Volume 2 — South Carolina Reports

This case was brought here from the Court of General Sessions for Chesterfield County by writ of error. The transcript of the record showed that it was an application to the Court below for a writ of mandamus to compel the plaintiffs in error (defendants below) to transfer stock of the Cheraw and Dar-lington Railroad Company on the books of the corporation.

The petitioner, having been brought before the Supreme Court on writ of habeas corpus, moved for his discharge. The facts of the caso, and grounds of the motion, appear in the judgment of the Court.

Before GREEN, J., at Manning, January, 1870. The case was brought up by writ of error. It was an action on the case brought to recover damages, which plaintiff' sustained by reason of loss of service of a hired servant, a colored man, named Ilenry Burgess, employed as a ploughman by plaintiff for the year 1866, the said servant having been disabled by reason of a gunshot wound, charged to have been inflicted by defendant.

<p>A decree, in a suit for distribution among creditors of tlie assets of an insolvent intestate estate, which ascertains the amount of assets then realized, and that tliey are sufficient to pay the j udgments, specialty debts, and 12 8-7: lis per cent, of the simple contract debts, and directs that they be so applied, does not bar the specialty creditors of their right to priority of payment out of assets afterwards idealized-those realized at the time of the decree having been lost without fault on their part.</p>

Before JOHNSON, Ch., at Edgefield, June, 1868. Oil tlie 1st January, 1857, the defendant, Lewis Covar, gave to George A. Addison a mortgage of a lot in Edgefield village and some slaves, to secure the payment of three promissory notes for $1,000 each, payable in one, two and three years, with interest. There were on the lot a hotel, some stables, and three law offices.

<p>Before GREEN, J., at Georgetown, October Teem, 1869.</p> <p>A full statement of the case is contained in the opinion of the Court.</p>

This was an original application to tliis Court-fco compel the respondents to permit certain shares in the capital 'stock of their company to be transferred, and to issue new… Held: on the 12tlr day of May, A. D. 1869, in the town of Cheraw, S. C. By effort and zeal, on the part of some of the stockholders, a full attendance upon-this meeting was secured, and there was almost if not an entirely full representation of the stock of said company, either in person or by proxy.

Befoee THOMAS, J., at Lancaster, Sprirg Term, 1869. Willis Gregory, Sr., died intestate, leaving real and personal éstate and eight children, two of whom were Mary Ann, wife of Alfred R. Moore, and Martha J., wife of Joseph Terrell.

Before JOHNSON, Cii., at Edgefield, August, 1868. The decree of His Honor the Chancellor is as follows: JohnsoN, Ch. On or about the 3d day of February, 1863, the complainant sold to James S. Adams a tract of land containing two hundred and eighty-eight acres, and took from the said Adams, in payment for the same, his sealed note for five hundred dollars, payable at one day, and a sealed note for fourteen hundred dollars, made by A. A. Glover and W. F. Durisoe, and payable…

Before. THOMAS, J., at Lancaster, October Term, 1869. Held: that the judgments against Sizer which were recovered before March, 1859, had been paid; that the plaintiffs had failed to show fraud in the confession of judgment; and that the plaintiffs .in said judgment had the right, as against creditors of Sizer, whose judgments were recovered after the sales of his property, to apply the…

Befokb CARPENTER, J., at CharlestoN, Juke Term, 1869. This was a bill for partition filed by Marcellus M. Seabrook, Archibald Clark Seabrook and Eliza Sarah Seabrook, plaintiffs, against AVai. Gregg, Jr., and others, defendants. The plaintiffs, Marcellus M. and Archibald Clark, were the children of George Washington Seabrook, deceased, and the plaintiff, Eliza Sarah, was the only daughter of a son of the said George Washington, who died in the lifetime of his father.

This was an original application to the Supreme Court for judgment of ouster. A case containing the facts was agreed upon and submitted without action. It is as follows: “ John Alexander, J. W. Denny, Augustus Cooper, Charles Mi-nort, W. Hutson Wigg, Israel Smith, William Hayne, William.

Before JOHNSON, On., at LANCASTER, June, 1868. Tlie facts relating to the only point considered by the Supreme Court in this case are stated in the judgment of that Court. The Circuit decree from which the appeal was taken is as follows: JOHNSON, Oh.

Befobe JOHNSON, Ch., at Lancaster, June, 1867. In October, 1866, the plaintiff, White, was appointed trustee of Anna Mittag, in the place of Joseph A. Cunningham, deceased, the former trustee, and this was a bill by White against Kibler, administrator of Cunningham, for an account.

