Volume 22 — South Carolina Reports

Before Wallace, J., Colleton, October, 1883. This was an action by Thomas IT. Caldwell against Abraham Bennett, for malicious prosecution, commenced in November, 1881. The opinion fully states the case.

Before Kershaw, J., Chester, March, 1883. The opinion fully states the case. The Circuit decree was as follows: This action was tried before a referee, and was heard by me upon exceptions to his report, taken by the defendants, Julia L. Hardin and the clerk.

Before Fraser, J., Kershaw, May, 188b. To the statement of the case as made by the Circuit decree, it will be proper to add the following facts, which appear in the brief: In compliance with defendant’s notice, plaintiff produced the following deeds, which defendants offered in evidence, to wit: I. Deed of J. D. Dunlap, receiver of John Chesnut, to Thos.

Before Fraser, J., Richland, July, 1883. For a full understanding of the points decided on this appeal, the case is sufficiently stated in the opinion of this court.

Before Fraser, J¡, York, November, 1383. The case is sufficiently stated in the opinion of this court for a proper understanding of the ruling made.

Before Wallace, J., Beaufort, November, 1883. The opinion fully states the case.

<p>This was an appeal by the state direct to this court from an order made by two trial justices of Spartanburg County, discharging the defendant, Worth J. Duncan, who had been brought before them under a writ of habeas corpus, he being in the custody of the sheriff, charged with breach of trust with fraudulent intent. The order of discharge bears date February 2, 1884. The only question considered by the court not having been raised by exception or in argument, a fuller statement of the case is unnecessary.</p>

Before Hudson, J., York, July, 1883. The opinion fully states the case, but see also Davidson v. Moore, 14 S. 0., 251.

Before Fraser, J., Chester, October, 1883. The opinion sufficiently states the easel The appeal was taken upon the following exceptions: 1. Because his honor ruled and decided that the following question propounded by the attorney for the defendants to Addison F. Kitchens, a witness for the plaintiff, on cross-examination, to wit: What property did you own on the 5th day of October, 1882? was incompetent and irrelevant. 2.

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

Before Aldrich, J., Richland, November, 1883. -This was an action by Calvin Davis against Margaret Schmidt. The Circuit judge rendered the following judgment: The plaintiff, a negro farmer, on March 6, 1883, entered into an agricultural lien with the defendant, who was to furnish him advances for agricultural purposes to the amount of $200. ITe complaims that the defendant did not keep her part of the contract, whereby he was damaged in the sum of $250.

Before Aldrich, J., Edgefield, October, 1883. This was an action by J. Ellison Smythe against John R. Tolbert. The case was brought to this' court upon the following exceptions: “1. Because his honor erred in admitting any testimony as to any claim of title by the defendant, John R. Tolbert, to the land in dispute; there being no such claim set up in the pleadings when they were submitted to the jury. 2.

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

Before Hudson, J., Laurens, September, 1883. This was an action by Patrick IT. Todd against Ludy P. Davenport, the former guardian of plaintiff, John Davenport, a surety on the guardianship bond, and the executors and devisees of Martin Shaw, the other surety. The action was instituted in May, 1882. The cause was referred to C. D. Barksdale, master for Laurens County, to take the testimony and to determine all the issues and report the same to the court.

Before Hudson, J., Richland, April, 188B. The opinion fully states the facts of these two cases.

Before Hudson, J., Kershaw, February, 1888. This was an action by Valentine S. Jordan against Thomas W. Lang, commenced in 1882. The facts of the case appear in the opinion of this court. At the trial the plaintiff submitted the following requests to charge: I. That a riparian proprietor has the right to have a stream which passes into and through his land, to flow in a volume not materially diminished in quantity. II.

Before Fraser, J., Chester, October, 1883. This was an action for the foreclosure of two mortgages given by the same defendant on the same land to secure the same indebtedness. Held: an investment of funds belonging to the estate of R. A. Springs, of whose will she was executrix; or, that having been originally an investment of her own funds, they were set apart by her as an investment for the estate. This exception is overruled. Exceptions 2 and 3.

