Volume 25 — South Carolina Reports

This is the second appeal in this case, the first being reported 20 S. 0., 93. Held: that where a part of the heirs and distrib-utees’resided in Ohio, and a part in West Virginia, those in the latter State could there impeach for fraud the returns made in Ohio (the domicile), those returns being used for the purpose of diminishing the estate for which the administrator was liable in Pennsylvania.

<p>1. Testimony taken by commission without objection may be objected to at the trial on the reading of the interrogatories.</p> <p>2. A witness personally acquainted with the character and location of a turn-table may testify that it was dangerous for children to ride thereon.</p> <p>3. Whore there is an absence of all testimony as to any or all material points embraced in the issues between the parties, a non-suit should be ordered. If there is any pertinent testimony, whether weak or strong, the force and effect of which has to be weighed, the case must go to the jury.</p> <p>4. On motion for non-suit, the judge can only determine whether there is any pertinent testimony ; on motion for new trial, he may determine its sufficiency. Hence, a judge may grant a new trial to defendant where the same testimony would not permit a non-suit.</p> <p>5. There being testimony that the turn-table was dangerous, was located in an exposed place, easily accessible, unfenced, unguarded, and unlocked ; that the plaintiff was of an age when he could not understand that the turn-table was dangerous, and that he had no right to inter-meddle with it — there was some pertinent testimony upon the issue of negligence, and a non-suit was properly refused.</p> <p>6. The judge declined to charge that “the degree of care required of defendant is only such as is exercised by well regulated railroads over their turn-tables, and that if defendant exorcised such care in this case, there was no negligence” — saying that other railroads’ negligence could not excuse negligence by this defendant, and that it was for the jury to say whether there was negligence here. In this there was no error. What well regulated railroads do may be very different from what prudence would require them to do.</p> <p>7. The judge should charge the jury that negligence is the absence of ordinary care, but the jui-y must determine whether the facts proved amount to negligence.</p> <p>8. The judge properly left it to the jury to say whether the plaintiff was of sufficient ago, intelligence, and discretion to be brought within the rule of contributory negligence.</p> <p>9. An infant might know that it was wrong and improper for him to play on a turn-table, and yet not know that it was dangerous.</p> <p>10. Where the incapacity fi-om age of an infant plaintiff of eleven years is alleged in the complaint and denied in the answer, the judge could not charge, as matter of law, that plaintiff was sui juris and subject to the general law applicable to persons of acknowledged capacity.</p> <p>11. The law of North Carolina, applicable to an injury like the one here received, was not proved by the more citation of a North Carolina decision declaring the law. The volume of North Carolina Statutes, or of North Carolina Reports, should have been offered in evidence.</p> <p>12. The charge in this ease was not on the facts.</p>

The appeal was from the following decree, omitting its statement of facts: The legal questions arising upon the facts in this cause were discussed with striking ability at the hearing. The case, I think, lies within a narrow compass. These plaintiffs certainly had an interest in the land sold by the trustee, and although alive at the time of the proceedings to procure authority to sell, were not made parties.

<p>1. An interlocutory order of injunction, made “without prejudice,” restraining the defendant from enforcing his judgment against the plaintiff, until a decision is reached upon the merits, is not appealable.</p> <p>2. An exception in the words, “Because his honor erred in making said order, which is contrary to law,” is too general to be considered.</p>

<p>The opinion fully states the case.</p>

<p>1. In action against a railroad company for injuries sustained by plaintiff from a passing train of defendant at a highway crossing, prima facie proof of negligence on the part of the defendant is sufficient to compel the judge to send the case to the jury, and prima facie proof of contributory negligence on the part of the plaintiff is not sufficient to withdraw the case from the jury: because, whether the plaintiff contributed to the negligence or not is a fact which no judge should determine on prima facie evidence.</p> <p>2. Contributory negligence is a matter of defence with the burden on defendant of proving it. To relievo the defendant from all liability in this case, the proof of contributory negligence on plaintiff’s part should have been clear and convincing.</p> <p>3. A failure by the Circuit Judge to grant a non-suit upon a point not brought to his attention can hardly be ruled as error.</p> <p>4. The requirements of the statute law as to signals at a railroad crossing, and to be given by an engine on approaching a crossing, did not supersede other proper signals, nor give a new cause of action under these statutes; therefore, in an ordinary action for damages, alleging negligence, the omission of these signals may be given in evidence, although not alleged in the complaint.</p> <p>5. Sections of the General Statutes requiring a railroad engine to carry a boll of a certain weight and to give certain signals at a road crossing (g 1483), and holding the company liable for all damages caused by the collision, if a failure to give such signals contributed to the injury, unless the person injured was guilty of gross or wilful negligence, which contributed to the injury, or was acting in violation of law ($ 1529), are not unconstitutional.</p> <p>6. The codification of the statutes adopted in 1882 under the requirements of the constitution, and known as the General Statutes, is valid, notwithstanding it did not relate to but one subject, and was without a title.</p> <p>7. It is within the power of the legislature to enact laws regulating the running of railroad trains across public highways,' and declaring the omission of prescribed signals to be negligence.</p> <p>8. Where the judge states to the jury only a part of the testimony, the verdict will not be set aside for that reason. In the conduct of a cause below, something must be left to the judgment and impartial discretion of the trial judge.</p> <p>9. It was not error to charge “that it is not material in law whether the injury results from direct collision, or the damage is done by the inj ured one being thrown under the train without actual collision with the wagon.”</p> <p>10.Section 195 of the Code gives a defendant no right to ask relief from a judgment obtained against him after a trial at which he was present.</p>

<p>This was an action by J. W. Sitton against R. M. Macdonald, commenced September 24,1884. The opinion states the case.</p>

This was an action by W. W. Sale, as clerk of the court, to foreclose a mortgage. It was commenced in November, 1881, in Colleton County, and afterwards transferred to Charleston County by order of the court. On motion of plaintiff’s attorney, the order of reference, stated in the opinion, was passed, the brief not stating whether the defendant, Klinck, assented or objected, but it would seem that it was done without his knowledge.

