Volume 26 — South Carolina Reports

Before Wallace and Hudson, JJ., Fairfield, February, 1885, and February, 1886. The appeal in the case first above stated was from the following decree of Judge Wallace: Under this agreed statement of facts, the question is, whether W. W. Ketchin’s right of homestead exemption in this land, while he owned and occupied it, still attaches to the land after he has conveyed it by deed to another.

Before Kershaw, J., Chester, October, 1885. The opinion states the case. The Circuit decree was as follows: This case was heard upon the report of the referee and exceptions taken thereto. The case is fully stated in the report, and it is not necessary to repeat the statement here. I shall first consider the exceptions taken by Mr. Patterson on behalf of W. T. D. Cousar & Son. 1.

<p>1. Where a judgment creditor agreed to compromise his judgment, and then assigned it to one who made the payment of such compromise, the assignee cannot claim a greater amount from the judgment debtor.</p> <p>2. Where a son advances money to pay off an outstanding judgment against his father at the request of the latter and with the creditor’s consent, he becomes equitable assignee of the judgment to the extent of his payment. In this case there was an agreement that there should be an assignment.</p> <p>3. When a tenant in common is entitled to reimbursement for improvements, stated. Where such a tenant makes improvements which add to the value of the common property, and at the same time is chargeable with rents and profits, the latter should be credited pro tanto with the increased value due to the improvements.</p>

Before Cothran, J., Union, March, 1884. The opinion fully states the case. The plaintiff should not be required to comply with his bid, because it was made under a gross mistake and misapprehension of law and fact. 2 McQord Oh., 461; 2 Bail., 623; 1 Ilill Oh., 260; Bail. JEq., 505. These cases are not overruled by 4 Rich. JEq., 353, and 20 S. 0., 317. See, too, 4 Dana, 301; 3 B. Mon., 510; 21 Conn., 139; 7 G-a., 64; 6 Harr. J., 500; 33 Am. Rep., 471; 15 Id., 184.

Before Kershaw, J., Richland, July, 1885. This was an action by Marie C. Joyner against the South Carolina Railway Company to recover the value of two mules belonging to pin intiff, which were killed by a mixed train of the defendant company on its track on the evening of November 17,1884. The plaintiff proved the value and ownership of the mules, and the fact of killing.

<p>The defendant not being a resident of the county in which he was sued, the Court of Common Pleas for that county, while without jurisdiction to try the cause on its merits, had the right to order its removal to the proper county.</p>

Before Witherspoon, J., Kershaw, February, 1885. The appeal was from the following Circuit decree: The cause was heard upon the report of the master and plaintiffs’ exceptions thereto. Upon notice before the hearing, the defendant could have required plaintiffs upon motion to state severally and distinctly the cause of action as well as to make the pleadings more definite and certain.

<p>Under the charter of the city of Anderson, the mayor has no power to hear and determine protests as to an election held in that city under the local option law, his duty being simply to declare the result as certified to him by the managers of election.</p>

Before Aldrich, J., Darlington, March, 1886. This was an action by Thomas J. Walker against the Wilmington, Columbia & Augusta Railroad Company, commenced May 26, 1884. The case came to this court on the following exceptions : 1. Because his honor erred in receiving the testimony of R. M. Walker, a witness for the plaintiff, as to the terms of the alleged contract, there being no evidence of his authority to bind defendant by contract. 2.

<p>This was an action by Julian M. Bethea against the Northeastern Railroad Company upon the cause of action stated in the opinion.</p>

Before Pressley, J., Marion, June, 1886. This was an appeal from an order granted by the Circuit Judge at his chambers in Darlington on June 9, 1886, granting leave to plaintiff to amend his complaint. The complaint and answer were filed in 1882. Defendant appealed upon the following exceptions: 1. Because his honor, Judge Pressley, at chambers had no authority of law to grant the order allowing plaintiff to amend his complaint.

Before Hudson, J., Richland, October, 1885. This was an action to recover two hundred acres of land. The plaintiff purchased 902 acres at sheriff's sale as the property of Robert Adams, the ancestor of the present defendants, and obtained possession of 702 acres thereof, but the defendants declined to surrender the remaining 200 acres thereof, alleging that it had been properly assigned as a homestead to Robert Adams, and therefore did not pass at the sheriff’s sale.

<p>1. After condition broken in a chattel mortgage the title vests in the mortgagee, and if the property be seized under execution against the mortgagor and sold, the execution creditor and the constable are liable to the mortgagee in damages for such wrongful act.</p> <p>2. The Circuit Judge properly fixed the damages at the value of the mortgaged property as ascertained by the sale (it being less than the mortgage debt), and properly held that upon payment thereof the lien of the mortgage should be released.</p> <p>3. The mortgagee might have followed the mortgaged property, but he was not bound to do so.</p>

<p>1. After the grand jury for the year 1886 were drawn, and summoned, under the law as it then stood, to attend on the first Monda3r of January, a statute was passed changing the term of court to the second Monday of January. Held, that the grand jury attending on the second Monday under this writ of venire was a lawful body.</p> <p>2. Objections to the regularity of a venire, by which a grand jury are summoned, come too late after verdict.</p>

Before Aldrich, J., Fairfield, September, 1886. This was a prosecution against Sandy Robertson for rape. The opinion fully states the case as it appeal’s in the appeal record. cited Gen. Stat., § 2643; 1 Bish. Cr. Proc., § 1112; 23 Mow., 2; Whart. Cr. Lato, §814; Taylor Maid., § 1083; 1 Mill., 251; 49 Ind., 24; 1 Bish. Cr. Proc., § 975h) 96 III., 209; 44 Wise., 282; 12 Tex. App., 583; 68 Ala., 476 ; 1 Bish. Cr. Proc., § 1124. cited 15 S. 0., 389; Whart. Or.

