Volume 42 — South Carolina Reports

Before Witherspoon, J., Spartanburg, October, 1893. Proceeding by R. S. Hartsfield and others against A. D. Ohamblin, administrator, and others.

<p>1. Appeal Record.. — Attention called to the necessity of furnishing this court with a copy of the decree from which an appeal is taken, or, at least, a summary of it.</p> <p>2. Findings op Pact by the referee, approved by the Circuit Judge, sustained, such findings not being without testimony to support them, nor opposed to the manifest weight of the testimony.</p> <p>3. Interest.. — Ten per cent, interest cannot be objected to when called for by legal contract.</p>

Before Hudson, J., Edgefield, November, 1893. This was an action by Mrs. E. B. Sample against the Londod and Lancashire Fire Insurance Company, of Liverpool, England. The case carne to this court on the following exceptions by plaintiff: I. Because his honor erred in directing and instructing the jury to find a verdict for the defendant. II.

<p>Before Fraser, J., Hampton, March, 1893.</p> <p>Action by Biley Cope against Hampton County, commenced January 8, 1893.</p>

<p>1. Findings of Fact — Mortgage to Partnership — Survivors.—Error cannot be imputed to the Circuit Judge in holding that the plaintiffs were the survivors of the partnership mortgagees, and as such the owners and holders of the mortgage debt, where no such question was raised in the court below, and there was testimony to the facts so found.</p> <p>2. Substituted Deed — Proof.—Where a deed and mortgage back are executed at the same time, and afterwards a second deed of later date is executed in substitution for the first, the first deed, in action to foreclose the mortgage, is sufficiently proved by the testimony of grantor and grantee.</p> <p>B. Deed and Mortgage — Second Deed — Warranty.—The second deed being understood and intended as a substitution for the first, and the vendee’s mortgage for the purchase money having been contemporaneous with the first deed, such mortgage was not a prior encumbrance against which the vendee was protected by the vendor’s covenant of general warranty in the second deed.</p> <p>4. Ibid. — Ibid.—Recording—Notice.—And a mortgagee, subsequent to the second deed, having notice at the time of taking his mortgage that the purchase money of the land was not fully paid, and further notice at the time of his purchase of the land under decree of foreclosure of the purchase money mortgage given by his mortgagor, cannot claim to be a purchaser for value without notice of the duly recorded mortgage to the original vendor, even though the first deed, of even date with that mortgage, had never been recorded.</p> <p>5. General Exceptions not considered.</p>

<p>1. Defences — Error in Form. — Where a sheriff, under authority of the court in proceedings in which a note was attached as the property of the payee, sued the maker of such note, the defendant may plead counter-indebtedness of the payee as a defence to the action; and it is error to sustain a demurrer to such defence because improperly denominated a counter-claim.</p> <p>2. Suit on Attached Choses.— A sheriff may be directed to institute action on a note attached by him even while motion is pending to vacate the attachment. The maker of the note cannot complain.</p> <p>3. Directing Verdict. — Where only issues of law are involved, the trial judge may direct a verdict.</p>

<p>1. Chattel Mortgage — Agreement to Ship — Case Criticised. — To secure advances, defendant gave to plaintiffs a bill of sale of certain chattels, and further ag'reed to ship to plaintiffs, to be sold on commission, “all naval stores and cotton produced,” which would be delivered on demand of plaintiffs, the above property to stand for any balance duo. Held, that there was no mortgage of the naval stores. Whilden & Co. v. Pearce, 2! S. G., 44, followed.</p> <p>2. Claim and Delivery — Other Claimant. — Where plaintiffs in claim and delivery take possession of the property, and the defendant by his answer disclaims title, alleging ownership in a third party under an assignment for creditors, judgment should not be rendered in favor of the defendant for the return of the property, or the payment of its value, without the presence of such third party, whom the court should direct to intervene.</p> <p>3. Offsetting Judgments. — Oral Judgment. — Error will not be declared in the refusal of the Circuit Judge to offset a judgment for defendant in claim and delivery against a judgment for plaintiffs on account, where (l) defendant’s judgment was erroneous by reason of the absence of a proper party, (2) the judge's ruling was merely oral, and (3) one judgment was in rem and the other ex contractu.</p>

<p>1. Guardianship Funds- — Administrator—Accounting.—Where the sureties of a guardian borrowed from him money of the ward, who was also his daughter, and after the death of the guardian repaid it to his administrator, a Court of Equity will not consider the liability of these sureties for the money so paid, until, by proper accounting by this administrator, it is ascertained how much, if anything, is due on the guardianship account by the estate of the guardian.</p>

Before Gary, J., Chesterfield, February, 1893. This ease was tried before Honorable Ernest Gary, judge-elect of the Fifth Circuit, holding the courts of the Fourth Circuit by special appointment, in the place of Judge Kershaw, who was too ill to attend. It was an action in claim and delivery for a cow, commenced November 7, 1892, in the court of a trial justice.

<p>Before Izlar, J-, Barnwell, November, 1893.</p> <p>These were two actions for foreclosure instituted in 1893 by W. G-. Simms, as clerk of court, against H. W. Kearse and others, and against C. A. Williams and others, purchasers respectively from Owen W. Manuel of the two tracts of land mortgaged by him to the commissioner in equity in 1859, and described in the opinion of this court. The Circuit decree in both cases adjudged that the bonds were not actually paid, and that the presumption of payment was rebutted by the testimony of the debtor, the proof of his inability to pay, and his near relationship to the parties to whom the money was ultimately payable; also, that the presumption of payment does not run against the mortgagee in favor of the mortgagor, as the latter holds a relation of trust towards the former; and lastly, because the statutory lien under the act of 1791 for the purchase money of land of an intestate sold for partition is not limited in its duration by the statute. Accordingly, foreclosure was decreed and sale ordered. The defendants appealed, questioning by their exceptions the rulings of the Circuit Judge.</p>