In this case Hon. W. II. Wallace, Circuit Judge, sat in the place of the Chief Justice. The facts of this case are stated in the opinion of the court. The Circuit decree, omitting its findings of fact, was as follows: The object of this action is to set aside this conveyance of Webb, and subject the property to the debts of the said copart-nership. The case was argued on the Circuit chiefly on the ground of fraud.

<p>The opinion fully states the case.</p>

<p>Upon the petition of the widow of an intestate, a tract of land belonging to the intestate’s estate was assigned to her as a homestead in 1879. She had no children of her own, but there were children of the intestate by a former marriage. These children being all of age, and none of them residing with the widow on this homestead, two of them instituted this action against the others and the widow for partition. Held, that the widow was entitled to retain this homestead during life, and that therefore the complaint was properly dismissed.</p> <p>Mr. Chief Justice Simpson concurred in the result, and Mr. Justice McIver dissented.</p>

<p>The opinion fully states the case.</p>

<p>This appeal was heard only by Mr. Justice McIver and Judge Hudson, acting associate justice, the other two justices of this court having been of counsel in the cause. The opinion of this court, and the statement of the case in 17 S. C., 289, are sufficient for a proper understanding of the point involved in this appeal.</p>

In this case Judges Hudson and Fraser sat in the place of the Chief Justice and Mr. Justice McGowan, who had been of counsel in the cause. The opinion states the case.

<p>The opinion fully states the case.</p>

<p>The opinion sufficiently states the case.</p>

<p>1. A complaint alleging that defendant as agent of plaintiff had received certain goods for sale and refused to account therefor, states a cause of action.</p> <p>2. Where an agent received fertilizers for sale under instructions to secure deferred payments by agricultural liens duly filed, which he neglected to do, the principal, instead of suing for this breach of agreement, may bring action simply for an accounting, in which case the burden is on defendant to account for all the fertilizers received by him for sale.</p>

<p>1. Where the Circuit Judge, in a cause properly before him, determined none of the issues involved, but recommitted the case to the referee to take and report further testimony upon the matters at issue, an appeal does not lie from such order of recommittal.</p> <p>2. It is within the discretion of the Circuit Judge to suspend the hearing of a cause for the purpose of obtaining further testimony, if in his judgment the ends of justice require it.</p>

<p>1. A paper in form a promissory note, given for the purchase of fertilizers with the addition of an^agreoment to remit all cash collected and all notes taken for the sales of said fertilizers, was declared on as a promissory note. Held, that if the paper were not a promissory note, still the allegations of the complaint were sufficient, and the plaintiff on proof of the paper was entitled to recover.</p> <p>2. But the note was a promissory note, notwithstanding the additional collateral agreement. National Bank v. Gary, 18 S. C., 285.</p> <p>3. If a defendant is in doubt as to the character of the claim made against him, the proper remedy is a motion to have the complaint made more definite.</p>

This was an action by Sam Boatwright against the Wilmington, Columbia & Augusta Railroad Company and the Northeastern Railroad Company, lessees of the Central Railroad Company, for an injury done to him by a train of freight carson the Central Railroad at Sumter while he was coupling two cars. The plaintiff was a brakeman and car coupler of the train. The accident occurred on the night of September 29, 1883, and this action was commenced September 10, 1885.

This was an appeal from the following decree: This case was heard by me at the extra term of the court held for Laurens in December, 1885.

This was an action by J. F. Walker against the Columbia & Greenville Railroad Company, commenced in January, 1885, to recover damages for three mules and two colts, alleged to have been negligently killed by a freight train of the defendant on December 26, 1884. The plaintiff proved the killing of the stock ' on the railroad track and their value, and that at the place where killed, the railroad ran through a pasture used by plaintiff and an adjoining land owner.

<p>1. A note for 8500, payable twelve months after date “with interest at the rate of one and one-half per cent, per month” draws the stipulated interest until maturity, but only the legal rate thereafter.</p> <p>2. Judgment having been obtained upon this note against the executor of the maker for more than was actually due, legatees under the will of the maker are concluded by the judgment, and cannot prevent a sale of their testators property thereunder.</p> <p>3. Testator having, by his will, directed his executor to sell his lands at the executor’s option in such manner as he shall think best, the net proceeds thereof to be equally divided between testator’s children, the direction to sell was absolute, the land was converted into personalty, and the children were legatees and not devisees.</p> <p>4. Whether the executor himself might not have the erroneous calculation of interest in the judgment corrected by a proper proceeding for that purpose, is a question not raised in this appeal.</p>

The Circuit decree fully states the case. It may be added, however, in view of subsequent changes in the law, that land forfeited to the State for want of bidders at a tax sale, under sections 124 and 125 of the act of 1808 (14 Stat., 63) was directed to be resold by the act of March 12, 1872 (15 Stat., 164); and it was under this act of 1872 that the county auditor of Chester attempted to sell this forfeited land on June 3, 1872.