<p>In the absence of any law limiting the punishment of petit larceny to one hundred dollars fine or thirty days imprisonment, trial justices have no jurisdiction of petit larceny, but it is within the exclusive jurisdiction of the Court of General Sessions.</p>

<p>1. The indictment in this case, by a reference back to its preceding allegations, charged with sufficient certainty the time and place of the mortal stroke.</p> <p>2. Defendant having been once arraigned on a charge of murder and a mistrial had, an arraignment at his second trial was unnecessary.</p> <p>3. The Circuit Judge committed no error in permitting the jury to disperse for the night, pending a murder trial, neither party objecting.</p> <p>4. Where the Circuit Judge distinctly charged correct propositions of law in the very words submitted by counsel, he committed no error in failing to add, “and I so charge you.”</p> <p>5. A charge to the jury must bo considered as a whole, and the meaning of every sentence determined by the context.</p>

<p>1. The decision of this court in Ho,•¡ford v. Wynn, 22 8. O., 309, stated, and held that the court did not there pass upon the legality of the assignment of homestead recited in that case.</p> <p>2. An assignment of homestead as against a debt contracted prior' to the constitution of 1868 is null and void, and may therefore be disregarded whenever encountered.</p>

Before Fraser, J., Darlington, November, 1885. The opinion states so much of the case as was involved in the appeal. The Circuit decree, omitting its statement of the facts and pleadings, was as follows : Several questions were made as to the admissibility of testimony which was taken dowm subject to the exceptions.

<p>Before Hudson, J., Abbeville, October, 1886.</p> <p>This was a prosecution for murder. The opinion states the case.</p>

<p>Before Kershaw, J., Lancaster, September, 1885.</p> <p>Upon the points decided by this court, the opinion fully states the case.</p>

Before Hudson, J., Spartanburg, September, 1886. The paper introduced by defendants to defeat the plaintiffs’ recovery was as follows : State oe South Carolina. \ Deed of Spartanburg District. J Conveyance.

Before Hudson, J., Spartanburg, September, 1886. This was an appeal from the following Circuit judgment: T. E. Moore, as assignee of the judgment and execution in the above entitled case, seeks by summons to renew the execution issued upon the said judgment, which was recovered on April 80, 1869. The defendant, Ben.

<p>A complaint alleging that one defendant fraudulently obtained a mortgage from plaintiff as additional security, and that after the debt was fully paid this defendant instituted an action to foreclose said mortgage, in which suit this plaintiff appeared and employed an attorney, who neg-. ligently failed to defend; that judgment of foreclosure was obtained, sale had, and the other defendant purchased and was now in possession — fails to state a cause of action (1) against the purchaser, because he is protected by the judgment under which he pur-chased; and also (2) against the mortgagee, becanse the matters charged were necessarily involved in the former causo and are now, therefore, res judicata..</p>

Before Witherspoon, J., Anderson, February, 1886. Upon the return of this case to the Circuit Court under the order of this court (23 S. G., 388), a jury trial of the legal issue raised by defendant was waived, and the cause was heard by the Circuit Judge without a jury, on the pleadings and testimony taken and reported by the master. The opinion states the case.

<p>Before Fraser, J., Richland, April, 1886.</p> <p>The opinion states the case.</p>

Before Hudson, J., Lancaster, March, 1886. This was an action, entitled “John P. Hunter, sheriff of Lancaster County, against J. B. Mobley, D. O. Potts, and J. Q. McManus, county commissioners of Lancaster County.” The opinion states the case. ■

Before Fraser, J., Chester, July, 1886. • This appeal involves the correctness of an order of the Circuit Judge directing W. A. Clark to pay personally the costs in the case of Ciarle v. Wright, 24 S. C., 526.

Before Witherspoon, J., Orangeburg, May, 1886. The charge of the Circuit Judge upon the matters involved in this appeal was as follows: Now, gentlemen of the jury, what is the case submitted to you? The State charges the defendants, Jack Prater, Bill Gordon, and Titus Ferguson, with murder, in this: That Jack Prater on the 14th of July, 1885, last year, in this county, with malice aforethought, with a certain gun shot and killed one Andrew Jackson.

Before Kershaw, J., Greenville, July, 1886. _ The facts of the case, as agreed upon by counsel, are stated in the opinion. In return to the writ of certiorari, the trial justice reported as follows : ■ The above cause was heard before me on the 8th day of June, 1886, Plaintiff and defendant both appeared in person and were represented by counsel. Testimony was submitted on behalf of plaintiff; the defence put up no witnesses.

Before Hudson, J., Spartanburg, September, 1886. This was an action for partition under the facts stated in the opinion. The Circuit decree was as follows : The referee finds the relinquishment to be defective in the omission of the word “inheritance,” but that this word ought to be supplied by the court as Eliza clearly intended that it should be there, and that the complaint should be dismissed.

<p>Before Hudson, J., Lancaster, March, 1886. .</p> <p>The opinion states the case.</p>

<p>Before Hudson, J., Laurens, June, 1886.</p> <p>The opinion states the case.</p>

<p>Before Kershaw, J., Union, March, 1886.</p> <p>This was an action by the heirs at law of B. W. Sexton against G. T. Hollis. The opinion states the case.</p>

<p>Before Kershaw, J., Pickens, June, 1886.</p> <p>The opinion fully states the case.</p>

<p>Before Pressley, J., Barnwell, November, 1885.</p> <p>The opinion fully states the case as contained in the appeal record. ' -</p>

<p>Before Kershaw, J., Greenville, July, 1886.</p> <p>The opinion fully states the case.</p> <p>cited Gen. Star,., §§2014, 2015; 22 S. 0., 108; 23 Id., 393; Bail. Bq., 236; 16 Wall, 277, 577, 584; 13 Id., 40; Bump Bank. (10th edit.), 810, 829, et seq.</p>

Before Hudson, J., Pickens, September, 1886. This was an action for partition and account. The plaintiffs were the heirs at law of Moses Kennemore, and the defendants, together with Moses Kennemore, were the heirs at law of George Kennemore. The point at issue was the shares of the parties, dependent upon whether Moses, by partition .made in his life-time, had parted with his interest in the land, the subject of the action.

