Volume 45 — South Carolina Reports

Before Gary, J., Greenville, July 28, 1894. This was an action commenced November 29, 1893, by J. R. Cothran against J. E. Knight and Robert Coker for the possession of a lot of seed cotton and cotton seed, alleged to be in the possession of Coker. Coker, as constable for Scott, trial justice, had levied on the property under execution in the case of J. E. Knight against J. R. Cothran.

Before Benet, J., Camden, September, 1894. Motion by Louisa Hall to tax costs of appeal against Harrison H. Hall. The following is the circuit decree and exceptions: The plaintiff moved before the clerk of this court, on the 16th day of August past, to tax the costs and disbursements of plaintiff on appeal to the Supreme Court, and the clerk refused to tax said costs, upon the ground that the application was premature, the case not having been finally decided.

Before Gary, J., Columbia, January, 14,1895. Motion at chambers for rule to show cause why purchaser had not complied with bid. Rule issued, resale' ordered, and defendant appeals.

Before Fraser, J., Sumter, December, 1894. Motion to set aside execution for illegality. Motion granted. Plaintiff appeals. The following is the order of his Honor, Judge Fraser, and plaintiff’s exceptions: This case is before me at chambers on a motion to set aside an execution issued in the case, and for other relief. The facts stated in the motion papers are not controverted, and it is not necessary to restate them in this order.

Before Buchanan, J., Anderson, February 19, 1895. This was an action commenced on January 8, 1895, by Andrew W. Pickens, as trustee for the heirs of N. C. Clardy, deceased, against M. A. C. Bryant, N. R. Bryant, and W. J. Bryant, on a promissory note. The following are the pleadings, the order, and the exceptions: The complaint of the plaintiff by his attorneys shows: 1.

Before Buchanan, J., Greenville, March 28, 1895. This action was commenced by John M. Teague on 31st January, 1895, against the Southern Railway Company, for damages for carrying a lot of nursery stock past its destination, and not delivering it on a certain day. New trial granted. Plaintiff appealed.

Before Aldrich, J., Kershaw, July 31, 1894. This was an action commenced by Bouisa Hall July 22, 1892, against Harrison H. Hall, to set aside a deed of conveyance on the ground of fraud. Judgment for defendant. Plaintiff appealed. The following is the decree of Judge Aldrich, appealed from: This case has been before the Supreme Court (41 S. C., 163), and now comes before this Court the second time upon the record, the evidence taken at the trial, and the argument of counsel.

Before Gary, J., Greenville, July, 1894. Action commenced February 8, 1893, by R. H. Jacobs against Mattie Gilreath, on a joint and several note of Mattie and H. G. Gilreath, dated January 1st, 1886, for $530, due twelve mouths after date. On the note were endorsed sundry payments from January, 1887, to May, 1892, also the following: “This note is to bear eight per cent, interest from 1st January, 1891.

Before Benet, J., Edgefield, February 5,1895. This was an action brought, in March, 1894, by Mrs. C. F. Glover against John Glover, Wiley Glover, and Mitchell Glover, seeking partition of a homestead set apart to themas the widow and children of Mitchell Glover. Judgment for defendants. Plaintiff appeals.

Before Watts, J., Anderson, November 12, 1894. Action by Robinson, Boylston & McKeldin Co., a corporation under the laws of the State of Georgia, John R. Cary, Lewis H. Blair, F. D. Beveridge, partners under the name and style of Harvey, Blair & Co., and Co-Operative Alliance Store of Anderson, S. C. (in behalf of themselves and such other creditors as may come in and contribute to the expenses of this suit), against James A. Price, Mrs. Julia M. Price, Bank of Pendleton, E.…

<p>Before Watts, J., Pickens, September 22,1894.</p> <p>Action commenced January 8, 1894, by Tempy C. Stewart, Sallie Simmons, Susan Howard, F.W. Garret, Morning F. Garret, Alva V. Garret, Billie O. Garret, and Verner Howard and Minnie Howard, by their guardian ad litem, J. W. Howard, heirs at law of Moses Jones, and A. C.W7yly, J. W. Arnold, creditors of Moses Jones, against Corrie M. Blalock, Robert W. Blalock, and L. F. Blalock, for possession of lot of land in town of Fasley. Judgment in favor of heirs of Jones for two-thirds of lot. Plaintiffs appeal.</p>

