Volume 31 — South Carolina Reports

Before Kershaw, J., Richland, April, 1888. This appeal was from the following decree: On the 27th day of February, 1867, a judgment was duly entered in the above entitled case and execution sued out thereon and lodged with the sheriff of Richland County.

Before Hudson, J., Richland, July, 1888. On December 5, 1885, Sarah J. Harris died, leaving of force her will, which was as follows : The State oe South Carolina. In the name of God. Amen. Held: that at her death the whole property, as intestate, became distributable, one moiety to the next of kin of the testator, and the other moiety to the next of kin of the wife.

Before Witherspoon, J., York, December, 1887. This was a motion by AV. L. Erwin to vacate a warrant of attachment issued against his property by the clerk of court at the suit of W. L. Roddey & Co. The warrant was issued upon the following affidavits: James F. Reid, one of the plaintiffs above named, being duly sworn, says : I. That William L. Erwin, the above named defendant, is justly and truly indebted to said plaintiffs, under their firm-name of AV.

<p>Before Wallace, J., Spartanburg, March, 1888.</p> <p>This was an action by Albertine E. Lipscomb against H. C. Tanner. The opinion states the case.</p>

Before NORTON, J., Greenville, April, 1888. This was an action by William Burns against O. P. Mills, administrator, commenced February 18, 1887. The judge charged the jury as follows : This is an action by Mr. Burns against the administrator of Mr. Mills, to whom it is alleged that the plaintiff sold six Jersey heifers for $525. The plaintiff proves that he made the sale to the defendant’s intestate, Mr. L. A. Mills, at that price.

