Volume 28 — South Carolina Reports

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

The charge of the judge to the jury was as follows : Gentlemen: We have a very serious, very important, and very solemn duty to perform. I, as a judge, am under oath, and you, as jurymen, are under oath also. We owe a duty to ourselves, to the defendant, to the country, and to God. I never try one of these cases but I endeavor, calmly and deliberately, to acquit myself of every shadow of blame in the matter.

<p>An indictment which charges the stealing of corn in the field does not charge the statutory offence of stealing from the field, but does charge the offence of simple larceny; and therefore, after a general verdict of guilty on such an indictment, judgment should not he arrested.</p>

<p>1. It is not necessary to constitute the crime of perjury under the statute {Gen. Stat., \ 2534) that the matter falsely sworn to should be material to the issue. It is sufficient if the oath was required by law, was administered by one authorized to do so, and was wilfully and knowingly false; and its materiality not having been alleged, it was unnecessary to prove it.</p> <p>2. Testimony which bears upon the location of defendant at a particular time, where such location affects the question of his guilt or innocence, is material to the issue involved.</p> <p>3. An indictment charging perjury committed at a trial before a trial justice, is not defective in failing to allege that the proceeding before that officer was commenced by information under oath.</p>

<p>1. Under the act of 1852, authorizing a railroad bridge over the Congaree River, provided the bridge be at least 42 feet above the bed of the river, the railroad company pay the expenses of putting hinges on the smoke stacks of steam-boats, and transport certain fertilizers at a fixed rate, the company were bound to keep the bridge at the required height. When, therefore, the bridge was originally built so as to leave more than 42 feet, but by filling up of the bed of the stream, the height had become less, it was an obstruction to navigation not authorized by law.</p> <p>2. Even if the original bridge was sufficient because built at the required height, still a subsequent bridge which when erected was not 42 feet above the bed of the river as it then existed, would not be authorized by this statute.</p>

The defendant was indicted for murder and convicted of manslaughter, and he appealed to this court. The opinion states the case.

This action was commenced January 20, 1887. The Circuit decree was as follows : Ann E. Wright obtained judgment November 2, 1867, against O. D. Melton. C. D. Melton sold the real estate, the sale of which is sought to be enjoined in the present action, to G. W. Melton November 25, 1867, and as part of the purchase money G. W. Melton promised C. D. Melton to pay the Wright judgment, which he has never done, nor has he paid to C. D. Melton or his administrator the equivalent.

<p>This was a prosecution against Harriet Madden for violation of contract. The opinion states the case.</p>

This was an appeal from an order on a rule to show cause, directing defendant to be imprisoned until he should pay over an amount found to be in his hands as executor by a former order in the cause. The grounds of appeal raised some points not considered in the opinion, and also the point that the order of Judge Aldrich was in effect an imprisonment for debt.

The opinion states the facts of the case. The Circuit decree, omitting its statement, was as follows: The possession of the plaintiffs jointly with tbeir mother, and the purchase by Cloud from the mother the next day after she received titles, at less than one-third of the value of the land, taking into consideration the improvements by George Sweat-man, satisfy me that Cloud had such notice of plaintiffs’ equity as to warrant me in holding him to be a trustee for the…

The appeal was from the following order: “On motion of counsel for the State of South Carolina, plaintiff herein, after due notice to the counsel for the defendants, it is “Ordered, that the remittitur of the Supreme Court in the above entitled cause be filed in this court, and that the judgment and decree of the Supreme Court be made the judgment and decree of this court. “Ordered further, that the judgment rendered herein by his honor, Judge Cothran, in this court, and…

<p>As a sheriff cannot levy and sell the homestead of a debtor, whether previously laid off and assigned to him or not, the proceeds of a sheriff’s sale, under execution, of the judgment debtor’s interest in land, is not the representative of the homestead, and cannot, therefore, be claimed by the debtor as exempt to him for his homestead.</p>

<p>1. Under section 400 of the Code a party is prohibited from testifying that an account with one now deceased was correct, as such testimony was, in substance and effect, a statement that the services had been rendered under a contract or upon request.</p> <p>2. The competent testimony being too vague to sustain the judgment of a trial justice, the Circuit Judge did not err in remanding the case for anew trial.</p>

<p>1. A person owning 242 acres of land, mortgaged the land as 200 acres, naming the lands of his adjoining neighbors as the boundaries. Held, that he was not entitled to claim 42 acres of this tract for a homestead as against this mortgage.</p> <p>2. A finding of fact by the master, concurred in by the Circuit Judge, approved. Such finding being not without evidence to. sustain it, must stand as an established fact in the case.</p> <p>3. A decree in an equity cause does not acquire its lien as a judgment from the date of the filing but only from the date of its proper entry in the Abstract of Judgments. What is a proper entry?</p> <p>4. Whore a father died, leaving one-fourth of his estate in trust for ,his daughter, E., who brought her action to recover her interest from her brother, the executor, who was in possession of the land of testator, and a decree was rendered that a part of this land be conveyed to E. (which 'was done), and that the executor pay her §1,000, this decree did not operate as a specific charge upon the lands of testator retained by the executor, nor has the statutory lien in cases of partition, under the act of 1791, any'application.</p>

The decree appealed from was as follows: The jury to whom was referred certain issues of fact in the above stated cause, having found by their verdict that the horse for which the note described in the complaint was given, was sound at the time of the sale of the said horse, and that the sale of the said horse was never rescinded, and that there was an agreement made between the plaintiff and defendant, Calvin Allison, after the death of the horse, that if the plaintiff…

The complaint in' this case was as follows: The above plaintiff, complaining of the above defendants, alleges and shows: 1. That the plaintiff is a body corporate and politic under and in pursuance of the general law of the commonwealth of Massachusetts, and an act amendatory thereto, passed and enacted by the legislature of said State on the 25th day of January, A. D. 1882. 2. That during the year 1882 the defendant, E. Gf.

