Volume 35 — South Carolina Reports

This was a proceeding by prohibitioo. The Circuit Judge rendered the following judgment: The plaintiff is a duly incorporated social club, which out of its common fund purchased liquors in the name of the club, and kept the same for the benefit of all its members. These liquors were kept, with other supplies of the club, in the butler’s pantry or in the appropriate place therefor.

This was an indictment against Martha Milling for the murder of her husband in April, 1891. The judge charged the jury as follows: Gentlemen of the.

This was an indictment against James Campbell, charging him with the murder of Zaelc Thorne on the night of Christmas eve of 1890. The opinion states the case.

This was an action by Edward S. Jaffray and others, as survivors of Edward S. Jaffray & Co., against J. Blake Steedman, assignee of N. T. Purdy k Co. and agent for the creditors, and John C. Man, commenced April 26, 1890. The Circuit decree was as follows: N. T. Purdy k Co., formerly merchants at Camden, made an assignment for the benefit of their creditors on the 2 The cause came on to be heard upon the pleadings and admitted statement of facts and the argument of counsel.

Action by the Scottish American Mortgage Company, Limited, against Mary R. Deas and others, commenced September 26, 1889. The Circuit decree was as follows: This is an action to foreclose a mortgage of four hundred acres of land, executed and delivered by the defendant, Mary R. Deas, a married woman, to plaintiff, March 15th, 1884, to secure the payment to plaintiff of said defendant’s note of same date for $52,-500.

This case turned upon the construction of the following will: I, Mary Purvis, being of sound mind, but conscious that my end of life is just approaching, and being anxious before I die to make some provision for my two daughters, Haynes Purvis and Charlotte Purvis-; — the first named being an adult and the second named an infant under the age of twenty-one years — do make and ordain this to be my last will and testament, revoking any other testamentary paper I may have…

This was an action for partition, commenced in April, 1890, by Harriet B. Kennedy and Flora Boykin against Thomas L. Boykin and others, heirs of Burrell Boykin, deceased, certain lien creditors of Thomas L. Boykin being also parties defendant.

This was an action of foreclosure instituted by Thomas R. E. Bethune, deacon of Pine Tree Presbyterian Church, against Daniel A. McDonald and Andrew J. Melton, commenced May 1, 1891.

<p>This action was commenced in April, 1890. The opinion states the case.</p>

This was an action by Nathaniel F. Mobley against J. D. Cummings, assignee, and others. The case is fully stated in the report of IT.

Action by J. Y. Bryce, as administrator of T. W. Dewey, against James R. Massey and C. B. Jones.

<p>This was an action by the Charleston, Cincinnati & Chicago Railroad Company against M. Elizabeth Leech and her children. The opinion states the case.</p>

<p>This was a motion submitted to this court for a rehearing of the case decided and reported in 34 S. C., at page 112. The opinion states the case.</p> <p>On December 23, 1891, the following order was signed:</p> <p>The appellant herein having moved to set aside the judgment of this court herein and for a rehearing, and for this purpose having procured a stay of remittitur; after argument of counsel it is</p> <p>Ordered, that the motion to' set aside the judgment and for a rehearing be and the same is hereby refused. It is further ordered, that the remittitur be forthwith transmitted to the court below. HENRY McíVER, O. J.</p>

<p>Indictment against Sharper Williams for arson. The opinion states the case.</p>

This was an action by W. P. Addison against Richard Duncan and A. J. Clinkscales. The appeal was argued January 8, 1891, before Justices McIver and McGowan, who ordered a re-argument. The reargument was had December 21, 1892. The opinion states the case.

<p>This was an indictment against Sullivan Vari for grand larceny. The opinion states the case.</p>

In this case, Hor.. Joseph J. Norton, Judge of the eighth Circuit, sat in the place of Mr. Justice McGowan, who had been of counsel in the cause. This was an action by Mary A. Pinson against Thomas R. Puckett, commenced December 22, 1890.

<p>This was an action by Samuel J. Drake and F. H. Story, trustees, against W. B. Whaley and J. M. Rivers, partners as Whaley & Rivers, commenced January 28, 1890: The opinion states the case.</p>

Indictment against William Lee for burglary and larceny. The facts of the case and the ruling of the Circuit Judge are stated in the opinion. The exceptions considered by the court were as follows: II.

Indictment for murder committed on February 2,1888. When the first Avitness for the State had finished her examination in chief, the judge presiding at the trial ruled that W. L. HoAvard must cross-examine in advance of the other defendants. A like order Avas followed in producing Avitnesses for the defence, but no 'question was raised on this point and no ruling made.

<p>In this case Hon. James Aldrich, judge of the Second Judicial Circuit, sat in the place of Mr. Justice Pope, who had been of counsel in the cause. It was an action by R. G. Williams, as surviving executor of John H. Williams, against G. S. Mower, as administrator of the estate of James W. Williams, deceased. The opinion states the case.</p>

In this cáse the Hon. Thomas B. Fraser, Judge of the Third Judicial Circuit, and Hon. James Aldrich, Judge of the Second Circuit, sat in the places of Mr. Justice McGowan disqualified by interest, and Mr. Justice Pope, who as attorney general had been of counsel in the court below. It was an action in the name of the State of South Carolina ex relatione The National Bank of Newberry, S. C., against Wallace C. Cromer, as county auditor of Newberry County.

In this case the Hon. T. B. Fraser, of the Third Circuit, and Hon. James Aldrich, of the Second Circuit, sat in the places of Mr. Justice McGowan, who was disqualified by interest, and Mr. Justice Pope, who, as attorney general, had been counsel in the matter.

This was a petition by the Bank of Marlboro for a writ of mandamus. The petition was as follows: To the Honorable J. IT.

Indictment against W. P. Bowers. This case was submitted on printed “Brief” and arguments. Mr. Justice Pope having been of counsel in the cause, took no part in the decision. The opinion fully states the case.

<p>Indictment against William Green. The opinion states the case.</p>

Indictments against R. L. Boyd and W: L. Tatem for selling whiskey without license.

Indictment against Hugh P. Price. The order appealed from was as follows: This case, in which the motion now before me has been made, is an indictment for a nuisance by damming up a stream of water forming a pond, and thereby causing sickness, At the term of the court held in April, 1890, there was a verdict of guilty rendered by consent of the defendant.

The record referred to in the opinion was as follows: State or South Carolina, T , ’ Lexington County. In Court of ¿sessions. THE STATE v. JORDAN ROBERSON. Indictment for highway roblery. True Bill: Jacob J. Derrick, Foreman.

This was an appeal by Thomas McGraw from a sentence of the court on his conviction of assault and battery with intent to kill. The jury retired to .their room to consider their verdict on the evening of February 19, and defendant was taken from the court room, and was not brought in again until next morning, some time after court had convened and only a few moments before the jury returned into court with their verdict.

The Circuit Judge, after defining to the jury in his charge murder, manslaughter, and self defence as general propositions, continued as follows: Now, let us consider some of the aspects of the case you are trying in connection with the principle that I have submitted to you. In the first place, the defendant says that he did not kill Sam Banister. That is a question of fact for you to settle.

