Volume 33 — South Carolina Reports

<p>1. If the point, that an action by taxpayers to restrain a municipal corporation from issuing bonds can be maintained only in the name of the State on the relation of the complainants, is not waived by failing to urge such objection by answer or demurrer, the court will add the necessary formula at any stage of the case, as the State never refuses the use of its name in such cases.</p> <p>2. Individual taxpayers of a municipal corporation may maintain an action in the name of the State, on their relation, to restrain unauthorized acts by the municipal authorities, but they may also, without alleging special damages to themselves individually, sue in their own names in equity, to enjoin the contemplated illegal action.</p> <p>3. After a city, under special acts of the legislature, had incurred a bonded 'debt of §70,600, for aiding railroad construction, a new charter was granted which limited its power “to borrow money for the public use of the corporation by issuing bonds for an amount not exceeding §] 00,000,” and the city council were directed “never in any form to make the city liable for exceeding that amount in the aggregate.” Held, that this power to borrow money and issue bonds was exclusive of the pre-existing indebtedness.</p> <p>4. Where a city has power under its charter to purchase and hold property, real and personal, and to establish such ordinances respecting the streets and police department as shall appear necessary for the security and convenience of said city and for preserving life and property therein, and for securing the peace and good government of the same, the city has the express power to purchase, and implied power to operate, an electric light plant, so far as it is used for lighting the streets and public buildings of the city; but so far as it is used for furnishing light to private residences and places of business at a compensation, it is not for the public use of the corporation, and therefore its purchase and maintenance is to that extent ultra vires.</p>

<p>Under the constitutional provision authorizing the establishment of “such municipal and other inferior courts as may be deemed necessary,” the general assembly had the right to establish the City Court of Charleston with jurisdiction over causes arising under the ordinances of the city, involving an amount not exceeding §10J, the recovery of a larger amount being by the constitution vested exclusively in the Court of Common Pleas. A statute which conferred upon such city court jurisdiction over causes arising under the city ordinances, must therefore be construed, in the light of the constitution, to embrace only such causes as involved an amount not exceeding SilOO.</p>

Before PIudsoN, J., Orangeburg, September, 1889. This was an action by J. PI. Amaker against Frances New and Pickens New, to recover 158 acres of land, commenced March 18, 1887. The case is thus fully stated in the dissenting opinion of the Chief Justice: This is a contest over a tract of land of 158J acres, situate in Orangeburg County. Both parties claim from a common source, and the question below was, which had the better title ?

Before Witherspoon, J., York, April, 1888. This was an indictment against John May, jr., for selling liquor without a license in April, 1887. During the cross-examination of John Robinson, he testified as follows: ‘‘Have been sworn on this same series of cases before. Said on former occasion that I was offered $50 — that I was told that Mr. May would be fined $50, and that I would get one-half.

<p>1. In suit against a stockholder for his unpaid subscription of stock, he should be allowed credit for his subsequent advances to the corporation, even though not credited on his subscription account on the books of the company.</p> <p>2. After the organization of a tramway corporation and the full payment of the minimum amount of stock as provided by the charter, a stockholder, under a resolution to extend the road, and for that purpose, signed an agreement to increase his stock subscription, payable partly in lumber and partly in money. Ho accordingly advanced more than the amount payable in money, and also made other advances; after which the directors abandoned the proposed extension, released such stockholder from his agreement, and recognized the advances so made as a debt: and this debt was subsequently reduced to judgment. Held, that the action of the board of directors was legal, and that a receiver of the corporation was not entitled to recover any part of the subscription so conditionally made after the organization of the company, and after the debts of the company had been contracted.</p> <p>3. Where one subscribes stock payable in lumber to a corporation, already fully organized, it seems that no judgment for money should be had against such subscriber — at least until it is shown that he had failed to comply with his contract, according to its terms, after reasonable opportunity so to do.</p>

Before Witherspoon, J., Berkeley, February, 1889. This was an appeal by Benjamin C. Pressley to the Circuit Court, from a sentence of the Tow'n Council of Summerville, imposing upon him a fine for violating a town ordinance which prohibited the cultivation of a garden of more than one-eighth of an acre.

Before Hudson, J., Charleston, November, 1889. This was an action by Abram Clement and others against Molly Riley, administratrix of S. B. W. Riley, deceased, Isaac Snipe, and others, commenced in February, 1887. The testimony in the ease was as follows: Plaintiees’ Evidence. Abram Clement,: I live at Mr. Nelson’s place on John’s Island. I knew Stephney Riley. He was my brother. We were the children of the same parents.

Before Norton, J., Edgefield, November, 1889. This was an indictment found against Whitfield Murrell and Willie Carpenter for murder. The judge charged the jury as follows: Gentlemen oe the Jury : The defendants here are indicted for murder. Attention has been called to the form of the indictment.

Before PRESSLEY, J., York, November, 1889. This was an indictment against Dennis C. Atkinson for unlawfully giving a prescription for beer. During the cross-examination by the solicitor of one of defendant’s witnesses, the following occurred: “By the Court: Now, Mr. Roumillat, do you swear solemnly, upon your oath, that this whole matter was not pretensive; not by previous arrangement between you and Dr. Atkinson, and that you kept him there for that purpose?