<p>Before Benet, J., Camden, January 30, 1895.</p> <p>Action by John A. Armstrong against Robert Austin for foreclosure of mortgage, commenced August 21, 1891. Judgment for defendant. Plaintiff appeals.</p> <p>The following is the master’s report:</p> <p>This is an action for the foreclosure of a mortgage on real estate. In 1871 John Goff and others gave a mortgage of the real estate in question to the plaintiff, J. A. Armstrong. Subsequently Goff • sold part of the land to the defendant, Robert Austin. The defendant, Austin, sets up the plea, first, that he was a purchaser without notice of encumbrance upon the land, that the mortgage was not recorded in the book in the office of the register of mesne conveyance, kept for the purpose of recording deeds and mortgages, and that the law required them to be so recorded in separate books. By reference to the mortgage, it will be seen that it was recorded in “Tien and Mortgage Book” No. 2, pages 356 and 357. Now, I can find nothing in the General Statutes of this State in force at that time requiring the clerk to record mortgages of real estate in a book separate from mortgages of personal property. This mortgage is a mixed mortgage, and by reference to the set of books in which it was recorded, it will be seen that it was the custom at that time to so record mixed mortgages in this set of books. So I hold that Robert Austin had constructive notice of the mortgage, and bought subject to it. Another defense raised by defendant’s attorney is that the mortgage was not properly probated, the affidavit not being signed. The following is a copy of the affidavit: “South Carolina, Kershaw County. Personally appeared Wm. M. Shannon, and made oath that he saw J. A. Armstrong, John Goff, W. W. Goff, Sarah Yates, and Margaret Goff sign and seal the within lien and mortgage, and that he, with Arthur P. Tinning, witnessed the execution thereof. Sworn to before me, this 13th day of February, A. D. 1872. C. Shiver, Clerk.” Under the head of “Affidavits,” in vol. 1 of the American and English Encyclopaedia of Taw, I find it laid down, that the signing of an affidavit is not necessary, unless it is required by statute, that the party making the affidavit sign it. While it is the custom in this State for affidavits to be signed, I can find no statute requiring it. So I hold that the probate of the mortgage in question is properly executed. The case of Woolfolk v. Grciniteville Manu. Co., cited by defendant’s attorney, does not apply here. There the party who took the affidavits was not duly qualified to take an affidavit in this State. In the Revised Statutes of South Carolina, adopted in 1872, under the chapter of “Clerks of Court,” sec. 15, the clerk is empowered with the authority to administer oaths, &c. I have made diligent search for the index to book 2 of liens and mortgages, but cannot find it. I found the index to book 1 of this series for the year 1871, and also the index from 1876 to the end of the series. The defendant also contends that he entered into an agreement with plaintiff, to give plaintiff a certain amount of cotton in satisfaction of his mortgage, and that he did so deliver to the plaintiff the cotton. The evidence shows that Robert Austin did give some cotton to the plaintiff, but it was for rent of the land. Therefore, I find as matter of fact:</p> <p>I. That on the 13th day of February, 1872, John Goff and William W. Goff made and delivered to plaintiff their promissory note in writing, and thereby promised to pay to plaintiff the sum of $152.10' on or before the 1st of November, 1872, and if not paid at maturity, then to bear interest at two per cent, per month.</p> <p>II. That at the date of said note, and as collateral for the payment of said note, the said John Goff and WT. W. Goff, together with Sarah Yates and Margaret Goff, did grant, bargain, sell, and release, by way of mortgage to the said plaintiff, the land described in the complaint.</p> <p>III. That said mortgage was, on the 13th day of February, 1872, recorded in the clerk’s office for Kershaw County, in lien and mortgage book No. 2, pages 356 and 357.</p> <p>IV. That there is remaining due and unpaid upon said note and mortgage up to date of this report the sum of $335.40.</p> <p>V. That part of the mortgaged premises were, subsequent to the date and recording of said mortgage, sold and conveyed by the said John Goff, W. W. Goff, Sarah Yates, and Margaret Goff to the defendant, who is now in possession of the premises described in the complaint.</p> <p>That the defendant, Robert Austin, rented the land in question from plaintiff, and paid the rent in cotton for the years 1885,1886, and 1887, but refused to pay rent in 1888, and has not paid any since.</p> <p>I conclude as matter as law:</p> <p>I. That the defendant, Robert Austin, had constructive notice of the mortgage of John Goff and others to J. A. Armstrong, and bought the land subject to said mortgage.</p> <p>II. That the probate of the mortgage in question is sufficient, and that it was not necessary for the affidavit to have been signed by the deponent.</p> <p>III. That the condition of the mortgage having been broken, the property should be sold, the equity of redemption barred, and the proceeds of sale applied to the payment of the mortgage debt.</p> <p>The defendant excepts to the report of the master on the following grounds:</p> <p>1. That the master erred in holding that Robert Austin rented the land in question from plaintiff, such conclusion being irrelevant to the issue, unwarranted by the allegations of the complaint, and contrary to the evidence.</p> <p>2. That the master erred in holding that Robert Austin had constructive notice of the mortgage of John Goff and others to J. A. Armstrong, and bought the land subject to said mortgage, as said mortgage was recorded in an improper book, and no proof was adduced to show that said mortgage was ever indexed as required by law.</p> <p>3. That the master erred in holding that the probate of the mortgage in question was sufficient, and that it was not necessary for the affidavit to have been signed by deponent, as the evidence showed that there was no name signed to said affidavit, and that there was no jurat affixed thereto, in that there was no seal, and the name of no officer authorized by law to administer oaths, and that said affidavit is inherently insufficient in itself.</p> <p>4. That the master erred in his third conclusion of law, because it would be inconsistent and illegal if one, any or all of the exceptions in the premises are correct.</p> <p>The decree is as follows:</p> <p>This is an action for foreclosure of a mortgage on real estate. The cause was heard by me on defendant’s exceptions to the report of the master, wherein he decided in favor of the plaintiff, and held that the mortgage should be foreclosed and the property sold. The testimony on both sides is meagre and unsatisfactory, and some of it, offered by the plaintiff, was inadmissible, but not objected to. The complaint alleges that on 13th February, 1872, John Goff and William W. Goff made and delivered to this plaintiff their promissory note for $152.10, to mature 1st November, 1872, with interest at two per centum per month after maturity. That as collateral for the payment of said note, the said John and William Goff, along with Sarah Yates and Margaret Goff, mortgaged to the plaintiff the land in question, some 200 acres. That said mortgage was duly proved and recorded, the mortgage and the recording being of even date with the note. That two payments were made on said note, $45 on Novémber 12, 1872, and $100 on March 9, 1875. That the mortgaged premises were, subsequent to the date and recording of said mortgage, sold and conveyed by the said John Goff, W. W. Goff, Sarah Yates, and Margaret Goff to the defendant, who is now in the possession of said premises.'