Volume 47 — South Carolina Law Reports

<p>Insolvent Debtors' Act — New Trial — Fraudulent Confession of Judgment.</p> <p>A debtor’s application, for tbe benefit of tbe Insolvent Debtors’ Act was resisted on tbe ground that a judgment confessed by tbe applicant to bis father was fraudulent in part, and upon suggestion filed, tbe jury so found: — Held, tbat tbe verdict could not be sustained upon tbe evidence ; tbat a confession must be taken to be bona fide until tbe contrary be made to appear; tbat circumstances of suspicion were insufficient’ to justify a verdict finding it fraudulent as against creditors.</p>

BEFORE WHITNER, J., AT LAURENS, SPRING TERM, 1860. The report of his Honor, the presiding Judge, is as follows: “ The defendant was indicted for fraudulently packing cotton, under an Act of Legislature, 6 Stat. 180, and upon the evidence reported, was convicted at the present term by a very intelligent jury, after full argument. “ The defendant was a man of large property,' acquired by his own industry and management; the owner of mills and a cotton gin, which were…

<p>BEFORE WHITNER, J., AT SPARTANBURG, SPRING TERM, 1860.</p> <p>The report of his Honor, the presiding Judge, is as follows:</p> <p>" This action was brought to recover the balance due on a single bill, which had been transferred by the defendant, with a guarantee of payment. The recovery was resisted on the ground of want of due notice to defendant of non-payment, and of proper diligence on the part of plaintiffs.</p> <p>“ The single bill and guarantee were in following form: ' One day after date I promise to pay J. B. Tolleson, or bearer, three hundred and twenty-five dollars, for value received. Witness my hand and seal, this 22d day of December, 1856.</p> <p>Signed, ‘ P. M. WALLACE.’ [l. s.]</p> <p>“ ‘ I assign the within note to Poster & Judd, and guarantee the payment therefor, for value received.</p> <p>Signed, ‘ J. B. TOLLESON.</p> <p>“' Pebruary 2.3, 1857.’</p> <p>“ Certain credits were indorsed, reducing note to one hun- • dred and ninety-eight dollars, and seventy-eight cents, by payment made after the assignment, with the exception of an inconsiderable sum, thirteen dollars and seventy-five cents, 13th February, 1857.</p> <p>. “ The parties resided in the town of Spartanburg, and there was no evidence of any notice of non-payment to the defendant, until suit brought February, 1859.</p> <p>" Testimony was offered as to the ability of the maker to pay, and the probability of collection in that quarter, if suit had been promptly instituted; whilst plaintiffs relied upon the same developments in reaching a different result. The maker was not sued by the assignees. The testimony was not very conclusive either way, perhaps because not very fully brought out; the parties each mainly relying on the respective legal grounds assumed. It was not pretended that there had been any extension of time, or other act done by the plaintiffs, whereby the defendant had been injured, so that as to such matters of inquiry there was no question for the jury. The omission either to give notice or to sue promptly the maker of the bill to insolvency, before resort was had to this defendant, were relied upon; and neither, I held, would discharge the defendant from his liability on such a guarantee. The jury rendered a verdict, without retiring, for the plaintiffs.”</p> <p>The defendant appealed, and now moved this Court for a new trial, on the grounds:</p> <p>1. Because the plaintiffs were bound to give notice of nonpayment ; or on failure to do so, they were bound to use due diligence to get the debt from the payor; failing to do so, they were responsible for the loss.</p> <p>2. Because the plaintiffs, having retained the note for two years, in which time the payor became insolvent, it was negligence and a want of diligence, which discharges the defendant according to law.</p> <p>3. Because, from the case made, it was clear that the debt , was lost by the negligence of the plaintiffs, without notice to the defendant of non-payment. The verdict should have been for defendant.</p> <p>4. Because the question of diligence is a mixed question of law and fact, and ought to have been submitted to the jury.</p> <p>Story on Prom. Notes, 460; Boscoe on Bills of Ex. 200; Phillips vs. Astling, 2 Taunt. 206; Bank vs. Hammond, 1 Rich. 285; Douglass vs. Reynolds, 7 Peters, 113; Oxford Bank vs. Haynes, 8 Pick. 423; 2 Kent, 124, (2d ed.;) Reynolds vs. Douglass, 12 Peters, 497; Babcock vs. Bryant, 12 Pick. 133 ; Salisbury vs. Hale, 12 Pick. 416 ; Greene vs. Dodge, 2 Ham. 430 ; Isettys. Hoge, 2 Watts, 128; Johnson vs. Chapman, 3 Penn. R. 18.</p>

BEFORE THE OLERK OF THE COURT, AT MARION, JUNE, 1859. This was an application for tbe benefit of tbe Prison Bounds Act. On suggestion filed, a trial before a jury was had, and tbe applicant was acquitted. Tbe plaintiff appealed. Tbe only point decided by tbe Court of Appeals will sufficiently appear in tbe opinion delivered in that Court.