This was an action by the National Bank of Newberry, a judgment creditor of W. M. Kinard, deceased, -with return of nulla bona, in behalf of itself and other creditors, to set aside for fraud a voluntary deed by said Kinard to his wife and children. The return of the sheriff was not sworn to, nor did it. purport to be made to a regular term of court.

This was an action on a sealed note for $82.71, given in compromise of a larger amount then past due on a prior sealed note. The opinion fully states the case.

<p>1. To sustain the judgment of an inferior court with limited jurisdiction, the proceedings must show everything necessary to give jurisdiction. This principle applies also to the transcript of a trial justice’s judgment, when filed in the Court of Common Pleas.</p> <p>2. If the omission of the name of the trial justice from the summons be an irregularity, it is cured by the written acceptance of service by the defendant.</p> <p>3. Where more than twenty-five dollars is demanded by a trial justice’s action, the defendant is entitled to twenty days’ notice of trial; but where on less notice ho voluntarily attends and goes to trial without objection, he is bound by the judgment then rendered against him.</p> <p>4. This case distinguished from Barron v. Dent, 17 S. 0., 75.</p>

This was an action for partition by P. C. Mellichamp against his two children, Mrs. Marion R Mobley and her children, and T. Gr. Patrick and R. A. Patrick — Edward P. Mobley, sr., and his wife, Marion R., were both living at the time of the trial.

The opinion fully states the case. on the question of ultra vires and estoppel, cited the following authorities : 2 Pars. Cont., 790; Big. Estop., 466; 95 Ill., 245; 83 Id., 141 ; 96 U. S., 312, 341, 267 ; 22 Cal, 620 : 29 JV. J. Eq., 543 ; 63 N. Y., 62. cited the statute quoted in the opinion, and the following additional authorities 93 U. S., 326 ; 31 Penn. St., 334; 109 Mass., 53; 18 Wall., 271; 71 III, 380; 84 111, 435; 12 Abb.

To the statement of the case made in the opinion it will be proper only to add the following letters: Rock Island, III., March 16, 1885. J. G-. Anderson S? Go., Rock Hill, S. O.: Dear Sir : Yours of 13th inst. received and in reply will say the $1000 note due April 1st must be paid when due, that being done, the other one for $400, can stand a while longer. If the $1000 is not paid .when due, both will be put in the hands of an attorney for collection without delay.

<p>Action to subject a tract of land held by a wife, but alleged to have been paid for by her husband, to the payment of his debts cannot be maintained until after return of nulla bona to an execution, no actual fraud upon creditors having been intended.</p>

This action was based upon the undertaking given by a plaintiff in claim and delivery, and sought to recover from the surety the costs taxed in favor of the defendant in that suit.

<p>Where plaintiff takes possession of the property sued for in an action of claim and delivery, and the verdict gives to him a portion of this property with damages, and the remaining portion to the defendant with damages, each party is entitled to enter judgment and to recover costs from the other party.</p>

This was an action to recover damages as stated in the opinion of this court. During plaintiff’s examination as a witness in his own behalf, he said he informed the section master of the effect of a certain rain on his crops, and was proceeding to state what the section master replied, but upon objection was stopped by the court.

This was an action against an executor for an account of the estate of his testator. The probate judge found a balance in defendant’s hands on October 8, 1886, of $433.22, out of which he directed the executor to pay the costs of both parties and the executor’s commissions, and to pay the remainder to the parties plaintiff. Other matters are stated in the opinion.

This appeal involves the question whether the complaint stated facts sufficient to constitute a cause of action. The complaint was as follows: The complaint of the above named plaintiff respectfully shows to the court as follows: 1.

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

<p>This action was commenced January 17, 1887. The opinion fully states the case.</p>

This was such an action as is stated in the opinion. In the matter of both the claims upon which the plaintiff’s mortgage was based, the testimony is vague, owing, perhaps, to the fact that both John T. M. McAfee and Dr. McLurkin were dead when the case was heard by the referee. Upon the subject of the husband’s right, even as against existing creditors, to waive in his wife’s favor his right to her services not yet rendered, counsel cited 1 Bish.

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

The affidavit upon which the warrant in this case was issued was as follows: “South Carolina — Kershaw County. “Before me personally appeared Herman Baum, who, being duly sworn, on oath says: That on or about the 28rrl day of December, 1885, George W. Barnes transferred and assigned, for value received, to H. Baum a rent lien executed by J. J. Bell on the first day of December, 1885, whereby he gave to the said G. W. Barnes a lien on all of the crops to be raised on the…

This action was .to foreclose a mortgage to the extent of a sum which plaintiff claimed as equitable assignee. After a statement of the pleadings, the Circuit decree proceeded as follows: No demurrer was interposed upon the ground of a defect of parties defendant. At the hearing, an oral demurrer was interposed in behalf of both defendants, upon the ground that the complaint did not state facts sufficient to constitute a cause of action against either of said defendants.

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

This action was begun October 11,1887. The opinion makes a full statement of the case. The security stipulated for was only collateral to the main contract, and, like the penalty of a bond, was intended to secure the performance of the contract. 104 (I. S-, 90 ; 1 Bro. Oh., 418 ; 12 Ves., 282, 475. Here the defendants did the best they could, and offered security of the same general class (fertilizer material), and of far greater value.

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

<p>1. A deed conveying land to “A. and the natural heirs of her body,” creates a fee conditional.</p> <p>2. The fact that A then had children living does not bring this grant under the second rule in Wild’s case, there being nothing in the context requiring “heirs of the body” to be construed as meaning issue or children.</p> <p>3. A fee conditional is an estate of inheritance, and therefore a married woman might relinquish her inheritance therein, under the act of 1795.</p> <p>4. A release of inheritance by a married woman in 1863, before a magistrate of a district in which neither the married woman resided nor the land lay, was not before a proper officer under the law, and was therefore invalid.</p> <p>5. The punctuation of a statute cannot be permitted to control the con struction that is required by other and more weighty considerations.</p> <p>6. The question of the statute of limitations not considered for want of a statement in the “Case” of the facts bearing upon that question.</p>

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

The appellant, a police officer of Peak’s, a village in Lexington County, together with one John Hipp, were indicted for aggravated assault and battery upon the person of A. M. VVallace, the prosecutor. The defendants offered no testimony.

