confession, against Gideon S. Brown, of Barn-well, had the same duly entered up, and execution issued and lodged on the same day, for $290.75 and costs.

Before Kershaw, J., Anderson, March, 1881. The opinion fully states the case. It may be added, however, that the case was heard on testimony taken by the master and reported to the court. • ■

Before Hudson, J., Union, March, 1881. The facts of this case appear in the opinion. The Circuit decree, after, a statement of these same facts, was as follows: It seems to the court that the purchasers of these lands would have been proper parties to this cause, but as no objection has been taken by the pleadings to their non-joinder, I will consider the case as between the parties to the cause.

This case was heard in connection with the case of Herndon v. Moore, ante p. 339, and involved the same questions. The opinion fully states the case.

Before Kershaw, J., Charleston, June, 1881. The facts of this case are all stated in the opinion.

Before Kershaw, J., Newberry, November, 1880. Tbis was an action commenced October 2,1879. The opinion states the case. Moses committed no default in failing to account to one who had forcibly ejected him from his office. 14 Barb. 397. Nor in failing to account to the parties in interest, for there had been no order to pay out. 5 Rich. Eq. 38. And in no event could there be action before demand made. 2 Bail. 51; 1 IJill Ch. 423.

<p>1. The judgment of this court in Sbon v. Munro, 11 8. G. 140, stated.</p> <p>2. The rule there prescribed for ascertaining the amount of confederate money rightfully in the hands of the administrator held him responsible for the collection of ante bellum credits from himself and other solvent debtors, not available for the purposes of the administration, and it was error in the Circuit judge to apply to the case any other principle.</p> <p>3. The amount of such moneys improperly collected, as reported by the referee, is sustained by the evidence, arid therefore affirmed.</p>

Before Kershaw, J., Charleston, June, 1881. The opinion states the case.

Before Aldrich, J., Laurens, September, 1881. At the hearing of this appeal, the seats of the Chief Justice and Mr. Justice McGowan, who had been of counsel in the court below, were occupied by two of the Circuit judges, Hons. J. H. Hudson and J. S. Cothran.

Before Kershaw, J., Laurens, November, 1880. Hon. A. P. Aldrich, of the Second Judicial Circuit, sat at the hearing of this appeal in the stead of the Chief Justice, who had been of counsel in the cause. Action by J. H. Witherspoon and Phoebe G., his wife, against James W. Watts and William Anderson, as executors of the will of John L. Williams, deceased, John G. Williams, John D. Garlington, W. A. W. Anderson and J. I). Watts, commenced December 27th, 1879.