<p>The allegation in an affidavit that the lienor “has sold a portion of his crop and has refused to pay the amount due, with intent to defeat this lien,” ' is sufficient to support a warrant to enforce an agricultural lien. This case distinguished from Segler v. Coward, 24 S. C., 119.</p>

<p>1. A railroad company, as a common carrier, is bound to furnish safe cars for freight and to transport securely; and, therefore, it is liable for injury done to stock, while being carried on its own line, by a defective car in which the stock was received from a connecting line.</p> <p>2. The defendant is not entitled to a non-suit upon the strength of a written contract introduced by him upon the cross-examination of one of plaintiff’s witnesses.</p> <p>3. A common carrier is bound to make safe delivery of all goods entrusted to its carriage, unless lost by the act of God or the public enemy, but be may exempt himself by special-contract, except for negligence. And the burden of proof is on the carrier to show a loss from an excepted cause.</p> <p>4. The judge could not properly charge that if the jury thought the defendant and its connecting line were partners, the defendant was liable only by the terms of the contract under which the connecting line carried the stock — for it was a disputed question of fact, whether there was any special contract with these lines; and besides, such a charge would exempt the defendant from a liability for negligence.</p> <p>5. A written freight contract between the shipper and the initial railroad company construed by its terms to be limited to the shipping road, and not to extend to other roads over which the freight was transported to the destination mentioned in such contract.</p> <p>6. An agreement, to be binding, must be understood and assented to by both parties.</p> <p>7. The acceptance (or assent to the use) of a defective box-car, by the shipper, does not relieve a railroad company from liability for damages caused by such car.</p> <p>8. Horses shipped by railroad and not delivered — the measure of damages is their value at the point of destination.</p>

Before Witherspoon, J., Charleston, July, 1886. This was an action by Sarah James, claiming to be the widow of Henry James, deceased, against Martha Mickey and Miley Grant, sisters of the ■ deceased, and two other defendants in possession, for a partition of a lot of land in Summerville. The action was commenced in Berkeley County in March, 1886, and thence transferred by consent to Charleston County. The defendants denied that plaintiff had ever been the wife of Henry.

Before Pressley, J., Berkeley, June, 1885. The report of master Leland in this case was as follows: This case was referred to me under an order of this honorable court, dated July 17, 1884, to take the testimony and report upon the issues of law and fact involved in the same. I have been attended by the solicitors in the case from time to time, and find the pleadings in the case all correct. The references have been numerous, and the testimony taken very voluminous.

<p>Before Hudson, J., Pickens, September, 1886.</p> <p>This was an action by Jesse Crenshaw against Sarah Julian and George W. Julian, her husband, commenced in January, 1886. The opinion states the case. It does not appear in the Brief what was the consideration of the debt for which the judgment was confessed.</p>

<p>1. Section 1196 of the General Statutes, which fixes the rate for the storage and weighing of cotton, and imposes a forfeiture for a greater charge, is a penal statute and must be construed strictly.</p> <p>2. This statute prohibits the making, not the paying, of a greater charge than that therein prescribed. Therefore, the owner of a lot of cotton cannot recover any forfeiture from his factor for paying excessive weighing and storage charges.</p> <p>3. A factor to whom cotton has been consigned for sale on commission is the agent of the consignor, and all acts done by the factor within the scope of his agency are the acts of his principal; and if such factor pays a wharf owner illegal charges for weighing and storage, the remedy of the principal, under this statute, is against the wharf owner and not against the factor.</p> <p>4. In action by a principal against his agent to recover a penalty under a statute, the liability of the agent to account, or for malfeasance, cannot be raised.</p> <p>5. Defendant, the agent, was not bound to prove a negative — that he had not made, but only paid, the charges complained of — still, he had the right to so prove on the cross-examination of one of plaintiff’s witnesses.</p>

<p>Before Wallace, J., Berkeley, February, 1886.</p> <p>The proceedings in this case were founded upon the following affidavit:</p> <p>Personally appeared before me, E. T. Legare, atrial justice in and for the County of Berkeley, Sylvie Moultrie, who, being duly sworn, says that one Stanley Dixon was at some time past holding certain premises of one Parish Anderson at a monthly rent, which was due and payable the 8th day of each month, and that he has failed to pay said monthly rent when same was due, and that he was notified on August the 20th that such contract of rent would cease, and possession having been demanded by Sylvie Moultrie, agent of said Paris Anderson, he has, notwithstanding such notice, held over and refuses to yield possession.</p> <p>The notice to show cause, signed by the trial justice, was as follows:</p> <p>To Stanley Dixon: Whereas Sylvie lyioultrie has, this 2d day of November, made oath that you are in possession of certain lands and tenements of one Parish Anderson, without warrant or authority of law, and that you refuse to yield possession of the same, you are hereby required to show cause before me, at my office at Bee’s Ferry, on the 9th day of November, A. D. 1885, at four o’clock, why you should not be ejected from the premises aforesaid.</p> <p>Other matters are stated in the opinion of this court.</p>

<p>Before Wallace, J., Charleston, March, 1886.</p> <p>Action by Dorothea Blohme against Mary B. Lynch, commenced December 3, 1885. The opinion states the case.</p>

<p>1. The complaint alleged that defendant had received a deed oí conveyance from, the father of plaintiffs, the consideration in part being the agreement by defendant to pay to the plaintiffs the sum of ?100 each, and the judgment demanded was that defendant be decreed to perform his agreement and pay this money, and that this debt bo declared a lien on the land, and that the land be sold for its payment. Held, that it was purely an action at law for the recovery of money under contract. The prayer for relief does not give character to an action.</p> <p>2. This court has no jurisdiction to review findings of fact by the Circuit Court in actions at law.</p> <p>3. General exceptions not considered.</p> <p>4. Parol evidence is admissible to show the manner in which the consideration or purchase money expressed in a deed of conveyance is to be paid and to whom payable.</p> <p>5. After consenting to an order referring all the issues in a law case to the master and his report thereon, a party to the cause cannot demand a jury trial.</p> <p>6. And the Circuit Judge has the right to review and reverse the master’s findings of fact in such case.</p>

Before Pressley, J., Sumter, February, 1886. ,• This was an action by W. J. Fullwood, assignee, to recover from W. D. Blanding, as administrator, &c., the balance realized from a mortgage of H. M. Pringle, after payment of-a debt to the executor of Edward A. Fullwood.