BefoRE JOHNSON, On., at Darlington, February, 1868. The facts upon which the appeal in this case was heard are stated in the Circuit decree, which is as follows ; Johnson, Ch. On the 10th day of December, 1842, John N. Williams executed a deed, of which the following is a copy, that is to say: “Know all men by these presents, that I, John N. Williams, in consideration of the love, good will and affection which I bear to my cousin John M. Davis, and in further consideration…

Before THOMAS, J., at Lancaster, October Term, 1869. Thomas K. Cureton, the elder, died intestate on 3d July, 1854; leaving a large estate, real and personal. His heirs and distributees were his widow, Eliza R. Cureton, and his five children, James E. Cureton, Thomas K. Cureton the younger, Samuel J. Cureton, Virginia Cureton, and Eliza J. Cureton — the three last named being minors. Samuel B. Massey and James E. Cureton became his administrators.

These were petitions to the Supreme Court for writs of mandamus: in tbe case first stated, to command the Hon, Zeplianiah Platt, Circuit Judge of the second Circuit, to hold the Courts of General Sessions -and Common Pleas for the County of Barnwell, at the town of Blaclcville, in said County; and, in the second case, to command N. G. W. Walker, Sheriff of said County, to keep his office, as Sheriff, with its books, records and papers, and office furniture, at the same place.

Befoeb THOMAS, J., at Chester, September Term:, 1869. Writ of error to the Circuit Court. The case was heard upon a report of the Circuit Judge, as follows: “ This case came on for trial at the September Term, 1869. “The plaintiff offered in evidence a note, under seal, made by the defendant, for $1,345, dated 22d December, 1863, and payable twelve months after date. The handwriting being admitted, the plaintiff closed his case, with the privilege of replying.

Before RUTLAND, J., at DarlixgtoN, July Term, 1870. Appeal from aa order directing an attachment for contempt to issue against the Sheriff.

Befoee CARROLL, Ch., at Charleston, November, 1868. Appeals from the Circuit decree. The case first stated, of MoKeegan vs. McSwiney, was a bill to foreclose a mortgage of real estate given by the latter to the former, to secure the payment of a bond conditioned for the payment of $15,000 two years “ after the blockade of the port of Charleston shall have been effectually raised,” with interest, payably semiannually ; both instruments bearing date the 4th August, 1864.

BufoRE ORR, J., at Newberry, October Extra Term, 1868. The case came up by writ of error, the defendants below being plaintiffs here, and it was heard by this Court upon a report of His Honor the presiding Judge, which isas follows: “ This was an action against the defendants on a sealed note for $6,000, payable “ in current funds ” the 1st January, 1866, with interest from the 1st day of January, 1864, interest payable annually, and dated 20th October, 1863.

Before THOMAS, J., at Chester, JANUARY Term, 1869. Appeal from the Circuit decree, the case being as follows: Richard E. Kennedy, late of Chester County, being in bis lifetime, and at the time of his death, seized and possessed of a dwelling house and lot in the town of Chester, and two parcels of land near said town, one known as the Robinson place, and the other as the Lee place, departed this life in the year 1855, leaving a widow and several infant children.

<p>The debtor, in a judgment on contract recovered before the adoption of tlie Constitution of 1S68, may claim the homestead exemption allowed by that Constitution, as against the lien of such judgment.</p>

Before THOMAS, J., at Chester, September Term, 1869. Appeal from the Circuit decree, the case being as follows: William Howze died intestate in February; 1865, leaving several children, one of whom, Samuel Capers Howze, is a minor.

Before ORR, J., at OcoN.ee, July TbRM, 1869. Appeal from the Circuit decree in a bill for foreclosure of a mortgage of real estate. On the 25th August, 1866, the defendant gave to the plaintiff a mortgage of a tract of land to secure the payment of a sealed note for $1,098, executed oil the same day, and payable one day after date.

Bbfoee CARPENTER, J., at Charleston, February Term, 1870. The statement and grounds of appeal upon which the case was heard by this Court are as follows : This was an action brought by the plaintiffs on a judgment recovered by them against the defendants, on the fifth day of February, 1859, in the Court of Common Pleas for Charleston District, in this State. Both fi. fa. and oa. sa. were issued on the same day. The record of the judgment was produced in evidence.

BefoRe CARPENTER, J., at Charleston, April, 1870. The decree of His Honor the Circuit Judge is as follows: CarpenteR, J. This was a bill, filed by J. Edwin Mathews, executor, to foreclose a mortgage given by Thomas Savage Heyward, trustee, to Richard F. Reynolds, and assigned by him to the complainant in this case.

