Volume 48 — South Carolina Reports

<p>1. Criminal Law — Witness.—There is no authority in the criminal statutes of this State for the issuance of any process by which a witness in another State may be compelled, to come here and testify.</p> <p>2. Ibid. — Ibid.—Commission—Circuit Court — Solicitor—Continuance — Evidence.—There is no criminal statute in this State authorizing the issuance of a commission to take the testimony of a witness in a criminal case beyond the jurisdiction of the Court, nor has the Circuit Court the power to compel the solicitor to consent to such commission; but such commission may be issued by consent, and the Circuit Judge may use his power of continuance to induce the solicitor to consent.</p> <p>3. Circuit Judge — Continuance.—The Circuit Judge did not abuse his discretion in refusing the motion for continuance in this case in the light of all the circumstances.</p> <p>4. Juror — Criminal Law — Judge.—When a juror is examined on his voir dire, and it appears he is not indifferent in the cause, the Judge may stand him aside without presenting him to the prisoner.</p> <p>5. Criminad Law — Evidence—Conversation.—A bystander may testify as to conversations, or parts of conversations, which he heard the defendant have with a third person.</p> <p>6. Witness — Generad Reputation — Impeachment — Veracity.— Where a witness states that he knows a party’s general reputation, and thinks general reputation includes veracity, although he does not know his reputation as to veracity alone, he may say he would not believe such person on his oath.</p> <p>7. Exception — Appead—Objection.—An exception for admission of testimony not objected to at time, cannot be considered on appeal.</p>

Before Earle, J., Anderson, The defendant, S. M. Fowler, was convicted by Alderman Hill, acting mayor, of violating the ordinances of the city of Anderson. He appealed to the full council, which sustained the decision. He appealed to the Court of General Sessions for Anderson County. This Court sustained the judgment below. From thence he appeals to this Court. cite: Trial by jury: 1 Cr. Law Mag., 488. Competency of juror: 30 Mo., 494; 139 Mass., 315; 143 Miss., 136.

Before Townsend, J., Chambers, Petition by the Columbia Electric Street Railway, Light and Power Company for writ of prohibition, to prevent W. McB. Sloan, mayor of the city of Columbia, and Owen Daly, chief of police of said city, from enforcing an ordinance of said city, prohibiting the said company from running its cars in the streets of the city without conductors. Writ granted. Respondents appeal on the following exceptions: 1.

<p>Before Watts, J., Sumter,</p> <p>Action by John A. Garrett, Harriet D. Singletary, John Norton, Davis Norton, George Norton, Mary Norton, Anna Norton, Charles Norton, and Douisa Rushing, by Jacob Rushing, her guardian ad litem, against Rosa Weinberg and William D. Osteen, for partition of real estate.</p> <p>The defendants claim through the following deed, executed by the widow of Thos. Garrett, the ancestor, and her second husband:</p> <p>The State of South Carolina. Know all men by these presents, That we, John S. Moore and Elizabeth Moore, in the State aforesaid, in consideration of the sum of $500 to us in hand paid, at and before the sealing of these presents, by Edwin W. Moise, in the State aforesaid, lawyer (the receipt whereof is hereby acknowledged), have granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release, unto the said Edwin W. Moise, his heirs and assigns, all that plantation or tract of land, containing -502 acres, situated, lying, and being in the county of Sumter, and State aforesaid, on the west side of Black River Swamp, and bounded on the north by lands now or formerly of David Rogers, on the south by lands now or formerly of Benjamin Courtney, on the east by the Black River Swamp and lands of the estate of Thomas Garrett, deceased, and on the west by lands belonging to some person or persons whose names are unknown, the same being represented by a plat thereof, made out and certified by Richard W. Harvin, deputy surveyor, dated March 20th, A. D. 1840, which said plat is hereunto attached as part of this deed. Together with all and singular, the rights, members, hereditaments and appurtenances to the said premises belonging or in anywise incident or appertaining. To have and to hold, all and singular the said premises before mentioned, unto the said Edwin W. Moise, his heirs and assigns, forever. And we do hereby bind ourselves, our heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto the said Edwin W. Moise, his heirs and assigns, against us, our heirs, and against all persons lawfully claiming or to claim any part thereof. Witness our hand and seal, this 13th day of April, in the year of our Eord 1871, and in the ninety-fifth year of the sovereignty and independence of the United States of America. John S. Moore, [e. S.] Elizabeth (her x mark) Moore, [e. S.] Signed, sealed, and delivered in the presence of Chas. H. Moise, Richard D. Eee.</p> <p>Renunciation oe Dower. — The State of South Carolina, Sumter County. I, Guignard Richardson, notary public, do hereby certify unto all whom it may concern, that Elizabeth Moore, nee Garrett, did this day appear before me, and upon being privately examined by me, did declare that she does freely, voluntarily, and without dread or fear of any person whomsoever, renounce, release, and forever relinquish unto the within named Edwin W. Moise, his heirs and assigns, all her interest and estate, and also her right and claim of dower, as the widow of Thomas Garrett, deceased, of, in or to all ■ and singular the premises within mentioned and released. Elizabeth (her x mark) Moore. Given under my hand and seal of office, this 13th day of April, A. D. 1871. Guignard Richardson, notary public.</p> <p>The State of South Carolina, Sumter County. I, Guignard Richardson, notary public, do hereby certify unto all whom it may concern, that Mrs. Elizabeth Moore did this day appear before me, and upon being privately and separately examined by me, did declare that she does freely, voluntarily, and without any compulsion, dread or fear of any person or persons whomsoever, renounce, release and forever relinquish unto the within named Edwin W. Moise, his heirs and assigns, all her interest and estate, and also all her right and claim of dower of, in or to all and singular the premises within mentioned and released. Elizabeth (her x mark) Moore. Given under my hand and seal, this 13th day of April, Anno Domini 1871. Guignard Richardson, notary public.</p> <p>The State of South Carolina, county of Sumter. I, Guignard Richardson, notary public, do hereb}r certify that Elizabeth Moore did this day appear before me, and did declare that she does freely, voluntarily, and for value, renounce, release, and forever relinquish unto the within named Edwin W. Moise, his heirs and assigns, all her interest and estate, and also all her right of inheritance as heir at law and distributee of her late husband, Thos. Garrett, deceased, of, in or to all and singular the premises within mentioned and released. Elizabeth (her x mark) Moore. Given under my hand and seal, this 13th day of April, A. D. 1871. Guignard Richardson, notary public. To this deed was also attached and recorded a plot of the land.</p> <p>The plaintiffs, among other requests, asked the Circuit Judge to charge as follows:</p> <p>XV. That whether the plaintiffs and the defendants derive title from a common source or not, if the jury find that the plaintiffs, as heirs at law of Thomas Garrett, were entitled to the interest in the land which they claim, and if they find that Edwin W. Moise did hold possession of the land from 1871 to 1876, and that in order to make up the period of twenty years adverse holding, set up by the defendants, it is necessary to include the period of such holding by Edwin W. Moise, that then the defense of the defendants, that there is a legal presumption of a deed from the plaintiffs or their ancestors of their interest in the land, arising from such possession of the land by the defendants, or those through whom they claim during the period of twenty years, cannot avail, and the jury cannot consider it, because the statute of limitations then in force, and now governing in the case, expressly provides that any person holding possession of land is presumed to hold under and in subordination to the true legal title, unless it appears that the premises were held and possessed by him, or one under whom -he claims, or by such person and by descent cast upon his heirs in an unbroken possession continuously, and adversely to the true legal title, for the full period of twenty years; and this statute, as uniformly construed and enforced by the courts of this State, forbids the tacking of separate periods of possession by different persons to make up the twenty years, and such rule of presumption of title from the plaintiffs cannot bar or diminish the protection of their rights thus expressly given by the statutory law.</p> <p>XX. That if the jury consider the defense of a presumption of title to the land in question from the plaintiffs arising from the lapse of twenty years, and if they find that the plaintiffs were entitled to the portion of the land for which they sue, and if they also find that any of the plaintiffs were, at the commencement of that time or in the meantime, under disability of coverture as married women, they must, in estimating the twenty years necessary to raise such presumption, deduct the period of such disability; and if the time left after such deduction does not amount to twenty years, then all the plaintiffs are relieved against such presumption of a deed from them, and the jury must find generally for the plaintiffs on such defense.</p> <p>The following is so much of the charge of the Circuit Judge as is necessary to understand the issues:</p> <p>If the testimony satisfies you that Gen. E. W. Moise went into possession of that land at that time by purchasing it from the widow, Elizabeth Moore, that deed, introduced by plaintiffs themselves, shows that Gen. Moise bought the land, the whole of that land; that he went into actual possession of it; that he rented it, exercised ownership over it; that he recorded the title in the office of the register of mesne conveyance for Sumter County; and that it was for the whole of the 500 acres, as he testified. I charge you as matter of law that that was notice to the whole world that he did not go there as a tenant in common with the children of Thomas Garrett. However, if the testimony satisfies you that Gen. Moise went in there, and that he was conveyed the one-third interest as the property of the widow, and went in there recognizing that the children of Thomas Garrett were entitled to two-thirds interest, it would be necessary to set ouster here before he could set up adverse possession; but if you believe from the testimony that he, Gen. Moise, thought he was buying the whole of that land, and took a deed from Mr. Moore and Mrs. Moore for the whole of it, and that he recorded it and went into possession, built houses, dug ditches, &c., I charge you, as a matter of law, that that would be notice to the whole world, and the statutes commenced to run in his favor, and the defendants here claim under him from that time, if the children of Thomas Garrett were twenty-one years of age, and you heard the testimony upon that; if, after that time, one of the heirs at law, one of the children, died, leaving a minor, as alleged in the complaint, that would not stop the operation of the statute, would not suspend the operation of the statute. The statute having commenced to run at that time, at the time that Moise went into possession of the property under a written deed, and he thought he was getting the whole of it, and he recorded it in the clerk’s office, the death of Mrs. DeToach here would not suspend the running of the statute. After it commenced to run, it ran on. If Mrs. DeToach and Mrs. Norton were twenty-one years of age at the time that Gen. Moise went into possession, if he went into possession, as I have before stated, in the manner I have indicated, exercised ownership over it, and after that time he transferred to his son, Marion Moise, and he transferred to the defendants, and went in under a paper title, having it recorded, the children of Thomas Garrett being twenty-one years of age, and this action having been brought in 1893, and these parties having been in possession of it from that time, from the time that Moise went into possession of it, and these other párties and defendants went in under him, then the law would presume that the heirs at law of Thomas Garrett had executed a title to Moise, and those who claim under him would have a good title against the whole world. But I charge you this: If Gen. Moise went in there thinking that he had bought one-third and recognized that the children of Garrett owned the other two-thirds, he would have had to have held the land twenty years himself; they could not tack on to one another’s possession so as to make up the twenty years, but you have to be satisfied from the proof as to that, that he went in there recognizing that he had one-third and that the children had two-thirds. If you believe the testimony that he went in there thinking that he bought the whole of it, and that he never recognized these Garrett children, and went in and took possession of it, then the statute commenced to run from that time. If you believe that Maj. Moise went in under General Moise, and these defendants went in under Maj. Moise, these plaintiffs cannot recover.</p> <p>I charge you, that it does not matter if these parties were married and had husbands living, that was no such disability as would have prevented the statute from commencing to run. If Moise went in there and exercised ownership under a paper title, the statute having commenced to run against everybody, if you are satisfied that the heirs at law, the sons and daughters of Thomas Garrett, were twenty-one years of age when he went in possession, and that one of them died after that leaving a minor granddaughter, did not arrest the running of the statute; it having commenced to run, it ran right on. As I said before, if you believe this was the property of Garrett, the very moment he died the real estate descended to his heirs at law — his widow and children. And if you believe that the widow sold the property to Moise, and in that deed she attempted to sell the whole of it, and Moise thought he was buying the whole of it, and if the son and daughters of Garrett were twenty-one years of age at that time, the very moment he went in there and exercised ownership, the statute commenced to run; and if you believe the testimony that he built houses and dug ditches, &c., and he turned over to Maj. Moise and he exercised ownership, and he sold to these defendants and they have been exercising ownership ever since, the plaintiffs are not entitled to recover.</p> <p>Now, gentlemen, the plaintiff requests me to charge you these propositions of law.</p> <p>XV. I refuse to charge }rou that. I have sufficiently charged you as to the law on tacking. Apply the facts to that law, and find out whether or not he went in there as a purchaser in 1871, thinking he was getting the whole of it, and never recognized the fact that he was a tenant in common with the children of Garrett. If you believe this testimony, he went in there thinking he was getting all under a paper deed. He never recognized the children. It is for you to say whether or not he went in there thinking he was getting all of it or only one-third. If he went in there recognizing the children, then some one person would have held twenty years adversely. He says he went in there and held it adversely to the whole world, and recorded his deed and took possession of it until he turned it over to his son, and his son turned over to some one, and the statute commenced to run the very day that Gen. Moise went in, and they held for twenty years before the commencement of this action, the plaintiffs cannot recover.</p> <p>XX. I refuse to charge you that, because, as I understand the law to be, the act of 1870, there is no disability simply because she is a woman and married.</p> <p>Verdict for defendant. The plaintiffs appeal upon numerous exceptions raising the questions mentioned in the opinion.</p> <p>cite: Oitster: Dud., 23; 13 Rich., 60; 2B1. Com., 174; 1 McC., 132; 21 S. C., 463; 39 S. C., 14; 26 S. C., 180; 3 McC., 302; 3 S. C., 254. Tacking: 14 S. C., 180; 2 Brad., 151; Rice, 11; 3 Strob., 131; 5 Strob., 213; 16 S. C., 141; 29 S. C., 372; 28 S. C., 489; 6 Rich. Eq., 72; 8 Rich., 42; 30 S. C., 234; 18 S. C., 473; 30 S. C., 291. Disability of infancy: 3 Brev., 439; 1 Nott & McC., 296; 1 McC., 139; 3 McC., 451; 4 Rich., 615; 26 S. C., 219; 30 S. C., 291, 234; 26 S. C., 180; 3 Rich., 418; 1 Bail., 192; 2 Hill, 333. Disability of coverture: Tyler on Cov., pp. 411, 412, 414; 2 Kent Com., 133; 1 Bishop on Daw of Married Women, pp. 370, 371, 398; 9 Ency., 841; Steward on Husband and Wife, pp. 219, 221; 3 Strob., 459; 1 Chev., 139; 11 S. C., 71; 3 Bus. on Dim. and Ad. Pos., 181; Newell on Eject., 713; 2 Const. Rep., 12; 6 Rich., 132; Meigs Rep., 484; 8 Johns., 269; 4 Johns., 390; 129 Id., 630; 127 Id., 654; 70 Fed. Rep., 664; 8 Hemph., 325; 2 Head., 676; Claucy Husband and Wife, 161,162; 20 S. C., 49. Presitmption of deed and Statute of Limitations: Code 1870, sec. 104; 2 Rich., 22; 7 Rich., 355; Rice E., 15. Presumption in connection with deed: 19 Enc., 40; Matthews on Pres. Ev., 96; Newell on Eject., 712. Disability of infancy aitd covertitre as protection against presumption: 28 S. C., 486; 3 S. C., 265; 2 Hill Ch., 513; 1 Hill Ch., 378; 2 Hill, 328; 3 Strob., 502. Is the rule of the presumption of a deed rebuttable: 40 S. C., 181; Best on.Ev., 580, 309, 307, 314, 324; 2 Whaivon Ev., 1358.</p> <p>cite: Presumption: 2 Black. Com., 182; Williams on Real Prop., 137; McC., 161; 2 Rich. E-, 19, 23; 11 Rich., 424; 2 Bail., 101; 1 McM., 446; 40 S. C., 179; 16 S. C., 132; 28 S. C., 486, 490; 2 Hill Ch., 513; Angelí on Lim., 484; 1 Hill Ch., 378; 1 Hill E., 222. Statute of Limitations: 4 Rich., 619; 3 Brev., 438; 1 McC., 139; 3 McC., 457; 1 N. & McC., 296; 6 Stat. at Earge, 238; Code (1893), secs. 98 to 109; Rev. Stat. 1872, 820; Act of 1712, 778; 15 Johns., 169; 3 Hill, 85; 29 Barb., 319; 82 Hun., 98; 1 Abbott,,242; 26 S. C., 225; 20 S. C., 52; 2 Rich., 23; 13 Ency., 732; 110 U. S., 619; 3 Johns. Ch., 126-130; 3 McC.', 261; 3 Strob., 498; Newell on Eject., 704; 1 Nott & McC., 307. Under claim of title: 6 Rich., 62; Rice, 14; 3 McC., 267; Wash, on Real Prop. (5th eel.), 159; 1 Ency., 269; 1 John, 156; 16 John, 293; Newell on Eject., 740; 10 Cush., 244; Sed. & Wait on Trial of Title to Land, 533, 536; 23 Wendall, 316; 2 Rich. L., 19; McM. Eq., 35; 2 Rich. Eq., 1; 7 Rich., 428; 14 S. C., 182; Robinson’s El. Law (1882), 78, 79; 28 N. Y., 45; 13 Johns., 513; 44 Hun., 507; 3 Duer, 354; 18 Johns., 360; 53 N. Y., 287; 2 Smith Lead. Cases, 470; 40 S. C., 171; 2 Hill, 492; 6 Pet., 743; 5 Pet., 354, 402; 2 Wheat., 29; 9 Wheat., 141-288; 8 Cow., 589; 6 Barr., 110; 9 Met., 418; 3 Conn., 403; 8 Shepley, 350, 240. Ottsier: 24 Wend., 587; 68 N. Y., 345; 26 S. G, 185; 40 S. G, 184; 2 Hill, 513; 6 Rich. Eq., 425; Newell on Eject., 768; 56 N. H., 357; 3 Strob., 468; 1 Ency., 236.</p>