<p>This was an original application to this court by John W. Bennett for a writ of certiorari. The opinion states the case.</p>

<p>Before Witherspoon, J., Greenville, April, 1886.</p> <p>The opinion fully states the case.</p>

Before Witherspoon, J., Greenville, April, 1888. This was an action commenced by James IT. Whitner, and after his death continued by D. P. Yerner, his administrator, against Hewlett Sullivan. The opinion states the case.

<p>1. The provision in section 1826 of the General Statutes, that “no property shall be seized under a distress warrant for rent, except such as belongs to the tenant in his own right,” applies as well to property found on the demised premises as to that which has been removed away.</p> <p>2. After condition of a chattel mortgage is broken, the landlord cannot distrain the mortgaged property for rent due by his tenant, the mortgagor ; because such property does not then belong to the tenant in his own right, but to the mortgagee.</p>

Before Witherspoon, J., Abbeville, February, 1886. Upon the case, as stated in the opinion, the master, to whom all the issues had been referred, reported the following conclusions : I find as matters of fact: 1. That the note for $150 is not secured by the mortgage. 2. That J. C. Ellis and G. W. Con-nor made a conditional tender of the amount of the mortgage to Mr. Gary, the attorney for Salinas. 3.

<p>1. Unclei- proceedings by a landlord before a trial justice for the purpose of ejecting a tenant, whether rent was due, and whether the parol contract between the parties created a tenancy by the week, or the month, or the year, were questions of fact, which cannot be reviewed either in the Circuit Court or in this court, under a writ ot certiorari.</p> <p>2. A question as to the constitutionality of an act of the legislature should be raised by exceptions duty taken.</p> <p>3. The legislature may provide for a trial without jury, where in the same or analogous cases trial by jury did not exist prior to the constitution of 1868. In cases of landlord and tenant, no such right obtained prior to 1868, the proceeding before two magistrates and twelve freeholders not being a “trial by jury.”</p> <p>4.' Section 1819 of the General Statutes, which provides a summary mode of ejecting tenants holding over, is not rendered unconstitutional by its failure to provide for a jury trial, that mode of trial not having existed in analogous eases prior to the present State constitution.</p>

Before Hudson, J., Richland, November, 1885. The case is fully stated in the Circuit decree, which was as follows: Upon the line of the Spartanburg, Union & Columbia Railroad, now maintained and operated by the Columbia & Greenville Railroad Company under a lease, is a station called “Shelton,” at which there was a very good depot for freight and passengers until the building was burned by the Federal army in February, 1865.

<p>Before Witherspoon, J., Charleston, July, 1886.</p> <p>This was an action by M. E. Bermingham against the executor and legatees and devisees of W. C. Forsythe, deceased. The claim was for wages due plaintiff by deceased down to June 1, 1883, and running back prior to 1876. The claim was proved, inter alia, by a memorandum. book covering entries for these several years, with interest on annual balances, and a balance struck on June 1, 1883, of $1,999.04, which includes an item of $122.67, interest on the amounts entered above it. Whether any or all of these entries were in the handwriting of testator, the witnesses were not agreed.. Other matters are stated in the opinion.</p>

Before Fraser, J., Richland, April, 1886. A statement of this case is made in the opinion of this court. The deed of partition is there sufficiently stated.

<p>1. The statute of limitations, as such, has no application to an action on a sealed instrument executed prior to 1870. But the courts will presume payment after the lapse of twenty years, if there is nothing to rebut such a presumption.'</p> <p>2. After this presumption of payment is complete it can only be rebutted by such proof as would take an action upon a promissory note out of the statute of limitations.</p> <p>3. The rebuttal of this presumption by a part payment is not upon the theory of a new promise, but of an admission by which the old debt is acknowledged to be unpaid. The statute of limitations creates a legal bar to the action, but where there is no statutory bar, lapse of time merely raises a presumption of payment, which may be rebutted.</p> <p>4. Part payments within twenty years after maturity made by the principal obligor with the knowledge of the surety, his brother and partner, rebut the presumption of full payment by either the principal or the surety.</p> <p>5. This action on a bond distinguished from the case of Walters v. Kraft, 23 S. C., 583, which was on a promissory note.</p>

<p>1. It is well settled that since the act of 1791 (5 Stat., 169) a mortgage, is not a conveyance of any estate, except where the mortgagor shall be out of possession, but is simply a lien to secure the payment of a debt: ;-</p> <p>2. The act of 1797 (5 Stat., 311), which gives to releases of the equity of redemption by a mortgagor the same force and effect as if the act of 1791 had not been passed, was not intended' to repeal the act of 1791, nor to restore a mortgage in such case to its common law operation of conveying the legal title, but simply gave to such a release the effect of a conveyance. The same result follows from section 2299 of the General Statutes.</p> <p>3. ITence, where a mortgagee takes a release of the equity of redemption, his legal title is acquired at the time of such release, and does not relate back to the date of the mortgage.</p> <p>4. A release of the equity of redemption has all 'the essentials of a deed of conveyance, and the act of 1797 makes it effectual as such.</p> <p>5. Since .1791 the equity of redemption means, in this State, the legal title remaining in the mortgagor, which may be levied and sold under execution, or transferred by deed of conveyance.</p> <p>6. Whether a release of the equity of redemption, properly construed, discloses an intention to keep the mortgage open for the protection of the mortgagee, is a matter for the court; and whether such intention otherwise existed, was a question of fact to be submitted to the jury. This case distinguished from Agnew v. Railroad Company, 24 S. C., 18.</p> <p>7. After the execution and delivery of a mortgage, judgment was ob- ■ tained against the mortgagor, after which the mortgagee took from the mortgagor a conveyance of the equity of redemption. The judgment creditor then levied, sold, and purchased the land. Held, .that the mortgage was satisfied, and the conveyance to the mortgagee was subject to the then existing judgment lien; and therefore the purchaser at sheriff’s sale was entited to recover the land from this mortgagee.</p>

