Volume 29 — South Carolina Reports

<p>Before Pressley, J., Greenville,</p> <p>The opinion states the case.</p>

<p>Before Wallace, J., Lancaster,</p> <p>The opinion states the case.</p>

Before Norton, J., Laurens, This was an action by Toliver Robertson, surviving partner in the firm of Mills & Co., against J. P. Hunter, commenced July 80, 1886. The opinion states the case.

Before Wallace, J., Newberry, This was a controversy without action between Stoughton N. Henderson and Edith E.-Henderson, plaintiffs, and John M. Kinard, administrator, defendant. The opinion fully states the case.

Before Fraser, J., Greenville, This was an action by Dulany & Co. against Elford k Dargan, and G. G. Wells, executor. See 22 8. <7., 304. Judgment had been entered against W. J. Dargan, one of the defendants, before the decree herein appealed from.

Before Norton, J., Newberry, The decree from which this appeal was taken, omitting its statement, was as follows: During the progress of the hearing before the referee, it was proposed on the part of the plaintiff herein, to show the relation subsisting between himself and his intestate in said judgment, for the purpose of showing how the jury reached its verdict.

These were petitions to this court — (1) by appellant, to stay proceedings pending his appeal; and (2) by respondent, to dismiss the appeal.

<p>Defendant being sued in a trial justice’s court in claim and delivery of personal property, appeared and answered, and at the trial objected to the jurisdiction of the officer upon the ground that the day named for trial was more than twenty days after the date of the summons (Code, I 71, ¶ 12). Held, that the objection was well taken, and that it had not been waived by acquiescence.</p>

Before Norton, J., Spartanburg, This was an appeal from a conviction of Geo. S. Turner for manslaughter, under an indictment charging him with the murder of Julius Metskie on June 27, 1887. While Mrs. Louisa Case, a witness for the defence, was on the stand she was asked: “Q. Did you see any scars about him (deceased) ? A. Yes, sir, plenty of them. Q. Where were they ? A. On his head. Q. Did he tell you how he got those scars ?

<p>Before Fraser, J., Greenville,</p> <p>This was an action by J. C. C. Featherston, assignee, against Louisa Dagnell and others. The case was heard by the Circuit-Judge upon testimony taken and reported by the master. The opinion states the case.</p>

<p>1. "Where, in action for partition, a defendant is made a party, not because he is a co-tenant, but because he claims some interest in the property, and by his answer he denies the plaintiff’s claim and sets up an independent title in himself, the question of disputed title must be adjudicated before a decree for partition can be made.</p> <p>2. In the absence of the grounds upon which a Circuit Judge based an order, and of exceptions indicating specific errors in the order, it will be sustained, if a proper order upon any grounds.</p> <p>3. Whore defendant, in action for partition o'f an intestate’s land, denied the rights of plaintiffs therein, plaintiffs were bound to prove that they wore heirs and that the land sought to be partitioned was a part of the intestate’s estate, and failing to identify as such the land described in their complaint, a non-suit and dismissal of the complaint were proper.</p>

<p>1. Testator declared as follows: “My will is that at mv death, I direct that all my just debts and funeral expenses bo paid out of my personal estate, then all the balance of my estate, real and personal, f direct be and remain in the possession of my wife and children for their support and the education of my children; and as my children shall arrive of age or marry, I desire that my.wife shall advance to such child or children such an amount, either in property or money, as she deems prudent, but not exceed a distributive share of my estate, as it is my intention for my said wife to keep as much of my estate as will make her comfortable during her widowhood, but should she marry again, then, she is to have no part of my estate. In the event of her marriage or death, I then direct that my estate, real and personal, shall be sold by my executor and equally divided amongst my children.” Held, that there was imposed upon this property in favor of the children no trusts which the court could enforce during the widowhood of their mother, but only recommendations left wholly to the widow’s discretion. Therefore a son, coming of age, could not invoke the aid of equity in his behalf to carry out the alleged trusts.</p> <p>2. The widow was life tenant and also administratrix of the estate. Held, that after the lapse of twenty-four years, and no unpaid debts of testator being alleged, her holding would be regarded as that of life tenant, and she should not be called upon to account as administratrix.</p>

Before Norton, J., Abbeville, This was an action by Robert Kerr, J. P. Kerr, and W. C. Price, partners as Kerr & Co., plaintiffs, against John D. Cochran, defendant. The complaint was as follows : The complaint of the above named plaintiffs respectfully shows: I. That they are partners under the firm name of Kerr & Co. II.

Before Norton, J., Abbeville, This was an action by Geo. R. Sibley, Asbury Hull, and P. B. Tobin, partners as Geo. R. Sibley & Go., and continued by the two last named as survivors, against S. O. Young and Rebecca J. Young, commenced January 11, 1887. The complaint was as follows: The plaintiffs above named, by Perrin & Cothran, their attorneys, complaining of the defendants, allege: I. That they, Geo.

Before Norton, J., Laurens, This was an action by John P. Hunter against John A. Mills, Toliver Robertson, executor of William Mills, deceased, and the heirs at law of Wm. Mills, for- specific performance, commenced November 10, 1885. The appeal was from the following decree: This case comes before me on exceptions to the master’s report, all the issues of law and fact having been submitted to him.

<p>Before Aldrich, J., Charleston,</p> <p>This was a prosecution of William Bee for burglary. The testimony for the prosecution was that Bee had been working in the restaurant for some days, but went off about 6 o’clock in the afternoon and was not seen again until found in prosecutor’s bedroom up-stairs at midnight. The prosecutor was in his bar-room and did not see Bee pass in, but the back room was open and so I was the bed-room door. The gate on State street had not been/ opened for two weeks, but after prisoner’s escape that night, the gate was found to be unlocked and open. Prosecutor’s trunk in his room was found open and some papers and a pistol gone. Prosecutor afterwards charged prisoner with the offence and he did not deny it. Other matters are stated in the opinion of this court.</p>

<p>1. In 1868 an administrator filed with the ordinary a return, in which was struck a balance against himself, which he claimed to have funded in Confederate securities, and the ordinary endorsed this return as follows: “Examined and passed and the administrator hereby discharged from said administration but in fact this was not a correct return. Held, that this act of the administrator in the proper public office was a disavowal of his trust and the statute of limitations began to run in his favor from the filing of this return.</p> <p>2. This disavowal having been made in 1868, the case was governed by the statute then of force, even as to minors who came of age after the now statute of 1870. Adults were barred in 4 years and 9 months (the administrator having died in 1870) from the date of the return, and the infants in 4 years and 9 months after attaining their majority.</p> <p>3. A judgment against the executor does not arrest the currency of the statute in favor of devisees as to real estate devised and in their possession.</p> <p>4. Nor is it necessary to have a return of nulla bona on such judgment before commencing action against the heirs to subject real estate descended to the payment of this debt.</p> <p>5. A question of fraud not made in the pleadings nor passed upon on Circuit, cannot properly be raised in this court.</p>

<p>1. A non-suit is proper where there is a total absence of testimony to all of the material averments in the complaint, or to any one of them; or where the plaintiff’s case is defeated by a defence admitted by him or established without controversy by his witnesses in their examination, direct or cross.</p> <p>2. A common carrier is not liable for an injury done to chattels in his possession, if he can show that the entire cause of the injury was an act of God — the burden of proof resting on the carrier.</p> <p>3. A mixed train of cars left Augusta. Ga., for Charleston, S. C., on schedule, just one hour after the first shock of the earthquake of August 31, 1886, and ran on schedule time, without extra precautions, until it was wrecked at a washout in the road caused by floods from mill dams which were broken by the earthquake. Held, that there was no negligence on the part of the railroad company, but that the earthquake — an act of God — was the entire cause of the accident.</p>

<p>1. Testator (who died in 1884) devised the house in which he then resided and 150 acres of land adjacent, to his widow and son, by the 2nd item of his will, and by the 3rd item, the remainder of his homo place to other issue. Held, that both of these items created specific devises which were liable to contribute pro rata to the payment of debts that could not be paid out of other property.</p> <p>2. Where two devises are specific, one cannot be construed more specific than the other, so as to relieve it from contributing to the payment of debts for which the other is held liable.</p> <p>3. Since the act of 1858 (12 Stat., 700), land acquired since the making of the will and passing under a residuary clause, is not a specific devise ; but where the land is then owned by testator and is referred to and designated in the will, the devise of such land is still specific, notwithstanding the act of 1858.</p>

Before Norton, J., Fairfield, Sallie Houston and her husband being on trial for receiving stolen goods knowing them to be stolen, the judge charged the jury as follows: This is an indictment for receiving stolen goods knowing them to have been stolen. All of the elements of the crime are adrnit•ted by the defendants, except the fact that they knew the goods were stolen.

<p>1. A trial judge is not called upon to advise the jury as to the weight to he given to the testimony of an accomplice, unless he is satisfied that one of the witnesses is an accomplice; and there was no error in his ruling that the witnesses in this case were not examined as accomplices.</p> <p>2. Where two are jointly indicted for grand larceny, the conviction of only one of them is not error of law.</p>

<p>Before Norton, J., Spartanburg,</p> <p>This was an action by Martha J. Booker against Robert Wingo. The opinion states the case.</p>

Before Pressley, J., Abbeville, These were three actions against J. C. Klugh, master for Abbeville County, and Cornelius McHugh, as assignee of A. J. Salinas & Son, to enjoin sales under three judgments of foreclosure against the three plaintiffs, John M. Miller, William R. Richey, and Richey & Miller. The case is thus stated by the Chief Justice in his separate opinion : A. J. Salinas & Son held a mortgage covering lands belonging to the appellants in the actions above.

<p>1. If a defence and counter-claim are improperly united, the plaintiff’s remedy is a motion to make the allegations of the answer more distinct and specific ; demurrer does not lie.</p> <p>2. Although the facts upon which a counter-claim is based are not stated separately from the matters pleaded as a defence, still an oral demurrer will not lie.</p> <p>3. The payment of usurious interest since the act of December, 1882, on a debt contracted prior thereto, will, in action on this debt, sustain a counter-claim for double the sum so paid.</p> <p>4. It seems that a payment of usurious interest prior to the act of 1882, will not sustain a counter-claim under that act.</p> <p>5. The Cii'cuit Judge having properly overruled an oral demurrer to the answer, he could not give judgment for plaintiff; nor could he have rendered judgment after notice of appeal from an order overruling such demurrer.</p>

<p>A testator devised and bequeathed a plantation and certain personalty to his executors in trust to apply the income to the support of his son Z and his family during his life, not subject to his debts, and after his death in trust to convey and deliver this plantation and a portion of the personalty to W. II., son of Z., to be the absolute property of W. II., and to divide, convey, and deliver the remainder of the personalty in equal shares to the other children of Z. In action by W. II., after the death of Z., to recover this plantation from a party in. possession, held, that the use was not executed in W. II., under the statute, as there were duties for the executors as trustees to perform, and therefore without a deed from the executors W. H. did not have the legal title and could not recover.</p>

Before Hudson, J., Chesterfield, This was an action to recover damages for injury received through the breaking of a bridge, which, according to the testimony, the drivers of the teams that fell through knew to be rotten and dangerous. The judge charged the jury as follows: You have submitted to you two actions, one by Cynthia Laney against the County of Chesterfield, and the other by Alexander Robeson against the County of Chesterfield.

Before Fraser, J., Colleton, The opinion fully states the case. The Hester deed was effectual from its date (Oct. 35, 1867), because recorded in time, while the Raysor deed of January, 1867, only became effectual from its record, January 12, 1872. 6 Rich., 437; 2 Hill Oh., 219; 11 Rich., 118; 1 Strob., 121; 20 S. 0., 197. Mere naked possession is not notice, but it must be a possession that will convince a reasonable mind of the necessity of inquiry.

<p>1. In the running of its trains, a railroad company must exercise ordinary care, such as prudent persons exercise in the management of their private affairs; and it is the absence of this degree of care which constitutes such negligence as will render the company liable for mules killed by a running train. The charge in this case having held the defendant company to a higher degree of care, a new trial was granted.</p> <p>2. Persons in charge of a running train of cars are not required to exer- , cise the same degree of vigilance as to stock on the track whore they arc prohibited from roaming at large as where they are not so prohibited ; and therefore the judge erred in instructing the jury that the stock-law had nothing to do with the case.</p> <p>3. The judge erred in submitting to the jury a question as to which there had been no testimony.</p>