<p>This case is sufficiently stated in the opinion of this court.</p>

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

In addition to the matters stated in the opinion of the court, it should be stated that the point referred to in the first exception was based upon the following extract from the testimony of the plaintiff on his direct examination: Q. Have you ever ridden on the same train that passed at that hour? A. Yes, sir; often. Q. What did you pay ? A. Fifty-five cents. Q. Have you ever had any trouble? A. No, sir. About ten days afterwards I went and offered the money just to try.

The opinion states the case. The Circuit decree was as follows : This case came before me at the term of the court held in July, 1887, on a report of the master, dated May 24, 1887, and exceptions thereto, and also on a motion on notice to refer to a jury for trial an issue of facts as to the title of the defendant, Emily St. P. Morgan, to certain property as a gift to her as a donatio causa mortis by the testatrix, Mrs. Trenholm. I will state my conclusions very briefly.

<p>1. Where kindred and creditors of the deceased fail to apply for letters of administration, the probate judge may properly grant letters to any person applying; and after letters have been so granted they may not be revoked without an application for that purpose to which the administrator has been made a party.</p> <p>2. A petition for letters of administration, in which no mention is made of a former grant of letters, and no service made upon the incumbent, cannot be regarded as a proceeding to revoke the former letters; and the incumbent is not made a party to such proceeding by the usual published citation to kindred and creditors, nor by his filing a caveat and protest against the second grant.</p> <p>3. Query. Where letters have been granted to a stranger, should they be revoked merely because the heir or next of kin subsequently applies for a revocation and new grant of letters ?</p>