Before Hudson, J., Newberry, November, 1883. This was a petition in the Probate Court for Newberry County, filed by John Bauskett and Elizabeth Beid, devisees and legatees under an alleged lost will of Thomas B. Wadlington, deceased, praying that said will might be established and admitted to proof in solemn form.

Before Kershaw, J., Newberry, July, 1883. Held: “That the administratrix, being herself a creditor, could, as creditor, object to the validity of a voluntary bond and mortgage given by her intestate when presented for proof.” I conclude, therefore, that plaintiff had the right to contest the deed of Graves Spearman.

Before Kershaaa'', J., Richland, May, 1884. The decision of the Circuit judge Avas as folloAvs: This is an appeal from the decision of the Railroad Commissioners under the recent amendments of the general railroad laiv, heard May 24,1884.

Before Wallace, J., Abbeville, February, 1883. In this case the Hon. I. D. Witherspoon, judge of the Sixth Circuit, sat in the place of Mr. Justice McGowan, disqualified. The opinion states the case. The master gave the following reasons for his findings : In the case before us the guardian very wisely did not collect this note in Confederate money. Immediately, and for several years after the war, there was great uncertainty whether negro debts could be collected at all.

<p>Before Witherspoon, J., Orangeburg, October, 1883.</p> <p>This case is fully stated in the Circuit decree, which was as follows:</p> <p>It appears that Jacob G. Keitt placed his son, John A. Keitt, in charge of his Whetstone plantation, in the county aforesaid, for the year 1867, including stock, &c. There is no written evidence as to the terms upon which the fanning operations were to be conducted. It appears that for supplies furnished the plantation that year, John A. Keitt and Jacob G. Keitt gave E. H. Rodgers & Co., of Charleston, a note for $2,237.13. John A. Keitt signed the note first without seal, and Jacob G. Keitt signed with a seal. In January, 1868, forty-eight bales of cotton, the entire cotton crop of the Whetstone plantation for that year, was shipped to the payees, E. H. Rodgers & Co., and the proceeds, ■ $1,994.24, credited on the note aforesaid, leaving due thereon, October 1, 1868, the sum of $530.35, which was paid in full by the father, Jacob G. Keitt.</p> <p>John A. Keitt died intestate in August, 1867, during the year of the farming operations on the Whetstone plantation, and the defendant, Peter M. Houser, administered on his estate, and brought suit against E. H. Rodgers & Co. for the cotton money, and recovered a verdict for $3,087.13, including costs. In the meantime, Twitty and other creditors of John A. Keitt instituted proceedings in the Probate Court for Orangeburg County to marshal the assets of the estate of John A. Keitt. Rodgers & Co., who had beén compelled to refund the cotton money, under call for creditors, proved the note aforesaid as a specialty debt of the estate of John A. Keitt for the whole amount, less the $530.38 paid by Jacob Gr. Keitt, and received their pro rata of $1,331.66 from the estate of John A. Keitt. In November, 1879, Jacob Gr. Keitt died intestate, and the plaintiff, Lawrence M. Whaley, became his administrator, and was sued by Houser as administrator of John A. Keitt, to recover back the $1,331.66 paid by the estate of John A. Keitt as surety of Jacob G. Keitt on the note aforesaid. Whaley, as administrator, instituted proceedings to marshal the assets of the estate of Jacob G. Keitt. In this contest between the creditors of the two estates the special master reported in favor of the claim of the estate of John A. Keitt against the estate of Jacob G. Keitt for the $1,331.66 and interest, on the ground that Jacob G. Keitt was the principal and John A. Keitt was surety on the E. II. Rodgers & Co. note, as aforesaid. Whaley, as administrator of Jacob G. Keitt, appealed, and the Supreme Court affirmed the finding of the special master, that Jacob G. Keitt was the principal and John A. Keitt was surety on the Rodgers & Co. note.</p> <p>The Supreme Court, in this cause (April term, 1882), say that the agreement -between the parties (father and son, as to farming operations for 1867 on Whetstone plantation), although it lies at the very foundation of this controversy, has not been ascertained in this ease, and as this is a contest between the creditors of the two estates, it is necessary to determine what was the business agreement between father and son. The court further say, if John A. Keitt actually cleared nothing by the farming operations, his administrator, as against Jacob G. Keitt, would have no right to retain any portion of the cotton money, and, having recovered it from Rodgers & C°-> the administrator of Jacob G. Keitt would be entitled to the benefit of that recovery, and to set off such claim for the cotton money against the claim of Houser, administrator, for the money paid by his intestate, as surety for his father. These questions, the court say, can only be determined by ascertaining the exact agreement between the father and son as to the farming operations for 1867. The court say that this agreement should be examined as an original question, without being afiected in any manner by the verdict in the case against Rodgers & Co.