<p>Before Hudson, J.. Kershaw, September, 1893.</p> <p>Action by Joseph S. Gardner against Margaret J. Holland and Isaac F. Holland, commenced May 8, 1891. The appeal came to this court on the following exceptions:</p> <p>I. Because his honor erred in holding that the deed of Mary Holland to B. D. Turner and Sarah Turner was not a voluntary conveyance, and, under the circumstances, a fraud upon the creditors of Mary Holland. II. Because his honor erred in holding that the mere record of the deed of Mary Holland to B. D. Turner and Sarah Turner was such notice to the plaintiff as to have required him to institute proceedings to set it aside. III. Because his honor erred in not holding that, in this case, the right of action did not accrue to the plaintiff, J. S. Gardner, until the judgment had been paid by him, and then only after the return of nulla bona, or other satisfactory evidence that his principal, Mary Holland, the grantor, did not have in her own name property out of which the same could be recovered. IV. Because his honor erred in holding that it was the duty of the plaintiff to have required his principal, Mary Holland, to pay the debt, or to have paid it himself, and then instituted proceedings to set aside the said deed, if he would save himself from the bar of the statute of limitations. V. Because his honor erred in not holding that B. D. Turner and Sarah Turner knew, at the time of the execution of the deed to them by Mary Holland, of her indebtedness to the estate of James Holland, and that such knowledge made them privy to the fraud perpetrated upon her creditors by the conveyance of all her property to them. VI. Because his honor erred in not holding that B. D. Turner and Sarah Turner held the property in trust for Mary Holland, that they never regarded it as their own, and conveyed it to Margaret Holland without consideration, upon being requested so to do by Mary Holland. VII. Because his honor erred in not holding that Margaret J. Holland paid nothing for the land, although the deed to her from B. D. Turner and Sarah Turner recites a consideration of $250, and such conveyance was purely voluntary as to her. VIII. Because his honor erred in not holding that the transaction between B. D. Turner and Sarah Turner and Margaret J. Holland, the same having been conducted by Isaac F. Holland, her husband, acting as her agent, the latter was bound by his acts in taking the voluntary deed from Turner and wife. IX. Because his honor erred in not holding that, although the conveyance from Mary Holland to Turner and wife may have been made in good faith at the time of its execution, the subsequent holding of the property embraced therein by them for the benefit of Mary Holland and to the prejudice of her creditors, and conveyance thereof at her request without consideration to defendant, Margaret J. Holland, who had the care and support of Mary Holland until her death, rendered both deeds of conveyance fraudulent as to creditors. X. Because neither Turner and wife nor Margaret J. Holland can, under the facts of this case, in equity, set up the claim of purchaser for valuable consideration without notice.</p> <p>The respondents ask the court, if they find themselve unable to sustain the judgment upon the grounds stated by the Circuit Judge, that they will sustain said judgment upon the ground that the plaintiff’s action is clearly barred by the great lapse of time from the execution and recording of the deed of Mary Holland to B. D. Turner, and the presumption arising therefrom.</p>

Before Hudson, J., Edgefield, November, 1893. This was an action by B. L. Jones and others against J. C. Swearingen and others, commenced January 27, 1893.

<p>1. Rent Liens — Recording.—A written lien for rent is valid without recording or indexing, and may be enforced by warrant under the agricultural lien law.</p> <p>2. Ibid. — Ibid.—If the law required a lien for rent to be recorded and indexed, it would, as between the parties thereto, be good, and enforceable by warrant, although not recorded and indexed.</p>

<p>Before Izlar, J., Barnwell, November, 1893.</p> <p>Action by Almena Phillips against James L. Oswald and Lawrence Williams.</p>

<p>Before Witherspoon, J., Beaufort, February, 1892.</p> <p>Action by the State of South Carolina against Joseph W. Seabrook, N. Christensen, and William H. Leod. For former appeal in this case, see 31 S. C., 605.</p>

Before Izlar, J., Barnwell, November, 1893. Action by Lizzie Peeples against Jennie Brown and D. P. Lancaster, commenced July 20,1893. contended that there were no damages alleged in the complaint resulting from acts for which the defendants were responsible; that the allegations were intended to make a case for exemplary damages, and, therefore, the allegations as to actual damages cannot be considered, while those which are relied upon for exemplary damages are too remote.

<p>Before Wallace, J., Florence, March, 1892.</p> <p>Action by John Kuker against Flora J. Carter for foreclosure of mortgage.</p>

<p>1. Retrospective Statute — Limitation oe Actions. — Statutes are not generally to be given a retroactive operation, but where a statute, reducing the period of limitation of action on a sealed note, declares that it shall not apply to cases where the action has been commenced, or the cause of action has already accrued, the exceptions noted require that the statute shall be construed to govern where a note had then been given, but was not yet due. Hence a sealed note given in 1872 and due December 1, 18Y3, was barred in six years by the limitation prescribed in the act of November 25, 18T3.</p> <p>2. Case Criticised — Definition.—This case distinguished from Hayes v. Clinkscales, 9 S. 0., 441, and the grounds of that decision stated. The phrase, “right of action,” construed.</p> <p>3. Limitation op Actions — Change op Period. — The legislature may change the period prescribed as a limitation to actions, and make such change applicable to antecedent contracts, not then barred, if reasonable time be given to institute action.</p>

<p>1. Practice — Improper Calendar. — Where a case in the Circuit Court is docketed on the wrong calendar, the proper remedy, it seems, is a motion to have the cause transferred to the proper calendar.</p> <p>2. Trial op Issues. — tinder the Code of Procedure, an action may involve both legal and equitable issues, but they must be separately tried, each by its appropriate tribunal.</p> <p>3. Nuisance — Damages—Jury Trial — Injunction.—In action to recover damages for an alleged nuisance, and to enjoin its continuance, with the issue of nuisance or no nuisance raised by the pleadings, the question of nuisance and damages is a preliminary legal issue triable by jury, and the cause should properly be docketed on Oalendar No. 1. The prayer for injunction cannot deprive the action of its nature as an action at law.</p>

<p>Before Hudson, J., Edgefield, October, 1893.</p> <p>These were two actions against the American Freehold Land Mortgage Company of London, Limited, one by Mary A. Strom and the other by Mary M. Seigler.</p>

Before Hudson, J., Kershaw, September, 1893. Action by Baum Bros, against W. D. Trantham. The plaintiffs became the assignees of the several claims mentioned in the opinion on April 30, 1890, and commenced this action to foreclose their mortgage of the town lots in January, 1893. The Circuit decree, omitting its statement, was as follows: Unquestionably the general rule is that the debtor may direct the application of payments at the time they are made.