<p>The opinion states the case.</p>

<p>Upon the only point decided by the court, the opinion fully states the case.</p>

<p>1. In action for recovery of a tract of land, the plaintiff having failed to adduce any testimony tending to show that he had title to the land described in the complaint, or any part thereof, or that defendant was in possession of or had trespassed upon any part of said land, a non-suit was properly granted.</p> <p>2. A person in actual possession of a part of a tract of land may extend his possession to the whole tract by producing a deed or plat covering the whole, and may claim title to the entire tract by showing his exclusive possession thereof under this color of title for the requisite statutory period.</p> <p>3. But a claim under color of title is not shown by producing a grant and plat which had never been in the possession of the claimant or of those under whom he held; nor by a grant and plat of land, of no part of which land he had ever been in the actual possession.</p> <p>4. Where the defendant pleads a general denial and a further defence by way of confession and avoidance, the admissions of the latter cannot be used by the plaintiff to establish the issues raised by the general denial.</p>

This was a petition by R. A. Lynch and Bachman & Youmans, attorneys, to be paid a fee for services rendered in establishing the title of Gary & Tappan to real property in the city of Columbia, and that the amount of such fee be decreed to be a lien upon said real property. The case was .referred to the master and afterwards came before the Circuit Court on exceptions to his report.

This was an action by John D. M. Shaw and wife, Leonora, against C. D. Barksdale, master, Nathan Henry, executor, William L. Boyd, and John W. Henry, commenced January 26, 1885. The opinion states the case.

The opinion fully states the case. I. Whilst the railroad has a right to demand a bill of lading before delivery, its production is not necessary. Surely, the plaintiff has in no sense been damaged here, if the R. & D. R. R. Co. delivered to the party entitled to receive.

<p>The opinion sufficiently states the case.</p>

The facts of this case are fully stated in the opinion. The judge made the charge and refused the requests quoted in the exceptions.

<p>This was an action by II. W. Mitchell against P. P. Tóale. The opinion states the case. The charge of the Circuit Judge to the jury was as follows :</p> <p>The first question for you to determine is whether this was a contract for a year. You are to determine that from the testimony and from the circumstances of the case, the nature of the employment, how the matter was treated during the time, and all such matters. The rule of testimony is that where one party to a cause, if he be credible, testifies positively to conversations between himself and the other, and the other party testifies that he does not remember, that is not a contradiction, unless he goes further and testifies that he was in the habit of noting such things, and would, have been apt to have remembered it, and to the best of his knowledge and belief it did not take place. You must judge of that from the whole testimony.</p> <p>If you come to the conclusion that it was a contract by the year, then the next question is: Was the discharge for good cause ? Good cause is such cause as you, as business men, knowing what are the annoyances and defects in matters of business, would consider, fairly and conscientiously, cause for the discharging of a clerk. You have heard the testimony on that point on both sides, and you must determine it by that testimony. I am asked to charge you that the plaintiff in this case must show that there was no good cause for the discharge. That I decline. The burden of proof is on the other side, and the employer must show that he had good cause for discharging the clerk if the contract w'as for a year.</p> <p>I am also asked in the first request to charge you a matter which I decline to charge, because I consider the proposition too general. My charge to you upon that point is this, that an employer who has discharged a clerk has the right to recall his discharge and require him to go to work again. He has undoubtedly that right, and upon the subject of this request I chai'ge you, that if Mr. Tóale told him to go to work again, or told him anything else which could fairly be construed into a recall of the discharge, and the restoring him to his old place, he had the right to do so. But if he required of him particular work which he claimed was left undone, and should have been done in the term of his employment, then that would not release him from his obligations connected with the discharge. It would only give him the right to prove that that work was neglected, and to deduct from his liability whatever it cost him to have it done. So that if you construe Mr. Toale’s proposition in this case as not fairly to admit of the construction that he recalled this employee’s discharge and instructed him to go to work again under the old contract, then that would not release him of his liability by reason of his having discharged the clerk. It must be a recall and restoration to his old position. If under those circumstances the clerk refuses to go to work again, then it is an acceptance of his discharge, and he must take the consequences.</p> <p>I am requested to charge you that the law implies a promise that the clerk, or book-keeper, or servant, shall obey all the reasonable orders of the master ; and that any breach of this promise justifies the discharge. I have interlined the word substantial; and I charge you that the law does imply such a promise, and that any substantial breach of such a promise does authorize a discharge. It must be such a substantial neglect of duty, such a disobedience of orders, that a reasonable man would consider it good cause, to discharge him for. If you find any such neglect of duty, and any such neglect of orders coming within that meaning, then Mr. Tóale was justified in discharging him. If not, then, if it was a contract for a year, he was not justified in discharging him.</p> <p>I am requested to charge you that if this was a contract for a year, and the contract ran on from year to year, then the year contract is implied in the renewal. If one be employed for a year, and the year expire, and he go on in the same employment ■without another contract, then another new year’s employment is implied. That is what I charged in the case of Heyward against the Union Bank, I think. That is-what I charge now, at any rate.</p> <p>The second plaintiff’s request to charge is concerning the burden of proof. I have already charged you that where a person justifies a discharge for cause, the burden of proof is upon him to show that there was cause.- If, under the law, as I have laid it down, you consider that the plaintiff is entitled to his compensation, then yon will give him his half year’s salary, deducting what he earned during that time. You will also deduct the thirty-eight dollars which he admits stands on the books against him. The circumstances of that over-draft is a question entirely for you. You must judge of the whole matter.</p> <p>Under the law, as I have laid it down, is the plaintiff entitled to recover ? If the defendant discharged him for good cause, your verdict must be for the defendant, for the thirty-eight dollars which he has charged against him. If the contract was for the year, and the plaintiff was not discharged for good cause, you will find for the plaintiff the amount claimed, there being no proof that he could have earned more than he gives credit for.</p>

<p>The opinion states the case.</p>

<p>This was an action by T. A. Wilbur & Son against G. E. Hutto and E. E. Hughes, sureties on the administration bond of John L. Sease. The opinion states the case. It may be added, however, that the judgment of the plaintiffs against John L. Sease, as administrator, was a judgment by default.</p>

This was an action by J. Earle Lewis against the Richmond & Danville Railroad Company to recover the possession of five brood mares, held by defendant at Seneca, a station on the Atlanta & Charlotte Air Line Railroad, then under lease to the defendant company and operated by it. The opinion states the case.

