Volume 37 — South Carolina Reports

Before Wallace, J., Newberry, November, 1890. This was an action by S. J. Kohn & Co. against the Richmond & Danville Railroad Company, to recover damages for the wrongful conversion of personal property. The trial justice before whom the action was tried gave judgment for twenty-six 29-100 dollars in favor of plaintiffs, and on appeal to the Circuit Court, this judgment was affirmed. Defendant then appealed to this court.

Before Witherspoon, J., Spartanburg, January, 1891. This was an action by the Kauffman Milling Company against J. K. Stuckey. The judge charged the jury as follows: Now, where is the burden in this case? The plaintiff alleges that he sold the property, the flour, at a certain price, a certain quantity, and the defendant admits that he has not paid for it. He comes in affirmatively, and takes upon himself the burden of showing why he ought not to pay for it.

Before Wallace, J., Charleston, August, 1891. Held: that “there is no proof of marriage between William Robb and Jean McFarlane,” and the question whether there was proof of marriage or not, is a question for a jury. 16.

<p>1. Undertaking—Damages—Costs.—The obligors to an undertaking by defendant to pay “any damages that may be awarded against” him in an action of claim and delivery, are not liable for the costs adjudged to be paid by the defendant in that action, as the word “damages” in such an undertaking do not include costs.</p>

Before Izlar and Wallace, JJ., Berkeley, December, 1890, and June, 1891. This was an action by Ophelia Reed, as administratrix, against the Northeastern Railroad Company, commenced October 4, 1890. In granting an order sustaining a demurrer to the complaint, Judge Wallace said: I have been thinking about this matter since the argument was suspended yesterday afternoon, and it is one of very great perplexity to me. It is an exceedingly nice question.

Before Aldrich, J., Beaufort, September, 1890. Tbis was an action by John Stickley against the Mobile Insurance Co., commenced Aug. 3,1889, to recover under a contract of insurance for a loss by fire. So much of the complaint as set forth the contract, loss, and proof of loss, was as follows: III. That on and before the 14th day of June, 1888, the plaintiff applied to Chas.

Before Izlar, J., Aiken, April, 1891. John B. Gardner died intestate, survived by a widow, Anna, who intermarried with S. E. Mays, and by two children, J. EL Gardner and Emma E., who intermarried with Bird. Mrs. Mays had one child, Susan, by her second marriage.

Before Hudson, J., Marlboro, January, 1891. These were two attachment proceedings by Neill C. Munroe and Munroe & Everett against Williams & Turley. The appeal was from the following order, refusing to vacate the warrants of attachments: The arguments in support of and against this motion were elaborate and instructive, and merit a more extended notice at my hands than is here given.

Before Izlar, J., Barnwell, March, 1891. Action by Savannah E. Bates against the American Mortgage Company of Scotland, Limited. Held: however, that if the sale, which it is sought to restrain, is such that in an action of ejectment brought by the purchaser under the sale, the real owner of the property would be obliged, to offer evidence to defeat the recovery, then such a cloud would be raised as to warrant the interference of equity to prevent the sale.” The…

Before Wallace, J., Abbeville, January, 1891. Action by Sarah J. Martin and A. T. Armstrong against C. F. Bowie, J. A. Bowie, and F. A. Spellman, for the recovery of a tract of land, commenced September 7, 1889. One of the deeds in plaintiffs’ chain of title was a deed from J. A. Williams to J. N. Carwile, and the grantee was sworn as a -witness, and testified that both witnesses to the deed were dead, and that he saw both of them sign their names thereto as witnesses.

Before Wallace, J., Greenville, March, 1891. This was an action by J. P. and J. H. Latimer, as executors of the will of Hewlett Sullivan, deceased, against John D. Sullivan. The opinion states the case.

Before Witherspoon, J., Lancaster, Action by William J. Cunningham and others, distributees of the estate of Joseph A. Cunningham, deceased, against Lewis J. Cauthen, administrator of Andrew J. Kibler, who had been administrator of the said Joseph A. Cunningham, commenced August 17, 1883.

Before Kershaw, J., Spartanburg, July, 1891. Action by C. P. Sanders, as executor of Allie Lipscomb, against S. M. Bagwell, administrator of W. H. Bagwell, commenced in April, 1888.

Before Witherspoon, J., Abbeville, June, 1891. Proceeding by Mary Hughes aud others against Hannah Kirkpatrick and others, commenced in August, 1890, in the Court of Probate, for the settlement of the estate of Mrs. Jane Taylor. Mrs. Taylor’s will was as follows: I, Jane Taylor, being sound in mind and memory, but realizing the uncertainty of life, do hereby make and ordain this to be my last will and testament, hereby revoking and annulling any other heretofore made: First.

Before Norton, J., York, April, 1890. This was an action commenced in February, 1888, by James R. Kennedy, as probate judge for York County, against Mary L. Adickes, executrix of EL F. Adickes. The opinion states the case.

Before Hudson, J., Darlington, November, 1890. This was a petition to the clerk of court by M. A. Brown to have a homestead allotted to her out of the estate of her deceased husband, W. H. Brown. Due notice was published and appraisers appointed, who made return, setting aside to petitioner a tract of land of her deceased husband, valued by them at $480, and personal property of the value of $499.50.

Before Norton, J., Abbeville, October, 1890. This was an action by James H. Cheatham against B. L. Morrison and Basil Manly, sureties on a rexilevin bond, commenced September 8, 1890. The judge charged the jury as follows: Gentlemen of the jury: The facts that have been testified to in this case are these: that the defendants here, with M. M. Sea-wright, gave a bond to rexilevy some x:>rox:>erty which was taken under an agricultural warrant.

Before Kershaw, J., Abbeville, October, 1891. This was an action commenced by Butler W. Cobb against the Columbia and Greenville Railroad Company, on August 27, 1891, to recover damages for the value of a horse belonging t.o plaintiff, and alleged to have died from injuries received in running away when hitched to a plow and at work near the road-bed of defendant on May 19, 1891, plaintiff alleging that the horse had been frightened and caused to run by the unnecessary,…

Before Hudson, J., Abbeville, January, 1892. This was an action by C. L. Montague & Co. against Ina H. Stelts and others. The master’s report, omitting his recital of the notes, bond, mortgage, and agreement, which are sufficiently stated in the opinion, was as follows: The rent contracts were accordingly delivered to the attorneys of Montague & Co., but there was no written assignment of them.

Before Fraser, J., Fairfield, September, 1891. Held: can in any way interfere with all other legal or equitable remedies which the creditor does not release. The case would not be the same where the rights of other creditors, holding liens at the time of the release, are involved, which is not the condition of things now before me.

Before Wallace, J., Abbeville, January, 1891. This was an action by Mein hard Bros. & Co. against J. T. Youngblood, Witz, Biedler & Co., Hurst, Purnell & Co., and W. D. Mann, as sheriff, to set aside attachment proceedings. The Circuit Judge granted the following order on the ex parte motion of plaintiffs: Upon hearing the complaint read in the above stated case, together with the affidavits submitted, on motion of Benet & Cason, plaintiffs’ attorneys.

Before Witherspoon, J., Abbeville, June, 1891. This is a branch of the case next supra. The two defendants, who had procured the attachments, answered separately, but both answered, “not waiving any objection to the jurisdiction of the court, or to any other matter whatever, but expressly protesting against any exercise of jurisdiction by the court in this case.” At the trial these defendants demanded proof of the service upon them.

Before Hudson, J., Union, October, 1891. This was.an action by F. 0. Greene against T. 0. Dnncan, commenced in July, 1890. The complaint alleged that plaintiff had furnished materials to E. D. Sharkey, which were used by him in building stores for defendant, and that defendant had promised to pay a telegraphic order drawn by Sharkey on defendant in favor of plaintiff and accepted by defendant, as set forth in the opinion of this court.

Before Witherspoon, J., Charleston, November, 1891. This was an action by Oscar F. Dukes aud others against John Faulk and others. The report of Master Sass was as follows : Dorcas Elmore, late of Charleston, died many years ago, leaving in force her last will and testament, a 'copy of which, is hereto attached and marked exhibit “A.” The will was admitted to probate, 10th Januarjq 1827.

Before Izlae, J., Charleston, November, 1890. Held: “In order that a judgment may constitute a bar to another suit, it must be rendered in a proceeding between the same parties or their privies, and the point of controversy must be the same in both cases, and must be determined upon the merits,” and in Walden v. Bodley, 14 Pet., 156, it was said by the court: “A decree, dismissing a…