</p> <p>Austin, the defendant, admits that the parties named above, sold and conveyed the land to him, or rather “a part of the tract of land,” and he avers “that he was a purchaser for valuable consideration, without legal notice of any prior encumbrance, the proper index in the office of the register of mesne conveyance for Kershaw County relating to real estate not showing that any mortgage on said tract of land had been recorded in the proper books of said office.” And he “therefore denies that the mortgage set forth in the complaint was properly or duly recorded,” and “denies that he had legal notice of the same.” For a further defense, he alleges that he learned of plaintiff’s claim in 1885, and that he agreed to pay him three bales of cotton to satisfy said claim; and that he did pay the three bales in full satisfaction of plaintiff’s claim, paying one bale in 1885, one bale in 1886, and one in 1887.</p> <p>The evidence before the master fails to show at what time or on what terms the defendant entered into possession; but the complaint alleges, that he purchased and had a conveyance from the makers of the mortgage “subsequent to the date and recording of said mortgage.” The plaintiff, in his testimony, admits the payment of the cotton, but says it was paid him as rent. If such be the case, no evidence is adduced to show when the plaintiff ceased to regard the defendant as a purchaser in possession, and to regard him as a tenant. He says, “I never received anything from him myself from 1871 to 1885. Mr. McDowall did” (his agent). My view of the case, however, makes it unnecessary to clear up the confusion as to the payment of cotton, or to decide whether it was paid as rent or as satisfaction of the plaintiff’s mortgage claim. The plaintiff’s allegation that the land was sold and conveyed to the defendant subsequent to the date and recording of the mortgage, leaves only one question to be decided, viz: Was the defendant, Austin, a subsequent purchaser for valuable consideration without notice? Indeed, the question may be framed more simply still — thus: Was the defendant a subsequent purchaser without notice? For no issue is raised as to the consideration. 'The master held that the defendant must be charged with constructive notice. From this conclusion of law, I am compelled to dissent.</p> <p>The mortgage in question was a mixed mortgage — a.lien and a mortgage — embracing a lien on crops, a lien on mules, and a lien on real estate. It was an agricultural lien, a chattel mortgage, and a mortgage of real estate, all in one. It was executed in 1872 (according to the evidence and the pleadings, although on its face it says 1871). At that time the law with reference ‡0 recording required that a book of a certain size be used, and that the proof must be recorded with the writing, and that to the records indexes should be prepared in books of a size prescribed. The law also required that conveyances of real estate should be recorded in books kept for that purpose. See Revised Statutes 1872, chapter on Register Mesne Conveyance, sec. 5, page 148. The mortgage shows that it was filed February 13, 1872, and “recorded same day in lien and mortgage book No. 2, pages 356 and 357.” The report of the master shows that there was no index to this “Book No. 2,” while there was to “Book No. 1” and others. There is no evidence that it was recorded in the book kept for the recording of conveyances of real estate. All that is shown 'by the testimony is that it was recorded in “Tien and Mortgage Book No. 2,” to which there was no index. As a mortgage of real estate it surely should have been recorded in the book kept for that purpose. But it is urged that being a mixed mortgage it was proper and sufficient to record it in the lien and mortgage book. This view I cannot assent to. • It is held that when a mortgage includes both real and personal property, it should be recorded both as a mortgage of realty and a chattel mortgage. See 20 Am. & Fng. Enc. of Taw, 558.</p> <p>The position of the subsequent purchaser is to be considered. When he contemplates purchasing a tract of land, and desires to be informed as to prior encumbrances, does the law require him to look in the books of record of agricultural liens and chattel mortgages? Is it not sufficient that he inspect the records of mortgages or conveyances of real estate in books required by law to be kept for that purpose? , It must be great injustice and an undue and unauthorized stretching of the law of notice to hold that the ■defendant, Austin, is to be charged in conscience with constructive notice of the Armstrong mortgage. ' Had the defendant been purchaser of one of the mules, covered by the same mortgage, the case might be different.</p> <p>In addition to the foregoing ground, the defendant excepts to the finding of the master, that the probate of the mortgage was sufficient. This exception must be sustained, and the master’s report overruled on this ground also. Endorsed on the mortgage is the form of an affidavit of one •of the witnesses to the mortgage, the late Wm. M. Shannon, Esq., but it is not signed by Mr. Shannon. And th is signed only “C. Shiver, Clerk,” in handwriting entirely different from the “C. Shiver, Clerk,” which follows the •endorsement of the filing and recording; yet both endorsements bear the same date — 13th February, 1872. Assuming that one “C. Shiver” was clerk of the court at that time, it is assuming too much to say that the “C. Shiver” of the jurat is his signature. There is no proof that it is his signature, and no evidence as to which of the two signatures is his. Nor does it appear that the writer was clerk of the •court; simply “Clerk;” not even “C. C. P.;” and there is no seal. It may be that the signature of Mr. Shannon is not necessary to make the affidavit sufficient, as seems to be the holding of the Supreme Court in Fuller v. Missroon, 35 S. C., 331. "It may be that the failure to affix the seal to the signature of the clerk of the court would- not prevent ■due probate. It may be that a court may take judicial notice of the fact, that in 1872 one “C. Shiver” was clerk of the court for Kershaw County. Still, I cannot hold that the mortgage in question was duly and sufficiently probated when the pirat is signed only “C. Shiver, Clerk,” without any testimony that such was the signature of the “C. Shiver” who may have been clerk of the court. In the absence of the signature of the affidavit especially, there should be clear proof that the affidavit was made before the officer authorized by law to administer oaths and take affidavits in such cases. There is no such proof.</p> <p>It is, therefore, ordered, adjudged, and decreed, that the report of the master herein be, and the same is hereby, overruled. Ordered, further, that the complaint be dismissed, with cost to the defendant.</p> <p>From this decree the plaintiff appeals, on folio-wing exceptions:</p> <p>1. That his Honor erred in holding that the mortgage of plaintiff was not properly recorded, and was not constructive notice to the defendant.</p> <p>2. That his Honor erred in holding that there is no evidence that the book in which the said mortgage was recorded was a book kept for the record of mortgages of real estate.</p> <p>3. That his Honor erred in holding that the said mortgage was not properly probated for purposes of record.</p> <p>4. That his Honor erred in holding, in effect, that he-would not take judicial notice that C. Shiver was clerk of the court at the time of the record of the mortgage, and in holding that his signature, “C. Shiver, Clerk,” was not a sufficient attestation of the affidavit.</p> <p>5. That his Honor erred in holding that there was no-evidence that the signature to the affidavit was in the handwriting of C. Shiver, the clerk, and in partly basing his decree on that ground, when no such question was made before the master, or in the defendant’s exceptions to the master’s report, and it was never questioned before the master that the signature was that of C. Shiver, the clerk of the court.</p> <p>6. That his Honor erred in overruling the master’s report and dismissing the complaint.</p>