<p>Before Kershaw, J., Richland, May, 1888.</p> <p>The appeal was from the following decree:</p> <p>This cause was heard on the testimony taken at a reference before the clerk, on the pleadings and arguments of counsel. The facts of the case are as follows :</p> <p>On the third day of February, 1887, Robert G. Lamar, the husband of plaintiff-, was the owner of a tract of land described in the complaint, which was advertised and about to be sold under a decree of foreclosure of a mortgage thereon, and for the satisfaction of a judgment against him, the terms of the sale being one-third cash and the balance in two equal annual instalments, with interest. The said R. G. Lamar, being insolvent and desiring to secure the land for his wife, the plaintiff, applied to the defendant with a view of obtaining money on a loan on the security of the land, sufficient to pay for the same, and with'the assistance of his right of homestead therein, which would attach when the mortgage was satisfied, secure the land to the plaintiff, the said George K. Wright, the defendant, being a broker and dealer in real estate. The said defendant agreed with said R. G. Lamar to buy the said land for the said R. G. Lamar, for the purposes aforesaid, to be repaid out of the separate property of the plaintiff.</p> <p>On the 5th day of February, 1887. the said land was sold by the master, and, in pursuance of said agreement, was purchased by the defendant at and for the sum of $2,100, though the same was really worth $3,500, or more, and was purchased at an undervalue in consequence of an understanding on the part of some persons attending the sale with the purpose of bidding thereon, that the defendant was bidding for the benefit of the family of the said R. G. Lamar, which understanding was a consequence of the aforesaid agreement and prevented the persons attending to bid as aforesaid from bidding.</p> <p>After the said sale the defendant required of the said R. G-. Lamar the'advance of three hundred dollars cash on said sale, saying he could raise no more than $1,800 on the place; which sum the said Lamar could not then pay in cash, but instead thereof, offered the defendant the note of plaintiff at one year with the endorsement of her son-in-law, B. B. McCreery, a merchant of good standing and credit, for the sum of $330, being three hundred dollars and interest, which the defendant refused to receive. The terms of the sale being only one-third cash, and the defendant having proposed to raise $1,800 by a loan on the place, the only cash stipulated to be paid, before the sale, was so much as would be required to pay the master’s fees.</p> <p>On the 4th day of March, 1887, at 10 a. m., the defendant being satisfied that the money he required could not be raised by the said R. G. Lamar, required of the latter to sign a written agreement with the defendant, set out in the answer, reciting the bidding off of the land as aforesaid, and that the same was not yet complied with, whereby the defendant agreed to transfer his bid to the plaintiff if the sum of twenty-one hundred dollars be paid to him in cash, by 3 o’clock that afternoon, and the said R. G. Lamar agreed, if said payment should not be made by 3 o’clock as aforesaid, he would-at once surrender possession to the said defendant. The said R. G. Lamar did this without consulting plaintiff, but supposing he could raise the money from the bank with which he had been negotiating for the money to meet the demands of the'defendant. Failing in this, he ceased all further negotiations with the defendant on the subject.</p> <p>On the 17th day of March, 1887, the defendant paid the master in cash the sum of $2,100, the whole amount of the purchase money for the land, and took an absolute title to himself for the said land, and upon his application the said R. G. Lamar delivered to him the possession thereof; sold him the manure on the place and received from ihe master $55.87, being the surplus remaining in the hands of the master after paying the mortgage debt, judgment, and costs.</p> <p>On the 8th daty of February, 1888, the plaintiff made a legal tender to the defendant of the sum of $2,232, being the amount of the purchase money and interest thereon at the rate of 10 per cent.' per annum, and demanded of him a title to the said land, declaring herself ready to pay to defendant the expenses of titles or any reasonable charges of defendant for his services in purchasing said land, which tender and offer defendant refused. Defendant has continued in possession of the land, enjoying the rents and profits thereof from the time of its surrender to him by the said R. G. Lamar to the present. Immediately after the refusal of the tender aforesaid, this action was commenced to establish a trust in the land in favor of the plaintiff, and to obtain an accounting between plaintiff and defendant, and upon payment by the plaintiff of the money found due to defendant with interest, that defendant be required to copvey the land to plaintiff, or that the same be sold and the proceeds applied to the payment to the defendant of the amount so found to be due to him, and the balance, if any, to the plaintiff.</p> <p>From these facts it follows that the plaintiff is entitled to the relief demanded. These facts were established mostly by parol evidence, and the same was objected to and made the subject of exceptions to its admissibility on the part of defendant as being in contravention of the requirements of the statute of frauds. The admissibility of such evidence is to be determined by the consideration whether or not there be fraud in the conduct of the defendant in obtaining the title. If the evidence is for the purpose of establishing a contract whereby an interest in the land is to bo acquired by the plaintiff .under the contract, as a contract, it is not admissible; but if to show such conduct on the part of defendant in acquiring the land and securing advantages in the purchase thereof in consequence of the trust and confidence reposed in defendant, on account of the agreement, as amounted to a fraud or breach of trust, the evidence is admissible and the case outside of the statute of frauds.</p> <p>Here the contract was admitted by the defendant, so far as that the purchase was made for another. He told Col. Lipscomb that he had bought for R. G. Lamar. The testimony shows that Lamar'was acting for plaintiff and seeking to secure the land to his wife. The circumstances were sufficient to satisfy the defendant of his purpose in the negotiation as is conclusively established by the tecognition of plaintiff as the person to whom he should make the transfer.’of his purchase when paid the purchase money, in the written agreement subsequently procured by him. The answer shows that there was some agreement between him and Lamar for the purpose of securing to him the benefit of the sale, and this should open the door to the admission of evidence to show the whole truth in regard thereto, and for whose benefit it was intended.