<p>Before Witherspoon, J., Fairfield, September, 1890.</p> <p>These were two actions, one by Hattie S. Brooks against Stephen Gibson and others, commenced on June 27, 1888, and afterwards, by amended complaint, continued against Hayne McMeekin, executor of Stephen Gibson (who had died pending action), and the heirs of Stephen Gibson, and other parties claiming interest in the lands which were involved in the litigation. The other action was by S. Henry Gibson, commenced August 13, 1888, against the same parties, and in like manner 'amended and continued. The causes were argued on appeal December 3, 1891, before Chief Justice Mclver and Justice McGowan, the only members of the court at that date. On February 20, 1892, an order was filed, directing a reargument, “as it appears that one of the main questions involved is not only important, but novel, in this State, at least, it is thought better that the causes should be heard by the full bench.” The reargument was had April. 20, 1892, all the justices being present.</p> <p>The Circuit decree, omitting its statement of the pleadings, was as follows:</p> <p>As a matter of fact, I find that Stephen Gibson, on the 11th of December, 1866, confessed judgment to Fisher & Lowrance for $8,153.17, on a note dated December 7th, 1866, and due three days after date; that Stephen Gibson also confessed judgment to his son, Henry A. Gibson, then living with him, on the 13th December, 1866, for $2,560; that on November 4th, 1867, the sheriff of Fairfield District sold about 2,800 acres of land as the property of Stephen Gibson for $2,300, under the Fisher & Lowrance judgment,' and executed title to Henry A. Gibson ; that Stephen Gibson paid his debt to Fisher & Lowrance; that the sheriff’s deed to Henry A. Gibson was recorded January 29th, 1868; that Stephen and his son, Henry A. Gibson, continued to live together and cultivate the land up to death of Henry A. Gibson, on the 9th of November, 1879; that on the 21st of November, 1876, Henry A. Gibson executed and delivered to Stephen Gibson a conveyance of 2,002 acres, more or less, of land, being all the land to which he held title under the sheriff’s deed; that the consideration expressed in said deed is “the good will and affection and services rendered by my father, Stephen Gibson, and of $5 to me paid by said Stephen Gibson;” that this deed was recorded June 6th, 1881, after the death of Henry A. Gibson; that Henry A. Gibson and Stephen entered into a written agreement on November 27th, 1876, whereby they agreed to cultivate the land in common, and share equally the profits after paying the debts, and by which, on final settlement, they were to divide equally the stock and farming implements. This agreement was not placed upon record.</p> <p>That Henry A. Gibson married the plaintiff, Hattie S. Brooks, on the 7th of December, 1876. Henry A. Gibson died intestate, 9th of November, 1879, leaving surviving him his widow, now the plaintiff, Hattie S. Brooks, and his infant son, the plaintiff, S. Henry Gibson; that the plaintiff, Hattie S. Brooks, lived with Stephen Gibson from the death of her husband, Henry A. Gibson, up to her marriage with Charles S. Brooks; that Hattie S. Brooks did not have knowledge or information of the execution of the deed by her husband, Henry A. Gibson, to Stephen Gibson until after the death of her husband, Henry A. Gibson, and that said deed was executed by Henry A. Gibson on the eve of his marriage to the plaintiff, Hattie S. Brooks, and embraced all of the land to which Henry A. Gibsou held title; that Stephen Gibson, on the 10th of January, 1882, declared in writing- that it was agreed at the time of the execution, of the deed to him by Henry A. Gibson, that he, Stephen Gibson, was to hold 6731: acres and 502 acres of the land embraced in said deed, and described in said declaration, for the purpose and use, and upon the condition, set forth in the answer of said Stephen Gibson; that this declaration of trust was recorded September 12th, 1885; that Stephen Gibson died April 20th, 1889, in possession of about 1,500 acres, more or less, of land, conveyed to him by Henry A. Gibson; that Stephen Gibson, by his will, dated January 16th, A. D. 1885, devised the laud as aforesaid.</p> <p>The plaintiff, Hattie S. Brooks, does not claim through Stephen Gibsou, and is not bound by any declaration of trust made by him. The declaration by Stephen Gibson is a declaration in his own behalf. There is not sufficient evidence as to the execution and loss of the original trust agreement to admit of secondary evidence. The plaintiff, Hattie S. Brooks, does not claim as heir at law of her deceased husband, Henry A. Gibson. Her claim is for dower in the 1,500 acres, more or less, held by Stephen Gibsou at the institution of her suit, upon the ground that the deed from her husband, Henry A. Gibson, to Stephen Gibson, executed upon the eve of her marriage, is void as to her claim of dower.</p> <p>In Ramsey v. Joyce, McMull. Eq., and in Manes v. Durant, 2 Rich. Eq., the transfer of property by an intended wife on the eve of her marriage, was held to be a fraud upon the marital rights of the husband. I have been referred to no case in this State where the effect of such a transfer by the husband has been considered. As the right of dower does not depend upon the will of the husband, it seems to me that a transfer of all his land by an intended husband, on the eve of marriage, and without the knowledge of the intended wife, and with intent to defeat the right of dower which would attach upon the marriage, is void as to the wife’s dower. It seems to me that there can be no doubt that such would be the effect of such a conveyance, where the grantor and grantee both participated in the effort to defeat the right of the dower that would accrue to the intended wife upon the marriage. See cases cited in a note to Thayer v. Thayer, 89 Am. Dec., 218. See, also, Scribner on Dower, 561, and Perry on Trusts, § 213.</p> <p>Was the deed from Henry A. Gibson to Stephen Gibson, dated November 21st, 1876, intended to defeat the right of dower which the plaintiff, Hattie S. Brooks, would have acquired by her intermarriage with Henry A. Gibson? At the time that the sheriff conveyed the title to Henry A. Gibson, he was a young man of very limited means, living with his father, Stephen Gibson. I have no doubt that it was agreed between Stephen Gibson and his son, Henry A. Gibson, that the latter should hold the title, to protect the land from the liability to pay the debts of Stephen Gibson. If such was the arrangement, it is not likely that either of them would have indicated their purpose to others. It is not necessary for the plaintiff, Hattie S. Brooks, to show that she had no knowledge of such an arrangement. It appears that Henry A. Gibson and Hattie S. Brooks lived within four miles of each other before their marriage; that they were engaged to be married eighteen months; that their anticipated marriage was the subject of rumor in the neighborhood for two or three months before their marriage. Stephen Gibson practically admits in his declaration of trust that he knew on the 21st of November, 1876, of the contemplated marriage, as he states in said declaration that provision was made on the 21st of November, 1876, for the widow and lawful issue of Henry A. Gibson.</p> <p>If the deed of the 21st of November, 1876, was not intended to defeat the right of dower which Hattie S. Brooks would •have acquired in the land upon the marriage, it is difficult to understand why Stephen and Henry A. Gibson should have kept the transaction secret, and that the deed was not recorded until after the death of Henry A. Gibson. If any trust for the benefit of Hattie S. Brooks had been committed by Henry A. Gibson to Stephen Gibson, it is strange that Hattie S. Brooks should have been ignorant of it until the recording of the declaration of trust by Stephen Gibson, September 12th, 1885.</p> <p>I feel constrained to find, as a matter of fact, that in the execution of the deed of November 21st, 1876, Henry A. Gibson and Stephen Gibson intended to defeat any right of dower which the plaintiff, Hattie S. Brooks, might have acquired in the land conveyed, as the wife of Henry A. Gibson. I conclude, as a matter of law, that said deed is void as to the plaintiff’s, Hattie S. Brooks, claim of dower in the 1,500 acres of land, more or less, in the possession of Stephen Gibson on September 5th, 1888, and that, the plaintiff, Hattie S. Brooks, is entitled to one-third of the rental value of said lands, from the 6th of September, 1882. In this view of the case, it is not necessary to consider whether the deed from Henry A. Gibson to Stephen Gibson was voluntary.</p> <p>In accounting for the rental value of the land, the estate of Stephen Gibson will be entitled to credit for any lawful demands due by the plaintiff, Hattie S. Brooks, to said estate, referred to in the counter-claim in the answer of Stephen Gibson, and no order will be made at this time as to said counter-claim, the defendant, Hayne McMeekin, as executor, being at liberty to offer further testimony as to said counter-claim in the accounting for rental value of the land, if he be so advised, as hereinafter directed.</p> <p>It is ordered and adjudged, that a writ in dower do issue, according to the usual practice of this court, to assign and lay off to the plaintiff, Hattie S. Brooks, her dower in the 1,500 acres of land, more or less, referred to in the fourth paragraph of her complaint, and of which Stephen Gibson was possessed on the 5th of September, 1888. It is further ordered and adjudged, that the defendant, Hayne McMeekin, as executor of Stephen Gibson, do account to the plaintiff, Hattie S. Brooks, before B>. H. Jennings, who is hereby appointed special referee, for one-third of the' rental value of the 1,500 acres of land, more or less, above referred to, from September 5th, 1882.</p> <p>I do not think that Henry A. Gibson convoyed the 2,002 acres of land, November 21st, 1876, to Stephen Gibson, upon a secret trust, for the benefit of said Henry A. Gibson and his heirs, as contended by the plaintiff, S. Henry Gibson. So far as plaintiff, S. Henry Gibson, is concerned, Stephen Gibson is bound by the declaration of the trust, which he made in writing, January 10th, 1882, heretofore referred to. It seems to me, that the limitations as to the 673 acres of land in said declaration are too remote. I conclude, as a matter of law, that the limitations as to the 673 acres in said declaration of trust are too remote, and that S. Henry Gibson takes the fee in said 673 acres of land, subject to the payment of the debts of Henry A. Gibson, and, also, subject to the plaintiff’s, HattieS. Brooks, dower, as herein adjudged, as the 673 acres is a portion of the 1,500 acres held by Stephen Gibson, September 5th, 1888. The plaintiff, S. Henry Gibson, will be entitled to an accounting, by the executor of Stephen Gibson, of the rents and profits of so much of the 673 acres as remain after dower has been assigned to the plaintiff, HattieS. Brooks, and the debts of Henry A. Gibson have been paid. The counter-claim against the plaintiff, S. Henry Gibson, has not been established, and cannot be allowed. All equities that may arise between the plaintiff, S. Henry Gibson, and the defendants, are reserved until the debts of Henry A. Gibson have been paid, and the dower assigned to the plaintiff, Hattie S. Brooks.</p> <p>who, upon the question of the fraud on the dower rights of the wife, contended that the deed of Henry to Stephen vested the title to the property in Stephen before the marriage of plaintiff with Henry, and her dower claim cannot be sustained unless the court will take cognizance of the question of fraud upon plaintiff’s alleged marital rights. But public policy demands that no such right be recognized at all, as the recognition of any such right or equity would render land titles precarious, and would, in a great measure, fetter alienation of estates. Property right and enjoyment on the part of the wife are not legitimate considerations moving to the marriage contract, and should not be given legal sanction by the courts. 1 Glyn & J., 382; Park Dower, 236; Ath. Mar. Set., 323, 329 ; 6 N. Y., 482; 5 Johns. Ch., 589 ; 4 Cush., 138; 1 Scrib. Dower, 560. As to the wife, the legal question is an open one in this State. McMull. Eq., 242; 2 Rich. Eq., 406. But see Peay v. Peay, 2 Rich. Eq., 409. If, however, the doctrine invoked by counsel for respondents be recognized by our courts, it must be made to appear that the conveyance in question was voluntary, was done with the intent to defraud the wife of her marital rights, and the conveyance must embrace the bulk of her husband’s property—-none of which facts are shown by the testimony in this ease. 1 Scrib. Dower, 560; 5 Johns. Ch., 482-489; 4 Mich., 230; 14 Yt., 107; 39 Am. Dee., 211; 1 Heisk., 346; 1 Dev. & B., 331; 2 S. W. Rep., 158; 61 Mich., 315; 23 Grab, 122; 23 Pick., 80; 15 Atl. Rep., 85.</p> <p>cited 2 Bish. Mar. Worn., §§ 338, 350; 1 Scrib. Dower, 588; 39 Am. Dec., 218; 1 Lead. Cas. Real Prop., 330; 1 Perry Trusts, § 213; 2 Rich. Eq., 405; McMull. Eq., 249; 6 N. J. Eq., 515; 5 Am. & Eng. Ene. L., 912; 4DeSaus., 366; 6 Wait Act. & Def., 813; 2 Bail., 324; Kerr Fraud, 197; 2 Mill Con. R., 60; Stew. Hnsb. & Wife, §§ 265, 268; 3 Pom. Eq. Jur., § 1382-3; 1 Wash. Real Prop., 203; 14 Am. & Eng. Ene. L., 479.</p>