<p>This was an action by Sarah H. H. Gibson in her own right, and by D. H. Bacot, as trustee for Julia A. Bacot and her children, against Mary E. Lowndes, as executrix and in her own right, and others, instituted in Colleton County in October, 1886, and afterwards transferred by consent to Charleston County. The facts of the case and the exceptions are fully stated in the opinion of the court. The Circuit decree, omitting its statement, was as follows:</p> <p>There are three grounds on which the defence in this case relies: 1. That the real estate described in the complaint has been bona fide aliened by the devisees before this action was brought. 2. That these lands cannot be subjected to the payment of this debt, because there was a clause in the decree made in an action by R. Dewar Bacot, executor, through whom plaintiffs claim, against these devisees to foreclose the mortgage above referred to, by which they were discharged from any further liability on account of the said bond. 8. That notwithstanding the credits which appear on the bond, it must be presumed to have been paid from lapse of time. I will consider these various defences in the order in which they have just been stated.</p> <p>1. As to the alienation by the devisees. It is not necessary to consider how far a married woman may mortgage her separate property, because there is no question of her rights, under the' constitution, to alien her real estate, and a mere morlgage is no such alienation as will defeat the claims of creditors of an estate. A deed executed by these devisees to C. C. Pinckney has been set up in the answers and established by the evidence in the case. It has been drawn with great care and professional skill, and has been set up as an alienation of this real estate by the devisees.</p> <p>Considering the terms of the deed itself, and the allegations in the answers of C. O. Pinckney and of these devisees, it seems to be nothing more than a conveyance to secure certain debts of these devisees to C. C. Pinckney, with a full poioer of appointment over any and all interests, which remains after paying what is due to C. C. Pinckney, vested in these devisees severally as to their original interests, each of one-third in the said land, and in default of execution of this power by them at their death to their heirs, executors, and administrators, respectively. This power may be executed in favor of themselves, or of any other person, and-as to so much of the interest in the real estate as the power may operate upon these devisees have received no value, which is the consideration of that deed. It is true, that for their own use and benefit they have, under this power, mortgaged this interest to C. C. Pinckney, but by this deed, called here a bona fide alienation, an attempt was made which, if effectual, would have put so much of this property as was covered by this power not only beyond the reach of the creditors of the deceased, but beyond the reach of the creditors of these devisees themselves, including the claims of those creditors of the deceased who had their right of action at law against the devisees for the value of the real assets which came to their hands as devisees. I do not see how such a transaction can, in any fair sense, be held to be a bona fide alienation; in the sense of 3 and 4 W. ‡ M. If by it the right of the creditors of a deceased person can be defeated, then the statute, 5 Geo. 2, e. 7, sec. 1983, Gen. Stat., which makes real estate “liable to and chargeable with just debts,” might as well be repealed.</p> <p>2. As to the discharge contained in the decree of foreclosure on June 14, 1876, an action was commenced in Colleton County by Bacot, executor, against Mrs. Lowndes, Mrs. Minott, and Mrs. Elliott, joining as defendants the husbands of the two latter, to foreclose the lien of the mortgage above referred to, given by W. IT. Lowndes to secure the bond herein sued on. The mortgage covered a different tract of land from either of those described in the complaint in this case, and was no lien on them. The will of W. H. Lowndes had not then been admitted to probate, and there had been no administration on his estate. No one Avas made a party as personal representative, either as executor de son tort or othenvise. Mrs. LoAvndes, Mrs. Minott, and Mrs. Elliott, who, as it noAV turns out, were devisees, were impleaded as heirs and distributees of W. H. LoAA’ndes. deceased, a circumstance Avhich cannot affect the case, as they took under the Avill precisely Avhat they Avould have taken under the statute of distribution.</p> <p>The purpose of the action was to foreclose the lien on the mortgaged premises, and the complaint contained no allegations Avhich AA'ouldhave brought within its scope any claim against any other portions of the estate of W. IT. LoAvndes, either real or personal, or any claim against these devisees personally. On November 7, 1876, there Avas the usual decree of foreclosure and sale by consent, which decree, however, contained the folloAving clause, on which this defence of a discharge is based: “And it is further ordered, adjudged, and decreed, that the defendants, the said Mary E. Lowndes, John C. Minott, and Harriott K., his Avife, Henry D. Elliott, and Mary A., his wife, be, and they are hereby, discharged from any liability for or by reason of the said bond of the said William Henry LoAvndes,' deceased, set forth in the pleadings.”</p> <p>The proceedings subsequent to this decree will be referred to in considering another point raised in this case. It is sufficient for the present to say that in pursuance of this decree the land Avas sold, the proceeds of sale applied to the payment of the mortgage debt, leaving, according to the report of the sheriff, a large deficiency unpaid and unprovided for. There is conflict of testimony as to the circumstances under which this discharge Avas inserted in the consent decree of foreclosure. If we assume, however, that the plaintiff in that case consented to it because of the statement, claimed to have been made by the counsel for the devisees in that case, that there was no other estate of W. EL Lowndes subject to the claim, it would not affect my judgment here.</p> <p>It is admitted that there was no intentional misrepresentation made by the counsel for the devisees. The value of the property-now sought to be subjected to this claim, and perhaps the existence of the property itself, seems to have been at the time unknown to all the parties, plaintiffs and defendants. It must have been intended on all sides to release something of some value, or the discharge was intended to be vox et greterea nihil, which I am not willing to attribute to these parties. I do not see how the discovery of an unknown value of a thing sold or given away can affect the title of the grantee in the absence of actual fraud. I have, however, other difficulties in reference to the discharge.</p> <p>I find in section 271, Freeman on Judgments, inter alia, the following, which I think is a correct statement of principle : “The agreement of the litigants that matters not in issue may be given in evidence, and may be determined by the verdict of the jury, will not enlarge the effect of the judgment as an estoppel. * * * But if ‘a decree in express terms purports to affirm a particular fact or rule of law, yet if such fact or rule of law was immaterial to the issue, and the controversy did not turn upon it, the decree will not conclude the parties in reference thereto.’ ” The m.ost liberal construction of the pleadings in that case will not bring within their scope any question affecting the liability of these devisees personally, or the liability of any other portion of the estate, real or personal, for the payment of the debt secured by the mortgage in that case and set up by the plaintiffs in this action.</p> <p>If this discharge is valid for any purpose, it must be confined to what its language plainly means, the personal liability of these ' devisees, and cannot extend to the liability of the estate of W. H. Lowndes. This action has been brought, not to enforce any personal liability for assets devised, or any new promise of these devisees to pay this bond, but to recover this bond debt out of the estate of the testator, W. H. Lowndes. So much for the disCharge as one of the provisions of a judgment. As an agreement between the parties it is fatally defective — first, for a want of consideration, and, secondly, because the presumed agency of counsel must be confined to the matters covered by the pleadings, and there is no evidence of any authority given by the plaintiff in that case to the attorneys to act in reference to any matter not covered by the pleadings — which referred alone to the foreclosure of the special lien of the mortgage therein set out.</p> <p>3. As to the presumption of payment from lapse of time. As stated above, the presumption of payment commenced to run in the life-time of W. H. Lowndes on February 7, 1863, when the last payment was made by him. Has there been anything since that date to arrest it ?</p> <p>There appear on the bond various credits after that period and sufficient prima facie for that purpose. They are as follows: * * *</p> <p>The testimony of Mr. Bacot, the executor and agent, by whom all these credits on the bond were signed, and of Mrs. Lowndes, convinces me that none of these payments were made by Mrs. Lowndes, and that, in fact, she had no personal knowledge of their having been made by any one for her. It is not the payment itself which arrests the statute of limitations or the common law presumption of payment, but the inference to be drawn from the payment that the person making the payment then and there admitted that the debt was due and unpaid. As to all these payments, the testimony rebuts the presumption of any admission of the debt by Mrs. Lowndes, and there is no pretence that either Mrs. Minot-t or Mrs. Elliott were in any way personally connected with them. This remark does not apply to the last credit of $8,536, of which hereafter.</p> <p>It would not affect the case if the payments were made out of the income or other funds of these parties, if, in fact, not made with their knowledge or consent. T am inclined to think, however, that the payments were made in part by the father of Mrs. Lowndes, in part out of his own means, and perhaps out of the proceeds of rents of the mortgaged premises above referred to. I am, therefore, of the opinion and hold, that none of these payments from January 24, 1867, to January 3,1876, inclusive, are sufficient admissions by the executrix, or by the devisees, if they were themselves the obligors on the bond sued on, to arrest the presumption of payment, and for a much stronger reason they are insufficient, when, if the presumption is arrested at all, it is against the estate as here claimed.</p> <p>We come now to consider the effect of the credit of $8,536 arising from the sale of the mortgaged premises under the proceedings above referred to. The complaint in that case set out this bond as then due and unpaid, and was sworn to. The answers of these devisees were also sworn to, and admitted the facts stated in the complaint, and, amongst other things thus admitted, was the fact of the existence and non-payment of this bond.</p> <p>The precise extent to which pleadings in one cause are evidence elsewhere of the facts stated in them seems to be somewhat unsettled. See 3 Gfreenl. Evid. (13th Am. Ed.), § 274, note 1, and authorities there cited. The whole record in that case has been offered in evidence, and it appears that after the application of the proceeds of the sale of the mortgaged premises there remained a balance on the bond unpaid and unprovided for of $6,002.22 on October 17, 1878. This fact appears in the report of the sheriff of that date, which on the same day was by consent of counsel for these devisees confirmed by the court. The judgment and proceedings in that case do not constitute an estoppel so far as to bind these parties absolutely, so that they cannot noAv shoAv that they Avere mistaken and that the facts Avere otherwise. They are, hoAvever, sufficient as an admission until shown to be otherwise. They have in this respect all the force and effect of any private writing in Avhich such a fact Avas stated on the one side and admitted on the other.</p> <p>I would therefore hold that if these devisees Avere sued on their OAvn bond, an admission made in this Ava-y would be sufficient to arrest the presumption, and it may be if they were sued at laAv for the value of real assets devised. Such, hoAvever, is not the case before the court. This action is against the estate, and this defence has been set up by the executrix, the devisees, and a creditor of the estate, C. C. Pinckney. Whatever may have been the effect of the subsequent qualification by Mrs. Lowndes as executrix on acts done by her as executrix, I do not think that the admissions in these pleadings can bind the estate, or bind her as executrix, as in them she was not called on and did not act, or profess to act, as the personal representative of the deceased, W. H. Lowndes. An act done by an executor before probate may be valid after probate and qualification, but certainly it should be an act done, or claimed at the time to have been done, in the representative capacity. If, however, she had been then the qualified executrix, no admissions by her could bind the real estate. The rule, as I understand it to be in this State, is thus expressed in Angel Lim., § 263: “No previous acknowledgment or admission by an executor or administrator can affect the heir or devisee.”</p> <p>These alleged admissions may in some way affect the interest of these devisees in the land as intimated by the court in the case of Bolt v. Dawkins, 16 S. 0., 198, but it must be in some other way than in the mode in which this complaint seeks to make them liable. There the persons referred to were tile heirs- of the intestate, and one of them had been sued to judgment on the debt sued for as executor de son tort. The case of Bolt v. Dawkins is one involving the statute of limitations, and this one involves the common law presumption of payment. The principle which should control is the same.</p> <p>With these views I have come to the conclusion that the bond sued on by the plaintiffs in the case now before the court has been barred by the presumption of payment, both as to the real and personal estate. It is therefore ordered and adjudged, that the complaint be dismissed.</p>

