Volume 20 — South Carolina Reports

<p>Before Wallace, J., Anderson, March, 1883.</p> <p>The opinion states the case.</p>

<p>1. In action for claim and delivery of personal property, a non-suit should not be granted, the plaintiff having proved possession.</p> <p>2. In action against a sheriff for the recovery of a bale of cotton, which he had previously sold, or for the value thereof, and for damages, a verdict for a stated amount in money is not invalid, the form of the verdict not being objected to at the time.</p> <p>3. A mere laborer for hire, although employed in the crop, is not a cultivator of the soil in the sense of the statute, and is not entitled to give an agricultural lien upon any part of the crop before settlement with his employer.</p> <p>4. An employe, who is to receive a part of the crop as compensation for his services, is a laborer for hire.</p> <p>5. In action at law by the purchaser of a bale of cotton, against the sheriff) for claim and delivery, the court cannot adjust the accounts between the producers of the cotton, they not being parties, one of whom had made the sale, and the other being the debtor under the lien levied.</p>

This was a proceeding in the original jurisdiction of this court, it being an information in the nature of quo warranto, filed on January 23d, 1883, in the name of the State of South Carolina, by C. Richardson Miles, attorney-general, against Joseph J. Williams, praying for a rule to show cause, and for judgment -of ouster. The opinion states the case.

<p>Before Mackey, J., Sumter, October, 1881.</p> <p>The opinion states the case.</p>

Before Cothran, J., Greenville, November, 1882. Tbe appeal in this cause came to this court under tbe title of Mary P. Lake against W. T. Shumate, administrator of J. P. Moore, deceased, T. C. Gower, J. N. Greer, W. A. Williams and Samuel J. Douthit, judge of Probate for Greenville county. The action was commenced in the life-time of J. P. Moore, not later than April, 1879.

Before Wallace, J., Kershaw, February, 1882. This was an action by W. T. Bell and M. A. Gordon, grandchildren of Willis B. Huckabee, against Annie E. Bell and others, grandchildren, and J. J. Huckabee and others, children, of W. B. Huckabee, and against Witte Brothers. The facts connected with the claim of Witte Brothers are stated in the opinion of this court.

<p>Before Peessley, J., Charleston, November, 1882.</p> <p>This was an action by E. T. Shubrick, trustee, against L. G. Adams, administratrix of ~W. C. Gatewood. The opinion states the case.</p>

<p>Before Wallace, J., Spartanburg, October, 1882.</p>

<p>1. Where a parent died after the abolition of slavery, slaves previously given to a child cannot, under our statute, be charged as an advancement to such child in the settlement of the parent’s estate. Hughey v. Eiehelberger, 11 S. O. 51, approved.</p> <p>2. Where an administrator received for the estate $500 in gold, then worth a premium of forty per cent., and had, in part, disbursed this gold at such premium, and he fails to show that he retained the balance for estate purposes until it had depreciated, he should be charged with the amount received and also with a premium of forty per cent.</p> <p>3. Interest cannot be charged on advancements until the death of the intestate.</p> <p>4. A father was surety on a note for his two sons A. and B'. The payee died and this father administered, and received a payment from A. on -the note, and then destroyed the note, having charged himself with its amount in his administration accounts. Afterwards the father died intestate. Held, that the amount of principal and interest due. at the time of the payment by A. was an advancement to the two sons, the half due by A. being reduced by the amount of such payment.</p> <p>5. Where the facts do not show that an administrator retained funds of the estate in his hands, and was warranted in so retaining them to meet the demands and exigencies of the estate, he should be charged with interest on his annual balances according to the principles declared in Baker v. Lafitle, 4 Rich. Eq. 392.</p> <p>6. Where a father gave to his daughter a gold watch to make her equal with his advancements in negro slaves to another of his children, and, after emancipation, died intestate, the watch must be charged as an advancement to the daughter.</p>

<p>1. A lot of land was devised to remain in the hands of the executors until they should settle and assure the same to trustees to receive the rents, &c., and pay the same to the sole and separate use of E. during her life, and then to transfer the same to such children of E., or the issue of such ■deceased child as E. should leave surviving her, the issue of deceased ■children to represent their parents; and if she should have neither children, nor their issue living at her death, then to such person or persons as by the laws of this State shall be entitled to distribution of her estate. JSeld, that E. had a life-interest, and that the remainder over was contingent and not vested.</p> <p>2. The executors having accordingly conveyed this land to a trustee in trust for the uses and purposes directed by the will, the legal title was in the trustee, and after his death, in his heir-at-law.</p> <p>3. This land having been sold under proceedings to 'which E. and her children were parties, but not the living grandchildren of E., nor the heir-at-law of the trustee, held, on rule to show cause, that the purchaser was not. bound to comply.</p>

Before Pressley, J., Greenville, July, 1882. This was an action by Hewlett Sullivan against the Sullivan Manufacturing Company and its officers, commenced in February, 1880. The cause has been before this court on appeal once before, and will be found reported, 14 8. O. 494. The character of the action, the indebtedness and other matters will be found in the opinion of this court at the present hearing.

Before Hudson, J., Charleston, December, 1881. The complaint in this case was as follows : The complaint of the above-named plaintiff alleges— 1. That John Graveley, the above-named testator, formerly of Charleston, in the county and State aforesaid, departed this life in England, on or about the 31st day of March, 1865, leaving, unrevoked and in full force and virtue, a last will and testament, a copy of which is hereto annexed as a part of this complaint. 2.

Before Pressley, J., Aiken, February, 1883. This was an action by C. G. Tutt, trustee of Helena H. M. Cook and Horatio R. Cook, and tbeir children, against the Port Royal and Augusta Railway Company, for the recovery of the possession of a strip of land used by the defendant for a roadbed, and for $2,500 damages.

Before Pressley, J., Charleston, February, 1880. This was an action by Henry E. Young against the city council of Charleston, to recover damages for injuries sustained in his person and property, caused by a defect in a drain across one of the streets of the city of Charleston. Plaintiff was riding his horse on Sunday afternoon along a street or highway in the upper portion of the city, when the horse was thrown down, and horse and rider were both severely injured.

