Volume 18 — South Carolina Equity Reports

<p>Infant parties to a bill might be entitled to a, day to show cause against the decree, if it were erroneous, but while it stands unreversed, it,is, in another suit, conclusive.</p> <p>Where partition of personalty, which allotted to a wife her distributive share, was made in 1831, and the return was confirmed nunc fro iunc in 1835, more than four years afterwards, and the wife had died in the mean time, but the husband had possession before her death — Held, that the marital rights of the husband had attached on the property allotted to his wife.</p> <p>An order confirming the return of commissioners in partition, has relation back to the actual partition, and operates to vest the legal title from that time.</p> <p>Intestate had contracted for the purchase of a tract of land, with the unexpired term of a ferry charter annexed to it. Shortly after his death, the ferry was re-chartered in the name of his wife, who was his administra-trix. Held that she received the charter as a trustee for the estate, and was accountable for the rents and profits. Per Harper, Ch.</p> <p>Where the administrator of an estate, who had married his intestate’s widow and become the guardian of his children, purchased, at a price below its real value, a tract of land of the estate, sold at public outcry by the commissioner, under an order of the court made on a bill for partition— Held, independently of any charge of unfairness or fraud, that he was bound to account to the distributees of the estate for the full value of the land at the time of the sale.</p> <p>An executor or administrator is not bound to hire out the slaves of the estate, but, on the contrary, is to be encouraged in keeping them on the lands and accounting for the crops ; and where he accounts fairly for the crops actually made, he is not to be charged further, unless for gross neglect.</p> <p>Where an executor or administrator keeps up the plantation, it is competent for him to purchase such supplies of any kind as are necessary and proper for keeping it up, and charge them to the estate.</p> <p>A husband, who receives an estate with his wife, is not bound to maintain her children of a former marriage, but may charge them for their board and education.</p> <p>Where a mother died intestate, in 1832 or 1833, owing no debts, and leaving as her only distributee her daughter, whose husband, without administering, took possession of the estate, and kept it until the death of his wife, which was in 1835 — Held, that the marital rights of the husband had attached on the property.</p> <p>Where there are no debts, and but one distributee, the distributee may take possession without administering.</p> <p>A gtfardian is not bound to go beyond the limits of the State in prosecuting the rights of his wards, and if he does go, he is entitled to make a reasonable charge for his services.</p> <p>A party failing to make a particular exception to the report of a referee, when*other exceptions were made, on some of which the report was recommitted — held, that it was too late to make the exception, when the report came up again, on exceptions to the matters on which it was re-committed.</p> <p>The commissioner is only entitled to one dollar on each return of a guardian!</p> <p>An administrator, who purchases at an under value the land of his intestate, and is compelled to account for the full value, is not entitled to commissions on the advanced price which he is required to pay.</p>

Before Johnston, Ch. at Edgefield, June, 1843. The Chancellor. The defence adopted in this case renders it necessary to go back to the case of Hancock vs. Day,* and I do not knowUhat I can explain the circumstances better than by repeating in the first instance a greater part of the statement of that case, contained in my decree of 1839. The original bill in that case was filed the 20th of February, 1838, by Nancy, Simon, and William J. Hancock, infants suing by Benjamin R..

Before Harper, Ch. at Kershaw, June, 1843. The Chancellor. On the 10th March, 1829, Henry T. Can-tey, the complainant’s testator, executed a bond to General James W. Cantey, conditioned for the payment of $2000, which bond the said James W. Cantey afterwards assigned and delivered to the defendant, John J. Blair.

Before Harper, Ch. at Edgefield, June, 1844. Held: gives Mrs. Jones no separate estate, and therefore her interest in them vested in her husband. 2. That the husband being himself the trustee, had the legal as well as the equitable estate, and there is therefore nothing to protect the negroes from levy under an execution against him.

<p>Where an Ordinary appointed a guardian of an infant, and took a guardianship bond, with two sureties, and P, one of the sureties, afterwards applied to be released, and the Ordinary, at the instance of P and the guardian, but without the knowledge or consent of the other surety, ran his pen through P’s signature to the bond, and permitted a third person, as P’s substitute, to sign and seal it, held, that neither P nor his co-surety was discharged, in equity, from his liability to the infant, and that P’s substitute was not liable.</p> <p>A mere nominal obligee has no authority, as obligee, to destroy the interests of the true owner of the bond.</p> <p>An Ordinary has no authority to discharge the surety to a guardianship bond. Per Harper and Dunkin, CC.</p> <p>The voluntary conveyance of a surety to a guardianship bond, set aside as fraudulent as against the infant.</p>

Before Johnston, Ch. at Lancaster, July, 1844. The decree of the Chancellor was as follows : This is another of those cases, multiplying of late with a fearful rapidity, in which the superstitious weakness of dying men, proceeding from an astonishing ignorance of the solid moral and'scriptural foundations upon which the institution of slavery rests, and from a total inattention to the shock which their conduct is calculated to give to the whole frame of our social polity,…

<p>Testator devised and bequeathed as follows. “I give, devise and bequeath to my wife and her heirs a plantation, slaves,” and some other property, “and also two thousand dollars, to be made of my estate, which amount is in lieu of the money due me in right of my wife, by virtue of a decree of the Court of Equityand then bequeathed “all the residue of his estate,” after payment of his debts, to his children. On the death of the testator, the wife, as survivor, became entitled to the decree. Held that the wife was bound to elect, and that, if she accepted the property bequeathed to her, she could not retain the decree, giving up the two thousand dollars only.</p> <p>Where benefits are given by a will, and some property or interest of the legatee is disposed of to a third person, if the legatee elects to retain his own property, he does not thereby forfeit all benefits given him by the will, but is only bound to make compensation to the third person to the value of the interest given to him. Per Harper, Ch.</p> <p>This being a rule on the commissioner, to shew cause why the money collected on the decree had not been paid over to the wife, the court discharged the rule, but refused to adjudicate the rights of the parties, although the executor of the husband and the wife consented.</p> <p>If the wife had already elected to take under the will, the proper course was for the executor to apply by petition to the court, to have the money paid to him. Semble.</p>

<p>Conveyance of land in fee to one of the Solicitors of the State by name, to himself, “his heirs and assigns, for the State of South Carolina.” Held, to vest the legal title in the State.</p> <p>Where the State, being the legal owner of lands, authorized one of the Solicitors to convey them to H. S. or his appointee, and the Solicitor executed printed blank deeds, and delivered them to H. S. who afterwards filled them up and delivered them to a purchaser — Held, that the conveyances were good.</p> <p>One having a beneficiary interest in lands, mortgaged them, and after-wards acquired the legal title. In the mean time judgments had been obtained against him. Held, that the mortgages were entitled to be first paid, (a.)</p> <p>(a) For the maxim, the interest, when it accrues, feeds the estoppel, and an application of it, vide Doe vs. Oliver, 5 M. and R. 202; S. C. 2 Smith’s Lead. Ca. 417. '</p>

<p>Where a person agreed with a debtor, whose property was about to be sold at sheriff’s sale, to purchase the personal property and allow the debtor the benefit of a resale to be made on credit, and he acccordingly purchased it at an under value — Held, that he was bound, under the agreement, to account to the debtor for the proceeds of the resale or the value of the property.</p> <p>Such agreement and purchase, making an express technical trust, is not within the statute of limitations.</p> <p>Parol evidence is inadmissable to prove such an agreement in relation to lands.</p> <p>If a purchase, whether of lands or personalty, be made at sheriff’s sale by one representing himself to be acting under ah agreement-with a debtor and for his benefit, when in fact there was no agreement, the advantages thus obtained will be taken away from him, on the ground of fraud; but a bill for that purpose, if not filed within four years, will be barred by the statute of limitations.</p>

<p>The testator bequeaihed the whole of his property, both real and personal, to his wife for life, and afte.r her death “ to the Methodist Church of which she may be a member at the time of her death, to be appropriated to the uses and purposes which the Conference may deem most advantageous for said church; more especially for the support of Sunday Schools, for the purchase of Bibles and religious tracts, and the distribution of the same among the destitute, and for the support of Missionaries.” Held, that the bequest to the MethodistChurch, of which the tenant for life was a member when she died, was valid, and that the uses thereof could be enforced in Chancery, (a)</p> <p>The statute 43 E!iz. c. 4, in relation to charitable uses, has never been adopted in this State ; but, independently of any statute, the court of Chancery has jurisdiction to enforce all charitable uses, except, perhaps, a charity at large, the power to enforce which, probably, belongs to the Legislature.</p> <p>(a) Vide Gibson vs McCall, 1 Richardson’s Rep. 174- R-</p>

Before Dunícín, Ch. at Charleston, June, 1843. The facts of this case will be sufficiently understood from the decree of the Chancellor, which is as follows: In August, 1825, the complainant, a merchant of Savannah, shipped to Wilmington, North Carolina, a quantity of bagging for sale. It was consigned to J. A. Berry & Co. commission merchants of that place, and was invoiced at one thousand, eight hundred and forty-eight dollars, 60 cents.