Application of the Southern Railway Company, within the original jurisdiction of the Court, for a mandamus requiring Hon. D. H. Tompkins, as secretary of state, to file their charter in his office. Mandamus granted.

Before Benet, J., Walhalla, This action arises upon a claim presented by H. M. Bascom, J. J. Smith, A. Whitmire, and W. G. Russell, for themselves and others, to the Board of County Commissioners of Oconee County, against the same, for $400, for one-half interest in “New Bridge, near W. G. Russell’s.” The board refused to audit the claim. The claimants appealed to the Circuit Court, which ordered the board to audit and pay it.

<p>Before Gary, J., Chesterfield, September, 1895, and Watts, J., Chesterfield, February, 1896.</p> <p>cite: Misjoinder: 18 Ency., 496; Pomeroy’s Estee, sec. 315; 9 S. C., 277; 13 S. C., 324; 22 S. E. R., 592; 24 S. C., 44; 27 S. C., 318; 16 S. C., 148; 26 S. C., 480. Statement of cause of action: 15 S. C., 29, 29 S. C., 589; Pomeroy’s Es-tee, sec. 318; 16 S. C., 580; 18 S. C., 580. Usury: 28 S. W. R., 602; 15 At. Rep., 663; 43 S. C., 86; 21 S. E. R., 44; 15 S. C., 462; 21 S. E. R., 540; 22 S. E. R., 31; 21 S. E. R., 924; 75 N. C., 292; 12 Rich. Eq., 124. Suit against foreign corporation: Code, 423; 32 S. C., 319; 35 S. C., 380. Jurisdiction: 12 S. C., 558; 18 S. C., 224; 24 S. C., 122. Cause of action arises when contract is to be performed: 39 S. C., 490; 17 S. C., 410; 20 S. E. R., 984. Service of foreign corporations: 39 S. C., 496 — 498; 41 S. C., 22; 95 U. S., 714; 106 U. S., 350; 149 U. S., 194; 132 U. S., 534; 144 U. S., 445; 11 Sup. Ct. Rep., 38, 10; 15 Sup. Ct. Rep., 560. Ju-, risdiction of for Corp.: 95 U. S., 714; 4 Exch., 290; 12 Gray, . 201; 9 Ex., 345. Appointment of receiver takes away authority of agent: 15 Sup. Ct. Rep., 560; Rev. Stat., 1472-3; Paley on Agency, 156; 2 Rivermore on Agency,. 306-8; 27 S. C., 316.</p> <p>cite: Service on for. corp.: Code, 155; 33 S. C., 609; 22 Éucy., 131; Rev. Stat, 1472,1466; 22 S. E. R-, 761. Effect of appointment of receiver upon service: 14 S. C., 573; Gluck & Beck on Rec., 35; 17 How., 338; 20 Ency., 65, 66, 278. Usury: 23 S. E. R., 450; 22 S. E. R., 8; 18 S. E. R., 965; 21 S. E. R., 537. Misjoinder: Code, 188; Pomeroy on Rem. and Remedial Rights, 479, and sec. 463; 18 S. C., 469.</p>

Before Benet, J., Charleston, Action by Theodore Wenzel and John W. Burmester against Palmetto Brewing Company, J. H. Doscher, Security Savings Bank, and the De Fa Vergne Refrigerating Machine Company. From an order granting an inspection of the books of the brewing company, and a receiver therefor, the Brewing Company appeals. cite: As to the right of a stockholder to maintain this action: 39 S. C., 44; 104 U. S., 450; 98 Ala., 219.

Before BENET, J., Charleston, Action by Martha J. Fogle against the Protestant Episcopal Church of the Parish of St. Michael, on the following complaint: I. That the defendant above' named is, and at the times hereinafter mentioned was, a corporation created by and under the laws of the State aforesaid. II.

<p>This action, in the original jurisdiction of the Court, is based upon a petition by Samuel Lord, as receiver of the late corporation known as the president, directors and company of the State Bank, praying for a writ of mandamus against Hon. W. T. C. Bates, state'treasurer, requiring him to fund certain State bonds, alleged to be the property of said corporation, which have been lost. The case was first heard by the Supreme Court of four Justices, on the 18th day of May, 1896, and by them on the same day ordered to be argued before the full Court. Accordingly it was argued on the 30th day of May, 1896, before the full Court, consisting of the four Justices of the Supreme Court and the following Circuit Judges: Hon. Jas. Aldrich, Hon. Ernest Gary, Hon. D. A. Townsend, Hon. R. C. Watts, Hon. W. C. Benet, Hon. O. W. Buchanan, and Hon. Jos. H. Earle.</p>

Before Watts, J., Charleston, February term, 1895. Action by the Hampton and Branchville Railroad and Lumber Company against The Bank of Charleston, National Banking Association, for delivery to plaintiff of scrip for 200 shares of its capital stock. Heard by the Court of three Justices, November term, 1895.

Before Earee, J., Spartanburg, October term, 1895. The defendants, Edward D. Green, Fannie Carson, and John L. Page, were convicted of killing J. O. Carson. From this judgment the defendant, Edward D. Green, appeals on the following exceptions: Because the Circuit Judge erred in allowing the witness, William Blackwell, on the cross-examination of counsel for the defendant, Page, to testify as follows: “Q. How far were you from them when you saw them talking?