<p>Before Cothran, J., Anderson, October, 1882.</p> <p>The order of the Circuit judge, discharging the rule in this ' case, was as follows:</p> <p>This is proceeding by rule upon the defendant to show cause why the entry of satisfaction on the sheriff’s book of a certain execution in favor pf the plaintiff against the defendant, for the sum of $2,000, should not be held to be satisfaction only pro tanto — that is to say, to the extent of $1,000, the sum actually paid, besides costs; and the sheriff required to enforce the execution for the balance thereof against the defendant for and on behalf of the plaintiff’s attorneys in said cause. The respondent (defendant) made return to the rule, and upon this and certain affidavits in support of it, and upon affidavits submitted in behalf of the actors, the cause came on to be heard by the court at the Fall Term, 1882, for Anderson county.</p> <p>The following brief history is deemed necessary for a proper understanding of the questions involved: The' main cause, which was an action for slander, was tried at the October Term, 1881, of the court, and resulted in a verdict of $2,000 for the plaintiff. The defendant’s counsel moved upon the minutes of the presiding judge for a new trial, which was argued and refused -during that term' of the court, to which refusal the defendant, by his counsel, excepted. Within ten days the defendant’s counsel served upon the plaintiff’s counsel their notice and grounds of appeal, addressed only to the plaintiff’s counsel — no copy of which was served upon the presiding judge within thirty days from the service of that notice, to wit, on November 22d. By means of the intervention and efforts of “ mutual friends,” and with the aid of the senior counsel of the defendant, who prepared the papers, but who had no further participation in the matter- -or knowledge of the negotiations, the defendant and the plaintiff effected a settlement of the controversy between them by the former paying to the latter the sum of $1,000, in full discharge ■and satisfaction of the said verdict. It was agreed at the time, and by all the parties to this settlement, and by those who were present, excepting J. B. Watson, who did not so understand it, as he says, that this settlement was to be kept secret from that day, Tuesday, November 22d, until Saturday, November 26th. On the day last mentioned, the defendant’s counsel served upon the plaintiff’s counsel a written notice, stating that the matter in controversy between plaintiff and defendant had been adjusted and settled by them ; that no judgment or execution should be entered upon said verdict, or. any portion of it, and that the whole case should be discontinued.</p> <p>On November 30th the counsel for the plaintiff procured an order from -the clerk of the Supreme Court dismissing the appeal in the cause, for failure on the part of the appellant to serve the presiding judge with notice of the appeal and grounds, and for failure to file the return with the clerk of the Supreme Court within the time required by law. On December 2d, judgment was entered up by plaintiff’s counsel upon the verdict and execution lodged with the sheriff; and on January 9th following, the defendant, by advice of his counsel, paid to the sheriff the taxed costs of the case, and produced the plaintiff’s receipt, purporting to be in full satisfaction of his entire claim, which was duly entered on the execution, or upon the execution book of the sheriff. In the meantime — that is to say, between November 22d and 26th, 18'81, the plaintiff Miller fled from the State, and has not since returned. At the next term of the court the actors herein applied for and obtained the rule which, with the return thereto and the various affidavits in the cause, are now under-consideration.</p> <p>The issues involved are both difficult and delicate, but they may be justly determined by answering correctly the three following questions: 1. Was there any appeal pending in the cause on November 22d, 1881 ? 2. Was there such an assignment by the plaintiff to Orr, Wells & Allen of one-half of the recovery of $2,000; or such an agreement to pay them that sum out of the recovery, as to give them an enforcible lien for the same? 3. Was there such actual notice given to the defendant of this assignment or agreement; or did he have such knowledge of facts concerning it as should have put a reasonable man upon inquiry, whereby, in disregarding the one or failing to-follow up the other, he has become legally liable for actively or negligently causing the actors here to lose their debt ?</p> <p>First — as to the appeal pending. After some possible contrariety of decision in the batch of cases reported in 12 S. C. R., beginning with Rogers & Nash, p. 559, and Sullivan & Speights,, p. 561, and 'Lake & Moore, p. 563, with the case of Coleman v. Heller, 13 S. C. 491, the true rule seems to be adduciblefrom the case last cited, and is, that the first section of the-act of 1878,16 Stab. 698, was only meant to cover the case where no exceptions were taken at the time. If they were so taken, then service of copy of exceptions under the act, was unnecessary. Did the defendant at the time except to-the rulings of the presiding judge? To make objections sufficient to sustain an appeal, it is not necessary that the word exceptions should be used; the better practice undoubtedly is, to give the court information at the time the party excepts, and have it noted on the record, so that there can be no misunderstanding about it; but it has been held that when it appears from the record that the judge was apprised of the intention to rely on the propositions advanced by way of exception, that is sufficient to constitute an exception, though there is no formal request to-note an exception. Many cases cited. Continuing, the court says: “Here the propositions by way of exception were positive- and unmistakable. * * * We think it appears from the-record that the judge was apprised of the intention to rely on the propositions advanced by way of exception, and that is sufficient to constitute an exception, although there was no formal request to note an exception.” The motion to dismiss the appeal was refused.</p> <p>Here no exception by the defendant’s counsel appears upon the record nor upon the calendar, where the notice of motion on the minutes is entered; but it is admitted that the motion was made, that it was refused, and that the defendant’s counsel excepted. The grounds of exception, as afterward served upon plaintiff’s counsel, but not upon the presiding judge, are, in substance, as follows: 1. For excessive damages. 2. For admitting incompetent testimony. 3. For excluding explanatory testimony. 4. For a variance between the allegata and probata. 5. For refusing to grant a non-suit. True, it does not satisfactorily appear that these propositions were “advanced by way of exception,” at the time the motion was made and refused. It is more probable that they were enlarged when afterwards formulated and served upon the plaintiff’s attorneys within ten days after the refusal of the motion.</p> <p>The question, however, as to the appeal pending in the cause is, in my opinion, incidental and collateral, and only material to the inquiry here, as furnishing reasonable inducement to, the alleged compromise. Its only value is in aid of motive, and the belief of the fact by the defendant’s counsel, as shown by his affidavit, and the deposition of J. C. Milford, that pending the negotiations the defendant, Newell, said he would not give $1,400 to compromise — “that he would take the case to the Supreme Court first,” — satisfy me that both counsel and client believed that the appeal was pending, and whether it was technically so in fact or not was not material.</p> <p>Second. As to the assignment and lien, and first as to the lien. An attorney’s lien, as now generally recognized, is of two kinds : The one a general lien upon the papers in his hands belonging to his client, which is a mere right to retain until his bill is paid; all deeds, vouchers, &c., upon which, or in connection with which, he has rendered professional services, or made disbursements in the cause. It confers no active right; it is passive, enabling the attorney to hold for whatever may be due to him, and although dismissed from the cause, if without .fault on his part, he may retain the papers in his possession until his professional services and disbursements are paid and refunded. 'In re Rasohal, 10 Wall. 483; Ex parte Nesbit, 2 Seh. & Lef. 279; Ex parte Sterling, 16 Ves. 258 ; dross on Lien, p. 216, oh. XV.,, passim.</p> <p>The other kind of lien is that which an attorney has upon a judgment recorded or money payable thereon, or upon a fund in court. This is not merely passive, but authorizes the taking of active steps. It did not exist at common law. In 1 Douglass 104, it is said by Lord Mansfield not to be very ancient. It is founded upon the first rule of ex cequo et bono, and is invoked by the courts for the protection of attorneys, as its own officers, by taking care that a “ party should not run away with the fruits of •the cause, without satisfying the legal demands of the attorney by whose industry and, in many cases, by whose expense those fruits are obtained.” Read v. Dupper, 6 T. R. 861. It is true that Lord Kenyon in this case makes the validity of the payment depend upon the bona fides with which it was made — that is to say, upon the absence of notice or knowledge on the defendant’s part of the claim of the plaintiff’s attorney; and this, I take it, is the main inquiry in this case, which will be considered hereafter.</p> <p>This lien, from its very nature, is equitable, and not legal. It is bottomed upon the equitable consideration that by the attorney’s skill and labor the judgment has been recovered, which being within the control of the court, and the parties to it within its jurisdiction, the court will see that no injustice is done to its own officers. The very recent New York decisions sustain this doctrine to its utmost limits, under the provisions of the new code (1879), which have extended this lien to any deserved or agreed compensation, to be recovered upon a quantum meruit, or by enforcing the express agreement. I do not understand by the provisions of our code that such lien extends beyond the taxable costs and disbursements, and the rule laid down in Soharlook v. dland, 1 Rioh. 207, is still the law in this State.</p> <p>Was there a contract of assignment between the plaintiff, Miller, and his attorneys of one-half the damages recovered by. the verdict, or a mere agreement by which they should have from him one-half of the same upon its recovery ? Whichever it was, it rests altogether in parol, and, in the view which I take of the case, it is not as vital a question as counsel seemed to regard it in the argument. If it was an assignment by the plaintiff, without the knowledge of the fact by the defendant, or of such facts in relation to it as should have put him upon inquiry, and he, in good faith, satisfied the plaintiff's demand, he would be entitled to the protection of the court, except as to the matter of costs and disbursements.'</p> <p>If it was an agreement by which the plaintiff was to pay his attorneys one-half of the verdict, and the defendant had no knowledge of such agreement, or of such facts in relation to it as should have put him upon inquiry, and he, in good faith, satisfied the plaintiff's demand, he would in like manner be entitled to the protection of the court except as to the matter of costs and disbursements. But under the principle laid down in the case of Lowry v. Pinson, 2 Bail. 324, if the payment was made to the plaintiff, with knowledge either of the assignment or agreement, and the defendant thereby intentionally enabled the plaintiff to defeat the claim of his attorneys, such payment cannot be sanctioned by the court beyond the number of dollars actually paid, and as an attempt to satisfy the whole demand it is vain and futile. The law upholds assignments of and agreements in relation to personal property by parol. Howell v. Bulhley, 1 Nott. & MoO., 249; Briggs v. Dorr, 19 Johns. 95.</p> <p>The proof, however, satisfies me that this was an assignment. The deposition of John E. Allen, an honorable counselor, is distinct and positive upon this point. He says (paragraph IV. of his affidavit), “that said plaintiff, after the said notice of appeal, assigned by parol one-half of said verdict to his said attorneys for their compensation in said trial,” &c. He was one of the active parties to the contract of assignment — the other party to it, Miller, has run away with the fruits of the cause; and although others have alluded in their depositions to this matter as an agreement, repeating the alleged declarations of the plaintiff, Miller, I am constrained to hold that there was an assignment of one-half of the verdict, and not a mere agreement to pay that sum.</p> <p>I have now to consider the last and most important inquiry in the case: Did the defendant have knowledge of the assigned claim of these parties, or knowledge of such facts in relation to it as should have put them upon inquiry ? After a careful review of the testimony, and the circumstances of this transaction, I am constrained to hold, in the language of Mr. Justice Bradley in In re Paschal, 10 Wall. 495; “that the defendant could not safely settle with the plaintiff, without paying” this claim. I am much impressed by the nature of this transaction, and the circumstances attending it — the long and bitter controversy between the parties, their hostile attitude towards each other, the protracted negotiations by “mutual friends,” chief amongst whom was J. C. Milford, evidently more the friend of the defendant than of the plaintiff; his reluctant appearance before the master, being brought up by subpoena; his gingerly deposition; the proof by Walters that defendant asked him to see the plaintiff, and ascertain if the matter could be compromised and settled, that he wanted Miller to get the benefit of what was paid in the compromise; could arrange it without going to town, &c. What possible benefit was contemplated here, save to the prejudice or injury of another? Why give the benefit of what was paid to Miller ? They were more than at arms-length; they were not in speaking distance of each other; they were enemies. The strange coincidence, too, of paying to Miller exactly the amount that he was entitled to under the assignment; and, more than all, the four days of secrecy imposed — secrecy so significant of the end accomplished, so readily acquiesced in, and so faithfully observed. Secrecy, from the time of Lord Coke, who denounced it as ‘ a mark of fraud/ down to the present day, is that detestable thing which courts of justice despise. Secrecy is a badge of fraud, because it tends to deceive creditors, and is not in the course in which honest men ordinarily transact business. Dona clandestina sunt suspiciosa. The secrecy which constitutes a badge of fraud, is not a mere want of notoriety, but a concealment, or an attempted concealment.” Big. Fraud 81.</p> <p>From these considerations, I hold that this transaction was fraudulent, and my conclusion may be well stated in the words of the learned judge who delivered the opinion of the court in the justly celebrated case of Lowry v. Pinson, supra: “ There is perhaps no principle of more universal application than that fraud avoids all contracts between parties themselves if one imposes on the other, and between them and third parties where they conspire to defraud others. And cases might arise where they could as readily be effected, where a full and fair price is paid. One rich in lands, houses, or other permanent property, resolves not to pay his debts, and another, knowing this, treats with him, and purchases his whole estate at a fair and full price, and thus enables him to fly from the claims of his creditors. Now, although the purchaser has gained no advantage, he has enabled the debtor to evade the payment of his debts, and the effect upon the creditor is precisely the same as if nothing had been paid.” The case at bar is stronger, for the defendant, Newell, would gain an advantage in being discharged from the payment of one-half of the verdict against him, and has enabled the plaintiff, Miller, to fly from the just claim of his creditors.</p> <p>The conclusion thus attained, might find just and valuable support in considering the relation between the defendant and J. C. Milford, the mutual friend or agent, through whose active intervention, at the request of the defendant, those negotiations were carried on and consummated. Milford deposes that Miller said to him (in the very midst of the negotiations), that “ he had agreed to give his attorneys a certain per cent, of the amount recovered, and if it was known that he was going ■ to make a compromise, his lawyers would not let him make the compromise.” “ It is not essential that notice be given to the party ■himself, but notice to his counsel, solicitor or agent is sufficient, whether given in the same or in another transaction, provided there be adequate reasons to conclude that the facts continued in remembrance.” Ad. Eq. 157. Can it be conceived that this matter, which was the very gist of the settlement, and the direct cause of, and reason for, the imposition of the desire of secrecy, should not have continued in “the remembrance of the agent,” even if they were not in fact communicated to the principal. I hold not.</p> <p>It is, therefore, ordered, adjudged and decreed: First. That the rule herein be and the same is hereby made absolute. Second. That the alleged satisfaction or receipt given by W. B. Miller, the plaintiff, to Newton J. Newell, the defendant, and entered in the sheriff’s book as satisfaction of said judgment and execution be and the same is hereby held to be satisfaction only pro tanto ; and that the sheriff for Anderson county do enforce the said execution against the said defendant for the balance due thereon, according to the force, form and effect of said judgment and execution for, and in behalf of, the plaintiff’s attorneys in the said cause,, who are the actors in this proceeding.</p> <p>From this judgment, the defendant appealed.</p>

