Volume 43 — South Carolina Reports

<p>Before Fraser, J., Chester, June, 1894.</p> <p>Action by John K. Coleman against George W. Curtis. For the former appeal, see 41 S. C., 288.</p>

Before Norton, J., Florence, May, 1894. Prosecution against J. B. Burch, commenced and tried before a trial justice in March, 1894. The trial justice found that the defendant had been guilty of an assault with a pistol, and sentenced him to pay a fine of $10, or be imprisoned for fifteen days.

Before Benet, J., Darlington, June, 1894. This was an action by C. W. Hewitt, as assignee of Joye & Sanders, and E. O. Woods, as agent for creditors, against the Darlington Phosphate Company and other creditors of Joye & Sanders, requiring the said defendants to interplead, so that the court might determine to whom the moneys in the plaintiff’s hands should be turned over. The defendants raised by their answers the issues passed upon in this court.

Before Townsend, J., Florence, September, 1894. Petition by the Board of Commissioners of the Florence Graded Schools for a writ of mandamus, requiring D. McDuffie, school commissioner for Florence County, to draw his warrant for certain school funds in favor of petitioners.

Before Benet, J., Marion, June, 1894. Action by the Standard Sewing Machine Company against John E. Henry and J. B. Lee, partners as J. E. Henry & Go., commenced January 30, 1894. The Circuit decree was as follows: This is a motion made by the plaintiffs herein to strike out the answer of the defendants on the ground that it is sham and irrelevant; and on the further ground that it is frivolous, and intended merely for delay.

<p>1. Insurance — Loss—Forfeiture.—In action to recover for loss under an insurance policy, the claim that plaintiff is debarred of his recovery by reason of his failure to comply with the requirements of the policy must be set up in the answer, and plaintiff'is not bound to show his compliance or be nonsuited; nor is a nonsuit proper if non-compliance be shown by the testimony in chief, as plaintiff may show waiver or estoppel in reply.</p>

<p>Before Watts, J., Fairfield, March, 1894.</p> <p>Action by Margaret J. Aiken against James E. McDonald and Chas. A. Douglass, as executors of T. W. Rabb, deceased.</p>

<p>Before Benet, J., Sumter, March, 1894.</p> <p>Action by John A. Garret and others against Bosa Weinberg ■ and William L. Osteen, commenced January 28, 1893.</p>

Before Hudson, J., Bichland, October, 1893. Action by Willis J. Perkins, trading as Perkins & Co., against the Loan and Exchange Bank of Columbia, S. C. So much of the contract referred to in the opinion as is material to the issues, was as follows: Philadelphia, Pa., September 23, 1892. Messrs. Perkins & Co., Grand Rapids, Mich.

<p>1. Purchase Money Mortgage — Dower—'Case Criticised. — The vendee of a tract of land gave a purchase money mortgage, and afterwards, in payment of the balance due on such mortgage, reconveyed to his vendor 800 acres of the tract so purchased, and also another tract, and the mortgage was marked satisfied and surrendered. This vendee and mortgagor then died. Held, that his widow was entitled to dower in this 800 acre tract, the purchase money mortgage being satisfied. Agnew v. Renwiek, 21 S. C., 562, followed.</p> <p>2. Case Criticised. — Stoppelbein v. Shulte, 1 Hill, 200, distinguished.</p>

Before Gaey, J., Lancaster, October, 1893. Indictment against John A. Faile and others for murder. Held: That Doctor Doster never told him (Baker) that he was in extremis mortis, but, on the contrary, told Jerry Funderburk, trial justice, who afterwards acted as coroner in the case, that he believed Baker would recover.

<p>Before Watts, J., Fairfield, February, 1894.</p> <p>Action by G. C. Haygood against O. B. Boney.</p>

<p>1. Administration Bond — Action—Parties.'—While action may be brought in the Court of Common Pleas against an administrator and his sureties on their bond by either the probate judge or distributees under a decree of the Probate Court declaring the several amounts due to the distributees respectively, and a judgment in either case would be a bar to an action in the other, yet there is no misjoinder of parties plaintiff where the probate judge and the several distributees unite in bringing one action on the administration bond.</p>

<p>Before Watts, J., York, April, 1894.</p> <p>Action by W. J. Oaveny against J. H. Neely and Ed. Fewell, partners as Neely & Fewell, to recover damages for injuries received on July 8,1892. Action commenced in February, 1893.</p>

Before Fraser, J., Richland, April, 1894. Action by the Interstate Building and Loan Association against J. P. MeCartha and the Loan and Exchange Bank of South Carolina, to foreclose a mortgage of J. P. McCartha, dated November 23,1891. The defendant bank offered judgment and decree of sale for the debt and interest, but denied liability for the fees of plaintiff’s attorneys, as claimed in the complaint. The Circuit Judge held with the bank, and the plaintiff appealed.

