Volume 41 — South Carolina Reports

Before Fraser, J., Aiken, April, 1893. Action by John H. Hankinson, as clerk of court, as administrator of the estate of Kaoly Ordey, deceased, against the Charlotte, Columbia and Augusta Railroad Company, commenced February 16, 1891, to recover damages for the death of intestate on December 15,1889.

Before Hudson, J., Marlboro, June, 1893. Action by Francis B. Gibson against Joseph C. Everett, W. L. Everett, and John F. Everett, commenced June 3, 1893. The order of the Circuit Judge was as follows: The mercantile firm of Everett Bros., Gibson & Co., had its place of business in Norfolk, in the State of Virginia, and recently failed.

Before Gary, J., Richland, July, 1893. This was a proceeding in prohibition, instituted in the name of the State of South Carolina on the relation of W. H. Gibbes against J. M. Kirkland, J. R. Price, and L. B. Folk, the County Board of Control for Richland County, commenced July 7,1893.

Before Witherspoon, J., Fairfield, June, 1893. This was an action by John B. Craig, as assignee of Calvin Brice, against Samuel G. Miller, administrator.

Before Witherspoon. J., York, July, 1893. This cause came to this court upon exceptions to the Circuit decree. Messrs. Hart & Hart, in behalf of Younger and certain non-releasing creditors, alleged error as follows: 1. Error in stating that the actions were consolidated and heard together by consent; and in not stating that they were consolidated on motion of Frank H. Brown, no objection being made by any of the other parties. 2.

<p>1. Res Judicata — Counsel Fee — Action at Law. — Where an attorney prosecutes a suit in equity in behalf of minors, and recovers judgment for his clients, and a proper fee to the attorney is ascertained and adjudicated in that proceeding, and the master is directed to pay the same out of the sum paid to him on this judgment, such attorney cannot afterwards, without allegation of inability to obtain satisfaction of the equity decree, bring action at law on a quantum meruit, to recover a fee from his former clients for the services so rendered.</p> <p>2. Appeal Record — Facts.-—-Facts not appearing in the “Case,” but only in the argument of counsel, cannot be considered on appeal.</p> <p>3. Case Criticised. — This case distinguished from Akers v. Rowan, 36 S. C., 81.</p>

<p>Before Witherspoon, J., Laurens, September, 1893.</p> <p>Action by Cone Export and Commission Company against J. T. Poole, commenced September 26, 1892.</p>

Before Gary, J., Marion, April, 1893. Action by Charles A. Woods against Marvin Q. Bryan and Elizabeth S. Bryan, commenced March 20, 1888, and heard before Ernest Gary, Esq., judge-elect of the Fifth Circuit, holding the courts of the Fourth Circuit by special appointment.

Before Gary, J., Fairfield, September, 1893. Action by S. R Johnston, as judge of probate and public guardian, against J. B. McDonald on the following note: “$260. On the 1st day of December after date, I promise bo pay to J. R Boyles the sum of two hundred and sixty dollars, with interest at the rate of seven per centum, for value received. This 15 day of April, 1886,” signed by W. L. McDonald, endorsed by J. B. McDonald, and assigned by the payee to this plaintiff.

