Volume 40 — South Carolina Reports

Before NORTON, J., Laurens, February, 1893. This was an action, commenced June 21, 1892, by Jacob Mann, Henry Mann, and Levi Mann, as J. & H. Mann & Co., against J. T. Poole, individually and as guardian, N. B. Dial, assignee, and the wife and wards of J.T. Poole.

Before Norton, J., Darlington, April, 1892. All the issues of law and fact in this case were referred to T. H. Spain, Esq., who made his report, wherein, after finding the facts as stated in the opinion of this court, he found as follows: Can the sureties on a trust bond foreclose a mortgage (like the one in question), given to secure them free and harmless on account of their being my security on said bond against a purchaser with notice, when the sureties have not paid…

This was a petition to this court by the State of South Carolina on the relation of B. M. Morse against J. D. Cornwell and others, as county commissioners of York County, dated April 12, 1893. A rule to show cause was issued, a return made thereto, and the hearing was had May 15.

Before NORTON, J., Laurens, February, 1893. This was an action by G-. Ober & Sons Company against James S. Blalock, to recover on the contract set out in the opinion. At the hearing, an oral demurrer was interposed, alleging that the facts stated in the complaint did not show any right of plaintiff to make the contract in this State. This demurrer was overruled.

Before Izlar, J., Union, October, 1892. This was an action by C. H. Peake, as master for Union County, against John L.Young, commenced in February, 1892.

Before Wallace, J., Lancaster, February, 1893. This was a proceeding by the Chester and Cheraw Bailroad Company against James T. Marshall, as executor of John W. Marshall, deceased, to revive a judgment obtained by the railroad' company against thesaid John W. Marshall in his lifetime.

Before Izlar, J., Spartanburg, November, 1892. This was an action by Baxter H. Moore against Margaret L. Trimmier, as administratrix, and others. For a full history of the case, see 32 S. C., 511 and 527, and 35 S. C., 606.

<p>1. Service on Infants. — An infant under fourteen years of age is not properly made a party to an action where the summons is not personally served upon him.</p> <p>2. Impeachment of Judgments.. — -The rule declared as to yoid and voidable judgments, and how alone the latter may be impeached.</p> <p>3. Ibid. — Service on Infants. — Where parties claiming under a purchaser at foreclosure sale bring action to recover the land from the heir of the mortgagor, who, when an infant, had been the defendant to the foreclosure proceeding, and it is agreed that the defendant shall have the right to introduce any evidence and make any point in his defence which he could introduce or make in any proceeding instituted by him to vacate the judgment of foreclosure, he may introduce evidence to disprove the return of service, regular in form, endorsed by the sheriff on the summons in foreclosure, and upon such evidence the judgment may be vacated.</p> <p>4. Decree — Amendments—Infants.—Where an infant is not properly before the court, no amendment can be made to a decree by consent of one assuming to be attorney of the infant’s guardian ad litem.</p> <p>5. General Exceptions. — Exceptions alleging error to the trial judge in charging certain requests will not be considered, where the judge stated to the jury that they were good law, except as modified by his charge, and the exceptions fail to specify the modifications or to suggest wherein these modifications were erroneous.</p> <p>6. Judicial Sales — Fraud—Jury Trial. — There was no error in submitting ■to the jury the question of actual fraud in chilling bids at a sale under which the plaintiffs were now claiming as beneficiaries.</p> <p>T. Action — Amendment.—A complaint demanded the recovery and partition . of land alleged to have been purchased under foreclosure proceedings, and the defendant in possession, the heir of the mortgagor, successfully attacked the validity of the foreclosure and purchase. Held, that there was no error in dismissing the complaint.</p>

Before Izlar, J., Spartanburg, October, 1892. Action by T. B. Thackston, as administrator of W. N. Boon, plaintiff, against the Port Royal and Western Carolina Railway Company. The judge charged the jury: The issues which you are to consider and decide are clearly defined by the pleadings. You are to determine from the testimony whether there has been any negligence in the case on the part of the plaintiff or the defendant. You are made the sole judges of the facts.