Upon the points considered by this court, the master’s report was as follows: Mrs. Gibert and Mrs. Mouchet set up the defence that they are married women, and their separate property is not bound by their contract. As to Mrs. Gibert, it may be said that she has already suffered judgment to go against her on the first instalment of the note, and her interest in the land has been foreclosed. Thus far I think she is estopped by the judgment of the court.

<p>1. A question of jurisdiction may be raised first in this court, and must be here decided; and it may be raised by the plaintiff appellant to his own action, for if the court below had no jurisdiction of the action, no valid judgment can be rendered.</p> <p>2. The Court of Common Pleas of a county has not jurisdiction to try an action for accounting, where none of the defendants reside in that county. It has jurisdiction only to order a transfer of the cause to the proper county for trial.</p> <p>3. An action to declare purchases made by defendant at sheriff’s sale to be fraudulent and to require her to account for the real value thereof — her subsequent vendees not being parties to the cause — is a personal action against defendant, and does not affect real property — especially so after decree adjudging the sales bona fide, to which finding of fact no exception was taken.</p>

<p>1. Whether every devise of real estate is specific since the act of 1858 (12 Stat., 700), is an open question in this State.</p> <p>2. Where a certain sum is given by will to A to be invested by the executors in land — but not in any particular parcel of land — this provision will be regarded for some purposes as a devise of real estate under the general rule of equitable conversion, but not so as to dispense with the necessity of the executor’s assent, or to relieve it from contributing pro rata with other legacies of personalty to the payment of debts.</p> <p>3. A bequest of “all the horses, mules, cows, hogs, wagons, farming implements, household and kitchen furniture, on the plantation whereon I now reside,” is a specific legacy.</p> <p>4. A bequest of dividends on certain specified stocks, without any disposition of the stocks themselves, carries the stocks also, and is specific.</p> <p>5. After providing for certain specific legacies, testator directed his executors to dispose of his other property and collect all moneys due him, and to use the interest for certain purposes and then divide among certain of his children. Held, that these legacies were not specific.</p> <p>6. A devise of “the plantation whereon I now reside’’ is specific.</p> <p>7. In appropriating to the payment of testator's debts property disposed of by will to devisees and legatees, general legacies must abate before specific legacies, and specific legacies before specific devises.</p>

The Circuit decree in this case was as follows : John Brown died in 1848, leaving as his heirs at law his widow, Mary Elizabeth Brown,… Held: as claimed by the defendants, that John should have continued his service to the removal of his aunt, Tirza, which never occui’red till her death in 1886, and that performance could be made by his heirs, then I find as matter of fact that such performance was not made, and that she did not waive it; the waiver claimed amounting to no…

The appeal in this case was from the following decree : It is very clear that whatever was decided by Chancellor David Johnson at Greorgetotvn in the suit between Emma S. Smith and the executors and devisees of the will of Sarah Waring, is binding upon the parties to that suit, and upon those claiming under them, since there was no appeal.

<p>The opinion fully states the case.</p> <p>cited Story Agency, §§ 2.10, 241, 242; 18 Wall, 338; 42 Am. Bee., 616; Paley Agency, §§ 345-347; Pom. Pq. Jur., §§ 1079, 218, 956, 959; 2 Sugd. Vend., 406 ; 4 How., 554 ; 6 Ves., 617, 627 ; 10 Ibid., 381; 1 Hill Ch., 354; Story Pq. Jur., §§ 218, 308, 322, 323; 9 Hare, 534; 4 Kent. 371, note e; 27 S. O., 53 ; Hill Trust, 537 ; 6 Pick., 204 ; 14 N. ¥., 91.</p> <p>cited Story Agency, §§ 464-470; 1 Pars. Cont., 49; 3 Kent, 151-155; 2 Ves. £., 242; 2 Pose, 78 ; 1 Mont. Part., 102; 4 Johns. Oh., 526; 22 Pick., 48; Freem. Got., §§ 164, 168; Pom. Eq. Jur., §§ 854, 856, 901 — 903 ; 2 Ero. Oh., 400 ; Story Agency, § 211.</p>

This was an action by William J. Bennett as administrator of James Hughey, deceased, against Joe Cook, commenced February 2, 1886, to require defendant to deliver possession of certain chattels and choses to plaintiff, and for injunction. The testimony so far as the same is material to the points considered and exclusa ive of that which is held to be irrelevant and incompetent, was as follows: PLAINTIFF’S EVIDENCE.

This was an action by John E. Brownlee against Josephine A. Martin and John M., her husband, commenced January 6, 1882. The case was once before in this court on appeal. See 21 S. C., 392. The charge of the Circuit Judge, in submitting the issues to the jury, was as follows: Gentlemen of the jury: These are issues of fact, and for you alone. I don’t know that I can aid you at all. You know the witnesses and I do not. You know their character for truthfulness and I do not.