Before Witherspoon, J., Chesterfield, February, 1890. This was an indictment under which James Blakeney was convicted of murder. He appealed to this court. The opinion states ■the case.

Before Hudson, J., Beaufort, February, 1890. This was an indictment against Arthur Ezekiel for forgery and uttering a forged paper. The opinion states the case.

Before Kershaw, J., Aiken, September, 1889. This was an indictment against Nathan Bodie, charging him with the murder of Joel A. Gunter on January 25th, 1889. The homicide occurred at a point in a road on Bodie’s land, where Gunter was cutting away a log which Bodie had thrown across this road.

Before Pressley, J., York, November, 1889. This was an action by J. H. Neely against The Charlotte, Columbia & Augusta Railroad Company to recover damages for the negligent killing of a cow in August, 1889. It appeared that there was a dirt road alongside the railroad track which led out into a lane, and the road down this lane crossed the track.

<p>The intendant of a town, under the authority of a statute, committed to the county jail persons convicted of violations of the town ordinances, and for foui’years the jail fees for these prisoners were presented by the sheriff to the county commissioners, who paid them without the knowledge or authority of the town council. In action by the county commissioners against the town council to recover the amount so paid by them on account of these jail fees, held, that the payment was purely voluntary and therefore could not be recovered.</p>

Before Izlar, J., Laurens, February, 1890. This was an action by Emeline Bowen on the note and mortgage described in the opinion of this court.

Before Pressley, J., Spartanburg, January, 1890. Indictment against Ben Brown for burglary at common law and under the statute. The judge charged the jury as follows : Gentlemen of the Jury: If a door of a house have no other fastening than a latch, it is a breaking and entering to lift the latch. That law has been settled before our great-grandfathers were born, and continues that. So much for that.

<p>1. Under order requiring security for costs to be filed by a day stated, and in default thereof that plaintiff be non-suited, she filed such security within the time limited, which was approved by the clerk of court and filed, but the signature of the surety was not witnessed by the clerk. At the call of the cause for trial, more than two years after the expiration of the time limited, defendants claimed that there had not been a compliance with the order. Held, that the security filed was not in conformity to law, and was, therefore, insufficient, and that the order for non-suit had become operative.</p> <p>2. Defendants did not waive their right to insist upon the judgment of non-suit by joining in acts intended to prepare the cause for trial, after the order of non-suit had become operative, but in ignorance thereof, because of erroneous information imparted by the clerk of court.</p> <p>Mr. Justice McGowan, dissenting.</p>

Before Fraser, J., Charleston, March, 1890. The appeal was from the following decree : This is an action to enforce the specific performance of an agreement made by the defendant to purchase from the plaintiff a lot of land described in the complaint. The matter came up on a report and supplemental report of Master Sass. There is no dispute about the agreement and tender of title.

Before Izlar, J., Laurens, February, 1890. Mr. Justice McGowan did not sit in this case. It was an action by David R. McGowan against Geo. T. Reid.

Before Pressley, J., York, November, 1889. Action by “The Charleston, Cincinnati & Chicago Railroad Company” against M. Elizabeth Leech and her four minor children, commenced October 10, 1889. The facts of the case are stated in the opinion. The Circuit decree was as follows : The only facts before me in this case are contained [in] the pleadings and the release of the right of way, filed with the complaint.

Before Wallace, J., Chesterfield, November, 1889. This action was commenced on May 28,1886, for the recovery of a large body of land alleged to be in the possession of W. A. Evans and several other defendants.

Before Fraser, J., Greenville, October, 1889. This was an action by George W. Weaver and others against R. Furman Whilden for the-recovery of a tract of land, commenced in June, 1887. The case turned upon the genuineness of the deed under which plaintiffs claimed, and of a rent contract acknowledging tenancy by the grantor to them, the maker and two witnesses being dead. Several witnesses introduced by plaintiffs testified to the genuineness of these signatures.

Before Fraser, J., Spartanburg, July, 1889. This was an action by Charity Smith and others against J.' Frank Oglesby and others, commenced February 17, 1887. So far as the claim for dower is involved, the opinion states the case. As to the claim for an interest in the land, all the facts are fully stated in Smith v. Tanner, 32 S. C., 259, which is referred to in this opinion as decisive of this case.