<p>1. Earnings of Married Woman prior to 1887 belonged to her husband, and therefore a note and mortgage against the husband purchased by the wife with the proceeds of her own labor, and assigned to her, was thereby paid.</p> <p>21 Affirmative Relief among Co-Defendants. — Under complaint to foreclose mortgage, junior judgment creditors were made parties defendant, who answered asking a sale, but did not serve their answers on their co-defendant, the mortgagor. Held, that the mortgage having been adjudged paid, the court could not properly direct a sale of the promises to pay the judgments, such relief being beyond the scope of the complaint; especially where the mortgagor is not found to be insolvent.</p> <p>3. Findings op Fact by master and Circuit Judge approved.</p> <p>4. Husband and Wife — Fraud—'Preferences.—Dealings between husband and wife should be clearly scrutinized, and a Court of Equity will not aid a fraud. Nevertheless, where there is no proof of actual fraud and no return of nulla bona in proof of the husband’s insolvency, the court will not disturb a mortgage given by the husband to his wife in 1881 to secure an existing indebtedness.</p>

<p>This was an action by Thomas Nance against the Georgia, Carolina & Northern Railway Company, commenced in January, 1891. The opinion states the case.</p>

<p>1. Evidence — Lost Paper. — The contents of a deed cannot be given in evidence until its loss or destruction is first established. Reynolds v. QuaMlebum, 2 Rich., 144. But where plaintiffs claiming under an alleged lost deed prove its destruction, and give testimony as to its contents, and that B wrote it, and never wrote any other instrument for the alleged grantor, defendants may then prove by B that the only paper he ever wrote for such person was a will, and, for the purpose of identifying the admittedly lost instrument and giving its proper character to it, may testify as to its contents, without proof of any search for a will.</p> <p>2. Ibid. — Ibid.—The responsibility of determining whether the testimony adduced is sufficient to establish the loss of a paper is devolved upon the Circuit Judge.</p> <p>3. Exceptions. — Where the refusal to grant a new trial is not excepted to, a finding of fact by the Circuit Judge in his order of refusal furnishes no ground for an exception.</p>

<p>1. Rule on Purchaser — Specific Performance. — Where all the parties to an action for partition join in seeking by rule to compel the purchaser at a sale under an order in the cause, to comply with his bid, and the purchaser resists, the same principles of equity will be applied that govern the court in actions for specific performance.</p> <p>2. Ibid. — Ibid.—A purchaser at a sale for partition is entitled to have the title examined and reported upon by the master. If such investigation shows a reasonably clear and marketable title, specific performance will be directed, but if there is a rational doubt of the validity of the title, the court will not compel compliance.</p> <p>3. Construction of Deeds — -Intention.—In construing deeds, courts are bound to ascertain from the language employed in the deed the intention of the grantor, and then to give effect to such intention, if not repugnant to the law of the land.</p> <p>4. Trust Deeds — Fee.—A grantor in consideration of the regard he had for Mrs. II. and of §5, conveyed in 1829 to a trustee, his heirs and assigns forever, a house and lot of land in trust, to suffer and permit Mrs. II. and her husband for and during their joint lives and, upon the death of either, the survivor to occupy and enjoy said premises, and upon the death of the survivor, then in trust to be absolutely vested in such issue of their present marriage as may be living at the death of the survivor, to he held by them, if more than one, as tenants in common, with power to the trustee, at the request of Mr. and Mrs. II. or the survivor, to sell and dispose of the property and reinvest the proceeds subject to the same trusts. Held, that upon the death of Mrs. II., who survived her husband, the issue of their marriage then living took a fee simple title as tenants in common, according to the intention of the deed.</p> <p>5. Case Criticised — Limitation of Estates. — Bratton v. Massey, 15 S. C., 281, approved, and held to be applicable to the facts of this case; and under that decision the beneficiaries in a deed to a trustee, his heirs and assigns, with power of sale, will take the fee without the addition of the word ‘‘heirs,” in order to effectuate the intention of the grantor.</p> <p>6. Limitation of Estates — Power of Sale — -Words.—Th,e unlimited power of sale contained in the deed and the direction that the property should vest in the issue absolutely, disclose an intention that tho issue shall take the fee.</p> <p>7. Valuable Consideration — Reverter.—-The recital in a deed of a consideration of five dollars received estops the grantor and his heirs from claiming a reverter.</p> <p>8. Probate of Deeds — Recording—Presumptions.—Under the law of force in 1829, proof of the execution of a deed for the purpose of recording was to be made by the oath of one witness according to former practice, and from the records of that time it appears that the recording officer did not require the proving witness to sign the probate. Therefore held that an affidavit to a recorded deed not signed by the witness was a proper probate.</p> <p>9. Irregularities — Healing Order.- — An order of the court confirming a contract for sale made by the master through an agent employed by him and directing a deed to be executed to the purchaser, cured the irregularities of a previous order of sale made at chambers, of the direction for a private sale (which in this case was not improper), of the employment by the master of an agent to sell under the supervision of the attorneys, and of an order of reference prematurely made.</p>

<p>1. Service op Amended Pleading — Waiver.—It is the right of a defendant to have a copy of an amended complaint served upon him, but he may waive this right, and does waive it when he tells the plaintiff’s attorney that he does not wish to have a copy.</p> <p>2. Estate by Implication. — A testator by his will directed “that the plantation and stock and all things belonging to the same as it is subject to necessary changes to keep up the place as may be judged by my executor, and is to remain so during my wife’s life-time and after her death the property and money of my estate is to equally divided among my children that may be alive at that time.” Testator then provided for the custody of his children and named their guardians, who were “to receive and pay over for the benefit of what may be coming them of my estate.” Held, that the widow took an estate for life by implication.</p> <p>3. Ibid. — Powers.-—Held further, that there is nothing to show an intention to vest any estate in the executor, and nothing from which an estate in him could be raised by implication. A power given to him to make a deed of conveyance to a parcel of land which the testator had contracted to sell was a mere naked power.</p> <p>4. Quiet Enjoyment- — -Injunction.—The alienee of the widow is entitled during the life-time of the widow to the quiet and undisturbed possession of the land devised, and the court will restrain by injunction any interference by the children of testator with this right.</p>

<p>1. Supreme Court — Facts in Law Case. — This court has no power to consider alleged errors of fact committed by the Circuit Judge in refusing to set aside a verdict in a case at law.</p> <p>2. Testimony Received without Objection cannot be urged on appeal as error in the court below.</p> <p>3. Connected Crimes. — Defendant being charged with breaking into a store house of A, the State may introduce testimony to show that a store house of B in the same locality was also broken into on the same night.</p> <p>4. Charging Juries. — There is no error in refusing to charge a request which states a proposition of law that has no application to the facts in issue.</p> <p>5. Ibid. — Where a judge charges correctly in his own language the law declared by this court, it is not error if he neglects to charge a request upon the subject couched in the language of a decision of this court.</p> <p>6. Ibid. — Facts.—The judge cannot properly charge that circumstances relied on as corroborative of the testimony of an accomplice, are not sufficient corroboration, as the force of testimony is left wholly to the ju'T-</p> <p>7. Evidence' — Connected Crimes. — Defendants being charged with stealing from the house of A, evidence of the contents of a box found in defendant’s possession was admissible, even though it turned out that the goods in such box were goods stolen from another house on the same night.</p>