<p>1. The judgment of the Circuit Court may be affirmed upon grounds other than those upon which it is based, but it may not be reversed upon a ground which was neither taken nor considered in the court below, unless such ground be one of jurisdiction.</p> <p>2. If the plaintiffs are not referred to in the complaint with sufficient distinctness, a motion to make the complaint more definite, and not demurrer, is the proper remedy.</p> <p>3. A complaint demanding an accounting by defendant corporation for stock illegally transferred, does not fail to state facts sufficient to constitute a cause of action in omitting to allege a specific description of the stock and a demand for its retransfer.</p> <p>4. Query. Is a municipal corporation liable for a tort committed by its authority by reason of some malfeasance or misfeasance in the performance of some duty which is not of a public, but only of a private, nature ?</p> <p>5. An action against a municipal corporation for an account of the value of certificates of stock transferred otherwise than as agreed upon in the certificates themselves, is an action ex contractu and not an action of tort.</p> <p>6. A municipal corporation is liable for an illegal transfer of stock by its officers or agents.</p>

This was an appeal by defendants from the following order : It appearing to the court that Lambert J. Jones, in his own right and as survivor of the firm of Jones & Jones, which was composed of Lambert J. Jones and Benson M. Jones, now deceased, has an interest in the determination of this action by reason of assignments, dated respectively December 22, 1873, and August 7, 1874, by the plaintiff to the said Lambert J. Jones and Jones & Jones of the note upon which the…

The complaint was as follows: The complaint of the above named plaintiffs respectfully shows unto this court: 1. That the defendants are a body politic and corporate, by and under the laws of the State of South Carolina, and doing business in the county aforesaid. 2.

The appeal in this case was from the following order: That case of the Chester Bank against the railroad was heard before me, and this same question to some extent was argued, and I had… Held: as I state, that when there is a charter of a railroad, that charter contains a stipula-' tion or contract which binds both sides. That old Dartmouth College case lias been accepted as law, having just recently been called in question, but is still recognized here as a legal principle.

The decree of Judge Aldrich in this case was as follows : The first question arising in this case is the validity of the note. After careful consideration of the evidence, I am satisfied that the alteration was an innocent transaction, under the mistaken notion that it could be done to secure further indulgence, and preserve the land mortgage. It vitiates the note, although no fraud was intended.

<p>This was an appeal by plaintiff from the following judgment:</p> <p>Under the code the only pleading on the part of a defendant in an action is a demurrer or an answer. This answer must contain all the defences, including those which are purely legal, as well as those which are equitable. In considering the sufficiency of an answer, therefore, the only question for the court is, whether in any aspect of the case, legal or equitable, the facts denied or alleged in the answer constitute a defence to the action, and is sufficient to constitute a defence to plaintiff’s claim to recover against him.</p> <p>The case has been argued with much ability, and I have been furnished by counsel with a large amount of authority bearing on the points at issue. It would require me to exceed any reasonable length for a Circuit decree if I attempted to discuss at length these interesting questions, and I must therefore confine myself to a very brief statement of my conclusions on the points I consider important in the case.</p> <p>The contract set up in the answer is in writing and under seal, and signed by plaintiffs and defendants, and it contains mutual covenants. I therefore conclude that there is a sufficient consideration affecting both parties to it. I also conclude that so far as it affects land, all the requirements of the statute of frauds have been complied with.</p> <p>It remains, then, to consider what is the proper construction of the contract, a copy of which is set out with the answer. By this contract the defendants have to dig, mine, wash', and deliver not less than 2,000 tons of rock within the first year, and not less than 4,000 tons in each and every succeeding year, “until the mines are exhausted.” I am unable to adopt the suggestion of plaintiff’s counsel that the obligation to mine 4,000 tons only extends to the amount mined in any one year during which plaintiff permits the mining to continue, and that plaintiff has therefore a right to require the defendants to discontinue the mining without the consent of the defendants. The obligation on the part of the defendants continues until the mines are exhausted, and that on the part of the plaintiff to pay for the rock continues in like manner “until the mines are exhausted.” If I had to select words to express continuance of these mutual obligations until the “mines are exhausted,” not for any one year, but for every year while any available rock remained in the land to be mined, I know of no more appropriate form of words than those used in the contract. These mutual obligations can terminate only by mutual consent, or the complete exhaustion of the mines, that exhaustion to be settled in case of disagreement in a manner provided in the contract; a most remarkable provision, if either party could terminate the contract at will.</p> <p>It is true that this contract binds the defendant to dig, mine, wash, and deliver the rock from plaintiff’s land, but this does not constitute the defendants agents, employees, or servants of the plaintiff. Plaintiff has reserved no right to direct or control the time or conduct of the defendants. Their only obligation to each other is that of independent parties to a contract by which their duties are to be regulated.</p> <p>I understand plaintiff’s counsel to claim that, whatever may be the true construction of the contract in the particulars above referred to, it is only a personal contract, and that the contract gives no right to the defendants to remain on the land of plaintiff to dig, mine, and wash the rock against the will of plaintiff, and that if plaintiff sees fit to order the defendants to quit work under the contract, the only remedy left open for the defendants is an action for damages for the breach of the contract on the part of the plaintiff. If the plaintiff’s claim in this respect is well founded, and the right of defendants to retain possession of the land and mine the rock can be terminated by a notice from the plaintiff, I do not see how the defendants can ever recover damages for a breach of contract. The defendants are entitled to be paid only for the rock delivered according to the terms of the contract, and this delivery, on plaintiff’s theory, will never be possible.</p> <p>I concede that, as a general rule, when a person covenants to do any particular thing, it is his business to see that all obstacles are removed; but when, as in this case, the only obstacle in the way is the consent of the other party to the contract, that consent must necessarily be assumed as one of the terms of the contract itself. In this case that consent is only to the performance of the only thing which the parties have agreed shall be done— the mining of the rock. It is one of those cases in which applies the maxim, “quando aliquis aliquid conce dtp, concederé videtur et id sine quo res uti non potest.” If the conveyance of a tract of land carries with it a right of way over donor’s land, when that right of way is absolutely necessary for its use and enjoyment, I see no reason why an agreement on the part of the plaintiff to pay for the rock on a certain tract of land, when mined and delivered, should not be accompanied in the same way with the right to enter the land and hold possession of it for the purpose of mining it, &c., because, without this right, the defendants cannot use and enjoy their right under the contract to demand and receive their pay for the rock mined and delivered. It seems to me that, if anything, this is a much stronger case ; because a failure to deliver not only means a loss of the $4.75 per ton for the rock, but a heavy liability for damages on the part of the defendants for a failure to deliver rock, and which, according to plaintiff’s theory of this case, they no longer have any right to do.</p> <p>It is not necessary to consider here whether the right claimed by the defendants is a lease, an easement, or a license. It is sufficient, if it exists. A parol license is revokable at the will of the licenser, but it is not; revokable when expenses have been incurred, and it has become coupled with an interest. 3 Kent, 452. If this were a right merely under a verbal contract, express in its terms, and were only a license, it would, in this view, be irrevocable. See Meetze v. Railroad Co., 23 S. 0., 1. I see no reason why a right, implied as one of the necessary incidents under a written contract under seal and on full consideration, should, as contended on the part of plaintiff, stand on no higher ground than a parol license not coupled with an interest.</p> <p>The case of Shaw v. Wallace, 25 JV. J., 453, seems to be full to the point that such a right to enter and hold possession of another’s land for mining purposes may be implied in a written contract, when not conveyed by any express words of the instrument. The indefinite time to which the right here claimed extends makes a more permanent interest than if a definite term of years were fixed. An indefinite term, like the period to which this contract runs, would make a freehold interest in land, while a definite term of years would-be only a chattel interest. 4 Kent, 26. ■</p> <p>I therefore conclude that the defendants have a right clearly implied under the written agreement to hold possession of plaintiff’s land and commit the acts complained of, and that the answer constitutes a complete defence to the action. It is understood that the complaint and answer state fully the case on the part of the plaintiff and the defendants, and that nothing can be accomplished by an amendment of the answer or complaint. The demurrer to the answer is therefore overruled, and the complaint is dismissed with costs.</p> <p>Plaintiff appealed upon thirteen exceptions, which, as stated in appellant’s argument, raised the following points :</p> <p>1. His honor, in construing a written contract, erred in implying, first, an obligation on plaintiff to continue to employ defendants to mine its lands for an indefinite term; and, second, in implying from such implied obligation, as an incident to it, the right in defendants to hold possession of plaintiff’s land and personal property against its will, to disturb its soil, dig up its phosphate rock, and use its plant in exclusion of the rights of the owner.</p> <p>2. The contract to which the defendants refer as determining the rights of the parties gives them no right to enter and hold possession of plaintiff’s land and to mine its phosphate rock, and his honor erred in so holding, and in holding that the answer constitutes a complete defence to the action.</p> <p>3. The case of Shaw v. Wallace (25 N. J., 453), relied on by defendants, and upon which the Circuit Judge bases his decision, is no authority for this case.</p> <p>4. The Circuit Judge erred in holding that in so far as the contract in question affects land, all the requirements of the statute of frauds have been complied with.</p>