<p>Where a complaint alleges as the only negligent act of the defendant railroad company, a defective switch, whereby cars were permitted to roll down from a siding on to the main track, in collision with which plaintiff’s intestate, a locomotive engineer of a moving train, was killed, but there is no testimony to show a defective' switch or that the cars which were run into had escaped from the siding, a non-suit was proper, because there was an entire absence of evidence as to the only act of negligence alleged in the complaint as the ground of plaintiff’s action.</p>

<p>1. Where a judgment by default exceeds the relief demanded in the complaint, it is an erroneous judgment, which might be corrected by appeal, and, perhaps, by motion, but is it therefore void?</p> <p>2. Where a complaint alleged a past due note secured by mortgage, and a second note, likewise secured, of which only the first instalment is past due, but alleged the amount due only on the first noto, and prayed foreclosure of the mortgage, and the defendant made default, and judgment of foreclosure was rendered for principal and interest due and to become duo on both notes, the judgment, if not in proper form, was clearly valid, and will not be enjoined in subsequent aer.ion brought for that purpose; particularly so, as the complaint in the action for foreclosure also demanded “such other and further relief as the circumstances may require, and as to the court may seem just.”</p>

Before Norton, J., Edgefield, November, 1889. This was an action by Martha A. E. Jennings against James M. Harrison for the recovery of real property, commenced in July, 1889. The opinion sufficiently states the case.

<p>1. There being a mortgage to secure agricultural advances, and settlements agreed upon between the parties as to credits and balances due, without collusion or fraud, a subsequent judgment creditor cannot object to the character of the items advanced or to the application of payments.</p> <p>2. A note dated February 6 and payable at one day “with interest at one per cent, per month from January first” last, must be construed according to the words used without the aid of parol testimony as to the intention of the parties, and unaffected by interest payments after-wards endorsed. So construed, this note bore only legal interest (7 per cent.) after maturity.</p>

Before Norton, J., Edgefield, November, 1889. Action by Stephen S. Tompkins and others against the Augusta & Knoxville Railroad Company and the Port Royal Railroad Company, for the recovery of real property. The opinion states the case.

<p>Before Hudson, J., Hampton, March, 1890.</p> <p>The opinion states the case.</p>

Before Pressley, J., York, November, 1889. This was a rule against Alvin Massey in the case of I. D. Witherspoon, as executor of I. D. Witherspoon, deceased, against N. R. Witherspoon and others. The Circuit decree was as follows : This case is before me on the report of the referee on a rule against Alvin Massey, who was highest bidder for a tract of land sold under decree in this case.

<p>Before Kershaw, J., Barnwell, November, 1889.</p> <p>This was an action by All & All, endorsees of W. R. Wright, against J. M. Goodson. The opinion states the case.</p>

<p>1. A married woman has no power to borrow money for the use of her husband, nor to give her note therefor, nor bind her separate estate by a mortgage executed to secure such note. Therefore such note and mortgage cannot be enforced against the maker where the lender knew that the money was to be used in paying a judgment debt of the husband ; and knowledge by the lender’s agent, through whom the loan was negotiated, was knowledge by the lender himself.</p> <p>2. A liability for this note and mortgage cannot be fixed upon the married woman by procuring an assignment to her of the husband’s debt so paid with this money, she not having borrowed the money for' the purpose of purchasing the judgment, but of paying it, and its assignment to her not having been made at her request or with her knowledge.</p>

Before Hudson, J., Barnwell, March, 1890. This was an issue raised under a warrant procured by Alfred Sease against Joseph and Henry Dobson. The opinion states the case.

<p>Before Izlar, J., Laurens, February, 1890.</p> <p>This was an action by Thomas J. Duckett against Martin B. Pool. The opinion states the case.</p>

Before Norton, J., Colleton, October, 1888. This was an action of foreclosure by B. O’Neill & Sons against E. D. Bennett, commenced in March, 1888. The plaintiffs introduced in evidence the original bond and mortgage 'securing the same by Bennptt to O’Neill & Sons. The bond is dated in June,. 1886, in the penal sum of $1,010, and was conditioned for the payment of $505, with interest at 10 per cent, per annum, payable on 1st January, 1887.

Before Norton, J., Fairfield, February, 1890. This was a contest between J. O. Boag and T. W. Woodward & Co. over a bale of cotton. The judgment of the Circuit Court, sustaining that of the trial justice, was as follows : If the intention of the parties can be gathered from the words used, then no resort can be had to any other rule of construction. I confess my inability to say with certainty what the parties mean by the words used.

Before Kershaw, J., Charleston, June, 1889. These were two actions against Julia A. Moseley, carrying on business as The Edisto Lumber Company, and A. Bequest, commenced in February, 1889, one by John W. Burmester and the other by F. J. Lilienthal & Son.

Before Fraser, J., Greenville, November, 1889. Action by Richard Huff against Joseph P. Latimer and John H. Latimer and P. D. Gilreath, for the recovery of 863 lbs. of seed cotton. The defendants claimed to have seized the cotton for rent due by plaintiff to Hewlett Sullivan, payable on October I, 1887, the said Sullivan having died May 30, 1887, and having appointed the defendants, the Latimers, executors. Gilreath was the sheriff who made the seizure on October 4, 1887.