Before Johnson, Ch. at Charleston, February, 1843. This was a bill by one of the distributees, for an account of the estate of Doctor John Sen Trescot. The bill stated that Doctor John Sen Trescot died intestate, in 1820, leaving a considerable estate, both real and personal, and leaving as his dis-tributees, his widow, Caroline C. Trescot, afterwards Caroline C. Follin, and two infant daughters, of whom the complainant Caroline was one.

Before Harper, Ch. at Georgetown, January, 1842. Bill for specific performance, and to restrain the enforcement of a judgment at law. The facts of the case are so fully detailed in the opinion of the Court of Appeals, and in the former report of this case, (see McM. Eq. 126) as to render any statement here unnecessary.

<p>Before JOHNSON, Ch. at Charleston, Jaxiuary, 1842.</p> <p>The Chancellor. In December, 1821, the late Benjamin Elliott was elected Commissioner in Equity for Charleston district, and on the 28th day of the same month entered into bond to the State in the penalty of $30,000, with a condition that it should become void if the said Benjamin Elliott, his heirs, executors and administrators, should well and truly account for and pay over, (whenever lawfully required,) all such sums of money, evidences of debt, and other securities, as should come into his hands by virtue of his said office ; and should well and faithfully discharge and perform the duties of his said office during the whole time that he might continue therein. Defendants, Henry L. Pinckney and James Jervey, were sureties to this bond, as were also the late James Lowndes, the complainants’s testator, and the late Hon. Thomas Waties. Immediately thereupon, the said Benjamin Elliott entered on the duties of the said office, and continued therein for the space of four years, but in the .end failed to account for divers sums of money which came into his hands in virtue of his said office, whereby the condition of the bond was broken.</p> <p>Benjamin Elliott died in 1836, and administration of his estate has recently been granted to the defendant, Thomas O. Elliott.</p> <p>In 1834 a suit was commenced on the said bond against James Lowndes, complainants’s testator, for a breach of the condition by the said Benjamin Elliott, in not paying over to Mrs. Mitchell certain moneys which he had received to her use ; and at May term, 1837, judgment was rendered against him for debt, interest and costs, amounting to $1861 13, which sum was paid by complainants’s testator.</p> <p>Benjamin Elliott is supposed to have died insolvent, and the bill prays that an account may be taken to ascertain the extent of the liability of the sureties for breaches of the condition of the bond, and that if any should prove insolvent, those who are solvent may contribute equally.</p> <p>The defendant, Thomas O. Elliott, exhibits with his answer' an account of the estate of his intestate which came into his hands to be administered, and of his liabilities ; from which it appears that there were judgments against himin his life time for $9253 26, and of course entitled to precedence of this demand, and that the assets amounted only to about $1400.</p> <p>Defendant, James Jervey, insists in his answer that the complainants are bound to shew the insolvency of Benjamin Elliott, before they can call on their testator’s co-sureties for contribution ; and he states that in 1820 the said Benjamin Elliott conveyed to the complainants’s testator, James Lowndes, real estate of considerable value, in trust for the use of the wife of the said Benjamin Elliott, for life, remainder to the use of the children of the marriage, and that the conveyance was purely voluntary; and insists that this estate ought to be exhausted before complainants could call on the co-sureties for contribution. No evidence was offered on this part of the defence, and no notice was taken of it in the argument. I shall not, therefore, again recur to it.</p> <p>This defendant joins in the prayer of the bill, that an account should be taken to ascertain the extent of the liability of the sureties, and admits his liability to contribute rateably.</p> <p>Defendant Henry L. Pinckney, in his answer insists, that in the event of the sureties being held liable, he ought to be credited with certain sums of money which he had been compelled to pay as one of the sureties.</p> <p>The Hon. Thomas Waties died in 1828, and Thomas Waties, one of his executors, died before the filing of the bill; and Orlando S. Rees, the surviving executor, states that himself and his co-executor had fully administered the estate of their testator, and made distribution of both his real and personal estate, according to the directions of his will, in 1833, and that he had no notice of the liability of his testator, or of this demand, until 1837 ; and he insists on these circumstances as a bar to his liability.</p> <p>The devisees of the Hon. Thomas Waties, who were subsequently made parties, insist that the statute of limitations is a bar to their liability, as they had been more than four years in possession of their legacies before they were made parties to this bill.</p> <p>At June term, 1839, an order was obtained directing Gray, one of the masters of the court, to take an account of the debts and assets of Benjamin Elliott, the late Commissioner, and give notice to his creditors to prove their demands. To enquire particularly into the amount of debts due and owing by him on his official bond as Commissioner of the court. . To enquire also, and report, what sums had been paid by his sureties to the said bond respectively, and in what manner they should be charged, in order to an equal distribution towards the satisfaction of the bond.</p> <p>In pursuance of this order, the master caused notice to be published calling on the creditors of Benjamin Elliott to come in and establish their demands ; and he reports that official debts to the amount of $15333 93, for which the sureties to his bond were liable, were established, and an account of his assets and other private debts, from which it appears that the assets amount to about $1840, and his private debts, principally on judgments, to $3964 97-100.</p> <p>No exception has been taken to the master’s report on assets or the private debts of Benjamin Elliott; but the sum of his official debts is made up of several separate demands, most of which have given rise to much-contested questions brought up in the form of exceptions to the report. These I shall proceed tp Consider in the order they are set down in the report, referring as well to the evidence as to the report for the facts out of which they arise, beginning with Elliott’s account as Commissioner, with—</p> <p>1st. The estate of the late Rev. Doctor Donald M£Leod.</p> <p>It seems that many years ago Dr. M'Leod intermarried with Elizabeth Bailey Seabrook, the widow of John Seabrook. Previous to the marriage, a settlement was entered into, by which a considerable estate, consisting of a plantation and negroes, was limited to their joint use during their joint lives, then to the survivor for life, remainder to the issue of the marriage in fee, and in default of issue over, (fee. and William Seabrook and Joseph James Murray were nominated trustees of the settlement, but it seems that they never accepted or acted upon the trust. In 18— Dr. M'Leod sold the plantation to Joseph James Murray, and his wife joined in the conveyance. Mrs. M'Leod died in 18— leaving a daughter, Sarah, the only issue of the marriage, now the wife of Dr. J. B. Whitridge. Dr. M'Leod died in 1820, having previously made his will, by which, after many pecuniary legacies, he gives all the residue to his daughter Sarah, and nominates her executrix, and C. G. Capers and another, executors. The will was proved by Capers, who qualified on 24th February, 1821, and Sarah, the daughter, qualified on the 29th of the same month, she being then a minor. Some time after, she intermarried with Dr. Whitridge, and thereupon it seems they filed two separate bills in this court to ascertain their rights under the marriage settlement and the will of Dr. M'Leod ; but all the original records have been lost, and all that can now be ascertained of their contents and object are found in the journals, orders and decrees of the court. From these it may be collected with reasonable certainty, that one of the bills was against William Seabrook and Joseph James Murray, the trustees of the marriage settlement, and that the object was to avoid the conveyance from Dr. M'Leod and wife to Murray for the plantation mentioned in the marriage settlement; and the other against C. G. Capers as executor, and others, persons entitled to the specific pecuniary legacies under the will of Dr. M'Leod — the object of which seems to have been to enable Mrs. Whitridge to elect to take under the marriage settlement instead of the will of Dr. McLeod. It does not appear at what time these bills were filed, but the answer of the defendants in the last case appears from the file book to have been filed on the 1st November, 1822; the bill must therefore have been filed before that time. At March term, 1823, an order was made directing the Commissioner to ascertain and report the amount of debts due by Dr. M'Leod, and whether a sale of his estate would be necessary to meet them. The Commissioner made his report at the same term, recommending the sale, and thereupon an order was made directing the Commissioner to sell the whole estate, real and personal. The Commissioner, Elliott, in pursuance of this order, sold the whole estate, in April, 1823, and Dr. Whitridge became a purchaser, to the amount of $17,400, for which he gave his bond to the Commissioner; and at November term, 1823, an order was made that all the outstanding debts due the estate of Dr. M'Leod, be placed in the hands of the Commissioner for collection, by suit or otherwise. Various other orders are found in the journal, which have no other bearing on the case than to shew who were the parties to the bill, from which I have deduced the conclusion that they were the persons I have before supposed.</p> <p>At January term, 1825, Chancellor DeSaussure pronounced a decree embracing both the causes. They are entitled on the decree “ J. B. Whitridge et ux. vs. the Representatives of Joseph James Murray and William Seabrook,” and “ The same vs. Legatees of Dr. M‘Leod.n After stating the circumstances, the decree goes on to declare that Dr. Whitridge and wife were entitled, and had elected, to take under the marriage settlement, instead of Dr. M'Leod’s will, and that she was no longer to be considered as executrix, in consequence of her having qualified when a minor. Amongst other things, the Commissioner is authorized “ to collect the debts due the estate of Dr. M'Leod,” using, if need be therefor, the names of the complainants and of the defendant Gabriel C. Capers, who also qualified as executor, and to marshal the assets and pay the debts and legacies as far as the assets would extend.