This action was commenced in York County, and afterwards by consent transferred to Greenville. The case came up on the following exceptions: For that his honor erred— 1.

<p>A suit may be instituted on a note not due whenever the officer is satisfied that a proper case exists under the act of 1883 (18 Stat., 492), although the showing which satisfies the officer is insufficient to sustain a warrant of attachment.</p>

<p>1. Findings of fact by the master, concurred in by the Circuit Judge, approved.</p> <p>2. A debtor in failing circumstances may prefer his wife, if she be a bona fide creditor, provided there is no intent to hinder, delay, or defraud other creditors, and no benefit is reserved to himself as a consideration of the preference.</p> <p>3. There is nothing in the constitution (art. XIV., $ 8), that prohibits a husband from making a gift to his wife, provided he does not thereby affect the rights of existing creditors.</p>

The order appealed from was as follows: The defendant, Branyan, executed several mortgages to plaintiffs to secure debts then due. He afterwards conveyed the mortgaged premises to plaintiffs in satisfaction of his mortgage debt and his notes and mortgages were delivered to him. McGhee held a senior mortgage. Judgments were recovered by the defendants against Branyan after the execution of the mortgages and before the delivery of the title to the land.

This was an action by Arianna L. Dial, as executrix, against Jennie Agnew, commenced February 11, 1887. The charge of the judge to the jury was as follows: This is an action upon some notes signed by a woman who was' married at the time of the execution of the papers. We have a statute which declares that a married woman may contract and be contracted with as to her separate property as if she were unmarried.

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

The bond in this case was as follows: Ti-ie State of South Carolina.

The bond sued on in this case was as follows: Whereas T. S. Cavender has levied by attachment on two bales of cotton, alleging that the defendant owes him seventy-four dollars for rent and supplies due; and whereas the said W. H. Ward denies that he owes the said Cavender anything for rent or supplies, and desires the possession of said two bales of cotton, which is now in the possession of J. H. Taylor, trial justice: Know all men by these presents, that we, W. H. Ward and…

This was an action by Clara H. Bates against Jesse H. Taylor, The Palmetto Society, and others, to recover a parcel of land. The opinion sufficiently states the case.

<p>After the master had made report to the court of his sale under a previous order of the court, and of the non-compliance of the purchaser, the master’s powers under that order were exhausted; and a second sale, made with the consent of the purchaser pending a rule against him to show cause, was without legal authority.</p>

This was tin action by Elizabeth' B. Boykin and others against W. A. Ancrum, as trustee, and others, commenced after the death of Mrs. Glass (in 1885), and prior to August 23, 1886,” the date of the first reference in the case. The Circuit decree was as follows: The rule in Shelley’s case is invoked by the defendants: on which rule Sir Wm.

