Volume 48 — South Carolina Law Reports

<p>BEFORE E. A. LAW, ESQ., DISTRICT JUDGE, DARLINGTON, NOYEMBER 16, 1866.</p> <p>This case will be sufficiently understood from tbe opinion delivered in tbe Court of Appeals.</p>

<p>Practice — -Liquidated demand — Reference to Olerlc.</p> <p>Agreement in tlie form of a promissory note, by which defendant promised to pay to plaintiff “two hundred and twenty-five dollars, less store account, for value received,” is not a liquidated demand within the meaning of the Act authorizing actions on such demands to be referred to the Clerk.</p> <p>A writing which does not within itself furnish the means of precisely ascertaining the exact sum due, so as to render a resort to extrinsic evidence wholly unnecessary, is not within the Act.</p>

<p>BEFORE "WARDLAW, J., AT SUMTER, FALL TERM, 1861.</p> <p>Horatio Kuhne had an execution against J. McD. Law, which was lodged with the Sheriff of Williamsburg on the 25th April, and with the Sheriff of Sumter on the 10th May, 1860. S. S. Farrar, Bros. & Oo. had an execution against Law, Law & Co., of which firm J. McD. Law was a member, which was lodged with the Sheriff of Sumter on the 20th April, 1860. Hnder the execution of S. S. Farrar, Bros. & Co., the Sheriff of Sumter, on the 26th April, 1860, levied on two negroes “ as the,property of J. McD. Law,” and under the execution of Kuhne, he on the 17th May, 1860, levied on the same negroes. On the 8d December, 1860, the Sheriff sold the negroes for $1,565, a sum insufficient to satisfy the execution of S. S. Parrar, Bros. & Oo. Kuhne!s execution then amounted to about $1,200. He immediately notified the Sheriff that he claimed that amount of the proceeds of the sale, and this was a rule on the Sheriff to show cause why he had not satisfied the plaintiff’s (Kuhne’s) execution from said proceeds. The Sheriff’s return stated the facts of the case, and that he held the proceeds subject to the order, of the Court.</p> <p>Wardlaw, J. I discharged the rule, not thinking it safe to deprive the plaintiffs in the older ji. fa. of their precedence, by a proceeding to which they were not parties. The case of Roberts vs. Roberts, 8 Bich. 14, to which I was referred by the actor in the rule, does not seem to me to'be supported by the other case of Wilson & Co. vs. Bowden, 8 Bich. 9, which is cited for its support.</p> <p>The actor in the rule, Kuhne, appealed, and now moved this Court to reverse the decision of the Circuit Court and make the rule absolute: Because, by law, the proceeds of the sale of the two negroes, referred to in the return, were applicable to the execution of the plaintiff.</p> <p>cited ■ Ex parte Crowder, 2 Vern. 706; Ex parte Elton, 3 Ves. 240; Story on Part. § 363,365, 376, 377, 378; 2 Kent Com. (5th Ed.) 65, and note b; 2 Spence Eq. Jur. 213; Cary on Part. (219,) (220,) 5 Law Lib. 88 ; Murrill vs.'.Neill, 8 How. 425,17 Curt. 646; Woodrop vs. Price, 3 Dess. 207; Hall vs. Hall, 2 McO. Oh. 302; Sniffer & Paxton vs. Pass, MSS. Charleston, 1828 (a); Wardlaw vs. Gray, Dud. Eq. 94; Gadsden vs. Carson, 9. Rich. Eq. 252; Wilson vs. McConnell, 9 Rich. Eq. 500.</p> <p>cited Jones vs. Postel, Harp. 92; 1 Mer. 529; Ool. on Part. 337; 2 Johns. Cb. 509 ; 2 Story Eq. § 677; Eicb. Eq. Cas. 369.</p>

BEFORE MUNRO, J„ AT UNION, FALL TERM, 1860. The report of his Honor, the presiding Judge, is as follows: “ The defendant was indicted for bastardy. It was in proof that the child was born on the 13th November, 1847, consequently was twelve years of age on the 13th November, 1859. It further appeared that a warrant had been issued against the defendant, the precise date of which I have not got, and returned non est inventus, by á constable.

BEFORE MUERO, J., AT SPARTANBURG, FALL TERM, 1866. The defendant was indicted for larceny, in taking two bales of cotton. The alleged taking was in December, 1865, a few days before the passage, by the Legislature, of the Act making the larceny of bales of cotton, packed and ready for market, a capital felony. The bill was found by the grand-jury, at April Term, 1866, and the defendant was tried at Fall Term, 1866.

