Volume 32 — South Carolina Reports

<p>Before Witherspoon, J., Beaufort, May, 1889.</p> <p>In connection with this case, read the next succeeding ease of Ex parteWhipper, post. p. 5. W. J. Whipper and Thomas Talbird were candidates for the office of probate judge at the general election held in Beaufort County on November 6, 1888. After the election and a canvass of the votes and returns, the county board of canvassers reported that Talbird was elected. Whipper contested this report before the State board of canvassers, who, after a hearing, declared Talbird to be elected. From this determination Whipper appealed to the Circuit Court of Beaufort County,_ and from the order of that court dismissing his appeal, he appealed to this court on the following exceptions:</p> <p>1. Because his honor erred in deciding that there was, under the law, no appeal from the State board of canvassers to the Circuit Court. II. Because his honor erred in deciding that the Circuit Court of Beaufort County had no jurisdiction in the cause. III. Because the decision in Ex parte Mackey, 15 S. C., was made before the law now of force, and has no relevancy whatever to this case, and his honor erred in not so finding. IY. Because the State board of canvassers having decided there was error in the action of the county board of canvassers, and yet having neglected to afford the remedy due the appellants, and having ended its functions without giving such relief, to hold that there are no means by which such error can be corrected, would be to affirm the proposition that there is a wrong done for which there is no remedy provided by law, and his honor erred in not so finding.</p>

This was an application to this court in its original jurisdiction for a discharge of the petitioner from the jail of Beaufort County-under writ of habeas corpus. The opinion states the ease.

<p>Before Norton, J., Richland, October, 1889.</p> <p>The opinion fully states the case.</p>

Before Pressley, J., Edgefield, August, 1889. This was an indictment against William Dawkins and William Davis alias Bulger Davis for burglary. The prosecutor testified that on the night of June 21, 1889, he locked his front door, fastened down the windows with a catch, and latched the back door, which might be opened from the outside by turning this latch.

Before Norton, J., Marion, June, 1889. Clinton P. Jackson being on trial for the murder of W. H. Brooks, the trial judge charged the jury as follows : Gentlemen or the Jury : You are charged in the trial of one of the gravest causes that is known to the laws of the State. The defendant, Clinton P. Jackson, is charged that on the 25th day of April he wilfully murdered one W. H. Brooks. His plea is the plea of self defence.

Before Pressley, J., Lexington, June, 1889. Julius Wyse was indicted for the murder of Willis Stork, in the town of Lexington, on February 23, 1889. At the trial, O. J. Duffie, a juror, was sworn on his voir dire, and interrogated by the court as follows: “Q. By the Court: Are you related to any of the parties in this case?. A. No, sir. Q. Have you expressed any opinion in it? A. No, sir. Q. Have you formed any opinion on the case? A. Not particularly.

Before Hudson, J., Laurens, March, 1889. ’ In this case, the Chief Justice, having been of counsel for some of the parties in the cause, declined to sit. The appeal was argued before the two Associate Justices in May, 1889. In November, 1889, they filed an order directing a reargument.

<p>1., In 1843 a tract of land was conveyed to trustees in trust for the sole and separate use of a married woman during the joint lives of herself and her husband, and if she survived her husband, then in trust for the use of herself and such children as she might then have living, so long as she remained the widow of such husband; and upon her death or remarriage the said property was to be divided per stirpes between her then surviving children and the issue of such as were then dead. Held, that upon the death of the husband, there was no further duty to be performed, or discretion to be exercised, by the trustees, and therefore the statute executed the use in his surviving widow and children.</p> <p>2. A deed of feolfment, with livery of seizin, made by this widow and her then surviving children, barred the ultimate contingent remainders, and conveyed a good title to the feolfee.</p> <p>3. If. an estate be given to a woman during widowhood, she takes an estate for life determinable upon her remarriage.</p>

Before Wallace, J., Barnwell, March, 1889. This was an action by Aaron Gr. Varn against Miles B. Varn and others, commenced in June, 1887.

Before Witherspoon, J., Barnwell, July, 1889. This was an appeal by J. H. Claussen and H. H. Claussen, partners in trade under the firm name of J. C. H. Claussen & Co., plaintiffs, from an order refusing to vacate a judgment obtained against them on a counter-claim by T. 13. Johnson and J. EC C. All, partners in trade under the firm name of T. El. Johnson & Co., defendants.

<p>1. In a prosecution for larceny and burglary, the State is not bound to prove that the offence was committed on the very day alleged in the indictment; any day before bill found is sufficient.</p> <p>2. The denial of a party charged with crime, at the preliminary examination, he not having been sworn, and having made no statement for record, may be proved by parol.</p> <p>3. In saying to the jury that a charge met by the denial of the party charged is not evidence of guilt, but that if the denial was accompanied with a lie, the jury have a right to inquire, “Why did he lie ?” and follow the convictions of their mind — -the judge did not charge upon the facts.</p>

This was a petition by School District No. 14, of Fairfield County, for a writ of mandamus from this court against James H. Rice, State superintendent of education. The opinion states the case.

Before Wallace, J., Aiken, March, 1889. This was an action by the plaintiffs above named against F. H. Stelling and J. J. Bredenberg. Held: as matter of law, that he had no authority or jurisdiction to hear and determine the same.”

Before Pressley, J., Marlboro, February, 1889. Action by the heirs of Elizabeth Beverly against the widow and children of Alexander Beverly, commenced August 8, 1888. The opinion states the case.