<p>This was an indictment against Sharper Williams for selling cotton covered by lien without consent of the lienee. Before pleading to the indictment, the defendant presented a plea as follows :</p> <p>In the Court of General Sessions on the 17th day of October, in the year of our Lord 1890.</p> <p>And the defendant, Sharper Williams, says, a grand jury of and for the County of Berkeley, in the State aforesaid, at a Court of General Sessions begun and holden in and for the said county and State, on the first Monday of October, 1890, found a true bill of indictment against this defendant, and presented him on their oaths as having disposed of cotton under lien to secure the payment of a sum of money to A. J. Mullinax, and otherwise committing an offence against the statutes of this State; that Abram S. Brown, A. J, Mann, Hamilton Rodgers, C. Deveaux were members of said grand jury, and not one of them is a freeholder in this county, and Abram S. Brown has paid but six cents taxes this year, 1890, which six cents is a tax for the fiscal year 1889 ; that R. H. Grimshaw was drawn and summoned on said grand jury, and he is an alien, besides not being a freeholder; that there was a deficiency in said grand jury in that Chas. H. Drayton, A. IT. Lucas, and T. D. Green did not serve on said grand jury, though they had been duly drawn and summoned for that purpose, nor were any good and lawful men nor any men drawn and summoned to fill the vacancies or deficiency in said grand jury, nor was any venire issued for that purpose, and this he is ready to verify.</p> <p>Wherefore he prays judgment of said bill of indictment, and that the same may be quashed.</p> <p>(Signed) SHARPER WILLTAMS,</p> <p>(Signed) CL AUDI AN B. NORTHROP,</p> <p>Attorney for Sharper Williams.</p> <p>[Verified].</p> <p>To this plea the solicitor demurred orally, and after some argument on the issues of law involved, by leave of the court, he was permitted orally to traverse one of the facts alleged in the plea in abatement, to wit, the allegation “that R. H. Grimshaw was drawn and summoned on said grand jury, and he is an alien.” No sworn testimony was introduced, and the judge decided the issues raised without the aid of a jury, none being demanded by the defendant. The demurrer was sustained and the plea in abatement overruled.</p> <p>The defendant then pleaded not guilty, and was tried by a jury. The State proved the lien and the sale of the cotton, but no testimony was offered to show that the sale "was without the written consent of Mullinax.</p> <p>The judge, charged the jury as follows:</p> <p>The defendant is indicted for disposing of his cotton crop which was under lien to Mr. Mullinax, and for failing to deposit the amount of the lien with the clerk of the court of the county. Ordinarily if those facts were made out to your satisfaction, the case would be proved. But you must be satisfied that there was a lien. A lien is a contract between the party agreeing to make the advances and the party to whom the advances are made, in writing and recorded within a certain time. And that contract must be entered into before the advances are made. If the advances were made before the lien, the party would acquire no lien at all. You have heard the subscribing witness testify, and if you are satisfied that this contract was entered into before any advances were made, then Mr. Mullinax acquired a lien on the crops made by this man on that land for that year, and the defendant could not dispose of that crop without the consent of Mr. Mullinax, or without paying the lien or depositing the amount of it with the clerk of the court within the ten days prescribed by law.</p> <p>You have heard the testimony as to whose place this was. You have heard it said that the defendant rented this land from his father in law. If you believe that testimony, I charge you that he was a tenant of his father-in-law; that his father-in law was his landlord, and that he had a right to sublet that land, and that he would have the first lien on that crop. The law gives the landlord the prior lien on the crops raised by the tenant during the year, in preference to all other liens. The second lien is the laborer’s lien, and the third lien in order of priority comes the merchant’s lien for advances. That stands last. The landlord’s lien need not be in writing at all. It is one of the most remarkable pieces of legislation probably ever enacted in any country, but it is the law. I charge you that if you believe the testimony on that point, this old man stood in the position of landlord to this defendant, and therefore under the law he would be first entitled to be paid his rent out of the crops raised on that place.</p> <p>You have heard the testimony as to the amount that was to be paid, and you have heard the old man’s testimony as to his understanding with Mr. Mullinax. That is a matter you are to consider. His testimony was that when he carried this note to Mr. Mullinax, lie told him to go and sell the cotton and pay his rent, and if there was any surplus to bring it to him. And you further heard him testify that the rent and expenses of sale consumed all the crop. That is a question of fact for you to decide. In case you come to the conclusion that there was any such contract between this party and Mr. Mullinax about selling the crops and paying the rent, &c., and there was any part of those proceeds that should have gone to Mr. Mullinax that did not go to him, then this party is guilty. But if you conclude that there was no portion of the proceeds, after paying the rent and expenses, which ought to have gone to Mr. Mullinax, then the defendant would not be guilty. If it was a dollar or fifty cents or two dollars which should have gone to Mr. Mullinax, and did not go to him, it would be as much a violation of the law' as if it had been a very much larger sum. The landlord’s lien is only for agricultural purposes and does not cover the houses.</p> <p>The jury brought in a verdict of guilty, and the court passed sentence on the 20th day of October, 1890, that the defendant pay a fine of $50 or be imprisoned in the State penitentiary for six months. A motion for a new' trial was made on the minutes and refused, and defendant appealed on the several grounds set forth in the opinion.</p>