Before Wallace, J., Edgefield, March, 1882. A very full statement of all the facts of this case will be found in the report of the first appeal, 11 8. C. 122. See, too, 15 8. O. 615. To the statement here made in the opinion of the court, it will be proper to add only that portion of Marshall Frazier’s will nominating his executors, and the requests to charge made by defendants and refused by the presiding judge, and forming the grounds of their exceptions, numbers 6 — 12.

Before Kershaw, J., Kershaw, September, 1882. Action by J. W. McKay against W. J. Beard, commenced June 8th, 1881. The opinion states the case, but it will be proper to add to that statement a copy of a notice published once a week for three weeks, commencing May 20th, 1880, in the “Darlington News,” as defendants, in their argument, laid stress upon this notice. It was in testimony that the defendant assented to the publication.

Before Cothran, J., Richland, October, 1881, and Wither-spoon, J., July, 1882. Action by George L. Dial, administrator of Asa Bnrke, against Henry L. Tappan, commenced June 6th, 1881. The opinion states the case. The order of Judge Cothran overruling the demurrer was as follows: It appears that these parties, in the same relation of plaintiff and defendants, and upon the same causes of action, have heretofore been in this court and in the Supreme Court.

Before Witherspoon, J., Richland, July, 1882. The opinion states the case. It appears from the brief that the $35,000 of bonds of the South Carolina Railroad Company, when sold by the bank of Charleston in December, 1878, realized $10,787.48, less $29.83 expenses of sale, thereby extinguishing the note and interest, and leaving a surplus of $174.32.

