Volume 34 — South Carolina Reports

Before Wallace, J., Richland, This was a suit by C. F. Jackson and Thomas Agnew, as executors Of John Agnew, deceased, against N. E. Lewis. The Cir-' cuit decree was as follows: .This case has been twicelried on Circuit, and on appeal to the Supreme Court taken in each instance the Circuit decisions dismissing the complaint have been reversed, and the case remanded to the Circuit Court for a new trial. 29 S. C., 193; 32 S. C., 59-3.

This was a motion by appellant to restore this case to the docket, it having been dismissed by the clerk under rule 1 for failure to file the return within forty days after the record constituting the return had been completed. It appeared that on May 26, 1890, appellant had notice of the filing of the decree and within ten days thereafter gave notice of appeal. Underwritten agreement, plaintiff was given until Sepe. 1, 1890, to servo his grounds of appeal.

This was a petitiofi by W. D. Scarborough for a writ of mandamus. On hearing the petition, the court issued a rule requiring the Board of State Canvassers to show cause why the writ should not issue as ptayed for. To this rule return was duly made by the board, and there were no further pleadings. The following order was passed Per Curiam.

Before Wallace, J., Chesterfield, This was an indictment against William D. Merriman for the murder of Archibald G. Douglass on May 6, 1889. Jacob Lampley, a witness for the State, having told what the accused (calling him Doc) had said about the homicide, was asked: “Did Doc say anything else when he said in self-defence? What did you say about it?” [Defendant objects to witness stating what he said in reply to what he says defendant said. Objection overruled.

Before Witherspoon, J., Lexington, This was an indictment against Fred. Brown for the murder of Lem Jackson. So much of the charge to the jury as has any bearing upon the matters excepted to was as follows: A party who is charged with the crime of murder has the right to come in here and interpose what we call the plea of self-defence; that he did what he did, the taking of human life, in the exercise of the right of self-defence.

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

<p>Before Fraser, J., Charleston,</p> <p>This was an indictment against William White for larceny committed in January, 1890. The opinion states the case. There was no testimony upon the point whether there was any such person as Kennedy McCutchen.</p>

Before Norton, J., Fairfield, This was an action by John Wallace against The Columbia & Greenville Railroad Company, commenced January 17, 1889.

Before Wallace, J., Chester, This was an action by Eliza Jane Simpson against William J. Cherry and others.

<p>Before Norton and Wallace, JJ., Chester,</p> <p>Action of foreclosure by W. H. Hardin against Martha E. Hardin, commenced February 5, 1890. The opinion states the case.</p>

Before Norton, L, Laurens, These were two proceedings instituted in the Court of Probate by Elizabeth J. Sumerel to recover dower, T. O. Sumerel and others being the defendants in the first case, and M. A. Sumerel the defendant in the other case.

Before Norton, J., Fairfield, ■ Action by Sarah E. Crawford and Robert Crawford against The Oman & Stewart Stone Ooinpany, commenced January 31, 1889.

Before Norton, J., Laurens, Petition of W. T. Chappell in re James and J. B. Hudgens, executors, against J. D. Sullivan, administrator, and others, to require the defendant Sullivan to account for his administration of the estate of his intestate, C. P. Sullivan, and to pay a judgment obtained by plaintiffs against C. P. Sullivan, and now owned by the petitioner, a former decree of the Probate Court in 1882 having ordered all funds thereafter received by said administrator…

<p>The opinion of this court fully states the case.</p>

Before Kershaw, J., Sumter, This was a proceeding instituted by Mehaza R. Bradley and Stephen B. Bradley, her agent, against John E. D. Bell and Paul E. Bell, to have the respondents ejected from a farm claimed by the relators.

Before Aldrich, J., Beaufort, At the call of this appeal for a hearing, the solicitor moved to dismiss the appeal because the order appealed from was not appealable, it being from an order overruling a demurrer which had been interposed after evidence had been introduced. The court said it would be better to let this matter be heard with the appeal.

Before Aldrich, J., Abbeville, At the hearing of this appeal, Hon. W. H. Wallace, Judge of the Seventh Circuit, sat in the place of Mr. Justice McGowan, who was disqualified by reason of his relation by marriage to the defendant. It was an action by James T. Williams and Charles Z. McCord, as receivers of the Georgia Construction and Investment Company, against W. C. Benet, to recover unpaid instalments of stock subscription.

<p>1. Presumptions — Deadly Weapon. — Every sane man is presumed to intend the ordinary and probable consequences of any act which he purposely does, and so malice will be inferred from the use of a deadly weapon, if not rebutted by other testimony.</p> <p>2. Implication op Malice. — There was no error in instructing the jury in a murder case, that if the act which produced' death be attended with such circumstances as indicate a wicked, depraved, and malignant spirit, the law will imply malice without reference to what was passing in the prisoner’s mind at the time.</p> <p>3. Where the Case states no Facts, this court cannot declare that matters stated in the charge to the jury were inapplicable and misleading.</p> <p>4. Manslaughter — Provocation by Words. — Where a homicide is committed with a deadly weapon, provocation by words only, no matter how opprobrious, would not be sufficient to reduce the crime from murder to manslaughter.</p> <p>5. Consequences oe Unlaweul Act. — The law implies that a person who does an unlawful act intends the natural and probable consequences thereof, and is therefore responsible for such consequences.</p> <p>6. Matters Considered in Favorem Vitae. — A question raised in argument but not by exception, and not sustained by the facts before this court, and other questions urged under a general exception, considered in favorem vitae'.</p> <p>7. Attempted Suicide Resulting in Homicide. — -Suicide being a felony, one who in an unlawful attempt to take his own life with a deadly weapon, unintentionally kills another, is guilty of murder.</p> <p>8. Moral Insanitv or uncontrollable impulse is not, in this State, a defence against a charge of crime.</p> <p>9. Malice — Charge as a Whole. — The charge having correctly informed the jury as to malice, there was no error in omitting to use the word “intentionally” when he further charged that “malice means the doing of an unlawful act without justification or excuse.”</p>

<p>Before Izlar, J., Orangeburg,</p> <p>Indictment against Luther M. Chavis. The opinion states the case.</p>

Before Hudson, J., Aiken, This was an indictment against Angus Bradley, charging him with the murder of Jasper Craig on December 26, 1889. While a son of the deceased was on the stand as a witness for the prosecution, the following was admitted by the trial judge as a conversation between prisoner and deceased, and not as a dying declaration : Q. State whether or not he said anything to Angus ? A. He said, “Angus, you have killed me.” Q. What did he say, anything ?