Before Fraser, J., Bichland, April, 1894. This was a controversy submitted without action on October 6,1893, in which it is stated that David B. Flenniken recovered judgment on July 19,1893, for $1,000 and costs against the Columbia Street Bailway Company, under his complaint demanding damages for personal injuries received by him on October 5, 1892, while alighting from one of defendant’s street cars, by reason of the negligence of defendant; that an execution against said…

Before Watts, J., Fairfield, February, 1894. This was an action by the People’s Bank against Adam Jackson, James Jackson, Albert Gladney, and John R. Craig, as assignee of C. Brice & Co., commenced January 13, 1893. Ro testimony is printed in the Brief, nor is the report of the referee, and the Circuit decree refers to no facts other than those admitted by the pleadings.

Before Gary, J., Union, March, 1894. Action by George T. Sims and E. L. Sims, as George T. Sims & Co., against W. T. Jones and Ida Jones, as administrators of Tyrrel J. Jones, deceased. The examination of the jurors on their voir dire was as follows: J. G. Bice (by request of Mr. Munro): Q. Are you related to any of the parties to this suit? A. I don’t know of any kinship. Q. Have you formed or expressed any opinion in regard to it? A. Tes, I have.

Before Gary, J., Abbeville, June, 1894. In this case Hon. D. A. Townsend, judge of the Seventh Circuit, sat in the place of Mr. Justice Gary, who had been of counsel in the cause. It was an action by Henry P. McGee against Sterling C. Merriman and others, commenced August 30, 1893.

<p>Before Gary, J., Oconee, July, 1894.</p> <p>Prosecution by the State against John F. Freeman, commenced April 9, 1894.</p>

Before Witherspoon, J., Beaufort, September, 1894. Held: in effect, that a citizen could be held to answer to an indictment, he never having been confronted with his accusers or had the opportunity to cross-examine them. IV.

<p>Before Townsend, J., Barnwell, July, 1894.</p> <p>Indictment against M. M. Lightsey and M. S. Lightsey for assault with intent to kill.</p>

<p>Before Norton, J., Florence, June, 1894.</p> <p>Action by John Kuker against Ella McIntyre, commenced in May, 1893.</p>

Before Townsend, J., Barnwell, July, 1894. Indictment against Alex. Johnson and six others for riot and assault and battery of a high and aggravated nature.

<p>Before Norton, J., Aiken, April, 1894.</p> <p>Indictment against Jesse Corley for the murder of his brother, Henry Corley.</p>

Before Witherspoon, J., Charleston, June, 1894. Indictment against Henry W. C. Petsch for the murder of J. H. Bickles, jr., on April 9, 1894. The judge charged the jury as follows: The prisoner at the bar, Henry W. C. Petsch, is charged by the State with the crime of murder.

Before Hudson, J., Richland, October, 1893. Action by the Columbia Water Power Company against the Columbia Electric Street Railway, Light and Power Company, commenced August 16, 1893, to restrain the defendant from using the 500 horse power of water power, claimed under its contract with the State, in generating power to move its cars, or furnish light, or for any other private purpose, and from erecting any other structures or machinery on the lands described, and to…

<p>Before Witherspoon, J., Greenville, April, 1894.</p> <p>Action by G. E. Adkins against H. P. Moore et al.</p>

Before Gary, J., Spartanburg, March, 1894. This was a motion by the Perry Stove Company in the case of Phillips & Buttorff Manufacturing Company against J. F. Bay and W. P. Wray.

<p>1. Mode oe Trial — Appeal.—An order granting defendant’s motion to submit to a jury, as a matter of right, issues raised by her answer in an action of foreclosure, may be appealed from by the plaintiff.</p> <p>2. Ibid. — Foreclosure—Legal Defences. — In action to foreclose a mortgage, the defendant pleaded, under the statute, usury and a counter-claim for double the excessive interest paid by her, aDd the Circuit Judge ruled that defendant was entitled, as a right, to have the issues thus raised by her answer passed upon by a jury. Held, that in this ruling there was error, as the defence and counterclaim affected directly the amount due on the mortgage, and was not a defence separable from plaintiff’s equitable cause of action. All of the issues were, therefore, triable under the rules of the Court of Equity.</p>

<p>Before Watts, J., Chester, March, 1894.</p> <p>Action by John E. Page against Benjamin P. Cranford and N. J. McGuckin.</p>

<p>1. Railroads — Lease—Receivers—Torts.—A chartered railroad company cannot escape liability to the public for torts committed by trains on its line, by leasing its road to another, and such liability also continues to exist, while its road is operated by receivers of the lessee appointed by the couvt, in an action to which the lessor was not a party.</p>

<p>1. Selling Property Under Lien — Bill op Sale. — At the trial of defendant in the Court of Sessions for disposing of chattels covered by a mortgage, the trial judge erred in construing a paper, which purported to be an absolute bill of sale of these chattels, as a mortgage, and in permitting it to be received in evidence.</p> <p>2. Ibid. — Exceptions.—Such paper having been construed to be a mortgage over defendant’s objection, he did not estop himself from excepting to this ruling on appeal by afterwards requesting a charge as to the effect of a payment made by him thereon.</p> <p>3. Ibid. — Removal prom State — Case Criticised. — If property covered by a lien is taken by the lienor beyond the limits of this State, with the purpose, or, perhaps, even with the effect, of putting it beyond the reach of the lienee, the statutory offence of disposing of property under lien is complete, and is within the jurisdiction of the courts of this State. Thus the purpose and effect of removal in such cases becomes a pertinent inquiry. This ease distinguished from State v. Reeder, 36 S. C., 497.</p> <p>4. Case Criticised — Part Payment Received on a Chattel Mortgage does not waive the forfeiture. The case of Summer v. Kelly, 38 S. 0., 507, explained, and held not to have so decided.</p>