<p>Before Aldrich, J., Aiken, September, 1882.</p> <p>The opinion fully states tbe case.</p>

Before Pressley, J., Charleston, November, 1882. This was an action by G. W. Dingle against David Mitchell, for the recovery of a house and lot in the city of Charleston.

Before Aldrich, J., Beaufort, October, 1882. Tbis was an appeal from an order refusing a motion for non-suit. Tbe opinion states the case.

<p>1. If plaintiff was injured through the negligence of defendant, yet plaintiff could not recover damages for such injury unless he himself observed proper care and caution under the circumstances.</p> <p>2. In order to fix liability for negligence upon the.person at whose hands an injury has been received, the party injured must have exercised the care and caution of a prudent, reasonable man in possession of the ordinary senses and capacities of mankind. Proper care does not vary with the varying capacities or infirmities of men.</p> <p>3. Railway companies, though held to a high degree of care, do not insure, under all circumstances, the safety of passengers or those seeking to become passengers; their liability is conditioned on the exercise by them of reasonable and proper care and caution.</p>

Before Cothean, J., Greenville, November, 1882. This was an action by Samuel A. Nelson & Co. and Williams Bryce & Co., judgment creditors of Warren S. Good, against said Good and Williams Cox, to set aside a sale of a stock of goods-by Good to Cox.

<p>1. A widow residing with her child in the Island of Jersey, and being about to marry, transferred all her interest in the estate of her first husband, consisting of moneys, bonds, &c., in the hands of an administrator in South Carolina, to trustees in Jersey, without security, upon certain trusts in behalf of herself, and, after her death, in behalf of such issue as should attain their majority, or marry, &e., charged with a payment of half the income to her intended husband during life. Upon her death, leaving the said child, a minor, and her husband surviving, held, that the funds in South Carolina were not payable to the general guardian here of such infant, but to the trustees in Jersey under the marriage settlement.</p> <p>2. Held, further, that the money being in this State, and the cestui que trust who may become entitled to it being an infant, the courts here cannot permit it to be paid over to the foreign trustees, until satisfied that they have given sufficient security in the Island of Jersey for its proper administration.</p> <p>3. Before permitting property in this State belonging to an infant to be transferred beyond the limits of the State, the court must be satisfied (1) that the guardian has been regularly appointed according to the laws of the State in which the ward resides; (2) the fitness of such guardian for the appointment; and (3) that sufficient security has been given. And the same rule applies to cases of foreign trustees of. an infant cestui que trust, who has property here.</p> <p>4. This principle depends, not upon the residence of the infant in this State, but upon the responsibility of the courts of this State for the protection of property within their jurisdiction belonging to cestuis que trusts</p> <p>Mr. Chief Justice Simpson dissented so far as the opinion required* trustees to give security.</p>

<p>1. The right of homestead secured by the constitution and the several acts passed in pursuance thereof, is not an estate, but is a mere right of exemption ; hence, the only effect of an assignment of homestead is to ascertain and designate what particular property is covered by such exemption, so that the same cannot be applied to the payment of debts. And this the claimant, a widow, has the right to have done, upon petition to the proper officer.</p> <p>2. The homestead laws do not affect the statute of distributions. The title to property is not changed by its being designated as a homestead for the family of one deceased, but such property remains subject to division under the statute of distributions.</p>

Before Wallace, J., Abbeville, February, 1883. This was an action by Thomas Jones against the Columbia and Greenville Eailroad Company commenced in a trial-justice’s court, on March 23d, 1882, to recover the value of two hogs and one sheep, alleged to have been killed on the railway track by defendant’s train. The hogs were killed by a freight train in December, 1881, before Christmas, late in the evening, just before dark.

Before Pressley, J., Newberry, February, 1882. This was an action by Eldred C. Simkins against the Columbia and Greenville Railroad Company, commenced April 7th, 1881, to recover $500 damages for the killing of two horses belonging to plaintiff by a train of cars of the defendant company, on or about March 1st, 1881. The defendant denied liability and asserted as a counter-claim injuries done to the engine and cars of the company by the presence of these horses on the track.

Before Fraser, J., and Pressley, J., Union, June, 1881, and March, 1882. This was an action by Ira L. Bobo and others, distributees of. the estate of John Bishop,’ deceased, against W. H. Vaiden, administrator, and the sureties on his two bonds, for account and settlement, commenced August 29th, 1879. There were no unpaid creditors. The facts connected with the points made in this court are sufficiently stated in the opinion.

Before Hudson, J., Darlington, November, 1882. The decree of the Circuit judge makes a full statement of the case. Held: and, after much testimony, the referee stated the accounts and reported a balance due by Gatlin to Fields, on January 1st, 1860, of $1,218.04. With interest to November 16th, 1882, this amounts to $3,324.50.

Before Kershaw, J., Marion, June, 1882. This case is stated in the Circuit decree as follows: This ease was heard upon the testimony taken by the referee and the arguments of counsel.

Before Witherspoon, J., Laurens, February, 1883. Hon. T. B. Fraser, Circuit judge, sat in tbe place of tbe chief justice, wbo bad given an opinion in the case while at tbe bar.

<p>Before Wallace, J., Charleston, July, 1883.</p> <p>Controversy without action between Sarah H. Trumbo, plaintiff, and James D. Cumming, defendant. The opinion states the ■case.</p>

<p>1. Attention called to the necessity of giving dates in the “ Case ’’ as prepared for argument in the Supreme Court.</p> <p>2. A demandant in dower is entitled as of right to her costs for all expenses incurred in the admeasurement of her dower, including her exceptions to a return, which finally was confirmed.'</p> <p>3. The special provision for costs in cases of dower (Om. Stat., § 2287,) must be regarded as an exception to the general law (Ibid., § 2425 ; Code $ 323,) regulating costs, so far as the two may seem to conflict.</p> <p>4. The General Statutes of 1882 and the amended code of procedure having been adopted at the same time, must be regarded as one act.</p>

Before Kershaw, J., Newberry, July, 1883. This was an indictment against Coleman Hicks, Jr., and Charley Gallman, for burglary and larceny. The opinion states the case. cited Best Eo., p. 1060; Whart. Eo. 572-3; 1 Greenl. Evid. 467, 468; Reyn. Steph. Big. Em., Arts. 126, 127, 131.

<p>Before Wallace, J., Abbeville, February, 1883.</p>

Before Wallace, J., Anderson, March, 1883. This was an action by J. M. Richardson, assignee of Frances M. Moore, against W. M. Cooley and one of the sureties on his bond, the other distributees of Mrs. Ann Duckworth being also-parties defendant. Action commenced December 4th, 1880.

Before Witherspoon, J., Anderson, June, 1883. The opinion makes a full statement of the case. , A person cannot be tried twice for the same offense. It is forbidden by the common law, the Federal and State constitutions. Were the offenses the same? The question turns upon the meaning of the word “offense.” “Offense ” means any violation of law. Mr. Justice McLean uses the words “same act.” 18 Wall. 178 ; 1 Mart. & 7. 122; 1 Green. 375; 15 S. C. 370.