<p>Before Hudson, J., Anderson, July, 1881.</p> <p>In this case Honorable Thomas B. Fraser, of the Third' Judicial Circuit, sat in the place of Mr. Justice McGowan, who-had been of counsel in the cause.</p> <p>The Circuit decree thus states the case:</p> <p>On July 22d, 1880, the plaintiff, a corporation, filed the aforesaid complaint to foreclose a mortgage on the real estate of Morgan Harbin, and to this action made the other defendants parties, as claiming an interest in said property by virtue of liens held thereon by mortgage and judgment. The parties defendant holding liens answered and claimed, by way of affirmative relief, that their respective liens be foreclosed or enforced,, and the same satisfied out of the proceeds of the sale of defendant’s land in the order of priority and legal right.</p> <p>In his answer, the defendant, Harbin, interposes a claim of homestead, which claim is resisted by the defendants, or some of them. Morgan Harbin is the head of a family, and owns no real estate except that described in the complaint, and is thus-fully qualified constitutionally to claim a homestead out of the land described in the complaint. The question is whether he has not deprived himself of the right of homestead as against the aforesaid creditors.</p> <p>The following are the facts found, and about which there seems to be no dispute: On January 23d, 1875, the defendant, Morgan Harbin, executed and delivered to his co-defendant,. D. Arrington, his note, and, to secure its payment, a mortgage on all his lands, including the tract whereon he lived — the note being for $300, with interest at the rate of one per cent, per month. On January 29th, 1877, he gave to the plaintiff, the Savings Bank, his note for $1,535 at the legal rate of interest, and, to secure its payment, he executed and delivered to the bank a mortgage on that part of his land known as the Bolt tract, and furthermore, as collateral security for the note, he delivered to the bank a note due by W. F. Parker for the sum of about $800. This Bolt tract contains 324 acres, and lies adjacent to the Home tract of 276 acres, and the two really form one body of land, though consisting originally of two tracts, and still retaining different names. On March 1st, 1878, Joseph N. Brown, as administrator of the estate of E. M. Brown, deceased, recovered judgment against Morgan Harbin for $59.46, and $6.15 of costs. On February 19th, 1879, Harbin gave his two promissory notes for the aggregate sum of $167.98 to M. ~W. Coleman & Co., with interest at the rate of twelve per cent, per annum, and, to secure the same, executed and delivered to them a mortgage on all the lands aforesaid. On March 17th, 1879, the defendants, G. W. Maret and P. S. Mahaffey, as executors of the last will of John Coates, recovered judgment against Morgan Harbin for $798 and costs.</p> <p>All the aforesaid mortgages are free from objection as to form and date of recording, the first and last constituting a lien on all Harbin’s land, and the second only on the 324 acres or Bolt tract. The judgments are likewise free from objection as to form, were ■duly entered up, and constitute a general lien on the real estate of Harbin, and the cause of action in each judgment as well as mortgage arose subsequent to the adoption of our present constitution. The judgment in favor of the executors of Coates is the junior lien of all, but the cause of action is perhaps of older date, being in 1872. The tract of land mortgaged to the plaintiff, the '324 acres Bolt tract, has already been sold under a former decree of foreclosure and sale in this cause, all equities being reserved, and brought $1,410.</p> <p>The questions raised in the pleadings and argument for the determination of the court involve conflicting equities between the creditors by judgment and mortgage as against each other, and Harbin. In behalf of the judgment creditors, it is contended that they, having a - right to enforce their liens only against so much of the land as is in excess of Harbin’s homestead, have an equity to compel the mortgage creditors first to exhaust that homestead over which they have a lien and right of enforcing it, before they can be permitted to receive any part of the proceeds-■of the sale of the land in excess of the homestead.</p> <p>It is needless to cite authority for the proposition that when •one creditor has two funds to which he can resort for payment, whilst another creditor can resort to but one of them, equity will force the first creditor to exhaust in the first instance that fund to which the latter cannot resort, before he is suffered to share in the fund common to both. This well-established rule settles the equities in this case as between the judgment creditors and those holding mortgages. As between these two classes of creditors the mortgagees are in equity bound to exhaust the homestead before resorting to the excess. This applies specially to the first and third mortgagees, who hold liens on all the land.</p> <p>As to the plaintiffs, the second mortgagees, they are compellable first to exhaust the note against Parker, and for any balance then due and unpaid, they have an equity to be first paid out of the Bolt tract, except as to what the homestead and home place want in paying Arrington. Should the home place of 276 acres fail to pay Arrington, for the deficiency he will have precedence of the plaintiff on the Bolt tract, and for that deficiency alone.</p> <p>But the claim raised by the defendant Harbin, is the most perplexing. He claims an equity to have his homestead admeasured as against all the creditors; that the mortgagees cannot resort for payment to this homestead until they have exhausted the excess, and that judgment creditors can in no event sell his homestead-nor force others to do so. So far as we know or remember this interesting question has not been decided by our Supreme Court. It has, however, been raised and determined by the courts of last resort in several of the States, but with a conflict of opinion — the courts of some States maintaining the equity of the homestead claimants and others denying it. These conflicting decisions will be found collated in Thompson on Homesteads and Exemptions, §§ 656-666.</p> <p>The leading case cited by the learned author, and the one which he seems to found the rule upon, is the case of Searle v.. Chapman, 121 Mass. 19. In a note to section 656 will be found a full extract from the opinion of the supreme judicial tribunal of Massachusetts, delivered by Chief Justice Gray. In that case, in an action by a mortgagee to foreclose his mortgage, the mortgagor claimed the equity to compel the mortgagee to exhaust all the excess of land before selling that which should be admeasured as a homestead to defendant. The court below denied the equity, and the supreme judicial tribunal sustained the judgment in the aforesaid learned opinion, holding in substance that the homestead claimant is bound by his conditional sale of the homestead; and that “as against him, the mortgagee has the right to enforce the contract according to its terms and is-not bound to elect between different remedies or securities.”