The first case is an application in the original jurisdiction of the Court by Amos Hooper and Brown Colvin for writ of habeas corpus; they having been imprisoned by a magistrate who held the office of trial justice at the adoption of the Constitution of 1895, and whose term had not expired. The second is an action by Henry K. Delk against John C. Zorn to foreclose a rent lien. It was tried before magistrate February 1st, 1896. Judgment for plaintiff. Defendant appealed.

Before Townsend, J., Laurens, The following is the Circuit decree appealed from: This case has been before the Supreme Court twice, and under the ruling of that Court, and the decree and orders made on Circuit, the only open questions are of an administrative nature simply. These questions were argued before me at February term of Court of Common Pleas for Laurens County, 1896.

Before Benet, J., Greenville, Action by the heirs of Hepsebah Sheppard agains.t the executors and grantees of Wm.

Before Benet, J., Aiken, Action by E. S. Hammond, as trustee, against Thomas E. Foreman, to enforce the specific performance by Foreman of a written contract executed by him to buy a tract of land from Hammond, trustee. Judgment for defendant. Plaintiff appeals. cites: Rich. Eq.

Before Aedrich, J., Hampton, Action by M. K. Fong against Hunter, Pierce, and Battey, for accounting, cancellation of mortgage, and damages. The amended complaint and amended supplemental complaint were ordered stricken out because the causes of action were not stated, as required by a previous order of .Judge Buchanan. From this order the plaintiff appeals. cite 11 S. C., 392. cites 5 Ency. P. & P., 336.

Before Witherspoon, J., Raurens, Proceeding by John W. Carlisle, as executor of Simpson Bobo, to eject H. G. Prior, as tenant of his testator, on the following notice: Complaint having been made untome by John W. Carlisle, as executor of the will of Simpson Bobo, deceased, that you, H. G. Prior, are now in unlawful possession of all that lot, tract, piece or parcel of land, situated in the said county and State, containing 170 acres, more or less, and bounded by lands of…

<p>Before Aedrich, J., Barnwell,</p> <p>Action by Hardy B. Hightower against the Bamberg Cotton Mills on the following complaint:</p> <p>1. That the defendant above named was at the times hereinafter mentioned, and now is, an unincorporated association, owning, operating, and conducting a cotton factory in the town of Bamberg, in said county and State, under the name and style of the “Bamberg Cotton Mills,” by which name and style it is usually known.</p> <p>2. That on the 26th of December, 1894, at the time of the committing of the griévances hereinafter mentioned, the plaintiff was in the employ of the defendant as a laborer in the “picker room” of said factory, and -was directed by the defendant to tend a dangerous machine known as a picker, and used to separate or pick apart raw cotton, at night, and it was the duty of the defendant to instruct the plaintiff as to the use and management of said machine, and explain its dangers to him; the said defendant then and there well knowing that the plaintiff was inexperienced and did not understand the workings of said machine, and had only been in its employ for four nights, and to furnish plaintiff proper and sufficient light while working the said machine.</p> <p>3. That the defendant, not regarding its duty, conducted itself so carelessly, negligently, and unskillfully in this behalf, that it failed and neglected to explain to the plaintiff that the “beater” or machinery, enclosed in a case, on the inside of said machine, and so out of view, and which case or box it instructed the plaintiff was apt and liable to become dirty, so as to need cleaning out by him from time to time, did not stop at the same time when the other parts of said machine, which were exposed to view, stopped, and did not furnish good and sufficient light to the plaintiff while using said machine, but, on the other hand, the light furnished by it was unsafe, defective, and insecure, of which it had notice.</p> <p>4. That for want of due care and attention to its duty in that behalf, on the day and' at the place aforesaid, and while the said picker or machine was in use by the plaintiff, the feed to said machine stopped, so that said machine would not work, the plaintiff then and there supposing that the box or case containing the beater had become dirty and needed,cleaning, as defendant had instructed him it would, disconnected the power belt, so that all the machinery on said machine in sight stopped and became still; and the plaintiff not knowing, by reason of the negligence of the defendant in failing to instruct him, that the “beater” on the inside of said case or box continued running of its own momentum after the other machinery had stopped, and being unable to see the beater moving in said case or box, on opening the same, on account of the insufficient and defective light furnished him by the defendant, put his hand inside of said case, after using due care and diligence on his part, to clean out said box or case, when his right hand was suddenly caught in the beater, which was rapidly revolving, drawn in, and so broken and crushed that the nervous system of the plaintiff was greatly shocked, and it became" necessary to have his said hand, together with a part of his arm, amputated, and was otherwise greatly damaged.</p> <p>5. That by reason of the aforesaid injuries, the plaintiff became ill for a long time, and had to have his right hand and a part of his arm amputated, was obliged to and did actually expend large sums of money for surgical and other treatment in attempting to cure himself, but his injuries are and were of a permanent nature, and the plaintiff is thereby prevented and hindered from engaging in active business, to his damage in the sum of $5,000. Wherefore, plaintiff demands judgment against the defendant for the sum of $5,000.</p> <p>The following is the order on Circuit:</p> <p>Upon the conclusion of the plaintiff’s testimony herein, the defendant moved for a nonsuit; and after hearing Messrs. Robert Aldrich and Izlar Bros., attorneys for the defendant, in support of the motion, and Messrs. Bellinger, Townsend & O’Bannon, and Davis, plaintiff’s attorneys, in opposition, the motion is granted; and accordingly it is hereby ordered, that the complaint herein be, and the same is hereby, dismissed, with leave to defendant to enter judgment for costs.</p> <p>From this order granting a nonsuit, and from the judgment entered thereon, the plaintiff appeals, on the exceptions following:</p> <p>1. That his Honor, the presiding Judge, erred in granting said motion for a nonsuit, because there was evidence tending to prove every material allegation of the complaint.'</p> <p>2. That his Honor erred in holding that there was no evidence tending to show any negligence on the part of the defendant, which was the cause of the injury to the plaintiff; whereas there was evidence tending to show that the machine which the plaintiff was employed to operate and attend was of such a dangerous character that it became the duty of the defendant to warn the plaintiff, who was inexperienced, of such dangers, and to instruct him as to the use of such machine; and there was further evidence which tended to show that the negligence of defendant in not warning the plaintiff, whom it knew to be an inexperienced servant, employed by it to tend a dangerous machine, of the danger attending the use of such machine, and which danger resulted in the injury to the plaintiff, was the proximate cause of the plaintiff’s injury; and there was further evidence tending to show that the defendant was negligent in not furnishing plaintiff sufficient light, while. in its employment, to enable him to see the dangers attending his work, when it knew him to be inexperienced.</p> <p>3. That his Honor erred in holding that the plaintiff assumed the risks of operating and tending said machine at the time he entered the employment of defendant, when there is no evidence to show that these risks were known to him; and, on the other hand, the evidence shows that he was inexperienced, and unaware of the danger which caused his injury.</p> <p>4. That his Honor erred in considering the question of the plaintiff’s assumption of the risks incident to his employment on a motion for a nonsuit, that being a question for the jury.</p> <p>5. That the evidence tending to show that the machine which the plaintiff was employed by the defendant to operate was of a dangerous character, and that the plaintiff was inexperienced in its use, his Honor erred in holding that the defendant was under no duty to warn the plaintiff as to such dangers.</p> <p>cite: 156 U. S., 391; 35 S. W. R., 851; 74 Fed., 186; 19 S. E. R., 262; 110 Ind., 18;' 35 N. E. R., 721; 27 N. E. R., 675; 14 S. E. R., 476; 8 N. E. R., 241; 30 N. E. R., 81; 13 Allen, 433; 3 Fort, 622; 102 Mass., 572, 579; 135 Mass., 294; 18 S. E. R., 360; 74 Fed., 608; 19 S. E. R., 724; 43 N. E. R., 651; 74 Fed., 155; 20 S. E. R., 752; 19 S. C., 20.</p> <p>cites: 15 S. C., 451; 36 W. Va., 232; 39 S. C., 44; 26 S. C., 495; 17 S. E. R., 890; 17 S. E. R., 746; 14 S. E. R., 999; 16 S. E. R., 212; 1 McM., 400; 22 S. C., 564.</p> <p>cite: 18 S. C., 262; 41 S. C., 392; 34 S. C., 214; 21 S. C., 101; 38 S. C., 370; 16 S. C., 397; 19 S. C., 23, 33, 511; 16 S. C., 636; 18 S. C., 554; 44 S. C., 315; 21 S. C., 549; 33 S. C., 198; 41 S. C., 390; 32 S. C.; 592; 31 S. C., 125; 29 S. C., 125; 26 S. C., 490; 25 S. C., 24; 23 S. C., 289.</p>

Before Witherspoon, J., Columbia, fall term, 1895. Action by John M. Graham and G. H. Tilton against American Fire Insurance Company of Philadelphia. The following is the charge of the Circuit Judge, excepting the formal parts: Mr. Foreman, I charge you that any one may insure property against loss by fire in which he has an interest, the insurance of which is not forbidden by law on the ground of public policy. Now, what is this insurable interest?

<p>Petition of Rebecca Clamp, asking the Court in its original jurisdiction to grant her a writ of certiorari, commanding Magistrate Hinnant of Fairfield County to certify to the Court of Common Pleas the proceedings had in a cause before him by A. R. Meares, as agent, to eject petitioner from certain lands of which she was in possession. The return to the summons was made on the 4th of January, and decided against petitioner. Upon application of this petitioner to Judge Witherspoon on Circuit, he granted an order enjoining the magistrate from ejecting the petitioner, upon her entering into the usual' bond.</p>

■ Before Benet, J., Abbeville, Action by W. D. Bradley against Bettie Drayton for possession-of a tract of land. The following is the charge of the Circuit Judge: The-plaintiff brings-'his action against the- defendant- to recover possession óf a tract of land on which he alleges Bettie Drayton-is now living and in 'possession -of, and unlawfully withholding it from him;-and he claims that he is the true owner of the land, and is entitled to possession.

Before Witherspoon, J., Spartanburg, Indictment against John Dill for the murder of John D. Kirby.

Before Aldrich, J., Colleton, Indictment against H. R. Garvin for stealing a lot of sheep belonging to Mrs. E. A. Sanders. The defendant was convicted. The following is the charge of the Circuit Judge: The defendant, H. R. Garvin, is indicted for larceny of live stock, to wit: the stealing of twenty sheep, of the aggregate value of $40, alleged to be the proper goods' and chattels of Mrs. E. A. Sanders.