Before Aldrich, J., Union, March 26, 1895. Action by the British American Mortgage Company against A. Frank Smith, Jane C. Nott, Glenn D. Peake, et al., for foreclosure of mortgage, commenced in 1891. Facts are fully stated in following report of referee: This is an action brought by the British and American Mortgage Company against A. Frank Smith and others to foreclose a certain mortgage.

Before Fraser, J., Spartanburg, October, 1894. Action commenced by Joseph Finley against J. N. Cudd and O. S. Roberts. Judgment for defendant. Plaintiff appealed in forma pauperis. Appeal sustained, and this contest arises over taxation of plaintiff’s costs on appeal.

Before Aldrich, J., Raurens, March 2, 1895. This was a petition filed April 16th, 1894, by Rebecca Hill,. seeking dower in a tract of land in Raurens County, in possession of W. R. and R. R. Gray. Probate judge granted the petition, and upon appeal, Judge Aldrich affirmed his order. Defendants appeal.

Before Buchanan, J., Greenville, February 12, 1895. Action brought by Lyman Littlejohn against Southern Railway Company, on the 4th of February, 1895. Summons and complaint served on station agent of defendant company. Upon motion, Circuit Judge set aside service. Plaintiff appealed.

Before Gary, J., Walhalla, July 5, 1894. Action by Mrs. Hannah G. Beard against Cornelia Jones and A. B. Grantt, as executors of the last will and testament of Christopher Jones, deceased, and as to Mrs. Cornelia Jones, as devisee under said will, C. Furber Jones, Alice Kelly, Anna D. Kelly, Lee O. H. Jones, Nettie Jones, and Haynes Jones, commenced August, 1893, for appointment of a receiver, accounting by executors, and construction of will of Christopher Jones.

<p>1. FINDINGS OF Pact by the Circuit Judge upon issues purely legal in their nature, submitted to him by consent, -will not be reviewed by this Court.</p> <p>2. Exceptions. — An exception imputing as error that a “decree is contrary to the law and evidence,” is too general to have consideration by this Court.</p>

Before Benet, J., Columbia, Nov. 1st, 1894. Action by Ludden & Bates Southern Music House against Mrs. M. A. Hornsby, for the possession of an organ under the following instrument: Exhibit A — Piano and Organ Lease. — This certifies that Mrs. M. A. Hornsby, now residing at Columbia, S. C., have received of Ludden & Bates Southern Music House, one Packard organ, style 13, No. 25,047, and valued at $115, which I am to use with care, and to return in as good condition as it now…

Petition in the original jurisdiction of this Court by the Hampton and Branchville Railroad and Lumber Company for a writ of injunction, to enjoin A. T. Goethe and M. W. Ulmer from constructing a tramway across the right of way of one of petitioner’s projected branches.

Before WATTS, J., Walhalla, October 5, 1894. Action by Mrs. M. R. VanDiviere against Burt Mitchell, C. E. O. Mitchell, Z. H. Carwile, W. P. Anderson, and Elizabeth Albritton, commenced 25th April, 1894, for foreclosure of mortgage on lands held by Albritton.

Before Watts, J., Anderson, October 29,1894. Action by A. A. Davis against S. D. Childers, for possession of personal property, and for damages for detention and malicious seizure. The Judge charged the jury as follows: This is an action brought by A. A. Davis against Messrs. Childers and Laboon.

Before Gary, J., Charleston, November, 1894. Action by John S. Mitchell against Charleston Bight and Power Company, for damages for injuries sustained by him in coming in contact with one of defendant’s live wires lying broken on the street. Commenced January 29,1894. The defendant requested the Judge to charge as follows: 1.

Before Witherspoon, J.,.Pickens, May 28, 1894. Elias Day & Co., October 17,1892, presented to commissioners of Pickens County a sworn itemized claim for $3,346. The report of the commissioners is as follows: On the 24th day of November, 1892, there was a meeting of the board of county commissioners, at which the following business was transacted: The county commissioners met this day. Present, Matthew Hendricks, E. S. Griffin, and J. N. Murphree.

<p>1. Guardian Bond — Surety.—A discharge of a surety on a guardian’s bond under S. C. Rev. Stat., sec. 2170, releases him from liability for property of the ward that may come into the hands of the guai-dian thereafter, where a new bond is executed, but not as to moneys in the guardian’s hands at the time thereof, if no new letters of guardianship are issued.</p> <p>2. Deposition — Objection.—An objection to the admission of a deposition de bene esse, on the ground that it was not shown to have been taken before an officer authorized by law to take the same, is waived, where the only objection taken at the trial was that it was not the best evidence of the facts sought to be disclosed.</p> <p>3. Surety — -Accounting.—An accounting by a guardian is not necessary before the surety could be discharged from further liability, under sec. 2170, Rev. Stat.</p> <p>4. Ibid. — LETTERS of Guardianship. — It is not necessary that letters of guardianship should be revoked in order to discharge the surety from further liability, under sec. 2170, Rev. Stat.</p> <p>5. Dower. — Husband’s Debts — Widow.—Land set apart to a widow in lieu of her claim of dower, is not liable for the indebtedness of her deceased husband.</p>

Before Wallace, J., Spartanburg, August, 1893. Action by J. R. Littlejohn against the Richmond and Danville Railroad Company, for damages for injuries to his person by mashing his foot between the bumpers on a train of freight cars standing across a traveled street in the town of Gaffney. At close of plaintiff’s testimony a nonsuit was granted. Plaintiff appeals.

Before Aedrich, J., Spartanburg, February 6,1895. Action by W. H. Gibbes, jr., & Company against T. G. McCraw, for $188.75, for machinery alleged to have been bought by plaintiffs for defendant on his order, and paid for by plaintiffs. Commenced July 5, 1893. Nonsuit granted. Plaintiffs appeal.

Before Townsend, J., Sumter, October, 1894. Action by Ruddeu & Bates against C. W. Sumter, for possession of a piano. The facts are fully stated in the opinion. Judgment for defendant. Plaintiff appeals.

Before Aldrich, J., York, November, 1894. Action by Marshall, Wescoat & Co. against Edward A. Crawford, sheriff of York County, for possession of stock of goods. The following is the charge of the Circuit Judge: The pleadings in this case present the issues which you are called to pass upon.

Before Aldrich, J., Columbia, September 14, 1894. Held: in the language of the master in his fortieth finding of fact of his first report: “That the closing of the partnership bank and opening of the chartered bank was thoroughly published, and circulars issued to the debtors of the partnership bank, informingthem of the change;” and thatthe defendant bank, as well as all creditors and…

Before Watts, J., Greenville, January 10,1895. The action was originally brought to foreclose a certain mortgage set out in the complaint, and all persons holding liens upon the mortgaged property were made parties.

Before Izear, J., Barnwell. The facts are fully stated in the opinion of the Court. The Circuit Judge dismissed the complaint upon the ground that the action was barred by the statute of limitations. Plaintiff appeals.

