Volume 4 — South Carolina Reports

Before ORR, J., at Abbeville, February Term, 1872. This was an indictment for cow stealing.

Before MOSES, J., at Newberry, September Term, 1871. Action by Eliza R. Stewart, widow and administratrix of Robert Stewart, deceased, plaintiff, against Joseph Pearson and wife and others, heirs-at-law and creditors of decedent, defendants.

Before MOSES, J., at Newberry, September Term, 1871. Bill in equity by E. P. Mayer & Brother, plaintiffs, against Henry H. Blease, defendant, to set aside an assignment to the defendant of two judgments recovered by the plaintiffs, one against Basil M. Blease and the other against Thomas W. Blease.

Before THOMAS, J., at York, September Term, 1871. Action of trespass to try title by John M. Swann, plaintiff, against Anna PI. Poag, defendant. Mary II.

Before JOHNSON, Ch., át York, June,-1868. James M. Harris died early in,the year 1857, leaving a considerable estate and a last will and testament. The will was proved in the Court of Ordinary for the District (now County) of York, and letters of administration, with' the will annexed, granted to F. H. Harris, a son of the testator. On March 27, 1857, the administrator sold the whole personal estate on a credit of one year.

Before GREEN, J., at Marion, February Term, 1872. For a full understanding of this case, reference should be had to Moody vs. Hazelden, as reported 1 S. C., 129. Under the judgment ■of the Supreme Court in that case, it was ascertained that the value of the mortgaged slaves was equal to the amount due on the mortgage, and thereupon the bill was dismissed.

Before GRAHAM, J., at Orangeburg, October Term, 1871. This was a proceeding, by rule, against Harpin Riggs, Sheriff of the County of Orangeburg; all the orders and other proceedings being entitled in the case of Arthur Emory vs. John Davis. The first order was as follows : “On motion of Messrs.

Before MOSES, J., at Newberry, September Term, 1871. This case will be understood from the decree of the Circuit Judge, which is as follows : Moses, J. The petitioner, Eliza R. Stewart, filed her petition in the Probate Court for the County of Newberry on the 2d day of November, A. D. 1869, against the defendant, Henry H. Blease, for the recovery of dower in a certain tract of land therein described. By the answer of Henry H. Blease, her right to dower was denied.

<p>Where land is sold under a decree for partition between heirs, and is afterwards sold under a. judgment against the ancestor, the purchaser under the sale for partition has no equity to restrain the purchaser under the judgment from prosecuting an action to recover the possession of the land, upon the mere ground that the fund arising from the sale for partition is sufficient to satisfy the judgment, and is under the control of the Court, and that the owner of the judgment stood by and did nothing to prevent the sale for partition.</p> <p>Nor does an allegation that there arc personal assets in the hands of the administrator of the ancestor, which may bo sufficient to satisfy the judgment, give rise to such an equity.</p> <p>A judgment creditor has the right to select what property of his debtor shall be sold under his execution.</p> <p>Where a defendant has an equitable defense the proper practice is, not to bring a cross action in the nature of a bill for injunction, but to allege the matter in the answer as a defense or counter claim.</p>

Before THOMAS, J., at Chester, April Term, 1872. This was the action of trespass to try title of Osmond Barber and Ferguson H. Barber, plaintiffs, against Samuel McAliley, defendant, ■ mentioned in the last preceding case of McAliley vs. Barber. By agreement of the parties the facts of that case were regarded as proved in this, and need not be here repeated.

<p>A Circuit Judge lias no power at Chambers to dissolve an attachment under a writ in foreign attachment sued out in 1867.</p>

This was an action by Jesse Roof, plaintiff, against the Charlotte, Columbia and Augusta Railroad Company, defendant. The only point of law made by an appeal and decided, by the Court is stated in the opinion of the Court, (a.)

<p>The Court of General Sessions being vested by the Constitution, Article IV, Section 18, with “exclusive jurisdiction over all criminal cases which shall not be otherwise provided for by law,” the Legislature cannot vest in an Inferior Court “ exclusive original jurisdiction of all criminal causes less than capital.” The Court of General Sessions retains its jurisdiction, notwithstanding the terms of the Act.</p>

Before THOMAS, J., at Lancaster, April Term, 1871. Held: must be proved, and cannot be presumed. — Idem, 342, 343.

Before THOMAS, J., at Lancaster, June Term, 1872. Bill in equity by D. W. Brown, executor of Dixon Barnes, deceased, plaintiff, against John B. Erwin and wife, creditors of Barnes and others, defendants, for settlement of the estate of the testator.