<p>Before Townsend, J., Raurens,</p> <p>Action in foreclosure by Holland and Fowler against R. B. and Emma Jones. The following is the Circuit decree:</p> <p>This case was heard by me upon the pleadings and testimony taken by a special referee. On the 31st day of January, 1891, the defendant, R. B. Jones, executed to the plaintiffs his promissory note for the sum of $276.50, payable November 1st after date, with interest at eight per cent, per annum from date. In order to secure the payment of said note, the said defendant, on the same day, made, executed, and delivered to the plaintiffs a mortgage on a certain tract of land, which is described in the complaint. The defendant, Emma Jones, the wife of R. B. Jones, on the same day, renounced her dower in the said tract of land, on the mortgage. The consideration of the note was two mules sold by the plaintiff to R. B. Jones, or, rather, the difference between mules traded by Jones to plaintiff. This action is brought by the plaintiffs against the defendants to foreclose said mortgage, Emma Jones being made a party, because she claims some interest in the mortgaged premises adverse to the plaintiff’s lien. Both of the defendants answered the complaint, claiming that the title to the mortgaged premises is in the defendant, Emma Jones, and that such was the case at the time of the execution of the mortgage, and that plaintiffs have no right to foreclose. The answer of the defendant, R. B. Jones, in addition to the above defense, sets up a failure of consideration, growing out of the unsoundness of one of the mules purchased.</p> <p>I cannot sustain any of the defenses. It appears that credit was extended to Jones upon representations made by him that he was the owner of the land; that the defendant, Emma Jones, was present when the note and mortgage were executed; that the papers were read over in her hearing, and she made no objection. It further appears from the facts, and I so find, that after the papers were read over and executed by her husband, she renounced her dower on the mortgage, thus declaring and representing to the plaintiffs that the title to the land was in R. B. Jones. I hold that her conduct 'makes out a case of estoppel, and that after having misled the plaintiffs, she cannot now set up title in herself, and deprive the plaintiffs of their security. The plaintiffs did not know that she had title to the land, and they had a right to rely upon her conduct and representations, as well as those of her husband. The defendants also claim that the note and mortgage were only to be given for $250, instead of $276.50. I cannot sustain this view of it. The papers were read over to them, and they made no objection, and they cannot now question them. I also hold that, under the contract, the note was given for the amount' agreed on by all the parties. I may also add that there is no legal proof of title in the defendant, Emma Jones. I also hold that there has been no failure of consideration, and if there had been, the testimony discloses the fact, that the plaintiffs agreed with the defendant, R. B. Jones, to knock off $10 for the “colicy” mule, and $15 more in case the defendant paid balance due by a certain time, which was not done.</p> <p>I, therefore, conclude that plaintiffs are entitled to the relief which they seek; and it is ordered, adjudged, and decreed, that there is now due on the mortgage debt by the defendant, R. B. Jones, after allowing all proper credits, including the $10 above refered to, $168.22, for which amount it is ordered that plaintiffs have judgment against R. B. Jones.</p> <p>Erom this decree the defendants appeal, on the grounds that the presiding Judge erred: I. In not holding that the defendant, Emma Jones, established title to the mortgaged premises paramount to the plaintiffs’ mortgage. II. In not holding that the facts and circumstances of the case do not estop Emma Jones from asserting her title to the premises. III. In holding “that her (Emma Jones’) conduct makes out a case of estoppel.” IV. In holding that Emma Jones “cannot now set up title in herself and deprive the plaintiffs of their security.” V. In finding that the papers were read over in the hearing of Emma Jones. VI. In finding “that after the papers were read over and executed by her husband, she (Emma Jones) renounced her dower on the mortgage, thus declaring and representing to the plaintiffs that the title to the land was in R. B. Jones.” VII. In finding that Emma Jones misled the plaintiffs. VIII. In holding “that there is no legal proof of title in the defendant, Emma Jones.” IX. In finding that the note represented the true amount agreed on by the parties. X. In not finding that the true amount for which the note was to be given was $250, and that the papers were not read over to the defendant, R. B. Jones, or, if read over, they were read as though written for that sum. XI. In finding that there was no failure of consideration of the note and mortgage. XII. In finding that “if there had been (failure of consideration), the testimony disclosed the fact that the plaintiffs agreed with the defendant, R. B. Jones, to knock off $10 for the ‘colicy’ mule, and $15 more in case defendant paid balance due by a certain time, which was. not done.” XIII. In ordering a foreclosure of the mortgage against the defendants,</p> <p>cite: Estoppel: 1 Met., 542; 2 Cush., 264. Objection: 47 S. C., 566.</p> <p>cite: Notice to infroditce certified copies: 22 S. C., 361; 47 S. C., 566. Estoppel- 22 S. C., 548; 33 S. C., 206; 32 S. C., 511; 12 S. C., 352; 13 S. C., 570.</p>

<p>Before Witherspoon, J., Chester,</p> <p>Action by John Eyles Glenn and John J. Hemphill, assignees of the Bank of Chester, against William H. Rosborough, on two notes given for instalments on his subscription to the capital stock of the bank. Judgment for plaintiffs. Defendant appeals.</p> <p>The following is so much of the Judge’s charge as is necessary for a proper understanding of the questions:</p> <p>Now, Mr. Foreman, if you conclude from the testimony that in the declaration in these preliminary steps filed with the secretary of State, there was any misrepresentation as to what amount of stock was paid in of the capital stock, or in any other material matter, then if it was wilfully made to a party in interest for the purpose of deceiving him, then it would be a fraud. But if you conclude that there were erroneous statements in that declaration — merely erroneous statements — made with no intention to defraud or to injure any one, made under the honest conviction that, they were true at the time, made under a misconception or misconstruction of this law, then I charge you that if such existed, that the defendant in this proceeding cannot be relieved of liability incurred by the signing of that note by him. And why do I say so? Because that would be an irregularity in proceeding to obtain a charter. Now, what is an irregularity? The statute here says: “In all charters heretofore or hereafter granted, no irregularity in complying with the provisions thereof” — that is, the provisions I have read to you above — -“shall be held to vitiate said incorporation until a direct proceeding to set aside and annul said corporation is instituted by the proper authorities of the State; and all acts done and contracts entered into shall have the same force and effect as if said irregularity had not existed.” ' Now, I charge you, that if the law required these prerequisites, and if any of them have been omitted, the observance of them, and if the omission was not intentional, it was merely a failure, if you so conclude, to conform to the provisions of the statute, it is a mere irregularity, and does not vitiate the charter, and would not relieve the defendant from liability. I charge you that if you conclude from the evidence, that if you find that the defendant, Rosborough, voluntarily participated in the organization of this bank in electing directors; if he received dividends from that bank after signing that note, intending thereby to take benefit if the bank succeeded, it doesn’t lie in his mouth in a time of disaster to say that “I won’t be bound by it.” Now, I mean in the absence of fraud; understand me, fraud vitiates everything. He cannot, in order to invalidate this obligation, to relieve himself of his liability, he cannot be relieved of it, if you conclude that the bank was badly managed in business matters, and that in consequence of mismanagement it failed. He couldn’t ávail himself of that; I mean any mismanagement subsequent to the signing of this note. In other words, I call your attention and direct your attention especiall}’’ to the occasion upon which this defendant signed that note. Did McLure conceal anything from him? Did he deceive him? Did he intentionally commit any fraud upon him as president of the bank? Those are the very grounds upon which the defendant by his answer seeks to relieve himself of liability upon that note — concealment, deceit, and fraud practiced upon him by the officer of the bank — and that he acted upon that concealment by the officer of the bank, that deceit practiced by the officer of the bank, that fraud practiced by the officer of the bank; that he signed it under that influence, and wouldn’t have signed it otherwise. Now, what does this concealment mean? It means withholding something that you know — keeping it back from a party interested — intentionally doing it to the prejudice of that party. Because, as to actual fraud, there can be no actual fraud except the intent prompts and accompanies the unlawful act. Now, what is deceit? If I charge you with deceiving, you must know or have reason to know that I haven’t a knowledge of the matter that you communicate to me, and that you communicate it to me for the purpose of misleading me to my prejudice or to your advantage. Now, it is for you to say in this case whether there has been such deception, concealment or fraud practiced by any of these officers. On that ground and that ground alone can the defendant rest his defense and be relieved from his obligation. He must satisfy you from the evidence that some officer of this bank, McRure or some of the directors, or those authorized to act for the bank, made representations to him or concealed information from him that they had knowledge of to his prejudice, that he didn’t know as to the truth or as to the condition of affairs to which the conversation related, and that he could not by the exercise of ordinary care have found out whether the matters represented were true or false.</p> <p>cite: Irregularity in obtaining charter: 5 Rich. R., 145. Fraud not available against creditors: 11 S. B. R., 610.</p>

<p>Before Buchanan, J., Darlington,</p> <p>At the June term, 1896, of the Court of General Sessions for Darlington County, the order following was made and embraced in what is known as the “General Orders:”</p> <p>“7. The grand jury having in their final report presented the bond of the master in equity as insufficient, it is ordered, that a copy of the paragraph so reporting said bond, be served upon the master, and. that the said master, R. K. Charles, Bsq., do give a new official bond with sufficient sureties, to be approved by the proper officers, within thirty days after service of said paragraph upon him, and that on his failure so to do as aforesaid, that the clerk of this Court do notify the solicitor of such failure, and that said R. K. Charles do show cause before such Judge, and at 'such time and place as the solicitor may notifj^ him to and of, why he should not be proceeded against, or his office declared vacant by the proper authority, or such other steps be taken' in the premises as the solicitor may be advised as proper and necessary.</p> <p>“8. That the paragraph referring to the insufficiency of the master’s bond, with the section of that order, be served upon the county supervisor, for him to submit to the county board of commissioners, and that said board do examine into the sufficiency of said bond, under the provisions .of section 512, vol. I., Revised Statutes, and report their finding to the comptroller general, if they find the same insufficient.”</p> <p>R. Kelso Charles, master, excepts to the said order, and alleges the following errors:</p> <p>(1) The Court of General Sessions had no jurisdiction to make the order. (2) If it can be construed as made in the Common Pleas, that Court has no jurisdiction to make the order. (3) It is erroneous in either Court to make an order affecting a substantial right, founded solely on the suggestion of a grand jury, without investigation or notice to the person affected. (4) It is error to make a rule to show cause at an indefinite time and place, and before an undesignated tribunal, all at the option and selection of the solicitor or, in default, to suffer an undefined penalty. (5) It is error to require a master to execute a new official bond, on account of the insufficiency of the old, before the fact of such insufficiency is established, and pending such inquiry ordered by the Court. (6) It is error to make an order so indefinite and multifarious as the order complained of, which tends to cast a cloud or suspicion on the title to the office, and impede and interfere with the duties thereof, without affording the officer the opportunity of removing the same, except at the option of the solicitor. (7) The statute having established State and county boards for the examination of official bonds, and particularly designated the mode of procedure, it is error to depart from that mode, at least when no good and sufficient reason exists for so departing, or when no emergency is alleged to exist.</p> <p>cites: 10 S. C., 35; 12 Rich., 499; 5 S. C., 341.</p>