</p> <p>Mr. Thompson says that the same doctrine prevails in Kansas; but that in some of the other States this equity of the mortgagor is recognized and enforced. In section 657 the author says: “If this is a sound rule where the only parties affected by it are the mortgagor and mortgagee, it becomes more imperative where to deny it would prejudice the rights of third parties, such as judgment creditors of the mortgagor. It then becomes a rule for the application of the familiar rule of equity, that when a creditor has a claim upon two funds, upon o.ie of which another creditor has also a claim, and such other person will be prejudiced by allowing such creditors to- satisfy his debt out of the fund subject to both claims, a court of equity will compel the creditor to take satisfaction out of the fund to which he alone has a claim,, in the first instance. He must exhaust that fund before resorting to the other. He must foreclose his mortgage on the homestead before he can claim the right to share with general creditors,, as to any unsatisfied balance, in the proceeds of the sale of his mortgagee’s estate.” In support of this position he cites White v. Polleys, 20 Wis. 530, a leading case which induced the legislature of Wisconsin to pass a special act to meet such an emergency, and to protect the equity of the homestead claimant.</p> <p>We think that in the absence of a statute of like character in our State, the doctrine of Searle v. Chapman, and White v. Polleys, is the true rule, and in perfect accord with fairness and good faith. Were a different rule to be applied to the case now under consideration, its hardship and unfairness would be manifest. It would authorize a man owning real estate largely in excess of a homestead to obtain credit upon the faith of that excess, perhaps to the full extent of its value. After these claims have been sued, but before judgment, additional credit of an equal amount is obtained on the faith of a mortgage of the same land. In an action to foreclose the mortgage to which the judgment •creditors are parties, it would be in violation of all ideas of justice and equity to hold that the mortgagee could be compelled to shift the lien of his mortgage off the homestead, and first exhaust the excess and thus entirely defeat the judgment debts on contracts senior to the mortgage debt.</p> <p>In our opinion the debtor, Harbin, having several times' conveyed away his homestead by way of mortgage, has no equity now to compel the mortgagees to refrain from selling his homestead, especially since it would work injustice and hardship to the judgment creditors who are co-defendants in this action. It is therefore ordered, adjudged and decreed—</p> <p>1. That it be referred to the master of this court to ascertain and report the amount of principal, interest and costs due upon the judgments and mortgages aforesaid respectively.</p> <p>2. That the defendant, Morgan Harbin, have until the first Monday of November next in which to pay the said mortgage debts, and that, in case of his failure so to do, the master of this court, having first duly advertised the same, according to law, for sale, &c.</p> <p>3. That by said sale the said Harbin and all persons claiming under, by or through him any interest in said premises, shall be forever barred and foreclosed of any equity of redemption in and to said land, and the same shall likewise be by said sale free and discharged of any and all lien of said judgment creditors thereon.</p> <p>5. That before sharing in the proceeds of the said sale herein ordered and that already made, the plaintiff, the Savings Bank of Anderson, must first exhaust its remedy on the note of W. F. Parker and apply the proceeds thereof to the payment pro tanto of its debts against Harbin, and only for any balance remaining thereafter shall said plaintiff share in the proceeds of the mortgaged premises.</p> <p>6. That out of the gross sale made and to be made, shall first be paid the costs of said sale and of this action.</p> <p>7. Subject to the above restrictions, the net proceeds of the sale of said land sold and to be sold, shall be distributed as follows, viz.: 1. To the payment in full of the senior mortgage debt. 2. To the mortgage debt next in seniority in full, if the Bolt tract will pay so much. 3. To the Brown judgment in full. 4. To the mortgage debt of M. W. Coleman & Co. in full. 5. To the judgment of the executors of Coates in full. 6. That should a balance be left, it be applied to any balance of the plaintiff’s demand remaining unpaid from proceeds of said note and the Bolt tract, and for any such balance an execution may be issued. 7. Should a surplus still be left, the same must be paid to the defendant Harbin, his agent or attorney.</p> <p>8. That the parties are at liberty to apply for any further administration order, at the foot of this decree, to carry the same into effect and in furtherance of the cause.</p> <p>From this decree the defendant, Harbin, appealed in words following:</p> <p>The defendant, Morgan Harbin, admitting the right of every party to this action who is a lien creditor, to have his homestead sold, if necessary for the payment of their respective liens, except the judgment of the defendants, Maret and Mahaffey, as executors of the will of John Coates, deceased, appeals from the decree of his Honor, Judge Hudson, filed in this action on July 5th, 1881, on the following ground, to wit:</p> <p>Because his Honor erred in adjudging that the defendant, Morgan Harbin, was not entitled to have his homestead set off as against the judgment of Maret and Mahaffey, executors, because he had created a prior lien thereon by mortgage to other persons of that and other surplus land, enough to pay off such prior liens, adjudging the equity of said judgment creditors to compel the prior mortgagees to go upon the homestead for the collection of their mortgage debts, so as to leave the surplus liable to sale for the payment of said judgment, superior to the equity of the debtor, Morgan Harbin, to require the mortgagees to exhaust the surplus in the payment of their debts, so as to leave him in the enjoyment of his homestead.</p> <p>The appellant is entitled to his homestead as against the judgment of Maret and Mahaffey. Const, of 8. C., Art. II, § 32 * 15 8tat. 369. The land must be sold in parcels, and only so much as is necessary to pay the mortgage debts, leaving out the homestead. Fifty-third Rule Circuit Court; Smyth Exemp., § 276. If the parcels outside of Harbin’s homestead pay the prior liens, then it cannot be sold to pay Maret and Mahaffey’s judgment.</p>