Before Wallace and Gary, J. J., Anderson, October, 1893, and June, 1894. This was an indictment against J. Mims Sullivan for the murder of Herman G. Gilreath in Greenville, on June 14, 1892. The case was removed to Anderson for trial. See State v. Sullivan, 39 S. 0., 400. Defendant was convicted of murder and appealed from the sentence.

<p>Before Benet, J., Lexington, September, 1894.</p> <p>Action by Jane A. O. Cartin against the South Bound Railroad Company, commenced in August, 1894.</p>

Before Fraser, J., Fairfield, June, 1894. 1 Action by Philip R. Mayo against the Spartanburg, Union and Columbia Railroad Company. On the call of the docket of the Sixth Circuit, on December 10, 1894, counsel for appellant moved that the cause be advanced on the docket, so as to stand for a hearing as if docketed at “the time of the filing of the first appeal,” as required by section 13 of the Code of Procedure.

Before Witherspoon, J., Charleston, June, 1894. Action by Jacob Knobeloch, administrator de bonis non eum testamento annexo of William Knobeloch, senior, deceased, against the Germania Savings Bank of Charleston, commenced January 31, 1894. The complaint was as follows: The plaintiff, Jacob Knobeloch, administrator de bonis non cum testamento annexo of the last will and testament of William Knobelock, sr., deceased, complaining of the defendant herein, alleges: First.

Before Witherspoon and Fraser, JJ., Laurens, September, 1893, and September, 1894. This was an action for partition, commenced January 10, 1893, by Sarah F. Rowland against William L. Shockley and others, all persons claiming an interest as heirs of Joseph J. Rowland, deceased, or as conveyees of such heirs, being made parties. And John H. Young intervened as a party defendant, and alleged title in himself to the lands sought to be partitioned.

Before Gaby, J., York, November, 1893. Action by R. T. Fewell & Co. against F. H. Deane & Co., commenced March 28,1892. The Circuit judgment was as follows: This is an action for damages instituted in the Court of Common Pleas for York County by the plaintiffs, merchants doing business in the city of Rock Hill, S. C., against the defendants, doing business as merchants in the city of Richmond, State of Virginia.

<p>Before Norton, J., Greenville, August, 1893.</p> <p>Actions by Charles M. Sullivan against Joseph P. Latimer and John H. Latimer, as executors, et al., and by Thomas- J. Sullivan against Joseph P. Latimer et al.</p>

<p>1. Issues in Chancery — Appeals.—The act of 1890, 20 Stat., 695, regulating the ordering of issues out of chancery for trial by jury on motion of a party to the cause, does not prevent the chancellor from directing such a trial, whenever, in his judgment, it is necessary for the enlightenment of his conscience; and an order so made by him does not involve the merits, and is not appealable.</p>

Before Fraser, J., Colleton, February, 1893. Action by Thaddeus W. Sires and others against Samuel W. Sires and others, commenced in August, 1891. The. Circuit decree was as follows: This case was heard by me at the term of the court held in February, 1893, on the pleadings and testimony taken before me in open court.

