Volume 19 — South Carolina Reports

Before Frasee, J., Spartanburg, July, 1881. Petition by John Geddes against B. L. Bowden and others, for the enforcement of a lien on the Merchants’ Hotel property in Spartanburg city. The Circuit decree, omitting the statement of such facts as are repeated in the opinion, 'was as follows : No notice was given by the “ owners” to petitioner that they would not be responsible for the work done or material furnished until after the statement was filed.

Before Fraser, J., Spartanburg, June, 1881. Action for partition commenced in May, 1879, by James A. Wingo and his children against M. Parker and W. F., her husband, and Elizabeth Davis.

<p>Before Aldrich, J., Charleston, July, 1882.</p> <p>The opinion fully states the case.</p>

Before Wallace, J., Eichland, April, 1882. Action by Gibbes Carter, as administrator of Christopher Carter, deceased, commenced in February, 1882. The opinion sufficiently states the case. The non-suit should have been granted. 13 N. F. 9; Thump. Carr. 168, 206, 215; 15 Wall. 524; 44 Penn. 375; 1 Thump. Negl. 449; 11 East 60; 10 Mees. & W. 546; 2 MoMull. 405; 8 Rich. 126; 6 S. C. 83; 3 Com.

Before Pressley, J., Greenville, July, 1882. This was an action by Carrier & Harris against John M. Dorrance. The opinion states the case. ' on the question of non-suit, cited 3 S. C. 9, 411; 6 Id. 83; 7 Id. 144,170; also, 2 Kent 763; 1 Add. Torts 498, note 657; 3 Wait Ac. & Eef. 615; -31 Geo. 348; 3 McC. 547; 1 Bailey 358; 2 Spears 495 ; 5 E.G L. 437.

<p>Before Pressley, J., Spartanburg, March, 1882.</p> <p>The opinion states the case.</p>

Before Hudson, J., Spartanburg, March, 1881. Action by John J. Brown against the Charlotte and Atlanta Air Line Railway Company, commenced ,in January, 1880. The facts of the case are stated in the opinion. See case of Wilson & Co. v. Railroad Company, 16 8. C. 587. The charge of the presiding judge was as follows: What is the plaintiff’s action?

<p>Before Aldrici-i, J., Greenville, April, 1882.</p> <p>The case is fully stated in the opinion of this court.</p>

Before Pressley, J., Abbeville, June, 1882. This was an action in the name of the State, ex relatione Sallie B. Slay, in behalf of herself and other creditors, under the official bond of L. P. Guffin, late sheriff, against Roger L. Williams, commenced in March, 1882. The opinion states the case.

<p>Before Wallace, J., Laurens, September, 1882.</p> <p>Action by Mary Belle Jones against P. H. E. Fuller. The opinion states the case.</p> <p>cited 10 ' Pick. 477; 21 Id. 142; 22 Id. 427; 27 Me. 35; 19 Wend. 232; 1 Hawks 6;. 1 Gfreenl. Evid., § 440; 13 N. J. 232; 1 McMull. 57; 1 Paige 171; 4 Ben. (N. Y.) 311; 17 Wend. 136, 161; 4 Id. 320; 12 Me. 310; 3 N. H. 357; 20 Wis. 262; Sedgw. Dam. (5th ed.} 228, 421, 693.</p> <p>cited Whart. Em., §§ 509, 512; 27 Gown. 192; 17 Id. 249; 117 Mass. 133; 14 N. Y. 562; 1 MeMull 56; 14 Berg. & R. 142; 13 Meta. 288; 49 JV. II. 399 ;: 56 Id. 227; 29 Mich. 173; 1 Greenl. Evid., § 440; 2 Id., § 171.</p>

Before Hudson, J., Charleston, December, 1881. This was an action commenced by the plaintiffs, October 25th, 1880, to recover from the defendant $271.50, upon the statement in the complaint that, on the evening of May 22d, 1880, plaintiffs had delivered to the defendant's agent, in Charleston, S. C., to be sent as a night message, the cipher dispatch, which will be found in full in the opinion of this court; that such dispatch, when translated, had the following meaning: “If…

<p>Before Aldrich, J., Greenville, April, 1882.</p> <p>The opinion states the case.</p>

<p>Before Aldrich, J., Orangeburg, May, 1882.</p> <p>The opinion fully states the case.</p>

Before Kershaw, J., Newberry, November, 1880. The opinion states the case. The Circuit decree was as follows : This was an appeal from decree of the Probate Court confirming the return of commissioners appointed in that court, for ■.the admeasurement of petitioner’s dower in certain lands which ;are in the possession of the defendant. Reference will be had for the facts to the records in the case, and they need not here be repeated.