<p>Before Izlar, J., Charleston, April, 1892.</p> <p>This was an appeal by H. A. Heiser from a decree directing Mm to comply with Ms bid for a lot of land sold in April, 1892, under order of the court in the case of Carolina Savings; Bank against Ellen McMahon, as administratrix of John Me-. Mahon, and others. Master Sass, to whom the matter had been referred to take and report the testimony, with his conclusions of law and fact, reported as follows:</p> <p>I find first, as matters of fact: That one Joseph Johnson, on August 15th, 1839, by deed duly recorded, conveyed to Patrick McBride the fee to the premises described in the complaint, the subject matter of this action. This fee was held aud owned by Patrick McBride, until levied upon and sold under the judgment and execution, in the case of the president and directors of the Bank of the State of South Carolina against McBride, Hanckel & Company, in 1847, as per evidence attached; of which defendant firm Patrick McBride was a member. In this case there were judgment, execution, aud levy, and sale thereunder of the property in question. At such sale William B. Smith became the purchaser of the said premises, and the sheriff of Charleston County made a deed of the same to him on May 2d, 1848, which was duly recorded. A copy of said deed in evidence contains the usual formal recitals, but through a clerical error omits the word “heirs” in the habendum clause of the deed. It does, however, contain the words, conveying “all the estate, title, and interest which the said Patrick McBride, one of the firm of McBride, Hanckel & Co., of right had in and to the same.” William B. Smith thereupon took possession of said property and held the same, claiming title adverse against the world continuously and exclusively, until his conveyance of it to Bobert White, September 14th, 1852, when the said Bobert White entered into and took absolute possession of the same.</p> <p>Patrick McBride, on November 21st, 1845, mortgaged the premises purchased by Mr. Smith at this sheriff’s sale to the said W. B. Smith for forty five hundred dollars. This mortgage was satisfied by W. B. Smith on September 14th, 1852, the date of his conveyance to Bobert White. No more money was paid for said satisfaction, but it was made at the request of Bobert White. The conclusion is irresistible that William B. Smith purchased at sheriff’s sale the premises in question to protect his loan of forty-five hundred dollars, previously made by W. B. Smith, aud secured by the said mortgage of Patrick McBride to him, with dower renounced thereon, and duly recorded. As stated, W. B. Smith, on September 14th, 1852, by deed duly recorded, conveyed the premises to Robert White. On the same day Robert White gave a purchase money bond, and mortgage, which mortgage was duly recorded, for the sum of five thousand dollars, and the mortgage from Robert White to W. B. Smith was duly satisfied February 11th, 1862. Robert White held possession of the premises from 1852 to December 4th, 1863, when he conveyed the same in fee to John McMahon, on which day John McMahon executed a purchase money mortgage for the same, duly recorded, which was satisfied September 26th, 1864.</p> <p>From then until the present time, John McMahon and his heirs held this property, claiming the same adversely against the world. John McMahon died in 1889. His wife, Ellen McMahon, has administered upon his estate. Before'the death of John McMahon, he mortgaged the premises to Carolina Savings Bank and James F. Redding. The Carolina Savings Bank brought suit for foreclosure September 15th, 1890, and under-those proceedings, concerning the validity of which no question, is raised, the property was sold to Mr. H. A. Heiser at public outcry, after due advertisement, on April 12th, 1892, for five thousand one hundred and fifty-five dollars, he being at that price the highest bidder therefor. Mr. Heiser having refused' to comply with his bid, on his return to rule served against him to show cause why he should not comply, he sets forth certain objections to the title which therein specifically appear.</p> <p>I find further, as matter of fact, that the proof to the probate of the deed from Robert White to John McMahon, dated December 4th, 1863, is sworn to before John Phillips, a member at that time of the Charleston Bar, who neglected to sign as a magistrate or notary public, but in the purchase money mortgage, given on the same date, he signs his name to the probate of the same as a magistrate. It is admitted that the original deed from Robert White to John McMahon, with proper affidavits for re-recording under the law, was tendered Mr. H. A. Heiser before his rejection of the title to the property in dispute.</p> <p>Upon these findings of facts, I, therefore, hold, as matter of law: That the record of the deed of Bobert White to John McMahon, dated December 4th, 1863, the probate to which was certified to before John Phillips, who failed to sign as magistrate, is valid, it appearing from the purchase money mortgage, of even date therewith, that the said John Phillips was a magistrate. Genobles v. West, 23 S. 0., 155. Also, that the continuous adverse possession by John McMahon and his heirs from 1863 to the present time is sufficient to have cured such defect as alleged, if any existed. Also, that the purchase money mortgage given by John McMahon to Bobert White on December 4th, 1863, duly recorded and satisfied, under the authority of Spears v. Oalces, 4 Bich., 347, together with the other facts proved in the case, are conclusive evidence that Bobert White conveyed to John McMahon.</p> <p>The serious question presented is as to the effect of the error of the sheriff in omitting the word “heirs” in his deed of May 2d, 1848. This question has been elaborately argued, and received my careful consideration. Upon the points made in the argument, I hold: First. That the sheriff’s deed to W. B. Smith, conveying all the right, title, and interest of Patrick McBride, which was a fee, shows the intention to .convey the absolute estate or fee, and did, in fact, convey it. Broion v. Moore, 26 S. C., 161; Fuller v. Missroon, 35 Id., 314. Second,. That the sheriff’s deed relates back to the judgment, or at least the levy. Fx parte Mobley, 19 S. C., 341. That under judgment, execution, levy, and sale, all McBride’s right, title, and interest, which was a fee, was sold to W. B. Smith; and that even though said sheriff’s deed may be defective, the possession of Smith and his grantees, from May 2d, 1848, to the present time, would be possession under color of title, and could be defended against the world. Third. Under judgment, execution, levy, and sale, the fee in McBride was sold. Even though the sheriff in his deed may have made a mistake, and failed to convey said fee, he or his successors can be made to correct it, and equity will consider that done which should have been done. Small v. Small, 16 S. 0., 70. Fourth. Under section 109 of the Code, which was evidently passed for the purpose of quieting titles, I hold that possession by W. B. Smith and his grantees, from May 2d, 1848, to the present time, a period of over forty years, is valid against the world.</p> <p>These premises were sold at judicial sale; I find the title good and marketable, and recommend that the purchaser be ordered to comply with his bid.</p>

<p>Before Norton, J., Colleton, June, 1891.</p> <p>This was an action by Lewis Kinsey against Abraham Bennett. The opinion states the case. The Circuit decree was as follows:</p> <p>The master erred in dismissing the complaint herein ; for if only a legal demand was proven, where allegations constituting an equitable action were made, if those allegations included also a legal demand, then judgment should have been given for the legal demand. Salinas v. Ellis, 26 S. C., 338; Gleaton v. Gibson, 29 Id., 514.</p> <p>I am of the opinion, however, that plaintiff established a good equitable demand. He alleges that on 15th March, 1887, he gave defendant a bond and mortgage to cover his indebtedness; that in settling claims against him, defendant charges plaintiff with $93.05 as paid for one claim for which defendant actually paid only $45, which allegations are sufficient, if proven, to show an agency by defendant for iilaintiff. In his unobjected to testimony, plaintiff proves defendant’s agreement to take up this indebtedness. Plaintiff is entitled to have an accounting. Again, plaintiff alleges that he conveyed the mortgaged premises to defendant at $2,500 in trust, to enable him to sell and pay the mortgage debt and account to plaintiff. Defendant’s answer admits the execution of a deed to him by plaintiff for the premises. Plaintiff, nevertheless, attempts to prove the deed, and for this purpose prevails upon the master to require defendant to produce it. This was error. Cartee v. Spence, 24 S. C.; 558. The contents of the deed are immaterial to plaintiff’s case; he is seeking to have the $2,500, the consideration for the deed, properly applied. It was competent to prove by parol what this consideration was, how much of it had been paid, and how the balance was to be paid; also, that the defendant was the agent to disburse the fund, or some part of it, and plaintiff is entitled to an account of such disbursement, and of the sums expended by defendant for which he claimed the $1,500 mortgage debt. He is also entitled to have the mortgages delivered up to him and satisfied of record; and it was competent to prove by parol that the defendant refused to render such accountings, to deliver up and satisfy the mortgages of record, and to have the defendant credited in such accounting with only such amounts as he actually paid for debts against plaintiff, without reference to their face.</p> <p>It is ordered and adjudged, that the plaintiff’s fifteen exceptions be sustained or overruled according to their agreement with the principles announced in the foregoing opinion; that the conclusion of the master, dismissing the complaint, be overruled, the report set aside, and the case remanded for the taking of the account between the parties.</p>

Before Norton, J., Beaufort, June, 1891. Action for injunction by Daniel W. Crocker against Joseph W. Collins, intendant, and the wardens, constituting the town couucil of Beaufort, commenced Januaryl, 1891. The decree of the Circuit Judge was as follows : Martha A. Barnwell owned a lot in the town of Beaufort in 1860, which was afterwards seized by the TJ. S. direct tax commissioners. She redeemed and took a formal release for lot “G,” block “69,” according to the TJ.