Before Townsend, J., Beaufort, July, 1894. Held: or claimed to hold, the said alleyway adversely, or ever exercised any act of ownership over said alleyway, or act showing an intention to hold it adversely, and his Honor erred in finding that her possession was adverse. VIII. Because the evidence in the case did not establish adverse possession in Martha A. Barnwell or any one else.

Before Gary, J., Beaufort, February, 1895. Action by Nancy Jenkins, as administratrix of estate of Joseph Jenkins, against Justin McCarthy, for $7,000 damages, for causing death of Joseph Jenkins by carelessly and improperly driving piles, which fell upon him while at work in an excavation and instantly killed him. . Circuit Judge granted nonsuit at close of plaintiff’s testimony. From this order the plaintiff appeals.

Before Buchanan, J., Abbeville, January, 1895. Held: in which they were successful. Salinas & Co. then commenced this action for betterments. The defendants interposed plea of res adjudicata., and demurred. The Circuit Judge overruled both, but at close of plaintiffs’ testimony, granted a nonsuit. Plaintiffs appeal from the order of nonsuit.

Before Audrich, J., Camden, July 27, 1894. Action by Herman Baum and Mamus Baum, as Baum Brothers, assignees of Herman Baum, against W. D. Trantham, N. E. Trantham, J. R. Falls, Appleton & Co., Patterson, Renshaw & Co., and J. T. Hay, for foreclosure of a mortgage, and to set aside a sheriff’s deed of the land, covered by the mortgage to J. T. Hay, commenced December 13,1892.

<p>1. Adverse Possession. — A person who lias been in adverse possession of land for the statutory period has a good and valid title by virtue of such adverse possession, which may be affirmatively asserted against one not protected by some disability.</p> <p>2. Ibid. — State—Limitations oe Actions. — Adverse possession of land for twenty years will bar an action by the State.</p> <p>3. Ibid. — Nonsuit.—The payment of taxes on land for a number of years, and it not appearing that the State sets up any claim to the land, is sufficient testimony to submit to the jury the question that the State has parted with her title, and a nonsuit was properly refused.</p>

Before Witherspoon, J., Mount Pleasant. Action by James M. Lawton, as administrator de bonis non of James M. Lawton, deceased, against W. H. Perry and others, to subject lands of decedent in the hands of his heirs to the payment of his debts. This appeal is from the order of Judge Witherspoon, denying the right of plaintiff to have his attorney’s fees paid out of the common fund.

Before Witherspoon, J., Greenville, April, 1895. Action for partition by Julius N. Morgan against John W. Morgan, William Morgan, Francis M. Morgan, Alice Morgan, Namie C. Morgan, and Abraham Cook and W. T. Glenn, as administrators of the estate of Jeremiah Glenn. From the Circuit decree all parties appeal, except defendant, John W. Morgan.

Before Fraser, J., Yorkville, July 11, 1895. Petition by W. M. Allison for homestead as of realty in house and lot sold by him under executory contract to W. B. DeToach. The following is the Circuit decree: This case came before me on exceptions to the homestead as laid off by the commissioners. It is a case in which no process has been issued. The commissioners in their return set off both real and personal property. 1st. As to the real estate.

Before Aldrich, J., Newberry, April 11,1895. Action by Nathaniel Gist against Western Union Telegraph Company by the following complaint: I. That the defendant is a body corporate and politic, and as such is capable of suing and being sued in said State. II.

<p>Bills and Notes — Nonsuit—Makers—Endorsers.—The testimony in this case shows that the plaintiff treated and understood the parties, whose names were written on the back of the note as endorsers, and, as such, they are entitled to all the requirements of the law merchant at the hands of the bank. Nonsuit proper.</p>

<p>Before Townsend, J., Sumter, October, 1894.</p> <p>Action in foreclosure by Sumter Building and Toan Association against Adam Young. Complaint dismissed on Circuit. Plaintiff appeals.</p>

Before Townsend, J., Sumter, January, 1895. Action by Sumter Building and Loan Association against D. James Winn. The following is the Circuit decree: This is an action for the foreclosure of a mortgage. D. J. Winn was a member of the plaintiff corporation. In December, 1885, he borrowed money from the association. He bid .off eight shares ($1,600) at 41J per cent, premium. From this transaction he actually received but $940, but gave his bond for $1,600.

Before Gary, J., Beaufort, February, 1895. Action in claim and delivery on the following complaint: I. That the plaintiffs, Alice Badson, Susanna Badson, Mary Badson, Buey Badson, Joseph Badson, and Baurena Badson, are infants under the age of twenty-one years. II. That on the 2d day of July, 1894, at Beaufort, S. C., the said Kate Badson was duly appointed by the judge of probate of this county guardian of said infant plaintiffs for the purposes of this action. III.

Before Ardrich, J., Camden, June, 1894. Action in foreclosure by Hyman Kaminsky, as assignee of John R. Palls, against W. D. Trantham and others, among them J. T. Hay, who was in possession of the premises.

Before Townsend, J., Florence, November, 1894. Action by William E. Brown and James H. Brown, as executors of John A. Brown, against the heirs at law of the deceased, for an accounting, calling in creditors, &c. The Circuit Judge disallowed the claims of the creditors of A. Q. McDuffie, as master, against the estate of Brown, who was surety for McDuffie. From this judgment the creditors of McDuffie appeal.

Before Aldrich, J., Beaufort, February, 1893. Action by the State of South Carolina against the Port Royal and Augusta Railway Company, a corporation chartered under the laws of this State, and an action by Henry B. King and David Kohn, Fdward Popper, and William M. Kohn, copartners as Kohn, Popper & Co., against the Port Royal and Augusta Railway Company, a corporation created by and under the laws of the State of South Carolina, the Central Railroad and Banking Company of…

Application by Mary Jane Ross, in the original jurisdiction of this Court, for a writ of mandamus to compel the assessor and the treasurer of the city of Charleston to reduce the assessment of her real property within the limits of said city to that for county and State taxation.

Before Aldrich, J., Chambers, June, 1893. On the 2d of June, 1893, Judge Aldrich, upon the ex parte application of John H. Averill, receiver, made five orders in the above stated cases, in substance as follows: 1. Order allowing the receiver to sell and dispose of certain material and engines. 2. Order directing the receiver to make certain expenditures on the wharves and trestles of the company. 3.