AT LAURENS, FALL TERM, 1859. This was an action on the case founded on the alleged negligence of defendant by his slaves in the burning of the house of plaintiff. The following is the evidence: “John Hitt. — The defendant having no negro houses on his place, the plaintiff, for his accommodation, permitted him to use the house in question, until he could build one of his own. It was occupied by several negroes, women and men, for about three months.

This was an action of debt within the sum. pro. jurisdiction on a judgment rendered in “the Court of Pleas and Quarter Sessions ” of Surry County, North Carolina. Held: that such authentication was sufficient to authorize the admission of the exemplification in evidence, and decreed for the plaintiff. The defendant appealed on the grounds: 1. Because the authentication of the record was not sufficient. 2.

BEFORE WITHERS, J„ AT UNION, FALL TERM, 1859. The report of his Honor, the presiding Judge, is as follows: “It is difficult to report this case in such order as would conform to the grounds of appeal, and therefore I will give it at large. “It was stated to be an action to recover a sum o£ money, paid by mistake by the plaintiff to the defendant.

BEFORE WHITNER, J., AT SPARTANBURG, SPRING TERM, 1859. The report of his Honor, the presiding Judge, is as follows: ■ “ This was an action of trespass to try title, being a second trial of a case already heard in the Court of Appeals, December term, 1858. “The case turned on the same points previously made, on very much the same evidence, and resulted as formerly in a verdict for the defendant, contrary to a very decided opinion entertained and expressed by the Circuit…

<p>Trespass guare clausum fregit — Damages—Tenants in Common — Oustei—JSfeiu Trial.</p> <p>In. trespass guara clausum fregit, where no indignity to the plaintiff’s person, or invasion of his personal rights, is shown, the extent of the injury to his proprietary rights forms the true measure of damages.</p> <p>The sufficiency of the proof of ouster depends on the nature of the suit in which it is offered.</p> <p>What constitutes oustm', in an action of trespass gua/t'e clausum fregit hy one tenant in common against his co-tenant, considered, and a new trial ordered because the evidence of ouster was insufficient to sustain the verdict for the plaintiff.</p>

<p>BEFORE WITHERS, J., AT RICHLAND, SPRING TERM, 1860.</p> <p>The report of his Honor, the presiding Judge, is as follows :</p> <p>“ The plaintiffs had sued the defendant in trespass to try titles: the action was at issue for the fourth term: a year ago Bates, the defendant, had caused the continuance of the cause, on the ground, stated in affidavit, that he expected to prove that Mary Jackson was not an heir at law of Osbarton Thompson, as whose heirs at law the plaintiffs jointly claimed, because she was illegitimate in her birth. After the parties had announced themselves ready for trial, it was moved, on behalf of the plaintiffs, that Mary Jackson be permitted to discontinue, and the others to proceed in the case. Upon objection, I refused the motion. The testimony of the plaintiffs (much of it in commission) was adduced. The course of Bates’ cross-examination showed his design to make a point of the illegitimacy of Mary Jackson, and he was quite successful in that end. Upon the conclusion of the testimony for the plaintiffs, Mary Jackson gave notice that she then and there discontinued her action, being ready to deposit the money for the costs. Objection was made as to her right so to do, and I sustained the objection, heard a motion for non-suit, and granted it.”</p> <p>The plaintiffs appealed, and now moved this Court to reverse the decision of his Honor in ordering a nonsuit, upon 'the grounds:</p> <p>1. Because it is respectively submitted that his Honor erred in refusing the plaintiffs leave to amend their pleadings, by striking out the name of Mary Jackson as one of the plaintiffs, and that the other two plaintiffs have leaye to proceed with their said action.</p> <p>2. Because it is respectively admitted that his Honor erred in ordering a nonsuit, after Mary Jackson, one of the plaintiffs, had discontinued, and it having appeared, in the trial of the case, that the said Mary Jackson had no interest, and that tbe costs of the suit were tendered to the Clerk of the Court up to the trial.</p> <p>contended:</p> <p>1. That one or more of several joint tenants may maintain an action of trespass to try titles, without joining their other co-tenants, and will recover in proportion to their interest in the land. McFaclclen and wife vs. Haley, 2 Bay, 457 ; 'Perry vs. Walker, 2 Bay, 461; Perry vs. Middleton, 2 Bay, 462 ; Middleton ads. Perry, 2 Bay, 539 ; Boyleston vs. Gordes, 4 McO. 144.</p> <p>2. In all actions ex delicto any one or more of several plaintiffs may discontinue, and the action proceed at the instance of the others. Hawkins et al. vs. Lewis, 2 N. & M. 141 •, White et al. vs. Marshall, MSS. Dec. 1821; Freeman vs. Glarlce, 3 Stro. 282; Bomar vs. Williams, 2 Bich. 12.</p> <p>3. In actions brought to try the right of property by several plaintiffs, the failure of one or more to prove any interest in tbe subject-matter is no cause of non-suit, and tbe case should proceed and the verdict found in conformity to the facts. Hawhins et al. vs. Leiois, 2 N. & M. 141; White et al. vs. Marshall, MSS. Dec. 1821.</p> <p>4. That, according to the practice of our Courts, long established, and with increasing liberality, plaintiffs may amend at the discretion of the Court, whenever such amendment does not surprise, hinder, delay, or prejudice the defendant, or no new issues are made, or defendant placed in a'worse situation. Hester vs. Hagood, S Hill, 195; Lamar & Daniel vs. Bead, 2 McM. 846; Goodwin vs. Hannah, 5 Stro. 156; Mobley vs. Mobley, 7 Eich. 482; Simpson ads. Bank, 2 Sp. 45.</p> <p>contended that it was a matter of discretion with the Circuit Judge, and that the discretion was in this case properly exercised. They cited 1 Chit. PI. 32, 74, 76, 54; 1 Bail. 306; 1 McO. 484.</p>