<p>Before Kershaw and Fraser, JJ., Fairfield, February and September, 1891.</p> <p>This was an action by John Wallace against the Columbia and Greenville Eailroad Company, commenced January 17, 1889. See 31 S. C., 62. So much of the charge to the jury as has any bearing upon the points raised by the appeal, was as follows:</p> <p>There are certain injuries which the construction of a railroad does to land which the land-owner is entitled to compensation for, under the act. of the legislature. The State owns what is known as the right of eminent domain over all the lands within its bounds. The individual owns land subject to the right of the State to take for public purposes, but that right of the State is controlled by the Constitution to this extent: that it must be taken upon the payment of ample compensation. A man may give this right of way, or it may be condemned under the act of the legislature. When a mau gives the right of way, or the land is condemned under the act of the legislature, and compensation allowed on it, then the man has got all the pay he can get for any damages that the construction of the road necessarily does to his land, if the road is constructed in a careful way. Whenever the road is constructed carefully at other places, yet when the road crosses a running stream, and the water-ways are so carelessly constructed as to cause injury, then the railroad company is responsible for that damage; but it is on the ground of negligence, on the ground that they have not constructed the road in a prudent and careful way—in a reasonably careful aud prudent way.</p> <p>And it is not only the case that the railroad should be constructed to make a safe road for themselves, but it must be with that degree of care that a man ought to exercise towards the rights of another. Every man has the right to use his own as he pleases, but he must use it with that degree of care that a man ought to exercise that he does no injury to his neighbor. The damages alleged here are said to be damage which occurred to the land lying on two of these branches—land above the railroad track and below the railroad track. Whether any damage has been done, or whether the railroad crosses the defendant’s land or not, is a question of fact for you. As to whether the railroad has been constructed carefully or not, you must ascertain that from the testimony, aud for that part of the case you are responsible. I have no right to tell you what constitutes care or want of care.</p> <p>There are a number of requests to charge here; I think I shall dispose of them, and leave the question with you. The defendant’s first request is, that the railroad compauy, under its charter, was authorized and had a right to contract and maintain over the branches that passed through the plaintiff’s land, such trestles as may be necessary to make its road-bed and track safe and sufficient for its business and the operation of its road; and if, by reason of the construction and maintenance of such trestles, the property of the plaintiff is injured, the railroad company is not liable for such injury, unless it was negligent and unskillful in its construction and maintenance, or acted wilfully or in bad faith. With some qualification, which I shall read to you, I think that is good law.</p> <p>Second. That the fact of the trestles of the railroad company injuring the land by backing and overflowing it, is not alone sufficient to make the company liable, but the plaintiff must go further, and show that it had done some act, or acts, which were improper and unskilfully and negligently done, and these acts did the injury complained of. Subject to the qualifications I shall give you, that is the law.</p> <p>Third. That the railroad company have a right, in the exercise of its charter privileges, to determine in its own judgment as to what structures are safe and proper for its road-bed and business, and it cannot be held liable because it does not follow some other plan of constructing its trestles, provided the same have been built and maintained in the ordinary and usual manner of trestles over streams in this country, and it has not been negligent in its construction and maintenance. Well, I think that is very good law, but negligence is the absence of proper care. The care that a railroad company is bound to exercise is not only a care to make the railroad itself safe, but that the persons over whose lands the road passes should not receive any injury by it. A man is always bound to use his own property so as not to injure the property of another. The railroad company is not bound to use more care than necessary, but they are bound to use ordinary care and diligence in the construction of the road, to prevent injury. If the mode was not reasonably safe, then some other reasonably safe mode should be adopted. If the railroad did the only thing it could have done, then it wouldn’t be responsible in this action or any other action. If it did the only thing it could do, it was not liable.</p>

<p>Before Norton, J., Sumter, October, 1891.</p> <p>Action by Armetta Bollins and Joel J. Brown against John Brown.</p>

Before Norton, J., Clarendon, October, 1891. This was an appeal by Mathew C. Wells and others, heirs at law of John W. Wells, deceased, from a judgment of the Court of Common Pleas, sustaining a decree of the Probate Court, that admitted to probate, after proof in solemn form, the will of said J. W. Wells, propounded by John O. Brock, executor.

<p>Before Witherspoon, J., Marion, March, 1890.</p> <p>This was an action by Pelzer, Bodgers & Co. against Margaret E. Durham, commenced November 8,1889. The opinion states the case.</p>

<p>Before Kebshaw, J., Abbeville, October, 1891.</p> <p>Action by S. J. McGee against J. W. Wells, commenced July 9, 1891. The opinion states the case.</p>

<p>1. Findings of Fact—Scope of Exceptions.—Whether a deed was executed with intent to perpetrate a fraud, considered under exceptions to so much of the decree as held that the action was barred by the statute of limitations by reason of notice had of the fraud for more than six years; but the decision not rested upon the finding of actual fraud, as 'there was no direct exception thereto.</p> <p>2. Limitation of Actions'—Fraud—Notice.—The statute of limitations does not commence to run in favor of actual fraud until the party defrauded acquires either knowledge of facts, which would establish such fraud, or the means of acquiring such knowledge, by the use of due diligence. Notice that a person was living on the land, and who said that the debtor had given it to her, and that plaintiff had afterwards brought action on the debt, were not of themselves sufficient to charge the plaintiff creditor with notice that the debtor had conveyed his land to this defendant with intent to defraud his creditors, there being some evidence of a valuable consideration, and none of any suit pending or threatened, or of any expressed intent to defraud, or that the debtor had not personal property enough to pay all of his debts.</p> <p>3. Ibid.—Ibid.—Matters Not Considered on Circuit.—But if the only fraud committed was constructive fraud arising from a voluntary conveyance by the debtor, then the currency of the statute of limitations starts from the return of nulla bona, and not from discovery. And this question not having been passed upon on Circuit, and there being some evidence to show a valuable consideration, the cause is remanded for a determination of the case in this aspect.</p> <p>4. Homestead—Land Appurtenant.—Where a debtor conveyed to another, in 1873, land on which he had once resided, but from which he had removed away to an adjoining tract of land belonging to his wife, and then rented his own land to his son, the land so conveyed was not appurtenant to the family homestead of the debtor, and, therefore, was not exempt as his homestead, under the Constitution of 1868, prior to its amendment in 1880.</p>

<p>Before Aldrich, J., Lexington, September, 1891.</p> <p>This was an action by F. B. Pucker against J. A. Smoke and F. J. Bnyck, commenced January 24, 1890, to recover damages for trespass on the property of plaintiff, committed by Smoke, as the agent of Buyck, in December, 1889.</p>

Before Aldrich, J., Edgefield, November, 1891. This was an action by Stephen S. Tompkins and others against the Augusta and Knoxville Railroad Company, and its lessee, the Port Royal and Augusta Railway Company, for the recovery of two strips of land. The opinion states the case, but see 33 S. C., 216.

<p>Before Hudson, J., Spartanburg, November, 1891.</p> <p>This was an action by Witt & Watkins and others, creditors of L. G. Byars & Son, against Carroll & Carpenter (tenants in possession), Mrs. S. A. Byars, and the heirs of J. A. Corry, deceased. The opinion states the facts of the case. The master held as follows:</p> <p>The sole question of law, then, is, should the trust deed of S. A. Byars to James A. Corry be enforced, or should it be adjudged null and void? A trust deed is not an absolute conveyance, but it is a conveyance in trust for the purposes thereby declared; and if the object of the trust fails, there is no valid conveyance of the property embraced in the deed, and, or at least the title, reverts to the grantor. Gwynn v. Gwynn, 27 S. C., 513. In Hill on Trustees, it is said in see. 342: “In expounding trusts, though created by deed, the intention of the parties is to be pursued, as much as in cases of wills.”</p> <p>We must, therefore, inquire what the intention of Mrs. Byars was in executing the trust deed to Corry, and what object she hoped to gain by it; and-if the object of the executed trust has failed, according to the decision above, then the title must revert to the grantor. Her testimony shows that she never would have given up her property in order to pay her husband’s liabilities, unless she could thereby free him from debt, and that it was only by means of the acceptances under the assignment that she could do this. This seems, under her testimony, to be conclusive of this case, and I hold that the purpose of the trust has failed, and that it cannot be enforced.</p> <p>If liable on other grounds, she would not be released under the doctrine laid down in Gwynn v. Gtoynn, cited above, for in that case her deed of assignment was to pay debts of her own which she erroneously thought to exist. A married woman can sell her property, and in doing so can apply the proceeds to whatever object she desires, even if that be the payment of her husband’s debts.</p> <p>I, therefore, recommend that the complaint be dismissed, with costs, and that the title to the property be declared to be in Mrs. S. A. Byars.</p> <p>On exceptions by plaintiff to this report, the Circuit Judge decreed as follows:</p> <p>On hearing the report of the master in this ease, and argument of -counsel on the exceptions thereto, I am satisfied that the master is right in his findings, and that his report should be confirmed. One of the principal considerations, if not the main and only consideration, which moved Mrs. Byars to make the trust deed to Corry, was to induce all the creditors of Byars & Son to accept the terms of the assignment, and to'release her husband and son from further liability. In an action brought by certain of the creditors, one of the attaching creditors being one of the plaintiffs in this action, the assignment was after-wards set aside, so that now there is no assignment, and while certain of the creditors have agreed to accept what they expect to get from the sale of the land in this action in full discharge of their debts, others have not done so. The object for making the trust deed has thus failed, and Mrs. Byars is no longer bound by it. She has never been out of possession, and has a right to make her defence in this action, begun by creditors to subject the land to the payment of the claims of all creditors who will come in and release Byars & Son.</p> <p>It is, therefore, ordered and adjudged, that the report of the master be confirmed, and become the judgment of this court, and that the complaint be dismissed, with costs.</p>

