Volume 38 — South Carolina Reports

<p>Before Hudson, J., Richland, April, 1891.</p> <p>This was an action by David Moore against the Columbia and Greenville Railroad Company, commenced February 27, 1889. The opinion fully states the case.</p>

Before Norton, J., Abbeville, October, 1890. This was au action by the Georgia, Carolina, and Northern Railway Company against Rebecca Scott-an cl others, commenced July 28, 1890, to enjoin proceedings instituted by defendants in April, 1890, to obtain compensation for 'a right of way taken by plaintiff under releases executed by William Scott, in September, 1889, and January, 1890.

Before Izlar, J., Colleton, February, 1891. The opinion states the case. The appeal came up upon several exceptions, the only ones considered being the first three, which were as follows: 1.

Before Hudson, J., Spartanburg, November, 1891. In addition to the statement of the case hereinafter made, it will be proper to give copies of the receipts of Mrs. Chaffin and Mrs. Brown. They were as follows: “This is to show that my father has advanced me five hundred dollars in cash as so much advanced on his estate for which I have to pay interest annually from the third day of May, 1884; it being for cash which is value received. Beceived the 28th day of May, 1885.

<p>Before Kershaw, J., Charleston, February, 1892.</p> <p>James K. Bobinson, a citizen and resident of the city and county of Charleston, and State of South Carolina, departed this life in Charleston on or about the 18th day of July, A. D. 1867, leaving of full force his last will and testament, dated the 17th day of October, A. D. 1866. This will'was probated on July 18th, 1867, and the three executors, Mary T. Bobiuson, Stephen T. Bobinson, and John B. Dukes, qualified as such on the same day. The estate was duly administered by these executors, and all the debts paid. No final settlement, however, was made by them, and no trustees were’ever appointed by these executors, as referred to in the fourth clause of the will of the testator.</p> <p>At the time of the death of James K. Bobiuson, he left surviving him his widow Mary T. Bobinson, his daughter Annie B. Bobinson, and his son T. Grimball Bobinson. There had been other children, but all of them had predeceased the testator, intestate and unmarried. Mary T. Bobinson, the widow, went into possession of the estate, aud so remained until the time of her death, hereinafter set out. Thomas Grimball Bobinson, the son of the testator, departed this life, of full age, and unmarried and intestate, on or about the 5th day of December, 1882. John B. Dukes, one of the executors under the will, departed this life before the death of Mary T. Robinson, the widow of testator. Mary T. Robinson, the widow of the testator, died on or abotit the 15th day of October, 1883, unmarried and intestate.</p> <p>Annie R. Robinson, the daughter of the testator, was thus left the sole lineal descendant of either the testator or his wife; she was of full age at the time of the death of Mary T. Robinson, her mother, and she is still alive and unmarried, and aged about forty-two years. After the death of Mary T. Robinson, Stephen T. Robinson filed his formal renunciation of executor-ship, and by the decrees and orders of the Probate Court, dated respectively the 24th day of July, 1885, and the 16th day of September, 1885, letters of administration de bonis non, cum testamento annexo, were issued to Annie R. Robinson upon the estate of her father, James K. Robinson. She has given the necessary bond, and duly administered the affairs of the estate from that time until now. Annie R. Robinson was also appointed administratrix of the estate of Mary T. Robinson on the 1st day of January, 1884, and administratrix of the estate of Thomas Grimball Robinson on the 1st day of January, 1884. She has 'duly given bond in these estates, and has paid such debts as there were existing against them, and has duly and legally administered on the affairs of the said estates. Since the death of her mother, she has been in entire and complete possession of all the property and assets of the estate of her father, brother, and mother.</p> <p>Among the other property of the estate of James K. Robinson, there was a certain piece of real estate in the city of Charleston, on the southwest corner of Chapel and Alexander streets, which had been leased by Mary T. Robinson in her lifetime to Charles L. Ostendorff, the defendant, and others. A full description of this real estate is annexed hereto. On the 30th day of January, 1884, Annie R. Robinson made a lease of a part of this property to C. L. Ostendorff for ten years (the other portion of the property being rented by her to other people). C. L. Ostendorff, desiring to purchase this entire - property, Annie R. Robinson thereafter, to wit, on the 5th day of March, 1891, made an agreement of purchase and sale with him for the whole of the property. This agreement of parchase and sale is made by her in her own right, and as administratrix de bonis non, cum testamento annexo, of James K. Robinson, in which manner she is ready to make a deed to the said C. L. Ostendorff. A copy of this agreement of purchase and sale is hereto annexed. Miss Robinson deems it proper and expedient to sell this property for a change of investment, as it is unprofitable, and yields little or no income.</p> <p>The parties desire to complete the transaction, but the said defendant, C. L. Ostendorff, desires first to have the decision of the court as to whether the deed of the said Annie R. Robinson, in her own right, and also as administratrix de bonis non, on,m testamento annexo, aforesaid, will pass a good and valid title to the said property. And for this reason this case is submitted to the court as a “controversy without action.” And the said vendor requires specific performance at the hands of the purchaser. It is also admitted, that the sale and change of investment are desirable and advantageous, and that the price is a full one.</p> <p>■WILL OK JAMES K. ROBINSON. * * *</p> <p>Item. — I recommend and direct that all my just debts be paid.</p> <p>Item. — To my beloved wife, Mary T. Robinson, I give and bequeath all my household goods, silver, and furniture, or any rights I may have in them, to her own use and behoof, forever. Likewise, I will and bequeath to my wife, Mary T. Robinson, during her widowhood, all my estate, both real and personal, of whatever kind or condition, to have and to hold the same during her widowhood or natural life, and at her decease or marriage, to revert to my children, according to the laws of the State of South Carolina; the children of a deceased child to take, by representation, the share such child would have taken if then living. It is my will, that the portion or portions of my daughter or daughters, as may be, shall be invested in trustees, to be appointed by my executrix and executors, for their own proper use, and not liable for the debt or debts of their husband or husbands, as may be; and at the death of my daughter or daughters, shall be divided among their children, share and share alike, the child or children of a deceased child taking the share to which, such child would have been entitled.</p> <p>Item. — I hereby appoint my wife, Mary T. Bobinson, my executrix, and my brother, Stephen T. Bobinson, and my friend, John B. Dukes, my executors, of this my last will and testament; and I hereby authorize and empower executrix and executors to sell such portion of my estate, either real or personal, not otherwise bequeathed, as may be deemed proper and expedient, for a change of investment from time to time, or for other purposes.</p> <p>Item. — I authorize my executrix, if she should think proper, and with the joint concurrence of my executors, to pay over to either of my children, on their coming of age, a portion of my estate — not, however, exceeding one-half of the estimated amount of such portion as would be coming to such child at her decease, also having regard to the settlement on the females.</p> <p>In witness whereof, &c. [Duly executed and probated.]</p> <p>AGREEMENT OE PURCHASE AND SALE.</p> <p>The State or South Carolina. Annie B. Bobinson agrees to sell, and G. L. Ostendorff agrees to purchase, the property set out below on the terms named: Lot on the corner of Alexander and Chapel streets, in the city of Charleston, at present under lease to the said Ostendorff, by lease from Miss Bobinson, dated January 30th, 1884, and on which the said Ostendorff has erected certain structures; and also the lot lying next west of the above, and at present in the occupation of a colored tenant of Miss Bobinson (the full description of said two pieces of property being hereto annexed). Terms.— Three thousand five hundred and fifty dollars cash, and purchaser to pay all taxes payable in 1891, and $25 for deed. The lease of 30th January, 1884, above referred to, to continue until the purchase money is paid, and then the rent to be settled for and lease cancelled iu full. Witness the hands and seals of the parties, this 5th day of March, 1891.</p> <p>Annie B. Bobinson, [l. s.]</p> <p> In her own right, and as administratrix ivith the will annexed, de . bonis non, of James K. Robinson. </p> <p>O. L. Ostendorff, [l. s.]</p> <p>In the presence of</p> <p>Edward J. Pepper.</p> <p>Edward Steenkin.</p> <p>[Here follows full description of property.]</p> <p>The decree of the Circuit Judge was as follows:</p> <p>This is a controversy without action, and came on to be heard upon an agreed statement of facts, which are fully set out in the case, as consented to on both sides.</p> <p>Miss Robinson, in her own right, and also as administratrix with the will annexed, de bonis non, of James K. Robinson, her father, has contracted to sell to the defendant certain premises fully described in the case. The defendant is desirous of meeting his contract, but has some hesitation with regard to talcing the title until it has been passed upon and confirmed by court. The defendant’s fear is that Miss Robinson only took a life estate in the property, under the will of her father. I do not so construe the will, as appears hereinafter in this opinion. But, granting that this is the case (for the purposes of reaching a ripe conclusion), even then I think that the title, under the present circumstances, would be a good one, and that for the following reasons:</p> <p>1 First. In the first place, even if Miss Robinson took only a life estate under the will of her father, I am of opinion that the legal title to the property would be in her. While there is some direction in the will as to trustees being appointed by the executors and executrix, yet, as a matter of fact, this was never done, and both the executrix and executors have long since departed this life. In addition to this, under the law in this State, the trust was a dry trust, and executed by the statute, for there was nothing to be done by the trustees, who were merely to hold the property for the daughters, 1 ‘for their own proper use.” Bam,say v. Marsh, 2 McCord, *252; Roioard v. Renderson, 18 S. C., 188. It is true, that the words, “and not liable for the debt or debts of their husband or husbands,” are used in the will. But, under the Constitution of 1868, the law provided that a woman’s estate should be free from her husband’s debts, and hence there was no use for the trustees to be appointed for this purpose. And there was no other duty required of the trustee which the Constitution did not provide for. Witsell v. Charleston,) 7 S. C., 88-103. Therefore, both under the statute of uses and under the Constitution of 1868, the legal title would vest in Miss Robinson.</p> <p>2 Secondly. Miss Robinson is also the administratrix with the will annexed, de bonis non, of the estate of James K. Robinson, and under the law in this State succeeds to the rights of the executors. Gen. Stat., §§ 1881, 1972. The executors under the will had full power of sale, in their discretion, for the purpose of investment or otherwise; and from the facts of the case, it appears that Miss Robinson, as administratrix, is exercising this discretion, and is selliug for the purpose of a necessary reinvestment. Her title as administratrix, therefore, would also appear to be good.</p> <p>3 Third. Even if, however, the above were not the case, then this court, as a court of equity, could confirm the sale to Ostendorff, and order the conveyance made by Miss Robinson; under the construction that she only took a life estate, the remainder would be to her children, provided she left any. There is no provision made, however, in the testator’s will, or the contingency of her dying childless, and hence he died intestate as to this, at the time of his death, and Miss Robinson would, therefore, take this remainder. 2 Jarm. Wills, 870; Joslynv. Hammond, 3 Myl. & K., 110. As' a matter of fact, she is unmarried, is now forty-two years of age, and is the sole lineal descendant of the testator, her father; all others are mere strangers. All parties, therefore, are before the court, who are in being, and who have any interest whatsoever in the property. It is, therefore, competent for this court, as a court of equity, to treat this proceeding as a request to sell, and to confirm this sale as a judicious one, for a change of investment. It is admitted in the facts of the case, that the sale is an advantageous one, and the change of investment desirable, and that the price is the full value of the property. And this court has a full right to confirm this sale and order the title made to the purchaser.</p> <p>On the above three grounds, therefore, I hold that the sale would be a good one, and should be confirmed and ordered by this court, even if the estate of Miss Robinson were treated as a life estate.</p> <p>4 But, as already stated, I do not think that the daughter took a life estate under the will of her father. A brief examination of this will, will show that the wording is peculiar. The testator states, that at the death of his wife, the life tenant, the property is to “revert” to his children, according to the laws of the State of South Carolina, the child or children of a deceased child to take the share the parent would have taken if then living. It would be possible to treat the word “revert” either in its technical sense, or else to construe it as the equivalent of “give” or “to go to.”</p> <p>I will first ascertain what the construction of the will would be, treating this word in the first of those meanings. If the testator used the word “revert” in its technical sense, then this reversion either vested at the time of his death or else it took effect at the time of the death of the life tenant. If his intention was, under the will, for the reversion to take effect at the time of his death, then the testator, under the cases, did nothing under the will but dispose of a life estate, and as to the rest of the estate, he merely directed it to vest in such persons as the law would have given it to, if he had died intestate. For he merely lets it “revert” to his children. In other words, the effect of that portion of his will was the same as if he had made no further will at all, after he had disposed of the life estate to his widow; and, hence, under the cases, the children would take, not under the loill, but independently of the will, by the statute, and all subsequent limitations over, would have failed, because they took under the statute and not under the will. 4 Kent Com., 355; 6 Am. & Eng. Ene. L., 897.</p> <p>If, however, the testator intended the word “revert” to be used in its technical sense, but not to take effect until the termination of the life estate, then the fee would never have vested, at the time of his death, in any one; and hence, under the law, it would have vested immediately in the wife and two children, descending, of course, under the facts of this case, to Miss Robinson, the surviving child, upon the death of her mother and brother intestate. Seabrook v. Seabrook, McMull. Eq., 206; Bochell v. Tompkins, 1 Strob. Eq., 114; Brooks v. Brooks, 12 S. C., 457; Andreios v. Loeb, 22 Id., 274. The last case above cited is almost identical with the present one.</p> <p>5 If, however, the word “revert” in the will be construed as an equivalent of the word “go to,” or “I leave,” then the testator would speak as follows (Jiggetts v. Davis, 1 Leigh (Ya.), 404): “I leave my property to my wife for life or widowhood, and at her death or marriage, the same is ‘to go to’ my children, according to the laws of the State of South Carolina, the children of a deceased child to take, by representation, the share such child would have taken if then living.” Under the law in this State, as shown by a number of cases, this would be a life estate in the wife, with contingent remainders in fee to either the children or to the grand-children, as the case might be. Dehon v. Bedfern, Dudley Eq., 115; S. 0. Rice, 464; Faber v. Foliee, 10 S. C., 388; McBlwee v. Wheeler, Ibid., 404. And the remainders over, in the attempted limitation to the children of the daughters, in the subsequent clause of the will, is also a contingent remainder, for the testator directs that the portions of the daughters, at their death, to be “divided among their children, the child or children of a deceased child taking the share to which such deceased children would have been entitled.” There would, therefore, be two successive estates in contingent remainder in fee, the one subsequent to and dependent on and through, and not instead of the other, and the later one not to take effect unless the other first took effect.</p> <p>These remainders over to the children of the daughter, after the life estate, which is claimed to have been created, would be void for two reasons:</p> <p>First. Because, inasmuch as there was a contingent remainder in fee to the first taker, no remainders in fee could be limited over afterwards, inasmuch as a fee cannot be mounted upon a fee. 4 Kent Com.,-199; 2 Wash. R. P., 568, 575. The subsequent fee to the children of the daughters, in case they died leaving children, would be repugnant to. the fee first given them. Moore v. Sanders, 15 S. C., 440.</p> <p>Secondly. As has already been seen, after the estate, which is given to the daughter, the testator endeavors to create another contingent remainder, for the property is then to be divided among the children of the daughter, or, if they have died, among their children; these, as already shown, are also contingent remainders to the children of the testator’s daughters, or the children of such children. And the will must be read and construed as at the testator’s death, for all these estates in remainder must have been created at the same time when the particular estate, claimed to support them, passed out of him. Faber v. Police, 10 S. C., 387; 6 Am. & Eng. Ene. L., 897. We would thus have subsequent contingent remainders, limited and depending upon prior contingent remainders, for we would have the contingent remainders to the children and grand-children of the daughter depending upon the prior estate of the daughter, which, at the time of the testator’s death, was only a contingent estate. Hence, the contingent remainders to the children or grand-children of the daughters would have no previous particular estate to support them, for, at the testator’s death, the estate of the daughters was a mere contingency. There being, therefore, then, no particular estate, the contingent remainders over were void. Cases last cited.</p> <p>It is clear, also, both on principle and authority, that, for another reason, a contingent remainder cannot be thus limited after and dependent upon a prior estate in contingent remainder. The law is, that contingent, remainders may be limited collaterally along with other contingent remainders, so that if the first contingent remaindei’ does not take effect, the others may. But where the last contingent remainder is subsequent to the first, and depending upon it, and cannot take effect unless the first contingent remainder becomes of force, then the subsequent contingent remainder is void and useless, for the very simple reason, that a contingency cannot be made to depend upon a contingency. The successive contingencies must be substituted for the prior ones, and not succeed and come through them. 2 Wash. B. P., 575 and 576; 4 Kent. Com., *p. 200. In other words, if the first estate be a certain estate, any number of contingent estates may hang upon it, collateral to each other, and to take effect successively to and in place of the prior ones if the latter do not take effect. But if the first estate be itself a contingent one, not fixed, but doubtful, and it is necessary for the following contingencies to be subsequent in time, and to depend upon, and come through, the prior contingency, the subsequent ones are void. Now, at the death of Mr. Robinson, it did not appear that his daughters would ever take any estate, and hence the attempted estate to their children, through them, failed as void.</p> <p>I,therefore, take the view, that whether or not the words “revert” be construed in their technical meaning, or as the equivalent of “give,” in either event, the subsequent contingent remainders to the children of Miss Robinson never took effect, and the fee in the property vested in her, as to a part of the property, upon the death of the life tenant, and as to the whole of it, upon the death of her brother intestate. I am, therefore, of opinion, and hold, that the deed of Miss Robinson, in her own right, and as administratrix with the will annexed, de bonis non, of James K. Robinson, would convey a valid title, and that the proposed sale is a desirable and judicious one, and should be'carried into effect.</p> <p>It is, therefore, ordered, adjudged, and decreed, that the sale by the plaintiff to the defendant be confirmed and carried into effect, and that the plaintiff give her deed in her own right, and as administratrix with the will annexed, of James K. Robinson, and that the defendant, C. L. Ostendorff, forthwith comply in accordance with the terms of the contract set out in the record. And that defendant pay costs.</p> <p>The defendant appealed on the following exceptions:</p> <p>I. Because his honor erred in holding that if Miss Robinson only took a life estate under the will of her father, that still the legal title to the property would be in her.</p> <p>II. Because his honor erred in holding that the title of Miss Robinson, as administratrix of her father, would be good.</p> <p>III. Because his honor erred in holding that the deceased Robinson died intestate as to this property, and his daughter Miss Robinson would, therefore, take this remainder.</p> <p>IY. Because his honor erred in holding that the sale would be good, and should be confirmed and ordered by this court, even if the estate of Miss Robinson were only a life estate.</p> <p>Y. Because his honor erred in holding that whether or not the word “revert” be construed in its technical meaning or as equivalent to “given,” in either event the contingent remainders to the children of Miss Robinson never took effect, and the fee in the property vested in her upon the death of her brother intestate.</p> <p>YI. Because his honor erred in holding that the deed of Miss Robinson, in her own right, and as administratrix with the will annexed, de bonis non, of James K. Robinson, would convey a valid title.</p> <p>YII. Because his honor erred in holding that the title tendered to the defendant is a marketable title, and must be accepted by him as such.</p> <p>This controversy without action having been signed and sworn to only by the attorneys, the parties filed with the record an affidavit in the form prescribed by statute, and ratifying and confirming the action of their attorneys. This affidavit was signed by the parties themselves.</p>