<p>Wills, probate of — New trial — Evidence.</p> <p>New trials will more readily be granted in cases of appeals from the Ordinary ón tbe probate of wills and upon questions of location tlian in other cases involving questions of fact.</p> <p>"Where probate is sought of a will not produced, executed when five persons were present, three of whom attested it, and it is known who two of the attesting witnesses were but not who the third was, it is sufficient to produce at the trial all five of the persons who were present, and an admission that two, who are absent, would, if present, swear that they remembered nothing about the transaction, is equivalent to their being present.</p> <p>New trial granted upon the facts — the jury having in a doubtful case set aside a will which the Ordinary had admitted to probate.</p>

BEFORE WITHERS, J., AT SUMTER, SPRING TERM, I860. The report of his Honor, the presiding Judge, is as follows: “Action in debt on bond for the hire of two negroes — one of them, Bill, who died while in the service of the company, to wit, April 20th, 1857, by such negligence of the company as made them liable for his value in an action heretofore brought and decided against them by a verdict for fourteen hundred dollars.

<p>Trespass to try title — Practice—Evidence—Exemplification of Record — Will—Deed—Description of land.</p> <p>The rule of the Court of Appeals is not to go outside of the Judge’s report for the facts of the case.</p> <p>Where one is both Judge and Clerk of the Court, his certificate in both capacities is, especially when backed by the certificate of the Governor as to his official character, a sufficient exemplification of a record under the Act of Congress.</p> <p>Where the copy of a will on record in another State has been admitted to probate in the Court of Ordinary of this State, an exemplification by the Ordinary may be given in evidence under the Act of this State of 1825.</p> <p>Where a party is in possession of a deed of conveyance of land and refuses to produce it, a copy from the Register’s office is admissible in evidence.</p> <p>A deed of conveyance of all the grantor’s lands and real estates in South Carolina is sufficiently certain.</p>

BEFORE GLOYER, J., AT CHAMBERS, ORANGEBURG, SEPTEMBER, 1860. Held: at which no person or persons appeared to claim the said land either by purchase or descent. Thereupon his Honor, Judge Munro, the presiding Judge, issued his certificate of the same, under his sign manual and the seal of the Court.

<p>Deed — Alteration with consent, effect of.</p> <p>Some time after a deed poll conveying land liad been executed, tlie grantor, in tlie presence of the grantee and with his consent, and in the presence of one of the two subscribing witnesses, inserted at the end of the deed, and in conformity with the original understanding of the parties, the words, “saving and excepting the saw timber on the above-mentioned premises,” and the deed was then proved and recorded as thus altered: — Held, that the insertion was inoperative and did not reinvest the grantor with the title to the saw timber, which had passed out of him by his execution of the deed.</p>

<p>Biot — Evidence—Neighborhood road.</p> <p>On an indictment charging a riot as having been committed by defendant with three of his slaves named and others of his slaves unknown, a conviction, on proof that the riot was committed by defendant in combination with several of his slaves, but one of those named being-proved to have been present, will be good..</p> <p>A charge that some of the rioters are unknown is a negative averment and need not be proved — the onus of disproving it being on the defendant.</p> <p>It is not necessary to the consummation of a riot that the act of the rioters should be in fulfilment of an unlawful purpose.</p> <p>Can a passenger along a neighborhood road of a public character, which is foundrous, turn upon the soil of a neighboring proprietor ? Semble, That he can.</p> <p>One who begins a riot, but leaves before it is over, is responsible for all acts done in completion of the offence.</p>