</p> <p>In consequence of that agreement having been mentioned, an understanding prevailed among the intended ,bidders at the sale to some extent, that the defendant was bidding for the family, in consequence of which some were induced to refrain from bidding who would otherwise have offered more for the land than it was bought for by defendant. Under such circumstances, the parol evidence will be admitted and the purchaser be charged with a trust upon the land,' according to the principles declared in Kinard v. Hiers, 3 Rich Eq., 423; Schmidt v. Gatewood, 2 Rich. Eq., 178; McDonald v. May, 1 Rich. Eq., 95. The contract is supported by the advantage secured to defendant in obtaining the land at much below its value in consequence of the impression among bidders that he was buying for the family, which could only have resulted from some communication of the fact that such an agreement had been made. Had defendant so stated to bidders, the sale would be void for actual fraud. If the information was given by any one else, the sale would have still been fraudulent, if made at an undervalue. The retention of the land under such circumstances would be a fraud upon plaintiff, for whose benefit the purchase was made, as' well as upon R. G. Lamar, whose property was sacrificed at.the sale.</p> <p>The case, therefore, does not fall within the statute. The parol evidence is admissible to show the previous agreement as one of the means whereby an unjust and inequitable advantage in the sale was secured to the defendant, and the property will therefore be charged with a trust in favor of the plaintiff.</p> <p>The subsequent agreement in writing between R. G. Lamar and defendant cannot impair the rights of the plaintiff. She was no party to that instrument, although it shows upon its face that she was the party to whom the benefit of the purchase was to enure. Lamar did not thereby contract that defendant should be discharged from his liabilities to plaintiff, if the purchase money were not paid at the hour named. He only agreed to surrender his possession. It was but reasonable that the defendant should have possession of the land until plaintiff had paid or provided for the payment of the purchase money according to the terms of the purchase. The surrender of the possession of the land could in no wise affect plaintiff’s rights under the circumstances, for they were in no wise dependent upon such possession. It seems to have been resorted to by defendant as a means whereby to get possession of the land, for he ivas satisfied that Lamar could not raise the money within the few hours to which he was limited. It was under the circumstances an unreasonable abuse of the advantages of his position and the supposed necessities of Lamar to exact such an agreement, but it succeeded. Lamar gave up his possession when afterwards demanded.</p> <p>By the terms of the original agreement of purchase, no time appears to have been fixed for the payment of the purchase money. It is evident that defendant was to obtain an advance upon the security of the land, of the sum of $1,800, or at least $1,500, on a mortgage of the land, to run for two or three years. The terms of the sale were one-third cash, and the balance on one a.nd two years. Under these circumstances, the land being worth much more than the defendant’s bid, it was inequitable in him to demand of plaintiff the payment of the whole purchase money. It was an abuse of his position and a breach of his duty to plaintiff, who was entitled to a reasonable time, with reference to the conditions of the sale, to comply with her contract with defendant. His payment of the entire purchase money in cash could not abridge the time which ought to have been allowed her for the payment of the purchase money. Therefore, when after-wards the tender was made by the plaintiff, with an offer to pay all proper charges and costs, the defendant was equitably bound to accept such tender and offer, and to convey the land to plaintiff. The tender was in proper time, since no sufficient steps had been taken in order to compel a forfeiture by plaintiff, or her rights under the purchase, and they had not, therefore, forfeited at that time.</p> <p>It is, therefore, ordered, adjudged, and decreed, that it be referred to .the master to take and state the account between the plaintiff and the defendant in respect to the purchase of the said land and the rents and profits thereof, since the defendant came into the possession thereof, in accordance with the foregoing decree. That in said accounting the plaintiff be charged with the amount of the purchase money paid by the defendant for said land with interest thereon, at the rate of 10 per cent, per annum from the day of said sale, the 5th day of February, 1887, to the day of the tender by plaintiff, the 8th day of February, 1888, and with interest on the same sum from that time to the date of the report of said accounting at 7 per cent, per annum. That plaintiff also be charged in said accounting with such reasonable costs and charges as defendant ought to be allowed for his services and trouble in purchasing said land for plaintiff, and the costs and charges for title deeds, &e. That the defendant be charged in said accounting with the value of the rents and profits of the said land while in his possession, and be allowed credit for all reasonable and proper improvements made thereon by him, to the amount that the same has added to the value of the land, which shall be a charge to said plaintiff in said accounting to the extent of said rents and profits, but not beyond them. That a balance be struck between the parties at said accounting and upon the payment by the plaintiff to the defendant of the balance ascertained by said accounting to be due the defendant, within three months after the coming in and confirmation of the report upon said accounting, together with lawful interest thereon to the date of such payment, the defendant do convey to the plaintiff the said land in fee, freed from all encumbrance upon the same arising since his purchase thereof. And in case the plaintiff shall fail to pay the defendant the said sum by the day aforesaid, the master do advertise and sell the said land at public auction on the first convenient sales-day thereafter for cash, and make titles to the purchaser of said land. That from the proceeds of said sale he pay first the costs and expenses of this action and said sale, and next the sum found to be due by plaintiff to defendant on the said accounting, with interest as aforesaid, and the balance of the said proceeds to the plaintiff, if there be any balance remaining. That if the plan-tiff pay the defendant the amount found to be due him on the said accounting on or before the time limited in order to obtain a conveyance of the land to her as aforesaid, the costs of this action be paid by the defendant.</p> <p>From this decree defendant appealed.</p>

<p>This was an application to this court in its original jurisdiction for a writ of mandamus. The opinion states the ease.</p>

<p>Before Hudson, J., Fairfield, September, 1888.</p> <p>This was an action by Furman Harris against the Richmond & Danville Railroad Company, commenced August 10, 1887. The opinion states the case.</p>

Before Witherspoon, J.; Kershaw, September, 1887. Held: and under the orders of the court had been practically held, to be turned over to the devisees only after the payment of all debts. XII.