<p>Before Fraser, J., Colleton, February, 1893.</p> <p>These were four actions against George Rumph, commenced in February, 1891, by Elizabeth Tumbleston, Ervin Seigler, Sarah Ann Reeves, and Joseph Hiott et at, respectively, to recover the value of improvements put upon lands severally recovered from them by the said George Rumph. The order of the Circuit Judge was as follows:</p> <p>These cases were heard by me at the term of the court held in February, 1893, on demurrers, in that the complaints did not state facts sufficient to constitute a cause of action. In the first of the above cases, there is an additional ground: that there is a misjoinder as to Josiah Hiott, even if there is a good cause of action in favor of the other plaintiffs in that case. In the view I take of these cases, it is not necessary to rule on this question.</p> <p>These actions are claims for betterments made by the plaintiffs against the same defendant, who had brought several actions, or perhaps one action, against these several plaintiffs, resulting in a verdict and judgment in favor of the defendant in these cases, who was in the former action the plaintiff. They were legal actions. In such actions, it is provided in General Statutes, sections 1835, 1836, and 1837, that within 48 hours, or during the term, the defendant may “file a complaint” for so much money as the lands are made better by improvements. In these cases, the value of the improvements can be recovered in cases where the purchaser who made the improvements supposed at the time of such purchase, such title to be good in fee. See Gen. Stat., §§ 1835, 1836, 1837. These three sections have not been repealed, but, by the act of 1885 (see act 1885, p. 432), secs. 1838 and 1839 have been amended. An examination will show that these two sections refer to the mode of procedure in reference to the verdict and judgment for the improvements, and the mode of enforcing the judgment. In these cases the claim for improvements can be made only by compliance in the way provided by the statute.</p> <p>There is, however, another act of 1885 (see act, p. 343), which gives a remedy for improvements in “legal and equitable” actions. In these cases, to entitle the defendant to recover, the improvements or betterments must be made by a defendant who “believed at the time he makes such improvements or betterments that his title thereto is good in fee.” The defendant is “allowed to set up in his answer a claim for so much money as the land has been increased in value in consequence of the improvements.” Then follows in the act special directions as to the verdict, judgment, and execution. After a careful consideration, I am satisfied that this act does not in any way modify the right to claim improvements, or the mode of procedure as given by sections 1835, 1836, 1837, 1838, and 1839, as amended at p. 432, act 1885. In the first case, the defendant must suppose his title to be good at the date of his purchase, and the remedy is by complaint. In the second case, the defendant must believe his title to be good when he makes the improvements, and his remedy is by answer.</p> <p>In all four of the cases above stated, the allegation is that the plaintiffs — the defendants in the original case — made the improvements “believing themselves to be the owners in fee.” There is no allegation that they, or those under whom they claim, believed at the time of the purchase that the title was good, an allegation which seems to have been carefully avoided. These remedies are given by statute, and must be governed by the statute; not only as to the extent of the right, but as to the mode in which the claim is to be set up. In all four of these cases, if the plaintiff had any valid claim for the value of improvements, that claim should have been set up in their answers to the original complaint, and not by way of complaint after' the rendition of the verdict and judgment thereon.</p> <p>It is, therefore, ordered and adjudged, that the demurrers be sustained in each of the above stated eases; and as, in my view, there is nothing to amend to, it is ordered and adjudged, that the complaints in each of the above cases be dismissed with costs.</p>

Before Gaby, J., Oconee, February, 1894. Action by Thomas L. Gibson fit dl. against Fannie S. Hutch-ins et al. The facts are thus stated in the Circuit decree: . The facts of this case are as follows: On the 13th day of November, 1890, the defendant, Fannie S. Hutchins, then and now a married woman, executed a promissory note for the sum of one thousand dollars, which was endorsed by the plaintiffs, T. L. Gibson, J. A. F. Hutchins, and Asa Leathers.

Before Watts, J., York, April, 1894. These were four actions by Wilson, Wilson & McDow, continued in the name of W. B. Wilson, jr., and Thos. F. McDow, after the death of W. B. Wilson, sr., against four townships of York County, to wit: the townships of York, Catawba, Cherokee, and Ebenezer, respectively, commenced September 18, 1883.

<p>Before Fraser, J., York, July, 1894.</p> <p>Action by D. S. Ramseur against Moore, Bruce & Co.</p>

<p>I. Marriage — Consummation.—An allegation in a complaintfor alimony, that plaintiff and defendant were duly married, that plaintiff has done her duty as wife and mother faithfully, is not an allegation of consummation of marriage, or of cohabitation after marriage. And the testimony showing that immediately after the marriage ceremony in Georgia, the parties separated and have never been together since, and in the absence of any Georgia definition of “consummation of marriage,” this court declined to declare that'there had been consummation. This term defined.</p> <p>2. Certificate — Abbreviations.—A certificate of marriage in another State signed “Michael Naughtin, J. P. C. Co., Ga.,” without further explanation, does not prove a marriage in fact.1</p> <p>3. Copy Record of Another State — Recording—Marriage—-Duress.—A copy record of marriage of a non-resident in Georgia, as there recorded is not entitled to be received as a verity by the courts of this State, where the laws of Georgia do not require such marriage certificates to be recorded. And besides, it is a fact in this case that the said ceremony was submitted to by defendant when under duress, and has never been ratified by him.</p> <p>4. Findings of Fact by the Circuit Judge, from testimony heard by him, approved.</p>

<p>Before Townsend, J., Barnwell, July, 1894.</p> <p>Appeal of W. Gilmore Simms from an order of sale in the case of the New England Mortgage Security Company against W. J. Kinard et al.</p>

<p>Before Gary, J., Orangeburg, September, 1894.</p> <p>Action by Caroline A. Milhous et al. against J. Martin Sally et al., commenced in May, 1893.</p>