Before NoetoN, J., Spartanburg, March, 1893. This was an action, commenced September 20, 1889, by B. C. Oliver, and after his death continued by John A. Porter and others as his executors, against John R. Jefferies and Eber C. Allen. Paragraphs 2, 3, and 6 of the answer were as follows: “2.

<p>Before HUDSON, J., Aiken, October, 1892.</p> <p>Action by H. S. Evans against D. H. Chamberlain, as receiver of the South Carolina Railway Company.</p>

<p>I. Case Criticised — Sams—Rescission.—The ruling in Kauffman Milling Co. v. Stuckey, 37 S. C., 7, approved, and the doctrine reaffirmed, that where personal property has been purchased by sample at a sound price, the purchaser has no right to rescind unless (1) there was an agreement at the time of purchase, that if the article did not come up to the sample or implied warranty, the purchaser might return it, or (2) there has been fraud, or (3) an entire failure of consideration.1</p> <p>2. Sales — Rescission—Liability.-.—Where a merchant purchases by sample fifty barrels of flour at a sound price, and sells fourteen of these barrels, and from knowledge thus acquired then claims that the whole lot is worthless, and offers to return the unsold barrels, which offer is refused, the merchant would be liable for the barrels sold, even if the jury should believe that the whole lot was worthless.</p>

Before Izlar, J., Spartanburg, October, 1892. Action by Stanyarne Wilson against Fielding Cantrell, commenced June 7, 1890. The judgment of the Circuit Court was as follows: The plaintiff commenced this'action on the 7th day of July, 1890, to recover the possession of the tract or parcel of land described in the complaint. It was referred to the master of said county to hear and determine all the issues.

Before Izlar, J., Abbeville, January, 1893. This was an action by Rachel Rapley against James C. Klugh for the recovery of two acres of land, commenced May 28,1892. The plaintiif claims that her husband contracted with R. H. Wardlaw in 1884 to purchase this land from him.

<p>Before Hudson, J., Aikeu, October, 1892.</p> <p>Motion by W. A. Susong and others in the case of Sullivan v. Susong. See 30 S. O., 305, and 36 Id., 287.</p>

<p>1. Appeal — Pacts.—Un appeal in a law case, only errors of law can be reviewed by this court.</p> <p>2. Lease — Forfeiture—Notice—Action—Presumptions—Oases Criticised. A lease of land was made for seventy-five years, by deed duly recorded, on the consideration of tlie prepayment of a sum in gross, the lease containing no covenant as to assignment, sub-leases, or surrender of possession at its termination. Pending this lease, a purchaser thereof in possession of the land undertook to convey the land in fee simple, and it thereafter passed under deeds purporting to convey the land in fee simple down to the defendant in this action, all of these deeds being duly recorded. These parties all had actual possession, and valuable improvements were erected on the land. In action brought by the lessor, within two years after termination of this lease, for the recovery of this land, held, that as the claim of seizin is inconsistent with tenancy, the conveyance in fee simple by one who had only the rights of a lessee, wrought a forfeiture of the lease, and the landlord became thereupon entitled to regain at once possession of the leased premises, and the landlord not having taken any action for more than twenty years after such forfeiture, he was not barred by the statute of limitations, but the adverse possession for that length of time by the successive possessors raised a legal presumption of a grant in fee simple to those under whom defendant claims, that may be rebutted only by positive proof. The rule as to the character of the presumption in such cases, as laid down in Smith v. Asbell, 2 Strob., 146, approved. Mr. Justice McGowan concurred under the authority of decided cases, and Mr. Chief Justice McIver concurred in the result under the authority of Trustees v. Meetze, 4 Rich., 50, and of the finding of fact by the verdict of the jury, that the landlord had actual notice of the conveyances in fee.</p> <p>3. Refusal of New Trial in a law case on questions of fact is not reviewable on appeal.</p> <p>4. Petition for Rehearing — Subsequent Records. — The record of subsequent deeds does not seem to affect one whose rights depend on a prior deed duly recorded.</p>