BEFORE DAWKINS, J., AT CHARLESTON, JUNE TERM, 1866. The report of his Honor, the presiding Judge, is as follows: “ This was an action on the case for a malicious prosecution, and the case, as well as the grounds of appeal, will be more readily understood by stating the testimony. “ Nathan Davis, witness: Is one of police detectives. Murt-land, last spring, called at the guard-house; said he had just received a letter from Halberstadt, saying he had lost $110.

BEFORE MURRO, J., AT GREENVILLE, FALL TERM, 1866. The report of bis Honor, tbe presiding Judge, is as follows: “ In these cases motions were beard and orders granted at Chambers, August 31, 1866, for a rule against plaintiffs requiring them to show cause, at tbe next term of tbe Court of Common Pleas for Greenville District, why tbe judgments and executions in said cases should not be set aside as to certain defendants, for whom, without previous authority or subsequent…

<p>Trespass to try Title — New Trial — Location.</p> <p>In trespass to try title, two successive verdicts for tbe defendant bad been set aside by tbe Court of Appeals and new trials granted upon a question of location, tbe Court, upon tbe second appeal, saying that upon tbe same evidence a new trial would be granted toties quoties tbe verdict should be for tbe defendant. Upon tbe third trial tbe verdict was again for tbe defendant, and the Court of Appeals refused to grant a new trial, bolding that new and material evidence bad been given which varied the case previously made, and created doubts upon the question of location.</p>

<p>Practice — Amendment of Becord.</p> <p>Where the Clerk in assessing the plaintiff’s damages over-calculates the amount of interest, the plaintiff may, without notice or rule, obtain leave to enter a remittitur for the excess, or may himself, and without an order, enter such remittitwr on the judgment and execution.</p>

<p>“Stay Law” — Capias ad Respondendum — Notice—Bond.</p> <p>The second and third sections of the Act of 1861, commonly called the “ Stay Law,” construed.</p> <p>Where a plaintifF, suing in assumpsit by the usual writ of capias ad respon-dendum, made affidavit as required lf^ the second section of said Act, a notice by the Clerk requiring the defendant to give bond for the delivery of property, and a bond given in conformity with such notice, held to be illegal and void. The notice and bond should have been for the surrender of the body of the defendant.</p>

<p>Criminal Law — Stealing Coll — Repeal—Petit Larceny — General Verdict — New Trial.</p> <p>The Act of 1865, making it a capital felony to steal a “horse or mule,” does not repeal so much of the Act of 1830 as punishes the stealing of a “ colt.” An indictment, therefore, for stealing a “ colt” contrary to the Act, &c., is unobjectionable.</p> <p>One indicted under the Act of 1830, for stealing a colt, cannot be convicted of petit larceny. If therefore the jury find him guilty of petit larceny, a new trial will be granted.</p> <p>Under an indictment charging the defendants, in two counts, with stealing a colt, and, in a third count,'with receiving the colt knowing it to be stolen, a general verdict of guilty cannot be sustained. The offences charged being distinct — the one a felony, and the other a misdemeanor— and the punishments being different, the Court, under such a verdict, cannot know of which offence defendants are guilty, and what sentence to pass. In such a case, therefore, a new trial must be granted.</p>

BEFORE GLOVER, J., AT COLLETON, FALL TERM, 1866. Except the evidence, which it is deemed unnecessary to publish, the report of his Honor, the presiding Judge, is as folloivs: “The defendants, with William W. Pender, who has not been arrested, were indicted for burglary, and were convicted.

BEFORE MUNRO, J., AT PICKENS, FALL TERM, 1866. The report of his Honor, the presiding Judge, is as follows: “ The defendants, James Perry Looper and Allen Durham, were indicted at the Fall Term, 1866, for Pickens District, for the murder of Thomas E. Miller, and found guilty of manslaughter. “ The sentence of the Court was, that they be sent to the penitentiary: James Perry Looper for five years, and Allen Durham for three years; and that they both be confined in the jail of…

<p>Trespass to Try Title — Debtor and Creditor — Fraudulent Conveyance.</p> <p>As against existing creditors, a voluntary conveyance is, as a general rule, fraudulent and void. It is not a question of intention, but tbe conclusion is declared by the law, and whether the donor had at the time sufficient property, not embraced in the conveyance, to pay his debts, is an inquiry not pertinent to the issue.</p> <p>The only qualification to the general rule is, that where the indebtedness is slight, as for the current expenses of the family, or the debts are inconsiderable as compared with the value of the donor’s estate, and the creditor, by his delay or laches, has allowed the reserved estate to be wasted — in such case the conveyance will be held valid.</p> <p>Where the debt is voluntary and the creditor is a subsequent one, or where the deed is for valuable consideration, the question whether the conveyance is valid is one of actual intent.</p>