This was an application by Samuel Marco against the County Treasurer of Darlington County, to compel him to pay a warrant for $5,500, drawn in favor of the applicant, by the County Commissioners of said County, and dated the 3d of June, 1872.

<p>"Whore amendments to the case proposed by appellant’s attorney are prepared and served by respondent’s attorney, it is the duty of the Circuit Judge to consider and allow, disallow, or modify them, whether respondent’s attorney appears at the time and place of submitting tho case and amendments for settlement or not. The non appeai*ance of the attorney is no ground for regarding the amendments as abandoned.</p> <p>"Whore the case brought up by appellant, as partuof the judgment record, has never been settled in conformity with Sections 288, 202, of the Code of Procedure, the remedy, it seems, is to return the record to the Circuit Court for settlement.</p> <p>A ease may be settled upon affidavits and other proofs, as well as upon the minutes or personal recollection of the Judge who tried it. The power is not personal in the Judge, but belongs to the Court, and may be exercised by his successor in office.</p>

Before GRAHAM, J., at Charleston, February Term, 1872. Action by George W. Williams & Co., plaintiffs, against James M. Caldwell & Co., defendants. The complainant alleged: “1.

Before GRAHAM, J., at Charleston, June Term, 1872. These were actions by R. J. Donaldson and others against the Farmers’ and Exchange Bank and others ; Hugh Walker against George A. Trenholm and others ; James Bankhead against George A. Trenholm and others; and Tomlinson, Fort and others against the Farmers’ and Exchange Bank and others.

Before CARPENTER, J., at Charleston, April Term, 1870. On June 10, 1854, William Algernon AlstoD, Sr., conveyed to his son Joseph Alston five plantations in Georgetown District, one of which was called Calais, and to secure the payment of the purchase money, $100,000, Joseph Alston and his wife, Helen Alston, gave to the vendor their bond and mortgage of the plantations, bearing the same date.

Before THOMAS, J., at Lancaster, ■ Term, 1872. This was an action by Mary M. Kirkland, as administratrix of Thomas J. Withers, deceased, plaintiff, against Thomas K. Cureton, as surviving executor of Thomas Cureton, deceased, defendant, to recover a sum of money claimed to be due and unpaid on a joint and several bond, dated 1st of January, 1853, for $10,000, and interest, given by James B. Cureton, as principal, and the testator of defendant, with two others, as surety to…

Before THOMAS, J., at Chester, October Term, 1871. The proceedings iu this case were commenced by a bill in equity filed in 1857 by Isom Kirkpatrick, as administrator of John McKelvy, deceased, against Valentine Atkinson and Elizabeth his wife, and its object was to obtain a decree setting aside, on the grounds of want of sufficient capacity, and of misrepresentation, fraud, and undue influence, two deeds made by the intestate and his wife, dated 23d June, 1847, whereby the…

Beeore GRAHAM, J., at Charleston, March Term, 1871. Action of assumpsit, commenced in April, 1867. The declaration contained two counts.

Before THOMAS, J., at Lancaster, June Term, 1872. This was an action by Henry R. Price and Nancy E., his wife, and his daughter, Henrietta C., with her husband, John N. Crockett, plaintiffs, against Daniel W. Brown, Jonas Crockett and Eli D. Crockett, defendants.

Before F. W. MoMASTER, Special Judge, Richland, April Term, 1872. Action by George W. Patterson, plaintiff, against the South Carolina Railroad Company, defendants, to recover damages for the loss of cotton alleged to have been delivered by plaintiff to defendants, as common carriers, at their depot in Richland County, called Gadsden.

Before MELTON, J., at Edgefield, June Term, 1871. This was a bill in equity, by Richard McNamee against A. G. Waterbury, Frank Holman, James Morrison, Thomas J. Davis, John B. Moore and James Gardner. The facts of the case, and the object of the bill, are stated in the following decree of the Circuit Court: Melton, J. This case came on to be heard by the Court at the June Term of the Court of Common Pleas for Edgefield County, 1871.

Before MOSES, J., at Newberry, September Term, 1872. Bill by Etenry Halfacre, plaintiff, against Richard S. Whaley, defendant, to foreclose a mortgage on a lot in the town of New-berry.

Application by Jonathan Wright, plaintiff, against William E. Charles, defendant, to the Supreme Court, in a ease agreed upon in a controversy submitted without action. The facts are stated in the judgment of the Court. First.

This was a petition to the Supreme Court by Robert C. Shiver, J. P. Southern, W. C. Swaffielcl and W. B. Gulick, against Solomon L. Hoge, as Comptroller General of the State, praying for a wiit of… Held: that such contract is void upon general principles. Courts of justice are instructed to carry into effect the laws of a country, and they cannot become ancillary to the violation of those laws.

