Volume 24 — South Carolina Reports

<p>Before Aldrich, J., Pickens, September, 1884.</p> <p>Action by Charlotte S. Banker against William A. Hendricks, commenced March 5. 1884. The opinion fully states the case.</p>

Before Wallace, J., Richland, December, 1884. This was an action by John Agnew against the Charlotte, Columbia & Augusta Railroad Company, commenced May 30,1884. The opinion states the case.

Before Aldrich, J., Union, June, 1884. This was an appeal from the following decree: “The petitioner, as widow of John Broxie Jeter, in behalf of herself and their two minor children, has asked this court for a writ of mandamus to require the master of this court to appoint commissioners to assign and set apart a homestead to the petitioner and her children. “It seems that a case has been and still is pending in this court involving, in part, the settlement of the estate of…

<p>1. In what cases several causes of action may be united in one complaint, and the remedy for failing to state them separately, considered.</p> <p>2. Where several plaintiffs, severally owning adjacent tracts of land, join in one action for injuries to their land caused by a dam of the defendant, and claiming damages in solido, the cause of action is single, and a demurrer upon the ground of misjoinder of causes of action will not lie.</p> <p>3. But the injuries being separate and distinct, the plaintiffs could not jointly sue to recover damages therefor; and a demurrer, interposed orally at the hearing, that the complaint did not state facts sufficient to constitute a cause of action, was properly sustained.</p> <p>4. A civil action will not lie to recover damages for injuries caused by a dam, unless special damage to plaintiff be alleged in the complaint; for a public nuisance the only remedy is by indictment.</p> <p>5. An action for damages on account of a private nuisance and to abate the same is a legal, not an equitable, action. A prayer for equitable .relief does not change the nature of the action.</p> <p>6. The joinder of parties under sections 138 and 140 of the code of procedure considered.</p>

<p>Before COTHRAN, J., Edgefield, June, 1884.</p> <p>This was an action by R. H. Quattlebaum against J. O. C. Black, assignee of R. H. May & Co., and others. The opinion sufficiently states the case.</p>

Before Witherspoon, J., Richland, April, 1885. The opinion fully states the case.

Before Fraser, J., Laurens, April, 1884. In this case, Honorable B. O. Pressley, the Judge of the First Circuit, sat in place of the Chief Justice, who had been of counsel in the cause.

<p>1. Where an administrator "sues as such on a promissory note properly described and alleged to have been endorsed to him in his representative capacity, of which note he claims to be the legal owner and holder as administrator, the complaint states a cause of action.</p> <p>2. An order refusing an oral demurrer is appealable, even before final judgment.</p> <p>3. A notice of appeal, orally given, from an order refusing an oral demurrer, stays the further hearing of the cause on Circuit. Mr. Justice McGowan, dissenting.</p>

This was a motion to dismiss an appeal, upon the ground that the return had not been filed within the time prescribed, and upon the other ground stated in the opinion.

<p>Before Kershaw, J., Aiken, July, 1884.</p> <p>The opinion states the case. The Circuit decree was as follows :</p> <p>The defendants insist that this obligation was conditioned on the performance by the plaintiff of the considerations expressed therein, and that performance has not been proved. In the year 1865 intestate made a will leaving all his property to the plaintiff, or, at least, the land now in question, assigning as a reason that plaintiff was the only one of his children who resided with and rendered him service, and that he desired to compensate him in that way. In March, 1866, the will was destroyed, and plaintiff thereupon told the laborers whom he had employed to work on the farm that year that they must look out for themselves, as he also had to do. Afterwards, when the obligation here set up had been executed, plaintiff continued to serve his father as he had done before. From this, it appears to me that plaintiff, before the destruction of the will, was performing these services' gratuitously, hut in expectation of being compensated eventually by the provisions of the will; that after the will was destroyed, he declined to continue his services, and only resumed them when other provision for his compensation had been made by this writing. This accounts well for the making of the contract, and also furnished a good reason for considering the services of plaintiff to his father after that time as having been rendered in performance of his duty thereunder. I consider the evidence sufficient to establish plaintiff’s claim, even if we consider it as conditioned on performance on the part of plaintiff.</p> <p>If I were left in doubt as to the sufficiency of the evidence on this point, it would be a proper case in which to frame an issue for the decision of a jury, as was directed by the court on the appeal in Shaw v. Cunningham (9 S. C., 271), as suggested by counsel for defendants, but I cannot say that I entertain any doubt on the subject. This is just one of those cases in which juries are apt to be governed by some supposed principles of natural justice or equality rather than by the rules of law, and such a reference ought not to be made unless clearly required for the solution of a question of fact which the court is led to hesitate about by the evidence.</p> <p>I now pass to the consideration of the points made by the plaintiff’s appeal. The case of Faust v. Bailey (5 Rich., 107), taken in connection with section 60 of the Code of Procedure, seems to me conclusive on this point. The judge of probate ought to have considered the question of title raised, and his failure to do so was error. According, however, to the view I have taken of the legal aspects of the case, it will not be necessary to remand the matter for a further hearing in the court below. The results will depend on questions of law rather than of fact.</p> <p>The deed upon which the defence rests was made by a husband to his wife before the common law relations of married women had been changed in this State. As the law then stood, if the grant was intended to operate in presentí, it was void, because a husband could not make such a grant to his wife after coverture, unless in pursuance of articles entered into before marriage and in consideration of marriage. On the other hand, if it was testamentary in its character, it was ineffectual, because it was not executed with the formalities required in the case of a will. Moreover, being a voluntary deed, it would have been void as to existing creditors under the statute of 13th Bliz. and the decisions thereon; if properly assailed by the creditors, it could not prevail against them. Twyne's Case, 3 Co., 80; 1 Sm. Lead. Cas., 1.</p> <p>Nevertheless such grants are supported in equity, under certain circumstances, when they would be void at law. Says Mr. Story: “A grant of a reasonable provision to a wife would be enforced in equity though void at law; but if a husband, by deed, grant all his estate or property to his wife, the deed would be held inoperative in equity as it would be at law.” Story Bq. Jur., § 1378. See also Beard v. Beard, 3 Aik., 72; Davidson v. Graves, Biley Ch., 232. It is intimated in Price v. Price (12 Bng. L. B., 144) that even a grant of the husband’s whole estate to his wife would have been supported if there had been' proof that the grantor, who was illiterate, knew what he was about.</p> <p>There may be a gift made by a husband to his wife which, though bad at law, would be supported in equity; but, as was stated in McLean v. Longlands (5 Ves., 78), nothing less will do than a clear, irrevocable gift, either to some person as a trustee (for the wife) or some clear and distinct act of the husband by which he divested himself of the property and engaged to hold the same as a trustee for the separate use of his wife. Lord Hardwicke, in the case of Lucas v. Lucas (1 Atlc., 271), which bas been referred to, distinctly says that in this court gifts between husband and wife have often been supported, though the law does not allow them to pass the property. Though the property does not pass at law, yet, in equity, a husband, being the owner at law, may become a trustee for his wife; and if by clear and irrevocable acts he has made himself such trustee, the gift to his wife will be conclusive. Mews v. Mews, 21 Eng. L. E., 558.</p> <p>Here the intention is plain to give to the wife, by an irrevocable instrument, an estate to vest in possession at his death. Such an estate cannot be supported without a trustee, but equity will not suffer a trust to fail for the want of a trustee. In the present case, the husband would be considered a trustee for his wife. Cloud v. Calhoun, 10 Rich. Eq., 362; Ellis v. Woods, 9 Rich. Eq., 24.</p> <p>This deed might, therefore, be sustained on these principles, so far as regards the common law disabilities of husband and wife to contract with each other. But it is liable to another objection, in that it is a marriage settlement, requiring to be recorded as such, and void as to creditors for the want of such recording. Banks v. Brown, 2 Hill Oh., 558. Yet it was good between the parties and would remain so until set aside or superseded by some action on the part of the creditors. As said by Chancellor Harper, in Eripp v. Talbird (1 Hill Ch., 142), “creditors may treat it as void — they are not compelled to avoid it, but may seize the property as if there was no deed; but until they do seize the property, the deed remains perfectly good.” He was speaking of a post-nuptial settlement not recorded, and of judgment creditors.</p> <p>The deed here being good between the parties, the property - passed to Mrs. Gregory, at the death of her husband, subject to be divested by proper proceedings on the part of creditors taken in due time. Has this plaintiff proceeded in due time ? Having notice of the deed, he ought to have proceeded within four years thereafter. Lott v. JDeG-raffenreid, 10 Rich. Eq., 346. In fact, no proceedings were had until the commencement of this action in 1883, a period of nearly seventeen years after the plaintiff had notice of the deed. During all these years there has been possession under the deed, and plaintiff has stood by in silent acquiescence. True, there was no administrator of the estate of Richard Gregory until recently, but that need not have prevented a proceeding in equity against Margaret Gregory in her life-time, or against her heirs after her death, to subject the land in question to the plaintiff’s claim. Vernon $ Go. v. Valle, 2 Hill Gh., 257. I am of the opinion that, after so long a delay, plaintiff ought not now to have the aid of the court in enforcing his demand. Upon the ground of laches, as applied in the courts of equity, the complaint must be dismissed. 2 Story Eq., § 1520, et seq., and notes; Mobley v. Gureton, 2 S. G., 149. In that case the doctrine was applied when the statute of limitations was held not to be a bar.</p> <p>I am the less reluctant to dismiss the action on account of the nature of the plaintiff’s claim. He will suffer no great loss, for the services rendered to his father, under the contract, could have been of little value, inasmuch as the father died within a very few months after they commenced. Perhaps it was this view of the matter which induced the plaintiff to delay action for so many years.</p> <p>It is ordered and adjudged, that the complaint be dismissed, and that the plaintiff do pay the costs of this action. Let the judgment be certified to the Probate Court.</p>