<p>1. Tax Sale—Sheriee’s Deed—Statutory Construction.—Section 2 of an act providing for the enforcement of payment of delinquent taxes by levy and sale (19 Stat., 863), directed that in case of sale the sheriff’s deed shall be held to be prima facie evidence of good title, and that all preliminary requirements of the law have been complied with; and that no action for the recovery of such land or its possession shall be maintained unless brought within two years from the date of sale. Then section 3 (19 Stat., 864; 20 Id., 51) declares that if the taxpayer, after levy, shall declare that the taxes have been paid or unjustly assessed, he can have such sale suspended, “provided, before said sale, he offers satisfactory evidence to the sheriff, that said taxes have been paid, or improperly assessed against him, and within twenty days thereafter take such steps as are provided by law for correction of unjust assessment, or to prove payment, and prosecute the same to a successful result, within a reasonable time. And in case the taxpayer, alleged to be in default, offers no such proof, or fails to take the course herein provided, he shall be deemed in law to have waived all exceptions to the omissions, errors, and irregularities (if any there be) in the assessment of said tax, and in all preliminaries to said sale, as prescribed by law, and to have admitted that each and all preliminary steps to said assessment and sale are in accordance with the requirements of law.” Held, that these two sections being in the same statute, must be so construed that both may stand, and, therefore, a taxpayer who fails to avail himself of the privileges granted in section 3, may, nevertheless, bring action for the recovery of his land within two years, under section 2, and in such action be permitted to show that the property sold was not the property advertised, the sheriff’s deed being prima facie, but not conclusive, evidence of good title.</p> <p>2. Proviso to Statutes.—Moreover, the operation 'of a proviso is to limit the general provisions only of the. antecedent enactment, and, therefore, the sweeping waiver declared in the proviso to section 3 applies only to the two cases stated in the preceding part of that section, to wit, where the taxpayer claims that the taxes have been paid, or were unjustly assessed against him.</p>

<p>Before Aldrich, J., Richland, October, 1891.</p> <p>Action by George T. Sims, trading as George T. Sims & Co., against Jasper Miller and others, cotton factors, under the firm name of Miller Brothers, commenced in April, 1891.</p>

<p>1. Actions Against Foreign Corporations.—The question whether chap. XXXVII. of General Statutes does not, by implication, authorize actions in the courts of this State against foreign insurance companies doing business in this State, raised but not considered.</p> <p>2. Ibid.—Policy op Insurance—Subject op Action.—In an action to recover for a loss by fire under the covenants of a policy of fire insurance, what is the “subject of the action?”</p> <p>3. Ibid.—Ibid.—Place op Contract—Cause op Action.—Where a policy of fire insurance, covering a stock of goods in this State, was issued from the home office of the insurer corporation in Connecticut, but declared not to be valid until countersigned by their agent in this State, where it was so countersigned and delivered, and where the breach afterwards occurred, the cause of action arose in this State, and, therefore, the assured, and the plaintiff to whom the assured had assigned the policy after proof of loss and demand and refusal of payment, could maintain action against the foreign insurance corporation in the courts of this State. Code, \ 4-23.</p> <p>4. Policy—Place op Payment.—The stipulation in this policy, that the loss should “be paid to the assured, or to the assured’s legal representatives, sixty days after due notice and satisfactory proof of the same have been received at their office, in accordance with the terms of this policy hereinafter mentioned,” did not provide for payment at the home office, but only postponed payment until sixty days after notice and proof of loss received, at such office.</p> <p>5. Cases Criticised.—This case distinguished from Rodgers v. Mutual Endonmuent Association, l! S. 0., 410, and Central R. R., ere., Company v. Georgia, &c., Company, 32 Id., 319.</p>

Before Hudson, J., Newberry, November, 1891. In this case, Robert Aldrich, Esq., attorney at law, sat in the place of Mr. Justice Pope, who had been of counsel in the court below. The opinion states the case.

Before Witherspoon, J., Greenville, August, 1891. This was an action by Mallie IT. Stepp against the National Life and Maturity Association of Washington, D. 0. The policy was on the life of James M. Stepp, issued June 10, 1889, in favor of plaintiff, his wife.

Before Wallace, J., Greenville, March, 1891. Action by Correll & Emonson against the Georgia Construction and Investment Company, commenced November 17,1888. The amended complaint was as follows: 1. That plaintiffs J. B. Correll and A. Emonson were, at the dates hereinafter mentioned, partners doing business under the firm name of Correll & Emonson. 2.

Before Norton, J., Anderson, December, 1890. This was an action by Carroll & Stacy against the Southern Express Company, to recover one thousand dollars received by defendant from plaintiffs at Greenville, S. C., to be delivered to E. B. Horton at Lowndesville, S. C. The money reached Lowndesville, and was thrown by Colyer, defendant’s agent at that point, to said Horton as he stood upon the platform of a departing railroad coach.

<p>1. Will—Uncertainty—Parol Testimony.—A testatrix bequeathed her estate to Q. “for the benefit of W. during her natural life; and after her death would like the money used for the education of young men for the priesthood, or to educate individual orphan boys or orphan girls.” In action involving the construction of this will, held, that parol testimony was inadmissible to remove the uncertainty in the meaning of this remainder, for oven if shown that testatrix was a Roman Catholic, and had been reared under the protection and teachings of that Church, and, therefore, intended to include only the priesthood and orphans of that Church, it would not have affected the result reached.</p> <p>2. Ibid.—Ibid.—Charitable Trusts.—This remainder, though a charitable trust, is void for uncertainty, as the court could not carry it into effect, it being absolutely unlimited by country or latitude. The estate must, therefore, be disposed of as if this remainder had been absent from the will.</p>

<p>Before Witherspoon, J., Anderson, July, 1891.</p> <p>This action was commenced in January, 1891. The opinion states the case.</p>