This was an original application to this court by W. T. Eussell and others, the board of trustees of Spartanburg School District, for a writ of mandamus to require Edmund Bacon, the county auditor of Spartanburg County, to assess a tax. The opinion states the case.

Before Witherspoon, J., Edgefield, November, 1887. This was an action by Z. McCord and L. F.’ McCord, as Z. McCord. & Son, against J. P. Blackwell, as administrator of Martha Blackwell, deceased. The charge to the jury was as follows : It is alleged by the defendant that Mrs. Martha Blackwell, at the time of the alleged execution of this note, was a married woman, and according to the uncontradicted proof she was a married. woman.

<p>Before Pressley, J., Sumter, October, 1888.</p> <p>This was an action of claim and delivery by H. J. Gregory & Co. against Ducker & Bultman, commenced July 28,1888. The opinion states the case.</p>

<p>Before Aldrich, J., Hampton, March, 1888.</p> <p>This was an action of claim and delivery by John R. London against Levi D. Youmans. The opinion states the case.</p>

<p>Before Norton, J., Colleton, October, 1888.</p> <p>This was an action by T. W. Harley against the Butawville Railroad Company to recover damages for a cow killed by defendant’s running train, at a time when, and a place where, the general stock law was of force. The evidence showed that the railroad company owned the land on which its track was laid at that point, eind that plaintiff’s land was not adjacent.</p>

Before Wallace, J., Berkeley, October, 1888. This was an action by John Marines and Luke Marines to recover possession of a strip of land from F. Goblet and his tenant, A. Jouannet. The only facts in testimony stated in the Brief were as follows : “The lands of the parties lay adjacent to each other, and this piece was on the boundary line. The plaintiffs introduced title deed from Geo. F. Kinloch to them, dated Sept. 12, 1866, which was duly recorded.

<p>1. It is not legal error for the Circuit Judge to order a ease to trial when no request for delay or motion for continuance is made, but only a statement by defendant that he is not ready.</p> <p>2. Under indictment for arson, the case was called on Monday, and the prisoner arraigned. Her counsel demanded a copy of the indictment, which was furnished the same day, and said they thought she would be ready for trial on Wednesday. On Wednesday the case wras again called, when defendant’s counsel said they were not ready, but declined to make any request or motion for delay. After the trial was ordered to proceed, defendant demanded a copy of the jury list, which was handed to her counsel on a printed slip, and received without objection. Held, that defendant had wraived. any right she may have had to a copy of the indictment three days before the trial, and to a certified copy of the jury panel.</p> <p>3. In whatever portion of the county a crime is committed, it is the correct and better practice to allege in the indictment that it wras committed at the county seat.</p> <p>4. Under an indictment charging the burning of two. barns, it was not error in the judge to refuse to charge that it was necessary for the prosecution to prove that two barns were burned, especially as the testimony showed that there were twro barns burned.</p>

<p>Before Norton, J., Barnwell, November, 1888.</p> <p>This was an action by the National Exchange Bank of Augusta, Ga., against W. A. Holman, commenced in June, 1887. The opinion states the case.</p>

Before Aldrich, J., Kershaw, February, 1889. This was an appeal by Cornelius L. Winkler, the purchaser at a foreclosure sale in the case of Gerald v. Gerald, from an order of the Circuit Judge refusing to require the defendant to surrender possession, under a rule to show cause.

Before Fraser, J., Aiken, October, 1888. This was an action by Mary Ann Anderson and her children against A. P. Butler, executor of Seth Butler and of Catherine M. Butler, for account, injunction, and relief. The opinion states the case, the will and codicils of Mrs. Butler, therein referred to, being as follows: Will. In the name of God, Amen.

<p>Before Norton, J., Barnwell, November, 1888.</p> <p>This was an action by Sylvania Clayton against John Mitchell, commenced September 20, 1886. The opinion states the case.</p>

Before Hudson, J., Laurens, February, 1889. The appeal was from the following decree: The defendant contends that the demandant is not entitled to dower in these parcels, because, during the life time of the husband, they were sold by order of the Court in Bankruptcy in foreclosure and extinguishment of these liens for the purchase money.

Before Norton, J., Colleton, October, 1888. This was an action by Elvira R. Hodge, a distributee of James E. Fabian, against the administrator and other distributees of Fabian, and against purchasers of some lots of land of the intestate under a decree of the. Probate Court. The purpose of this action was to set aside said sales, have said lots partitioned or resold, and to require the administrator to account. The opinion states the case.

Before Pressley, J., Darlington, March, 1889. Held: and the night after the inquest, Wednesday night, the whole neighborhood was gathered there, the old man not being yet buried, but lying in his coffin; and William Scott goes there. He says he went after his money.

<p>Before PRESSLEY, J., Darlington, March, 1889.</p> <p>The opinion fully states the case.</p>

<p>Before Hudson, J., York, October, 1888.</p> <p>The opinion doubtless states the case sufficiently.1</p>

<p>Before Pressley, J., Chesterfield, February, 1889.</p> <p>The opinion states the case.</p>

Before Pressley, J., Clarendon, October, 1888. This was an action by Henry C. DeLaine against David W. Alderman. The judge charged the jury as follows: Gentlemen of tile Jury : It is my duty to call your attention to the facts and give you the law in this case. In the first place, all that has been said about the defendant’s entering upon that land and building thereon a railroad, lias nothing whatever to do with this case.