<p>Before Fraser, J., Barnwell,</p> <p>The appeal was from the following order sustaining a demurrer:</p> <p>The defendant had filed an answer containing a general denial of the allegations in the complaint, but submitted an oral demurrer that the complaint does not state facts sufficient to constitute a cause of action. The case was heard on this demurrer. The complaint alleges that there was in said county, on a “public road” leading from Blackville to Barnwell, “a deep and dangerous hole or trench” which remained open and unrepaired for about three weeks; that the deceased, J. A. All, while travelling on said road in the night time, in his wagon containing a gin, was instantly killed by the wheel of said wagon running into said hole, and said gin being thrown upon him; that the said deceased exercised due care, and that the defendant was guilty of negligence; that by “reason of said negligence on the part of the defendant resulting in the death of the deceased, the plaintiff, as his widow and administratrix, is damaged ten thousand dollars, and that she brings this action for her own benefit and the benefit of the family of the deceased.”</p> <p>No question was raised in argument as to whether this complaint contains sufficient statement of facts to constitute a “defect in the repair of a highway,” under section 1087, General Statutes, or whether it was necessary to allege that the load carried in the wagon of the deceased did not exceed “the ordinary weight,” or whether the word family is a sufficient description of the persons for whose benefit an action can be brought under sections 21.83-4, General Statutes. I will assume that in these respects the complaint is sufficient.</p> <p>It will be observed, however, that the complaint does not state a cause of action in favor of the administratrix, as such, to recover an amount in damages that would come to her hands to be administered in due course : 1st, to the creditors of the intestate; and 2nd, to the distributees generally, who would be entitled under our statutes of distribution. The complaint states a cause of action, or what it claims to be a cause of action, in favor of the administratrix for her own use and benefit, as widow, and for the benefit of the family, meaning thereby, I assume, the children of the surviving parent, who alone are provided for under sections 2183-4, General Statutes. It is not, therefore, a question whether an administratrix can bring an action in the cases arising under section 1087, but whether such an action can be brought for the purposes and for the benefit of the persons provided for by sections 2183-4.</p> <p>Municipal and other legislative corporations, like the defendant in this case, established as a part of the government of the State, are not liable to a civil action for damages sustained by reason of failure to perform public duties imposed on them, unless the legislature provides by statute for a right of action against them. Young v. City Council, 20 S. 0., 116. There are certain actions which our statutes permit to be brought against the counties in the Court of Common Pleas; and a dictum in Jennings v. Abbeville County (24 S. C., 548), recognizes as one of them an action for damages, caused for “defects in the repair of highways,” under section 1087. If such an action is ex delicto, then, under the general rule, never modified as to injuries to the person except by sections 2183-4, the cause of action died with the person injured, unless it survives by virtue of sections 2183-4. Lord Campbell’s Act. If, however, the action would be not ex delicto, but ex contractu, it is not so clear that such would have been the result.</p> <p>As to causes of action which survive, see Chitty’s Pleadings, 68; and as to the form of action in cases where the causes of action are, as in this case, the creation of statutes, see Chitty’s Pleadings, 106-8-9-12-15, and JEstes’s Pleadings, § 317. It seems that these actions were always brought in form, ex contractu, debt, or assumpsit, and not ex delicto, case, or trespass. While, therefore, it may be difficult to separate the idea of tort or wrong-doing from any act, or injury to the person, resulting in death, I am by no means sure that these claims for damages, given by statutes as damages or compensation for losses from a definite state of facts, and given by statute alone, are not for torts or wrongful acts in the true sense of the words, but debts, mere statutory liabilities, which are independent of any wrongful act of the defendant, and which therefore survive to the personal representatives for the general purposes of administration.</p> <p>This question, as to whether a cause of action under a statute which gave damages for selling intoxicating liquor to an inebriate, survived to the personal representative, so far as the selling the liquors caused injury to the person, was raised in a case of Kilburn v. Coe, 48 How. Pr., 147. The court held that the action survived as to injuries to property, and as that was enough for the purposes of the point before the court, the other question was not decided.</p> <p>The complaint in this case must rest upon the claim made for the widow and family under Lord Campbell’s act. §§ 2183-4. As I understand section 1087, the- liability of the county for damages resulting from “defects in the repair of highways” is entirely independent of any “wrongful act, default, or neglect” of the county. The liability of the county is as absolute as that of an insurer. The imputation of wrong-doing cannot be made to the State, or to any of these legislative corporations established as a part of the government of the State, any more than formerly to the king, except as provided by the constitution or some act of the legislature. The claim is not based in these cases on negligence, as no amount of care will be a defence to the action, when it is simply shown that damages have been the result of “defect in the repair of a highway.” If in these cases the claim is not based on negligence, it is difficult to see in what other form an ideal person like the defendant, the County of Barnwell, can be guilty of a wrongful act.</p> <p>This construction has been given by our Supreme Court to section 1511, General Statutes, in reference to the liability of railroad companies for property destroyed by fire communicated by its engines, or originating within the limits of its right of way in consequence of the act of its agents. The court says that, “the company is liable * * * without any qualification whatever either as to negligence or otherwise.” Thompson v. JR. R. Co., 24 S. C., 370. The same rule has been applied elsewhere under a similar statute to turnpike companies. Yale v. Hampden, £e., Turnpike Co., 18 Pick., 357 ; and to towns, Merrill v. Hampden, 26 Me., 234; Horton v. Ipswich, 12 Cush., 488. If the county commissioners neglect to repair highways, they are liable under section 1088, General Statutes, to an indictment; this is a different thing from charging the county itself with negligence.</p> <p>I have reached my conclusions in this case not without misgivings as to their soundness, but the result of my consideration of the principles involved is that the liability of the county for damages resulting from “defects in the repair of a highway,” does not arise from any negligence on the part of the county, or any other wrongful act, and therefore that the action which has been brought for the benefit of the widou> and family of the deceased cannot be maintained, whatever right of action the administratrix may or may not have brought for the purpose of general administration. To allow an amendment would change the whole scope and purpose of this action, and therefore cannot be allowed.</p> <p>It is therefore ordered and adjudged, that the demurrer to the complaint be sustained, and the complaint be dismissed with costs.</p> <p>Plaintiff appealed on the following grounds:</p> <p>I. Because his honor decides that the action given by the statute against a county to a person injured through a defect in a highway does not depend upon negligence, but is absolute and unconditional; and as actions for injuries resulting from negligence only, survive to the legal representative of a person dying from such injuries, the action in this case cannot be sustained.</p> <p>II. That his honor, in holding that such actions can be maintained by the legal representative of one killed, only -when to sustain such actions it is necessary to allege negligence as the ground of the action, gives a literal construction to the statute, which kills the spirit and defeats the intention of the law.</p> <p>III. That his honor errsj as it is repectfully submitted, in holding “that the liability of the county for damages resulting from defects in the repairs of a highway does not arise from any negligence on the part of the county, or any other wrongful act,” whereas the fact is, and his honor should have held, that but for the negligence, or default, of the county, defects in repair of highways would not and could not exist.</p> <p>IV. That his honor errs, as it is respectfully submitted, in drawing any distinction between the different forms of action, or in holding as material the beneficiaries of the action, as set forth in the complaint; but if the facts alleged in the complaint are sufficient to sustain an action on the behalf of the plaintiff, administratrix, the demurrer should have been overruled.</p> <p>Y. That his honor errs, as it is respectfully submitted, in holding that an amendment to supply the defects in the complaint, if any exist, could not be allowed; the action is by the administratrix, the cause of action is the death of her intestate, caused by a defective highway, and in any form in which the action could be brought, the parties and the cause of action would be the same.</p> <p>YI. That the said judgment and decision sustaining the demurrer and dismissing the complaint are otherwise contrary to law.</p>

<p>Before Kershaw, J., Chesterfield,</p> <p>This was an action by John T. Little to recover the possession of certain real property from Anna White and others, commenced May 11, 1886. The opinion states the case. The deed in question was dated in March, 1881.</p>

<p>Before Witherspoon, J., Edgefield,</p> <p>This was an action by Wood, Tabor & Morse to recover from Savannah Timmerman a tract of land conveyed to her by her husband, the other defendant, and to set aside as fraudulent a deed to her from her husband, executed after the entry of a judgment against him, under which the plaintiffs had purchased the property at sheriff’s sale. The decree appealed from was as follows :</p> <p>It appears by the return of the sheriff that M. B. Timmerman, at the time of said sale by the sheriff, owned no other land subject to levy and sale. The land in dispute was levied upon by the sheriff of Edgefield County, as the property of M. B. Tim-merman, under the execution in favor of the Navassa Guano Co., as aforesaid, and sold on salesday in May, 1886, to plaintiffs for $1,000, to whom the sheriff made titles June 25, 1886.</p> <p>The Navassa Guano Company’s execution, under which the land was sold, was the only execution against M. B. Timmerman which could create a lien on the land, prior to the conveyance of the land to the wife. The sheriff could only sell and convey to plaintiffs such leviable interest as M. B. Timmerman had in the land at the time that he conveyed to his wife. The lien of judgments is regulated by statute. Section 310 of the Code expressly provides that final judgments shall not create a lien upon real property of the judgment debtor, “exempt from attachment, levy, and sale under the constitution.” Cantrell v. Foivler, 24 S. C., 428. As M. B. Timmerman was, at the time that the judgment was obtained and still is, the head of a family, and owned no other lands, I conclude, as a matter of law, that M. B. Tim-merman was entitled to a homestead exemption out of the lands in dispute, and that his right to said exemption has not been affected by either the levy, sale, or conveyance by the sheriff', as aforesaid.</p> <p>It is contended that by his laches and negligence in not applying for his homestead exemption, the defendant, M. B. Timmerman, has forfeited any right he may have had to a homestead exemption out of the land in dispute. The right to a homestead exemption is provided by statute, under section 1994 'of the General Statutes, and the right to the exemption does not depend upon the application of the party entitled to it. The statute provides that a homestead shall be exempt to the head of the family, and makes it the duty of the sheriff before selling land to set off a homestead, and to appoint an appraisor for the judgment debt- or when he neglects or refuses to select one, after notice from the sheriff. In view of the fact that the defendant, M. B. Timmerman, had conveyed the title to the land to his wife, at the time of the levy, the sheriff’s conduct in not taking any steps to lay off the homestead as required by statute, is not surprising. It, however, seems clear, under the statute, that the omission of said defendant to apply to the sheriff for a homestead exemption could not now deprive him of the right to said exemption. If it appeared that the value of the land in dispute did not exceed the homestead exemption, plaintiffs could acquire no interest in the land under the sheriff’s deed, and the complaint herein should be dismissed. I find as matter of fact that the value of the land in dispute exceeds the value of the homestead.</p> <p>I find as matter of fact, that M. B. Timmerman conveyed the land in dispute to his wife, Savannah Timmerman, with intent to hinder, delay, and defraud plaintiffs and his other creditors aforesaid, and that Savannah Timmerman, the wife, accepted such conveyance without paying valuable consideration and with knowledge of the fraudulent purpose on the part of her husband. I conclude as matter of law, that the deed of conveyance of the land in dispute by M. B. Timmerman to his wife, Savannah Tim-merman, should be set aside as a fraud upon the creditors of M. B. Timmerman.</p> <p>It is contended that the effect of allowing the homestead exemption, after setting aside the deed from the husband to the wife on the ground of fraud, would be to enable M. B. Timmerman to take advantage of his own wrong. Such would be the result, if the creditors of M. B. Timmerman ever had any interest in the homestead exemption. I cannot see how creditors could be hindered, delayed, or defrauded by the transfer of property that is exempt by law and cannot be held liable to contribute to the satisfaction of their debts. As the creditors had no interest in the homestead exemption at the time of the conveyance to the wife, I fail to see how they could be benefited, so far as the homestead exemption is concerned, by the setting aside of said conveyance. The deed from the husband to the wife is set aside on the ground that it hinders, delays, and defrauds the creditors of the husband to the extent of the husband’s interest in the land, over and above the homestead exemption. The effect of setting aside the deed from the husband to the wife, so far as the creditors are concerned, is to leave the land in dispute in the same condition as if no such conveyance had ever been made. As between the parties to this action, I conclude as matter of law, that the judgment under which the land in dispute was sold, created a lien upon the land, and the sheriff’s deed to plaintiffs conveyed a valid title to plaintiffs to the interest in the land of M. B. Tim-merman, the judgment debtor, subject to M. B. Timmerman’s right of homestead exemption out of the land. To this extent plaintiffs have established a valid title to the land in dispute, and are entitled to judgment for the recovery of the possession of the land, with costs.</p> <p>It is therefore ordered, adjudged, and decreed, that the deed of conveyance of the 242 acres of land, more or less, in dispute, from the defendant, M. B. Timmerman, to the defendant,'Savannah Timmerman, dated July 31, 1885, referred to in the complaint, be set aside as fraudulent. * * * It is further ordered and decreed, that the defendant, M. B. Timmerman, do within twenty days from notice by the clerk of the filing of this decree, apply by petition to the master for Edgefield County to have a homestead assigned to him out of the land in dispute, &c. It is further ordered, adjudged, and decreed, that plaintiffs have leave to enter up judgment and issue execution for the possession of all of the 242 acres of land, more or less, in dispute, over and above the homestead to be assigned the defendant, M. B. Tim-merman, as herein directed, together with the costs of this action.</p>

Before Hudson, J., Williamsburg, This was an appeal from an order of non-suit, which was as follows: It is conceded by counsel on both sides, in their argument of this matter, that this is an action for false imprisonment. It is conceded that a warrant was issued by trial justice Hammett on 16th day of February, 1886, upon an affidavit sworn out by the present defendant, W. H. Kennedy.

<p>1. In action to set aside a deed as fraudulent because voluntary, it may be shown by parol testimony, if it be otherwise competent, that the deed was based upon a valuable consideration, although on its face purely voluntary ; but this may not be shown by loose declarations of the grantor.</p> <p>2. The grantee claimed that the real consideration of the deed was a legacy received by his mother, the grantor, for him. To establish this, it was necessary for the grantee to show clearly that his mother had received this legacy, and that he had released her from her indebtedness to him therefor in consideration of the conveyance.</p> <p>3. An attorney should not be permitted to testify as to his recollection of payments made by him for an executor on account o'f a legacy, until proof of loss of receipts which were taken for such payments. But such testimony is not incompetent on the ground of privileged communication.</p> <p>4. Where an executor makes an absolute deed, prepared by his attorney, to a mother alone, for a lot of land, it will require strong evidence to show that the deed was intended for both mother and son in payment of a legacy to them.</p>