<p>Before Wallace, J., Spartanburg, July, 1893.</p> <p>Action by Francis W. Sheldon against M. C. Pearson for the recovery of a bull, commenced in a Trial Justice’s Court on May 1, 1893.</p>

Before Wallace, J., Fairfield, February, 1893. This was au action by Silas W. Buff against the Columbia and Greenville Bailroad Company, commenced August 20J 1891, on the following complaint: The plaintiff above named, complaining of the above named defendant, alleges: I. That the defendant isa corporation, duly incorporated under and by the laws of the State of South Carolina, and on the 24th day of July, 1891, owned and operated a certain railroad, known as the Columbia…

<p>1. Irrelevant Testimony — -New Trial. — The admission of irrelevant testimony is not ordinarily a ground for new trial; but where the trial judge, in action of claim and delivery, permitted testimony to be received showing plaintiff’s indebtedness to defendant in mitigation of damages, and there was a verdict for defendant, the admission of such irrelevant testimony may have misled the jury, and furnishes sufficient ground for new trial.</p> <p>2. An Exception which quotes a portion of the judge’s charge, and alleges that it was erroneous, is bad form, and might be disregarded, but considered in this case as to the point that was probably intended to be raised thereby.</p> <p>3. Claim and Delivery — Value.—In action of claim and delivery for horses seized by defendant under mortgage, if the plaintiff be entitled to recovery because the mortgage debt was not yet due, the animals themselves should be valued, and not the value of their use from the day of seizure until the maturity of the mortgage.</p> <p>4. Ibid. — Form oe Verdict. — Where defendant retains possession of chattels sued for in action of claim and delivery, a verdict for defendant is sufficient without any alternative finding fixing the value of the chattels. Cases reviewed.</p>

<p>Before Aldrich, J.,, Pickens, September, 1892.</p> <p>Action by R. A. Hester against Evaline Barker and the Geiser Manufacturing Company, commenced in February, 1892.</p>

Before Wallace, J., Abbeville, October, 1893. Action by Thomas Calhoun against thePortRoyal and Western Carolina Railway Company, to recover for injuries sustained by plaintiff while a passenger on one of defendant’s trains.

<p>1. Title to Land — Trial.-—-In action to recover damages for trespass on land, and to enjoin further trespass, the complaint alleged that plaintiff was in possession and seized in fee. These allegations being denied, an issue of title was raised which was triable on the law side of the court.</p> <p>2. Ibid. — Ibid.—Pendency of Another Action. — The legal issue thus raised should have been docketed on Calendar 1 for trial by jury, and an order for another action to settle this issue was unnecessary. But such order having been passed, another action instituted, and no notice taken in such second action of defendant’s plea of another action pending, error will not be declared in the failure to sustain defendant’s plea where there was no evidence before the trial judge of the pendency of the former action, and no exception alleging error in the failure to pa'ss upon it.</p> <p>3. Law Case — Facts—Appeal.—In a law case tried by the judge with consent of the parties, the findings of fact in the Circuit Court cannot be reviewed on appeal.</p> <p>4. Deed — Seal.—A deed imperfect only for want of a seal will be regarded as a valid deed, where the seal was accidentally omitted.</p> <p>5. Color of Title.- — In action for the recovery of real property, deeds and other papers, and possession thereunder, may be relied upon as color of title, where they show the extent of the occupant’s claim.</p> <p>6. Recovery of Real Property — Proof of Title — State as Party. — The plaintiff having alleged that he was seized in fee, and the defendant having denied it, and the Circuit Judge having ordered a trial to determine the question of title, the plaintiff could not recover on proof of prior possession only, but was required to prove his title, especially so as the State was defendant.</p> <p>7. State — Presumption—Change of Period. — No presumption of a grant arose against the State prior to 1870, when, by the Code of Procedure, a grant would be presumed in such case after a lapse of forty years. Where one held possession prior to 1870, the currency of the presumption as against the State then started, and the presumption having commenced to run, the requisite period of time was not reduced by the subsequent act of 1873, changing the period in such cases to twenty years.</p> <p>8. Navigable Streams. — To be navigable, a stream should- have sufficient depth and width of water to float useful commerce, the test being navigable capacity, without regard to whether the surroundings are such as to make it presently useful' for commerce. Therefore, where the trial judge ruled that a tidal creek was not a navigable stream of the State, because it ran up into a private estate and lost itself in the surrounding marsh, because it had never been used as a highway for commerce, and there seemed to be no prospect of its ever being so used, and because it makes no connection with other highways, he erred in all of these rulings.</p> <p>9. An Exception based upon a misapprehension of the judge’s ruling, overruled.</p> <p>10. A Question not Raised nor passed upon on Circuit considered, as the case on other grounds would be again tried in the court below.</p> <p>11. Tidal Navigable Streams — Grant—Estoppel.—Under authority from the legislature to grant vacant lands, the officers of the State were not invested with power to grant the soil covered by tidal navigable streams, and, therefore, such a grant does not estop the State from afterwards asserting her right to such soil.</p> <p>12. Petition eor Rehearing refused.</p>