<p>Before Benet, J., Charleston,</p> <p>Action by William Starr Miller, George Norton Miller, and Horatio Ray Miller against Horatio C. Hughes, and the same against A. F. C. Cramer, to compel specific performance of their bid for certain real estate. Three cases of like import were tried together on Circuit. This Court adopts the Circuit decree, which is as follows, excepting the formal parts:</p> <p>These three cases, involving to a large extent the same facts and the same principles of law, were conducted and argued together before the master, and were also argued together before me, upon exception to the master’s report. Three pieces of property in Charleston are involved — a vacant lot on Bee street and two adjoining lots with buildings on them on Spring street. One C. V. .Chamberlain bought these lots in 1863, and the title anterior to him was not seriously contested. He bought these lots and a good many other lots, a farm on Charleston Neck, and a large lot of cotton, prior to the 10th of February, 1865. On that day he executed a “declaration of uses” in regard to all this property. In it he recites that George N. Miller, of New York, had for many years been a partner with himself, C. V. Chamberlain, under various styles and firms. That George N. Miller had some years previously withdrawn from the firms and retired from business. That he had left Chamberlain in possession of the partnership funds, to manage, collect and settle the same. That large sums of money had during the present war and before been thus collected by Chamberlain, “for and to the use of the said George N. Miller, which it was not possible to remit to Miller in New York (evidently because the war between the States was then-flagrant), nor to hold and safely keep for his tese, by reason of the war and of the great doubts and uncertainty of the nature of the present currency.” That it was unsafe to invest “said trust money in the name of the said Miller, to whom it rightly belonged” (evidently from fear of confiscation by the Confederate government). That, therefore, he, Chamberlain, had made “large investments, and the same appear to be his own estate and property, but are in fact in trust for George N. Miller,” who might be “put to great trouble and vexation” should he, Chamberlain, die without executing this declaration. Chamberlain, in this “declaration of uses,” sets out the property bought as above, viz: fourteen different pieces of real estate, and 190 bales of upland cotton and 200 bags of sea island cotton. The lots involved in these suits are mentioned in this “declaration of uses.” This “declaration of uses” was naturally not put on record till after the war. It was left in the possession of J. B. Campbell, then a prominent member of the Charleston bar, who represented Miller, and after the war was taken by Chamberlain, with the full assent of all his late copartners, to New York and then delivered to Miller. It was put on record in Charleston County, S. C., on the 17th March, 1868; Colleton County, S. C., on the 14th August, 1877; Leon County, Florida, 27th July, 1891. With the above “declaration of uses,” which neither Chamberlain nor any one claiming through him can contradict or deny, there was clearly a resulting trust as to all this property in favor of George N. Miller. The declaration is emphasized by the record of the deed not only in 1868, but also in 1877, and as late as 1891. Chamberlain concludes this “declaration of uses” by saying, that he holds-the said property (both real and personal) “for the use of the said George N. Miller * * * for and until the full payment as aforesaid (of all moneys due Miller ‘by reason of the above recited premises’), in case they shall be sufficient for such payment, and the surplus, if any, for his, Chamberlain’s, own use.”</p> <p>1 2 3 This subsequent declaration cannot vary the effect of the declaration contained in the first part of the deed. In a deed, if there is a conflict between the provisions, those first declared prevail. Sims v. Meachan, 2 Bail., 101; 4 Cruise Dig. Real Estate, 244, s. p. specially n. 2. Chamberlain could not buy property with Miller’s money and then say that if any profit resulted from the investment, he, Chamberlain, trustee, and not Miller, whose money had bought the property, should have it. Minton v. Pickens, 24 S. C., 592; 27 Am. & Eng. Enc. of Daw, p. 194. The defendants claim, however, that subsequent events change the above, viz: Chamberlain died in 1866, leaving of force his last will and testament, which was probated 16th February, 1867, headed, “State of South Carolina, Charleston District,” by which he gives all his property, real and personal, to “Detitia Chamberlain, of Kings County, New York,” on the trusts to convert all his property into cash, and to hold it up to the amount of $100,000, for the use of herself and her children (naming them), and the surplus, if any, to his brother, Alfred Chamberlain, for his, Alfred’s, daughters. He appoints Alexander Isaacs and Thomas R. Waring his executors. On 4th April, 1868, Detitia Chamberlain filed her bill in equity in Charleston County, S. C., against Alex. Isaacs and Thomas R. Waring, executors, George N. Miller, Alfred D. Chamberlain, trustee, Ann V. Chamberlain, George D. Chamberlain, and Charles Chamberlain (these last three being Detitia’s children). She claimed to be the wife of C. V. Chamberlain. Answers were filed by all the defendants. The children were then (13th May, 1868,) of the respective ages of fifteen, thirteen, and nine years. The youngest, therefore, came of age in 1880. B. C. Pressley (subsequently Judge Pressley) was appointed their guardian ad litem. No testimony is on file, and all we know of the facts of the case is derived from the pleadings and from Master Gray’s elaborate report of 15th July, 1869. It appears that some testimony as to Detitia’s marriage, which was denied by Miller and Isaacs and Waring, was taken, and then the case was stopped and compromised. Mr. Gray reports that C. V. Chamberlain had in his lifetime been a member of several firms, the more recent of which were Chamberlain, Miller & Co., consisting of Chamberlain (deceased), Miller (alive), and Smalls (deceased); and Chamberlain, Isaacs & Co., consisting of Chamberlain (deceased), Smalls (deceased), and Isaacs (alive). He then reports that the undivided halves of the lots on Spring street were partnership property, and the other undivided halves and the lot on Bee street were the private' property of Chamberlain, thus contradicting Chamberlain’s declaration without an iota of testimony. Then he sets out the “declaration of uses” mentioned as above, and reports that it was made with the full assent of all Chamberlain’s partners. That subsequently Miller released to his former partners the interest on the debt due to him which had accrued during the war, and, furthermore, allowed them to sell the cotton “dedicated to his relief,” and “which he had an undoubted right to hold,” and to pay all their other debts, so that he was the sole creditor of the two firms. That they owed him then (15th July, 1869,} $154,008.87, with interest since 23d November, 1865, which there was no hopes that the partnership property would pay. That the private property of Charles V. Chamberlain is chargeable first with his private debts, including the chief one to Miller of $4,100 and interest, and was sufficieut to pay all these and leave a surplus. But even with this surplus added, the partnership debt to George N. Miller, for which Chamberlain’s private property was liable, could not be paid. The settlement recommended by Mr. Gray was that Cetitia Chamberlain should release all claims, including her claim for dower on the estate of Chamberlain, surrender certain stocks of his she held (South Carolina Railroad, 100 shares), and convey all partnership property to Isaacs and Miller, survivors, and all Chamberlain’s individual property to Isaacs and Waring, executors, and in return she was to receive $3,000 in cash, and George N. Miller was to return to her the securities he held as collateral to the debt of $4,100, release her from it, and look to the estate of Chamberlain for its payment. This settlement was confirmed by a consent decree of 16th July, 1869. By it the executors were authorized to sell Chamberlain’s private property, to be administered according to law. On the 22d July, 1869, eight days later, all the solicitors in the case signed a memorandum stating that an error had been made in the decree, and that the same was “intended by all the parties thereto and their solicitors, not to modify or impair the vahte to the defendant, George N. Miller, of the declaration of uses in his favor made by C. V. Chamberlain February 10th, 1865, of his private real estate, except so far as may be necessary to' apply it for the payment of his private debts, after which the property named in the declaration is to be applied according thereto to the payment of the debt to Miller.” By a decretal order of 14th June, 1870, modifying the erroneous order, it is decreed, “That the real estate of the testator, C. V. Chamberlain, by his deed of February 10th, 1865, dedicated to the payment of the debt of Chamberlain, Miller &' Co., to George N. Miller, be applied andpaid on said debt * * * and also that the said executors, after payment of his personal debts, do in like manner pay whatever may remain of his estate, real and personal, on the said debt to George N. Miller; all such payments to be credited to the account of C. V. Chamberlain in the partnership books for future accounting.” Uetitia Chamberlain released all the property respectively to the proper parties, according to the decree, was paid off, and with her children and Alfred U. Chamberlain and their solicitors (Hayne & Son) disappear from the case at this point, Messrs. Campbell & Pressley remained. Miller being dead, Isaacs, in consideration of $50,000 credited on Miller’s debt, but not paid to him by Miller, conveyed all the property designated as partnership' property to Miller by deed, dated 30th June, 1877. This was confirmed by the Court. Mr. Pressley assents to this order, and appears in the case no longer as attorney. Under this deed pass the undivided halves of the two lots on Spring street, and there is no dispute as to the title of these halves. Nothing more was done in the case till 22d April, 1880, when Campbell for Miller availed himself of the leave given by the decree of 14th June, 1870, to any party to apply at the foot of that decree for further orders, and filed a petition in the case setting out all previously stated facts, adding that Waring, executor, had died, and that Isaacs, as surviving executor, could not sell the property without the order of the Court. This petition was served on no one. It came before Judge Pressley, then on the bench, and acquainted, as former counsel, with all the facts. On 22d April, 1880, he filed his decree, holding (1) That by the deed of Chamberlain, 10th February, 1865, it was declared that these lots (including all the lots in dispute) were “purchased and paid for with the moneys of the said petitioner (Miller), and that the testator, Chamberlain, had only a legal estate therein, zvhile the ttse and equitable estate was in the petitioner (Miller).” (2) That Letitia Chamberlain, by order of the Court, had conveyed the said lands to Waring and Isaacs, executors, “to the intent that they should convey them unto the petitioner (Miller), or apply them to the payment of the debt to him.” Therefore, he decreed that Isaacs, executor, '■'■have leave to sell and dispose of the five lots of land * * * and that he apply the proceeds of sale,” as directed previously. This ended the proceedings in the main cause, and leaves no doubt in iny mind that the five lots of land set out in this petition were held by Isaacs, the executor of Chamberlain, in the same right that Chamberlain held them since February 10th, 1865, viz: with a resulting trust in favor of George N. Miller. The decretal order of 14th June, 1870, modifying and correcting the decretal order of 16th July, 1869, makes this clear. From the date of that decree, no private creditors of C. V. Chamberlain had any claim on this property. In his lifetime, as far back as 1865, thirty-one years ago, he had dedicated these lots to the payment of the debt, whether his own debt or that of the firm, due to George N. Miller, by declaring that he held them to his use. Private, creditors, if there were any such, could not interfere with this. They were relegated by the decree of 22d April, 1880, to the remainder of his property, which was sufficient to pay his debts. Further we have a list of Chamberlain’s private creditors. They are only George N. Miller himself, Letitia Chamberlain, claiming to be his wife, who could not, if his wife, have had a claim against him in 1866, and one Bliza Lewis. Miller’s debt we need not consider. Letitia’s claim is a sealed note, dated May, 1866, and was presumed paid in 1886. In anv case, she was a party to the suit, and paid off. Bliza Lewis’ claim is a sealed note for $957.51, dated 15th July, 1856. It was presumed paid as far back as July, 1876. From 1865, then, Chamberlain and Isaacs have held these five pieces of property as dry trustees, with the sole duty to convey them to George N. Miller. Williams v. Hollingsworth, 1 Strob. Eq., 111. Perry Trusts, sec. 165a. Under the recent decisions in this State, it may well be held that this resulting trust in favor of George N. Miller, was executed as early as 1863; and certainly after the decree of the 22d April, 1880, and that the title was then vested in him. As in Railway Co. v. Scott, 38 S. C., 38, it was “a dry trust,” and nothing was to be done by the trustee except to turn the title over to George N. Miller. Foster v« Glover, 46 S. C., 526. But be that as it may, the law presumes that Isaacs, on 22d April, 1880, did his duty as he had done it previously, in regard'to the so-called partnership property, and conveyed these five lots, etc., to Geo. N. Miller. The debt to Miller on 22d April, 1880, disregarding cents, was: Original debt reported by Gray, $154,009; interest from 23d November, 1865, to June 20, 1877, $114,870 — $268,879. Deduct value of partnership property conveyed to him by Isaacs, $50,000— $218,879. Add interest to 27th April, 1880, $43,000; due Miller on 22d April, 1880, $261,879. Gray’s report shows that there was no possibility of the property paying this debt. The valuation given of these five lots in 1894 was $20,000 to $25,000; deficit, $236,879. So the sale which Isaacs had “leave” to make, but was not ordered to make, of property which by order of Court Uetitia Chamberlain had conveyed to him and Waring, “to the intent they should convey them unto the petitioner,” or apply them to the payment of his debt, was simply to incur useless expense and inflict a greater loss on Miller. It was clearly Isaacs’ duty to make the conveyance. His own declarations make it clear that Miller had possession of the property, and was receiving all the income from it, and that he held all this property as Miller’s, and in no other right. The rule of law in such cases is, that “there is hardly a species of act or document, public or private, that will not be presumed in support of possession.” Best Presumptions, sec. 393. “§ 394. Under this head comes the important doctrine of the presumption of conveyances by trustees. It is a general rule