<p>Before Norton, J., Edgefield,</p> <p>The defendant, Robert T. Jones, was indicted for the murder of a father and two sons on the same day, and was put upon his trial for the murder of the father, Charles Pressley, sr. The Circuit Judge charged the jury as follows :</p> <p>Gentlemen of the Jury: You have been appealed to by the State’s counsel and by the counsel for the defence in regard to the discharge of your duty. Perhaps the views of the counsel were conflicting to you, and may have put you in some error on the question, so I will say something to you about that. You and I sit here for the trial of this cause. You are the triers of the fact, which you get from the evidence, as applicable to the law as I give it to you. The proper division of these duties is important to the ends of justice. You are impartial men of sense, chosen from the vicinity. You know the witnesses. I am presumed to know the law, which is considered stable and applicable to a similar state of facts wherever found, and if I mistake it, I may be corrected. If, coming to a right conclusion upon the facts, you should mistake the law, your erroneous judgment could not be corrected. We are impartial. Attorneys for either side are not supposed to be so, and we are to take their statements, both on the law and the facts, guardedly. We are to investigate, respectively, the law and the facts for ourselves. Bear in mind the evidence which has been excluded, and give it no weight in coming to your conclusion. If counsel has inadvertently stated such to you, you will give it no weight. Counsel has very properly said that it is your memory of the facts, not mine, nor his, nor the State’s attorney, which is to govern you.</p> <p>You are not to take the law from counsel, nor his books; books are sometimes misleading, and the whole of the case is not brought to your attention, and you are not presumed to be able to have sufficient knowledge of the law to bring up the cases which are not read before you. One side claims that the same case means one thing, the other side claims that it means another thing; hence the necessity of an impartial interpreter who has made the law his study.</p> <p>You are appealed to as an angel of mercy to save the defendant; you are appealed to to resent the persecution of the defendant, but none of these things ought to move you. You are not a mob to be influenced by passion ; you are not to do anything but to find the facts, from the evidence, fairly, impartially, and without prejudice, let the result be what it may. You must speak truly, according to the evidence, and according to the classical derivation of the technical name of the formal announcement of that finding, and without regard to yourselves. I should feel insulted if I were asked to find the law out of sympathy; but, because insulted, I would, nevertheless, find the law in favor of the party who insulted me, if it were truly in his favor. So, no matter whether you like what has been said to you by the one side or the other, you will find the facts as they come from the evidence fairly, impartially, and without prejudice.</p> <p>It is an unpleasant duty to sit upon a jury in any case, at any time, and pass upon the rights of parties, where there is a contention ; it is much more unpleasant where much is at stake, especially when one of the parties litigant suspects the jury of such bias that he cannot fairly try the case; and, doubtless, one of the jurors in this action feels greatly embarrassed by the position he occupies, without fault on his part, and I therefore desire to say, for his comfort, that the surest way to enjoy a clear conscience and the well done of his fellows is to discharge his duty fearlessly and impartially, as he professed his ability to do, and has by a solemn oath sworn to do. That duty is to find the facts from the evidence adduced on the stand. The prisoner, by selecting him as a juror, has waived the benefit of anything to which the juror might have been able to testify, no matter how essential to the making out of his defence. The juror can neither consider any fact which comes within his personal knowledge, nor can he communicate it to the other jurors without being in contempt of the court and violating his solemn oath; and the other jurors could not innocently listen to such statements — they would be unsworn to and unworthy of belief.</p> <p>Murder is the killing of any person with malice aforethought, either express or implied. Manslaughter is the unlawful killing of another, without malice express or implied. Homicide, in self-defence, is where one who hath no other possible means of preserving him from death or great bodily harm by one who combats with him, on a sudden quarrel, kills the person who reduces him to such inevitable necessity. These general definitions will be borne in mind as you shall consider them more in detail in connection with the evidence.</p> <p>Much time has been consumed and much expense incurred in establishing the relative status of the rights of defendant to the possession of the land where the homicide is said to have occurred. If you believe from the testimony that the defendant and Charles Pressley purchased the land jointly from the Sinking Fund Commission; that, after certain payments were made, Charles Pressley, in the presence and with the assent of defendant, rescinded the bargain of purchase and rented the land, (defendant is estopped from denying his presence and assent to such arrangement if he witnessed the paper, which Capt. Brooks testified that he did, and at the time of such witnessing knew what was being done), then the law applicable to such facts is that defendant had lost all rights under said purchase. Defendant testifies that in consideration that he had paid $200 towards the before mentioned purchase of the land, Charles Pressley agreed to rent the whole of the land included in said purchase, and to give to defendant a certain portion thereof, including the field of blood, rent free, so long as he, Charles Pressley, could hold it; that under this agreement he, the defendant, had been in possession of the land for over two years; that on Monday before the killing took place he first heard that Charles Pressley intended to revoke the parol tenancy.</p> <p>If you believe this statement, then the agreement constituted a tenancy at will, and under the decision in Cfodard v. Railroad Company (2 Rich., 346), that more than two years having elapsed since its creation, it became a tenancy from year to year, and that defendant was entitled to three months' notice to quit, unless Charles Pressley, by reason of having no title, except as he procured it annually, was unable to create any title except what he had at the time of the contract of letting to defendant, and even then, I should say that defendant had the right to retain possession under the agreement, at least until he had reasonable notice to quit, which ought to be longer than from Monday to Wednesday. I charge you, therefore, if you adopt that statement of facts, that the Pressleys were trespassers on the possession of defendant. If they were trespassers, how did they commit the trespass? Peaceably and quietly, or violently and riotously? Plow far off were defendant and his employees? How far his wife ? Plow far Charles Brooks and Dan Mitchell ? How far John B. Pressley? What were they doing ? Were they armed ? All these are pertinent inquiries to aid you in passing upon the further facts in the case. As against trespassers, two methods of redress are frequently presented to the injured party, the one by invoking the aid of the officers of the law, the other by the owner’s becoming judge and executioner of the law in his own behalf. When one adopts the latter course, the law requires of him the exercise of great care lest he in turn become an offender.</p> <p>Were Edward Pressley, jr., Charles Pressley, and Edward Pressley, sr., killed in this county on November 18,1885? You have heard a number of witnesses testify to the fact, among them the defendant. Do you believe it? If So, who killed them ? You have heard the testimony of Charles Brooks and the defendant on that subject. Do you believe them, or either of them, so far as to say that defendant did it ? If so, then it .only remains to look into the circumstances of the killing to find the motive— intent; whether with malice; on sudden heat and passion without malice; or without fault on his part to preserve his own life or his body from serious harm. As this is decided, so will be the crime — murder, manslaughter, or self-defence. Malice is called malice aforethought, and this is true; it must be formed prior to the killing, but it is sufficient if it be but a second before, so that it be wilfully done.</p> <p>Now, let us go back to inquire into the relation of defendant to the Pressleys. Was it kindly? If so, when and where? Had defendant done anything particularly showing kindness on his part to them ? If so, when ? Was there a family relation between them ? If so, how close, and how long since it was formed ? Did these kindnesses and family relations, if such existed, influence defendant to go in with Charles Pressley in the purchase of the Jennings land ? Did they go into such purchase? If so, did defendant spend nearly all. the money he had in such purchase? Were all the Pressleys recognized by defendant as interested in such purchase, and Charles’s name alone used merely for the sake of convenience? Did Charles agree that defendant could have about fifty acres of that land free of rent as long as he could keep it ? If so, did Charles attempt to repudiate that agreement; and did that intent become known to defendant for the first time on Monday before the killing and through Edward Pressley, sr. ? If so, what feelings did it beget in defendant ?</p> <p>To solve the last question your general knowledge of human nature may be brought to bear upon the evidence adduced on the stand as to the conduct of the parties. If Edward Pressley, sr., and defendant met on Monday previous to the killing, under ■what circumstances ? what was their conduct towards each other, and what was their feeling toward each other when they parted ? Did Robert Jones on Monday or Tuesday before the killing make threats against the Pressleys, as testified to by Dan Mitchell and Sam Mitchell ? You heard their testimony and the contradiction of it. It is for you to determine. How far can the noise, if any, of the ploughman be heard ? How near was defendant to the Pressleys the day they were killed ? Did he work near them? Did he walk near them? Did he get his gun ? If so, where, and for what purpose ? Where did he first see the Pressleys, and where first hear them, if at all, on that day prior to the immediate time of the killing? Did they go to the defendant just prior to the killing ? Did he go to them ? . If either, had they (Pressleys) been at work just before the killing ? How near to his latest work was each killed ? How1 did the fighting commence ? Defendant alone testifies to that. Did he speak truly? You know and have had his testimony, and as to his character both for peaceableness and veracity. You saw his manner on the stand. You are to decide the facts. You may believe him in preference to every other witness, or you may believe any other witness in preference to him, or you may disbelieve the whole or any part of what he says — exercise your impartial judgment.</p> <p>You ha,ve also heard the testimony of Charles Brooks as to the killing of Edward Pressley, jr. You saw him on the stand. You know him; you have heard witnesses testify as to his character, and also as to the probability of his having been able to hear and see the transactions of which he testifies; also as to contradictions and corroborations of his testimony. You also heard defendant testify as to this killing, as also that of Charles Pressley. Are their statements reconcilable ? On which will you rely, if on either? Which of the Pressleys was killed first? If defendant had any ill-will against them, against which one would he have had the most? All of these inquiries, and many others which will doubtless suggest themselves to you, gentlemen of the jury, are merely preliminary to the issue. As to the character of the killing of Edward Pressley, sr., the same two witnesses— Charles Brooks and the defendant — testify as to the manner of that.</p> <p>Eor the purpose of refreshing your memory I will read what the stenographer has taken down as to what Charles Brooks and the defendant said. You are to judge of its correctness. I will take them in their order, and read you their testimony in regard to the particulars of the killing; you are to judge as to whether the testimony is the testimony as given on the stand.</p> <p>Major Gary.1 (Interrupting his honor.) I do not know whether it is necessary for me to object to its being read. I do not know of any precedent for it. I object to its being read from the stenographer’s transcript.</p> <p>Judge Norton. Mr. Stenographer will please note exception for «Major Gary.</p> <p>Gentlemen of the jury, I will read it to you as my statement of what the testimony is:</p> <p>Charles Brooks’s testimony :</p> <p>“Mr. Pressley went on back where his boys, Edward and Charley, were ploughing; just as he got out of sight of me I heard a gunshot shot off twice; immediately afterwards I heard somebody holler; I looked in the way they were ploughing; I saw two men running, Jones in front and young Edward Pressley behind him; just as he got to the pine thicket Jones stopped; Edward Pressley ran up to him; I saw them clinch one another; he seemed like he was using his arm like he was using his knife.</p> <p>“Q. Which Pressley ran after him ?</p> <p>“A. Young Edward Pressley; just in a few minutes Edward Pressley fell; then Mi*. Jones walked off from him towards old man Pressley and stopped; he stopped and loaded his gun, and immediately after he got it loaded he walked in about five or ten steps of old man Pressley; he said to him, ‘Dog gone you, I will shoot you’; immediately as he spoke, he shot and Mr. Pressley fell.</p> <p>“Q. How far were you from the scene of difficulty ?</p> <p>“A. Something like 300 yards. When he shot old man Pressley I had walked about 75 yards from my crib that way and stopped ; I had walked nearer to them.</p> <p>“Q. How long was it after Edward Pressley, jr., was shot when you walked toward them ?</p> <p>“A. About five minutes.</p> <p>“Q. Was that before or after old man Pressley was shot ?</p> <p>“A. Before. While he was loading his gun I walked that distance.</p> <p>“Q. How far were you then from Jones?</p> <p>“A. Something like 200 yards.</p> <p>“Q. At that time?</p> <p>“A. Yes, sir. * * * I heard Mr. Jones say to Mr. Edward Pressley, sr.: ‘Dog gone you, I will shoot you.’ Just as he spoke he raised his gun and fired.</p> <p>“Q. What did Edward Pressley, sr., do ?</p> <p>“A. He fell, from all I could see.”</p> <p>Here is the prisoner’s statement:</p> <p>R. T. Jones’s testimony:</p> <p>“Q. What did you find them doing when you got there ?</p> <p>“A. As I got close to them they stopped ploughing; they unhitched the horses before I stopped; I approached Charlie; he had been ploughing, and I said : ‘Charlie, I told grandpa the other day none of you must plough in my land until it is decided.’ I says : ‘I am perfectly willing to leave it to three disinterested men to say what rights I have ; if they say I should pay rent, I am willing to do it, or if they say I should lose the land, I am willing to lose the land.’ I told him (Charlie), ‘I would rather you get off here until it was decided.’ He says: ‘We don’t intend to get off the land at all; if you don’t leave it, we will kill you.’ At the same time he made at me; as he raised from the plough he pulled his hand out of his pocket with something in his hand which I supposed was a knife; I believed it was a knife then, and I believe it now ; he made at me with his hand drawn ; at the same time they were all making to me; Charlie came this direction (indicating); Edward was behind; I was between them; Mr. Pressley was a little below me; they were all making to me; at the same time Charlie made at me; as he was coming I told him to stop. ‘Charlie, don’t come to me; if you do, I shall have to shoot you.’ He still advanced on me ; I think Ed. threw a rock at me; as I looked around he had rocks in his hand; a rock brushed my hat; about the same time Charlie was making at me in front with his knife; Ed. threw a rock ; that time I drew my gun on Charlie; he had got so close I was obliged to shoot him to keep him from killing me; at the same time Ed. was making right at me; he (Charlie) had his knife drawn this way (indicating); as well as I remember he made to run under me; this hand was drawn this way (indicating); I had my gun drawn and says: ‘Stop, or I will kill you’; he stooped to run under and I shot him; at this time Ed. wTas on me, with a large rock in his right hand; as I went to turn round he was close enough to strike me.</p> <p>“Q. Why didn’t you shoot him ?</p> <p>“A. He could have caught my gun; I didn’t have room to get my gun on him; I run then about 30 steps, I reckon; he was on me all the time; was so close, almost right on me, I couldn’t defend myself with my gun; after running some distance I found he would catch me, and I could not defend myself with my gun; I got my knife ready; as I whirled on him he had a rock drawn and struck at my head; he struck my breast with a rock, on my collar hone; I had my gun; he still held a rock in his right hand, still continued to strike me in the face and head; I defended myself the best I could until I got my knife ready; he struck a second lick on my arm; bled pretty considerably ; by this time I got my knife ready ; I cut him to keep him from killing me; he was doing his utmost to kill me; I had to kill him to keep him from killing ine; I was running to a thicket; when I got to the edge of the pine, when I found he would catch me, I turned, and, as I whirled, he struck me on the breast; as soon as I got away from Ed., I started back to my house; I started in that direction; Mr. Pressley made for me then with a large stick in his left hand and something in his right about the size of a pistol; I supposed it to be a pistol; he cut me off from my house; made at me; as he did, I told him, I says: ‘Mr. Pressley — grandpa, don’t come to me — if you do, I will have to shoot you.’ He says: ‘I am going to kill you.’ I says: ‘Don’t come any closer.’ This time he was on me, making for me; he threw his right side this way (indicating), and I shot him as he was presenting his right hand in that position (indicating).</p> <p>“Q. Was he making at you to fight you ?</p> <p>“A. Yes, sir; I told him two or three times, if not four times, not to come any closer; he had something in his hand that resembled a pistol more than anything else.”</p> <p>It is testified that the defendant surrendered himself very promptly and didn’t seek safety in flight. What inference do you draw from that ? The defendant endeavors to show that the only witness produced by the State to prove that he was an eye witness to the killing of the Pressleys was not in a position to see and hear what he testifies to. Did the defendant think at the time that there was no other eye witness to the killing of Charles and Edward Pressley, jr., than Edward Pressley, sr. ? If so, do you infer any motive from that? You may not be able to answer one or more of these questions and such others as will present themselves to you when considered singly or in groups; but you not only may, but it is your duty, to take all the testimony together and upon a consideration of the law find the facts.</p> <p>Let us return now to the definition of the three degrees of homicide. We will take them in their inverse order, and, beginning with self-defence, we find that to plead that successfully defendant must have done the killing, if ho did it, believing at the time that he was in imminent danger of death, or of serious bodily harm, and without other means of escape, and without wilfully putting himself in that position of danger; and not only must he believe it, but a man of reasonable firmness, under the like circumstances, must have believed it. Was defendant in fault ? Was he on land to which he had the right of possession? From what point did he approach Edward Pressley, sr. ? For what purpose? Was it to order Edward Pressley, sr., from the land? If not (and there is no evidence tending to prove it; on the'contrary, defendant testifies that he was on his,way home), the possession of the land can have no influence in determining the question of self-defence in the case of the killing of Edward Pressley, sr., whatever influence it may have had in determining the question of self-defence as to the killing of Charles Pressley and Edward Pressley, jr. Was the defendant simply going home ? Did he observe Edward Pressley, sr., before he came within dangerous proximity to him ?</p> <p>From any circumstance of a day or two, or of only a few minutes previous, did defendant have a right to expect a difficulty in his approach to Edward Pressley, sr., if he, did approach and did see him ? If so, then the evidence would tend to show that he was not avoiding, but, on the contrary, was willing to engage in the difficulty ; and if that theory be adopted by you, the law of self-defence will not apply, much less if you should find any previous malice. If, on the other hand, you believe that defendant was simply on his way home, and didn’t observe Edward Pressley, sr., until he was, as he supposed, in imminent danger of life or serious bodily harm by an assault from Edward Pressley, sr., then the law of self-defence will apply, provided you believe, further, that a man of ordinary firmness, under the circumstances proven, would have believed the same thing. Not whether Edward Pressley, sr., had a pistol, or whether, if he had, he could have endangered the life of defendant if he had attempted to use it; but whether defendant had knowledge which would have prevented defendant from believing that he had a pistol, or that, if he had, his condition was such as to prevent him from being able to use it effectively. In other words, did he or not, being in fault, believe, and have a right to believe, that his life, &c., was in imminent danger ? If you so conclude, that ends your investigation.