<p>Before Norton, J., Aiken, July, 1891.</p> <p>The Circuit decree, omitting its statement of the pleadings copied into the opinions, and some matters immaterial on the appeal, was as follows:</p> <p>The case was heard by me upon the oral and documentary testimony taken and reported by the master, the case having-been referred to him for such purpose. There was no dispute made before me as to the amounts of the claims of the various creditors, who proved their demands before the master, except as to two items in the claim of the plaintiff. I find that the claim of the plaintiff (Murray) against the original defendant is two thousand and sixty-five and 24-100 dollars, which is to be offset against the claim of three thousand and thirty dollars, which is hereinafter found to be due the original defendant by the plaintiff, leaving the plaintiff in debt to the defendant in the sum of nine hundred and sixty-four and 76-100 dollars, for which amount judgment is ordered against him personally, in favor of the defendant, the Aiken Mining and Porcelain Manufacturing Company, and upon said claim of three thousaud and thirty dollars, for the reasons hereinafter given, judgment is ordered against the defendant, P. A. Emanuel, for the sum of nine hundred and sixty-four and 76-100 dollars, in favor of the defendant, the Aiken Mining and Porcelain Manufacturing Company.</p> <p>The main contest in the case is between the Bank of New York, N. B. A., which is the assignee of the original defendant, of the bond, given it by the Fidelity and Casualty Company of New York, for the faithful performance of the duties of secretary and treasurer by the plaintiff, upon the conditions as therein specified. The first breach charged is, that plaintiff, as such' treasurer, received six thousand dollars from T. G. Lamar & Co., as the proceeds of the sale of twenty-five shares of the stock of the Nonpareil Kaolin Company, and that he fraudulently appropriated the same to his own use, and in this committed larceny, and that hence the Security Company is responsible to the Bank of New York for five thousand dollars, the penalty of the bond. The solution of the question, to whom did that stock belong? would solve the question, to whom did that money belong? If it did not belong to the original defendant as a corporation, as such, and was not received by plaintiff as its treasurer, then the Security Company would not be responsible for its reception or appropriation, for it simply guaranteed plaintiff’s conduct as treasurer of said corporation.</p> <p>Plain tiff and defendant Emanuel were the principal promoters of the Aiken Miuiugand Porcelain Manufacturing Company— the one being the secretary and treasurer, and the other the president thereof, and together owning or controlling the bulk of its stock. . Having found a kaolin mine, the developing and working of which in connection with the said company’s property they believed would be profitable, they bought a half interest in it, Emanuel paying for it with his individual money, and plaintiff afterwards paying his share therein by advances which he made under an agreement entered into at the time of the purchase, between Emanuel and himself and the other coworkers, Walker and Miller, that plaintiff and Emanuel would advance all moneys needed for the development of the scheme, and they proceeded to open it, using their own funds, until their private resources gave out, in the development of it. Then, having no other funds, they used money of the original defendant. Miller and Walker would not sell any interest to said company, and were averse to forming a corporation, but being finally persuaded to do so, the Nonpareil Kaolin Company was formed, with Emanuel as president, and plaintiff as secretary and treasurer. The report of the commissioners appointed to take stock is signed by Emanuel, Murray, Walker, and Miller, and reported to the secretary of state that they are each the owner of twelve and one-half shares of stock. As such officers they issued their half of the stock to themselves, as “trustees for the stockholders of the Aiken Mining and Porcelain Manufacturing Company.”</p> <p>The inability as well as the indisposition of persons to analyze and correctly state the reasons which prompt them to action, being considered in connection with the testimony relating thereto, I conclude that plaintiff and Emanuel knew they were unauthorized in law to use the funds of the original defendant to work the" Nonpareil mine; but owning or controlling the bulk of the stock of said company, they thought they had a moral right, provided they secured the stockholders of that company against loss, by reason of their illegal actions; and plaintiff also thought that as Emanuel owned a very few shares in his own name, while he owned a hundred and fifty shares, very near a controlling interest, that it would be for his individual protection, and for these reasons the Nonpareil stock was issued to them as it was. From all the facts and circumstances surrounding the transaction, I find, as matter of fact, that the twenty-five shares of stock of the Nonpareil Kaolin Company belonged to the plaintiff and Emanuel, and not to the Aiken Mining and Porcelain Manufacturing Company, and that the six thousand dollars arising from the sale thereof also belonged to them.</p> <p>It is claimed that the plaintiff, as secretary and treasurer, kept the books of the original defendant corporation, and is bound by certain entries therein, pui’porting to give the history of a sale of the stock in question from Emanuel to the corporation. There is no direct transfer of the stock from either Murray and Emanuel personally, or from them as trustees, to the corporation; and even if Mr. Townsend, who kept the books, had been designated so to do by plaintiff, it is clear, from his testimony and that of plaintiff, that the plaintiff knew nothing of the entries in question, aud took no part in the making of them. It should be noted that the entries in question were nob made in course of ordinary book-keeping, and were made by the direction of Mr. Emanuel, and without knowledge of plaintiffs. As matter of fact, I find that plaintiff is not estopped by such entries so made upon the books of said company as to the ownership of said stock.</p> <p>It is further claimed that plaintiff is estopped by his receipt to Lamar & Co. for six thousand dollars, which he signed as treasurer, from showing to whom it actually belonged at the time of the sale, and that by said receipt he is bound to the fact that it belonged to the Aiken Mining and Porcelain Manufacturing Company. All receipts can be explained. The transaction was not with the corporation,- or any one for it, and it was not thereby induced to change its condition or action by reason of such act; and, as a matter of law and fact, I find that plaintiff is nob so estopped, nor is the Security Company estopped. Big. Estop., 324, 345, and 544. Nor is plaintiff, if he promised to pay the six thousand dollars to the corporation, estopped from showing to whom it belonged by such promise, for the reason that it was made long after the sale, and after the use of the money by him, and when the corporation knew all the facts thereof.</p> <p>Again, plaintiff and Emanuel bought the half interest in the land of the Hill & Johnson Company, from which the stock in question sprung, for themselves, but subsequently, after the Nonpareil Kaolin Company was formed, had their twenty: five shares of that stock issued to themselves, as trustees of the stockholders of the Aiken Mining and Porcelain Manufacturing Company, This designation of the stockholders certainly could not put the stock in the corporation. The stockholders are one set of individuals, the corporation is another existence. The corporate body is separate and distinct in its rights and obligations from the individuals who compose it, and the individual corporator may sue his corporation, and the corporation may sue a corporator. Boone Corp., 354.</p> <p>It follows, and I so find, that the declaration of trust for the stockholders of the corporation was not a declaration of trust in favor of the corporation, and, consequently, the corporation was not entitled, through its treasurer, to receive the six thousand dollars, but Murray and Emanuel were entitled to receive it, and bound to account to the stockholders individually for such part of it as the facts, on investigation, would show they were entitled to; and this being the case, it further follows, as the money received by Murray was not the money of the corporation, the defendant, the Fidelity and Casualty Company of New York, which simply guaranteed his conduct as secretary and treasurer of such corporation, is not responsible for his'reception and use of said money.</p> <p>Again, by its bond given to the original defendant, and now held by the defendant, the Bank of New York, the defendant, the Fidelity and Casualty Company, undertook to “make good and reimburse such pecuniary loss, if any, by the employer, by reason of fraud or dishonesty of the employed in connection with the duties referred to, amounting to embezzlement or larceny.” In other words, it guaranteed the conduct of Murray to the extent, not simply of fraud or dishonesty, but fraud or dishonesty amounting to embezzlement or larceny. This was the bond accepted by the original defendant, and in their shoes,' with no higher rights or equities, stand the Bank of New York, as assignees. To hold the Security Company reponsible on this bond, Murray must be guilty, not only of a breach of trust, but larceny.</p> <p>We have no embezzlement statute in this State. State v. Shiver, 20 S. C., 408. Under section 2493 of the General Statutes of this State, it is provided: “That any person committing a breach of trust, with fraudulent intention, shall be held guilty of larceny.” Under our cases, decided under this statute, to wit, State v. Shiver, sujpva, and State v. Butler, 21 S. C., 353, it is held, that the fraudulent intent spoken of in the statute is the same as the animus furandi in larceny. Besides this, a crime being charged, though this be a civil action, the proof must go beyond a reasonable doubt. Burchhalter v. Coward, 16 S. C., 440.</p> <p>As to the six thousaud dollars, I find, as matter of law and fact, that the plaintiff, as treasurer of the original defendant corporation, was not guilty of a breach of trust, with fraudulent intention, or larceny or embezzlement, and hence, that his surety, the defendant, the Fidelity and Casualty Company of New York, is not responsible for the reception by said plaintiff for any part of said six thousand dollars, and stands acquitted of the same.</p> <p>As to the breach alleged by the Bank of New York against the bond given by the Security Company as aforesaid, based upon the alleged claim, that Emanuel and Murray, the president and secretary and treasurer of the Aiken Mining and Porcelain Manufacturing Company, misappropriated three thousand and thirty dollars of the funds of the said company, by advancing the same to develop the Nonjoareil mine, and that thereby they committed a breach of trust with fraudulent intention, I find, from the facts of this case, that as to said funds, they both committed a breach of trust, in that they had no authority from the corporation to make such disbursements, and for such reason they are liable to the corporation for said money so spent, and I have so adjudged herein; but, as matter of fact, I am fully convinced, arid so find, that neither they, nor either of them, had any criminal intention in said transaction, and they stand acquitted thereof. The defendant Emanuel, the president of both companies, and the representative of nearly all the stock not owned by the plaintiff, was an active participant in procuring the funds for the purpose aforesaid, and actually disbursing said sum as a loan to the Nonpareil Kaolin Company, which disbursement all the evidence shows they both considered to be greatly to the interest of the Aiken Mining and Porcelain Manufacturing Company, and made chiefly to promote that interest, and not to deprive said company of the money, but, as they thought, it would be returned ; and in this connection, it must be borne in mind that they thought the Aiken Company would have the handling of the Nonpareil clay, and thus derive an advantage, not only by its sale, but be enabled to mix it with their product, which, it seems from the testimony, was much desired by the president.</p> <p>As to the defence set up by the Fidelity and Casualty Company, that the application for their bond was a part and parcel thereof, and that the statement therein, that moneys would come to the hands of the treasurer, simply from the sales of clay, and that as the six thousand came from the sale of stock, and not clay, it could amount to a breach of the bond, I find that said defence is untenable. I am satisfied, under the authorities, that the statement contained in the application for the bond is not a warranty, but simply a representation, and as there was no wilful, fraudulent representation, the defence cannot prevail.</p> <p>Wherefore, it is ordered, adjudged, and decreed: First. That the claim of the defendant, the Bank of New York, National Banking Association, as assignee of the Aiken Mining and Porcelain Manufacturing Company, against the defendant, the Fidelity and Casualty Company of New York, for a breach of its bond, described in the pleadings, and given as a guarantee for the conduct of Joseph E. Murray, as secretary and treasurer of its said assignor, upon the specifications made by said Bank of New York, that he, as such treasurer, committed a breach of trust, with fraudulent intention or larceny of the funds, known in the pleadings as the six thousand dollar fund and the three thousand and thirty dollar fund, be, and the same is hereby, denied and disallowed, with the costs of the said defendant, the Fidelity and Casualty Company of New York, to be paid by the defendant, the Bank of New York, N. B. A. Second. That the defendant, the Aiken Mining and Porcelain Manufacturing Company, have judgment against the plaintiff, Joseph E. Murray, for the sum of nine hundred and sixty-four and 76-100 dollars, &c.</p>

Before Izlar, J., Barnwell, March, 1891. Action by James 0. Tant against S. D. M. Guess, .commenced in February, 1891.