<p>Before Wallace, J., Laurens,</p> <p>This was an action by B. F. Hill against Laurens County. See Hill v. Railway Company, 31 S. C., 393. The Circuit Judge granted defendant’s motion for a non-suit “on the grounds that the place where plaintiff was injured was not a highway, and that, if it had been, there is no evidence of negligence on the part of the defendant.” In granting this order, his honor said :</p> <p>For time out of mind this has been a highway from Laurens in the direction of Hamburg. It was so in 1868, when the present constitution was adopted. . That constitution provided new methods, and a law was passed in pursuance of it, by means of which highways should be laid out and worked, indicating the authorities that had power to do it. The statutes make it criminal for anybody else to go to work to change .it from a highway. Now, my recollection is, and I caught, I thought, as the counsel was reading, that anybody who deflects a highway from its establisted course, changes its direction, puts it in a new place, is guilty of a criminal act. It is the business of the county commissioners to indict him for doing it. Now, the proof here is, that this part of the road was deflected from the original highway. There is no proof that it was authorized by the county commissioners, they having the power to do it, and nobody else in the county having any such authority. The county commissioners cannot have an agent in the sense in which the act of an agent will bind the county. They have only delegated authorities themselves, and unless expressly authorized by statute, they cannot delegate any authority that they have to anybody. So, generally speaking, they cannot have an agent, and the statute provides that anybody who deflects the road without the authority of the county commissioners, is guilty of a criminal act, and it is the duty of the county commissioners to indict them for doing it.</p> <p>The county commissioners alone have the right to deflect highways or to establish new ones, and it is only in such cases, says the constitution of 1868, where highways have been deflected by authority of the county commissioners, that the road becomes a highway in the sense in which that term is used in the statute. It is not a highway otherwise. It is a monument of a crime. That is all it is, and, of course, for any defect in the repair of such a road as that the count3^ commissioners and the county cannot be held responsible. Now, here the testimony is that this road was built by Mr. Moore and the rnad hands under his control, and by the concurrence of the neighborhood. Not one word is said that the county commissioners, as such, ever had any participation in the deflection of that road at all, ever ratified the act, ever had any knowledge that it was done — no participation upon that point at all. I am obliged to hold that when the State declares that any injuries inflicted by reason of defects in the repair of a highway is a ground of recovery against the county, it cannot apply to this road, because the evidence, so far from making it a highway, proves that it was not a highway, and the statute only relates to a highway. The proof of the plaintiff is that this is not a highway, as I have already said ; that it is a monument of a crime under the statute law of the State, and therefore, of course, that statute cannot apply to it. I am obliged, therefore, to grant the motion.</p> <p>Now, as to the matter of contributory negligence, I could not consider that, even if it should appear from the testimony of the plaintiff, because that would be to consider the force and effect of testimony, which the judge cannot do, and the jury must consider that. But as I have already said, I think there is proof on the part of the plaintiff that this is not a highway, and therefore the statute cannot apply to it. And any injury on account of a defect in the repair of that road is not actionable under that statute. The non-suit is therefore granted.</p> <p>Plaintiff appealed on the following grounds: I. Because his honor, Judge Wallace, erred in holding that there was no evidence showing that the place at which the plaintiff was injured was a highway. II. Because he erred in not holding that the road upon which plaintiff was injured was accepted and adopted by the proper authorities of the county as a highway, as appeared by the evidence adduced. III. Because he erred in not holding that the testimony adduced showed that the place where plaintiff' was injured was a mere deflection of the highway upon which he was travelling, which did not destroy its identity. IV. Because he erred in holding that a slight deflection in a highway from necessity must be formally accepted and established as a highway by the proper authorities in order to preserve its identity. V. Because he erred in holding that there was no testimony to show negligence on the part of the county commissioners, and in making this one of the grounds of non suit. VI. Because he erred in not holding that there was sufficient testimony to go to the jury, and in granting the non-suit.</p>

Before Izlar, J., Abbeville, This was an action by M. B. McGee against D. S. Jones and his wife and children to cancel a deed and recover the land. The Circuit decree, after stating the undisputed facts of the case, concludes as follows: After consideration of the testimony,!

Before Wallace, J., Spartanburg, This was an action by D. H. Elder and L. C. Elder against I. L. Greene and others, partners under the firm-name of the Arlington Manufacturing Company, commenced January 15, 1889. The judge charged the jury as follows : You all understand that the Arlington Manufacturing Company brought an action against Elder to recover the possession of a horse.

Before Izlar, J., Greenville, This was an action commenbed by Amanda Burns against T. C. .Gower before a trial justice in August, 1889, and carried by appeal to the Circuit Court. The opinion states the case.

<p>Before Izlar, J., Greenville,</p> <p>Action by Lewis P. Burrows against A. H. French. The opinion states the case.</p> <p>cited Story Confl. L., §§ 576-8 ; Wood Lim., § 8 ; 5 Rich., 198-9 ; 2 Bail., 217 ; 4 Rich., 224; 13 Peters, 327; 2 Mass., 89; 18 S. C., 549; Code, §§ 112,121; 1 Strob., 326; 3 Johns., 266 ; 10 Id., 465 ; 18 N. Y., 570 ; Rice, 316 ; 2 McCord, 331; 9 Rich. Eq., 433; 2 Id., 120.</p> <p>cited 18 S. C., 549; Code, §§ 94, 112, 121; 54 Ga., 126; 3 Harr. (N. J.), 262; 11 Bush, 19 L; 13 Am. Dec., 368.</p>

<p>Before Aldrici-i, J., Greenville,</p> <p>Action by Ferguson & Miller against John H. Harrison and others. The opinion states the case.</p>

Before Fraser, J., Charleston, This was an action brought by The Hibernia Savings Institution of Charleston against Josephine S. Luhn in January, 1889, to foreclose a mortgage executed in January, 1885.

<p>Before Norton, J., Spartanburg,</p> <p>Tbe opinion sufficiently states tbe case.</p>

<p>The opinion states the case.</p>

Before Wallace, J., Richland, This was an action by W. C. Fisher against Mary D. Fair and J. Q. Marshall, to recover damages for the obstruction of an alley way.

Before Wallace, J., Richland, Action by Richard Carter against the Oliver Oil Company, commenced August 12, 1889. The judge, in granting the non-suit, said: As I collect the proof, it appears that Richard Carter was the chief hand in working the former.

Before Hudson, J., Aiken, This was an action by R. E. Bowen against The Carolina, Cumberland Gap & Chicago Railway Company, commenced December 16, 1889.

Before Fraser, J., Beaufort, Action of foreclosure by W. J. Ellis, executor, against Susan Sanders et al. Both parties having appealed, the case is twice stated in the Brief, and is so written at the head of the opinion.

Before Pressley, J., York, Action by F. H. White and W. Y. Hemphill, trading under the firm-name of F. B. White & Co., against the Town Council of Rock Hill, commenced before a trial justice on October 2, 1888. The opinion states the case, the exceptions to the order of the Circuit Judge being as follows: 1.

