Volume 21 — South Carolina Reports

Before Hudson, J., Richland, April, 1883. This was an action commenced in August,' 1881, by Sarah N. Reeves, Eliza A. Lewis, substituted trustee under the will of Robert N. Lewis, and others, against Henry L. Tappan, Edwin E. Gary, and Geo. L. Dial, administrator, for the recovery of a lot of land in the city of Columbia. The plaintiffs are the children of D. B. Lewis, and claimed the land under the will of their uncle, Robert N. Lewis.

Before Aldrich, J., Georgetown, March, 1883. The opinion fully states the case.

Before Aldrich, J., Marlboro, June, 1883. The opinion fully states the case. The complaint is sufficient. 18 S. C., 469. No proof that twenty years have elapsed since last return. Presumption commenced to run at death of administrator. 16 8. C., 184; 5 Rich. JSq., 31; 3 Hill, 335; Harper, 287. Plea of payment should be specially pleaded and opportunity offered to contest it with proof. See 17 8. C., 488; 3 Strob., 450. This is an action against a trustee. 14 Rich.

Before Cothran, J., Charleston, February, 1883. The opinion states the case. The order of the Circuit judge refusing a motion to set aside the order of nonsuit was as follows : There is no doubt that at common law, in a suit brought by a corporation, it was necessary for the plaintiff to prove themselves duly incorporated by competent authority, on the plea of the general issue. Ang. $ Ames Corp., § 634.

<p>1. The complaint alleged that plaintiff purchased at A a through ticket to C, over railroad lines E and F, and on the route lost her trunk, for which she demanded damages of F. Held, that in failing to allege that E and F were joint contractors, or that the trunk had been received by F, the complaint did not state facts sufficient to constitute a cause of action.</p> <p>2. The sale of a through ticket over two or more connecting lines of railroad is not evidence of a joint contract between such roads whereby one should become responsible for the default of another.</p> <p>3. In action against a railroad company for the value of a trunk lost on a connecting lino before it reached the defendant’s road, a nonsuit was properly ordered, there being no evidence of a joint contract between the two railroads.</p> <p>4. This case distinguished from Bradford v. South Carolina Railroad, Company, 7 Rich., 201.</p> <p>Mr. Justice McGowan concurred in the result.</p>

<p>Before Kershaw, J., Edgefield, October, 1882.</p> <p>The opinion states the case. The Circuit decree was as follows:</p> <p>This case was heard upon exceptions taken to the report of the master by both plaintiff and defendant. Several questions were made, which shall be considered in their order.</p> <p>1. Was the plaintiff entitled to commissions on money invested by him in the purchase of land, with the approval of the cestui que trust, and in accordance with the powers conferred upon him by the deed ? A trustee is allowed commissions on all money received and paid out by him in due course of administration of the trust. If, therefore, the money expended in the purchase of the land in question was rightfully invested, of which there is no question, the trustee is entitled to his commissions upon the amount so paid. It would be a strange anomaly, if a cestui que trust could direct an investment of trust funds in the purchase of land, and by such investment defeat the just claim of the trustee to compensation for his services and responsibilities as trustee, and there is no propriety or equity in such a proceeding which will entitle the cestui que trust to claim the protection of this court against such a demand on the part of the trustee.</p> <p>2. Money was loaned to one Cheatham, with the approval of the cestui que trust, upon a note and mortgage, which were turned over to defendant as part of the trust property. It turned out that the note was not wholly collected. Defendant excepts to the allowance of commissions on the whole amount of the note and mortgage. This question will be disposed of by overruling the exception upon the authority of the cases of Ball v. Broivn, Bail. Bq., 374, and the decisions there referred to, of which Deas v. Spann, Harp. Bq., 176, may be considered the leading case. Where the trust estate consists of bonds, notes, or other choses in action, which the trustee turns over to the cestui que trust, and they are received as money, commissions are due upon such a transaction, as if the trustee had collected the securities and paid over the money.</p> <p>3. The trustee recovered a judgment, which was agreed by the cestui que trust to be assigned to one Hollingsworth upon his paying her $5,000, and satisfying the costs and fees of the lawyers of the trustee who obtained the judgment — the whole amount to be paid by Hollingsworth not to exceed $7,061. This was regarded as a compromise arrangement, and was assented to by the trustee, who executed the assignment. The money was paid by Hollingsworth, according to the agreement, $5,000 to the defendant, and the balance, $1,861, to the costs and fees of the lawyers. The master has allowed commissions on the amount paid to defendant only. Defendant excepts to the allowance of any commissions on this trust action, while plaintiff excepts, because commissions were not allowed upon the whole amount which Hollingsworth agreed upon as the utmost extent of his liability.</p> <p>Both exceptions are overruled. The defendant’s, on the authority of the cases cited above, and the plaintiff’s, because this ivas a compromise made by the defendant, to which he assented, and which is the same, in effect, as if he had assigned the judgment to Hollingsworth upon the payment of $5,000, with an indemnity against the claims of his attorneys for their costs and fees. If the attorneys had been content to receive nothing from Hollingsworth and released him, as they might have done, would it be pretended that the plaintiff could have charged commissions on the sum they might have claimed for their services, but which they sawr fit to remit? In no sense can the money paid by Hollingsworth to the lawyers under this arrangement be deemed equivalent to the receipt and disbursement of money by the trustee, and therefore the foundation for the claim of commissions does not exist.</p> <p>4. The eighth exception of the defendant objects to any commissions being allowed the trustee, because she was entitled, after the death of her husband, to have the whole trust estate turned over to her. I am unable to find any question to discuss in this exception. If defendant was entitled to the estate after the death of her husband, and that estate consisted of choses in action, and other securities for money payable to the trustee, how could she receive the same, unless the trustee either collected the securities and paid over the money, or assigned them to her ? In either case, as I have shown, he would be entitled to commissions.</p> <p>5. The plaintiff excepts also to any finding of fact by the master, but I cannot conceive how he could have obeyed the order of the court, which required him to take the testimony and state the accounts between the plaintiff and the defendant, without a finding of facts, and this exception is also overruled.</p> <p>6. The defendant’s sixth and seventh exceptions are well taken. The plaintiff is estopped and cannot claim that the money received by him from the sheriff, and paid over to the defendant, was not a part of the trust estate; at least, under the circumstances, the defendant cannot here be made liable to refund the amount should the contingency hereafter happen which the master has sought to provide for. We can only, in this action, deal with existing facts properly in evidence. These exceptions are sustained.</p> <p>7. The last exceptions to be noticed are those of the plaintiff (the first and fourth) which complain that the master allowed the counter-claim set up by the answer. This claim consists of a note which, it was said, was held by defendant’s deceased husband, payable to him, and made by the plaintiff, which came to defendant’s hands as executrix of her husband. The plaintiff demurred to this counter-claim, and objected to any evidence being received in regard to it. The plaintiff also excepts to a finding of the master, as matter of fact, that the deceased husband, Robert D. Brunson, left a will, or that defendant was executrix, because there was no proof of these facts. He also excepts to the allowance of the counter-claim, because the note, if the facts are conceded, could not be set up as a counter- claim.</p> <p>These exceptions must be allowed. The answer does not contain a sufficient allegation to support the counter-claim, nor was the title of the defendant, as executrix, sufficiently proven. Nor can the note in question be the proper subject of a counter-claim in this action, not being due to defendant in the same right in which she is sued. The note is claimed to be due to her as executrix, while she is sued in her individual and personal character. She could not maintain an action on it in her own right, and consequently cannot set it up as a counter-claim in an action brought against her personally. Pom. Pem., § 751. It is not impossible that she might have made it the subject of an application to the court in proper form, in behalf of the estate which she claims to represent, so that whatever the plaintiff might recover in this action should be subjected to the payment of the debt, and it may be that after the recovery of judgment herein, some such relief may be had, especially if plaintiff is in insolvent circumstances; but as a counter-claim herein, it cannot be sustained for the reasons given.</p> <p>It is therefore ordered and adjudged, That the report, as modified by this decree, be confirmed and made the judgment of this court, and that the defendant pay the plaintiff the sum of two hundred and forty-six 37-100 dollars, and also the costs of this action, to be adjudged by the clerk and by him inserted in the judgment, and that plaintiff have execution therefor.</p> <p>Under our statutes, a trustee is entitled to commissions only on moneys, &c., received and paid away. Bail. Fq., 374. Lanier never received nor paid away this money, and he had no right to receive it, for the judgments were in favor of Mrs. Brunson and in her name. 11 S. 0., 566. Besides, the husband being dead, there was no longer any trust. Speer Fq., 587. The cases cited by the Circuit judge — Bail. Fq., 374; Harp. Fq., 176— do not apply; for here the judgments were recovered by Mrs. Brunson. See 2 McOord Qh., 473. Lanier’s consent was purely formal, and amounted to nothing. Under the circumstances of this case, the counter-claim was proper. Water. Set-Off, §§10-17; 12 Am. Bee., 155; 10 Paige, 369; Bail. Fq., 156; 2 MeOord, 185.</p> <p>As trustee acting, and for services rendered, Lanier was entitled'to the commissions claimed. Statute of uses has no application to personal property. Speer Fq., 579, 593; 6 Rich., 315; 3 S. (7., 78; 5 Id., 446. The trust was not executed at Brunson’s death, the judgment was never assigned to Mrs. B., and the trustee’s control continued. There must be delivery of possession to divest a trustee of the legal title to personalty. Hill Trust., 236, 248, and cases supra. Where otherwise executed, the beneficiary was in possession. At any rate, he is entitled to commissions. Pars. Cont., 793 — 99; Herm. Fst., §§ 322,417. But he constructively received the money. Bail. Fq., 374. And the trust deed expressly provides for compensation. 13 Bieh. Fq., 195. The counter-claim was properly excluded. Code, §§ 170, 171; Pom. Bern., §§749, 750. And for want of proof.</p>

<p>Before Wallace, J., Orangeburg, May, 1883.</p> <p>The opinion fully states the case.</p>

Before Hudson, J., York, June, 1883. Tins was an action by W. W. Gaffney against Daniel Peeler and others for the recovery of a tract of land, commenced k in 1882. The defendants are the heirs-at-law of Daniel Peeler, sr. The plaintiff claimed under this same Daniel Peeler, sr., under the chain of titles stated in the opinion of this court.

Before Fraser, J., Chesterfield, April, 1883. The opinion states the cases. In action for the recovery of real estate, the plaintiff must recover on the strength of his own title. Tylér JEject., 72; 14 S. C., 483; 15 Id., 268. In making a sale, there must be a valid process to which the sheriff can refer his authority. Rorer Jud. Sales, § 590; 1 Hill, 416 ; 1 Bailey, 618; 13 Rieh. JEq., 246. In execution sales, both judgment and execution are necessary links in the title.

Before Wallace, J., Colleton, October, 1883. Action by J. H. Freer, trustee, against George Tupper and J. Moreland Campbell, commenced in July, 1883. The opinion states the case. I. Defendant’s motion for non-suit should be sustained: First.

<p>Before Pressley, J., Aiken, February, 1883.</p> <p>The opinion makes a full statement of the case.</p>

<p>Before Pressley, J., Aiken, February, 1883.</p> <p>This case is supplemental to the case of B. Garvin v. J. Garvin, next case ante, p. 83, and the two were heard together in this court. The opinion sufficiently states the case.</p>

Before Wallace, J., Greenville, April, 1883. This was an action by Richard Davis, as administrator of his son, Richard J. Davis, against the Columbia and Greenville Railroad Company, to recover $20,000 damages for killing Richard J. while in the employment of the defendant. The intestate was killed on the night of May 20, 1881, and the action was commenced January 2, 1883. The opinion states the grounds of the action as alleged in the complaint.

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

<p>Before Kershaw, J., Lexington, September, 1882.</p> <p>' The opinion states the case.</p>

<p>Before Fraser, J., Edgefield, June, 1883.</p> <p>The opinion fully states the case. The Circuit decree, omitting such matters as are repeated in the opinion, was as follows:</p> <p>Putting together the testimony of Mr. Griffin as to the admission of James Blackwell to him of the amount repaid to him by B. Jabez Ryan, the testimony of Mrs. Ryan, (somewhat indefinite it is true,) as to the amount paid on his bond out of her interest in the estate, real and personal, of John Dobey, and the fact that this agreement between Landon Tucker, the administrator of James Blackwell, and B. Jabez Ryan, carefully provided for the payment of the moneys paid by him on said bond, and that the same shall be first paid out of the sale of the hotel, and makes no mention of any amount due to his intestate’s estate from payments made by him in his life-time, I must conclude that nothing remains unpaid by B. Jabez Ryan except the amount paid on the bond by Landon Tucker, $500 February 7th, 1860, and $2,000 July 7th, 1863, and the interest thereon. The $500 payment was certainly not made with reference to Confederate money, as it was before the war. The $2,000 was made on a bond executed long before the war, and extinguished it pro tanto at a specie valuation, and B. Jabez Ryan, in his agreement with Landon Tucker, never set up any such claim as that it was subject to be scaled.</p> <p>The rental value of the property for 1868 to 1870 was about $300 per annum; from that time to the present about $200 per annum; but I do not think that the defendants are in any event accountable for rent.. The plaintiffs, if entitled to anything, have a right to the unpaid money and interest, and to have-the land sold for the payment. They cannot have interest and rent both.</p> <p>Mrs. Frances Ryan, the defendant, widow of B. Jabez Ryan, 'and her children, have been in the possession and in the receipts of the rents and profits ever since the death of her husband. If this was all, I would think that the plaintiffs would have a right to have the hotel and lot sold for the payment of the money paid out by Landon Tucker, and the interest, under the agreement between himself and B. Jabez Ryan, to be divided between Landon Tucker and the heirs of James Blackwell in such manner as they have seen fit to . agree to amongst themselves. Soon, however, after the death of B. Jabez Ryan, some three months, Mrs. Ryan says in her testimony: “I had a conversation with Landon Tucker. He wanted me to sign an instrument of writing about this property. I told him it was my property, and that I would not leave-it unless by fire or death.”</p> <p>An uncompleted contract to convey is an equitable mortgage. Adams JEq., 123. The land’ becomes in equity the property of the vendee, and the purchase money that of the vendor. * * * On the death of the vendor, it will pass to his executor, for whom the devisee or heir will be a trustee. Ibid, 140, 141. If a man has entered into a valid contract for the purchase of land, he is treated in equity as the equitable owner of the land, and the vendor is treated as the owner of the money, and the purchase money is treated as the personal estate of the vendor, and goes as such to his personal representatives. 2 Story JEq., § 790.</p> <p>Landon Tucker, then, is the person who, either in his own right or as administrator, was competent to deal with the payment of it. He alone could give a valid receipt for the same, and he had a right to enforce this lien on the hotel and lot as in case of an ordinary mortgage,' without making the personal representatives a party, and proceeding against the heirs alone, unless a decree is sought against the personal representatives. Mrs. Ryan and her children, in their answer, set up title in themselves and claim the benefit of the statute of limitations.</p> <p>The Supreme Court of the United States liken the relations of landlord and tenant to the relations of mortgagors and mortgagees, and consider that there is no more propriety in refusing a lessee, who has openly disavowed the title of the landlord, the protection of the statute, than there is any other fraudulent trustee, from the time the fraud is discovered. There is no rule in law or equity which makes it a matter of duty to do so. All the cases, however, show that every presumption is in favor of possession in subordination to the title of the true owner, and that the adverse possession must be made out, not by any inference, but by clear and positive 'proof of a claim on the part of the tenants and of an acquiescence on the part of the landlord who is knowing to the same. Ang. Sim. (6 edit.), § 444, citing Zeller v. Eckert, 4 Sow., 289.-</p> <p>In the case referred to, the court seems to have been considering the case of a tenant and landlord, but says that they are like the relations of mortgagor and mortgagee, and thence deduces the principle which is applied to the former. It seems to be a wholesome rule to be applied in all cases where parties occupy similar relations. In the case of Norton v. Eewis, 3 S. 0., 31, the question of the right to set up the statute of limitations against a mortgage was reopened and the plea was not allowed in that case. The Supreme Court in that case says that the defendants “do not allege anything in the character of their possession amounting to an active opposition to the claim of the mortgagee, but rely on the naked fact of holding-as purchasers under title derived from the mortgagor.” It is true that the court does not say what would have been the effect of active opposition to the mortgagee, but enough is said to prevent that ease from being an authority, that in no case can the statute of. limitations be set up against a mortgage.</p> <p>In the case before me, Mrs. Ryan very emphatically claimed the property, and announced to the creditor her determination not to give it up, and that she claimed it as her own. She has continued with her children in possession, and she is in the receipt of the rents and profits more than ten years consecutively immediately before the commencement of this action, February 27th, 1882. Landon Tucker had a right then, early in 1868, under his agreement with B. Jabez Ryan, to the rents and profits of the hotel and lot, and has allowed fourteen years to pass without taking any steps by law to assert his rights, and that, too, after he had been informed in a most positive manner by Mrs. Ryan that she claimed the hotel and lot as her own, and did not intend to leave it. He could have forced a sale after January 1st, 1869.</p> <p>The question is not here made, as to the liability of Elbert Ryan as administrator of B. Jabez Ryan, and no judgment will be rendered upon it; but I think that the plea of the statute of limitations set up by the defendants against the sale of the house and lot to pay any alleged balance due to Landon Tucker, either immediately or as administrator of James Blackwell, deceased, must be sustained. It is therefore ordered and adjudged that the complaint be dismissed.</p>