Before Wallace, J., Greenville, March, 1891. This was an action by the Miami Powder Company against the Port Boyal and Western Carolina Bailway Company.

Before Norton, J., Anderson, October, 1890. This was an action by W. G.Watson and another, as administrators, against A. M. Neal and others, commenced in January, 1888. The opinion sufficiently states the case.

Before Kershaw, J., Chester, March, 1891. This was an action by Mary McCandless against the Richmond and Danville Railroad Company, commenced February 3, 1891, to recover damages for wood, timber, &c., of plaintiff, burned in July, 1890, by a fire which originated in a spark from one of defendant’s engines.

<p>1. Married Women — -Alienation.—The absolute power of alienation of her own property given to a married woman by the Constitution is not affected by the statutes which limit her powers of contract.</p> <p>2. Ibid. — -Ibid.—Assignment.—This constitutional right of alienation is not a contract within the meaning of these limiting statutes ; and an assignment of a married woman’s bond and mortgage, made by her on the consideration of further indulgence to her son, and to assist in paying his debt, is a valid alienation of her property, and passes a good title to her assignee.</p>

Before Wallace, J., Newberry, January, 1891. In this case Robert Aldrich, Esq., sat in the place of Mr. Justice Pope, who had been of counsel in the court below. It was an action by E. P. Chalmers, as administrator of Sparta C. Kibler, deceased, against C.W. Kinard and others, in which the claim considered was presented and adjudicated.

Before Fraser, J., Edgefield, August, 1891. These were two actions instituted by Thomas Lanham and Susan Lanham against George B. Lanham and others. The opinion sufficiently states the case.

Before Witherspoon and Fraser, JJ., Fairfield, July, 1890, and November, 1891. Held: that his possession, as against these defendants, was wrongful and without authority of law, he having taken possession after the filing of lis pendens in the case, of Cassandra H. Babb v. David B. Flenniken and Thos. W. Babb. 4.

<p>Before Witherspoon, J., Greenville, July, 1891.</p> <p>These were two actions against J. P. Latimer and J. H. Latimer, executors of Hewlett Sullivan, and others, one by Charles M. Sullivan and the other by Thomas J. Sullivan and others. The first action was commenced October 6, 1887. The Circuit decree was as follows:</p> <p>Hewlett Sullivan died testate May 30, 1889, leaving a considerable real and personal estate estimated to exceed one hundred thousand dollars in value. The testator, Hewlett Sullivan, was a bachelor of some eighty years of age at the time of his death. The plaintiffs and defendants in the above actions are legatees and devisees under the will of Hewlett Sullivan; the defendants, Joseph«P. Latimer and John H. Latimer, have duly qualified as executors of the will of Hewlett Sullivan. The object of the above action is to require the defendants, Dr. Joseph P. Latimer and John H. Latimer, to account as executors of Hewlett Sullivan, and to have the estate of Hewlett Sullivan administered by a receiver under the direction of the court.</p> <p>The two actions were consolidated, and were heard together. The master being disqualified, it was referred to L. K. Clyde as special master to take the accounts of the executor; and the defendants, Dr. Joseph P. Latimer and John H. Latimer, were required to establish by competent testimony before said special master their respective claims against the estate of Hewlett Sullivan for services rendered the said Hewlett Sullivan during his lifetime. The testimony taken by the special master is voluminous, covering more than 300 pages of written matter. No effort seems to have been made before the special master to surcharge or falsify the executors’ return. The special master filed his report March 24th, 1891, in which he finds that the following amounts are due by the estate of Hewlett Sullivan to the defendants, Dr. Joseph P. Latimer and John EL Latimer, respectively:</p> <p>To Dr. Joseph P. Latimer: $500 per year for six years, for services rendered Hewlett Sullivan in attending to his business; $1,500 per year for six years, for services rendered Hewlett Sullivan as a physician; $500 a year for four years, for boarding and nursing Hewlett Sullivan — aggregating $14,000.</p> <p>To John H. Latimer: $350 per year for six years, for services rendered Hewlett Sullivan — aggregating $2,100.</p> <p>The special master held that the statute of limitations would bar any claim for services rendered prior to the six years immediately preceding the death of Hewlett Sullivan. The special •master concluded, and reports that the defendants, Dr. Joseph P. Latimer and John H. Latimer, are not liable to account to the estate of Hewlett Sullivan for certain judgments in said report referred to. The special master states in his report that the executors have acted under the advice of counsel in the management of the estate, and in view of the size and character of the estate, have made reasonable progress in the settlement of the estate. Plaintiffs and defendants have excepted to the report of the special master upon numerous grounds, and the counsel were heard upon said report and the exceptions to said report. The important points raised by the exceptions have been ably argued by counsel.</p> <p>The special master permitted Joseph P. Latimer and John H. Latimer to introduce their books of account, merely to show that charges had been made for the services alleged to have beeu rendered. This is one of the grounds of plaintiffs’ exceptions, and during the argument the counsel for Dr. Joseph P. Latimer and John H. Latimer, without objection, withdrew the books as evidence in the case. I do not think the special master erred, as alleged in the exceptions, either on admitting or excluding evidence, under section 400 of the Code. I will not undertake to refer to the numerous exceptions seriatim, or attempt to cite any portion of the voluminous testimony. It seems to me that the evidence is sufficient to sustain the special master in his finding as matter of fact, and I concur with the special master in his conclusions as matter of law.</p> <p>From this decree Charles M. Sullivan and John D. Sullivan appealed upon twenty-two grounds, raising the points considered by this court.</p>

Before Norton, J., Florence, October, 1891. This was an action by William E. Brown and James Brown, as executors, against Louisa A. Brown and others. So much of the Circuit decree as recited the facts, and passed upon the parol gifts, is stated in the opinion; so much as related to the question of usury was as follows: The Am. F. L. Mort. Co., $7,500 and int. at 8 per cent, on its mortgage, dated June 28th, ’87.

Before Hudson, J., Union, October, 1891. This action is thus correctly stated by Mr. Justice Pope in his dissenting opinion: In 1865, William Long, senior, by his will directed that the whole of his estate, real and personal, should be divided into nine shares — one of which he gave to each of his eight children and one to be equally divided between his grand-son and granddaughter, who were the children of a pre-deceased son; that the share of such devisees should be enjoyed…

Before Aldrich, J., Richland, October, 1891. This was an action by Emma W. Price, as administratrix of Philip H. Price, deceased, against the Richmond and Danville Railroad Company, commenced August 30, 1888.

This was a motion to dismiss an appeal on grounds fully stated in the opiniou of this court. The motion was granted November 25, 1892, by the following order Per Curiam.

<p>1. Homicide — Malice.—The trial judge, in a murder case, after stating to the jury some circumstances which would be evidence of malice, said, “Now, if there are no such external evidences, you will imply malice from the act itself.” Held, that in this there was error, as the jury might have understood the charge to mean that, in the absence of the circumstances stated, they should imply malice.</p> <p>2. Ibid. — Ibid.—And, moreover, malice is not to be implied from the mere act of killing, where all the circumstances of the homicide are proved, as iu this case.</p> <p>3. Ibid. — Charging Juries. — The judge having charged that a man wrongfully assailed may strike, not only to save his own life, but, also, to save himself from some grievous bodily harm, the jury could not have been misled by his other limited statement, that a man so assailed may strike to save Ms life.</p> <p>4. Ibid. — -Ibid.—Case Criticised. — In charging that one assailed may not take the life of his adversary, unless there is “no other way of saving himself,” there was no error. This case distinguished from State v, Jones, 29 S. 0., 236.</p> <p>5. Ibid.' — Self-Defence.—In instructing the jury that they must be satisfied of the existence of the facts necessary to sustain a plea of self-defence before they could give the accused the benefit of such plea, the trial judge did not err, as his charge did not require the jury to be so satisfied beyond a reasonable doubt.</p> <p>6. Ibid. — Ibid.-—Reasonable Doubt — Case Criticised. — The accused is not required to establish his plea of self-defence beyond a reasonable doubt. State v. Bodie, 33 S. C., 132, approved.</p>

<p>1. Motions for New Trial on the Ground op After Discovered Evidence should be entertained with great caution.</p> <p>2. Ibid. — Law Cases — Appeal.—Such a motion, made in a law case, was, in the discretion of the Circuit Judge, refused, because he was not satisfied that the alleged evidence could not have been discovered before the trial by the exercise of due diligence, or that it was material. Held, that this ruling, being based upon findings of fact, could not be reviewed on appeal.</p>

Before .Hudson, J., Abbeville, January, 1892. In these two cases, Henry A. Meetze, Esq., sat in the stead of Mr. Justice McGowan, disqualified by relationship to defendant. Actions by Edward H. Booker against Augustus W. Smith, commenced in May, 1891, to recover on attachment bonds executed by defendant in the two cases of Wage tier v. Booker and Watkins & Davenport v. Booker.