<p>Before Norton, J., Laurens, Fébruary, 1893.</p> <p>Action by Henry M. Hunter against the Columbia, Newberry and Laurens Railroad Company, commenced January 6, 1892. The complaint was as follows:</p> <p>The complaint of the above named plaintiff respectfully shows to the court: (1) That the defendant is, and was at the times hereinafter mentioned, a corporation duly chartered under the laws of the State, and, as such, had constructed and was operating a line of railroad from Columbia, South Carolina, to Clinton, in the County of Laurens, and same State. (2) Tnat the said defendant, before the construction of the said railroad, obtained from the plaintiff a conveyance for the right of way over his land, in the County of Laurens aud State aforesaid, upon condition that it would move from the said right of way a gin house thereon situated, belonging to the plaintiff, to a point to be designated by the plaintiff, upon his premises; the said gin house not being included in the conveyance of the right of way as aforesaid. (3) That the said defendant constructed its road, the track being laid within four or five feet of plaintiff’s gin house, on the defendant’s right of way, but never moved the said gin house, as it agreed to do, although repeatedly requested by the plaintiff so to do. (4) That on the 20th day of November, 1891, the said gin house was set fire to by one of the defendant’s locomotive engines, while passing the said gin house on the defendant’s track, and was entirely consumed by the said fire. (5) That the said gin house was used by plaintiff as a general store house, and at the time it was burned contained twenty bales of cotton in the seed, one thousand and forty bushels of cotton seed, two tons of guano, one-half ton of acid phosphate, two cotton planters, three guano distributers, besides steelyards, cotton baskets, etc., all of which were burned. (6) That by the burning of the said gin house and contents, the plaintiff has been damaged in the sum of fifteen hundred dollars, the said damage having been caused by the negligence and carelessness of the defendant in not moving the said gin house, as it agreed to do, and in setting fire thereto with its locomotive engine as aforesaid. Wherefore, the plaintiff demands judgment against the said defendant for the said sum, and costs of the action.</p>

Before Witherspoon, J., York, July, 1893. This was an application in the name of the State on the relation of E. Jane Erwiu for a writ of certiorari to be directed to O. L. Sanders, trial justice, who granted a new trial to plaintiff in the case of W. N. Ashe v. E. Jane Erwin.

<p>Before Witherspoon, J., Fairfield, June, 1893.</p> <p>This was a proceeding by D. Lauderdale against John D. Mahon.</p>

<p>Before Hudson, J., Marion, June, 1893.</p> <p>Action by Henrietta C. McKibben against A. J. Salinas & Son. For former appeal, see 36 S. C., 279.</p>

<p>1. Homestead — Estate.—It is tbe settled law of this State, that the exemption of a homestead in no wise affects the title to the land so exempted.</p> <p>2. Ibid. — Obligation oe Contracts. — The legislature cannot so change the remedies for the enforcement of contracts, in force when a contract was made, as substantially to impair its value. Therefore, when a debt was contracted at a time when a homestead was exempted by the Constitution to a debtor only out of land on which he resided, and appurtenant thereto, and afterwards the Constitution was so amended as to allow an exemption out of any lands, lots of land adjoining the family residence, but not a part of it, nor appurtenant thereto, cannot be claimed by the debtor as a homestead against this debt.</p> <p>3. Ibid.. — A homestead exemption ceases whenever the family, by death or removal, ceases to exist as a family of this State.</p> <p>4. Ibid. — Estoppel.—A creditor having acquiesced in a homestead set apart under his execution to his debtor, is estopped from afterwards assailing this exemption as unconstitutional, but he is not estopped from levying and selling this homestead when, by death and removal of the debtor and his family, the conceded right to homestead has ceased to exist.</p> <p>5. Ibid.. — Petition—Innocent Purchaser. — A purchaser for value of this homestead at a sale for partition, in a cause to which only the surviving heirs of the deceased debtor were parties, within a year of the debtor’s death, was not an innocent purchaser without notice; and he took by his purchase only the estate of these heirs, which was subject to the lien of the judgment so soon as the right to homestead ceased.</p>

Before Norton, J., Spartanburg, January, 1893. Action by R. R. Brown against J. M. Foster and J. W. Foster, as partners, and after the death of JAY. Foster, revived against J. M. Foster as administrator. The action was commenced June 22, 1891.

Before Wallace, J., Spartanburg, August, 1893. Aetion by T. J. Trimmier against Martha J. Thomson, executrix of J. S. R. Thomson, deceased, commenced December 29, 1891. The case came to this court on the following exceptions: I. In allowing the plaintiff to testify that he had conversations with defendant’s testator, and when the said conversations took place. II.

Before Izlar, J., Greenville, April, 1893. Action by Sam. Hill against George Williams, commenced before a trial justice on November 12, 1892, to recover stipulated rent for the year 1892.

Before Witherspoon, and Gary, JJ., Lexington, February and June, 1893. Action by David Devore against A. W. Geiger. Verdict was for defendant on a counter-claim, and the plaintiff appealed.