<p>Action of foreclosure by James Munro, master, against C. R. Long. The Circuit decree, omitting its statement of the pleadings, was as follows:</p> <p>The issues were referred to William McGowan, Esq., as special master, who found the facts as above stated, except that the bond is for the unpaid balance of the purchase money, and not the whole. He further declined to find that defendant had not now a fee simple title, but assuming that he had only a life estate, he concluded, as matter of law, that this is not a case where relief can be had by the defendant, and that $1,132.24-100 is due on said bond to 4th January, 1890, tho date of the report, and also that plaintiff is entitled to judgment of foreclosure of the mortgage. To this report defendant filed seventeen exceptions, none of which need be separately considered, except the 3d, which is to the exclusion of defendant’s testimony as to the opinion-of the other children of William Long in regard to the title he (defendant) would purchase at said sale, and is founded on mistake, for the question propounded to the witness was, ‘’What was the opinion of the children of William Long, deceased, as-to what title you had purchased ?” a clearly irrelevant question. And the 3d exception is therefore overruled.</p> <p>The other sixteen exceptions are intended to bring out the findings of facts and the conclusion of law in the report, so as to sharply define the issue, whether the case develops such a mistake of law as entitles the defendant to relief in this court. I think the substantial and relevant facts are found according to the views of the defendant, and I concur with the special master in his conclusions of law, and these exceptions are overruled.</p> <p>I do not consider the doubt expressed in the case of Roundtree v. Roundtree (26 S. C., 468) as overruling the doctrine, that relief will be granted in some cases of mistake of law7, nor will the shadowy distinction between mistake of law and ignorance of law, said in Norman v. Norman (26 S. C., 48) to exist, have that effect. Two well considered cases, and only two, have been brought to my attention in which relief has been granted on that ground, viz.: Lowndes v. Chisholm (2 McCord Ch., *455) and Lawrence v. Beaubien (2 Bail., 623). They are consistent with and apparently founded on the rule laid down in Pomeroy’s Equity, sec. 849, that whenever a person is ignorant or mistaken with respect to his own antecedent and existing private legal right, &c., and enters into some transaction, the legal scope and operation of which he correctly apprehends and understands, for the purpose of affecting such assumed prior and existing right, &c., equity will grant its relief, &c.</p> <p>In the former case, the antecedent right of Chisholm rvas his ownership of a part of the debt, which he had reduced to simple judgment without foreclosure of the mortgage which secured it, and the remainder of the debt which he'had assigned and which was secured by the mortgage and by personal sureties; his mistake was in thinking that a sale on execution would give him a title good against that part of the mortgage which he had assigned, whereas it gave him only the equity of redemption ; his transaction was selling and buying under execution ; his purpose was to exchange his right for a fee simple title to the land. In the latter case, Beaubien’s antecedent rights were to hold the land until office found. He bought from Isaacs, who had no title. Because he was mistaken as to his own title ar.d as to Isaacs’ title, he gave up a title which was good, but which he was advised was bad, and bought a bad title. Caveat emptor is the general doctrine as to judicial sales made under order of court. It is true that in such sales in this State the officer is in some sense the agent of the parties, and while the absolute rule of caveat emptor may not apply as in forced sales, yet it is well settled that in judicial sales there is no implied warranty. ■ Mitchell v. Pinckney, 13 S. C., 210, citing Commissioner v. Thompson, 4 McCord, 434, and Rorer on Judicial Sales, 177.</p> <p>Contracts have been rescinded on the grounds of mistake, but not on the ground of mistake in relation to an outstanding title, when there has been no eviction of the purchaser. Whitworth v. Stuckey, 1 Rich. Eq., 404. Whitworth filed his bill against Stuckey, alleging that he had concealed from the plaintiff an encumbrance on land which he had conveyed with warranty to plaintiff; that the encumbrance was the will of Fraser, which gave his sons life estates, with remainder in fee to their issue; that defendant’s title was from life tenants who undertook to convey in fee. On the Circuit, Chancellor Harper decreed in favor of the defendant, on the ground that while a purchaser remains in quiet possession of land, he cannot sustain a bill for rescission or abatement of price on the ground of an outstanding title. He delivered the opinion in the Court of Appeals in equity, deciding the case for defendant on another ground, saying that it was unnecessary to decide this point, but using the following and other consistent language: “Then, as said by Chancellor Kent, what right have you to bring into court a party who has never pretended or asserted any claim in order to compel him now to assert it, or to renounce it forever ? As I have observed, it is in bad faith towards the vendor to stir up a claimant against his title.” Ib., 409. “The plaintiff does not state that he did not know of the existence and terms of John Baxter Fraser’s will; and if he knew of this, it is immaterial that he put a wrong construction upon it; or if defendant represented to him in the strongest manner that his title was good, only expressing his own opinion or conviction on the construction of the will, this would be no fraud.”</p> <p>It is adjudged, that there is due to the plaintiff' by defendant the sum of eleven hundred and thirty-two 24-100 dollars, with interest thereon from 4th January, 1890, as found by the special master in his report. The plaintiff is entitled to a foreclosure of his mortgage. And it is adjudged and decreed, that the mortgage premises described in the complaint in this action be sold at public auction, &c.</p> <p>From this decree, defendant appealed on eighteen grounds, which made only the two points considered by this court.</p>

<p>1. Oral Demurrer — Waiver.—Case Criticised. — An order framing issues of fact to be tried by a jury, does not prevent the defendant from afterwards demurring orally to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. Hull v. Young, 29 S. C., 64, approved and followed.</p> <p>2. Cause of Action — Partition.—A complaint that alleges the death of intestate seized and possessed of a tract of land, which had descended to his heirs at law, all of whom, except plaintiff and one defendant, had conveyed said land to defendant P, who is now the owner thereof, and demands partition, stated facts sufficient to constitute a cause of action against P, as the grantors in the deed to P could convey no more than their undivided interests, and of these interests only had P become the owner.</p> <p>3. Demurrer — Amendment—Case Criticised. — A complaint which has been held not to state facts sufficient to constitute a cause of action, may nevertheless be amended by leave of court, whore the defect consists in a faulty statement and not in an entire absence of any cause of action. Lilly v. Railroad Company, 32 S. 0., 142, explained and distinguished.</p>

This was an action for foreclosure of mortgage brought by the Land Mortgage Investment and Agency Company against Ben S. Williams. Upon the point involved in the appeal, the Circuit Judge ruled as follows : At the close of the plaintiff’s case, defendant moved the court for a non-suit on the ground that there was no proof of the corporate existence of the plaintiffs. The trial was directed to proceed’, judgment on the motion being reserved.

Action by R. A. Chafee against the Postal Telegraph Company. The opinion fully states the case. This case will turn upon the construction placed by the court on sections 165 and 423 of the Code of Procedure. It does not appear on the face of the complaint of what State the plaintiff is a resident, nor does it appear where the cause of action arose. Section 165 can only apply to the defendant — -that it is not subject to the jurisdiction.

<p>This was an action by Dora Madden against the Port Royal & Western Carolina Railway Company, commenced January 21, 1891. The opinion states the case.</p>

<p>1. Void Proceedings — Mortgage—Estoppel.—Under proceedings in the Probate Court for settlement of an intestate’s estate, his land was purchased by his widow and administratrix, who paid her bid by receipting to the probate judge for the amount due on her second mortgage and also due on the first mortgage of defendant, who consented thereto, taking at the same time a new mortgage from this purchaser. This widow afterwards made another mortgage to B, reciting that defendant’s mortgage was the only prior encumbrance. Subsequently the widow assigned her mortgage against intestate to plaintiff, he having been informed that it was satisfied, after which defendant purchased B’s mortgage and took titles from the widow to the land. In action by plaintiff for foreclosure, the defence was payment. Held, that even if the proceedings in the Probate Court were void, the widow and her assignee were estopped from asserting the mortgage which she once held against this land, and that the proceedings of said court were admissible to show that plaintiff’s mortgage was paid. The question of title is not involved.</p> <p>2. Evidence. — A conversation between defendant and the widow, before her assignment to plaintiff, leading up to the arrangement between defendant and herself, was competent evidence.</p>

This was a rule against James F. Redding, requiring him to show cause why he had not complied with his bid at a sale made in the case of Lyles v. Haskell. The rule was resisted upon the grounds set forth in the Circuit decree.

<p>Action by W. A. Branch, as administrator of W. L. Branch, deceased, against The Port Royal & Western Carolina Raihvay Company. The opinion states the case.</p>

This was an application by John D. Alexander to set aside a judicial sale made in the case of John D. Alexander against P. H. Messervey. The opinion states the case.

