Volume 3 — South Carolina Reports

Action by William F. Redding and Julia D. Redding, his wife, to recover damages for injuries to the person of the female plaintiff alleged to have been committed by a servant of the defendant at the depot of the defendant, in the city of Charleston, on the 26th February, 1870.

In January and April, 1855, Joseph Crews made five separate assignments for the benefit of his sureties and creditors as follows : On January 18, he made an assignment to Lewis Dial of a number of notes “to satisfy certain judgments and other claims,” which Dial held against him ; on January 23, he made an assignment to W. R. Farley of other notes to pay the claims held by Dial against him ; on April 7, he made another assignment to Dial, of notes to indemnify Dial, as his…

On May 20,1854, William Lewis gave to Jabez Norton his bond, bearing that date, conditioned for the payment of $8,280, with interest, in five installments, the last of which fell due on January 1, 1859 ; and further to secure the payment of the said sum of money and interest, according to the terms of said bond, he gave to Norton his mortgage, bearing the same date, of a tract of 414 acres of land in the District (now County) of Sumter. The mortgage was duly recorded.

This was an action of trespass to try title. The plaintiffs claimed all the lands Included within the lines of a survey and plat of the lands made fij^'them, or those under whom they claimed, in the year 1829, by J. -H. Blair, a deputy surveyor.

This was an action of trespass to try title to recover the possession of a dwelling house and appurtanances and twenty acres of land, part of a tract of about nine hundred acres of land, which in February, 1866, was owned by James D. Mcllwain.

This was a bill to marshal the assets of the estate of W. T. Gilmore, who died insolvent in June, 1867. James Pagan presented a claim against the estate amounting to $914.23 for agricultural supplies furnished Gilmore in the Spring of 1867, to enable him to make a crop, and claimed payment out of the proceeds of Gilmore’s crop of that year, as a lien creditor.

This was an application for a writ of prohibition to restrain William Gurney, County Treasurer of Charleston County, from the collection of certain taxes assessed against the plaintiffs. A case was agreed upon by the parties to be submitted without action under Section 389 of the Code.

This was an action on the case. The declaration contained three counts. The first charged that in consideration that plaintiff, at defendants’ request, delivered to them one hundred bales of cotton; defendants promised to take due and proper care of the same; that they did not take such care of the cotton, and that through their negligence it was burned.

Petition to remove a cause in the Circuit Court of the State, wherein James Robb and Charles T. Lowndes, Trustees, wore plaintiffs, and John Parker was defendant, to the Circuit Court of the United States for the District of South Carolina. As this is the first case of the sort to be found in the reports of the State, the proceedings are given in' full.

This was an action on the case for obstructing a private way. His Honor made a report of the case for this C.ourt, which is as follows: “This was a suit ordered by Chancellor Lesesne, in a decree in equity for damages.

The case is fully stated in the decree of his Honor, the Circuit Chancellor, which is as follows: Johnson, Ch. In the year 1821, Ann… Held: the following clause occurs in the deed, to wit: “And it is further stipulated and agreed upon by and between all the parties to these presents, and the true intent and meaning hereof is, that in case the said James Creighton and Ann McPherson shall, at any time hereafter, during the coverture, or the survivor of them at any time…

<p>The English rulo of Court of Hilary Term, 1834, that in an action on the case against a common carrier, the plea of not guilty will not operate as a denial “ of the receipt of the goods by the defendant, as a carrier, for hire, or of the purposes for which they were received,” was not made of force in this State by the 87th rule of Court of 1837.</p>

<p>An appeal not perfected by the execution of an undertaking, or a deposit of money, as security for the costs of the appeal, as required by Sec. 359 of the Code of Procedure, dismissed.</p>

This was a bill in equity, exhibited by Ann Griffin and M. L. Bonham against George A. Addison and Henry W. Addison, to subject land to the lien created by the Act of 1791 in cases of sales for partition. The facts of the case are stated in the Circuit decree, which is as follows: Johnson, Ch. Nathan L. Griffin, in February, 1853, died intestate, leaving as his heirs at law his widow Ann Griffin and eight children, three of whom were minors.