This was a petition by John Gary Evans, a taxpayer, presented to this court, in its original jurisdiction, to enjoin B. R. Tillman, governor, and- W. T. C. Bates, State treasurer, to carry out a contract made by them with the Baltimore Trust and Guarantee Company. The terms of this contract, in all of its material particulars, are stated in the dissenting opinion of the Chief Justice.

Before Izlar, J., Lexington, February, 1892. In this case, Ernest Gary, Esq., sat in the place of Mr. Justice Pope, who had been of counsel in the cause. It was an action by Elizabeth E. Fort, as administratrix, against W. J. Assmann, late clerk of the Circuit Court for Lexington County, and the sureties on his official bond, commenced in August, 1891. The opinion states the case.

Before Fraser, J., Greenville, July, 1892. The defendant, George C. Head, was indicted for stealing one gold watch and umbrella, worth thirty dollars, the property of H. 0. Brabham, and one watch, one shirt, one pair of shoes, and one razor, of the value of twenty-one dollars, the property of W. E. Harter — all at Greenville — on February 12, 1892.

Before Aldeich, J., Lexington, September, 1891. The defendant, Nathan J. Néese, was indicted for selling “certain wines and bitters, of which spirituous liquors formed the principal ingredient,” in the lower section of Lexington County, on January 15,1891. The liquors sold were buckthorn bitters, gin bitters, and Schiedam schnaps.

Before NortoN, J., Chesterfield, February, 1892, and Izlar, J., Marion, October, 1891.

<p>Before Hudson, J., Colleton, November, 1892.</p> <p>Indictment against Caleb Smith for murder.</p>

Before Wallace, J., Union, October, 1890. Action by Sarah J. Archer and others against J. G. Long, sheriff. A. G. Means, witness for plaintiffs, being cross-examined by defendant’s counsel, testified that the book in his hand was an account kept by himself and in part by Mr. Beaty, and showed his business dealings with Mr. Beaty.

<p>Non-Suit — Defect in Bridge — Proximate Cause. — While plaintiff was driving her horse and buggy on a bridge across a public stream, the horse shied at a piece of timber which had been put there for the purpose of repairing the bridge, and the buggy was backed over the side of the bridge at a point where there were no side railings, and plaintiff was thrown into the stream below and injured. The trial judge having granted a non-suit, this court declined to declare error in bis order; because, even if the absence of the railing could be called a defect in the repair of a bridge, it was not shown to have been the proximate cause of the accident.</p>

Before Hudson, J., Spartanburg, October, 1891. This was an action byL. Miles Gentry against the Richmond and Danville Railroad Company, to recover damages for injury to land. On the cross-examination of plaintiff, while on the witness stand, he was asked at what price he had sold the land, above the factory, to the Beaumont Mills in 1890. Objection to this question was overruled.

<p>Before Izlar, J., Richland, April, 1892.</p> <p>Action by David Blum against Richland County, commenced November 2, 1891.</p>

Before Hudson, J., Charleston, July, 1892. This ease turns upon the construction of the fourth item of the will of M. C. Mordecai. This will referred to a fund belonging to testator’s sister, as to which he released all claim.

<p>Before Izlar, J., Laurens, September, 1892.</p> <p>Action by J. F. Park against L. R. Brooks, commenced January 28, 1892.</p> <p>Plaintiff being asked, as a witness, as to a credit on the note sued on, defendant objected on the ground, that the complaint did not allege a new promise, and that no promise is admissible unless in writing, and signed by the party making it. The court ruled as follows:</p> <p>There is a preliminary question in this case, and that is, whether the complaint sufficiently alleges a new promise. The plaintiff, after setting out that this note was made, and certain payments were made on it from time to time, alleges that on December 7, 1891, the defendant, L. R. Brooks, made a new promise to pay what was due on said note, principal and interest, by paying to the plaintiff, and having it credited on said note, the sum of ten dollars; that, after said new promise to pay the balance of said note, principal and interest, he paid, December 17, 1891, to the plaintiff, on said new promise to pay said note, the sum of fifteen dollars, which was duly credited thereon. Mr. Martin contends that that is not a sufficient allegation of a new promise to warrant the court in allowing the witness to testify as to that new promise. In the first place, he says that the new promise should be in writing, and signed by the party making it. I do not agree with Mr. Martin on that point, but hold that if the allegation of a new promise is sufficiently made, it would not be necessary for it to be in writing and signed by the party, if it was by way of payment which constituted the new promise.</p> <p>This is the first complaint I have seen in which an attempt is made to carry out the new rule as laid down by the Supreme Court; but if I were the pleader, after stating the fact that the defendant had made the old note, and that six years had expired, I would have continued, and stated that, on the 7th of December, 1891, the defendant, in consideration of the moral obligation upon him to pay this debt, thereby promised to pay to the plaintiff the balance of the said note, and did, at that time, pay to the plaintiff so many dollars and so many cents, which he directed to be credited upon the note. That would have given the consideration which was the foundation for the new promise, the party to whom the promise was made, and the evidence of it would be the payment that was endorsed upon the note; and that is the only way I see in which it can be done. I do not think the simple assertion that a man made a new promise is an allegation of a new promise. One is a conclusion of law, the other is a fact which must be alleged.</p> <p>Let Mr. Watts ask his question again, then let Mr. Martin state the grounds of his objection, and I will rule definitely upon it. I would like the question to be passed upon by the Supreme Court, and I trust the case will be carried up.</p> <p>Q. (By Mr. Watts.) Look on the back of that note, Mr. Park, and see if there was a payment made and credited there December 7, 1891? (Objection by Mr. Martin to plaintiff’s proving any endorsement on the note, on the grounds: First, that such action would be an attempt to prove a different cause of action from that stated in the complaint; and second, it being after the expiration of the six years statutory period, a new. promise to pay would have to be in writing, and signed by the party making such promise.)</p> <p>By the Court: I will sustain the objection to the testimony in regard to the payment referred to, because its introduction is an attempt to prove a different cause of action from that alleged in the complaint. I overrule the objection that the new promise to pay must necessarily be in writing, and signed by the party making it. As I understand it, a payment not signed by the party making it may be sufficient evidence of a new promise. (Mr. Watts entered an exception as to first part of ruling.)</p>

Before Fraser, J., Abbeville, June, 1892. Action by the Georgia, Carolina and Northern Railway Company against G. 0. Ridlehuber, trustee, F. C. Ridlehuber, and others, commenced October 16, 1890.

<p>1. Foreign Corporations — Service—Jurisdiction.—An action instituted, without attachment, against a foreign corporation by order for publication in a New Hampshire newspaper, followed by personal service on its managing agent in that State, based upon a contract made in this State, dismissed for want of jurisdiction in the courts of this State to render a personal judgment against a non-resident corporation having no property or agent here. The authority given by section 155 of the Code to make service of a summons, “in respect to a foreign corporation only when * * * the cause of action arose therein,” does not authorize a personal judgment on such a corporation.</p> <p>2. Petition for Rehearing granted, where the court had, perhaps, been misled by the confusion arising from hearing two oases together.</p>

<p>1. Mandamus — State Treasurer. — A writ of mandamus may be issued to require tbe State treasurer to perform any official duty of a ministerial character.</p> <p>2. State Treasurer — -Rules—Transfer of Stock — Executor.—The law does not require a legatee, on'demanding a transfer of State stock bequeathed to him by the will of the testator in whose name the stock stands on the treasurer’s books, to produce a certificate from the judge of probate that the executor is authorized to transfer such stock. The State treasurer cannot enforce such a rule, as the law has not authorized it.</p> <p>3. Executors — Transfer of Stock — ,Derts—Mandamus.—One executor may sell under a power given to all, or assent to a legacy, or transfer assets of the estate, without an order of any court. But where an executor assented to his own legacy of State stock, and directed the State treasurer to transfer such stock to himself individually before the expiration of the twelve months after testatrix’s death, allowed by law for tbe ascertainment of debts, the court refused to issue its writ of mandamus, commanding the State treasurer to make the transfer, but without prejudice to relator’s right to renew his application at the proper time.</p>

<p>Oar Breaking — -Statutory Oeeence — Surplusage.—Under a statute which made it a criminal offence to break into any car in the night time with intent to commit the crime of larceny, the indictment charged the defendant in the words of the statute, and then added that defendant stole bacon out of this car, the property of F. Held, that the indictment charged only the offence of car breaking, and the added words did not charge the separate crime of larceny, and might be treated as surplusage ; there was no error, therefore, in refusing to require these added words to be stricken from the indictment.</p>

Before Hudson, J., Orangeburg, May, 1892. Indictment against Jefferson M. Way for the murder of one Whetstone, in December, 1891.

Before Fraser, J., Newberry, March, 1892. Indictment against John Davenport and Richard Davenport for grand larceny, committed in November, 1891. The judge charged the jury as follows: The defendants are charged with grand larceny — that is, feloniously taking and carrying away the personal property of another over the value of twenty dollars.

<p>1. Misjoinder of Offences. — Several distinct offences may be included in separate counts of the same indictment. If they grow out of the same transaction, the jury should be instructed to make their verdict conform to their findings on the several counts. If the offences have no connection, the trial judge should require the solicitor to elect.</p> <p>2. Ibid. — There being in this case a count for burglary, a second count for larceny (not alleged to be of the goods intended to be taken as charged in the first count), and a third count for receiving the goods alleged in the second count to have been stolen, there was no misjoinder of offences. And the charge of burglary not being tried, and the jury properly instructed as to their verdict on the other two counts, the defendants cannot complain.</p> <p>3. Criminal Laiv — Misjoinder op Dependants. — Charging A, B, and C with burglary in one count, A, B, and G with larceny in a second count, and C with knowingly receiving from said A and B the goods so alleged to have been stolen, is not a misjoinder of persons.</p>

Before Fraser, J., Oconee, July, 1892. Action by Edmund L. Herndon, as receiver of Adger College, against Margaret I. Gibson, Mrs. C. H. Biemann, and Joseph W. Holleman, as master for Oconee County. Held: that if anything was done with the intention of interfering with the full competition at the sale, such conduct was a fraud on the rights of the plaintiff, and vitiated the sale.

<p>Before HUDSON, J., Greenville, March, 1892.</p> <p>Appeal by J. E. Hagood, receiver, from order disallowing his claim, presented under a call for creditors in the case of Julius C. Smith, as administrator, against Margaret M. Steen el al.</p>

Before Fraser, J., Spartanburg) January, 1892. Action by the Whitney Manufacturing Company against the Richmond and Danville Railroad Company. A witness for plaintiff, being examined by Mr. Simpson, plaintiff’s counsel, was asked: ‘What do you know about the Archer switch, as to receiving cotton from the Archer switch, unloading cotton from the switch?

<p>Before Hudson, J., Greenville, April, 1892.</p> <p>This was an action by the. National Bank of Greenville against William A. Jennings and others.</p>

Before Hudson, J., Greenville, March, 1892. Action by James H. Latimer against J. P. Latimer and John H. Latimer, as executors of Hewlett Sullivan, deceased, commenced February 3, 1892.

Before Izlab, «L, Laurens, September, 1892. Action by W. B. Stoddard against Rebecca Hill and others, heirs at law of Enoch Hill, deceased, to foreclose a mortgage given by Enoch Hill to Lewis Power, sr., on March 3, 1873.