</p> <p>The above entitled case was remanded by the Supreme Court (April term, 1882) to the Circuit Court, to ascertain what were the terms of the agreement between Jacob G. Keitt and his son, John A. Keitt, as to the farming operations on the Whetstone plantation in the year 1867, and to apply the result according to the principles therein announced. On May 28, 1883, the case was referred by Judge Wallace to C. B. Glover, special master, •to take the testimony respecting the terms of the agreement between Jacob G. Keitt and John A. Keitt, as to the farming operations on the Whetstone plantation in the year 1867, and to report the same and his conclusions of fact to this court at its next sitting for adjudication, with liberty to either party to object to the admissibility of testimony on the coming in of the report.</p> <p>On September 25, 1883, the special master filed his report, in which he finds the agreement as to the farming operations on the Whetstone plantation in 1867 to be as follows: “That Jacob G. Keitt was to find all the supplies necessary to run the plantation. That the plantation was to be superintended by John A. Keitt. That after the laborers had received one-third of the crops for their services, then John A. Keitt was to-have the net cotton, after all the expenses were paid.” The special master concludes as matter of fact: I. That the Whetstone plantation was planted in the year 1867 by Jacob G. Keitt, who placed his son, John A. Keitt, in charge of the same as superintendent. II. That John A. Keitt was to receive for his services the net cotton remaining after all the expenses of the place were paid. III. That the expenses of the plantation exceeded the whole income derived from the crops, as it appears that when the proceeds, from the cotton crop were applied to the Rodgers & Co. note (given for supplies), there remained a balance on that note unpaid, which balance was paid by Jacob G. Keitt. IV. That John A. Keitt died in August, 1867, and as there was no net cotton, after the expenses of the plantation were paid, there was nothing as a matter of fact to go to the estate of John A. Keitt.</p> <p>The defendant, Peter M. Houser, administrator of John A. Keitt, excepts to the report of the special master. In the view taken of this case it will be only necessary to consider the first exception in substance as follows: Because the special master erred in finding that the expenses exceeded the whole income derived from the crops raised on the Whetstone plantation in 1867, but should have found that the value'of the crops exceeded the amount of expenses, and should have found the amount of such excess.</p> <p>The referee finds that Jacob G. Keitt planted the land; that he placed his son, John A. Keitt, in charge as superintendent, who was to receive for his services the net cotton after all the expenses of the place were paid. As I understand it, the master finds that according to the terms of the agreement between father and son the measure of the son’s compensation for services as superintendent depended upon whether or not there would be any net cotton crop, after paying all the expenses of the place cultivated.</p> <p>It is very difficult now to ascertain accurately the terms of an oral agreement entered into in 1867, when both parties to the agreement are now deceased. Whilst at first view it might appear to be an unreasonable proposition for any one to agree to accept as compensation for such services the net cotton after paying all the expenses of the plantation, yet such terms may be made to appear more consistent and reasonable when the facts of the case, the circumstances and situation of the parties are considered.