<p>1. Is the covenant for further assurances embraced in the general warranty in the deed of conveyance prescribed by our statute ?</p> <p>2. Where land is conveyed to a trustee in trust “for the sole and separate use'1 of a married woman, it may be that the trust will be executed under the operations of the statute of uses and the Constitution of 1868, but it will not be executed where there is the further trust to hold “upon trusts and limitations hereafter to be by him [the trustee j declared,” even though no such further trusts are ever declared. In such case the trustee takes the legal estate, and the married woman no estate at all.</p> <p>3. Where land of a husband is sold by the sheriff during coverture, and the purchaser conveys it to a trustee in fee in trust for the wife of the judgment debtor, there is no such merger of legal estates as will destroy the wife’s inchoate right of dower (which is not an estate); but her right remains unaffected. This case distinguished from Youmans v. Wagener & Co., 30 S. C., 302.</p> <p>4. Where one conveys a tract of land in which a married woman has an inchoate right of dower, to a trustee in trust for such married woman, with the usual covenants of warranty, and the vendor takes a mortgage with general warranty from the trustee to secure the purchase money, which mortgage is afterwards foreclosed under a proceeding to which the married woman, during her husband’s life-time, is a party defendant, without any assertion on her part of her dower right, she is not estopped from afterwards claiming her dower from the purchaser at the foreclosure sale, either by the covenants in the deed and mortgage, or by her possession under the trust deed, or by the decree of foreclosure.</p>

Before Pressley, J., Darlington, March, 1839. This was an action commenced by A. F. Edwards against The Cheraw & Darlington R. R. Company on August 16,1885. Before trial had, plaintiff died, and Elizabeth S. Edwards, his administratrix, was substituted as plaintiff. O. H. Edwards, a witness for plaintiff, testified that he was a son;of A. F. Edwards ; lives at Palmetto station ; is unmarried ; was attending to his father’s farming business and handling the supplies.

<p>Before Wallace, J., Sumter, May, 1889.</p> <p>Appeal by the County of Sumter from a judgment of the Circuit Court in favor of E. Scott Carson. The opinion states the case.</p>

<p>Before Aldrich, J., Laurens, September, 1889.</p> <p>This was an indictment against Jule Williams for violation of contract. The opinion states the case.</p> <p>contended that the statute, under which the defendant was prosecuted, was in violation of article I., sections 1, 2,12, and 20, of the State Constitution, and cited 1 Bl. Com., 186; Utsey v. Hiott, 30 S. C., 360. They further contended that in requiring twenty-six work days every month, the contract exacted Sunday work in February, June, and September, in violation of section 1631 of the General Statutes; and that the failure of the contract to fix the time when the laborer was to be paid was fatal to the contract in the criminal court.</p>

Before Aldrich, J., Richland, April, 1889. Action by Fred. Harmon against the Columbia & Greenville Railroad Company, commenced January 27, 1887. The complaint claimed $215.50 for cattle killed on seven several occasions. The verdict gave to plaintiff $99, and he appealed.

<p>1. A right to discharge water by ditch on a servient tenement may be claimed by express grant, by prescription, or by express or implied reservation in the conveyance of the land over which the right is claimed; but to raise an implied reservation of such an easement in favor of the grantor of the alleged servient tenement, the necessity of it to the dominant tenement retained by the grantor, must be imperious.</p> <p>2. In action by the owner of an upper tract of land to recover damages for the obstruction of a ditch across an adjoining lower tract sold off by plaintiff to defendant, a non-suit was properly ordered, there being no evidence of an express grant, or of an adverse use against others for more than twenty years, or that the ditch, as used before division of the land by the owner, was a necessity to the upper unsold tract, and that its -waters could find vent only through this ditch across the lower lands conveyed away to the defendant.</p>

Before Norton, J., Darlington, June, 1889. This was an action by James M. Seignious against Levi S. Pate and G. H. McKee, assignee. The appeal was from an order refusing a motion for “a receiver of the rents and profits of the mortgaged premises.”

Before Wallace, J., Barnwell, March, 1889. This was a summons to show cause issued by Adams, Frost & Co. against W. T. Richardson, as follows: To W. T. Richardson: Whereas judgment was obtained in the Circuit Court for the County of Barnwell, and State of South Carolina, on the 16th day of November, A. D. 1868, in the above entitled cause against you, the said W. T. Richardson, and execution was duly issued thereon, but the active energy thereof has now expired, and it is…

Before Fraser, J., Chester, March, 1889. This was an action by Sarah Lilly, as administratrix of Green Lilly, deceased, against the Charlotte, Columbia & Augusta Railroad Company, lessee of the Cheraw & Chester Railroad, commenced September 12, 1888, to recover $10,000 as damages for the negligent killing of intestate in February, 1887, by the breaking of a trestle on the leased road, intestate being a brakeman on a train of its cars.

<p>Before Pressley, J., Richland, July, 1889.</p> <p>These were four separate proceedings, instituted by Abigail Swygert against Rachel Goodwin and her son, Ben, Harry Jones, Harry Williams, and Catherine Hinton, under section 1819 of General Statutes. The four cases were heard together. Mrs. Swygert held mortgages of the land in question against these parties, which mortgages gave to the mortgagee a power of sale after condition broken, with the right to become the purchaser, and contained a stipulation that the purchaser at such sale should have possession on the execution of a conveyance to him or her, and any holding of the premises thereafter by the mortgagor should be as tenant of the purchaser at a specified rental, with the right to obtain possession in cases of landlord and tenant determination of a lease; said lease to terminate upon one month’s notice to quit, and without such notice if one month’s rent be due and unpaid. Mrs. Swygert on default sold under the power and herself became the purchaser and took deeds of conveyance.</p>

<p>Before Hudson,'J., York, November, 1888.</p> <p>Action by Louisa C. Massey against J. F. Wallace, executor of B. F. Briggs, deceased, commenced September 21,1887. The opinion states the case.</p>

Before Pressley, J., Fairfield, October, 1889. Action by Thomas H. Ketchin against Philip Landecker and Adolph Landecker, as agents, principals unknown, commenced October 11, 1889, and warrant of attachment issued and served same day. The opinion states the case.