<p>Before WitheespooN, J., Hamilton, February, 1892.</p> <p>Action by W. A. Stone against J. A. Pitts, commeneéd November 18, 1891. The Circuit decree was in favor of plaintiff, and defendant appealed on the following grounds:</p> <p>1. Because his honor, Judge Witherspoon, erred in deciding that the plaintiff had complied with sections 2224 and 2225 in the introduction of the copy deeds offered in evidence.</p> <p>2. Because bis honor erred in deciding that the recitals in the copy deed were conclusive evidence of the provisions of the will of James A. Thames.</p> <p>3. Because his honor erred in deciding, as matter of fact, that “W. A. Stone is one of the five children of Sarah E. Stone, referred to in the recitals of the copy of the deeds introduced,” because the recitals in the deeds,'nor the deeds themselves, decide any such fact. There may have been six, seven, or more children, so far as the evidence goes.</p> <p>4. Because, there being no evidence of the provisions of the will excepting that derived from the copy deeds, and the recitals in the copy deeds having failed to show the estate which the devisees took under the will, it was impossible for the Circuit Judge to determine the nature and amount of the estate which each devisee and the claimant took, without further evidence. ...</p> <p>' 5. Because his honor erred in deciding, as matter of law, that the plaintiff was entitled to partition of the land and to oue-fifth thereof — there being no evidence whatever to sustain the finding.</p> <p>■ -6. Because his honor erred in deciding, that-the plaintiff is not barred by the statute of-limitations.</p> <p>7. Because his honor erred in admitting evidence of a part of a will, when the will had never been probated, as required by section 2223 of the General Statutes of this State.</p> <p>8. Because his honor’s decree is contrary to the law and to the evidence.</p>

<p>Before Aldrich, J., Colleton, May, 1891.</p> <p>Action by W. B. TJtsey against the Charleston, Sumter and Northern Railroad Company, to recover damages for the unlawful discharge of plaintiff by defendant from its employ, commenced March 28, 1891. Defendant moved for a change of venue on the following papers:</p> <p>Notice or Motion. — You will please take notice that the defendant will move the honorable James Aldrich, at his chambers in Aiken, S. C., on the 5th day of May, 1891, at 12 o’clock meridian of said day, or as soon thereafter as counsel can be heard, for an order to change the place of trial of this action from the Court of Common Pleas for the County of Colleton to the Court of Common Pleas in and for the County of Sumter, in the State above written. Said motion will be made upon the pleadings herein, and upon the affidavit of J. H. A veril!, Esq., the general manager of the Charleston, Sumter and- Northern Railroad Company, a copy of which is herewith served upon you, and upon the demand to change the place of trial, upon and for the ground that the convenience of witnesses and the ends of justice will be thereby promoted.</p> <p>Affidavit. — Personally appeared before me, the subscribing officer, Col. J. H. Averill, who, after being duly sworn, says:</p> <p>1. That he is the general manager of the Charleston, Sumter and Northern Railroad Company.</p> <p>2. That said railroad lies in the Counties of Marlboro, Darlington, Sumter, Orangeburg, Colleton, Clarendon, and Berkeley, a very small portion, to wit: the southern terminus, being-in the County of Colleton, and that the central and headquarters of the said railroad is located at Sumter, in the County of Sumter.</p> <p>3. That this action has been commenced against deponent’s company in the County of Colleton, and that the summons and complaint herein were served on the first day of April, 1891.</p> <p>4. That he has fully and fairly stated the case in this cause to C. S. Nettles, Esq., general counsel of the Charleston, Sumter and Northern Railroad Company, who resides in the city of Darlington, in the State above written, and that, after such statement, he is by him advised, and fully believes, that the said company has a good aud substantial defence on the merits of this action.</p> <p>5. That I have fully and fairly stated to my counsel the facts which I expect to prove by each and every one of the following witnesses, namely: J. M. Brand, C. L. Martin, B. K. De-Lorme, H. Schesrin, A. White, A. S. Brown, II. Frank Wilson, Dr. J. H. Mood, Frank O’Donnell, aud each and every one of them is a material and necessary witness for the defence in the trial of this cause, as I am advised by my said counsel, and fully believe; and without the testimony of each and every one of the said witnesses I cannot safely proceed to the trial of this cause, as I am also advised by my said counsel, and fully believe; that each and every one of the said witnesses reside in the city of Sumter, in the County of Sumter and State above written; and that the said witnesses, J. M. Brand, C. L. Martin, and B. K. DeLorme, are employees of the said railroad company, engaged in the company’s business iii the said city of Sumter.</p> <p>6. The facts which I. expect to prove by the said witnesses are as follows: By J. M. Brand, C. L. Martin, and B. K. De-Lorme, that twice, during March, W. B. ITtsey, the plaintiff in this action, interfered with matters pertaining strictly to the province of the general mauager; that he was insubordinate and impertinent to the general manager; and that he was warned that if he did so again he would have to leave the service of the company; and that in April, 1890, upon the occasion of an excursion, which was arranged to run from Sumter to Pregnalls and return, for the benefit of the merchants of Sumter, the plaintiff herein disobeyed positive instructions which were given him by I. W. Fowler, who was then the general manager of the road.</p> <p>By the witnesses, H. Schesrin, A. White, A. S. Brown, H. Frank Wilson, Dr. J. A. Mood, and Frank O’Donnell, that, during April, 1890, upon the occasion of the excursion herein above mentioned, the plaintiff herein became intoxicated, was guilty of disobedience to the orders of the general manager of the road, whom he cursed and assaulted, to wit: On the return trip, some party interfered with the running of the train by constantly pulling the bell cord, and when Col. Fowler, the general manager, attempted to get into one of the coaches to ascertain the cause of the disturbance, the plaintiff grabbed him by the arm and clothing, and prevented him from entering the car. Col. Fowler ordered him to take his hands off, and, also, to leave the train; that, after a space of a few minutes and a good deal of abuse, he did remove his hands from the person of Col. Fowler, but did not leave the train as he was ordered to do. That when the train arrived at a point about fifteen miles from Sumter, a man jumped out of a car window; the train was running about twenty miles an hour; the conductor stopped the train, and reported to Col. Fowler the fact that a man had jumped out of a window. Col. Fowler started with others to pick up the body, which, fortunately, had received no injury, when the plaintiff jumped off the rear platform, and attempted to stop him; that Col. Fowler said to him, “Mr. ITtsey, I wish you would not interfere with my business any more,” and to which he replied, “You can go to hell,” and left him.</p> <p>7. That, as deponent is informed and believes, such contract as was made between the plaintiff and the defendant was entered into in the city of Sumter, and that all the facts and circumstances relating thereto, or to his discharge from the service of this company, or to the cause of such discharge, occurred in the County of Sumter.</p> <p>8. That the town of Walterboro, which is the county seat of Colleton County, is situate at considerable distance from the line of deponent’s railway, and is very difficult to be reached; that if deponent and his witnesses should be required to attend trial at Walterboro, they will be compelled to go to a distant destination, traveling over two different systems of railway, a distance of nearly two hundred miles, to their great inconvenience and expense, and that the convenience of witnesses, and the ends of justice, would be greatly promoted by changing the place of trial of this action from the County of Colleton to the County of Sumter.</p> <p>The order of the Circuit Judge, passed at his chambers in Aiken, S. C., on May 5, 1891, was as follows:</p> <p>A motion in this cause having been made before me at chambers, in behalf of the defendant, to change the place of trial from the County of Colleton to the County of Sumter, upon the notice of the motion, and after hearing read the affidavit of J. H. Averill, Esq., the general manager of C., S. & N. R. R., by which it is made to appear that the defendant has nine material witnesses, who reside in the city of Sumter, and the plaintiff having made no showing that he has material witnesses resident at Walterboro, nor denial of the facts stated in the affidavit of J. H. Averill, but resting this application solely upon the ground that the judge at chambers has no right to grant the order asked for; and after hearing argument for the motion by C. S. Nettles, Esq., and against by Mr. Croft on behalf of Howell, Murphy & Farrow,</p> <p>It is ordered, that the place of trial of this action be, and is hereby, changed from the Court of Common Pleas for the County of Colleton to the Court of Common Pleas for the County of Sumter, upon and for the reason that the convenience of the witnesses for the defendant and the ends of justice will be thereby promoted. Further ordered, that this order be filed with the clerk of the court for the County of Colleton, and that all further proceedings herein be had in the Court of Common Pleas-for the County of Sumter. And it is further ordered, that all papers in the cause shall be transferred accordingly.</p> <p>Plaintiff appealed.</p>

<p>Before Hudson, J., Abbeville, January, 1892.</p> <p>This was an action by Sarah F. Buchanan against F. A. Buchanan, G. D. Buchanan, and others, of whom Bessie B. Yerrell was the infant grand-child of William Buchanan, deceased, commenced February 13,1891. The action was to have a tract of land, conveyed by F. A. Buchanan toG. D. Buchanan, deceased, adjudged to be subject to a trust in favor of the heirs of William Buchanan, deceased, and for its partition amongst such heirs. The Circuit decree was as follows:</p> <p>This is an action for partition of a tract of land described in the complaint, and was heard by me at Abbeville, January term, 1892, upon the master’s report and exceptions thereto. Whether there was a resulting trust, or whether there was a contract to purchase, cannot be clearly determined from the evidence. The evidence does not show that William Buchanan paid any money at the time of the purchase. There is evidence that William Buchanan had possession of this land, and used it and treated it as his own until his death — a period of sixteen years — -and the circumstances show that part of the purchase money had been paid, and that F. A. Buchanan held the title for the benefit of William, and that since the death of William Buchanan the whole amount due F. A. Buchanan has been paid, and the land is now subject'to partition among heirs of William Buchanan. This is the view of the case taken by the master in his report. The evidence is overwhelming that F. A. Buchanan never intended to claim this land as against his brother, William. The legal title was in F. A. Buchanan, but William had all the elements of title except the deed.</p> <p>It is claimed by the defendants that F. A. Buchanan paid the taxes, but this would not interfere with the rights of William. It lias long been decided that payment of taxes is no evidence of title. The evidence satisfies me that when, in 1887, three years after William’s death, F. A. Buchanan made the title to G. D. Buchanan, it was done with the understanding that it was for the benefit of the family of William Buchanan. Adverse possession does not necessarily mean hostile possession, but the continuous and uninterrupted possession of William Buchanan shows the intention of F. A. Buchanan that William should have this land, and that 'William’s possession was exclusive. G. D. Buchanan had full knowledge of all the facts, and had rented the land from his father. As against F. A. Buchanan and G. D. Buchanan, the heirs of William Buchanan are entitled to partition. The case is preeminently one of equity jurisdiction.</p> <p>It is ordered, adjudged, and decreed: 1. That the exceptions of F. A. Buchanan and G. D. Buchanan to the master’s report be overruled, and that the report be confirmed. 2. That a writ in partition do issue, in the manner directed by law, to partition the lands described in the complaint among the heirs of William Buchanan, named in the complaint, according to their respective rights as therein set forth. 3. That, upon the filing of the report of the commissioners in partition, the parties have leave to apply for such further relief as may be necessary. 4. That the exceptions of the plaintiff to the master’s report, so far as they are inconsistent with this decree, be, and the same are hereby, overruled.</p> <p>The exceptions, omitting those which questioned mere findings of fact, were as follows: II. Because his honor erred in his statement in said report, that “adverse possession does not necessarily mean hostile possession, but the continuous and uninterrupted possession of Wm. Buchanan shows the intention of F. A. Buchanan that William should' have this land, and that. William’s possession was exclusive,” and that “as against F. A. Buchanan and G. D. Buchanan, the heirs of Wm. Buchanan are entitled to partition.” III. Because his honor erred in ordering, adjudging, and decreeing: 1st, that the exceptions of F. A. Buchanan and G. D. Buchanan to the master’s report be overruled, aud that the report be confirmed; 2d, that said lauds be partitioned. IX. Because his honor erred in overruling their sixth exception, which is as follows: Because said master erred in his conclusion of law, “That the heirs of Wm. Buchanan are entitled to specific performance of the contract of purchase aforesaid, and to partition of said land.” X. Because his'honor erred in overruling their seventh exception, which is as follows: Because said master erred in his conclusion of law, “That the conveyance by F. A. Buchauan to G. D. Buchanan, if allowed to stand, would operate a fraud upon the rights of the other heirs of Wm. Buchauan, and should be set aside and cancelled.” XI. Because his honor erred in overruling their eighth exception, which is asfollows: “Because said master erred in overruling the demurrers interposed by the undersigned.” XII. Because his honor erred iu overruling their ninth exception, which is as follows: ‘Because said master erred in failing to dismiss the complaint herein, when he found as matter of fact that the allegations of the complaint were not sustained by the testimony.” XIV. Because his honor erred in overruling their eleventh exception, which is asfollows: “Because there is no allegation of the complaint to sustain the master’s finding of fact as to the agreement between Wm. Buchanan and F. A. Buchanan iu regard to the purchase of the land by Wm. Buchanan from F. A. Buchanan.”</p>

<p>Before Hudson, J., Greenville, March, 1892.</p> <p>This was an action by Thomas J. Sullivan, as executor of Frances A. Goodgion, deceased, against John H. Latimer, commenced June 18, 1891. The opinion states the case.</p>

Before Fraser, J., Hampton, June, 1890. Action by O. 0. Rhodes and others against Sam. Russell and others, for partition. The Circuit judgment was as follows: The case has been remanded by the Supreme Court to be heard by the Circuit Court on the report of the referee and exceptions. It is true, that plaintiffs and defendants both claim under parties who are the heirs of T. A. Bhodes, alleged to be the common source of title.

Before Fraser, J., Greenville, August, 1892.' In addition to the matters stated in the opinion, Fleishman & Morris executed and mailed their release at Greenville, S. 0., in the afternoon of April 5, 1892, and it went off by the next mail, which left at 1 o’clock in the night, and reached the home of the assignee a half hour afterwards, and was received by him with his mail next morning.