</p> <p>The commissioner of the court was, by law, entitled to hold his office for the term of four years, and the master reports that Elliott executed his official bond, and entered on the duties of his office on the 8th December, 1821, and it expired, of course, on the 8th of December, 1825. He also reports, that Elliott received large sums on account of Dr. Whitridge’s bond, given for the purchase of McLeod’s estate, a part before, and a large sum after, the term of his office expired, and that a considerable balance in his hands is not accounted for. Out of these circumstances certain questions arise, which I shall have occasion to consider in connexion with other claims against the, sureties to Elliott’s official bond.</p> <p>2nd. The next in order is the account of Elliott with the Taylor estate.</p> <p>By the marriage settlement of William M. Taylor and Martha, his wife, an estate, consisting of a plantation called Folly Island, a lot in the city of Charleston, a gang of negroes, and other personal property, were conveyed to trustees, in trust for the use of the said Martha, for life, remainder in fee to the issue of the marriage. After the death both of William M. Taylor and his wife, the children, in a proceeding entitled ex parte Mary S. Darby et dl. petitioned the court for a writ of partition to divide the estate amongst them according to the provisions of the- deed of settlement.</p> <p>A writ of partition accordingly issued, and the commissioners therein named returned that they had made partition of a few articles, principally household furniture of inconsiderable value, between the parties, and recommended the sale of all the residue, including Folly Island, the lot in Charleston, and the negroes, and some other articles of personalty. On the 19th March, 1822, an order was made confirming the report, and it was also ordered, “ that the property recommended to be sold, shall be sold, on the following terms; — one-third cash, the balance, secured by mortgages of the property, and bonds with personal security, payable, by annual instalments, in one, two and three years.”</p> <p>In pursuance of this order, Elliott, the commissioner, sold all the negroes and other chattels, on the 6th and 11th June, 1822; and the lot in Charleston, on the 28th April, 1825 — of the proceeds of which, he received one-third in cash, and took bonds for the remainder, according to the direction of the order for the sale. Of these, he received a part while he remained in office, and the remainder afterwards. He sold Folly Island on the 8th November, 1827, nearly two years after he had gone out of office. The proceeds of all the sales, after deducting the charges, amounted to $15,694 89, to be distributed amongst the parties interested, being four in number, Martha P., Elizabeth R., William H. Taylor, and Mary S. Darby.</p> <p>The proceeds of all the sales were received by Elliott, and payments were, from time to time, made by him to the parties, which, with the interest computed to the 21st January, 1832, left a balance due to Martha P. Taylor, of $464 51; to Elizabeth R. Taylor, $491 57; to Mary S. Darby, $283 71; and to William H. Taylor, $183 71.</p> <p>The commissioner also reports that Elliott was indebted to Martha P. Taylor, $905, and to Elizabeth R. Taylor, $585, “for other moneys arising out of the sales of the same estate,” and that he gave to them, respectively, bonds for the payment thereof, with the defendant, Henry L. Pinckney, as surety. These bonds were sued, and judgment obtained on them. The first was paid by Mrs. Ramsay, for the relief of Pinckney, and she took an assignment of it, and the other was paid by Pinckney; and these, the commissioner submits, cannot be charged against the sureties on Elliott’s official bond, as the new bonds were an ex-tinguishment of Elliott’s official liability.</p> <p>3d, Pending the proceedings in the matter of ex parte Mary S. Darby, Elizabeth Mitchell instituted a proceeding in the court against William H. Taylor et al. claiming the right of dower in Folly Island, and praying a writ for the admeasurement thereof, and on the return of the summons, the court decreed that she had released her right of dower, by agreeing to accept in lieu thereof an annuity for life of twenty-one pounds, chargeable on the said lands, and it was ordered, “that the sum of $1400, part of the proceeds of Folly Island, be invested by the commissioner in public stocks, the annual interest of which is to be received by Elizabeth Mitchell, in lieu of her annuity.” This order was made on the 19th of March, 1822. Folly Island, as before remarked, was not sold until November; 1827, and then Elliott retained the money in his own hands, instead of investing it in pursuance of the order. It was for this defalcation that the suit was instituted by Elizabeth Mitchell, and the recovery had against the complainant’s testator, and to which, in their bill, they pray the co-sureties of their testator may contribute.</p> <p>4th. The fourth, and only remaining claim, offered in evidence against the sureties of Elliott, and allowed by the report of the master, is in behalf of Packard, administrator of Robert Roulain, amounting to $314 50; including interest .up to 1842.</p> <p>It does not very clearly appear, from the documents accompanying the report, how this demand originated. I collect, however, from an order of the court of the 1st March, 1823, that a suit had been brought by Mary S. Darby, administratrix of R. A. Darby, against Morton A. Waring and others, the object of which appears to have been to marshal the assets of the estate, and pay the debts, and that Roulain, Packard’s intestate-, was entitled to recover out of it the sum above stated, and on the day last mentioned, the court, after reciting that the orde'rs before made in the cause could not be carried into effect beneficially to the parties, orders, “ that the Commissioner in Equity,” (Elliott) “ do receive all the papers and money of the estate into his hands, he giving the administratrix a receipt for the same, and that he be directed to place the money at interest, and when the claims in dispute are disposed of he make division among the creditors.”</p> <p>On the 16th May, 1823, Elliott acknowledges, in writing, to hav’e received from Mary S. Darby, the administratrix, in pursuance of the foregoing order, $3,4-20 38, in cash and bonds, and other evidences of debts due the estate to a considerable amount; and by a certificate dated the 15th April, 1836, he acknowledges a balance of $225, then due the estate of Rou-lain, from the estate of Robert A. Darby, which had “ been placed in his hands by the court of equity.”</p> <p>The Master concludes his report, by recommending that the sureties to Elliott’s official bond be charged with all the moneys received by him, whether before or after the expiration of the term of his office, on account of the estates of Dr. McLeod, "William M. Taylor, Robert A. Darby, and the sum directed to be invested to pay the annuity of Elizabeth Mitchell.</p> <p>The exceptions to this report give rise to the following questions.</p> <p>1st. Whether the sureties of Elliott are liable for moneys received by him after the expiration of his term of office.</p> <p>2d. Whether they are liable for moneys received by him on account of the moneys, bonds, notes, accounts, (fee. due the estates of Dr. McLeod and Robert A. Darby, placed in his hands under the orders of court before referred to.</p> <p>3d. Whether the statute of limitations is a bar to the complainants’s claim to contribution from the legatees of Judge Waties.</p> <p>4th. Whether the sureties are liable for interest on balances found due by Elliott, for the principal of which they are liable.</p> <p>1st. Many cases have been referred to in the argument to shew that the sureties for a public officer for the faithful discharge of the duties of his office, are not liable for acts done, or moneys received by him, colore officii, after the expiration of the term of office. They clearly establish that position, and it is a matter of surprise that such a question should ever have been seriously raised. An official bond is but a contract, and must, of course, be construed by the same rules as other contracts ; and when the sureties undertake that their principal shall faithfully discharge the duties which the office requires of him, it is impossible, by any process of reasoning, to infer that it was intended that they should be liable for acts done by him after his office had expired, and in violation of law. By the Act of December, 1821, 7 Stat. 324, the master or commissioner of the court is required, on the expiration of his term of office, to deliver over to his successor “ all papers and documents appertaining to his office, together with all the moneys, bonds, notes, certificates of stock, and other property, received and held by him under the authority of the court, within twenty days after the date of the commission of his successor,” and it would seem that the Legislature, not content with the limitation imposed by law on the term of his office, intended to put it out of his power to do any act under color of it after it had expired.</p> <p>In the case of Hunt vs. Elliott, 1 Bail. Eq. 90, decided in 1822, it was held that the former commissioner of the court, after the term of his office had expired, might go on and complete the sales of estates which had been advertised for sale by him before he went out of office, and if that was the law, I concede that his sureties would have been liable for them; it would have been done in pursuance of the duties of his office. But that case was solemnly and directly overruled in Gray vs. Keith, decided in the Court of Appeals in 1832, (not reported) in which it was held, for reasons too palpable to require repetition, that a commissioner or master had no authority to sell after the expiration of his office, although the property had been advertised by him before, or to do any other official act.</p> <p>The case of Hunt vs. Elliott was referred to as establishing a rule of the court authorizing Elliott to sell Folly Island, and to receive moneys after he went out of office, and I concede that the decision in that case was well calculated to mislead, but as a rule of the court, it will not be permitted to contravene the law of the land, nor to disturb the rights of property.</p> <p>It follows that Elliott’s sureties are not liable for any moneys received by him after the expiration of his office, either from the sales of property made by him, or otherwise, and that the co-sureties of complainants’s testator are not liable to contribute to the payment of the amount recovered by Elizabeth Mitchell against Mr. Lowndes, because that demand was on account of the sales of Folly Island, after the expiration of his office.</p> <p>2d. If the custody of the moneys, and of the bonds, notes, accounts, (fee., of the estates of M’Leod and Darby, and the collection and receipt of moneys due upon them, devolved on Elliott, as part of the duty of his office, then, of course, his sureties are responsible; and whether it did, or did not, is the question to be considered.