<p>1. An Unappealed Decree is binding upon all parties to the cause.</p> <p>2. Costs in Equity — Improper Payment. — In action by senior mortgagee for foreclosure against mortgagor, junior mortgagee, and intermediate judgment creditors, the decree declared the mortgagor entitled to a homestead, and directed the costs of the action to be paid out of the proceeds of sale. Held, that the costs were chargeable upon the whole property and not the homestead only; that the defendant mortgagee, regarded in equity as substantially a plaintiff, was entitled to be paid his costs; and that the mortgagor was not entitled to costs, but having been paid, only the second mortgagee could complain.</p> <p>3. Decree — Two-Eund Doctrine. — An ambiguous decree construed to direct the sale of a tract of land, payment of costs out of the proceeds of sale, the payment of the senior mortgage of less than §11,000 primarily out of so much of the land as was homestead, and the junior mortgage out of the remainder of the homestead, if any, and the intermediate judgments out of so much of the land as was in excess of the homestead, in priority to the junior mortgage. And this was in conformity to the equities of the several parties under the “two-fund” doctrine.-</p> <p>4. Rule on Suerief. — Can the questions here considered be properly raised under proceedings by rule against the sheriff who made the sale directed by the court and disbursed the proceeds?</p>

Before Norton, J., Fairfield, September, 1892. This was an action by Henry L. Parr against .Simeon O. Lindler, commenced in 1892, to recover possession of a tract of land purchased by defendant as the property of plaintiff’s intestate father at sheriff’s sale, under execution issued in two cases of foreclosure instituted against the administrator and heir at law of intestate.

Before Bouton, J., Fairfield, September, 1892. This was an action by the heirs at law and administrator de bonis non of Lawrence J. Cook, deceased, against Robert H. Jennings, executor of Nathan C. Robertson, deceased, commenced July 2, 1891.

Before Wallace, J., Richland, October, 1892. Indictment against James Morrow for abortion and for intent to procure abortion. Held: in substance, that an act (viz: the procuring and forwarding an abortifacient,') done by a person at the time without this State, and not criminal at the place where done, is a crime triable and punishable by the courts of this State, if such abortifacient be used in this State, by the person to whom sent, with fatal results. 6.

<p>1. Tax Sales — Time of Advertisement — Case Criticised.. — Under a statute requiring a tax sale of land to be advertised “weekly for two weeks in one newspaper,” the sale is sufficiently advertised if notice of the sale is inserted in the issues of a newspaper on the two Saturdays next preceding the sale on the first Monday of the month. Alexander v. Messervey, 35 S. 0., 409, followed.</p> <p>2. Forfeited Lands — Right of Redemption. — Land was forfeited to the State in February, 1882, for delinquent taxes of 1880, and conveyed to a stranger by the Sinking Fund Commission in May, 1884. Held, that under the law then of force applicable to this forfeiture, the owner had the right to redeem his land at any time prior to its actual sale by the Sinking Fund Commission, and if such offer was made, accompanied with full payment, before such conveyance, then the conveyance was void.</p> <p>3. Charge to Jury. — The trial judge failed in this case to leave with the jury the fact whether the offer of redemption by the defendant was made before the conveyance to the stranger. Mr. Chief Justice McIver dissenting.</p>

Before Izlar, J., Berkeley, October, 1890. Action by R. Rivers Lawton, as administrator of James M. Lawton, deceased, against the heirs and administrator of Josiah I. Perry, deceased, John Heins, J. Lamb Perry, trustee, and Bobert Black, sheriff, commenced September 7, 1889.

Before Fbaseb, J., Union, March, 1892. This was a claim presented by Ira E. Tinsley and R. S. Foster against the County of Union. The decree of the Circuit Court was as follows: On September 14, 1889, plaintiffs presented a claim against the county to the board for $99.95, which was marked the same day, “Rejected, the contract not complied with.” From this judgment there was no appeal.

Before Wallace, J., Spartanburg, July, 1892. . Action by Amauda C. Hunt and Marie Hunt against W. R. Nolen, for foreclosure of mortgage, begun January 21, 1891. Plaintiff’s deed to defendant gave a description of the land by metes and bounds, and contained a general warranty. It was proven that these metes and bounds included thirty acres of land in the possession of Dr. Cleveland, and that defendant never had been put in the possession thereof.