<p>Before Hudson, J., Hampton, October, 1892.</p> <p>Action by Sarah A. Matthews against the Charleston and Savannah Bailway Company, commenced February 5, 1892.</p>

<p>Before Wallace, J., Aiken, October, 1891.</p> <p>Action by the Scottish American Mortgage Company, Limited. against Ella Mixson, to foreclose a mortgage, and by Ella Mixson against the same company, to enjoin a sale under a power contained in another mortgage. The opinion sufficiently states the first case. In the second case the Circuit decree was as follows:</p> <p>This case came on to be heard before me at the fall term, 1891, of the Court of Common Pleas for Aiken County, upon the pleadings and the evidence as reported by the master.</p> <p>I find, as matter of fact, from the pleadings and evidence, that the plaintiff has brought this action against the defendants, to enjoin them from selling her tract of land under a power contained in a mortgage, executed by the plaintiff, Sinia A. Wise, and F. M. Mixson, to the defendant company on the 1st day of March, 1884, to secure the payment of a note for a thousand dollars, executed by said parties to the said defendant on the same day that the mortgage was executed.</p> <p>The plaintiff alleges in the complaint, that she is the owner of the tract of land described in said mortgage; that Frank M. Mixson is her husband, and that at his request, and as his surety, and for the purpose of raising money for his benefit, and not for herself, she executed the mortgage above referred to. The plaintiff further alleges in her complaint, that she received none of the money which was loaned upon said note and mortgage, nor that any of said money ivas used for her benefit, nor was said contract made as to her separate estate, and she, therefore, claims that said mortgage is null and void. She also alleges that the defendant company, and John B. Palmer, it’s attorney in fact, had advertised her laud for sale under the power contained in said mortgage, and she prays judgment that the sale be enjoined, and the said mortgage be declared null and void, and cancelled upon the record. Upon this complaint a temporary injunction was granted, restraining said sale. The defendant answered, denying that the plaintiff was surety upon said debt, but that the debt was contracted by her for her own benefit, and with reference to her separate estate, and asking judgment of foreclosure.</p> <p>By consent, it was referred to the master of this county to take and report the evidence. The master has filed his report with the testimony. I find therefrom that the plaintiff on the day mentioned executed her note for one thousand dollars to the defendant company, which became due on the first day of November, 1889, with interest on said note from its date, at the rate of ten per cent, per annum, payable on the first day of May and November in each year, and if the interest was not paid at maturity it was to bear interest at the same rate thereafter; that the plaintiff did, on the first day of March, 1884, execute to the defendant company a mortgage of the premises described in the complaint for the puipose of securing the payment of said note; that the said note and mortgage were also executed by Siuia A. Wise, the mother, and Frank M. Mix-son, her husband; that the plaintiff was the principal debtor on said note, and her mother and husband were her sureties; that the plaintiff borrowed the money upon the. representations contained in her written application, and her representations made to Geo. 0. Smith, and actually received a part of the money, and a part was applied in payment of a mortgage which she regarded, and, as the evidence shows, was regarded by the defendants, as a lien upon her land, and which she had represented as a lien.</p> <p>The money having been borrowed by the plaintiff, it cannot affect the defendant that a part of it may have been used by her husband. See Building and Loan Association v. Jones, 32 S. C., 308. The defendant company had no notice of the use intended to be made of the money other than that represented by the plaintiff, and the plaintiff is, therefore, estopped from now denying that she borrowed the money. The plaintiff claims that Frank M. Mixson was not her agent in this transaction, but the note and mortgage were carried to her by her husband, and she admits that she executed the same, and they were then carried by her husband and delivered to the attorney of the defendant company, who then turned over the money to him for the plaintiff. The circumstances and facts fully prove the agency of Frank M. Mixson. The facts in this case are stronger than the facts in the recent case of the Hibernia Savings Institution v. Luhn, 34 S. 0., 176.</p> <p>The defendant company have, in their answer, asked for affirmative relief in the foreclosure of the said mortgage, and I find that' they are entitled to such relief. It is, therefore, adjudged, ordered, and decreed, that the master of this county do sell the premises mentioned in said mortgage, hereinafter described, at public auction, &c.</p> <p>Mrs. Mixson appealed, on the following grounds: 1. That his honor erred in finding that the appellant was the principal debtor on the note and mortgage in question, and that her mother and her husband were her sureties; whereas he should have found that the husband was the principal debtor, and the wife and her mother the sureties. 2. That his honor erred in finding that the appellant borrowed the money upon representations made by her to the company, or to anybody for the . company. 3. That his honor erred in finding that the appellant received any part of the borrowed money, or any benefit therefrom, and should have found that the same was received and enjoyed alone by the husband of appellant, and that the defendant company had knowledge explicit of the intended use by said husband, before the loan, this knowledge having been communicated to the agents making the loan. 4. That his honor erred in finding that the husband of Mrs. Mixson was the agent for her in the transaction between her and the defendant company. 5. That his honor erred in not granting the prayer of the complaint in declaring the mortgage null and void.</p>

<p>Before Hudson, J., Hnion, October, 1891.</p> <p>Action by the children of Jessie M. Thomson against Glenn D. Peake, trustee, and Jessie M. Thomson. The master’s findings were as follows:</p> <p>Conclusions of Law: I. That W. Waddy Thomson took under his father’s said will a fee defensible in Beauty Spot plantation, subject to be defeated upon his dying without heir or heirs of his body.</p> <p>II. That by virtue of a sale, under two mortgages, of said plantation, given by him to the late J. S. R. Thomson and Albert G. Means, respectively, to secure the payment of eight hundred and twenty-seven 70-100 dollars to the former, and one thousand and nine 99-100 dollars to the latter, that the defendant, Jessie M. Thomson, became the owner of the undivided 663-1630 portion thereof, and the said Albert G. Means became the owner of the remaining 967-1630 undivided portiou thereof. And that each took in said portions all interest that the said W. Waddy Thomson had in said plantation under his father’s will.</p> <p>III. That by virtue of a deed, dated the first day of May, 1880, by Albert G. Means to Jessie M. Thomson, and the plaintiffs, for their joint use during the lifetime of the said Jessie M., Thomson, the rents and profits to be enjoyed by them in equal portions. And that by its terms the fee in that portion of the land passed to the plaintiff. And the defendant, Jessie M. Thomson, became only the trustee, to manage that portiou of the lands, and receive and apply the rents and profits in the manner aforesaid.</p> <p>IY. That by virtue of a deed, on the first day of January, 1887, by Jessie M. Thomson to the defendant, Glenn D. Peake, all interest that she held in her own right in said land passed to the defendant, Glenn D. Peake, in trust, for the use of the said Jessie M. Thomson and the plaintiff, and after born children, in equal iDortions, during the lifetime of said Jessie M. Thomson, and at her death the fee in remainder vests in her surviving children.</p> <p>V. That the defendant, Jessie M. Thomson, committed a breach of her trust, in attempting to make the defendant, Glenn D. Peake, a trustee for the aforesaid interest conveyed to her in trust for the plaintiffs under the said Albert G. Means’ trust deed.</p> <p>VI. That the defendant, Glenu D. Peake, by his own act became trustee in his own wrong of the said trust interest of the plaintiffs under the Means deed.</p> <p>VII. That all items charged in the accounts of Glenn D. Peake, as trustee, as against the plaintiffs, for the purchase of mules and furnishing the family, as well as advancements made to tenants who were renters, should not be allowed. But that a reasonable annual hire for each mule should be allowed, where the same were used on said plantation by laborers, as distinguished from renters.</p> <p>VIII. That no portion of the rents and profits of the plaintiffs, under the said Means deed, could be legally applied towards the payment of the debts that Mrs. Thomson owed at the time of her said trust deed to Glenn D. Peake. But it is recommended, for the reason stated heretofore, that it be allowed; but that the plaintiffs should have their decree against her for said portion so applied.</p> <p>IX. That the plea of the statute of limitations to the note held by Glenn D. Peake against Mrs. Thomson at the time of the execution of said trust deed to him, can not be sustained.</p> <p>X. That the defendant, Glenn D. Peake, committed a breach of his trust in applying the rents and profits of the plaintiffs in the manner as stated in the foregoing seventh paragraph of these conclusions.</p> <p>XI. That the defendant, Jessie M. Thomson, should be held liable to the trustee for her proportionate share of all moneys and supplies advanced to her by said trustee, as well as for the value of the mule, known as the “Goforth mule,” sold in the fall of 1888, by her directions.</p> <p>XII. That it is necessary that a trustee be appointed to take charge of the entire property of the plaintiffs.</p> <p>I find as conclusions of fact:</p> <p>I. That the defendant, Glenn D. Peake, took charge of the entire plantation, known as “Beauty Spot,” in January, 1887, and a little personal property on the same, consisting mostly of farming implements, and has remained continuously in the possession thereof to the present time.</p> <p>II. That he was indebted to the plaintiffs the 1st of January, 1891, in the sum of forty-three 90-100 dollars, as shown by “Exhibit A.”</p> <p>III. That the sum of three hundred and fifteen 44-100 dollars, interest calculated to the 1st of January, 1891, of the plaintiff’s share of the rents and profits under the said Means deed, was applied by the trustee towards payment of debts that Mrs. Thomson owed at the time of the execution of her said trust deed, as shown by “Exhibit A.”</p> <p>IV. That the defendant, the said Mrs. Thomson, was indebted to the defendant, Peake, as her trustee, on the 1st day of January, 1891, in the sum of one hundred and sixty-three 54-100 dollars, as shown by “Exhibit B.”</p> <p>V. That the value of the mule, known as the “Goforth mule,” in the fall of 1888, was the sum of eighty dollars.</p> <p>VI. That an annual hire of a mule is the sum of twenty-five dollars.</p> <p>VII. That the share of the plaintiffs in the rents and profits, under the Means deed, is the 1043-2445 part thereof.</p> <p>VIII. That the remaining share of the rents and profits, to wit: the 1402-2445 part thereof, passed to the plaintiffs and the defendant, Jessie M. Thomson, by her trust deed to Peake, in equal portions.</p> <p>IX. That the defendant’s (Jessie M. Thomson) entire share of the rents and profits of said plantation is the 701-7335 part thereof, and the remaining 6634-7335 part thereof vests in the plaintiffs, in equal portions.</p> <p>X. That the defendant, Jessie M. Thomson, owed the note for $250 given by her to the defendant, Glenn D. Peake, with interest, at the time of the execution of her.trust deed, and that it should, be paid in the manner as shown by “Exhibit A.” •</p> <p>XI. That there was a quantity of corn, fodder, cotton seed, &c., on the plantation on the 1st of January, 1891, belonging to the trust estate, which was used in the production of the crops for 1891, which is yet to be gathered and accounted for.</p> <p>J. Y. Culbkeath, Special Master.</p> <p>Upon exceptions to this report, the following decree was rendered:</p> <p>After a careful examination of the whole case, I have modified somewhat the views I briefly expressed at the close of the argument.</p> <p>Whether W. Waddy Thomson, the father of the plaintiffs, took, under the will of his father, Henry Thomson, a life estate, or an estate in fee simple defeasible, it seems to me, does not affect the matters at issue between the trustee, Glenn D. Peake, and the plaintiffs. The mode, and manner, and principle of the accounting of the trustee are the same, whether the devise to Waddy was for life or in fee. It is needless, therefore, to trouble ourselves with, that inquiry in this case, although I am inclined to think that the devise to W. Waddy Thomson is for life only. Be this as it may, his estate was sold under mortgage, and has, by purchase, vested in his wife, Jessie M. Thomson, a co-defendant of Glenn D. Peake, and, so far as she could, she has conveyed the same to the said Peake in trust, out of the rents and profits of the Beauty Spot plantation, to pay her debts, and to support herself and children, who are the plaintiffs. They now apply to this court, as beneficiaries under this deed, for relief against their trustee, charging him with mismanagement, asking that he do account for his actings and doings, and praying that he be removed and a successor be appointed.</p> <p>Under the deed of trust, Glenn D. Peake took charge of Beauty Spot plantation in January 1, ’87, and ever since has managed the same, and all he has to account for is the rents, issues, and profits of the same. No accounting for the year 1891 -was taken by the master, because the references closed before this could be done. The accounting covers the transactions of the years 1887,1888, 1889, and 1890. Glenn D. Peake lives in the County of Union, about thirty miles distant from the Beauty Spot plantation, which is a very valuable plantation, in the County of York. Instead of renting the place out, which, according to the evidence, he could have done to advantage, he stocked it, and undertook its cultivation by hired labor, by croppers, and by tenants. His accounting consists of rendering a minute and detailed account of his farming operations, which, for the four years above stated, resulted in disaster rather than profit, the net profits being astonishingly small. I think the special master has erred in taking this tedious and unsatisfactory method of accounting. The trustee’s dutjr was to either rent out this fine plantation, or, if he preferred to cultivate it himself, he rendered himself liable at least for reasonable rent — that is, a reasonable sum for the use and occupation of the plantation. He was at liberty to take his choice, either to rent it out to a tenant, or tenants, at a fixed rent, or to become tenant to himself and account for fair rent. The special master should have charged the trustee with reasonable rent each year.</p> <p>He should then have given him credit for all the money he paid upon the debts of Mrs. Jessie M. Thomson, and in support of her and her children. I am satisfied that she and her children needed all he advanced to them for their support, and more. The terms of his trust required this of him, and it will not do to say now that their father was able to support them, and that the trustee should not have credit for what he let them have. The evidence shows that the wife and children needed, in fact, more than they got of him (the trustee). If it be that Mrs. Thomson had got more than her share in appropriation to her debts and to her support, then the master can adjust the matter between her and her children on a fair and equitable basis, but the trustee must have credit for all he let them have. He also must be allowed his commissions, and I find nothing in the evidence showing that he renounced them. This basis of accounting I deem right and fair, and it will eliminate from the itemized account nearly all the small items in dispute, and will greatly simplify the statement.</p> <p>It is, therefore, ordered, adjudged, and decreed, that the accounts for the period of the trusteeship, including the year 1891, be stated on this principle, and that it be recommitted to the special master to hold reference, hear testimony, and restate the accounts, as herein directed, and also to take testimony and report to the court a fit and suitable person to act as trustee in lieu and stead of Glenn D. Peake. ' All exceptions at variance with this decree are overruled, but any small item of the accounting not eliminated by the mode of accounting herein directed is left open for adjustment on the restatement of accounts.</p>