Before Wallace, J., Greenville, October, 1893. These were two actions commenced on the same day, February 8,1893, by B. H. Jacobs — the first against Mattie Gilreath, and the second against Mattie Gilreath, W. H. Cauble, and J. E. Cauble. The pleadings and proceedings are stated in the opinion of this court in the first case.

<p>Before Norton, J., Greenville, August, 1893.</p> <p>This was an action by Horace H. Fritz, as assignee, against W. W. Burriss.</p>

<p>Before Aldrich, J., Charleston, March, 1893.</p> <p>Action by E. Willis against Samuel Hammond, commenced May 2, 1891.</p>

Before Witherspoon, J., Kershaw, February, 1893. Action by Louisa Hall against Harrison H. Hall, commenced in July, 1892. The Circuit decree was as follows: The case was heard upon the pleadings and the evidence taken at the hearing. The plaintiff has failed to sustain the allegation of fraud, and I find as matter of fact that the defendant did not procure the execution of the deed by the plaintiff by means of misrepresentations or deceit.

<p>Before Witherspoon, J., Kershaw, February, 1893.</p> <p>Action by Daniel McHall against H. H. Hall.</p>

Before Wallace, J., Lancaster, February, 1893. Action by Matilda A. Duren against Permela H. Kee, commenced January 23,1889, for damages to land, and to determine the title thereto. From an order of non-suit, plaintiff appealed.

Before Izlar, J., Abbeville, January, 1893. Action by Simmons Hardware Company against Bank of Greenwood, commenced February 25, 1892, on an ordinary check drawn by Jervey & Co. on the defendant in favor of the plaintiff for $163.97. The judge charged the jury as follows: Mr. Foreman and Gentlemen of the Jury: This is a very interesting case. It is not free from difficulty, especially on the part of the court.

<p>Before Wallace, J., Fairfield, February, 1893.</p> <p>Action by Jennie Y. Bose against Wiunsboro National Bank, commenced about August 1, 1892.</p>

<p>Before Witherspoon, J., Laurens, September, 1893.</p> <p>Action by Sallie A. Osborne against Eliza D. Osborne, in her own right and as administratrix.</p>

<p>Before Izlar, J., Oconee, March, 1893.</p> <p>Action by W. W. Erskine against James T. Wilson.</p>

<p>Before Izlar, J., Greenville, March, 1893.</p> <p>Application for rule by Mamie Boyce in the case of Mamie Dacus against James Smith.</p>

<p>Before Izlar, J., Greenville, April, 1893, and Wallace, J., Abbeville, September, 1893.</p> <p>These were two separate cases, but as they both involved the same point, the appeal in both cases was disposed of in one opinion.</p> <p>In the case of Stepp v. National Life and Maturity Association of Washington, D. 0., 37 S. C., 417, defendant appealed from ajudgment against him for $2,156.26 on numerous grounds, all of which were overruled, except one involving an error of $64.51, which was sustained. In the case of Loeb v. Mann, 39 S. C., 465, defendant appealed on three grounds from a judgment entered on a verdict against him for the personal property in dispute, worth $223.40, and for $50 damages. Defendant appealed on three grounds, only one of which, that relating to the $50 damages, was sustained.</p>

Before Izlar, J., Abbeville, January, 1893. Action by James H. and Thomas O. Shaw, children of Richard P. Shaw, deceased, against Margaret and W. A. Erwin, to recover two tracts of laud claimed by plaintiffs under the will of their grand-father, James H. Shaw, who died in February, 1866.

<p>Before Norton, J., Greenville, July, 1893.</p> <p>Action by Tom Sloan against J. P. Latimer on a sealed note which the defendant had signed as surety for J. A. Mooney, and upon which the plaintiff, the payee, had written an extension of credit at the time that he transferred it for value to Kate Sloan. The note not having been paid, plaintiff repurchased it.</p>

Before Hudson, J., Darlington, July, 1893, and Bichland, October, 1893. The case first stated was an action for injunction. The complaint was as follows: The complaint of the above named plaintiffs respectfully shows to this court: First.