<p>Petition by J. H. Apeler. The opinion states the case.</p>

<p>1. Substitution of Trustee — -Parties.—Upon the death of a trustee, the Court of Common Pleas may appoint his successor on the ex parte application- of the cestui que trust.</p> <p>2. Ibid. — Ibid.—Purchaser of Trust Property. — To such a proceeding the parties in possession of the land, the subject of the trust, claiming it as their own under devise from B, who had purchased it as the property of the deceased trustee, are not necessary parties, as the sale of the trust property without notice to the equitable owners vested no title in B, even if the deceased trustee had undertaken to devise it as his absolute estate.</p> <p>3. Trusts — Adverse Holding. — Where one purchases a tract of land sold as the absolute estate of A, knowing at the time that A held it only as trustee for his sister and her children, the purchaser takes the land subject to the trust, and becomes himself a trustee, and cannot, while retaining possession, acquire title by prescription, or hold it under the statute of limitations without clear proof of adverse possession. The mere retention of possession of land, subject to a trust, is not adverse to the cestuis que trust, nor are they debarred by laches from asserting their rights because of their non-action for the space of 20 years.</p>

<p>1. Findings op Fact by master and Circuit Judgo that a deed was without full consideration, and was made with intent of both parties to it to delay, hinder, and defeat the creditors of the grantor, approved.</p> <p>2. Badges op Fraud — Burden op Proop. — When a deed is made by a failing merchant to a kinsman within a few days after notification that creditors are about to sue, the grantee having been sent for at a distance of 30 miles, but his arrival not awaited, and the alleged consideration being a prior advance by the grantee to grantor when she (the grant- or) had purchased the land, and a verbal promise at that time to make such conveyance, if the grantor failed to make payment of balance due by her to her vendor (such balance not having yet matured), the court will require the fullest, clearest, and most satisfactory evidence of good faith on the part of the parties, whenever the bona Jides of the transaction is called in question.</p> <p>3. Fraudulent Deed — Creditors.-—-A deed made and received with the intent to defeat, delay, and hinder creditors of the grantor, is fraudulent and void as to creditors, even if based upon a valuable consideration.</p> <p>4. A General Exception considered in the absence of objection by respondent to its consideration.</p> <p>5. Common Source of Title. — In action to recover real property, plaintiff need not prove his title further back than to the common source from which both parties claim. Defendant's failure to prove'any title in himself from such common source does not relieve him from the consequences of his admission of good title in the common source.</p> <p>6. Deference of all Issues — Judgment.—All the issues having been referred to the master, who reported the deed in issue to be fraudulent and void, but made no finding as to plaintiff’s right of possession, the Circuit 'Judge, in confirming the master’s report, did not err in directing possession to be surrendered to the plaintiff.</p> <p>7. Ibid. — Waiver of Jury Trial. — A jury trial is waived when both parties consent to an order referring all the issues of law and fact to the master to be heard and determined.</p>

This was an action by B. O. Pennington against the Atlanta & Charlotte Airline Railway Company, commenced August 23, 1889. The complaint was as follows: Plaintiff alleges: 1.

Action by George Rumph against Joseph Hiott and others, for the recovery of a tract of land, commenced May 17, 1890. The judge charged the'jury as follows: ‘ This is an action brought by the plaintiff, Mr. George Rumph, against Mr. Josiah Hiott and others, for the purpose of recovering certain real estate described in the complaint, and damages for withholding the possession thereof.

<p>1. Married Women's Contracts — Innocent Endorsee. — Where a married woman made her promissory note in terms that show that it was made with reference to her separate estate, an innocent endorsee for value before maturity has a right to rely upon the statements in the note, and the maker is estopped from denying them against such endorsee, unless she proves that he knew them to be untrue. Knowledge by the payee will not affect the endorsee.</p> <p>2. Evidence. — Where a party purchases fertilizers from the agent of a guano company, and gives a promissory note in payment to the agent in his own name, who transfers it to another by endorsement, in action by the endorsee against the maker — testimony as to whether the agent had settled with his principal, is irrelevant.</p> <p>3. Parers in Jury Room. — -There is no error in permitting the note in suit, with a calculation of the interest due thereon, to be taken by the jury into the jury room.</p>

Action by W. M. Sherard against The Richmond & Danville Railroad Company, commenced in June, 1889. The opinion sufficiently states the case, but this case should be read in connection with the next succeeding case of Spellman against the same defendant.