<p>1. Action Against Municipality — Money Had and Received. — Just after the passage of a statute forbidding municipal licenses for the sale of liquor for a longer term than six months, a liquor dealer paid, under protest, to a municipality the license fee for twelve months, and received license for twelve months, the town council promising to repay one-half of this fee if the license was illegal for the last six months of its term. The license having been illegal to that extent, the licensees were entitled to recover such half fee, it having been money taken by the council under a promise to repay, and not applicable to corporate purposes.</p>

Before Izlar, J., Beaufort, November, 1893. These were seven actions against Libbey Bros, on notes and accounts for goods sold, the several plaintiffs being S. Guckenheimer & Sons, Herman &Kayton, Adams & Howe, Kavanaugh & Brennan, Ehrlich & Bro., William H. Lockwood, and the Savannah Grocery Company. The first six actions were commenced, and the attachments issued on October 6, 1893; the last on October 10, 1893. The complaiuts were all verified.

Before Hudson, J., Richland, October, 1893. Action by William H. Ballou against Anna Young, W. A. Shelton, and others, commenced October 10,1892. So much of the judge’s charge as related to the execution of the deed under misrepresentation of its contents, was as follows: The Court: Mr. Crawford, please read your requests to charge.

<p>Before Wallace, J., Anderson, November, 1893.</p> <p>This was an appeal by S. BL. McDonald from decree made in a proceeding instituted in the Probate Court by W. J. Middleton and H. L. McDonald, as executors of the will of W. H. McDonald, deceased, for a final settlement of their testator’s estate.</p>

<p>1. Tiie Agreed Statement authorized by statute as a sufficient brief and return for an appeal must contain within itself all that is necessary to enable the Supreme Court to pass upon the exceptions; and, therefore, this court cannot declare error in findings of fact by the Circuit Judge, where none of the testimony is incorporated in the Agreed Case, notwithstanding the consent of counsel that such testimony should be filed in the office of the clerk of this court for reference by either party.</p>

Before Norton, J., Charleston, November, 1893. This was an appeal to this court by Emma Brown from an order denying to her the right of appeal from a conviction and sentence in the Recorder’s Court of the city of Charleston.

Before Izlar, J., Greenville, March, 1893. Claim of J. C. Eustace against Greenville County. The Circuit judgment was as follows: This is an appeal by the plaintiff from a judgment of the board of the county commissioners for said county, disallowing a claim presented by the plaintiff against the defendant county.

Before Izlae, J., Barnwell, November, 1893. Action by William Mimms and others against H. K. Delk. The facts of the case are thus stated in the Circuit decree: This action to recover the possession of a lot of land situate in the town of Blaokville, in the county and State aforesaid, and particularly described in the complaint, was heard by the court, a jury trial having been expressly waived by the parties.

<p>Befoi’e Gary, J., Lexington, June, 1893.</p> <p>Action by Donly & Sease against J. O. Fort.</p>

<p>Before Watts, J., Chester, March, 1894.</p> <p>Action by the Catawba Mills against J. A. Hood & Bro., commenced in a Trial Justice’s Court in November, 1893.</p>

Before Wallace, J., Greenville, November, 1893. This was an action by James H. Latimer against Joseph P. and John EL Latimer, as executors of Hewlett Sullivan, deceased, commenced October 23, 1891.

Before Fraser, J., Bichland, March, 1894. I. H. Moorehead was tried and convicted before a trial justice for selling a sewing machine as a hawker and peddler without license so to do.

Before Aldeioh, J., Aiken, August, 1894. This was au application made by J. V. George, county dispenser, and G. T. Holley, his clerk, for a writ- of prohibition to restrain the mayor and aldermen of the city of Aiken from proceeding further in the trial of petitioners on the charge of selling liquor.

<p>This was an application to this court in its original jurisdiction by Theodore Melchers and F.W. Jessen, citizens and taxpayers of the State, for a writ of injunction to restrain W. T. C. Bates, State Treasurer, from paying out moneys for expenses of the State Dispensary, and D. H. Traxler, State Commissioner, from purchasing and disposing of liquors. This case was heard together with the next case ante.</p>