</p> <p>At the time of these transactions the Commissioner of the court was authorized by law to exercise all the powers and perform all the duties of the Master, and was, of course, liable to the same responsibility. The two offices were indeed identical, differing only in name. Since that time, by an Act of the Legislature, although the two officers are retained, they are both designated as Masters, and, as before, exercise the same powers.</p> <p>Before the Revolution, the powers of the Court of Chancery were exercised by the Governor and his Council, and neither the legislative or judicial history of the court, up to that period, furnish any information as to the duties of the Master of the court. The existence of such an office is first recognized in the Act of 1721, but there is nothing in it pointing to the duties of it. But that Act directs that the proceedings and determinations of the court shall be according to the known laws of England. Numerous Acts have since been passed, prescribing the mode of appointment, term of office, and the security required of him for the faithful discharge of the duties of his office, but none of them prescribe any 'duty, except the Act of 1791, 7 Stat. 259, sec. 6, which requires him to make sales of all property ordered by the court; to ascertain his other duties we must therefore look to other sources.</p> <p>The general organization of the Court of Equity of this State, is based on the English Court of Chancery. The mode of proceeding is the same, the same formula of process and pleading are used, and the decisions of that court are regarded as authority here, so far they are applicable to the state of things existing here, unless they have been varied or changed by positive enactments. of the legislature, or by the adjudication.and usage of our own courts. It is, therefore, legitimate, in the absence of any rule of our own, to look into the duties required of the chancery officers there, to ascertain what they are here.</p> <p>It must be unprofitable, in the discussion of this question, to enter into a detail of the duties required of that phalanx of officers which are attached to the Court of Chancery in England. From the nature of their offices, none of them can be supposed to have any thing to do with funds or other things brought into court, or funds arising from sales made under the order of the court, except the Master and the Accountant General. The power of the Master over this subject, is that of selling estates under the order of the court; 1 Smith’s Ch. Pr. 9 ; but even he-has no authority to receive the proceeds of the sale. His duties are, indeed, inconsistent with the exercise of such an authority, as to him belongs the power of appointing Receivers,' and compelling them to appear before him. The Bank of England is the repository of all the funds in court, whether arising from sales or otherwise. Ibid, 22. In 2 Smith’s Ch. Pr. 191--2, the precedent of an order will be found, when, after the sales had been confirmed and completed, the purchaser was directed to pay the purchase money into the bank. • Nor is the Accountant General entitled to receive or keep funds or effects in court; they are to be paid or deposited in bank in his own name, and his duty in relation to them consists in keeping an account with the bank, according to the causes and accounts to which such money and effects severally belong. 1 Smith’s Ch. Pr. 22. In cases where it is unsafe or unreasonable that either of the parties should have the possession of lands or other things in question in the court pending the suit, some one standing indifferent between the parties is appointed a Receiver, who is required to enter into recognizance, with sureties, for the iaithful discharge of his duties, and he is bound to place the . funds which come into his hands, in the bank, with the knowledge of the Accountant General, and to account to the Master. 1 Smith’s Ch. Pr. 628, chap. 10. 'The orders of the court, directing the monies, bonds, notes, accounts, &c., of the estates of M’Leod and Darby, to be placed in the hands of Elliott, so far as they required him to collect and receive the money due on them, are precisely those required of a Receiver in England, and did not, I apprehend, pertain to the duties of his office as Commissioner.</p> <p>The usage of the court has been referred to, as appropriating these duties to the offices of Masters and Commissioners, and it is true that it has been done very frequently, and through a long period of time, but my own experience is, that it never has been done, (or if done at all, in rare instances,) when a suitable person could be obtained to discharge the duties, or against the consent of the parties. So much for the usage. The well known history, of the Act of 1821 is, that it was intended to prevent the abuses growing out of the habit of some of the Masters and Commissioners of the court, with a view to their own emolument, to recommend, by report, that funds or estates in controversy should be subject to their control and management. But whatever might have been the law or the usage before, that Act, the Act of 1821, puts an end to the matter. By the very terms of the Act, he is required, when appointed Receiver, to give bond and security to the judges of the court, in a sum equal to twice the value of the estates intrusted to him, for the faithful discharge of his duties. It may be that the parties might consent to his acting in that character, without giving the bond and security, but if the bond was intended for no more than a protection to the sureties to his official bond, and the parties have dispensed with it, they must take the consequences. The sureties of Ellio.t are not liable, therefore, for any moneys received by him under the orders of the court directing him to receive the moneys, bonds,, notes, accounts, &c., of the estates of M’Leod and Darby.</p> <p>3d. The statute of limitations is no bar to the claim of the complainants against the legatees of Judges Waties, for contribution, to the extent that their testator was liable. The statute cannot operate until there is a liability and a right to sue. The complainants had no right to sue until they had paid the amounts recovered against them by Mrs. Mitchell, which they did but a short time before the filing of the bill.</p> <p>4th. Generally, public officers entitled to receive moneys for others, are not liable for interest on moneys in their hands, until a'demand is made; but that rule proceeds on the supposition that he has it ready to be paid when demanded, and 'does not obtain when he has misapplied them, or appropriated them to his own use. Spencer vs. Gibbes, Dud. Eq. 177--8--9. That is the case here, and Elliott’s sureties are liable to the same extent that he would have been, and are chargeable with interest on all sums retained by him, when received in his capacity as Commissioner.</p> <p>It is, therefore, ordered and decreed, that the accounts be referred back to the Master, to be restated according to the principles of this decree.</p> <p>The legatees of the Rev. Dr. M’Leod appealed, on the grounds :—</p> <p>1. That the sureties of a Master in Chancery are responsible for all acts done by him under the order of the court.'</p> <p>2. That they are responsible for all bonds, stocks, money, and choses in action, which came into his hands virtute officii, and which are not accounted for, or delivered up by him, at the expiration of his office.</p> <p>3. That his securities are accountable for all the Master’s acts which might properly belong to a receiver, wherever he is appointed to do the duties of a receiver by the court, without being at the same time required to give security in the special case.</p> <p>E. It. Taylor, Martha P. Taylor, and others, children of William M. Taylor, appealed, on the following grounds :—</p> <p>1. That the said appellants were entitled to a decree in this case against the sureties of the late B. Elliott, Commissioner in Equity, for the sum of fourteen hundred and twenty-two dollars, seventy-one cents, decreed against B. Elliott, in the decree filed in 1836, in the case of Eliza R. Taylor and others vs. Benjamin Elliott, late Commissioner, with interest from that date.</p> <p>2. That at the hearing of the cause, at January term, 1842, the accounts rendered by Benjamin Elliott to the children of William M. Taylor, of the sales of the personal estate of William M. Taylor and wife, made during his term of office as Commissioner, in 1822, were given in evidence, from which it was proved that B. Elliott paid to Mrs. Elizabeth Mitchell, for her dower on Folly Island, from the moneys arising from the sales of the personal estate, five hundred and fifty-eight dollars; which payment was unauthorized by the decree, and in violation of Mr. Elliott’s duty as Commissioner, and being a default, for which his sureties were responsible, the appellants were entitled to a decree for that amount, with interest from 20th January, 1826, the day when he was required by the Act of 1821 to deliver over all moneys in his hands to his successor in office.</p> <p>3. That these accounts, above referred to, formed a part of the evidence on which the decree in 1836 was predicated, which decree was before the court in the present case, as the appellants’ demand, and the misappropriation of the said sum of five hundred and fifty-eight dollars being so manifest, and the fact not having been disputed at the hearing, it is respectfully submitted, a decree should have been made for refunding that amount, with interest, by the sureties, without the necessity of further references.</p> <p>The administrator of Roulain appealed, on the grounds following : — •</p> <p>1. That the funds received by Benjamin Elliott, from the estate of R. A. Darby, were paid to him during his term of office, for which the' sureties to his official bond were responsible.</p> <p>2. That the debt claimed by the appellant was fully established, and should" have been decreed to be paid.</p> <p>The complainants also gave notice of appeal as follows:</p> <p>The complainants pray that so much of the decree as rejects the claim of Mr. Lowndes for contribution against his co-sureties on account of the money paid by him m satisfaction of Mrs. Mitchell’s judgment on the official bond, may be reversed; or else, that the cause may be remanded for further inquiry in this particular.