Before Hudson, J., Marion, July, 1885. The opinion states the case. The Circuit decree was as follows: Emily Williamson brought this action against W. E. Gasque, who is in possession of a tract of land of which the husband of the demandant was, in his life-time, seized in fee, but which he aliened, the purpose of the action being to recover her dower.

<p>1. An affidavit that defendant cannot obtain a fair trial before a trial justice because of plaintiff’s influence “with the persons who are likely to be on the jury at the trial,” is not sufficient to obtain a removal of the cause under a statute which requires such removal upon affidavit that the affiant “does not believe that he can obtain a fair trial before the trial justice” (Gen. Stat., § 840), the ground stated being an objection to the jury and not to the officer.</p> <p>2. A motion to transfer a cause from one trial justice to another should be made before the day appointed for trial, unless based upon facts discovered later.</p> <p>3. -It would seem that the affidavit for removal should disclose the reasons that induced the belief that a fair trial could not be had; but certainly where the first affidavit stated a reason which was insufficient, and a second affidavit followed the words of the statute, and stated no . reasons, a removal of the cause may be refused.</p> <p>4. To entitle one to a removal of his case under the statute, the affidavit must be made before the trial justice who issued the papers; an affidavit made before a clerk of court or notary public is insufficient.</p>

<p>1. On appeal to this court from a conviction and sentence in the Court of Sessions, questions of fact cannot be reviewed.</p> <p>2. Omission by the Circuit Judge to charge upon points not requested is not error of law.</p> <p>3. Political feelings should be excluded from courts of justice, but one charged as accessory before the fact may be shown to be a leader of influence among people of his class.</p> <p>4. Where the only evidence of a witness’s conviction of manslaughter is his own statement on the stand, he is competent to testify, he having further stated that he had been pardoned.</p> <p>5. The foreman of the jdry may be called upon in open court to correct a mere informality in a verdict just rendered.</p> <p>6. The confession of a defendant not on trial cannot be proved in behalf of the other defendants.</p> <p>7. The Circuit Judge committed no error in refusing to charge the jury that they are not bound to accept as true the testimony of a witness unless they believe with good reason that he is telling the truth. What kind of reasons should influence a j ury is a matter exclusively for them.</p> <p>8. A house in which no one slept, within a few yards of a dwelling-house, but not appurtenant to it, used for storage of goods by a person who resided in the dwelling-house and rented one of its rooms for a store, is not the subject of burglary.</p>

<p>1. In charging the jury, the judge is not compelled to define a criminal offence in the very words of elementary writers. Burglary was properly defined in this case to he the breaking into a dwelling-house in the night time with a view to commit a felony ; especially so, as other parts of the charge showed that the word view was used as synonymous with the word intent.</p> <p>2. Petit larceny is not made a misdemeanor by our statute (Oen. Slat., $ 2498) unless it be also a simple larceny. Breaking into a dwelling-house and stealing therefrom an article of less value than'!$20, is compound larceny, and therefore a felony as at common law; and breaking in at night with intent to steal such article is burglary.</p> <p>3. On a trial for burglary, defendant cannot prove that one W., on the night of the crime, had applied to the witness to borrow money, promising to return it in corn — which was the article stolen by the burglar — such testimony being hearsay.</p>

<p>Before Hudson, J., Aiken, October, 1884.</p> <p>The opinion states the case.</p>

Before Witherspoon, J., Aiken, April, 1884. In this case Mr. Justice McGowan, having an interest in the plaintiff corporation, declined to sit. The other two justices heard and decided the case. The opinion sufficiently states the case.

Before Fraser, J., Hampton, March, 1885. These were two actions against the defendant, tried together, for killing, in each case, a horse, one being brought by Henry M. Fuller and the other by Jack Cockrane. The opinion states the case.

<p>1. A rehearing of the case of Covar v. Sallat (22 S. C., 265) granted, certain exceptions properly before the court having been inadvertently overlooked.</p> <p>2. Whore an appeal was suspended so that appellant might move on Circuit for a new trial upon one of the issues involved, the result of which was to be certified to this court, until such certificate is furnished, the appeal cannot be heard on its merits.</p>

<p>1. A motion to dismiss an appeal was granted, counsel for appellant appearing and resisting the motion. On motion by appellant to reinstate this appeal on the docket, held, that judgment having already been rendered dismissing the appeal, the matter is res judicata. Hyrne v. Enoin, 22 S. O., 587.</p> <p>2. Failure to file affidavit of inadvertence in resistance of the motion to dismiss cannot, after judgment rendered, be relieved against under section 349 of the Code of Procedure, as there is no appeal pending or to be perfected after judgment Of dismissal.</p> <p>3. Appellant having been represented by counsel when the appeal was dismissed, section 195 of the Code does not apply. Quere: Does this section apply to the Supreme Court in any case ?</p> <p>4. A court of justice must always bear in mind that both parties to a cause have rights, and that unlimited indulgence to one will operate injustice to the other.</p>

Before Aldrich, J., Greenville, November, 1884. This was a prosecution of Benjamin F. Hutchings, John Q. Roark, and William W. Baswell, for assault and battery with intent to kill, and of a high and aggravated nature. The opinion states the case.