Before CARPENTER, J., at Charleston, May Term, 1870. This was an action on three coupon bonds. The first was in ■ words and figures, as follows : UNITED STATES OF AMERICA. No. 28. $500. THE STATE OF SOUTH CAROLINA.

Before CARPENTER, J., at Charleston, June Term, 1869. Writ of error by the defendant below to the Circuit Court. The action was covenant on a lease brought by Benjamin J. Parker and Elizabeth A., liis wife, executrix of William Greer, deceased, plaintiffs below, against Patrick J. Coogan, defendant below. The following is a copy of the lease: STATE OF SOUTH CAROLINA, Charleston District.

Befoee LESESNE, Ch., at CiiarlestoN, December, 1868. Appeal from tlie Circuit decree, which contains everything necessary to a full understanding of the case, and is as follows: LesesNE, Gh.

Befoue JOHNSON, On., at Pickens, July, 1866. Appeal by defendants from the Circuit decree. Held: notwithstanding the rebellion, Texas was at all times a “State of the .Union.” “No State shall pass any law impairing the obligation of contracts.” — 10 Sec., Art. 1, Const. U. S., and Art. 6 ; Rutland vs. Copes, 15 Rich. Law, 116; Bank of Dubuque vs. State of Iowa, 12 How., 1.

Befoee PLATT, J., at Barnwell, March Teem, 1870. John G. Strobel died intestate in January, 1868, and on the 13th February, 1868, Jacob H. Kalb administered on Ms estate. On ilie 22d March, 1869, Jacob IT. Kalb filed his petition in the Probate Court, praying that the assets of the estate of his intestate be marshalled, and the land sold, in aid of the personalty, for payment of debts.

<p>One who hired from their owner, between the 1st July, 1864, and the 30th April, 1865, certain persons claimed to be slaves, and received the benefit of their services, must pay to the owner the hire agreed on; and this whether the slaves were liberated by the emancipation proclamation of 1863 or not.</p>

Writ of error to the Circuit Court for Charleston County. His Honor the Circuit Judge, before whom the action was tried, made a statement of the case for this Court, which is as follows: “ This was an action of assumpsit. The declaration, contained several counts, one or more charging the defendant, as factor, for not accounting for cotton received by him from the plaintiff for sale.

<p>At the general election held in June, 1808, C. was elected Clerk of the Court of Common Pleas for Chester, for the term of four years. He died, and in. March, ^870, the Circuit Judge appointed H. as Clerk for the unexpired term of C. Under the Act approved March 1,1870, an election was held in October, 1870, to fill the vacancy, and li. was elected: Held, That JEfc. was entitled to the office for the unexpired term.</p> <p>By the Constitution of the State, no one can hold the office of Clerk of the Court of Common Pleas, unless he be elected thereto by the voters of the County.</p> <p>A person appointed*otherwise than as the Constitution directs to fill a vacancy in the office of Clerk of the Court of Common Pleas is not a Clerk in the constitutional sense of the term, but merely a person placed in the position of Clerk, with authority to discharge his duties.</p> <p>The Constitution being silent on the subject, the Legislature may provide by .law for elections to fill vacancies in the offices of Clerks of the Courts of Common Pleas.</p>

Before CARROLL, Cii., at Abbeville, July, 1863. Jesse S. Adams, late of Abbeville District, died intestate in March, 1860, and James J. Adams became the administrator of liis estate. In December, 1860, the administrator, by leave of the Ordinary, sold the personal estate on a credit of twelve months. James J. Adams died intestate in 1865, and the defendants, Rachel S. Adams and Wm. A. Lomax, administered on his estate.

Befoee CARPEN TER, J., at CharlestoN, February Term, 1870. This-was an action of assumpsit on a bill of exchange for $4,000, drawn March 29, 1867, by Hoffman, Brabham & Co., payable, at sixty days, to the order of the plaintiff, and accepted by the defendants. A credit of $1,000, dated October 5, 1867, was endorsed on the bill. The defendants pleaded non assumpsit, and several special pleas.

Before PLATT, J., at Edgefield, February Term, 1870. Appeal by the State from certain orders made by the Circuit Judge in this case, which was a prosecution for murder. Before bill found, Mr. Gary, acting for the Solicitor, wh'o was absent, moved, on behalf of the State, that the venue bo changed. This motion His Honor refused to hear, on the ground that the bill had not been found.