</p> <p>The decree rests on the ground that the rules and practice in England, of the present day, are to govern. This we deny, and contend, that in the absence of any rule of practice laid down by our own courts or adopted by our Legislature, we are to look for our guide, not to the chancery practice as it now exists in England, but to that practice as it existed at the time our first Court of Chancery was organized. ■ The first Act establishing a Court of Chancery in South Carolina, was passed in 1720. This Act is lost, but its title will be found in Trott, 333. The next Act was passed in 1721 ; Trott, 460 ; P. L. 110 7 Stat. 163. It repeals the Act of 1720, and its § 10 provides “that the court shall proceed, adjudge and determine in all causes, as near as may be, according to the known laws, customs, statutes and usages of the kingdom of Great Britain ; and also, as near as may be, according to the known and established rules of his Majesty’s high Court of Chancery in South Britain.” This is the only authority which the court ever had, for saying that the practice in England is to govern in this State. What, then, does the Act mean 'l Not, surely; that the Chancery practice in this State shall fluctuate with the English practice. That every statute passed in England shall be law in this country. That every rule adopted by the Chancellor there, shall be the rule here. Surely the Act meant no such thing. What it meant was this : that the rules which existed in England at the time the court was organized — in 1721 — should be the rules in this country. It is important, then, to enquire what was the practice in England in 1721. Was it the same in relation to the master’s duties as exists there now,, and as laid down by the Chancellor? Harg. Ess, 307, 8, 9; Fleta, Book 2, ch. 13 ; 4 Inst. 407; Com. Dig. Chancery, B. 5; Har. Ch. Pr. 73, 79, 80, edition 1791. These authorities shew what those duties were, and they are almost identical with his duties in this State, according to established usage. In England the whole practice in relation to the duties of the masters, and in many other respects, was altered in 1725, four years after our Act was passed. Stat. 12 Geo. 1, c. 32; 5 Eng. Stat. 591. This statute was passed in consequence of certain malversations in office, made manifest on the trial of Lord Macclesfield, 16 State Trials, 762.</p> <p>What was the practice in this State under the Act of 1721 ? All the offices here were blended into one, the master’s, except the register’s. 1 Des. 107. The cases of Earnest vs. Muller, 1 Des. 115, (1785.) Salvador vs. Rapley, lb. 126, (1785,) and Read vs. Prince, lb. 142, (1787,) and the rule of court of 1811, lb. 64, shew the practice of the court, and that the master, as master, was required to discharge the duties of receiver. The case in Bail. Eq. 468, shews how far the usages of the court are law.</p> <p>The power of the court to make rules which operate as law, cannot be questioned. In Hunt vs. Elliott, Bail. Eq. 93, decided in 1822, it was made a rule of court, that a master in Chancery might sell property after his term of office had expired. This case was overruled in 1832, in Gray vs. Keith. Now arises the most serious question in the case. Will the court say that all sales made under the rule of 1822, were void ? The consequences will be monstrous. Can the rule of 1832 have a retroactive — an ex post facto — operation 1 Such an Act by the Legislature would be void; and has the court higher powers than the Legislature?</p> <p>As to the liability of the sureties, for the monies received on Dr. Whitridge’s bond, he cited the 6th sect, of the Act of 1821, 7 Stat. 324.</p> <p>contended that Elliott, under the orders respecting M'Leod’s and Darby’s estates, acted as receiver and not as master. He cited 2 Story Eq. 129; 8 Com. Dig. 890; Har. Ch. Pr. 16 ; 2 Com. Dig. 359 ,• 3 Peters Dig. title Sureties, pi. 2, 3, 4, 10, 18; 3 Madd. Rep. 221 ; 2 John. Ch. 554 ; 7 Johns. 332; 1 Story Eq. 320: 2 Ball & Beat. 65.</p> <p>He further contended, that the complainants have no right to call on the co-sureties of Mr. Lowndes for contribution, on account of the amount paid on Mrs. Mitchell’s judgment.</p> <p>Are the sureties liable for the monies received on Dr. Whitridge’s bond, after Elliott went out of office ? In considering this question, it should be borne in mind that Dr. Whitridge was executor, in right of his wife, of M‘Leod; that only one instalment of the bond became due -before Elliott’s term of office expired, and that the bond was ultimately delivered by Elliott to his successor. Before the sureties can be charged with the receipts of moneys, should it not be shewn that those receipts were valid 1 Now, if those receipts were valid, Elliott must have acted either as master or receiver. He did not act as master, because his term of office had expired; if he acted as receiver, his sureties as master are not liable.</p> <p>The liability of a surety cannot be extended beyond the terms of his contract. 9 Wheat. 703 ; 6 East, 508, 513 ; 2 Hill, 590 ; 1 McC. 41 ; 1 Des. 450; 12 Wheat. 505. The condition of Elliott’s bond is, that he shall faithfully discharge the duties of his office. If the receipt of the money was not a part of those duties, upon what principle of justice can it be held, that the not accounting for it is a breach of the bond ?</p> <p>A master cannot be appointed receiver; 1 Smith Ch. Pr. 633. This w-as the law in South Carolina until 1821. 6 Ves. 467. It is entirely a non sequitur, that under the Act of 1721, the practice in England, previous to that year, was adopted in this Province. -7 Stat. 192. This Act, passed in 1746, repealed, in part, the Act of 1721; and, inter alia, provided that the proceedings in this Province should conform to the practice of the courts of Chancery in America. There is no such practice in any State, as a master’s receiving moneys. The duties of masters are, as councellors and assistants of the Chancellor. Harg. 295-6 ; 1 Smith Ch. Pr. 9, 10. He further cited 7 Stat. 258; Amb. 599 ; 2 Hill, 406.</p> <p>As to the claim for the proceeds of Folly Island, he said, if it were not for the case of Hunt vs., Elliott, it never could be imagined that the sureties were liable. It is a mistake to suppose that a rule of court was made in that case; it was merely a decision in a cause. The case of Gray vs. Keith overruled that case. The argument, as to judicial legislation, applies to every case in which the court is called on to settle a question.</p> <p>contended,</p> <p>1. That, by the common law, the duties of master and receiver are distinct.</p> <p>2. That there has been no change in South Carolina in this respect.</p> <p>3. That the duties assumed by Elliott, were those of a receiver ; and</p> <p>4. That the sureties on a master’s official bond are not responsible for his acts as receiver.</p> <p>The masters in Chancery are the councellors of the court; 1 Har. Ch. Pr. 58; and whatever the master can do for the Chancellor, the Chancellor can do for himself at the Common Law. The only exception made by statute, is in the case of sales.</p> <p>What is a receiver ? He is the hand of the court, as the sheriff is the hand of the judge. He is the sequestrator before the decree, as the sheriff is the sequestrator after it. 1 Ch. Ca. 91; 3 Swanst. 279, 109 ; 1 Har. Ch. Pr. 191; 3 Atk. 564; 2 Yes. 400; 2 Madd. Ch. 245; 1 Yes. Jr. 165 ; 15 Yes. Jr. 283; Stat. 12 Geo. 1, c. 32. Money brought into court for safe keeping, was paid to the usher. 16 State Trials, 767. When it was to be laid out on security, it was paid to the master; but this was not until after the decree. In this State, there is no usher, no accountant general; and admitting that the master is both, yet he is no receiver. The master is a depositary, merely — a treasurer. The receiver is the overseer, who puts out the money on interest — collects it — makes it. The master is the keeper of the money when it is made. The distinction between the master and receiver is not more broad, more obvious, than that between the cashier and the collecting clerk of a bank. That distinction was well known, previous to 1721; 3 Story Com. 33, 651; 8 Yiner Ab. 160 ; 3 P. Wms. 379 ; 2 Bro. P. C. 504.</p> <p>The usage of the court has been referred to, but mere practice will not make law. The principle of communis error facit jus, does not apply to orders.taken by consent. Produce the case in which an unwilling master was forced to act as receiver, or where the surety was made to pay, and a precedent will be admitted. All the orders in the cases cited were taken by consent; can such practice make law ? Masters have often been appointed receivers, but no precedent can be found in which a master’s sureties have been made liable for his acts as receiver.</p> <p>The decree of January, 1825, in relation to M‘Leod’s estate, inter alia, provides as follows : “ that the commissioner be, and is hereby, authorized and required to collect the debts due to that; estate, using, if need be therefor, the names of the complainants and of the defendant, Charles Gabriel Capers, who also qualified as executor on the estate; and that the said commissioner do marshal the assets of the said estate, and pay therefrom, as the same may be realized, the debts due by the said estate, according to their rank, rateably and proportionably; and after the payment of the said debts, that the said commissioner be, a.nd he is hereby, authorized and required to apply the remaining assets of the estate, as they are realized, in paying the legacies given by the will of the said Donald MfLeod, with the interest thereon, ratea-bly and proportionably; and should any surplus remain after the payment of the said debts and legacies, then that the same be invested, subject to the residuary uses and limitations of the said will.” Does not this decree place the commissioner in the stead of the executors, and is not this the very purpose for which a receiver is wanted ?</p> <p>As to Dr. Whitridge’s bond, the master, as such, was doubtless liable for it. But that liability extended only to the bond itself. As to it the master was a mere depositary. He had no authority to collect it. He could not put it in suit, without the order of the court, and no such order was ever made.</p> <p>It is impossible, perhaps, to say where the duties of master end, and those of receiver begin, but this does not prove that they are not distinct. Does not the same difficulty exist, even in the material and physical world 7 Who can say where vegetable life ends and animal life begins ?</p> <p>Can there be any doubt if Elliott had given bond as receiver under the Act of 1821, that the sureties to his official bond would never have been called on ? When the parties on both sides name a receiver, it is not usual for him to give bond. 3 Bro. Ch. C. 365; 1 Dick. 68; Elliott acted as a receiver without giving bond, by the consent of the parties.</p> <p>As to the liability of the sureties for Elliott’s acts after he went out of office, he cited 2 Bro. C. C. 579 ; 2 Ves. Jr. 540 ; 18 Ves. 20 ; 4 John. Ch. 123; 2 Saund. Rep. 412.</p> <p>As to the claim of Mr. Lowndes for contribution, he submitted that, as the judgment was bona fide, the co-sureties were liable. The question was res judicata.</p> <p>Mr. Petigru further cited 2 Atk. 610; 3 Camp. 388; 16 Ves. 346 ; 8 Ves. 192 ; 1 Atk. 489 ; 2 lb. 316 ; 4 Johns. Ch. 619 ; 2 Bail. 199 ; 2 McC. Ch. 304.</p> <p>King, in reply, cited 7 Stat. 192, 165; 1 Har. Ch. Pr. 79; 2 Bro. Ch. C. 483; 2 Atk. 126, 213 ; 2 Sch. and Lef. 26; 2 Cox 377; 3 Russ. 130-7 ; 2 Story Eq. 138 ; 1 McC. Ch. 406 ; 1 Hill Ch. 414 ; Dud. Eq. 232 ; 1 Peters R. 46, 72-3 ; 7 Johns. Ch. 332; 9 Wheat. 737; 1 Bail. Eq. 93; 2 Ball and Beat. 75.</p>