<p>Before Witherspoon, J., Spartanburg, January, 1891.</p> <p>Action by I. R. Padgett against J. B. Cleveland and others. The opinion states the case.</p>

<p>Before Norton, J., Colleton, June, 1891.</p> <p>The opinion states the case.</p>

<p>Before Fraser, J., Spartanburg, February, 1892.</p> <p>This action was based upon the following complaint:</p> <p>The plaintiffs above named, in behalf of themselves and of all other creditors of the defendant, A. C. Means, sr., who shall in due time come into this action and seek relief thereby, and contribute to the expenses thereof, respectfully show to the court:</p> <p>I. That ou November 12, 1890, the plaintiff, Elisha Bomar, recovered a judgment in this court against the defendant, Albert G-. Means, sr., for the sum of $852.31, which was, on said day, duly signed, docketed, and enrolled in the office of the clerk of this court, and execution thereupon duly issued to, and lodged with, the sheriff of this county; that no part thereof has been paid or satisfied; that an appeal was taken from said judgment by said defendant, which is now pending in the Supreme Court.1 That on April 12, 1888, the plaintiff, William T. Bussell, the plaintiffs, John A. Lee and J. Boyce Lee, who were then, and are still, partners doing business under the name of J. A. Lee & Son, and Andrew Holtzhoaser, each recovered a judgment in this court against the defendant, Albert G. Means, sr., viz.: William T. Bussell, for the sum of $388.49; J. A. Lee & Son, for the sum of $274.28; and Andrew Holtzhouser, for the sum of $758.45; that each of said judgments was, on said day, duly signed and docketed, and enrolled in the office of the clerk of this court, and executions were thereupon duly issued to, and lodged with, the sheriff of this county; that no part of either of them has been paid or satisfied; that the executions in favor of J. A. Lee & Son and Andrew Holtzhouser, were long since returned by said sheriff wholly unsatisfied, and that the defendant, Albert G. Means, sr., is utterly insolvent. That each of the judgments above mentioned was a valid and subsisting lien on the property herein described. That a transcript of each of said judgments has been duly filed and docketed in the office of the clerk of Court of Common Pleas for the County of Union, whei’e the defendant, Albert G. Means, sr., owns a valuable tract of land, on which said judgments are liens. That executions were issued to the sheriff of said county on the three last named judgments, and were levied by him on certain personal property found on the plantation of the judgment debtor, Albert G. Means, sr. That thereupon the defendants (except the defendants, H. F. and Albert G. Means, sr.,) brought suit in the Court of Common Pleas for said county against said sheriff to re< over said property, claiming to be the owners thereof under the bill of sale hereinafter mentioned. That the judgment creditors defended said action through the sheriff, and the issue raised by them in that action and tried was that said bill of sale was in violation of the assignment laws of this State, and was made with intent to hinder, delay, and defraud creditors, and was, therefore, void. That said action was tried, and resulted in a verdict and judgment for the sheriff, from which the plaintiffs in that suit appealed to the Supreme Court, and the appeal is still pending. Even if said judgment is sustained, the property therein recovered will not realize enough to satisfy said judgments and executions.</p> <p>II. That the said Andrew Holtzhouser died on the 5th day of April, 1890, intestate, and the plaintiff, Jane Holtzhouser, was, by an order of the probate judge of this county, duly appointed administratrix of his estate on the 3d May, 1890, and has entered upon the duties of said office, after having duly qualified.</p> <p>III. That on the 4th March, 1884, the defendant, Albert G-. Means, sr., executed and delivered to his brother, the defendant, H. F. Means, a mortgage of all that lot of land in the city of Spartanburg, county and State aforesaid, containing two and three-fourths acres, more or less, and bounded by Church street, the Central Methodist church lot, and lots formerly owned by Mrs. M. E. Nowell and Mrs. M. E. Newell, of which said lot, the said Albert G. Means, sr., was then the owner; that said mortgage, which purports to have been given to secure the payment of six thousand eight hundred and ninety-two dollars and fifty cents, was recorded in the office of the E. M. C. for said county in book No. 10, at page 392, on the 30th January, 1888, to the record of which plaintiffs crave reference as often as may be necessary. That plaintiffs are informed, and believe, that large payments have been made on the debt secured by said mortgage, but exactly how much, or when, they do not know; and they are also informed, and believe, that there is an agreement between the defendants, whereby the defendant, H. F. Means, is to accept, in full satisfaction of his debt, only a part thereof.</p> <p>IV. That plaintiffs are informed, and believe, that on 30th December, 1887, the defendant, Albert G-. Means, sr., being then insolvent, and being then indebted to the plaintiffs on their several demands, on which the judgments hereinbefore mentioned were recovered, with intent to evade the provisions of the assignment laws of this State, and with intent to hinder, delay, and defraud his creditors, made, executed, and delivered to one Robert Beaty, sr., who was his father-in-law, a mortgage to secure an alleged debt of six thousand dollars on the lot above described, and also a bill of sale of all his personal property (except about so much as was exempt from execution), and also a confession of judgment in the Court of Common Pleas for the County of Union, State aforesaid, for the sum of $8,254.61, which said instruments, together with the liens previously given, far more than covered the value of all the property then owned by the defendant, Albert G. Means, sr. That each of the aforesaid instruments was immediately assigned by the said Robert Beaty, sr., to the defendants, Albert G. Means, jr., Sarah J. Archer, Nannie B. Means, Jessie M. Thomson, Maggie H. Chapman, Voluna L. Means, and Bessie A. Heinitsh, who are the children of the defendant, Albert G. Means, sr., and the grand-children of the said Robert Beaty, sr. That the mortgage given by the defendant, Albert G. Means, sr., to the said Robert Beaty, sr., and by him assigned as aforesaid, was, on the 31st December, 1887, recorded in the office of the R. M. C. for this county in book No. 10, page 317, and is claimed by the defendants, to whom it was assigned, to have been a lien on the property hereinbefore described. That the assignment thereof was also recorded in said office in book No. 9, page 701, on January 3d, 1888, and these records plaintiffs desire to be referred to as often as necessary. That the debts alleged to have been due from the defendant, A. G. Means, sr., to the said Robert Beaty, sr., and for which the said mortgage, bill of sale, and confession of judgment are alleged to have been given, were, and are, wholly pretensive and fraudulent; that the assignment of the said instruments to the defendants above named was without any consideration from them, and the said instruments were made, taken, and assigned for the purpose, and with the intent, to assist the defendant, Albert G. Means, sr., to cover up and conceal Ms property and put it beyond tbe reach of bis creditors, with tbe intent to binder, delay, and defraud tbem, and to allow him, tbe said Albert G-. Means, sr., to retain and enjoy tbe use of it, as be has done, just as be did before tbe said instruments were made. That tbe said Robert Beaty, sr., never bad any actual or bona fide interest in said instruments, or the property covered by tbem.</p> <p>Y. That the defendant, H. F. Means, advertised and sold the lot hereinbefore described on salesday in November last, under and by virtue of the power contained in the mortgage to him, on terms of one-third cash, and tbe balance in one and two years, with interest on tbe credit portion from day of sale. That it brought ten thousand and eight hundred dollars—far more than enough to pay the debt due to the defendant, H. F. Means; and that the defendants (except the defendant, Albert G. Means, sr.,) claim the surplus proceeds of said sale, after satisfying the debt due to H. F. Means on the mortgage executed by Albert G. Means, sr., to Robert Beaty, sr., and assigned to them.</p> <p>Wherefore, the plaintiffs pray for an order enjoining and restraining the defendant, H. F. Means, from paying the surplus proceeds of sale, after satisfying the debt due to himself, to any of the defendants, and that he be required to pay the same into this court, to be applied to the valid liens upon said property, according to their priority. That the mortgage, bill of sale, and confession of judgment given to Robert Beaty, sr., by Albert G. Means, sr., assigned to the defendants named herein, be adjudged fraudulent and void, and set aside, and for such other and further relief as tbe facts and circumstances may require, and as to the court may seem just and equitable.</p>

Before Hudson, J., Greenville, April, 1892. This was a proceeding in the Court of Probate by Sarah Bannister against the executors and legatees of John Bannister, deceased, for dower, commenced June 30, 1891. The opinion states the case.