<p>1. A sheriff' cannot refuse to enforce an execution in his office for a balance due by sureties, although after such judgment a former judgment for a less sum against the principal debtor on the same debt had been satisfied.</p> <p>2. An unsatisfied judgment against the principal debtor cannot be pleaded in bar of an action on the same debt against the sureties; and judgment may be had against the sureties for the sum then due upon the note sued on.</p> <p>3. Judgment obtained against a principal debtor on a note bearing twelve per cent, interest (a judgment bearing only seven per cent.) was paid after a subsequent judgment had been entered against the sureties for a greater sum, resulting from the difference in interest; execution was then issued against the sureties for such difference as an unpaid balance. ELeld, that the execution against the sureties was not satisfied, and that they were liable for its payment.</p>

Before Kershaw, J., Newberry, November, 1880. This was a bill in equity filed in 1867, by Francis M. Pope, V. J. Tobias and Josephine M., his wife, against Bird C.. Mathews, as executor of the will of Jacob Pope, deceased. Jacob Pope died in August, 1849, leaving of force a will, whereby he gave his entire estate to his wife for life, and certain personalty absolutely. The last two clauses were as follows: 4.

<p>This was an original application to this court made in behalf of Julius H. Anderson, the relator, for a writ of mandamus to compel H. M. Sims, the secretary of State, and other members of the board of State canvassers, to declare the relator elected to the office of clerk of court for Horry county, in accordance with the returns in their possession made to them by the board of county canvassers for that county.</p>

<p>Original application for writ of mandamus.</p> <p>This was a petition entitled the State of South Carolina, ex relatione John K. Coleman and others, against the town council ■of Chester. The opinion states the case.</p> <p>The clauses of the constitution violated are article II., section 20, and article I., section 12. An act violating article II., section 20, is unconstitutional. 13 Mioh. 482; 12 Geo. 36. The title of the local option law is general and sweeping, and in it ■can be found no intimation that it was intended to prohibit local option in certain cases. This section is also violated by the act to prohibit the sale of liquor in Chester, the title of which makes no allusion whatever to the local option law. But there is a broader and more important provision violated, article I, section 12. This section prohibits discrimination. Under its charter, the citizens of Chester have a right to vote — under the local option law they have a right to vote — but the fourth section of the local option law, and the act to prohibit the sale ■of liquors in Chester, take away the right accorded in a general law, to citizens of other towns, and is thus a disqualification of electors of Chester. Cool. Cons. him. 391. A case most apposite to ours is Kelly v. The State, 6 Ohio St. 269. The local option law must not be confounded with acts controlling municipal corporations in the matter of police regulations, for it divests municipalities of the power to determine the question of license or no license, and gives it to the people. Even the exercise of police power, by the legislature maybe unconstitutional.</p>