■ This was an action by Theodore G. Barker against Charles Deignan, commenced in May, 1884, to recover a lot of land covered with water in the city of Charleston. The judge charged the jury as follows: Where paper titles are admitted in evidence, I am bound to charge you as to their effect. I charge you that under those grants of 1857, produced, to Mr. Samuel G. Barker and his will, and the subsequent deed to Theo.

The opinion sufficiently states the case. The Circuit judgment was as follows : Under act of 1882 Williamston township voted a subscription of $6,000 to the stock of said company. It was levied by tax, in two instalments, on the property in said township, including that of the Pelzer Manufacturing Company.

<p>1. An order confirming the clerk’s taxation of costs is not the final judgment in the cause, in the sense that on an appeal therefrom the prior judgment dismissing the complaint, and other previous orders may he excepted to and reviewed.</p> <p>2. Consent by defendants to an order of reference “to take the testimony and report the same to the court,” was not an election as to the manner of trial or the waiver of any defects or irregularities; and defendants having obtained judgment, their attorneys were entitled to the costs of all references held under such order, notwithstanding they disregarded at the final hearing the testimony so taken.</p> <p>3. The complaint having been dismissed with costs and no appeal taken, the plaintiffs were liable for all the costs of the references in the action, even though the judge reached his conclusion without considering the testimony taken at such references.</p> <p>4. Attorneys attending before the clerk at the taxation of costs are not entitled to the costs of a reference; nor is the clerk entitled to costs for making report of his taxation.</p>

<p>' This was an appeal from an order rendered in open court. The opinion states the case.</p>

<p>1. It is the policy of the law to maintain judicial sales, and therefore a purchaser is not affected by irregularities in the proceedings or error in the judgment; but he is bound, at his peril, to see that the court had jurisdiction of the subject matter, and that the proper parties were before the court.</p> <p>2. A partition ordered by the Probate Court prior to the decision of Davenport y. Caldwell (10 8. C., 317) will not be declared void for want of jurisdiction in the Probate Court over the subject matter.</p> <p>3. A judgment of the Probate Court, regular on its face and showing proper service on the parties to it, cannot be contradicted by parol testimony in a collateral proceeding ; or from the judgment itself, it may be, that the court would assume that the summons had been properly issued and served.</p> <p>4. But where the record itself showed that no summons had been issued, and that no application for appointment of guardian ad litem had been served, the record affirmatively shows that an infant defendant under fourteen years of age was not a party to the cause, and not bound by the judgment therein.</p> <p>5. An infant defendant not personally served as required by statute, is not bound by the answer filed by her guardian ad litem.</p>

<p>1. Section 11, of article X., of the Constitution, which gives “the proceeds of all estates of deceased persons who have died without leaving a will or heirs” to the State School Fund, applies as well to those dying after the adoption of the constitution as to those dying before; and an act of the legislature vesting such an estate in an individual is repugnant to this constitutional provision.</p> <p>2. Where a person claims under this statute and demands partition of such estate, the opposing party may resist plaintiff’s claim by asserting this invalidity in his title.</p> <p>3. After a complaint is dismissed, there cannot he a decree adjusting rights of co-defendants; hut the Circuit Judge erred in dismissing this complaint without passing upon all the issues involved.</p>

<p>This was a controversy without action between Paul T. Hayne, as trustee of Mary McMahan, and the children and grandchildren of Mrs. Frances Irvine, deceased, submitted January 6, 1886. The case involved the construction of the following codicil to Daniel McMahan’s will: “It is my will and desire, and Iso direct, that in case my daughters Mary and Elizabeth, or either of them, should die without issue lawfully begotten and living at their or either of their deaths, then and in that case all the property, both real and personal, and moneys and choses in action which they may then have left from the provisions by me made for them in my said will, shall be given to the lawful heirs of my daughters, Mrs. Nancy Hill, the. wife of Wm. R. Hill, and Mrs. Frances Irvine, the wife of Dr. O. B. Irvine, to be divided equally between the children of my said daughters, Mrs. Hill and Mrs. Irvine, to have and to hold to them and their heirs forever share and share alike.”</p> <p>The Circuit decree was as follows:</p> <p>The question submitted for the determination of the court is, whether the children of Pinckney take under the codicil the share that their father would take if living, or, do the children of Frances Irvine, deceased, living at the death of Mary McMahan, take to the exclusion of Pinckney’s children?</p> <p>It will be observed that the provision made by testator in his will for his daughters, Mary and Elizabeth, was not limited to the lives of the daughters with remainder over, but the entire estate provided for them under the will was given to them by testator. The codicil only provides, in the event of the death of Mary and Elizabeth without issue, what disposition shall then be made of the property “which they may then have left from the provisions by me made for them in said will.” It seems to me that under the codicil no rights or interests could atttach to the children of Mrs. Hill and Mrs. Irvine until the death of Mary and Elizabeth without issue. In this view I do not think that Pinckney, at the time of his death, had acquired under the codicil such an interest as would descend to his children. But for the use by the testator of the term “heirs” in the codicil, the case of Wessenger v. Hunt, 9 Rich. Hq., 464, would be conclusive upon the point submitted to the court.</p> <p>In this case Chancellor Wardlaw upon Circuit says: * * *</p> <p>Under the codicil the time fixed for distribution is at the death of Mary and Elizabeth without issue, which was a time future to the death of the testator. The testator could not have intended to use the word ‘'-heirs” in the codicil in its technical sense, as the children of Mrs. Irvine could take under the codicil, upon the death of Mary and Elizabeth without issue, whether their mother ivas then living or dead. I am satisfied that the testator used the wmrd “heirs” as sjmonymous with the wmrd “children” in the codicil, as the description of a class of persons, whom he intended to take, upon the death of his daughters, Mary and Elizabeth, without issue. In my judgment there is nothing in the codicil in. conflict with this view, construing the word “heirs” to mean “children.”</p> <p>I construe, under the authority of Wessenger v. Hunt, supra, that the children of Mrs. Irvine, who were living at the death of Mary McMahan, take under the codicil, to the exclusion of the children of Pinckney, and it is so ordered and adjudged.</p> <p>From this decree the children of Pinckney appealed upon the following grounds: I. Because Pinckney Irvine, having been living at the date of the codicil to the will of Daniel McMahan, and also at the time of his death, took such an interest under said codicil as entitled his children, the said defendants, to inherit the same through him at the death of Mary McMahan. II. Because the judge erred in holding that the testator used the word “heirs” in said codicil in the sense of “children,” and thus construing the gift to the heirs of Nancy and Frances as a gift to their “children” living at the death of Mary. III. Because the testator expressly gave the property in question to the heirs of Nancy and Frances, and his reference to the children was' simply to show the manner in which, or the quantity of estate which, said heirs should take respectively, and therefore his honor should have held that the children of Pinckney, as heirs of Frances, took among them the share -which Pinckney would take if living.</p>