<p>1. A finding of fact by the Circuit judge, on a motion made before him for a preliminary injunction, sustained.</p> <p>2. Doubted, whether the managers appointed to hold an election on the question of county subscription to the Greenwood, Laurens and Spartanburg Railroad Company, were required by the act of 1880 (17 Stat. 497) to take any oath.</p> <p>3. The requirements of the statute authorizing an election to determine the question of a county subscription to a railroad company having been sub-</p> <p>\ stantially complied with, and the majority at the election so held having been admittedly in favor of such subscription, an injunction to restrain the issue of county bonds therefor was properly refused.</p> <p>4. The machinery provided for the conduct of elections, in so far as it is not necessary to determine the result, is directory and not mandatory. The great matter in elections is the result.</p> <p>5. Where the taxing power is involved, such power can be exercised only in the manner and form prescribed by the statute; but where the question is raised only as to a power that depends upon the result of an election, the sole inquiry then is, whether the election has been held and the result ascertained.</p>

<p>1. The failure of the Circuit judge to ask a prisoner convicted of murder,, “ If he has anything to say why judgment should not be pronounced on him,” is error, and requires a resentence, although the prisoner did not. demand that this question should be asked.</p> <p>2. But as this error affected the sentence only, the prisoner is not entitled to a new trial, but must be resentenced after being so asked.*</p>

Before Witherspoon, J., Laurens, February, 1883. This was an action by Permelia F. Pyles, as executrix of Newton Pyles, deceased, against W. B. Bell. The opinion states the case. Under the terms of the bankrupt act of 1867, section 21, this-action should have been dismissed. 1 Bank. Reg. 125, 165 4 Id. 156 ; 5 Id. 125; 7 How. 627; 45 Miss. 209 ¡8 8.0. 315;; 5 Id. 515.

<p>1. Certain lands of a bankrupt were excepted from the sale of his property by order of the United States District Court, but no formal assignment of such land as a homestead to the bankrupt was made by the United States Court, or by any State court, or ever filed for record with the clerk of court. Afterwards, the bankrupt sold a part of this land and then died intestate. Held, that the purchaser was entitled to this land, and that it could not be claimed by the widow of the bankrupt as a part of the homestead, nor by his heirs for partition.</p> <p>2. The United States Court in bankruptcy does not assign a homestead, but only excepts from sale and conveyance such property as is exempt under the State law, leaving the title of such excepted property in the bankrupt, which he may afterwards sell if he pleases.</p>

Before Pressley, J., Newberry, Fébruary, 1882. The opinion states the case. The action was commenced July 6th, 1880. If defendant received pay from Jones, and Jones was repaid, by Lake, the bond would not be void. If it had been, this would not avail defendant. Cheves 15. Upon payment by a surety, he-becomes, by operation of law, entitled to the benefit of a judgment against the principal.

<p>Before Wallace, J., Orangeburg, May, 1883.</p> <p>The opinion fully states the case.</p> <p>An indictment could not be amended at common law. 1 Arch. Or. L. 313; 4 Bwrr. 2529 ; Bac. Abr. title Indict. Q. II, ■title Amend. O. The statute of jeofails did not apply to pleas of the Crown. 1 Chit. Orim. L. 295; 2 Mason 145; 12 Mod. 229; 6 Mod. 281; 1 Bish. Or. Pro. 97, 98, 707, 710, 711. While amendments in the caption have been permitted, in our State amendments of the body of an indictment is unprecedented. 1 Brer. 169 ; 2 McCord 301. Difference between body and caption. 1 Arch. Or. L. 240. As to the absence of the accused, at a stage of the trial, see 1 Arch. 330, note 1; Buies Circwt Court, No. XXXV.; 1 Bish. Or. Pro. 265, 277, note 4. As “to the omission of the presiding judge to demand of prisoner whether he had aught to say why sentence of death should not be pronounced upon him — this is absolutely and indispensably necessary, and it must appear on the record, to make the judgment lawful. 1 Arch. Or. L.,p. 580; 1 Qhii. Orim. L.,p. 700 ; 1 Bish. Or. Pro. 1118, note 3; 4 Bl. Com. 370, 375; 2 Salic. 635 ; 3 Salk. 358 ; 3 Mod. 265. The appeal presents a series of violations of the constitutional safeguards of liberty and life. Cons., Art. I, Seo. 14. Unless this court intervenes,, a man — a very humble man — it is most respectfully submitted, will be deprived of his life, otherwise than by the law of the-land.</p>

Before Wallace, J., Aiken, September, 1883. This was a prosecution against J. E. Johnson for selling to G. W. Buzb.ee, on February 10th, 1882, a tract of land covered by liens without giving notice of such liens. On Februáry 20th, 1883, the same land was sold by the sheriff to John Jordan under a judgment and execution of 1877 in favor of Jordan against J. E. Johnson. There were also two mortgages resting upon the land at the time of sale.

Before Wallace, J., Orangeburg, May, 1883. This was a prosecution against George S. Shirer for breach of trust ,with fraudulent intent, and larceny, in taking money out of the safe of Banks & Smith, by whom defendant was employed. The defense was, that defendant was called out of his house after midnight, and then taken and tied by two men, who forced him to tell them the combination of the safe-lock. The opinion states the case.

<p>1. Findings of fact by the Circuit judge on written testimony reported to him,, approved.</p> <p>2. Where an intestate’s wards, who were also her heirs-at-law, asserted a. liability against a surety on the guardianship bond and accepted a settlement from such surety — in action afterwards brought by the surety to subject the lands of the deceased guardian to the repayment of the amounts-so paid by him, these wards and heirs-at-law are estopped from objecting that the surety was not liable until after an accounting by the guardian.</p> <p>3. Where money of wards is used in paying for land previously acquired by the guardian, there is no resulting trust in favor of the wards.</p> <p>4. Nevertheless, wards may claim the ownership of property paid for by their guardian, out of their estate, if they so elect, but having received money in settlement of the debt due by their guardian, they cannot afterwards claim the land also.</p> <p>5. Tenants in common cannot say that they are not in possession of the land in controversy, and, therefore, demand a dismissal of the complaint as to them, if their co-tenants are in possession.</p>

<p>Laborers employed in working upon tbe road-bed of a railroad company, which was engaged in carrying freight, passengers and mail, were summoned to work upon the public highways, but failed to appear. Upon being prosecuted for such failure, they interposed their daily and constant employment at that time as a justifiable excuse, which.defense was overruled by trial justice and Circuit judge. Held, that there being no definition'of what was a justifiable excuse in such cases, this court could not declare the ruling below to be error of law.</p>

Before Wallace, J., Newberry, November, 1882. - This was an action by Lorick & Lowrance against L. C. Mc-Creery, Sarah E. Blackwell and others, for partition. The opinion states the case. The exceptions raised the points stated in the opinion to have been interposed by defendants in their joint answer, as a defense.

<p>Before Kershaw, J., Chester, March, 1883.</p> <p>Action by W. H. McConnell against Addison F. Kitchens. The opinion fully states the case.</p> <p>The contract was not illegal and void. 17 Stat. 75. The chemical composition is not to be stated unless certain specified ingredients are asserted to be present. The tax was for purposes of revenue, and, therefore, its non-payment would not vitiate the contract. 14 Mees. & W. 452, 463; 11 East 180. As matter of fact it was paid, and receipt was exhibited at the trial. A sale without compliance with the requirements, is nowhere prohibited in the statute, and, therefore, the contract was not void. 26 Am. Bep. 149 ; 25 Id. 677. There are varying degrees of penalties for the several omissions; if the contract is void, there would be same for all. Absence of a tag would be as severely punished as a false analysis. The act of 1880 (17 Stat. 414), passed after these sales, provides for a forfeiture, thus showing that none previously existed. See 12 How. 85; 75 Va. 239 (40 Am. Bep. 720); 106 Mass. 435 (8 Am. Bep. 346).</p>