<p>A contract, entered into in France, between husband and wife, and their parents, before the marriage, and in contemplation thereof, whereby the parents mutually stipulated to advance, as a marriage portion, each the sum of forty thousand francs, payable at their, the parents, pleasure, but bearing an annual interest until paid of 5 per cent, with a reservation to the parents of the reversion of the capital in case of their children’s deaths before them without issue — Held, on the testimony of French lawyers, to be a valid contract in that country, and to constitute debts, due by the parents from the date of the marriage, equally binding with other debts : Held further, that the contract was binding in this State, on the father of the wife, and that it was not fraudulent as against his creditors because not recorded here.</p> <p>Such a contract, if entered into in South Carolina, would be valid, semble.</p> <p>The validity and construction of a contract, are to be determined by the laws of the country where it was entered into, though its lien and operation, and all priorities of right under it, are generally limited to that country, and in enforcing or executing it, the tribunals of other countries are not bound to give it any effect, so far as it may contravene the policy of their own States.</p> <p>The Act of 1823, 6 Stat. 213, requiring marriage settlements to be recorded, does not apply to a contract not amounting to a settlement.</p> <p>The Act of 1785, 6 Stat. 636, requiring marriage contracts, &c. to-be recorded, only avoids the instrument, for non registration, as against the creditors of, and purchasers from, the persons taking interests, under the instrument, and leaves it valid as to all the rest of the world..</p> <p>Where a debtor, being the owner of property in this State and elsewhere, by a deed, purporting to convey his whole estate, assigned to trustees his property in South Carolina, intrust, (1) to pay such of his creditors as should within a limited time execute to him releases, and (2) to distribute the surplus, if any, pro rata among his creditors generally, Held, that the concealment of the extra territorial property, was a fraud which vitiated the assignment.</p> <p>Where an assignment for the benefit of creditors was set aside as fraudulent, Held, that judgments recovered against the assignor after the assignment, and after the assigned property had been sold by the assignees, were not entitled to preference over the claims of other creditors, but were to be paid pro rata with them.</p>