</p> <p>It appeal's from the testimony that Jacob G. Keitt owned the land, furnished the stock, wagons, tools, seed, and supplies, including fei’tilizers. A highly intelligent witness, Dr. Wanna-maker, testifies that he understood from Jacob G. Keitt that John A. Keitt was to l'eceive two-thii'ds of the net proceeds of cotton crop, and that he, Jacob G. Keitt, was to receive all the provision crop save what the negroes got, and cotton seed. The witness, Spigenei’, testifies that Jacob G. Keitt told him he had not given the plantation to his son, but wanted to see what he could do for himself; that if he made anything clear on the ci'op, it is his. Robinson, the foreman on the place, testifies that Jacob G. Keitt had conti'ol of business and gave directions; that he went to the place once or twice a week, after the crop was set, and sometimes every morning; that when Jacob G. Keitt didn’t go to the place, he, Robinson, went to him for directions.' Robinson and other laborers on the place testify that they heard John A. Keitt say, that after expenses of place were paid, he was to have the balance of the cotton. The written contract for hire of the laborers was made in the name of John A. Keitt, and witnessed by his father, Jacob G. Keitt. The laborers were to receive one-third of the crop. Some of the laborers testify that they were hired by Jacob G. Keitt.</p> <p>It appears that the son, John A. Keitt, lived Avith his father, Jacob G. Keitt, some twm miles distant from the Whetstone plantation, and had very limited means. The crop consisted of eighty or eighty-five acres of cotton, seventy-five or eighty acres of corn, and some peas, potatoes, &c., and Avas cultivated Avith five mules belonging to Jacob G. Keitt. As the father furnished the land, stock, tools, supplies, and fertilizers, it does not appear improbable that the son in limited means, who lived with his father, Avould agree to accept for his services as superintendent of the plantation, under the direction of the father, the net cotton, after paying the plantation expenses, including the labor. It is not material, however, to consider the reasonableness of the agreement. As matter of fact, the issue to be determined is, What Avere the terms of the agreement ?</p> <p>After a careful review of the testimony, I am constrained to concur in the finding of the special master that John A. Keitt agreed to superintend the Whetstone plantation for his father in 1867, and Avas to receive as compensation for his services the net cotton remaining after all the expenses of the plantation were paid; that the son died in August, 1867, before the crop was made; that the expenses of the plantation exceeded the net cotton, and, as matter of fact, there was nothing due the estate of John A. Keitt under said agreement.</p> <p>The special master also finds, and states as matter of fact, that the expenses of the plantation exceeded the Avhole income derived from the crops. Having concluded and found as matter of fact that, under the agreement, the son was to receive as compensation for his services the net cotton remaining after all the expenses were paid, it was neither material nor necessary for the special master to estimate or state the value of the crop, other than the cotton crop. All of the expenses of the plantation in making a crop, is a very comprehensive term. As the son died during the year, the expenses of the crop were necessarily increased beyond the calculation of the parties. It is in evidence that the father hired extra hands to pick cotton, gathered the grain crop, and prepared the cotton crop for market, after the death of the son.</p> <p>It would seem that the expenses incident to the death of the son would have to be included, under the agreement, before the net cotton compensating the services of the son could be ascertained. Even if the value of the whole crops should have been estimated and stated by the master, as contended for by defendants, I am inclined to concur with the master in the conclusion that the expenses would exceed the whole income derived from the crop, inasmuch as the proceeds of the cotton failed to pay the debt of Rodgers & Co. for supplies by $530.35, without regard to the other expenses incident to the death of John A. Keitt during the year.</p> <p>As already stated, it is difficult to arrive at a satisfactory conclusion as to the precise terms of an agreement entered into more than sixteen years ago, when both of the parties to the agreement are dead, yet I must conclude that there is enough in the testimony to sustain and support the findings of fact by the special master.</p> <p>It is therefore ordered and adjudged, that the exceptions of Peter M. Houser, administrator of John A, Keitt, to the report of C. B Glover, special master herein, be overruled; the findings of fact by said special master be confirmed, and that the claim of Peter M. Houser, administrator, presented against the estate of Jacob G. Keitt, be disallowed.</p> <p>Defendant appealed upon seventeen exceptions, but the points thereby raised are sufficiently indicated in the opinion of this court.</p>