<p>Before Norton, J., Barnwell, November, 1888.</p> <p>Action by Perry Rountree, Eaves Rountree, Whitmore Rountree, Richard Rountree, and M. L. Anderson against Julia Lane and William D. Lane, commenced March 6, 1888. The Circuit decree was as follows:</p> <p>Upon the issue as to the agreement to adopt the divisions made in the life-time of the parents, there is an irreconcilable contradiction in the testimony. I concur with the master. The witnesses may be equally credible, but the circumstances corroborate the master’s view. The deed by W. D. Lane and his brother and sisters to Blanton is relied on as an estoppel of Julia Lane to deny that the one hundred and fifty acre tract had not been set off to John R. Lane in the alleged partition, and that failing in this ' material part, the whole partition must be considered unproven,' and taken in connection with the deed to Mrs. Anderson and Mrs. Rountree by John R. Lane, it would estop her (she having renounced dower on the former) if she and her husband'had received their portion of the consideration paid by Blanton, and had known of the latter deed. But here, also, is a conflict of testimony, and I again concur with the master.</p> <p>The testimony of W. D. Lane, that he received no part of the money consideration expressed in the Blanton deed, is important and competent; and being believed, in connection with the other circumstances in the case, indicates that the whole of that consideration was paid to John R. Lane, and that the consideration which moved defendants was their moral obligation to perfect titles to that which had been set off to John R. Lane in the partition, so that he could sell it. This is an equity case, and if the equity be established, it must prevail over the legal estate; and it is as binding on the share deeded to plaintiffs as on the shares originally held by them, for they knew what title defendants had when they accepted the deed.</p> <p>It is ordered and adjudged, that the exceptions to the master’s report be and hereby are overruled, and that the complaint be dismissed.</p> <p>The deed from David Burckhalter conveyed a fee conditional to Farlina Lane. He intended to convey the fee, and used apt words both in the premises and in the habendum to do so. In the premises, he does use executors, administrators, and assigns redundantly, as shown by the habendum. The office of the habendum is properly to determine what estate is granted by the deed, though this may be, and sometimes is, performed in the premises; in which case the habendum may lessen, enlarge, explain, or qualify, but not totally contradict or be repugnant to, the estate granted in the premises. 2 Bl. Com., *298; Stoclcton v. Martin, 2 Bay, 471. Where the limitation to heirs of the body is expressed in terms which import an intention to create in them an estate in fee, a different estate from that which they would take if the rule in Shelley’s case should be applied, the rule would not apply. Mclver, A. J., 23 S. 0., 56. The redundant words, executors, administrators, and assigns, in the premises, are not words of inheritance, and could not create a fee in the heirs of the body of Farlina Lane, if they were determined to have been used as words of purchase; and such construction would consequently confine such heirs to a life estate, and on the death of the survivor of the grantees, the 386 acre tract would revert to David Burckhalter or his heirs. The deed of Farlina Lane to Julia Lane, therefore, gave the latter good title to the land in her possession, i. e., the 186 acres; and upon this ground the result reached by the master might be affirmed.</p>

<p>1. Where brother and sister live together in a house belonging to the latter of a rental value insufficient for her maintenance, and the brother manages the household and supports the sister, he is the head of a family, to whom as such the law allows a chattel exemption.</p> <p>2. A partner may claim a chattel exemption against his individual creditors out of his interest in the partnership assets.</p>

Before Hudson, J., Union, March, 1889. Action by Sarah J. Archer and others, children of Albert G. Means, against J. G. Long, sheriff. The judge charged the jury as follows: Gentlemen or the Jury: You have listened patiently; you have manifested a very commendable spirit in doing so through this long and tedious and interesting trial.

<p>Where the complaint sets out in its caption the names of the plaintiffs as copartners, and in the body of the complaint it is alleged that “said plaintiffs” were and still are partners, giving the firm name, but not repeating the names of the individual members, the copartnership is sufficiently alleged.</p>

Before Fraser, J., Fairfield, February, 1889. This is a second appeal in the case reported in 29 S. C., 278. After the action was commenced, the defendant made an assignment of all his property for the benefit of his creditors. The Circuit decree was as follows : A statement sufficient to explain what has heretofore been adjudicated will be found in the opinion of the Supreme Court.

<p>The complaint alleged that over 34 years ago plaintiff had conveyed a tract of land to one A in exchange for two smaller tracts of land belonging to A’s wife, and possession was accordingly taken respectively, and quietly and uninterruptedly held ever since; that A had mortgaged the land so conveyed to him ; but that recently, and since A’s death, it had been discovered that the conveyance to plaintiff of the two smaller tracts was defectively executed in that there was no proper relinquishment of inheritance, and the widow of A had commenced an action for the recovery of these two smaller tracts. The relief prayed was that the mortgagee be enjoined from selling the larger tract and that the contract and deeds of exchange be rescinded. Held, that the complaint did not state facts sufficient to constitute a cause of action, either for rescission of contract or for damages for breach of warranty. Mk. Justice McGowan, dissenting.</p>

<p>1. No facts can be considered on appeal unless they appear in the record submitted to this court, or unless conceded by opposing counsel.</p> <p>2. In a trial for murder, the Circuit Judge erred in instructing the jury that defendant “was guilty beyond a doubt, if he knew right from wrong and could think clearly and yet did the killing, although there was no motive for it that you can see,” it not appearing in the “Case” that insanity was the only defence relied on.</p>

Before Eraser, J., York, April, 1889. This was an action by Elias A. B. McCarter and the other persons named in the contract below as “parties of the second part” against L. K. Armstrong, commenced September 27,1887.