<p>Action by Jean R. Muir against John Thomson. The case is sufficiently stated in the opinion.</p>

This was an action by the Carroll County Savings Bank of Uniontown against David Fowble and Edward Lynch (and others not served) on their guaranty of a note as follows: “$656.

This was an appeal from the following decree : -• Plaintiff in the above entitled execution filed exceptions, at a former term of court for Marion County, to the report of commissioners appointed to admeasure a homestead to the defendant, William T. Evans.

<p>1. The heirs of A, the proper parties plaintiff, being before the court, but claiming as the heirs of B, they should be allowed to amend by giving-to themselves their proper description.</p> <p>2. Where plaintiff brings action for partition, alleging that two of the defendants are in possession, who answer claiming title, the rights of these defendants involve a legal issue which must first be determined by trial by jury before the matter of partition can be heard. Upon the question of title, it is not a case for an issue out of chancery, but for a trial by jury at law.</p>

This was an action by Jesse Thompson & Co. against D. B. Gillison, commenced December 17, 1886, to foreclose a mortgage bearing date May 26, 1886; and the Aiken Building & Loan Association and G. W. Croft, senior mortgagees, and D. W. Gaston, a junior mortgagee, were made defendants. The only question at issue was between the co-defendants, Gillison and the Building & Loan Association, the former alleging that his bond to the latter was usurious.

<p>1. Testatrix, residing in South Carolina, gave her estate, real and personal, in remainder, to such person as her daughter might appoint “by her last will and testament duly executed.” Held, that the power could be exercised only by a last will and testament executed according to the forms required in this State, and that a will executed according to the laws of North Carolina (where the daughter died domiciled), but not as required by South Carolina law, was not a valid execution of this power.</p> <p>2. The admission of the daughter's will to probate in the proper court of North Carolina, and also here on exemplification, does not make such will a valid execution of this power. ' <</p> <p>3. A point raised in the pleadings, before the Circuit Judge, and in the exceptions, but not passed upon by the Circuit Judge, is not properly before this court for consideration.</p> <p>Mr. Chief Justice Simpson, dissenting.</p>

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

<p>Where one who proves to ho a tenant in common has received the rents, and also made improvements, his account for rents should in equity he credited with the increased value hy reason of the improvements. It is not a case for betterments under the statute.</p>

<p>1. Rule I. of this court requires the return to be filed wdtbin forty days after the record constituting the return has been completed; and rule II. declares that the return shall consist of judgment roll, notice of appeal, and exceptions. The “Case” prepared for the appeal is no part of the judgment roll and therefore no part of the return.</p> <p>2. Where more than 40 days had expired since the completion of the record constituting the return, the clerk properly dismissed the appeal on application to him under rule I., notwithstanding the “Case” for the appeal had not been settled for that length of time.</p> <p>3. Judgment in the Circuit Court cannot be entered while a motion for new trial, on case and exceptions is pending.</p> <p>4. The “Case” required by section 302 of the Code to form a part of the judgment roll is the ease prepared on an application to the Circuit Court for a new trial, and not the “Case” for appeal.</p> <p>5. Rule 49 of the Circuit Court does not refer to the judgment roll nor to what papers shall constitute it.</p> <p>6. But the appeal having been taken in good faith and appellant having, in common with many others, honestly misconstrued this rule of court, he is entitled under the law to have his appeal reinstated. His failure before the 40 days expired to give notice of a motion to have his time for filing the return extended, does not prevent this court from granting such relief afterwards.</p> <p>7. The order of the clerk dismissing the appeal was not res judicata, nor does it prevent this court from restoring the cause to the docket. This case distinguished from Clark Bros. v. Wimberly, 24 S. C., 138.</p>

<p>Alexander C. Norton (father) and A. Richard Norton (son) were indicted for the murder of one Hamlin. During an altercation of words between Hamlin and A. R. Norton in a room, Norton fired at Hamlin, the ball taking effect in Hamlin’s neck. A. C. Norton then came in while some scuffling was going on, and at once commenced to cut Hamlin with a knife.</p> <p>So much of the judge’s charge as bears upon the matters considered by the court, is stated in the opinion, except his remarks upon the question of conspiracy, which were as follows :</p> <p>If you conclude, gentlemen, that the prisoners at the bar were acting in concert, that is, that they had conspired together to make an attack upon the deceased, either with a deadly weapon or otherwise, if you know that such a conspiracy existed, you need not inquire at all which wound was the mortal wound. If there was a conspiracy between the father and son to inflict great bodily harm upon the deceased, then there is no necessity for you to consider which wound killed him, because both are principals in that case. A conspiracy may be formed at the very time that the rencounter takes place. But if there is a conspiracy existing previous to the fight, or to the rencounter in which death follows, then both are principals, and no matter who inflicts the mortal wound both are guilty, if the attack was made with malice aforethought. You need not, therefore, inquire into the subject of which wound killed him, provided you are satisfied that the deceased came to his death from wounds inflicted by weapons in the hands of one or both of the conspirators.</p> <p>Defendants appealed upon the following exceptions, inter alia:</p> <p>I. Because the court erred in refusing the motion of the defendants asking that the solicitor be required to elect upon which of the two counts set forth in the indictment he would proceed.</p> <p>II. Because the charge of his honor, the presiding judge, was in violation of art. IV., sec. 24, of the Constitution, in'that it charged upon the facts.</p> <p>V. Because his honor erred in charging the jury that the prisoner had a right to “stop a witness and correct him upon a false statement.”</p> <p>XV. Because his honor erred in charging the jury as follows : “I do not see any room here for a verdict of manslaughter.”</p>

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

This was an action by A. W. Burnside, as probate judge, against Toliver Robertson, as executor of William Mills, who was a surety on the administration bond of M. M. Hunter. The opinion states the ease.

This was an original application to this court on behalf of Dr. J. R. Robbs for a writ of mandamus to be directed to Dr. A. N. Talley and others, members of the State board of medical examiners. The opinion fully states the case.