<p>1. A deed absolute on its face will not be declaved a mortgage, unless such an intention on the part of the parties is made clearly to appear from the facts and circumstances of. the transaction.</p> <p>2. From the terms of a deed which acknowledged the payment of the consideration, and contained a clause of general warranty, and from the possession and use of the land by the grantee for ten years without question, or anything being said about a debt, this court concurred with the Circuit Judge in finding that this deed, although based upon an inadequate consideration, was not intended to operate as a mortgage, but was accompanied with a verbal agreement, afterwards reduced to writing and lost, that the grantee -would rcconvey to the grantor on the repayment of the purchase money with interest and taxes.</p> <p>3. Specific performance of a contract to convey lands, refused, where the contract itself is lost, and the action was not instituted until more than ten years after the date of the contract and very soon after the death of the other party, no demand therefor being made in the meantime.</p>

Before Fraser, J., Richland, November, 1888. This was an action of foreclosure by IT. Gr. Utley, assignee of the executors of David Utley, against Thomas S. Cavender and his junior lien creditors.

Before Hudson and Norton, JJ., Laurens, June, 1886, and September, 1887. This was an action by John L. Young, as executor of Susan W. Garlington, against Stobo D. Garlington, to which, by order of Judge Hudson, Mary Y., the wife of defendant, was after-wards made a defendant.

Before Hudson, J., Darlington, January, 1889. This was an action by the Wando Phosphate Company against Joseph Rosenberg, commenced March 12, 1888. A warrant of attachment was issued by Judge Hudson pending suit, on December 12, 1888, upon the following affidavits : Personally appeared F. B. 'Hacker, who, being duly sworn, says, that he is president of the Wando Phosphate Company, plaintiffs in the above action.

Before Aldrich, J., Kershaw, February, 1889. This was an action by E. E. Rembert against the South Carolina Railway Company. After plaintiff announced that he closed his testimony, Mr. Nelson moved for a non suit, upon the ground that defendant’s denial put in issue the incorporation of the defendant, and there was no proof of a charter. The court said he would permit plaintiff to introduce the charter.

Before Hudson, J., Lancaster, October, 1888. This was an appeal by plaintiff from- the following decree : This cause came on to be heard upon the report of the referee, M. J. Hough, Esq., and exceptions thereto. The referee finds that there is due upon the mortgage debt the sum of sixteen hundred and ninety-three dollars and forty-six cents.

Before Eraser, J., Abbeville, February, 1889. The opinion states the case.

<p>1. A non-suit is proper where there is an absence of all competent and pertinent testimony to any one or more of the contested issues raised in the case.</p> <p>2. Property seized under an agricultural lien warrant was replevied, the defendants here, as sureties, signing an undertaking for the delivery to plaintiff of the property mentioned in case a delivery should be adjudged and for the payment to plaintiff “of such sum as may in this action for any cause be recovered against the defendant.” No issues were “made up and set down for trial at the next succeeding term” of court under the agricultural lien law, but plaintiff, by ordinary action, recovered judgment against his debtor for this debt, issued execution, and obtained a return of nulla bona. He then brought this action against the sureties to the undertaking. Held, that defendants -were not liable, as their undertaking only related to a recovery under the proceedings which had been commenced by the issue of the warrant. Mr. Justice McGowan, dissenting.</p>

Before Kershaav, J., York, July, 1888. This Avas an action by James A. Erwin, as administrator of M. Agnes Lindsay, and L. M. Grist, collateral assignee, against Martha B. Lowry, commenced in March, 1888. The opinion sufficiently states the case.

Before Hudson, J., Laurens, April, 1889. This ease arose under three lien warrants issued in 1881 and 1882, against B. B. Gilliam and his tenants. The three cases were heard together. The opinion states the case.

Before Fraser, J., Abbeville, January, 1889. This was an action by Thos. L. Moore, as administrator of Eliza Perrin, against Thomas M. Christian, commenced in January, 1888. The opinion states the case. The order to rescind was erroneous because the order for non-suit was proper. 27 S. 0., 622. The amendment materially changed the claim. 14 S. 0., 357 ; 25 Id., 415. The third exception is well taken. 21 S. 0., 241. As to the fourth exception, see 13 S. C., 496.

<p>1. To maintain an action for malicious prosecution, plaintiff must prove three things : 1. That there was no probable cause for the prosecution. 2. That it was malicious. 3. That the prosecution was ended before the aciion was commenced. If there is no evidence tending to show any one of these essential facts, a non-suit is proper.</p> <p>2. Defendant sold a mule covered by a chattel mortgage held by plaintiff, without plaintiff’s written consent, or without paying a balance then due on this debt within ten days thereafter or depositing the same with the clerk of court, thus committing the offence prohibited by the statute (Gen. Stat., $ 2515). Subsequently plaintiff paid an amount which was sufficient to extinguish the debt, after which defendant (probably supposing that there was still a balance due him) procured a warrant, charging plaintiff with this statutory offence. Held, that there was not a want of probable cause, and the plaintiff, on this action for malicious prosecution, was properly non-suited. Payment of the debt before the warrant issued might bear upon the question of maliee, but not upon that of probable cause.</p>

Before Kershaw, J., York, July, 1888. These were’two actions instituted in May and June of 1887, by creditors of Black, Carpenter & Davies against John G. Black, assignee, and the assignors, to set… Held: that the proceeds should be applied to the separate execution. This was a case in the law court, and came up on a rule on the sheriff; nevertheless, the court applied the equity principle.

<p>1. Where the defendant is a non-resident of the State, and cannot, after due diligence, be found therein, and a cause of action exists against him, and he is a proper party to the action, which relates to real pi-operty in this State — the court has jurisdiction of the action, and, the master being satisfied of these facts by the affidavits submitted to him, his order for the service of the summons by publication is proper.</p> <p>2. The courts of this State have jurisdiction to set aside, as to real property in this State, a fraudulent assignment made in another State, even where all the parties in interest are non-residents.</p> <p>3. After order for publication of summons, personal service was made in another State, proved by admissions of defendant on the record and by affidavit of the person who served it, before a notary public, who attested the same by his signature and official seal. More than a year afterwards, a clerk of a court of record certified, under his hand and official seal, to the official character of such notary. Held, that the defendants were properly served, and that the service was legally proved.</p> <p>4. While attachments may be issued in some actions other than one for the recovery of money, an action by creditors of A against A and B, to set aside-a fraudulent conveyance by A to B, and for the payment of the debt, is. as to A (the only appellant in this court), an action for the recovery of money.</p> <p>5. It the facts stated in the affidavit, upon which an attachment issued, were not sufficient to set aside as fraudulent a deed from A, the defendant debtor, to B, but did show an indebtedness by A to the plaintiffs, they would be sufficient to show that a cause of action existed.</p> <p>6. In the face of the clerk of court’s certificate, that the undertakings in the attachment proceedings were filed and approved, it cannot be urged that they were not filed or approved.</p> <p>7. An undertaking in attachment is not sufficient to justify the issuing of the warrant, unless it complies with the three conditions proscribed by the law: (1) It must be in writing, (2) on the part of the plaintiff, (3) with sufficient surety. An undertaking in writing, on the part of the plaintiff, would be complied with, it may be, if the plaintiff’s name was signed to the written undertaking by some one authorized by the record to sign as agent for the plaintiff; but where the plaintiff’s name was not signed to the undertaking, but it was signed by strangers — in one case by one person, and in another by two — the requirements of the law were not complied with, and, therefore, the attachments were set aside. Me. Justice McGrow an, dissenting.</p>