Before Wallace, J., Richland, Action by Emma Griffin against Caroline E. Earle to have plaintiff’s mortgage cancelled, and to enjoin defendant from selling thereunder. The Circuit decree was as follows: On hearing the complaint and answer, the master’s report of testimony, and the arguments of counsel, I find as matters of fact: 1.

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

Before Wallace, J., York, These three cases were heard together on testimony taken in open court in the hearing of the Circuit Judge. The opinion states the case.

Before Aldrich, J., Abbeville, Action by Thornton Hughey against J. Frank Kellar, commenced in September, 1888. The opinion states the case. cited Code, § 170 ; 8 Abb., 37; 9 How. Prac., 150 ; 16 N. Y., 297, 307. cited the same authorities and also 2 Abb. Forms, 129, 131; 2 Estee Plead., 612; 14 How. Prac., 46.

Before Norton, J., Spartanburg, Action by O. D. Westlake and others against Abner T. Farrow. The Circuit Judge having overruled a demurrer to the-complaint, the defendant appealed, alleging error in the following particulars: 1. In not ruling and holding that there was an improper joinder of causes of action. 2. In not ruling and holding that the court had no jurisdiction to try the cause. 3. In ordering the case to be transferred to calendar one. 4.

<p>1. Evidence — Executor’s Accounts. — In action against an executor for account in which it is sought to charge him with an uncollected asset of his testator, he testified, against objection, that the life tenant told him that testator did not wish the debtor to be sued, and that the life-tenant would never consent to such a suit. Although no ruling was made in the court below on this objection, it must be considered here, as the evidence bears so directly on the question at issue of the executor’s good faith, and while it was incompetent so far as it attempted to declare the wishes of the testator as to the management of the estate, by hearsay and by verbal directions, it was competent so far as the life tenant’s wishes were declared, and relevant to the issue of good faith.</p> <p>2. Executors — Uncollected Asset — Life Tenant. — Where testator devised and bequeathed his entire estate to his widow for life, “to have, to hold, and enjoy during her natural life,” with remainder over, and such estate consisted in part of an unsecured note taken by testator, which the life tenant received into her possession and deterred the executor from suing by her express and earnest objections, and which after her death was worthless, the testimony failing to make it appear that earlier suit would have realized on the note, although others had collected money from the debtor, there is not sufficient to charge the executor with a want of that care and diligence which the law requires in such cases.</p> <p>3. Ibid. — Ibid.-—Ibid.—Would the executor be relieved of all liability to the remaindermen under the terms of this will by surrendering to the possession and control of the life tenant an unsecured chose in action in the form in which the testator had left it ?</p>

Before Izlar, J., Spartanburg, This was an action by James McMakin against W. D. Fowler, commenced February 16, 1888. The opinion states the case. contended that the record in the former action contained no ambiguities and therefore must speak for itself, and parol evidence was inadmissible to show that issues raised by the pleadings were not in fact adjudicated; and cited Ilerm. Estop., §§ 111, 115, 121, 107, 108; 17 S. C.. 40, 189, 202; 19 Id., 159, 251; Freem.

<p>Before Izlar, J., Laurens,</p> <p>Action hy A. W. Burnside, judge of probate, against J. M. Donnon and John W. Clark, commenced December 31, 1886. The opinion states the case.</p>

Before Aldrich, J., Greenville, Action by W. R. Hale, as administrator of B. Wehrle, against The Columbia & Greenville Railroad Company, commenced in February, 1890. After the close of plaintiff’s testimony, the defendant moved for a non-suit, and the judge ruled as follows: This is a motion for non-suit. Much has been said in argument, plaintiff’s testimony discussed, and numerous authorities cited, upon the subject of contributory negligence.

Before Izlar, J., Greenville, Action by Atlantic Phosphate Company against John D. Sullivan. The charge to the jury was as follows : This action was brought by the plaintiff to recover the value of one hundred tons of fertilizers alleged to have been sold and delivered by the plaintiff to Mr. John D.‘Sullivan, the defendant, and for which, it is alleged, he has not paid. The defendant admits the corporation of the plaintiff.

Before Wallace, J., Laurens, This was an action by Thomas J. Duckett against Martin B. Pool, commenced January 9, 1889. The judge charged the jury as follows: Mr. Foreman and G-entlemen: Counsel on either side have submitted what are called requests to charge. They are always statements of what in the opinion of counsel are legal principles that arise out of the case.

Before Fraser, J., Sumter, This was an action by George W. Tisdale against C. W. King-man and George L. Kingman, copartners trading under the firm name of Kingman & Co., commenced January 28, 1890. The opinion states the case. To sustain plaintiff’s first exception, he submits that such allegation was not necessary in such action. 16 S. C., 896; 8 Ohio St., 548.