<p>A crooked arm, rendered so by a dislocation in infancy, where the defect is palpable to the naked eye, is not unsoundness within the meaning of a written warranty of soundness.</p> <p>In an action of assumpsit on a written warranty of soundness, the jury may render a verdict for less than twenty dollars, and if it be for thirteen dollars it will carry costs.</p> <p>In actions in form ex coniraeiu, if the plaintiff shows no right to recover more than twenty dollars, or if he show such right and the amount is reduced to twenty dollars or less by proof of payment, he should not be allowed to recover; but where the damages are uncertain, as in case of a warranty of soundness, or where they are reduced to twenty dollars or less by any other defence than that of payment, a verdict for twenty dollars or less may be rendered, and if it be for twelve dollars and eighty-four cents it will carry costs. (a)</p> <p>Nanee vs. Palmer, 2 Bail. 88, ruled the law correctly upon the point last . stated, and the subsequent cases in conflict with that decision are erroneous.</p>

BEFORE CARROLL, CH., AT CLARENDON, JUNE, 1859. This case will be sufficiently understood from tbe circuit decree, which is as follows: “ Carroll, Ch. The claims asserted by the bill have their origin in a written instrument executed by William Hilton, dated July 6,1836. The consideration it recites is the grantor’s ' natural love, good will and affection’ for the eight children of William Bhodus, enumerated by name.

BEFORE CARROLL, OH., AT SUMTER, JUNE, 1860. The decree of his Honor, the Circuit Chancellor, is as follows: Carroll, Ch. By deed dated May 25, 1844, Charles Spann, Sen., transferred and conveyed to John E. Haynsworth, as trustee, seventeen negro slaves, and one undivided third part of certain lands therein described.

<p> Usury. </p> <p>An incorporated building and loan association advanced, in conformity ■ to tbe provisions of its constitution, to one of its members, wbo owned ton shares of its capital stock, two thousand dollars, at a premium of thirty-five per cent., equal to seven hundred dollars, paid him thirteen hundred dollars, being the amount advanced less the premium, and took his bond, secured by a mortgage of real estate and an assignment of his shares of the stock, for the amount advanced, two thousand dollars, payable, with interest at the rate of six per cent, per annum, in monthly instalments of twenty dollars each: — Held, that the contract was usurious.</p>

<p>Appeal — Practice—Cases Reviewed — Administration of Assets.</p> <p>Á decree, on bill for partition and settlement of the estate of a decedent, ' adjudging that one of the parties -was one of the next of kin of decedent,- - and entitled, with other parties, to a share of his real estate descended, is final, and if not then appealed from cannot be objected to and made the subject of appeal at any subsequent stage of the proceedings.</p> <p>So, also, where the Court decrees that real estate descended is liable for ■ payment of debts in exoneration of personal estate bequeathed and not - charged with debts, such decree cannot be appealed from at a subsequent stage of the case.</p> <p>The cases on the subject-of appeals taken at some subsequent stage of the ' case, reviewed.</p> <p>Semble, that -real estate descended must be -applied in piaymeht of debts in exoneration of personal estate bequeathed and not charged with debts.</p>

BEFORE GLOVER, J., AT CHARLESTON, SPRING TERM,,1860. The report of bis Honor, tbe presiding Judge, is as follows: James Noble filed his bill in tbe Court of Equity against John S. Ryan, praying the specific delivery of a painting; representing, it is alleged, 'St. Jerome resigning tbe Crown.’ Hearing tbe bill, answer, and affidavits in tbe cause, and with the consent of the solicitors for the complainant and the defendant, the Court ordered, July 6th, 1859, that the painting…

BEFORE MUNRO, J., AT BEAUFORT, JUNE TERM, 1860. The report of his Honor, the presiding Judge, is as follows: “ These were separate actions upon a promissory note, in which Oohen was the principal, and Ehodes the surety. “ The note in question, together with some others, had been given for a tract of land which Oohen had purchased from the plaintiff with warranty. The defence was a paramount outstanding title in one Kemmy Smith.

<p>Partnership — Evidence.</p> <p>In an. action of assumpsit by a firm, if the general issue be pleaded, the plaintiffs must prove who compose the firm.</p>

BEFORE MUNRO, J., AT BEAUFORT, JUNE TERM, 1860. The report of his Honor, the presiding Judge, is as follows: “ This was an action of debt on bond, a copy of which must be printed with this report. The defendant, for defence, set up under the plea of ‘non est factum/ and notice under A. A. 1831, 6 Stat. 438 ; that the condition of the bond was immoral: looking to the future separation of ^ husband and wife.

BEFORE MUNRO, J., AT BEAUFORT, JUNE, EXTRA TERM, 1860. The report of his Honor, the presiding Judge, is as follows: “ This was an action of assumpsit. Writ issued -, 1858.