<p>Before Norton, J., Abbeville, March, 1889.</p> <p>These were motions made on Circuit by the defendant, E. IT. Booker, to dissolve attachments issued against him by E. W. Wagener '& Co. in one case, and by Watkins & Davenport in another. Upon the points decided by this court, the opinion fully states the case.</p>

<p>Before Aldrich, J., Marion, October, 1888.</p> <p>These were actions by Lot B. Rogers and C. C. Whittington against the Florence Railroad Company. The contract between the defendant and J. D. Hardin, so far as it has any bearing upon this case, was as follows :</p> <p>Articles of agreement made and concluded upon this 15th day of February, in the year of our Lord one thousand eight hundred and eighty- , between James D. Hardin, of the part first, and Florence Railroad Company, of the other part, as follows:</p> <p>Witnesseth, that for and in consideration of the payments and covenants hereinafter mentioned to be made and performed by the said railroad company,</p> <p>The said party of the first part doth hereby covenant and agree to and with the said railroad company to construct and finish in a substantial and workmanlike manner, and to the approval and acceptance of the chief engineer of the company, all the excavation, embankment, and other work essential and incidental to the complete graduation of all of that part of the said railroad, known upon the maps and profile as section Nos. one, two, three, and four, to be built continuously, beginning with sec. 1, and to do and perform all other matters and things as set forth and required in the specifications hereto annexed, and agree to be held and taken as a part of this agreement.</p> <p>And the said party of the first part doth further covenant and agree that the work embraced in this contract shall be commenced on or before the 1st day of March, 1887, and be continuously prosecuted with such force as will ensure its completion on or before the 1st day of Septempber, 1887, and it is distinctly understood that the completion of the work by or before the said time is a binding and essential portion of this agreement.</p> <p>And it is further agreed that in the event that the said work shall not be commenced or prosecuted as aforesaid, or if the party of the first part, on being thereto required by the chief engineer, shall fail or refuse to increase the force engaged upon the work for ten days from the date of such requirement by the said engineer, or shall fail to comply with any of the written orders or directions of the chief engineer ; or shall violate any of the essential terms of this agreement; then, upon the fact being made known to him, the president of the said railroad company may declare this contract forfeited and abandoned, and the said railroad company exonerated from all and every obligation existing or ensuing under it, and the said party of the first part shall forfeit to the said railroad company as well the reserved percentage as also all other dues to the said party of the first part owing, and all material furnished and work done for which no estimate may have been made and returned to the secretary of the said company, in satisfaction of the damage incurred by said company through the delinquency of the said party of the first part; and said railroad company may agree with any other party for the completion of the work, as if this agreement had never been entered into. And it is further agreed that if the party of the first part shall fail to comply with the requisition of the chief engineer to place additional force upon the work, it shall be competent for the president of said railroad company, instead of declaring the contract forfeited and abandoned as aforesaid, to procure and place upon the work such a force of hands and managers as will secure its completion by the time stipulated, and charge over the amounts paid out for the work done as cash payments to the party of the first part.</p> <p>. And it is further agreed that the president of the said railroad company, for any of the causes above mentioned, may declare any portion of the work abandoned and forfeited herein contracted for. such portion to subject to the same forfeiture and control as if the whole were abandoned.</p> <p>And it is further expressly agreed that in the event the work is not completed at the time stipulated, the party of the first part shall not be privileged to abandon the work merely forfeiting the reserved percentage, but the president of the said railroad company shall have the right to employ such a force of hands and managers and necessary implements, mules, carts, &c., as may be adequate to complete the work in the shortest time, and charge over the amount paid out for such labor as cash paid to the said party of the first part.</p> <p>The said party of the first part shall not assign or sublet the whole or any part of this contract without the consent of the president of the said railroad company. The said party of the first part shall discharge any foreman or other employee who shall, in the judgment of the engineer in chief, or the assistant in charge of the work, be unfaithful, unskilful, or remiss in the performance of his work, or guilty of riotous, disrespectful, or otherwise improper conduct, and no person discharged from this work, or other work done for the said railroad company, shall be employed again by the party of the first part upon his work without the written consent of the chief engineer.</p> <p>The use or sale of ardent spirits or other intoxicating beverages upon the work, or in any of the buildings, boarding houses, or other tenements, owned or occupied by the said party of the first part or his employees, is strictly forbidden.</p> <p>Where the line of railroad passes through farms, the said party of the first part shall keep up such temporary fences as may be necessary for the protection of the crops, and shall be responsible for any damage that may be done by him or his employees or hands, during the progress of the work, to property adjacent to the line, in consequence of their unskilfulness or negligence; and if any such damage shall be done, the president of the said railroad company shall have the right to settle and pay therefor and deduct the amount from the next estimate made him.</p> <p>Whenever any work herein embraced shall in any manner interfere with a public or private road, the party of the first part shall keep a temporary roadway during such interference at all times unobstructed and safe for travel, and any damage from failure to do so may be settled and paid for and withheld, as above stated, unless settled by the party of the first part.</p> <p>No claim for extra work will be allowed or considered unless the same shall have been done by written order of the chief engineer or the assistant in charge of the work.</p> <p>No extra compensation shall be made to the party of the first part for hindrances or delays from any cause in the progress of any work, if such hindrance or delays arise from any cause other than the fault of the party of the first part; in that case he shall be entitled to such an extension of time, for the completion of his work as may compensate him for the detention.</p> <p>And the said railroad company doth covenant, grant, and agree to and with the said party of the first part, that an assistant engineer shall be regularly retained in its service, to direct in the execution of the work, and to make out monthly estimates of the quantity and relative value of each species of work done pursuant to this contract, and also of the relative value of all suitable material which may have been delivered upon the site of the work, or at other' convenient points, if properly secured to the said company.</p> <p>He shall also include the value of any extra work done or materials furnished in consequence of any change or alterations in the plans of the work, when such change shall have caused an increased expense to the party of the first part; where such change has diminished the work and expense, a proper deduction shall be made in his said estimate; and it is agreed that the estimates made monthly as aforesaid, during the progress of the work, shall be considered only as approximate, nor shall such estimates be considered as an approval and acceptance of the work done. Said estimate shall be approved by the chief engineer and forwarded by him to the secretary and treasurer of the company. Upon the completion of the work and its approval and acceptance of the chief engineer, a full and exact estimate of the whole work done shall be made and certified by the chief engineer to the secretary of the railroad company, according to the following prices: * * *</p> <p>The witness, Page, was permitted to testify to a conversation between himself and two unknown railroad hands, at the fire on Sunday, as to the origin of the fire ; and Bethea testified that one Wingate, and another person unknown, told witness that if he would help put out the fire, they would pay him — they afterwards told the foreman of the work that witness had helped, and he was paid by such foreman.</p> <p>upon the points decided by this court, cited 1 Redf. Rail., 503; 2 Rorer Rail., 840, § 4; Addison Torts, §§ 580 — 1 ; 2 Wood Rail. L., 1008, et seq.; 15 Am. Brig. R. R. Cas., 110: 23 Id., 423 ; 35 B. J., 17 ; 38 Barb., 653 ; 5 B. Y., 48 ; 8 Id., 222 ; 62 Me., 437 ; 23 Iowa, 562 ; 81 Brig. O. L. Rep., 550 ; 22 Bng. L. Bq., 366; 30 Barb., 229; 55 Am. Dec., 322; 51 Id, 200; 56 Me., 520; 4 Bxch., 244.</p> <p>cited 19 B. H., 427 ; 51 Am. Dec., 193; 6 II $ B., 81; 14 III, 85; 56 Am. Bee., 495; 23 Riele., 24; 38 Am. Bee., 669; 63 Id., 743 ; 3 Gray, 349; 20 III, 385; 11 Am. Bee., 286 ; 22 III, 109; 7 Mich., 421; 25 Bans., 745 ; 71 Am. Bee., 295; 5 Wall, 90; 17 Id., 445; 28 S. C., 404; 17 B. Y., 104; 86 III, 110; 5 Ohio, 38; 15 Wall, 649 ; Beer. Begl, 220 ; 15 Bed. Rep., 875; 45 111,455; 1 Rob., 432; 11 B. Y., 432; 16 Wall, 566 ; 2 Black, 418 ; 28 S. 0., 404 ; 56 Am. Bee., 494; 18 S. 0., 262; 23 Id., 528.</p>