Before Wallace, J., Spartanburg, January, 1880. These were supplementary proceedings in the two cases of the Kennesaw Mills Company against W. E. Walker, and T. Robert Jenkins & Son against the same defendant. The opinion states-the case.

This was an original application to the Supreme Court in quo ■warranto by Thomas L. Woodsides, under the facts set forth in the opinion. cited 10 How. 416; 4 Wheat. 629; Cool. Con. Lim. *276-7; State v. Harriot, MSS.

<p>Before Aldrich, J., Greenville, April, 1882.</p> <p>Action by M. G. DeCamps against A. Carpin.</p> <p>The opinion states the case.</p>

Before Thomson, J., Charleston, June, 1880. The opinion states the case. The Circuit decree, omitting its statement of.the petition, was as follows: The case was referred to the master, Hon. W. D. Porter, who, upon examination, held that a trust resulted in favor of the petitioner, and so reported.

<p>Before Pressley, J., Orangeburg, October, 1882.</p> <p>This was an indictment against Adam Shuler. The opinion states the case.</p>

Before Wallace, J., Fairfield, June, 1882. This was a motion by Mary A. Duvall for relief against a, judgment obtained against her by W. B,. Doty & Co., in a trial justice’s court. The opinion states the case.

Before Hudson, J., Charleston, December, 1881. The opinion states the case. The Circuit decree was as follows: The petition in this case has been filed to obtain the construction of the marriage article between Samuel Porcher Gaillard and Mary M. Peyre, his wife; all technical objection to the regularity of the proceeding being waived with a view to obtaining the judgment of this court.

<p>Before Witherspoon, J., Kershaw, June, 1882.</p> <p>The opinion states the case.</p>

Before Hudson, J., Charleston, December, 1881. The Circuit decree in this case, omitting its statement of facts, which are fully set out in the opinion of this court, was as follows: In the second of the exceptions, according to the order in which they are stated, and in which it is said that there is error in the conclusion of law, that it cannot be judicially ascertained whether Mrs. Magee (the plaintiff) was or not reared in the faith of the Roman Catholic Church, the…

Before Aldrich, J., Orangeburg, May, 1882. This was an action by Morris Kohn and other creditors of E. M. Meyer against E. M. Meyer, A. W. Meyer and others, creditors of E. M. Meyer, commenced October 8th, 1881, to set aside a confession of judgment, and also a sale of personal property, made by E. M. Meyer to A. W. Meyer.

<p>Before Hudson, J., Charleston, December, 1881.</p> <p>The opinion states the case.</p>

<p>The opinion states the case.</p>

Before Aldrich, J., Charleston, June, 1882. This was an indictment against S. J. Penny for a violation of the act of 1878 (now section 1275 of the General Statutes of 1882), committed on April 27th, 1881. The opinion states the case.

Before Mackey, J., Orangeburg, January, 1881. Action by John H. Livingston against the defendants named in the opinion of this court. The opinion fully states the case..

<p>Before Aldrich, J., Union, October, 1881.</p> <p>The opinion states the case.</p>

Before Withebspoon, J., Fairfield, September, 1882. The opinion states the case. cited the several homestead1 acts and also the following authorities: Thomp. Homest, §§ 43,. 465, 453, 502; Cooley Const. Dim. 442-449, 352; 3 Blacks. Com. 418 ; Pott. Dioar. 185, 203, 209, 213; 7 8. C. 19; 1 Jones-Mart., §§ 731, 466; 2 Id. 1632; 8 8. C. 49; 11 Id. 30. also cited the homestead statutes- and Tiff. & B. Trusts 354; Smythe Homest, §§ 254, 262; Thomp.

Before Feasee, J., Spartanburg, July, 1881. This was an action by F. M. Trimmier, administrator cwm testamento annexo of Peyton Simmons, against H. H. Thomson and J. S. R. Thomson, and also. a motion by defendants in a former action of the same plaintiff against the same defendants,as executors of H. H. Thomson, deceased. The opinion sufficiently states the case.