<p>Before Kershaw, J., Anderson, October, 1888.</p> <p>The opinion fully states the case.</p>

Before Cothran, J., Abbeville, September, 1885. The facts are sufficiently stated in the opinion of this court. The grounds in arrest of judgment are stated in the opinion; the grounds for a new trial were as follows: 1.

Before Pressley, J., Beaufort, September, 1885. The defendant, John Ohlandt, being on trial before the intendant of the town of Beaufort, for a violation of an ordinance of said town regulating the sale of liquors, demanded a trial by jury, which was refused. Upon his conviction and sentence, he appealed to the Court of General Sessions, upon the ground that the intendant erred in refusing him a trial by jury.

Before Hudson, J., Lexington, September, 1885. This was an appeal from the following judgment: The questions raised on these appeals are: 1st. Whether the Circuit Court has appellate jurisdiction. 2d. Whether at the trial below the defendant was entitled to trial by jury if demanded. Upon the authority of the case of State ex rel.

<p>Before Pressley, J., Clarendon, October, 1880.</p> <p>• The appeal in this case was from the several orders and decrees stated in the opinion, but the decision passes upon Judge Pressley’s order only, which was as follows:</p> <p>This is a case of trespass to try title. Plaintiffs sue as heirs at law of James D. Skinner. He had mortgaged the land in his life-time', and defendant bought it at a sale by the commissioner in equity, under a decree of foreclosure of said mortgage, but James D. Skinner had not been served with process in that case. Defendant desired to go into proof that he was estopped in that matter by his knowledge of, and presence at, said sale, making no,objection to the same. I did not permit said testimony, but withdrew the case from the jury, because, in my opinion, the defendant being, at the least, entitled to all the rights of the mortgagee, and being in possession of the mortgaged property, the right of plaintiffs, if any therein, could not be tried in the form of trespass to try title, but only by an action to redeem.</p> <p>It is therefore ordered, that plaintiffs, on payment of the costs of amendment, have leave within thirty days from the filing of this order to amend their complaint as they may be advised, so as to conform their action to that of a complaint to redeem the mortgaged property. If said complaint be not so amended, then defendant has leave to enter judgment of non-suit.</p> <p>After the filing of this order and a subsequent decree of Judge Thomson, in March, 1881, the defendants gave the following notice: “Please take notice, that upon the final determination of said case in said court, the defendant will appeal to the Supreme Court of said State from the order of Judge Pressley, filed on December 16, 1880, allowing the plaintiffs to amend their complaint from trespass to try title to an action to redeem; as also from Judge Thomson’s order, filed March 11, 1881, overruling the defence of equitable estoppel.”</p> <p>After the final decree of Judge Fraser, in July, 1885, the defendants gave notice of appeal, and filed exceptions, of which the first was as follows: “I. Defendant Hodge excepts to the first order of his honor, Judge Pressley, on the ground that it was ultra vires, and because it is not a lawful order. And defendant Hodge submits that no costs having been paid thereunder, no amendments could have been made, and all proceedings since are illegal, null, and void.”</p>

Before Kershaw, J., Williamsburg, October, 1884. This was a petition by Ellen O. Maurice and others, in ré George P. Nelson et al. v. James M. Nelson et al. The appeal Was from the following order of reference : A motion had been noticed for the present term, and duly served on Thomas M. Gilland, counsel for G. P. Nelson; John A. Kelley, attorney for J. IT.

Before Kershaw, J., Darlington, March, 1885. This was an action by Caroline B. Salinas, as executrix, and Richard M. Butler, as executor, of A. J. Salinas, deceased, against J. H. Pearsall, for the foreclosure of a mortgage given by defendant to Edward F. Bryan, as trustee, and assigned by said trustee to A. J. Salinas. The action was commenced February 2, 1884. The defendant denied the validity of the assignment.

<p>Before Hudson, J., Kershaw, ’September, 1885.</p> <p>The opinion sufficiently states the case.</p> <p>cited Best JEvid., 62, 228; 1 Strob., 160; 1 Green. JSvid., 368-9; 1 Sm. Lead. Gas., 196; 9 Smedes $ M., 120 ; 55 Gal., 72; 24 Id., 24; 9 Oar. f P., 418; 11 Cox Gr. Gas., 250; 3 Gar. P., 631; 2.Parker Gr. Rep., 236 ; Whart. Horn., 750 ; Whart. Or. Evid., 264, 278 ; 2 Jones, 360; 65 Mo., 325.</p>

<p>1. After voluntary appearance and trial before a trial justice, the defendant cannot object that the warrant was not signed by the officer.</p> <p>2. The affidavit which is the foundation of the whole joroceeding in a trial justice’s court (Gen. Stat., § 830), is insufficient where it fails to set forth plainly and substantially whether the offence charged was a trespass on real estate (which is beyond the jurisdiction of a trial justice, Ibid., $ 2501), or an entry upon the lands of another after notice forbidding the same. Ibid., $ 2507.</p> <p>3. The demand for a jury in a trial justice’s court, made by defendant after the State has closed its case, comes too late.</p> <p>4. It wras error in a trial justice to refuse to correct the testimony of the prosecuting witness on an essential point, when the witness testified that he had made a mistake.</p> <p>5. It was error to refuse to permit witnesses for the defence to testify to the state of feeling between the prosecutor ancl the landlord of the defendant, and then to receive such testimony from the State in reply.</p> <p>6. Witness must be notified of time, place, and person, when it is intended to prove inconsistent statements by him, but it does not appear that this rule was violated in this case.</p> <p>7. The failure of the trial justice to endorse upon the information his finding of guilty, was a mere irregularity, which cannot avail the defendant on appeal.</p> <p>8. A party put into possession of land by the owner, but forbidden to enter by one claiming to be a lessee for two years under a verbal lease, cannot be convicted of misdemeanor in so entering, under section 2507 of the General Statutes, oven if such parol lease might be sustained in a court of equity under the principle of part performance.</p>