Before GRAHAM, J., at Charleston, March Term, 1872. This was an action to recover the value of articles alleged to have been lost from the trunk mentioned in a receipt therefor given by an agent of the Adams’ Express Company.

Before MOSES, J., at NewEerry, May Term, 1872. The bill in this case was filed 22d May, 1866, by Helen O’Neall, plaintiff, against Walter H. Hunt and M. J. Jenkins, defendants, for plaintiff’s dower in a lot of land described in the bill, which was decreed to her. The bill was retained for the purpose of adjudicating the questions raised by the answers of the two defendants.

Before THOMAS, J., at Fairfield, August Term, 1872. Action by Mary H. Means, B. Hart Means, Julius E. Polenitz and Claudius M. Polenitz, against Trezvan D. Feaster, Julia A. Coleman, M. Narcissa Feaster and Elbert H. Feaster. Annett G. Feaster was also a plaintiff, but when the case came on for trial she acknowledged satisfaction of her claim, and the complaint was amended by striking out her name as plaintiff.

Before GRAHAM, J., at Charleston, August, 1874. These were two actions in the form of creditors’ bills, one by William A. Beall and the other by Jeremiah Beall, plaintiffs, .against Charles T. Lowndes and James Robb, defendants.

Before COOKE, J., at Abbeville, February Term, 1873. The appeal in this case was heard upon a brief, which is as follows : “ The issues in this action came on for trial before the Hon. T. H. Cooke, Judge of the Eighth Judicial Circuit of said State, at a Circuit Court, held at Abbeville Court House, in and for the County of Abbeville, on the 27th February, 1873.

Before MOSES, J., at Newberry, Spring Term, 1871. The original bill was filed, in this case, in 1868, by Mary Eeeder against John L. Speake and Eebecca Speake.

<p>The charter of the town of Sumter, providing that the certificate of the Public Weigher should, in case of dispute, bo conclusive evidence of the weight of cotton and other articles sold by weight, and that the public scales should be the standard to which all others in the town should conform, held that the Town Council could not, by ordinance, require all persons, unciera penalty, to have their cotton brought to the town for sale weighed by the Public IVeigher.</p>

Before GRAHAM, J., at Charleston, January Term, 1872. Bill in equity by L. W. Spratt, plaintiff, against John S. Pierson, Abraham G. Jennings, and others, defendants.

Before ORB, J., at Chambers, Greenville, May 16,1872. Action by R. H. Earle, plaintiff and appellant, against Edward F. Stokes, defendant. The case is stated in the opinion of the Court. The plaintiff appealed.

Before ORR, J., at Greenville, September Term, 1872. The case on the first appeal is reported in 3 S. C., 396, and the whole case as now made is stated in the judgment of the Court.

<p>Before MELTON, J., at Columbia, Noyember, 1872.</p> <p>This was an action in the name of the State by Edwin F. Gary, as State Auditor, relator, against Niles G. Parker, as State Treasurer, and others, as County Treasurers, defendants, for injunction. By an order of the Circuit Court, John P. Southern and others, scrip holders, were allowed to intervene as defendants.</p> <p>The points decided in the case will be fully understood from the opinion of the Court.</p> <p>His Honor the Circuit Judge granted the injunction, and the defendants appealed.</p>

Before GREEN, J., at Georgetown, June Term, 1872. This case will be fully understood from the decree of His Honor the Circuit Judge, which is as follows: Green, J. Robert Fishburne and James Ravenel, trustees under the marriage settlement of B. Clay Fishburne and Jane Rose Fishburne, his wife, filed their petition in the Court of Equity on the 8tfi day of April, 1867, so much of which as is necessary to be stated in this opinion is as follows : “ That the disastrous…

Before ORR, J., at Anderson, Fall Term, 1872. The case is stated in the following brief, prepared by counsel for the Supreme Court: This was an action brought by Ella Donald, Anna A. Donald, and others, the widow and infant children of the late Col. David L. Donald, against the Piedmont and Arlington Life Insurance Company, on a policy insurance for the sum of five thousand dollars on the life of the said David L. Donald.

Before CARPENTER, J., at Richland, February Term, 1873. Action by J. S. Guignard and J. G. Guignard, plaintiffs, against William Kinsler, Edward Kinsler and Henry 0. Kinsler, defendants, for an injunction to restrain the defendants from using a right of way over the plaintiffs’ land.

Before VERNON, J., at Spartanburg, Spring Term, 1870. This was an action of trespass to try title by the South Carolina Manufacturing Company, plaintiff, against J. Perry Price, defen- dant.