Before Izlar, J., Aiken, October, 1893. Action by Bertha Lipfield and David, her husband, against the Charlotte, Columbia and Augusta Railroad Company, commenced August 3, 1891, to recover damages for the burning of several houses, and other property of plaintiff on May 8, 1891, by ñre originating from a spark emitted by defendant’s locomotive engine.

<p>Before Witherspoon, J., Chester, July, 1893.</p> <p>Action by John K. Coleman against George WT. Curtis, assignee. See 36 S. C., 607.</p>

Before Norton, J., Abbeville, June, 1893. Action by Andrew L. Arnold and Rebecca J. Simpson against John L. Arnold, W. J. Arnold, and others. The master, to whom all the issues were referred, reported that there could be no partition until the death of Wm.

<p>1. Corporation — Employees—By-Laws—Evidence.—The principle, that a stranger dealing with a corporation through its officer is not bound to inquire into its by-laws, to ascertain whether such officer has authority to act, is applicable to one who takes employment by the year on the appointment of a general manager, to whom the “absolute charge" was given in writing. Therefore, in action by this employee to recover a balance due him by the corporation for the last seven months succeeding his dismissal in his second year, the trial judge properly refused to receive in evidence the by-laws of the corporation, offered by defendant to show that the general manager had no authority to employ any one by the year; particularly so where the general manager had been given “absolute charge” by letter from the president, the plaintiff had held his position unquestioned for seventeen months, was then asked to resign, and finally dismissed for cause, as alleged.</p> <p>Ibid. — Ibid.—Ibid.—Ibid.—Do.ubted whether the uncommunicated bylaws of a corporation would be evidence against the subordinate employees in any ease.</p>

<p>1. (General Exceptions, alleging no specific errors, not considered.</p> <p>2. Statement oe Findings — Appeal.—If the Circuit Judge fails to state his findings of fact and conclusions of law separately, the judgment will not be reversed for this reason, unless it appears that the appellants have suffered prejudice thereby as to the merits.</p> <p>3. Law Case — Findings of Fact — Appeal.—In action for the recovery of the possession of real property, and for damages for its detention, heard by the Circuit Judge without a jury by consent, his findings of fact are final.</p> <p>4. Purchase for Value — Legal Title — Mortgage.—The plea of purchaser for valuable consideration without notice is only an equitable defence,- and cannot prevail against the legal title. This rule applied to a mortgagee, who claimed to be without notice of a fraud in his mortgagor’s chain of title, when sued by the purchaser at a sheriff’s sale, made subsequent to the mortgage, under a prior judgment against one under whom the mortgagor derived her title.</p> <p>5. Betterments — Subsequent Owner. — Defendant, when sued for the recovery of land, cannot, in his answer, claim compensation for the increased value of the land by reason of improvements to the land, made in good faith by a former owner from whom defendant derived his title.</p> <p>6. Appeal — Issue Not Decided. — An issue not decided on Circuit cannot be considered on appeal; but the issue having been properly raised, the failure to pass upon it was error, and the case sent back for a decision on this point.</p>

Before Izlar, J., Abbeville, January, 1893. In this case there were two former appeals, one reported as Meinhard v. Youngblood, in 37 S. C., 223, and the other as Meinhard Bros. v. Youngblood, in 37 S. C., 231. This appeal will be better understood by reading the opinion of the court on those two appeals.

<p>Before Witheespoon, J., Edgefield, March, 1893.</p> <p>This was an action by Vannerson & Fleming against Mattie L. Cheatham and W. J. McKerall, partners in trade under the firm name of Cheatham & McKerall, commenced in October, 1892.</p>

<p>Before Witherspoon, J., Richland, April, 1893.</p> <p>Action by theYaeger Flour Mill Company against Benjamin A. Rawls, on defendant’s guaranty of a contract for the purchase of flour.</p>

Before Wallace, J., Lancaster, March, 1893. Action by Robert E. Bailey and Nancy Bailey, by guardian, against James D. Bailey, for the recovery of an interest in land and damages. Verdict was for plaintiff for two-thirds of the land and $360 damages. From the judgment entered thereon, the defendant appealed.