<p>1. The interest of a wife in land conveyed to her prior to the adoption of the Constitution of 1858 (which declared that all the property of a married woman should be her separate estate), is the wife's separate property, notwithstanding the husband’s right to the usufruct during their joint .lives, under his marital rights which vested before 1868 and were not divested by the constitution then adopted.</p> <p>2. A married woman is hound by a mortgage given by her to secure money then borrowed to pay off a judgment against her, and to pay taxes on her inheritance.</p> <p>3. A married woman is not bound by a mortgage given by her to secure the purchase money of mules and supplies sold to her at her solicitation, and after her representation, that they were needed for the cultivation of her lands, where the mortgagee knew that the husband was legally in the possession and control of said lands, and that these mules and supplies were to be used by him in making crops for himself. Mr. Justice McGowan, dissenting as to the mules.</p>

Before Hudson, J., Spartanburg, April, 1889.1 Action by John R. Jefferies and E. Allen, as executors of Woodward Allen, deceased, against Harriet Allen and others. The only point decided arose under the order of the Circuit Judge, which, together with all other matters necessary to an understanding of the case, are fully stated in the opinion of this court.

<p>An order of the Circuit Judge withdrawing a case from the jury and continuing it until the next term of court was granted on plaintiff’s motion while his second witness was on the stand, after certain documentary evidence had been offered and rejected. Held, that this order was within the discretion of the trial judge and was not error of law ; and this rule is not affected by the fact that this was an aotion to recover real property in which only two actions are allowed by law.</p>

Before Pressley, J., Spartanburg, January, 1890. This was an application to the Circuit Court by The State on the relation of Miles P. Burnett against A. W. Burnside, probate judge for Laurens County, for a writ of mandamus. The order of the Circuit Judge, omitting its statement, was as follows: After hearing all the facts and argument of counsel, I am satisfied that the proceeding for mandamus must be dismissed.

Before Norton, J., Lancaster, March, 1890. This was an action by Melehers & Co. against Springs, Heath & Co., commenced before a trial justice in November, 1889. The only issues involved arose out of a counter-claim interposed by defendants. The witness, Easterling, testified that on the receipt of the order he sent it to plaintiffs signed by himself as their agent, and that he considered it a sale, provided the goods were in stock.

Before Aldrich, J., Anderson, February, 1890. This was a suit for partition by W. C. Branyan against John R. Kay and others, heirs at law of Lucinda A. Branyan, and the American Mortgage Company of Scotland, commenced August 27, 1889. An order of sale was passed, to which the American Mortgage Company consented with the understanding that it should be allowed to file its answer nunc pro tune, claiming a first lien on the proceeds of the sale.

Before Hudson, J., Barnwell, March, 1890. This was a suit by A. J. Salinas & Son against Bennett Bros. The master's report was as follows : The master, to whom, by an order of this court, all the issues herein, both of law and of fact, were referred, begs leave to report as his findings of fact: 1. That at the times hereinafter mentioned, the plaintiffs were partners, as alleged in the complaint and set out in the caption.

<p>Before Aldrich, J., Charleston, May, 1890.</p> <p>This was an action by M. W. Powers against J. H. Bullwinkle. The opinion states the case.</p>

Before HudsoN, J., Spartanburg, March, 1889. This was an action by Emanuel Foggette against W. W. Gaffney and F. B. Gaffney, administrators of W. W. Gaffney, deceased, commenced in June, 1887. The trial judge charged the jury as follows : I will endeavor briefly to explain the law bearing upon this contract.

<p>A testator directed his real estate to be sold at the discretion of the executor, who was to receive the rents until a sale was made, and pay them over as directed in the will. After the death of one of the life tenants, a portion of these rents and of the corpus of the estate, when sold, became payable to infants in another State ; whereupon the administrator cum testamento annexo filed his complaint, asking authority from the court to pay these funds to the father of these infants, upon proper security, as well the funds then in hand as those to be received prior to final settlement. Held, that as the complaint did not seek to put the estate into court for administration, and as there was no insolvency or other complexity requiring the court to interfere, the sale of the real estate must be made by the administrator as directed by the will, and not by the master.</p>