Before Wallace, J., Aiken, March, 1889. This appeal was from the following decree: In the year 1873, Thomas H. Meyer made notes to Mrs. M. L. Nail, Mrs. E. M. Hull, Mrs. F. C. McWhorter, and to C. C. Meyer, the sum of which, when aggregated, amounted to nearly four thousand dollars; separate notes given to each for the sum due to each.

<p>Under judgment obtained in 1877 and revived in 1885, the lands of the judgment debtor were levied on and sold in 1889. Held, that the lien of this judgment, after its revival, dated back to its original entry, under section 310 of the Code, as amended in 1873 (15 Stat., 498); land, therefore,- the proceeds of this sale wore applicable to this judgment in priority to a junior judgment entered in 1880.</p>

Before Hudson, J., Spartanburg, March, 1889. This was an action by Robert A. Robison and William Fowler, trading under the firm name of Fowler & Robison, against Harriet Allen, commenced June 26, 1888.

<p>Before Hudson, J., Spartanburg, March, 1889.</p> <p>This was an action by C. P. Sanders, as executor of Alie Lipscomb, against S, M. Bagwell, administrator of W. H. Bagwell, begun in April, 1888. The opinion states the case.</p>

Before Hudson, J., Spartanburg, April, 1889. This was an action by M. C, Lipscomb against H. S. Lipscomb and B. F. Bonner, commenced in May, 1888. The charge of the judge to the jury was as follows: The plaintiff brings this action against the defendants upon a certain promissory note, which is set out in the complaint. It is admitted in the answer that the promissory note, as set out in the complaint, was executed and was delivered to the plaintiff.

<p>1. While a Circuit Judge at a term succeeding that at which a judgment was obtained, may certify that such judgment was based upon the purchase money of a certain tract of land, &e., yet it is doubtful whether this court can review a refusal to so certify whore the refusal is based solely upon insufficiency of testimony to sustain the fact.</p> <p>2. The facts agreed upon not showing that a bond was given for the purchase money of a certain tract of land, and for no other consideration, the Circuit Judge did not err in refusing so to certify on a judgment based upon said bond.</p>

<p>1. When a motion for newr trial on the ground of after discovered evidence is refused on a legal ground, the order of refusal is appealable.</p> <p>2. A -written acknowledgment by A that B owns one-half interest in the notes, &c., of certain firms, “any part thereof collected and used by me to bear interest from date of collection,” does not constitute A a technical trustee, and so prevent the currency of the statute of limitations in A’s favor as to moneys collected on such notes, &c.</p> <p>3. Where an administrator puts certain notes payable to a firm of which his intestate was a member on his inventory as a part of the individual estate of his intestate, and files such inventory in the probate judge’s office, it is a disavowal of any trust which affected intestate, and from that date the statute of limitations began to run.</p> <p>4. The survivor of a firm is entitled to the possession of the choses in action and assets of the firm. Failing to demand them from the administrator of the deceased partner, his action will be barred at the expiration of the statutory period.</p> <p>5. The statute having commenced to run against the surviving party to a written paper, having knowledge of its terms and of his rights thereunder, his death does not arrest the currency of the statute, even though his administrator was ignorant of such wu-itten paper.</p> <p>6. A new trial on the ground of after discovered evidence to prove á claim which is barred by the statute of limitations, was properly refused.</p>

<p>Before Aldrich-, J., Laurens, September, 1889.</p> <p>The opinion states the case.</p>

Before Wallace, J., Spartanburg, October, 1888. Action for recovery of real property, brought by Charity Smith on June 13, 1887. The opinion states the case. The Circuit decree was as follows: It appears that Mary Linder died in the year 1854, leaving a real and personal estate, and leaving surviving her her children, ten in number, and two grandchildren of a predeceased daughter. Her husband had died before her. All of the children were of full age at the time of her death.

Before Fraser, J., Spartanburg, August, 1889. This was an appeal from an order malting absolute a rule on John M. Nieholls, the sheriff of Spartanburg County, in the case of J. C. King against Ann McCarley. The rule to show cause was issued August 3, 1889. The opinion states the case.

Before Pressley, Edgefield, August, 1889. Action by Emma W. Martin against Anna W. Seigler for par- ' tition. The Brief consists of will, decree, and grounds of appeal. The decree, after quoting the clause of the will, proceeds as follows : The plaintiff is the widow of the testator, Robert Price, and the defendant is the daughter. Since the death of Robert Price, his widow has intermarried with Harry D. Martin. The defendant, Anna M., has intermarried with J. D. Seigler.