<p>J. Evidence.. — Defendant, as a witness, having admitted on cross-examination that he had made certain statements in an affidavit exhibited to him, the affidavit itself, when introduced on his examination in reply, may be received for the single purpose of showing what defendant had said.</p> <p>2. Ibid.. — Assignment for Creditors. — In action assailing an assignment for the benefit of creditors, alleging a failure to assign all of the debtor’s estate, the assignor may testify in his own behalf .that he owned no real estate at the date of his assignment.</p> <p>3. Exceptions- — Appeal.—This court will not look through fifteen printed pages of testimony of a witness M., to discover whether there is any foundation for an exception alleging error “in not sustaining the objections of the plaintiffs to the testimony of M., when it appears from the report of the testimony that objection was made thereto.”</p> <p>4. Partnership — A Finding of Fact by the Circuit Judge from testimony taken by the master and reported in writing, as to the existence of a partnership, approved.</p> <p>5. Assignment for Creditors. — Asale of a stock of goods in one city and an assignment for the benefit of creditors in another city, on the same day, being, in fact, two distinct transactions, the latter not being in contemplation when the former was made, do not constitute parts of one assignment with preferences.</p> <p>6. Findings of Fact — Witnesses.—The Circuit Judge sustained in the weight accorded by him to the testimony of defendant, notwithstanding his violation of the law made by him in making a sale of his goods when insolvent, and to the testimony of. his witnesses, notwithstanding some contradictions.</p> <p>7. Ibid. — Findings of fact by the Circuit Judge, so far as material, approved.</p> <p>8. Assignment for Creditors — Prior Transfers.. — A failing debtor is encouraged by the law to make an assignment for the benefit of his creditors, blit such assignment must convey his whole estate and give no preference, except to releasing creditors; and the law provides machinery adequate for the protection of creditors. Any transfer of property is void where made by an insolvent debtor to a preferred creditor within ninety days before a general assignment, the creditor having reasonable cause to believe that the debtor was insolvent, and that the transfer was made in fraud of this law.</p> <p>9.Ibid. — An assignment for creditors is not void because it fails to name the time within which the preferred creditors must accept and release, where the law enables such creditors to come in and fix the day for distribution of assets.</p> <p>10. Ibid. — The description and valuation of the property in the debtor’s schedule in this case was as specific as was possible, and, therefore, the deed was not void for vagueness of description.</p> <p>11. Ibid. — Homestead.—Nor was it invalid by reason of a direction, that the chattel exemption to which the debtor was entitled under the homestead laws of this State should be in money derived from sale of the property assigned.</p> <p>12. Ibid. — Nor was it invalid because of unlimited power given to the assignee by the terms of the deed as to the time, manner, and terms of disposition and distribution, all such powers being subordinate to the power given by law to the creditors to regulate these several matters.</p> <p>13. Ibid. — This deed did not fail to convey all of the debtor’s property, so far as the evidence discloses. The failure to incorporate any items in the schedule pertaining to a class of property mentioned generally in the deed itself, does not show that there were such items.</p> <p>14. Contracts. — Every contract embodies the law governing such contracts as much as if stipulated in the contract in express terms.</p> <p>15. Assignment — Accepting Creditors.1- — Creditors who have not accepted under a deed of assignment cannot except to a notice which had been given by the assignee, that he would pay out the funds in his hands on and after a day named. Assigned estates should be settled promptly, and creditors who have accepted have a right to so demand.</p> <p>16. Judgment for Debts. — Judgment dismissing a complaint by creditors to vacate a deed of assignment affirmed, subject to the rights of the plaintiff to apply in this action for judgment against the assignor on their demands.</p>

Before Norton, J., Greenville, August, 1893. This was an action by W. L. Mauldin, in behalf of himself and others in like plight with himself, to restrain the city council of Greenville from collecting the assessment laid by defendants upon abutting lands for improvements to a portion of the streets and sidewalks of said city. From a decree of perpetual injunction, the defendant appealed on the following grounds: 1.

Before Hudson, J., Richland, October, 1893. Action by John G. Mobley against the Charlotte, Columbia and Augusta Railroad Company, to recover damages resulting from delay in the shipment of cattle on November 19, 1891, by a longer route than that which plaintiff had directed. So much of the charge as referred to the waybill was as follows: Then the question is as to contract: What was the contract at White Oak!

<p>1. Agricultural Liens — Warrant.—The failure to allege the locality of the land in a warrant to enforce an agricultural rent lien is cured by allegations setting forth the county in which the land is, contained in an affidavit upon which the defendant bases his right to rely upon this defect in the warrant.</p> <p>2. Ibid. — Satisfaction—Revival.—Cotton sufficient to satisfy a statutory rent lien having been delivered by the lienor to the lienee, the lien is extinguished, and cannot be revived as a statutory lien between the'parties by their subsequent agreement that the cotton so delivered should be applied to the payment of an unsecured account.</p>

<p>1. Service — Appeal—Exceptions.—It seems that parties -would have no standing in a court on appeal to raise the question that a judgment was improperly rendered against them, as they had never been made parties; and, further, when the amended summons having been served on counsel for these defendants, they made motion to set aside the service of the amended summons, and appeared to object to the order appealed from. But such questions not determined, as they were not made grounds of exception.</p> <p>2. Decree Between Codeeendants. — The court may adjudicate the rights of codefendants as between themselves, under the pleadings and evidence, where the rights of the plaintiff are not prejudiced; as, in this case, where the right of one defendant was alleged in his answer, which was served on his codefendants, and the plaintiff made no objection to the decree.</p> <p>3. Judgment De Bonis Peopeiis — Release.—Decree modified by relieving defendants from an individual judgment for the debt of their testator, where they had, by agreement, been specially relieved from any responsibility for this debt.</p>

Before Witherspoon, J., Newberry, November, 1893. Jacob L. Aull presented a claim against the County of New-berry for $190, one-half the amount due for extra work done by him to a bridge over Saluda Elver, between the Counties of Newberry and Edgefield.

<p>1. Married Woman — Mortgage.—A mortgage executed by a married woman in 1892, charging her separate estate with the payment of the debt, and declaring that the debt was for the benefit of her separate estate, is governed by the act of 1891 (20 Stat., 1121), which deprives her of the power to make a valid promise to pay the debt of another.</p> <p>2. Ibid. — Ibid.—Nesotiable Paper — Purchaser.—But the note secured by the mortgage having declared that it was for value received, and note and mortgage having been transferred by the payee in payment of a pre-existing debt to his creditor “without recourse” before maturity, such creditor, having no notice contrary to the declarations contained in the note and mortgage, took both as negotiable commercial paper, free from the defence which the maker could have interposed to an action against her by the payee — that the debt secured was the debt of the payee and not her own.</p> <p>3. Ibid. — -Ibid.—Estoppel.—Where a married woman executes a promissory note, and secures it by mortgage, which is thereby made also negotiable, and declares on the face of the papers -that the debt is her own, she is estopped to aver the contrary against an innocent purchaser for value before maturity, unless she can show that such purchaser knew that the debt was not her own, and, therefore, was not misled by her representations.</p>

<p>Before Witherspoon, J., Union, October, 1893.</p> <p>This action was commenced February 3, 1892. The answer of defendant admitted that the exhibit to the complaint was ‘ ‘a true copy of the contract entered into between the plaintiff and defendant.” Verdict was for plaintiff, and defendant appealed.</p>

Before Izlar, J., Abbeville, January, 1893. This was an action by Annie L. Earley, J. C. Caldwell, C. L. Caldwell, and Isabella G. Caldwell against Charles C. Law, J. P. Phillips, survivor, J. M. Godbold, and C. F. Godbold, commenced February 28, 1891. The testimony was taken by a referee and reported to the court.