Cureton and Hasseltine were joint owners of a lot in the town of Lancaster, under a conveyance from Massey. Held: upon very clear principles, that an executor or administrator, or other person acting in a fiduciary character, cannot, by any contract of his own, create a charge upon the property or estate which he represents, not even in equity, unless the estate or property has been benefited by the contract, and they are in advanceand in…

This was an action of covenant by C. E. Fleming against Thomas J. Robertson, executor of John Caldwell, deceased, on a contractas follows: “By the 28th instant, we, or either of ns, promise to pay Dr. C. E. Fleming, or order, twelve thousand dollars in Confederate money; and upon failure to pay by that time, we, in like manner, promise to pay said C. E. Fleming, or order, twelve thousand dollars in six per cent, bonds of the five hundred millions loan, non-taxable, within…

This was a creditor’s bill filed for the purpose of having the affairs of the defendant, an insolvent bank, wound up under the decree and orders of the Court. Held: and declares that, “if set apart and applied as directed by the Act of 1838, the fund accumulated would have greatly exceeded the present fire loan debt.” All other debts for which profits were pledged, he says, have been paid. Mr. Furman entirely confirms this testimony.

This was a bill in equity exhibited in January, 1870, bjr Horace Massot, plaintiff, against O. A. Moses, W. L. Bradley and C. C. Coe, defendants.

Rule against James D. Oaskey, Sheriff of Lancaster County. The case, as it appeared by the Sheriff’s return, was this: There were three executions in the Sheriff’s office against Uriah Small, defendant, one in favor of Wm. McMullen, another in favor of Mary Small, and a third in favor of James P. Small. McMullen’s execution was against Uriah Small and James P. Small as joint defendants. The other executions were against Uriah Small alone.

The whole case, as stated in the brief, was this: The action was upon a sealed note, dated in the fall of 1865, the consideration of which was another sealed note for five hundred dollars, given the 11th February, 1863. His Honor charged the jury that he regarded the note of 1865 as a different contract from that of 1863, the one being payable in Confederate money, and the other in United States currency. The defendant appealed, on the grounds: First.

Action ofdebton bond, by Silas Johnstone, Commissioner in Equity for Newberry District, against Thomas H. Crooks, tried at Newberry, November Term, 1869. The bond was dated December 1st, 1862 — was payable to the plaintiff as Commissioner in Equity, and was conditioned for the payment of $9,000, in two equal installments — one on the 1st December, 1863, and the other on the 1st December, 1864, with interest from date.

On February 19th, 1867, the defendant, John W. Stubbs, gave to the defendant, L. Garlington Pate, his promissory note for $2,000, and a confession of judgment thereon for the same amount. On March 30th, 1867, the plaintiff, John H. Smith, recovered a judgment against Stubbs for $733.24, and on the same day the plaintiff, Uoah Gibson, recovered a judgment against him for $390.02.

William Kelly, the testator in the cause, died in 1860, and this was a bill by his executors to settle up the estate. The only questions made by the appeal arose under the second and fifth clauses of Ms will.

<p>Equity is not the proper forum in which to claim damages for breach of a covenant of warranty; nor is petition the proper form of remedy.</p>

This was an action by R. J. Donaldson, as Receiver of the Bank of Camden, S. C., plaintiff, against William E. Johnson and Wm. D. McDowall, defendants.

The case, as stated for this Court by the Circuit Judge, is as follows : This appeal was heard on the pleadings and the grounds of appeal from the decree of the Hon. John T. Peterson, Probate Judge for Newberry, dated the 17th day of November, A. D. 1869. By the pleadings, it appears that the petitioner is the widow of one Richard L. Bradley, who died in 1865.

T. C. Weatherly held an execution against Emanuel Jackson, which had been lodged in the Sheriff’s office. The judgment was on a contract made before the adoption of the present Constitution. The Sheriff, having made a levy on defendant’s land under the execution, caused a homestead to be assigned to him according to the provisions of the Act in that case made and provided.

<p>Where an indictment for larceny lays the ownership of the goods in A, and the proof clearly shows a joint ownership in A and others, the prisoner is entitled to an acquittal, and it is error in the presiding Judge to refuse so to instruct them.</p>

Action by Mary Johnston, widow and administratrix of James Johnston, deceased, against the City Council of Charleston, to recover damages for the death of the intestate, caused, as alleged, by the negligence of defendant in not keeping in safe and good repair a cellar door, forming part of the surface’of a street within the city.

This case was heard on exceptions to the report of a Referee. So much of the report as relates to the questions made by the appeal is as follows: This suit was instituted for the purpose of marshalling the assets of John McKee, Jr., deceased.

Action by Lewis D. Mowry and William S. Mowry against John Stogner and Sherod F. Legett to recover possession of a tract of land.

Trespass to try title. The case is recited in the order appealed from, which is as follows : “ The plaintiffs in this action are the children and sole heirs at law of Amelia V. Hooper, deceased. Held: that several possessions under the purchase could be tacked together, to raise the presumption of a deed. — Kimbratt vs. Walker, 7 Rich., 428.