<p>This was an action by Kate B. Gore, a daughter of Benjamin F. Briggs, deceased, against James L. Clarke, and against Joseph F. "Wallace, as executor of the will of the deceased, commenced June 6, 1890. The opinion states the case. The Circuit decree, omitting statements repeated in the opinion, was as follows:</p> <p>The testimony of Major Hart, the counsel who drew the will, as to what was said by the intestate in reference to his intentions in making the will as he did, is competent, because the communications were made to him for the express purpose of being revealed on a contingency which has happened. Hone of the declarations of Briggs, however, as to the intentions with which he gave his estate to the defendant Clarke, are competent to affect Clarke, unless the same were brought home to Clarke before the death of Briggs. In Strickland v. Aldridge, 9 Vesey, 518, Lord Eldon quotes as authority Adlingtún v. Oairn, in which he says: “Lord Hardwieke was clearly of the opinion, that there being nothing in the will attaching a trust, if the testator afterwards by an unattested paper expressing his own intention not communicated, said the purpose was to devote the estate to a charitable purpose, the devisee might object that he had taken under a will well executed. But that is perfectly different from the case of a devisor expressing in the paper a trust which, by contract with the devisee, led to that devise.”</p> <p>The fact that there was some promise on the part of the devisee was important, and he was compelled to answer the bill, so as to admit or deny the promise, or, as I understand the case, the communication to him of the testator’s intention from which a promise would be inferred. This case was in reference to a devise to charitable uses, which were void in the same manner as devises, etc., are void under section 1866, supra. “The case would be different, however, if the devisee had induced the testator to give him the estate absolutely, under an assurance that the unattested paper was a sufficient declaration of the trust for a charity, or under a promise, either express or implied by silence, that if the estate were devised to him, he would perform the trust. * * * But if the will is first made in favor of A and B, and the secret trust is then communicated only to A, the gift will be fixed with a trust with regard to A, but not with regard to B.” See I. Jarm. Wills, pp. 438, 439, and cases cited.</p> <p>The trust which renders the devise void is founded on a promise, either express or implied from silence. Is there any authority on which I am at liberty to rely which applies a different rule to cases like the one before the court? In Taylor v. McRa, 3 Rich. Eq., at page 106, the Court of Appeals in Equity, Chancellor Wardlaw, delivering the opinion of the court, uses the following language: “It is said, however, that the gift to the plaintiff being on the contingency expressed in the will (that the previous devise to the illegitimate children should be declared void by any court in this State authorized so to decide), affords iudubitable evidence of the purpose of the testator to evade the act of 1795. It may be conceded that such was the purpose of the testator, if to keep the provisions of the will out of the operations of the act can be called an evasion ; but surely it is not the province of the court to usurp legislative power, and extend the act to eases not within its enactments. The act does not declare void gifts to a stranger by an adulterer, or the father of bastard children, and it may be well doubted whether such abridgemnt of the jus disponendi would ever have met with favor of the legislature.”</p> <p>It is for the legislature, and not for us, to correct any supposed mischief in the present law on this and all subjects. “It is here held that a mere purpose on the part of the testator, admitted to exist, cannot render the devise void.” Even the dissenting Chancellor Dargan says: ‘ ‘If there were a direct and secret understanding between the testator and himself that he should hold for the benefit of the illegitimates, on proof of that the gift to him would be vacated on application of the wife ; but as regards Taylor, no such fraudulent intent or violation of the act appears on the face of the will. The moral obligation he might or might not fulfill, as his own sense of duty or honor might dictate.”</p> <p>In this case, as in those with respect to charities, it seems to be regarded as settled law, that the unlawful trust must be expressed in the will or other writing, or then by parol, by bringing home before the death of testator the unlawful intention to the donee, and his acceptance or acquiescence by silence when communication is made to him. The case of Belcher v. McKelvey, 11 Eich. Eq., 9, is one which arises under the act of 1841 iu reference to the emancipation of slaves. It is true, it is said in the syllabus, “Where a gift of slaves is made by the donor in contravention of the act of 1841 against emancipation, the gift is void, whether the purpose of the donor is communicated to the donee or not.” In the Circuit decree, Chancellor Wardlaw states the above proposition, but says that the conclusion, however, does not rest on any such doubtful propositions, and on an acceptance of the trust, by holding the defendants liable for the acts of George, the slave, who acted as his agent in the transaction. The Court of Appeals in Equity, by Chancellor Duncan, shares in the apprehension of the Circuit Chancellor, as to the ease with which the act can be evaded, if necessary to bring home to the donee a knowledge of the unlawful purpose, but proceeds to place its judgment on its true grounds—a knowledge of the unlawful purpose brought home to the donee.</p> <p>I do not see so clearly how the case of a voluntary donee, who takes in derogation of the legal rights of creditors, can be considered as analogous to this. The heirs and distributees have no rights to a decedent’s estate, which he may not defeat at his will and pleasure. Creditors, on the contrary, have a right to proceed against the property of their debtor. When the sale is for valuable consideration, the purchase money is supiDosed to stand in the place of that which is sold. If there is an intent to defraud the creditor, and this is communicated to the purchaser, his deed is void. If not communicated, his deed is good. In voluntary deeds, no fraudulent intent is necessary, in order to avoid the deed as to creditors. 8 Am. & Eng. Enc. Law, 752, note 7.</p> <p>I, therefore, regard the law as settled in these cases, that in order to render the devises and legacies of this kind void, the unlawful intent must appear in the will or other writing in due form, or then by parol declaration communicated to the donee, at least, in the lifetime of the testator or donor. My conclusion from the testimony is, that it was the x>ul'Pose of Briggs that Louisa C. Massey and her three illegitimate children should have the use and benefit of the gift to the defendant, James L. Clarke. It has not been proved to my satisfaction that Clarke had any notice of this purpose during the lifetime of Briggs, or made any promise to carry out such trust. Clarke denies the statement of Huckabee as to any conversations with him ; but if all Huckabee says is true, he does not anywhere say that Briggs told him (even if that were evidence) that Clarke had notice, or that Clarke admitted to him that notice of the trust was communicated to him by any one in the lifetime of Briggs. What he may intend to do hereafter, is nothing to the purpose, and he was not required to say when on the stand. Clarke’s credibility as a witness was not impeached, and even in a case where he has much to gain, I do not feel at liberty to reject his testimony.</p> <p>Why put testamentary dispositions in writing, and have that writing carefully and solemnly attested in the presence of witnesses, if without any agreement, or notice, or procurement on the part of a donee, the gift may be swept away by parol declarations to third parties, uncommunieated to the donee? If writing is necessary to guard the provisions of a lawful trust from the uncertainties of parol testimony, why should parol testimony be allowed to defeat a lawful trust, or lawful gift, when the innocent donee has never had any notice of the alleged unlawful trusts, and has no means to protect himself, which notice would have afforded ?</p> <p>I have reached my conclusion, after much consideration, and I may say regret, but I must interpret the law, and not undertake to modify it so as to accord with any sentiment of my own as to what the defendant Clarke ought or ought not to do with the property. It is, therefore, ordered and adjudged, that the complaint be dismissed.</p> <p>The plaintiff appealed on the following grounds:</p> <p>1. For that his honor erred in holding that the declarations of Benjamin F. Briggs, the testator, as to the unlawful purpose and intention with which he devised the balance and residue of his estate to the defendant Clarke are not admissible to affect Clarke, unless knowledge of such unlawful purpose and intention was brought home to Clarke before the death of the said Briggs.</p> <p>2. In holding that, in order to avoid a devise or bequest, as in violation of sections 1866 and 1785 of the General Statutes, there must have been a promise by the devisee to the testator, either express or implied from silence, to carry out the unlawful purpose and intention for which the devise was made.</p> <p>3. Because his honor, having found, as matter of fact, that it was the purpose of Briggs-that Louisa C. Massey and her three illegitimate children should have the use and benefit of the gift to the defendant, James L. Clarke, should have found, as matter of law, that the purpose of Briggs, by any means whatsoever, to defeat, evade, and nullify the provisions of the bastardy act (section 1785 of the General Statutes of South Carolina), was a fraud, not only upon the lawful wife and legitimate children of Briggs, but upon the legislature of South Carolina, and that the bequest to Clarke was void at the election of the wife and legitimate children, whether the purpose and intention of Briggs to perpetrate a fraud upon the law was brought home to Clarke in the lifetime of Briggs or not.</p> <p>4. For that his honor erred in failing to construe together sections 1866 and 1785 of the General Statutes of South Carolina, both being applicable to the case.</p> <p>5. In holding that, in order to render devises and legacies of this kind void, the unlawful intent must appear in the will, or by parol declarations communicated to the devisee or legatee in the lifetime of the testator.</p> <p>6. In holding that, although it was the purpose of the testator Bi'iggs that Louisa C. Massey and her three illegitimate children should have the use and benefit of the gift to the defendant Clarke, the said bequest was not, therefore, void, if it appear that the said defendant had no notice of the unlawful purpose in the lifetime of the testator.</p> <p>7. In not finding from the evidence that the defendant Clarke had notice of the unlawful purpose of the gift to him, under the will of Briggs, before the death of the testator, and in not finding that the said defendant accepted the legacy after he had received such notice of the said unlawful purpose.</p> <p>8. In ruling that the interrogatory propounded by counsel for plaintiff to the defendant Clarke, as to what disposition he intended to make of the property devised and bequeathed to him under the will, was irrelevant and not competent, and that the defendant Clarke was not bound to answer it.</p>

<p>Before Hudson, J., Spartanburg, November, 1891.</p> <p>This was an action by Lillie R. Earle against A. B. Groce, administrator of John Wheeler, deceased, W. L., A. J., and O. P. Morgan. The opinion states the case so far as is necessary to a full understanding of the point decided, which was not raised on Circuit, by exception, or in argument.</p>

Before Hudson, Izlar, and Witherspoon, JJ., Spartan-burg, April, 1889, 1890, 1891. This was an action by Eri H. Jackson, N. W. McDermid, and W. E. Butler, commenced against the Merchants’ Hotel Association of Spartanburg. The appeal came to this court on the following exceptions: I. Because his honor, Judge Hudson, erred in overruling defendant’s demurrer, and holding that the complaint did state facts sufficient to constitute a cause of action. II.

<p>Before Aldrich, J., Chesterfield, May, 1891.</p> <p>The opinion states the case.</p>

<p>Before Wallace, J., Abbeville, January, 1891.</p> <p>This was an action by George W. Anderson and John L. Addison against Addison W. Lynch, commenced May 22, 1889.</p>

Before Fraser, J., Darlington, March, 1891. This was an action by George W. Witte and Arinin F. Witte, copartners as Witte Bros., against Abram Weinberg, commenced February 7, 1889. The Circuit decree was as follows: The case came up on a report of a referee, to whom had been referred all the issues and exceptions on the part of the defendants.

Held, (1) That the finding by the Circuit Judge must be sustained, as there was testimony to support, that view. Held: That the finding by the Circuit Judge must be sustained, as there was testimony to support, that view. (2) That the proceeds of the sale of the young mule must be applied to the notes secured by the mortgage of such mule, no express agreement to apply otherwise having been shown.

Held, (1) That whether the trial judge erred in refusing the motion for a new trial cannot be considered on appeal. Held: That whether the trial judge erred in refusing the motion for a new trial cannot be considered on appeal.

The court said: '“The timber was the property of the plaintiff. Her tenant (Bullock) had it cut, hauled, and sawed into lumber without her knowledge or consent.. We agree with the Circuit Judge, that this conduct of the tenant, without the knowledge of the plaintiff, could uot estop the plaintiff from asserting her right to the property wherever found.

<p>The court said: “All the exceptions but the fifth, in different forms, complain of alleged insufficiency of the proof. That is a matter of fact, which, in a law case, cannot be reviewed by this court, especially where the trial justice and the Circuit Judge concurred.</p> <p>“As to exception 5: 'Because it was error in the presiding judge to order judgment to be entered up in two cases, and for two sets of costs, when the eases were tried together.’ It is true that the amounts involved in these cases were small, but there was no pretence of a joint interest. Each party owned his little account, and brought his own individual action for it. The cases were tried together merely as a matter of convenience. The cases were not thereby consolidated, but still preserved their identity. Judge Wallace had no right to consolidate the two cases, and render one judgment for the aggregate amount of both, and, if he had done so, the judgment might have been set aside as illegal and void.”</p>

The court said : “Exception 1 makes the point that there was error in holding that the answer was frivolous. . It is certainly creditable to the bar that this question has so rarely arisen in this State. The motion in this case was, under section 268 of the Code, for judgment on the answer as frivolous. In such case the rule seems to be settled that, to be adjudged frivolous, the whole answer must be clearly so.