<p>Before Fraser, J., Spartanburg, August, 1889.</p> <p>Action by Fazina Henderson and others against Margaret L. Trimmier, administratrix c. t. a., commenced April 26, 1887.</p> <p>The Circuit,decree stated the Cooley judgment, the mortgage, and the Mathis judgment, and then found as follows:</p> <p>Execution was issued thereon p. e., on the Mathis judgment] and lodged with the sheriff of Spartanburg County on December 6, 1880, and a levy was made thereunder on December 7, 1880, but the land was not sold at that time, the judgment and execution having been purchased by F. M. Trimmier, and both properly assigned to him, and left open for his benefit. Thereafter, on salesday in April, 1887, F. M. Trimmier caused the said tract of land to be sold by L. M. Gentry, the succeeding sheriff, and he received all of the proceeds of the sale, after deducting the sheriff’s, costs. At the time of the sale under this judgment and execution, there was still a balance due on the Cooley judgment, and the execution thereon had been returned unsatisfied to the clerk’s office. This execution had been taken out thereafter by Cooley’s attorneys for renewal, and a memorandum to that effect left in the record. These facts are either admitted or proven beyond reasonable question.</p> <p>The sole questions of any weight that were made are, whether the sale made under the execution was a valid sale, being made after return day; and whether such sale would divest the lien of the mortgage. I think both these questions must be answered affirmatively. Mr. Trimmier, nor his administratrix, can allege anything against the legality of a sale directed by himself, in the bidding of which he participated and the proceeds of which he received; and the sale being for the benefit of the older judgmenc lieu, the title under such sale is necessarily sustained by such older lien; and the Cooley judgment being older than the mortgage, it necessarily gave a good title against the mortgage.</p> <p>It is therefore ordered and adjudged, that M. L. Trimmier, as administratrix with the will annexed of F. M. Trimmier, deceased, be and she is hereby perpetually enjoined and restrained from enforcing or attempting to enforce a sale of said real estate under the mortgage described and set forth in the pleadings herein; and that she do pay the costs and disbursements of this action, to be taxed by the clerk of this court.</p> <p>Defendant appealed.</p> <p>The sheriff’s sale was void, because there was at the time no valid levy and no execution of active energy. Code, § 311; 2 Bay, 524. Trimmier is not estopped by having been the judgment creditor at that sale. 2 Bail., 418 ; 26 S. C., 285. The Cooley judgment, obtained in 1869, should be presumed paid from lapse of time and other circumstances. Rich. JSq. Cas., 283; 4 Rich. Eq., 16; 10 Id., 301; 12 Id., 337; 2 S. C., 496. It was understood by all parties at the sheriff’s sale, that the sale was made subject to the mortgage. By authorizing a sale under a junior judgment, Trimmier was not estopped from afterwards foreclosing his mortgage on this land. 4 McCord, 336 ; 17 S. 0., 501.</p>

Before Pressley, J., Fairfield, September, 1889. Action by E. W. Ollever and C. K. Morrison, as partners under the firm name of Ollever & Morrison, against Mary A. Duval, commenced before a trial justice on June 26, 1889. From the judgment of the Circuit Court in favor of defendant, plaintiffs .appealed upon twelve grounds, which W'ere properly condensed by appellants’ counsel into these three questions : 1.

<p>Before Kershaw, J., Hampton, November, 1889.</p> <p>Action of claim and delivery by Ellis, Young & Co. against J. A. Mason, commenced in August, 1888. The opinion states the case.</p>

Before Hudson, J., Greenville, June, 1889. Action by Charles M. Sullivan against Joseph P. Latimer and John H. Latimer, executors of Hewlett Sullivan, and in their own right, and John D. Sullivan, commenced October 6, 1887. The opinion sufficiently states the case.

<p>Before Witherspoon, J., Greenville, November, 1888.</p> <p>Action by Thomas Steen against H. C. Mark. The opinion states the case.</p>

Before Hudson, J., Abbeville, June, 1889. Preston B. Calhoun was brought to trial before the town council of McCormick and a jury in January, 1889, for violating an ordinance of the town prohibiting the sale of liquors. He objected to the array of jurors because they were not all citizens of the town. His objection was overruled and he was convicted and sentenced. Two of the jurors did not reside in the town, but in the vicinity.

<p>1. An infant is not bound by a proceeding in the Probate Court to which he has not been made a party in accordance with the formalities required by law.</p> <p>2. Where a mortgagor conveys the mortgaged land to the widow and son of the mortgagee, and receives in consideration therefor his note and mortgage, the Probate Court cannot sell the land in aid of assets of mortgagee’s estate, nor for partition between widow and son.</p> <p>3. In such case, the widow and son hold the land under a resulting trust for the administrator, and the son, as distributee, has an action against the administrator for account, but not against the person in possession for an interest in the land or for rents and profits.</p>

Before Hudson, J.', Spartanburg, April, 1889. This was an action by B. B. Chapman against Mary Younger, commenced February 8, 1888. The appeal was from the following decree: After hearing the preceding evidence and argument of counsel, herein, I am satisfied that the action cannot be sustained. In the first place, the plaintiff does not sue as executor, and as mortgage debtor he has no right to the relief he seeks.

Before Witherspoon, J., Charleston, March, 1889. Action by Mary Donahue, as administratrix of John H. Donahue, deceased, against The Enterprise Railroad Company, a street car line of the city of Charleston, commenced in August, 1888. The opinion states the case. cited Code, §§ 163, 165 ; 18 S. G, 471; 16 Id., 392; 20 Id., 463 : Wood M. ‡ S., § 414; Black Pr. cf PL, § 21; 77 Am. Bee., 212 ; 117 Ind., 265 ; 38 Am. cf Eng.

Before Witherspoon, J., Charleston, March, 1889. The order of the Circuit Judge, omitting its statement, was as follows: It is stated in Freeman on Judgments, sections 135 and 142, that when the court has jurisdiction over the subject matter and the person, no error in the exercise of the jurisdiction can make the judgment void.

Before Fraser, J., Greenville, October, 1889. This was an action by the City Building and Loan Association of Greenville, S. C., a body corporate, against Rebecca G. Jones, commenced in August, 1889. Held: and erred in holding, that the said Mollie J. Kemp, a married woman, could borrow money not as to her separate estate or with reference thereto, and could give a valid mortgage upon her land, her separate estate, for the repayment thereof.

<p>1. A married woman having borrowed money on her note and mortgage under her representation that the money was wanted for the purpose of paying off a previous mortgage on her land, the consideration of which was not known to the lender, she is estopped from afterwards denying that this loan was made in-reference to her separate estate.</p> <p>2. Is a decree, which declares plaintiff entitled to a foreclosure of his mortgage and a sale of the premises, and to judgment therefor, so soon as the master ascertains and reports the amount due under a reference therein ordered, an intermediate decree which may be reviewed on appeal from the final judgment?</p>

Before Hudson, J., Greenville, June, 1889. These were four actions heard together. The following is a copy of the complaint in the case of J. W. Fletcher, as trustee: “The plaintiff complains and alleges,— “1.