<p>Before Fraser, J., Greenville, July, 1892.</p> <p>This was an action by Charles C. McIntyre, for himself and other creditors, against Rudolph Legón and others, commenced September 21, 1891. On September 10, 1891, the defendant, Catherine Legón, seized certain personal property as the goods and chattels of Rudolph Legón, under her mortgage recorded September 5. The plaintiff attached these same goods at a later hour on the same day (September 10). There were also other attachments, but none prior to plaintiff’s. Mrs. Legón had previously taken possession of the money on hand, and books of her husband, Rudolph, after his absconding on the 6th. From the Circuit decree in favor of Mrs. Legón, the creditors of Rudolph Legón appealed on the following grounds:</p> <p>1. Because the said judge erred in holding: “It is also claimed that the said mortgages are void under the provisions of the General Statutes in reference to the assignments by insolvent debtors, by which preferences are given to one or more creditors. I do not see how any case is stated in the complaint under these sections. So far from alleging any undue preference to a creditor, the complaint alleges that the said Rudolph Legón was not, at such date of execution, indebted to the said Catherine Legón in the said sum of forty-eight- hundred dollars, nor, indeed, in any sum.”</p> <p>2. Because the said judge erred in holding: “While I think that the two mortgages were delivered to T. H. Cooke, for Mrs. Legón, and became valid and binding 20th May, 1891, it does not matter if they were not delivered until September 5th.”</p> <p>■ 3. Because the said judge erred in holding that, “if the money he (Rudolph Legón) carried off with him was sufficient to pay his debts, if added to that which was left and in reach of his creditors, he could not be said to have been insolvent.”</p> <p>4. Because the said judge erred in not holding, as a matter of fact, that the mortgages executed unto Catherine Legón were delivered ou September 5th, 1891, and were operative from such date, and not from May 20th, as claimed.</p> <p>5. Because the said judge erred in not holding that the said mortgages were intended to operate as an assignment of the property of the said Rudolph Legón, and did so operate; and in not adjudging that the same were intended as an evasion of the assignment laws, and were invalid as creating a preference in favor of the said Catherine Legón.</p> <p>6. Because the said judge erred in not finding, as a matter of fact, that Rudolph Legón was insolvent both on May 20th and September 5th, 1891.</p> <p>7. Because the said judge erred in holding: “If he had made an assignment, it does not appear that his wife, Catherine, had notice or reasonable grounds to know or believe that he was insolvent.”</p> <p>8. Because the said judge erred in not sustaining plaintiff’s second exception to the master’s report, to wit: “That the said master erred in his finding of fact, that on May 20th, 1891, the said Rudolph Legón, to secure unto Catherine Legón the sum of $4,800, executed and delivered unto T. H. Cooke, to be kept for her, the mortgages mentioned in the complaint; and in his further finding, that such execution and delivery were absolute on that day;” whereas he should have held that the delivery unto T. H. Cooke on such day was not a delivery to Cat.herine Legón, or for her benefit; that it was not effective as a delivery, and was not intended so to be, and that there was no delivery of said mortgage unto Catherine Legón, or for her benefit, until September 5th, 1891.</p> <p>9. Because the said judge erred in not sustaining the 8th and 14th exceptions to the master’s report, to wit: “That the said master erred in his conclusion of law, that the said mortgages were valid securities, and should be enforced; and that the said master erred in not reporting the order and rank of-lien of the various attachments levied upon the property of Rudolph Legón.”</p> <p>10. Because the said judge erred in not sustaining the 15th exception to the master’s report: “That the said master erred in not finding and adjudging that the said Catherine Legón must account to C. J. Pride, receiver, for the amount received by her from the proceeds of sale of the stock of Rudolph Legón.”</p>

<p>Before Witherspoon] J., Colleton, February, 1892.</p> <p>This was an action by Bollman Bros. Company against Joel O. Warner, as administrator, Robert Black, sheriff, and Appleby & Co. The appeal was from the following depretal order:</p> <p>The above entitled action is brought by plaintiff for the benefit of the creditors of D. A. Warner, and seek to have the sale by the sheriff enjoined, and to have a receiver appointed to administer the estate of D. A. Wamer in equity. It is conceded that if the plaintiff has, or has had, an adequate remedy at law, a Court of Equity cannot afford relief. By the Constitution and statute laws of this State, the Court of Probate has jurisdiction in the administration of decedent estates. In granting letters of administration to the defendant, Joel C. Wamer, the Probate Court has assumed jurisdiction in the administration of the estate of D. A. Wamer. Under these circumstances, the Court of Equity is restricted in granting relief to those special circumstances and extraordinary reliefs which do not fall within the scope of the cognizance of the Probate Court, or for which its remedies are wholly inadequate. See note to 3 Pom. Eq. Jur., 116.</p> <p>After hearing the verified complaint and the verified returns of the defendants, Joel C. Wamer and Appleby & Co., it seems to me that the Probate Court has jurisdiction, and can afford the relief to which plaintiff is entitled. The allegations of the complaint are not sufficient to authorize a Court of Equity to interfere in the administration of the estate of D. A. Wamer, under the authority of Ragsdale v. Holmes, 1 S. C., 96. In their verified return to the rule, the defendant, Joel C. Wamer, as administrator, and the defendant, Appleby & Co., each deny that there was any collusion or understanding, expressed or implied, between them with relation to the obtaining of the judgments by Appleby & Co. in the Trial Justice’s Court. A creditor has the right to sue and obtain judgment against an administrator upon the debt of his intestate. If proceedings were pending in the Probate Court to sell the real estate of D. A. Warner, or a portion thereof, ill aid of the personal assets, or in the event of the insolvency of the intestate estate, the plaintiff would have a better ground for seeking the aid of equity.</p> <p>I do not think that the plaintiff is entitled to have a receiver appointed to administer the estate of D. A. Warner, deceased, nor do I think that the restraining order granted by Judge Aldrich should be continued in force.</p> <p>It is ordered and adjudged, that the rule issued January 29, 1892, by Judge Aldrich against the defendants in the above entitled cause be discharged, and that the restraining order of said date against said defendants be, and the same is hereby, dissolved.</p> <p>The plaintiff appealed on the following grounds: 1. Because his honor erred in refusing to grant the temporary injunction prayed for by the plaintiff. 2. Because his honor erred in refusing to continue of force until the hearing of the cause the restraining order made by the Hon. James Aldrich in this cause. 3. Because his honor erred in dissolving the injunction granted by the Hon. James Aldrich. 4. Because his honor erred in holding that the Court of Equity was without jurisdiction in the cause. 5. Because his honor erred in holding that the Probate Court had jurisdiction to grant an injunction in this cause. 6. Because his honor erred in holding that the plaintiff had an adequate remedy in some other court, and that, therefore, the Court of Equity was without jurisdiction.</p>

Before Kershaw, J., Florence, October, 1892. Motion by F. P. Cardue to vacate an order of arrest obtained in an action brought against him by R. C. Commander, J. C. Davis, and J. J. Brown, trading as J. C. Davis & Co. The order of arrest by the clerk of' court was based upon the following affidavit: Personally appeared R. G. Commander, who, being duly sworn, says that he is a member of the firm of J. C. Davis & Co. That the deféndant is j ustly indebted to said firm the sum…

<p>Before Aldrioh, J., Fairfield, February, 1892.</p> <p>This was an action by James A. Thomas against the Charlotte, Columbia and Augusta Railroad Company, commenced January 29, 1891. The testimony showed that plaintiff and two others got on a mixed passenger and freight train at Chester, with tickets for Woodward, on Christmas eve of 1890; that the train stopped for water at a tank before reaching the depot at Woodward, and then started off again, and while slowly moving past the depot, a negro, with cap and lantern, apparently a train hand, came in and said to these passengers that the conductor bade them get off, as the train would slow up but not stop; that plaintiff, in getting off from the moving car, injured his right ankle, which had been previously sprained; that the train stopped about twenty-five yards beyond the point it was at when plaintiff left the car.</p> <p>. Plaintiff was non-suited, and appealed.</p>

Before Kershaw, J., Charleston, February, 1892. The question presented by this appeal was whether facts sufficient to constitute a cause of action were stated in the following complaint: The said city council of Charleston, plaintiff, complaining of the said Mrs. Doris Werner, the defendant, alleges: I. That it, the said plaintiff, is a municipal corporation, under the laws of the said State of South Carolina. II.

<p>Before Witherspoon, J., Chesterfield, September, 1892.</p> <p>This action was commenced January 28,1888. The opinion states the case.</p>

Before Hudson, J., Berkeley, June, 1892. This was an action by Samuel Sanders against William L. Venning, to recover for damages done to plaintiff’s land by defendant’s cattle in May, 1892.

<p>Before Norton, J., Darlington, March, 1892.</p> <p>This was an action by S. S. Huggins against George W. Watford, commenced in January, 1892.</p>

Before Izlar, J., Fairfield, June, 1892. This ivas an action by W. P. Summer and Thomas Summer, partners as W. P. Summer & Co., against Bunyan B. Kelly and Mattie B. Kelly, commenced December 18, 1890, for the recovery of certain articles of personal property embraced in a chattel mortgage by defendants to plaintiffs, which matured November 1, 1890.

<p>Before Witherspoon, J., Hampton, March, 1892.</p> <p>This was au action by Theodore K. Miller and others, partners as Daniel Miller & Co., in behalf of themselves and all other creditors of L. F. Hughes, against the said Hughes, Z. Daniels & Co., and others, commenced December 3, 1890, to set aside a sale of stock of goods made by said Hughes. The Circuit decree, omitting its preliminary statement, and, also, the specific findings stated in the opinion of this court, was as follows:</p> <p>The plaintiffs did not prove their demand before the special referee, as required by the answer of the defendants Z. Daniels & Co., nor does it appear that any other of the creditors of the defendant Hughes proved their claims before the special referee. An oral demurrer was interposed by defendants at the hearing, that the complaint does not state facts sufficient to constitute a cause of action. I do not think that the oral demurrer can be sustained, and it is hereby overruled.</p> <p>I find, as matter of tact, that the defendants Hughes & Brun - son were engaged as partners in mercantile business in the town of Brunson, or Hampton County, for two or three years prior to the year 1889; that said firm was dissolved some time prior to September, 1889, the defendant Brunson taking charge of the assets of the firm, and continuing in business at Brunson; that about September 1st, 1889, the defendant Hughes purchased on his own account a stock of goods valued at about six thousand dollars, bought on time, and carried on business- at the Warren place, some three or four miles from the town of Brunson. That on 12th November, 1889, and before all of the purchase money of his stock of goods had become due, the defendant Hughes was sued for a small amount by Leggette & Co., from whom he had purchased goods; that some time during the early part of the month of November, 1889, the defendant Hughes offered to sell his stock of goods to the defendant Brunson, and the defendant applied to his factors in Augusta, Ga., the defendants Z. Daniels & Co., to borrow $4,500 to purchase said stock of goods; that on the 14th November, 1889, the defendants Z. Daniels & Co. advanced $4,500 in cash to the defendant Hughes, which amount was [laid by Brunson to Hughes for the stock of goods; that on said 14th November, 1889, to secure said advance of $4,500, payable February 1, 1890, the defendant Brunson executed to the defendants Z. Daniels & Co. a mortgage of his stock of goods, including the stock purchased from Hughes; that the defendants Z. Daniels & Co. advanced the $4,500 to Brunson in the ordinary course of their business as factors and commission merchants.</p> <p>The allegation that Hughes obtained credit on the purchase of his stock of goods by misrepresenting his financial standing, is not sustained by the evidence. The evidence is conflicting as to the alleged insolvency of Hughes at the time of the sale of the stock of goods to Brunson. But if Hughes was then insolvent, and intended to defraud his creditors by the sale of his stock of goods, it does not affect the sale and mortgage of the . stock of goods, unless it is made to appear that the defendants Brunson and Z. Daniels & Co. had knowledge or reasonable grounds to believe at the time that Hughes was influenced by such fraudulent intent in making the sale of the stock of goods, i Fraud is not to be presumed, but may be inferred from circumstances. The circumstances, however, from which fraud may be- inferred must appear to be inconsistent with good faith. The sale by Hughes of the stock of goods to his former partner, Brunson, before the goods had been paid for, and about the time that Hughes had been sued, is calculated to excite suspicion as to the bona fides of the transaction, but it does not appear that Brunson then had knowledge either of Hughes’ financial condition, or that he had been or was about to be sued. It does not appear that any effort was made to conceal the transaction between Hughes and Brunson, or between Brunson and Z. Daniels & Co.</p> <p>It is true, that Brunson testifies that he might have got more goods than he paid for — that he thought he was getting a good bargain; but in the absence of any evidence to the contrary, it will be assumed that Brunson paid Hughes a fair price for the stock of goods. The payment of a full price for the goods would not protect Brunson, if he had any knowledge of Hughes’ intent to sell the goods to defraud his creditors. I do not think the evidence is sufficient to authorize the inference either that Brunson bought the goods to hinder, delay, or defraud the creditors of Hughes, or that he had any knowledge of such fraudulent intention upon the part of Hughes in selling the stock of goods, if Hughes did intend to defraud his creditors.</p> <p>I fail to find any evidence to sustain the allegation of the complaiut that the defendants Z. Daniels & Co. did not advance the $4,500 to the defendant Brunson, or that they took the mortgage of the goods, and advanced the money to Brunson, with intent to defraud the creditors of Hughes, or that they had any knowledge of such intent upon the part of either the defendants Hughes or Brunson. It appears that the former firm of Hughes & Brunson had considerable dealings with defendants Z. Daniels & Co. as their factors, and that since the dissolution of said firm, the defendant Brunson has continued, and is still, dealing with the firm of Z. Daniels & Co. as Ms factors. It also appears that the $4,500 was advanced to Brunson by Z. Daniels & Co. in the ordinary course of business; that the $4,500 was counted and paid to Brunson in the presence of witnesses, and that Brunson has since paid Z. Daniels & Co. $1,941.23 of the amount so advanced. The evidence does not show any complicity between' the defendants Hughes and Brunson and Z. Daniels & Go. in the transaction referred to in the complaint.</p>