that, whenever trustees ought to convey to the beneficial owner, it should be left to the jury to presume that they have so conveyed, where such presumption can reasonably be made. This rule has been established to prevent just titles from being defeated by mere matter of form, but it is not easy to determine the extent of it. It may, however, be stated generally that the presumption ought to be one in favor of the owner of the inheritance, and not one against his interests. So, also, analogously as to the surrender of terms.” “§ 397. Where acts are done or omitted by the owner of the inheritance and persons dealing with him as to the land which ought not reasonably to be done or omitted if the terms existed in the hands of a trustee, and there does not appear to be anything that should prevent a surrender from having been made, a surrender of the term may be presumed.” * * * “§ 399. Whether, where presumptions are made in .support of a peaceable or beneficial enjoyment, the jury are bound to believe in the fact which they find, has been made a question, and there certainly are authorities both ways. Upon the whole, it may, perhaps, be safely laid down that, as in all presumptions of this nature, legal considerations more or less predominate, the jury ought to find as directed or advised by the Judge, unless the suggested fact appears absurd or grossly improbable.” * * * This doctrine is fully supported by Mr. G-reenleaf, vol. 1, sec. 46, and Sugden V. & P., cited by both of the above authors. This case comes completely under the above rule. Miller and his heirs .have conclusively proved their “right to the beneficial enjoyments” of the property, and have been in possession, receiving the rent exclusively for more than twenty years. Acts have been done by them, and persons have dealt with them as to this land, which ought not reasonably to have been done if they were not the owners of the land. They have sold parts of the property and purchasers have accepted the title. Isaacs, as executor, had the one duty to perform, to convey this property to Miller. There is nothing “absurd or grossly improbable” in presuming that he did make the conveyance to Miller. Therefore, he was not only practically but also actually right in his invariable and often repeated and uncontradicted declarations made for more than twenty years that the property was Miller’s. Equity will in this case enforce its favorite doctine, and consider that done which should have been done.</p> <p>4 There is another ground upon which I feel bound to support the title of the Millers, and that is the ground of time, both on the presumptions that arise from the lapse of twenty years and from adverse possession. For the presumption' arising from the lapse of time, twenty years, the Millers have the right to tack their possession to that of Chamberlain’s and thus go back to 1863, more than thirty years. Or really, as the title back of Chamberlain’s was admitted to be good, it goes back really to the grant. McLeod v. Rogers, 2 Rich., 22 and 23. This presumes a title: “The lapse of twenty years (Ch. Harper) is sufficient to raise the presumption of a grant from the State; of the satisfaction of a bond, mortgage or judgment; of the grant of a franchise, or the payment of a legacy, or almost anything that is necessary to quiet the title of property. * * * It is hardly necessary to say that legal presumptions are not founded on actual belief. * * * Wilcox v. Waller, 12 Ves., 267; Mayor v.' Holmes, Cow., 162; Bedle v. Baird, 12 Co., 5, p. 2S0. Presumptions must be sometimes against the well-known truth of the fact.” “If twenty years have elapsed without the payment of interest, * * * we would presume it (the bond) paid, notwithstanding the fullest conviction that it never has been paid.” (387.) Riddlehoover v. Kinard, 1 Hill Ch., 376; Cf. Hutchinson v. Nolan, 1 Hill, 222. “The belief may be distinctly the other way, and yet the presumption exists.” (Id., 380.) As the facts stand in this case, the presumption in favor of Miller and his heirs may be started from several periods, each giving him therein more than twenty years’ possession. 1st. From 1863, when Chamberlain bought the property with Miller’s money. This gives thirty-two years’ possession of Miller and those through whom he claims, no matter what may be the effect of Chamberlain’s “declaration of uses,” or of the proceedings in Tetitia Chamberlain v: Isaacs, etc. 2d. The deed of Letitia Chamberlain to Isaacs and Waring, executors (1869), they holding as the executors of C. V. Chamberlain, and holding only to the use of George N. Miller, more than twenty years, and under the final decree in the case to convey the property to Miller, or to sell it and apply the proceeds, confessedly inadequate to the debt due to Miller. The lapse of twenty years is proved by Kennedy’s testimony as to the Spring street lots, that he and his father collected the rents from them for over twenty years for Isaacs as the agent of George N. Miller, and after his death, for his heirs, and continues in the same way to do so now for Hastie as agent, since Isaacs’ death, for the Millers. As to the vacant lot on Bee street, as early as 1874 Major Gadsden leased it from Isaacs as the agent of George N. Miller, and held it as tenant in this way for fourteen consecutive years. Since that time it has been steadily in the possession of Miller’s agent, though some time unoccupied. Miller’s agents have paid taxes on the land and received what rents have come from it, have kept it fenced and held it as Miller’s property without challenge since 1874, twenty-two years. This constitutes exclusive possession; and I find as a matter of fact that George N. Miller and his heirs (the present plaintiffs) have had exclusive, continuous, and adverse possession for over twenty, years. Again, the title of the Millers, the present plaintiffs, is good by adverse possession. They are the heirs of their father, and, therefore, can tack his possession to theirs. Whatever doubt on the point ever existed, it is now settled law in this State that adverse possession is not only a “shield of defense, but also a sword of offense.” Busby v. Florida Rd. Co., 45 S. C., 312.</p> <p>5 “The law presumes possession unexplained to be adverse possession.” Alexander v. Gibbon, 24 So. East. (N. C.), (April, 1896,) p. 750. “Holding exclusively and adversely and openly are the highest acts in the power of the disseizor to indicate his intention.” Kinsell v. Daggett, 11 Maine, 309-314; cited in Elder v. McClaskey, 70 Fed. Rep., 540. Even a cotenant is not bound to give actual notice to his cotenant of “ouster or disseizure.” “He must, in the language of the authorities, ‘bring it home’ to his cotenant. But he may do this by conduct, the implication of which cannot escape the notice of the world about him, or of any one, though not a resident in the neighborhood, who has an interest in the property, and exercises that degree of attention in respect to what is his that the law presumes in every owner.” Said Mr. Justice Bradley, In re Broderick's Will, 21 Wall., 503, 519: “Parties cannot, by their seclusion from the means of information, claim exemption from the laws that control human affairs, and set up a right to open up all transactions of the past. The world must move on, and those who claim an interest in persons and things must be qharged with the knowledge of their status and condition, and of the vicissitudes to which they are subject.” See, also, Townsend v. Eichelberger (Ohio Sup.), 38 N. E., 207; Webster v. Society, 50 Ohio St., 1, 13, 33 N. E., 297; State v. Standard Oil Co., 49 Ohio St., 137, 188, 30 N. E., 279; Williams v. Coal Co., 37 Ohio St., 583; Howk v. Minnock, 19 Ohio St., 462. * * * “By the overwhelming weight of authority, however, actual notice is not necessary, and acts public and notorious, and of such a character as to leave no doubt to any one observing that exclusive right of enjoyment against every one is asserted by the holder, are quite sufficient to bring home notice of ouster to the tenants in common.” Elder v. McClaskey, 70 Fed. Rep., 540. The claim of the defendants that the Millers were equitable tenants in common with Chamberlain’s private creditors, and, therefore, could not acquire title by adverse possession, I cannot sustain. If any creditors other than Eliza Eewis ever existed, their claims, like hers, are presumed to have been long since paid. Chamberlain’s will was proved February, 1867. (He died in 1866.) He left an estate large enough to pay his private creditors (of whom George N. Miller was the largest), and leaves a surplus. It is impossible to suppose that in these circumstances that Isaacs and Waring, both unimpeached in character, did not discharge their duty and pay-these debts, or that the creditors, if unpaid, would not have sought a remedy at law. McKinley v. Gaddy, 26 S. C.,' 573, is conclusive on this point.</p> <p>Of one thing there is no dispute. When Isaacs died in December, 1882, and Hastie & Son took possession of all this property, they took possession of it solely as the agents of George N. Miller, and have ever since held as such or as agents of himself or of his heirs, without challenge from any one. They cannot be charged with any character of executor or trustee, &c., and have held it openly, notoriously, exclusively, continuously, and adversely to all the world since 30th December, 1882, simply and solely as agents of the Millers. The title deeds in this case were tendered to Cramer and Drews, the other purchasers, in September, 1894, more than ten years after Hastie 8c Son took possession solely and exclusively as the agent of the Millers, and there are no minors interested. It would be enough, however, if possession had ripened into title before this decree. Lesesne v. Witte, 5 S. C., 463. Nothing has been produced by the defense to rebut the presumption of law that the possession of the Millers was adverse; on the contrary, the clear preponderance of the evidence is that it was adverse.</p> <p>6 Again, the law does not compel any one “to take a doubtful title. But on this subject the Court acts on a moral certainty, and a purchaser will not be permitted to object to a title on account of a bare possibility.” In this case, not even a “bare possibility” of the title being bad, or being attacked, has been shown.</p> <p>I do not consider at length, the ex parte proceedings of the plaintiffs in this cause, in the case of Uetitia Chamberlain v. Isaacs et al,., because I have reached the conclusion, independently of this, that the Millers have a good and marketable title which the purchasers must take.</p> <p>Both by general law and also by the special provision of the decree in these ex parte proceedings, the Millers have the right to disregard these proceedings and rely on any title they have. Strange v. Durham, 1 Bay, 441; Gordon v. Parsons, 1 Bay, 38 (A. D. 1786); Giles v. Pratt, 2 Hill, s. p. 439; Riddlehoover v. Kinard, 1 Hill Ch., 376; Whitman v. Bowman, 27 S. C., 53; Bligh v. Rochester, 7 Wheat., 545; Bigelow Estoppel, pp. 355-360. I do not, however, see that the proceedings are irregular. Their sole object was to have a purely ministerial order executed. The Court had ordered Isaacs either to convey the property to Miller or to sell it and apply the proceeds to the payment of the debt due to him. Isaacs had died, and Miller had died, and no deed from Isaacs to Miller could be found by Miller’s heirs. Under the leave reserved, they, as privies both in blood and estate to George N. Miller, applied to the Court for an order to the master to execute the conveyance. The Court looked into the matter, and found property valued at $25,000 to meet a debt of $261,879, with interest from, say, April, 1880, to October, 1893, $238,420— $500,299 — and no assets to do more. It ordered the sale. Morgan v. Morgan, 45 S. C., 323, establishes the right of the Miller heirs to. file these proceedings. The only question is, should they have served notice on the parties to the original suit? In Morgan v. Morgan there is an obiter dicttun that implies that they should have done this. But on this point these cases are whoU}' different. In Morgan v. Morgan, creditors sought to subject property of the decedent in the possession of his heirs to the debts of the decedent. In other words, sought active relief against the heirs, and sought to change the rights of parties. In Miller’s case no relief against any one was sought and no change of right asked.</p> <p>In courts of law, only parties having an interest in the subject of litigation are brought into court. .In this case no party to the original suit had the slightest interest in the property, which had been practically turned over to the Millers for more than twenty years. Every point in the cause of Chamberlain v. Isaacs had been decided, and as no appeal had been taken definitely, and conclusively decided, and no party to these proceedings except the Millers had in October, 1893, the slightest interest in the property. See Daniel Ch. B. P., pp. 1539-90. “No notice need be given of the application for an order, of course, as no opposition can be offered to it. If there is any irregularity in the order, or it has been obtained upon any false suggestion or by the suppression of any material fact, it will be discharged on special application by motion, although on the merits it would have been proper to make the order.” Our Code contemplates such orders without notice. Secs. 402 (3), 403. I make these remarks on these proceedings only in order to decide all the points raised in the case, but I do not regard these ex parte proceedings at all essential to the validity of the Millers’ title. I overrule the master’s-report.</p> <p>From the decree in favor of plaintiffs, defendants appeal.</p> <p>cite: Parties and privies to partition decree: 5 Rich. Eq., 531. Revival of actions: 42 S. C., 391; 22 S. C., 589; 35 S. C., 402; 22 S. C., 444. Adverse possession: 3 Strob. Eq., 138; 2 Hill Ch., 513. Purchaser's title, kind: Rich. Eq. Cases, 244.</p> <p>cites: Resulting trust: 1 Strob. Eq., 110; 19 S. C., 134; 23 S. C., 256; 2 Bail., 101; 24 S. C., 592. Dry trust: 38 S. C., 34; 46 S. C., 526. Declarations against interest: 2 Hill, 489; 16 S. C., 142. Revival of action: 45 S. C., 323; 13 S. C., 241. Order reqtidring exeaitor to sell: 11 Rich. Eq., 156; 2 Munif., 42; 2 Vern., 99; 2 S. C. (Ex. Eq.), 311; 2 Brock, 422; 14 S. C., 595. May set tip any title: 1 Bay, 441 and 38; 2 Hill, 439; 1 Hill Ch., 376; 27 S. C., 53; 7 Wheat., 545; 70 Fed. Rep., 547. Tacking: 2 Rich., 22; 7 Rich., 355; 29 S. C., 372. Presumption by possession: 12 Ves., 267; Cow., 162; 12 Co., 280; 1 Hill Ch., 376; 1 Hill, 222; 3 Hill, 335; 14 S. C., 43; 17 S. C., 466; 20 S. C., 51; 23 S. C., 149; 14,S. C., 552; 2 Mill, 420; Cheves.Eq., 57; 1 Strob.; 25; 2 Strob., 6; 4 Rich., 50; 11 Rich. Eq., 269, 559; 28 S. C., 486; 31 S. C., 602; 36 S. C., 202; 37 S. C., 317; 38 S. C., 39; 46 S.'C., 326, 356. Adverse possession: 45 S. C., 312; 24 S. E. R., 750; 13 S. E. R., 635; 26 S. C., 609;- 44 N.. E. R.,' 337; 5 S.-C., 463. Findings below: 42 S. C., 182, 380; 44 S. C., 386; 47 S. C., 63. Title by possession: 17 Ohio St., 130; 53 N. Y.,287; 70 Fed. Rep., 552. Purchaser's title, kind: 6 Rich. Eq., 222; 9 S. C., 269; 24 S. C., 487. Debts barred: 15 Rich. E-, 162. Individ^lal cannot bind firm after dissolitiion: 20 S. C., 49; 23 S. C., 582; 25 S. C., 235; 33 S. C., 505; 26 S. C., 578.</p>