<p>1. One partner is not bound by a sealed instrument executed by'his copai’tner in the name of the firm, unless it is shown by direct testimony or from circumstances that he had previously authorized such an instrument, or had subsequently ratified it.</p> <p>2. Where an instrument, as e. g., a single bill, requires a seal, the seal ■ cannot be treated as surplusage ; nor can a partner be held liable on a sealed note executed by his copartner because that he would be liable if the seal had been omitted.</p> <p>3. This court cannot take notice of the effect of the laws of another State upon a contract in suit here, unless those laws be properly proved.</p> <p>4. There is no legal presumption that a partner has authority to bind his copartner by a sealed instrument. Whether there was previous authority or subsequent ratification, is a question of fact for the jury.</p> <p>5. A partner does not ratify a sealed note in the firm-name, executed by his copartner, by acknowledging his liability thereon, unless he knew at the time that it was a sealed note.</p> <p>6. Where action is brought against a firm on sealed notes, calling them promissory notes, an amendment alleging indebtedness on the account for which the notes were given does not substantially change the claim, and should be allowed.</p> <p>7. A refusal to permit an amendment of the complaint is not ordinarily appealable; but -where the refusal is based upon a legal ground, it is.</p> <p>8. Plaintiff’s right to amend should not be affected by the fact that his motion was made after non-suit ordered, and not renewed after the order of non-suit was vacated at the same term.</p>

<p>1. A mortgagee who buys the mortgaged estate by private agreement or under legal authority other than a decree of foreclosure, extinguishes the debt and lion.</p> <p>2. A mortgagee inquired as to liens upon the mortgaged property, and being informed by the sheriff that there were no executions in his office, he took a conveyance some throe months afterwards of the legal title from the mortgagor in satisfaction of his mortgage, but subject to the lien of another mortgage which the mortgagor covenanted was the only incumbrance on the land; and the mortgage held by this purchaser was thereupon surrendered to the mortgagor. But between the date of this inquiry and of this conveyance, judgments were obtained against the mortgagor, and executions lodged. Held, that the mort1 gage of the purchaser was satisfied, and that the judgments had liens on the land superior to the title of this purchaser.</p> <p>3. This case distinguished from Agnew v. Railroad Company, 24 S. C., 18.</p> <p>4. Petition for rehearing refused.</p>

<p>Before Wallace, J., Charleston, March, 1886.</p> <p>This was an action by the South Carolina Loan and Trust Company against David McPherson and others. The opinion states the case.</p>

<p>Before Eraser, J., Laurens, September, 1886.</p> <p>This was an action by Henry J. Lamar, sr., and others, partners, trading under the firm name of Lamar, Bankin & Lamar, against William H. Pool and Martin B. Pool, commenced March 7, 1885. The mortgage assailed was given September 15, 1884, to secure certain past due debts, and thus was instantly payable. The Circuit decree was as follows:</p> <p>The case came before me at the term of the court held for Laurens County in September, 1886, on the report of the master and exceptions. The purpose of this action is to have a certain mortgage executed by W. H. Pool to his co-defendant, Martin B. Pool, declared void as an assignment in violation of the provisions of the statutes of this State in reference to preferences given by insolvent debtors to some creditors to the exclusion of others. The complaint does not sufficiently allege actual fraud to make it a ground of relief in this case. As I understand the report of the master, he does not find that there was actual fraud, and the testimony would not have been sufficient to warrant such a finding.</p> <p>I am obliged to concur in the finding of fact, that at the time of the execution of the mortgage W. H. Pool was insolvent. I have examined the testimony in this case, and while the mortgage did cover all the property of W. H. Pool of which we have in this case any evidence, I think that the evidence is in favor of the view that the mortgage was given bona fide as a security, and not as a preference; and though it might have been, if the mortgage had been foreclosed, that all other creditors would have been defeated. In the ca'se of Austin, Nichols $ Co: v. Morris (23 S. C., 393), which is relied on here by the plaintiffs, there was not only a mortgage of all the property of the debtor, but a sale was made at short notice, and with the consent of the debtor, mortgagor, to the sale, by which all the property was transferred to the mortgagee.' The court held this to be an assignment.</p> <p>In the case before the court, one of the exceptions of the plaintiffs is that the master did not find “specifically, as a matter of fact, that the defendant, Martin B. Pool, took charge of and disposed of the entire stock of goods of his co-defendant, W. II. Pool.” An examination of the testimony convinces me that the master would not have been justified in such finding. The stock of goods was worth at least $5,000, and Martin B. Pool did not receive more than $2,400 from it. Whatever he may have said to one of the witnesses, the testimony shows that in fact he never took control of the goods under the mortgage; that he did not interfere with the clerks of W. II. Pool, who sold the goods and paid over the proceeds to him, W. II. Pool, in the same way they would have done if there had been no mortgage,’ and that before the commencement of this action the mortgage was “can-celled” on the record in the proper office. A part of these goods were sold by the mortgagor’s own act to Dr. J. T. Pool in bulk.</p> <p>I cannot, therefore, regard this mortgage and the subsequent dealings with the property as an assignment in form or in substance. It is announced in Austin, Nichols Co. v. Morris, supra., in the opinion of both the Associate Justices who concur in the opinion of a majority of the court, that a “man may by a bona fide mortgage, which is intended merely as a security, prefer one creditor.” Such, I am satisfied, was the purpose of this mortgage, and even as a security, Martin B. Pool gave it up before half of the value of the mortgaged property was paid to him, and if these suing creditors had resorted to proceedings supplementary to their execution, the only true test of insolvency, it may be that this action would not have been deemed necessary. I do not see any better reason why Martin B. Pool shall in this case be called on to refund for the benefit of other creditors what has been paid to him, than that these plaintiffs would have been in case they had been, if they had been fortunate enough to have their drafts paid to the bank when presented for payment to W. H. Pool wrho now appears to have been then insolvent.</p> <p>I conclude, therefore, that neither the case of Austin, Nichols & Co. v. Morris, supra, or Wilks v. Wallcer, 22 S. C., 108, justifies the conclusion that this mortgage is void as an assignment under our statutes. It is therefore ordered and adjudged, that the report of the master be overruled and the complaint dismissed with costs.</p> <p>From this decree plaintiffs appealed on the following grounds:</p> <p>I. Because his honor erred in holding that the complaint did not sufficiently allege fraud, and that such allegation was necessary.</p> <p>II. Because his honor erred in holding that the mortgage w'as executed bona fide as a security, and not as a preference.</p> <p>III. Because his honor erred in not holding 'with the master, that William H. Pool intended by the execution of the mortgage to transfer absolutely all of his tangible property to Martin B. Pool to the exclusion of all other creditors, and to prefer Martin B. Pool over all other creditors.</p> <p>IV. Because his honor erred in not holding with the master, that the mortgage was intended to accomplish, and has accomplished, the purpose of an assignment, by which Martin B. Pool was preferred and benefited to the exclusion of all other creditors of William H. Pool, and that said mortgage is void under the statutes.</p> <p>V. Because his honor erred in holding that Martin B. Pool never took possession of the goods under the mortgage, and that the goods were disposed of in the ordinary course of business by William H. Pool.</p> <p>VI. Because his honor erred in not holding that Martin B. Pool is liable for the value of the stock of goods embraced in the mortgage, and should account therefor.</p>