<p>Before Pressley, J., Lancaster, September, 1881.</p> <p>The opinion states tbe case.</p> <p>cited 2 Jones Mort., §§ 889, 924, 1203-7; Spears Eq. 143; 1 Hilliard Mort. 476, § 3; 2 Pars. Cont. 716, 722; 12 Allen 92; 2 Washb. Beal Prop. 173; 1 Gh'eenl. Evid. 565; 35 N. J. 227; 3 C. E. Or. 461.; 2 Pars. Bills & N. 571; 63 Pa. St. 187; 112 Mass. 271; Am. L. Bev. {Jan. 1876), p. 372; 4 Allen 440; 4 Pich. 352; 6 Allen 139; 19 Pieh. 535; 2 Cox 123 ; 11 Mass. 378 ; 13 Iowa 322; 38 Id. 181; 43 Id. 373; 51 Miss. 371.</p> <p>cited 12 8. C. 612; 5 8. C. 67; 4 T. R. 320; 2 Bailey 359; 18 Cai. 482; 63 N. Y. 613; Jones Mort, § 741; 34 III. 106; 4 Allen 562; 2 Washb. Real Prop. 174, 606'; 1 McCord Ch. 397; 2 Id. 11; 4 McCord 336; 10 Rich. Eq. 487, 582; 6 8. C. 209.</p>

<p>Before Hudson, J., Barnwell, March, 1882.</p> <p>The opinion fully states the case.</p>

<p>Before Pressley, J., Newberry, February, 1882.</p> <p>Action by Jane Scruggs, and Bichard M. Scruggs, by his guardian ad litem,, against Michael Foot. The opinion states the case.</p>

Before Fraser, J., Charleston, February, 1882. The report of the presiding judge was as follows: This case was heard by me at the term of the Court of Sessions for Charleston county in February, 1882, and by consent of counsel the decision was reserved, to be rendered after the adjournment of the court.

<p>Before Kershaw, J., Newberry, November, 1880.</p> <p>Action by George DeWalt, commenced in September, 1880. The opinion states the case.</p>

Before Pressley, J., Laurens, February, 1882. The opinion states tbe case. The order of the Circuit judge was as follows: In this case defendant Charles Jones demurs, and assigns for grounds that the complaint does not set forth a cause of action, and that if plaintiffs have a cause of action, the proceedings' should be in partition.

Before Kershaw, J., Hampton, October, 1881. ' The opinion states the case. ‘ The Circuit decree, omitting its statement, was as follows : From these circumstances I find, as matter of fact, that the… Held: in accordance with the case of Winslow v. Chijfelle, Harp. Eq. 25, where the circumstances were similar. The general rule is, that one copartner has no power to bind his copartners by deed, but there are many exceptions.

Before Aldrich, J., Charleston, July, 1882. This was an action commenced in April, 1882, by the Board of Harbor Commissioners of Charleston against Frank Pashley, master, and the owners of the schooner “ Marcus Edwards,” for the recovery of $5.90. The case seems to have been tried by the Circuit judge. He rendered the following judgment: This is a case brought for the enforcement of certain fees-charged under act of Assembly known as the Harbor Commission Act (17 Stat. 604).

Before Fraser, J., Spartanburg, July, 1881. The opinion states the case. The Circuit decree, omitting its statement, was as follows: The questions to be settled now, are— 1. What are the rights of the several parties under this will, under a proper construction of its terms ? 2. Did the Probate judge have the right to adjust the equities of the parties and order a sale of this land for this purpose ? Both questions are involved in doubt, and I approach them with misgivings.

<p>Before Wallace, J., Chester, June, 1882.</p> <p>The opinion states the case.</p>

Before Aldrich, J., Charleston, June, 1882. The opinion states the case. The Circuit decree was as follows: I am so well satisfied with the opinion given by Judge Fraser, while at the bar, as to the proper construction of this will, that I have adopted it as the judgment of the' court.

Before Aldrich, J., Greenville, April, 1882. ■ In his dissenting opinion Mr. Justice McGowan makes a full statement of the case, as follows : In the case first named in the title, the plaintiff' corporation brought an action against the defendant corporation for $240, the value of three bales of domestics, shipped by the former at their factory in Greenville, upon tlie railroad of tlie defendant, to be carried by its own and connecting lines to Baltimore, in tlie State of…

<p>Before Fraser, J., Charleston, March, 1882.</p> <p>The opinion fully states the case.</p>

Before Witherspoon, J., Richland, July, 1882. This cause has once before been before this court, and will be-found reported in 11 S. O. at p. 429. It was an action by Jacob C. Lyons, devisee of Henry Lyons, against Bella Holmes and others, devisees of Richard Holmes, to recover the possession of a lot of land in the city of Columbia. Plaintiff claimed as devisee of Henry Lyons, who purchased from Sarah Hane,. apparently a free person of color, who purchased from Guignard.

Before Witherspoon, J., Bichland, July, 1882. This was an action by Joseph B. Black, as trustee for himself and others, against the city of Columbia. The opinion states the case.