Before Hudson, J., Abbeville, February, 1883. The opinion states the case. The Circuit decree, omitting its statement, was as follows: The question upon which the case hinges is whether the plaintiff had knowledge of the action in the Probate Court, and whether that suit was with her consent and by her authority instituted.

Before Aldrich, J., Aiken, September, 1883. The opinion sufficiently states the case. The decree of the Circuit judge was as follows : The complaint was filed for the foreclosure of a mortgage, and referred to Mr. James Aldrich to hear and determine the issues of law and fact. Proceedings were had in the Ordinary’s Court to sell the lots described in the pleadings for partition and to pay outstanding debts.

<p>Before Fraser, J., Charleston, November, 1884.</p> <p>This was a controversy without action between Sarah Ann Andrews and Lee Loeb. The opinion fully states the case.</p>

<p>1. Where none of the parties to an action reside in this state, the county designated in the complaint is the proper county for the trial.</p> <p>2. Where the defendants, residing in this state but not in the county where the action is brought, in their answer to a complaint for services rendered, deny on this ground the jurisdiction of the court, the Circuit judge may, on plaintiffs’ motion, change the place of trial to the proper county under the authority of section 147, subdivision 1, of the code.</p>

Before Witherspoon, J., Barnwell, March, 1884. This was an action to recover a debt and to foreclose the following mortgage, which was executed February 1, 1881: To all persons whom these persons may concern, I, Alice A. Steadman, of the county and state aforesaid, greeting : Whereas Pelzer, Rodgers & Co., of the city of Charleston, in said state, have agreed to made advances to my husband, G. E. Steadman, doing business at Blackville, in said county, during the current…

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

<p>Where the defendants in a criminal prosecution offer no evidence, they are entitled to the reply in argument; hut where jointly indicted, and any one of them introduces evidence, the state is entitled to the reply.</p>

<p>Before Aldrich, J., Union, June, 1884.</p> <p>The opinion fully states the case.</p>

Before Eraser, J., Greenville, July, 1884. The opinion fully states the case. Security for- costs cannot be demanded except upon due notice served before the commencement of the term. 1 McCord, 552; 13 S. C., 44.

<p>Before Aldrich, J., Richland, November, 1883.</p> <p>Action by Andrew J. Hosford against Martha C. Wynn for the recovery of real property, commenced in March, 1883. The opinion states the case.</p>

Before Fraser, J., Fairfield, September, 1883. The opinion sufficiently states the case. The Circuit decree was as follows: This case was heard by me at the term of Court of Common Pleas for Fairfield County in September, 1883. The case was heard on the pleadings, and testimony taken in open court. * * * This action has been brought to set aside the trust deed to William J. Dawkins for fraud and for the possession of the land.

<p>Before Wallace, J., Richland, September, 1883.</p> <p>The opinion of this court fully states the nature of the action and all the facts of the case. The judge charged the jury as follows:</p> <p>"Under tbe case of Paher v. Police, 10 S. 0., 376, I charge you that the plaintiffs had not a vested interest in the land in dispute, but that they were contingent remaindermen. Under the decisions of the Supreme Court of the United States, and of many of the states, they would be held to be vested remainder-men, but not so in this state. The naked question now is, are the plaintiffs, who were not made parties in the proceedings under which the land was sold, bound by those proceedings? They were contingent remaindermen, and in the case of Thomas v. Poole (19 S. 0., 323), a late decision of the Supreme Court of this state, it has been decided that contingent remaindermen are not necessary parties to a proceeding instituted for the sale of land. Under the case of Thomas v. Poole, I charge you that plaintiffs were not necessary parties to the proceedings in question, though some of them were then living; that Milledge Hankinson and D. J. Walker, trustees, took a fee simple title, and that these plaintiffs cannot now question his title; and that hence your verdict must be for the defendants in both cases.</p> <p>The jury found a verdict for the defendants, as instructed by the judge, in both cases, and the plaintiffs appealed upon the following exceptions:</p> <p>I. Because his honor, the presiding judge, erred in charging the jury that the words in the deed of James Moseley and wife to Wm. Fortune, trustee, created contingent remainders in the issue or lineal descendants of Rebecca Moseley, and not vested remainders.</p> <p>II. Because his honor, the presiding judge, erred in charging the jury that the plaintiffs, as well those who were then in esse as those who were.afterwards born, were barred by the proceedings in the case of Ex parte James Moseley and wife and Wm. Fortune, and the deed given thereunder to Milledge Hankinson, trustee; whereas it is submitted that they were not parties thereto, and are not bound thereby.</p> <p>III. Because his honor, the presiding judge, erred in directing a verdict for the defendants.</p> <p>IV. Because his honor, the presiding judge, erred in not charging as requested by the plaintiffs, to wit, “that as matter of law the jury must find a verdict for the plaintiffs, because they are not barred by the proceedings in the case of Ex parte James Moseley et al., and their right of action did not accrue until the death of their mother, Rebecca, in 1881, the date of her death as admitted.”</p>