<p>Before Aldrich, J., Newberry, February, 1887.</p> <p>The opinion states the ease.</p>

<p>1. A railroad company constructed a trestle which crossed a public highway at right angles. Afterwards, the road officials of the county opened a new road under this same trestle, at a different point, without notice to the railroad company, and the new road approached the railroad obliquely and passed under through a narrow opening, with a sharp turn. In driving down this new road, the plaintiff’s buggy struck the benches of the trestle, and he was thereby thrown out and severely injured. Held, that this injury was not the result of any negligence on the part of the railroad company, and in action to recover damages therefor, the plaintiff was properly non-suited.</p> <p>2. If the new road was laid out because the defendant had negligently permitted the old road to get into bad condition, the injury received by plaintiff on the-new road was too remote a consequence of the company’s negligence to sustain this aciion.</p>

<p>Before Kershaw, J., Spartanburg, October, 1888.</p> <p>This appeal was from the following decree:</p> <p>This was a proceeding commenced by a rule on the sheriff to show cause why the proceeds of a sale under execution against the defendant, B. T. Wood, should not be paid to plaintiff. The presiding judge directed a reference to C. P. Sanders, Esq., to ascertain the facts and determine the rights of parties, and the .case is now heard on the report of the referee, dated October 4, 1888, and exceptions of Mrs. E. J. Smith, who was made a party .to the proceeding, as claiming to be the owner of an older judgment against B. T. Wood, to which the proceeds of said sale should have been applied. The facts are stated in the report for the most part, and such as are omitted are herein stated, so far as necessary to this decision.</p> <p>The case is to be determined upon the correctness of the finding of the referee, that the judgment set up by Mrs. Smith was paid. It is claimed, first, that the judgment was paid by lapse of time, having been recovered more than twenty years before the land was levied and sold. I think this contention is not well founded, because there was a solemn admission of the judgment in writing by the debtor, in his schedule in bankruptcy, filed as late as August 4, 1873. See Sartor v. Beaty, 25 S. C., 293. ■</p> <p>It is next claimed that it is paid, because it was heretofore, July 8, 1874, assigned to the judgment debtor, and that it thereby became ipso facto paid, upon well known principles of law. Among the effects of the debtor included in the schedule in bankruptcy filed by him, was the tract of land in question, which was therein set down as property exempt from assignment under the bankrupt acts and homestead laws, and it was set apart to him as a homestead by commissioners appointed for that purpose, and .no exceptions were taken to such assignment. At the time of these proceedings the judgment of the plaintiffs and that now' .held by Mrs. Smith, as assignee, were in existence, both founded on causes of action which were in existence before the adoption of the constitution of 1868, and other homestead laws, but the latter was the prior in date.</p> <p>After the proceedings in bankruptcy above stated, to wit, July 8, 1874, B. T. Wood, the debtor, having been advised that there was probably some doubt about the title to his homestead as against these judgments, and with a view to protect the same, bought the oldest judgment against him, and the same was assigned to him (without recourse) by A. L. Moore, the plaintiff in said judgment. Afterwards, on March 19, 1887, in order to secure the title of the said land to Mrs. E. J. Smith, which had been sold and conveyed to her by the said B. T. Wood, he assigned to her the judgment previously assigned to him by A. L. Moore.. Whereupon the execution of the plaintiff was levied upon the land, and the same was sold and bought by the said Mrs. E. J. Smith for a sum less than the amount of the judgment assigned to her.</p> <p>It is evident from this statement that plaintiff’s judgment never had a lien upon the land in question, except in subordination to that of the respondent, Mrs. Smith, and that unless extinguished, the latter is entitled to the proceeds of the sale thereof, and the rule must be discharged. ' It is unquestionably true that the union of debtor and creditor in the same persons will operate as an extinguishment of a debt, or the discharge of a lien for such debt unless something is shown to the contrary. But equity will keep an encumbrance alive, or consider it extinguished, as will best serve the purposes of justice and the actual intention of the party. It must be, however, for an innocent purpose and injurious to no one. Gardner v. Astor, 3 Johns. Oh., 53; Starr v. Filis, 6 Id., 393. In Forbes v. Moffat (18 Yes., 390), it is said: “Upon this subject a Court of Equity is not guided by the rules of law. It will sometimes hold a charge extinguished when it would subsist at law, and sometimes preserve it when at law it would he merged. The question is upon the intention, actual or presumed, of the person in whom the interests are united.” See 2 Pom. Fq., 700. The principle is recognized here: Agnew v. R. R. Co., 24 S. C., 23 ; Carson v. Richardson, 3 McCord, 528; Wilson v. Wright, 7 Rich., 404; Kirkpatrick v. Ford, Aiken, 2 Speer, 113. See also Factors Ins. Co. v. Murphy, 111 U. S., 738. It is true, most of these cases are in relation to mortgages, but it seems to me the principle is the same.</p> <p>Here there is no question of the intention, and no one was injured by the lien being kept open to protect the title to the land. The plaintiffs had no demand against the defendant, Wood, that could be enforced against him personally after his discharge in bankruptcy. It may be that his lien on the land was not displaced, but it was subservient to that of the older judgment creditor. I can see no reason why the bankrupt could not purchase and hold open this older lien on his property to save' his homestead. Certainly the plaintiffs here have no equity in their favor, a.nd the court is not called upon to lend its assistance, as invoked in this proceeding.</p> <p>It is ordered and adjudged, that the rule be discharged, and the plaintiffs pay the costs therein.</p> <p>The Alfred Moore judgment was not satisfied by its being assigned to Wood, because there was no intention that it should be, satisfied, or that the lien should be merged in the title of Wood. 2 Pom. Fq. Jur., 791; 7 Wait Act. $ Def., 324; 3 Lead. Cas. Real Prop., 237, 242, 246; Freem. Judg., 235a; 1 Jones Mort., § 848; 6 Johns. Ch., 396; 14 Pick., 374; 5 Watts, 456; 111 U. S., 743; 3 McCord, 532; 2 Speer, 112; 7 Rich., 401 ; 4 Rich. Fq., 86; 24 S. 0., 23; 163 Mass., 474; 18 Wall., 4; 3 Pars. Cont., 520; 115 L. S., 543. To prevent merger in a case like this, the intention governs, and it is immaterial whether such intention is expressed or implied. Agnew v. R. R. Co., 24 S. C., 23; 2 Pom. Eq. Jur., 792; 3 Lead. Cas/ R. Prop., 239, 241; 1 Jones Mort., § 848. As a matter of fact, the intention in this case against merger is clearly manifest in the written paper itself. 3 Lead. Gas. R. Prop., 235; 7 Rich., 404, The title and the encumbrance never did meet in Wood at one and the same time. Pars. Cont., 245, 261; 20' Wall., 407. The appellant is barred by his own laches and that of his assignor. 7 Rich., 399; 25 S. C., 112. The rule was improperly taken out in this case. 2 Speer, 112.</p>

Before Witherspoon, J., Greenville, September, 1888. Action by R. E. Chapman against J. T. Chapman. When the first witness for defendant was on the stand, he was asked by defendant’s counsel as to the transactions between the parties. It was objected that witness “could not go behind the statute of. limitations; that everything up to that time had been cleared up.” The court sustained the objection.

Before Witherspoon, J., Greenville, October, 1888. This was an action for partition, of the tracts of land called Nos. 1, 2, 3, and 4, the plaintiffs claiming to be some of the heirs at law of Lemuel J. Waddill, and that he died intestate as to these lands. The defendants were the heirs and vendees of Eliz. T. Waddill and Rhoda H. Waddill. • The opinion states the case.

Before Hudson, J., Chester, October, 1888. The chattel mortgage referred to in the 'opinion covered “all my stock on hand, manufactured or otherwise, tools of every descriptionconnected with my business as harness and saddle maker, as well as stock, manufactured or otherwise, that may hereafter come into my possession, as connected with my business as harness and saddle maker, as well as notes and accounts which may be taken or made by me in said business.” In case of…

Before Wallace, J., Pickens, July, 1888. The opinion states the case, but the receipts referred to in the 4th exception are here set out in full.

<p>1. An order of court required plaintiff to file security for costs by the first day of the next term of court, or be non-suited. An undertaking for costs signed by plaintiff and a surety, witnessed by plaintiff’s attorney, was left with the clerk of court before the day named, but the signature of the surety was not witnessed by the clerk nor the sufficiency of the security approved by him, as required by law, until after the day limited. Held, that the signature not having been witnessed nor the security approved within the time limited, there was not such a compliance with the order as the law requires, and therefore the non-suit became operative.</p> <p>2. This order of court was such a final order as authorized the entry of judgment, and therefore a judge at a succeeding term could not rescind or modify it, or relieve the plaintiff from the consequences of his omission to comply within the prescribed time. McMillan v. McCall, 2 S. C., 390, disapproved.</p> <p>3. A seems that defendant did not waive his right to enter judgment of non-suit by joining plaintiff in taking the testimony of a witness before the order of non-suit was granted, or in filing cross-interrogatories under protest, after the time limited by the order had expired.</p> <p>4. The statute and rule of court permitting security for costs to be required from non-residents do not conflict with the provision in the Constitution of the United States (art. IV., § 2), which declares that “the citizens of each State shall be entitled to all privileges and immunities of the citizens in the several Statesfor in this matter the discrimination is not against citizens of other States, but only against non-residents.</p> <p>5. The order of court requiring security for costs not having been excepted to or appealed from, the question of constitutionality is considered only ex gratia.</p>