<p>Sheriff's Sale— Warranty — Mistake.</p> <p>There is no warranty at a Sheriff’s sale of land. The rule is cmeat emptor, and where there is no fraud, the purchaser cannot, at law, he relieved from his contract to pay the purchase-money on the ground that all parties were mistaken in supposing that the defendant in execution had such an interest in the land as could he levied on and sold.</p>

<p>Insolvent Debtors and Prison Bounds Acts — New Trial — Suggestion— Verdict.</p> <p>Applicant for tlie benefit of the Prison Bounds Act tried on a general • charge of fraud, with specifications thereunder, and verdict for defendant. New trial refused, though the evidence might have been sufficient to sustain a charge of undue preference.</p> <p>The general charges under’ the Act of 1788 are (1) false schedule, (2) fraudulent sale, conveyance or assignment, and (3) undue preference within three months. These general charges and the specifications under each should be clearly made in the suggestion, and the verdict should answer each charge and specification, that it is true or untrue.</p>

BEFOBE ALDBICH, J., AT NEWBEBBT, FALL TEBML, 1866. The prisoner was arraigned on Tuesday, October 16th, 1866, and put upon his trial the next day, on an indictment for the murder of Lewis Cureton, freedman. On the first day of the term certain of the petit jurors had been excused by the presiding Judge, and the prisoner in exercising his right of challenge, haying exhausted the panel, moved that the excused jurors be sent for. This was refused.

BEFORE GLOYER, J., AT CHARLESTON, APRIL TERM, 1866. Held: in Pell vs. Ball, 1 Kich. Eq. 361, that an appeal does not suspend the execution of a decree.