<p>1. Where a sheriff, after paying the taxes for w'hich he sold the land under a tax execution, holds in his hands a surplus which the law requires him to pay over to the defaulting taxpayer, such person has an adequate legal remedy by action against the sheriff to recover this surplus money, and therefore mandamus will not lie.</p> <p>2. Mandamus is not dcmandable as of right, but the grant of it rests to some extent in discretion, and will not be granted to require a sheriff to pay to relator a sum of money which is also claimed by other parties not before the court.</p>

Before Wallace, J., Georgetown, May, 1889. Action by May D. Gordon against 'William M. Hazzard et al., commenced in May, 1888. The opinion states the case, but it may be added that on December 23, 1887, W. M. Hazzard sent to P. C. Trenholm $336.24 to be credited on Mrs. Gordon’s note and also on the bond and mortgage held by her as collateral.

Before Fraser, J., Laurens, July, 1889. Action by G. W. Shell, as administrator de bonis non of James H. Irby, against James E. Boyd, H. Wilson Boyd, and the distributees of Patsey Boyd, deceased, to set aside a deed of conveyance made by William Boyd, commenced October 25,1886. William Boyd died a short time before this action was commenced. The deed of A. M. and H. W. Boyd to Patsey Boyd was in the usual form with warranty.

<p>Plaintiff, after having boon in defendants’ employment for some time, received from defendants the following letter: “We have noticed you past month whilst under our eyes, and have been pleased with your work. No one who shows an interest in our business will go unrewarded. Your salary from Nov. 1st will be per month at rate of $500 a year.’’ Held, that this letter made an employment by the month and not by the year, and in action by plaintiff to recover the salary for the remainder of the unexpired year, after the month in which he was dismissed without just cause, he was properly non-suited.</p>

Before Hudson, J., Orangeburg, October, 1889. This was a rule issued against A. M. Salley, sheriff, on the application of J. P. Lorenz, debtor, to require the sheriff to pay to him certain moneys in the sheriff’s hands. The sheriff made return that he had declined to pay this money over because it was also claimed by certain judgment creditors of Lorenz. The grounds of these claims and the ruling of the Circuit Judge are stated in the opinion.

Before Hudson, J., Spartanburg, April, 1889. Action by S. Gowan, T. V. Gowan, and W. E. Gowan against L. M. Gentry, sheriff, and others, commenced in July, 1888. The opinion states the case. The judgment formula and executions directed to be inserted were as follows : JUDGMENT. November 12th, 1885.

<p>1. An acknowledgment by defendant, properly dated, endorsed on a summons to renew' a judgment that the amount “stated to be due on said judgment is true and correct,” w'hon filed with the record of the judgment, would seem to be a sufficient “note of some written acknowledgment with the date of such acknowledgment filed with the record of such judgment,” within the meaning of section 1831 of General Statutes, to continue the lien of the judgment for twenty years thereafter.</p> <p>2. Where summons to revive a judgment is served within the twenty years of its lien, and the defendant at the same time consents to the revival, and acknowledges the debt to be due, the presumption of payment then ceases to run, and under an order of revival in such proceeding, the lien is continued for a further period of twenty years. The proceeds of a sale of defendant’s land made by the sheriff under a junior judgment, more than twenty years after the original entry of this senior judgment, but within a year after its revival, were primarily applicable to such senior judgment.</p> <p>3. This case distinguished from Henry v. Henry, 31 S. C., 1.</p>

Before Aldrich, J., Richland, April, 1889. Action by C..E. Leitner against Caleb Metz and others, commenced in May, 1888.

Before Norton, J., Greenville, April, 1889. Action by Fannie A. Goodgion against P. D. Gilreath, sheriff, commenced in al trial justice’s court on May 23, 1888. The appeal came to this court from the following judgment rendered by the Circuit Judge: . The plaintiff is, and was at the times hereinafter mentioned, a married woman. She was sued in trial justice’s court as a partner in a firm styled Goodgion' & Latimers.

Before Kershaw, J., Spartanburg, October, 1888. The case is thus fully stated in the separate and dissenting opinion of Mr. Justice McGowan: At the October term of the court (1887) for Spartanburg County, the defendants, David N. Senn and Helena Boland, were tried and convicted for the murder of M. Ozella Senn, wife of the said David N. There is no copy of the indictment in the “Brief,” nor “Case” stated — only portions of the evidence being printed— and therefore it is…

Before Norton, J., Williamsburg, February, 1889. This was an action by Ella F. Willoughby against The Northeastern Railroad Company, commenced September 22, 1887. The complaint, with the exception of the last three causes of. action, which were stricken out on demurrer, is as follows: The plaintiff above named, by Johnson & Johnson, R. Dozier, and Bolton O’Neall Townsend, her attorneys, complaining of the defendant above named, alleges : First.

Before Norton, J., Hampton, October, 1888. Action of claim and delivery by J. C. Johnston against W. O. Holmes and J. A. Youmans (constable), for the recovery of certain personal property which had been distrained by defendants, in behalf of Mrs. S. J. Holmes, for rent alleged to be due to Mrs. Holmes by plaintiff.

Before Hudson, J., Orangeburg, September, 1889. Petitions for chattel exemptions under the homestead laws, filed by Jacob Karish and by W. S. Pearlstein, defendants in the action of J. Regenstein & Co. against Pearlstein & Karish. The opinion states the case.

<p>Costs are entirely a creature of statute, and therefore if a witness bound over for defendant in a case of arson is entitled by law to witness fees when certified by the Circuit Judge to have been a material* witness, he may not claim such fees upon a certificate of attendance only signed by the clerk of court and “approved” and signed by the Circuit Judge, no certificate of materiality being appended.</p>

Before Pressley, J., Fairfield, September, 1889. Action by Thomas H. Ketchin against T. Gr. and Robert A. Patrick for the recovery of 121 acres of land.