<p>1. A canse of action exists when the legal rights of one party have been invaded by another, and unless facts to show the existence and the invasion of such rights are stated in the complaint, it will be held bad on demurrer.</p> <p>2. A complaint which stated that money belonging to an estate had by order of court been lent to defendant under his bond to account “upon a final settlement of the estate” for the sum received, but which did not allege that any settlement had yet been had or attempted, or that defendant had failed to account, does not state facts sufficient to constitute a cause of action.</p> <p>3. A clerk of court in accordance with the terms of an order of court, lent money in his hands to A. upon A.’s bond to account for it upon final settlement of the estate. Meld, that a complaint against A. by a succeeding clerk stating these facts and asking to have the bond reformed so as to provide for the payment of interest, did not show any cause of action in the plaintiff.</p>

<p>Before Cothran, J., York, March, 1882.</p> <p>Action by John Nichols against B. P. Briggs. The opinion states the case.</p> <p>The Circuit decree was as' follows:</p> <p>The sole question discussed before me by the counsel engaged in the cause, and with much elaboration, may be'thus stated: Can an action for foreclosure of a mortgage of real estate be maintained, where the note which it is given to secure has been barred by the statute of limitations? It cannot be questioned, since the decision, of the court in Arnold v. McKettar, 9 8. C. 335, that the amendment to section 113 of the code (see Lynch’s Code, p. 53), as of the 25th of November, 1873 (see A. A. of that year), notwithstanding the supposed irregularity of its ratification and the subsequent reenactment of it in the A. A. of 1875, is valid and effectual; and that sealed notes in South Carolina are subject to the statutory limitation of six years, as therein provided.</p> <p>It is also true, as matter of law, that this action having been commenced in January of the present year, the statutory bar is complete, unless there be some existing cause to prevent its operation. No proof to this effect was offered upon the trial, and no suggestion of the kind was made in argument by the learned counsel for the plaintiff, who insisted, with the support of many authorities, that he was entitled to a decree of foreclosure of his mortgage, non obstante. The defendant’s counsel, with equal zeal, as stoutly denied the plaintiff’s right in this regard. The question thus presented is one of some difficulty of determination, owing to the great conflict of foreign authorities upon the subject, (to which, I am forced to express my regret, that we are becoming so much addicted,) as also on account of the apparent absence of any direct adjudication of the matter by our own courts.</p> <p>The plaintiff’s counsel, with great propriety, insists that the statute of limitations does not discharge or extinguish the debt, but only takes away the remedy for enforcing the payment of it. Since the case of Sturgess v. Growninshield, decided by the Supreme Court of the United States as far back as 1819, and reported in 4 Wheat 122, and followed by numerous decisions of our own court, this doctrine may be accepted without question. He further insists, and apparently with equal confidence, that though the debt be barred, the lien of the mortgage should be enforced; and to support this proposition, cites chapters 26 and 27 of 2 Jones Mort, and the numerous authorities there to be found.</p> <p>Upon the other hand, the learned counsel for the defendant contends : That in South Carolina the mortgage is but an incident of the debt, deriving its vitality and perpetuity only from the debt itself, and that it cannot, in the very nature of things, survive the substance of which it is but the mere shadow; that the act of 1791, so explicit in this regard, was a departure from the English doctrine and has wrought a fundamental change in the nature and character of mortgages, and of the means of enforcing them; that our own decisions have steadily maintained this divergence; citing numerous authorities, among others, Simons v. Bryce, 10 S. G. 367; Warren v. Raymond, 12 S. G. 21; Reeder v. Dargan, 15 S. G. 175.</p> <p>And not with unbecoming confidence does he rely upon the opinion of Dargan, Ch., in Gibbes v. Holmes, 10 Rich. Eq., 487, in which that learned judge says: “ If a mortgage be given to secure a simple contract debt, when the debt is barred, the mortgage is discharged. Anything that satisfies the debt discharges the mortgage.” Unfortunately for the defendant, however, this 'is but obiter dictum, as the question to which this would otherwise have been decisive was not before the court. Nevertheless, as the positively expressed opinion of a very great judge in his own times — and there were giants in those days— it is entitled to great consideration. The added expression above “ Anything that satisfies the debt,” &c., seems to me, however, greatly to weaken the force of the first proposition; for whatever contention there might be as to that, there never could have been a doubt as to the second, which clearly relates to satisfaction of the debt — not to any suspension or abridgment of the remedy. Satisfaction is the whole object, aim and end of the law in all things. I have ventured to say this much in the way of respectful criticism, for the reason that the expression is very positive; it was much relied on by the defendant’s counsel, and if other reason be needed, it may be found in what Judge "Wardlaw said under like circumstances in Mitchell v. Bogan (I believe) in venturing to differ with Judge Nott.