<p>Before Pressley, J., Newberry, February, 1882.</p> <p>All the facts of this case are stated in the opinion., The Circuit decree, so far as it is involved in this appeal, was as follows:</p> <p>This case began for settlement of the estate of Robert Stewart, and now involves, also, settlement of the partnership affairs of Stewart & Coate, of whom the latter survived, but is now dead also. The numerous points involved will be taken up separately.</p> <p>1. The widow of Robert Stewart, in the early stage of this case, claimed homestead, and Judge Moses allowed her $1,000 out of the proceeds of sale of the family residence, and $477 of the personal property. There was no appeal from that decision, and she received the amounts so allowed to her. It remained unquestioned for more than six years; until after her death, and until April 30, 1880, when the administrator’, de bonis non, filed his petition in this case, calling on her administrator to refund it. Assuming that Judge Moses did not have jurisdiction in the matter of homestead, and that I, therefore, am not bound by his decision, which was clearly erroneous, yet I am forced to the conclusion that money paid out in the progress of a case under decree of the court, is notice to all having an interest in it, and the statute of limitations is therefore a bar to all claim for the same against the estate of Eliza Stervart.</p> <p># >}í ;}í >{< if:</p> <p>3. James Y. Harris holds a note of Robert Stewart for $4,000, payable twelve months after date, “with interest from date at 12 per cent, per annum until paid.” It was secured by mortgage, and the proceeds of the mortgaged land, except the widow’s dow'er, and $1,239 wasted by the sheriff, was paid on said note. The questions now before me are, whether said note is to be further credited with the amount wasted by the sheriff, and whether the first year’s interest, after it was due, bears interest at 12 per cent., or only at the legal rate. The principal is to bear interest from date, at 12 per cent.; but there is no provision in said note as to the rate to be borne by the interest, if not paid when due. The terms of the note cannot possibly be applied to the interest, because that would make it bear 12 per cent, from the date of the note. Such a construction could not have been intended when the note wms made. The interest on the first year’s interest should therefore be calculated at 7 per cent.</p> <p>As to the money wasted by the sheriff, I have no proof that Mr. Harris could have prevented that by the utmost diligence. If the sheriff could then have been forced to pay said amount, the motion for a rule against him should have been made at the instance of the clerk of' the court, who, by order of the court, was authorized to receive said funds from the sheriff. The said mortgagee is therefore entitled to receive, out of the remainder of the estate, the balance due to him, calculating the interest as above ruled.</p> <p>‡ • í}C l{C ?}i</p> <p>5. Robert Stewart and John Coate were partners in trade, under the name of Stewart & Coate. The father of J. M. and R. H. Wright held in his life-time a promissory note of said firm. After his death, it came to his said sons, as distributees, and they divided it, each taking for his share a sealed note, signed Robert Stewart, John Coate. 1 The referee reports it as a partnership debt, and I agree with him. Whichever of the partners may have signed the name of Stewart & Coate to the original note is not material. Both acknowledged its validity as a partnership debt when they substituted their sealed notes for it, and their omitting the partnership name in said sealed notes is no proof that they thereby intended to remove it from being a partnership debt, and make it an individual joint and several debt. Said notes must therefore rank as partnership debts.</p> <p>6. After the death of Robert Stewart, L. J. Jones, executor of G-ilbal, entered judgment on a partnership debt in a suit against Coate, survivor of Stewart & Coate. He claims that it should rank as a judgment in this case. I adjudge that if any lien was acquired under said judgment, upon partnership property, the proceeds whereof are now in court for distribution, then, in that case, said proceeds must be first applied to the said judgment. But if no such lien was acquired, then my judgment is, that in marshalling partnership assets, the death of the partners does not bring said assets under the act concerning intestate estates, and so entitle judgments to be paid in preference to general debts. This ruling is also intended to cover sealed obligations.</p> <p>From this decree all the other creditors of Robert Stewart, except James Y. Harris, and all the creditors of the firm of. Stewart & Coate, except Robert H. Wright, James M. Wright, John A. Bedenbaugh, and Joseph Caldwell as executor, appealed on the following grounds:</p> <p>1. Because his honor erred in holding that the-estate of Eliza R. Stewart was not responsible for the $1,000 assigned to her as homestead in land, but that the claim for the same made by the administrator and creditors of the estate of Robert Stewart was barred by the statute of limitations.</p> <p>2. Because his honor erred in not charging the estate of Eliza R. Stewart with interest upon the said $1,000 from the date of its receipt by her.</p> <p>3. Because his honor erred in holding that the estate of Eliza. R. Stewart was not responsible for the personalty assigned to her herein as homestead exemption, or its value, to wit, $477; but that the claim therefor made by the administrator and creditors of the estate of Robert Stewart was barred by the statute of limitations.</p> <p>4. Because his honor erred in not charging the estate of Eliza R. Stewart with interest upon the value of said personalty, to wit, $477, from the date she received it as such exemption.</p> <p>5. Because his honor erred in holding that James Y. Harris, mortgage creditor, should not lose the sum of $1,239, arising from the sale of the property covered by his mortgage, and embezzled by the sheriff; but that the other creditors should lose the samé.</p> <p>6. Because in any event his honor erred in allowing the said mortgage creditor, James Y. Harris, interest upon $1,239 of his debt from the date that said amount, as .proceeds of said sale, was paid into" court.</p> <p>L. J. Jones, as executor of A. Grilbal, and other creditors of Stewart & Coate, also appealed on the following grounds:</p> <p>1. Because his honor erred in holding that the sealed notes signed by Robert Stewart and John Coate, held by J. A. Bedenbaugh, R. H. Wright, and J. M. Wright, are partnership debts of the firm of Stewart & Coate.</p> <p>2. Because his honor erred in holding that the judgment of L. J. Jones, as executor of A. Gilbal, against John Coate, survivor of Stewart & Coate, was not entitled to be first paid out of the copartnership assets of Stewart & Coate.</p> <p>The assignment of homestead was a nullity. 17 8. C., 9. Especially in regard to the personalty, as there was no confirmation. 15 Stat., 229; 7 8. Q., 146. The statute of limitations cannot protect the widow as to the homestead, for ten years had not elapsed; nor as to the chattel exemption, for she held it as administratrix. There is no estoppel against creditors. 17 8. C., 9. Besides, these orders were intermediate, and may now be reviewed. Ibid; Code, § 11. The Harris mortgage should be credited with the amount applicable thereto lost by the sheriff. If the sheriff refused to pay the clerk, Harris could at any time have required it; but he seems to have done nothing. It was his negligence, not that of the creditors, that permitted the embezzlement, and the loss should npt be thrown upon the latter. 2 8. 01, 14. At least he should lose the interest, which is damages for money detained; but here the estate did not detain it, but it was paid into the hands of the officer of the court under its order.</p> <p>The facts show that the Wright notes were taken as payment. They were so intended, and being a higher security, so operate. Riley JEq., 181; Story Part, § 369; 2 MeMull., 348; 2 Rich., 608; 15 8. C., 36; Big. Mstop., 578; 2 Speer, 438; 4 Rich., 59; 16 8. 01, 198. The judgment against Coate, survivor, was a judgment against Stewart & Coate and against Coate, and should rank as such against both firm and individual assets.</p> <p>The claim against Mrs. Stewart cannot be sustained, for her right to the property has been adjudicated. If creditors acquiesced through ignorance of law, they cannot be relieved. 2 Bail., 623; 2 McOord Oh., 455. Nor can they be relieved against mistake .of law. 2 Bast., 469; 1 Stew. (Ala.), 81; 10 Pet., 137; 12 Id., 32; 64 Pa. St., 383; 51 Me., 140; 7 Bill Y.), 159. In Landsdowne v. Landsdowne, 2 Jac. W., it is significant that Powell, the attorney, was made a party, suggesting that there may have been misrepresentations in that case. See, too, 15 Am. Rep., 323; 2 BeSaus., 592; Bail. Bq., 492. Her estate is also protected by the statute of limitations. She did not hold this personal property for life only. There is no such limit in the constitution, nor in any of the statutes. Nor did she hold it as administratrix, for she took it as her own, and the statute began then to run in her favor. Ang. Lim., § 174; Speer Bq., 375; 1 McOord Oh., 176; 7 Johns. Oh., 90; 7 Rich. Bq., 34; 4 Id., 60, 92; 14 Id., 176; 15 S. 0., 241; and consult Bail. Bq., 324. As to the homestead, she certainly is not liable for interest on the $1,000. Nor did she hold the corpus for life only. The constitution does not limit a homestead to thé life-time. Some of the statutes undertook to do so, but they did not do so effectually.- 2 S. O., 216. But if so, the order gave this money to Mrs. Stewart absolutely. And from the time that she took this money she held it adversely, and is now protected by the statute of limitations. As to the Harris mortgage, there can be no blame attached to Harris, for the money was to be paid into court, subject 'to its further order, and Harris could not disregard this order. The Wrights are creditors of the firm of Stewart & Coate. The new sealed notes of the partners was not a payment of the partnership notes. 75 N. Y., 535; 1 Quincy, 179; 12 Johns., 409; 11 R. I, 609; 11 S. O., 527; 15 Id., 72. There is no law to sustain the claim asserted by GUbal’s estate.</p>

<p>Before Pressley, J., Barnwell, April, 1883.</p> <p>The opinion states the case.</p>

<p>Before Pressley, J., Marion, October, 1883.</p> <p>This was an action by Mary A. Huggins and others, heirs at law of Neal O. Huggins, against William A. Oliver, commenced September 20, 1881, for the recovery of a tract of land.</p> <p>The facts are all stated in the opinion. The Cirquit judge charged the jury that notwithstanding the errors in the Elvington judgment and execution against the administrator, Rogers, the levy and sale under them of the lands of the intestate, Neal O. Huggins, were effectual to convey title to the purchaser against his heirs at law, the plaintiffs, and that the said judgment and execution had been pi’operly amended; that the lands in possession of the plaintiffs as heirs at law, although claimed and used by them as their own, were subject to levy and sale under a judgment and execution against the administrator of the estate of their ancestor obtained in an action to which said heirs -were not made parties, and of which they had no notice; that the plaintiffs, as heirs at law, were estopped from setting up title against the purchaser at such sale, and that no length of possession by them would enable them to hold or claim title to the said land by reason of the statute of limitations against the defendant in this case; that heirs at law can never hold adversely against creditors of ancestor until partition, and that the separate possession of a part of the land by one of the plaintiffs, N. C. Huggins, as his share of same, amounted to nothing, because the defendant was not in possession of that part of the land.</p> <p>The jury under this charge found a verdict for the defendant, and the plaintiffs appealed.</p> <p>The judgment in Blvington v. Rogers, administrator, was against Rogers individually and did not authorize an execution against the property of the intestate. 2 Strob., 3 ; 8 Rich., 345; 16 S. C., 64. The execution was directed against Rogers individually, and could not be levied on property of intestate. Freem. Fxec., § 43, and authorities supra. The defects in this judgment were more than mere irregularities, and the order of the Circuit judge amending the same not having been made upon the motion of a party to the proceedings in Avhich it was recovered, Avithin a reasonable time and before it was satisfied, was without authority of laAv and too late to affect the title of the plaintiffs. 16 S. C., 64 ; 1 Mill Con. B., 133; 1 Hill, 167, 209. Heirs in possession of descended real estate for the statutory period may claim title by virtue of the statute of limitations against a purchaser at sheriff’s sale under a judgment and execution against an executor or administrator. 2 Bay, 156, 339; Rice Fq., 373; Speer Fq., 250. The statute applies to an action against heirs and devisees to subject real ’estate in their possession to a debt of their ancestor or devisor. Bail. Fq., 437; Bice Fq., 387; 9 S. C., 430; and also to actions against legatees to subject personalty in their hands to the payment of debts. 2 Hill, 522; 2 Hill Ch., 496; Bail. Fq., 437 ; 9 S. C., 430. Heirs in possession are not bound by a judgment against an administrator. 2 Hill Ch., -257; Speer Fq., 250; 9 S. O., 430; 19 Id., 160. Lands in the actual and exclusive possession of heirs are not subject to levy and sale under a judgment and execution against an administrator. 2 Hill, 579; Speer Fq., 250.</p> <p>It matters not to whom the doAver was released, and the widow of N. C. Huggins has never claimed it, and there was no bar to a recovery on the note for the purchase money. The judgment was simply an adjudication of the issues and was against Rogers as administrator, as in 1 Brev., 289, which was a case like this. There was no defence to the action. See 6 S. 0., 356. The fifth exception raises a point that has been settled for eighty years. 6 S. C., 356. In the cases cited contra, the actions Avere against the heirs, or there Avere other circumstances varying the case. See cases cited in 6 S. C., 356. There was no partition here to show exclusive possession. 4 McCord, 128. There was not ten years from Rogers’ purchase until the plaintiffs were ousted.</p>

<p>Before Cothran, J., Charleston, April, 1883.</p> <p>The opinion substantially states this case, but an elaborate statement of all the litigation in this cause may be found in 17 8. Q., 219, and in the other appeals to this court there referred to. The Circuit decree here appealed from was as follows:</p> <p>The several matters which remain to be determined in this complicated litigation, which has been protracted for more than thirteen years, came on to be heard by me on Monday, April 2, 1883, and from day to day, for nine days. It would be tedious and unprofitable to relate the history of the case as it has wound its slow length along through many of the volumes of the Appeal Court Reports from the 5th 8. G. to the 17th inclusive. Those who are most interested, as well as a majority of the Circuit judges, and all of the members of the Supreme Court, are familiar with its details, and I shall therefore, after much consideration, and with no small amount of embarrassment, growing out of the importance and very peculiar nature of the issues, proceed as briefly as I can to state my conclusions.</p> <p>The matters submitted were the following:</p> <p>1. The amount of compensation due to the referee (Mr. Pringle), and of the taxed costs of attorneys engaged in the cause, and of the officers of court, including the present and former clerks and masters.</p> <p>2. A proper allowance to Charles T. Mitchell, the receiver, for the Bee’s Ferry extension.</p> <p>3. The claim of the eight per cent, bondholders, who insisted that neither the statutory lien nor any mortgage prior to theirs included the franchise, and that they were entitled to whatever of value this indispensable element had given to the corporation.</p> <p>4. Which of the many attorneys engaged in the cause were entitled to fees and costs out of the common fund.</p> <p>5. The amount of such fees and costs.</p> <p>The question of attorneys’ costs, embraced in the first-proposition, was eliminated from it, and is set down in proposition five as properly to be determined after settling the question of the right of the attorneys to costs. The matter of compensation to the referee and the costs of the several officers of court were determined at the hearing, and an order made touching these matters; so also as to the allowance to the receiver for the Bee’s Ferry extension, and the question involving the franchise.</p> <p>In the orderly progress of the inquiry this brings us to the fourth proposition: Who are entitled to fees and costs out of the common fund? The Supreme Court say, at page 278 of 17 S. Ü.: “It is always embarrassing for this court to attempt to adjust costs and counsel fees, which more appropriately belongs to the Circuit Court. It seems to us, however, that in this case there should be some system upon the subject, and that the costs and fees of all the attorneys properly chargeable for successful service should be paid out of the common fund, so as to make the successful litigants pay their proper proportion.”</p> <p>It was suggested at the hearing that this expression of the court is obiter dictum, but it will hardly be denied that as a legal proposition it is indisputably true. Indeed, the practice in this state, as settled by numerous decisions, and in strict conformity with the rule laid down by the elementary writers, is to allow counsel fees out of a fund to those who have recovered, or assisted in recovering, the same. Some of the writers use the term created. In the familiar case of a creditor’s bill, where a fund is preserved or realized for the benefit of a class by the efforts of one or more of such class, the counsel representing those who have acted in behalf of the whole class are allowed their proper fees out of the fund. So where a trustee, as such, is involved in litigation, lie is entitled to be reimbursed for counsel fees out of the fund; but the fund must be, or it must have been during the progress of the litigation, within his fiduciary control. In all other cases, each party must bear his own charges out of his own funds.</p> <p>It is needless to .cite authority in support of these propositions. The difficulty, however, arises in applying these familiar rules to the ease in hand; and I find, moreover, in the condition of the seven per cent, bondholders, a manifest and very great hardship in the legislative delusion by which they have been victimized. The court, however, can furnish no remedy for this. At the close of the late war the Charleston and Savannah Railroad, from its exposed position and early capture by the Federal armies, was practically destroyed, and its. stockholders and bondholders, as such, were financially in like condition. The sevens, relying upon the validity of the act of assembly in 1869, postponing the statutory lien held by the state as an indemnity for its guaranty, furnished the necessary money to rebuild the road. This has proved to be a delusion and a snare, and their money, advanced in good faith, by means of which the road was rebuilt, and increased value given to the sixes, has gone beyond the reach at least of the judicial department of the government.</p> <p>On April 12,1870, the plaintiff, Hand, holding a large amount of past due detached coupons of the sixes, filed his complaint in “behalf of himself and all other creditors of the Charleston and Savannah Railroad Company, standing in the same right, plight, and condition as himself,” &e. This proceeding soon involved the sixes and sevens in a contention for priority of lien, the value of the road being supposed to be inadequate for the satisfaction of both classes of creditors. It was a hard and uncompromising fight; the stakes were large, and very conspicuous ability has marked the progress of the cause from the beginning to the close.</p> <p>The road was finally sold, and the sum of $300,000 realized, which is the fund now in the custody of the court for distribution. This has been decided by the Supreme Court to belong to certain of the sixes, who are not estopped, as are others of the same class, from claiming a pro rata thereof. All other claimants are denied the right to participate in the distribution of this fund. It is contended, however, by the attorneys of many of these defeated claimants, that they ought to have their costs and counsel fees out of what they call “the common fund.”</p> <p>At different times during the progress of the struggle between the sixes and the sevens there appeared upon the field other formidable contestants than those who were originally and mainly engaged: 1. The attorney general, in favor of the state, for taxes amounting to about $120,000. 2. The Comptroller general, demanding the possession of the road itself, as forfeited to the state under act of 1869 for non-payment of interest on the bonds guaranteed by the state. 3. Material men (so called) and others, claiming damages for injury to persons and property. All of these were regarded by the main contestants as the common enemies of both, and upon their appearance the bugles rang loud; and contingents were detailed from the ranks of each, whose common efforts were directed against their common enemies. When these were discomfited, or driven off, the main fight was renewed, and the sixes were finally victorious.</p> <p>It cannot be denied that valuable services were rendered by the-contingents, but in my judgment such were only incidental and inspired by the hope that in the defeat of a common enemy the fund in controversy would be preserved, not as a common fund for distribution with their foes, but exclusively for themselves. It seems to me that the true character of the fund in controversy settles the question conclusively. The term “common fund” is relative in its true and proper sense. The sixes having succeeded in establishing their 'right to it under the decision of the court of last resort, it is as to them and for them a common fund — itself insufficient for the satisfaction of their claims, and as none of the sevens can participate in its distribution, it follows, ex necessitate rei, that their attorneys, who can claim only through them, are in like manner excluded. The stream cannot rise above its source.</p> <p>Having thus disposed of the claims of those representing the sevens, the material men, and all other claimants, excepting the successful sixes, it remains to ’determine which of these are entitled to have their fees and costs out of the common fund. The term successful sixes is used because the judgment of the Supreme Court clearly excludes certain of the sixes who had funded their coupons upon the principle of estoppel, amounting in all to about $60,000; and these being thus in no better condition than the sevens, their counsel are not entitled to have fees and costs, or either, out of the common fund.</p> <p>It is worthy of observation that none of the counsel for -the sevens make any objection to the allowance of fees and costs to the counsel of the sixes. Their clients having no interest in the common fund, these have simply claimed compensation for themselves for valuable services rendered in the course of the litigation, and are indifferent to the manner of distributing the residue.</p> <p>It may be further observed that after the order for the sale of the road was made by Judge Aldrich, the priority of liens having been determined, a majority of the sixes combined together, forming a syndicate (or pool, in modern parlance), for the purpose of purchasing the road.</p> <p>Some of the sixes declined to enter into this combination, and it is from these that the objection to the allowance of fees and costs comes. Mr. A. D. Cohen is the champion of this class, and with admirable temper has delivered an ingenious and forcible argument, insisting that each of the representatives of the successful sixes should be required to look to his own clients for compensation. The learned counsel, however, was too generous to be satisfied with his own conclusions, when he remembered that Mr. Hanckel, who, according to the famous judgment of the wise Athenian, displayed in selecting the candidate best qualified for office, was the most deserving (perhaps) of the counsel of the sixes, and represented, at the close, only two or three bonds out of which, upon the principio contended for, he could be paid.</p> <p>It appears that when Cutting’s executors, holding a large amount of the sevens, intervened, and the lists were being set, it was necessary to select some one to represent the sixes. Mr. William B. Smith, holding the greatest number of these, ivas selected, and Mr. Hanekel filed an answer for him. During the progress of the litigation Mr. Smith sold out his bonds, but there is no evidence that the purchasers repudiate the engagement with the counsel already employed or at any time ordered him to desist. If it were necessary to do so, I would hold, in this regard, that these bonds, having been purchased when the litigation was flagrant, that the purchasers of such were affected with knowledge of the fact, and by not repudiating the engagement, assented to and are bound by it.</p> <p>The fruits of this engagement with Mr. Hanekel, with efficient aid rendered at different stages of the controversy by Messrs. Buist, Brawley, and Lord (and others to be referred to hereafter), together with the valuable aid of the contingents, which must go without further requital than that already received by them, are as follows:</p> <p>First and foremost, the establishment of the priority of the lien of the sixes, ....</p> <p>Second. The defeat of the claim for taxes, . $120,000</p> <p>Third. The defeat of the material men, . . 25,000</p> <p>Fourth. The defeat of receiver’s certificates, . 75,380</p> <p>Fifth. Bee’s Ferry Extension, reduced from $59,474 to $17,000,...... 42,474</p> <p>Sixth. The estoppel of six per cents, and claim by an equivalent of seven per cents, to substitution, 60,000</p> <p>$322,854</p> <p>to say nothing of the Trenholm & Potter claims greatly reduced and a host of other floating debts under the administration of the receiver awaiting anxiously the result' of the suits already brought. These great advantages have been gained for the sixes by deeds not done in a corner, but by strong and skilful contention over and over again in this forum, and in a higher one, upon both of which beats the fierce light of public observation.</p> <p>Nor did these results fall out by chance, and whilst I do not feel authorized in entering upon the inquiry whether the contingents, whose aid was so potent, have been sufficiently compensated by the large sums already paid to them from time to time from the earnings of the road, it would seem to me to be an act of injustice, and in conflict with the principles announced in Nimmons v. Stewart, 13 S. 0., 445, and Brooks v. Brooks, 16 Id., 621, to permit the supine sixes, who stood aloof and watched the progress of the fight', to come in now and share the fruits of victory without rendering a money equivalent for services which they lacked either faith or courage to contribute. I have no hesitation in saying that Messrs. Hanckel, Buist, Brawley, and Lord are entitled to be paid the amount of the claim presented by them jointly, say ten thousand dollars, to be apportioned amongst themselves, as they may think proper, and also their costs, to be taxed as hereinafter provided.</p> <p>There are other counsel engaged in the case, who also represent successful sixes. I find myself unable, without the aid of additional testimony, to pass upon their claims. No specified sums are claimed, and the nature of the services rendered are not in all of these very clearly made out. I would prefer, therefore, lest an act of injustice might be done to some deserving of compensation, that all others representing successful sixes, and who have in any wise contributed to the results attained, file, forthwith, in the office of Master Sass, who, as the successor of Master Porter, has custody of the fund, specific statements of their claims for services rendered in the cause, with leave to offer proof to support the same. I regret the delay caused by this course in settling these minor issues, but it is better to go slow than to go wrong, even in a cause that has already been more than a decade in court.</p> <p>The master (Clancy) has made report upon the claim of James W. Moore, Esq., for professional services to the road in recovering from a purchaser a large tract of land belonging to the railroad company, which had been sold for taxes in Beaufort county. The testimony taken by the master and sent up by him sustains fully his report, and the same is in all respects hereby affirmed.</p> <p>Wherefore, it is ordered, adjudged, and decreed as follows:</p> <p>1. That all claims for counsel fees and costs exhibited against the funds in question on the part of those representing the seven per cent, bondholders and the other claimants, excepting the counsel representing the successful sixes, be, and the same are hereby, denied.</p> <p>2. That the master, in whose hands the funds in question are, do pay over to Messrs. Hanckel, Buist, Brawley, and Lord, upon their joint receipt, the sum often thousand dollars ($10,000), as a fee for professional services rendered by them in the above entitled causes; and that he do also pay over to James W. Moore, Esq., the sum of six hundred dollai*s ($600) together with the proper costs to the parties entitled to the same in the proceedings by which said last mentioned fee was established.</p> <p>3. That the several counsel representing others of the successful sixes have leave to file their claims in the office of Gr. Herbert Sass, Esq., master, &e., if they choose to do so, stating specifically the sums claimed by them for professional services rendered in this behalf, exhibiting before the said master such proof as they may deem proper to sustain the same.</p> <p>4. It is further ordered, that the clerk of this court do tax the costs due to the counsel above named, to whom fees are allowed by this decree.</p>