<p>Before NoetoN, J., Edgefield, August, 1892.</p> <p>Action by George T. Reid and William Reid, partners as George T. Reid & Co., against Matilda J. Stevens, commenced in August, 1891, to foreclose two mortgages.- The Circuit decree was as follows:</p> <p>This action is brought to foreclose two mortgages made by the defendant, a married woman, the one to J. P. Phillips, assigned by him to Hipp, and by Hipp to the plaintiffs, and the other made to the plaintiffs. The defendant pleads that the first has been paid, and that it was not made with reference to her separate estate, and that it was collateral to a debt of her husband; and that the second was collateral to a debt of her husband, not relating to her separate estate, and does not show on its face any intention to bind her separate estate.</p> <p>The first mortgage was to secure a note for $321 to Phillips, the consideration of which does not appear, but was really for a horse sold by Phillips to defendant’s husband, and for goods sold, and to be sold, by him to her and her husband jointly— a partnership. At the date of said mortgage, she had not the power to bind her separate estate for either debt, but she after-wards requested plaintiffs to purchase this note and mortgage, which seemed to bind her separate estate, and she is now es-topped from denying that it does. Wallace v. Garter, 32 S. C., 314. Plaintiffs are entitled to recover thereon the sum of one hundred and seventy-nine dollars and seventy-five cents, including interest to this date (27th of August, 1892).</p> <p>The second mortgage was made to plaintiffs 20th of May, 1889, and is authorized by act of 23d December, 1887, without reference to whose debt it is intended to secure. The limiting clause of that statute is: “Whenever the intention so to * * charge such separate estate is declared in such * * mortgage.” The mortgage under consideration being in the usual full form of such an instrument, and in the absence of any prescribed statutory form, is held to contain such declaration, and is binding on defendant and her separate estate. The note which the mortgage purports to secure is for $400, bearing interest at ten per cent, from 1st November, 1889, and amounted, 1st August, 1892, to $510; but this note and mortgage are collateral to plaintiff’s store account, which they allege to be the defendant’s, and she alleges to be her husband’s, for 1888, 1889, and 1890. The balance due thereon, added to the balance due on the Phillips mortgage, is claimed by plaintiffs to be $464.40, and the master so reports. This is less than the collateral note and mortgage; therefore, the plaintiffs have a lieu on the mortgaged land for the whole amount due thereon, whether the payments are applied to and extinguish the Phillips mortgage or not, the only difference being some thirty dollars in interest. The following is a statement of the account:- * * *</p> <p>It is, therefore, ordered and adjudged, that defendant do, on or before the 1st day of November next, pay to the plaintiffs, or their attorney, the said sum of four hundred and ten dollars and seventy-five cents, with interest from the filing of this judgment, and the costs of this action; and upon her failure to do so, that she be barred of equity of redemption in said premises set out and described in the pleadings herein, and that said premises be sold, &c. * * *</p> <p>Defendant appealed on the following grounds:</p> <p>1. Because there was error in deciding that the defendant required the plaintiffs to purchase the note and mortgage described in the plaintiffs’ first cause of action, and in further deciding that the plaintiffs purchased the same upon the representations or assurances of the defendant, and in holding that the defendant is now estopped — the testimony being overwhelming that the defendant knew nothing of the intention of the plaintiffs to-take up said note and mortgage, until said plaintiffs had completed their negotiations for the same.</p> <p>2. Because of error in deciding that plaintiffs were entitled to recover on the mortgage set out in the first cause of action the sum of one hundred and seventy-nine dollars and seventy-five cents, including interest to the 27th August, 1892.</p> <p>• 3. Because of error in not deciding that the note and mortgage were extinguished, by reason of the fact that the same was a part of the consideration of the mortgage set out in the second cause of action, and was merged therein.</p> <p>4. Because of error in not deciding that said note and mortgage had been extinguished by actual payment — the testimony showing that plaintiffs were positively instructed to apply the proceeds of cotton sold to plaintiffs in payment of same.</p> <p>5. Because of error in deciding that the mortgage described in plaintiffs’ second cause of action is “in the usual full form of an instrument to bind the separate estate of a married woman, without reference to whose debt it was intended to secure.” And in deciding that the same was binding on defendant and her separate estate, she being at the time a married woman.</p> <p>6. Because of error in deciding that “the plaintiffs have a . lien on the mortgaged land for the whole amount due thereon, whether payments are applied to and extinguished the Phillips mortgage or not, the only difference being some thirty dollars and.interest.”</p> <p>7. Because of error in. deciding that, before the defendant could be made liable on the mortgage described in the second cause of action, it was not necessary for said mortgage to contain some declaration of the intention of the .defendant to bind her separate estate, as contemplated by the act of 1887.</p> <p>8. Because of error in deciding that plaintiffs were entitled to their account, the same being open and current.</p> <p>9. Because of error in the statement of the account of the defendant to the plaintiffs, the testimony showing that the items of the same were orginally charged to John M. Stevens.</p> <p>10. Because of error ip decreeing that the defendant pay to the plaintiffs the sum of four hundred and ten dollars and seventy-five cents.</p>

<p>Before Izlar, J., Aiken, April, 1891.</p> <p>This was an action by Bebecca Smith and her husband against D. H. Chamberlain, receiver of the South Carolina Bailway Company, commenced February 24, 1891. The judge charged the jury as follows:</p> <p>Gentlemen of the jury: This case has consumed considerable time, but no more time, however, than its importance demands, and it becomes your duty and mine now, to perform our respective parts in this trial. It is my duty to give you the law in this case as I understand it, and it is your duty to find the facts in this case under the testimony as you have heard it, and apply the facts to the law as I have given it to you, and then find your verdict. In the consideration of this case, you will eliminate from, your minds altogether that one party to this transaction was white or black, except so far as it becomes necessary to consider it in connection with certain portions of the testimony, and you will, at the same time, in making out your verdict in this case, not find a verdict against the corporation because it is a corporation, or against Daniel H. Chamberlain because he happened to be the defendant in this case. The real defendant in this action is the South Carolina Railway Company. So, in considering this matter, you will consider it just as you would any other case which is brought before yon. Give full weight to the testimony, give full heed to the laws as the Court shall give it to you, and then find your verdict.</p> <p>This action is brought by Rebecca Smith, plaintiff, against Daniel H. Chamberlain as receiver of the South Carolina Railway Company, to recover damages for being, as she alleges, forcibly and unlawfully ejected from the ladies’ room of the station house at Graniteville, on the line of said railway, by the agent of said company, where she had gone to purchase a ticket for the purpose of becoming a passenger on the trains run by said company.</p> <p>The gist of her action is shown in the fifth paragraph of the complaint, which I will read to you: “That while the plaintiff, Rebecca Smith, was in the passenger room of said depot, she applied to one Fishburne, agent of said defendant, to purchase a ticket from Graniteville to Aiken, but he refused to sell her a ticket, and ordered the plaintiff to go in the room allotted to male passengers; and upon plaintiff’s refusal to do so, the said agent came into said room and approached the plaintiff, and unlawfully, in a rude and violent manner, ordered the plaintiff, Rebecca Smith, to get out of said room, and bn her refusal to leave, caught hold of her and entered into a tussel with said plaintiff; and finally, in a rough, unlawful, and violent manner, pulled and forced the said plaintiff to leave said room, and at the same time inflicting bruises and injuries upon said plaintiff which caused her pain and suffering.” Now the gist of her action is contained in that allegation of plaintiff’s complaint. The defendant denies all the material allegations of the complaint respecting the forcible and unlawful ejection of the plaintiff.</p> <p>Thus the main issues of the case are clearly presented, and I hold that, under a general denial, where the plaintiff alleges that she was unlawfully ejected, the defendant may give in evidence any testimony tending to show that such ejectment was not unlawful, even a known rule of regulation, not as a justification of the act, but as responsive to the issue, and in rebuttal of the allegation of unlawful ejectment. It is true, that some testimony has been'brought out in the hearing, tending to show a discrimination against the plaintiff on account of color — she being a colored woman. This testimony was admitted without objection; but I do not think it was responsive to any allegation in the complaint, or any issue raised by the pleadings. The plaintiff, in her complaint, does not complain that she was discriminated against on account of color. Her cause of action, as set forth in her complaint, grows out of the alleged fact that she was forcibly and unlawfully ejected from the ladies’ waiting room, where she had gone to purchase a ticket, for the purpose of becoming a passenger on the railway of said company.</p> <p>Now, when a railroad company holds itself out to the traveling public as a carrier of passengers, persons desiring to travel on the line of such railway have a right to enter the ticket office provided by such company for the purpose of procuring tickets, and to occupy the waiting rooms provided until the arrival of the trains. But while they have this.right, they must, while there, conduct themselves with decency and propriety. They can not, because of the right accorded them by law, use the privilege so as to abuse it. They can not take advantage of the privilege to disturb and annoy others who go there with like purposes and under like privileges. If, while there, one should become boisterous, abusive, or indulge in profanity, or open obscenity, or other disreputable conduct, to the annoyance and discomfort of others, it would not only be right ,and proper for the agent to eject such person, but it would be his duty to do so, and, in doing so, he would be justifiable under the law, provided he did not use more force than was necessary for the purpose. Every railroad agent in this State is, within certain limits, a conservator of the peace, and is clothed with authority to arrest all disturbers and breakers of the peace, and those who are there violating the reasonable rules and regulations established for protection, convenience, and safety of the traveling public, and those interfering with the business of the agent.</p> <p>It may become necessary, in view of the testimony introduced in this case, that I should say something in regard to discrimination on account of color. Among the citizens of South Carolina we have two distinct races. Before the law they are equal. The colored-face, in our courts of justice, stand on the same plane as the white race. Our laws bear equally upon all, without regard to, race, color, or previous condition. Our social conditions, however, are very different. Friends, companions, and neighbors must be of our own choice. These relations and associations the law does not undertake to make or regulate for us. If we do not wish to associate with one class of society, there is no law that I know of which compels us to do so. Under the law, however, there can’be no discrimination. There can not be one law for the white man a,nd another for the black man. All laws must be made so as to bear equally, and to protect and punish alike all citizens of a common State or common community.</p> <p>But while this is so, we have the question presented, is it discriminating against the colored race to provide a waiting room at a railway station for the whites and another for the blacks, and to require each to purchase their tickets at a place provided for that purpose, if both rooms are of equal comfort and equal accommodations are provided? My view of the law is, that this would not be an act of discrimination; both races would, under'these circumstances, be treated exactly alike, though it might be in different rooms. The same regulations or rules would bear equally upon both. The same comforts would be extended to both. While I give yon this as the law, yet it is for you to say from the evidence in the case, whether or not the accommodations provided by the South Carolina Bailway Company at the Graniteville station for the whites and blacks on the occasion when the plaintiff claims to have been forcibly and unlawfully ejected from the waiting room were substantially equal. If the preponderance of the evidence satisfies you that the accommodations provided were not substantially equal, then I charge you that a refusal to sell the plaintiff a ticket in that room by the agent, on account of her color alone, would be an act- of discrimination; but if otherwise, it would not be. I submit this question of fact to you; you must solve it by the preponderance of the evidence. I can do no more than give you the law as I understand it.</p> <p>I do not think, that in making provision at the railroad depot for the accommodation of the traveling public, where two rooms are provided, one for the colored and one for the whites (I am not speaking of this case now, but generally,) and I say, that where the accommodations are substantially equal, and require persons of these different classes to go into these respective rooms to purchase their tickets, would be an act of discrimination, but I do not think that exact equality in every respect would be required, but only a substantial equality in this accommodation. Now, one room might have upon it a nob lock and the other a pad'lock, and to come down to exact equality, I don’t think it would be reasonable, and the law don’t intend it. The accommodations, however, must be substantially equal; and I further charge you, that a regulation of that kind, in ease you should come, in this ease, to the conclusion that there was such a regulation existing at that place, I don’t think that a regulation of that kind would be unreasonable. I can see very good reasons why it would be otherwise.</p> <p>The next question to which I would call your attention is as to the authority of the agent to make reasonable regulation, in case you come to the conclusion from the evidence that such regulation was made aud enforced by him. The agent of a railway company has the authority to make such reasonable regulation as may be necessary for the dispatch of his business, the comfort, order, convenience, and safety of the traveling public at his station, and general police of the place, so far as the same is necessary to prevent annoyance to aud unlawful interference with those who go there for lawful purposes. This much, at least, is not only expected, but required of him. But here again you must determine whether or not such regulation was made, and, if made by the agent, whether under all the circumstances it was a reasonable regulation at that station. For what might be a reasonable regulation under certain circumstances, might be very unreasonable under other .circumstances, and what might be reasonáble at one time and place, might not be reasonable at another time and place. Such regulation ordinarily, I would say, would be a reasonable regulation.</p> <p>A railway company necessarily acts through its agents,-and is liable for all their acts within the range of its charter powers. It is even liable for the wilful torts of its agents committed within the general scope of their employment, and it makes no difference that the act was without the knowledge of the master, or even in disobedience of his orders. So, if the company’s agent on this occasion wilfully and without excuse refused to sell the plaintiff a ticket, and wrongfully and forcibly ejected her from the waiting room at the Graniteville station, the company would be liable not only for the actual damage which she suffered, if the testimony satisfies you that she suffered actual damage, but also for exemplary damages. Exemplary or punitive damages, as they are sometimes called, “are damages which the jury is authorized to give over and above the money value they put on the plaintiff’s injury by reason of some misconduct on the part of the defendant, and which the jury is authorized to give, so as to teach the defendant to behave better in the future.” This class of damages is not only for the protection of plaintiff but also of the public.</p> <p>The principle is well established, that where an agent is employed to do the work of the «master he is the representative of the master, and any wrong, oppression or misconduct on his partin the performance of the duty of the master thus delegated to him must be regarded as that of the master, and, in one case, our Supreme Court affirmed a judgment of the Circuit Court, where the Circuit Judge in his charge said that, .although there may have been no wilful design on the part of the corporation or any of its agents to injure the plaintiff, nevertheless, the jury might find exemplary damages. I have been requested by the counsel for the plaintiff in this case to charge you the following requests:</p> <p>“First. That the rule of the agent Fishburne cannot bind the public, unless the jury believe from the evidence that the same was made by or sanctioned by the railroad company or the receiver, as a rule of the corporation or its receiver.” I cannot so charge you.</p> <p>“Second. That there is no evidence in this case that said rule, alleged to have been made by the agent Fishburne, was made by or sanctioned by the railroad company or its receiver.” I refuse to charge you that, because it would be inconsistent with what I have already charged you.</p> <p>“Third. That if the jury believe from the evidence that the receiver of the railroad company had not established a rule respecting its while and colored passengers, that then the plaintiff had a right to enter the room assigned to female passengers for the purpose of buying a ticket, and if while in that room for that purpose, it was unlawful to expel her on account of her color.” As a general proposition, that is good law, in case you come to the conclusion that such a regulation had been established. If such a regulation was established, and you come to that conclusion from the testimony, I would say that it does not apply; but iu case you come to the conclusion from the testimony that there was no such rule, why, of course, she was lawfully in there.</p> <p>“Fourth. That the plaintiff had the legal right to enter the room at the depot assigned to female passengers for the purpose of purchasing a ticket, and awaiting the arrival of the train on which she expected to take passage, and if while in said room for said purpose she conducted herself in an orderly manner, the defendant could not lawfully expel her. And if the jury find that the plaintiff entered said room for said purpose, and while in there her conduct-was orderly, and if she was expelled therefrom, such expulsion was unlawful, for which the defendant is liable.” I charge you that that is good law, in case you find that the room had been assigned for female passengers. That you must decide yourselves from the evidence, whether or not there was any particular room assigned for the females to purchase their tickets, and she was in that particular room. “And if the jury find that she entered such room for such purpose,” and while in there to buy a ticket was orderly, and she was expelled therefrom, I should say she was unlawfully expelled therefrom. “Such expulsion was unlawful, for which the defendant is liable.” Well, that would depend altogether, it seems to me, upon the conclusion which you might come to in regard to whether a room had been assigned for particular persons of this class to purchase their tickets at that place, or whether females of all classes were allowed to go into one room and there purchase their tickets. If a room had been assigned to.females of all classes to purchase their tickets, and she was in that room lawfully, and conducting herself properly, why, the agent would have had no light to force her out and eject' her, if she was conducting herself properly while there.</p> <p>“Fifth. The defendant is responsible for all acts of his agent done in the course of his employment, and it makes no difference that the agent acted against the rules of the defendant company.</p> <p>“Sixth. If the jury should find that the conduct of the agent was rude, insulting, and oppressive towards the plaintiff, then the jury may give such damages as would compensate plaintiff for her injured feelings and the indignities placed upon her, and, also, exemplary damages, such reasonable amount as would punish the defendant for the wrong done.” As general propositions of law, I think that these are correct.</p> <p>“Seventth. If the jury should find that the plaintiff was expelled from the depot, and that such expulsion was unlawful, and the agent’s conduct was oppressive, malicious, and recklessly disregardful of the plaintiff, or insulting or unnecessarily rude and violent, the jury may go beyond the actual amount of damages done the plaintiff, and give such amount as they think she ought to have, not only to compensate her, but to punish the defendant for such conduct.” I have in effect charged you that already. It is admitted by the other side as good law.</p> <p>The defendant also requests that I should charge:</p> <p>“First. That if the jury find from the- evidence that Fishburne, as agent of the defendant, was in entire charge of the depot at Graniteville, then as such agent he had the right to establish all reasonable rules and regulations for the government of the depot and its surroundings.” I have in effect charged you that.</p> <p>“Second. That if the jury find from the evideuce that said agent established a rule or regulation by which a certain wiudow was set apart, from which white people were to obtain tickets, and another from which colored people were to obtain tickets; and a certain room was set aside for white people and another for colored people; and if they further find that equal accommodations were given to one class as to the other; and that in the reasonable enforcement of said rule the said agent ejected the plaintiff from the depot, using in so doing no more force than was necessary, then the verdict must be for the defendant.” I will charge you that, modified to this effect: that if the plaintiff here had knowledge of the fact that such was the rule, then that would be a good proposition of law, as I understand the law: but if she had no knowledge of the rule, and went into that place believing that that was the place, up to that time, of course, there would have been no violation of the law, and it is for you to say from the evidence which you have heard, whether or not she had knowledge of the rule.</p> <p>“Third. That according to the statute law of this State, station or depot agents of railroad companies are made conservators of the peace in and about their respective places of business, and if the jury find in this case that Fishburne was such agent, then he was such conservator of the peace at such place, and had the right, using no more force than was necessary, to eject the plaintiff from the depot, if the jury find that she refused to leave after request, and was guilty of conduct which tended to disturb the peace and quiet of other parties rightfully in the depot, or to interfere with the business of the agent.” I have already charged you in effect that request, and you have heard the statute law I intended to read to you in regard to the agents at depots along the lines of the railways in this State. It has been read to you, and that they are conservators of the peace, and what authority they have at their respective,depots. There is also a statute in regard to waiting rooms at their respective stations read to you. The act, as I understand it, requires that the company shall provide at the station two rooms; but there is no direction by statute, as I understand it, how those rooms shall be used. They are to be provided with comfortable seats for the accommodation of those who go there to take the trains, and are to be substantially equal, and, as I have already charged you, that if such a regulation was made at the depot requiring one class of persons, either male or female, or one .class of citizens, either white or colored, to purchase their tickets in those respective rooms, why it would be no act of discrimination.</p> <p>Now, you are to take this case and consider the testimony, and I urge upon you, notwithstanding the lateness of the hour, that you will give due consideration to all of the testimony which you have heard, and apply it to the law as I have given it to you. I trust that I have made myself plain in endeavoring to read these requests; I may have got the matter a little mixed, but I think you can understand what is the law of this case from what I have already said. It is an important case, as I stated at the outset, and deserves due consideration on your part. If you are satisfied, from the testimony, under the law as I have given it to you, that the plaintiff is entitled to a verdict in this case, why, you can find any amount of damages from one cent up to fifteen hundred dollars — I believe that is the amount contained in the complaint; you can not go, however, beyond what is contained in the complaint. If,' however, you come to the conclusion, from the evidence which you have heard, that this party has failed to sustain the allegations of her complaint, and that is the foundation and cause of her action, and that she was not unlawfully and forcibly ejected from that railroad station, why, then your verdict would have to be for the defendant.</p> <p>Mr. Croft: I would like for you to charge, “If smoking and chewing was allowed in one room and not in the other, it would not be equal.” The Court: I would not say there would be equal accommodation for both, if smoking and chewing or cursing were allowed in one room and not in- the other. Mr. Henderson: During the time this was going on? The Court: Yes, during the time she was there; and you are to decide whether any chewing or smoking or cursing was going on in that room at that time.</p>