</p> <p>The distinction between the defence in this case and the law, that a deadly weapon cannot be used to prevent a trespass or drive out a trespasser, as I understand it, is this : there it was merely to prevent thé trespass or drive out the trespasser; here, assuming that there was a trespass, according to the defence, the owner proceeded to request the trespassers to depart; that thereupon such a violent assault was made upon himself that his life and limb were in danger, and he used the gun, which he accidentally had in his hand, not to eject the trespassers, but to defend himself from their unlawful and unexpected violent assault. If the facts are so, the use of the gun would not compel you to find an unlawful killing; but if you decide that the facts do not warrant the conclusion of killing in self-defence in this particular case, though it might in the other cases (you are not trying the other cases, you are trying this particular case), a verdict of not guilty would not be warranted.. Then you will inquire whether there was any malice, or whether the killing of Edward Pressley, sr., was in sudden heat and passion; was the original onset a sudden affray between the parties without any premeditation on the part of either, so as to make the killing of Charles and Edward Pressley, jr., without malice, and was Edward Pressley engaged in that difficulty ? Did the defendant go at a safe distance from Edward Pressley, sr., and voluntarily return to the attack upon him ? If so, did' the defendant have time to cool before that return ? Then it would be manslaughter.</p> <p>But, gentlemen, if on a review' of the facts you come to the conclusion, beyond a reasonable doubt, that the defendant did, on or about November 18, 1885, kill Edward Pressley, sr., with malice express or implied, then you will find him guilty of murder. Malice is sometimes inferred from the weapon used, but, when the circumstances of the killing are pvoven, then the jury will judge from them whether there was malice. “Express malice is when one person kills another with a sedate, deliberate mind and formed design, such formed design being evidenced by external circumstances discovering the inward intention; as lying in wait, antecedent menaces, former grudges and concerted schemes to do the party some bodily harm. And malice is implied by law from any deliberate, cruel act committed by one person against another person, however sudden; thus, where a man kills another suddenly without any or without a considerable provocation, the law implies malice ; for no person, unless of an abandoned heart, would be guilty of such an act upon a slight, or no apparent, cause.”</p> <p>The defendant’s counsel have asked me to charge you certain propositions of law, and I shall be under the necessity of refusing some of them ; but, gentlemen, you must not infer from the refusal that there is no good law in the propositions that they state; that is, I refuse some of them, perhaps, upon the ground that they are not applicable to this case; others, perhaps, on the ground that there is an objectionable -word, or something of that kind in it, which don’t compel me to charge it; but I think I have included pretty well in my charge the substance of the requests to charge, and, where I have not, I will endeavor to give you the law upon those particular subjects.</p> <p>I am requested to charge you : 1 “There is one thing I would mention. Suppose you come to the conclusion that the prisoner at the bar was in rightful possession of the land, although it had been rented by the State authorities to the deceased. Suppose you come to the conclusion that, as between the deceased and the prisoner, he had the right to be on that land—the law is very clear there—you have a right to say to your neighbor, don’t you come on my land; but if he persists to come on your land, you have the right first to order him to leave. If he refuses to leave, then you may put your hands upon him lightly to remove him. If he resists you, why, then you may use such force as is necessary to remove him, even though it costs him his life. That is the law'. You must use every effort in your power to get him off your land before you resort to violence or a deadly weapon. But if the party rashes upon you with drawn knife, that makes a difference ; but that is one of the questions of facts which you are to decide.” I have declined to charge you that, as law: 1st. “That a party rightfully in possession of land is entitled to the peaceable possession of it, undisturbed by the interference even of the real owner, until his rightful possession has legally terminated; and even the rightful owner may not enter by force to acquire the possession of the land, even if wrongfully withheld from him.” That is good law, gentlemen, but it is not applicable to every phase of this case, as I have already indicated to you in my main charge ; but it may be applicable in some of the views that you may take of the case.</p> <p>2nd. “That rent is not essential to the existence of a tenancy, and to terminate a tenancy from year to year, unless there is an agreement to .quit, there must be a notice given, as required by law, to quit, and in a tenancy from year to year the tenant holds to the end of the calendar year.” I have charged you that already.</p> <p>3rd. “That a tenant, in the rightful possession of lands may legally approach any person wrongfully upon the" same, and may legally order the person trespassing to leave or quit the possession of the land.” I have already charged that in substance. I charge you that is good law.</p> <p>4th. “That a tenant in the rightful possession of lands 'may lawfully approach any person wrongfully upon the same and may order the person trespassing to leave or quit the land, and in the event of a refusal so to do, may use such force as may be necessary to eject the trespasser; and if the party is resisted by force in the attempt to eject the trespasser, he may legally defend himself and repel force by force, using only such force as the fierceness of the attack may render necessary to defend himself.” I charge that.</p> <p>5th. “That while the law presumes malice from the mere fact of intentional killing, yet when all the facts are brought out in the evidence, there is no room for presumptions, and the State affirming malice must prove it.” I charge that with this modification : that presumptions may be a part of the evidence, and the State must have the preponderance of the evidence on the whole case. '</p> <p>6th. “That the law justifies a man in repelling force by force in the defence of his person, habitation, or property against one or many who manifestly intend and endeavor by violence or surprise to commit a known felony on either. He is not obliged to retreat, but may pursue his adversary till he finds himself out of danger ; and if in a conflict between them he happens to kill his adversary, such killing is justifiable. The right of self-defence in this kind is founded on the law of nature.” There is some good law in that, but its merits are not applicable to this case, and I refuse to charge you.</p> <p>7th. “That if one is assaulted by another who has threatened to kill him, he is not bound to run and escape in the particular instance, thus increasing his danger by encouraging his assailant to repeat the attempt, when he will perhaps be less prepared to resist.” I refuse to charge you that, but charge you this instead : that a mere threat to kill is not sufficient to justify one in killing one who assaults him, unless he believes that the assault- at the time has put him in danger of serious bodily harm, or life or limb.</p> <p>8th. “That an offer to strike by one person rushing upon another will be an assault although the assailant be not near enough to reach his adversary, if the distance be such as to induce a man of ordinary firmness under the accompanying circumstances to believe that he will instantly receive a blow.” That is good law.</p> <p>9th. “That if the jury believe from the evidence that the defendant killed the deceased under circumstances calculated to excite the fears of a reasonable man of ordinary firmness that it was necessary to save his life or his limb or his person from serious bodily harm, and that he acted really under the influence of those fears and not in a spirit of revenge, he is not guilty and should be acquitted.” He must have have come into those circumstances, gentlemen, without fault on his part. For instance, if you, Mr. Foreman, should challenge me to fight and I should go to meet you, and you happen to make the first assault, I would not be justified in killing you; it would not be self-defence ; I would not be entitled to an acquittal because it was a mutual combat. With that modification, that is good law.</p> <p>10th. “That if the jury believe from the evidence that the defendant felt at the time deceased was killed, and had reason to feel from the circumstances, that it was necessary, to save his life or his limb or his person from s'erious -bodily harm, to kill the deceased, then the prisoner, if he acted under the influence of such fears and not in a spirit of revenge or malice, is not guilty and should be acquitted.” That is not sufficient; does not come up to the standard of self-defence, and I refuse to charge.it.</p> <p>11th. “That to entitle the prisoner to the benefit of the requests 9 and 10 above, it is not necessary, nor does the law require, that the proof should satisfy the jury that the killing was necessary to prevent a felony, but an attack of a less serious nature may. suffice.” The words of that request are too general. I can only charge it, by adding that he must have believed that he was in actual danger of serious bodily harm, loss of life or limb, and that a reasonable man under the same circumstances would have been induced to believe the same thing.</p> <p>12th. “That if the jury believe from the evidence that the facts and circumstances as they appeared to the prisoner were sufficient to excite the fears of a reasonable man that it was the purpose of the deceased to perpetrate a felony upon him, or to do him serious bodily harm, and that the prisoner acted under the influence of these fears and not in a spirit of malice or revenge, then under the law the prisoner is excusable, not guilty, and should be acquitted.” That seems to me 'to be a repetition of what has gone before, and I charge you as I have charged you in reference to the other, that he must not voluntarily have put himself within the danger to which he was exposed.</p> <p>13th. “That when one is attacked by one or many in such manner or under such circumstances as to furnish reasonable grounds for apprehending a design to take away his life, or to do him some serious bodily harm less than taking his life, and there is reasonable ground for believing the danger imminent that such design will be accomplished, he may safely act upon such appearances and kill the assailant if that be necessary to avoid the apprehended danger, and the killing will be justifiable or excusable, although it may afterwards turn out that the appearances were false, and there was in fact neither design to do him serious injury or to kill him, nor danger that it would be done.” With the modification I have just given, he must not have sought his position of danger, that is good law.</p> <p>14th. “That where a prisoner is sworn as a witness in his own behalf the credibility of the witness and the statement of the prisoner is a question of fact for the jury, and they may accept his statements in his own behalf in preference to the sworn testimony of any or all other witnesses sworn in the case, or they may attach only such importance to it as their conclusions, honestly formed, may warrant them in doing. The statements of the prisoner under oath in the case may be attacked as those of other witnesses in the manner prescribed by law, and a failure so to attack it, or an unsuccessful attack upon it, is a proper matter for the consideration of the jury in reaching a conclusion as to the truth of his statements and the guilt or innocence of the prisoner.” As to the failure to attack a witness, I instruct you, gentlemen, that is good law: but I want to explain to you a little further that the failure to attack the witness is no reason why his testimony should be believed. You judge of his testimony, not because it has not been attacked, but because you judge it to be true or untrue, whether it is the prisoner or any other witness; you may know he is not telling the truth; his falsehood may have begun at this time. It is your knowledge of the witness, upon such testimony as has been adduced as to his character, his conduct upon the stand, and attach such importance to it as you may deem proper, no more, no less.</p> <p>15th. “That if from the evidence the jury entertain a reasonable doubt as to the guilt of the accused, or as to whether the prisoner killed the deceased, or as to whether, if the prisoner killed the deceased, the prisoner acted under circumstances calculated to excite the fears of a reasonable man, or whether, if he killed the deceased, he felt at the time, and had reason to feel under the circumstances, that it was necessary to kill the deceased to save his own life or limb or his person from serious bodily harm, or whether the prisoner, if he killed the deceased, was influenced by such fears and such necessity and not by malice or revenge, then it is the duty of the jury to give the prisoner the benefit of all reasonable doubts and to acquit him.” You are to give the prisoner the benefit of all reasonable doubts, but you are not to single out any particular question and say upon that you have reasonable doubts, and therefore the prisoner must be acquitted. You must take the whole testimony and weigh all the circumstances, and, after weighing all the circumstances and facts, if you are still in reasonable doubt as to the facts as applicable to the law as I have given it to you, then you will give the benefit of that doubt to the prisoner.</p> <p>16th. “That it is the duty of the jury, if they entertain any reasonable doubt of the law or of the facts of the case, or of the application of the facts to the law of this case, to give to the said prisoner the benefit of such doubts as by law they and each of them are required to do.” Gentlemen, if you have any doubt about the facts you will give the prisoner the benefit of them. If you have any doubt about the law, if you will come in court, I will try and settle that matter. I cannot charge that. You will take your law as you have been told from the court. I do not know that I can make the law to you in this case any plainer.</p> <p>If you find that Edward Pressley, sr., was killed by R. T. Jones, in this county, in the time named in the indictment, with malice, either express or implied, then your verdict would be simply “Guilty.” If you find that he killed him unlawfully without malice, in sudden heat and passion, as I have before explained the law to you, your verdict would be “Guilty of manslaughter.” If you come to the conclusion that he killed him in self-defence, not being in fault himself, under such circumstances as gave to him, and would give to a reasonable man, serious apprehension that he would meet with great bodily harm or the loss of life and limb, then it would be self-defence, and your verdict will be “Not guilty.”</p> <p>Give the record to the jury.</p> <p>Saturday night 11.10 p. m., the jury were called in and addressed as follows by the court:</p> <p>Judce Norton : Mr. Foreman and gentlemen, three days of the court have been occupied in the trial of this cause. To go over the case again would involve a very great expense and a very great inconvenience to a great number of persons. If it is possible, I would like for this jury to agree upon this case, and I shall ask you to retire to your rooms again and further consider the matter; but before I do so, if there is any question of law upon which I can enlighten you any, I will be glad to do so.</p> <p>The Foreman : Not a question of law.</p> <p>The Court : Question of fact. If you agree upon your verdict any time to-night, to-morrow, Monday, any time, you may send for me and the counsel engaged in the case, and we will come in court, receive your verdict, and discharge you at as early an hour as possible.</p> <p>Note by the Stenographer: The above transpired without the presence of the prisoner, R. T. Jones.</p> <p>Sunday morning, March 18, 1887, at 4.20 a. m., the jury brought in a verdict of “Guilty of manslaughter.”</p> <p>The defendant being sentenced, appealed to this court upon the following exceptions:</p> <p>1. Because his honor erred in refusing to permit the prisoner to have L. S. Mellichamp sworn and examined on his voir dire when presented as a juror to the prisoner.</p> <p>2. Because his honor erred in ruling that the defendant could not introduce in evidence the testimony of Charles Brooks, a witness for the State, taken at the coroner’s inquest in writing, sworn to and signed by the said Charles Brooks, the purpose of such evidence being to' contradict the said Charles Brooks, the proper foundation having been laid.</p> <p>3. Because his honor erred in ruling that J. W. Johnston,' the coroner, could not testify to the substance of what Charles Brooks testified at .the coroner’s inquest upon the point with reference to which the foundation had been tion. properly laid for his contradic-</p> <p>4. Because his honor erred in ruling that the defendant could not introduce in evidence as an affidavit the evidence of Charles Brooks at the said jury of inquest, which was reduced to writing, sworn to and subscribed by the said Charles Brooks, the purpose being to contradict the said Charles Brooks upon the points with reference to which the foundation of his contradiction had been properly laid.</p> <p>5. Because the State having introduced evidence to impeach the credit of Pickens W. Plughes, a witness examined on the part and in the behalf of the defendant, his honor erred in refusing to permit the defendant to call witnesses to give evidence in reply to show that the witness (Hughes) was worthy of credit.</p> <p>6. Because his honor erred in permitting the-argument of the case to proceed in absence of the prisoner, the court having taken a recess for dinner, and the counsel having proceeded with the argument before the prisoner had been brought into court, and in ignorance of the fact.</p> <p>7. Because his honor erred in not permitting the leading counsel in the case, viz., Wm. T. Gary, further time to conclude his argument, he having stated before the commencement of his argument that he would not be able to do justice to the case within the time limited by law, and having asked for further time, and when stopped by the court at the expiration of the time allowed, having informed the court that he had not finished his argument, and haying asked for further time, which was refused, he having then and there excepted.</p> <p>■ 8. Because his honor erred in returning to the court room at about eleven o’clock Saturday night, and, after the jury had been deliberating on the case for several hours, in ordering the jury into the court room, and again charging and instructing the jury in the absence and without the knowledge of the prisoner, who during the whole of that time was not present, but in jail, where he had been remanded after the case had been first submitted to the jury.</p> <p>9. Because his honor erred in charging the jury that the attorneys on either side are not supposed to be impartial, and that the jury are to take their statements both on the law and facts guardedly.</p> <p>10. Because his honor erred in charging the jury, “That a juror can neither consider any fact which comes within his personal knowledge, nor can he communicate it to the other jurors without being in contempt of the court, and violating his solemn oath,” thereby excluding from the consideration of the jurors their personal knowledge of the witnesses in reaching a conclusion as to their credibility.</p> <p>11. Because his honor erred in charging the jui-y, that if the court mistook the law, the court could be corrected.</p> <p>12. Because his honor erred in charging the jury that homicide' in self-defence is where one who hath no other possible means of preserving him from death or great bodily harm by one who combats with him on a sudden quarrel kills the person who reduces him to such inevitable necessity.</p> <p>13. Because the Circuit Judge in his charge to the jury expressed his opinion in very decided terms as to the character of the homicide, in violation of the provisions of the constitution.</p> <p>14. Because his honor erred in charging the jury in that he did not correctly or fairly define the law of self-defence.</p> <p>15. Because his honor erred in charging the jury “that the possession of the land can have no influence in determining the question of self-defence in the case of Edward Pressley, sr.”</p> <p>16. Because his honor refused to charge as requested: “Suppose you come to the conclusion that the prisoner at the bar was in rightful possession of the land; that, although it had been rented by the State authorities to the deceased; suppose you come to the conclusion that as between the deceased and the prisoner, he had a right to be on that land. The law is very clear there. You have a right to say to your neighbor, don’t you come on my land: but if he persists to come on your land, you have the right first to order him to leave. If he refuses to leave, then you may put your hands upon him lightly to remove him. If he resists you, why then you may use such force as is necessary to remove him, even though it costs him his life. That is the law. You must use every effort in your power to get him off your land before you resort to violence or a deadly weapon. But if the party rushes upon you with drawn knife, that makes a difference, but that is one of the questions of fact which you are to decide.”</p> <p>The 17th and 18th exceptions allege error in the refusal of the 5th and 6th requests, and in the remarks upon those requests.</p> <p>19. Because his honor erred in charging the jury as to the general presumptions of malice arising by operation of law, because this rule does not apply when the facts and circumstances attending the homicide are disclosed in evidence so as to draw a conclusion of malice or want of malice as one of fact from the evidence.</p> <p>Exceptions 20 to 23, inclusive, allege error in the refusal of tbe 7th, 9th, 10th, and 14th requests to charge, and in the remarks upon those requests.</p> <p>24. Because the charge of the court as a whole is less favorable to the prisoner than that to which he was entitled.</p>