<p>Before Cothran, J., Sumter, October, 1883.</p> <p>The facts of this case are stated in the opinion of this court. The Circuit decree was as follows:</p> <p>This cause Avas noted in the calendar as heard at the October term of the Court of Common Pleas for Sumter county, and by agreement the argument Avas heard afterwards in Columbia, on November 14,1883. The land described in the pleadings is under order of sale by a previous decree in the cause, and is advertised to be sold by the master of Sumter county on sales-day in December next, noAv nearly at hand. It Avas deemed expedient by the parties in interest to settle the' conflicting claims for priority of liens Avith a vieAV to promote a more favorable sale of the premises, and to facilitate this purpose the extraordinary hearing was had.</p> <p>The case has been argued upon all sides with great zeal and ability, but the time is so short and the necessity of a speedy decree is so much greater than for an elaborate one, that I shall undertake to do little more than give a brief history of the case and state the conclusions obtained, leaving it, in case the cause should go further, to the counsel in whose favor I have decreed to sustain my conclusions by the. very able argument delivered at the hearing. The facts of the case extending over a period of seventy years (the testator R. L. Champion, under whose will the controversy arises, having died in 1818), would of themselves make a volume. It is enough barely to mention a few of the complications: litigation for nearly one-third of that time, death of parties, substitution of others, debtors insolvent, contention among creditors, a family settlement, a sale of the premises as forfeited to the state for taxes unpaid — all go to show the difficulty of unravelling, and perhaps the necessity of cutting, this Gordian knot.</p> <p>The first question in the case involved the validity of a patent issued by the executive of the state to Mrs. Sarah E. DeSaussure for the land in controversy, known as the Champion place, in Sumter county, containing some 2,400 acres, and said to be very valuable. The land was first exposed to sale December 31, 1877, for taxes due for the year 1876, and for the want of a bid for the same, was not sold. There was no redemption of the premises, and finally, on the first Monday of September, 1879, the said land was offered for sale as land forfeited to the state and was bought for Mrs. Sarah E. DeSaussure by her attorney, the arrearages of taxes amounting to $545.18 paid, and a patent issued her by the governor of the state for the whole tract.</p> <p>It was urged in behalf of the patentee that the exhibitions of the patent was proof of good and sufficient title, but unsuccessfully, and the patent was fiercely assailed by all the other parties in interest as the common enemy of all. After much contention it was suggested that if the holder of the patent would consent to assume the position of a trustee for the lien creditors, in the purchase made, and not insist upon the validity of her title, but agree to cancel the same, that the amount of money paid by her for the land at the tax sale, with interest, would be refunded to her. To this all parties agreed, and this matter is happily eliminated from the case.</p> <p>The next question is, as to the priority of liens. The following is a list of those:</p> <p>1. The Ellen Stewart claim. This wras a sealed note of Eliza O. DeSaussure, A. B. DeSaussure, and J. M. Davis, for $500, dated July 13, 18.74, payable January 1, thereafter, with interest from date, and after maturity at the rate of one per cent, per month. Mrs. Eliza C. DeSaussure gave to the payee a mortgage of her interest in the land in controversy, to secure payment of said note.</p> <p>2. The Clyburn claim. A bond of M. L. Davis, S. A. Davis, John M. DeSaussure, jr., E. C. DeSaussure, and L. C. DeSaussure, to W. D. McDowell, receiver of the estate of Workman, dated January 28, 1875, conditioned for the payment of $3,500 on January 1, 1876, with interest from date at the rate of twelve per cent, per annum, payable annually until the whole be paid; indorsed (in the handwriting of J. M. Davis, and admitted by Mr. Hay to be correct) “$600 of this bond bears interest from the date of the bond, the balance $2,900 having been only paid over to-day, will bear interest from this date, March 16,'1875.” A mortgage of the interest of all the obligors in the land in question was executed and delivered on the same day to secure the payment of said bond.</p> <p>3. The Simonds claim. A bond of J. M. Davis, L. D. Davis, L. C. DeSaussure, Eliza O. DeSaussure, and A. B. DeSaussure, to Louis D. DeSaussure, dated April 25, 1876, conditioned for the payment of $2,086.24, with interest at the rate of twelve per cent, per annum, from January 1, 1875, payable annually until the whole amount of principal and interest is paid — the principal to be paid in two equal successive annual instalments, the first whereof is to be paid on or before January 1, 1877. Eliza C. Davis, Louisa D. Davis, and Lloyd C. DeSaussure at the same time executed and delivered to Louis D. DeSaussure a mortgage of all their interest in the said lands to secure the payment of said bond. This bond has been duly assigned and transferred to Andrew Simonds.</p> <p>4. The Kerngood claim. A bond of John M. DeSaussure, sr., Louisa D. Davis, John M. DeSaussure, jr., Sallie D. Davis, Eliza C. DeSaussure, and Lloyd C. DeSaussure, dated May 27, 1877, conditioned for the payment to George Alden, on or before January 1, 1878, of the sum of $ 1,516.65, with interest from January 1, 1877, at seven per cent, per annum. All the obligors at the same ,time executed and delivered to the obligee a mortgage of their interest in the land in question to secure the payment of said bond. This bond was afterwards duly assigned and transferred to the plaintiff, Tobias Kerngood.</p> <p>6. The claims of Witte Bros. These consist of sundry judgments obtained by James D. Matheson, James D. Kirkpatrick, . administrator, Priscilla B. Perkins, executrix, and Mary E. Shaw, administratrix, against the estate of Henry W. DeSaussure, deceased. These by assignment all became the property of one Sanders, who in turn pledged them as security to Witte Bros., who present them here. As the main contention in the matter of priorities arises in regard to these claims, it is proper to define just here their true nature. Henry W. DeSaussure was the eldest son of the late John M. DeSaussure, who had intermarried many years ago with Eliza Hester Champion, daughter of Richard L. Champion, the devisor of the lands here in question. Henry W. DeSaussure was killed in one of the battles around Richmond, in June, 1862; at his death he left a widow and four children surviving.</p> <p>After the close of the war, amid the wrecks of a large fortune, an effort was made to adjust his affairs. To this end, his widow and executrix, in behalf of herself and her infant children, filed a bill in equity on December 21, 1869, entitled for “injunction, dower, partition, to marshal assets, and for relief.” Most of the parties to the proceedings now before the court were made defendants in that bill; amongst others the assignors, then the holders and owners, of the claims presented here by Witte Bros. The injunction sought by that proceeding was to stay the hands of these assignors then holding judgment against the executrix of the will of the said Henry W. DeSaussure. It was an omnibus bill, as its title imports, but in the latitude which is allowed in the matter of family settlements (for this was obviously such), no plea for multifariousness was interposed, and on November 14, 1870, Pión. S. W. Melton, then the presiding judge of the fifth Circuit, made a decree in the cause, which was assented to by all parties to the suit.</p> <p>By the fourth clause of the will of Richard L. Champion, who departed this life in the year 1813, he devised the land in question here to his daughter Eliza Hester, afterwards the wife of John M. DeSaussure, sr. (the mother of the said Henry W.), for life, with remainder to the heirs of her body living at the time of her death. She died in 1864, being predeceased by her son, Henry W. It was conceded in the consent decree of Judge Melton that the children of Henry W. were entitled to a share of the Champion land at the falling in of the life estate of their grandmother. The estate of Henry W. being insolvent, James M. Davis was appointed receiver of the same.</p> <p>Besides the interest which Henry W.’s children had in the Champion lands as tenants in common with their uncles and aunts, their father was seized at the time of his death of other valuable lands in Kershaw county and of a house and lot in the town of Camden. It was manifestly the purpose of the family settlement already referred to, to save a home and farm for the widow and children of Henry W. DeSaussure. This appears from the terms of the decree of Judge Melton, and without encumbering this decree with the contents of that, I shall only cite the sixth paragraph:</p> <p>“It is further ordered that the said James M. Davis, receiver as aforesaid, after applying the assets remaining in his hands necessary to make the payments of the said Mary R. DeSaussure, hereinbefore directed, do pay therefrom the costs of this suit (the same to be apportioned and charged to the parties liable therefor, as ascertained by the further orders of this court), and to apply the balance of said assets, when collected, to the payment of the demands of the other creditors of the estate of said Henry W. DeSaussure,'deceased, pro rata, to wit, the said James D. Matheson, James D. Kirkpatrick, Priscilla B. Perkins, and Mary E. Shaw, and that the judgments at law upon the said claims be satisfied before the judgment creditors thereof receive any benefit from this decree. It is further ordered that the defendants, Mary Louisa Davis, Eliza C. DeSaussure, John M. DeSaussure, jr., Sarah Amelia Davis, and Lloyd C. DeSaussure, do pay the said creditors, respectively, whatever may remain due to them on their said claims after the application thereto of the proceeds of the said assets in the hands of the said James M. Davis, receiver aforesaid, as hereinbefore directed.”</p> <p>Paragraph 7 in terms authorizes the remaindermen under the will of Richard L. Champion, who are adults, and John M. DeSaussure, sr., the father of the infant, Lloyd C., whenever they may deem it advisable, to sell the land and personalty to pass under the said will, &c. These claimants, or their assignees, were parties to that proceeding, and assented to it. The right to sell absolutely certainly includes the right to make a conditional sale; the greater including the less.</p> <p>The decree filed in November, 1870, ivas never enrolled. It is worthy of remark also that it was made after the adoption of the code of procedure, and if it had been enrolled, would not ipso facto have become a lien upon land. In the meantime, the several mortgages exhibited here were executed by the defendants of their interests in the Champion lands, all of which were upon record before any steps were taken by the judgment creditors herein to file transcripts of their judgments in Sumter county, where the land in controversy lies. It cannot, therefore, be contended that the Witte claims, as judgments, can have priority to the recorded mortgages.</p> <p>It is argued, however, with great ingenuity and force, by the counsel for Witte Bros., that by virtue of the operation of the act of 1791, then of force, a statutory lien was acquired by these creditors of Henry W. DeSaussure, the balance of whose claims, after applying whatever was available in the hands of the receiver, J. M. Davis, were to be paid by these tenants in common, defendants here, under the terms of Judge Melton’s decree, and out of their interest in the Champion lands in Sumter county. There is no doubt but that in cases of partition by means of sale, as perhaps where contribution in money to make equality was decreed, that this insidious security prevailed, and without attempting to follow or to answer the learned argument of Mr. Haynsworth, it is enough perhaps to say that it has not convinced me. I cannot admit the premises upon which the argument was based, to wit: that this was ever a case of partition at all. There was no land sought to be made the subject of partition in Kershaw county. There was a scheme for the exchange of the interest of Henry W.’s children in the Sumter lands for what was thought to be a Shelter and a farm for them in Kershaw, and this upon certain conditions, it is true in part not complied with, but to which the creditors assented.</p> <p>Besides, I think the search would not be rewarded with success, however diligently made, for a case where proceedings could be instituted and sustained in one county for partition of lands in another, unless there should at the same time be partitionable lands in the county where the proceedings were instituted, by laying hold of which the court alone could acquire jurisdiction of the lands in another county. This disposes of the main question in the case, to wit, that of the priority of the several claimants, and in the order in which they have been stated herein.</p> <p>There are, however, some minor questions which have been brought to my attention, and which I will now attempt to dispose of. The first of these is as to the effect of John M. DeSaussure, sr., joining in the Kerngood mortgage. It appeal’s that he was the assignee of the Yillipigue judgment by reason of having paid off the same. It further appears that that judgment is the oldest lien upon the property of John M. DeSaussure, jr. Should the land in question sell for its real value, it is hardly possible that this question can be of any practical application in the case, for the plaintiff’s debt will probably, in any event, be paid, having priority of the claims of Witte Bros. But in case it becomes important in distributing the proceeds of sale, I hold that John M. DeSaussure, by giving the mortgage to Kerngood, with a covenant of warranty, is estopped from claiming any right to have his judgment against John M., jr., paid to the prejudice of the plaintiff, Kerngood, his mortgagee.</p> <p>The next question arising is as to the manner of computing the interest upon the Clyburn and Simonds bonds. The terms of the bonds severally relating to the matter of interest are almost identical, and involves the consideration of the distinction between the computation of annual interest and compound interest. The difference, except where the amount is large and the length of time great, is hardly appreciable; still there is a difference, and the parties raising the question are entitled to have it considered and settled. There is nothing in the terms used to justify or allow the compounding of interest upon either of these bonds— that is to say, there are no stated times up to the time of making the final calculations when interest is to be added to principal, and the sum so found made a new principal. Hence it follows that the computation should be made upon the rule of annual, and not of compound, interest. The terms “until the whole be paid” in the Clyburn bond, and those of like import in the Simonds bond, cleai’ly support the right to the rate of interest stipulated in the bonds respectively until they are paid and satisfied.</p> <p>There were some other questions raised in argument at the hearing, but not appearing in the pleadings, nor in the shape of exceptions, and I do not know that I apprehend them very clearly. One as to contribution to John M. DeSaussure, sr., by his co-obligors on the Kerngood bond, in the event that he is estopped from claiming upon the Yillipigue judgment as against Kerngood’s mortgage. The other as to the rights of the several co-tenants (so-called) to homestead exemptions. As to the latter, it is difficult to see under the decisions how as mortgagors they can set up their claims to homestead as against their mortgagees. If such exists, as against the judgments of Witte Brothers, as to whom alone they would be available, their rights must be asserted in the manner prescribed by the act of assembly. They cannot be considered here. “Sufficient unto the day is the evil thereof.”</p> <p>Wherefore it is ordered, adjudged, and decreed as follows:</p> <p>1. That from the proceeds of sale of the land described in the complaint the master do pay, as heretofore ordered, the taxed cost of this case, and also state and county taxes if any be due, and a fee of one hundred dollars to the referee, W. D. Trantham, esq.</p> <p>2. That he pay to Mrs. Sarah C. DeSaussure, or her attorney, the sum paid by her as trustee for the lien creditors herein at the forfeiture sale of the said lands, together with lawful interest thereon to the day of payment to her, and that she deliver up her patent to be cancelled by the clerk of this court.</p> <p>3. That from the balance of purchase money in his hands he pay to the several lien creditors, in the order set down herein, the several debts due to them, with interest calculated thereon in the manner herein determined, having due regard in such payments to the interests and liabilities of the several obligors.</p> <p>4. That the surplus (if any be), after paying the claims of Witte Brothers, be held subject to the further order of the court.</p> <p>5. That in the matter of contribution to the defendant, John M. DeSaussure, sr. (if he have any such right), as well as touching the adjustment of the rights of the co-tenants (so-called) inter sese, the parties being all before the 'court, leave is hereby given to them to apply at the foot of this decree for such orders as they may be advised are necessary and proper.</p> <p>Witte Bros, appealed upon grounds which were substantially as follows:</p> <p>1. That his honor erred in not holding that Witte Bros., as assignees of the judgments, were entitled to the payment of their claims to the extent of 4-10 parts, and also 4-28 of one other tenth part of the net proceeds of the sale of the lands ordered to be sold in this case, after the payment of the costs and taxes and referee’s fee, and of the amount decreed to be paid to Mrs. S. C. DeSaussure.</p> <p>2. That his honor erred in not holding that by the decree of Judge Melton the said shares of the said children of H. W. DeSaussure in the said lands were to be transferred to and vest in the other tenants in common, or remaindermen, under the will of Champion only upon the payment by them to the said judgments of the balances which should remain due, after the application thereto of the proceeds of the assets directed in said decree of Judge Melton, to be applied thereto, until which payment they were to have only an inchoate right therein, not to become complete and perfect until the payment by them of the said balances; and that said balances not having- been paid, the legal estates and interests of the said children have never been transferred to, or vested in, the other tenants in common, or any of them, and that they derived or acquired under said decree only the equitable right to have title to the said shares of the said children of Henry, upon the payment of the said balances and interest thereon; that the payment of the said balances was to be the consideration of the transfer or vesting -of said shares; and that by the provisions of said decree the right to receive payment of the said consideration was assigned and transferred to- the said judgment creditors. And that these appellants, as assignees of the said balances, are entitled to the application to their said claims of the said 4-10 parts and 4 — 28 of one other tenth part of the net proceeds of the sale of the said lands.</p> <p>3. That his honor erred in. matter of fact in this, that he states that there were no lands in Kershaw county to which the children of Henry W. DeSaussure and the other co-tenants under the will of Champion were entitled, which were sought to be made the subject of partition in the proceedings in the Court of Common Pleas for Kershaw county, referred to in the decree; which statement was erroneous.</p> <p>4. That his honor erred in not holding that the Court of Common Pleas for Kershaw county had jurisdiction for the partition of the said lands, and that the proceedings in the said cause in Kershaw county were, among other things, for the partition of the said lands among the parties entitled thereto both as remainder-men under the will of Champion and as distributees of Caroline DeSaussure, deceased. And. that under the provisions of the act of 1791, the shares of the said children of Henry in the said lands were to vest in the other tenants in common, upon the payment by them of the said balances, which they were ordered in and by the said decree to pay.</p> <p>5. That his honor erred in- his construction of paragraph 7 of Judge Melton’s decree, and erred in not holding that said paragraph 7 authorized the -execution of a deed of conveyance only of the interest of the then minor, Lloyd C. DeSaussure, in the said lands and personal property and the receipt by his father of such portion of the purchase money as may belong to the said Lloyd; and did not determine or adjudge the interest of the said minor to be one-fifth of the whole of said lands and personalty, nor authorize the sale or conveyance of the shares therein of the children of Henry W. DeSaussure, nor adjudge that those shares had vested in and then belonged to the other co-tenants, but that it only authorized the sale of the interest of the said minor, Lloyd, and that that interest, as to the shares of said children of Henry, was the right to have title made to them when they should be paid for; and that said paragraph 7 was only a provision for advancing the interests of the minor, Lloyd, without in any way having any reference to or affecting the rights of the children of Henry, or of the said judgment creditors.</p> <p>W. D. Trantham, administrator, appealed on the following grounds:</p> <p>1. That his honor erred in decreeing upon the pleadings and evidence “that John M. DeSaussure, by giving the mortgage to Kerngood with a covenant of warranty, is estopped from claiming any right to have his judgment against John M. DeSaussure, ji\, paid to the prejudice of the plaintiff, Kerngood, his mortgagee,” because no such question was made either in the pleadings or by the evidence, or by way of exception.</p> <p>2. That his honor erred as matter of law in so decreeing.</p> <p>3. That his honor erred in not decreeing that Wm. D. Trantham, administrator of J. M. DeSaussure, sr., was entitled to contribution by his co-obligors on the Kerngood bond in the event that he is estopped from claiming upon the Yillipigue judgment as against Kerngood’s mortgage.</p> <p>4. That his honor erred in adjudging and decreeing that the master, after paying costs, taxes, &c., “pay to the severallien creditors in the order set down therein the several debts due to them,” while no decree is made for the payment of the Yillipigue judgment, or any part thereof.</p> <p>' 5. That Wm. D. Trantham, administrator, was not, by reason of anything contained in the mortgage of J. M. DeSaussure, sr., and others, to George Alden, estopped from claiming the right to have the judgment of Yillipigue against J. M. DeSaussure, jr., paid out of the share of the latt.er in the lands in preference to all other claimants thereon.</p>