<p>Before Fraser, J., Sumter, February, 1885.</p> <p>These were two cases of attachment against O. H. White-heart, jr., commenced December 31, 1885, one by Herman M. Myers and the other by A. E. Massman Bros. & Co. Defendant moved to discharge the attachment in both cases, and upon these motions, his honor filed the following order on February 14, 1886:</p> <p>These cases were before me on motions to discharge attachments against the defendant issued by the plaintiffs. The motions were made at chambers at Sumter, and were heard on the notice with the accompanying affidavits and all the papers in the cases — affidavits on the part of plaintiffs in support of their showing for the attachments, and on the part of the defendant in reply. Parties were fully heard by counsel.</p> <p>If it had been made to appear in the affidavits before me that, as suggested in argument, the defendant was at the commencement of these actions a resident of Florence, in the county of Darlington, the actions could not have been properly brought in this county, and the actions and the attachments would fall together. The defendant certainly knows where his residence is, and he says nothing about it. It is by no means a necessary inference, from the fact that the Sumter store is a “branch store,” that the defendant is not a resident of the county. The question as to residence, however, may be made, if necessary, in some other shape in the progress of these cases, if the defendant is advised to do so.</p> <p>It has also been insisted on in the argument with some earnestness that an attachment against an insolvent debtor is void as preference under our act in reference to assignments by insolvent debtors. It is true that under the late bankrupt acts all attachments issued against an insolvent debtor were ipso facto dissolved by certain proceedings in bankruptcy, voluntary or involuntary, instituted within a limited time after the issuing of the attachments. But Congress has power to pass bankrupt laws and the State has not. The provision above referred to was incorporated in the bankrupt act, and there is no such provision in our acts in reference to assignments by insolvent debtors.</p> <p>Where there is a general assignment for the benefit of creditors, certain dealings with the property of the debtor within ninety days of the. assignment are void if the debtor “procures or suffers” them to be made “with a view to give a preference” to a creditor who has “reasonable cause to believe” the debtor is insolvent. Eut to hold that an attachment issued by a creditor on his own motion against an unwilling debtor, and otherwise valid, is void under the provisions of our assignment acts would require a stretch of the power of judicial legislation which fortunately is very rare in the United States.</p> <p>The questions, however, still remain: Were the facts stated in the affidavits on which these attachments were issued sufficient ? and are they true?</p> <p>Taking the whole line of cases in our own books on the subject of attachments, and the recent case of Ivy v. Gaston (21 S. 0., 583), I take the rule to be this: The affidavit should state facts within the personal knowledge of the witness, and the facts so stated should be sufficient to show that the property has been, or is about to be, dealt with in the manner prohibited, and that this was accompanied with the fraudulent intent, at least prima facie. If it does not make such a case, the attachment should not issue, and if issued, should be discharged on motion. If the affidavit is sufficient on its face, the defendant may still he allowed to show by counter-affidavits that the statements are untrue, for, otherwise, the business of the country would be at the mercy of the reckless and unprincipled; and, perhaps, he may be allowed to introduce such new facts as may show that the inferences drawn from the affidavits are not the true ones. The plaintiff cannot introduce into the case any new facts or evidence of fraud; he must stand on his original case, and if that fails the attachment fails. This seems to be right in itself, as no man should be allowed to attach the property of another and hold it until he can get the evidence on which he can secure a lien.</p> <p>In the cases before me I see nothing in a proposition to creditors asking them to accept 25 cents on the dollar, or an assignment, which is improper or threatening. Paying off portions of the stock of goods to creditors who are pressing is certainly no evidence of fraud, even if the defendant had said he would make no preferences. The prices at which the segars and tobacco were sold, as mentioned in the affidavits, are not so extravagantly low as to excite in my mind any suspicion of fraud, unless there is some hidden meaning in the direction given by the defendant to his clerk, Dozier, about taking down empty barrels and putting up others. I see no harm in it. It now appears from all the affidavits that the defendant knew nothing of the alleged low sales of segars and tobacco, and that as to at least a part of the giving up of goods to certain creditors, he and his clerk were both imposed on, and were themselves the victims of a fraud.</p> <p>I am not at liberty to consider any new facts which are stated on behalf of the plaintiffs to show a fraudulent intent, and, therefore, will not undertake to say how far the statements in reference to them are to be believed.</p> <p>I therefore conclude that the affidavits on which the attachments were issued were insufficient, and that some of the more important facts therein stated are untrue in the sense that the acts done are the acts of the defendant, the clerk or managing agent being alone responsible for them.</p> <p>It is therefore ordered, that the attachments in the above stated cases be, and hereby are, set aside and discharged, with ten dollars costs in each case, to be paid by the plaintiffs to the defendant. It is ordered, that the notices of motion, and all the affidavits used on the hearing before me, be filed with the clerk, afid with the other papers in the eases.</p> <p>From this order plaintiffs appealed.</p>

<p>1. An agreement to credit a note with the, value of work done, is not payment but contract, and can be enforced only under complaint or counter-claim.</p> <p>2. The grant of administration has relation back to the death of the intestate, and legalizes all acts, otherwise valid, done by the administrator before his appointment.</p> <p>3. An agreement by an administrator to credit a note, held by her as such, with the value of work done upon lands belonging to the estate of the intestate, is not binding upon the estate, and cannot bo interposed as a defence to an action by the administrator on the note.</p>

Before Kershaw, J., Richland, July, 1885. ■ This was a claim of homestead by the defendant in the case of John W. Simonds against James Haithcock. The claim was made in January, 1884, and such proceedings were thereupon had as are stated in the opinion of this court.

Before Witherspoon, J., Edgefield, March, 1885. To the statement of the case made in the opinion of this court, it will be proper to add only, that the testator died on December 21, 1883, and that the words in which he declared his last will were reduced to writing, and sworn to by the three witnesses before the probate judge on May 14, 1884, and that they therein set forth the facts essential, under the statute, to the validity of a nuncupative will.

<p>1. A widow suing for dower is not required to make out a complete chain of title in her husband; if she prove possession during coverture, it is sufficient until the defendant disproves title.</p> <p>2. Evidence received without objection cannot be made a ground of appeal.</p> <p>3. The Circuit Judge having found that the widow had made out a prima facie case entitling her to dower, and that it had not been rebutted by the defendant’s evidence, both these findings of fact were approved by this court, the manifest weight of the evidence not being against them.</p> <p>4. Findings of fact by the Probate Court are not absolutely conclusive upon the Circuit Court on appeal, but may be reversed where clear ground is afforded for that purpose. Black v. White, 13 S. C., 38.</p>

<p>Before Pressley, J., Charleston, June, 1885.</p> <p>The opinion sufficiently states the case.</p>

Before WithehspooN, J., Edgefield, March, 1885. This is an appeal from the following decree: Plaintiffs contend that as defendant could take no interest in } land under the instrument until after the death of Tillman itson, Sr., and as said intended disposition was revocable, the trument must be construed as testamentary in its character. It .ontended that as a will the paper is invalid, as it has but two nesses.

<p>1. An attorney’s right to fees must, in every case, rest on contract made with the party himself who is charged, or with his representative. No legal claim for compensation can be founded upon services incidentally benefiting a party, other than the employer, as against that party, because of the incidental benefit.</p> <p>2. Where a plaintiif, claiming a half interest in land, brought action for partition, and the claim was resisted, but finally adjudicated in plaintiff’s favor, and the land divided, each party getting half, the defendant cannot be charged with any part of the foe due to plaintiff’s attorney.</p> <p>3. This case distinguished from Nimmons v. Stewart, 13 A O., 446.</p>

Before PRESSLEY, J., Union, October, 1884. The complaint and answers, as they appear in the “Brief,” were as follows: 1. The complaint first sets out a note, of which the following is a copy: “On or before twenty-fifth of December, eighteen hundred and eighty-two (1882), we, or either of us, promise to pay W. T. Graham, or bearer, the sum of nine hundred and eleven 95-100 dollars, cash loaned. Witness our hands and seals. “S. JONES, [l. s.] “February 23, 1882.