<p>Before Townsend, J., Beaufort, July, 1894.</p> <p>Motions to vacate attachments in eight cases against A. J. Lipsitz, the several plaintiffs being L. Grollman, M. Ferst’s Sons & Co., D. O’Neill & Son, Geo. W. Steffens & Son, Savannah Grocery Company, Savannah Steam Bakery Company, M. Hornik & Co., and Waterhouse & Danner. The affidavit of L. Grollman was as follows:</p> <p>Personally appeared L. Grollman, who, being duly sworn, says: A. J. Lipsitz, defendant above named, has removed and disposed of his property with intent to defraud his creditors; that prior to the 10th day of March, 1894, said A. J. Lipsitz had three stores, one at Kean’s Neck, one on Bay street, in the town of Beaufort, and one on Bladen street, in said town; that on the 10th day of March, 1894, he made a bill of sale of his store on Bay street, in the town of Beaufort, to his brother-in-law, one Orlansky, as shown by the record of sale in the office of the register of mesne conveyance for Beaufort County. That on the 13th day of April, 1894, the said A. J. Lipsitz made his note and chattel mortgage of same date for the sum of two thousand eight hundred and thirteen dollars, to one S. Hirschmann, to be paid on the 22d day of May, 1894, which said mortgage was recorded on the 12th day of May, 1894; that by said mortgage he mortgaged to said Hirschmann all his stock of goods of every kind and description, including weights, measures, show cases, and store fixtures then in, or thereafter to be placed in, his store at Kean’s Neck, and his store on Bladen street, in the town of Beaufort, and, also, his horses, cows, wagons, and buggies at Kean’s Neck and in the town of Beaufort; that it is provided in said mortgage, that in case of default the mortgaged property shall be sold upon an advertisement of three days; all of this appears of record in the office of the register of mesne conveyance for Beaufort County. That deponent has been in the employ of the said Lipsitz for some time and is acquainted with his business; that said Lipsitz is indebted in considerable sums to a number of creditors, but that, from his knowledge of the affairs of said Lipsitz, he is satisfied that he was not indebted at the time of making said mortgage in any sum to the said S. Hirschmann, unless, perhaps, to the trifling amount of one hundred dollars. That he has been informed, that when the said mortgage was recorded, it was delivered by the register to a negro boy in the employ of the said Lipsitz; that the source of this information is the register himself, and the record of said mortgage showing delivery to a negro. That on the 12th instant, A. J. Lipsitz brought, in a buggy, to Kean’s Neck one Black, son of the sheriff of Colleton County, who immediately took charge of said store at Kean’s Neck, and closed it up under the direction of said Lipsitz, said Black claiming to act as the agent of the mortgagee; that immediately thereafter, on the same day, said Lipsitz returned to Beaufort, carrying with him in his buggy said Black, who, upon arrival at Beaufort, took charge of and closed in the same manner said store on Bladen street. That from the above facts and circumstances, and from deponent’s knowledge of the business of said Lipsitz, having been with him some two years, he is satisfied and charges that said mortgage was fraudulent, and made for the sole purpose of defrauding the creditors of said Lipsitz. That in April last, about the middle of the month, said Lipsitz and his brother removed a quantity of goods, about 3 o’clock in the morning, from the said Kean’s Neck store, and his brother carried them over to his store in Colleton County; that on the same day, A. J. Lipsitz brought a quantity of goods from Beaufort, and left them on the road at the house of one Daniel Holmes; that on same night, as he is informed by said Holmes, said A. J. Lipsitz, with his brother, took away said goods and carried them to the brother’s store in Colleton County. That in May last, said A. J. Lipsitz, about daylight one morning, carried off a quantity of goods in a wagon, telling deponent that he was going to bring them to his store in the town of Beaufort; but deponent after-wards discovered that this was false, and that said Lipsitz carried said goods to Clover Hill, in Colleton County, and left them there at the store of his brother’s son; that after finding this out, deponent charged said Lipsitz with the deception, and said Lipsitz then acknowledged it to him. That shortly after the making of the said mortgage, and after it had been put upon record, deponent spoke to said Lipsitz about the removal of goods by him surreptitiously as above stated, whereupon said Lipsitz told him that he had made said mortgage, and that he had done so for the purpose of keeping off his creditors, and he did not want to have too much stock on hand; that deponent told the said Lipsitz that he knew he was not indebted to said Hirschmann in the amount stated in the said mortgage, and that he, deponent, did not believe he owed Hirschmann anything; that said Lipsitz admitted that he did not owe Hirschmann the amount claimed, but said he owed him a little, and that he gave him the mortgage to keep off his creditors. That said Lipsitz has no other property than that covered by the mortgage, unless it be a small piece of real estate which is under mortgage, and deponent [sic] that his assets are far below his indebtedness.</p> <p>The judge made an order setting aside the attachments in all the cases. There was one case, that of John F. Werner & Co., represented by- other counsel, in which the motion to vacate was not resisted, it being admitted that the undertaking was fatally defective; this case, however, the judge took as a text for his decision, and in all the other cases referred to his decision in this case, deciding also upon special points in the other case. This decision was as follows:</p> <p>The plaintiffs in this action attached the property of the defendant, and this is a motion to vacate the attachment. The motion is based on several grounds'. The first relates to the insufficiency of the undertaking; the second to the exemption of the property under the homestead law; the third to the failure to show that a cause of action existed; the fourth to the failure to show fraud; the fifth to the omission to serve the defendant with copies of the affidavits and warrant; and the sixth to the falsity of the matters stated in the affidavit, which was relied on to show fraud on the part of defendant. The plaintiffs must rest the validity of the attachment on the status of the attachment proceedings at the time the warrant was issued. They cannot afterwards add anything to those proceedings by way of reply to motion papers or otherwise. Myers v. White-heart, 24 S. C., 203. I shall, therefore, consider the case as it was presented to the officer who issued the warrant. An inspection of the undertaking discloses the fact that the plaintiffs did not sign it; this is fatal, and it is null and void. Banlc v. Stelling, 31 S. C., 369; Wagener v. Broolcer, Id., 375. In addition to this, the blanks in said undertaking render it of no binding force. Clawson v. Sutton M. Go., 3 S. C., 420. There was, therefore, no jurisdiction, and the attachment was without authority, and must be vacated.</p> <p>I will notice briefly the other grounds relied on by the de-' fendant. The next ground, the second one, is that there was no affidavit to show that the property which, it is alleged, the defendant disposed of, was subject to attachment, or, in other words, was not a part of defendant’s homestead. The omission was not fatal to issuing the warrant; the warrant might issue without such affidavit, but no part of the homestead could be legally attached. It does not appear directly and definitely whether any part of the homestead was attached or not.