Before Fraser, J., Fairfield, February, 1889. Action by Mary A. Chambers against Mary A. Bookman and others. The referee, to whom it was referred to take the testimony and report the same, together with the amounts due, made no findings of fact. The Circuit decree was as follows: The referee has made a report of the testimony taken by him and the amount and relative priorities of all the claims.

Before Fraser, J., Laurens, July, 1889. Action by G. W. Shell, as administrator of L. L. Young, deceased, against Arthur G. Young and others. The following facts are agreed upon by the counsel as sufficient for the purposes of this appeal: L. L. Young died intestate in 1885, leaving a small personal estate, and seized of eleven hundred and fifty acres of land, more or less, lying in Laurens County, and survived by his five children, the defendants in this action.

Before Pressley, J., Charleston, July, 1889. This was a controversy without action between Margaret B. Wheat, Paragon B. & L. Association, B. F. Simmons, and H. M. Harmon, executrix, plaintiffs, and G. W. Dingle, as administrator of estate of G. J. Luhn, defendant, submitted June 3, 1889.

<p>1. Where an action is instituted for breach of warranty and for subrogation, and the right to subrogation is asserted in the complaint and argued before the Circuit Judge, the failure on the part of the Circuit Judge to consider that question would be error, if this right existed independently of the right to recover on the covenant of warranty; otherwise such failure was not error, after it had been determined that plaintiff could not recover on the covenant of warranty.</p> <p>2. A, the owner of a house and lot on which rested the lien of a judgment, conveyed to B with a covenant of general warranty, B agreeing to pay this judgment and reserving a sufficient amount for the purpose. B made a voluntary conveyance to C without warranty, C to D without warranty, and D to E with warranty, the judgment remaining unpaid, of all which D had notice. This lot being levied upon under this judgment and about to be sold, D paid the judgment off, and then sued upon the breach of the warranty contained in A’s deed to B, and sought to be subrogated to the rights of the judgment creditor to demand payment from the estate of A, who was dead. Held, that before establishing a right to recover for the breach of warranty, D, claiming under B, had no right to demand from A a payment for which A had put money into B’s hands; the right of subrogation, if any, was in A, and his junior judgment creditors. Nor is this right affected by a decree in favor of this judgment creditor against A’s estate, ascertaining a balance of personal assets in hand sufficient to pay this debt. What right of subrogation D would have after establishing his right to recover under the breach of warranty, not considered.</p> <p>3. Neither B, nor his alienees, claiming under him, could recover damages of A for a breach of the warranty against encumbrances, when A had put into B’s hands the funds with which to discharge the only encumbrance that was outstanding.</p> <p>4. Where the action is for breach of warranty and for subrogation, but the latter question is never properly reached, the case would seem to be a purely legal action in which findings of fact in the court below were conclusive.</p> <p>5. A purchaser is chargeable with constructive notice of an unsatisfied judgment against a former owner of the land, having a lien thereon, and therefore also of an agreement by the first vendee to pay this judgment off.</p> <p>6. A finding of fact in a former action to which this plaintiff was not a party, and upon a question not then material, is not binding in this case.</p> <p>7. Other grounds in support of the Circuit decree not considered, as they were not raised or decided on Circuit, nor notice given that they would be relied on here.</p>

Before Fraser, J., Spartanburg, July, 1889. This was an action by Stephen Putney & Co. and others against Abraham Friesleben and others, commenced February 6, 1887. The opinion states the ease.

Before Hudson, J., Laurens, February, 1889. Action for foreclosure by Fannie A. Goodgion against Hannah Vaughn, commenced January 2, 1888. The note and mortgage bore date March 22, 1887, and were given by Mrs. Vaughn, a married woman, for money borrowed to purchase family supplies and to pay off three older mortgages, one given in 1884, one in 1887, and the date of the third one not stated.

Before Hudson, J., Abbeville, June, 1889. At the hearing of this appeal the Chief Justice, being related to plaintiff, did not sit. The plaintiff complaining says : I. That she is the wife of Robert C. Gillam, and has been for a period of time commencing long anterior to the present time, and prior to the year eighteen hundred and eighty. II.

Before Hudson, J., Spartanburg, April, 1889. Action by Baxter H. Moore against Margaret Trimmier, administratrix of F. M. Trimmier, and others. The Circuit decree was as follows: This cause was heard upon Circuit in the year 1885, and on the 17th of December of that year the Circuit Judge, W. H Wallace, rendered a judgment.

Before Fraser, J., Spartanburg, August, 1889. Action by H. L. Spears and G. G. Pridmore against James Long and L. M. Gentry, sheriff, commenced February, 1888. The decree of the Circuit Judge was as follows: This cause is before me on a report of a referee and exceptions.

Before Hudson, J., Lancaster, October, 1888. Action by Wyatt H. Patterson and others, heirs at law of Wyatt H. Patterson, deceased, against the heirs of Geo. W. Crenshaw, for the recovery of real property, commenced in August, 1886. Plaintiffs sought to prove title by certain deeds to their ancestor. There was evidence giving the boundaries and acreage of two of the tracts of land which formed a part of the whole body of land sued for.

Before Hudson, J., York, November, 1888. This action was commenced in June, 1885. The judge charged the jury as follows: The plaintiffs, the • First National Bank of Rock Island, 111., bring this action against the defendants, John G. Anderson and Iredell Jones, as copartners, trading under the name of John G. . Anderson & Co., to recover the amount due upon a certain note.