<p>1. Where an issue is ordered out of chancery,-the judge presiding at the trial of such issue cannot grant a non-suit, but must try the case and report back the result</p> <p>2. If error he committed on the trial of such an issue, the decree based on the verdict would be affected by this error, and subject to exception therefor.</p> <p>3. The rule admitting ancient deeds as evidence upon production and inspection, without further proof of execution, does not apply to copies, however old they may be.</p> <p>4. A deed cannot properly be recorded without proof of its execution, and if recorded without proper probate, the registry does not operate as notice of its existence.</p> <p>5. Under the registry laws of force in 1820, a deed executed in South Carolina, and proved before a magistrate in Georgia, was not properly probated, and its record did not operate as notice.</p> <p>6. Plaintiffs, claiming a moiety of a tract of land which defendant claimed in severalty, offered to show by an alleged copy-deed, that defendant acquired only a moiety of the land under their chain of title. Held, that the evidence so offered was not collateral to the matter at issue.</p>

Before Kershaw, J., Charleston, April, 1884. Master Hanckel thus states the case: The present case grows out of a previous case.

<p>1. An order of the Circuit judge on appeal from a trial justice, directing a new trial in the court below, cannot be declared erroneous where this court is not informed of the grounds upon which the order was granted.</p> <p>2. A gift of personal property is not complete without delivery; but where declarations of the donor to the effect that ho had given are received in evidence as competent, it should be left to the jury to determine whether the gift has been proved.</p>

Before Fraser, J., Lancaster, October, 1883. This is a continuation of the case of Duren v. Strait, 16 S. Q., 465, George Sinclair having been appointed administrator in place of S. L. Strait, executor, removed from office. It was an action to recover the value of certain timber alleged to have been cut and carried from plaintiffs land by John Sinclair, defendant’s testator. The points of evidence raised are sufficiently stated in the opinion.

Before Wallace, J., Darlington, July, 1884. This was an action by Norwood & Co. against L. Faulkner, commenced February 1, 1884, to foreclose a mortgage given to secure the payment of $1.25 a bale for 149 bales of cotton not shipped as required by contract.

Before Fraser, J., Spartanburg, March, 1884.' This was an action commenced February 20, 1882. The allegations of the complaint were as follow’s : I. That the plaintiff, Rachael Zimmerman, is the wife of the plaintiff, Edward J. Zimmerman. II. That the defendant, Elizabeth E. McMakin, is the wife of the defendant, Peter C. McMakin. III.

Before Cothran, J., Edgefield, June, 1884. The opinion states the case. The Circuit decree, after stating the facts, continued as follows: The main question involved in the case, growing out of the foregoing statement of facts, is an exceedingly nice one, and I have to regret that the extraordinary pressure upon my time fprbids much more than a statement of the conclusions attained.

Before Fraser, J., York, November, 1883. Action by John M. Templeton against John ,T. Lowry, to recover under the betterment law for the value of improvements. The opinion states the case.

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

Before Aldrich, J., Newberry, June, 1884. The opinion fully states the case.

<p>1. In action to recover the damages stipulated in a bond, which was given under the requirements of a statute, conditioned that the defendant would safely keep the convicts leased to him from the State Penitentiary, and if they escaped through negligence of any kind, then to pay the state therefor §50 per annum, &c., the burden of proof is upon the plaintiff to show that the escape of the convicts was through the negligence of defendant.</p> <p>2. Under the terms of the contract the plaintiff’s right of action was grounded upon a negative allegation, hence he must prove it.</p> <p>3. The convicts having been leased under the contract required by the state, the contractor’s liability is fixed by such contract, and cannot, therefore, be measured by the relations of the parties, or a supposed public policy.</p> <p>4. The act of 1882 declaring the escape of leased convicts to be prima facie evidence of negligence on the part of the lessee, cannot affect this case, as' the contract was made and the convicts escaped prior to the passage of that act.</p> <p>5. The Circuit judge ruled that he would receive evidence to show negligence by defendant during the time the convicts were in his possession, but not at other times. Held, that in this there was no error.</p>