<p>Before Fraser, J., Colleton,</p> <p>This was an action by Julian Fishburne against H. A. M. Smith, A. M. Lee, and H. D. Elliott, commenced April 24, 1890. The Circuit decree was as follows:</p> <p>This case is before me for a hearing on the merits, in pursuance of an order made by consent at the term of the court held in June, 1890. It has been heard on the pleadings and testimony taken out of court, on notice in pursuance of the act. The parties were represented by counsel and the cause fully argued, several exceptions to the testimony were noted; but I think it necessary to say only that I regard all testimony as to matters which occurred previous to the execution by plaintiff, 6th November, 1889, of the deed to H. A. M. Smith, A. M. Lee, as incompetent.</p> <p>Julian Fishburne, the plaintiff in this case, had given to H. A. M. Smith, one of the defendants in this case, a mortgage of a tract of land mentioned in the complaint, and known as Floats, to secure bond payable to Mrs. Lowndes and others, one of which, and the first one payable, had been assigned to C. C. Pinckney, jr. Fishburne having made default in payment, action was commenced against him by Mr. Smith for foreclosure. A. M. Lee was one of the attorneys for the plaintiff in this action in that suit for foreclosure. While this action was pending, and for the purpose of meeting the issues involved and paying the debt, the deed of 6th November, 1889, and the paper expressing the trust on which the conveyance was made, were executed.</p> <p>In an order overruling a demurrer to the answer of some of the defendants, I have indicated my opinion that the formal discontinuance of the action for foreclosure was not a condition precedent to the right of Mr. Smith and Mr. Lee to execute the trusts created by the within instrument.</p> <p>I have not changed the opinion therein expressed, that the tender of his receipt for one thousand dollars by the plaintiff in this action was not the equivalent of the tender of one thousand dollars in money, because the first money received by the trustees was applicable to certain expenses and the debt, and not to the surplus in which alone he had any interest.</p> <p>The next question is, whether Mr. Elliott is entitled to have a conveyance of the bond at his bid, $30,000, at the sale which the two trustees attempted to make in pursuance of the power vested in them. By an arrangement made by the tw'o trustees, the land had been duly advertised and offered for sale by Mr. T. Pinckney Lowndes. The property was bid off for plaintiff at $44,000, and he having tendered only the receipt above referred to instead of $1,000 in money, the property was again put up ; at this second offering the property was run up. by Mr. Elliott to $39,950, and at the suggestion of Mr. Smith, this bid was withdrawn and the property again was bid off for plaintiff for $36,000. He tendered the same or a similar receipt in place of the cash, and it was again refused, and the property put up a third time and bid off by Henry D. Elliott, who did not pay or tender the one thousand dollars required by the published terms of sale. This last bid of Elliott was at $30,000, as heretofore stated.</p> <p>Mr. Lee was not present at the sale, but was absent from the State. Mr. Smith was attorney for all the holders of the bonds, and was the trustee to whom the mortgage was made. At the same time he and Mr. Lee were trustees to make the sale for the benefit of the bondholders, and for the plaintiff as to the surplus; he occupied a double relation to the property and represented conflicting interests. Now, this seems to me to involve the same principle as was involved in the case of Anderson v. ‘Butler, 31 S. C., 183. While in that case the court recognized the right of such a trustee to purchase at a judicial sede, yet suggested as to other property which the trustees had a right to sell without the intervention of the court, that a partition would most likely give satisfaction, it seems to me that this advice was given for the same reason which had induced the Circuit Judge in that case to order a sale by the master, with an express provision that the trustee might protect himself at the sale by bidding on the property, which he would not have a right to do at a sale made by himself. Ex parte Wiggins, 1 Hill Ch., 353; also McOelvey v. Thomson, 7 S. C., 201. Mr. Elliott in this whole matter acted under the advice and instruction of Mr. Smith and on behalf of the creditors, and I think that the withdrawal of the bid for $39,950 under his advice rendered void the subsequent sale to him at $30,000. In such cases the court cannot consider the question whether the amount bid was or was not a fair price.</p> <p>If, however, you admit this bid to have been regular and valid, it has not been complied with. I am satisfied that a creditor who bids at such sales is not bound to pay in any money which is coming to him, and that it is not necessary even to tender a receipt for it. In this case certain expenses provided for in the mortgage and bill of sale were first payable out of any money realized from this sale, and the creditors were not'entitled to anything until these were paid. This was a joint power of sale, and one of the trustees was absent. And even if the two had a right to waive the cash or any part of it, it seems to' me to be clear that one trustee had no such right in the absence of the other. For these reasons I do not regard the sale to Mr. Elliott as valid and another sale will be necessary.</p> <p>The time fixed by the deeds for the sale has passed, and an order from the court will be necessary. I understand that the trustees prefer that the sale shall' be made by the master, if to be made at all. It is therefore ordered and adjudged, that the master for Colleton County, after due advertisement in some newspaper published in said county, and one in the city of Charleston, do sell the premises described in the complaint on salesday in October next, or on some subsequent salesday, for five thousand dollars in cash and the balance on a credit of one or two years, with interest from day of sale, payable annually until the whole is paid, to be secured by a bond of the purchaser and a mortgage of the premises. It is ordered, that if the creditors, or any of them, should become purchasers at the said sale, the receipt for so much of the proceeds as may be coming to said purchaser, as due on the bond or bonds, shall be regarded as so much cash. Ey consent in writing, filed with the record in this case, the master is authorized to make the sale in the city of Charleston.</p> <p>It is ordered, that the expenses of sale and the costs and fees of the master and other officers of this court be paid out of the cash proceeds of sale, and the balance of the cash paid to C. C. Pinckney on his bond, and that the master do hold the bond and mortgage taken by him subject to the further order of the court, to be paid out to the parties entitled to the same,'on the coming in of the report of the master on the matters hereinafter referred to him. There is testimony which satisfies me that there is more due to C. C. Pinckney than will be paid out of the cash, but the precise amount of the debt due on the several bonds cannot be ascertained without a reference to the master, and other amounts may be chargeable on the bond. It is therefore ordered, that it be referred to the master to inquire and report what is the amount due on the several bonds secured by the mortgage, and also to inquire and report on all claims on the fund arising from said sale, including all legitimate expenses covered by the mortgage or incurred by the trustees, H. A. M. Smith and A. M. Lee, and amounts due them.</p> <p>It is ordered, that all the costs not hereinbefore provided for be paid by the parties respectively incurring them. Ordered, that parties may apply at the foot of this decree for any order proper to carry out the same.</p> <p>Defendant appealed on the following grounds:</p> <p>1. That his honor, the presiding judge, erred in not holding that the defendant, Henry D. Elliott, was the highest and only bona fide bidder at the auction sale of the premises described in the complaint on the seventh day of April, 1890, and as such highest bona fide bidder was entitled to a conveyance of the same.</p> <p>2. That his honor erred in not suppressing the deposition of Julian Fishbürne for his failure to answer the questions propounded to him on his cross-examination.</p> <p>3. That his honor erred in holding that all testimony as to matters which occurred previous to the execution by plaintiff of the deed of 6th November, 1889, was incompetent.</p> <p>4. That his honor erred in holding that the withdrawal by thes defendant Elliott of the bid of $39,950, under the suggestion of the defendant Smith, rendered void the subsequent sale to Elliott for $30,000.</p> <p>5. That his honor erred in not holding that all bids made by the plaintiff or any one on his behalf were puffing, fictitious, and void, and that it was the duty of the defendant Smith, upon ascertaining that fact, to disregard the same and to give the property to the highest bona fide bidder.</p> <p>6. That his honor erred in holding that it was incumbent upon the defendant Elliott at the sale to pay the $1,000 in cash, but should have held that the defendant Elliott represented the parties to whom the entire purchase money was to be paid, had a right to have the deposit of $1,000 credited on the amount due, and could not be required to pay the same in cash.</p> <p>7. That his honor should have held that the defendant Smith and the auctioneer were fully authorized under the circumstances to dispense with the payment of $1,000 cash by Henry D. Elliott, he being the holder for the purchase of all the bonds to which the payment of the purchase money was to be applied, and therefore the payment of the $1,000 by him was in effect a payment to himself.</p> <p>8. That his honor should have held that the purchase money being insufficient to discharge the amounts due by the plaintiff on his bonds, it was a matter of no moment to him whether the $1,000 cash was paid or not, and that the defendant Smith at the sale was fully authorized to waive the payment of the same by the defendant Elliott.</p> <p>9. That his honor should have held that the plaintiff by his conduct had excluded himself from any right of exceptions to the sale, and that no bid of his or by any one for him should have been considered.</p> <p>10. That his honor should have dismissed the complaint for want of equity on the part of the plaintiff, in that by his improper conduct he had himself caused and brought about the alleged failure of the sale, and was not entitled to the assistance of the court to enforce doubtful rights under such circumstances.</p> <p>11. That his honor should have held that if the sale to the defendant Elliott was invalid, that then and in that case the plaintiff was bound to take the property at his first claimed $44,-000, and should have ordered him to comply with his bid for that amount or lose all right to the property.</p> <p>12. That his honor erred in ordering a resale of the property, but should have adjudged that the plaintiff, if he had any right, was bound to comply with his bid of $44,000, and pay the one-third cash into court, and on his failure so to do, that the defendant Elliott was entitled to the property at the price bid by him.</p> <p>13. That his honor erred in ordering a sale for $5,000 cash, balance in one and two years, whereas by the terms of the complaint and the agreement on which it was founded, his honor was bound, if a sale was ordered, to order it in accordance with the terms of the agreement, to wit, for one-third cash, balance-in one and two years.</p> <p>Plaintiff’s exceptions were as follows:</p> <p>1. Because his honor, the presiding judge, erred in not striking out and suppressing the deposition of defendant Smith for his refusal to answer questions on the cross-examination.</p> <p>2. His honor, the presiding judge, erred in not decreeing a discontinuance of the suit of US. A. M. Smith, trustee, against Julian Fishburne,” before a resale of the premises as ordered in said decree.</p> <p>3. His honor, the presiding judge, erred in decreeing the cash proceeds of resale to be paid C. C. Pinckney, before due proof by him of his bond as holder and owner thereof, at and after the commencement of this suit, and before the report of the master as to amount due.</p> <p>4. Under the alternative relief prayed in the complaint, that the presiding judge erred in holding that the tender of his (plaintiff’s) receipt for one thousand by the plaintiff in this action, on his hid of forty-four thousand dollars, was not the equivalent of the tender of one thousand dollars in money.</p>