<p>Before Wallace, J., Darlington, November, 1889.</p> <p>This was an action by G. W. Dargan against Julia E. Mc-Sween, J. A. McSween, Ida L. Dargan, and H. S. Rose, commenced in May, 1888. The bond and deed referred to and construed in the opinion were as follows:</p> <p>The State of South Carolina.</p> <p>•Know all men by these presents, that I, G. W. Dargan, of the County of Darlington, State aforesaid, stand held and firmly bound unto J. E. McSween, of the county and State aforesaid, in the penal sum of fourteen thousand eight'hundred dollars, to be paid to the-said J. E. McSween, her certain attorneys, executors, and administrators, or assigns, to which payment well and truly to be made and done, I bind myself, and each and every of my heirs, executors, and administrators, jointly and severally, firmly by these presents.</p> <p>Sealed with my seal, and dated at Darlington C. H. the 27th day of December, in the year of our Lord one thousand eight hundred and eighty-seven, and in the one hundred and twelfth year of the sovereignty and independence of the United States of America.</p> <p>Whereas the above named J. E. McSween, in and by her deed, bearing date this 27th day of December, 1887, conveyed to Ida Dargan, of the county and State aforesaid, a certain plantation or tract of land situated in the county and State aforesaid, containing seven hundred and fifty acres, more or less, as in and by the said deed, reference being thereunto had, will more fully appear, for the expressed consideration of seven thousand four hundred dollars, and has deposited said deed in the hands of W. A--Brunson, Esq., to be delivered to the said Ida Dargan as hereinafter set forth.</p> <p>And whereas, the above bound G. W. Dargan, in consideration of the premises, has agreed to pay to the said J. E. McSween, within thirty days from the date hereof, and upon the delivery of the aforesaid deed to the said Ida Dargan the consideration expressed in said deed, to wit, the sum of seven thousand four hundred dollars, after first deducting from said sum of seven thousand four hundred dollars the full amount of any mortgage, debt, or judgment that is, or may be, a lien upon the aforesaid- tract of land.</p> <p>Now, the condition of the above obligation is such, that if the above bound G. W. Dargan, or the above named Ida Dargan, his or her heirs, executors, and administrators, shall and do well and truly pay, or cause to be paid, unto the above named J. E. Mc-Sween, her certain attorneys, executors, administrators, or assigns, the full and just sum of seven thousand four hundred dollars, within thirty days from the date hereof, after first deducting therefrom the full amount of any mortgage, debt, or judgment that is, or may be, a lien upon the aforesaid tract of land, and upon the delivery of the aforesaid deed to said Ida Dargan, without fraud or further delay, then the above obligation to be void and of none effect, or else to remain in full force and virtue.</p> <p>(Signed) G. W. DARGAN.</p> <p>Signed, sealed, and delivered in the presence of (Signed) W. F. Dargan.</p> <p>The State of South Carolina.</p> <p>Know all men by these presents, that I, J. E. McSw'een, of Darlington County, in the State aforesaid, in consideration of the sum of seven thousand four hundred dollars to me in hand paid, at and before the sealing of these presents by me, Ida L. Dargan (the receipt whereof is hereby acknowledged), have granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release, unto the said Ida Dargan all that certain tract or parcel of land lying, being, and situated in the County of Darlington and State of South Carolina, containing seven hundred and fifty (750) acres, more or less, and bounded on the northwest by Mill Creek and lands of Brown ; on the northeast by Mill Creek and public road from Mars Bluff Ferry to Darlington C. II.; on the east by lands of Thos. Ashby ; and south by lands of Geo. W. Dargan and Jno. McSween in Palmetto township, as by reference to a plat hereto attached will more fully appear. Together with all and singular the rights, members, hereditaments, and appurtenances to the said premises belonging or in any wise incident or appertaining. To have and to bold all and singular the said premises before mentioned, unto the said Mrs. Ida Dargan, her heirs and assigns forever. And I do hereby bind myself, my heirs, executors, and administrators, to wari ant and forever defend all and singular the said premises unto the said Mrs. Ida Dargan, her heirs and assigns, against me and my heirs and any and all persons whomsoever lawfully claiming or to claim the same or any part thereof.</p> <p>Witness my hand and seal this 27th day of December in the year of our Lord one thousand eight hundred and .eighty-seven, and in the one hundred and twelfth year of the sovereignty and independence of the United States of America.</p> <p>J. E. McSWEEN, [l. s.] .</p> <p>Signed, sealed, and delivered in the presence of W. F. Dargan,</p> <p>W. A. Brunson.</p> <p>The Circuit decree was as follows:</p> <p>On the 27th December, 1887, the defendant, Mrs. Julia E, McSween, conveyed to Mrs. Ida L. Dargan a tract of land in Darlington County. At the time of the conveyance, there was two outstanding mortgages upon the land — one to the Dundee Mortgage Company and the other to Smith, Mclver & Co. The former was executed on the 15th day of February, 1884, and given to secure five notes of even date, and due on the 1st day of November, 1884, 1885, 1886, 1887, and 1888, respectively, and ten other notes for the interest on the notes first mentioned. The other mortgage was executed on the 19th January, 1885, to secure a bond of even date, and due at a year. There was also an outstanding unsatisfied judgment, entitled Jas. Allen v. J. E. Mc-Sween, which was a lien upon the land. This was entered 14th September, 1886. The mortgages were both-duly recorded.</p> <p>On the 2-lst October, 1886, Mrs. McSween leased the premises, thus encumbered, to the defendant, H. S. Rose, for the term of five years. On the 24th February, 1888, the notos and mortgages of the Dundee Mortgage Company, were duly assigned for value to the plaintiff, G. W. Dargan, and on the 3rd of April, 1888, the bond and mortgage held by Smith, Mclver & Co. was duly assigned to G. W. Dargan. George W. Dargan is the husband of Mrs. Ida L. Dargan, and conducted all the negotiations preliminary to the purchase of the land, and, in fact, bought the land for his wife, to whom the deed was made. The money with which the payment to Mrs. McSween was made was the property, of G. W. Dargan, he intending to make a gift of the land to his wife. At the time Rose made the contract of lease, he was actually informed of the existence of the mortgage upon it.