<p>1. The examination of a juror on bis wire dire should properly be conducted by the court.</p> <p>2. It is for the Circuit judge to decide whether a juror is indifferent or not. In this case, the judge did not abuse his discretion in permitting to be sworn a juror, who stated on his voire dire that he had read the newspaper accounts of the crime — had neither formed nor expressed any opinion of the guilt or innocence of the prisoner at the bar, but had said that “ any man who commits such a crime should be hanged,” and, further, “ that a man committing so shocking a crime as this was reported to be, did not deserve a trial by jury.”</p> <p>3. The trial-judge refused to permit defendant’s counsel, in a murder trial, to ' read to an expert what had been said by a physician proved to be high authority on the subject of transitoria mania, as foqnd in a medical journal, and then to ask such witness whether he concurred in those views, but counsel was permitted to frame from such publication questions for the witness as to his own opinions, and also to read to the .jury at pleasure from standard authors upon medical jurisprudence. Held, that there was no error in the judge’s ruling.</p> <p>4. It is not proper to ask physician-experts their opinion of the prisoner’s sanity from the testimony given in the case on trial, but they may be asked their views generally, or with reference to a similar case hypothetically stated.</p> <p>5. The judge refused to charge the jury “that if they believe that the prisoner had no motive for killing the deceased, as shown by words or deeds previous or subsequent to the act, then they must acquit him on the ground of want of criminal intent,” and instead charged “ that the intent must exist and be shown to exist, but the motive may not be discovered; the absence of a motive revealed is a circumstance to be duly considered in weighing the question of guilt.” Held, that in this there was no error.</p> <p>6. The judge refused to charge the jury “ that it is the duty of the State to prove that the prisoner was of sound mind when he committed the act, and if, from the evidence, the defense create a reasonable doubt about the prisoner being sane, you must give the prisoner the benefit of that doubt,” but on the contrary charged “that the burden of proving soundness of mind is not, in the first instance, on the State; it is a defense, and if established, will prevail when interposed by defendant; the jury must be satisfied of defendant’s sanity before they can convict; the defendant is entitled to be acquitted if reasonable doubt of his capacity to commit crime is raised in the minds of the jury, but that the doubt to be raised in favor of the prisoner must be a serious, well-founded, substantial doubt.” Sdd, that in this there was no error.</p> <p>7. The Circuit judge is authorized to send to the asylum any person who, upon trial before him, proves to be of unsound mind, but he is not required to do so.</p> <p>8. Where insanity is the defense, the judge did not err in instructing the jury . that if a reasonable doubt is raised in their mind as to defendant’s capacity to commit crime, their verdict must be “ not guilty,” but not necessarily “ by reason of insanity.”</p> <p>9. The mere plea of insanity does not render the atrocity of the deed evidence of the insanity of the perpetrator.</p>

<p>A., the owner and cultivator of a field, gave to B. a verbal, vague and voluntary permission to plant therein a patch of turnips, without consideration, or particular mention of any part of the field, and afterwards the wife of A., with his consent, cut the turnips up. Held, that B. did not have such possession of real property as would support an indictment against the wife of A. for malicious trespass under the statute. Qen. Stat., I 2501.</p>

<p>Before Pressley, J., Newberry, February, 1882.</p> <p>This was an action against H. H. Blease. The opinion states', the pleadings and the exceptions. The order of the Circuit-judge was as follows:</p> <p>This is an action on three promissory notes. The complaint, in its caption sets out “ Henry Bischoff, C. Wulbern and J. Ii.. Pieper, trading under the name and style of Henry Bischoff & Co.,” as the plaintiffs. Each allegation on the separate notes-states that “defendant gave his promissory note in writing,, whereby he promised to pay the plaintiffs, Henry Bischoff &. Co.,” the sum stated. There is no statement whether they sue as-partners under the name of “Bischoff & Co.” or only as joint owners of said notes, using the name of Bischoff & Co. in that particular transaction. Defendant demurs on the ground that the complaint does not state facts sufficient to constitute a cause-of action.</p> <p>My judgment is, that the complaint does allege that the persons named as plaintiffs in the caption are the Henry Bischoff &, «Co. to whom said notes were given, and to whom defendant •promised payment of the amount of said notes. To maintain their action, it is not necessary that they allege or prove whether they are partners or only joint owners of said notes. Proof that •the notes were given to them under that name by the defendant, would clearly entitle them to recover, and that proof would be •clearly admissible under said allegations.</p> <p>The demurrer is overruled, .and plaintiffs have leave to enter judgment and issue execution for the amount of said notes, with interest and costs.</p> <p>Averment is necessary in the body of the complaint that plaintiffs are partners. 2 Wait Pr. 373; 58 How. Pr. 1. The complaint should state every fact which plaintiff must prove to enable him to maintain his suit, and which defendant has a right to contradict in his answer. 7 N. Y. 478; 10 Id. 363 ; 3 Puer •632; 9 Barb. 158; 20 Barb. 455. Allegation that plaintiff is •owner and holder is surplusage. Voorh. Code (10th edit.) 163, ■notef.; 7 Abb. Pr. (N. 8.) 146; 33 Mo. 364; 32 Cal. 569; 40 Id. 440. The defects here are substantial and are reached by this demurrer. 5 N. Y. 357; 22 How. Pr. 30; Wait Anno. Code 238. The defendant should have been allowed to answer.</p> <p>The title of the cause is a part of the complaint, and the ■names of the plaintiffs should there be stated. Code, § 163. A copartnership as such cannot sue, but the members thereof may •sue jointly; they do so, however, as individuals and in their individual names. 6 8. C. 173; 2 Wait Pr. 370. Therefore, •the authority cited, 2 Id. 373, does not apply. Besides, the ■allegations, with the copies of the notes sued on, imply that plaintiffs are the owners and that the notes are due. Code, § 183 ; 2 Wait Pr. 315-327. But the notes being given to Bischoff & Co., testimony would be admissible to show that the notes were given to plaintiffs under the name of Bischoff & Co. 2 Wait Pr. 310, 333, 453. The facts stated could be put in issue only by a denial in an answer. Id. 416. No motion was-made for leave to answer, and such leave was within the discretion of the Circuit judge. Id. 455.</p>

<p>Before Kershaw, J., Newberry, November, 1880.</p> <p>The opinion fully states the case.</p>

Before Wallace, J., Abbeville, February, 1883. This was a petition filed in the Probate Court on May 11th, 1881, by P. A. Covin and S. R. Morrah, qualified executors of Louis Covin, deceased, for final discharge and settlement. The will was dated November 3d, 1875, and testator died July 9th, 1880. S. R. Morrah died August 2d, 1882. The case is otherwise fully stated in the opinion of this court and the Circuit decree.

<p>Before Hudson, J., Newberry, November, 1883.</p> <p>This was an action by William T. Huff against William Watkins, commenced May 16th, 1879. The complaint alleges that, about January 1st, 1879, the plaintiff employed one Jordan Butler to serve him as an agricultural laborer for and during that, year, and that he did so serve the plaintiff for about the period of two months, receiving advances in the meanwhile from the plaintiff; that about March 1st the said Jordan Butler, secretly and without cause, left the employ of the said plaintiff and hired to the defendant; that the plaintiff at once gave notice, by public-advertisement and to the defendant personally, that the services of Jordan Butler were due to the plaintiff for said year, and required the defendant to discharge him from his employ; that the defendant failed to discharge the said Jordan Butler, and still ■continued to employ him, to the plaintiff’s damage of $1,000, .and demands judgment for $1,000 and the costs and disbursements of this action. Other matters are stated in the opinion.</p> <p>cited Code, § 142; 2 Add. Torts 538, note 1, 540, 558; Toll. Ex. 460-462; 1 Chit. PI. 113, 153; Code, § 188; 2 Wait Pr. 356-365.</p> <p>cited 3 Bouv. Inst. 173, §§ '2750-53 ; 12 Rich. 284; 37 N. J. 372; 58 N. T. 282; 44 Am. Bee. 159 ; 1 Bay 58 ; 2 Beav. 159 ; 16 Rep. 575; 49 L. T. _ZV. S. 5; Code, § 323.</p>