Before Witherspoon, J., Anderson, February,1894. Action by Louvinia E. Shaw against E. B. A. Eobinson, executor, and Eobert P. Eobinson, devisee, J. C. Pruitt, tenant, and J. P. Parker, trustee, to recover the land covered by the deed stated in the opinion of this court, commenced May 17, 1893. Plaintiff claimed as sole heir of Nancy Hawkins, and defendant, B. P. Eobinson, claimed as devisee of Nancy Hawkins.

<p>1. Estoppel — Agricultural Lien. — Where a farmer agrees to take four bales of cotton at ten cents per pound, to be sold by him and applied to the cultivation of a crop, and gives to the seller a note for the cotton so to be received, and secures the payment of this indebtedness by giving a lien on the crops to be raised during the yeai', declaring that the consideration is supplies to be advanced and furnished by the lienee, and the lienee after-wards delivers the cotton, having no notice of any other intended disposition of this cotton, the lienor is estopped from resisting the execution of a warrant to enforce this lien by showing that the cotton was sold by him and applied to purposes other than the raising of crops.</p> <p>2. Ibid. — What-is required to work an estoppel, stated.</p> <p>3. Ibid. — Evidence.—Testimony is incompetent to prove facts at variance with what has been so stated as to work an estoppel.</p> <p>4. Agricultural Lien — Affidavit—Bond.—A warrant to enforce an agricultural lien will not be vacated for failure of the clerk of court to mark “filed” the affidavit upon which the warrantiwas issued, or to require probate of the lienee’s signature to the bond then given by him and witnessed by the clerk.</p>

<p>Before Wallace, J., Abbeville, October, 1893.</p> <p>These were supplementary proceedings in the cases of George F. Burdett against Jesse A. McAllister, and Harper & Latimer against the same defendant.</p>

Before Wallace, J., Abbeville, October, 1893. Held: was appointed as their agent. Prior to this time, however, and whilst E. P. Jervey and Lewis S. Jervey composed the firm of William C. Bee & Co., to wit: on the 15th of September, 1887, they advanced each $1,000 to establish a mercantile and cotton business at Greenwood, S. C.; and this copartnership continued until the retirement of…

Before Witherspoon, J., Abbeville, January, 1894. This was an action by J. C. Hill against the Western Union Telegraph Company, commenced in June, 1893, to recover damages for the incorrect transmission of a telegram, which induced action by plaintiff that resulted in loss to him.

Before Aldrioh, J., Charleston, March, 1893. This was an action by Zacharia Moore against Henry S. Perry and others. Held: the evidence would, in my opinion, sustain that conclusion. I overrule this exception. Next turn to that exception wherein it is alleged that said master erred in failing to find: “5.

Before Izlae, J., Charleston, July, 1893. Action by C. T. Dunham against Caroline Carson. The order appealed from was as follows: The plaintiff makes application to the court to have the above entitled action continued against the heirs and devisees of the defendant, Caroline Carson, who has departed this life since the commencement of this action.

Before Hudson, J., Florence, May, 1893. This was an action of claim and delivery by A. S. Stewart against A. M. Gregg and Benjamin Grabam, commenced November 10, 1892. Plaintiff requested the following instructions to the jury: 1. That in order for the jury to find for the defendant, they must be satisfied by the preponderance of the evidence, that a tenancy existed between defendant and plaintiff, and that in the alleged lease a sum certain was reserved for rent. 2.

Before Aldrich, J., Charleston, February, 1893. Action by Thomas Frost against the Berkeley Phosphate Company, commenced November 5, 1890. The judge charged the jury as follows: This is an action brought by Mr. Thomas Frost against the Berkeley Phosphate Company. You have heard the complaint read, which states the cause of action. You have heard the defendant’s answer read, which is the answer to the allegations stated in the complaint.

<p>Before Izlar, J., Greenville, March, 1893.</p> <p>Action by Samuel T. Weyman and G. W. Connors, partners as Weyman & Connors, against B. F. Perry and others, commenced May 31, 1892.</p>

<p>Before Witherspoon, J., Abbeville, March, 1894.</p> <p>The State ex relatione Mary A. Poore against F. W. R. Nance, as sheriff of Abbeville County.</p>

<p>1. Two Funds — Homestead—Estoppel.—Defendant purchased seven shares of stock and a lot of land which had been pledged and mortgaged, respectively, by his vendor to a building and loan association. The judgment creditors of defendant levied on the land, and under proper proceedings the lot was appraised at $1,500, and ordered to be sold, $1,000 thereof to be paid to the debtor as his homestead. Thereafter the mortgagee instituted proceedings for sale of this stock and foreclosure of the mortgage. Held, that the judgment creditors, defendants, were entitled to a decree directing the proceeds of the sale of stock and the $1,000 exemption to be primarily applied to the mortgage, so that the unexempted remainder, if any, might be subjected to the judgment liens, and that this right of theirs was not affected by the determination under the homestead proceedings.</p> <p>2. Jurisdiction — Service.—This, court will not declare that jurisdiction was not acquired over the person of a defendant who accepted service of a summons, no facts appearing to negative the force of such acceptance.</p>

<p>1. Husband and Wife — Support—-Provision.—Where differences have arisen between husband and wife, one-half of the rents of his property are paid over by the receiver to the wife, she has a good bank account, and the husband has deposited $75 with a grocer for supplies for the family, these matters must be considered by a jury when passing upon a claim against the husband for necessaries purchased by the wife for the family, in determining whether a proper support has been provided.</p>

Before Wallace, J., Newberry, November, 1893. This was a proceeding to recover compensation for right of way, instituted by Jacob L. Aull and Elbert H. Aull against the Columbia, Newberry and Laurens Railroad Company.