<p>1. On July 11 the Circuit judge ordered that the daily sessions of the court be dispensed with, but the term not to bo closed. The clerk of court thereafter opened and adjourned the court every day (Sundays excepted) until September 4, when the judge returned, held court, heard and determined this cause, and then adjourned the term sine die. The next succeeding term of court in this county, and the next succeeding court to be held by this judge were after this sine die adjournment. Held, that the ease was heard within the term. This case distinguished from Ex parte Lilly, 7 S. C., 373.</p> <p>2. A testator left certain property to his children and directed a division of his estate among them twenty years after his death, certain real estate devised to be accounted for by them at a valuation fixed in the will. By a codicil, the division was directed to be made at the end of ton years. All the property so given was to be held by his children during life, with contingent remainders over. At the expiration of ten years the executors sought the instruction of the court as to the proper distribution of the estate, all parties in interest, including all contingent remaindermen in esse, being defendants. These defendants agreed upon a proper distribution among the life-tenants and delivery of possession to them, which arrangement was approved and directed by the decree of the court, and on the appeal of some of the executors, the Circuit decree was affirmed.</p> <p>3. All the contingent remaindermen in esse being before the court, a decree might be made putting the life-tenants into possession of their shares, to be held by them under the limitations of the will; and such decree would be binding upon contingent remaindermen thereafter born.</p> <p>4. The case of LeEoy v. City Council of Charleston, 20 S. C., 71, explained.</p> <p>5. The executors appealing in this case should be allowed the expenses of their appeal out of the estate.</p>

<p>In action against the sureties on an administration bond after decree by the Court of Probate against the administrator, testimony of a witness (since deceased) taken in the Court of Probate on the accounting there had cannot be given in evidence against the sureties in this action, they not having been parties to such accounting.</p>

Before Fraser, J., Laurens, February, 1884. On the hearing of this appeal, Judge Witherspoon, of the Sixth Judicial Circuit, sat in the place of the chief justice, who had been of counsel in the cause. The opinion states the case.

Before Fraser, J., Richland, July, 1883. The Circuit decree in this case was as follows: This case came before me at the term for July, 1883, on a •motion on notice on behalf of James C. F. Sims, Nancy Allen, James Kitchens, and Adelaide Kitchens to set aside the service of certain papers served on them entitled “amendment to supplemental summons and complaint making J. C. F. Sims a party-defendant.” These papers were served on J. C. F. Sims personally, and on Messrs.

Before Aldrich, J., Newberry, June, 1884. The opinion states the case. The Circuit decree was as follows : I agree with the judge of probate in his conclusion as to the property being partnership assets. As the probate judge says, the lot was sold long before the dissolution of the partnership. The deed to Smith is dated February, 1863, but the sale was made and possession given more than five years before. This was a withdrawal of the land from the partnership assets.

Before Kershaw, J., Charleston, February, 1884. This was an action by Francis McKeegan against Bernard O’Neill and Daniel J. Quigley, executors of John McKeegan, and against the legatees of John McKeegan, to recover the entire estate of John McKeegan, under an alleged contract contained in the following paper: (1st page.) Charleston 22 March 1870 Mr P. McKeegan Dear Sir this morning i .got a letter from Mr McNeill and one from you Relating to Cloney......

<p>1. Causes of action and remedies distinguished.</p> <p>2. The insertion of two or more demands for relief in a complaint is not a misjoinder. When therefore a complaint demanded damages for a nuisance, and an injunction to restrain it, the Circuit judge committed no error in refusing to require the plaintiff to elect between these two remedies.</p> <p>3. The admission of testimony which was- introduced without objection cannot be made a ground of exception.</p> <p>4. Under the allegations of a complaint that the life of plaintiff and her family were in danger from the explosion of defendant’s powder magazine near by, evidence in plaintiff's behalf as to the construction and management of the magazine is competent and pertinent.</p> <p>5. A matter may be a nuisance although it injuriously affects only one household. The judge therefore properly refused to charge “that if the jur-y find that the site of the powder magazine is such as to cause danger to the fewest persons, at the same time affording an accessible depot of supply, they must find for the defendant.”</p> <p>6. There is no error in refusing a request to charge where the matter so requested is substantially stated in the general chai-ge.</p> <p>7. The complaint made no allegation that defendant’s magazine or powder were carelessly kept, but did allege that the magazine endangered the life of plaintiff and her family: Held, that the judge did not err in refusing to charge that the jury must consider the case as if the powder was kept with the greatest discretion and security.</p> <p>8. In a law case questions of fact cannot be reviewed by this court.</p> <p>9. This court declined to declare error in a charge which authorized the jury to find punitive damages where the only objections raised to such charge were that there was no testimony in the case to which it was applicable, and that its tendency was to inflame the minds of the jury against the defendant.</p>