Action by A. T. Stewart & Co., plaintiffs, against Edwin. L. Kerrison, Herman Leiding and Charles Kerrison, defendants. Held: but with great reluctance, that a debtor may make an assignment giving preferences amongst his creditors. This power results from the absolute dominion of the owner over his estate. They have also held that he may stipulate for releases.

Debt on bond, in the penalty of $24,400, “good and lawful money of the said State,” dated February 1st, 1864, and conditioned for the payment of $12,200, in.two equal installments, with interest from date. It was admitted that the bond was given for the price of two tracts of land sold by the plaintiff, as Commissioner in Equity — one containing 422 acres, sold at $9,000, and the other 160 acres, sold at $3,200.

Assumpsit by Alexander Carter against D. W. Brown. The plaintiff declared upon a special contract, and alleged that on the 30th August, 1864, the plaintiff agreed with the defendant to serve the latter as his overseer, from the 1st January, 1865, to the 1st January, 1866, and that, in consideration of such services to be performed, the defendant promised to deliver to the plaintiff, on the 1st January, 1866, 16 bales of cotton, weighing 400 pounds each ; that plaintiff…

<p>Under a petition, filed in 1859 by trustees, for the sale of real and personal estate of two infants, aged twelve and ten years, named in the petition, but not as parties thereto, an order was made directing a master “to assign a guardian ad litem to the infants to appear to this petition.” The Master made an order appointing the mother of the infants, with her consent, their guardian ad litem — the order reciting that “the minors being brought into Court, and selecting their mother,” &c., but neither the petition, nor a subpoena ad respondendum, was served on the infants, nor was an answer put in for them. The petition was then referred to a Master to report on the facts, and whether a sale would be to the advantage of the infants, and on his report coming in recommending a sale — -in the propriety of which, as the report stated, the guardian ad litem, of the infants concurred — it was confirmed, and a decree for sale made. On bill filed by the infants against the purchaser of the real estate under the decree: Ileld, That the infants had been made parties to the petition and were concluded by the decree.</p> <p>Under the former system of equity procedure, there was no prescribed mode of making an infant a party defendant except hisappearanee by a guardian ad litem, appointed by the Court for that purpose — neither service of a subpoena ad respondendum on the infant, nor an answer put in by him, was essential, though both were usual.</p> <p>Decree in Equity, in March, 1859, for sale of infants’ real estate, to be made by a Master “at such time and place, and on such terms as lie, with the advice of the trustees ” of the infants, “ might approve.” The sale was made in June, 1862; Held, That the sale was not void merely because the Master received payment from the purchaser in Confederate currency.</p> <p>A sale of real estate of infants was made by a- Master, at public auction, in June, 1862, under a decree which gave no direction as to advertising. It was advertised in a newspaper for a period less than one week before it was made: Held, That the sale was not irregular and void.</p> <p>A ¡¿ale in June, 1862, by a Master in Equity, was not irregular because the decree for sale made in March, 1859, and renewed in March and November, 1860, had not been renewed within a year and a day before the sale.</p> <p>A sale of the real estate of infants, made by a Master in Equity in Juno, 1862, under a decree made in March, 1859, and continued by an order of March, 1860, and again continued by an order of November, I860, was not void because the decree had not been renewed as directed by Section 4 of the Act of December, 1861, commonly called the Stay Law.</p>

<p>The principles of the preceding case, Billow vs. "Witte, except those relating to the want of proper parties, affirmed.</p>

Separate actions by John E. Robertson, plaintiff, against Albert Evans and Leonidas Lowry, defendants. The case is stated in the following report of the presiding Judge : “ These were several actions, on a joint and several sealed note, executed by the defendants and one Jackson Miller to the plaintiff, for six hundred and seventy-three dollars and sixty cents. • “ It seems that Robertson, the three makers of the note, and four other persons, were trustees of an academy.

Bill to foreclose a mortgage of real estate in the city of Charleston, dated 30th May, 1856. The City Council of Charleston was not a party to the proceeding. The mortgaged premises were sold in 1870, under a decree of foreclosure, and the proceeds being under the control of the Court, the City Council presented a claim against the same for city taxes assessed upon the premises for the years 1868 and 1869.

To understand this case, it is necessary to refer to the same case as reported in 2 S. C., 59.

Action of trespass to try title by W. W. Ward, plaintiff, against L. Cohen & Co., defendants. The case, as stated in the brief, is as follows: The action was trespass to try title to a lot of land in Kingstree, in Williamsburg County. The lot had been sold by the Sheriff of said County, by virtue of executions in his hands, founded on judgments against the said W. W. Ward.