Before Witherspoon, J., Richland, July, 1882. The opinion states the case. The brief does not contain the judge’s charge in full, but only so much thereof as is complained of in the exceptions, which correctly state the propositions charged and those requested and declined.

Before Witherspoon, J., Spartanburg, March, 1883. The presiding judge thus reports the case: The defendant, Lang Hill, was indicted and convicted for horse stealing.

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

<p>Complaint for goods sold and delivered was verified and its allegations were-admitted by tlie answer, wMcli set up a counter-claim. Plaintiff then filed with the clerk of court, an admission of the counter-claim, and on the call of the default docket at the next term, moved for judgment for the excess. Held, that plaintiff was entitled to judgment for such excess in like manner as in cases of default, and that notice to defendant of application for judgment was not necessary.</p>

<p>Before Wallace, J., Spartanburg, October, 1882.</p> <p>Action by R. J. F. Wall against J. B. Davis, commenced in a trial justice’s court, August 2d, 1880. The opinion states the-case.</p>

Before Pressley, J., Spartanburg, March, 1882. This case, once before on appeal to this court, will be found reported 13 S. C. 120. The case is fully stated in the opinion of this court, but it should be added that the execution issued on the Means judgment had been returned to the clerk’s office “ at least six years prior to this trial,” so that no execution upon that judgment was in the sheriff’s office when he made the sale under the McMakin judgment in August, 1877.

<p>Before Kershaw, J., Bichland, November, 1882.</p> <p>The opinion states the case.</p>

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

<p>Before Wallace, J., Laurens, September, 1882.</p> <p>The opinion makes a full statement of the case.</p> <p>The evidence is insufficient to sustain the conclusion of fact. 2 8. C. 59; 4 Id. 449; Bump Fraud. Gonv. (2d edit.) 581-6, 38, 48, 120, 122, 160, 199, 172; 1 Bailey 575; 1 N. & MoG. 334; 3 JDesaus. 1; 2 MeG. 362. Motes’ declarations were inadmissible. 3 8. G. 577; 4 Rich. 422; 2 Bailey 123; 1 Id. 578; 2 Hill Gh. 636; 10 Rich. 72. The claim is stale and-barred by the statute of limitations. Kerr Fr. 303-5; 2 Strobh. Fq. 27; 7 Rich. Fq. 430; Bump Fraud. Gonv. 549; 1 Hill 387 ; 4 8. G. 249; Bailey Fq. 437; 10 Rich. Eq. 346; 1 Strobh. Eq. 79, 90; 3 Rieh. Eq. 465; 11 Geo. 615; 24 Pick. 242.</p> <p>Motes’ declarations were admissible. 3 S. G. 577; Bunnp Fraud. Gonv. 546/549, 550; 3 Phil. Em. 222; 1 Id. 197; 4 John. 230; 8 Ala. 650; 1 MeMull. 373 ; 1 Hill Gh. 303; 5 Rich. Eq. 142; 2 Hill Gh. .108; 1 Id. 302. Action is not barred by the statute of limitations. 18 8. G. 526 ; 6 Rich. Eq. 101; 13 S. G. 384.</p>

Before 'Witherspoon, J., Lexington, June, 1882. This was an action by Enoch Hendrix against M. D. Harman for the recovery of a watch, commenced February 9th,. 1876. The defendant denied that he had plaintiff’s watch, but said he did hold a watch, which plaintiff claimed, for the benefit and as the property of defendant’s son, to whom it had been given by Beuben Harman, the grandfather, prior to his death.

<p>Before Witherspoon, J., Newberry, February, 1883.</p> <p>Action by A. J. Kilgore against J. S. Hair, commenced in February, 1883. The opinion states the case.</p>

<p>1. The jury are bound to take the law of the case from the court, and whenever they disregard their instructions as to the law, their verdict should t>& ■ promptly set aside and a new trial granted. Dent v. Bryce, 16 S. C. 14, affirmed.</p> <p>2. In action for the recovery of personal property, the verdict must be in the alternative — for the possession of the property or for its value in case such possession cannot be had.</p> <p>3. The jury having been instructed that they must find for the plaintiff the personal property in dispute, and must disregard the counter-claim, a verdict for defendant for one dollar damages cannot be cured by defendant's release of the property claimed.</p>

Before Witherspoon, J., Richland, July, 1882. The case is thus stated in the Circuit decree: On November 17th, 1879, a locomotive engine of the Green-ville and Columbia Railroad Company, called No. 21 or Chatooga, attached to a material train, exploded, so severely injuring the engineer, William E. Milligan, William Johnson, the fireman, and Henry Toliver, a train hand, that they each died very soon thereafter from the effects of said injuries.