<p>1. In the distribution of an intestate estate, the equitable doctrine of retainer for barred debts due to the estate by a distributee does not apply to' the interest of such distributee in the real estate of the intestate, or in the proceeds of the sale thereof.</p> <p>2. But such doctrine does apply to the personal estate, even though (1) the distributee has been discharged in bankruptcy as to such debt, (2) the note was held and claimed by the intestate for over twenty years as heir at law of the deceased payee, but without administration, or (3) the debt was assigned to the administrators of the intestate as a part of his distributive share in the deceased payee’s estate, after the dis-tributee debtor had assigned his distributive share to third parties.</p> <p>3. The admission of a debt in a bankrupt’s schedule of liabilities, is sufficient to rebut the presumption of payment. So, too, is a judgment obtained.</p> <p>4. After twenty year's without acknowledgment, the law presumes that the debt has been paid; for such a debt, therefore, the share of a dis-tributee in the creditor’s estate cannot be retained.</p> <p>5. Where a distributee is indebted to the estate by a judgment having lien on lands, his interest in the proceeds of the real estate may be retained on account of such judgment.</p> <p>6. Wilson v. Kelly, 16 S. 0., 216, affirmed.</p> <p>7. The master should not testify as to facts which he is called upon to decide.</p>

The appeal in this case was from the following Circuit decree: The action has been brought by the plaintiff as an incorporated company.

To the ease as stated in the opinion, it may be added that the witness Groeschel was the clerk and brother-in-law of defendant and was put up by plaintiff only to prove the execution of a receipt on the back of a mortgage.

<p>Defendants insured their residence with the plaintiff company against fire for five years at long rates, payable annually in advance, giving their note for the deferred premiums, with a stipulation that the whole note should become due on failure to pay any instalment at maturity. The policy provided that on non-payment of a premium the policy should be void, and on non-payment of an instalment the policy should not be binding during the period of such default. Defendant failed to pay his second instalment. Held, that the plaintiff was entitled to recover the full unpaid balance of the note. 1</p>

The construction of the written contract in this case was submitted to the Circuit Judge, without a jury, who passed the following judgment thereon: By the terms of the contract, on the failure of the assured to pay the first instalment of the note (as was the case here) the policy ceased to insure. In other words, the entire consideration of the promise to pay utterly and entirely failed. From that time there was no risk upon the company.

<p>This was an action by Baxter H. Moore against L. M. Gentry, sheriff, and F. M. Trimmier. The opinion states the case.</p>

<p>1. In action for dower proof of the husband’s possession during cover-ture is prima facie sufficient evidence of the husband’s seizin, but this is rebutted by showing that he never had a legal title.</p> <p>2. A defendant in dower may be estopped from denying the title of the husband, under whom he holds by deed, but not so, where he never received deed under his contract of purchase, the husband himself having never had a legal title.</p>

This was an appeal from the following decree: In determining the rights as between plaintiff and the cestuis que trust, under theissues presented by the pleadings, it will be proper to consider: 1. Whether or not it was a breach of trust for the trustee to invest the trust funds in the house and lot upon the terms above set forth. II.

<p>The opinion fully states the ease.</p>

The order of Judge Pressley involved in this appeal is stated in the opinion of this court.

The facts of this case are stated in the opinion. The report of Master Sass upon these facts was as follows: The present claim is made on behalf of the holders of the B' bonds, bearing the special endorsement, to be paid ratably from the fund of $11,535.60, above stated to be the product of the sale of the mortgaged property of Welsman, in preference to the holders of other B bonds, likewise guaranteed by Welsman & Tren-holm, but not bearing the same endorsement.

<p>The opinion fully states the case.</p>

<p>The opinion fully states the case.</p>

<p>1. A question of jurisdiction may be first raised in this court, and is not ■waived by a failure to make the objection in the court below.</p> <p>2. The Court of Common Pleas of Abbeville had no jurisdiction to ren-dev judgment against an administrator (resident in Greenville) of an intestate (also resident in Greenville) for an account of his administration of an estate of which he had been appointed receiver in Ab-beville, where the estate was located.</p> <p>3. Cause remanded, with leave to apply for a change of venue.</p>

<p>The case is fully stated in the opinion of this court.</p>

This was an action by Joseph Ashley, committee of William Ashley, against W. A. Holman and W. A. Bailey, executors of William Ashley, sr., deceased.