Before ORR, J., at Greenville, September, 1872. This was a bill in equity for foreclosure, filed by William M. Thomas, plaintiff, against Mary Raymond, defendant. The following statement of facts and dates, in addition to those stated in the opinion of this Court, seems to include everything necessary to a full understanding of the points decided by the Court.

Before ORR, J., at Abbeville, October Term, 1870. Held: and the guardian charged with that sum in lawful and good money. 4.

Before GRAHAM, J., at Charleston, June Term, 1872. This was a bill in equity, filed in September, 1866, by Thomas J. Pickens and wife against Isaac M. Dwight, James Tupper and others, and revived in 1869 against the executors of Mr. Tupper, who had died in the meantime.

<p>One claiming the legal title to land cannot, on the mere ground that he is the legal owner, maintain a bill in equity to enjoin its salo by the Sheriff under execution, as the property of another; nor does it make any difference, it seems, that the plaintiff in the bill is the executrix of the debtor, as whose property the land was levied on, and the execution is against herself as executrix.</p> <p>Under the former practice of the Court only such relief would be granted, under the general prayer fur relief, as the case stated in the bill would justify.</p>

<p>In the Criminal Court oe Charleston, October Term, 1872.</p> <p>The case is stated in the opinion of the Court.</p>

<p>In the Criminal Court of Charleston, July Term, 1872.</p> <p>The ease is stated in the opinion of the Court.</p>

<p>The principle of the preceding case of The State vs. Chapeau <b Hcffron re-affirmed. Ho indictment, under the “Act to provide for a general license law,” lies against a livery stable keeper for not paying for a license according to the rental value of his stable — the Act having prescribed no rate by which the sum to be paid is to be fixed.</p>

Before GRAHAM, J., at Charleston, December Term, 1872. This was an action by Lockwood A. McCants, plaintiff, against Edward L. Wells, defendant. The complaint alleged: 1.

Before Carpenter, J., at Chambers, Columbia, February 11, 1873. This was a special proceeding against John Alexander, Mayor of the city of Columbia, and Samuel Hook, Superintendent of the City Water Works, for alleged contempt of an injunction order made in an action wherein the Columbia Water Power Company were plaintiffs and the city of Columbia defendant.

In the Criminal Court of Charleston, July Term, 1872. The indictment alleged that I. W. Hayne, late of Charleston, attorney at law, on the tenth day of April, in the year of our Lord one thousand eight hundred and seventy-two, at the said Charleston, and there on divers other days and times, between that day and the day of the finding of this indictment, to wit: on the first day of July, in the year of our Lord eighteen hundred and seventy-two, without any authority or…

These were five several petitions for mandamus by Morton, Bliss & Co., of the city of New York, relators against Solomon. L. Hoge,' Comptroller General of the State, respondent. The pleadings in each case consisted, besides the petition, of the return of the respondent to a rule to show cause, and reply thereto of the relators, and a rejoinder of respondent.

Before MAHER, J., at Chambers, Barnwell, April, 1873. Held: conducted and determined as is now provided by law for the holding of elections for State and County officers. “Sec. 3.

Before MELTON, J., at Columbia,-Term, 1872. This was an action brought by Harvey Terry, plaintiff, against Michael J. Calnan, as Receiver, and Sarah Wallace and others, as stockholders of the Commercial Bank of Columbia, South Carolina, defendants.

Before GRAHAM, J., at Charleston, July Term, 1872. Jacob Barrett, the testator in the cause, died on the 13 th day of November, 1871, leaving a last will and testament, dated the 21st day of September, 1870, and codicil, dated the 10th day of January, 1871. He left a considerable estate, real and personal, which he devised and bequeathed to his widow, children and grand-children, all of whom survived him.

Before GRAHAM, J., at Charleston, June Term, 1872. These were applications to the Circuit Court of Common Pleas for writs of prohibition — one by the South Carolina Society, and the other by the Hebrew Orphan Society, against William M. Gurney, County Treasurer, and Samuel L. Bennett, County Auditor.

Before THOMAS, J., at Union, March Term, 1872. Action for dower by Lucy Shelton, plaintiff, against A. G. Maybin, defendant. The Term of the Court, at which the case was tried, commenced on the 6th March, 1872. On the 9th March, 1872, the Act entitled “ An Act to amend sundry Sections of the Code of Procedure, relating to Circuit Courts,” was passed.

<p>An error of law in the Judge’s charge to the jury cannot be made a ground of appeal xmless it be excepted to before the jury retire to their room, nor can a failure to charge a particular proposition of law be assigned as error unless the Judge, on request, decline so to charge.</p>