Before Fraser and Aldrich, JJ., Aiken, Action by Alfred Sease against Joseph Dobson, Henry Dob-sen, and S. L. Knopf, commenced July 12, 1890. The order of Judge Fraser was as follows: This case is before me on a return by the defendants, Henry Dobson and Jos.

Before Izlar, J., Charleston, This action by the City Council of Charleston against J. C. H. Weller was commenced in the City Court of Charleston, and resulted in a judgment in favor of plaintiff. An appeal from said judgment was taken to the Court of Common Pleas, and the appeal was placed on calendar 2 for a hearing.

Before Wallace, J., Berkeley, This was an action by D. C. Ebaugh against A. J.-Mullinax to recover damages for trespass on land. The defendant claimed title in himself under a deed from the Sinking Fund Commission. The judge charged the jury as follows : Mr. Foreman and Gentlemen of the Jury: As I have stated to counsel, I think the act of the general assembly, “To raise supplies for the fiscal year 1880,” is the act that covers this case.

Before Wallace, J., Chester, The case is fully stated in both Circuit decree and opinion. The Circuit decree was as follows : The cause entitled J. J. McLure, administrator of M. A. Melton, and others, was instituted by the administrator of George W. Melton, to facilitate the settlement of the estate of G. W. Melton, which was insolvent.

<p>Before Hudson, J., Aiken,</p> <p>In granting an order of non suit in this case, the presiding judge said:</p> <p>The title of the present plaintiff is a sheriff’s deed bearing date the 7th of January, 1878, the sale having been made under an execution upon a judgment of Robert Garvin against John Garvin, entered on the 17th of September, 1877. There was at that time in the sheriff’s office in this county the original execution which was had upon the judgment of John Fox against Robert Garvin and others, recovered in the County of Lexington on the 6th of April, 1868. This original execution from the County of Lexington was sent down to the office of the sheriff of the County of Aiken on the 5th of August, 1875, the party sending it evidently expecting that it would be enforced according to the terms of the act of 1849, but that act had been repealed and was not re-enacted until (date). At the same time, July 26th, 1875, transcript of judgment of John Fox. against Robert Garvin, John Garvin, and others, was sent down to Aiken _ County and put on file the 5th day of August, 1875. It is in evidence on the part of the plaintiff, who saw fit to introduce the same, that Robert Garvin, under whom the plaintiff claims, sold and conveyed to R. C. Garvin 500 acres of land on the 15th day of April, 1874, and the deed is recorded January 5th, 1875. There is a good deal of other evidence introduced by the plaintiff, none, however, but what I have recited which bears upon the main point urged under the motion for non-suit.</p> <p>It is contended by the defendants’ counsel that at the time of the sale by sheriff Holley, there was but one valid outstanding unsatisfied execution against the property of Robert Garvin, and under that the sheriff levied and sold, and the defendants’ counsel insist that there was at that time no other execution having any active energy whatever; that the original execution issued upon the Fox judgment in Lexington County was without active energy, and that the transcript of the judgment sent down to the County of Aiken, an execution rather upon the transcript of judgment sent down August 5th, 1875, was issued by the clerk of this court without any authority of law ; that neither of these executions had validity because there was no renewal, no application for renewal, no order of court granting renewal; that without leave of the court, the clerk had no right to issue the execution on the transcript, and upon this account chiefly he relies for his motion for a non-suit.</p> <p>It is, in reply to this, contended by the counsel for plaintiff that the judgment of John Fox against Robert Garvin and others, lodged in the County of Lexington, was a valid lien upon this land, and that the act of 1849 was never intended to apply to such a case as this, because the land originally lay in the-County of Lexington, and when the County of Aiken was carved out of portions of Lexington, Barnwell, Edgefield, and other counties, that did not divest the lien of judgment of land so cut off, and that although the executions had lost their active energy, yet the lien of the judgment was good, and the sale of the sheriff, under the judgment and execution of Robert Garvin against John Garvin, was valid, and the purchaser could refer his title not only to that execution, but to the execution of John Fox against Robert Garvin and others; that it had become necessary, it would be an advantage in thus selling to apply the money to the lien, this older lien, although the executions issued thereon in the office might have lost their active energy. It is contended, therefore, that the purchaser is protected by the lien of the Fox judgment, which dates back as far as 1868, and, of course, would prevail over the title which Robert Garvin made to R. C. Garvin in 1874.</p> <p>This case has been twice in the Supreme Court, and it has been twice sent back. The law, in the two judgments rendered by the Supreme Court, of course, must control me in .deciding this most interesting question, and after having heard these judgments read and fully commented upon by counsel, I don’t perceive that the question presented to me was ever raised, presented to, and decided by the Supreme Court in either of these judgments, and I regard the question as simplj- this, Can one purchase lands at a sheriff’s sale under a judgment and execution senior to an alienation by the judgment debtor, prevail in his title over the alienee, when there is in the clerk’s office a subsisting judgment creating a lien upon the land of the judgment debtor, but when, at the same time, there is not in the sheriff’s office a vital execution senior to the alienation ? That, it appears to me, is the simple question.</p> <p>If a sheriff sells land under an execution which is not valid, the sale would nevertheless be good to the purchaser, if there be other subsisting live executions in his office against the same debtor ; but the question here presented is not that in this case ; according to the view that I take of it there was no other execution in the sheriff’s office, at or before the sheriff’s levy and sale, which had vital energy except the one under which the sale was, and that execution under which the sale was made, was issued upon a judgment recovered against Robert Garvin several years after he had sold the land to his son, R. C. Garvin, the present incumbent; so that R. C. Garvin held the title senior to the only vital execution at the time of the sale which was in the sheriff’s office, and his title must prevail, the title of R. C. Garvin, over the purchaser at the sheriff’s sale, unless that purchaser can protect himself under the lien of the Fox judgment. The validity of the sheriff’s sale depends not upon the existence of liens in the clerk’s office; with the clerk’s office he has nothing to do, it deals only with the authority which is contained in the execution in his own office; and if he sells, if the sheriff sells under an execution in his office, which lien has vitality, the purchaser cannot claim the benefit of an old judgment lien on which there is no live execution.</p> <p>I hold, therefore, that according to the plaintiff’s own showing, he has proved that R. C. Garvin had a deed of this land; had a title from Robert Garvin three or four years older than the title which John Garvin acquired in 1878. The presumption is that the title is valid. There is no evidence that it is an invalid title; no evidence of fraud; no evidence of invalidity in that deed. The result of this proof is that the plaintiff has proved himself out of court by showing in another, to wit, the present ■ defendant, a title superior to his own.</p> <p>The only other ground upon which the non-suit was moved for is because the remittitur of the last judgment of the Supreme Court was not put in evidence. I hold that there is nothing in that, because the printed judgment itself was in evidence, and the case had gone to trial by both parties acknowledging that it had been properly sent down here for a new trial, fully recognizing it as being sent back by the Supreme Court, and the judgment of that court, as printed, read before this court. It is upon the first ground, and that alone, upon which I grant the non-suit. Let the order for a non-suit be prepared.</p> <p>Judgment on the non-suit was duly entered, and plaintiff appealed.</p>