<p>Before Wallace, J., Orangeburg, May, 1883.</p> <p>The opinion states the case.</p> <p>1 Chit. Gont., 538 (11th Am. edit.); 1 Pars. Qont., 537; Benj. Sales, § 320; 14 S. 0., 522; 1 Bay, 312; 4 Mass., 269; 4 Wash. O. 0., 79, 588; 20 S. 0., 17.</p>

<p>Before Cothran, J., Charleston, March, 1883.</p> <p>The opinion sufficiently states the case.</p>

Before Cothran, J., Charleston, April, 1883. The order of the Circuit judge in this case was as follows : This matter came on to be heard by the court on a motion to dismiss the complaint upon the ground that it does not state facts sufficient to constitute a cause of action.

<p>Before Wallace, J., Barnwell, November, 1883.</p> <p>This was an action of claim and delivery by Philippa H. Harley against A. J. Weathersbee and W. E. McMichael, to recover a piano, or its value and damages, the piano having been seized on plaintiff’s premises by McMichael, under a distress warrant issued to him by Weathersbee requiring a distress for rent in arrears due by Mrs. Harley.</p>

<p>Before Kershaw, J., York, March, 1883.</p> <p>The decision of the Circuit judge was as follows:</p> <p>The plaintiff, H. F. Adickes, in the above stated case, obtained judgment therein on February 14, 1874, on two promissory notes of the defendants, as copartners, for the sum of $641 and costs, $22.70, the principal of said judgment bearing interest from February 11, 1874. The summons in said case was served only on James B. Allison, and the judgment was entered against the firm. The plaintiff died, and Mary L. Adickes, the executrix of his will, haring duly qualified, issued a summons against the defendant, J. R. Bratton, requiring him to show cause why he should not be bound by said judgment in the same manner as if he had been originally served with summons in said action; which said summons was served on the defendant Bratton in March, 1882.</p> <p>The said defendant answered the summons, and resisted its demands on several grounds: 1. He denied that any such judgment was recovered by the plaintiff. 2. He claimed that if any such demand ever existed, it had been paid and satisfied from sales of his property. 3. He alleged that this proceeding ivas not commenced within the time limited for the commencement of civil actions or proceedings. These are not literally, but substantially, the propositions contained in the answer.</p> <p>The cause was heard upon testimony and the arguments of counsel. For convenience, the facts will be grouped under the several heads, and stated in connection with the conclusions of law upon each point presented. Under the first head, the point made by the defendant is, .that the Court of Common Pleas for York county was not in session at the time the alleged judgment was rendered, as claimed; and hence, that the paper described as a judgment was not a judgment. The facts are these: the time fixed by the statutes for holding the Court of Common Pleas for the winter term of 1874 was the Wednesday after the second Monday of January. On the second day of January, 1874, the presiding judge of that Circuit wrote a letter to the clerk, directing him after he should have opened the Court of General Sessions on the second Monday of January, pursuant to law, to adjourn the same to the second Monday of February, 1874, and to open the Common Pleas and adjourn the same to the Wednesday after the second Monday in February, and to make due publication thereof.</p> <p>On Thursday, January 8, the said letter, with a proper heading, was published by the clerk in the Yorkville Enquirer, and the publication continued for five issues of that paper, being a weekly newspaper published at Yorkville. Wednesday, January 14, 1874, the Court of Common Pleas was opened by the clerk of York county, and adjourned to the Wednesday after the second Monday in February then next ensuing, at 10 o’clock, a. m., and such action was entered upon the minutes. Wednesday, February 11, 1874, the court met pursuant to adjournment, the Hon. T. J. Mackey, Judge of the 6th Circuit, presiding: which also appears upon the minutes. During the term thus opened, on February 14, 1874, the judgment above stated was rendered in favor of the plaintiff, and duly entered under the direction of the court, by default of defendant to answer or demur.</p> <p>On February 24, 1874, ah order ivas entered, signed at chambers, made on the motion of W. C. Beatty, Esq., attorney for plaintiffs in the cases of W. E. Schieffelin Co. v. Allison ¿fBratton, William McGill and Thomas McGill v. same, and E. F. Adickes v. shme, reciting that a levy had been made by virtue of the said executions upon property of the firm, some of which was of a perishable nature, and ordering that the said property be sold by the sheriff on March 13, next after the date of said order. This order was consented to in writing by the defendant, James B. Allison, and by John T. Lowry, who signed the name of J. R. Bratton, per John T. Lowry.</p> <p>John T. Lowry was made the attorney in.fact of the defendant, J. R. Bratton, by letters duly executed, bearing date January 18, 3872. These letters authorized the said attorney to do the following acts for his said principal: to sell, transfer, and deliver all his personal property in the county of York, in said state; to ask, demand, levy, and require, recover, and receive all moneys, debts, goods, wares, merchandise, effects, and things, due, owing, payable, and belonging and coming unto the said Bratton ; to sell and convey all his real estate in said county, whenever, in his discretion, it should become advisable to do so, or, if the said attorney should deem best, to make a deed of gift of the real estate to Mrs. Bratton for life, with remainder to the children that he, said Bratton, should beget of her; to sign, execute, and deliver all such deeds and conveyances as the said attorney should deem fit and expedient for the purpose of carrying out the powers conferred; to use all due means, course, and process in law for the full, effectual, and complete execution of all the business aforesaid, and, in the name of the said Bratton, to make and execute due acquittance and discharge; to appear for the said principal, and to represent him before the governor, judges, justices, officers, and magistrates of the law in any court or courts of judicature, and, on his behalf to answer, defend, and reply to all actions, causes, matters, and things whatever relating to the premises. Also, to submit any matter in dispute, respecting the premises, to arbitration or otherwise, &c., &c.; and generally to say, do, act, transact, determine, accomplish, and finish all matters and things whatsoever relating to the premises, as fully as he, the said Bratton, ought or might personally do if present, although the matter should require more special authority than therein comprised; he, the said Bratton, ratifying, allowing, and holding firm and valid whatsoever his said attorney should lawfully do, or cause to be done, in and about the premises, &c.</p> <p>The firm of Allison & Bratton was dissolved June 3, 1872, and due notice thereof given in the newspapers. By the said notice, all demands against the firm were required to be presented for payment to Dr. J. B. Allison or John T. Lowry, the latter of whom (it stated) “was legally authorized te represent Dr. J. It. Bratton in all settlements.” This notice was signed by J. R. Bratton and J. B. Allison.</p> <p>From the time of its rendition, the said judgment was regarded and acted upon by all parties as good and valid and of force, without any question until these present proceedings were instituted. Sales were made by the sheriff by virtue 'of the levy , recited in the above-mentioned order; and moneys derived from other sales made by the sheriff, under executions in his office, have been applied to this execution; and the judgment was relied on as a subsisting judgment, having a lien to sustain a sale of land, in the case of Adiches v. Loivry, 12 S. 0., 107, to the printed briefs of which the court has been referred, by consent of counsel, for some of the facts in this case. Upon this point I conclude, as matter of law, that for the purpose of this decision, the said judgment is sufficient to 'constitute a basis for this proceeding.</p> <p>The next point to be considered is, as to whether the said judgment has been paid or satisfied. The following judgments were proven by the production of the judgment rolls:</p> <p>a. Hugh Galloway v. J. R. Bratton, entered and execution issued thereon January 15, 1871, for $100.60.</p> <p>b. Schieffelin & Co. v. J. B. Allison and J. R. Bratton, judgment entered and execution issued May 22, 1872, for $354.36.</p> <p>e.Dowie, Moise & Davis v. same, judgment entered and execution issued July 28, 1873, for $194.49.</p> <p>d. L. M. Grist v. same, judgment entered and execution issued July 29, 1873, for $125.40.</p> <p>e. McGills, administrators, v. same, judgment entered and execution issued September 30, 1873, for $675.05.</p> <p>f. Agnes B. Harris v. J. R. Bratton, judgment entered February 11, 1874, for $666.95, and execution issued February 14, 1874.</p> <p>g. H. F. Adickes v. James B. Allison and J. R. Bratton, judgment entered and execution issued February 14, 1874, for $663.76.</p> <p>Of these, the judgment of Agnes B. Harris was paid from other sources, and need hot further be considered.</p> <p>The following executions were levied on land of the defendant, J. R. Bratton, at the dates hereinafter named, to wit: Grist v. Allison & Bratton, September 22, 1873; Dowie, Moise & Davis v. same, the same day; Schieffelin & Co. v. same, November 5, 1873; McGills v. same, the same day. . From the recitals of the consent order above mentioned, dated February 24, 1874, it is in proof that levies had been made of the executions of Schieffelin, McGills, and Adickes, on the personal property of the firm of Allison & Bratton, prior to that date.</p> <p>The levy in the case of Sehieffelin was the first made. This execution, therefore, was entitled to the proceeds of the sale of the personalty, if the levy was valid. It was recognized by the consent order aforesaid. Mr. Beatty, the attorney for the plaintiffs in all three executions, directed this application of the proceeds to that execution, and the sheriff so applied them, except the sum of $25.00 paid to the plaintiff, H. F. Adickes, for rent. The first levy made under this execution of Sehieffelin was on land of defendant Allison, August 27, 1873.</p> <p>So far as any facts in evidence here inform us, that execution had lost its active energy before that period, and no valid levy could then or thereafter be made without renewal, as the law then stood. (See case of Adickes v. Lowry, supra.) The proceeds of the sales of personalty, therefore, would have been applicable to the other two executions levied upon it, pro rata, except for the effect of the consent of Bratton to the order, by his attorney, Lowry, recognizing the levy and sale under the execution of Sehieffelin and the others therein named.</p> <p>Lowry was authorized to represent Bratton in all settlements of the copartnership affairs, as appears from the published notice of dissolution above mentioned. As that order and the proceedings under it related to the business of the copartnership, and were in effect, to the extent they went, a settlement of the copartnership affairs, it was competent for Lowry to consent for Bratton to the application of the personalty as above set forth. This view is greatly strengthened by the acquiescence of Bratton for so many years. I conclude, therefore, that the judgment and execution of plaintiff herein are not entitled to be considered as affected by the levy and sale of the said personal property of the firm, and the applications of the proceeds to the execution in favor of Sehieffelin & Co.</p> <p>The other payments made, which are hereinafter to be stated, still leave a portion of the debt of the plaintiff unpaid and the judgment unsatisfied. On this point, it may be proper to remark that the levy and sale, and the application of the proceeds of the sale of the Dennis tract of land of the defendant Bratton, can in no wise be treated as payment or satisfaction of plaintiff’s judgment in this case, beyond the money paid to plaintiff therefrom, because the judgment and execution thereon could only affect the joint property of Allison & Bratton and the individual property of the defendant Allison. The separate"property of Bratton could not have been levied on by virtue of the judgment, nor could the sheriff apply the proceeds of such property, when sold, to such judgment or execution, when it appeared from the record that he had not been served with process in the case.</p> <p>The next question to be disposed of is that of the effect of the statute of limitations. If that defence had been set up to the action when originally commenced, it would not have been applicable, because the causes of action were not then barred. If, however, the action is to be regarded as having been commenced at the date of the service of the present summons upon the defendant Bratton, the result would be quite different.</p> <p>As this question is new here, reference has been made to decisions made elsewhere, showing how it has been dealt with by the courts of New York, from which state we derive these provisions of our code. The case of Bruen v. Bokee, 4 Bento, 56, relied on by the counsel for defendant Bratton, does not appear to me to apply to the case here. That was a proceeding by action on a joint judgment against a party not served in the original action. Such was the remedy provided by the statutes of New York at that time. The plea was “that- the cause of action” upon which the suit was brought “did not accrue at any time within six years next before the commencement of this suit.” The question presented, therefore, was, did the judgment prevent the running of the statute of limitations ? Upon the authority of Oarma v. Townsend, 6 Wend., 206, it was held that the plea was good.</p> <p>The case of Berlin v. Sail, 48 Barb., 442, is more to the point. The code in New York; prior to 1847, authorized the proceeding by summons, as here, and allowed the party summoned to answer, denying the judgment, or setting up any defence which may have arisen subsequently; and, in addition thereto, if he be proceeded against according to section 375, he may make the same defence which he might have originally made to the action. By an amendment to this section, adopted in 1849, the following words were added: “except the statute of limitationsIt was contended in Berlin v. Sail that the proper construction of the section, as amended, required that the words added should be considered as transferred to the first paragraph, so as to qualify that portion of the section authorizing the party to interpose defences arising subsequently to the judgment. The court held otherwise; and, arguendo, remarked that the code, by its literal rendering, precluded the defence of the statute of limitations when it arose before the commencement of the original action, but allowed it when it arose subsequently. If this were correct, the judgment would have the effect of renewing the causes of action, but leaving them subject to the statute from that time, as in the case of a new contract. It proceeded upon the principle that the suffering of a judgment by a joint debtor was equivalent to an admission of the debt, which, under the decisions there, as here, would renew the debt against all the parties to the contract. In order to give effect to the five words added to this section of the New York code by the amendment of 1849, this construction was necessary and not unreasonable.</p> <p>Since the decision in Berlin v. Sail (1867), these words have been stricken out by a subsequent amendment, and our code has the section as last amended. In lieu of the words “except the statute of limitations,” we have the following: “If the summons were originally commenced, and such defence had been then interposed.” (See Code, § 380, formerly 396.) A party proceeded against, in a case of this character, is allowed to answer, “denying the judgment,” or “setting up any defence which may have arisen subsequently,” and also any defence which he might have made to the action, if the summons had been served on him at the time when the same was originally commenced, and such defence had been then interposed to such action. If the defence of the statute had been “then interposed,” it would not have been good, and under this section no greater effect can be given to it now when it is a defence which has arisen since the judgment and sufficient time has elapsed to make it a good plea. The language employed by the court in Berlin v. Sail is applicable to this case: “It had long been held that a payment or a promise, by one member of a firm revived the debt and barred the statute, although the firm had been long dissolved at the time of the payment or promise. * * * The amendment gives the same effect to a judgment, which is in effect a confession of the debt by record evidence.” The language óf our code as effectually excludes the plea of the statute as the express exception inserted by the amendment of 1849, and the effect is the same as that given to the exception by the decision in Berlin v. Hall.</p> <p>The summons against the defendant Bratton was served March, 1882. The judgment against Allison & Bratton was entered February 14, 1874. The defendant, J. R. Bratton, left the state October 15, 1871. He returned in June, 1872, remained one month, and again left the state, and did not return until November 19, 1878. Regarding the entry of judgment as a new starting point for the statute, and deducting the period of Dr. Bratton’s absence, the bar of the statute was not complete when the present summons was served. Hence the statute of limitations is not a valid defence.</p> <p>Another and simpler answer to the statute is that it is not a new action, but the service of a summons upon a joint debtor to show cause why he .should not be bound by a previous judgment recovered against his co-contractor in an action commenced before the bar of the statute was complete. For the purposes of the statute, the action was commenced, as to Bratton, when the summons was served upon his co-defendant, Allison. Code, § 120. The action was not barred then, and that is the time to which reference must be had. The statute does not run pendente lite.</p> <p>It has been supposed that the execution of plaintiff should be credited with the amount derived from the sales of personal property under the order dated February 24, 1874. I arrive at a different conclusion. The application of that money to the execution of Schieffelin & Co., though improper, was virtually assented to by Lowry, as the attorney of Bratton, acting within the scope of his authority, and was in like manner approved by the long acquiescence of Dr. Bratton without complaint. Plain-' tiff, without any fault on his part, and without prospect of recovery, would suffer the loss if that application of the money were now set aside.</p> <p>The defendant Bratton, by his attorney, recognized the levy of the execution of Schieffelin & Co. That levy was the first made upon the goods in question, and, if a levy at all, constituted the first lien on them. That lien having been recognized by the other parties interested, and having been acted on by the sheriff, without notice of dissent or complaint until after a lapse of six years, when the sheriff, if he were held liable for the same, could no longer protect himself by a recovery of the money from the party to whom it was paid, and the plaintiff himself would be without remedy, the defendant Bratton and all the other parties so consenting and acquiescing, are equitably estopped from asserting that the said application was not correct. Doe v. Oliver, 2 8m. Lead. Cas., 562; •Bollman v. Bolivian, & S. C., 46.</p> <p>It is therefore ordered and adjudged that the said plaintiff, Mary L. Adickes, executrix of II. F. Adickes, deceased, have judgment against the defendant, J. R. Bratton, for the amount of the aforesaid judgment recovered by the said H. F. Adickes against the said Allison & Bratton, for the amount of said judgment and interest thereon now remaining due and unpaid; that it be referred to the clerk of this court to compute the amount so due and unpaid, in accordance with the principles herein declared; and that the plaintiff have judgment for the same, together with the costs of these proceedings, to be adjusted by the clerk,- and that plaintiff have execution therefor.</p> <p>From this decision, J. R. Bratton appealed on the following exceptions:</p> <p>1. Because of error in holding that the Court of Common Pleas for York was legally holden on February 14, 1874, and the judgment then rendered in favor of II. F. Adickes against Allison & Bratton was a valid judgment.</p> <p>2. Because of error in holding that said judgment, if properly rendered, had not been satisfied, in whole or in part, by the sales of personal property, levied under the execution thereon in •March, 1874.</p> <p>3. Because of error in holding that the dormant execution of Schieffelin & Co. against said firm was entitled to be paid out of the proceeds of sales of personal property, by reason of a consent order for said sale, in preference to valid existing executions of active'energy.</p> <p>4. Because of error in holding that a consent to sell, made on February 24, 1874, could give validity and priority to a void levy alleged to have been previously made under a dormant execution.</p> <p>5. Because of error in admitting oral evidence of a levy under a dormant execution, when such execution, on being produced, contained no evidence of such levy.</p> <p>6. Because of error in holding that J. T. Lowry had authority, as attorney in fact, to consent to a renewal of an execution against the firm of Allison & Bratton under the power produced, which limited his authority to the individual concerns of J. R. Bratton.</p> <p>7. Because of error in holding in effect that a consent to renew a dormant execution gives it vitality, without taking out new process from the court.</p> <p>8. Because of error in holding that the defendant Bratton had acquiesced in the illegal application of moneys to a judgment not of force against him, and while he was absent from the state.</p> <p>9. Because of error in not holding that the statute of limitations could be interposed as a bar to plaintiff’s claim.</p> <p>10. Because the judgment rendered against the defendant is a nullity, inasmuch as it fails to specify any sum whatever to be inserted therein.</p> <p>cited 15 Stat., 325, 456; Const., art. IV., § 16; 3 S. C., 567; 7 Id., 874; Gen. Stat. of 1872, ch. XXII, § 20; Freem. Judg., § 121; 20 Arle., 77; 1 Bail., 142; 2 McMull., 156; Budley, 46; 19 S. C., 461; 2 Bail., 361, 413; Code (1870), §§ 306-316; 3 Mill, 283, 292; 3 McCord, 560; 13 S. C., 120; 5 Id., 58.</p>