<p>Before Gary, J., Lancaster, January, 1894.</p> <p>Action by Mary Marshall and others against Thomas J. Marshall and others, commenced January 31, 1891.</p>

Before Townsend, J., Charleston, March, 1894. Action by Marion Boss against the Charleston, McClellan-ville and Santee Transportation Company, commenced October 14, 1893.

Before Townsend, J., Charleston, February, 1894. Action by Henry C. Whaley against I). L. Bartlett, T. J. Hayward, and E. L. Bartlett, partners as Bartlett, Hayward & Co., commenced by summons and atttachment September 21, 1893. The defendants requested the judge to charge as follows: That in order to sustain his case, the plaintiff must prove by the preponderance of evidence: 1st. That the defendant was guilty of negligence, which caused the accident to him.

<p>Before Hudson, J., Lexington, September, 1893.</p> <p>Action by Sarah B. Mitchell against John A. G. Mitchell, U. X. Gunter, H. D. Derrick, assignee, T. B. Kernaghan, X. B. Dial, and Buth B. Dial, commenced January 12,1893. The Circuit decree was as follows:</p> <p>This is an action brought by Sarah B. Mitchell, wife of J. A. Jeter Mitchell, against her husband, to foreclose certain mortgages she holds against his real estate. To this antion certain judgment and mortgage creditors of the said J. A. J. Mitchell are made parties defendant. To the suit to foreclose, these defendants claim against the plaintiff that her mortgage, dated 3d November, 1887, given to secure a bond of that date for the sum of $5,525.34-100, is as against the defendant judgment creditors fraudulent and void: First, upon the ground that it is tantamount to an assignment under section 2014 of the General Statutes, and gives undue preference to one creditor over all others. Secondly, that if it be not an assignment within the purview of the said act, it is, nevertheless, an undue preference, and fraudulent as to these judgment creditors.</p> <p>The issues of law and fact were referred to J. Brooks Wingard as special referee, with directions to report to the court his findings of fact and conclusions of law. TJpou the coming in of that report, exceptions thereto were filed by the said judgment creditors, and the cause was heard before me upon exceptions to said report. The special referee sustained this mortgage of the husband to the wife as a valid security, and recommended the foreclosure and sale of the property covered by that and the other mortgages in the case. TJpon the hearing of the cause I became satisfied that the aforesaid bond of November 3, 1887, was excessive in amount, and should be greatly reduced as was disposed, and so announced myself to sustain the report of the referee except in this particular; but a more careful consideration of the testimony and examination of the authorities has satisfied me that this is an erroneous view.</p> <p>The question first to be determined is whether J. A. J. Mitchell at the time he gave this bond to his wife was insolvent? This question was not decided by the referee. I am satisfied from the testimony that at that time he was insolvent, and that his insolvency was known to himself and also to the plaintiff. He owned about $250 worth of personal property and two tracts of land — the home tract, consisting of 350 acres, which he valued at $18 per acre, and another tract of 400 acres, valued by himself at $1,800. These valuations are very full, hut even at this valuation of his property his debts exceeded it.</p> <p>The bond to his wife is made up of various amounts of money which he is said by himself and his wife to have collected as her agent from her various sources of property and income. They were married in 1872. In the year 1874 he collected for her an interest in taxes amounting to $600. In 1881 he collected for her as executrix of A. S. Lark’s estate $267.67-100; he also collected of her interest in said estate $997.16-100. From 1881 up to the date of the said bond he collected annually the rent of his wife’s Mudlick plantation, in the County of Newberry. For none of these amounts did he give any writteu acknowledgment to his wife nor any written promise to pay. The indebtedness was not evidenced by any written instrument until 1887, when he gave the bond and mortgage aforesaid. On every amount which he charged against himself as having collected for his wife, he calculated the annual interest at the rate of ten per cent. These different amounts, with interest aforesaid calculated up to the 3d of November, 1887, made the sum total of the said bond. Not being satisfied with having given the mortgage aforesaid upon his home place of 350 acres to secure the bond aforesaid, on the 10th of May, 1889, he extended this lien by giving a mortgage upon the 400 acres of land to secure the same debt.</p> <p>On the 18th day of October, 1889, he gave to Abram Jones a mortgage to secure the payment of $700 on the 350 acres of land aforesaid. On the 5th of February, 1892, this bond and mortgage was transferred to Mrs. Mitchell. On the 28th of February, 1885, the defendant, J. A. J. Mitchell, executed and delivered to U. X. Gunter his notes for dollars, secured by mortgage upon 400 acres of land aforesaid, which notes and mortgages amounted on 1st of October, 1893, to the sum of $1,092.67-100. On the 7th of January, 1890, Mitchell executed and delivered to TJ. X. Gunter his notes for dollars, secured by mortgage upon the 400 acres of land aforesaid, which notes and mortgage amounted on 1st of October, 1893, to the sum of $1,092.67-100. On the 7th of January, 1890, he gave to his wife the note for $500, and secured the same by a mortgage on the aforesaid 400 acres of land. The plaintiff, Mrs. Mitchell, has become the owner of both the Jones and the Gunter mortgages.</p> <p>The judgments of the defendant judgment creditors amount to several thousand dollars. The exact amount is not given by the referee, but I presume will not be less than $4,000. In addition to these notes he is also indebted as guardian of his two minor children, by his first wife, in amounts not yet ascertained, but which will probably each equal the amount recovered against him by his married daughter, Mrs. N. B. Dial, of whom he is likewise guardian. In view of these facts there can be no question that on the 3d of November, 1887, J. A. J. Mitchell realized the fact that he was totally insolvent, and then conceived the purpose of saving out of his estate to his present wife the large amounts of money aforesaid. In determining whether this is undue preference or not, I deem it unnecessary to cite the numerous cases which hold that a debtor in failing circumstances has a right to secure one creditor in preference to another, but he has no right to cover up his property by such securities as to defeat, hinder, and delay the creditors who are unsecured; in other words, he has no right to give a preference which is undue in the sense of the Statute of Elizabeth.</p> <p>The present case is on all-fours with the case of Mann v. Poole, 40 S. C., 1. The only difference between the conduct of J. T. Poole towards his wife and daughters, and the action of J. A. J. Mitchell in regard to his wife, is that, in about ninety days after securing the claims of his relatives, Poole made a general assignment for the benefit of his creditors. This Mitchell did not do, and could not have done, because he had no property to assign, other than the property which he had so heavily mortgaged. One other distinction may be mentioned, which is, that there was no question as to the bona fide indebtedness of Poole to his wife and daughters. The bona fides of, Mitchell’s indebtedness to his wife is gravely questioned by the defendants in this case, and not without reason. I hold, therefore, that the bond and mortgage given by Mitchell to his wife on the 3d of November, 1887, is as to the defendant judgment creditors an undue preference, and invalid.</p> <p>It is adjudged, therefore, that the report of the referee in his findings of fact and conclusions of law touching this security be overruled. It is, therefore, ordered, adjudged, and decreed, that the U. X. Gunter mortgage, the Abram Jones mortgage, and the mortgage securing $500 to Mrs. Mitchell, being valid securities, be foreclosed, and the equity of redemption be barred. It is ordered, adjudged, and decreed, that there was, on the 1st of October, 1893, on the Jones mortgage, due the sum of $776.59, on the U. X. Gunter mortgage $1,092.67, on the $500 mortgage the sum of $650, and that for these amounts in the aggregate the plaintiff is entitled to judgment. It is further ordered, adjudged, and decreed, that the lands described in the complaint be sold by the clerk of the court, Sao.</p> <p>Plaintiff appealed on the following grounds:</p> <p>1st. Because his honor, the Circuit Judge, erred in overruling so much of the report of the referee herein as sustains the bond of the defendant, John A. J. Mitchell, to the plaintiff, in the penalty of $11,050.68, conditioned for the payment of $5,525.34, and secured by mortgages of real estate. 2d. Because his honor erred in not allowing the said bond and mortgages to stand as valid securities, at least to the extent of $3,150.14, with interest at seven per cent, per annum on each item of money embraced in the sums borrowed by the said J. A. J. Mitchell from the plaintiff, and constituting the indebtedness secured by the bond, from the day of the receipt by that defendant of each item to the date of the said bond, and interest thereafter according to the terms of the bond. 3d. Because his honor erred in deciding that the execution and delivery of such said bond and mortgages amounted to an assignment of the said J. A. J. Mitchell’s estate, within the inhibition of the statute laws of the said State. 4th. Because his honor erred in holding that the said J. A. J. Mitchell was insolvent at the date of the mortgage of 3d day of November, 1887, or at the date of the mortgage of 10th May, 1889. 5th. Because his honor erred in holding that the said J. A. J. Mitchell knew or believed that he was insolvent on the said 3d day of November, 1887, or on the said 10th day of May, 1889. 6th. That his honor erred in not holding that the said bond and the mortgages to secure it were executed merely as securities for a valid and subsisting debt from the said J. A. J. Mitchell to the plaintiff, appellant. 7th. Because his honor erred in holding that the said J. A. J. Mitchell is, or ever has been, since the beginning of the year 1887, indebted to his two other daughters besides Mrs. Dial. 8th. Because his honor erred in holding that the said J. A. J. Mitchell either knew or believed, at any time in the year 1887, that he was a debtor to Mrs. Dial. 9th. Because his honor erred in holding that the said bond and the two mortgages to secure its payment were fraudulent — or that any one of them was fraudulent — as intended to delay, hinder, or defraud other creditors of the said J. A. J. Mitchell. 10th. Because his honor erred in not sustaining all of the referee's findings of fact and conclusions of law.</p>