<p>BEFORE MTTNRO, J., AT MARION, SPRING. TERM, 1806.</p> <p>The report of bis Honor, the presiding Judge, is as follows :</p> <p>“ This was a motion to set aside a bail-writ, and to enter an exorieretur on tbe bail-bond, founded upon an affidavit made by tbe plaintiff’s attorney, and an order for bail by the Clerk of tbe Court, in tbe sum of fifty thousand dollars, to recover damages for a breach of covenant upon tbe alleged failure of tbe defendants to deliver two hundred bales of cotton. .</p> <p>“Tbe grounds relied on were these: 1st. That the facts deposed to in the affidavit are insufficient to bring the plaintiff’s case within the provision of the Act of the Legislature passed in 1861 commonly known as the Stay Law.</p> <p>“ 2. Failing in this, then that the damages are excessive and ought to be reduced.</p> <p>“ That portion of the affidavit which claims to bring the case within the second section of the Act in question, is in these words:</p> <p>“ ‘ Deponent further says, that he has been informed and believes, that the said M. Iseman, I. Iseman, and G. Richards, intend to remove from the limits of this State, and that the cotton aforesaid is being fraudulently disposed of.’</p> <p>“ The second section of the Act of 1861 is in these words: ‘ That if the plaintiff in such mesne or final process, or his agent, or attorney-at-law, shall make affidavit before some one of the Clerks of the Court of Common Pleas and General Sessions of this State, that his debtor has absconded or is about to abscond, or that such debtor is removing or is about to remove his property beyond the limits of this State, or is fraudulently disposing of the same.’</p> <p>“ While, it was the manifest design of the framers of the foregoing Act to prevent the sacrifice of the property of debtors under legal process, it was equally their design to protect the rights of creditors against the fraudulent devices of the former. But to entitle the creditor to the benefit of the exceptions in the Act, he must bring himself strictly within its prQvisions. The language of the affidavit in reference to the persons of the defendants is, ‘that he has reason to believe that, they intend to remove from the limits of this Stateand this, it was insisted, is equivalent in meaning to the language 'employed in the Act, namely, ‘is about to abscond.’ To every act of extradition, with-the view to a legitimate object, I take it, the terms ‘remove’ or ‘has removed’ are strictly applicable. But when the act is prompted by fraud or turpitude — as, for instance, in tbe case of a fugitive from justice, or a fugitive creditor, in order to elude the payment of his debts — -the terms abscond or has absconded are equally appropriate, and this I apprehend is the sense in which these terms were employed by the authors of the Act.</p> <p>“But again, instead of the word 'about’ the word 'intend’ is used in the affidavit. While the word ' intend ’ is entirely too vague and indefinite upon which to predicate a well-founded apprehension, the word ' about,’ especially when used in a positive sense, is the very reverse, and is equivalent to saying, is either preparing, or is mating preparation to abscond.</p> <p>" So much for that portion of the affidavit that refers to the conduct of the defendants themselves. Let us now see how it stands in reference to the disposition of their property. The language of the Act is, either ‘that such debtor is removing or is about to remove his property, or is fraudulently disposing of the same.’ Whereas the language of the affidavit is, ' and that the cotton aforesaid is being fraudulently disposed of.’ It was conceded that the defendants are citizens of this State, are pretty extensively engaged in trade, and possessed of considerable property, real and personal; and here it may also be proper to state, that it was cojiceded the plaintiff is a citizen of North Carolina.</p> <p>“It is very clear that the contract between the plaintiff' and the defendants remained purely executory, and upon the defendants’ failure to comply with the terms, the only remedy that remained to the plaintiff was an action for damages.</p> <p>“ The title to the cotton never having been divested out of the defendants, their right to dispose of it, provided it was not done to defraud their creditors, was undoubted. It is not the sale by a debtor of a particular species of property, nor of a particular amount or quantity, that will open the door to all his creditors under the Act, for once it is open to one it is open to all; if this were so, then would the sale of a ■horse, a bale of merchandise, nay, a single balé of cotton, or even something of less value, suffice.</p> <p>“ So narrow a construction of the Act would be to render its provisions entirely nugatory. According to my construction of the Act, then, there must be on the part of the debtor the manifestation of a fraudulent disposition to dispose of his property in general, in order to defeat the claims of his creditors. Entertaining these views, I granted the defendants’ motion.</p> <p>“ As regards the second ground, I sustained the constitutionality of the law without intending to commit myself to either view of that important question. The question raised by the third ground of appeal was not brought to my notice in the argument.”</p> <p>State of South Carolina, Marion District :</p> <p>Personally appeared before me, Asa L. Evans, attorney for Horace M. Barry, and on oath deposes that M. Iseman, I. Ise-man, and C. Richards did, on the 9fch day of October, 1865, make an indenture with Horace M. Barry to sell and deliver to him, the said Horace M, Barry, two hundred bales cotton, more or less, at thirty-three cents per pound; and that they, the' said M. Iseman, I. Iseman, and Gr. Richards have failed and do positively refuse to keep said covenant with the said Horace M. Barry, to his damage fifty thousand dollars. Deponent further says, that he has been informed, and has reason to believe, that the said M. Iseman, I. Iseman, and Gr. Richards intend to remove from the limits of this State, and that the cotton aforesaid is being fraudulently disposed of.</p> <p>(Signed) A. L. EYANS,</p> <p> Attorney for Horace M. Barry. </p> <p>Sworn-to before me, this 7th November, 1865.</p> <p>T. C. Moody,</p> <p> C'lh and Ex. Officio Mag't. </p> <p>Writ — “ Lodged 7th November, 1865.”</p> <p>Clerk’s order. — “ The Sheriff will take good and sufficient bail in the sum of fifty thousand dollars. See affidavit annexed.”</p> <p>Copy of the affidavit and notice as required by the second and third sections A. A. December 21, 1861, was personally served on each defendant 7th November, 1865.</p> <p>Sheriff’s return. — “Arrested parties each gave bond November 20, 1865.”</p> <p>Bond dated November 20, 1865, and is payable to the acting Sheriff — a common bail-bond.</p> <p>The plaintiff appealed, and moved the Court of Appeals to reverse the decision of his Honor, Judge Munro, on the grounds:</p> <p>1. Because the affidavit was sufficient in law.</p> <p>2. Because the Act of December 21,1861, commonly called the Stay Law, is unconstitutional; but, if constitutional, the plaintiff, a foreigner, is not deprived of his action thereby.</p> <p>3. Because the action sounding in damages is not included in the provisions of the said law.</p>

BEFORE MOSES, J., AT DARLINGTON, FALL TERM, 1866. The report of bis Honor, tbe presiding Judge, is as follows: “ Tbe defendant, with Bill Garner and Amos Garner, persons of color, were indicted for burglary in entering in tbe night the house of James Garner, Jr., and stealing a certain quantity of seed cotton. “ The jury charged with the trial, returned a verdict of 'not guilty as to Bill and Amos Garner; Nathan Garner guilty of larceny.’ The counsel of Nathan Garner moved…