<p>Before Witherspoon, J., Charleston, March, 1889.</p> <p>Action by John B. Walpole, Edward B. Bryan, and Francis Y. Legare, commissioners of Newtown Cut, against The City Council of Charleston and The County Commissioners of Charleston County, commenced June 8, 1888. The complaint was as follows:</p> <p>Plaintiffs above named, complaining of the above named defendants in the above entitled action, allege :</p> <p>1st. That the defendant, the City Council of Charleston, is a municipal corporation, duly organized under the laws of the State of South Carolina, with power and liability to sue and be sued, under and by its said name. And that the defendant, the County Commissioners of Charleston County are a board representing the County of Charleston, with the powers, duties, and liabilities belonging to such boards under the constitution and laws of the State of South Carolina.</p> <p>2nd. That from the year 1738, “Newtown Cut,” which connects the James Island Creek and waters of the Ashley River with the Stono River, near Dill’s Bluff, was opened by commissioners especially appointed by the legislature of South Carolina, who were reappointed from time to time, and by act of the general assembly, passed in the year 1846, it was enacted that the commissioners of Newtown Cut, in St. Andrew’s Parish, Haul-over and Watt’s Cuts, in the parish of St. John’s, Colleton, shall each retain separate jurisdiction as heretofore, for the imposing and collecting of fines incurred by defaulters from public duty on each of said cuts, and all fines collected for default of such duty on each cut, shall be for the separate use and benefit of each of 'said cuts, and be retained in the hands of the commissioners of such cut, until appropriated for its use.</p> <p>3rd. - That at the close of the late war, Paul T. Gervais was the sole surviving commissioner of Newtown Cut, and he departed this life on or about the second day of February, 1874.</p> <p>4th. That by the act of the general assembly, approved the 23rd day of December, 1885, John B. Walpole, Edward B. Bryan, and Francis Y. Legare, sr., plaintiffs above named, were appointed commissioners of Newtown Cut, and were vested with the title to all the property and funds which were held by or belonged to the former commissioners, together with every right of action necessary to recover and protect the same, and also all rights, powers, and privileges which were of or belonged to the former commissioners of Newtown Cut, by force of any law, statute, usage, or custom.</p> <p>5th. That on or about the first day of January, 1866, the defendant, the city council of Charleston, issued to the commissioners of Newtown Cut certain certificates of stock of the city of Charleston, to wit:</p> <p>Certificate number 1824, for the sum of $610 00 of the issue of 1857.</p> <p>Certificate number 886, for the sum of 3.90 00 of the issue of 1857.</p> <p>Certificate number 995, for the sum of 240 00</p> <p>and thereby became and acknowledged itself to be indebted to said commissioners of Newtown Cut in the said several sums amounting to twelve hundred and forty dollars. That all of said stock drew interest at the rate of 6 per cent, per annum, and was registered in the name of the commissioners of Newtown Cut.</p> <p>6th. Upon information and belief, plaintiffs allege that between the first day of January, 1866, and the fourth day of September, 1873, some interest due upon said city stock was paid unto Paul T. Gervais, then treasurer of the commissioners of Newtown Cut. That on said 4th day of September, 1873, the sum of $37.20 was paid unto the said Paul T. Gervais, treasurer of the commissioners of Newtown Cut, since which date no further payment of interest upon said stock has been made, nor of any portion of the. principal sum of said indebtedness either to plaintiffs or their predecessors in ofiice, or to any person or persons, corporation or individual entitled to receive the same.</p> <p>7th. That on the 25th day of July, 1882, the said city council of Charleston issued in place of the old certificates above mentioned, which had been lost, new certificates in the name of the commissioners of Newtown Cut. Plaintiffs are informed that the last named certificates were issued upon the application of the county commissioners of Charleston County, who claimed to be the legal successors of the commissioners of Newtown Cut, and, as such, entitled to said stock, and the said city council of Charleston, thereafter, to wit, on or about the 26th day of July, 1882, unlawfully and without authority from the commissioners of Newtown Cut, or of any person or persons entitled to act for them, cancelled said city stock so registered in the name of the commissioners of Newtown Cut, and paid over to said county commissioners of Charleston County the sum of $582.80, which it claimed to be the total amount of arrearage of interest due upon said city stock, and at the same time issued to the said county commissioners certain bonds and a certificate of stock in lieu and stead of the city stock so cancelled, to wit:</p> <p>Bond,, number 1282, issued Dec. 23d, 1878, due 1909, interest 4 per cent., $1,000 00</p> <p>Bond, number 919, issued Dec- 23d, 1879, due 1909, interest 4 per cent., 100 00</p> <p>Bond, number 918, issued Dec. 23d, 1878, due 1909, interest 4 per cent., . • 100 00</p> <p>And one certificate of city stock for . 40 00</p> <p>Wherefore plaintiffs pray judgment that the cancellation of said city stock for $1,240.00 by the said city council be decreed to have been without authority and void; and the issuing of said bonds and stock, and the payment of said sum of $582.80, to the county commissioners of Charleston County also be decreed to have been without authority, and that the said county commissioners had no authority to receive said bonds and stock in lieu of such cancelled stock, nor said sum of $582.80; that said city council of Charleston may be ordered to account to plaintiffs for the said sum of twelve hundred and forty dollars, and all arrearages of interest due thereon, and for such other and further relief as may be necessary and proper.</p> <p>The issues raised, the order of the judge, and plaintiffs’ exceptions, are stated in the opinion.</p>

Before Norton, J., Marlboro, June, 1889. The case is fully stated by Mr. Justice McGowan in bis dissenting opinion as follows: “This is an appeal from the decision of the county commissioners of Marlboro, refusing to audit as a county claim an account of the sheriff of the said county (B. A. Rogers) for costs, which he claimed the county was liable for to him.

Before Fraser; J., Abbeville, January, 1889. This was an action by Jane L. Gordon, as administratrix of R. T. Gordon, deceased, and in her own right, against Mary W. Gordon and others, commenced May 30, 1888. The action required the construction of the 7th and 8th clauses of the will of R. C. Gordon, which was as follows : In the name of God, amen !!!