<p>Before Hudson, J., Richland, October, 1893.</p> <p>Action by Columbia Water Power Company against Columbia Land and Investment Company.</p>

Before Witherspoon, J., Spartanburg, October, 1893. This is a second appeal in the case reported as Earle v. Groce, in 37 S. C., 560. The Circuit decree was as follows: The plaintiff, as assignee of a junior mortgage, seeks in this action to compel the defendant, A. B. Groce, as administrator, to account for the surplus proceeds of land sold by John Wheeler, under a senior mortgage containing a power of sale.

Before Witherspoon, J., Anderson, February, 1894. Action by Clemson Agricultural College of South Carolina against Samuel W. Pickens. Motion by defendant to set aside service and sale, Samuel McCrary, the purchaser, being a party to the proceeding by motion.

Before Izlar, J., Charleston, June, 1893. These were eleven separate proceedings instituted by Mary B. Campbell, as administratrix of James B. Campbell, deceased, and W. H. Trescot and W. E. Earle against Samuel Sanders and ten other parties.

Before Gary, J., Fairfield, September, 1893. Held: that “parties taking wrongful possession of lands of another are liable to account for the rental value and not simply for the rents and profits received.” In the case just quoted, the defendants took possession and held it, and rented it as owners under a paper title, in form a deed, but which was afterwards declared a mortgage.

The plaintiff having attached 156 horses of defendant at Greenville, S. C., obtained an order from Judge Watts, directing the sale of the horses as perishable property, on 22d November. Defendant moved before Judge Watts, on 21st November, for an order vacating his order of sale. This motion was refused, and defendant gave notice of appeal.

This was an original application to the Supreme Court, argued at April Term, 1894. On November 26, the court passed an order directing its reargument on December 10, oh the call of the special docket. On the day so fixed, no one appearing for the relators, respondent’s attorney moved for and obtained the following order

This was a motion by appellants for further time within which to perfect the appeal. The matter is sufficiently explained in the ruling made January 9, 1895,

<p>The order of the court of January 16, 1895, was as follows:</p>