<p>The first day of the Court of Common Pleas is the day fixed by statute for its opening; and an order requiring security for costs to be filed on or before the first day of the next term of such court, or that plaintiff bo non-suited, is not complied with by filing such security at a late)- day, which, however, was the first day of its actual opening. And upon such failure the order of non-suit became operative and beyond the control of a succeeding judge.</p>

<p>1. Under proceedings in escheat under the statute, claimants were called upon by advertisement published in a newspaper on the first Sunday of every month for six months to present their claims to the estate. Several claimants appeared and filed their traverses, and it was adjudged that the lands in question were liable to escheat and a sale was ordered. Held, that this was a judgment, and that a sale thereunder was valid as to the purchaser, even if the judgment should be after-wards reversed.</p> <p>2. The statute required the notice to claimants to be advertised “in a newspaper of the county the first week in every month for six months.” Held, that a publication of the notice once a week in every such first week fulfilled the requirements of the law.</p> <p>3. A publication of such notice in a paper issued to subscribers on Sunday morning was not illegal — certainly it cannot be so held after judgment of escheat in the case. Can a purchaser at a sheriff’s sale be hoard to allego insufficiency in a notice lying back of the judgment under -which the sale was made?</p> <p>4. Where a statute declares that no woi'k of a certain character shall be done on Sunday, and any person “offending in the premises shall forfeit the sum of one dollar,” is not the forfeiture prescribed the only penalty incurred ? Or, is the work so done also thereby made illegal?</p>

<p>1. Finding of fact by master and Circuit Judge approved.</p> <p>2. A release of a trustee under the hands and seals of the parties in interest, obtained by the trustee by no other than fair and just dealing, operated to discharge the trustee from further claims of the adult parties.</p> <p>3. Money was held in trust for a woman for life, and at her death to be equally divided between her children then living. Less than was due was paid by the trustee to this woman, she and her children acknowledging under seal that this payment was in discharge of all liability by the trustee under his trust. Held, that the life estate was thereby relinquished, the'remainders vested, and the trust repudiated by the trustee, and from that time the statute of limitations commenced to run in his favor.</p> <p>4. As to an infant party to this release, the statutory period of six year's having expired before she attained her majority, she was allowed by law the further period of one year, but no longer, within which to bring her action. Code, $ 122.</p>

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

Before Norton, J., Spartanburg, This was an action by James W. Harle against “A. J. Morgan, O. P. Morgan, W. L. Morgan, and Matthew Vaughn, partners, trading under the firm name and style of A. J. Morgan & Co.” The opinion states the case as fully as does the appeal brief.

Before Norton, J., Spartanburg, This was an action by Stanyarne Wilson, as administrator de bonis non of Bennett Wilson, against R. Z. Wilson and others. The opinion states the case.