</p> <p>It might not be matter of unprofitable speculation to inquire how far this expression may have been evoked by the peculiar remedy for foreclosure, furnished by the act of 1791, which, it will be remembered, was a proceeding at law, and was bottomed upon “judgment being obtained in the Court of Common Pleas.” But I forbear. It surely could never have been successfully contended in South Carolina that the right of foreclosure in equity, which became, long before the abolition of the Court of Equity, as such, the universal mode of proceeding, was absolutely dependent upon the character or quality of the bond or debt intended to be secured.</p> <p>In the case of Gillett v. Powell, Spears Eq. 143, property was sold and bonds and mortgages taken for the purchase-money. Foreclosure of one of these was sought, and it was discovered that the bond had been altered in a material part and thereby made void. There was no reference in the mortgage to the bond as produced in its mutilated condition. Chancellor Harper, in delivering the circuit decree, which was affirmed on this point by the whole court, said: “ But I am of opinion that the alteration of the bond does not affect the mortgage, and that it must be taken as evidence of the debt. If the mortgage alone had been taken, there can be no doubt but that it would have constituted a specialty debt. At law, it is regarded as a conveyance of the property; in equity, as evidence of the debt intended to be secured by it. * * * The defendant is estopped by his deed to deny the existence of the bond.” See upon this point, in part, McCaughrin & Co. v. Williams, 15 S. C. 505.</p> <p>Perhaps what has been already said is sufficient to show the bent or inclination of my mind; but in the view which I shall now take of this case, it is not necessary or proper even that I should make a decision of this vexed and interesting question. It is somewhere related of King James I. of England, who largely affected learning and the society of learned men, that upon one occasion he summoned to his presence the savans of his time and propounded to them the following inquiry: “Why is it that a fish placed in a bowl of water filled to the brim will not displace a particle of the contents of the vessel ?” Many learned and scientific and highly satisfactory replies were given by the several philosophers interrogated in turn, until the last of the wise men cautiously inquired, before undertaking to account for the alleged phenomenon, if, indeed, the fact were so? Actual experiment showed that it was altogether otherwise. Can it be so in this case ? Let us see:</p> <p>On June 5th, 1874, the defendant made and delivered his sealed note to the plaintiff, secured by the mortgage in question, for the sum of §500, payable' twelve months after date.' On June 5th, 1875, the note became due, and the statute began to run. On December 24th, 1880, the legislature (17 Stat. 415) amended section 113 of the code, by extending the time for bringing actions “upon bonds or other contracts in writing, secured by mortgage of real property,” to twenty years. The statute of limitations had operated upon the sealed note before the court for about five and a half years, and it had still about six months to run before,the bar should be complete. What effect did the extension have upon “the contract in writing” secured by the mortgage here ? The answer will be found in the case of Warcllaw v. Buzzard, 15 Bioh. 160, and is in these words:</p> <p>“ * * * Nor was it denied that the legislature might extend the statute of limitations before the bar was complete without impairing the obligation of the contract. In fact, its extension gives additional vitality to the contract, and furnishes no ground of complaint to the debtor or creditor. The debtor, if he wishes to pay can do so; andjf the creditor desires to sue, there is nothing in the extension to prevent him.” This seems to me to be the conclusion of the whole matter.</p> <p>Wherefore, it is ordered, adjudged and decreed that it be referred to the clerk of the Court of Common Pleas for' the county of York,, to inquire into and compute the amount due upon the demand herein sued upon; and that upon such ascertainment, that the plaintiff have judgment of foreclosure of the premises mortgaged and described in the complaint, in the usual form, for his debt, interest and costs; and that the plaintiff herein have leave to move for any further order that may be necessary to effectuate the judgment herein rendered.</p>