</p> <p>Defendant’s third ground for this motion is, that the plaintiffs’ failed to show, at the time the warrant was issued, that there existed a cause of action against the defendant in favor of the plaintiff’s. I sustain this position; the affidavit was made by Mr. White, who does not swear to any personal knowledge of the cause of action nor to any information received from the defendant himself, but only to hearsay from the plaintiffs and the clerk of defendant, without stating what they said, and to having seen a verified itemized copy of an account of plaintiffs against defendant. This is too general and indefinite, and is insufficient; hence the attachment is invalid on that ground also. Code, § 250.</p> <p>The defendant’s fourth and sixth grounds relate to the affidavit which was relied on by the plaintiffs to show fraud on the part of the defendant, and was made the basis of the warrant. This affidavit was made by L. Grollman. The first objection to it is, that the matters therein alleged, even if true, do not show fraud on the part of the defendant; and the second is, that those matters are not true. I sustain the first objection, for the reason that the said affidavit, standing alone, discloses nothing on the part of the defendant inconsistent with what he might find it reasonably necessary and proper to do at any time in the usual course of his business, and nothing to create suspicion in any unbiased mind. I sustain the second objection for the reason that the affidavits introduced by the defendant disprove many of the facts sworn to in the affidavit of L. Grollman, explain many other’s, and altogether show clearly that there was no fraudulent intent on the part of the defendant in what he did.</p> <p>The fifth ground of the defendant is, that no copy, either of the affidavit or warrant, was ever served on the defendant. This, I think, sufficient of itself to vacate the attachment. So far as I know, our Supreme Court has not decided this question, but they strongly intimate in Sharp v. Palmer, 31 S. 0., 445, that copies should be served; and such seems to be the practice in New York (92 N. Y., 256; 84 N. Y., 1).</p> <p>Affidavits were offered in reply to defendant’s affidavits. Objection was made to their introduction. I overruled the objection, but stated at the time that I. would consider only so much thereof as was strictly in reply to the statements made in defendant’s affidavits, and nothing that tended to supplement plaintiffs’ case as first made, and I have done so.</p> <p>It is, therefore, ordered, adjudged, and decreed, that the attachment herein be, and it is hereby, set aside and vacated. It is further ordered, that the defendant have leave to apply at chambers for any orders that may be necessary to carry out this order.</p> <p>In the Hornik & Co. case, an additional point was thus decided: “The first point relates to the insufficiency of the undertaking, so did the first point in the Werner & Go. v. A. J. Lipsitz. My opinion in that case was that the undertaking was defective; and my opinion is the same in this case as to that point, but it is based on a different reason. In this case it appears that S. Eittenburg signed the firm name to the undertaking; this he could not do without proper authority, which nowhere appears. For this reason I consider the undertaking void.”</p> <p>In the O’Neill & Son case, an additional point was thus decided: “An examination of the undertaking shows that it was not signed by the plaintiffs. This is fatal to the validity of the attachment, and it must be vacated.”</p> <p>In the Grollman case, an additional point was thus decided: “In this case the undertaking was not under seal, nor was there a subscribing witness thereto, nor did the plaintiff serve copies of the warrant and of the affidavit on the defendant, and the affidavit on which the warrant was issued was insufficient, and hence the attachment is null and void and must be vacated, and it is so ordered.”</p> <p>In the Steffens & Sons’ case, additional points were thus decided: “In regard to the first ground, I find that the undertaking is without seal, and in my opinion that is fatal to the validity of the attachment, and my reasons for this opinion will be found under this same objection, in the case of M. Ferst’s Sons & Co. v. A. J. Lipsitz, which was heard with this case. Another objection to the undertaking is, that the firm name was signed thereto by Geo. W. Steffens, jr., a member of the firm, and no authority appears for his so doing. If the bond or undertaking had been otherwise valid, and, therefore, under seal, such signing would be a nullity, for the reason that a member of a copartnership cannot sign the firm name to a sealed instrument without proper authority; no such authority is shown in this case,- hence, for this reason also, the attachment in this case cannot stand.”</p> <p>In the Ferst’s Sons & Co. case, additional points were thus decided: “The objections to the undertaking in this case raises four questions: 1, whether the firm name of the plaintiffs was properly signed thereto; 2, whether the power of attorney authorizing W. J. Verdier to sign said firm name should have been filed with the undertaking or other attachment proceedings; 3, whether there should have been a subscribing witness thereto; 4, whether there should have been a seal opposite each name in said undertaking. These questions did not arise in the case of Werner & Co. v. A. J. Lipsitz. I find that the firm name of the plaintiffs was signed to said undertaking by W. J. Verdier, Esq., as attorney in fact; I find, also, that W. J.Verdier, Esq., had a power of attorney in proper form authorizing him to sign said name to said bond. Yet, from the affidavit of Thomas Tal bird, Esq., it appears that said power of attorney was not in the record a few days after the attachment, and hence I infer that it was not filed until after the attachment. This I consider an irregularity-sufficient to vacate the attachment. The Supreme Court intimates very strongly in Banlc v. Stelling, 31 S. 0., 371, that a power of attorney to sign the undertaking should be filed with the proceedings; and if it should be filed at all, I see no reason why .it should not be filed at the same time as the bond or undertaking. The next question in regard to the undertaking is, should there have been a subscribing witness'? A witness is not essential. The bond or undertaking could not be recorded without the affidavit of a witness, but it is not such a writing as the law provides for recording, or requires to be recorded; hence a witness is unnecessary to the creation of the paper. But since no paper of that kind can, under Buie 66 of the Circuit Court, be filed unless there is a subscribing witness, it is plain that a subscribing witness was necessary in this case, and the omission is, in my opinion, fatal. I do not think that Mr. Yerdier would fill the requirement as a subscribing witness, he having merely witnessed his own writing. The next question is, should there have been a seal opposite each name; or, in other words, should those who signed the undertaking have used seals? I think that the ‘undertaking’ mentioned in the Code in connection with the provisions for attachments is synonymous with and means the same thing as ‘bond.’ In sections 260 and 261, and also in other sections of the Code, the word ‘undertaking’ and the word ‘bond’ are used synonymously. A seal was always necessary to a bond in this State; without a seal, a bond of this kind would be of no binding force. Cantey v. Duren, Harper, 434. However, I conclude that a seal was necessary, and its omission is fatal to the validity of the attachment.”</p>