• Before Pressley, J., Marion, October, 1883. The opinion fully states the case. The charge of the presiding judge was a violation of the constitution, art. IY., § 26. 16 S. 0., 148, 629; 15 Id., 392; 18 Id., 108. The facts here proved fraud, arid Miss McPherson and those claiming under her.took nothing. Gen. St at., § 1786; 1 Hill, 380; 2 Bail, 324, 118; 1 Hill, 24; McMull. Bq., 31; 1 Hül Oh., 304; 2Id., 34; 2 Bail, 205; 4 S. O., 257; 16 Id., 610.

<p>Before Witherspoon, J., Laurens, February, 1883.</p> <p>At the hearing of this appeal, Honorable T. B. Fraser, .judge of the Third Circuit, sat in the place of the Chief Justice, who had been of counsel in the cause.</p> <p>The case is fully stated in the Circuit decree, which was as follows:</p> <p>The complaint herein substantially alleges:</p> <p>I. That plaintiff, on October 16, 1875, at the instance and for the benefit of the defendants, George F. Young and Mary Garlington, paid the sum of $377.07 for the redemption of a certain tract of land in Newberry county, before then sold for taxes, whereby said defendants recovered the possession of said land.</p> <p>II. That plaintiff, on December 21, 1875, at the instance and for the benefit of the defendants above named, paid one Mathews $1,136.30 for the redemption of the Calmes Quarter tract of land in Laurens county, which had been sold and purchased by said Mathews at delinquent land sale, May 18,1874, and conveyed by the auditor to Mathews February 24, 1875, whereby said defendants obtained full possession, and have since possessed said land.</p> <p>III. That on February 12, 1878, plaintiff took from said Mathews a title deed for said land as evidence of the final redemption of the same and to secure repayment of redemption money paid as aforesaid.</p> <p>IV. That at delinquent land sale for Laurens county, May 3, 1875, plaintiff bought about 1,000 acres of land for which he paid $757.51 cash, upon agreement between plaintiff and the last named defendant, that plaintiff was to retain of said tract under the purchase aforesaid about 550 acres thereof, originally belonging to estate of Wm. R. Yoiing, for the benefit of said estate, of which estate plaintiff was administrator with will annexed, and defendants were to take possession of the remainder of said tract, about 450 acres, whereby defendants became indebted to plaintiff in the sum of $340.91, their proportionate share of said purchase money, and then agreed to pay same.</p> <p>V. That for the benefit of said last named defendants, plaintiff paid taxes on the aforesaid lands in Laurens county, in possession of said defendants, from February 10, 1876, to February 10, -1879, amounting to $241.71.</p> <p>VI. That plaintiff is justly entitled to repayment by said defendants of the several sums of money set forth, with interest, all of which remaining unpaid, and on January 16, 1881, with interest, amounts to $2,828.38.</p> <p>VII. That defendant, Mary Garlington, is the wife of the defendant, Stobo D. Gai’lington.</p> <p>VIII. That Mary Garlington has a valuable estate in her own right that has been benefited by the payments made as aforesaid, and should be held liable for the satisfaction thereof. Plaintiff prays judgment against defendants for the sum of $2,828.38, together with costs, and for such other relief as justice may demand.</p> <p>Defendants, in their joint answer, substantially submit—</p> <p>I. The defendant, Mary Garlington, states she has no knowledge of the allegations of paragraph I. of complaint. The defendant, George F. Young, admits that plaintiff redeemed the New-berry land for said defendant Young.</p> <p>II. Defendant, Mary Garlington, has no knowledge of allegations in paragraph II. of complaint. The defendant Young alleges that plaintiff did agree to redeem for defendant Young the land referred to in said paragraph II., but took title in his own name. The defendants Young and Stobo D. Garlington allege that plaintiff brought action to recover this land under the deed from Mathews, and by said action and in other ways plaintiff subjected defendants to $1,000 damages by interfering with defendants’ possession. Defendants say they have no knowledge of amount paid by plaintiff to Mathews, or the necessity thereof, and demand proof.</p> <p>. III. Defendants deny so much of paragraph III.' as alleges plaintiff took title from Mathews as evidence of redemption of land and to secure repayment of redemption money.</p> <p>IV. Defendants admit plaintiff bid off 1,000 acres of land as set forth in paragraph IV., but deny that it forms any part of the 1,000 acres admitted by plaintiff on day of sale to have been bid off. They allege that the 1,000 acres was bid off for defendant Young, and was so publicly announced at the bidding. Defendants deny all other allegations in paragraph IV. of complaint.</p> <p>V. Defendant, Stobo D. Garlington, admits that plaintiff did pay certain taxes in 1876, but denies taxes paid as set forth. He alleges he protested against plaintiff’s paying taxes after 1877. The defendants Young and Mary Garlington have no knowledge of allegations in paragraph V. (payment of taxes) of complaint, and demand proof.</p> <p>VI. Defendants deny their indebtedness to plaintiff as alleged in paragraph VI. of complaint.</p> <p>VII. Defendant, Mary G-arlington, admits she is seized of an estate in her own right, but has no knowledge of payments made by plaintiff, and if made, does not know that her estate has been benefited thereby, and demands proof of same.</p> <p>The defendants set up as as counter-claim $6.71, taxes paid in 1880 on plaintiff’s land, still due, and also for rents and profits of the 550 acres, known as the Wm. R. Young tract, from 1875, referred to in paragraph IV. of complaint.. Defendants allege that plaintiff agreed to pay rent, and that they are entitled to 52 bales lint cotton for rent, for which they could have realized $2,650. The defendants allege that all the lands referred to in plaintiff’s complaint are part and parcel of the estate of Samuel Young, and that defendants hold said lands by virtue of a deed from Wm. Young, executor of Samuel Young. Defendants also allege that the lands referred to by plaintiff were sold for delinquent taxes, and said lands had not been declared forfeited before sale. Defendants allege that the rental value of the Wm. R. Young tract is not less than 10 bales of lint cotton of 425 lbs. each. Defendants deny indebtedness to plaintiff, but demand judgment against plaintiff for $8,656.71 and costs.</p> <p>The plaintiff in reply denies that he ever agreed to pay defendants rent for the W. R. Young tract of land, as well as the other allegations of the answer inconsistent with the allegations of the complaint.</p> <p>I have attempted to- give in substance the allegations of the complaint and answer to indicate the nature of the action as w7ell as the issues involved. It appears from the order of reference in the case that by consent of counsel it was referred to the master to take and report this testimony to the court. In the order of reference the master is directed to report in full all transactions between the parties, as to advancements, the sale of the land, and the title to the same, that the court may determine all the equities arising between the parties. The master has merely reported the testimony as directed,'and the cause came on to be heard, ■without a jury, at February term, 1883, of the Common Pleas for Laurens county.</p> <p>The plaintiff’s complaint is on a money demand, a legal action based upon an alleged contract or agreement whereby plaintiff claims to have paid and advanced certain sums of money for defendants at their instance and request. The defendants’ answer seeks to change the character of plaintiff’s claim from a legal to an equitable action. Whilst defendants have the right to interpose an equitable defence, they have no right by their answer to change a legal into an equitable action. There has been no order or amendment of the complaint, and plaintiff, upon the hearing, insisted upon the legal character of his demand. I do not think the order of reference, merely to take and report testimony, would change the character of the action as presented by plaintiff. I must therefore consider this as a legal action based upon contract or agreement: between plaintiff and defendants. ' Taking this view as to the legak character of this action, it is not deemed necessary, nor is it intended herein, to adjudicate the title to any of the lands referred to in complaint, or the validity or regularity of the delinquent land sales referred to in the complaint.</p> <p>The first question to be considered and determined as made by the complaint is, whether or not plaintiff paid or advanced the several sums of money, or any part thereof, to the defendants, or either of them, at their instance and for their benefit, as alleged in the complaint. To determine this, reference must be had to the testimony taken by the master. From a review of the testimony I am satisfied and conclude that plaintiff did not pay or advance at the instance or request of either of the defendants, M^ry Garlington or Stobo D. Garlington, any sums of money, nor does it-appear that there was any contract or agreement between plaintiff and said defendants, Mary Garlington and Stobo D. Garlington, with reference to plaintiff paying money for them, or either of them, as alleged in’the complaint. The plaintiff having failed to establish by the testimony his demand against the said defendants, the complaint should be dismissed with costs as to the defendants, Mary Garlington and Stobo D. Garlington.</p> <p>The testimony, however, does show, and I must conclude, that under an agreement between plaintiff and the defendant, George F. Young, plaintiff did pay and advance for the defendant, George F. Young, the following sums, to wit: On May 3, 1875, the sum of $661.89 to enable said defendant to redeem certain lands of the estate of Samuel Young, then sold at delinquent land.sale, of which said sum plaintiff in his complaint only demands the sum of $340.91, and in his recovery against defendant plaintiff must be limited to the demand as set forth in his said complaint; that on October 16, 1875, under agreement between plaintiff and defendant, George F. Young, plaintiff paid for said defendant, George F. Young, the sum of $377.07, to enable said defendant to redeem a certain tract of land of the estate of Samuel Young, in Newberry county, that had been sold for taxes; that on December 21, 1875, under an agreement between plaintiff and defendant, George F. Young, plaintiff, at his instance, paid for the said George F. ’ Young to one B. H. Mathews, who had purchased the Calmes Quarter tract of land in Laurens county of the estate of Samuel Young, sold at delinquent land sale, to enable said defendant to redeem said land,’ the sum of $1,136.30.</p> <p>Under the agreement between plaintiff and the defendant, George F. Young, the said George F. Young was to pay plaintiff the amount of money advanced and paid as aforesaid, with interest thereon, and no part of the money paid or advanced by plaintiff as aforesaid or interest has ever been paid by the said George F. Young. Plaintiff, in the 5th paragraph of his complaint, alleges that he paid certain taxes on the delinquent lands sold as aforesaid for the benefit of defendant. It is not alleged ,by plaintiff, nor does it appear from the testimony, that the payment of said taxes was embraced in the agreement between plaintiff and the defendant aforesaid, nor does it appear that said taxes were paid at the instance and request of either of the other defendants, Mary Garlington or Stobo D. Garlington. The evidence as to the payment of taxes on delinquent lands sold as aforesaid is not clear, as in many instances the tax alleged to have been paid is embraced in tax receipt, including plaintiff’s own lands. As the testimony fails to show any agreement or authority from defendants to plaintiff to pay said taxes, plaintiff’s demand for taxes alleged to have been paid in 5th paragraph of complaint cannot be allowed.</p> <p>It was contended by defendants’ counsel that the statute of frauds presented a bar to plaintiff’s recovery; that plaintiff, having title and never having tendered titles to defendants, could not recover; that the sale of delinquent lands, May 18, 1874, was irregular and void, and that plaintiff could not acquire a valid title to land sold at said delinquent sale. Roddy v. Purdy, 10 S. C., 137. These are matters that might avail defendants if plaintiff in this action was setting up title to land, or seeking to enforce a lien upon land. The testimony shows that plaintiff advanced the $1,136.30 to defendant, George F. Young, long-after Mathews had purchased at delinquent land sales, and defendant failed to pay plaintiff. Plaintiff alleges he took title from Mathews February 12, 1878, merely as evidence of redemption, and to secure from defendants the repayment of money advanced and already paid for defendant Young. When plaintiff paid the money to Miathews for the defendant, George F. Young, it does not appear as part of the agreement between the parties that the liability of Young to plaintiff depended upon the validity of said tax sale. The payment was made for the benefit of the defendant, George F. Young, and plaintiff should not lose his money on account of irregularity of tax sale, when he is not asserting title to land sold, or attempting to enforce a lien upon-the land. But, as already stated,'these matters cannot arise or be adjudicated in this action to recover money paid by plaintiff at the instance of defendant.</p> <p>Defendants in their answer, by way of counter-claim, allege that in 1880 they paid $6.71 taxes on plaintiff’s lands. The evidence of such payment is a tax receipt for second instalment of taxes paid by defendant, Stobo D. Garlington, November 15, 1880, on 2,850 acres of land assessed against plaintiff, the amount of taxes being $34.80. There is no testimony that plaintiff authorized or requested defendants to pay said taxes, and the counter-claim of $6.71 cannot be allowed.</p> <p>Defendants further allege and set up in their answer, by way of counter-claim, that plaintiff promised and agreed to pay defendants a certain number of bales of cotton as annual' rent for the Wm. R. Young tract of land for the year 1875, and the intervening years up to and inclusive of the year 1880, which rent has never been paid by plaintiff, and that defendants are entitled to judgment against plaintiff for the sum of $2,650 the value of said rent. It appears from the testimony that the William R. Young tract of land was conveyed by the executor of Samuel Young to the defendants, George F. Young and Mary Garlington, jointly. Under the code, a defendant can set up a counter-claim where a cause of action exists in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of one of the following causes of action: 1. A cause of action arising out of. the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim or connected with the subject of the action. •. 2. In an action on contract any other cause of action, arising also on contract and existing at the commencement of the action.</p> <p>'. Did the plaintiff, as matter of fact, promise or agree to pay defendants rent for the William R. Young tract of land? Plaintiff testifies positively that he did not. It appears that in order to effect a settlement of the money advanced for defendant, George F. Young, as aforesaid, plaintiff did propose to defendant, Stobo D. Garlington, at a time subsequently to the transaction with George F. Young, May 3, 1875, to account for rent received by plaintiff from the William R. Young land, but it does not appear that this was a part of the original agreement between plaintiff and George F. Young, but was merely a propoáal to effect a settlement which was never accomplished. The defendant, George F. Young, testifies that he regarded plaintiff as acting in his own interest, but states positively that there was no understanding about plaintiff taking possession of the Billy Young tract of land any more than his taking possession of anything else he (defendant) had. The testimony fails to show that plaintiff ever promised or agreed to pay rent as such to defen-' dants for the William R. Young tract of land, and the counterclaim cannot be allowed. But even if there was satisfactory evidence that plaintiff agreed to pay defendants rent, the counter-claim as set up in defendants’ answer could not be sustained in this action, for 'the reason that plaintiff’s claim herein established as set forth in the answer would be in favor of defendants jointly. I must therefore conclude that the counter-claim, as set up in defendants’ answer, cannot be allowed under the code of procedure.</p> <p>Defendants further allege in their answer that they have sustained damages by reason of plaintiff’s seeking to eject them from the Calmes Quarter tract of land, under the deed from Mathews, and by other interference with defendants’ possession of said land. The alleged conduct of plaintiff is in the nature of a tort that cannot be set up as a defence to plaintiff’s action.</p> <p>I find as matters of fact:</p> <p>I. That plaintiff did not pay or advance money to the defendants, Mary Garlington and Stobo D. Garlington, or either of said defendants, at their instance, as alleged in his complaint.</p> <p>II. That plaintiff, at the instance and request of the defendant, George F. Young, did pay for and advance to the said George F. Young the following sums of money, which said sums of money and interest the defendant, George F. Young, agreed to pay plaintiff, to wit:' May 3, 1875, the sum of $340.91; October 16, 1875, the sum of $377.07, and on December 21, 1875, the sum of $1,136.30, which said several sums of 'money still remain due by defendant to plaintiff, and with interest up to January 16, 1881, amounts to $2,537.54.</p> <p>I find as matters of law :</p> <p>I. That the defendants, Mary Garlington and Stobo D. Garlington, are not indebted to plaintiff, as alleged, and that the complaint should be dismissed with costs as to. the defendants, Mary Garlington and Stobo D._ Garlington.</p> <p>II. That the defendant, George F. Young, is indebted to plaintiff for money paid and advanced at.his instance and request, in the sum of $2,537.54, with interest from January 16, 1881, together with the costs of this action.</p> <p>III. That the counter-claim set up in the answer of defendants should not be allowed.</p> <p>It is therefore ordered and adjudged, That George P. Copeland, the plaintiff, have judgment, with leave to issue execution against the defendant, George- F. Young, for the sum of $2,537.54, with interest from January 16, 1881, together with' costs. It is further ordered and adjudged, That plaintiff’s complaint be dismissed with costs as to the defendants, Mary Garlington and Stobo D. Garlington.</p> <p>From this judgment the defendants appealed on the following exceptions:</p> <p>Because it is respectfully submitted—</p> <p>1. His honor erred in giving judgment in favor of plaintiff, and against the defendant, George F. Young, for $1,136.30— money paid by plaintiff to Mathews in connection with Calmes Quarter tract of land.</p> <p>2. His honor erred in giving judgment in favor of plaintiff, and against defendant, George F. Young, for $340.91 — money alleged to have been paid by plaintiff in connection with delinquent land sales made on May 3, 1875.</p> <p>3. His honor erred in not finding that plaintiff must tender title, or such title as was in him, to the lands in connection with which the alleged moneys were advanced, before he can maintain this a.ction against the defendants for the enforcement of his legal rights, or the recovery of the moneys advanced as alleged.</p> <p>4. His honor erred in not finding the sale of lands sold as delinquent on May 18, 1874, and on May 3, 1875, not only irregular, but null and void.</p> <p>5. His honor erred in not. finding that there was no agreement between plaintiff and George F. Young touching the disposition of lands bid off by plaintiff on May 3, 1875, at the sale of delinquent lands.</p> <p>6. His honor erred in not finding as void any verbal agreement entered into between plaintiff and George F. Young for the disposal of the 1,000 acres of land, or any part thereof, and bid off by plaintiff at the sale of delinquent lands on May 3, 1875.</p> <p>7. His honor erred in not finding that if George F. Young had entered into any verbal agreement with plaintiff under a misapprehension of his legal rights, he could withdraw from such agreement and assert his rights in an action to enforce legal rights.</p> <p>8. His honor erred in not finding the legal title to the 1,000 acres of land, of which the W. R. Young tract is alleged by plaintiff to be a part, and bid off by plaintiff at sale of delinquent-lands on May 3, 1875, to be in the defendants, George F. Young and Mary Garlington,. and that they are entitled to the rents and profits of the W. R.. Young tract .-of land.</p> <p>9. His honor erred in finding that the damages resultant to the defendants from the action brought by plaintiff to eject Stobo L>. Garlington and others from the Calmes Quarter tract, w.ere resultant from conduct in the nature of a tort and cannot be set up as a counter-claim in this action.</p> <p>10. His honor erred in finding that the counter-claim set up by the defendants for the rents and profits of the W. R. Young tract of land cannot be maintained in this action.</p> <p>11. His honor erred in not finding and adjudicating the equities of the parties as revealed by the pleading and the evidence in this action.</p>

Before Wallace, J., Berkeley, June, 1883. This was an indictment under the act of 1880, against Carl Berlin and G. Staevens for selling liquors without a license. The defendants pleaded in bar, that the act was void-because contrary to the constitution of this state (Art. I., § 12), and of the United States (14th Amendment). The State demurred to the plea, which was overruled. The case then went to the jury.