On March 12th, 1844, the City Council of Charleston passed a general ordinance “ to regulate the collection of City taxes,” &c., which provides “ that taxes and assessments for the use and service of the City shall be paid in specie or the notes of specie-paying banks.” On October 14th, 1848, the same Council passed an ordinance directing the issue of City six per cent, stock, to the amount of $200,000, redeemable in twenty years, and the stock was accordingly issued.

Action by Evander Byrd, plaintiff, against William E. Charles, defendant. The complaint alleged that on or about the 1st day of January, 1870, the plaintiff borrowed from defendant $250, for which he gave his note, and also delivered to defendant, as collateral security, a certain other note made by Wm. J. Byrd, James P. Wilson and AC.

Action by Olivia McGowan, Henrietta McGowan, and six others, plaintiffs, against Rufus N Lowrance, and two others, defendants, to recover possession of the lot on Richardson street, in the city of Columbia, hereinafter mentioned.

This was a suggestion by Arthur B. Rose, relator, against the City Council of Charleston, respondent, for a writ of prohibition. Four other suggestions for the same writ and against the same respondent-one by Arthur G. Rose, relator, one by David Geiger, relator, one by John C. Cochran, relator, and the last by the South Carolina Jockey Club, relator — were heard at the same time with this one.

<p>The Port Boyal Bailvoad Company was chartered in 1857, and its charter was renewed in 1870. The charter of 1857 prescribed the mode by which lands might be condemned to the use of the company, and by a general Act, passed in 1868, a different mode of condemning lands to the use of all railroad corporations was prescribed: Held, That the company must proceed in the mode prescribed by .the Act of 1868.</p>

Action by Lawrence F. Campbell, Receiver, against tbe Bank of Charleston,, to recover certain shares of capital stock of the bank, or their value. The apjieal was heard on a case and exceptions containing the following statement of the facts established by the testimony.

The appeal was heard upon a statement made by plaintiff’s attorney, and served upon defendant’s attorneys, and a notice of appeal, containing the grounds upon which the motion would be made. The statement contains the whole case, and is as follows: “ This was an action brought by the plaintiff, A. Detheridge, a citizen of Kentucky, against R. PI.

Assumpsit by Charles D. Ahrens, plaintiff, against the President, Directors and Company of the State Bank, defendant. The causes of action were two bills of exchange drawn by defendant on a bank in Liverpool, and protested for non-acceptance.

On the 27th October, 1869, William Allen, the plaintiff, recovered and entered judgment, in the Court of Common Pleas, for Barnwell County, against John IT. Harley, the defendant, for $104.08. The action was upon a promissory note, dated 16th November, 1867, given by defendant to plaintiff for improvements^put by the latter, in the fall of 1867, upon the mill-house of defendant.

Ou September 1st, 1866, Bannister Allen, plaintiff, sued out a writ of foreign attachment against J. Y. L. Partlow, defendant.

Motion to dissolve an attachment under a writ in foreign attachment, issued on the 28th August, 1867, by Charles L. Clawson, plaintiff, against the Sutton Gold Mining Company, defendant. The motion was granted, and the plaintiff appealed. The facts upon which the motion to dissolve the attachment was founded, and the grounds of appeal, as also the points made in the arguments on the appeal, sufficiently appear in the judgment of the Court.

Action by Peter C. Guery, trustee, plaintiff, against John PI. Kinsler, defendant, on a joint and several bond for $600, dated October 10th, 1857, given by D. D. Eenley, as principal, and defendant and two others, as sureties, to Sarah Brown, deceased. Sarah Brown left a will by which she bequeathed the bond and other property to John H. Pearson, in trust for Sarah Ann Haight and others, and appointed him executor. Pearson proved the will and accepted the trust.

This case came before the Circuit Judge on a rule to shew cause— entitled in all three of the causes hereinafter mentioned, and the return thereto.

This was an indictment against George W. Rankin for a public nuisance. The indictment contained three counts.

Bill in Equity by Benjamin J. Cureton, and Alice M., Ms wife, plaintiffs, against Joseph J. Watson, defendant, for account. Held: That judgment debtor was not liable, and whether trustee had acted in good faith was a question for the jury. — King vs. King, 37 Ga., 205. The case of Mayer vs. Mordeeai differs from this: 1. That the cestui que trust was to be consulted as to the investment of the funds. 2.