This was an original application to this court on the following petition: “The petition of John Wilson respectfully shows to this honorable… Held: in pursuance to the published notice for that purpose, on the said day, commencing and closing at the times specified, and held at the place designated, and a vote of 5,804 was polled in favor of issuing said bonds, no vote being polled against it, representing $580,400 worth of property, one vote representing, in each case, one…

Before Norton, J., Orangeburg, September, 1893. This was an appeal by defendant from an order of Judge Norton in the case of State against Jefferson M. Way, and a motion made to this court pending such appeal for an order staying the appeal, and giving leave to ajipellant to move on Circuit for a new trial, on the ground of after-discovered evidence.

Before Izlar, J., Berkeley, June, 1893. Indictment against Jerry Hallback and Robert Scott for the murder of Robert Haisell in February, 1893. At the time of the homicide, the deceased was trying to arrest Jerry Hall-back under the warrant set forth in the opinion.

Before Izlar, J., Berkeley, June, 1893. Indictment against Grant Bennett and Peter Burno for murder. On the call of the docket of the First Circuit, on January 23, 1894, the solicitor moved to take up the appeal for argument on the call of the First Circuit docket. The Chief Justice stated that the same was not on the docket, and 1 that the clerk had informed him that the return had not been filed; consequently the court had no jurisdiction of the case.

Before HUDSON, J., Barnwell, October, 1892. Indictment against T. W. Ezzard for breach of trust with fraudulent intent, in the conversion to Ms own use with fraudulent intention at Barnwell O. EL of $100 of the money of James W. Hill, William A. Hill, L. W. Hill, and Malvina Hill, heirs at law of Lewis W. Hill, deceased. The defendants introduced no evidence.

Before Watt ace, J., Laurens, July, 1893. This was an indictment against Charles Green, George Bowers, and Wade Cannon for the burning of a dwelling house in the night time of July 11,1893. All three were convicted, and Charles Green appealed.

<p>Before NORTON, J., Greenville, July, 1893.</p> <p>The opinion sufficiently states the case.</p>

<p>Before Fraser, J., Aiken, April, 1893.</p> <p>This was an application to the Probate Court of Aiken County to revoke letters of administration granted in October, 1892, to Mrs. Ludekins, on the estate of C. F. Nurnberger, deceased, who died in September, 1892, and to grant letters to petitioner. This petition was dismissed by the Probate Court and its decree affirmed in the Circuit Court, and petitioner appealed.</p>

Before Fkaser, J., Williamsburg, May, 1893. This was an action by Daniel H. Hamer against W. B. Brown, J. J. Graham, and B. B. Chandler, as county commissioners of Williamsburg County.

<p>1. Action Against County — Statutes—Negative Averments. — The statute which gave a right of action for damages caused by a defect in the repair of a highway, was subsequently amended by the enactment of provisoes which limited such right of action to cases inter alia, where the plaintiff had not brought about his injury by his own act, or negligently contributed thereto. Held, that a complaint under this statute, as amended, was defective in failing to state that the injury complained of was not brought about by his own act, and that he had not negligently contributed thereto.</p>

Before Aldrich, J., Greenville, November, 1892. Indictment of J. W. J. Morgan for the murder of his father-in-law by the discharge of a gun loaded with shot on June 18, 1892. The defence was that defendant’s gun was accidentally discharged, with the fatal result,.while he was throwing up his gun to ward off from himself an impending blow from a hoe in the hands of deceased.

Before Norton, J., Abbeville, June, 1893. This was an indictment against Singleton A. McIntosh for the murder of James N. Newby, at defendant’s home, on December 24, 1891. See 39 S. C., 97.

Before Wallace, J., Fairfield, February, 1893. This was an indictment against Jasper Atkinson, as principal, and John Atkinson, as accessory before the fact, for the murder of John H. Clamp. The defendants were then staying at the house of the deceased, who was shot and instantly killed at night about half a mile from his house as he was returning home.