<p>1. Parties to a cause, properly in court in person or by guardian ad litem, are bound by a decree passed in open court setting aside a sale previously made in that cause and also by a decree at chambers ordering a ro-salo; and they will not be permitted fifteen years afterwards to question such decrees.</p> <p>2. Parties to a cause knowing of a combination to chill the bidding at a judicial sale made therein cannot, after long acquiescence, have the sale set aside; but parties to the conspiracy cannot obtain the aid of the court in specifically enforcing their illegal agreement with their co conspirators.</p> <p>3. The parties held bound by the decree vacating the first sale in the case and by the order of re-sale, are entitled to their proportionate interest in the securities taken at the resale.</p> <p>4. Petition for rehearing refused.</p>

This was an action by James M. Lowry against Hugh S. Thompson, governor, W. E. Stoney, comptroller general, and others, as Commissioners of the Sinking Fund, for the recovery of a title deed. Upon the point decided by the court, the opinion fully states the case. '

<p>The appeal in this case was from the following Circuit decree:</p> <p>It is not necessary that authorities should be cited in support of the proposition that the payment of trust funds upon the debt of the trustee or of his wife is a breach of trust. Upon the consummation of such an act the sureties upon the bond of the trustee become immediately liable. The person to whom the payment is made is also immediately liable for the amount so received, if he was aware that the sum so paid him was paid in trust funds. If, however, the payee received in good faith, without notice, and the money itself cannot be identified, no right of action exists against him. 1 Perry Trusts, § 346; Hudnal v. Miller, 4 Me-Qord, 300. Now, as matter of fact, did Nicholson know or have reasonable grounds of belief that the money paid him by Colton was trust funds ? It will be remembered that it was in January, 1884, that Nicholson went with Thomas Bailey to Colton. There is nothing to show that any of the subsequent steps in the matter of the appointment of the guardian was known to Nicholson, or that he knew when Colton received his ward’s money. Colton was in active business as a merchant, supposed to be handling more or less money every day, and it was past the middle of April, three months after the interview between Bailey, Colton, and Nicholson, before Colton paid Nicholson the eight hundred dollars. Although Colton was all the time insolvent, there is no sufficient proof to show in opposition to Nicholson’s testimony that Nicholson knew7 of his, Colton’s, insolvency. Colton testifies that he did not tell Nicholson that the money he paid him was trust funds, and Nicholson testifies that Colton did not tell him, and he did not know it. I therefore find that Nicholson did not know that seven hundred dollars of the sum paid by Col-ton was trust funds, and that he, therefore, is not a party to the breach of trust and not liable in this action.</p> <p>There can be no doubt that seven hundred dollars of the money paid to Nicholson was funds of Mary R. Bailey. The facts show it and Colton admits it. Mrs. Colton was also made aware of it, and agrees to save Nicholson harmless from any liability in consequence of it. She thus, after being aware of the facts, accepts the benefit of the payment of trust funds by her husband upon her debt, and by indemnifying Nicholson assumes the burden of defending the transaction. John E. Colton paid the money on his wife’s debt. The payment of the debt was an obligation upon her. To the extent of the payment he discharged her obligation ; he, therefore, did act and assumed to act for her. When the matter is afterwards brought to her attention by Nicholson, she accepts the advantage of the payment and claims to hold it. A manifested intention, with knowledge of the circumstances to accept and retain the benefits of an act by any one for whom the act was done, is a ratification of the act, whether previously authorized or not, and makes the actor agent of the person who ratifies. Story Agency, §§ 252, 253, et seq.</p> <p>It is obvious, therefore, that the execution of the second mortgage to Nicholson by Mrs. Colton and the stipulation entered upon it in regard to the repayment by Mrs. Colton of the money paid to Nicholson by John E. Colton was a ratification of the payment, which had the effect to make John E. Colton the agent of Mrs. Colton in the transaction. Such a ratification not only created the agency, but had the same effect as an original authority to bind the principal in regard to third persons. “An act done by an agent which would, if authorized, give an action for damages to a third person against the principal, will, if subsequently ratified by the principal, give the same right to damages against him, as much so as if the action was founded on a ratified contract of the .agent. In short, it is treated throughout as if the act was originally authorized; for the ratification relates back to the time of the inception of the transaction and has a complete retroactive efficacy. * * Hence it is that if the agent has made a contract without authority from his principal or beyond his authority, and it is afterwards ratified, the principal may generally sue and be sued thereon, in the same manner and with the same effect as if he had originally given the authority.” Story Agency, §§ 244, et seq.</p> <p>It thus appears from the law and the facts that John E. Col-ton was in effect acting by the direction and authority of his wife, Mrs. R. W. Colton, when he paid the money to Nicholson for her. The legal effect of the transactions taken together is, that John E. Colton committed a breach of trust by the direction of his principal, Mrs. R. W- Colton, of which Mrs. Colton received the benefit. This state of facts makes Mrs. Colton liable for the repayment of the money. At page 472 of Story’s Agency, the following language occurs: “If the principal should direct his agent to commit a trespass, or to make a conversion of the 'property of a third person, or he should subsequently ratify or adopt the act, when done for his own use or benefit, he would be liable as an original trespasser or wrong-doer.”</p> <p>It is therefore ordered and adjudged, that John E. Colton do account for his actings and doings as guardian of Mary R. Bailey, and for any sums received by him and not properly paid out as such guardian, and for all sums properly chargeable against him as such guardian, the plaintiff is entitled to judgment against John E. Colton and his sureties, A. D. Spears and Joshua C. Spears.</p> <p>It is further ordered and adjudged, that for the sums for which the plaintiff is entitled to judgment, as above adjudged, John E. Colton is primarily liable as between him and his sureties, and that the plaintiff do have judgment against Rosalie W. Colton for the sum of seven hundred dollars and interest thereon from April 18, 1885, and that for this sum Mrs. Colton is primarily liable, as between her and the sureties upon the guardianship bond of John E. Colton, and for the payment of this sum so much of the bond and mortgage executed by Mrs. Colton to W. A. Nicholson on oth February, 1885, shall stand as security, and the plaintiff here shall have all such rights in regard to said security necessary to enforce her right under it.</p> <p>It is further ordered and adjudged, that as to W. A. Nicholson the complaint be dismissed.</p>