Before Watts, J., York, April, 1894. This was an action by the Tabb & Jenkins Hardware Company against John Gelzer, commenced February 6,1894.

Before Watts, J., Lancaster, March, 1894. Proceeding to revive judgment of Witherspoon v. Twitty.

Before Townsend, J., Aiken, June, 1894. Action by Sanders Williams against George Washington and others. Held: that the case was either a suit for partition or for the foreclosure of mortgages set up by the defendants, and not an action to recover possession of land.

Before Izlar, J., Beaufort, September, 1893. Action by Laura Green and others against O. W. Niver and others, commenced May 2, 1892. The Circuit decree was as follows: The plaintiffs, as heirs at law of one Adam Green, sr., bring this action agaiust the defendants to remove an alleged cloud from their title to the piece or parcel of land mentioned and described in the complaint.

Before Fraser, J., Bicliland, April, 1894. Action by Martha Hobbs and others against Frances Beard. The judge charged the jury as follows: The rule is, the plaintiff must recover on the strength of his own title, not only in this case but in all cases.

Before Watts, J., York, April, 1894. Action by J. A. Smith against Kate G. Walke.

<p>Before Gary, J., Lancaster, January, 1894.</p> <p>Action by J. T. Bryce, as administrator of Thomas W. Dewey, against James R. Massey and O. B. Jones, commenced December 19, 1872. See 35 S. 0., 127, for the former appeal. This appeal was by James R. Massey, defendant.</p>

Before GARY, J., Laurens, February, 1894. Proceeding by defendant to recover damages under an injunction bond, given by plaintiffs in the case of Mary Y. Garlington and George F. Young against George P. Copeland.

<p>Before Townsend, J., Barnwell, July, 1894.</p> <p>Action by Driah Dunn against tbeTown Council of Barnwell.</p>

<p>1. Notice to Produce — Secondary Proof — Evidence in Reply. — After a party, called upon by proper notice to produce a paper in his possession, has refused to produce it, and the opposite party has introduced secondary proof of its contents, the party so refusing cannot be permitted to introduce secondary evidence as to its contents, nor to introduce the paper itself.</p> <p>2. Ibid. — Ibid.—Ibid.—Testimony De Bene Esse — Attorneys—Case Criticised. — This rule applies to a case of alleged fraudulent alteration of a mortgage, in which the testimony was ordered to be taken by the master, and the mortgage was offered at the taking of testimony de bene esse, after the refusal to produce it at a reference before the master on the responsibility of the attorneys for the party in possession, it being doubtful whether documentary evidence can be introduced at the taking of testimony de bene esse of witnesses other than subscribing witnesses (as was not the case here, and parties being bound by the acts of their agents). This case distinguished from Marshall v. Marshall, 42 S. C., 436.</p> <p>3. A Point Not Raised on Circuit need not be considered on appeal, but considered here, as no objection was made to its consideration.</p> <p>4. Fraudulent Alteration of Mortgage — Debt.—The fraudulent insertion by the mortgagee of a second tract of land in his mortgage, renders the mortgage void as to the tract mortgaged as well as to the tract inserted; but it may be that the debt, secured by the mortgage, is not extinguished by the fraudulent alteration of the mortgage.</p> <p>5. Attorney’s Costs — Liquidated Contracts. — Under the statute abolishing attorney’s costs, except in “actions now pending,” or in case of then existing liquidated contracts, an attorney is not entitled to costs in an action instituted after the passage of this statute, to cancel a mortgage given to secure a liquidated contract of a date prior to the statute, as the action was not upon the contract, but in equity for cancellation.</p>