<p>Before Hudson, J., Spartanburg, October, 1883.</p> <p>Action by C. W. Mitchell against W. D. Fowler, commenced in a trial justice’s court on September 18, 1880, and there tried in October, 1880. The opinion states the case.</p>

Before Kershaw, J., Laurens, June, 1883. The facts of this case are fully stated in the opinion of this Court. The Circuit decree, omitting such .statement, was as follows : From these facts I conclude that the note is paid by lapse of time. Notwithstanding the judgment against the executors, Sloan & Seignious may avail themselves of it. Bird v. Souze, Speer Sq., 250; Gilliland v. Caldwell, 1 S. C., 197.

<p>Before Wallace, J., Newberry, November, 1882.</p> <p>The facts are stated in the opinion. The Circuit decree was as follows :</p> <p>It will be seen on reference to the sixth clause of David Glenn’s will that any of the sons was authorized to sell the land, if he did not wish to reside on it, to any of the issue of David Grlenn. The fact that William Glenn resided in Alabama and sold the land shows that he did not wish to reside on it. The fact that he sold the land to his son, who two days afterward sold and conveyed to G. W. Glenn, sr., shows that he intended to conform to the condition of his power to convey.</p> <p>Is A. J. Glenn, the son of William Glenn arid grandson of David Glenn, embraced in the words “any of my issue” ? “ ‘Issue’ is nomen collectivum, and a word of very extensive import. The term embraces descendants of every degree wheresoever existent, and unless restricted by the context cannot be satisfied by being applied to descendants at a given period.” 3 Jarm. Wills, 200. So unless there are terms to restrict the word-“issue,” it certainly would include “grandsons.” By the term “issue” occurring in the second clause of the will copied above, it is obvious from a mere inspection that the testator meant more than children. Nor is there anything in the will which shows an intent to restrict the sons in a narrower circle than is described by the term “issue” in its unrestricted sense. The sale to the son, then, by William Glenn was in accordance with the direction of the will and conveyed a good title.</p> <p>Other questions as to the nature of the estate that the sons took under the will, and the statute of limitations, need not be discussed. It is ordered and adjudged that the complaint be dismissed.</p>

<p>Before Fraser, J., Laurens, February, 1884.</p> <p>The opinion fully states the ease.</p>

<p>Before Pringle, Recorder, Charleston, July, 1883.</p> <p>The opinion fully states the four cases.</p>

Before Hudson, J., Spartanburg, October, 1883. This was an action by R. T. Wilson & Co. against Alvin H. . Dean, commenced September 2, 1880. The opinion fully states ■ the case. After the jury is charged, a case cannot be withdrawn, but plaintiff may take a non-suit. Defendant was not liable as guarantor of the uncollected .notes. 2 Dan. Meg. Inst., § 1753; 17 S. 0., 4; Abb. Tr. Mid., 474; 1 Wait’s Act. # Def., 584; 3 . McQord, 236; 2 Pars.

<p>Before Wallace, J., Spartanburg, December, 1883.</p> <p>The opinion fully states the case.</p>

<p>Before Hudson, J., Spartanburg, November, 1883.</p> <p>This was an action by Ellen E. Finch against Benjamin’Finch, commenced September 13, 1881. The opinion states the case¡</p>

Before Wallace, J., Newberry, November, 1882. The opinion fully states the case. The Circuit decree, omitting its statement of the facts, Avas as folloAvs: First, as to the bar of the statute. The money Avas withdraAvn on June 29, 1871. Mr. Moorman died October 5, 1873. This action Avas commenced in May, 1878. If the statute commenced to run on June 29, 1871, more than six years and nine months elapsed before the commencement of the action, and it would be barred.

Before Fraser, J., Spartanburg, March, 1884. The indictment in this case was against Howard Butler under the statute which declares breach of trust with fraudulent intent . to be larceny.. The opinion states the case..

Before Hudson, J., Abbeville, February, 1884. Action by A. M. Hill against L. W. Perrin, administrator of Joel S. Perrin. The judgment was for defendant, and plaintiff' appealed upon his exception to the judge’s ruling at the trial, as stated in the opinion of this court. The opinion states the case. compared section 131 of the code of procedure with the 4th section of the statute of frauds (Gen. Stat., § 2019), and cited 4 Min. Inst., 506 ; 16 S. 0., 213; Big.

<p>Before Kershaw, J., Anderson, October, 1883.</p> <p>The opinion states the case.</p>

<p>Before Pressley, J., Beaufort, March, 1883.</p> <p>The opinion states the case.</p>

<p>Before Kershaw, J., Richland, October, 1882.</p> <p>After stating the facts, which appear in the opinion of this court, the Circuit decree continued as follows:</p> <p>The homestead act, as it now exists, declares the'homestead “exempt to the head of every family residing in this state from attachment, levy, or sale on any mesne or final process issued from any court upon any 'judgment obtained upon any right of action arising subsequent to the ratification of the constitution of the state of South Carolina.” This is merely an amplification of the language of the constitution as amended in 1880, which declares that “the General Assembly shall enact such laws as will exempt from attachment and sale under any mesne or final process issued from any court to the head of any family residing in this state a homestead,” &c. 17 Stat., 320, 513.</p> <p>Language could not be broader or more comprehensive than this in regard to judgments founded on the class of action specified. If the right of action arose subsequent to the constitution, whatever its nature, it cannot be enforced against the homestead. The question, then, (having regard only to the act,) is narrowed down to this, did the right of action arise subsequent to the ratification of the constitution ? It will not be denied that it arose here after the death of Mary Jenkins, the elder, in August, 1868, and consequently subsequent to the ratification of the constitution.</p> <p>But it is argued that the right of action arose under, and by virtue of, rights conferred by the deed of trust'made by Samuel Jenkins in 1867; that that deed was a contract, whose full scope and effect is not to be impeded by the constitution of 1868, or any legislation thereunder, since no state may pass any law which impairs the obligation of a contract. If the action in which this judgment was rendered were founded upon the deed as the cause of action, there is little room to question the soundness of the propositions thus insisted upon. If, for instance, the deed contained covenants of warranty, and an action were brought directly upon the covenant, and a recovery had, the right of homestead could not, probably, be claimed against the judgment, though the breach, and therefore “the right of action,” arose after the ratification of the constitution. This would be for the reason that the ground for the action would be the contract made before the constitution, whose obligation was sought to be enforced. The right to demand the performance of the covenants would have been vested by the contract, and could not be impaired by subsequent legislation.</p> <p>The action in which the judgment here was rendered was originally brought by the plaintiff and his wife, setting forth the deed and demanding protection and enforcement of her rights in the land therein conveyed, which was then as now, in possession of the defendant, who was receiving the rents and profits thereof.. Jenkins denied the execution of the deed, and contested all the rights claimed thereunder. Plaintiff’s wife died, and a supplemental complaint was served by leave of court on the part of the plaintiff, still insisting upon the deed and the supposed rights of the plaintiff thereunder, and upon the death of his child another supplemental complaint was served, wherein plaintiff still insisted upon the deed, and claimed his rights under it.</p> <p>The issues of fact presented and decided were: (1) Was the deed duly executed and delivered by the defendant ? (2) Was the marriage of plaintiff and his wife lawfully contracted, so that he had become entitled, in respect of her property, as her husband ? The questions of law were: (1) What estate did Mary Withers take in the property under the deed ? (2) What estate did her husband take after the death of his wife and child ? In other words, what were the obligations of the defendant to the plaintiff under the deed ? It will be seen, therefore, that this was an action upon the deed to set it up, and to have the court construe it, and to enforce the obligation thereof against the defendant. Under this action the court construed the deed, and rendered a judgment in favor of the plaintiff for rents and profits due him under the contract or deed thus construed.</p> <p>The obligation, of a contract consists in “the powers and efficacy of the law which applies to and enforces performance of the contract or the payment of an equivalent for non-performance.” {Per Trimble, J., 12 Wheat.{ 318.) The court decreed the payment of an equivalent for the non-performance of his contract by defendant, and he cannot set up a right of exemption created by legislation subsequent to the contract to defeat the obligation of it, here sought to be enforced.</p> <p>' It is therefore ordered and adjudged, that the rule be made absolute, and that the said sheriff, Samuel W. Rowan, proceed to enforce the execution aforesaid against the property of the defendant, according to its exigency, "without regard to the claim of homestead therein, until the said property be exhausted, or satisfaction of plaintiff’s judgment be made, and that he return said execution within thirty days from notice of this order, and failing to do so, that he be attached as for a contempt for not obeying the order and process of the court.</p> <p>From this decree defendant appealed, raising the question considered by this court.</p>

Before Pressley, J., Darlington, October, 1883. This was an action by John McSween, as survivor of Keith & McSween, against Samuel O. McCown, Carrie B. McCown, and her children, and was commenced April 27, 1882. The opinion states the case.

Before Pressley, J., Orangeburg, October, 1882. The opinion states the facts of the case. The Circuit decree was as follows: Mary D. Norton had an interest in some land sold by proceedings in partition in this court, which ordered her share to be paid to her. O. M. Stone & Co. have a judgment against her on a debt older than the constitutional amendment of 1880, which allowed homestead to a married woman out of her separate estate.

<p>Before Witherspoon, J., Charleston, November, 1883.</p> <p>This was an action by Samuel J. Pregnall & Brother against Miller & Kelly. The opinion states the case. The exceptions were as follows:</p> <p>1. His honor erred in charging that “that there must be a delivery of the article in order to complete the sale; there must be a payment on the one side and a delivery on the other. You will determine whether there was a delivery or not.”</p> <p>2. His honor being requested by appellants to charge that “if the evidence satisfies the jury that the company had already sold the engine to plaintiffs and ■ nothing further remained for the company to do at the time of the alleged sale to defendants, then the property in the engine had already vested in plaintiffs at the time of such alleged sale to defendants, although the engine had not been removed,” erred in not charging as requested, and in qualifying the charge by saying: “I so charge you if the sale to plaintiffs was complete prior to the sale to the other parties.”</p> <p>3. His honor erred in charging, in this case, without explanation or qualification, that “where a party sells a piece of property and remains in possession of it, the law presumes that the sale was fraudulent. That is a presumption of law. If he leaves the property in the visible possession of the vendor, the law presumes that it is left there under some secret understanding between the seller and the buyer. That is the presumption of law.”</p> <p>4. His honor erred in charging that “if the jury find from the evidence that Pregnall & Brother agreed to buy, and did buy, this engine from the Marine and River Phosphate Company, the consideration being a preexisting debt, and the engine was thereafter left in the possession of the Marine and River Phosphate Company, the jury are instructed that such sale to plaintiffs is null and void, and fraudulent in law, against creditors and purchasers from the company, and the plaintiffs cannot recover.”</p> <p>5. His honor erred in charging that “if the jury find from the evidence that Pregnall & Brother agreed to buy, or did buy, this engine from the Marine and River Phosphate Company, the consideration being a preexisting debt due Pregnall & Brother, and the engine was thereafter left in the possession of the Marine and River Phosphate Company, from whom- thereafter Miller & Kelly bought such engine and took possession thereof without notice of plaintiffs’ claim, then the jury are instructed that such prior sale to plaintiffs is null and void, and the latter sale to Miller & Kelly is good and valid, and plaintiffs cannot recover.”</p> <p>6. His honor erred in not submitting it as a question of fact to the jury, whether, under all the circumstances of the case, the sale to Pregnall & Brother was “null and void and fraudulent,” and in “instructing” the jury that the “plaintiffs cannot recover,” if they find from the evidence that the consideration of the sale to plaintiffs was a preexisting debt, and the engine was thereafter left in the possession of the Marine and River Phosphate Company, and defendants afterwards bought without notice of the prior sale to plaintiffs — “that in such case such prior sale to plaintiffs was null and void and fraudulent, and the latter sale to Miller & Kelly was good and valid, and plaintiffs cannot recover.”</p> <p>7. His honor erred in holding the rule of law in this state to be: “That where the two concurrent precedent facts exist, to wit, the sale to pay a preexisting debt, and the debtor thereafter remaining in possession, the law presumes a corrupt agreement between the parties, not to be rebutted by evidence, and holds the transaction fraudulent per se.”</p> <p>8. His honor erred in holding that “the only exception” to what he holds, as above stated, to be the rule of law in this state, is “where there is a bona fide contract for hire between vendor and vendee and that it is “only evidence of hiring that is to be weighed by the jury upon the question of fraudulent sale between debtor and creditor.”</p> <p>9. His honor erred in holding that under the authorities in this state, the Circuit judge was not at liberty to disturb the verdict of the jury, and order a new trial, inasmuch as “there was no evidence as to a contract of hiring in the present case.”</p> <p>The sale to Pregnall & Brother was complete, and title to the engine passed to them from the company prior to the alleged sale to Miller & Kelly. 1 Benj. Sales, §§ 315, 318, 319; 2 Bill Oh., 632. The company did not have such possession as authorized the legal presumption of a corrupt agreement, and attached to the transaction a character and penalty of fraud. The question should have been submitted to the jury. 1 Bill, 16; 1 Bail., 568; 9 Rich., 407; 10 Rich. Eq., 253; 19 S. 0., 478 ; 2 Bill Oh., 636. In this case the proof showed that the possession after sale was not for the company’s benefit. Rice Oh., 300; McMuTl. Eq., 32; 10 Rich., 72. The result of above decisions is, that the legal conclusion of fraud applies only where the property remains in the possession of the debtor for his own use, profit, or pecuniary advantage. See, too, 2 T. R., 587; 1 Benj. Sales, §736; 20 Hoto., 460; 2 Strob. Eq., 120. The defendants wrere not purchasers for valuable consideration, an antecedent indebtedness being the consideration of the purchase. 6 S. O., 159; 10 Paige, 180; 20 Johns., 637; 83 Pa. St., 372; 5 S. O., 90. The judge having erred as to the evidence he was at liberty to consider, his refusal of a new trial was error of law. 14 S. O., 432; 19 Bl, 580.</p> <p>The judge correctly charged that in this case a sale is not compíete without delivery when it is for a preexisting debt and the vendor remained in possession. 2 Mill Con. R., 126; 4 McCord, 306; 1 Hill, 24; 2 Hill Ch., 637 ; Rice CL, 300; McMull. Hq., 30; 2 Rich. Hq., 96; 10 Rich., 73. In the case of a subsequent hiring, the vendor does not retain possession as vendor, but under the contract of hiring. 2 Kent., 520, 522; 1 Cranch, 309; 16 Am. Dec., 687. Defendants are not only creditors, but also bona fide purchasers for value. -Benj. Sales, 785; 9 Am. Bee., 119; 17 Mass., 110; 7 Am. Bee., 34; 1 BeSaus., 144; 3 Strob. Hq., 134; 13 Rich. Hq., 248; 10 Rich., 332. Any other rule than that charged by the Circuit judge would be a premium upon fraud, and a fraud which would be incapable of proof.</p>

Before Kershaw, J., Abbeville, October, 1883. This action was commenced January 6, 1882. The opinion fully states the case. The general denial of the answer put in issue every fact which went to make up the title claimed by plaintiff. 17 S. 0., 287; Hitf., 521; 12 Sow., 147; 11 Rich. Eq., 582. This issue being made, the court was bound to admit parol testimony as to the truth of the allegation.

<p>1. A finding of fact by the Circuit judge in an action for specific performance sustained, such finding not being shown to have been without evidence to support it, or manifestly against the weight of the evidence.</p> <p>2. After contract for the sale of a leasehold interest in land to commence in futuro, but before the purchaser had right of entry, or was entitled to the possession and use of the property, a considerable part of the land was washed away by an ocean storm. Held, that the loss must' fall on the vendor, who was still the owner, and that he was not entitled to a specific performance of the contract.</p> <p>3. Where one agreed in July to sell his leasehold interest in land at a stated price in cash “possession to be given November 1, provided I can obtain the consent of the present lessee," the agreement was not an absolute contract of sale, but an executory agreement to be completed on November 1.</p>

<p>Before Fraser, J., Williamsburg, March, 1880.</p> <p>This was an action by R. E. Duke as administrator of David M. Duke, deceased, against the county of Williamsburg, commenced in February, 1879. The opinion states the case.-</p>

Before Hudson, J., Edgefield, March, 1883. This was an action bj Stephen S. Tompkins and others, who were the residuary devisees under the will of James Tompkins, their father, and were also heirs at law of their intestate mother, Huldah Tompkins, against the Augusta & Knoxville Railroad Company, commenced December 9, 1882.