<p>Before Fraser, J., Berkeley,</p> <p>This was an action by Thomas J. Avinger against the South Carolina Railway Company, commenced in September, 1885. The complaint was as follows :</p> <p>The plaintiff above named, complaining of the defendant above named, alleges:</p> <p>First. That at the times hereinafter mentioned, the defendant was and now is a railroad corporation, created by and under the laws of the State of South Carolina.</p> <p>Second. That at the times hereafter mentioned the defendant, as such railroad corporation, were common carriers for hire under the laws of the State of South Carolina between the city of Charleston, County of Charleston, State aforesaid, and Lamb’s Station, in the County of Berkeley, Stite aforesaid, and as such common carriers for hire operated the railroad between said points.</p> <p>Third. That from the twenty-second day of December, 1884, to the first day of June, 1885, the defendants unlawfully and wrongfully refused, and continued to refuse, to receive, carry, and deliver the property of plaintiff for hire between the said city of Charleston and Lamb’s Station aforesaid, although the said defendant was then and during said period receiving, carrying, and delivering for hire as such common carriers, the property of other persons between the said city of Charleston and the said Lamb’s Station.</p> <p>Fourth. That the defendant wrongfully and unlawfully, between the twenty-second ■ day of December, 1884, and the-iirst day of June, 1885, discriminated against the plaintiff in their business and vocation of common carriers aforesaid, in their operation of the railroad between the city of Charleston and Lamb’s Station, aforesaid, and therein wrongfully and unlawfully refused, and continued to refuse, to furnish to this plaintiff without discrimination the same facilities for the carrying, receiving, delivery, storage, and handling of the property of the .plaintiff as by them the defendant furnished for all other property of like character carried by the defendant between the said city of Charleston and said Lamb’s Station.</p> <p>Fifch. That by reason of the premises the plaintiff has been injured to his damage twro thousand dollars.</p> <p>Wherefore the plaintiff’demands judgment against the defendant for the sum of two thousand dollars damages and costs of this action.</p> <p>Defendant’s answer was as follows :</p> <p>The defendant above named, answering the complaint herein, by Brawley & Barnwell, its attorneys, admits the first allegation thereof, and denies each and every other allegation in said complaint contained.</p> <p>2. For further defence, the defendant says the railroad track from Ten-Mile Hill, on its main line, to a point known as Lamb’s, on the lands of the Charleston S. C. Mining and Manufacturing Company, was constructed at the special request of the last named company, and exclusively for its benefit, to enable said company, which was engaged in the mining of phosphate rock, to ship the same by rail, the said company furnishing the right of way over its land without charge, and contributing to the expense of building said track ; that when the same was constructed it was not expected that said track should be used by the defendant in its capacity of common carrier, and no provision was made for depot facilities at said terminus at Lamb’s, and no conveyance of right of way was executed.</p> <p>That some time after said track was constructed, it was found that by extending the same to the Ashley River, through the lands of the said mining company, a general business in the transportation of freight and passengers could be built up, and the same was done with the consent of said mining company, and the defendant received and carried all freight that was offered, and, among others, freight for the plaintiff, Avinger, up to about the 15th day of January last; about that time it received notice from the mining company forbidding it to land freight upon its lands, the said company alleging that it was injurious to its mining interest to permit strangers to make a thoroughfare of its lands lying about the station at Lamb’s; that thereupon negotiations were had between the defendant company and the mining company, wherein the defendant company endeavored to assert and procure the right to use said track for all purposes necessary in its business as a common carrier, which negotiations were carried on for some time, pending which this company gave public notice that it would no longer receive and carry any freight to Lamb’s; the result of such negotiations was. the refusal of said mining company to grant a conveyance of a right of way for such purposes, and this defendant was advised by counsel that it had not acquired in the premises such right as would enable it, without consent of such mining company, to land freight at Lamb’s for other parties than said mining company ; and although this defendant believed, and still believes, that it is legal and within its rights to transport freight for the said mining company exclusively over the said track, yet, in view of the litigation threatened by said plaintiff, and the expense and annoyance incident thereto, it has been led to forego the exercise of such right, arid the benefit to be derived therefrom, and since about the first day of June last it has refused to transport any freight whatsoever from Charleston to Lamb’s, including in such refusal the freight of the said mining company. Wherefore the defendant demands that said complaint be dismissed and its costs.</p> <p>It is not material to state the testimony further than to say that plaintiff’s testimony was to the effect that he had been refused shipment to Lamb’s, while others were permitted to make shipments that were taken there; and he also showed the extent to which he had been thereby damaged. The defendant’s testimony was in support of the allegations of its answer.</p> <p>The charge of the judge was as follows :</p> <p>After hearing the testimony and argument in this case, and what I had to say to the counsel in the case, upon the motion for non-suit, it is not necessary that I should say very much to you. If it were not for these requests to charge, I would give you very briefly my view of the w'hole case, and let you take the record. But I must dispose of these requests to charge. The first thing that a jury has to do is to determine what the issue presented to them is.</p> <p>The charge here is not that the defendant refused to carry goods here for the plaintiff, but that it refused to carry goods for the plaintiff when it carried goods for others. That the defendant refused to carry goods on the same terms for the plaintiff that it carried goods for others. That' it discriminated against him ; that that was in violation of law, and for that he is entitled to recover damages. I have no right to tell you that a single fact has been proved in this case. I cannot tell you which of the witnesses to believe, or what facts they have proved. All the facts are for you under the instructions.</p> <p>I will now pass upon these requests. The first proposition on behalf of the plaintiff is: 1st. “The jury are instructed that a common carrier, or a public carrier, that is, a railroad company, is bound to carry for all persons all goods offered for transportation by any person whomsoever, for a suitable hire, and that this is the result of the public employment of the railroad company as a carriel’, and for failure to receive, carry, and deliver goods so offered, they are liable to an action for damages. That as against a common or public carrier, every person has the same right, and that in all cases where his common duty controls, the defendant company cannot accommodate the mining company and refuse the plaintiff.” By substituting “one person” in place of “the mining company,” I charge you that that is a correct proposition of law.</p> <p>2nd. “The jury are further instructed that if they find that the South Carolina Railway Company refused to carry the plaintiff’s goods over their road, or any part or branch thereof, while they were carrying the goods of any other person or persons, or corporation, and discriminated against the plaintiff, then the plaintiff for such discrimination is entitled to recover the damages thereby sustained by the plaintiff.” That, I think, is good law.</p> <p>3rd. “And the jury are further instructed that the road of the South Carolina Railway Company includes all the road in use by said company, whether owned or operated under a contract or lease by the South Carolina Railway Company, and if the jury find, from the evidence, that the road from Charleston to Lamb’s Station was during the times of discrimination complained of, in use by the South Carolina Railway Company, then they are thereon responsible for discrimination and damages therefrom as for any other part of their road.” I think that is correct.</p> <p>4th. “And the jury are further instructed that if they find, from the evidence, that the defendant, the South Carolina Railroad Company, operated, by steam, the railroad between Charleston and Lamb’s, and that the defendant company was doing business as a public or common carrier on such road, then the defendant would be liable for all acts of discrimination against the plaintiff.” I think tha’t is correct.</p> <p>5th. “And the jury are further instructed that in this case it makes no difference by whom this railroad was laid out and constructed; and if the jury find that the defendant company was maintaining and operating said road, then the defendant company would be liable to the plaintiff for any damages proven, from all acts of discrimination against the plaintiff, and refusing to carry the goods of the plaintiff on the same terms when it carried the goods of another.” I will add to this: “If it did so carry the goods of another,” I think the proposition is correct.</p> <p>[Propositions 6, 7, and 8 were withdrawn.]</p> <p>9th. “The jury are instructed that if they find the discriminations and damages to plaintiff, as alleged, the time admitted by defendant in its answer, during which they carried goods for persons other than the plaintiff to Lamb’s Station, was from I5th January,"1885, to 1st June, 1885, and the damages of the plaintiff within that time would bo the amount plaintiff would be entitled to recover in such case.” I don’t know that I can charge you that, for the reason that I think it requires me to charge you upon a question of fact. It is true that the answer admits that certain things were done between January and June, and you may find the discrimination, but I don’t think I have the right to charge you on that fact.</p> <p>I am requested by counsel for defendant to charge you as follows: 1st. “That if the jury find, from the evidence, that the railroad company carried freight from Charleston to Lamb’s from the time it refused to carry from Avinger, until 1st June, 1885, for the mining company alone, and that the freight for the mining company was delivered on a private platform of the mining company, then the railroad had a right to refuse to carry Avinger’s freight there, and he cannet recover.”</p> <p>I cannot charge you that proposition. I think the law is this: When the defendant constructs a branch of its road and operates it with its own engines, cars, and employees, even though it may be such a branch as it had no right to construct without the consent of the owners of the land through which it passes, such branch road is operated under all the liabilities to the public which attach to the main lines. If the company carries passengers at all, it must carry all alike. If it carries freight for one, it must carry freight for all on the same terms. If the company has any legal existence at all as to such branch, it must have all the liabilities of a common and public carrier. Such a liability is as much a part of its existence as the power to make contracts or to do any other acts. Any other construction of the law would put the whole commerce of the country under the absolute control of the railroads. In the view I take of this case, therefore, it is not material whether the defendant had a right to condemn the right of way and of sites for depots or not. As to the public, the company is estopped from saying that it has exceeded its charter powers. I cannot, therefore, charge you that that first proposition is good law.</p> <p>2nd. “That the action is at -common law, and no penalties under any statute can be recovered.” That is correct. They are confined to actual damages, unless this is a case for exemplary damages.</p> <p>3rd. “That punitive or vindictive damages cannot be recovered under the evidence in this case ; but the damages must be the direct result of the refusal to carry, or discriminations proved.” The rule is this : Wherever an act is done by a defendant and he is sued for it, and the jury think that he has been trying honestly to carry .out his rights without interfering with the rights of others, maliciously, wilfully, or otherwise, then the jury should confine themselves to actual damages. But whenever there has been any ill-will or wilful disregard of the rights of another, then the jury is at liberty, in a case like this, to give exemplary damages. In any event, the damages must be within the amount claimed, viz., $2,000.</p> <p>Verdict was for plaintiff, and defendant appealed and asked for a non-suit or a new trial on the following grounds :</p> <p>First. For a non-suit: Because plaintiff offered no evidence showing that defendant had held itself out as a common carrier of freight between Charleston and Lamb’s during the period in which it refused to carry the goods of plaintiff; and his honor erred in refusing the non-suit, and in deciding that if the railroad were there at all, it was there under the organic law of its being, and was estopped from saying it had exceeded its charter powers, and that without holding itself out as a common carrier at all, it was a common carrier to Lamb’s.</p> <p>Second. For a new' trial: Because it is respectfully submitted that his honor erred in charging as follows :</p> <p>I. That a common carrier, or a public carrier, that is, a railroad company, is bound to carry for all persons all goods offered for transportation by any person whatever for a suitable hire, and that this is the result of the public employment of the railroad company as a carrier; and for failure to receive, carry, and deliver goods so offered, they are liable to an action of damages.</p> <p>II. That the road of the South Carolina Railway Company includes the road in use by said company, whether owned or operated under a contract or lease by the South Carolina Railway Company; and if the jury find from the evidence that the road from Charleston to Lamb’s Station was during the times of discrimination complained of, in use by the South Carolina Railway Company, then they are thereon responsible for discrimination and damages therefor as for any other part of their road.</p> <p>III. That it made no difference by whom the railroad was laid out and constructed, and if the jury find that the defendant company was maintaining and operating said road, that the defendant company would be liable to the plaintiff for any damages proven from all acts of discrimination against the plaintiff, and refusing to carry the goods of the plaintiff on the same terms when it carried the goods of another, if it did so carry the goods of another.</p> <p>IV. That when the defendant company constructs a branch of its road,and operates it with its own engines, cars, and employees, even though it may be such a branch, as it had no right to construct without the consent of the owners of the land through which it passes, such branch is operated under all the liabilities to the public which attend the main lines. If the company carries passengers at all, it must carry all alike. If it carries freight for one, it must carry freight for all on the same terms. If the company has any existence at all, as to such a branch, it must have the liabilities of a common carrier, such a liability is as much a part of its existence as the power to make contracts or to do any other act.</p> <p>V. Because, it is respectfully submitted, that his honor erred in refusing to charge as requested by defendant, as follows: That if the jury find from the evidence that the railroad company carried freight from Charleston to Lamb’s, from the time it refused to carry for Avinger, until 1st June, 1885, for the mining company alone, and that the freight for the mining company was delivered on a private platform of the mining company, then the railroad had a right to refuse to carry Avinger’s freight there, and he cannot recover.</p> <p>VI. That he further erred in refusing to charge that punitive or vindictive damages cannot be recovered under the evidence in this case, but the damages must be the direct result of the refusal to carry or discrimination proved.</p> <p>This action is at common law, for section 1440, General Statutes, as to discrimination in facilities, has been repealed by the act of 1882, 18 Stat., 10. A common carrier must not make unreasonable discrimination between shippers, and when the circumstances and conditions are alike, he must carry for all. But this applies only between points between which it is in the custom of carrying goods., and where it has facilities for carrying. Hutch. Carr., § 297; Wood Rail. L., 563; 57 Me., 188; 52 H. H., 430; 14 Rich., 181; 18 S. C., 38; 19 Id., 353. But every discrimination is not unjust. 18 S. C., 38; 67 III., 11. The acts prohibiting unjust discrimination are only declaratory of the common law. 110 U. S., 667; Wood Rail. L-, 563. Therefore discriminations are not necessarily illegal. L. R., 3 App. Cas., 1029; 2 Mev. Mac., 115; Wood Rail. L., 573; Hutch. Carr., § 302. note; 1 Mev. $ Mac., 352, 56, 58; 110 ü. S., 667; 31 Fed. Rep., 315. The defendant might carry to Lamb’s for the mining company, over the latter’s land, and yet not carry for plaintiff, just as it leaves freight on a landowner’s platform without carrying for others to that point. The mining company permitted defendant to carry passengers to Lamb’s, but forbid the carriage of freight. And under these circumstances, it was not “unreasonable” for defendant not to attempt the forcing of freight transportation. This was not a case for exemplary damages. Thomp. Meg., 1264; 49 III., 241; 42 Fa., 493; 7 Ind., 83; 29 Conn., 499; 1 Dill., 465; 3 Mete., 149; 28 S. C., 261; 3 S. C., 580.</p> <p>First. On motion for non-suit. The Circuit Judge did not err in refusing non-suit and deciding as set forth in exceptions. 25 S. 0.-, 60; Gen. Stat., §§ 1421, 1420; 24 S. 0., 60; Gen. Stat., §§ 1448, 1414, 1415, 8 Stat., §§ 354, 384, 355-363; 11 Stat., 295; 9 Rich., 2-33; 2 Rich., 434; 48 Pa. St., 355; 5 McLean, 445; Gen. Stat., % 1558.</p> <p>Second. On exceptions to judge’s charge. I. The Circuit Judge did not err in changing instruction set forth in exception I. 14 Rich., 184; 18 S. 61, 38-42; 94 ü. S., 161; 110 U. S., 667.</p> <p>II. The Circuit Judge did not err in changing instruction set forth in exception II. Authorities supra, and Gen. Stat., § 1443.</p> <p>III. The Circuit Judge did not err in changing instruction set forth in exception III. Authorities supra, and Gen. Stat., §§ 1443, 1414, 1415.</p> <p>IY. and Y. The Circuit Judge did not err in refusing to charge the defendant’s request set forth in exception Y., and assigning as reason therefor the proposition charged and contained in exception IY. 9 Rich., supra; 11 Rich., 92, 93; 15 S. O., 483; Gen. Stat., § 1558; 21 S. O., 420.</p> <p>YI. The Circuit Judge did not err in refusing to charge instruction as set forth in exception YI. 16 S. O., 397-8; 3 Id., 599; 21 Id, 599; 22 Id., 1-4; 18 Id., 115; 2 Rich., 446; Rice, 224; Dudley, 92; 11 Rich., 283-5; 11 Id., 649-656; 14 Id., 245; Gen. Stat., § 1539; 18 Stat, 18; 31 Fed. Rep., 689.</p>

<p>I. A tract of laud was settled by deed in 1867 upon a trustee in trust for the sole, separate, and exclusive use of his wife for life, with remainder to such of her issue as might be living at her death, with power to the trustee to make changes of investment of the trust property on the written request of the wife, and to hold such substituted property subject to the same trusts. Upon such written request, the trustee in 1877 sold the land so settled, receiving in payment a debt due by himself individually to the purchaser, family supplies, and some cash. In action instituted by the wife in 1884 against this purchaser and the trustee, held, that a sale other than for reinvestment was a breach of trust, and as the purchaser knew of this breach of trust, the sale to him was void.</p> <p>2. The contingent remaindermen having been joined as parties plaintiffs to this action, held, that they were prematurely before the court.</p>

Before Fraser., J., Charleston, This case was brought upon the following grounds of appeal: 1. Because the said judge erred in sustaining the demurrer to the fourth paragraph of the answer herein; it having been admitted thereby that the personal estate of Stephney B. W. Riley, the deceased husband of defendant, after paying debts and funeral expenses, is of less value than five hundred dollars. 2.

<p>Defendant in claim and delivery appealed from a verdict in a trial justice’s court before judgment was entered. The appeal was dismissed on its merits and plaintiffs then moved the trial justice to strike out part of the verdict as surplusage. This motion was granted and judgment entered, whereupon defendant appealed. The Circuit Judge held that the trial justice erred and ordered a new trial. Held, that the verdict not being in the form required by law, a new trial was properly ordered.</p>

<p>In action for recovery of land, involving disputed boundary, it was conceded that a branch was the boundary line, hut the plaintiffs claimed that the branch had changed its bed. Held, that declarations made 40 years before by a former owner, under whom plaintiffs held, and by an adjoining land owner, were inadmissible in support of the claim that the branch had changed its bed.</p>

<p>Before Norton, J., Laurens,</p> <p>The order of the Circuit Judge was as follows:</p> <p>The petititioners are the children of the judgment debtor, L. L. Young, who is dead. The judgment debtor left no widow, but other children, who are minors. The petition is in behalf of all the said children. As against the judgment of the judgment creditor, Edmonds T. Brown, the petition for the homestead must prevail. Testimony has been offered to show that the homestead set off is excessive. I am not satisfied that it is. The supposed excess is in the large dwelling, built before the emancipation of slaves, as a domicile on a large plantation. It cost much more than §1,000, and even in its dilapidated condition for such a purpose would be worth more. To the petitioners it is worth less— with the few acres set off to them — than a house half its size for obvious reasons. It is not, however, what it cost, nor what it would be worth under circumstances which no longer exist, nor yet what it is worth to the petitioners, that must govern, but what is its market value under the circumstances that now7 exist. This, I think, the appraisers have properly found.</p> <p>George P. Copeland is a creditor of the deceased, L. L. Young, by judgment obtained against Jesse M. Young and him 4th March, 1880, based on anote dated 20th November, 1862. This creditor excepts to the allowance of homestead, and as to this judgment the homestead cannot be allowed.</p> <p>It is therefore ordered, adjudged, and decreed, that upon the satisfaction within sixty days of the judgment of George P. Copeland against Jesse M. Young and L. L. Young, the return of the appraisers in homestead herein be confirmed and made the judgment of this court; but if the said judgment be not so paid within said time, then that the said return, and all the proceedings herein, be set aside and vacated without prejudice to the rights of petitioners to make application at some future time for homestead if they shall be so advised.</p> <p>The homestead claimants appealed on the following exceptions : I. Because his honor erred in holding that the petitioners should be required to pay the judgment of G. P. Copeland out of the homestead property. II. He erred in not holding that the property outside of the homestead should at least pay its pro rata part of the said judgment. III. He erred in not holding that the judgments against the estate should be paid according to their rank, out of the land outside of the homestead, until it was exhausted, before the homestead can be taken. IY. He erred in allowing judgments junior to the Copeland judgment to force that judgment on the homestead, which would be the effect if the heirs or petitioners pay it, as required by the decree.</p>