Before Cothran, J., Barnwell, March, 1886. The opinion states the case. The Circuit decree, omitting its statement of the facts, was as follows: No question seems to have been made as to the widow’s personalty given to her for life, if, indeed, any of it has survived the wear and tear of twenty-five years’ use and the wreck of Sherman’s march through that section in the early part of the year 1865.

<p>Before Hudson, J., Spartanburg, July, 1886.</p> <p>To the statement of the case as made in the opinion of this court, it may be added that the ground upon which the Circuit Judge sustained the first ground of demurrer, as appears from argument of counsel, was that the complaint did not allege the court or officer by whom the guardian ad litem of the infant plaintiffs was appointed, nor the time when.</p>

<p>Before Kershaw, J., Spartanburg, March, 1886.</p> <p>This action was commenced on May 22,1885, by W. J. Hines, plaintiff. The complaint alleged:</p> <p>1. That plaintiff is, and at the times hereinafter mentioned was, the owner in fee of certain lands in the county and State aforesaid, to wit, two hundred acres (200), more or less, situated on the waters of Buck Greek, bounded by lands of William T. Thorne, Mary Hines, Elizabeth Hicks, and others, together with the dwelling house thereon.</p> <p>2. That on the day of , 1875, the defendants, Cleveland C. Jarrett and John M. Ezell, wrongfully raised a dam upon their freehold, in the vicinity and below the plaintiff’s land, whereby the water was flowed thereon,'and the lands of the plaintiff greatly damaged, the bottom or meadow land made spongy, rotten, and good for nothing; the spring near the dwelling house rendered unfit for use, to the nuisance of plaintiff’s said freehold, and to the damage of the plaintiff one thousand dollars.</p> <p>8. That on the day of , 1880, the defendant, John M. Ezell, conveyed to Cleveland C. Jarrett, one of the defendants, his interest in the said dam, and in the land on which the dam was erected.</p> <p>4. That on the day of , 1884, the defendant, Cleveland C. Jarrett, conveyed said freehold, upon which the dam was erected, to Frank A. Johnston and Jerry M. O’Sullivan, who, from that time, ever since have been in possession of said freehold and dam, and wrongfully maintain said nuisance, although, before the commencement of this action, they were, by the plaintiff, requested to remove and abate the same.</p> <p>Wherefore the plaintiff demands judgment:</p> <p>1. That the said nuisance be removed.</p> <p>2. That the plaintiff recover of the defendants one thousand dollars' damages caused thereby, and costs of this action.</p> <p>Hines, the plaintiff, was an owner of lands on the creek above the dam, and, after several times complaining without effect to the parties, he brought this action, alleging that the defendants maintained the dam, “whereby the water was flowed on his lands, which were greatly damaged, the bottom or meadow lands made spongy, rotten, and good for nothing, and the spring near the dwelling house rendered unfit for use, to the nuisance of plaintiff’s freehold,” and praying for one thousand dollars damage, and that said nuisance be removed. The defendants, Johnston and O’Sullivan, after the suit was brought, requested to be relieved of their purchase, and, that being refused, they abandoned the premises, and the action as to them was discontinued. But Jarrett and Ezell resisted, pleading that, before the dam was built, the neighbors, including the plaintiff, encouraged the work; that no damage was done to the plaintiff; and that several causes of action were improperly joined, in this that a joint tort is alleged against Jarrett and Ezell, and a separate tort against Jarrett alone. On this latter point, a motion was made to dismiss the complaint, or to divide the actions. The Circuit Judge refused the motion, and ordere'd the case to the jury. The jury found for the plaintiff “$100 damages, Ezell and Jarrett to pay the amount.” • The defendants appealed upon exceptions, alleging error in the following particulars:</p> <p>1. In refusing the motion to dismiss the complaint.</p> <p>2. In refusing to split the action, or at least to have the issues affecting the defendants separately tried separately.</p> <p>3. In refusing to charge that if land owners above cleared out and cultivated their lands, whereby land was washed down into the creek and accumulated at the head of the pond, and thereby injured plaintiff’s lands, that defendants were not responsible for such injury, although such accumulations would not have occurred in the absence of the dam.</p> <p>4. In charging that “it is not enough to show that the plaintiff consented to the construction of the dam, unless he could have known, or reasonably foreseen, that his land would be injured by the dam in the manner complained of. The law presumes that when a party assents to the doing of an act, he only assents to its being done so as not to injure him.”</p> <p>5. In charging that “the utmost effect that a parol license to flow land has is to. protect the person acting by authority of it against an action for damages until it is revoked by the licensor, and the license is revokable at the pleasure of the licensor, and will not be a defence for an act done after it is revoked.”</p> <p>6. In charging that “if the stoppage of the water by the erection of the dam caused the stopping of the natural flow of sand in this stream, and the injury resulted .to the plaintiff in consequence of those two stoppages of the natural flow of the water and of the sand through the stream and through the land of the plaintiff, then the plaintiff would be entitled to recover just as much as if it was the direct result, without any intermediate agency; of the stoppage of the water, just as much as if the dam had thrown the water over the land of the plaintiff in the first instance.”</p> <p>7. In charging that a natural flow of sand is just as much a legitimate flow as a flow of water, and if the sand just came down in the natural way and would have passed off but for the erection of this dam, and the stoppage of the water caused the stoppage of the sand, and that caused injury to the plaintiff, he would have a right of action.</p> <p>8. In charging that when the defendants erected their dam, they ought to have provided against any damages resulting from the stoppage of the ordinary flow of sand down the creek bed of the creek.</p> <p>9. In charging that if the stoppage of the water stopped the sand, and the sand was just nothing more than the natural flow of sand down the creek caused by the natural and proper use of the soil above, the usual and customary use of it, then if that injured the plaintiff, the defendants are just as much liable as if it had been a direct and immediate result of the stoppage of the water.</p>