<p>Infant — Necessaries.</p> <p>A guardian is the sole judge of what are necessaries for His ward, and if Re furnishes her with such as Re thinks proper, she cannot Rind herself Ry contract, as for necessaries, to a third person.</p>

BEFORE WARDLAW, J., MARLBOROUGH, SPRING TERM, 1860. This was an action of trespass to try title, to recover a tract of one hundred and fifty-seven acres of land granted in 1799 to Moses Parker, the father of the plaintiffs. The defendant contended that this tract was included in a grant to one Eobinson, made in 1788, the title to which was in him.

<p> Contract. </p> <p>Where several persons unite for the purpose of having work done, in which they have a common interest, and appoint a committee to have the work done, one of the committee who engages a laborer to do the work is not, in the absence of a special contract, responsible alone upon an implied contract.</p>

BEFORE WHITNER, J., AT CHESTERFIELD, FALL TERM, 1860. Held: enjoyed, and possessed by the said Wm. H. Benton, to the sole and separate use and benefit of the said Eachel, for and during her- natural life, without any control whatsoever of the said Jeremiah, her intended husband. 2d. It is further agreed upon by the parties to these presents, that the said Eachel have it in her power to…

BEFORE WITHERS, J.; AT YORK, FALL TERM, 1859. Held: should be added likewise thirteen dollars and forty-seven cents, costs in the case pending.

BEFORE CARROLL, CH., AT RICHLAND, JUNE, 1860. Held: that- the will should have been proved in the Spiritual Court, with a partioular reservation as to that legacy. Plume vs. Beal, 1 P. Vms. 388. Upon the question of probate, the inquiry is, whether there be propounded a valid will. If valid in part, though void in part, it is still a will, and must be admitted to probate accordingly.

BEFORE INGLIS, OH., AT YORK, JUNE, I860.’ This case will be sufficiently understood from tbe. decree of his Honor, tbe Circuit Chancellor, which is as follows: Inglis, Cb. Held: and agreed with him and with each other to hold upon the same terms. If the first trust be established by competent proof, the ulterior trust need not be manifested by writing, for it results from the existence of the former by implication of law. The demand of the statute is, in the

<p>Executor— Commissions.</p> <p>An executor is not entitled to ten per cent, commission for paying annually to a legatee, as directed by tbe ■will, the interest on a certain part of the estate. Such commissions are only allowed when the executor ieceives interest, annually, and lets it out again as principal.</p>

<p>JExecutor — Costs of probate.</p> <p>Where a will is proved in common form and afterwards is proved in solemn form, but on appeal is set aside by the verdict of a jury, the executor is entitled to be reibabursed out of the estate all his expenses and costs up to the time of the rendition of the verdict; the costs of an appeal which is dismissed he will not be allowed.</p>

<p> Mortgage. </p> <p>An -unrecorded, informal instrument iield to be a mortgage of slaves, and not a sale with an agreement to repurchase by a given time, and a purchaser without notice, who had not paid the purchase-money, ordered to deliver up the slaves to the mortgagor.</p>

BEFORE GLOVER, J., AT LANCASTER, SPRING TERM, 1860. The report of bis Honor, the presiding Judge, is as follows : “ Tbe action was trespass to try titles. Botb plaintiff and defendant traced title from William J. Stogner, who owned tbe land called tbe Cook place.

BEFORE WITHERS, J., AT UNION, FALL TERM, 1861. The report of bis Honor, tbe presiding Judge, is as follows : “ More than a year and a day had expired from tbe return day of tbe writ in tbis case, when tbe motion for leave to file a declaration was made in beb.alf of plaintiff. But less than a year and a day bave expired from tbe return terna of tbe writ, when tbe appearance was entered on behalf of defendant ; and no Court was held in tbe spring of tbe present year.

BEFORE GLOVER, J., AT LANCASTER, SPRING TERM, 1860. The report of his Honor, the presiding Judge, is as follows : “As the assignee of the Sheriff' the plaintiff sued within the summary process jurisdiction on a bond purporting to be a bail-bond.

BEFORE WHITNER, J., AT MARION, FALL TERM, I860. The report of his Honor, the presiding Judge, is as follows : This was an application for the benefit of the Insolvent Debtors’ Act. Certain creditors appeared by their attorneys, and objected to bis discharge; submitting affidavits of tbe contestant, T. W. Godbold, and also of Asa Godbold and Isaiab Wall, on which was founded a motion for leave to file a suggestion.