Before Johnson, Ch. at Charleston, February, 1843. The late Mr. Stoney, having come under very heavy liabilities for Dudley By indenture tripartite, made the same day, between John Stoney of the first part, John Magrath and James Hamilton of the second part, and “the creditors whose names are signed and seals affixed to these presents,” of the third part, reciting that the said John Stoney is indebted to the parties of the third part, and that they have agreed to release him…

The principal object of this bill was to ascertain the interest which James S. Mitchell had in the estate of his father James Mitchell. James Mitchell died testate in the year 1831, leaving surviving him, his widow, Margaret, and nine children, of whom James S. Mitchell was one. The widow Mrs. Mitchell died in 1838. James S. Mitchell died in 1842, unmarried and without issue, leaving seven brothers and sisters surviving him.

Before Dunkin, Ch. at Charleston, February, 1845. Robert Foxworth, by bis will, after devising his plantation and a part of his personal estate to his wife, during her life or widowhood, devised as follows, viz : “ To my two children, Jane Maria Dehay, and Julia S. Fox-worth, and to their issue, I give and bequeath all the rest and residue of my estate, real and personal, to be equally divided between them, including therein the reversion of my plantation and other property…

Before JohnstoN, Ch. at Charleston, February, 1844. The late Mrs. Ann Lehre purchased from the executors of Edward Francis, a plantation in Charleston district, and gave therefor a bond, conditioned for the payment of' $3075, in three equal annual instalments. The bond was secured by a mortgage of the premises.

On the 26th February, 1845, at Georgetown, B. F. Hunt presented a petition to his Honor, Chancellor Johnson, praying an order to the commissioner to sign a writ of injunction, to the following eifect. “ The petition of B. F. Hunt, assignee of Charles T. Brown, sheweth that, on 2d February, 1832, this honorable court granted an injunction against Peter Cuttino and W. S. Smith, administrators of Savage Smith, restraining them from proceeding at law on the bond of the…

<p>An attachment cannot issue to compel a female to pay the amount of a money decree.</p>

Bill for alimony. The bill stated that about the year 1834, the plaintiff intermarried with defendant; that for some time she faithfully and affectionately discharged all the duties of his wedded wife; that she bore unto him one son ; and that about one year after their marriage, he neglected and ill treated her and the child; that he finally entirely deserted his family, and has since continued to live in open and unconcealed profligacy with a concubine, leaving his family…

The bill in this case was filed to foreclose, in the reverse order of their dates and record, two mortgages in favor of the Bank of the State of South Carolina, upon premises in Charleston, known as the Charleston New Theatre. The parties defendants, are James Rose and others, trustees of the Charleston New Theatre Company, a body corporate, James B. Campbell, the purchaser of the property at sheriff’s sale, and the Charleston New Theatre Company.

Before JohnsoN, Ch. at Charleston, June, 1844. This case came before the court on exceptions to the report of Mr. Gray, one of the masters. The report is as follows. “This case was referred to me to inquire and report thereon, and especially to take the account of Mrs. Ann Lehre, executrix, with the estate of her daughter Mrs. Mary Ann Greene, on which the complainant has recently administered with the will annexed.

The bill states that William Edings, by his will, bearing date 23d May, 1834, gave three plantations on Edisto to his widow for life, and after her death to his son John Evans Edings fox-life, with remainder to his issue living at the time of his death that should attain the age of 21 years, or dying before 21 should leave children that should live till such time as the pai’ent would have attained 21; to be divided per stirpes; and in case of the failure of such issue to…

<p>Where a woman, as cestui que trust, has a life interest in property in the hands of a trustee, and owes a debt, her creditor, if she owns no other property to which he can resort for the satisfaction of his demand, may, in equity, subject her income in such property to the payment of his debt.</p>

Before Johnston, Ch. at Charleston, February, 1844. This case came before the court on exceptions to the master’s report. The report stated that John Wagner died on the 3d May, 1797, leaving a will, by which he devised his lands and ne-groes to his son George Wagner, in trust for certain uses and purposes therein expressed. That George Wagner was appointed the sole executor of the will, and that he qualified thereon. That George.

Before Johnson, Ch. at Charleston, June, 1844. By the Chancellor. The defendant’s intestate, who was resident in St. Augustine, East Florida, died in this city when on a visit here in 1834, leaving assets both here and in St. Augustine. Administration of his assets found here was granted to the defendant, and administration of those found in St. Augustine was committed, by the proper authorities there, to one Charles Downing.

<p>Bill by several persons, alleging that defendant, in consequence of his occupancy of a lot and the buildings thereon, was liable to account for the rent to some one or more of the plaintiffs) sustained under the circumstances of the case, and the defendant ordered to account for the rent to one of the plaintiffs.</p> <p>A tenant held to be justified under the circumstances in quitting the premises before the expiration of his lease.</p> <p>The title of a purchaser of lands at sheriff’s sale dates from the time the sheriff’s deed is executed, and not from the day of sale.</p>

Before Johnson, Ch. at Charleston, February, 1844. Held: that this made it incumbent on the plaintiff to shew what consideration he gave for the bill, and not being able to do so, he was nonsuited.

In pursuance of the decree of Chancellor Dunkin, made in this cause on the 17th July, 1843, (see Speers Eq. 520,) a writ of partition was issued by the complainants on the 24th January, 1844, to divide the land and negroes of Hugh Swinton Ball, deceased.

<p> Petition for a re-hearing, addressed to the Court of Appeals. </p>

Before JohNsokt, Ch. at Lancaster, June, 1843. The decree of his Honor the Chancellor is as follows.

Before Johnston, Ch. at Edgefield, June, 1844. The decree of his Honor the Chancellor is as follows:— Alexander Stewart departed this life, the 25th of October, 1824, leaving a widow, Ann Stewart, and two daughters, Martha, the wife of Henry Barnes, and Rebecca, the wife of the defendant, Mosely. T he former of these daughters, Mrs. Barnes, had, at his death, several children.

Before Harper, Ch. at Sumter, June, 1843. This was a bill for the rescission of a contract for the sale of land. A considerable portion of the land in question once belonged to John Baxter Fraser, who by his will devised the same to his four sons. All the sons were alive and had issue living. The title which the complainant purchased was derived though one or more of the sons.