<p>Before Norton, J., Spartanburg,</p> <p>For a former appeal in this case, see 27 S. C., 63. In refusing the motion for a non-suit, the Circuit Judge said:</p> <p>I have no doubt that the failure of the company to comply with statutory requirement is negligence. It would seem to be proper that negligence affirmatively appearing, no circumstances being given whether or not it contributed to the injury, to submit that question to the jury. Our attention is very often momentarily called off. Suppose this old woman’s attention was momentarily called, as is frequently the case. It is for the jury to say from the circumstances of her head being tied up and the direction in which the wind was blowing, and all the circumstances, whether or not the continuous blowing of the whistle or ringing of the bell was necessary. I have no doubt upon the propriety of submitting the question as to whether it was contributory or not to the jury. It seems to me that there is enough evidence upon the question of the injury, under the peculiar wording of the statute and the guarded expression of the Supreme Court in that case of Davis, to submit that question to the jury. I therefore overrule the motion for a non-suit.</p> <p>The charge to the jury was as follows :</p> <p>In taking this case, gentlemen, into consideration, you are not to have a different regard for the interests of an individual from that of a corporation. An individual, whether rich or poor, whether well or unwell, whether sound or maimed, stands before you just exactly in the same condition as a corporation, a creature of the law. You are to find the facts without prejudice and apply them to the law as I shall give it to you. I am made the sole judge of the law, you the sole judge of the facts, on a trial of a case of this kind. So that you will be governed by the law that I give you and not by that of counsel. They present their views of the law; but it becomes my duty to settle what the law is.</p> <p>Before I begin on the case proper, I desire to call your attention to one principle of law that was stated to you by counsel for the plaintiff. It is what is known as the rule in Danner’s Case. That rule applies to the killing of stock, injuries to property, and not to injuries to a reasonable being. So that you will discard whatever law counsel has given you drawn from that rule in Danner’s Case.</p> <p>The allegations of the complaint are substantially that the defendant negligently killed the plaintiff’s intestate, and that certain persons, the children of the deceased, have suffered certain injuries from that killing, and that the killing was without fault of the deceased. The defendant asserts by his pleading that he did not kill the deceased; if they did kill her, it was not negligently done, but it was caused by her own fault, and that therefore they are not responsible; and if they are responsible, that then the beneficiaries under the statute have not suffered any loss whatever.</p> <p>So you will inquire first: Did the defendant’s train kill Mrs. Petrie at a public highway crossing ? That is the first inquiry that you are to make. Of course, if you should decide that in the negative, then you would find, without going any further, a verdict for the defendant. If you find it in the affirmative, then you will proceed to inquire whether the railroad company had its whistle blown, or a bell of thirty pounds weight rung continuously for five hundred yards before it reached the crossing where the killing is alleged to have been done on the afternoon of March 15, 1884. If you come to the conclusion that they did ring the bell or blow the whistle continuously' for five hundred yards, then, of course, your verdict would be again for the defendant, although you might have found the first fact against them. But if you should come to the conclusion that they did not so ring the bell or blow the whistle, then you would be prepared to take another step in finding a verdict for the plaintiff.</p> <p>The next question, then, for your inquiry would be, did that failure to obey the law contribute to the killing of Mrs. Petrie? That is, are you prepared to say that if the bell had been rung continuously or the whistle blown continuously for that distance, that the same result would have followed ? It is the duty — and I will say it here so that you may consider the evidence in connection with these points of law as I go along — it was and is the duty of the plaintiff to show either positively or by the circumstances, all of which you are to take into consideration, whether that result would probably have followed. The preponderance of the testimony on that issue must be in favor of the plaintiff before he can recover. That is to say, the burden of proof is upon him. Of course, if you come to the conclusion that this neglect of obedience to the law did not contribute to the result, then, as before, your verdict would be for the defendant. If it did contribute, then you are prepared to go one step forward towards finding a verdict for the plaintiff.</p> <p>If you come to a conclusion in favor of the plaintiffs upon these three points, then your next inquiry will be, was Mrs. Petrie guilty of gross or wilful negligence, or was she doing an unlawful act when the killing occurred? Gross negligence is what is known ordinarily as recklessness. Was she reckless ? Did she go upon that track wilfully ? Did she put herself wilfully there with that intention? Wilful negligence, gentlemen, is where one places himself in a place of known danger, as was illustrated to you in the case of one going upon a track for the purpose of committing suicide. That would be an extreme case of wilfulness. Or was she doing an unlawful act? The evidence before you, which is uncontradicted, is that a highway crossed the railroad at the point where this killing is alleged to have occurred. If you believe that it did so cross the railroad, it was not an unlawful-act for Mrs. Petrie to cross the railroad track at her pleasure. It might amount to that which would defeat the recovery in this case. It might amount to gross negligence or wilful negligence, but it still would not be an unlawful act. Now, if you come to the conclusion that this question is to be decided that she was grossly negligent or wilfully negligent or doing an unlawful act, then, of course, as before, your verdict would be for the defendant. But if you should come to the conclusion that she was doing neither one, then you would be prepared to go one step further in your verdict for the plaintiff.</p> <p>Then your next inquiry would be, what damages are proportioned to the injury sustained by the children of Mrs. Petrie, who are the beneficiaries for whom this action is brought, and that you may not misunderstand what is meant by the damages proportioned to the injury, I will explain the law on that subject. Damages is the amount in this case which you would find in money for the injury as proven before you. You would not be allowed to take into consideration in the estimation of the damages in this case the wounded feelings of the beneficiaries. That is not what the law intends by an injury. An injury must be a pecuniary injury. You cannot give consolation for wounded feelings, for the sorrow one feels for the loss of a mother. But you will take into consideration what was necessarily paid for the expenses of burial. You would take into consideration the value of the services of a woman of the disposition, of the intellect, of the learning of a woman of the age that Mrs. Petrie was proven to have been to her children, taking into consideration the circumstances of the children. In other words, you, as nearly as you can, are to put yourselves in the place of the children and consider what the services of such a person would be worth to you pecuniarily, without reference to relationship, except so far as the relationship tends to enhance the probabilities that those services would be rendered in a better manner. Consider what those services would be reasonably worth to you. It is not necessary that any witness should have testified to the value in dollars and cents of these services; but it is the plaintiff’s business to give you such data as will enable you to come to a conclusion as to what the pecuniary loss was. You are not allowed to go into wild speculation over these matters, but to form a deliberate and candid judgment from the facts as proven.</p> <p>I have certain requests handed me to charge you by the plaintiff:</p> <p>I. “That by the statute law of this State, the railroad company is required to have a bell of at least thirty pounds and a steam whistle placed on each locomotive engine, and such bell shall be rung or such whistle sounded by the engineer or fireman at the distance of at least 500 yards from the place where the railroad crosses any public highway or street or travelled place, and be kept ringing or whistling until the engine has crossed such highway or street or travelled place.” I charge you that that is the law of this case, and without repeating it, when I charge you that a particular thing is the law of this case as in these requests to charge, you will bear in mind that they are to be taken in connection with what I have already said to you is the law of the case.</p> <p>II. “That if the testimony satisfies the jury that the requirements of the act were not complied with, or imperfectly complied with, and such failure contributed to the casualty, then from such failure the jury can find that the defendants were negligent.” That is good law; I am not satisfied exactly with the grammar.</p> <p>III. “That if the testimony satisfies the jury that the plaintiff’s intestate was killed by collision with the engine or cars of the defendant at the crossing in question, and it appears that the corporation neglected to give the signals required by section 1483, and that such neglect contributed to the injury, the jury may give such damage against the defendant corporation as the jury may think proportioned to the injury resulting from such death to the parties respectively for whose benefit the action is brought, unless it is shown in addition to the mere want of ordinary care that the deceased was at the time of the collision guilty of gross or wilful negligence, or was acting in violation of the law, and that such gross or wilful negligence or unlawful act contributed to the injury.” That is the law, and it is applicable to this case.</p> <p>IY. “That the burden of proof is upon the railroad company to show such gross or wilful negligence or act in violation of law.” That is the law, when it pertains to the negligence of the deceased. Of course, it rests upon the plaintiff, as I have before stated to you, to show negligence in the defendant in the first instance.</p> <p>V. “A mere want of ordinary care by the deceased does not constitute gross or wilful negligence.” That is true. Gross or •wilful negligence, as I have before explained to you, is different from want of ordinary care.</p> <p>VI. “The nature of the alleged primary ivrong of the defendant has much to do with the judgment, whether or not the alleged contributory fault was blameworthy. If it was of a negative character, such as lack of vigilance, and was itself caused or would not have existed or no injury would have resulted from it but for the primary wrong, it is not in law to be charged to the injured one, but to the original wrongdoer.” That is an extract from a charge in another case, and is good law. But it ought to be prefaced with this statement, “Gross negligence of the plaintiff which contributed to the injury must always defeat the action; but the nature of .the alleged primary wrong of the defendant has much to do with the judgment,” &c., just as I have read it to you.</p> <p>VII. “It was not an illegal act in Mrs. Petrie to return to her house, and if in doing so she was killed by the defendant, the proof of contributory negligence on her part, .in order to have the effect of dispensing the law and absolving the defendant from all liability, must be clear and convincing. It is not to be assumed that a person in her senses will heedlessly imperil her own life.” That is good law, and is applicable in this case.</p> <p>VIII. “In this action, if defendant is liable, funeral expenses of deceased may properly be considered as among the elements of damage, if it is satisfactorily proven that the plaintiff has paid the same.” That is the law, and it is applicable in this case.</p> <p>I am requested by the defendant to charge you :</p> <p>I. “Before the plaintiff in this action can recover, he must' show that the failure on the part of the railroad employees to continuously blow the whistle or ring the bell from the signal post to the crossing contributed to the death of the deceased.” If you assume that the signal post is 500 yards from the crossing, then this law is good law and applicable to this case.</p> <p>I am requested to charge you,'“If the deceased saw and heard the train approach the crossing, and notwithstanding this undertook to cross the track of defendant in front of this train, and but for this act of hers she would not have been killed, then the plaintiff cannot recover.” I refuse that charge. The question of what constitutes gross negligence is a question of fact for you under all the circumstances as proven before you. It is not for me to say whether any particular act constituted the gross negligence of which the deceased must have been guilty before the defendant would be excused from the penalty of killing the deceased, if otherwise it would have been found guilty. .</p> <p>I am requested further to charge you that “If the jury believe that the deceased had notice of the approach of this train, the failure of the company’s employees to continuously sound the whistle or ring the bell will not render the railroad liable, if the facts show that by the exercise of proper care and caution she could have avoided the injury.” In that request the use is made of the words, “proper care.” . If that word “proper” is to be understood by you as meaning the exercise of such care as would not be gross negligence, then that is good law. If the plaintiff’s deceased had notice of the coming of the train, then the ringing of the bell or the blowing of the whistle, which was intended to give her notice, would not be material in this case; because the object of the ringing of the bell or the blowing of-tho whistle would have been accomplished in another way. But it must be shown from the circumstances that she had such notice before you will be able to say that she had it.</p> <p>I am requested to charge you further, “It is the duty of a person approaching a railroad crossing, in order t'o avoid danger, to stop and look and listen; and if the deceased failed to use her sense of sight and hearing, and walked upon the track of defendant just in front of an approaching train in plain sight and hearing, and but for this act of hers would not have been killed, then she was guilty of such negligence as will defeat the plaintiff’s right to recover.” I refuse to charge you that. I am not the judge of what facts constitute gross negligence. You are to pass upon that.</p> <p>“No damages can be allowed in actions of this kind as compensation for wounded feelings, or loss of comfort, or companionship for the lo°s of a relative.” That is the truth, and I have already so charged you.</p> <p>I am further requested to charge you that “The jury will not be warranted in assessing damages against the defendant on mere conjecture or speculation of pecuniary loss or pecuniary benefit.” Now, T have already charged you that that is the law. You may take into consideration from the circumstances as proven before you what the loss of the beneficiaries of this action was. It is the business of the plaintiff to furnish you with the data necessary to enable you to come to a conclusion upon what that loss was, upon reasonable grounds.</p> <p>I am further requested to charge you, “That even if the deceased came to her death by the negligent act of the defendant, still the jury cannot find a verdict for the plaintiff, unless he has shown by proof that some actual pecuniary loss has been sustained by those for whose benefit this action has been brought, and in this event the verdict cannot exceed the actual pecuniary loss as shown by the proof.” That is true, and I have already explained to you what you may find as pecuniary damages.</p> <p>I am further requested to charge you that “Proof of the failure of the violation of the statute is not sufficient to determine the defendant’s liability; and in order to maintain the action some proof must be given tending to show that the injury resulted from the omission to blow the whistle or ring the bell continuously for 500 yards.” That is the law. You will recur, though, to the other parts of my charge in order to get at the full meaning of this request.</p> <p>I am further requested to charge you that “If Mrs. Petrie saw or heard the train approaching, or if she by the exercise of reasonable care could have seen or heard it, then the defendant is not liable, even though it failed to blow the whistle or ring the bell as required by the statute.” I refuse that. That is not the law for this case. In order to excuse the defendant, the deceased must have been guilty of gross or wilful negligence or have .been doing some unlawful act.</p> <p>I am further requested to charge you that “Even if the jury are satisfied in this case that the engineer was guilty of great negligence and want of care, yet the plaintiff cannot recover if the deceased was also guilty of contributory negligence : that is to say, that she did not observe proper care under the circumstances.” Taking that to mean that if she was guilty of gross negligence in going upon the railroad track at that particular time, then the request would be good law.</p> <p>I am also requested to charge you that “If deceased failed to observe proper care under the circumstances, the plaintiff cannot recover.” I decline to submit to you the interpretation of that word “proper.” I tell you that that word “proper” means such care as would not amount to recklessness.</p> <p>I am further requested to charge you that “Contributory negligence never ceases to be a defence except where the injury complained of is shown to have been done wilfully or purposely, or where it was the result of such gross negligence as would imply wantonness or recklessness.” That is good law. You have already been charged, however, that the gross negligence of the deceased would defeat this action if it existed.</p> <p>Now, in regard to the burden of proof: it is upon the plaintiff to prove the killing of the deceased, and that it was by the negligence of the defendant, and the beneficiaries for whom he sues have had pecuniary loss, and how much pecuniary loss.</p> <p>There are one or two questions as to the applicability of the evidence. The failure to blow the whistle or ring the bell as required by the statute, if such failure existed, would be negligence in the defendant, whether that failure occurred by reason of the employment of one of its officers in arranging some other parts of the machinery about the train, or not. It is the business of the company to provide officers to perform the duties which are required of them by the statute. The degree of negligence, if it occurred from the conduct of an officer of the defendant, would depend upon the peculiar circumstances of the case. If it was the ordinary business of an officer to be engaged at something else at a railroad crossing, then the defendant would be exceedingly culpable in not providing an additional officer to perform that duty. But if it arose from a sudden and unexpected emei’gency, then the negligence might be very slight. For instance, if some accident had happened on the train which required immediate and pressing attention, the withdrawal for a moment or two of the officer’s attention would be very slight negligence in the company.</p> <p>There is another view which you may possibly take of this case. If a person should voluntarily put himself or herself upon the track and the engineer sees that person, it is his duty to endeav- or to stop the train. To make no such effort when he saw such person would be gross negligence in the engineer. I decline to tell you what would amount to gross negligence.</p> <p>In this kind of an action, remember that the slightest preponderance of the testimony is sufficient to carry the verdict.</p>

<p>Before Fraser and Pressley, JJ., Abbeville,</p> <p>This was an action by three of the legatees of N. H. Miller, deceased, against J. Annie Stark, legatee, and Mary C. Miller, executrix. The opinion sufficiently states the case.</p>

Before Norton, J., Newberry, After stating the case, the Circuit decree was as follows : After the findings of the jury as above, the whole case was heard by me.