<p>BEFORE MUNRO, J., AT UNION, FALL TERM,’1860.</p> <p>The report of his Honor, the presiding Judge, is as follows : ...</p> <p>“ The plaintiff sued as assignee of an unnegotiable note. After the plaintiff had closed his case the defendant’s counsel moved for a nonsuit, on the ground that,’although the plaintiff had styled'himself assignee in the writ,-he had not styled himself assignee of the payee of the note, in conformity with the requirements of the Act of the Legislature on •that subject. After I had announced my intention to overrule the motion, and to instruct the jury that the plaintiff was entitled to recover, leaving the defendant at liberty to renew his motion for a nonsuit in the Appeal Court, it was suggested by the defendant’s counsel that the better course for the plaintiff’s counsel to pursue would be to continue the .case, and amend his pleadings. This suggestion was adopted ■by the plaintiff’s counsel, and the case was continued. On. the last day of the term, the plaintiff’s counsel moved for •leave to amend his pleadings, and submitted an order to that effect; it was resisted by the defendant’s counsel, upon grounds similar to those set forth in the grounds of appeal.</p> <p>“ I signed the order.”</p> <p>The defendant appealed from the order granted by his Honor, giving the plaintiff leave to amend the pleadings, on the grounds:</p> <p>1. Because the order is too vague, containing no specification as to tbe amendment proposed to be made.</p> <p>2. Because the order, being general, would entitle the plaintiff to amend his writ; which leave the Court had no power to grant, there being nothing to amend by.</p> <p>3. Because the defendant would be entitled to plead to the declaration, if amended, and provision should be made in the order to that effect.</p>

BEFOBE -OABBOLL, OH., AT UNION, JUNE, 1861. The bill in tbis case was filed by tbe plaintiffs, wbo are tbe children of Jason Greer by a former marriage, against Robert McBeth, bis executor, and his widow, Nancy Greer. Tbe testator, by bis will, devised as follows: “ Third.

<p>Will — ■“ Legal Representatives.”</p> <p>Bequest to the testator’s executor in trust for his, the testator’s, “ legal representatives and next of kin — Held, that the testator’s widow was entitled, as one of his legal representatives.</p>

BEFORE CARROLL, OH., AT SUMTER, JUNE, 1863. Tbe testator, Stephen Mitchell, died in August, 1820, leaving his wife and children named in his will surviving him. Daniel Clark Mitchell died shortly after the testator, intestate, a minor, unmarried, and without issue. Winney married William McCoy, and she is dead, leaving issue. Stephen A. Mitchell, son of testator, is also dead, leaving issue. Abigail married Minor McCoy, and is now a widow.

<p>Act of the Legislature — Construction.</p> <p>An Act of the Confederate Congress allowed exemptions from military service to be granted for one year to overseers, on payment by the employer of five hundred dollars ‘. — Held, that an exemption granted under the Act was not revoked by a repeal of the Act within the year.</p> <p>An Act of the Legislature will not be construed to have a retroactive operation, unless the intention that it shall so operate be clear beyond all reasonable doubt.</p> <p>The repeal of an Act will not defeat rights which have vested under it.</p>

<p>Money had and received — Currency— Valuable Consideration— Fraud — Due Course of Business — Mistake.</p> <p>The teller of B, a bank, haying abstracted from his till and fraudulently used the money of his bank, in order to return the same, and escape detection, borrowed the money of A, another bank, from the teller thereof, and secretly placed it in his, the borrower’s, till, where it became mingled with the money of his bank, was on the same day counted by the cashier as the bank’s money, and was afterwards used by the teller for his bank in its current transactions. Neither teller bad the right to borrow, on the one hand, .nor to lend, on the other, money for his bank, and the transaction was fraudulent on the part of both tellers. By means of the money thus obtained, the teller of B escaped detection for some time, and when he left his bank, bis cash was counted and found correct: — Held, that A was not entitled to recover from B the amount thus restored to it by its teller.</p> <p>Where money (including bank bills and other negotiable paper which circulate as money) is stolen and then passed in currency to one who receives it bona fide, for valuable consideration and in due course of business, the loser has no right of action against such receiver, or any subsequent holder.</p> <p>Where a teller is indebted to his bank for money fraudulently abstracted from his till, and secretly replaces it with the money of another dishonestly obtained by him, and the money thus replaced is counted by the cashier as the bank’s money, and used by the teller in the current business of his bank, it will be held to have passed to the bank, in currency, to have been received by it bona fide, for valuable consideration and in due course of business.</p> <p>A credit given on an account is a valuable consideration for the receipt of money.</p> <p>The teller of B, a bank, being indebted to his bank for money fraudulently abstracted from his till in order to square his account, induced the teller of A, another bank, to enter on his, the teller of B’s, passbook a fictitious credit to B for a largo sum of money, by means whereof B afterwards received so much money from A. The transaction was in the usual course of business, but was fraudulent on the’part of both tellers. By means of the false entry, the teller of B escaped detection for some time, and when the fraud became known his cash was counted and found correct: — Held, that A was entitled to recover from B the amount paid by reason of the false entry in the pass-book, as for so much money paid by mistake.</p> <p>Where B has already lost money by the- dishonesty of his agent, he cannot shuffle off the loss on A, by taking advantage of a payment made by the latter on a security, prima facie valid and binding on him, but which had, in fact, been fraudulently concocted between the agent of B and an agent of A, with a view to conceal the previous loss — both principals being at the time of the payment entirely innocent parties.</p>