<p>Before Aldrich, J., Fairfield, February, 1884.</p> <p>The opinion states the case.</p>

<p>Before 'Witherspoon, J., Charleston, November, 1883.</p> <p>These appeals were brought to this Court under the titles of: “In the matter of notification by George D. Bryan, Esq., deputy escheator for the City Council of Charleston; ex parte G. L. Buist, administrator, v. G-. D. Bryan, deputy escheator, et al.; ex parte Lemuel Malone, et al., v. Gr. D. Bryan, deputy escheator, et al.; ex parte Gr. L. Buist, administrator, et al., v.Gr. D. Bryan, deputy escheator.” The opinion fully states the cases.</p> <p>Upon the motion of Buist, administrator, to set aside all of the proceedings as “unconstitutional, null, and void,” the Circuit judge, after making a statement of the facts, and citing and quoting Const., Art. X., § 11; act of 1799, § 15, 5 Stat., 366; Gren. Stat., § 2318, continued his decree as follows:</p> <p>It appears from the year book for 1881, issued by the city of Charleston, introduced on argument, without objection, that the full amount of the $50,000 limited by the grant under act of 1799, has never been realized from escheated property by the City Council of Charleston for the benefit of the Orphan House.It will be observed that under the act of 1799 the grant is made not to the City Council of Charleston for governmental purposes, but to said City Council for the express benefit of the Orphan House of Charleston, a charitable institution. In Cooley’s Const. Lim., 339, it is stated: “If a grant is made to a municipal corporation charged with a trust in favor of an individual private corporation or charity, the interest which the cestui que trust has' under the grant may sustain it against legislative revocation.” It will not be denied that the Orphan House, under the act of 1799, under grant from the state, was entitled to any interest or title of the state acquired at the death of Thomas W. Malone, in 1864, by escheat.</p> <p>It is equally clear that if any right vested in the City Council for the Orphan House upon the death of Thomas W. Malone in 1864, such right could not be divested by any subsequent provision of the constitution of 1868. In Sarlock v. Jackson, 1 Tr. Con. H., 135, it was held : “In cases of escheats for want of heirs the freehold is vested in the state from the time of the death.” In this case the land had been granted to one Allison, who died without heirs. The court says: “It seems clear that the land in question is to be regarded as an escheat from the time of Allison’s death. * * * In order to authorize the use of it to public purposes or the disposal of it by public authority, there must be a.n office found, that is to say, there must be proceedings to establish the escheat pursuant to act of assembly-”</p> <p>Under this authority it seems that the title cannot remain in abeyance, but instantaneously vests in the public upon death without any one who can lawfully claim by descent or purchase. I must conclude and hold that upon the death of Thomas W. Malone, the City Council of Charleston acquired, under the act of 1799, vested rights for the benefit of the Orphan House, that could not be annulled or repealed by the constitution of 1868.</p> <p>Do the provisions of section 11 of article X. of the constitution of 1868 conflict with the provisions of the act of 1799 ? Whenever an act of the legislature can be construed and applied as to avoid conflict with the constitution, it should be done. The act of 1799 vests property now escheated, or which’ shall hereafter be escheated. Section 11 of article X. of the constitution directs the proceeds of estates of deceased persons who have died without leaving a will or heir, to be invested as a school fund. In this section of the constitution we find the limitation, “not otherwise appropriated by this state or the United States.”</p> <p>By reference to legislative acts, it appears to have been the policy of the legislature prior to the adoption of the constitution of 1868 to grant escheated property to a certain amount in value to trustees of schools and charitable associations in certain localities. It was decided in Nettles v. Cummings, 9 Rich Nq., 440, that the legislature had the right to grant future escheats, and conferring power to hold and possess escheated property to a certain amount was not void for uncertainty. It occurs to me that the expression, “not otherwise appropriated by the state or the United States,” in section 11 of article X. of the constitution, was intended as a recognition of the validity of former grants by the state of escheated property, and was only intended to apply the proceeds of escheated property in excess of the limits of such grants. Section 2,818 of the general statutes seems to me to sustain this view.</p> <p>In this view, I do not think the constitution of 1868 conflicts with the act of 1799, but even if it did, it could not repeal said act, if, as I conclude, rights vested under said act at the death of Thomas W. Malone in 1864. The act of December 23, 1878, must be held to be in conflict with article X., § 11, of the constitution of 1868, but this does not affect the conclusions reached already that this motion cannot be granted.</p> <p>It is therefore ordered and adjudged, that the motion of George Lamb Buist, administrator of Thomos W. Malone, be refused.</p> <p>The Circuit decree on the motion to dismiss the proceedings as “unauthorized under the laws of the state in such cases made and provided,” (omitting its statement of facts), was as follows:</p> <p>It was conceded in argument that George D. Bryan, deputy escheator, had not procured the inquest and verdict of a jury with the certificate thereof by a judge, as provided in section 2301 of the general statutes. At this stage of the proceedings to escheat' the lands of. Thomas W. Malone, this motion is made. The authority for the institution of this proceeding by George D.' Bryan is not questioned. The motion only seeks to set aside all of the proceedings subsequent to the notification of escheat as null and void, under the law regulating the escheat of property.</p> <p>Chapter XCII. of the general statutes is substantially the same as the act of 1787 (5 Stat., 47), entitled “an act to appoint escheators and to regulate escheats.” In McQaw v. Gcalbraith,. 7 Rich., 86, the court, referring to the act of 1787, say: “This act and the amendments of it contain the only provision which we have of machinery for executing such law concerning escheats and forfeitures as now prevails in this State. * * * In providing in reference to such cases for inquest of office, public notice, order of sale, if there should be no claimant, traverse by a claimant and trial * *</p> <p>In Karloch v. Jackson, 1 Tr. Oon. R., 142, it is held that in order to authorize the use of property to public purposes or the disposal of it by the public authority there must be an office found, that is, proceedings to establish the escheat, pursuant to act of assembly. I therefore conclude and hold that a compliance with the provisions of section 2301 of the general statutes is necessary in proceedings for escheat of land.</p> <p>Does the omission to comply with the provisions of the said section render all of the proceedings had in this cause null and void ? What proceedings have been had in this cause ? The deputy escheator (whose authority to institute this proceeding is not questioned) is before the court with notice that certain lands have escheated. Upon the deputy esckeator’s notice, but before inquest of office, a claimant is permitted by the court upon petition in this proceeding to traverse the escheat and take testimony to be used at the trial of the cause. The court has therefore undertaken to determine the issue between the escheator and traverser. Pending this issue, other claimaints, who have not as yet traversed the escheat, upon petition and notice move the court to set aside proceedings already had as null and void, because such proceedings have not been according to law.</p> <p>It there had been a final determination between the escheator and traverser in this proceeding, as already indicated, I would hold that the escheat could not be established without the inquest and verdict of a jury under section 2301, as well as a compliance with the other provisions of law. In this proceeding the initiatory notice of escheat to the judge has been given as provided in section 2300 of the genera] statutes. There has been no inquest of office or public notice to claimants as required by sections 2301 and 2302. Whilst the law may contemplate the inquest of office and notice to claimants as therein provided at an earlier stage of the proceedings, for the escheat of Malone’s lands, yet I can discover nothing in the law to prevent these steps still being taken.</p> <p>I conclude and hold, that it would be competent for the court in which an issue is pending betAA'een an escheator and a traverser to allow any defect in the pi’oceedings for escheat to be remedied at any time before a final determination of the issue. As the traverser is in no default, he should not be subjected to the delay or prejudiced in what might result from the granting of the motion at the instance of parties who have not as yet traversed the escheat.</p> <p>Even if it were not competent for the court yet to alloAv the deputy escheator to proceed under his notice, I hold it Avould not be competent for this court to reverse and set aside orders passed in a cause before the court. The effect of the orders in the cause as well as all other matters involving the regularity of the proceeding will be determined' by the court upon the trial upon its merits of the issue between the escheator and the traverser.</p> <p>It is ordered and adjudged that the motion of Samuel Malone, Henry Malone, Bates Malone, and others, upon petition filed to set aside the proceedings in the above entitled cause, be refused. It is further ordered, that George D. Bryan, deputy escheator, do serve a copy of the notice of escheat of the lands of Thomas W. Malone upon Samuel Malone, Bates Malone, and others, named in the petition accompanying the notice of the motion herein refused, and that each of said parties have leave to traverse said escheat.</p> <p>The exceptions to these decrees, taken by the several appellants, raise the points stated in the opinion.</p>

Before Wallace, J., Charleston, June, 1888. These were two actions heard together: 1. Action by Susan Y. Roberts against T. IT. Smith, administrator of M. E. J. Boyle, Susan Smith, Sarah C. Miles, and L. O. Boyle, commenced April 4, 1882, to foreclose a mortgage given by M. E. J. Boyle. 2.

<p>Before Fraser, J., Richland, July, 1888.</p> <p>The opinion fully states the case.</p>

<p>Before Cothran, J., Hampton, September, 1883.'</p> <p>This was an action by James M. Lumb and others against Adele B. Pinckney and others, commenced in February, 1883. The opinion sufficiently states the case.</p> <p>The rule of the civil law touching betterments has never been recognized in this state. 4 DeSaus., 465; Chev. Eq., 213. The complaint discloses no facts that give a cause of action. Pom. Bern., § 519; 18 S. 0., 530; 10 Id., 451; 31 Vt., 306. This law gives a right of action against one charged with no wrong, and makes the lien of the trespasser sufficient to divest the true owner’s title; and the judgment for the improvements carries costs. The betterment act of this state is taken from the Vermont statute, but in Vermont there is an elective feature, which may preserve to the owner his property; and upon this ground the statute has been sustained. 4 Vt, 37. In most of the states this elective feature exists. 12 Mass., 314; 14 III., 174; 50 Me., 322; 18 Blatch., 202; 18 Iowa, 267; 3 Ohio St., 467; and so in other states. Oool. Con. Lim., 386, 389. See, too, this elective feature in other parts of our statute law. Q-en. Stat., §§1840, 2289, and the homestead laws; 19 S. C., 243. This law violates Const., art. I., §1; 7 Cal., 6; 11$. C., 315; 8 Wheat., 17, 24, 101; 18 Tex., 546. It also violates art. I., § 14. Cool. Cons, him,., 353, 357 ; 18 loiva, 268 ; 24 Minn., 372; also, art. I., § 21; 1 Yerg., 384; Coolee, 293. And it also violates section 28 of the same article. 14 S. C., 423. This statute is not a mere regulation of the remedy. Cool. Con. Lim., 289, 362 ; 35 N. Y, 302; 13 Rich., 498.</p> <p>The complaint states a cause of action. Code, § 163; 28 Barb., 231; 8 S. C., 104; 12 Id., 1; 16 Id., 392. Compensation for improvements is founded in equity. Blade. Tax Titles, 17; 3 Kent, 334; 2 Id., 336; 5 Rep., 30; 4 T. R., 168; 1 Story, 38; 2 Id., 605; Code Civ. of France, art. 552-3; Bell Com., § 538;. Chev. Fq., 231; 2 McCord Ch., 455; 4 Rich. Fq., 476. Our betterment act is a copy of the Vermont statute, which was sustained in 31 Vt, 300. Like statutes in other .states have been sustained. 12 Mass., 314; 18 Blatchf, 202; 10 Yerg., 477; 13 Ala., 31; 4 Hans., 358; 18 Iowa, 261; 5 Ohio, 133; 13 Id., 74, 308; 2 Peters, 492; 8 Wheat, 1; 1 Blade., 374; 14 III, 171; 19 Wis., 235. See, too, 12 S. C., 488; 15 Id., 368; 17 Id., 594. This act violates none of the sections of the constitution referred to by appellants. 4 Wheat, 122; 12 Id., 213 ; 14 Rich., 135; Cool. Con. Lim., 348, 437, 439; 6 Cranch., 87; Bald., 74.</p>

Before Aldrich, J., Sumter, March., 1883. This was an action by Timothy Mims against Daniel Wesley Chandler and T. Duncan Chandler. The case is fully stated in the Circuit decree, ivhich was as follows: This is an action for the specific performance of a contract for the sale of land. Although much time was consumed in the development and argument of the case, the facts are in a narrow compass. Mr. Frierson was the owner of a tract of land containing 212 acres, more or less.

<p>Before Witherspoon, J., Charleston, November, 1883.</p> <p>Action by H. W. Crouch and others against the Charleston and Savannah Railway Company. The opinion states the case.</p> <p>cited 11 Bast, 60; 88 Mass., 39; 1 Abb. Forms, 444, 446; Wood Buis., §703; Ang. Water Qour., §567; 2 Bland,, 2; 2 Cart., 586; 66 Mass., 488; 36 Vt., 580; Thorny. Beg., 1203-7; 119 Mass'., 564; Wood Buis., §§73, 846, 864; 71 B. 0., 311; 9 B. Y., 456; Gen. Stat., §1115.</p>

<p>Before Hudson, J"., Richland, April, 1883.</p> <p>The opinion fully states the case.</p>

<p>Before Hudson, J., Kershaw, February, 1883.</p> <p>This was an action by Sallie W. Boykin against Thomas L. Boykin, as executor of the will of Burwell Boykin, deceased, and against all the devisees and legatees under said will, and against certain creditors of the 'said Thomas L. Boykin. The opinion states the case.</p> <p>The Circuit decree, omitting its statement, was as follows:</p> <p>I will here observe that there has been no accounting taken of the actings and doings of the executor, T. L. Boykin, so that we are not informed of the condition of the estate in his hands, except that it is stated in argument of counsel that he is totally insolvent; and we may presume that whatever of the personal estate was not destroyed by the results of the war, and has not been paid to legatees, is not available. But that is yet to be judicially ascertained upon an accounting.</p> <p>All litigants have expressed a desire to obtain a construction of the will, and an adjudication of the main legal questions preparatory to an accounting and settlement. This we think proper, and to this duty we will at once address ourselves, and in doing so will take the sections of the will in dispute in their regular order.</p> <p>The first and second clauses of the will present no question difficult of interpretation, as the language is plain and unambiguous in regard to the rights and privileges of the wife and daughters of the testator. It is in evidence that the two hundred acres of land were marked off and admeasured, and that the widow and daughters continued to dwell in the family homestead, being provided for by the executor as the will directs, though not fully, and the repairs and renewals were not well kept up. So matters continued without any effort on their part by legal steps to enforce a better performance of duty on the part of the executor until a few years ago, when the widow sold to Thomas L. Boykin her life estate in the premises, in exchange for an estate in fee in a residence in Kirkwood, in the suburbs of Camden.</p> <p>We do not think that under the circumstances, after so long a delay, she is entitled to have an estimate made of the arrearages of the annual cost of what should have been expended by the executor in keeping up the establishment on the plantation, and now recover that as a gross sum from the executor; but we do think that she has a right to demand of him a suitable carriage and pair of horses, and a proper repairing and renewal of her present household furniture. Of course, the altered condition of things, and the present age and circumstances of his mother, should be taken into consideration in deciding upon a proper outlay in this respect at this juncture. The estate has been greatly reduced by the casualties of war. Perhaps the executor has been also guilty of devastmñt, but how far is yet to be detennined, and much depends upon the evidence on this point. We cannot prejudge him.</p> <p>Nor do we experience much difficulty and hesitation in construing the third clause of the will, and feel free to say that each of the three sons surviving the testator took under that clause a fee in the one-third of the body of land devised. The testator directs this fee to go absolutely to the issue of such of the sons as should die before the mother, leaving issue surviving, but does not provide how the share of a son should go in the event he should die before the mother and leave no issue to- take. It is argued that his purpose and intention were that in such event the son’s share should vest in the surviving sons, and that Eugene and John having successively died unmarried, and without issue, by right of survivorship Thomas L. Boykin has become vested Avith the entire devise. If such had been the testator’s intention, it would have been very easy for him to have so declared. In this clause cross-remainders are not created by express Avords, nor are they raised by necessary implication. I have carefully examined the authorities relied upon in support of this doctrine of cross-remainders, but in my judgment they do not sustain the construction contended for by the creditors of T. L. Boykin. I hold that as Eugene and John died leaving no issue to take, their respective shares in fee vested in those Avho filled the description of their heirs at lavy at the dates of their deaths respectively. But, of course, the period of partition and enjoyment in severalty remains as the testator has fixed it, to wit, the death of the Avidow. Until then the land is to be kept together for the use of the estate, as prescribed by the will. In refutation of the cross-remainder theory, see Smither v. Willeox, 9 Ves-, 238, referred to in 2 Jarm. Wills, 493, and note.</p> <p>We agree entirely Avith the master in his construction of section fourth of the avíII. The six hundred dollars to be paid annually to the widow Avas the testator’s estimate of the compensation Avhich should be paid her for the annual labor and services of her eight negro slaves on the plantation, Avhich ayus to be worked for the benefit of the estate. The widoAY having accepted the slaves, as well as her entire legacy, in lieu of dower, and the slaves having been emancipated, this source of income was dried up. The corpus and income became a loss to her.</p> <p>The legacy of $2,000 in state stocks I do not regard as specific, but merely pecuniary and general. The remarks of the learned author of Williams on Executors, Yol. 2, *pages 999 and 1000,-are in accord with Jarman on Wills, and are adopted by Red-field, and sufficiently support me in holding that this legacy is not specific, and must therefore be paid, but I think with only six per cent, interest from July 27, 1862. But how it is to be paid is a question made interesting by the earnestness and zeal displayed in the argument of counsel. Clearly, the executor is responsible under the testimony as it comes to me, although, as I have before remarked, the extent of his devastavit has not been fully enquired into. He has assented to the legacy, has paid less favored legacies, and has disposed of the rents, issues, and profits of the land, and, to some extent, the land itself. He does not interpose the plea of the statute of limitations, nor could he do so whilst he maintains to this legatee the relation of trustee.</p> <p>The provision for the widow stands upon high grounds — higher in law and in equity than that of ordinary legatees, mere volunteers. She is a purchaser, or rather the testator became, by her acceptance of his offers, a purchaser of her interest in his real estate, and she a vendor for valuable consideration. So highly is her legacy esteemed, that in case of a deficiency of assets personal, her claim does not ratably abate with other legacies, but must be paid, even if thereby the legacies of the children should be defeated in whole or in part. 2 Wms. Lx'rs, *1169, 1170 ; 1 Roper Leg.. *432. Such a claim of a widow is so greatly favored, that before she will be driven to her election she will be allowed time in which to be fully informed of the real condition of the estate, so as to enable her knowingly and understandingly to make her choice. Should she elect hastily and unadvisedly, she will be allowed to recall her imprudent election. Here, however, she has elected, and too long a time has elapsed to think of asking to recall, nor does she do so. She sues now to recover the provision made for her in lieu of dower, declaring very truthfully and properly that she has made her election.</p> <p>Her counsel insists, however, that her legacy is not only favored in law, and preferred to one that is a mere bounty, but that it is a charge upon the specific devises of land — not that the testator has so declared it to be, but that the law so declares it. In this they err. The law does not only not so declare, but the very nature of the acceptance of such a legacy implies a renunciation of all interest in the land, saving what may be expressly, or by necessary implication, contained in the legacy itself, as whei'e it is made a charge on land, or payable out of the usufruct, &c. There is nothing of the kind in the legacies given to this widow, except the current expenses of the household, repairs, and renewals of furniture, &c., whilst the wife and daughters live in the family residence, and even those outlays are to be supplied from the proceeds and income of the general estate, and not from the sale of any part of the land.</p> <p>In the absence of any specific directions to that effect in this will, these legacies to the wife in lieu of dower are not charges on the land specifically devised. Therefore, should there be a defici ency of personal assets, so that there must be a marshalling of assets as between legatees, we know no rule of law nor of equity that will enable the widow to subject the land specially devised to the payment of her claim. 3 Larin. Wills, 530, 531; 3 Red. Wills, 369, citing Forrester v. Lord Leigh, Amb., 171; Scott v. Scott, Amb., 383; Herne v. Meyrich, 1 P. Wins., 201; Clifton v. Burt, Ibid, 678. As, however, all the debts have been paid, and all other legatees settled with, and as the landed estate is still undivided, and required to be kept together and managed for the use of the family until her death, and since hers is a favored legacy, every advantage and preference must be granted her henceforth in getting what justly belongs to her.</p> <p>It is, however, contended, that as the state stock was taken by the executor to satisfy in part the legacies to the girls given in the 9th clause of the will, which legacies are made a charge on the land, the ividow now has the right to be subrogated to their rights in the premises, and thus to resort to the land for payment. But only one thousand dollars of the state stocks was so applied (the balance being paid in other funds and stocks), and this was done many, many years ago, and with her full knowledge and consent. And we do not perceive how, at this late day, having so long acquiesced in this act of the executor, she has any equity, by subrogation or otherwise, to demand payment of her legacy out of a specific devise. She has a preferred claim upon all the personal assets in the hands of the executor, and these, perhaps, will consist of the rents and profits of the undivided realty. If from this source she cannot be paid, she is entitled to a personal judgment against the executor, which, however, as a lien upon his individual property, including his devise in fee, will take rank only from its date, and must be junior to subsisting outstanding liens, such as mortgages and judgments.</p> <p>Now, it appears that Thomas L. Boykin has undertaken to mortgage portions of his land, by metes and bounds, and to convey by deed other parts; and that under decrees of foreclosure and sale, still other parts have gone into the hands of purchasers. Clearly, he had no right to do more than mortgage Or sell his undivided interest in fee in this land. In so far as any of these purchasers or lien creditors may have such a deed or mortgage, to wit, of the right, title, and interest of T. L. Boykin, he or she will have a lien superior to a personal judgment recovered by the plaintiff against the executor in this action; but, otherwise, it may turn out that her judgment will take priority. Much depends upon the nature of these liens and purchases, and the outcome of the partition which may be made after the death of the plaintiff. Until that time the possession of each and every of these purchasers must be at the will of the tenants in common, or rather the devisees of the land and their heirs, among whom T. L. Boykin is only one of a goodly number. These remarks do not apply to the 200 acres bought of his mother. That is his absolute property, with contingent limitations.</p> <p>The compromise agreement spoken of by the referee I have never seen, but learn that it is signed only by the counsel for the parties, whilst I believe there are minors in interest. I do not deem it necessary to go further in this decree than to adjudicate the widow’s rights and to interpret the will, and the parties and these purchasers may hereafter adjust their claims according to their desire and agreement, whatever that may be. I can only say that none of them have, against the consent of the devisees, a right to the possession of any of the land until after the death of the plaintiff, and not then, even, unless it be that they have purchased the interest of T. L. Boykin, and can stand in his stead in the partition.</p> <p>As the insolvency of T. L. Boykin is conceded, and as the rents and profits are likely to constitute the only fund out of which the plaintiff can realize anything, which rents and profits have been for a short time collected and disbursed by the master of this court, who is dead, a receiver must be appointed to take charge of the estate with all convenient speed. •</p> <p>It is therefore ordered, adjudged, and decreed: First. That the sons, as devisees under the third clause of the will of Bur-well Boykin, deceased, took each for himself a vested interest in fee, transmissible to the issue of such as should predecease their mother leaving issue surviving, and to the heirs at law of such as predeceased their mother, leaving no issue surviving, but that the period of partition and enjoyment in severalty of all shares is postponed to the death of the plaintiff.</p> <p>Second. That the plaintiff do recover of the said executor the sum of $2,000 with interest thereon at six per centum per annum from July 27, 1862, with leave to issue execution thereon against said executor, to be levied de bonis testatoris, if any there be unadministered in his hands, and if not, then de bonis propriis, but not to be levied of any of the real estate devised under the said third clause of said will.</p> <p>Third. That the plaintiff do likewise recover of said executor a sufficient sum of money to buy for her and daughters a carriage and horses, and to repair and renew the furniture in her present dwelling, with leave to issue execution to enforce payment upon the same terms as that above provided. And in order to ascertain said sum, it is hereby referred to the clerk of this court as special master to take testimony and report a suitable sum of money for these purposes, the master being disqualified.</p> <p>Fourth. Leave is hereby given to any of the parties to this action to apply at the foot of this decree for the appointment of a receiver, with information as to the amount of the bond necessary to be given, and to the said special master it is referred to ascertain and report a suitable person to act as receiver of the said rents and profits and estate generally, and the proper amount of said bond.</p> <p>Fifth. That the said rents, issues, and profits be applied to the payment of the amounts decreed herein to the plaintiff, in preference to any other claim, and to the costs of this action, in case the said executor be not able to pay the same, which he is hereby directed to do.</p> <p>Sixth. That the parties interested have likewise leave to apply at the foot of this decree for further orders touching the lands in possession of those who hold under pretended titles from Thomas L. Boykin.</p> <p>Seventh. That it be referred to the said special master to audit and report upon the accounts of the said Thomas L. Boykin, as executor as aforesaid, with leave to report upon any special matter in regard thereto, as well as in regard to any other matters arising under the pleadings in this action, and not herein finally and fully adjudicated.</p> <p>From this decree the several parties appealed upon the grounds stated in the opinion of this court.</p>