Before Benet, J., Charleston, Action by I. Birlant against M. M. Cleckley, doing business under the name and style of the Folding Trunk Company, upon a special contract for services. The following is' so much of the charge as is necessary to understand the questions: Although all of you are business men, it may be proper for me to briefly instruct you what is meant by a contract.

Before Wither-spoon, J., Anderson, Action by Sylvester Bleckley Company against John A. Alewine, John B. Row, and John D. Alewine, on the following complaint, excepting formal parts: II. That on the 4th day of January, 1894, the defendant, John A. Alewine, for full .valuable consideration, made and delivered to J. S. Fowler his certain note, of which the following is a copy, to wit: “$295.25. Anderson, S. C., January 4th, 1894.

<p>Before Buchanan, J'., Charleston,</p> <p>Action by the South Carolina and Georgia Railroad Company against the Bast Shore Terminal Company, to enjoin the defendant from prosecuting a proceeding to condemn a right of way across the lot of plaintiff. From an order of Judge Buchanan, dissolving a temporary injunction previously granted by him upon rule to show cause, the plaintiff appeals.</p> <p>cite no authority on point decided.</p> <p>cite on point decided: 34 S. C., 345; 36 S. C., 559; 43 S. C., 187.</p>

<p>Deed. — The deed herein construed to carry a fee simple to grantee.</p>

Before Buchanan, J., Lexington, Action by John S. Swygert against Paul Wingard and F. W. Wagener & Co., for damages for alleged trespass. From an order dismissing the complaint, the plaintiff appeals. The opinion states the facts. cite: Floyd v. Floyd, 4 Rich.; 18 S. C., 115; 3 Strob., 425; 10 Wend., 656; 14 Rich., 214; Rucker v. Buyck, 37 S. C., cite: 35 S. C., 486; 6 M. & W., 460; 10 Wend., 656.

Before Aldrich, J., Barnwell, Petition by E. H. Jenkins in the cases of Uriah Dunn against J. J. Hogg and T. S. Cave & Bro. against J. J. Hogg', asking a writ of assistance against G. M. Hogg and J. J. Hogg, requiring them to let him, as purchaser at foreclosure sales in said cases, into possession of the lands sold. The proceeding was heard, on motion, on affidavits by both sides.

Before Earee, J., Hampton, Action by Smith Bros, against Bouis B- Youmans and M. E. Brabham, oil a negotiable note executed by Youmans to the order of Brabham, and by him endorsed in blank to -the plaintiffs. Youmans was not served. Judgment for plaintiffs. Defendant, Brabham, appeals on following exceptions: 1. Because his Efonor erred entirely in sustaining the referee’s report in this case. 2.

<p>Before Townsend, J., Anderson,</p> <p>Action by Mrs. Amanda C. Wilson and the other heirs at law of J. C. Eaton against William Watkins for possession of a tract of land and partition among themselves.</p> <p>The Circuit Judge filed the following deeree:</p> <p>In this action the plaintiffs seek to recover possession of a tract of land, and to partition it among them. ' The facts reported by the special referee show that J. C. Eaton made a deed to said land to R. G. Eaton on the 16th July, 1874, which was.duly recorded; that on the day of January, 1879, R. G. Eaton made a deed to said land to the defendant, Wm. WTatkins; that J. C. Eaton died in 1877, and R. G. Eaton in 1894; that R. G. Eaton never had any children, and the plaintiffs are the legal heirs of J. C. Eaton. It is also in proof that $500 would be a full price for the fee simple title to said land at the time it was conveyed to R. G. Eaton, and that $90 was a fair rental value thereof for one year. The plaintiffs contend that the deed -from J. C. Eaton to R. G. Eaton conveyed only a life estate in said land, and that they were entitled to possession thereof immediately on the death of R. G. Eaton in December, 1894, basing their claim both upon the habendum clause of said deed and also upon a certain condition expressed in said deed. The defendant, Wm. Watkins, contends that J. C. Eaton conveyed a fee simple title to R. G. Eaton, and that R. G. Eaton conveyed the same to him, and that plaintiffs have no cause of action. The habendum clause in the deed from J. C. Eaton to R. G. Eaton is as follows: “To have and to hold, him and his forever;” and the condition above mentioned is as follows: “If the said R. G. Platon shall die without children, then the said premises revert back to said J. C. Eaton or his legal heirs.” The defendant contends that the habendum clause, as it is written in the deed, has no meaning, and that as J. C. Eaton intended to convey a fee simple title, apt words to convey such title should be inserted in said clause, so that it will read as follows: “To-have and to hold, him and his heirs forever.” In the entire absence of any testimony showing such intention on the part of J. C. Eaton as that the parties to said deed, or either of them, intended to insert in said clause the words now sought to be inserted therein, I must leave it as it is written in the deed. The defendant contends further, however, that the deed taken as a whole (and especially the warranty clause) shows that the grantor, J. C. Eaton, intended to convey a fee simple title. But the inference to be drawn from the warranty clause and the other parts of the deed referred to are not sufficient to support the reformation sought for. Jordan v. Neecer 36 S. C., 295. I therefore conclude that R. G. Eaton took only a life estate in said land from J. C. Eaton, and that at the death of R. G. Eaton the plaintiffs were entitled to possession of said land; and that the defendant is liable to the plaintiffs for the rent thereof since the death of R. G. Eaton.</p> <p>It is, therefore, ordered, adjudged, and decreed, that the plaintiffs recover possession of said land from .the defendant, and $135 for the use thereof by defendant since December, 1894, and judgment is rendered for said amount, $135, against the defendant, Wm. Watkins. It is further ordered, that said laud be sold for partition among the plaintiffs, and the proceeds be held till the further order of this Court. It is further ordered, that plaintiffs have leave to apply at chambers for further orders in this cause.</p> <p>From this decree the defendant appeals, alleging the following errors:</p> <p>1st. Because his Honor erred in holding that R. G. Eaton took only a life estate in the land from J. C. Eaton, and that at the death of R. G. Eaton the plaintiffs were entitled to the possession of said land, and that the defendant is liable to the plaintiffs for the rent thereof since the death of R. G. Eaton.</p> <p>2d. Because he erred .in decreeing that plaintiffs recover possession of said land frourthe defendant and also $135 for the use thereof, and in rendering judgment for that amount.</p> <p>3d. Because he erred in not holding that the habendum clause of the deed from J. C. Eaton to R. G. Eaton, which is as follows, “to have and to hold him and his forever,” bears upon its face a clerical omission of some word or words, and it being a clerical error, the Court had authority and should reform the deed by supplying the omitted words.</p> <p>4th. Because his Honor erred in not holding that the words “to” and “heirs” were the words omitted from said habendum clause, and in not reforming said clause to make it read, “to have and to hold ‘to’ him and his ‘heirs’ forever.”</p> <p>5th. Because he erred in holding that there was entire absence of any testimony showing that J. C. Eaton or the parties to said deed, or either of them, intended to insert in said clause the words now sought to be inserted therein.</p> <p>6th. Because he erred in deciding to leave the deed from J. C. Eaton to R. G. Eaton as he found it written, and in refusing to reform the deed according to its plain in-tent and meaning.</p> <p>7th. Because he erred in holding that the warranty clause and the other .parts of the deed referred to are not sufficient to support the reformation sought for.</p> <p>8th. Because his Honor erred in not holding that J. C. Eaton intended R. G. Eaton to have the fee in said laud, and that the fee should remain in him and descend to his children, if he should have children, and only in the event of his failure to have children that the land was to revert back to J. C. Eaton or his legal heirs, and that the deed when construed as a whole, and giving effect to every part of it, plainly and unmistakably showed that such was the intention, and that this intention could not be carried into effect unless the words “to” and “heirs” were inserted in the said habendum clause, and being necessary words to carry into effect the intention of J. C. Eaton, and being omitted evidently by oversight or mistake, they should now be inserted in the deed.</p> <p>9th. Because his Honor erred in not holding that there was evidence to show that it was the intention of both J. C. Eaton and R. G. Eaton that R. G. Eaton should take the fee in said land.</p> <p>10th. Because he erred in not holding that the habendum clause in said deed bore upon its face that some word or words were accidentally omitted, and that the testimony and the other parts of the deed, especially the warranty clause, and the two conditions attached- to the deed, plainly showed that the words omitted were “to” and “heirs,” and that these words were omitted by oversight or mistake, and that it was the intention of both grantor and grantee that they should be written in the deed, and that effect could only be given to all parts of said deed by inserting the said words therein.</p> <p>11th. Because he erred in refusing to reform said clause, making it read, “to have and to hold, to him and his heirs forever,” and in not holding that said deed, when so reformed, becomes a fee simple deed, and that the condition, “that in the event of R. G. Eaton dying without children, the land should revert back to J. C. Eaton or his legal heirs,” attached to the end of the deed, was a condition repugnant to the deed itself, and surplusage, and was, therefore, void and inoperative, leaving the deed to operate as a deed in fee simple.</p> <p>12th. Because he erred in not holding that R. G. Eaton took from J. C. Eaton a deed in fee simple to said land, and that R. G. Eaton having the fee simple title to said land, and having conveyed the same in fee simple to the defendant, Wra. Watkins, the defendant is now the owner of said land in fee simple, and is entitled to retain possession thereof, and that the plaintiffs have no right, title or interest to said land, nor to the rents-thereof.</p> <p>13th. Because his Honor erred in not rendering judgment for the defendant and in not dismissing the complaint.</p> <p>cite: 38 S. C., 420; 1 McC. Ch., 9; 29 S. C., 470; 2 McC. Ch., 484; 17 S. C., 536; 16 S. C., 170; .15 S. C., 442; 2 Strob. Eq., 101; 6 Rich., 58; 16 S. C., 310; 33 S. C., 301.</p> <p>cites: 17 S. C., 532; 20 S. C., 429; 44 S. C., 31; 38 S. C., 191; 36 S. C., 295.</p>

. Before Townsend, J., Spartanburg, Two actions, Jessie M. Thomson against C. P. Brown and E. A. Brown, administrators of J. J. Brown, and John M. Nicholls, sheriff of Spartanburg, and the same against C. P. Brown and F. A. Brown, administrators of J. j. Brown, and E. A. Crawford, sheriff of York County. The order appealed from is as follows: The above two causes came on to be heard on a report of the master in each case, and the plaintiff’s exceptions thereto.