Before Norton, J., Laurens, This was an action by the Trustees of the WadsworthviUe Poor School, a body corporate, against W. H. Bryson and S. W. Bryson, as administrators of Samuel Bryson, deceased, and Tabitha Bryson and others, distributees of Samuel Bryson.

Before Witherspoon, J., Lexington, The referee thus states the case : By an order of this honorable court, his honor, Judge T. B. Fraser, presiding, it was referred to the undersigned, as referee, to take the testimony in this cause, and to “hear and determine all the issues between the parties hereto as presented by the pleadings herein.” In obedience thereto, I have ’held several references at Lees-ville and Lexington Court House, have heard and carefully written down the…

Before Norton, J., Chester, This was an action by William S. Barber, by his next friend, against the Richmond & Danville Railroad Company, le-see of the Chester & Cheraw Railroad Company, for an injury done to plaintiff by a moving train on the latter road on November 15, 1888. The action was commenced March 9, 1889.

Before Izlar, J., Spartanburg, The complaint in this case was as follows: 1. That heretofore, on the day of February, 1888, the defendant herein attempted to institute an action against her and a co defendant, J. J. Lipscomb, by the service upon him and an attempted service upon her of a summons and complaint therein, which complaint alleged: 1.

Before NortoN, J., Lancaster, This was an action by R. W. Draffin against the Charleston, Cincinnati & Chicago Railroad Company for the recovery of the value of certain cross ties, commenced February 12, 1889. The judge charged the jury as follows: It is my place to give to you the law of this case. And as to the contract for furnishing these ties, I charge you that the parties to the same are bound by it, unless there has been some waiver on their part.

Before Fraser, J., Charleston, The reports of Master Miles were as follows : FIRST REPORT OF MASTER. Held: “that the object of the act was not to limit the duration of such liens, but simply to declare (and it is noticeable that such was the word used in the title) w'hat should be the evidence of such payment or new promise as would be sufficient to rebut the presumption of payment,” and on this ground held it not to be unconstitutional.

Before Witherspoon, J., Hampton, This case came up before the Circuit Judge on exceptions to the referee’s report. His decree, after having stated the facts and disposed of some exceptions not involved in the appeal, proceeded as follows: The fifth exception alleges error in the finding of the referee, that Mary E. Rhode did authorize her father, W. R. Tuten, to receive and apply the rent of the Altman land, as found by the referee.

Before Fraser, J., Sumter, The Circuit decree upon the points involved in the appeal was as follows: This case was heard by me at the term of the court held in November, 1890. It was an action for partition of certain lands described in the complaint, to confirm a partition heretofore made as to a portion of them, and also to declare a trust as to one other parcel.

Before Fraser, J., Charleston, This was an action by R. J. Woods & Co. against Cramer & . Blohrne to recover damages for breach of contract of purchase by defendants. The judge charged the jury as follows : This is an action to recover damages which the plaintiffs allege they have sustained by breach of a contract. The contract is alleged to be for the sale of certain car loads of oats said to have been sold by sample.

Before Izlar, J., Greenville, This was an action by William A. Dobson against Elizabeth Cothran and others, to recover damages for the abduction and debauchery of Susie Dobson, a child of plaintiff, aged twelve years. The action was commenced April 5, 1889.

<p>Before Hudson, J., Barnwell,</p> <p>This was an action by W. G. Wheeler against II. S. Alderman. The opinion states the case.</p>