<p>1. Where the testimony for the plaintiff, regarded as true, would not authorize a verdict in his favor, a non-suit is proper.</p> <p>2. In action against a railroad company to recover damages for an injury caused by a bumper, proof of a defective spring to the bumper would not prevent a non-suit, where the evidence failed to show any connection between such spring and the injury.</p> <p>3. Under the law (Gen. Stat., $ 1471) a railroad company of .this State may not refuse to receive from a connecting road, and transport, a car with a bumper of an old pattern, not so safe as improved bumpers in ' use on its own road.</p> <p>4. Nor does an old style bumper constitute such a peculiar hazard as to require the company to notify its employees of -the danger incident to its being coupled as other bumpers are.</p> <p>5. When it is apparent to the eye that there is not space enough for two cars to be coupled by a man standing between them, the danger of so coupling is obvious, and therefore the company is not bound to warn the coupler.</p> <p>6. Where the plaintiff fails to make out a case of negligence, the question of contributory negligence does not arise.</p>

<p>1. Where land that is incapable of actual division or separate occupancy, e. g., a wharf, is wholly taken possession of by a tenant in common, he necessarily excludes his co-tenant; and after such ouster, the tenant in possession is liable to the co-tenant for rents and profits.</p> <p>2. Where an improving tenant receives no compensation for his improvements to the common property, he is not chargeable with the rents due to his improvements; but where he is compensated to the extent of the increased value imparted to the premises by these improvements, he should be charged with so much of the rents as is due to the property in its unimproved condition.</p> <p>3. Where a tenant by his improvements, made under a belief of exclusive ownership, utilizes a valuable wharf property, the rents received therefrom are due in part to his improvements (for which he is not accountable) and in part to the land upon which they were placed (for which he is accountable).</p> <p>4. The tenant in possession insured one of the buildings on this wharf, after action instituted, and it was burned, and the insurance money was used in restoring the burnt building. Held, that he was not liable to his co-tenant for any part of this insurance money.</p>

<p>1. The findings of fact by the Circuit Judge from testimony heard by him, and in part conflicting, sustained.</p> <p>2. The distinction pointed out between the commercial rule that protects an innocent indorsee for value of a negotiable instrument before maturity, and the equity rule that protects a bona fide purchaser for valuable consideration without notice.</p> <p>3. Where a party takes by indorsement from the payee a promissory note not due as collateral security for a past duo debt, he is not affected by equities then existing between the maker and the payee.</p> <p>4. And where such a note is secured by a mortgage, which also passed to the indorsee along with the note, the same doctrine would doubtless apply to the mortgage, so long as the note continued to' be a subsisting and active security.</p> <p>5. But after the note is barred by the statute of limitations and the mortgage remains as the only security capable of being enforced in law, the holder can no longer invoke the commercial rule that protected him as indorsee of the note, but must stand upon the equity rule governing purchasers for valuable consideration without notice. Under this rule the holder is not protected from existing equities, where the consideration of his purchase was a past due debt.</p> <p>6. Where a creditor holds a note and a mortgage as securities for the same debt, and has lost his right of action on the note, he may still pursue his remedy on the mortgage, while it subsists; but in such case he must rely wholly upon the mortgage unaffected by any of the incidents which attached to the note.</p> <p>7. A party who sells the land of another without authority is liable for the proceeds of such sale.</p> <p>Only the result concurred in.</p>

Before Hudson, J., Abbeville, October, 1886. This was an action of foreclosure instituted by the Aultman & Taylor Company against J. N. Rush and Eugenia J. Rush, his wife. The mortgage was - given by the wife to secure two joint and several promissory notes, given by both defendants, for the purchase money of a steam engine, with a clause added requiring the payment of counsel fees in case of suit.

<p>Before Fraser, J., Richland, April, 1886.</p> <p>The opinion sufficiently states the case.</p>