Before Benet, J., Charleston, Action by George W. Steffens & Sons against H. Bulwinkle & Co., on money demand. The following is the intermediate order upon which the appeal is based: This case appears upon Calendar 1 for the March term of this Court, and a motion is made by defendants’ counsel to strike the case from the docket as having been improperly placed thereon.

<p>1. Inspection oe Papers — Cases Criticised. — The order excepted to, requiring the defendant to permit the plaintiff to inspect certain papers, held, under the facts of this case, if erroneous, to be harmless error. Cartee v. Spence, 24 S. C., 558, and Jenkins v. Bennett, 40 S. C., 400, criticised.</p> <p>2. Charge — Damage.—It is not error to charge the jury in this case, under the facts proven, that in estimating damages, they might take into consideration the doctor’s bill.</p> <p>3. Charge. — It is not necessary that a Judge charge a special request in the exact language used, but it is sufficient if he cover the point requested.</p> <p>4. Contributory Negligence — Master and Servant. — Whether a servant is guilty of contributory negligence, because he remains ill the service of his master after he has knowledge of defects in the machinery or appliances with which he is furnished to work, is a question of fact for the jury.</p>

<p>Before "Watts, J., Fairfield, September term, 1896.</p> <p>The opinion fully states the facts.</p> <p>cites: On first point: 31 Ohio St., 39; 10 Neb., 307; 2 S. C., 23; 8 S. C., 243; 10 Rich., 148; 13 S. C., 389; 4 Dev., 323. On second: 137 U. S., 496; 93 Mich., 254; 110 Mo., 350; 26 Me., 30; 62 Ala., 12; 31 N. J. L., 77; 3 Dev. & Bat., 110; 15 S. C., 540; 18 Wall., 453; 48 Tex., 510; 20 Ohio St., 333; 87 Penn., 253; 16 S. C., 453.</p> <p>cites: On first point: 10 Rich., 148; 13 S. C., 392. On second: Code, 400, subs. 1, 2, and 3; 13 S. C., 462; 15 S. C., 540; 16 S. C., 453; Code, 8; Code 1870, 415; 2 N. & McC., 333.</p>

Before Buchanan, J., Sumter, March term, 1896. Action by Devander Elmore against Garrison P. Davis, upon breach of warranty. Judgment for plaintiff. Defendant appeals. cite: On first point: 2 N. & McC., 138; 9 Rich., 389; 12 Rich., 200; 13 Rich., 171; 40 s. C., 533. On second: 44 S. C., 548; 1 Strob., 65; 1 Spears, 67 and 80; 1 Hill, 27; 1 Bay, 254; 2 Strob.

Before Gary, J., Lancaster, Action by R. E. Wylie and Eliza J. Wylie, as executor and executrix of John D. Wylie, against the Ohio River and Charleston Railroad Company, for the negligent killing of a cow. Judgment by magistrate for plaintiff. Defendant appeals to Circuit Court. Judgment below affirmed. Defendant again appeals. cite: Right of plaintiff to maintain the action: 17 How. U. S., 369; 1 Strob.

Before Benbt, J., Aiken, Action by Lydia Johnson, executrix, and A. E. Johnson, executor,'of the will of John Johnson, against the heirs of John Johnson and the children of A. E. Johnson, for construction of the will and partition of undevised lands.

Before Aldrich, J., Barnwell, Action by the heirs at law of Ellen M. Still and Charles E. Still against the heirs at law of W. R. Delk for partition of a tract of land. The following is the Circuit decree: Plaintiffs instituted this action for the partition of the real estate described in the complaint, alleging that the same was owned by themselves and the defendants as tenants in common.

Before Buchanan, J., Sumter, Action by Mary H. Girardeau against Southern Express Company, for damages for conversion of several pictures. Judgment for plaintiff. Defendant appeals. cite: Mode of delivery: 10 Met., 472; 31 Me., 409; 18 Vt., 131; 20 Conn., 354; 8 Taunt, 83, 443; 1 Gray, 263; 4 T. R., 581; 118 Mass., 201; 16 Gray, 132; 113 Mass., 521. Parol evidence as to bills of lading: 7 Mass., 297 — 300. What is conversion: 32 Barb., 396; 12 N. Y., 509.

Before Witherspoon, J., Richland, Action by Catherine Jumper against the Commercial Bank of Columbia, S. C., on two certificates of deposit. Judgment for plaintiff. Defendant appeals. (Arguments, if furnished, have been mislaid.)

Before Fraser, J., Marion. Action by Robert R. Bethea against Reona- Bethea and others, for permission to exchange lands with his infant daughter. From the decrees of Judges Aldrich and Fraser, the infant defendant appeals. cites: 16 S. C., 304; 3 Rich. Eq., 559; 2 Hill, 227; 5 Rich. Eq., 301; 1 Strob., 132; 1 Strob. Eq., 344; 28 S. C., 486; 16 S. C., 291; 32 S. C., 563. cites: 13 S. C., 119; 17 S. C., 549; 33 S. C., 293; 1 Rich. Eq., 411.

Before Gary, J., Fairfield, Action by heirs at law of John Dye against Beaver Creek Church and its officers for possession of tract of land.

Before Gary, J., York, Action by Jane C. McKenzie against Stanhope A. Sifford, and Geo. W. S. Hart, as executors of Jos. Held: so as to more fully evidence this release of claim of dower, whenever such formal renunciation should be evidenced in any other man-tier.

Before Gary, J., Lexington, Action by the heirs at law of Elizabeth Metz against Levi Metz, John A. Metz, Sallie Gibson, and the Commercial Bank, for partition of two tracts of land in Lexington County and one in Richland County. Upon motion of plaintiffs, certain issues were submitted to a jury, which were answered in favor of plaintiffs. Upon the entry of the verdict, the defendant bank immediately gave notice of a motion for a new trial upon the minutes of the Court.

Before Witherspoon, J., Anderson, Action by W. H. Pepper against Miss Sallie Shearer, styling herself Mrs. Sallie Pepper, to annul a marriage contract on ground of duress. Complaint dismissed. Plaintiff appeals. cite: Courts of this State may declare mandage contract void for want of consent: Rev. Stat., 2159.

<p>Before Gary, J., Chester,</p> <p>The facts are stated in the opinion.</p>

Before Witherspoon, J., Fairfield, Action by Nicholas A. Peay, jr., against Wm. J. Seigler, as administrator of Fnglish P. Jenkins, and his heirs at law, for possession of a tract of land. The Circuit decree is as follows: The Rev. Will M. Waller, of Wilmore, Kentucky, on May the 7th, 1895, conveyed by deed to the plaintiff a tract of twenty acres of land, at Rongtown, in Fairfield County.

Before Buchanan, J., Sumter, Action by William Edward Dick against Adeline W. Harby, for specific performance of a contract for purchase of a tract of land. The Circuit decree is as follows: A case agreed between the parties above named, without action, dated the 1st day of December, 1896, and duly verified, has been submitted to this Court, and the arguments of counsel thereon have been duly heard.

Before Watts, J., Chester, Action by Allen Jones, Thomas C. Robertson, William A. Courtenay, and the Randsford Water Power Company against Edward McCrady and William H. Hood, as sheriff of Chester County, on the following complaint: I. ThaRthe said William A. Courtenay holds the legal title in fee to the premises herein below mentioned, under and by virtue of deed of conveyance executed and delivered to him by John C. McFadden, clerk of the court of common pleas for Chester…

Before Townsend, J., Union, Rule on J. G. Tong, sheriff of Union County, requiring him to show cause why he should not be required to sell the land levied on in case of J. A. Corry, administrator of D. W. Tate, against Obadialv Tate. Rule dismissed. From this order the plaintiff appeals on the following exceptions: 1. Because his Honor erred in holding that the excuse of the sheriff was a good and sufficient one, and discharging the rule. 2.

Before Watts, J., York, Action by William J. Cherry against John W. Fewell, mayor, and Ed. E. Poag, Ed. R. Avery, A. J. Thompson, John J. Waters, W. J. Irby, and W. H. Wylie, aldermen, the city council of Rock Hill, on the following complaint: I. That the plaintiff, William J. Cherry, is a citizen of the said county and State, and a resident of Rock Hill, a city situated in the county and State aforesaid, duly incorporated as such by the laws of said State, with a city…

<p>Before Aldrich, J., Beaufort,</p> <p>Motion of plaiutiff for leave to amend complaint in case of A. H. Heyward against C. A. Williams et al. Motion granted. Defendants, C. A. Williams and A. S. Williams, appeal.</p> <p>cites: Code, 194; 31 S. C., 199; 43 S. C., 318; 18 S. C., 305; 26 S. C., 474; 31 S. C., 588.</p> <p>cites: 9 S. C., 330; 13 S. C., 23; 38 N. Y., 206; 16 S. C., 358; 2 S. E. R., 501; 14 S. C., 223; 17 S. E. R., 21; 10 S. E. R., 545; 12 lb., 564; 14 lb., 622; 2 lb., 483.</p>

<p>Before Earle, J., Hampton,</p> <p>Motion by Sallie T. Gray et al. to set aside order of sale and partition in Sarah J. Allen against Leroy Allen et al.> made in 1884. Motion refused. Petitioner appeals.</p> <p>cites: Code, 137; 17 S. C., 435; 10 S. E. R., 262; sub. 2, sec. 155, Code; 17 S. C., 449.</p> <p>cite: 23 S. C., 167; 42 S. C., 517.</p>

Before Buchanan, J., Darlington. The defendant, J. J. Ward, was convicted by the town council of Darlington for violating an ordinance prohibiting the keeping of hogs within the corporate limits of… Held: and he erred in holding to the contrary. II.

<p>Complaint — Practice—Parties—Dismissal — Foreclosure. — It is proper to dismiss a complaint by a transferee of a note and mortgage, when it appears by proof that since the action was commenced the plaintiff has parted with all interest in the papers, and that they have been assigned to another party, who now owns them, and is not made a party because of the objection of plaintiff. Secs. 182 and 142 of Code considered.</p>