<p>1. Deed — Consideration—Parol Evidence. — Where the complaint alleges that the deed under which defendant holds was executed and received with , fraudulent intent, parol testimony is admissible to show that in addition to the expressed consideration of love and aifection, the deed was also based upon the grantee’s agreement to discharge certain debts of the grantor,</p> <p>2. Appeal — New Questions. — Where the complaint is framed, the action revived, and the cause tried on the allegation of the original defendant’s title deed to the land in question, this court cannot consider the objection first raised on appeal, that others had an interest in the land which prevented the original defendant from executing mortgages, assailed in the complaint on other grounds.</p> <p>3. Conveyance Partly Voluntary — Trust—Homestead.—Where a debtor conveyed to his wife land worth §3,000 on the consideration of love and affection, and her agreement to secure two of his creditors, whose claims aggregated §1,400, by mortgage of this land, and the wife executed the two mortgages, including therein some of her own personal indebtedness to these two mortgagees, reserving a homestead, this court held that the wife took the land charged with the duty of paying the two debts of her husband as agreed, and of applying the remainder to all of his creditors pro rata; that neither the husband nor the wife, under her deed from him, or in her own behalf, could claim any homestead rights; that the deed was fraudulent, as to the husband’s creditors, to the extent of the value of the land in excess of the §1,400 indebtedness provided for ; and that the wife could not secure her own obligations by a mortgage of this land.</p>

<p>Before Fraser, J., Aiken, April, 1893.</p> <p>Action commenced June 2, 1892, by vendor against vendee for specific performance.</p>

<p>Before Norton, J., Abbeville, June, 1893.</p> <p>Action by Johu N. Knox, as administrator of Thornton Moore, deceased, against Viney Moore, Bindy Moore, and others. On July 12, the Circuit Judge filed his decree. On July 20, he filed the following supplemental decree: “This was an appeal from the decree of the Probate Court of Abbeville County, heard by me at June Term, 1893. In my decree therein, dated July 7, 1893, and filed with the clerk of court, there appears a clerical error that may lead to a misconstruction of what I intended to determine. It should be corrected. I adjudged in said decree that the 7th ground of appeal be sustained, and that the defendant, Frank Moore, be excluded from any share in the estate of Thornton Moore, deceased. This ground of appeal reviews two findings of the Probate Court: (1) That Viney Moore was the legal wife of Thornton Moore, and (2) that Frank Moore, one of his illegitimate sons, was entitled to iuherit from Thornton Moore. I was under the impression that this ground of appeal reviewed only the second finding stated above, and I intended by my decree to modify the decree of the Probate Court only so far as it affected the interests of Frank Moore. I was and am perfectly satisfied with the first finding referred to above, and with the entire decree, except so far as it holds that Frank Moore was entitled to inherit from Thornton; this part of the decree, and only this, I intended to reverse. It is, therefore, ordered, that W. B. Bullock, clerk of court for Abbeville County, be and he is hereby authorized and directed, immediately upon the receipt and filing of this order, to amend my said decree by inserting between the word ‘sustained’ on the seventh line thereof and the word ‘and’ ou the same line the following clause: ‘In so far only as it relates to Frank Moore and his interest in the estate of Thornton Moore.’ So that said decree shall read, after stating the title of the cause, &c., as follows: On hearing the pleadings, evidence, judgment of the probate judge, exceptions on appeal therefrom, and argument of counsel, it is ordered and adjudged, that the 7th ground of appeal be sustained in so far only as it relates to Frank Moore and his interest in the estate of Thornton Moore, and that the defendant, Frank Moore, be excluded from any share in the estate of Thornton Moore, deceased. That in all other respects the judgment of the Probate Court be affirmed, and that the action be remanded to that court for such further proceedings therein as may be proper.” The clerk of the court made the interlineation directed by the above order.</p>

Before Wallace, J., Sumter, March, 1892. These were three actions by Mary C. Wilson against J. F. Woodward, to recover dower out of three tracts, the tenants severally in possession being made defendants respectively. The actions were commenced February 3, 1890.