Before KeRSI-iaw, J., Richland, July, 1885. This was an appeal from the following Circuit decree: The report makes no recommendations, but simply stated the accounts, the master therein obeying the order of reference, and supplying the facts necessary to a decree by the court. As to the exceptions, I think they are not well taken. The decree did not commit the valuation of the improvements to the commissioners, but distinctly referred it to the master.

Before HUDSON, J., Abbeville, February, 1884. The opinion sufficiently states the case. The Circuit Judge was requested by plaintiff to charge as follows: 1. Persons non compos mentis are those who have not the regular use of the understanding sufficient to deal with discretion in the common affairs of life. 2.

Before Cothran, J., Spartanburg, March, 1885. The charge of the judge to the jury in this case was as follows: There is no doubt, under the constitution of 1868 and the acts of the legislature passed in pursuance of it, that a husband and wife may deal with each other in business relations as any other two persons. “The wife,” says the constitution, “with reference to any property that she may acquire by gift, grant, devise, inheritance, or otherwise, shall be, with regard…

<p>Before Witherspoon, J., York, June, 1885.</p> <p>The opinion fully states the case.</p>

Before Cothran, J., Williamsburg, October, 1883. This was an appeal from the following decree: On account of the lapse of time, manifest ignorance on the part of the plaintiffs of their rights, perfunctory agreement imperfectly performed, a series of annual rent notes for nominal sums, various ambiguous receipts, a multitude of chimney corner counsellors, an attempted transfer of title to the land in dispute by one of the defendants to the other, a pretended tax sale,…

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

<p>1. A plaintiff, must prove his case as made by the pleadings. In action for foreclosure, an allegation of title in the mortgagor is not required, but is involved in the other usual allegations; and in this case, these allegations were not so controverted by the defendants in possession as to make it incumbent upon plaintiff to prove title in the mortgagors.</p> <p>2. The answer not having controverted the allegation in the complaint that the defendants were claiming some interest accruing subsequent to the mortgage, the assertion of present title in themselves was now matter, and in the issue ordered they were properly required to bo the actors.</p>

Before HudsoN, J., Marion, July, 1885. This was an action by Stephen Smith against the administratrix and children of Samuel S. Smith, to recover under a covenant of warranty contained in a deed of Samuel S. Smith to Stephen Smith, the breach being a prior encumbrance fixed by the case of OiarJe v. Smith, 13 S. 0., 592. The opinion states the case.

<p>1. Where a verdict has been rendered establishing the legal title of the ■ plaintiff to the land in dispute, but judgment is suspended to await an investigation of the equities sot up by defendant as a defence to the action, an appeal would ordinarily be premature (Whitesides v. Barber, 22 S. C., 47); but the defendant here having moved for a new trial of the issue submitted to the jury, and his motion being refused, he has the right to have his appeal heard now. Code, § 11, ¶ 2.</p> <p>2. Where an administrator filed in the Probate Court an ex parte petition praying the sale of the lands of his intestate in aid of assets, and the heirs were not mentioned in any of the proceedings, in action subsequently brought by the heirs to recover the land from the purchaser at the Probate Court sale it cannot be presumed that these heirs, who were necessary parties to such a proceeding, had been brought within the jurisdiction of the Probate Court.</p> <p>3. In an action by these heirs to recover the possession of this land, the defendant alleged that the purchase money paid by him had been applied to the payment of debts of the intestate. The Circuit Judge properly submitted only the legal issue to the'jury, withholding from their consideration the equitable defence; and upon verdict rendered for plaintiffs, he properly suspended the entry of judgment thereon, and referred the equitable defence to the master for testimony and report.</p>

Before Hudson, J., Abbeville, February, 1884. 'The opinion states the case. The order of the Circuit Judge was as follows : According to the allegations of the complaint, the defendant, Ned Murphy, acquired, by his contract to purchase the small lot of land of F. A. Connor, an equitable interest or estate therein.

Before Kershaw, J., Greenville, November, 1883. This was an action by Frank & Adler against William C. Humphreys, commenced in February, 1883.

Before Hudson, J., Greenville, April, 1884. The opinion states the case.

Before Hudson, J., Greenville, April, 1884. This was an action by William D. Sullivan against P. D. Huff, C. A. Parkins, J. H. Latimer, and Hewlet Sullivan, commenced in July, 1883.

Before Wallaob, J., Edgefield, October, 1884. This appeal was from the following decree: After the death of A. W. Asbill, his estate, 'being insolvent, was settled by proceedings in the court, to which his widow, Elizabeth Asbill, was a party. In her answer to the complaint she elected to take dower, and it was ordered that dower be assigned to her.

Béfore WitheRSPOON, J., Richland, March, 1885. This was an appeal from an order of the Court of General Sessions dismissing a writ of certiorari. The opinion states the case.

Before Wallace, J., Spartanburg, June, 1885. This was an action by Jeff Thompson against the defendant company, to recover damages for furniture and other personal property burned at Duncan’s, in Spartanburg County, on the line of the Atlanta and Charlotte Airline Railway Company, then operated by the defendant. The action was commenced August 15, 1883. The opinion states the case.

Before Fkaser and Wallace, JJ., November, 1883, and April, 1885. This action was instituted by B. T. Dunlap in October, 1882, to recover possession of his interest in a tract of land, and, after his death, was continued by his sole executor and devisee, Thomas W. A¥hitesides.

<p>1. The rule is wise and salutary that requires the Circuit Judge to state his findings of fact separately; but the appellant having suffered no prejudice from the judge’s failure to state his findings of fact in this case, there is no ground for a new trial.</p> <p>2. The Circuit Judge having decreed alimony to the plaintiff upon allegations of adultery, cruelty, and desertion, this court concurred with the judgment below upon the questions of cruelty and desertion.</p> <p>3. Is adultery on the part of the husband sufficient ground of itself for alimony ?</p> <p>4. Cruelty by the husband towards the wife, or the practice by him of obscene and revolting indecencies in the family circle, is good ground for a decree of alimony.</p> <p>5. A cold and formal proposition by the husband to give the wife mere house room and support, does not condone his past offences; to have such effect, it should be a cordial overture to her to return to her home and resume the proper place of a wife.</p> <p>6. The charge for alimony should he only for the joint lives of husband and wife.</p>

<p>1. Where the defendant claims the land in dispute under a verbal gift from her father and ten years’ adverse possession thereunder, a deed of this land to her father, produced by her under notice, may be introduced in evidence by the plaintiff without proof of its execution.</p> <p>2. Plaintiff claimed as purchaser at sheriff’s sale under judgments against A., and defendant claimed under a prior verbal gift from A. and ten years’ adverse possession thereunder. Held, that A. being a common source of title, the plaintiff was not required to prove title beyond A.', or even in him.</p>