</p> <p>• The plaintiff now brings this action to foreclose the mortgages. The tenant, Rose, resists the foreclosure. He alleges that the plaintiff, as the agent of Mrs. Ida L. Dargan, agreed to pay a pertain stipulated sum for the fee in the land, and that upon the execution of the contract of purchase, the amount due upon the outstanding encumbrances was deducted from this sum and reserved to pay off the liens, and only the balance of the stipulated price paid to Mrs. McSween. In reply to this allegation, plaintiff insists that he bought, and only intended to buy, Mrs. Mc-Sween’s equitable right to redeem, intending to protect his purchase in the way most convenient to himself, and thus arises the main issue of fact, and upon the determination of which depends the legal principle to be applied in the case. The consideration for the purchase is stated in the bond to be seven thousand and four hundred dollars. The same sum is stated as consideration in the deed of Mrs. Dargan. At the time of the execution of the contract, the sum of $3,118.43 was paid to Mrs. McSween, that being the balance after deducting the amount of liens from the contract price of the land.</p> <p>The plaintiff and W. F. Dargan (the latter being the person who drew the bond of G. W. Dargan to Mrs. McSween) explain that the sum of seven thousand four hundred dollars was stated as consideration in the bond and deed because the papers necessary to ascertain the sum agreed to be paid to Mrs. McSween could not conveniently be obtained on the day the bond and deed was executed, and the sum of $7,400 was stated as consideration therefor, it being stated at the time that the true consideration could be made to appear at any time, and that the true consideration was the balance after deducting the amount of encumbrances, and that no greater sum was agreed to be paid to Mrs. McSween. It also appears, that when the sum of $3,! 18.43 was paid to Mrs. McSween, the bond and deed were delivered — the bond to G. W. Dargan, and the deed to Mrs. Ida L. Dargan. From this explanation, it appears that there was no agreement that G. W. Dargan should pay Mrs. McSween the estimated value of the land, or reserve part of a contract price with which to pay the outstanding mortgages, but that it was agreed that Dargan should pay Mrs. McSween- a sum to be ascertained by deducting the amount of the encumbrances from the agreed value of the land. This view of the transaction would be strengthened by a full discussion of theevidence, and is not controverted by Mrs. McSween. This, then, being the bargain when Mrs. McSween received the sum of $3,118.48, she received all she had bargained for, and no money of her’s was reserved.</p> <p>If G.' W. Dargan had made a contract with Mrs. McSween to ■pay her $7,400 for the land, and upon the execution of the contract had reserved a sum sufficient to pay.off the encumbrances, with the understanding that the money should be so applied, the payment, when made, would extinguish the mortgages. It is said by Mr. Pomeroy, 2 Eq. Jur., sec. 793: “An assignment of a mortgage to a grantee of the mortgagor, unless he has expressly assumed to pay it, and thus made himself the principal debtor, does not generally create a merger, it generally being to the interest of such grantee to keep the mortgage alive,” &c. If, however, he has agreed to apply the reserved fund, of course he is bound by his contract:</p> <p>The case of Heid v. Vreeland (30 N. J. Eq., 591) goes a step further, and holds that a contract to pay off the mortgage by the purchaser will be implied. “When the purchaser of land encumbered by a mortgage agrees to pay a particular sum as purchase money, and, on the execution of the contract of purchase, the amount of the mortgage is deducted from the consideration, and the land conveyed, subject to the mortgage, that the purchaser is bound to pay the mortgage debt, whether he agreed to do so or not.” As the contract in the case under consideration was not an agreement to pay Mrs. McSween a particular sum as purchase money for land encumbered by a mortgage, but rather an agreement to pay Mrs. McSween a sum, to be ascertained by deducting the amount of the mortgage from the estimated value of the land, the sum so paid was a complete execution of the contract. The learned judge, who delivered the opinion in the case of Heid v. Vreeland, supra, concedes that where the equitable right to redeem only is sold, and the purchase money agreed upon, represents simply the mortgagor’s interest in the mortgaged premises over the mortgage debt, there is no personal liability created against the purchaser to pay the mortgage debt. This view is supported by the case of Belmont v. Coman (22 N. Y., 438), which agrees in principle with the citation from Pom. Eq, Jur., swpra.</p> <p>It may be added, that-the foregoing discussion has proceeded upon the assumption that G. W. Dargan was the g'ranfee of the land. As has already been seen, Mrs. Ida L. Dargan holds the fee conveyed to her by Mrs. McSween, and G. W. Dargan is in no sense the agent of his wife in the transaction. The assignment of the mortgage to him, therefore, could not possibly merge the lien of the mortgage in the title.</p> <p>It is therefore adjudged, that the encumbrances described in the complaint are not extinguished by their assignment to George W. Dargan. It is further adjudged and decreed, that the mortgages described in the complaint be foreclosed and the equity of redemption barred, and the land described in the mortgages sold,’ and the proceeds of sale be applied to the payment of the demands' secured by the mortgages, and that each party pay the costs incurred by his own proceedings. It is further ordered, that plaintiff have leave to apply at the foot of this decree for all orders necessary to carry the decree into effect.</p> <p>cited 1 Jones Mort., 738, 861; 108 ü. S., 132; 115 Id., 105; 2 Hill, 204; 2 New Eng. Rep., 122,124; 18 Am. Law Rev., 847-401; 3 Cent. Rop., 76 ; 1 Jones Mort., pp. 866, 869, §§ 869, 776,779; 8 S. C., 356;- 16 Id., 632-; 30 Id., 150; 2 Pom. Eq., § 793; 22 N. Y., 438. i</p>