Before Aldrich, J., Beaufort, February, 1893. The following is so much of the opinion of Judge Aldrich in the second case as is necessary, in connection with the statement of facts in the opinion, to understand the question involved; The complainants filed their complaint as stockholders, asking that their corporation may be required to resume the exercise of its public duty; for an injunction restraining the further usurpation of its franchise by lawless intruders; to have…

Before Aldrich, J., Greenville, July, 1895. The appellant, George Johnson, was indicted for burglary for entering the fowl house of A. H. Bridwell, situate across the public highway from the dwelling, and stealing therefrom chickens. The jury returned a verdict of guilty.

Original petition on the relation of the board of school commissioners of the school district of the city of Columbia against L,. B. Folk, treasurer of Richland County, for mandamus, to compel payment to petitioners of the proceeds of poll taxes collected by trial justices without fine.

<p>1. Exceptions — Appeae—Findings oe Fact — Case Foeeowed. — Exceptions which, do not contain findings of fact excepted to will not be considered. Following Jumper v. Bank, 39 S. C., 296.</p> <p>2. Facts — Appeae—Supreme Court. — This Court cannot review the facts in a law case submitted to a Judge for adjudication, and as the questions of law raised here depend upon the facts, the appeal cannot be considered.</p>

Before Benet, J., Yorkville, September, 1895. Held: in the further sum of $730 for rents received by him from her 200 acres of land. He had admitted that he had so ear-marked each investment he had made of his wife’s money that he could at any time ascertain the exact amount of her separate estate, increased by interest.

Before Townsend, J., Edgefield, August, 1895. The following is the decree of the Circuit Judge upon the motion of plaintiff to have the sale set aside, the attorney for plaintiff being the purchaser at foreclosure sale: The master in above cause having heretofore, on August 3d, 1895, filed his report, in which he says that the tract of land described in the complaint herein was sold by him on salesday in February, 1893, and was bid off by the plaintiff for the sum of $804,…

<p>Indictment — Amendment—Sec. 57, Criminad Code, Construed.— An indictment which, charges that an offense was committed “in the year of our Lord one thousand eight hundred and ninety- ,” may be amended upon the call of the case for trial by filling in the blank with the proper year. Construing sec. 57, Criminal Code.</p>