Beeobe CARPENTER, J., at OraNGeburg, October Term, 1869. Appeal from a decree of the Circuit Court confirming a return to a writ for the admeasurement of dower. The only papers contained in the brief were the return, the decree and the grounds of appeal.

Before PLATT, J., at Barnwell, - Term, 1870. Tills was an appeal from a decree of the Circuit Court, made upon an appeal from the Probate Judge. The case is stated in the judgment of this Court. cited Rutland vs. Copes, 15 Rich., 84; Thorington vs. Smith, 8 Wal., 1; Austin vs. Kinsman, 13 Rich. Eq., 259; Craig vs. Pervis, 14 Rich. Eq., 150; 2 Story Eq., § 1272; Sent vs. Poreher, 1 Strob. Eq., 170; Boggs vs. Adger, 4 Rich.

Befoke BOOZER, J., at Fairfield, July, 1869. A statement of the case and of the points made in the grounds of appeal is contained in the opinion of the Court. 1. The testator’s intention to charge the legacy to Rutland, upon the land specifically devised, is neither expressly declared, nor is it fairly and satisfactorily to be inferred from the language and dispositions of the will. — Lupton vs. Lupton, 2 Johns. Oh., 623; Lau-rens vs. Read, 14 Rich.

Before CARPENTER, J., at Charleston, February Term, 1870. This was an action of trespass to try title, commenced in June, 1869. The jury found a verdict for the plaintiffs, and the defendant moved for a new trial on the Judge’s minutes, on the grounds: “ 1. That the verdict is against evidence. 2.

Befoee RUTLAND, J., at MarioN, Juhe Term, 1870. Appeal from orders made in the case stated, and two other actions against the same defendants.

Before BOOZER, J., at Fairfield, July Teem, 1869. This was a bill to foreclose a mortgage of a tract of land. The land had been a portion of the real estate of Robert Cathcart, deceased.

Before RUTLAND, J., at Chambers, October, 1870. Appeal from an. order directing a writ of prohibition to issue from the Court of Common Pleas for Darlington County. The facts were these: Robert IT.

<p>Defendants signed a letter, addressed to F., as follows! “As yon request, we are willing to help you in tlie purchase of a stock of goods. We will, therefore, guarantee tlie payment of any hills which you may make, under this letter of credit, in Baltimore, not exceeding in the whole fifteen hundred dollars Held) That any party advancing goods to F., upon the faith of the promise contained in the letter, could maintain an action thereon against the defendants as guarantors-.</p> <p>A party may maintain an action on a written agreement, within the fourth Section of the Statute of Frauds, though his name does not appear therein. The fact that he became a party to tlie agreement may he shown, by parol. One who gives a guaranty for future advances to he made is entitled to notice of the acceptance of the guaranty; hut the notice need not he express, nor is it necessary that it should he given hy the creditor. ID may he inferred from circumstances.</p>

Before OBK, J., at Abbeville, August Term, 1869. The plaintiff, James McCreary, brought an action of trespass against the defendants for assault and battery, and also preferred an indictment against them for the same offense.

B efoke MELTON, J., at Chambers, Columbia, August, 1870. Appeal by the defendant from a judgment upon an answer adjudged to be frivolous, under Section 270 of the Code of Procedure. The allegations contained in the complaint were as follows: “1.

Befoee ORR, J., at Spartanburg, SpriNg Term, 1870. Appeal by the plaintiff from a judgment for the. defendant. The facts of the case relating to the question decided by this Court are stated in the judgment of the Court.

BeeoRe ORE, J., at Anderson, May Term, 1870. Bill for specific performance of a contract for the sale of a tract of land.

<p>BefoRe RUTLAND, J., at DaeliNgtok, February Term, 1871.</p> <p>Motion in arrest of judgment. The facts upon which the motion was based, and the ground thereof, are stated in the judgment of the Court.</p> <p>cited State vs. McKee, 1 Bail., 651, 654; Bostich’s case, cited in 1 MeC., 254 ; Edwards’ case, 2 N. & McC., 17; State vs. Starling, 15 Rich., 134; Creiger vs. Bunion, 2 Stro., 491; 2 Hale P. C., 295,296; Coke on Lit., (Thomas,) ch. 9, p. 457; 2 Bish. C. L., § 670, 673; United States vs. Haskett, 4 Wash. C. C., 402; Garrat vs. Garrat, 4 Yeates, 244; People vs. Damon, 13 Wend., 351; State vs. Williams, 3 Stew., 454; 5 Bac.'Abr., 335, Title Juries, (C.,) 369, (Note,) 371, (G.); Hex vs. Edwards, Brit. C. Cases, 224; Rex vs. Deleany, 3 lb., 88.</p>

BefoRe ORR, J., ao? Chambees, Columbia, December, 1868. This case was brought up by writ of error to the Circuit Court of Union County. R. S. Gilliam, plaintiff in error, was one of the sureties on the administration bond of William S. McJunkin, defendant in error, who was the administrator of William H. Kelly, deceased. On the 16th November, 1868, Gilliam filed a petition in the Court of Probate for Union County, praying to be relieved from his liability as surety.