<p>The opinion fully states the case.</p>

<p>1. H, a slave was in possession of a lot from!840 to 1870, when he died, devising this property by metes and bounds to his widow and son, who remained in possession of the portions devised. Under a judgment obtained against H in 1868, and another against his executor after his death, this lot was sold by the sheriff and purchased by the plaintiffs, who brought this action against the said devisees for its recovery. Held, that the judge erred in refusing to charge the jury that, “If they believe from the evidence that the defendants are in possession under H, either as devisees or heirs at law, then they must find for the plaintiffs, unless the defendants have shown an independent title in themselves by connecting themselves with a grant, or proving that which presumes a grant.”</p> <p>2. Proof of the judgment, execution, and sheriff’s deed is conclusive evidence of title in the purchaser as against the judgment debtor until the defendant shows a better title.</p> <p>3. And this rule also apnlies to parties claiming as devisees under the judgment debtor, upon the principle that in actions for the recovery of real property it is not necessary to prove title beyond a common source — particularly so, where the sale is under a judgment having lien before the devise took effect.</p> <p>4. Having entered under the will of H the defendants could not after-wards disclaim title by devise and assert an independent title in themselves by adverse possession against the creditors of H.</p>

This was a motion to dissolve an attachment, which wjas issued upon the following affidavit: Personally appears Francis W. Kerchner, one of the plaintiffs above named, who, on oath, says: 1. That a cause of action exists in favor of the above named plaintiffs against the above named defendants on the joint and several note of E. 0.

<p>The opinion sufficiently states the case.</p>

<p>1. The payee of a sealed note assigned it when past due, and under seal guaranteed “the payment of the same without demand or notice of nonpayment by the makers.” Held, that the liability of the guarantor to the assignee was primary, and that the guarantor was not discharged by want of due diligence on the part of the assignee in pursuing the original obligors.</p> <p>2. The guaranty having been given prior to the code, action thereon was not barred in four years, as under the former system of pleading the action would have been debt on specialty and not covenant.</p> <p>3. A question as to the proper form of a judgment cannot be considered in this court until it has been passed upon on Circuit.</p>

<p>1. A testator directed by will that his property (all personalty) should be sold, and the proceeds applied to the payment of his debts. Held, that this bequest was not such an alienation in the sense of the statute as would defeat the widow’s claim to an exemption under the homestead law.</p> <p>2. The modes provided by the homestead law of defeating a claim of homestead (alienation and mortgage) cannot be extended by implication.</p> <p>3. A person may defeat his own right to homestead and that of his family after him by an alienation during his life-time; but a bequest cannot defeat it, because the bequest does not take effect until the right to' homestead has become vested in the widow who survives him.</p> <p>4. It is the policy of the law to favor a homestead exemption, especially to a widow and children, against the creditors of the debtor.</p>