<p>1. A married woman may manage her separate estate through her husband or other person as agent, and for articles purchased by such agent for the use of her separate estate, she is liable.</p> <p>2. Where a married woman represents as a fact that she is purchasing articles or borrowing money for the use of her separate estate, and her creditor does not know to the contrary, she will be afterwards estopped from denying the truth of such representation. The burden is on the creditor to show that the contract of the married woman related to her separate property ; but after proof of such representation, the burden shifts, and the married woman must .show that the creditor knew that her representation was not true.</p> <p>3. Where a married woman by letter informs a merchant that she owns a valuable plantation, with a promising crop thereon, and asks for credit, saying she will charge her tenants the same prices that are charged her, and that she will settle in the fall for all goods purchased, her letter amounts to a representation that articles thereafter purchased by her would be for the use of her separate estate.</p> <p>4. This court has no jurisdiction to review the refusal of a Circuit Judge to grant a new trial, or a new trial nisi, moved for upon the ground that the verdict of the jury was not supported by the evidence.</p> <p>5. Where the verdict must depend upon the view taken by the jury of the evidence, the trial judge has no right to direct a verdict; and not having directed a verdict, it cannot be said in such case that the verdict was contrary to the charge of the judge.</p>

Before Fraser, J. Anderson, February, 1889. Motion to vacate warrant of seizure for crop rents issued by W. K. Sharp against P. B. Palmer. The appeal was from the following order refusing the motion : This case came before me at the term of the court held in February, 1889, on a motion to quash or set aside a warrant issued by the deputy clerk to foreclose a lien for rent.

<p>Under an indictment for assault with intent to kill, the jury found defendant “guilty of an aggravated assault and battery.” Held, on motion in arrest of judgment, that an assault with intent to kill includes the lesser offence of “an aggravated assault,” and to that extent the indictment supported the verdict; and although the conviction of a battery could not stand because it was not charged, yet the words, “and battery,” could be stricken from the verdict as surplusage, without affecting the sense of that which remained. The defendant, therefore, was properly sentenced to punishment for an aggravated assault.</p> <p>Mr.. Justice McIver, dissenting.</p>

<p>1. When the same person unites in himself the character of both debtor and creditor, the debt is to be regarded as paid by operation of law. But where R and P are sureties on the administration bond of C, and C died, and R, one of these sureties, became administrator de bonis non, who afterwards also died, before any account had been taken of C’s administration, or any indebtedness by C, as administrator, had been ascertained, the amount due by C (and his sureties) was not so paid to R, when he administered, as to relieve P, the co-surety, from liability for C’s devastavit, afterwards established. The doctrine fully discussed, and the cases reviewed.</p> <p>2. P having also signed as surety the bond of R, as administrator de bonis non, if the balance now ascertained to have been in C’s hands at his death, could be regarded as paid to R, when he administered, it would be cash in R’s hands as administrator, for which P, as surety on R’s bond, would be liable.</p> <p>3. Where C received from intestate in his life-time certain notes for collection, and afterwards administered on his estate, and payment on these notes was properly accepted in Confederate money, but it does not appear at what time they were paid, the administrator was chargeable with the value of Confederate money at the date of the maturity of the notes, which was prior to the death of intestate. For C’s own note to intestate maturing after intestate’s death, C was chargeable with the value of such money at the maturity of his note.</p> <p>4. An administrator is liable for interest on the balances in his hands, but not for interest on the aggregate of principal and interest agreed by counsel to have been in his hands at a past date.</p> <p>5. Petition for rehearing refused.</p>

Before Kershaw, J., Spartanburg, October, 1888. Under action by Marie L. Gwynn against A. J. Gwynn and C. P. Sanders, assignee, to vacate a deed of assignment made by the plaintiff, a married woman, and the defendant, her husband, to his co-defendant, this court adjudged that the deed must stand, so far as it undertook to appropriate her separate property to the payment of debts for which she was legally bound; and the cause was remanded. Givynn v. Gwynn, 27 S. C., 545.

Before Fraser, J., Chester, March, 1889. Action by Robert C. Howard against Nancy Kitchens, on a note dated January 22, 1885. The judge charged the jury as follows: 1 undertake to lay down the law upon the subject of liability with considerable hesitation. I cannot charge the proposition of law which I have been requested by the defendant to charge.

Before Hudson, J., Spartanburg, March, 1889. Action by L. Schmidt against Martha C. Dean, a married ■woman, to foreclose a mortgage of land, dated September 15, 1885.

<p>Before Hudson, J., Spartanburg, March, 1889.</p> <p>The opinion states the case.</p>

Before Norton, J., Barnwell, November, 1888. Action by Leroy Molair against the Port Royal and Augusta' Railway Company. .See this case, once before reported on a former appeal, in 29 S. C., 132. The charge to the jury was as follows: The gist of the action is negligence.

Before Fraser, J., Edgefield, November, 1888. This was an action by Lewis Jones against Ella L. Smith commenced in March, 1888.

Before Kershaw, J., Laurens, September, 1888. The separate opinion of Mr. Justice McGowan fully states the case as follows: This was an action to marshal and settle the estate of John T. Duncan, deceased, brought by G. W. Shell, as administrator with the will annexed. The complaint alleges that John T. Duncan died seized of 1,284 acres of land, but considerably involved, and that the sale of the land was necessary for the payment of the debts of the deceased.

<p>1. In action for foreclosure against a father and his three children, heirs of the mortgagor, the summons was personally served upon the two children, who were under 14 years of age, and also upon their father, with whom they resided, with a notice attached to the summons served upon the father, that unless a guardian ad litem, was appointed for these infants within twenty days, &e., plaintiff would procure such appointment. Held, that those two infants were properly served, as the service had been made personally upon them and also upon their father, with whom they resided.</p> <p>2. These two infants having appeared by a guardian ad litem, duly appointed, who put in a formal answer, the decree of foreclosure bound them as to all matters necessarily involved in that action. It was therefore too late afterwards for them to attack the judgment upon the ground that the mortgage of their mother, a married woman, was in part invalid ; this matter was res judicata.</p>

<p>Where a purchaser of land from a judgment debtor takes deed, goes into possession and holds adversely, the right of action for its recovery is barred after ten years, although the legal title was acquired by the plaintiff, judgment creditor, who became the purchaser at sheriff’s sale under his pre-existing lien, only seven years before action brought.</p>

Before Kershaw, J., Richland, April, 1888. For a full statement of the case upon matters not stated in the opinions here, see Green v. Iredell, 26 S. C., 553.