<p>This was an action by Francis A. Spellman against the Richmond & Danville Railroad Company. To prove the letter of Mr. D. Cardwell, referred to in the opinion, plaintiff offered J. A. Brock as a witness, who, after examining the'letter, said that it was type-written, but the letter Z written at the bottom, he thought, was the handwriting of Mr. Zealy, clerk in Cardwell’s office. Plaintiff himself testified that it was received in answer to a letter to Mr. Cardwell asking for an extension of the ticket; that on asking the ticket agent at Newberry for the extension, the agent “said, ‘Have you not a letter from Mr. Cardwell?’ and I presented this letter through the window, and he took it and walked back to a file and examined some letters and came back and made that change on the ticket with pen and ink, and he handed them and the letter to me, and I purchased two new tickets, one for the doctor and one for Mr. Beatty.”</p> <p>Mr. Motte,- the conductor, defendant’s witness, being on the stand, the court ruled that if there was a printed regulation governing the extension of tickets, it must be produced, and defendant excepted. Afterwards this same witness was asked, “What would be the result to you if you had taken that ticket as it was ?” and he answered, “There is no rule, but there is a custom, and that is, that I would have to pay the fare.” He was then asked, “Would that have been the result of this ticket.” Objection was made and sustained, and defendant excepted.</p> <p>The judge charged the jury as follows:</p> <p>Gentlemen of the Jury: The plaintiff here, Mr. Spellman, has sued the Richmond & Danville Railroad Company, alleging that he was a passenger on the Columbia & Greenville division of said railroad June 4th, 1889, and that he was improperly ejected by the conductor, Captain Motte, and that by such ejectment he was damaged $2,000. The first question, gentlemen, is admitted: that the Richmond & Danville R. R. Co. was operating the Columbia & Greenville R. R., and they admit through their pleadings that he was put off by their conductor.</p> <p>The first question is in regard to this ticket: is it a good ticket or is it not ? The law is, that one who purports to be a passenger must either have a ticket or else he must pay his fare. The railroad company alleges that Mr. Spellman never had a ticket nor did he pay his fare. There is no dispute between the witnesses that the conductor, Captain Motte, asked the plaintiff to pay his fare and that he refused to pay his fare, and that question will not trouble you, I suppose. But the plaintiff alleges that he had this ticket, or one just like it, and that the ticket is a good ticket, and he alleges that the ticket is in proper form giving him the right to ride from Newberry to Anderson, according to the face of the ticket, and on the 4th of June, 1889. The plaintiff alleges that he presented this ticket and that it was rejected ; the question is as to the validity of it. You will observe that this ticket is marked coupon returning, that it has upon its back the stamp purporting to be the stamp of the Anderson office here, audit says: “Richmond & Danville R. R., good for one passage only on trains stopping at destination from Newberry to Anderson;” then comes the disputed point: “May 31st” is one and £1June 30” is the other, and “no stop over allowed,” and signed by the passenger agent, James L. Taylor.</p> <p>You have heard the testimony in regard to the proper form of railroad tickets. It is alleged in the pleadings and admitted in the answer, and therefore is to be taken as true : That this ticket was a good .ticket until the 31st of May, 1889, and the allegation is that it was a genuine ticket up to that time, and that the alteration was made by an agent of the railroad company at New-berry wfith the intent to change the date on which it was permissible for the plaintiff to return to Anderson upon this ticket; that an agent represented to the plaintiff that this was the proper mode of changing. The first question then, gentlemen, for your consideration: Was the agent authorized to make the change ? The plaintiff presents to you what purports to be a letter from Mr. Cardwell, authorizing the agent to make an extension of the ticket. The complaint alleges, just as I have stated to you, that it was represented by the agent to the plaintiff that this was the proper alteration; it is alleged by the answer that the authority was given to make such a change on the ticket, but that it was never executed, thereby denying that this is such a ticket as would authorize the return to Anderson upon it on the 4th of June.</p> <p>Now, you have heard the testimony in regal’d to what it takes to extend a ticket so that one can ride on it afterwards. We have heard nothing in the testimony in regard to a change of dates. That question seems to have been ignored, but only the testimony was offered as to what would be a proper form. You are to judge from that testimony whether this ticket was in the form required — whether any particular form was required; and whether, if no particular form was required, it is sufficient to indicate to the conductor or any one else that the holder was entitled, to pass over the road on the date which is written upon it after the first riding, that is, on June 4th; if so, then you would go one step further and you would inquire whether or not the plaintiff was ejected from the cars. Then in that connection you would inquire what the manner of the ejectment was.</p> <p>It is not in every case that the plaintiff, when he is entitled to recover, is' entitled to recover more than compensatory damages, that is, damages that will compensate him for the injuries which he has sustained by reason of some wrong done him. There are cases, however, where the plaintiff is entitled to recover smart money— punitive damages. Where, for instance, in this particular case, if the plaintiff is entitled to recover at all, you will inquire whether there was wilfulness, whether there was malice, whether there was unnecessary harshness, and all of the circumstances accompanying the ejectment from the cars to determine whether or not punitive damages ought to be given. If you should conclude that punitive damages ought to be given, then you ought to inquire what amount would compensate him for the injury he has sustained. If, however, you should come to the conclusion that there was a wilful invasion of the plaintiff’s rights, that he had a good ticket, was entitled to be upon the cars, was entitled to ride upon this ticket from Newberry to Anderson, that he was put off wilfully and without just excuse on the part of the conductor; you take all of the circumstances in the case into consideration and see whether he ought or ought not to have what is known as punitive damages.</p> <p>You take into consideration also, in forming your verdict, the fact that this ticket presented in this way is written over. Illustration of the law was used by counsel on either side by reference to a bank check. The difference between the presentation of a forged bank check and the presentation of this ticket to the conductor is this: the holder of a bank check, if he is unknown, must be identified; but this ticket does not appear to be the property of any particular person, and if it was a good ticket, it was good for Mr. Spellman, so long as he behaved himself, to ride upon it between these two points on that day; it makes no difference who held it. If it was a forgery, and it had been written without the authority of the railroad company, and he had presented it to the conductor, then the conductor would have been justifiable in excluding him from the cars, because it would then have been a ticket which had expired three or four days before, that would not entitle him to ride, and the forged ticket would not entitle him to ride on it.</p> <p>The conductor therefore determined at his peril whether to let him ride or not, because if it was a forgery he was responsible to the railroad company for letting a passenger ride on a ticket that was not a good ticket. If it was good, he would be responsible to a passenger for refusing to allow him to ride on it. So, in either event, a responsibility was resting upon the conductor, whichever he did. Just as a cashier would pay a forged check at the peril of the bank. Or if he did not cash it and it was genuine, it would offend the holder of it. That is the difference between these two cases, and that is a circumstance to be weighed along with the other circumstances in this case. If the ticket agent had wilfully made this ticket out wrongfully, of course, that would be an element w7hich would be considered by you in adding to the damages against the railroad company, but it is no excuse for the conductor; it would be no excuse for the railroad company that a passenger had a ticket that was wrong, if it was wrong by reason of the mistake of the agent at Newberry. Where a passenger pays his money for a ticket, and by some oversight of the ticket agent some formality is omitted, and if by reason of the omission of that formality the conductor should eject a passenger from the train, alleging that he had no ticket, the conductor would not be excused for having made the ejectment.</p> <p>But you are to take all of the circumstances into consideration and see whether there was an intentional or wilful violation of the rights of the plaintiff, and if there was an intentional and wilful violation of his rights, then you would give much greater damages than if the violation of his rights was purely unintentional; and if you should come to the conclusion that the ticket was wrong, but that it was wrong through the mistake of the agent at Newberry, and that the conductor, so far as what he did was right in the ejectment, yet the ejectment was attributable to the company, whether the fault tvas the fault of the conductor or the ticket agent, the company Avould be equally responsible for the mistake of the one or the other. But you must take all of the circumstances into consideration, and you are to judge of the fault of the company just as you would judge of the fault of the individual.</p> <p>I do not know that I can help you any farther. It is not material what the plaintiff or the conductor believed Avas the liability of the parties after the transaction. That could have no influence Avith you in forming your verdict, except so far as it influenced you to believe that the parties had knorvledge of right or Avrong at the time of the transaction. Some allusion tvas made as to putting off at a- station. The law entitles a conductor to put a passenger off at any place, Avhether it Avas a station or not, and you can take that into consideration, so as to add to or diminish from the amount of damages you may find. Allusion has been made where a. verdict Avas found in a reported case of $3,-000 for putting off of a railroad train. I mention that, as it Avas argued to help you to come to a conclusion in this case. The circumstances in that case have not been all developed in this case. The statements that you believe in the testimony avíII be your guide in coming to a conclusion in this case as to the amount of damages that the plaintiff will be entitled to recover, if he is entitled to recover at all.</p> <p>Mr. Orr: The only evidence of a passenger’s right to ride is the passenger’s ticket.</p> <p>The Court: I have already charged you that, gentlemen, that if this was a good ticket, and presented, it authorized the person to ride upon it; if it was not good he could not ride upon it; if it is a good ticket it is a ticket, if it is not a good ticket ic is not a ticket.</p> <p>Mr. Orr: I would ask your honor to charge as to the material part of an alteration.</p> <p>Mr. Murray: If it was shown that it was authorized by the party making the alteration, that does not vitiate it.</p> <p>The Court: If there was no authority to make the change it would be no ticket, it would be a forgery and invalid. It devolves upon the plaintiff to prove that, and it is for you to say whether he has proved it. If it was authorized it would be a good ticket, if it was not authorized it would be a bad ticket.</p> <p>Yerdict was for plaintiff for $600, and defendant appealed.</p>

This was an action by Elizabeth Samuels, widow, against the Richmond k Danville Railroad Company, commenced February 20, 1891. The judge charged the jury as follows: The law of this case, as I understand it, is very simple and may be comprehended in a very brief charge. A great deal has been said which may tend to distract your minds and get you away from the true issues in the case. But the law to my mind is very simple and plain.