Before Izlar, J., Charleston, June, 1893. Action by James Hamilton against Fanny Y. Levy and others, commenced in 1880. To this action all persons claiming an interest under the will of M. C. Levy were parties. .

<p>Before Izlar, J., Charleston, June, 1893.</p> <p>Action by James Hamilton and others against Walter Carrington and others. To this action all persons claiming an interest in the intestate estate of S. Yates Levy, deceased, and also the sureties to the bond of Mrs. Cohen, now Carrington, under order of court in Hamilton v. Levy, ante, 374, were parties. The case came to this court on the following exceptions: 1. Because, in this case, his honor refused to allow the amendment to the complaint proposed by the plaintiffs, when appellant had a right to amend, of course, under the Code, twenty days not having elapsed from the serving of the answers. 2. Because, on the merits, the complaint should have been amended. 3. Because this action having been regularly commenced, and the defendants having filed their answers, the record filed in the clerk’s office, and the case on the calendar, the court acquired jurisdiction-of the subject-matter of the action. 4. That having acquired jurisdiction of the cause, it could not hear a motion in the case of James Hamilton v. F.Y. Levy and others, to distribute the money in the master’s hands, and thereby oust the jurisdiction of this action of the subject-matter of the suit.</p>

Before Witherspoon, J., Richland, April, 1893. Action by Ada Walling, as administratrix, against the Congaree Construction Company for the negligent killing of her intestate on the line of the Columbia, Newberry and Laurens Railroad, in Newberry County. The action was begun April 14, 1892.

<p>Before Witherspoon, J., Richland, April, 1893.</p> <p>Action by Hampton Mickle, as administrator, against the Congaree Construction Company, commenced April 14, 1892.</p>

Before Fraser, J., Charleston, December, 1892. Action by D. H. Chamberlain^ as receiver of the New York and Charleston Warehouse and Steam Navigation Company, and the company itself, against the Northeastern Railroad Company.

<p>Before Izlar, J., Greenville, March, 1893.</p> <p>Action by the Mobile Insurance Company, ¿Etna Insurance ' Company, and Carroll & Stacy against the Columbia and Green-ville Railroad Company.</p>

Before Witherspoon, J., Edgefield, March, 1893. The complaint alleged the incorporation of defendant and that it was a common carrier between Charlotte, N. 0., and Augusta, Ga., through Edgefield County, and had leased its road to the Richmond and Danville Railroad Comjiany. That on the morning of November 24, 1891, he paid for a round trip ticket from Trenton, on said road, to Augusta, and was safely carried to Augusta. The complaint continued: 7.

Before Wallace, J., Spartanburg, July, 1893. Action by W. A. and L. S. Anderson, in behalf of themselves and other creditors, against S. M. Pilgram, Lula Pilgram, E. S. Darwin, and Sallie A. Darwin.

Before Norton, J., Laurens,. February, 1893. Action by Dora Madden against the Port Royal and Western Carolina Railway Company, commenced January 21,1891. For a former appeal in the same case, see 35 S. 0., 382.

Before Hudson, J., Charleston, August, 1892. Held: with the other assets, for the purpose of the distribution and division hereinbefore indicated and recommended; that Miss Julia Jugnot be decreed to pay into the master’s hands the amount of $7,636.36, according to the statement hereinbefore made, and that the costs of this case be paid from the said residuary assets, and the amounts…

The case first above stated was an application to this court, in its original jurisdiction, to restrain the city council of Florence from its threatened action of granting liquor licenses, the plaintiffs being citizens and taxpayers. In the second case, there was an application for discharge from arrest, under writ of habeas corpus, on the charge of selling liquor without license.