<p>Before Izlar, J., Charleston, July, 1893.</p> <p>This was a prosecution against Sam Williams for carrying a concealed weapon.</p>

Before Izlak, J., Pickens, March, 1893. Indictment against Whitner Symmes for the murder of William F. Gary in defendant’s office at Central, in Pickens County, on July 12.1892. So much of the charge to the jury as related to the law of self-defence was as follows: The defence set up is self-defence. I charge you that a man has a right to defend himself against an attack, but he is not, therefore, justified in killing his assailant.

Before Wallace, J., Spartanburg, July, 1893. Action by S. E. Mason against the County of Spartanburg, commenced September 17,1892, to recover damages for injuries sustained in February, 1892.

<p>Before Kershaw, J., Charleston, March, 1892.</p> <p>The complaint in this case was as follows :</p> <p>The above named plaintiff, Edward N. Jenkins, complaining of the above named defendants, Elizabeth H. Bennett and Mary J. Ross, alleges:</p> <p>First. That the plaintiff is a contractor and builder, residing in Charleston County, South Carolina, and that the above named defendants were, at the times hereinafter mentioned, seized in fee simple and the owners of a certain piece of property known as the Old American Hotel, situate on the corner of King and George streets, in the city and County of Charleston, State aforesaid.</p> <p>Second. That on the first day of October, 1890, said defendants, by their agent, John H. Devereux, architect, published in the Charleston News and Courier the following advertisement :</p> <p>Office of John H. Devereux, Architect, Charleston, S. C., September 29, 1890.</p> <p>Proposals will be received until Monday, the 20th day of October, 1890, for the work of furnishing the materials and labor required to alter and improve the Old American Hotel property, at the corner of King and George streets, according to plans and specifications, to be seen at my office, and at the rooms of the Builders’ and Dealers’ Exchange, in this city. The bids will be open at 12 M. on Monday, 20th October, 1890, by the president of the Builders’ and Dealers’ Exchange, in the presence of the architect and such of the bidders as may desire to be present. The right is reserved to reject any and all bids.</p> <p>John H. Devereux, Architect.</p> <p>Third. That thereafter, in response to said advertisement, on the 20th day of October, A. D. 1890, this plaintiff, at the Builders’ and Dealers’ Exchange aforesaid, according to the terms of said advertisement, offered to John H. Devereux, agent of said defendants, and put in a bid to do said work as aforesaid, and furnish the labor and material therefor in accordance with said plans and specifications, for the sum of nineteen thousand and two hundred dollars.</p> <p>Fourth. That the defendants, through their agent, the said John H. Devereux, thereupon accepted the said bid of this plaintiff, and thereby contracted and agreed to pay this plaintiff nineteen thousand and two hundred dollars, in consideration of the performance by this plaintiff of the work of furnishing the materials and labor required to alter and improve the Old American Hotel property, at the corner of King and George streets aforesaid, according to said plans and specifications so contracted and agreed by this plaintiff with the defendants to be done by this plaintiff at said price.</p> <p>Fifth. That then and thereafter this plaintiff was always ready, able, and willing to perform the said contract on his part, and duly offered then forthwith and from time to time to perform and complete the same, and to do all things necessary and usual for securing the same to be done.</p> <p>Sixth. That said defendants, in breach of the said contract, thereafter continuously hindered and prevented this plaintiff from performing the same, to the damage of this plaintiff by the loss of the direct profits on said contract in the sum of five thousand dollars.</p> <p>Wherefore, plaintiff demands judgment against said defendants in the sum of five thousand dollars, together with the costs of this action.</p> <p>The appeal was heard on December 12, 1892, and a further argument having been ordered “on the question whether the right of action survives against the defendant, Mary J. Boss, as administratrix of the above named Elizabeth H. Bennett, who has died since the commencement of this action, as well as against the said Mary J. Boss in her own right,” the case was again argued on November 29, 1893.</p>

Before Kershaw, J., Charleston, March, 1892. This was an action commenced in 1880 by Toney Geddes and fourteen others against James Hutchinson and ten others, some of whom joined in the prayer of the complaint. Before the testimony had all been taken by the master, James Hutchinson and several others died, and the cause was revived by supplemental complaint.