<p>Tlie Supreme Court» will not reverse an order of tlie Circuit Court directing an issue to be made up, and submitted to a jury, to determine whether a judgment is satisfied, it being cliscr» tionary with the Circuit Judge whether, in suciiacase, he will order an issue to be made up, or decide the facts himself.</p>

Before CARPENTER, J., at CiiaklestoN, March Term, 1870. Action on a promissory note for $500, dated 17th January, 1865. The declaration contained special counts upon the consideration, alleging that the plaintiff sold to the defendant two slaves on the day of the date of the note, at the price and on the terms stated therein.

Before ORR, J., at Greenville, December, -1870. Appeal from the decree of the Circuit Court.

Before RUTLAND, J., at Marion, October Term, 1870. Held: as against the other bondholders. 2. That he only delivered his original bonds under certain conditions, which have not and cannot be fulfilled, and that, by the very terms of the arrangement which he made, he is entitled to have his original bonds, with their security unimpaired, returned to him.

■ Before HoN. JAMES H. RION, Special Judge, at Columbia, JaNuary, 1871. John J. Kinsler died in January, 1865, leaving a last will and testament, of which his three brothers, Edward Kinsler, Henry O. Kins-ler and William Kinsler, were nominated éxecutoi’s. The two former proved the will and qualified as executors.

BbfoRE MELTON, J., at Chambees, Columbia, July aeb November, 1870. These were suggestions for writs of prohibition to restrain the City Sheriff of Charleston from enforcing certain tax executions against the relators for taxes assessed for the years.1868, 1869 and 1870. The facts are stated in the judgment of the Circuit Judge, below given, and the opinion of the Supreme Court delivered by the Chief Justice.

B bfoke CARPENTER, J., at Chakleston, May Teem, 1870. The facts of the case are stated in the Circuit decree, which is as follows: CARPENTER, J. The only question submitted to me, is one of the construction of that part of the will of John Ashe which relates to the limitation over of certain real estate, after the death of the survivor of his sons, to the grandchildren of testator, to be equally divided among them, share and share alike.

<p>Ordinary diligence is all that tlie law exacts of the bailee in a case of pawn or pledge.</p> <p>Ordinary diligence, in the law of bailments, ns a relative term, and signifies that care which men of common prudence generally take of like articles of their own, at the lime and in the place where the question arises.</p> <p>The question being, whether bankers in Columbia, who had received on deposit certain collaterals, as security for money loaned by them to the bailor, were responsible to thelatter for the loss of the collaterals from their banking house hy robbery, the Circuit Judge declined, at the request of the bailor, to instruct the jury “ that the bailees cannot be said to have exercised ordinary care, unless it be found that they have availed themselves of all the means for securing their^depo jits that art and mechanical skill could afford : and it is a proper inquiry for the jury to sny whether proper efforts wore made by the plaintiffs to ascertain and secure those mechanical implements of the age, which, without extraordinary diligence, could have been securedHeld, That in this there was no error.</p> <p>The Circuit Judge instructed the jury “ that the Court could not prescribe any absolute i ule or measure of diligence ; and that whether ordinary care devolved it upon the bailees, bankers in Columbia, to employ all the means of security known to art, and applicable to their business, was exclusively a question of fact for the jury.” The verdict was for the bailees; and on appeal by the bailor: Held) That in this instruction there was error, and a new trial was granted.</p>

Bufoue CARPENTER, J., at Charleston, July, 1870. This was an application to the Circuit Court for a writ of mandamus, to compel John R. Stoll, County Treasurer of Charleston County, to receive certain bills of the Bank of the State of South Carolina, issued in the years 1861 and 1862, in payment of taxes due by the relator to the State.

Beeore THOMAS, J., at York, November Term, 1869. Supplemental bill for account. The stating part was as follows: “ That on the 1st day of May, 1867, your orators filed their original bill in the Court of Equity for York District, against Isaac N.. Withers, 0.