Before Hudson, J., Marion, October, 1882. These were actions by Yige Garrison and Ervin Crawford against John Dougherty, heard together. The Circuit judge thus states the cases: These are actions brought against the defendant for the value of alleged betterments made by the plaintiffs upon a tract of land in the county of Marion, the possession of which the defendant, John Dougherty, had recovered of the plaintiffs in an action involving the question of title.

<p>Before Witherspoon, J., Marion, April, 1882.</p> <p>This is a second appeal in this case, the first being reported in 16 S. C. 132, where the facts will be found more fully stated. For the purpose of understanding this appeal, the opinion here sufficiently states the case.</p>

Before Witherspoon, J., Marion, March, 1882. This was an action by Matilda E. Davis against A. Q,. McDuffie and the distributees of Archibald McIntyre, deceased, commenced in December, 1880. The opinion states the case. The Circuit decree, omitting its statement, was as follows: Upon hearing the complaint, affidavit and order of injunction above referred to, defendants’ counsel insisted that the complaint should be dismissed upon the following grounds, to wit: 1.

Before Pressley, J., Spartanburg, March, 1882. Action by James McMakin against William Gowan, and after the death of William Gowan revived against his executors. The opinion states the case.

Before Wallace, J., Bichland, April, 1882. This was an action by Benedict, Hall & Co. against J. T. Flanigan and others, commenced in March, 1873. Mrs. L. M. Flanigan, one of the defendants, denied her alleged signature, judgment by default being taken against the other defendants. H. B. Flanigan, one of the defendants, and a son of L. M. Flanigan, was called as a witness by plaintiffs, and testified as stated in the opinion.

<p>Before Pkessuey, J., NeAvberry, February, 1882.</p> <p>Action by William T. Huff against William Watkins. The opinion states the case.</p>

Before Cothran, J., Union, June, 1882. This was. an indictment against Richard Paulk, a white man, for marrying Dora Brown, a mulatto woman, on April 8th, 1882. The opinion states the case.

<p>Before Wallace, J., Kershaw, February, 1882.</p> <p>Actions by F. W. Kerchner against J. L. Gettys and A. A. Huckabee, heard together. To the statement made in the opinion will be added only the following extract from the agreed case: “ The company was chartered under the general law of North Carolina, an abstract of which is furnished. Neither Gettys nor Huckabee ever attended any of the meetings of the stockholders or took any part in the management of the boat. E. Parker was elected president at a meeting of stockholders held in South Carolina, and F. L. Phelps, secretary; both said parties were residents of South Carolina.” All of the points considered by the court are raised in the exceptions.</p> <p>The company was chartered in North Carolina, but never organized except in South Carolina. It therefore had no legal existence here. 13 Pet. 519; 27 Me. 509 ; 1 8imn. 47; 14 PeL 129; 1 Blatchf. 628; 1 Black 286; 4 Jones Eq. 231; 26 ifíe. 326; Field Gorp., §§ 25, 243; Moraw Priv. Gorp., § 535. The notes were not given for any interest in a steamboat, nor could it. have been, as the law was not complied with. Rev. Stat. U. S., § 4170. If so, then there has been a failure of consideration. Blachb. Sales 199; Add. Gont., §§ 554, 575, 585, 662; 1 Pars. Gont. 462. The stock being a nullity, the consideration has failed. 1 Dan. Neg. Inst. 177.</p> <p>upon the point of the legal existence of the corporation in this State, cited Moraw Priv. Gorp., § 502; 13 Pet. 519; 101 U. S. 356. The defendants are estopped from denying a corporate existence. 14 Jolms. 238; 16 Mass. 94; 6 IV. H. 164.</p>

<p>1. A creditor held a sealed note, dated in 1863; in 1869, the debtor made a voluntary deed, to his wife and 'daughters, of a tract of land. In 1874, action was commenced on the note and judgment obtained in 1879, and a return of nulla Iona had the same year; on the next day action was instituted to vacate the deed. Held, that this latter action was not barred by the statute of limitations.</p> <p>2. The statute of limitations is inert and inoperative until a right of action arises.</p> <p>3. A voluntary deed, as against an existing creditor of the grantor, is fraudulent, but no right of action exists in favor of such creditor to have the deed vacated, until he has exhausted his legal remedy by obtaining a return of nulla bona on his execution; until then, the statute of limitations does not begin to run in favor of the grantees as against the fraud.</p> <p>4. This statute runs from the discovery of fraud, only where a right of action also then exists.</p> <p>5. Delay in suing the note to judgment, short of the time allowed by the statute, does not start the currency of the statute in favor of such a deed.</p> <p>6. In such cases the Court of Equity will refuse to lend its aid to enable a party to escape from the consequences of a fraudulent act by interposing the bar of the statute of limitations.</p> <p>7. MeOovian v. Hitt, 16 S. C. 602, overruled.</p>