<p>Before Fraser, J., Barnwell, April, 1893.</p> <p>Action by I. M. Givi ns, W. B. Lard, J. M. Lard, and B. B. Lard (the latter an infant), against E. D. Carroll, commenced October 1, 1892.</p>

Before Izlar, J., Barnwell, September, 1893. Action by the executors and a legatee under the will of William Ashley, the elder, against L. A. Ashley, committee, and the administrator de bonis non and inheritors of the estate of Joseph Ashley.

This was an original application by John Wilson to this court for injunction. Section 20 of the act of 1890 authorized the issue of bonds for internal improvements to an amount not exceeding $50,000, after such issue had been approved by the taxpayers, but made no provision for a sinking fund.

<p>Motion by Cely Bros, in this court against the Pelzer Manufacturing Company.</p>

Before Fraser, J., Aiken, April, 1893. This was an action by John Garvin against R. C. Garvin for the recovery of a tract of land, commenced February, 1885. The charge of the judge (exclusive of his remarks on a side issue having no bearing whatsoever on the questions raised on the appeal) was as follows: Gentlemen of the Jury: This action has been brought to recover possession of a tract of land, and damages for its retention.

<p>Before Fraser, J., Barnwell, March, 1893.</p> <p>Appeal by the County of Barnwell in the matter of the claim of J. W. Lancaster, sheriff, for costs.</p>

Before Fraser, J., Barnwell, March, 1893. Held: however, that the deed releasing the right of-way is void, in order to give any relief in the case, it should appear that something has been done by the defendant company not authorized by t'he deed releasing the right of way. I do not find any evidence of this.

Before Wallace, J., Aiken, September, 1891. This was an action by Sanders Williams against George Washington, Adeline Williams, Lewis Williams, J. C. Bodie, J. H. Beckman, and James Powell, commenced March 15,1889, for recovery of land, damages, injunction to stay waste, and partition.

Before Hudson, J., Sumter, April, 1893. This was an action commenced in Sumter County on December 21, 1892, by Frank Welch against the Wilmington and Weldon Bailroad Company and the Northeastern Bailroad Company, to recover damages for an injury received in a collision in Florence County on a railroad operated jointly by the defendant companies.

Before Hudson, J., Sumter, May,-1893. Controversy without, action between J.Wesley Bradford and Thomas N. Griffin for specific performance. The opinion of J. S. G. Bichardson, Esq., of September 9,1854, was as follows: John D. Ashmore proposes to sell to G.W. Bradford a plantation on Lynche’s Greek, containing 1,012 acres of land.

<p>1, Statutes — Delinquent Taxes. — The tax act of 1886 to raise supplies for the fiscal year of 1886-7, limited the time for the payment of taxes to December 15,1887, prohibited au extension of time beyond that date, directed a sale of delinquent lands by the county treasurer, and regulated the time and manner of sale. By act No. 433, of December 24, 1887, the time for paying these taxes was extended to January 11, 1888, and the contrary provision in the act of 1886 was repealed. By act No. 429, also passed December 24, 1887, changes were made in the manner of enforcing collection of delinquent taxes, the sheriff was made the selling officer, and all inconsistent provisions of law were repealed. Held, that land delinquent for non-payment of the taxes of 1886-7 was properly sold under act No. 429, and the sheriff’s deed to the purchaser at such sale conveyed a good prima facie title.</p> <p>2. Ibid. — Ibid.—The provision in the act of 1886, prohibiting an extension of time, did not prevent a subsequent legislature from granting such extension, but ivas probably intended as a restraint only upon the comptroller general.</p> <p>3. Ibid. — Ibid.—Obligation op Contracts. — The remedy for the enforcement of the payment of taxes, existing at the time of the levy, even if the obligation to pay taxes rests in contract, may be changed by subsequent legislation, as the remedy provided by law for the enforcement of a contract may be changed, if not thereby destroyed or so changed as to materially affect the value of the. obligation created by the contract.</p>

Before Gaky, J., Darlington, March, 1893. This case was tried before Ernest Gary, Esq., judge elect of the Fifth Circuit, holding the courts of the Fourth Circuit by special appointment in the stead of Judge Kershaw, prevented by illness. It was a prosecution against John Dukes, Hardy Morris, John Williams, and Harrison Gordon. The indictment contained four counts, but the grand jury found “no bill” on the first three, and “true bill” only on the last.