<p>Before Fraser, J., Fairfield, June, 1886.</p> <p>This was an action by Daniel Hall, jr., against Thomas W. Woodward, for contribution, commenced October 3, 1885. The appeal was from the following decree:</p> <p>• The defendant Woodward insists that the assignment was not a part of the agreement for bargain and sale of the land, entered into between Daniel Hall and plaintiff; but was entered into for the first time at its date, and subsequent to the payment of the judgment by plaintiff. In the view I take of this case it is not necessary to consider this question. Certainly the plaintiff, as assignee, can have no higher nor greater rights than those his assignor possessed, and it is clear that Daniel Hall could not, at the time of this assignment, nor at the time the judgment was paid off, nor even at the time of the conveyance of the land to the plaintiff, have himself maintained this action against the defendant, Thomas W. Woodward. The note matured on December 22, 1860; no payment thereon was ever made by Woodward, and no proceedings were ever instituted to make him liable thereon, before this action twenty-five years after the maturity of the note.</p> <p>Woodward was no party to the judgment, and the judgment could keep the note alive only as to the judgment debtor. The authorities cited from Brandt on Suretyship and others proceed on the principle that one surety can keep a note alive as to all the others. But that doctrine has been modified by the recent decisions of the Supreme Court. The contract upon which contribution rests is simply this : If you pay the debt while I am liable for it, I ■will pay my share. And the action for contribution is essentially one for money paid, laid out, and expended by one surety for the benefit of all. But, of course, if one be -not liable on the note, he does not share in the benefit, and should not in the liability.</p> <p>How, then, did Woodward stand as to this note at the time the judgment was paid off by plaintiff? On December 23,1880, twenty years had elapsed since the maturity of the sealed note, without demand upon Woodward or acknowledgment thereof on his part. On that day, therefore, the note was in law paid, as to him. “Payment in law is equivalent to actual payment;” and its effect is not merely to bar a recovery on the note, but the debt itself is “paid and extinguished.” White v. Moore, 23 S. 0., 456; Langston v. Shands, Ibid., 149. Woodward would certainly not be liable for contribution, if he had extinguished the debt by an actual payment of the money due to the creditor, before plaintiff had paid off the judgment; and by lapse of time the note is as effectually paid as to him, as though money had been passed. At the time plaintiff paid the judgment Woodward was no longer liable on the note. It was extinguished so far as he was concerned, and hence such payment created no cause of action against him.</p> <p>It is therefore adjudged and decreed, that the complaint herein be dismissed on the merits of the action, with costs.</p> <p>The plaintiff appealed.</p>

Before Kershaw, J., Sumter, October, 1884. This was an action for partition. The plaintiffs were grandchildren of Elizabeth Spann, the testatrix, and the defendants were two grandchildren of the said Elizabeth, and two others, named McRae, who were in possession of the land in suit.

<p>1. In action for the recovery of a tract of land, where the only matter in dispute is the location of land sold by the sheriff, evidence of payments made to the parties to the execution and of the other disposition of the proceeds of sale, is immaterial and therefore harmless.</p> <p>2. Entries by the sheriff made upon separate slips of paper and attached to an execution are parts of the record, as much so as if endorsed on the execution; and therefore are admissible in evidence with the execution.</p> <p>3. Defendants claimed title under an execution which had been amended, Held, that an affidavit used in opposition to such amendment was not a part of the record and was not admissible as evidence in this action against the defendants.</p> <p>4. The Circuit Judge, in his statements of the testimony to the jury in this case, did not charge upon the facts.</p> <p>5. Alleged errors in the charge upon immaterial matters raise only abstract questions, which need not be considered.</p> <p>' 6. When the sheriff-levies upon land of the defendant in execution, whose land is composed of several contiguous tracts, and the sheriff’s deed will apply as well to one of these original tracts as to the whole consolidated tract, the boundaries of the levy and sale are a question of location for the jui'y. What the sheriff oughl to have done is immaterial. The law does not raise a presumption that the tract most nearly corresponding to the number of acres sold, was the tract levied upon.</p> <p>7. A purchaser at sheriff’s sale under execution against several parties, brought action for recovery against T., one of them, the others having abandoned the possession to the purchaser. In action by some of the parties so abandoning, to recover this land, the Circuit Judge did not err in admitting the record of the action against T. as evidence to show the location of the land sold by the sheriff. Mr. Justice McIver dissenting.</p>

<p>1. An administrator filed his bill in equity against the heirs at law for sale of land in aid of assets, praying that creditors be called in and enjoined; but no creditor was a party to the bill or called in, and no injunction was granted. The land was sold and the fund realized. More than twenty years after the filing of this bill, the fund being still in court, creditors were called in and they appeared and proved their claims. Held, that these claims were all barred by the statute of limitations and the lapse of time.</p> <p>2. In the record was found an undated list of “claims proved” in the handwriting of the deceased attorney of record for the administrator, but it was not shown when this paper was written. Held, that the onus was on the creditors to show an admission of their claims before they were barred, and, besides, this paper was not an admission. Would an admission by the attorney of the administrator be sufficient?</p> <p>3. Where creditors present their claims before the master under the call of the court, the heirs may plead the statute of limitations and the presumption of payment as a bar to the claims so presented.</p> <p>Mr. Justice McGowan dissenting.</p>

Before Kershaw, J., Greenville, July, 1886. This was a motion by the Nonantum Worsted Company and others, creditors and defendants in the cause, to recommit the master’s report on claims. The opinion states the facts bearing upon this motion. The Circuit decree, omitting its statement, was as follows: There are two questions upon which this motion depends. I. Will the court open the report and recommit for such causes as are here alleged ? II.

Before Hudson, J., Laurens, June, 1886. At the hearing of this appeal, the honorable A. P. Aldrich, judge of the Second Judicial Circuit, sat in the stead of the Chief Justice, who had been of counsel in the cause. The opinion states the case.

<p>1. Within ten days after homestead appraisers had made their return declaring the land to be incapable of division and assessing it at over 81,000, the sheriff served notice on the debtor requiring him to pay the excess within sixty days (Gen. Stat., § 1996); but to this return exceptions were taken and the matter finally reached the Supreme Court on appeal, where the return was confirmed. Within sixty days after remittitur filed, the defendant tendered this excess to the sheriff. Held, that he was within the time required by the statute.</p> <p>2. The appeal in such a case operates as a supersedeas upon all the proceedings in the court below. Code, $ 356.</p> <p>3. The proviso to section 1996, General Statutes, giving to a debtor his homestead, where it is valued at over $ 1,000, upon his paying the excess, is not unconstitutional, as it does not affect the lights of the creditor as to the money used by him in paying such excess.</p>

Before Pressley, J.., Edgefield, November, 1886. The reporter has been furnished with no papers in this case, except the opinion of this court.

<p>Under an indictment charging only the statutory offence of stealing eotton from the field, the defendant cannot he convicted of petit larceny.</p>