<p>1. There being some evidence in plaintiff’s favor upon the only point made by the pleadings, the Circuit judge erred in granting a non-suit.</p> <p>2. Section 60 of the sheriffs’ act of 1839 (11 Stat. 38), applies’ only to judgments upon which no executions have been lodged in the sheriff’s office, but where an execution is filed and entered upon the sheriff’s books, although not referred to in the index, the sheriff has actual notice or notice sufficient to put him upon the inquiry.</p>

Before Wallace, J., Bichland, April, 1882. Action by the State at the relation of Johnson Hagood as governor, and others constituting the commissioners of the sinking fund, against Ann F. Thompson. The opinion states the case.

<p>1. To permit this court to consider alleged errors of the Circuit judge in . omissions to charge, it is absolutely necessary that the “ Case ” should show that he was requested so to charge.</p> <p>2. The “Case” is the source of information for this court, and alleged errors which are not there disclosed cannot be considered.</p> <p>3. Under the law of North Carolina, which makes an endorser a surety, unless it be otherwise clearly expressed, an endorsement for collection only, without change of ownership, does not make such endorsers co-sureties with their prior endorser for value.</p> <p>4. R is too sweeping a proposition that notes are illegal if they “ arose directly or indirectly out of transactions in futures,” and the Circuit judge committed no error in refusing so to charge.</p> <p>5. Where the brief does not give the judge’s charge to the jury, a detached fragment of the charge separated from its context cannot be held by this court to be erroneous.</p> <p>6. Action on a note executed and payable in North Carolina is not barred in this State within the six years here allowed, although the limitation of actions as there prescribed is for a shorter period. The statute of limitations is applied according to the lex fori.</p> <p>7. Ownership of a note alleged in the complaint and admitted in the answer, could not at the trial be questioned upon proof of an endorsement by plaintiffs to their attorneys for collection.</p>

Before Witherspoon, J., Richland, July, 1882. This was an action by E. D. Gilmore against Wm. T. Roberts •and J. C. Shirar, commenced February 28th, 1882. The charge of the judge to the jury and the opinion of this court constitute •a full statement of the case. The charge was as follows: The plaintiff must recover either on his possession or on his title.

<p>1. On appeal from a Circuit decree overruling a demurrer, with costs to be paid out of certain proceeds of sale, this decree was reversed and tlie complaint dismissed. Held, that the direction for the payment of costs fell with the decree, although not mentioned in the exceptions nor in the opinion of this court.</p> <p>2. Costs in equity causes, after the act of February 20th, 1880, (17 Stat. 303,) were governed by the former practice under rule 72 of the Circuit Courts, and, therefore, followed the event of the suit, if not otherwise ordered in the judgment.</p> <p>3. Costs being in the discretion of the Circuit judge, his direction concerning them will not ordinarily be disturbed, and in this case is approved.</p>

Before Cothran, J., Lexington, September, 1881. The case is fully stated in the Circuit decree, which was as follows: This cause came on for trial before the court and a jury, at the fall term, 1881, of the court of Lexington county.

Before Fraser, J., Spartanburg, July, 1881.' Action by A. J. Williams and Diana, Ms wife, against Walker, Fleming & Co. The Circuit decree was as follows: This case came before me on the report of the special referee, C. P. Wolford, Esq., and exceptions thereto by the defendants.

<p>1. A party brought in as defendant because the real claimant of the property in dispute, may put in issue the plaintiffs’ capacity to sue.</p> <p>2. Plaintiffs’ incapacity to sue, not clearly appearing from the statements of the complaint, this defense could not be taken by demurrer; it was,-therefore, properly made by answer and proof of the facts.</p> <p>3. The proper probate of a will in another State, with letters testamentary there duly issued to the executors, and an exemplification of these proceedings marked by a probate judge in this State, “filed and.admitted to probate,” do not authorize such executors to bring action in this State, no letters testamentary being here issued.</p>

Before Cothran, J., Laurens, June, 1882. Tbe opinion states the case. The Circuit decree was as follows: I agree with the master in his findings of facts; also in his rulings upon section 415 of the code; also, that Dunlap, the endorser, upon taking up the note, was invested with the rights of the bank to enforce payment from Fuller, and that the transfer of the note by Dunlap to the plaintiff, for value, was a re-issue of it, with a revival of his liability as endorser.