Before G-ary, J., Marion, April, 1893. Action by Luther MoLaurin against D. J. Kelly. Ernest Gary, Esq., sat as special judge in the place of Judge Kershaw. The respondent asked that the judgment below be sustained upon the first three grounds taken in support of the motion for non-suit.

Before Aldrich, J., Aiken, July, 1893. Action by Martha B. Dunbar against Jacob Foreman, commenced December 23, 1891.

Before Hudson, J., Florence, February, 1893. This was an action commenced on December 31,1892, for the partition of land devised to plaintiff and defendant by the will of their mother, who died October 11, 1890.

<p>Before Hudson, J., Sumter, March, 1893.</p> <p>Action by Singluff, Disney Ss Co. against Susan S. Tindal and John M. Tindal & Son.</p>

Before Hudson, J., Sumter, April, 1893. Acbiou by H. Murray Davis against Marion Sanders, sheriff,' and William T. Hurst, deputy sheriff, commenced February 2, 1893, to recover damages for false imprisonment. The sheriff relied upon an unsigned warrant as his justification. The affidavit was in all respects regular, but the warrant was as stated in the opinion. It was signed by the trial justice some days afterwards.

Before Hudson, J., Sumter, April, 1893. Action by James E. McCutchen against D. G.'Crenshaw & Co. and E. Scott Carson, as sheriff, commenced about December 1, 1892. In his charge to the jury, the trial judge thus construed the written contract set out in the opinion of the court: The contract between McCutchen and Adam Jefferson is a contract between employer and employee, between the farmer and the laborer on his farm.

<p>1. -Railroads — Pires—Pleadings.—Under the statute (Gen. Stat., g 1511,) that makes a railroad company responsible for fires resulting from the act of its “authorized agents,” a complaint is not defective in alleging that such a fire resulted from the act of defendant’s “agent” — omitting the word “authorized.”</p> <p>2. Ibid. — Ibid.—Prooe oe Title. — Where plaintiff in action against a railroad company to recover damages, resulting from a communicated fire, alleges in the complaint his title to the injured land, and this allegation is denied by the answer, plaintiff cannot establish his right to recover by the mere oral statement that he is the owner of the land.</p>

<p>1. Service by Publication — Filins Complaint. — The requirement of \ 156 of the Code of Procedure as to filing of the complaint when an order is obtained for publication of summons, stated and considered.</p> <p>2. Ibid. — Foreign Corporation. — Summons served in another State on a director of a foreign corporation, after order for service of publication, where such corporation had property in this State, but no resident agent or officer here, and no warrant of attachment issued, is not a legal service of the summons.</p>

Before Hudson, J., Sumter, March, 1893. Action by Dr. J. A. Mood against the Western Union Telegraph Company, commenced in January, 1892.

<p>1. Lease — Chattel Mortgage. — A paper purporting to be a lease, whereby a sewing machine valued at §¡>55 is put into the lessee’s possession, he paying §10 in cash for rent and agreeing to pay §3 every month for fifteen successive months, held to be a chattel mortgage.</p> <p>2. Claim and Delivery — Defence.—-In action by mortgagee to recover possession of the mortgaged chattel on non-payment of the purchase money as stipulated, the defendant cannot defeat recovery by plea or counterclaim, alleging breach of warranty in the article sold and full payment of what it was really worth.1</p>

<p>Before HUDSON, J., Sumter, April, 1893.</p> <p>Action by Alfred L. Davis against Levander Elmore.</p>

Before Gary, J., Chesterfield, February, 1893. This was an action by Anthony Burr against W. P. Brantley and others, commenced October 3,1888, and tried before Ernest Gary, Esq., judge-elect of the Fifth Circuit, holding the courts of the Fourth Circuit by special appointment.