Bill in Equity by L. C. Hinton, administrator, with the will annexed, of Richard E. Kennedy, deceased, plaintiff, against Sarah Kennedy and others, devisees, legatees and creditors of testator, defendants. The object of the bill was to wind up the estate of testator alleged to have been made insolvent by the emancipation in 1865 of the slaves belonging to the estate.

Action by Alva Gage and seven other named persons, “ inhabitants and property holders of the city of Charleston, for themselves and others, inhabitants and property holders of said city,” plaintiffs, against the Mayor and Aldermen of the city of Charleston, constituting a corporation known as the City Council of Charleston, John S. Riggs, John Phillips and George I. Cunningham, defendants. The complaint alleged: First.

Bill to settle up the estate of Samuel MeNinch, who died insolvent and intestate in the year 1867.- Franklin A. McNinch, a son, and Celia A., a daughter of intestate, with her husband Hazel E. Davis, were parties defendant, and one of the objects of the bill was to obtain a decree setting aside as fraudulent, and void as against creditors, two deeds of gift of lots, in the village of Chester, made by the intestate, one dated November 2d, 1863, to Hazel E. Davis, in trust for…

Action by James M. Pringle, plaintiff, against Edward R. Dorsey, Francis H. Gordon, Thomas S. Davant, and Thomas H. Clarkson, defendants, for specific performance. The case is fully stated in the carefully prepared brief of appellants’ counsel, which is as follows : I. The complaint states: 1. That the plaintiff is the owner of the lot on which Christ Church stood, in Columbia, as described. 2.

The case was as follows : Joseph N. Whitner and L. A. Osborn were partners, under the firm name of Whitner & Osborn, in the business of tanning leather in the village of Anderson. Whitner died in 1864, and the defendant, E. H. Whitner, is his executrix. Osborn died in 1866, insolvent and intestate. In 1857, the firm borrowed $200 from Reuben Burris, the plaintiff, and to secure its payment, gave him the promissory note of the firm, payable with interest.

Writ of Error to the Circuit Court. The case is stated in the following report of the presiding Judge: “This was an action of assumpsit brought by plaintiffs for the use of Jacob Wheeler, against Simeon. Pratt, on his note for two thousand and sixteen dollars, payable on the 1st October, 1861, with interest from 1st October, 1857, and dated 12th October, 1857. The note was transferred soon after it was made to Jacob Wheeler.

Bill in Equity by James P. Boyce, plaintiff, against Robert C. Shiver and William Shiver, defendants. The case will be understood from the following statement of facts, and extracts from the testimony of the plaintiff, taken at the trial.

Bill by James M. Sullivan and others, plaintiffs, against William M. Thomas, George W. Tolbert, John R. Tolbert, William Hick-son and Martha Plickson his wife, T. Henry Stokes and Abigail Stokes his… Held: That the execution was satisfied, and that neither the Sheriff, nor any one else, could afterwards use it to enforce any claim against the defendant.— Martin vs. Goudy, 1 Hill, 417.

Petition by Theodore De Hay, to the Supreme Court, for a writ of habeas corpus, to be directed to the Superintendent of the Penitentiary. The writ was issued and the case heard upon the petition and return. The facts are stated in the opinion of the Court.

Action by Lockwood A. McCants, plaintiff, against Edward L. Wells, defendant. In the years 1868 and 1869, the defendant and Daniel Lesesne were partners, as commission merchants, in the city of Charleston, under the firm of Lesesne & Wells. Lesesne died in 1871, and this action was brought against the defendant, as survivor, to recover damages for the alleged negligenee of the firm in the shipment of cotton from Charleston to Liverpool.

'The appeal was heard upon the following case and exception: The action was to recover a tract of land against the defendants, with damages for use.

This was an action by George W. Palmer, plaintiff, against the Charlotte, Columbia and Augusta Railroad Company, defendants— a railroad corporation owning a continuous line of road from Charlotte, N. C., to Columbia, S. C., and thence to Augusta, Ga., — to recover damages for wrongfully ejecting the plaintiff from defendants’ cars.

The ease is stated in the Circuit decree, which is as follows : Moses, J. A motion to confirm the sale of a house and lot made by the late Commissioner in Equity for Newberry, by virtue of a decretal order in this case, dated the day of April, 1868. The defendants objected. Before entering upon a discussion of the merits of this controversy, it is important to review the facts upon which it is founded.

Action against three defendants. Hutchinson, one of the defendants, demurred to the complaint on the ground, inter alia, that the assignee in bankruptcy of Cureton, one of the defendants, who was alleged in the complaint to be an adjudicated bankrupt, should have been made a party plaintiff. The presiding Judge sustained the demurrer on this ground, and made the order which is recited in the opinion of this Court.