<p>This was an action that involved the construction of the following deed:</p> <p>Know all men by these presents that I, J. Morgan Timmons, of the District of Darlington, in the State aforesaid, for and in consideration of the love and affection I have toward my wife, Josephine B. Timmons, and with the view to secure to my said wife and her issue a comfortable maintenance and support, &c., and for the further consideration of ten dollars, to me paid by Theodore J. Cannon, at and before the sealing and delivery of this deed, have granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release, unto the said Theodore J. Cannon all that plantation and tract of land containing four hundred and twenty acres, more or less. * * * Also the following named slaves, to wit: * * * To have and to hold the said land and slaves, and the future issue and increase of the said slaves, to the said Theodore J. Cannon and his heirs forever.</p> <p>In the trust and confidence, nevertheless, that the said Theodore J. Cannon, and his heirs, shall stand seized of the said lands, and hold the said slaves and their increase, subject to and for the following uses and purposes, trusts, and remainders; that is to say, after the full payment and satisfaction of all my just debts, the said trustee and his heirs shall suffer me to receive the income of said property, or to use and possess the said property during my natural life, the annual income of said property thus received to be appropriated by me to the support and maintenance of my said wife and' her issue, either now living or which may hereafter be born, and to the education of said issue, free from the future debts, contracts, and liabilities of myself and said wife ; if my said wife shall survive me, and at my death there shall be living issue of my said wife by me, then the said property shall be held as to one moiety to the sole and separate use of my wife for life, and as to the other moiety to the use of such issue and their heirs forever. * * * The said Theodore J. • Cannon and his heirs shall hold said property in the further trust and confidence, that upon the joint request in writing of myself and wife, or upon the request of the survivor, the said Theodore J. Cannon and his heirs shall sell the Avhole or any part of the said property, and invest the proceeds in other property, either real or slaves; and the property so purchased shall be held subject to the same uses and trusts, limitations and restrictions, as are herein expressed of and concerning that which is hereby conveyed, and on such sale the purchaser shall not be responsible for the proper application or investment of the proceeds of sale; also that the said Theodore J.'Cannon and his heirs, upon the joint request in writing of myself and wife, shall convey by deed, in proper form, the whole of the property hereby conveyed to such other person or persons as myself and said wife may nominate and appoint, as a trustee or trustees, in the stead of the said Theodore J. Cannon and his heirs, and such substituted trustee or trustees shall have the same rights, powers, duties, &c., as are hereby vested in the said Theodore J. Cannon and his heirs.</p> <p>In testimony whereof, I have hereunto set my hand and seal this the 28th day of December, in the year of our Lord eighteen hundred and fifty-eight, and in the 83d year of American independence.</p> <p>The Circuit decree was as follows:</p> <p>The defence is that John has no estate subject to levy and sale under the terms of the deed, the legal title being alone in the trustee. The deed provides, among other things, that “if my said wife shall survive me, and at my death there shall be living issue of my said wife by me, then the said property shall be held as to one moiety to the sole and separate use of my wife for life, and, as to the other moiety, to the use of such issue and their heirs forever.” Nrw, the donor did die leaving him surviving his wife, Josephine, and their issue, two sons, John and James. In these two sons, upon the death of their father, one moiety of the land vested absolutely in fee — that is, to them and their heirs forever, according to my interpretation of the deed.</p> <p>What duty has the trustee to perform in and about this moiety? If there was any contingency about these respective interests during the life-time of the father, there has been none since his death. At any time since their father’s death in 1863, these sons could have demanded that their shares be set apart in sever-alty, free and discharged of the trusts of the deed. By silent operation of law, the fee, eo instanti the death of the father, passed from the trustee into them, severing their estate from that of the mother. The interest of John became subject to levy and sale. No duty of the trustee, no scheme of the trust, no right, title, or estate of the trustee, could be invaded by a transfer of his interest and a severance by partition. We hold that ever since 1863 he has had a right to enjoy his share in severalty and in fee, and that the plaintiff has become lawfully vested of this estate and is entitled to partition.</p> <p>To Josephine B. Norwood, or to her trustee, must be allotted the one moiety to be held under the terms of the deed, and of the other moiety the one-half will be allotted in fee to the defendant, J. Maxey Timmons, and the other half to the plaintiff, as the purchaser of John’s interest. And it is so ordered, adjudged, and decreed. Whether the plaintiff upon the death of Mrs. Norwood will have a share in her moiety, cannot now be determined, but that question is for the future.</p> <p>But I will not order the writ in partition to issue in the absence of a trustee to represent the legal title to the moiety of Mrs. Josephine Norwood. The defendants, in their answer, insist that the trustee is a necessary party to the action, and in this I concur. The legal title of the trustee, T. J. Cannon, who is now deceased, so far as the widow’s share goes, is vested in his oldest male heir, who should be made a party defendant, in order that the partition shall be final and conclusive on all concerned. Let the living eldest male heir of T. J. Cannon be made a party defendant, and the final judgment be till then left open.</p>

<p>The opinion states the case.</p>

<p>The opinion states the case.</p>

This was an action by W. D. Connor, as agent, against Elizabeth C. Rennelcer, for damages for breach of a contract made by her through J. H. Renneker, jr., her husband and agent. The opinion states the case.

<p>These were actions by certain remaindermen to recover two tracts of land sold under order of the Court of Equity in 1845, in. a proceeding to which none of the remaindermen were parties, although some of them were then in esse. See 22 S. C., 823.</p>

This was an action by R. C. Brabham, as administrator of Zil-phia E. Brabham, his wife, against James E. Crosland and the sureties on his bond, for an accounting of his administration of the estate of his ward, the said Zilphia. The action was commenced in June, 1884.

<p>1. A creditor, holding a joint and several bond secured by a mortgage of each of the obligors upon their lands respectively, instituted his action of foreclosure, in which each of the defendants claimed to be a -mere surety. Held, that the court properly determined first the relation of the defendants towards each other, but such relation having been determined, the Circuit Judge erred in recommitting the cause to the master for an adjustment of accounts between these defendants without decreeing a foreclosure.</p> <p>2. B having borrowed money from A for the use of C, to whom B paid it, both B and C giving their bond secured by a mortgage of their lands respectively, the lands of B should be first sold under a decree of foreclosure ; but upon such sale, B would be entitled as equitable assignee to be reimbursed out of the lands mortgaged by C.</p>

<p>The opinion sufficiently states the case.</p>

This was an appeal from an order of non-suit. In granting the order the Circuit Judge made the following remarks: From the little time I have had to consider the authorities relied on by the plaintiff, I do not see that I am bound by these decisions out of the State. It seems to me that the decisions relied on are not founded upon a correct view of the relations of these employees to the railroad company and each other; although the decisions quoted are from eminent sources.

The opinion states the case. The Circuit decree was as follows: It has already appeared from the nature of the proceedings, as well as from the statement of facts agreed upon, that the main question involved is that of homestead, pure and simple, and to that I propose to confine myself.

The opinion states the case. The Circuit decree was as follows: The plaintiffs were bound to prove the alleged corrupt combination of the sale and chilling of the bidding by a clear preponderance of evidence. Fraud when alleged must be proven satisfactorily.

The opinion sufficiently states the case. The Circuit decree was as follows: After an attentive consideration of the testimony reported in this case, and the argument of counsel, I am satisfied with the master’s report. It is alleged that the plaintiff cannot bring this action, because he is not the legal holder and owner of the Crot-well judgment against Seth Pool, and no other creditor of Seth Pool has joined in the action.

<p>Decree of Witherspoon, J., Union,</p>

<p>Decree of Hudson, J., Spartanburg,</p>

<p>Judgment of the Circuit Court of Spartanburg (Hudson, J.)</p>