<p>Before Aldrich, J., Aiken, June, 1885.</p> <p>On March 11, 1884, G. P. Segler confessed judgment to Dr. W. H. Timmerman for $3,245.25. At April term, 1885, of the Court of Common Pleas for Aiken County, G. P. Segler obtained judgment against G. C. Coward and T. W. Coward for $446.33; and at the same term, Robertson, Taylor & Co. obtained judgment against G. P. Segler for $550.27. An execution upon this judgment having been returned unsatisfied, the plaintiffs obtained an order from Judge Aldrich, at Barnwell, on May 7, 1885, requiring the Cowards and Segler to show cause before him at Barnwell, on May 22, why the indebtedness of the former to the latter should not be applied to the judgment of plaintiffs against Segler, and, in the meantime, the Cowards were, enjoined from paying their indebtedness to Segler to any other person than plaintiffs, and Segler was enjoined from assigning or otherwise disposing of his judgment. This order was served on Segler the next day, May 8, and also on the Cowards.</p> <p>Defendant made return, that on May 8, before the order was served upon him, and in pursuance of an agreement had with Dr. Timmerman before defendant obtained his judgment against the Cowards, he had assigned this judgment to Dr. Timmerman, and had no further interest in it.</p> <p>From the oral testimony taken before the judge, and the affidavits submitted on the hearing of this return, it appeared that plaintiffs’ attorney returned from Barnwell with the order of Judge Aldrich on the night of May 7; that on the morning of May 8 attorney for defendant saw plaintiffs’ attorney in conversation with the sheriff, and from a remark afterwards made by one Moore and another by the sheriff, defendant’s attorney surmised that the sheriff had some paper to be served on Segler, but he did not know what it was, nor was it on file in the clerk’s office. This attorney thereupon got the assignment (which bore date May 7) and sent it off by a special messenger, who was instructed to beat Moore to Segler’s house, and to tell Segler to sign it at once and send it back. All this was done, and when Moore, the sheriff’s deputy, arrived an hour later the paper had been signed, and Segler said to him, “You are beat; you are too late; or words to that effect.” The assignment was brought back to defendant’s attorney.</p> <p>The judge, after hearing argument, remarked: “This is a race between creditors. Timmerman had a judgment and so did these plaintiffs here have their judgment, and the contest was to see who would get the money coming from the Cowards’judgment, but this man Segler had promised he would let Dr. Tim-merman have that money before the judgment was obtained, and in the contest Timmerman is perfectly innocent. He had nothing to do with it. It was his attorneys trying to collect a debt which a man had promised to pay. There was nothing wrrong in it. That was a contest, simply a race between creditors, and Tim-merman got the start and kept it. I think he is entitled to the money. Besides, Mr. Segler had a right to prefer his creditors.” And he thereupon passed the following order:</p> <p>This w’as a rule to show cause served on the defendant and T. W. Coward, Gr. Gr. Coward, and M. T. Holley, sheriff, to show cause why the money due on a judgment obtained by the said Gr. P. Segler v. Gr. Gr. Coward and T. W. Coward should not be paid by said Gr. G. Coward and T. W. Coward over to the plaintiffs on their judgment which they held against the defendant. After hearing the evidence herein and also after hearing argument in support of said rule by Messrs. Henderson Bros., and Messrs. Croft & Dunlap, and O. C. Jordan, contra, and after consideration I am of the opinion, as the case presents itself, that it was a race between two creditors as to who would realize the money coming from the Coward judgment. Timmerman held a valid and an honest judgment against Segler, and Segler had agreed that the Coward judgment as soon as obtained should be transferred to Timmerman in part payment (as far as he could realize thereon) of the judgment that he held against Segler. This Segler had a right to do having done so without notice of the rule herein. The assignment to Timmerman must stand.</p> <p>It is therefore ordered and adjudged, that the rule herein be discharged with ten dollars cost to be paid by the plaintiffs, Robertson, Taylor & Co., and that the defendant have leave to enter up judgment therefor.</p> <p>From this order the plaintiffs appealed and asked for a reversal upon the following grounds:</p> <p>1. Because his honor erred in dismissing the rule to show cause and ordering the money paid to W. IT. Timmerman, whereas he should have made the rule absolute and directed the money paid to the plaintiffs.</p> <p>2. Because his honor should have held the Timmerman assignment void, because the testimony showed that Segler, the assignor, had notice sufficient to have put him upon inquiry of the injunction order when he signed the assignment, and because said assignment had not been delivered when the injunction order was served on Segler.</p> <p>cited 55 Am. Dec., 718; 5 S. 0., 177; 14 Id., 241, 312; Hill. Inj., 158; Hoff. Bern., 364; High Inj., § 853; 20 S. <7., 141; 14 Wall., 69; 30 N. T., 83.</p> <p>cited Bump Fr. Gonv., 13, 15, 179,182, 184; 1 Bail, 568; Bice Oh., 300; 12 S. O., 166; Yoorh. Code, 472, a, b.</p>

<p>Before Fraser, J., Charleston, November, 1884.</p> <p>The opinion states the case. The Circuit decree was as follows:</p> <p>Under the ruling in the case of Jordan v. Moses (10 S. O., 431), an action may be brought in any county where the personal representatives of the deceased reside for an account, injunction, and to marshal the assets, and for this purpose a sale may be ordered of lands situated in any other county. In the case before the court, there would seem to be no doubt of the jurisdiction under these proceeclings to sell these lands in Colleton and Greenville Counties, if there had been no conveyance or alienation by the devisees of these lands before action brought, real estate having been made “liable to and chargeable with just debts,” * * “and made assets for the satisfaction thereof,” and “subject to like remedies, &c., * * as personal estates.” Gen. Stat., § 1983; 5 Geo. 2, O. 7, and 3 and 4, W. M., C. 14.</p> <p>I am unwilling to extend the privilege of the heir or devisee to alien the real estates and put them beyond the reach of creditors further than warranted by the cases on this subject. Warren v. Raymond, 12 S. G., 9; Smith v. Grant, 15 Id., 136; Stack-house v. Wheeler, 17 Id., 91. I infer from these cases, where the heir or devisee transfers his whole interest in fee in the land, even if in payment of his own debt, and with a knowledge on his part that the estate of the ancestor is insolvent, the rights of the creditor are transferred from the land to a personal claim on the heir or devisee, or perhaps to an equity to follow the fund which wras produced by the sale. These are, perhaps, some of the very questions the plaintiff desires to raise in these proceedings.</p> <p>The' complaint, however (and I can only look to the allegations there made), does not show any complete transfer of title of these lands to C. C. Pinckney. The conveyance to him does not seem to have been more than a life estate, as his heirs are not named. If his heirs had been named, the conveyance was only for a special purpose and a limited time, until out of the rents and profits certain debts were paid, and then he was to hold for the “benefit and behoof” of the devisees. This seems to be such a use as would be executed by the statute, and that, if the fee was out of them at all, it was only for an instant, as in the case of a conveyance of land and an immediate mortgage for the payment of the purchase money, and by which even the right of dower and the liens of existing judgments would be excluded. If this view of the legal estate is not correct, these parties have, under these deeds to Pinckney, an equitable interest in themselves carved out of the estate of the testator.</p> <p>This interest, whether legal or equitable, has been subsequently mortgaged by the devisees to C. C. Pinckney, to secure other bonds for advances made to them; and there is no allegation that the mortgagors are out of possession, or that title has been perfected under it in any- way. Warren v. Raymond, supra. These devisees, therefore, still have in themselves the equity of redemption, in the view I have above taken of it: still a part of the estate of William Henry Lowndes, which has never been out of them, whatever view may be taken of the mortgages as alienations to the extent of the mortgage debts. The allegations, that the plaintiff has been misled as to the property of the estate, and other statements in the complaint, seem to call in question the bona fides of these transactions, and, on the whole, I am inclined to the opinion, and hold, that there does not appear, by the statements in the complaint, to have been such an alienation of these lands as to deprive the creditors of the right to have some interest in them subjected to the payment of their demands.</p> <p>It is therefore ordered and adjudged, that the demurrers be overruled, and that the parties demurring have until the first day of February next to file their answers and pay the costs of the demurrers. The motion to dissolve the injunction is refused and dismissed.</p>