<p>Before Fraser and Aldrich, JJ., Charleston,</p> <p>In the first of these two cases the complaint was as follows :</p> <p>The plaintiffs above named, complaining of the defendant, allege:</p> <p>I. That they, the plaintiff's, are a corporation duly chartered under and by the laws of the State of South Carolina, pursuant to an act of the general assembly of the said State, entitled “An act to incorporate Charleston,” and the acts amendatory thereof.</p> <p>II. That under and by virtue of an act of the general assembly of the said State, entitled “An act to authorize the city council of Charleston to impose a license tax on all persons engaged in any business, trade, or profession in the city of Charleston,” approved the 17th December, 1881, the plaintiffs, on the 27th day of December, 1888, for the purpose of raising a revenue and in exercise of the taxing power, passed an ordinance entitled “An ordinance to regulate licenses for the year 1889,” whereby, inter alia, it is provided that phosphate rock mining or manufacturing companies or agencies, engaged or intending to engage in business in said city, shall, on or-before the 20th day of January, A. D. 1889, obtain each a license therefor, and shall be required each to pay for the same the sum of five hundred ($500) dollars.</p> <p>III. That at the time of the passage of the said ordinance the defendant was, and now is, a corporation duly created by and under the laws of said State, for the purpose of digging and mining for phosphate rock, marl, lime, and minerals, and of manufacturing the same, and such other minerals or materials as they may purchase or require, into chemicals, acids, and fertilizers, and of carrying on trade therein.</p> <p>IV. That since the first day of January, 1889, the defendant, being a phosphate rock manufacturing company, as aforesaid, has carried on, and is now carrying on, the business of selling fertilizers in Charleston aforesaid, having an office on Brown’s wharf in said city, for a license to do which, there was due and payable to plaintiffs the sum of five hundred dollars, under the ordinance aforesaid ; but at no time during the said year has the said company had, nor has it now, a license to conduct the said business as required by law.</p> <p>V. That no part of the said five hundred dollars due and payable by the defendant to the plaintiffs as aforesaid has been paid.</p> <p>Wherefore plaintiffs demand judgment against the defendant for the sum of five hundred dollars, and the costs and disbursements of this action.</p> <p>Defendant answered, but on the call of this case for trial, it was orally objected by defendant that the complaint did not state facts sufficient to constitute a cause of action. This objection was overruled by Judge Fraser by a formal order, and defendant appealed.</p> <p>In the second of the cases above stated, the complaint was as follows :</p> <p>The plaintiffs above named, the city council of Charleston, complaining of the defendant, the Ashley Phosphate Company, allege:</p> <p>I. That they, the said plaintiffs are a municipal corporation, duly chartered by arid under the laws of the State of South Carolina, pursuant to an act of the general assembly of the said State, entitled “An act to incorporate Charleston,” and the acts amendatory thereof.</p> <p>II. That under and by virtue of an act of the general assembly of the said State, entitled “An act to authorize the city council to impose a license tax on all persons engaged in any business, trade, or profession in the city of Charleston,” approved the 17th December, 1881, the plaintiffs on the 23rd day of December, 1889, for the purpose of raising a revenue and in exercise of the taxing power, passed an ordinance entitled “An ordinance to regulate licenses for the year 1890,” a copy of which said ordinance is hereto annexed and made part and parcel of this complaint.</p> <p>III. That at the time of the passage of the said ordinance, the defendant was, and now is, a corporation duly created by and under the laws of the said State, for the purpose of digging and mining for phosphate rock, marl, lime, and minerals, and of manufacturing the same, and such other minerals as they may purchase or acquire, into chemicals, acids, and fertilizers, and of carrying on trade therein.</p> <p>IV. That since the first day of January, 1890, the defendants, being a phosphate rock manufacturing company, as aforesaid, has carried on, and is now carrying on, business in Charleston aforesaid, to wit, selling their fertilizers and carrying on trade as authorized in its said charter, having an office on Brown’s wharf in said city.</p> <p>V. That pursuant to the license ordinance aforesaid, there was due on the'20th day of January, A. D. 1890, by the said defendants to the said plaintiffs, the sum of five hundred dollars for the license to carry on such business and trade as authorized in its said charter. But the said defendant company has not obtained a license to carry on such business .and trade in the said city as required by the said ordinance, nor has it paid the said sum of five hundred dollars, nor any part thereof.</p> <p>Wherefore plaintiffs demand judgment against the said defendant for the sum of five hundred dollars, and the costs and disbursements of this action.</p> <p>The ordinance filed as an exhibit to this complaint, so far as material was as follows:</p> <p>AN ORDINANCE TO REGULATE LICENSES EOR, THE YEAR 1890.</p> <p>Section 1. Be it ordained by the Mayor and Aldermen of the City of Charleston, in City Council assembled, That every person, firm, company, or corporation engaged in, or intending to engage in, any trade, business, or profession hereinafter mentioned, shall obtain, on or before the 20th day of January, A. D. 1890, a license therefor, in the manner hereinafter prescribed. Every person, firm, company, or corporation commencing business after the said 20th day of January, A. D. 1890, shall obtain a license therefor before entering upon such trade, business, or profession.</p> <p>* * * * X * *</p> <p>Section 3. If any person or persons shall exercise or carry on any trade, business, or profession for the exercising, carrying on, or doing of which a license is required by this ordinance, without taking out such license as in that behalf required, he, she, or they shall, for each and every offence, be subject to a penalty not exceeding $100, as may be adjudged by the recorder or court trying the case. And the same shall be entered up as a judgment of the court, and execution shall issue against the property of the defendants as for the collection of other taxes and penalties. *******</p> <p>Section 11. For a license to carry on any trade, business, or profession hereinafter mentioned, the following sums shall be paid to the city treasurer, viz.:</p> <p>Class 1.</p> <p>Agencies or companies, each: * * *</p> <p>20. Phosphate rock mining or manfacturing companies</p> <p>or agencies, each, 500 00</p> <p>*******</p> <p>The defendant answered. At the trial the complaint was objected to as insufficient, but the judge (Aldrich) overruled the objection, and the trial proceeded. Upon the only point considered on the appeal, the judgment was as follows:</p> <p>Upon the call of this case upon calendar 1, counsel waived their right to a trial by jury, and in open court agreed to submit all of the issues in the action to the court. The arguments of the learned and eminent counsel' were close, logical, and exhaustive ; and I regret that the limited time at mjr command will not permit me to enter as fully into the discussion of the various questions and issues involved as I would like to do. I shall confine myself to the consideration of such issues as, in my judgment, determine the result of this action. The complaint was read, and defendant interposed the following oral demurrer: The defendant demurs to the complaint, because it does not state facts sufficient to constitute a cause of action in this, that the action is one for an alleged debt, and there are no allegations of a promise to pay which would create such debt, or of facts constituting a promise to pay the amount claimed, which would create a debt; whereas, ■ from the ordinance set out in the complaint, it appears that the' suit should be brought for the penalty named in said ordinance, nor is there any consideration or contract set out which created a debt.</p> <p>The word debt does not appear in the complaint. Debt is do-' fined by Worcester “as what one owes to another;” that is the dominant idea. A debt is not always a license tax due, but a license tax due and properly charged is a debt. It is common in actions arising out of contract to allege a promise to pay, but such allegation is not necessary when the facts stated show that the amount claimed is due and payable. No tax-payer promises in terms to pay his taxes, yet they are debts due the public, and as such are collected. The complaint does state facts, showing that defendant is due to the plaintiff the amount claimed in the complaint, and that is sufficient.</p> <p>I cannot appreciate the force of the proposition that suit should be brought for the penalty named in section 3 of the ordinance. Plaintiff might have sued for the penalty therein named, if the facts would support such suit, but it would not and could not affect this action. A license tax is one thing, and a penalty for carrying on any trade, &c., without taking out a license is another thing. The object of the former is to put money into the city treasury, the latter is intended to punish a person for violating a city ordinance.</p> <p>To say that plaintiff cannot maintain this action to recover the amount due as a license tax, because there is no specific statute or ordinance authorizing such a suit is, I think, a misapprehension of the rule of law upon that subject. The usual method of collecting money is by suit, and that method remains as an incident to the right to collect, unless changed by the law-making power. The ‘‘contract,” if such it can be termed, existing between the government and tax-payer, -which empowers the one to impose taxes upon the other, and the “considerations” which the tax payer receives in return for taxes paid, belong to the science of government organized and regulated by the law of the land; therefore being matters of law, plaintiff' was under no necessity to allege those principles of law in its complaint.</p> <p>For these and other reasons I overruled the demurrer, and ordered the trial to proceed.</p> <p>The defendant appealed upon several grounds, but this court considered only the first, which alleged error in overruling the oral demurrer.</p> <p>.This action is one for a debt alleged to exist under the provisions of a municipal ordinance. But it is a tax (6 S. 0., 8), and a tax is not such a debt as will sustain this action without special authority. The only remedy of the city is that which, they have prescribed in the third section of their ordinance. Cool. Tax., 15, 13; 20 Cal., 351; 2 Dutcher, 399; 26 Vt., 485 ; 12 S. E. Rep., 122; 15 Ela., 382; -52 Mich., 458; 38 Mo., 130; 6 Mass., 44, 8 Mete., 391; 3 Id., 520; 7 Wall., 80; 12 Buck, 673; 16 S. C., 52 ; 3 Id., 349. If, then, a tax is not a debt for which an action at common law will lie, and the ordinance in question does not authorize the action at bar to be brought, the case fails and the complaint should be dismissed.</p> <p>Suit cannot be brought for the recovery of the license tax, when no license has been granted. In such case only the penalty for carrying on business without a license can be enforced. A license fee cannot be exacted for that which is unlawful. Burr. Tax., 148; 27 Pa. St., 494; 6 Rich., 414. The act of 1881 (17 Stat., 582) conferred upon the city council full power to enforce the payment of all license taxes, and we must therefore look to the ordinance alone for the remedies to be applied to delinquents. And this ordinance does not authorize an action to recover the amount of the fee charged for licenses. This action is to recover the fee and not the penalty, whereas the penalty imposed is exclusive of other remedies. 19 Wall., 238. Action to recover the fee cannot be maintained because the license was never issued. Burr. Tax , 146, 148 ; 9f N. C., 16 ; Cool. Tax., 414; 1 McMull., 328; 2 Dill. Mun. Corp., secs. 815,410; 3 Brev., 540; Burr. Tax., 37; 15 Mich., 54;.56 Cal., 144. This last case is upon our precise point.</p> <p>upon the point here decided, relied upon the reasoning of the Circuit Judge, citing further 2 Bay, 249; 16 S. C., 51-53; Cool. Tax., 13, note 1; 1 Gill & J., 499; 2 Dill. Mun. Corp., secs. 815, 818; 14 Stat., 409 ; Rev. Ord. of Charleston, secs. 99, 100.</p>