<p>1. In action against the administrator of a surety on a bond, evidence by others of acts of the surety tending to show that the surety had forgotten all about the bond and his liability thereon is incompetent, because if he had so forgotten, it could not affect his liability, and because the testimony was negative in character and, in part, only the opinion of witnesses.</p> <p>2. Dickson v. Gourdin (26 S. C., 391), stated, and shown to have been decided without regard to the surety’s knowledge of his liability, or of the payments made by the principal on the bond.</p> <p>3. Prior to the code there was no limitation to an action on a sealed instrument, and therefore the legal liability of both principal and surety continued indefinitely; the court, however, would presume payment from lapse of time, unless such presumption was rebutted. But in actions on simple contracts, the legal liability terminated by force of the statute at the expiration of the time limited for bringing action, and part payment could not operate to extend that time on the original contract, but only to imply as of that date a new contract to pay the balance due. This case distinguished from Walters v. Kraft, 23 S. 0., 583, and that case stated.</p> <p>4. As payments by an obligor on a joint bond enure to the benefit of his co-obligors, such community of interest operates to make them agents for each other to the extent that payments by one will bo admissions by all.</p> <p>5. But as death severs this agency, payments made by a surviving obligor will not operate as admissions by the estate of the deceased obligor. This case distinguished from Shubriek v. Adams, 20 S. C., 51.</p>

<p>1. The charter of the city of Anderson makes no provision for a jury upon the trial of an offender before the mayor in the first instance for a violation of municipal ordinances.</p> <p>2. Where a statute provides that it shall take effect on its passage, it would seem that an amendment incorporated therein by subsequent statute would become operative from its passage.</p> <p>3. A statute which changes merely the mode of trial — as, from trial by mayor and jury to a trial by the mayor with right of appeal to the full council, and a new trial there, the aldermen sitting as a jury — will regulate the trial as to offences previously committed, and is not ex post facto. This case distinguished from Kring v. Missouri, 107 U. S., 221.</p> <p>4. The mayor may take judicial notice of the due publication of the ordinance of the city under which defendant was tried. City Council of Charleston v. Chur (2 Bail., 164), recognized and followed.</p> <p>5. Under a statute providing that “in all cases appealed to the city council, the mayor shall preside, and the aldermen shall sit as a jury to try the facts involved, and may also reverse, modify, or affirm any or all of the rulings of the mayor in the first trial of the case,” the appellant is entitled to a trial de novo before the full council.</p> <p>6. As municipal courts at the time of the adoption of the constitution of 1868 had the power to try without a jury offenders for violating the ordinances of the municipality, they still have that power, notwithstanding sections 11, 13, and 14, of article I., of the Constitution.</p> <p>7. The same act may constitute an offence both against the State and the municipal corporation, and both may punish it without violating any constitutional principle; and this may be so, even where the party brought to trial in the municipal court is then under prosecution in the State court for the same offence.</p>

<p>Before Norton, J., Abbeville,</p> <p>The opinion fully states the case.</p> <p>■ The defendants not being strangers, but tenants in common with the other distributees, partition should be ordered. Gen. Stat., § 1829; 2 Stroh. Eq., 147; 3 Pom. Eq. Jur., § 1387; 17 Ves., 533; 2 Strob. Eq., 321; 20 S. 0., 424; 1 Rich. Eq., 361; 4 Kent, 367-369. The term was merged in the inheritance. 4 Kent, 99; 10 Rich. Eq., 428; 4 Kay ‡ J., 595; Smith Real Prop., 942.</p>

Before Norton, J., Abbeville, This was an action by Mary F. Johnson and Mattie Williams against Louisiana A. Cobb, for the recovery of a tract of land. The action was commenced January 15, 1887. The plaintiffs claimed as children and only heirs at law of James Wesley Buchanan. The defendants claimed to hold under the purchaser of this land at a sale made by decree of the ordinary in December, 1863.

Before Fraser, J., Charleston, This was an action by Thomas Quinn against the South Carolina Railway Company, to recover forty thousand dollars dam-, ages, under the facts stated in the opinion. The charge to the jury consisted of the requests to charge and the remarks of the judge thereon, but excepting those stated in the opinion, they are not necessary to a proper understanding of the points decided.

Before Kershaw, J., Barnwell, The complaint in this case was as follows: The plaintiff, complaining of the above named defendants, alleges— I. That on the 7th day of February, 1885, the defendant, W. R. Boynton, being indebted to a large number of persons in various sums, aggregating a large sum of money, and being insolvent and unable to pay the amounts due, made and executed his certain deed of assignment, whereby he conveyed, transferred, and assigned unto the plaintiff…

Before Norton, J., Abbeville, This was an action by Edwin Bates & Go., and EL D. A. Bieman, against Charles A. Cobb and Emma T. Turner.

<p>Before Wallace, J., Chesterfield,</p> <p>This was an action by T. J. Magruder & Co. against Virgil P. Clayton, Henry Bischoff & Co., and J. R. Easterling, begun in February, 1886. The opinion sufficiently states the case.</p>

Before Norton, J., Abbeville, The appeal in this case was from the following decree : This action was heard at the February term, 1888, for said county. The defendant, T. M. Scott, became guardian for his wife, the'present plaintiff, May 21, 1885, and received $6,000 of her estate.

<p>Before Hudson, J., Oconee,</p> <p>The opinion fully states the ease.</p>

Before Fraser, J., Anderson, The master’s report was as follows: All the issues of law and fact in this case having been referred to me to hear and determine, I beg leave to submit the following as my conclusions of law and fact : The plaintiffs by this action seek to foreclose a mortgage executed by Savannah M. Smith on February^, 1885, the consideration of which is set out on the face of the mortgage and the bond secured by said mortgage as being one thousand dollars, to…

<p>Before Hon. W. A. Pringle,- Recorder, Charleston,</p> <p>The opinion fully states the cases.</p>

Before Fraser, J., Lexington, The appeal was from the following decree, omitting its statement : The Circuit Judge might have held that plaintiffs were entitled to damages, if he had come to the conclusion that they were entitled to the school-house. He came to the conclusion that they were not entitled to either, and such was the effect of his judgment. The whole matter of relief was carried to the Supreme Court by the appeal.

Before Wallace, J., Lancaster, These were five attachment suits against James H. Blauvelt, the plaintiffs being George P. Sheldon, National Pahquioque Bank, J. B. McGeorge, Nineteenth Ward Bank, and Hanover National Bank. The first two named plaintiffs were residents of Connecticut and the other three were residents of New York. Asa D. Dickinson, assignee of James H. Blauvelt, intervened by-petition, and sought to recover the real and personal property attached.

Before Wallace, J., Chester, This was an appeal from the following Circuit decree: It will be observed that there are no terms in the will to which the law attaches an arbitrary signification. We are, then, left to construe the will, guided alone by the cardinal rule that the intention of the testator is to be collected from a consideration of the whole instrument.

Before Norton, J., Fairfield, These were two actions against Louis Samuels — one by Hurst, Purnell & Co., and the other by Chas. Weiller & Son. Held: and not permitted to take the next step, viz., procure his discharge if guilty of no fraud; that such intention would be a farce. Judge Witherspoon only meant to declare the law of the question before him.

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

Before Pressley, J., Spartanburg, In addition to the matters stated in the opinion, it may be proper to state that testator devised and bequeathed all of his estate to his executors in trust to pay debts, -with power to mortgage, and to apply proceeds to support of his wife, and to a division amongst his children, and to sell and divide at his wife’s death.

Before Hudson, J-, Marlboro, This was an appeal from a judgment of the Circuit Judge (overruling the Railroad Commission), which judgment held that freight charges from Charleston, S. 0., to Tatum, S. C., through a portion of North Carolina, although in excess of the charges from Charleston to Bennettsville, a longer haul, could not be regulated by the Railroad Commission, (1) because steamboat transportation from Gardner’s Bluff, six miles from Bennettsville, made…

<p>1. In 1867, real property was conveyed to a married woman for life, to her sole and separate use. Under the powers of disposition conferred upon married women by the act of 1870 (14 Stat., 325) and while that act was of force she could execute a valid mortgage upon this property to pay another's debt. This is not giving to that statute any retroactive operation.</p> <p>2. This case distinguished from Babb v. Flenniken, ante 278.</p> <p>3. If foreclosure be refused upon a ground affecting only the mortgage, the court may, in the same action, give an ordinary judgment for the debt due.</p>

<p>Before Iíershaw, J., Darlington,</p> <p>The opinion of the court sufficiently states the case.</p>

<p>Before Pressley, J., Richland,</p> <p>The opinion fully states the case.</p>

<p>Before Hudson, J., Darlington,</p> <p>The appeal was from the following decree, omitting its statement :</p> <p>In the contract of lease I can find no ambiguity, patent or latent. The stipulations are all plainly and clearly expressed, and embrace the usual covenants looking to the enforcement of good husbandry, such as are expected to be, and usually required to be, performed by tenants of farms and plantations; the only special engagement being as to the building of a house on the place, and this is no more than any good tenant is capable of doing or having done. I can see nothing in the terms of the lease which call for parol testimony to aid us in construing it. It is entirely free from ambiguity or obscurity in meaning, but is clear and explicit in all its parts, and explains, itself. It is a lease for the term of five years, no more, no less. Had the parties intended that it should terminate upon the death of the tenant, they could easily have so said; but they did not so stipulate. Reading it from beginning to end, and construing it as a whole, we are forced to pronounce it a clear and absolute lease for five years, regardless of the duration of the life of the lessee.</p> <p>The trial justice therefore erred in admitting parol testimony to explain, alter, or vary the terms of this plain and unambiguous contract. He erred also in concluding that what was thus erroneously admitted really had the effect it was designed to have, for in my opinion it failed in its purpose, and upon the main point, to wit, the interpretation of the written lease in all its parts, he committed error of law in holding that it terminated upon the death of the tenant, Henry C. Byrd. According to my reading, it is a lease for five years, which, after the death of the lessee before its expiration, enured to the benefit of his estate, and vested in the administratrix.</p> <p>Counsel for Mrs. Charles argued that this quality of a leasehold estate under the laws of old England is contrary to the nature of our landed estates, and is detrimental to the best interests of our landlords, and hence that leases of land for a term of years should always cease and determine upon the death of the lessee, whether so expressed or not. It is a sufficient answer to this to say that the contrary is the law with us as well as in England. Here, as well as there, leasehold estates survive the intermediate death of either party to the agreement, and vest in the legal representatives of the estate of either. But I do not agree with counsel that it is against the interests of our landlords. 'This property of a leasehold estate is just as applicable to the condition of things here, and is as beneficial to our landlords and tenants as to those of old England. Upon reason, upon principle, upon convenience and necessity, it is adapted to our interests as -well as to theirs. Hence it is the law here just as it is there. Perhaps no case can better illustrate this view than the one under consideration. If the five years’ interest in this land acquired by H. C. Byrd in his life-time is valuable, why should not his family, after his premature death, enjoy the benefit of it ? The law says they can do so by duly and fully performing the covenants of the lease. On the other hand, if the contract is a good one for Mrs. Charles (and she certainly so considered it at the time of making it), why should she be deprived of its advantages by the premature death of the tenant? The law says that she shall not lose the fruits of the bargain by this event, provided the legal representative of the personal estate of H. C. Byrd can fulfil the agreement, as she is bound to do, and desires to do. But we will cease this line of argument, as we are dealing with the law as it is, and not with the question of its wisdom.</p> <p>It is very clear that upon the death of H. C. Byrd in January, 1887, this contract survived to his legal representative. Since that time has she surrendered or forfeited the lease ? The trial justice holds that she has done so; but I am forced to say that he has reached this conclusion without evidence sufficient in law to sustain him. Surrender the lease she could not legally do, except by an instrument of writing clearly expressing such intention. No such instrument was executed by her, and no evidence of such was attempted to be introduced. There is no evidence that she has done or said anything that would operate as a forfeiture, or waiver even, of her rights in the premises. Permitting Mrs. Charles to build a house on the place is claimed by counsel of Mrs. Charles to be evidence of a waiver of the five years’ lease, and proof of a new agreement. But the law will not allow an act like this, standing isolated and alone, to be construed into so serious a thing as the forfeiture or waiver of a lease for five years.</p> <p>I have, after listening carefully to the testimony and the argument, read it closely, and feel no hesitation in holding that it not only fails to show surrender, forfeiture,- or waiver on her part, but, on the contrary, shows that from the death of her husband to the present time she has been standing to the contract, performing its covenants, and claiming its benefits. It is said that she knew that Mrs. Charles rented the place to Privett and did not object. Certain it is that she did not consent to it, and does not acquiesce in it, and that is enough for her protection. Nor is there any evidence that she made a new contract with Mrs. Charles for 1887. Whether, as legal representative, she can sell and transfer this lease, and whether she can perform its covenants, were questions raised and discussed at the hearing. But these inquiries are not necessary to be answered here, and may be left to be met as the exigency arises. They belong to the future.</p> <p>The question for me to answer is, did the trial justice commit error in law in adjudging that Sarah Byrd be evicted from the premises in question ? If she is in by a valid subsisting lease from Mrs. Charles, then the judgment of eviction is error. I hold that she is in possession lawfully under the lease to her intestate deceased husband, which is still subsisting and of binding force as against Mrs. Charles and any claiming to the contrary under her, and that the trial justice erred in the law of the case in holding to the contrary. He was clearly without jurisdiction in evicting one who is in lawful possession of premises under an outstanding valid lease.</p> <p>It is therefore ordered, adjudged, and decreed, that the judgment of the trial justice be reversed, and the proceedings before him be set aside and dismissed, and that all costs thereof, and of these proceedings in certiorari, be paid by Mrs. Caroline A. Charles.</p> <p>From this decree the landlord, Mrs. Charles, appealed.</p> <p>The agreement construed as a whole and in the light of its several clauses shows that Mrs. Charles was depending upon the personal qualities of Byrd, and that he only should be the lessee. 1 Speer, 395; Bish. Cont., 380, 384; 2 Pars. Cont., 501, 513; 1 Ibid., 506; 2 Wash-Real P., 23, 24; '2 Bl. Com., 125. The parties have given a practical construction sustaining this view. Bish. Cont., 412. The findings of fact by the trial justice are irreversible. 24 S. 0., 520. No part of this agreement was added to or varied by parol testimony — only the situation of the contracting parties was so proved, and this is permissible. 2 Pars. Cont., 500; Bish. Cont., 372, 375. Mrs. Byrd has forfeited and surrendered the lease by her acts. 1 Wash. Real Prop., 351, 352, 363.</p>

Before Witherspoon, J., Richland, This was an action by Arianna I. Dial, widow of George L. Dial, deceased, to recover from defendant on two policies of insurance in her favor on the life of her husband. The judge-charged the jury as follows : This is an interesting case; a good many novel points have been raised. I do not know that the points have ever been l’aised or adjudicated before in this State. I have been referred to no case in which they have been adjudicated.

<p>1. A cause of action stated and defined.</p> <p>2. Eor failure on the part of the Clerk of Court to enrol and index judgments and decrees in the Courts of General Sessions and Common Pleas, for which services he charged and received the usual foes, the county may maintain an action on his official bond and recover judgment for the penalty, the damages sustained to be thereafter assessed. The county would certainly be entitled to recover the fees paid by it in criminal cases for services not rendered.</p> <p>3. An allegation that defendant had failed to enrol and index 386 criminal eases for which he had been paid, and the plaintiff had suffered great loss thereby, was a sufficient allegation that plaintiff had paid this money — especially as further proof of actual damage is necessary under the judgment to be entered for the penalty.</p>

Before Norton, J., Newberry, This was an action upon a bond which, in Chalmers v. Glenn, 18 S. C., 469, was held not to be due until the estate of George W. Glenn, deceased, was ready for a final settlement.