<p>Before Cothran, J., Spartanburg, March, 1885.</p> <p>The case is sufficiently stated in the opinion of this court.</p>

<p>An administratrix filed her petition in the Court of Probate to sell the lands of her intestate in aid of assets, making the brothers of intestate, his heirs at law, defendants. They answered, denying title of this intestate and claiming title in their father, who was also deceased. Upon this issue the cause by consent was transferred to the docket of the Circuit Court, and judgment rendered for the plaintiff and the land ordered to be sold, which was accordingly done and to plaintiff's attorney. On appeal afterwards heard, this judgment was reversed and the claim of defendants sustained. Subsequently, this attorney conveyed to the plaintiff in that cause, and she to the plaintiff here, and afterwards the land was sold under executions against the executor of the father and purchased by defendant here, who took possession, In action to recover this land, held: Under its jurisdiction in matters of administration the Court of Probate could have sold only the interest of the intestate in this land, its decree operating in the nature of a proceeding in rem and not transferring the rights of the parties before it as heirs of another party; and the proceedings had in the Court of Common Pleas, upon the transfer of the cause, being a continuation of those in the Probate Court — only in which aspect, under the allegations in this case, a Court of Equity would have had jurisdiction of the action — the sale under the order of the Circuit Court was in the nature of a probate sale, and passed the title only of the brother, which has proved to be no title at all.</p>

<p>1. The heir ia liable for the debts of the ancestor to the extent of lands descended, but such land, when in the exclusive possession of the heir, cannot be sold under judgment against the administrator, to which the heir was not a party. In such case, the land if not alienated, can be reached only by direct action and judgment against the heir, and sale of the land -thereunder.</p> <p>2. An heir cannot claim lands descended by adverse possession against the debts of the ancestor, though he may thus divest the lien of a judgment obtained against the administrator.</p> <p>3. Where creditors of an intestate gave to the administrator a paper, whereby they transferred, assigned, and set over to the administrator all their rights and interests in and to all the notes and accounts of the intestate; and bound themselves on final settlement of the estate to receipt in full for all that they might be entitled to from the notes and accounts “hereby transferred and assigned” — such paper was an assignment of all their interest in the personal assets of intestate, and not a release of the administrator. And after crediting to the claims of these creditors the amount collectible from the personal estate, they were entitled to look for the balance to the lands of intestate in the possession of his heirs.</p> <p>4. This case distinguished from Gilliland and Howell v. Caldwell, 1 8. C.. 198.</p> <p>5. Action brought by specialty creditors of an intestate, within twenty years of the maturity of their obligations, to subject to their demands the lands of intestate, which for sixteen years had been in the possession of his heirs, is not barred, the facts of the case showing no laches on the part of these creditors.</p>

Before Pressley, J., Abbeville, April, 1885. In this case, Mr. Justice McGowan having been of counsel, did not sit. These were three actions heard together — E. J. Darby against J. Y. Stribling, as administrator of James C. Willard, deceased; M. A. Murphy against the same, and N. J. Wiley against the same. The opinion states the case. cited 14 8. 61, 274. cited 1 8tory Pq., § 322; Mill Trust, *802; Perry Trusts, §§ 427-429; 11 8. 0., 152; 16 Id., 620.

Before COTHRAN, J., Spartanburg, March, 1885. This was an action by I. H. Cantrell against William Fowler and S. T. McCravy, for the recovery of a lot of land, commenced September 15, 1888. The opinion sufficiently states the case. upon the first points considered by this court, cited Code, § 88, ¶ 8 ; Qhev., 6; Ten. (N. J.), 106; 3 Id., 621; 13 Wend., 85; 29 Barb., 524; 2 Wait Prac., 373, 563; 3 Ibid., 563; Freem.

Before Cothran, J., Spartanburg, March, 1885. This was an action by A. Z. Demurest, Henry Boylston, and A. J. Haltiwanger, constituting the firm of Crane, Boylston & Co., of Atlanta, against M. C. Lipscomb. The opinion fully states the case.

<p>Before Wallace, J., Spartanburg, June, 1885.</p> <p>The opinion fully states the case.</p>

<p>Before Pressley, J., Abbeville, April,. 1885.</p> <p>The opinion fully states the case.</p>

Before Pressley, J., Greenville, April, 1885. This was an action by R. E. Bowen and Jane E. Cauble, as trustees, under the will of Henry A. Cauble, of the four children of said Henry, against Harriet M. Humphreys, to recover the possession of a lot of land in the city of Greenville.

<p>Before Pressley, J., Greenville, April, 1885.</p> <p>The opinion states the cases.</p>

Before Hudson, J., Richland, October, 1885. This was an action commenced in March, 1885, by C. C. Habenicht against Rawls & Wilhalf, John Agnew, jr., and Jennie Agnew, upon three promissory notes bearing date January 24, 1883, given to plaintiff by Rawls & Wilhalf (a mercantile firm composed of J. S. Rawls, C. H. Wilhalf, and John Agnew, jr.), and endorsed by said John Agnew, jr., and Jennie Agnew, his wife.

<p>Before Cothran, J., Abbeville, June, 1885.</p> <p>The opinion sufficiently states the case.</p>

<p>Plaintiff sued defendant for assault and slander, and defendant demurred for improper joinder of actions. Within twenty days thereafter, plaintiff served an amended complaint for assault and battery, as a substitute for the first complaint, and served a new summons and complaint for slander. Held, — •</p> <p>1. That the plaintiff had a right to serve his aprended complaint, and that the additional allegation of battery, even if a new cause of action, would not justify a dismissal of the complaint, which was good at least as to the assault.</p> <p>2: That the defence of another action pending interposed in the slander suit could not avail unless proved; but there was no other action for slander then pending, as the substituted complaint was only for assault . and battery.</p>

<p>1. Where an appeal is taken, but there are no grounds of error alleged, the appeal is not entitled to a hearing. This rule applied to this case, as the appeal was from an order refusing defendant’s motion to vacate a judgment by default, for delay in docketing the cause, when such delay was a courtesy extended at his own request, and where there was no claim of a bona fide defence.</p> <p>2. Under the present practice, a plaintiff is not out of court for failing to docket the cause within a year and a day, as the defendant has a right to docket. Eagood v. Riley, 21 S. C., 143.</p>

<p>Before Aldrich, J., Charleston, February, 1885.</p> <p>The opinion states the case.</p>

<p>1. An attorney at law has a right to be paid for professional services rendered another attorney; where there is no express contract, the law-will imply one. The fact that attorneys-sometimes from courtesy render services gratuitously to their brother attorneys does not affect this legal right.</p> <p>2. An exception, unsupported by any evidence in the case, not sustained.</p> <p>3. Whether the services were' rendered, and their value, were matters of fact decided by the jury, and no appeal lies.</p>

<p>Before Pbesslet, J., Charleston, June, 1885.</p> <p>The opinion sufficiently states the case.</p>

Before Pressley, J., Abbeville, February, 1885. Mr. Justice McGowan having been of counsel in this case, his seat in this court was occupied by Judge Fraser of the Third Circuit. James Bailey, the defendant, having made an assignment for the benefit of his creditors on January 14,1867, wrote to Francis Arnold, the plaintiff, one of his creditors, the following letter, as ■printed in the brief: Madison C. H., Fla., Feb. 2, 1867.