Before Izlar, J., Greenville, This seems to have been a petition ex parte The Piedmont Manufacturing Company, in re A. Cooley & Go. v. Perry Brothers. The opinion states the case.

Before Izlar, J., Abbeville, This was an action by C. Aultman & Co. against Mattie Utsey. The Circuit deciee was as follows: The case was heard before me upon the pleadings and testimony taken by the master under an order of reference for that purpose. Full argument was made by the counsel on either side.

<p>Special Term, June, 1891. On March 11, 1891, the clerk of the Supreme Court entered an order dismissing the appeal herein under rules 1 and 2 for failure to file the return in proper time. This was a motion made on April 21, 1891, to reinstate the cause on the docket, but Justice Mclver being the only member of the court in attendance, the application was continued by consent until the court was in condition to hear it, of which due notice should be given by the clerk to the attorneys in the cause. On June 17, both Justices being present, the motion was heard and argued.</p> <p>It appears that the decree of the Circuit Judge was filed January 19, 1891, during vacation, and on January 28 notice of appeal with exceptions was served by defendant on attorneys for plaintiff, accompanied with a notice that the defendants would make and serve other exceptions. On February 23, after due notice given, the Circuit Judge passed an order giving appellant until June 1st to serve their Case with exceptions. This order was not known to the clerk of the Supreme Court when he granted his order dismissing the appeal.</p> <p>The question involved was whether the record constituting the return was complete on January 28, 1891, under the act of 1889 (20 Stat., 356), in view of the notice that the appellants would serve other exceptions and of the order of the Circuit Judge of February 23, extending the time for serving the Case with exceptions until June 1.</p>

November Term, 1890. This was a petition by defendant for a rehearing of this cause, alleging nineteen grounds of error in the opinion filed by this court, ante p. 28. Upon this petition the following order was endorsed June 17, 1891, Per Curiam.

November Term, 1890. This was a petition by defendant for a rehearing of the appeal which had been dismissed by this court. See ante 44. On June 17, 1891, the following order was endorsed: Per Curiam.

November Term, 1890. This was a petition for a rehearing of this appeal [ante p. 204) upon the grounds (1) that the grant of the right of way having been based upon a valuable consideration, it could not be revoked by Fair or by any act of his; and (2) that those holding under Fail’, while enjoying that valuable consideration, that is to say, while maintaining their west wall on the land surrendered by Davis, are estopped from denying the validity of the grant by Davis.

<p>Note. The November Term of 1890 convened on the 25th day of that month, Chief Justice Simpson and Associate Justices Mclver and McGowan, a full court, being present. The court took a recess for Christmas on December 19. On the 26th day of December, Chief Justice Simpson -died after an illness of a very few days, and the vacancy thus produced was not filled until December, 1891. At the close of this term, about the end of January, 1890, Associate Justice McGowan was taken very ill, and his illness continued until after the time fixed for the April term of 1891. On December 1,1891, Associate Justice Mclver was elected Chief Justice and qualified on the same day, and on December 3, 1891, the Honorable Young J. Pope (then Attorney General) was elected an Associate Justice to fill the unexpired term of Justice Mclver, and he qualified the same day and took his seat on the bench on the next succeeding day.</p> <p>Therefore it is that Associate Justices Mclver and McGowan are the only two members of the Supreme Court who took part in any of the opinions or orders to be found in this volume, all of them having been filed between the date of the death of Chief Justice Simpson and the date of the elevation of Chief Justice Mclver. The next succeeding volume will commence with eases of November term, 1891. — Reporter.</p>