Before Wallace, J., Beaufort, November, 1883. These were informations filed September 20, 1882, by LeRoy P. Youmans, then‘attorney general, in the name of the State of South Carolina, one against C. C. Pinckney, jr., and the other against W. B. Davis, for the recovery of certain salt marshes alleged to be the property of the state.

Before Cotiíran, J., Marion, April, 1884, This was an action by Walker, Evans & Cogswell, H. K. & E. B. Thurber & Co., and others, judgment creditors of A. Schafer, against Bollmann Bros., IT. Sternberger, L. Sternberger, and A. Schafer, trading under the firm name of A. Schafer, E. Iseman, and E. Sternberger. The opinion states the case. The Circuit decree was as follows : The plaintiffs, to maintain the issues on their part, offered in evidence: 1.

Before Pressley, J., Spartanburg, October, 1884. The opinion states the case. The order of the Circuit judge was as follows: This is an action by summons and petition to enforce a 'mechanic’s lien. The case was heard in 1880 by Judge Fraser, and he, without a final decision, directed advertisement by the clerk for other lien creditors, none of whom have filed any claims. Plaintiff proved work done by her husband on defendant’s house, for which he had agreed to pay $262.

Before Cothran, J., Chesterfield, February, 1884. The opinion of this court states the nature of this action, and some of the facts proved at the trial. Other matters necessary to a full understanding of the case are as follows: A survey under order of the court showed that forty acres of land were covered with back-water from defendant’s dam, of which twenty acres belonged to the plaintiffs.

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

<p>1. Generally a guaranty is a collateral undertaking, and it is essential to its existence that there should be some one liable as principal; and if there be no valid claim against the principal, there is no existing contract of guaranty.</p> <p>2. Judgment rendered by the judge without a jury, against persons alleged to be guarantors, without proof of demand against the principal, upon an instrument never proved, nor fully befoi-e the court in pleadings or evidence, set aside, the answers being held to have sufficiently raised issues requiring proof.</p> <p>3. An admission that defendants “signed an instrument of writing supposed to be the paper sued on, but cannot be -positive without an inspection of said paper, and cannot say whether the endorsement was before or after due or contained a guaranty” — was not such an admission as would justify a judgment without proof of the instrument.</p>

Before Witherspoon, J., Aiken, April, 1884. This was an action, by Watson B. Couch, to recover ten thousand dollars damages for injuries alleged to have been received through the negligence of the defendant company. The opinion sufficiently states the case.

<p>1. The right of dower is by operation of law', and beyond the control of the husband; but he may give property to his wife by will upon condition that she surrender her claim of dower, in which ease she is put to her election between the legacy or devise and the dower.</p> <p>2. The right of dower is a legal right, and a devise to the widow cannot be held to be in lieu and bar of dower, unless so declared, or unless manifestly repugnant to a claim of dower.</p> <p>3. A testator, seized and possessed of 361 acres of land, bequeathed specifically some goods of little value, 5500 in lieu of administrator’s commissions, and to his grandchildren O., a note on their father, and devised four-tenths in value of his lands to his widow for life, with remainder to their daughter A., and to his grandchildren B. and C. three-tenths each, and named persons to make such division of his lands. Held, that the provision for the widow was intended to be in lieu and bar of dower. Me. Justice McIvee dissenting.</p> <p>4. The widow having, under her hand and seal, elected to take the devise to her under this will, she cannot claim dower in the lands assigned to B. and C., notwithstanding she made such election very soon after her husband’s death — there being no imposition, misrepresentation, nor persuasion practised upon her.</p>