BEFORE DAWKINS, J., AT ORANGEBURG, SPRING TERM, 1866. Tbe report of bis Honor, tbe presiding Judge, is as follows: “Tbe defendants were jointly indicted for stealing a bale of cotton, tbe property of E. W. Bates, tbe prosecutor. A motion was' made on tbe part of tbe defendants for leave to sever in their trial on tbe ground as stated, that tbe wife of defendant, Jourdain, was a material witness, and would be excluded if tried together. I refused tbe motion.

<p>Buie on Sheriff — Depreciated Money.</p> <p>"Where a Sheriff is ruled for not having applied money made by sale to the oldest execution, it is not a sufficient excuse, after a lapse of several years, for him to show a mere notice, given him at the time of the sale by a junior execution creditor, not to apply the money to the oldest execution, as it had been paid, and a notice to the attorney in that execution that he would move at the next term to have satisfaction entered on it. He must show that the party contesting the right to the money had promptly and vigorously asserted his right in some form of legal proceeding.</p> <p>A Sheriff neglecting to pay over money for several years, without good excuse, may be compelled to pay other and good money, if that which he received has in the mean time depreciated.</p>

BEFORE WARDLAW, J., AT ABBEVILLE, FALL TERM, 1860. Tbe report of bis Honor, tbe presiding Judge, is as follows : “ This was a new trial bad under an order made in tbe Court of Appeals, May, 1859. “Tbe action is assumpsit. Various counts charged that Alexander Houston was maker, was indorser, was guarantor of a promissory note, of which this is a copy, viz.: “' $104.70.

BEFORE CARROLL, OH., AT YORK, JUNE, 1861. This ease will be sufficiently understood from tbe decree of his Honor, the Circuit Chancellor, which is as follows: Carroll, Ch. In December, 1849, Matthew McCammon bargained with the plaintiff Andrew Wherry, for a small parcel of land, at a stipulated price.

BEFORE CARROLL, CH., AT YORK, JUNE, 1861. This carie will be sufficiently understood from the circuit decree, wliicb is as follows: Carroll, Oh. By their bill the plaintiffs, who- are merchants and partners, seek foreclosure of a mortgage of land executed to them by the defendant, S. S. Elam.

<p>Feme Covert — Power—Settlement— Will.</p> <p>Where an absolute estate is secured to the sole and separate use of a married woman, it is not inconsistent to confer upon her power to dispose of it by deed or will.</p> <p>Where property of the wife is, by marriage settlement, surrendered by the husband to her “full and free disposal,” she “to have and to hold the sole discretion guidance thereof,” she has the power, duringcoverture, to dispose of the same absolutely by will.</p> <p>Where a married woman has power, under her settlement, to dispose of her property as she sees fit, it is not necessary, it seems, that in disposing of it she should refer to the power. Her only right to dispose of it being conferred by the power, she must, it seems, be understood as having reference to the power whenever she makes disposition of it, either in whole or in part.</p> <p>The will in this case disposing of the property held to contain a sufficient reference to the power.</p> <p>The settlement gave the wife power to dispose not only of the property then existing, but also of the increase to arise or in anywise to proceed therefrom : — Held, that she might dispose of land purchased with the income.</p>

<p>Wills— Construction — “ Property</p> <p>Testator having two children by his first wife and six by his second, and the children by the second wife being entitled to certain interests in expectancy in lands, slaves, &c., created by the deed and will of M.; he, the testator, referring to said deed and will and the interests created by them, and reciting his “ desire to place his two children by his first wife on precisely the same footing in point of property, with his children by his present wife,” directed his executors to sell, at the expiration of five years from his death, all the residue of his estate, “ and to divide the proceeds of sale among my children in such shares and proportions as they would have taken had I been the owner of the property above referred to, as being embraced in the said deed and will of M., as well as my own property, and had directed the whole to be equally divided among all my children. In other words, supposing the property embraced in said deed and will to be worth §10,000, and the said residue of my own property tobe worth $20,000, my will would be effected by giving to each of my said children by my first wife the sum of $3,750 out of my own property ; and I direct my executors to be governed by this principle of division:” — Held, that, according to the true construction of the will, the land, slaves, &c., embraced in the ' deed and will of M., and not merely the expectant interests of the six children therein, should be valued, in order to ascertain the amount each child was entitled to in the proceeds of the sale of the residue of testator’s estate.</p> <p>Held, further, that the time at which the land, slaves, <fcc., should be valued, was the time of division, that is, five years from the death of testator.</p>

BEFORE OARROLL, OH., AT CHESTER, JULY, 1861. Tbis case will b.e sufficiently understood from the circuit decree, and a copy of the marriage contract referred to therein. The circuit decree is as follows: Carroll, Ch. Mrs. Hannah Douglass, a widow and mother of three children, intermarried with John T. McAfee, in 1848, and departed this life in December, 1855.' By her marriage with McAfee she had issue, three other children, one of whom, Edward M. McAfee, died in her lifetime.