Before Fraser, J., Spartanburg, August, 1889. This was an action by J. R. Padgett against John B. Cleveland and others, D. E. Converse, Jane Wilkes, and C. P. Sanders, assignee, commenced February 29,1888. Plaintiff claimed under a mortgage which was duly recorded in the real estate mortgage book, but never recorded in the chattel mortgage book.

<p>Before Kershaw, J., Aiken, November, 1889.</p> <p>The opinion states the case.</p>

<p>Before Kershaw, J., Barnwell, November, 1889.</p> <p>The opinion fully states the ease.</p>

<p>Before Norton, J., Richland, October, 1889.</p> <p>This action was commenced February 16, 1889." The opinion státes the case.</p>

Before Hudson, J., Charleston, November, 1889. The report of master Miles in this ease was as follows : This case was referred • to me by order of his honor, Judge Pressley, dated 31 January, and filed 13 June, 1889, to take testimony and report upon the issues of law and fact, with leave to report any special matter. 1 have been attended by the solicitors of the parties, and have taken the testimony which is herewith filed.

Before Hudson, J., Berkeley, December, 1889. This was a suit by Gilbert Geddes DuPont against Elizabeth C. S. DuBos, commenced June 19, 1889, to which B. H. Rutledge was added as a party defendant on his own motion, in December, 1889. The opinion fully states the case.

Before Witherspoon, J., Hampton, June, 1889. This was an action by Sams & Clark against J. A. Hoover for the recovery of the possession of a mule.

Before Witherspoon, J., Aiken, July, 1889. This was a suit by Olivia Young and others against Patience Edwards and Elizabeth Howard,. commenced May 23, 1877. From the Circuit decree the defendant, Patience Edwards, appealed, because it required her to pay a part of the.costs. The plaintiffs and Elizabeth Howard appealed on the following grounds: 1.

<p>1. A Circuit Judge in open court has jurisdiction to dissolve a temporary injunction granted before the defendant, who moves to dissolve, had been made a party, especially where the temporary injunction was to continue until the further order of the court, with leave to the new' parties thereby permitted to be added to move for a dissolution.</p> <p>2. It cannot be said that plaintiffs were not permitted to go to trial on the merits where the temporary injunction previously granted in their favor was dissolved upon a ground w'hich was decisive of the wrholo case.</p> <p>3. Where a tax is imposed by the sovereign authority of the legislature to pay for township bonds w'hich were issued in aid of railroads by the expressed consent of the people of such townships, and such consent, expressed at an election held for the purpose, is conceded in the pleadings, it matters not w'hether the formalities prescribed by a former unconstitutional act of the legislature for the ordering of such election were fully complied with ; the debt so imposed is a valid debt of the townships under the express terms of the act imposing it.</p> <p>4. State v. Whitesides, 30 S. C., 579, and State v. Neely, Ibid., 587, approved.</p>

Before Hudson, J., Barnwell, March, 1890. The Circuit decree, omitting its statement of facts, was as follows : It is conceded by plaintiffs that the property over which the power of appointment existed in favor of Mrs. Patterson could only be disposed of by will or instrument in that nature at her death, and that the conveyance to James Patterson, and subsequently to the trustees, are therefore invalid, so far as they undertake to dispose of the fourth over which Mrs'.

Before Norton, J., Edgefield, November, 1889. This was an action by James R. Hart against The Charlotte, Columbia & Augusta Railroad Company, commenced January 8, 1889, to recover damages sustained in his person and property on July 2, 1888. .The judge charged the jury as follows: Gentlemen of the Jury: This is an action brought by James R. Hart against the Charlotte, Columbia & Augusta Railroad.

Before Hudson, J., Union, March, 1889. This was a suit bv William 8. Mowry and others, assignees of L. D. Mowry & Son, against William Crocker, William Jones, William Jefferies, and others, commenced January 26, 1886. The opinion states the case.

Before Wallace, J., Colleton, June, 1889. This was a petition by Georgiana White, in re the estate of Thomas M. Peeples, deceased. From the order of the Circuit Court made on motion at the hearing of an appeal in that court from a decree of the Probate Court dismissing this petition, the appeal comes to this court on the following grounds taken by the defendant: I. Because his honor had no jurisdiction at chambers to grant the said order. II.

Before Norton, J., Richland, October, 1889. In this case the honorable W. H. Wallace, Judge of the Seventh Circuit, and the honorable I. D. Witherspoon, Judge of the Sixth Circuit, sat in the places of the Chief Justice and Mr. Justice McGowan, who were disqualified by reason of interest. There were three actions: 1. Akers Brothers against S. W. Rowan, sheriff. 2. Robert W. Shand, assignee, against The Central National Bank. 3.