<p>This was a motion by defendants, appellants, to suspend the appeal and permit defendants to make a motion in the Circuit Court for a new trial, on the ground of after discovered evidence. This action was for partition of lands of James Gaul-din, and the decree, from which the appeal was taken, directed the partition to be made. The affidavits accompanying the motion showed that John Gauldin and Charles B. Gauldin were executors of James Gauldin, and that John Gauldin was dead, and Charles W. Gauldin was his executor; that Charles W. had made diligent search, before the trial, among the papers of John Gauldin, but did not find, until after this appeal had been taken, two receipts, signed by plaintiff, acknowledging full payment “of all demands against the estate of James Gauldin, both real and personal;” that said two receipts were found, by a daughter of John Gauldin, in a drawer to a chest in the back piazza of Charles W. Gauldin’s dwelling house, said chest being used exclusively for garden seeds and tools.</p> <p>On the 30th day of November, 1892, the first day of the call of the Eighth Circuit docket, the case being on docket, the motion was made by defendants’ attorney, Mr. DeBruhl. Mr. E. G. Graydon, counsel for plaintiff, respondent, objected to the hearing of the motion at this time, on the ground that this is not the proper time therefor; that the notice was given during the present term, and stated that the motion would be made “on the first day of the next term,” and was served on the 22d day of November, 1892, the first day of the present term. Counsel for defendants stated that he intended, by the words, “on the first day of the next term,” the first day of the term for the call of the docket of the Eighth Circuit.</p> <p>The court orally decided, as to this objection by the plaiutiff’s counsel, that the notice, though no doubt a mistake on the part of the defendants, was calculated naturally to mislead the plaintiff’s counsel; and that, therefore, the motion cannot properly be heard at this term. And the court called the attention of the bar to the habit of not dating such notices, as in this case the date can only be ascertained from the caption and the service. But as the mistake in this notice was, no doubt, through inadvertence, the court was disposed to allow a motion for a continuance of' the case, in order that the motion can be made and heard, unless the plaintiff’s counsel would waive the time. This the counsel decided to do, rather than have the case continued until next term. The court then proceeded to give its judgment orally upon the motion, having carefully considered the-same, and said:</p> <p>Motions of this character are allowed, because, when an appeal is perfected, the Circuit Court loses its j urisdietion, and cannot hear a motion for a.new trial on newly discovered evidence.' As this court cannot do so, inasmuch as the motion involves questions of fact, it is customary to suspend the appeal and remand the case to the Circuit Court, to allow the motion to be made in that court. But before this court will do so, it has been decided ' in several cases that the moving party must make a prima facie showing. Counsel for plaintiff was in error in supposing, as stated in his argument, that the moving party must show such facts to this court as would be sufficient to sustain his motion in the Circuit Court for a new trial. This court has laid down the principle that only a prima facie showing should be made here, and the judgment of this court should not influence the decision of the Circuit Court on the motion for a new trial in the slightest degree. In this case, such aprima facie showing has been made to this court, and the motion should be granted.</p>

After the opinion was filed in this case on February 19, 1892 (35 S. C., 311), the plaintiffs obtained a stay of remittitur until April Term, 1892, on the affidavit of Andrew E. Moore, Esq., that he had recently discovered that C. S. Thompson, of North Carolina, had heard John Jackson say that the last paper in the cause was a “deed of gift.” All of this was denied in an affidavit made by the said C. S. Thompson.

<p>This was a motion, in behalf of the plaintiff, respondent, for an order declaring the appeal herein abandoned, and allowing plaintiff to proceed as if no appeal had been taken, under Rule XLIX. of the Circuit Court, upon notice, with accompanying affidavit and certificate. The court say:</p> <p>Rule XLIX. is explicit. It provides as follows: “XLIX. Where a party makes a case or exceptions, he shall procure the same to be filed within ten days after the same shall be settled, or it shall be deemed abandoned. And on filing affidavit that such case, or exceptions, has not been filed, and showing the time of the settlement thereof, and that more than ten days has elapsed from the time of such settlement, an order, of course, may be entered declaring the same abandoned, and the party may proceed as if no case or exceptions had been made.” In this case, a showing has been made in conformity to this rule. It appears that the case was settled by agreement between the parties on the 26th day of May, 1892,- and on the 8th day of-June, 1892, the clerk certifies that the same had not b.een filed in his office. Under this showing, the court would be bound, however reluctantly, to grant the motion as the rule prescribes. The rule is imperative, and the court has no discretion in the matter upon a proper application made.</p> <p>But in this ease the appellants have made application to be relieved from the operation of this rule, upon notice and affidavits. This application is based, as we understand it, on section 349 of tbe Code of Civil Procedure, which provides as follows: “When any party shall omit, through mistake or inadvertence, to do any act or acts necessary to perfect an appeal, or to stay proceeding, the Supreme Court may, in their discretion, permit such act or acts to be done at any time to perfect the appeal on such terms as may be just, provided that the court shall be satisfied that the appeal was taken bona fide, and provided that notice of the same was given as now required bylaw.” This presents a question of fact, to be solved by affidavit. The mistake contemplated by this section, we have already decided, is one of fact, and not one of law.</p> <p>The application for relief is based on two grounds: First. That counsel for appellants had been under the erroneous impression that Rule XLIX. of the Circuit Court did not apply to cases for appeal that were agreed on, but to cases that were settled, and had acted under this impression in previous cases. This court decided in the case of Chisolm v. Providence Insurance Company (35 S. C., 599), that Rule XLIX. must be complied with, though the case was settled by agreement between the parties. This decision was made January 5th, 1892, and published in February following. See 14 S. E. Rep., 349. The case here was agreed upon, as previously stated, in May, 1892. Secondly. That, notwithstanding the impression aforesaid, one of the counsel for appellants is under the impression that he suggested chat the case should be filed, in the clerk’s office, out bf abundant caution, though he did not think it necessary, and that he directed the clerk in his office to so file it. His impression, however, is too indistinct for him to swear to it. The other counsel makes affidavit that his partner did so suggest, and directed the office clerk to file the case. Now, if it had appeared that such direction was given to the office clerk within the ten days required by the rule, we would, without hesitation, grant the relief asked for; but it does not appear that such direction was given in the time required, and it is with regret that we say so. The burden of proof is upon the appellants to make the proper showing for the relief asked for. This not being done, the motion must be granted.</p>

This was an action for the foreclosure of a mortgage. Defendant, a married woman, having failed to answer within twenty days after the service of the summons and complaint, made affidavit that she was ignorant of the requirements of the law, and very much occupied with her domestic duties, and so neglected to employ an attorney in time. Her counsel moved for leave to come in and answer, but the motion was refused (Izlar, J.), and decree of foreclosure rendered.

<p>In this case the plaintiffs were paid their claim in full under the decision to be found in 35 S. C., 33, and there remained a balance for pro rata distribution amongst the unreleasing creditors of the assignor. Thereupon plaintiffs’ attorneys claimed that as they had brought this fund into court they should be paid a reasonable counsel fee out of the general fund. This claim was disallowed on Circuit (Norton, J.), and these attorneys appealed.</p>