Before Witherspoon, J., Richland, July, 1882. The facts are stated in the opinion of this court. The Circuit decree, omitting its statement, was as follows: The sole issue before the master was a contest between these two creditors as to priority in the distribution of assets. The master finds and reports as matter of law that the Ann E. Wright judgment is entitled to rank first in the distribution of the assets of C. D. Melton, deceased.

<p>1. Whether there is any evidence to support the allegations of the complaint is always a question of law for the court, and if there is a total lack of evidence to sustain its material allegations, a non-suit is not only proper but is demanded.</p> <p>2. In action by a laborer for damages sustained in the course of his employment as a result of defendant’s failure to supply the necessary material and to employ careful and competent workmen, the evidence showed that defendant had not failed in its duty in these respects. Held, that a non-suit was properly granted.</p> <p>3. Negligence of any other character committed by the defendant through a representative was not alleged in the complaint, and, therefore, was not an issue in the cause.</p>

Before Pressley, J., Barnwell, April, 1883. This is an appeal from an order dissolving an attachment fa the case of J. C. H. Claussen & Co. against J. B. Easterling. The action was commenced in February, 1883, and the motion to dissolve was noticed March 27th, and heard April 2d, 1883..

Before Hudson, J., Charleston, November, 1881. This was an action by Harriet Ward against the Charleston City Railway Company, a street horse car corporation, commenced July 27th, 1881. The complainant alleged serious injury to herself caused by the carelessness, negligence, &c., of the driver of the car in not giving her pi'oper time to free herself and get out of the way. of the car, and she demanded judgment for $10,000, her damages.

<p>1. A. issued an attachment against C., an absent defendant, obtained order of publication and commenced publication, but, upon personal service being made on the defendant in North Carolina, the publication was discontinued, and judgment was taken by default more than twenty days after such personal service, but only forty-two days after order for publication. Under this judgment, the land attached was sold by the sheriff. Before this judgment was obtained, B., having issued a junior attachment upon this land as the property of C., moved to set aside the attachment for insufficiency in the affidavit. The judge ruled that a junior attaching creditor could not make such an objection, and refused the motion. After the sale, B. obtained judgment by default, and then instituted this action to have the sale set aside and the land resold. Held, that the action would not lie.</p> <p>2. C. was the only person who could take advantage of the alleged insufficient service of the summons.</p>

Before Wallace, J., Chesterfield, September, 1881. The opinion makes a full statement of the brief, excepting the Circuit decree, which was as follows: As to the first ground of objection by defendant, the case of Moore v. Edwards, 1 Bailey 25, seems to be decisive.

<p>Before Aldrich, J., Beaufort, October, 1882.</p> <p>This was an action by Florence A. D. Reed against Joseph S. Reed. The opinion states the case.</p> <p>cited Code, §§ 155, 159, 408-418; 1 O’Neall’s Bench and Bar, Introductory, p. XXXII.</p> <p>cited Wait’s Ann. Code, 180; 1 N. & McC. 458 ; Rules of Circuit Court, No. XVII; 42 N. Y. 27; 3 Edw. Ch. 173; 6 Johns. 36, 296; 37 N. Y. 502.</p>

Before Hudson, J., Richland, April, 1883. Action by Harriet LeConte against Margaret Irwin. The opinion states the case. In granting the motion, Judge Hudson said: This case came on to be heard before me upon a report of sale by the master and a motion to confirm the same, and upon a motion by the defendant to set aside the judgment and vacate all proceedings thereunder.

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

<p>Before Wallace, J., Spartanburg, October, 1882..</p> <p>This was an action by Jonas B. Bragg against W. W. Thompson and Noddy Landford, executor, commenced September 10th, 1880. The opinion states the case.</p>

<p>Before Pressley, J., Spartanburg, March, 1882.</p> <p>The opinion fully states the case.</p>

<p>Before Cothran, J., Spartanburg, June, 1882.</p> <p>Tbe opinion fully states the case.</p>

Before Wallace, J., Laurens, September, 1882. In this case, the Honorable James S. Cothran, of the Eighth Circuit, sat in the place of the chief justice, who had been of counsel in the cause. This was an action by Nathaniel O. Kennedy, as executor of Leannah Kennedy, against all the other children of Leannah, and their husbands, and the wife and children of the plaintiff, for a settlement of the estate of the said Leannah.