<p>This was an action by Aiken County against Joseph E. Murray and the sureties on his official bond as county treasurer, for the recovery of county and school funds collected by Murray and never paid over. Two of the sureties demurred to the complaint on the grounds that it did not state facts sufficient to constitute a cause of action ; that there is a defect of parties plaintiff, as the action should be prosecuted by the State of South'Carolina upon the relation of the party complaining; and that the plaintiff has no legal capacity to sue, as the school fund belongs to the various school districts and the county fund to the county commissioners. The demurrer was overruled by a short order and the defendants who had demurred appealed.</p>

Action by M. Levi against Michael J. Blackwell et al. The decree of the Circuit Judge was as follows : This cause came on to be heard before me at the June term of the Circuit Court at Manning.

<p>Action by F. H. Schlapbaeh against the Richmond & Danville Railroad Company, commenced May 8, 1889. The opinion •states the ease.</p>

<p>Action by William T. Shumate against Gilly Harbin, B. D. Harbin, and Michael J. Roberts. The Circuit decree was as follows :</p> <p>This case came on to be heard before me at the regular July term, 1890, of the Court of Common Pleas for the County of Greenville aforesaid. The pleadings being read, the counsel for the defendant moved to dismiss the complaint, on the ground that it did not state facts sufficient to constitute a cause of action. I concluded to hear the whole case, reserving my judgment on this motion.</p> <p>The testimony was taken in open court. The plaintiff was examined and his testimony tends to sustain the allegations of the complaint. The view that I take of the case will not require the testimony to be set out in detail. Upon examining the complaint, I find the following facts alleged, as constituting the plaintiff’s cause of action : That the plaintiff is a contractor and builder doing business under the firm name of W. T. Shumate & Co. On June 5th, 1880, Gilly Harbin, mother of Michael J. Roberts, by a former husband, bought a lot in the city of Green-ville, paid for it, and had the title made to her said son in fee. The deed was duly recorded. At this time Michael J. Roberts was a minor about four years old., In January, 1887, the house upon said lot being old and almost uninhabitable, could not be rented, and the property was wholly unproductive and heavily taxed. During said month and year, Gilly Harbin and her husband contracted with the plaintiff to rebuild and repair the old building on said lot, and to furnish the material and labor for the purpose, at the price of $162. Subsequently they made a contract for additional work at an agreed price of $22.50, the whole aggregating $184.50.</p> <p>Plaintiff made the repairs and put the house in good condition, and it has been occupied ever since, part of the time by the defendants, balance of the time by tenants of Gilly Harbin, at a good rental. Michael J. Roberts being a minor with no guardian at the time of making the contract and doing the work, plaintiff supposed that property to belong to Gilly Harbin, but afterwards learned that it belonged to Michael J. Roberts, who was a minor, and that his mother and her husband were acting for him. No part of said bill has been paid except $35. Gilly and her husband owned no property in this State at the time the work was done nor since, and they and Michael J. Roberts are non-residents. Michael J. Roberts is still a minor under fourteen years. Said repairs and improvements were necessary for the preservation of the property and to render it remunerative, and were for the benefit of the minor’s estate.</p> <p>The complaint seeks to subject the house and lot of Michael J. Roberts, minor, to the payment of the debt alleged to be due to the plaintiff for rebuilding and repairs. The cause of action alleged in this complaint grows out of the contract made between the plaintiff and the defendants, Gilly Harbin and her husband, with reference to the repairs of a house upon the lot of the defendant, Michael J. Roberts, a minor. I think it may be safely asserted that the complaint states no cause for action against the defendant, Michael J. Roberts, nor against his mother, Gilly Harbin. The complaint alleges that Michael J. was, at the time of making the alleged contract, and is now, a minor under the age of fourteen years, and that Gilly Harbin, his mother, was at the time of making the alleged contract, and is now, a married woman. There is no pretence whatever that the minor made any contract with the plaintiff, and the mother being a married woman, could not make a contract of the nature set out in the complaint, so as to bind herself individually. The defendant, B. D. Harbin, might make such contract, and bind himself individually, but we fail to see anything in the facts of the case, as alleged or proven, which would authorize him or his wife to bind the estate of the minor, Michael J. Roberts, either at law or in equity. Even if all the defendants were residents of this State, we are satisfied that the complaint does not state facts sufficient to constitute a cause of action against the defendants, or any or either of them, and that the complaint should be dismissed.</p> <p>But I go further. I think the complaint should be dismissed as to the defendant, Gilly Harbin, and her husband, B. D. Harbin, for want of jurisdiction as to the persons of the defendants. The complaint alleges that all of the defendants are non-residents, and that at the time of the making of the contract, the defendants, Gilly Harbin, and her husband, B. D. Harbin, had no property in this State, nor have they had any in this State since that time. “Civil actions in the courts of record of this State shall be commenced by a service of a summons.” Code, § 148. Section 156 of the Code provides for the service by publication of non-resident defendants. The publication could not certainly have been asked under either subdivision 1 or 2 [of section 156]. The case presented here could only come within the provisions of subdivisions 3 or 4, if within any. Did the case presented here fall within subdivision 3 ? To fall within this subdivision, the defendant must have property in the State, and the court must have jurisdiction of the subject of the action. These two things must concur. Now, the complaint shows on its face that the defendants, Gilly Harbin, and her husband, B. D. Harbin, had no property within this State, therefore they could not be made parties by publication, admitting that the court had jurisdiction of the subject of the action. The complaint itself shows that the court has no jurisdiction over the persons of the defendants. As was said in Pennoyer v. Neff, 95 U. S., 731: “The tribunals of one State have no jurisdiction over persons beyond its limits, and can inquire only into their obligations to its citizens, when exercising its conceded jurisdiction over their property within its limits.” Taking it for granted that the subject of the action here is the subjecting of the real estate of Michael J. Roberts, in this State, to the payment of the alleged contract for repairs, and that as to him, the court might acquire jurisdiction from service by publication, yet we have seen that complaint states no cause of action against him. The same result would follow if the service by publication is considered with reference to the fourth subdivision of section 156.</p> <p>It is therefore ordered and adjudged, that the complaint herein be dismissed with costs.</p> <p>The plaintiff appealed on the following exceptions: 1. His honor erred in holding that the complaint does not state facts sufficient to constitute a cause of action. 2. His honor erred in misconceiving the plaintiff’s cause of action ; plaintiff is seeking a judgment in rem, as will be seen by inspection of the complaint. 3. His honor erred in holding that plaintiff’s complaint did not state facts sufficient to constitute a cause of action against the defendants or either of them. 4. His honor erred in holding that the court had no jurisdiction of the persons of the defendants, or either of them ; all of them having answered. 5. His honor erred in deciding that there was nothing in the facts, alleged or proved, which authorized either Gilly Harbin or B. D. Harbin to bind the estate of the minor, Michael J.' Roberts, either at law or equity. 6. Because his honor erred in not holding that the contract for improvements upon the real estate of the minor, Michael J. Roberts, was such as the Court of Equity would in the first instance have authorized, and in not holding further that said contract having been entered into and the improvements made without such authority, the Court of Equity should now ratify the same and grant the plaintiff the relief asked for. 7. His honor-erred in not giving the plaintiff a judgment against B. D. Harbin, even taking the view of the case he did.</p>