<p>Before DunkiN, Ch. at Lexington, June, 1843.</p> <p>■ The decree of his Honor the Chancellor is as follows :</p> <p>On the 18th March 1840, Henry J. Caughman, with the complainants as sureties, gave their joint and several note to the defendant, Henry J. Drafts, for two thousand six hundred dollars, payable on the 1st of November following. On the 31st December, 1840, they confessed judgment on the said note.</p> <p>On the same day, H. J. Caughman gave his note to the defendant, for one hundred and fifty five dollars, 10 cents, being a compensation, over and above the legal interest, for a stay of execution for one year, or until 1st January, 1842.</p> <p>On the 7th February, 1842, the complainants also signed the last mentioned note, and they, with H. J. Caughman, gave to the defendant another note for one hundred and sixty-three dollars, being a compensation, over and above legal interest, for indulgence on the execution for another year.</p> <p>On the second of January, 1843, Martin Caughman, one of the complainants, paid the defendant two hundred and twenty-five dollars, gave a new note signed by himself and the other complainant, for one hundred and thirty-six dollars, and took up the former two notes, already described.</p> <p>On the 10th February, 1843, the complainants gave the defendant another note for two hundred and fourteen dollars and twenty-eight cents, in consideration of another year’s indulgence, which was over and above the legal interest on the judgment so delayed. On this last note, several payments have been made, and the defendant is using coercive measures to recover the balance.</p> <p>The allegations of the bill are that the payments made by the complainants on the judgment of December, 1840, added to the usurious payments, have fully satisfied that judgment, and the prayer of the bill is, among other things, that the judgment may be satisfied, and the two notes be delivered up to be cancelled.</p> <p>It may be as well first to dispose of the amended bill. The answer of John Black, as well as the evidence, prove, beyond reasonable doubt, that the complainants must have acted under some misconception in this matter. The allegations are entirely unsustained — and the bill as to John Black and John Fox, must be dismissed.</p> <p>Nor does the evidence sustain the allegation, that the consideration of the judgment was infected with usury. The complainants have made a witness of-the defendant Drafts, by the character of the bill, and the answer repels the charge. Besides, the case of Fowler vs. Henry, 2 Bail. 54, is conclusive, that unless the confession of judgment was part of the original agreement, (which is not suggested,) the party is estoped from charging usury.</p> <p>But all the subsequent transactions seem to the court plainly obnoxious to this objection. It was said there was no loan of money, as the judgment was already confessed. But as is said by Mr. Ord, p. 29, “the forbearance is nothing more than lending the 'money for a further time.” The court looks at the transaction “as equivalent to a loan” — see Manners vs. Postan, 3 Bos. and P. 343; Wade vs. Wilson, 1 East, 195.</p> <p>Then it was urged that the payments by the complainants were voluntary. But to this the answer is given by Sir Joseph Jekyll, in Bosanquet vs. Dashwood, (cases Temp. Talb. 37.) It was there insisted that the party “had acknowledged the accounts, and voluntarily paid.” But the master of the rolls decreed that the defendants should account, and that if more than what was due, with legal interest, had been received, it should be refunded. Lord W. Talbot, affirming the decree, said “this court would never see a-creditor running away with an exorbitant interest beyond what the law allows, although the money has been paid. The court would relieve against what was unjust and oppressive, though the party may have submitted for a time to the terms imposed upon him. The payment of the money will not alter the case in a Court of Equity, for it ought not to have been paid. The debtor was oppressed, and his necessities obliged him to submit to these terms. Nor can it be said in any case of oppression, that the party oppressed was partice'ps criminis, since it was this very hardship which he labored under, and which was imposed upon him by another, that constituted the crime.” “Must he keep,” concludes the Chancellor, “what he has no right to, merely because he has got it in his hands.” See Palmer vs. Lord, 6 J. C. R. 103: Dey vs. Dunham, 2 J. C. R. 182.</p> <p>The Court is of opinion that the complainants are entitled to have an account of what has been paid on the notes, and to have the same applied, as far as may be necessary, towards satisfaction of the judgment of Dec. 1840.</p> <p>It is ordered and decreed that the commissioner take an account of the amount due on the judgment in favor of the defendant, crediting the complainants with all payments made thereon, as well as with the payments on account of the notes described in the pleadings, and that he report the result. It is further ordered that the notes of the 2d January, and 10th February, 1843, be delivered up to be cancelled.</p> <p>Finally, it is ordered, that as to John Black and John Fox, executor W. S. Miller, the bill be dismissed at the cost of the complainants, and that they also pay the costs of their own amended bill — and. all other costs to be paid by the defendant Henry J. Drafts.</p> <p>The defendant appealed, on the following grounds, viz:</p> <p>1. Because money paid by a debtor for forbearance, on an existing bona fide debt, cannot be recovered back, even if such payment exceed the rate of 7 per cent, per annum.</p> <p>2. Because the judgment mentioned in the pleadings, is free from the infection of usury, and ought not to be invalidated or credited with the amount of any payments made by the complainants, in order to procure indulgence thereon, which were not intended when made to be applied thereto.</p> <p>3. Because the several payments made by complainants to the defendant Drafts, on the notes described in the pleadings, were not made on said judgment, nor were they intended, either by the complainants or Drafts, when made, to be applied thereto, and the complainants have no right now to have the amount of such payments applied to the credit of said judgment.</p> <p>4. Because the application of the amount paid on said notes to said judgment, would be equivalent to a recovery thereof in a separate suit, to which it is submitted the complainants have no right, in this or any other court.</p> <p>5. Because, if the complainants are entitled to relief, they have a plain and adequate remedy at law.</p>

<p>A case cannot be placed on the docket of the Court of Errors, as involving a constitutional question, without the order of the Court of Appeals which heard the cause.</p> <p>An appeal does not lie to the Court of Errors, on any question, at the option of a party, either from a circuit decision, or a decision of either of the Courts of Appeals.</p> <p>Rules prescribed for the Court of Errors.</p>

<p>If a person, intending to convey lands, request a witness, who is present, to sign his name to the deed for him, which the witness does in his presence ; qucerel is the deed sufficiently executed under the statute of frauds to convey the lands ?</p> <p>Supposing such a deed not to be sufficiently executed to con.vey the lands, then qucerel can the person intending to convey subsequently assent so as to make the deed binding on the parties ?</p> <p>Such an execution is sufficient to pass personal property.</p> <p>The following description in the schedule to a marriage settlement, to wit. “one tract of land on Fairforest creek, containing 150 acres, more or less,” held to include two parcels of land containing two hundred and thirty nine acres, which adjoined, or nearly adjoined, and were regarded as one tract.</p> <p>Where a married woman, whose lands had been settled to be at her disposal after the coverture, joined her husband in conveying the same to purchasers, but relinquished her inheritance only to a part; held, that she had a right to requiie her husband to hold the proceeds of the land in which she had not relinquished her inheritance, subject to the uses of the settlement; aliter as to the part in which she had relinquished her inheritance.</p> <p>The schedule to a marriage settlement contained the following description, “ also the following notes of hand, one given by J. P. to the said Elizabeth” (the settlor) “for $1691, with interest thereon — one given by W. for $1500, with interest thereon.” The settlor owned no notes answering to the description, but owned three notes on J. P., the principal sums of which amounted to $790, and, the interest thereon to $878,70, making, of principal and interest, SI668,70, and seven notes on W. the principal sums of which amounted to $1430,84, and the interest to $1382,59, making, of principal and interest $2813,43. Held, that the deed conveyed the whole amount due by J. P. and $1500 of the amount due by W.</p> <p>Parol evidence would have been inadmissible to shew which notes, or whether all, were intended to be conveyed.</p> <p>Where specific things are described in a will or deed, the existence and qualities of the things which, it is alleged, pass under the instrument, may be ascertained by parol; and when, in this process, two things are proved to exist, each satisfying the description, an ambiguity, previously latent, is created by parol, which parol evidence may remove.</p> <p>But where, of two things presented, neither tallies with the description, it is against principle, whatever anomolous cases may be found in the books, to receive evidence which of them was intended, or whether both were intended.</p> <p>Where a husband used funds in the purchase of slaves which, by marriage settlement, had been conveyed to a trustee for the use of the husband during the coverture, and afterwards to be at the disposal of the wife, and had expressed the intention of taking the slaves out of the State, he was required to give security to refund the principal sum at the expiration of the coverture, and the decree was declared to operate as a lien on his property until he should give the security.</p> <p>The husband being entitled to the interest and profits of the funds during the coverture, held, that the court could not attach a trust upon the slaves, which he had purchased with the funds, further than to declare a lien on them for the amount of the principal.</p>

Before Johnson, Ch. at Sumter, June, 1844. This case grew out of the case' of the State ex relatione Simmons vs. Watson, Ordinary, 2 Speers, 97.

<p>Under the 4th section of the Act of 1795, 5 Stat. 271, a gill or devise to a mistress or illegitimate children, is not absolutely void, but only voidable at the election of the wife or legitimate children.</p> <p>The right to elect, is personal to the wife and children, and cannot be made by their representatives after their decease.</p> <p>The words of the Act, “ if any person who is an inhabitant of this State,” shall settle or convey, &c., mean an inhabitant of the State at the time of the gift or conveyance, and do not refer to the time the Act was passed.</p> <p>Of other matters appertaining to the construction of the said Act of 1795.</p>

<p>Before Harper, Ch. at Greenville, June, 1844.</p> <p>This bill was filed by the next of kin of Daniel Ford, alleging that the devise of his estate, consisting both of lands and personalty, to his illegitimate daughter Elizabeth McElray, the defendant, was void, as to three fourths thereof, under the- fourth section of the Act of 1795, 5 Stat. 271, and claiming distribution of the same among the complainants.</p>

<p>The statute 2d and 3d Edw. 6, c. 8, s. 6, providing for a traverse in the case of a person being found a lunatic on inquest, is, it seems, of force in this State, under the provision of the Act of 1712 declaring of force all statutes which “declare the rights and liberties of the subject and enact the better securing the same.”</p> <p>After inquisition of lunacy found, if the party, or any one having an interest, is dissatisfied with the finding of the jury on the evidence, the proper course is to apply by petition to the court for leave to traverse the inquisition.</p> <p>It is not necessary that a party should have notice of the inquisition by which he was found of unsound mind.</p> <p>The alienee of the lunatic may traverse, or join the lunatic in traversing, the inquisition.</p> <p>Of other matters relating to the practice of the court in such cases.</p>