Before Hudson, J., Kershaw, February, 1883. Held: under the authority of Hughey v. Hiehelberger, that the slaves could not be charged for as advancements, but that the use of such slaves were advancements, and the master wras directed to take an account of the value of such use. The master subsequently made a report of the value of such use to the children respectively.

<p>Before Kersiiaw, J., Oconee, November, 1883.</p> <p>The opinion gives a full statement of the case.</p>

Before Aldrich, J., Richland, November, 1883. This was an action by Oscar E. Altee against the South Carolina Railway Company, commenced in February, 1883, to recover $25,000 for the loss of an arm and other injuries sustained by him in being knocked from the top of a freight train, in the early morning of November 7, 1882, by the roof of a bridge, through which the train was passing, he being at the time an employé of the company and in his proper position as brakeman.

<p>Before Kershaw, J., Charleston, February, 1883.</p> <p>These were two actions, under the act of December 24, 1878 (16 Stat., 785), to recover money paid for taxes, one being by B. J. Whaley against P. C. Gaillard, treasurer of Charleston county, and the other by L. D. DeSaussure against the same defendant. They were tried together.</p> <p>The plaintiffs requested the presiding judge to charge as follows:</p> <p>1. That the provisions of the act of December 22, 1873, were in the nature of proposals to the creditors of the state, and when the consolidation bonds were issued under said act and taken by the creditors, a contract was consummated between them and the state as fully as if all the provisions of the act had been embodied as express stipulations in the most formal instrument signed by the parties.</p> <p>2. That the pledge that the coupons of the bonds so is u d should be received in payment of all taxes due the state during the year in which they matured, except for the taxes levied for the public schools, formed a part of the contract, and was the security offered to the creditors. That the act of the legislature of South Carolina, entitled “an act to raise supplies and make appropriations for the fiscal year commencing November 1, 1881,” in so far as it prohibited the county treasurer from receiving the coupons of the consolidated bonds referred to in the complaint in payment of the taxes levied by said act, is null and void, as repugnant to article I., section 10, of the constitution of the United States.'</p> <p>3. That the validity of the bonds for the relief of the fa-easury, issued under the act of 1869, which were surrendered to the state by the Yonkers Savings Bank in May, 1875, must be determined according to the law as it was judicially construed to be in the case of Morton, Bliss <f Oo. v. The Comptroller General, and were valid obligations of the state. That the decision subsequently made by the Supreme Court of the state in the State Bond Cases cannot receive a retroactive effect without impairing the obligation of contracts long before entered into.</p> <p>4. That by the act of August 26, 1868, the governor of the state was authorized to borrow on the credit of the state, on coupon bonds, within twelve months from the passage of the act, a sum not exceeding $1,000,000, or as much thereof as he might deem necessary to pay interest on the public debt. That the governor was invested with full discretion, and was clothed with full authority, in determining the necessity for the issue of the bonds, the mode of their issue, and the amount of bonds to be issued in order to raise the sum of money required; and bona fide holders for value of the bonds issued by him, or of the coupons of such bonds, had no means of knowing in what manner the governor exercised this discretion, and they cannot be affected by any abuse of authority by him. That by the recital on the face of the bonds that they were issued under the act approved August 26,1868, the state, as against a bona fide holder for value, was estopped from disputing the truth of such representation.</p> <p>5. That the legislature having, with a full knowledge of all the facts connected with the alleged over-issue of the bonds for the payment of interest on the public debt, authorized the funding of the said bonds, has waived said objections and validated the bonds.</p> <p>6. That the settlements made between the state and the Yonkers Savings Bank of New York, in May, 1875, and between the state and Levy & Borg, on October 13, 1875, were such compromises of doubtful rights as are sufficient foundation for an agreement and consideration for a contract; and the validity of the new bonds issued to the Yonkers Savings Bank and to Levy & Borg rests upon these contracts and compromises, and not upon the validity of the surrendered and cancelled securities.</p> <p>7. That the settlement made in May, 1875, between the State of South Carolina and the Yonkers Savings Bank Avas a unity; and the state cannot set it aside in part while it retains the Land Commission bonds surrendered by the Yonkers Savings Bank at the time said settlement was made, and the same rule applies to the settlement betAveen the state and Levy & Borg, of October, 1875.</p> <p>These requests were all refused, and the judge then charged the jury as MIoavs:</p> <p>“Gentlemen oe the Jury : Under the present condition of the laAV affecting this case, as determined by the Supreme Court/ and the legislation connected thereAvith, you are directed, on the pleadings and the evidence submitted, to find a verdict for the defendant.”</p> <p>Verdict for defendant and judgment entered accordingly.</p> <p>The plaintiffs .appealed upon exceptions alleging error in the judge’s charge and in his refusal to charge as requested.</p> <p>As an appeal lies in these cases to the Supreme Court of the United States, it is important to examine the questions presented in the light of the decisions of that court — 12 8. 0., 271. The coupons tendered are void under the decision in the Bond Debt Oases, but Ave ask a reconsideration of that decision. As to the bonds for the relief of the treasury, Ave contend that the decision in 4 S. C., 430, applied to all bonds of the class there considered ; and at the session of the legislature next succeeding, the act was passed under which these consols Avere issued; the bonds Avere thus acquired under the laAV as then declared, and cannot be affected by subsequent statutes or decisions. 12 S. O., 282, The objections now urged are different from those then urged, but Avere as apparent then as noAV. 101 U. 8., 677. As to the second issue of bonds to pay interest, we submit that the act did not limit the governor to a single issue, but that he had authority to borrow $1,000,000 within twelve months. Pie had full discretion and authority to determine.the necessity, the mode, and. the amount of issue. 12 8. 0., 275; 103 TT. 8., 696. If he has been guilty of irregularity, or even of fraud, the state must be the loser, and not an innocent holder. Dixon County v. Meld, 111 IT. 8., 83. With full knowledge of all the facts, the legislature has waived all objections and validated the bonds by directing them to be funded. 4 8. C., 430. The consolidation act was a compromise and composition made by the state with her creditors. 105 IT. 8., 278; Story Cont., § 449; Story Fq. Jur., 129-131; 6 Cl. $ Fin., 911; 4 Ves., 840 ; 5 Peters, 99; 4 Mete., 270 ; 2 Strob. Fq., 258; 15 S. C., 232. The consolidation act did not require a two-thirds vote, to be recorded by yeas and nays, because it did not create a further debt, nor was it for an extraordinary expenditure, nor the appropriation of money needing a new tax levy. It provided for a reduction of the ascertained debt of the state, and for its reduction, liquidation, and redemption. It reduced the public debt by several millions of dollars.</p> <p>The Attorney G-eneral, contra, argued that the decision in the Bond Debt Cases was correct. He further contended that the contract of the state was only to receive coupons of valid consolidation bonds in payment of taxes. There are coupons outstanding of invalid bonds having the similitude of valid bonds. Whether valid or invalid, the county treasurer cannot determine, and therefore he is required to receive coupons of the recognized valid or brown bonds. The state can protect herself, by reasonable requirements, from receiving invalid coupons; and she does not thereby impair the obligation of her contract. These requirements constitute a part of the remedy provided by the state, and the only limitation upon the state is that there must be an adequate and efficacious remedy. The remedy provided is analogous to that given by the act of 1877 (16 Stat., 302), approved in 101 U. S., 437. See too 107 IT. S., 769. In those cases, the proceedings to determine the validity of the bills or coupons tendered were to be taken after tender, while here they are to be' taken before tender; but the principle is the same. The validity of the seventh section of act of 1882 must be determined by the law as declared when these coupons were tendered. Under the act to facilitate the collection of taxes, only such amount can be recovered as was wrongfully and illegally collected. The county treasurer is bound to obey the law as declared by the courts; the law forbade him to receive these coupons. 107 U. 8., 712. The plaintiffs here have another and full remedy — they can demand brown consols from the state treasurer in exchange for their green bonds; and if that officer refuses, they can apply for a writ of mandamus, and thus have the question of their validity determined. 107 U. S., 781.</p>

<p>Before Fraser, J., York, November, 1883.</p> <p>These were motions to dissolve attachments issued, the one by the order of Judge Witherspoon, of the sixth Circuit, in the case of William Devries & Co. against J. P. Caston; and the other by the clerk of court in the case of J. M. Ivy against the same defendant. Both were levied in September, 1883.</p> <p>The affidavit in the Ivy ease upon which the attachment issued was made by J. J. Waters, Esq., and was as follows:</p> <p>I. That a cause of action exists against the defendant and in favor of the plaintiff, to wit (the action being now pending and deponent being one of plaintiff’s attorneys): (1.) Plaintiff is the holder of a note of which the following is a copy, the original signature being in the handwriting of the defendant:</p> <p>$l,377TVo- Rock Hill, S. 0., Sept. 8, 1883.</p> <p>One day after date I promise to pay to the order of J. M. Ivy & Co. thirteen hundred and seventy-seven 61-100 dollars, with interest from date until paid, at ten per cent, per annum, for value received. (Signed) J. P. CASTON.</p> <p>(2.) W. G. Reid & Co., at defendant’s request, sold merchandise to him amounting to one hundred and sixty-three 60-100 dollars, which account is now due, and the same has been duly assigned to the plaintiff, everything stated with reference to this account being based upon information and belief growing out of communications had with W„ G. Reid and the plaintiff.</p> <p>II. That the defendant has recently executed a mortgage upon his stock of goods at Rock Hill to one S. K. Marks, of' Chester, S. C., in the sum of ten thousand dollars, to wit, on April 30, 1883, which mortgage this deponent believes to be fraudulent and made to dispose of his said stock of goods with intent to defeat, hinder, delay, and defraud his creditors, and among them the plaintiff. Deponent states his grounds of belief as follows: 1. The said S. K. Marks is the keeper of a small furniture store in the town of Chester, and cannot now be worth, and could not on April 30, 1883, judging from his surroundings, have been worth near the sum of ten thousand dollars. 2. That S. K. Marks is a relative of the said defendant, and during the past year there has been no apparent change in the extent of his business. 3. After allowing for the defendant’s indebtedness outside and known to the deponent and heard of, including the claims of the plaintiff, deponent does not believe that the said defendant, judging from the character and extent of his business at Rock Hill, where deponent resides, can be indebted to the said S. K. Marks, or any other person or persons, in any such sum as ten thousand dollars, or even the half of said sum; and that during the past year there has been no apparent change in the extent of his business.</p> <p>Wherefore deponent prays for a warrant of attachment against the property of defendant in behalf of the plaintiff.</p> <p>The affidavit in the case of Devries & Co. against Caston, upon which the attachment was issued, was made by Gr. W. S. Hart, Esq., and was as follows :</p> <p>1. That he is one of the attorneys (Hart & Hart) for plaintiffs in above entitled action, and that plaintiffs are not residents of the state of South Carolina, but do business in the city of Baltimore, state of Maryland.</p> <p>2. That plaintiffs have two causes of action against the defendant, -which, defendant has admitted to deponent, and which plaintiffs have set forth in their sworn complaint, hereto annexed.</p> <p>3. That deponent, on the 31st day of August last past, went over from Yorkville to Rock Hill, S. 0., where defendant does business, for the purpose of requesting defendant to pay, or to secure the payment of, the ttvo notes described in the said complaint. That deponent did so request defendant, and defendant averred his inability to pay at said time, and stated that bis stock of merchandise, etc., was already under mortgage for over ten thousand dollars. That deponent, on his return to Yorkville, proceeded to examine the public records of York county, and there found recorded in book “AAA,” pp. 272, 273, a mortgage to S. K. Marks, of Chester county, S. C. That the copy mortgage hereto annexed is a time copy of said mortgage as recorded. That since his said return from Rock Hill, deponent has made inquiry as to the reputed worth of said S. K. Marks, whom deponent knows to be the keeper of a small furniture store in Chester, S. C.; and from said inquiries, and such personal knowledge as deponent had and has, deponent was strengthened in his belief, and does now verily believe, that said S. K. Marks is not, and was not at the time of the execution of said mortgage, worth so much as five thousand dollars, estimating therein any and every species of property of which the said S. K. Marks is now or was then possessed; and, therefore, that James P. Caston could not have been indebted to said S. K. Marks in any such sum as ten thousand dollars.</p> <p>4. That from the terms of said mortgage, and the matters and things hereinbefore recited, deponent was led to believe, and does verily believe, that said mortgage was executed by the said James P. Caston to the said S. K. Marks (a relative, as deponent is informed and believes) with the intent so to dispose of the property so mortgaged as to defeat, hinder, delay, and defraud the creditors, and among them the plaintiffs above named, of him, the said James P. Caston.</p> <p>5. That the books of the county auditor for York county show that James P. Caston has returned for taxation real estate valued at twelve hundred and fifty dollars, and personal estate valued at fourteen hundred and seventy-five dollars. That the public records show that his real estate is under mortgage to secure the payment of ten hundred and eighteen dollars.</p> <p>Motions were made by defendant to set these attachments aside because both irregularly and improvidently issued. The affidavits relating to the second ground of the motions need not be stated. The Circuit judge overruled both grounds of the motion, saying as to the first: “If the matter were before me on an application for a warrant of attachment, I would have some doubt as to the sufficiency of the affidavits on which the warrant in the case of J. M. Ivy was issued; but I am not willing to disturb the conclusion of the clerk that the prima facie evidence of fraud is sufficient in the case of James M. Ivy. The additional facts stated in the affidavit on which the warrant was issued in the case of Wm. Devries & Co. are clearly sufficient for this purpose.”</p> <p>The defendant appealed in both cases upon the grounds following :</p> <p>1. For error in not holding that in each of the above cases the warrant of attachment should be vacated upon the ground that the affidavits upon which they were based did not set forth a cause of action in favor of the plaintiffs against the defendant, and did not specify the amount of the claim and the grounds thereof.</p> <p>2. Because the affidavit on which the warrant of attachment in the case of James M. Ivy was based should have been made by the said James M. Ivy instead of by his attorney.</p> <p>3. Because it does not appear from the facts stated in either of the affidavits in above cases that the defendant assigned, or disposed of, or removed, or was about to remove, the property mentioned in the mortgage to S. K. Marks, or with intent to defraud his creditors.</p> <p>4. Because said attachments were not issued in conformity with the provisions and requirements of section 250 of the code of procedure in this state.</p> <p>. 5. Because his honor, it is respectfully submitted, erred in holding that the mortgage executed to S. K. Marks by the defendant was such an assignment or disposal of the property as is meant by the said attachment law.</p> <p>6. Because said mortgage was satisfied and so marked several months before said attachments were issued, and was not in exist-, ence at the date of said issuing.</p> <p>.7. For error in not holding that said attachments were void.</p> <p>8. Because the affidavits herein referred to were not in compliance with the provisions and requirements of the said attach-ment act, and his honor erred in holding that said defects could, be cured by subsequent affidavits, and in not holding that said affidavits were fatally irregular and defective.</p> <p>9. That his honor erred in holding that the facts of the case justified the issuing the warrants of attachment in above eases.</p>

<p>Before Hudson, J., Abbeville, February, 1884.</p> <p>The opinion fully states the case.</p>