<p>1. Equitable Conversion. — Land directed by a testator to be sold by his surviving executors after his widow’s death and the proceeds distributed, becomes personalty at the death of the widow.</p> <p>2. Warranty — Heirs—Estoppel.—A widow, who was also life tenant and executrix, and to whom her testator’s insolvent estate is largely indebted for advances made by her in course of administration, having no power of sale, conveyed with general warranty a lot of her testator’s land, and then died, leaving as her heirs the issue and heirs of their father, her testator. These parties, as heirs of their father, brought action at law to recover this lot of land from their mother’s grantee, and it was adjudged that,they wore entitled to two-thirds part thereof. They then brought action in equity for partition. In this second action held, that as their father’s estate was insolvent by reason of a large debt duo by his estate to their mother, of whoso estate these parties were also distributees, and as such' liable under their mother’s warranty for any deficiency in her grantee’s title, the court, to prevent circuity of action, will declare an estoppel and dismiss the complaint.</p>

Action by Calvin Brice & Co. against Elizabeth Miller. The charge to the jury was as follows: This action is founded upon two notes; notes which the defendant here, Mrs. Elizabeth Miller, does not deny that she made. She made those notes, together with the mortgages of which they are a part, and delivered them to Brice & Co., who are the plaintiffs here.

<p>1. Findings of Fact — Proof of Services Rendered. — This court rarely disturbs a finding of fact by a master in an equity cause concurred in by the Circuit .Judge. Where a party claimed compensation for services rendered during a period of eighteen years to a person now deceased. without any evidence of an agreement during all that time, this court approved the finding of the court below, that the claim was not established.</p> <p>2. Payment by Will. — A declaration of an intention to compensate by will for services performed, is not an acknowledgment of indebtedness, which may be enforced against the intestate estate of the declarant.</p> <p>3. Ibid. — Quantum Meruit. — Nor can it be relied on to imply a contract in an action claiming remuneration in the nature of a quantum meruit.</p>

This was an action by John McFall and James T. McFall against Mary O. McFall, Sarah McFall, in her own right and as executrix, and others, commenced October 4, 1888. It was heard by the Circuit Judge on testimony reported to the court by the master without any findings. The opinion states the case.

<p>1. Appeals — -Jurisdiction.—This court has no jurisdiction to review findings of fact by the Circuit Court in a law case heard by that court on appeal from a trial justice's court.</p> <p>2. Ibid.- — Ibid.—But the Circuit Court has power on appeal to review and reverse errors of fact in a trial justice’s court.</p> <p>3. Appeal prom Trial Justice. — Whether an appeal lies to the Circuit Court from an order of a trial justice granting a new trial, is not properly before this court where the question was not raised before the Circuit Court by motion there made to dismiss the appeal, or made a ground of appeal to this court. But an appeal is allowed by law to the Circuit Court from such an order of the trial justice.</p> <p>4. Ibid. — Word Defined. — -The word “judgment," as used in the chapter of the Code of Procedure regulating appeals from an inferior court, is used in its popular sense, and is not limited to the “final determination of the rights of the parties in the action.”</p>

<p>Action by Munroe & Everett against Williams & Turley. The case came to this court upon the following grounds, alleging error in a judgment of non suit: 1. Because his honor erred in granting the non-suit on the ground that the plaintiffs on their proof were not entitled to recover under the first or second cause of action in the complaint. 2. Because his honor erred in granting the non-suit, when there was testimony supporting both causes of action which should have been submitted to the jury. 3. Because his honor erred in granting non-suit when the complaint set up legal causes of action, and the testimony clearly entitled the plaintiffs to recover. 4. Because his honor erred in granting the non-suit on the ground that the plaintiffs did not show a contract made by the plaintiffs as a firm with the defendants. 5. Because his honor erred in granting the non-suit on the ground that the plaintiffs’ testimony did not show performance of the contract on their part. 6. Because his honor erred in granting the non-suit on the ground that the proof made as to first cause of action was not sufficient to submit to the jury. 7. Because his honor erred in granting the non-suit on the ground that the allegations contained in the second cause of action were insufficient in not alleging the copartnership of plaintiffs and defendants. 8. Because his honor erred in granting the non suit on the ground of insufficiency of allegation in second cause of action, or on a motion for non suit, when the objection should have been made by demurrer and no such was made. 9. Because his honor erred in not allowing plaintiffs to amend second cause of action by inserting deficient allegation according to his holding. 10. Because his honor erred in granting the non-suit when there was no legal grounds justifying such a judgment in the case.</p> <p>The defendants gave notice that in case the Supreme Court comes to the conclusion that there is error in the position taken by the presiding judge in granting the order of non-suit, they will insist that the judgment of the Circuit Court should, nevertheless, be affirmed on other grounds taken and urged by the defendants at the hearing of the case, to wit: 1. Because the testimony adduced by the plaintiffs shows that the plaintiff, D. II. Everett, has no title to the lumber, or any right to any part of the money claimed by plaintiffs. 2. Because no partnership was shown to exist between the plaintiffs. 3. Because no proof was made of any partnership between the defendants. 4. Because no partnership was shown to exist between plaintiffs at the time of bringing action. 5. Because there was no proof made of the agreement alleged in the first cause of action. 6. Because there is no allegation of co partnership as to either plaintiffs or defendants in the second cause of action. 7. Because plaintiffs cannot contradict by oral proof the alleged contract between plaintiff N. C. Munroe and the defendants, set out in their first cause of action, and show that it was made with the plaintiffs. 8. Because the agreement alleged in the first cause of action in the complaint contains a conditional sale of the lumber by Munroe to defendants, and the supposed rights of plaintiffs under said agreement cannot be enforced in this form of action.</p>

<p>1. Accounting — -Administrator—Res -Judicata. — A debtor gave to his two sureties, A and B, a second mortgage to secure them against the payment of his note, and afterwards died. His administratrix instituted action for settlement of her intestate’s estate, and these two sureties were made parties. The administratrix fully accounted, but the holder of the note, although he proved his claim, received nothing, and this second mortgage -was not reached. The judgment in favor of the creditors was never enrolled, but the case was marked ended and stricken from the docket. Afterwards, A paid the note and B repaid half of the debt to A, and then sued the administratrix for the amount paid by him. Held, that the former action was a bar to any accounting prior to the decree in that cause, but the administratrix not having been discharged from her office and trust, the plaintiff in this cause, whose rights accrued to him after his payment, was entitled to maintain his action and to recover judgment against the administratrix'for assets quando aceiderint, which in itself admits a full accounting up to the date of such judgment.</p>