<p>Before Townsend, J., Lexington, January, 1895.</p> <p>Action in claim and delivery in court of Trial Justice J. A. Muller by W. E. Quattlebaum against Jasper Taylor. The following is the decree of the trial justice:</p> <p>This is an action of claim and delivery, brought by the plaintiff against the defendant for the recovery of a certain iron gray mare mule, named Beck, about eleven years old; and the facts, as appears from the testimony taken at the trial on the 31st day of October, are as follows:</p> <p>1. On the 14th day of March, 1892, the defendant sold the mule in question to one James A. Caughman, for the sum of $125, on a credit, and on the same day James A. Caughman gave defendant his note, under seal, ■ for the amount of purchase money, payable on the 15th day of October, 1892, with interest from date; and, on the same day, in order to secure the payment of said note, James A. Caughman gave the defendant a bill of sale over the mule, and on the 15th day of March; 1892, the defendant filed the same in the clerk of court’s office for this county. In the latter part of October, 1892, James A. Caughman traded the mule, on a Saturday, to one J. B. B. McCartha, for a mare. Both the defendant and Caughman testify that, before the trade was made, Caughman went to the defendant and asked permission, which was given, defendant saying, “I don’t care what you do with the mule just so I get my money.” On the day following the trade, Sunday, McCartha heard that Taylor had a mortgage or bill of sale over the mule, and on the next morning, Monday, McCartha wrote to Caughman in reference to the matter, but the party he sent did not find Caughman, owing to the fact he had gone to Columbia.' McCartha, learning that Caughman would return on that day’s train from Columbia, went to Eewiedale, where Caughman was to get off, in order to see him upon his return. When McCartha got to Eewiedale he found the defendant there, and tells him what he had heard, and asked if it was true, to which the defendant, laughing, replied that he had a bill of sale, but had told Caughman he could trade the mule. All he wanted was his money for it, and if he, McCartha, had the mule, to keep it. McCartha, not being satisfied, waits for Caughman, and when he returns, asks him about the matter, to which Caughman replied in the affirmative, but stated that Taylor had given him permission to trade the mule. McCartha, still seeming dissatisfied, asked Caughman to go with him up to S. P. Drafts’ store, in the town of Dewiedale, and they together find Taylor and call him out, and in the presence of a negro, named William Jefcoats, who testified in the case, asked Taylor about the matter. At this conversation McCartha, Caughman, and. the negro, Jefcoats, swore that Taylor gave Caughman permission to trade, without reserving any rights in himself to any claim over the property under his bill of sale. Taylor, upon the other hand, says he only gave consent to 'trade upon condition that Caughman paid him for the mule. At this the parties separated, McCartha taking the mule and Caughman the mare. McCartha stated that had Taylor said he would hold his interest in the mule until he received payment from Caughman, he would have rued back and not have taken the mule away from Dewiedale that evening; Taylor holding on to the proposition that he would not have consented to the trade without the understanding that he was to be paid, and that it was not his intention, in giving this consent for the trade, that he was to release his interest under the bill of sale until he was paid in full. The testimony upon this point is very conflicting, and while both parties seem to be honest in their statements, then there certainly was a misunderstanding between them in relation to the matter; and their minds having failed to come together sufficiently to form a contract as in law would bind Taylor, I do not consider that Taylor surrendered his right over the property simply by the consent to trade, and to Caughman and McCartha at Dewiedale after the trade; and if this matter was being adjusted between McCartha and Taylor, I would not hesitate to find that McCartha took the mule subject to bill of sale of Taylor. Before I go further I will state that it appears from the testimony that, after the trade was made, Caughman made several payments upon his note, as follows: January 2d, 1893, $10; February 28th,' 1893, $25; May 1 (no year), $20; November 13 (no year), $9. This is all that has been paid upon the indebtedness.</p> <p>3. It appears that Taylor allowed McCartha to hold the mule and exercise all the rights of ownership over him from the time of the trade, in the latter part of October, 1892, and after the note was due, until he seized the same on the 24th day of October, 1894, two years; even allowing him, tacitly, to sell the mule to one Frank Aldrich, who kept it about one year, when he returned it to McCartha because he could not pay for it, and only one time during this period did defendant say anything to McCartha about the matter, which was eight or nine months after the trade, when Taylor went to see McCartha, and he and McCartha went to see Caughman about his (Caughman) paying for it, and at which time, as all the witnesses, both for plaintiff and defendant, say, Caughman asked Taylor to wait on him a little longer, and he would try to pay the note; to which Taylor consented. McCartha stated that Taylor during this entire time never demanded possession of the mule, and Taylor does not deny this statement; and the only testimony going to show that Taylor claimed any interest in the mule is, that Taylor and his son, Fred, who testified, say, at the time Taylor and McCartha went to see Caughman about the payment, Taylor told McCartha not to trade the mule. until he got his money out of Caughman; this statement McCartha positively denies.</p> <p>4. In June, 1894, McCartha sold this mule to the plaintiff in this action, for a valid consideration, and says nothing to him about the Taylor bill of sale, and plaintiff knows nothing about it until the 24th day of October, 1894, when the defendant goes personally and seizes the mule, then in plaintiff’s possession, under his bill of sale; whereupon plaintiff commences this action. Counsel for the defendant advanced the position, that the filing of the bill of sale,by defendant in March, 1892, was constructive notice to the plaintiff, and that he is bound by it under the law. I can see where this position would be a good one, and should prevail if the plaintiff had purchased from Caughman, the mortgagor, but the law certainly does not require the purchaser of personal property to trace title back further than that of the person in whose hands he finds it, and the plaintiff, not knowing anything about the interest which Caughman held once in the property, he is not expected to search the records, except in so far as McCartha’s interests, from whom he purchased, are affected. I am, therefore, compelled to find, that the plaintiff in this action is an innocent purchaser for value without notice.</p> <p>5. But even if this was not the case, and the position of counsel for the defendant was tenable, under the authorities cited by the plaintiff’s counsel, to wit: Dtmlap v. Goodwin, 22 S. C.; 549; Hand v. R. R. Co., 12 S. C., 250; Jones v. Htidson, 23 S. C., and the late case of Stimmer v. Kelly, 38 S. C., I would be compelled to hold, according to the facts as developed in this case, that the defendant is estopped from setting up any interests which he might have had under his bill of sale against the rights of the plaintiff herein. In the case of Summer v. Kelly, 38 S. C., the Court says: * * * “in the case of chattels of personal property, the condition being broken, works a forfeiture, and, as forfeitures are not protected or favored in law, any act of the mortgagor, either voluntary postponement of the security or any act of his whereby he shows his election to accept the payment of his debt intended to be secured by the mortgage, is made to operate as discharging the mortgage, and as revesting the title in the chattel in the mortgagor.</p> <p>It will be seen that the leading authors on the subject of chattel mortgages all maintain this position. Mr. Herman, in his work on Chattel Mortgages, at page 483, says: “Thus a demand of the amount due on the note after it becomes payable, is a waiver of the forfeiture of the mortgaged property, and the acceptance of a part payment or payments in full, after the time for payment has expired, is a waiver of the forfeiture under the mortgage.”</p> <p>The facts in this case before me show, beyond all controversy, that the trade between Caughman and McCartha was made after the note became due and payable. Taylor received and credited upon the note all payments that were made, which were in 1893, and, perhaps, as late as 1894; Taylor constantly demanded payment of Caughman even as late as October, 1894, just before he seized the mule while in the hands of plaintiff; not only this, but allows McCartha to hold the mule from the last of October, 1892, and exercise publicly all the rights of ownership by working and making a crop in 1893 with it, selling to Aldrich and taking it back, and again selling to plaintiff in June, 1894; and not even then does he look after any interest which he might have ■ had until October, 1894, when he takes the mule from plaintiff.</p> <p>It is, therefore, ordered and adjudged, that the plaintiff do recover the mule mentioned and described herein from the defendant, and in the event that the same cannot be had, then the sum of $75, the value thereof, together with the costs of this action.</p> <p>The following is the bill of sale referred to: The State of South Carolina, County of Lexington. Know all men by these presents, that I, James A. Caughman, of the said county, in consideration of the sum of $125 to me advanced in one grey mare mule, named Beck, by Jasper Taylor, of Lexington County, said State, have bargained and sold unto the said Jasper Taylor the following personal property: one' iron grey mare mule, named Beck, and about nine years old, now in my possession, and which I promise to deliver on demand of the said Jasper Taylor. In witness whereof, I have hereunto set my hand and seal, this the 14th of March, A. D. 1892. J. A. Caughman. [e. a] W. T. Johns, D. J. Griffith. Recorded in book 5, p. 416, March 15, 1892.</p> <p>From the above decree the defendant appeals, and the Circuit Court sustains the appeal. From the decision of the Circuit Court the plaintiff appeals.</p>

Before Buchanan, J.j Abbeville, January, 1895. Action by Charles D. Brown against George S. Wilson and John McNeill, partners doing business under the firm name of Wilson & McNeill, and'D. A. Allen, doing business under the name and style of Abbeville Manufacturing Company, on promissory note of $100. George S. Wilson alone was served.

<p>1. Appear — Affidavit—Dismissae.—In an application to the clerk of this Court to dismiss an appeal under Rule 1, it is not necessary that the fact appear in the affidavit of respondents’ attorney that the “Return” has not been filed.</p> <p>2. Appear — Return—Dismissae—Excusabre Negeect. — The “Return” must be filed in this Court within twenty days after the record constituting it has been completed, and the failure to file the ‘ ‘Return’ ’ within the time because the “Case’ ’ was not completed, without the fault of appellant’s attorney, is not such “excusable neglect” as would entitle the appellant to a reinstatement of his appeal.</p>

<p>Motion to reinstate appeal dismissed by the clerk under Rule 1, because the appellant had not filed his “Return” within twenty days after service of notice of intention to appeal and exceptions, both being served at time for service of notice of intention to appeal.</p>

Petition in the original jurisdiction of the Court by Martin Keeler, for writ of habeas corpus. The following is section 22 of the act of 1894 (21 Stat., 736,) in controversy: SEC. 22.