<p>1. An exception to the admission of a judgment roll in evidence does not raise any question as to whether the judgment so introduced was valid and legal.</p> <p>2. The purchaser at sheriff’s sale, under whom defendant claimed, having testified that she had made a search for the sheriff’s deed and could not find it, her testimony as to her purchase, her compliance, and her receipt of a deed from the sheriff, though secondary, was admissible.</p> <p>3. The judge having admitted in the reply by plaintiff testimony which he ruled to be strictly in reply, but afterwards ruled to be new matter, he did not err in permitting defendant to offer evidence in rebuttal thereof. In such cases much must be left to the discretion of the presiding judge.</p> <p>4. A rule of court having forbidden an entry of judgment before the adjournment of court, the Circuit Judge did not err in instructing the jury that a judgment entered on the day that court convened, might, in the absence of all testimony, raise a presumption that the court had on the same day adjourned, as it ivas the duty of the clerk not to enter judgments of the term before an adjournment.</p> <p>5. An erroneous instruction to the jury which could have made no possible difference in their verdict, is not ground for a now trial.</p> <p>6. A judge should not express to the jury his opinion of what has been proved, and what has not; but in stating the law he must necessarily say something about the testimony. As to any disputed matter of fact in issue between the parties, while he may state the evidence, yet he is not permitted to give his opinion as to its force and effect, or make remarks tending to influence the jury as to their finding. Pie may state the case alternatively, but he must not take the testimony from the j ury.</p> <p>7. In an action to recover land held by defendant under a sheriff’s deed, the plaintiff cannot object to defendant’s title upon the ground that the purchase money was not paid in full to the sheriff.</p> <p>8. Where a conveyomce founded on a valuable consideration, is attacked for fraud, fraud in the grantor is not sufficient, but the purchaser also must be implicated. But this rule does not apply to voluntary conveyances ; in such case a man must be just before he is generous.</p> <p>9. The judge was asked to charge the jury that “there was no authority for the sheriff to sell the land in dispute under the judgments and executions introduced in evidence.” This he declined, saying that the sale would be valid if, at the time, there was any valid judgment or execution to which the sale could be referred. Held, that in this there was no error, and that this request did not call upon the judge to charge as to what would constitute a legal judgment or execution.</p>

<p>Before Wallace, J., Richland, December, 1884.</p> <p>The opinion fully states the case.</p>

Before Kershaw, J., Lexington, June, 1885. The tenancy in this case was under the following agreement : State oe South Carolina, County of Lexington. These presents are known as such; Wm.

<p>1. Where executors made a final return, crediting themselves with debts paid, but not charging themselves with rents received from lands of the devisees, an order of the probate judge approving this return and striking a balance in favor of the executors cannot be pleaded as res judicata to an action afterwards brought by these devisees against the executors for the recovery of such rents.</p> <p>2. Where an executor takes possession of lands of infant devisees, receives the rents, and applies them in part to the debts of the testator, he is liable to an action by these devisees for the surplus; and this right of action does not terminate with his life, but may be prosecuted against his executor.</p> <p>3. The finding of fact by the master, concurred in by the Circuit Judgo, that this executor had appropriated these rents to his own use, approved; and the judgment against his estate for such rents, less the pro rata liability of these devisees for the balance found in the execu-’ tor’s favor by the probate judge, affirmed.</p>

Before Wallace, J., Chester, March, 1885. This was an action by W. A. Clark, as administrator of the estate of C. D. Melton, deceased, against Ann E. Wright, executrix, J. J. McLure and C. H. Alexander, trustees for the widow and children of G. W. Melton, deceased, the said widow and children, and W. H. Hardin and J. C. Hardin. The complaint prayed the following relief: 1.

<p>1. This court cannot consider exceptions to the taxation of costs by the clerk, the proper course being first to take the judgment of the Circuit Court upon such exceptions, and then appeal from such judgment if it is supposed to be founded upon any error.</p> <p>2. The presumption being that a public officer, and more especially a Circuit Judge, has acted in accordance with law, such a construction will be placed upon an order of the Circuit Judge, if practicable, as will make it conform to law.</p> <p>3. There being no little confusion, even in the books, in the use of the terms “costs” and “disbursements,” regard must be had to the sense in which, those terras are intended to bo used, more than to their strict technical signification.</p> <p>4. In supplementary proceedings, tho order of the Circuit Judge directed “that the plaintiff be allowed the usual costs of this proceeding to be taxed by the clerk, together with thirty dollars in addition for his disbursements.” This order did not confine tho allowance granted the plaintiff to the “thirty dollars,” and was in strict accordance with the provisions of the code. In supplementary proceedings, a party may be allowed not only the sum provided for by section 321 of the Code, but also such other costs as may be provided for the several officers of the court, including the attorneys, for any specified services in an action.</p> <p>5. A party cannot tax as costs $10 for motion for appointment of a receiver, there being no order of the court allowing the costs of such motion.</p> <p>6. Tho plaintiff’s attorney, under the order above stated, was entitled to have taxed as costs, $5 for order of injunction, $25 for five days’ references, and §3 for three sub-writs, in addition to the $30 allowed by said order.</p>

<p>Before Pressley, J., Abbeville, February, 1885.</p> <p>The opinion fully states the ease.</p>

<p>Before Pressley, J., Anderson, February, 1885.</p> <p>The opinion states the case.</p>

Before Wallace, J., Chester, March, 1885. The opinion states the case. The appeal was from the following Circuit decree: The act of 1879 (5 Stat., Ill) has been much discussed by our courts, in so far as it relates to the order of payment of the debts of a decedent. The case of Tunno v. Eappoldt (2 McCord, 188), followed by the case of Kinard v. Young (2 Rich.

Before Cothran, J., Richland, July, 1884. This was an appeal from an order overruling a demurrer at' October term, 1881, and from a subsequent decree by the same judge on the merits, which, omitting its statement, wms as follows : The contention seems to be still a,s to the discrepancy or incongruity between the recitals of the two mortgages of October 9, 1873, and the evidences of indebtedness actually produced.

Before Kershaw, J., Oconee, September, 1883. In this case, tbe honorable T. B. Fraser, Circuit Judge, sat in the stead of Mr. Justice McGowan, who had been of counsel. This was an action commenced September 27, 1875, by the administratrix of a distributee of the estate of James Johns, deceased, against the administrator of said James Johns. The case has been in this court on appeal before. See 16 S. 0., 184.