<p>Before Witherspoon, J., Orangeburg, May, 1894.</p> <p>This was an appeal by the State from the ruling of the Circuit Judge, that he had jurisdiction to hear and determine a motion made by Jeff. M. Way, defendant, for new trial on the ground of after discovered evidence, under leave granted to the Circuit Court to hear such motion pending an appeal, which had been suspended for that purpose.</p>

Before Norton, J., Barnwell, March, 1894. Action by James Key and others against Charlee Ann Weathersbee, Floyd W. Weathersbee, and others, for partition. Held: that there being no particular precedent estate in this case to support the remainders limited to the children of Floyd W. and Charlee Ann Weathersbee by the will of Bethaney Moore, that the same were void, and that the estates devised should pass as intestate property. 3.

<p>1. Findings or Fact. — Where there is a conflict in the testimony taken by a referee and reported to the court, this court will rarely, if ever, disturb the findings of the Circuit Court. In this case such findings are supported by the preponderance of the evidence.</p>

Before Townsend, J., Hampton, April, 1894. Actions by Rebecca H. Hiers against Annie E. Gooding, and same plaintiff against R. M. D. Rivers, for dower, commenced in January, 1891. The will of F. D. Rivers was as follows: In the name of God. Amen.

Before Fraser, J., Laurens, September, 1894. In this case the Hon. W. C. Benet, Judge of the First Circuit, sat in the seat of Mr. Justice Pope, who had been of counsel in the cause. It was a motion made by the executors of Hewlett Sullivan in July, 1894, to amend an execution issued in December, 1884, in the case of M. E. Babb, as clerk of court, &c., against Hewlett Sullivan.

Before Izlar, J., Barnwell, February, 1894. Motions by defendants to vacate attachments in the case of Simon Guckenheimer, Abe S. Guckenheimer, and Moses Guckenheimer, partners, as S. Guckenheimer & Sons, against Benjamin H. Dryfus and J. M. Rich, partners, as Dryfus & Rich, and I. Rich, and in the case of Adolph D. Benheim, Meyer Benheim, and Henry Benheim, partners, as Benheim Bros. & Co., commenced in September, 1893.

Before Fraser, J., Laurens, September, 1894. Action by J. W. Leake against George B. Anderson and his preferred creditors, commenced December 28, 1893.

<p>Before Witherspoon, J., Barnwell, November, 1894.</p> <p>Action by Isaac Michalson against W. A. All, jr., and others, partners, as W. A. All, jr., & Co., commenced October 2,1894.</p>

Before Gary, J., Abbeville, April, 1894. Action by R. M. Hill against the Georgia, Carolina and Northern Railway Company, commenced August 25, 1893.

<p>Before Townsend, J., Aiken, June, 1894.</p> <p>Action by M. L. Gleaton against Rosa A. Tyler for foreclosure of two mortgages, commenced June 15, 1893. The first mortgage for $625 was executed July 2, 1888, and the second mortgage for $75 executed on February 28, 1889. The contract with Andrew Jackson was made late in 1887, to commence with the year 1888. The Circuit Judge, in his decree, says: “I find from the testimony, that in 1887, one Andrew Jackson rented from Mrs. Tylei’, the defendant, one of the tracts of land which was subsequently covered by her $675 mortgage; that he was to have the land five years; that the rents were to be paid to the plaintiff; that the plaintiff did receive two bales of cotton, or the proceeds thereof, in the fall of 1888, and about the same amount in the fall of 1889, and some, not so much, in 1890, was shown by the receipts in evidence, and by other testimony; and that he credited the same on the store account of T. B. Tyler, the defendant’s husband.” The defendant appealed.</p>

Before Witherspoon, J., Greenville, April, 1894. Petition by George G. Wells and James L. Orr, late partners as attorneys at law, under the firm name of Wells & Orr, in the cases of Sullivan v. Parkins and Latimer v. Latimer.

<p>Before Witherspoon, J., Spartanburg, October, 1893.</p> <p>Action by Elias Drummond against John M. Nicholls, as sheriff of Spartanburg County.</p>

Action by W. E. Sullivan against James T. Williams and Alexander Stuart, commenced July 28, 1892.

<p>Before Fraser, J., Bichland, April, 1894.</p> <p>Action by J. D. Bickley against the Commercial Bank of Columbia, S. C.</p>

1 This was an application to this court in its original jurisdiction, for an injunction. On the call of the cause for a hearing, both sides claimed the right to open and reply, and the court ruled that the petitioner was so entitled. The petition was as follows: To the Honorable the Chief Justice and Associate Justices of the Supreme Court of the State of South Carolina: The petition of the city of Columbia respectfully showeth to your honors: 1.