<p>Assignment — Fraud—Partnership.</p> <p>An assignment by one member of a firm, of the effects of the firm, for the benefit of creditors, held fraudulent, because of improper provisions of the instrument and the circumstances under which it was concocted and executed.</p> <p>Partnership creditors, whose demands were not due, held to have no equity to injoin separate creditors of a partner from attaching his individual property.</p>

<p>Will — Advancements—Slaves—Administration—Confederate Treasury Notes.</p> <p>The testator devised and bequeathed his estate to his ten children, by name, to bo equally divided between them, and then directed that such of them 11 as have received property from me will account to my estate for so much — Held, that such of the children as had received property from the testator were bound to account for the same as in cases of advancements, and upon the same principles.</p> <p>The testator’s will was executed in March, 1862, and he died soon after:— Held, that slaves which he had given to his children must bo accounted for as advanced, and that slaves which he owned at the time of his death must be treated in the distribution as part of his estate.</p> <p>For Confederate treasuiy notes invested in certificates for four per cent. Confederate bonds, and for balances due for Confederate treasury notes received during the time such notes were the only currency of the country, an executor held not liable. Per Lesesne, Oh.</p>

<p>Sheriff’s Sale — Account.</p> <p>Where a debtor’s property, against whom there are judgments and executions to a large amount, is sold, at private sale, under an arrangement between the debtor and all his judgment creditors, who could by any possibility be benefited by the sales, and with the consent of the Sheriff, and fair prices are realized, and the money arising from the sales is applied to the oldest judgment and execution, a junior judgment creditor, who did not consent to the sale, may have the property levied on and sold by the Sheriff'; and a purchaser at the Sheriff’s sale, with notice, will acquire a good title as against a prior purchaser at the private sale.</p> <p>If the purchasers at such private sale, or the creditor who received the proceeds, have any equities to prevent the Sheriff’s sale, they should aPPly to the Court for an injunction to restrain the Sheriff from selling; a public notice forbidding the Sheriff’s sale will not be srtfflcient.</p> <p>Where a debtor’s property is, by consent, sold at private sale by the oldest judgment creditor, and he receives the money and warrants the title to the purchaser, and the property is afterwards sold at Sheriff’s sale, and the warrantor receives the proceeds, a bill in equity may, it seems, be sustained by the purchaser at the private sale, against the warrantor, to compel him to account for the proceeds of the Sheriff’s sale.</p>

<p>Jurisdiction — Account—Ordinary—Executor—Legacy.</p> <p>A decree by the Court of Ordinary against an executor for payment of a legacy to the assignee of the legacy, from which decree no appeal is taken, is no bar to a bill in equity by the assignee against the executor for account; the Court of Ordinary haying, under such circumstances, no power to enforce its decree.</p>

BEFORE OARROLL, OH., AT CHAMBERS, NOVEMBER, 1864. James B. Richardson, late of Clarendon District, the testator in the cause, died in 1860. His will was dated in 1859. By the first clause he declared : “First, after all my just debts are respectively paid and discharged, all my real and personal estate which I may die possessed of, I hereby dispose’ of in the manner following, viz.” In eight of the next eleven clauses he bequeathed specific legacies of inconsiderable value.

<p>Will — Bequest of female slaves “and their increase” — “All my bank stock of money.”</p> <p>Bequest of female slaves “ and tlieir increase,” held not to include descendants of the slaves horn before the execution of the will.</p> <p>Bequest of “all my bank stock of money,” held to carry a sum of money deposited by the testator, at different times, in a neighboring bank, and for which he held certificates entitling him to interest on the various sums at four per cent., or at five per cent, after six months; it not appearing that the testator owned any thing else to which the terms were applicable.</p>

<p>Constitutional Law — Impairing Obligation of Contracts.</p> <p>So much of the Acts of 1861 and 1865, commonly called the Stay Law, as declares that it shall not be lawful for any officer to serve or execute mesne or final process for the collection of money, is void, because repugnant to the provision of the Constitution of the United States, “that no State shall pass any law impairing the obligation of contracts,” and the similar provision of the Constitution of this State.</p>