<p>1. New Trial on New Evidence — Supreme Court — Circuit Court. — As a motion for new trial on the ground of after-discovered evidence necessarily involves the determination of questions of fact, such motion must always be made in the first instance to the Circuit Judge; but this court may suspend a pending appeal and give leave to the Circuit Court to entertain the motion, where a prima facie showing is made in this court. Whether the showing is sufficient, must be determined by the Circuit Court, uninfluenced by the ruling of this court as to its prima facies.</p> <p>2. Ibid. — Ibid.—Ibid.—Adjudging the showing in this case to b z prima facie, the appeal was suspended, with leave to appellant to move on Circuit for a new trial on the ground of after-discovered evidence.</p>

<p>Before Wallace, J., Laurens, June, 1893.</p> <p>In this case Hon. Eugene B. Gary, Associate Justice-elect of the Supreme Court, sat by appointment in the place of Mr. Justice Pope, who had been of counsel in the cause. It was an action by Joseph P. and John H. Latimer, as executors of Hew-let Sullivan, deceased, against John H. Wharton, as clerk of court, and George S. McCravy, as sheriff of Laurens County, commenced January 2, 1893, to vacate a judgment and enjoin a sheriff’s sale thereunder.</p>

Before Wallace, J., Laurens, June, 1893. In this case, Hon. Eugene B. Gary, Associate Justice-elect of this court, sat in the place of Mr. Justice Pope, who had been of counsel in the cause. It was an action by Joseph P. Latimer against B. F. Ballew, as sheriff, and G. W. Shell, as clerk of court, commenced December 5, 1892.

Before Norton, J., Barnwell, March, 1894. Motion by defendant for new trial on the ground of after-discovered evidence, made on Circuit after the decision in 40 S. C., 312, and, on appeal from the order refusing such motion, renewed in this court.

<p>Before Townsend, J., Berkeley, February, 1894.</p> <p>Indictment against Henry Talbert for the murder of Harry Wilson on November 28, 1893.</p>

<p>1. Trial — -Discharge of Juror. — After a jury lias been empanelled and sworn, the trial judge has no power to withdraw a juror and direct another to be substituted in his place.</p> <p>2. Ibid. — Ibid.—But upon the ascertainment at that stage of the trial, for the first time, that a juror had formed and expressed an opinion as to the prisoner's guilt, the trial judge erred in ruling that he could do nothing but proceed with the tidal, as he might have discharged the jury and ordered a new trial.</p>

<p>Before Hudson, J., Chesterfield, May, 1893.</p> <p>This was a petition by the children of Isabel Northcutt to enforce payment of a decree in their mother’s favor in the ease of Newman v. Clyburn. At the time of the filing of Chancellor Inglis’ decree, the youngest child of Isabel Northcutt was only ten years of age, and several others were infants. The Circuit Judge dismissed the petition.</p>

<p>Before Norton, J., Beaufort, February, 1894.</p> <p>Action by J. D. Pope and others, the heirs of Joseph J. Pope, to recover a tract of land, commenced in November, 1891. F. E. Wilder, the defendant, claimed under a deed made to him by the sheriff of Beaufort County as the purchaser at a tax sale of the land in 1891, the land then standing on the tax duplicate in the name of defendant. The judge charged the jury as complained of in defendant’s exception. Verdict and judgment for plaintiffs.</p>

<p>Before Izlar, J., Bare well, November, 1893.</p>

<p>Action by H. C. Hay against the Carolina Midland Railway Company, commenced September 26,1893.</p> <p>This was a motion to dismiss an appeal, which is fully explained by the order of refusal of April 25, 1894,</p>

<p>By reference to the case of State v. Murrell, 33 S. C., 96, it will be seen that this court declined to pass upon the appeal of Carpenter, one of the defendants, because he had escaped. Carpenter having been recaptured, the solicitor served notice upon his attorney of record and upon Carpenter himself in the Edgefield jail, of a motion to redocket Carpenter’s appeal and dismiss it. This attorney of record disclaimed any authority to represent Carpenter. On the hearing of this motion, the following order was passed May 7tb, 1894,</p>

<p>This was a motion to reinstate an appeal dismissed by the clerk. It was refused May 29, 1894, by the following order</p>

These were three separate applications to the Supreme Court for injunctions to restrain the supervisor of registration for Richland County from turning over his books and lists to the managers of election.