<p>1. Contract — Court—Jury.—Tbe contract in this case -was in -writing, and was properly construed by the Court, and not left to the jury.</p> <p>2. Trust — Banks—Depositor—Debtor and Creditor — Contract. There is no trust relation shown by the contract herein between the parties; but the only relation existing is that of depositor and depositee, which is the relation of debtor and creditor.</p>

<p>Before Benet, J., Columbia, December, 1894.</p> <p>Action by W. H. Thomasson against Commercial Bank of Columbia, S. C., and C. J. Iredell, as manager of the Depositors’ Co-operative Association. Judgment for plaintiff. Defendant bank appeals.</p>

<p>1. Secondary Evidence — Presumption — Wide—Ordinary.—The admission of secondary evidence of the contents of a lost -will is a preliminary question, and when an ordinary has received a will, and permitted certain persons to make returns as executors, and to do other acts under the will, indicating that it had been probated, probate will be presumed.</p> <p>2. Ibid. — WiEE—Jury.—The paper offered as a copy of the lost will was properly admitted in this case, and the question of its genuineness properly submitted to the jury.</p> <p>3. Ejectment — Charge—Wiee.—In ejectment, where no objection is urged to the sufficiency of the language of a devise under which the plaintiff claims, it is proper to charge that if the jury believe that the land in dispute is the land described in the will, and that the will is a true copy of the lost will, they will find for the plaintiff.</p>

Before Benet, J., Winnsboro, June, 1895. Action by Glenn W. Ragsdale, as assignee for the benefit of the creditors of Alexander Williford, Quay D. Williford, and Wade H. Williford, against the Winnsboro National Bank and all the other creditors of the three assignors, to have the Court to settle certain questions as to the distribution of the assigned estates.

Before Watts, J., Charleston, May, 1895. Action by William McIntosh and William J. McIntosh, as executors of the will of John Thomson, against the city of Charleston and the heirs of John Thomson, for sale of real estate in aid of assets, and for determining the validity of a devise to the city of Charleston. The Circuit Judge decided the devise to the city of Charleston void.

Before Watts, J., Barnwell, August, 1895. Action by Nellie Forest Wood, an infant, by her guardian ad litem, Mallie Susan DeWitt, against J. N. Wood, as executor of the last will and testament of W. B. Wood, deceased, and as testamentary guardian of the plaintiff, Nellie Forest Wood, for accounting. Judgment for plaintiff. Defendant appeals.

<p>Judgment — Coeeaterae Attack — Equity—Ceoud onTitee. — A judgment cannot be attacked collaterally, if valid on its face; and if void upon its face, so as to be disregarded in any proceeding where it might come in question, a court of equity will not entertain an action to set it aside upon the ground that it is a cloud upon the title to land.</p>

Before Aldrich, J., Greenville, August, 1895. Controversy between the Southern Railway Company and the City Council of Greenville, in regard to a license tax, on an agreed statement of facts. Judgment for defendant. Plaintiff appeals.

<p>1. Assignment for Benefit of Creditors — Assignee—Liens—Acceptance — Case Distinguished. — A creditor who holds liens on the property of a debtor, who has made an assignment, does not waive such security by accepting under the assignment; and an assignee cannot refuse an acceptance and release which conforms to the terms of the assignment. Wheat v. Dingle, 32 S. C., 473, distinguished.</p> <p>2. Ibid. — Ibid.—Time of Delivery of Acceptance. — A deed of assignment provided that all creditors who would accept and release by 12 M., December 7, should have- preference. A creditor living in Charleston mailed his acceptance and release on December 6 to his attorneys, who were assignee’s attorneys, and telegraphed it had been mailed. Two mail trains left Charleston after mailing of letter, and arrived at Darlington (office of assignee and attorneys) before 12 M., December 7. Letter was not delivered until December 8. Held, that acceptance and release were delivered in time.</p>

<p>Usury — Answer—Demurrer.—The allegations of the answer in this case held a sufficient plea of the defense of usury, and it was error to sustain the demurrer to the answer on the ground that the allegations were not a sufficient plea of usury.</p>

Before Fraser, J., Darlington, December, 1893. Action by Cherry Bristow and other heirs at law of Belford Bristow against Joseph Rosenberg and Philip Kalmus, to compel a reconveyance of a tract of land, for an accounting, and to enjoin an action in ejectment by the defendant, Rosenberg. Judgment for defendants. Plaintiffs appeal.

Before BeneT, J., Chester, September, 1895. Two actions, one by the Durham Fertilizer Company against J. J. Hemphill and J. Dyles Glenn, as assignees of the Bank of Chester, and Geo. Held: adopting the language of the United States Supreme Court in Clark v. Iselin, 21 Wall, 374, that “there must have been a guilty collusion to constitute a fraudulent preference condemned by the statute.” ■ In the McPherson case the “guilty collusion” was wanting.

Before Benet, J., Lancaster, March, 1895. Held: in effect, that the defendant had not the right, while yet in the possession of the premises and owning the fee thereto, to remove therefrom improvements erected at his own expense, and without injury to the freehold.

Before Witherspoon, J., Clarendon, April, 1895. Action in foreclosure by S. A. Rigby against Frances A. Logan. The following is the Circuit decree: This is an action to foreclose a mortgage of 487 acres of land, executed by the defendant to the plaintiff, January 29th, 1891.

Before Townsend, J., Darlington, March, 1895. Indictment against J. Newitt Kelley, for assault and battery, with intent to kill. Defendant was convicted, and appeals.

<p>1. Arson — Stat. Construed.- — A person cannot be convicted of arson for burning his own dwelling house either at common law or under Criminal Statutes, 1893, sec. 140, even when burning is done for purpose of defrauding an insurance company.</p> <p>2. Ibid. — Accessory.—A person cannot be convicted in this State as accessory to the crime of arson for procuring another to burn his own dwelling.</p>

Before Witherspoon, J., Barnwell, January, 1895. Action by the Bank of Charleston National Banking Association, in behalf of itself and all other creditors of the defendants, J. C. Dowling and E. H. Dowling, who shall in due time come into this action and contribute to the expense thereof, against J. C. Dowling, C. T. Dowling, and E. H. Dowling, in his own right and as executor of the last will and testament of Mrs. Virginia Spann Dowling, Henry Spann Dowling, Decania…