<p>1. A landlord’s lien for rent is not defeated by his taking a writing under seal, whereby the tenant promises to pay the amount agreed upon “for the rent of the place.”</p> <p>2. A landlord having given notice to a constable of his claim for the tenant’s past-due rent of the current year, after the constable had levied executions upon the tenant’s personal property, on the leased premises, and before removal, the landlord was entitled to judgment against the constable for the proceeds of the sale (they being less than the amount due for rent), the constable having sold the property and refused to pay such rent. Gen. Stab., I 1824.</p> <p>•3. This being “ an action for damages for injury to rights pertaining to personal property,” it was within the jurisdiction of a trial justice. Code, \ 71, ¶ 2.</p>

Before Hudson, J., and Pressley, J., Spartanburg, April, 1881, and March, 1882. This was an action, which came up on appeal under the title of Elizabeth A. Griffin, by her committee, William L. Morgan, against John H. Griffin. The action was commenced September 8th, 1878.

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

<p>Before Aldrich, J., Anderson, February, 1882.</p> <p>Action by Josbua Acker against the county of Anderson. The charge to the jury was as follows :</p> <p>The legislation on which the plaintiff relies to support his ■ action is good law. It makes the taxpayers mutual insurers for the protection of persons and property. This is right. If injury is done to the citizen by the carelessness, negligence or ignorance of its officers, whom the people have elected to perform the duties required by law, the whole body of the people who ■ elected him should be held responsible for his acts.</p> <p>The first question you will have to consider is, Was this sign or advertisement a public inconvenience, and did the county commissioners know not only of its existence but of its tendency to frighten horses and mules passing on the bridge? Second... Did they have it removed as soon as it came to their knowledge ?" The commissioners are bound by law to keep the bridge in repair. Was it safe?</p> <p>There is a feature in this case you are bound to consider before.you make the county liable: Did the plaintiff by his own negligence contribute to this accident? Would a prudent man have driven his mule across the bridge, with two ladies in his buggy, with the sign staring him in the face? If you conclude that this plaintiff contributed by his own negligence to the accident, he cannot recover. Would a .man of ordinary prudence have driven, or led, across the bridge, as Mr. Breazeale said he did ?</p> <p>You will bear in mind that the commissioners cannot keep a guard at each bridge to prevent ingenious persons from painting their signs and placards on the bridges spanning the streams of the county. They are not insurers against accident. Their duty is to keep the highways and bridges in repair so as to facilitate travel and commerce. If the bridge was in good repair, and the placard not sufficient to frighten good work animals in harness, the county has done all it was required to do. Bridges are not to be constructed so as to make them safe against vicious, fractious and obstinate horses and mules, but to secure safe travel for well-broken animals. If you conclude this “ force-pump ” placard was a nuisance well calculated to scare horses; that it was not removed when the county commissioners had it brought to their notice, and that the plaintiff did not by his own negligence and imprudence contribute to the accident, then you will determine what damage he has sustained and render your verdict .accordingly.</p> <p>As to all other matters, the opinion fully states the case.</p>

Before Hudson, J., Richland, April, 1883. This case came up on appeal upon the following exceptions to the Circuit decree: 1. “Because his Honor overruled the exceptions of P. F. Frazee, the respondent, to the master’s report, and confirmed the said report. 2. “ Because his Honor ruled, and erred in ruling, that this matter was a special proceeding, and not an action, and that no summons need be issued and served in said cause. 3. “Because his Honor erred in holding that the…

<p>Before Fraser, J., Chesterfield, May, 1883.</p> <p>This was an action by Henrietta Burch against W. P. Brantley, Eliza J. Brantley, John H. Brantley and W. B. Hancock, •commenced in May, 1881. Plaintiff claimed as a purchaser at sheriff’s sale on April 5th, 1880, under execution of Garhart & JBro. y. W. P. Brantley. Other matters are stated in the opinion.</p> <p>The order overruling the demurrer was as follows :</p> <p>The pleadings in this case having been read, the defendants interposed an oral demurrer, that the complaint does not state-facts sufficient to constitute a cause of action. The fact of a. deed for the land in dispute, made by W. P. Brantley to W.. B. Hancock, while stated with an “if,” is certainly assumed in the complaint, and relief is demanded based on that fact. That deed can be assailed by the creditor for fraud only after a.' return of nulla bona, which has not been alleged. The purchaser at sheriff’s sale, under the judgment and execution, can be in no better position, if, indeed, such a purchaser takes anything at such a sale, when the legal title before judgment has passed out of the debtor.</p> <p>It is therefore ordered, that the complaint be dismissed with costs, without prejudice to any future proceeding the plaintiff may be advised to take in this matter.</p> <p>Plaintiff appealed and asked for a reversal of this order, upon the following grounds:</p> <p>1. Because his Honor, the presiding judge, erred in dismissing the complaint.</p> <p>2. Because his Honor, the presiding judge, erred in holding that the complaint did not state facts sufficient to constitute a cause of action.</p> <p>3. Because his Honor erred in holding that the complaint was in the nature of a creditor’s bill, when it was a complaint by one not a creditor of any of the defendants, to recover possession of real estate purchased at sheriff’s sale.</p> <p>4. Because plaintiff had no control of the execution under which she purchased the land at sheriff’s sale, as creditor of the defendant Brantley, or otherwise, and could not proceed in that capacity, and his Honor should have so held.</p> <p>5. His Honor erred in holding that the plaintiff should have alleged a nulla bona return on the execution under which the land was sold, when sheriff had sold the land under said execution as the land of W. P. Brantley, and plaintiff only claims under said deed.</p> <p>6. Because his Honor erred in holding that plaintiff admitted that the legal title to said land was in -W. B. Hancock, trustee, when complaint alleges that plaintiff has legal title to said land,, and that the deed which defendants say was made to W. B. Hancock, if ever made, was null and void.</p> <p>7. Because his Honor erred in holding that a purchaser at-sheriff’s sale, in an action to recover the real estate so purchased,, could not attack a fraudulent deed made by judgment-debtor to-third person, when said deed is set up in defendants’ answer,without plaintiff alleges in the complaint that there has been a return of nulla bona upon the execution.</p> <p>8. His Honor erred in holding that the plaintiff, a purchaser at sheriff’s sale, could not, in the same complaint, ask for the-possession of the land so purchased, and that a fraudulent deed-from the judgment-debtor to a third person, in trust for the wife-of said debtor, be declared void.</p> <p>9. His Honor erred in holding that a purchaser at sheriff’s sale, for valuable consideration, without notice, is in no better position to attack a fraudulent deed made by judgment-debtor-than is the judgment-creditor.</p> <p>1. The paramount question in this case seems to be, Can the-plaintiff, a purchaser at sheriff’s sale, without notice, in an action to recover the land so purchased, ask that a conveyance made by the judgment-creditor, just before judgment obtained, be set aside- and declared to be null and void under the Stat. 13 Eliz. (Gen.. Stat. of 1872, 425) ? Under the practice prior to the code there seems to be no doubt that this could be done. See 2 Bailey 324; 1 Mill 380 ; 9 Rich. 106 ; 14 Rich. 95. This is certainly the-present practice as to personal property fraudulently disposed of.. 17 S. G. 288, and cases there cited.</p> <p>2. There seems to be no change made in the practice by the-code. See 3 S. C. 577; 13 S. O. 379. The case of Verner v. 1Downs, 13 S. C. 449, is not in conflict with this position, for-.■that “ action is in the nature of a creditor’s bill,” in which class of cases evidence of a nulla bona return must be had to entitle .the plaintiff to demand the aid of a court of equity. This is not a creditor’s bill, but an action by a purchaser at sheriff’s sale to recover possession of land. So, also, is distinguished Rags-dale, v. Holmes, 1 S. G. 91. This has not been changed by the decision in the case of Súber v. Chandler, 18 S. C. 526, which had reference only to the time from which the currency of the statute of limitations would begin.</p> <p>3. The authorities first above cited, we conclude, sustain the proposition, that it is not necessary, in a case of this kind, to ..allege a nulla bona return. And we submit,, that these cases are founded on sound reason. The sheriff could not make a return •of nulla bona on the execution under which this land was sold, for the land was there, in the possession and use of the defendant Brantley, the sheriff had no notice of Hancock’s claim, and nothing was in the way except a deed, of which neither sheriff, plaintiff nor execution-creditor had notice, and which the statute says is null and void, which means absolutely of no effect. Webs. Unab. Riot. Besides, the case of Súber v. Chandler, supra, certainly does not require nulla bona to be alleged; if anything, it only requires that it be shown.</p> <p>4. Henrietta Burch, the plaintiff herein, being an innocent purchaser at sheriff’s sale, without notice, is not affected by the ■ equities existing between Carhart & Bro., the execution-creditors, -and the defendant Brantley.</p> <p>5. The plaintiff was certainly entitled to the interest of W. P. Brantley, and, even if there was a trust deed — if Brantley had ■reduced land to possession — he had a leviable interest in it. 11 S. C. 71.</p>