<p>Before Pressley, J., Chester, October, 1889.</p> <p>This was an action by Carter Ross against The Georgia, Carolina & Northern Railway Company, commenced in September, 1889. The opinion states the case.</p>

Before Wallace and Fraser, JJ., Newberry, May and July, 1889. This was an action by Thomas F. Harmon, as executor of Mary E. Harmon, and in his own right, against F. W. Wagener & Co. and others, creditors of said Mary E. Harmon.

Before Norton, J., Anderson, February, 1888. This was a suit by Alexander C. Earle and others against Elias J. Earle and othevs, commenced January 4, 1884. The amended summons and complaint bear date July 20, 1887. The Circuit decree was as follows : This action was originally for the partition of “Evergreen” plantation, of which plaintiffs allege that Elizabeth H. Earle died seized.

<p>1. After the expiration of six years from the maturity of a note action thereon is barred by the statute of limitations ; if payments have been made thereon by the debtor within' six years before action brought, whether before or after the expiration of the statutory limit, the stat- ' ute is nevertheless a bar to an action on the note, but not to an action on the promise implied from the payment which constitutes a new cause of action.</p> <p>2. Where a complaint sets forth a note more than six years old as its only cause of action, and alleges credits thereon within six years before action brought, but does not state by whom these payments were made, nor allege any new promise by defendant, evidence as to these credits is incompetent, for it would tend to establish a cause of action (to wit, the new implied promise) not stated in the complaint. And the trial judge erred in charging the jury that “if six years has not elapsed since the last payment made on the note, then the statute of limitations is no bar to the plaintiff’s recovery” on the note.</p> <p>3. Can a judgment based upon a verdict of a jury in a lavr case be sustained upon grounds other than those erroneously submitted to them ? When such grounds were not urged in the court below, and the case was treated by all parties as not involving them, no error of law as to them is presented to this court for correction ; and therefore these additional grounds cannot be considered.</p>

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

Before Fraser, J., Newberry, November, 1886. The appeal was from the following decree : This is an action to recover the possession of a tract of land and for damages. So far it is an action for trial by jury. The complaint, however, states certain facts as to the sources of title, which are sufficient to constitute a cause of action for the foreclosure of a mortgage under which plaintiff claims title. Andrew Kinard, the mortgagor, does not answer the complaint.

.Before Hudson, J., Hampton, March, 1890. The complaint in this case was as follows : The plaintiffs, complaining on behalf of themselves and all other creditors of the defendant, L. F. Hughes, who shall in due time come in and seek relief by, and contribute to the expenses of, this action, allege : I. That at the time hereinafter mentioned, the plaintiffs, Theodore K. Miller, Daniel Miller, Robert C. Davidson, I. Frank Supplee, and Richard M. Turner, were doing business in…

Before Hudson, J., Charleston, November, 1889. This was an action by Edward L. Wells and D. E. Huger Smith, copartners, doing business as Lesesne & Wells, against Thomas Young, commenced October 21, 1887.

Before Norton, J., Richland, October, 1889. This was an action by Emma- W. Price, as administratrix of her husband, Philip H. Price, against the Richmond & Dan-ville Railroad Company, to recover damages done to herself and child by the negligent killing of her husband by a projecting roof while he was acting as conductor of a freight train of defendant. The action was commenced in August, 1888.

Before HudsoN, J., Beaufort, February, 1890. This was an action by the State of South Carolina against F. W. Scheper and John F. Huchting, sureties on the bond of W. T. Seward & Co., commenced in August, 1888. The license to mine was as follows : State op South CauoliNa, I Department of Agriculture.

Before Witherspoon, J., Lexington, June, 1890. This was an indictment against Julius Wyse for a murder committed on February 23d, 1889. The charge of the judge, so far as it has any bearing upon the exceptions, was as follows: You have heard something with reference to the exercise of self-defence. There is no doubt that in proper cases a man is entitled to the protection of the law in the exercise of the right of self-defence.

This was an application to this court for a writ of mandamus to compel the State Board of Canvassers to issue, to petitioner, William Elliott, a certificate declaring hirn to have received the highest number of votes for representative from the Seventh Congressional District of South Carolina to the 52nd Congress of the United States.

These were two motions to restore to the docket the two cases (Nos. 2713 and 2714) upon affidavits showing that the attorneys for respondent had put the manuscript into the printer’s hands in ample time, with instructions to file with the clerk of this court three days before the call of the Circuit; that the printer’s failure so to do had resulted in one case from a press of public printing, and in the other from the verbal agreement of the clerk on the proper day that he…

This was a motion by respondent for an order declaring the appeal abandoned for failure to file the Case with the clerk of the Circuit Court within ten days after the settlement, as required by rule 49 of the Circuit Court rules. The judgment of this court was delivered orally January 14, 1891, as follows:

This was an appeal from an order of Judge Izlar, setting aside the service of a summons. It was conceded that defendant was a foreign corporation, and it did not appear in the complaint or otherwise that the cause of action arose in this State.