Before Wallace, J., Greenville, April, 1883. Action by J. H. Sullivan & Co. against Hewlet Sullivan, commenced December 18th, 1880.

Before Hudson, J., Laurens, September, 1883. The exceptions and the opinion of this court constitute a fuii statement of the case. The former were as follows : 1.

Before Aldrich, J., Georgetown, March, 1883. This was an action by Boanoke Myers against P. A. Ham, commenced January 20th, 1883.

<p>1. Action upon an administration bond may be prosecuted in the name of the Probate judge, as successor of the ordinary to whom the bond was given. The decision in Hammer v. Hope, 9 S. G. 253, stated.</p> <p>2. This court can only affirm, reverse or modify judgments of the courts below; therefore, in reversing a decree which sustained a demurrer to the complaint, it has no power to grant leave to defendant to answer over.</p>

<p>Before Cothran, J., Abbeville, September, 1882.</p> <p>This was an action by F. W. Wagener & Co. against T. W. Mars, commenced September 28th, 1881. The opinion sufficiently states the case. The draft referred to was as follows :</p> <p>No. 27,627. The National Bank of Columbus, Georgia, Oct. 5, 1880. Pay to the order of W. W. and T. W. Mars, Twenty-One Hundred and Eight 17-100 Hollars.</p> <p>G. W. DÍLLINGHAN, Cashier.</p> <p>$2,108.17. To John J. Cisco & Son, New York.</p> <p>Indorsed: W. W. and T. W. Mars.</p> <p>and on the same side argument of the late Mr. Armistead Burt was read.</p>

<p>Before Kershaw, J., Newberry, July, 1883.</p> <p>The opinion fully states the case.</p>

<p>Before Pressley, J., and Hudson, J., Lancaster, October,, 1881, and June, 1883.</p> <p>This case is fully stated in the opinion.</p>

<p>Beal estate was purchased by A. and B., partners in a mercantile business, for partnership purposes; A. sold his interest to B., but made no deed, and subsequently they both signed a deed conveying the land to a stranger. Afterwards B. died. Held, that his widow was entitled to dower in the one-half interest held by B. under the deed to A. and B., but not in the other half, to which B. never had a legal title.</p>

<p>Before "Wallace, J., Charleston, June, 1883.</p> <p>This was an action by John H. Devereux against C. C. Bowen, executor of Susan P. Bowen, to enforce a mechanics’ lien. After the death of C. C. Bowen it was revived and continued against W. N. Taft, in his own right and as administrator with the will annexed of Susan P. Bowen, G. W. Dingle, administrator of C. C. Bowen, and Mrs. Mary Taft. The case was referred to the master, W. D. Clancy, Esq., to inquire and report upon the issues of law and fact involved, with leave to report any special matter. He made reports, as stated in the opinion of this court, in April and June, 1883, to which, inter alia, the following exceptions were taken by the plaintiff:</p> <p>3. Because the master erred, in that he should have found that W. N. Taft, the assignee of the said mortgage, having purchased the mortgaged premises at a tax sale, thereby merged the mortgage in the fee and extinguished the lien thereof.</p> <p>6. Because the master erred in recommending that the said W. N. Taft be refunded all amounts expended by him for taxes and insurance on the premises before the debt he reports due to J. H. Devereux be paid.</p> <p>7. Because the master erred in ruling that the plaintiff was not entitled to recover interest on the balance due him, the subject of mechanics’ lien.</p> <p>The master’s report was confirmed by the Circuit judge, and from his decree plaintiff appealed to this court “ upon the exceptions heretofore filed to the report of Master Clancy.” Other matters are stated in the opinion.</p> <p>By his purchase at tax sale, Taft has extinguished his lien. 1 Jones Mort., §§ 680, 711, 715 ; Tax Act of 1874, § 9; 1 MoOord 400; Bailey Eq. 338 ; 6 Bich. Eq. 343; 9 Id. 53; 6 8. O. 316. Passages may be cited from Jones on Mortgages to show that there is no merger in such a case, but the authorities upon which he bases his text are from States which adhere to the old common law mortgage. See 1 Jones Mort., § 873. In this State a mortgage is a lien and not an estate. His purchase, however, did not discharge the mechanics’ lien. Tax Act of 1874, § 99. Taft cannot be re-imbursed for taxes and insurance; the mortgage did not provide for such payments, and he paid either as volunteer or owner. Plaintiff having been kept out of money, for which he holds a lien, he is entitled to interest. 2 8pears 536.</p> <p>There can be no merger when there is an intervening lien or estate which would be paid to the detriment of him whose rights are merged. 16 8. O. 330; 1 Jones Mort, §§ 848,857,870-873. The taxes and insurance were necessary to save the security. There can be no interest on plaintiff’s demand. It is not an account stated; it has always been disputed, and the amount in doubt. The lien, having been filed after Mrs. Susan Bowen’s death, conferred no specific lien. Ohio. L. N., June 30th, 1883. The mechanics’ lien was waived as to this mortgage, for the mortgage was given to secure money advanced to pay plaintiff. Oroohs v. Finney, 8. G. Ohio, 1883.</p>

Before Wallace, J., Greenville, April, 1883. The opinion fully states the case. The Circuit decree (omitting its statement of facts, which is repeated in the opinion,) was as follows: Isabella Shelton now files her complaint in the Probate Court, demanding dower in the lands of which her husband had died seized, and had devised by his last will.

<p>Before Wallace, J., Anderson, March, 1883.</p> <p>The opinion states the case.</p>

Before Wallace, J., Greenville, March, 1883. The opinion states- the cases. Written instruments must be perfect and complete when delivered. A sealed note must be in writing. Bouv. Biot. 186; Story Prom. N., § 9. There must be an obligor and an obligee. Id. A note must have a maker and a payee. Dan. Neg. Inst. 87, 89, 111, 116, 128; Story Prom. N. 40, 42; Byles Bills 63, 147; 4 McCord 239.