<p>Constitutional Law — Impairing Obligation of Contracts.</p> <p>So much of the Act of September, 1866, “ to alter and fix the times for holding the Courts of Common Pleas in this State, ” as postpones the return of writs and other process in actions ex contractu, and suspends proceedings in such actions, is, so far as it affects contracts existing when the Act was passed, repugnant to the provision of the Constitution of the United States that “no State shall pass any law impairing the obligation of contracts,” and the similar provision of the Constitution of this State, and is therefore inoperative and void.</p>

<p>Cow-Stealing — Repeal of Statute.</p> <p>The Act of 1789, so far as it punishes the stealing of cattle below the value of twenty dollars, has been repealed by the Act of 1866, making the simple larceny of goods, below the value mentioned, petit larceny and a misdemeanor. One cannot therefore be now punished for stealing a cow where the offence was committed before the Act of 1866 was passed, and the value of the cow is alleged and proved to be below twenty dollars.</p>

BEFORE DAWKINS, J., AT CLARENDON, SPRING TERM, 1867. The report of his Honor, the presiding Judge, is as follows: “ Gr. A. Huggins, the defendant, was Commissioner in Equity for Clarendon District. While in office, he took out letters of administration, under the Act of 1857, to provide for the administration of derelict estates. He afterwards resigned the office of Commissioner in Equity.

<p>Indictment — Joinder of Distinct Offences — General Verdict— Arrest of Judgment — New Trial.</p> <p>Tlie joinder in one indictment of three counts, the first for burglary, the second for an entirely distinct burglary, and the third for petit larceny (which is a misdemeanor) in the same transaction alleged in the second count, with a general verdict of- guilty, is no ground for arresting the judgment.</p> <p>A general verdict of guilty is understood to find-the higher offence, if there is testimony to support it; and such verdict is no ground for new trial. The jury, however, should be distinctly instructed as to the effect of a general verdict of guilty, and that they may convict on the one count or the other, and it is more satisfactory that they should do so.</p> <p>Where distinct felonies are charged in separate counts, it is a proper exercise of the discretion of the Judge to require the prosecuting officer to select one of the felonies and confine himself to it; and this he should do, although no motion to that effect be made by the prisoner’s counsel.</p> <p>New tria'l ordered, because of the gravity of the effect of the general verdict of guilty — the report leaving it doubtful whether the jury had been fully instructed as to the effect of such finding, and that they might convict on any one of the counts, and because the discretion above mentioned had not been exercised.</p>

<p> Petit Larceny. </p> <p>Since the Act of December, 1866, providing that every simple larceny of goods'“below the value of twenty dollars” shall be a misdemeanor, and be considered petit larceny, an indictment at common law for petit larceny will not lie. Where the goods are below the value of twenty dollars the offence is exclusively a statutory one, and the indictment must conclude “ contrary to the form of the statute.”</p>

<p>Bastardy — Interest.</p> <p>A defendant convicted of bastardy is not liable for interest on tbe annual payments of twenty-five dollars each, for which, in default of recognizance, execution may issue.</p>

<p>Common Carrier — Loss of Goods.</p> <p>If a common carrier has reasonable grounds for not receiving goods offered him for transportation, he may do so; but if he once receives them, he becomes an insurer, and can only exonerate himself from liability by showing that the loss arose from the act of God or the public enemy.</p>

BEFORE DAWKINS, J., AT CHARLESTON, JANUARY TERM, 1867. The report of his Honor, the presiding J udge, is as follows: “This was an action on the case brought by the plaintiff against the defendant to recover damages for alleged negligence and mismanagement in the sale of a tract of land. Some time previous-to November, 1864, plaintiff, through his factors, Messrs.

BEFORE GLOVER, J., AT ABBEVILLE, SPRING TERM, 1867. The report of his Honor, the presiding Judge, is as follows: The plaintiff issued a domestic; attachment, and in his affidavit swore, 'that the said J. F. Fleming is removing or is about to remove out of the said District of Abbeville, so that the ordinary process of law cannot be served upon him.’ “I held that the use of these words was not a compliance with the Act authorizing a magistrate to issue an attachment ; that a…

BEFORE GLOVER, J., AT ANDERSON, SPRING TERM, 1867. The indictment was against Henry Moore, George Robinson, Tarlton Major, and William Ellison.

<p>Malicious Trespass — Ownership—Killing Dog.</p> <p>Where, in an indictment for malicious trespass in killing a dog, the only description of the dog was that it was the properly of J. B., held, that proof that the clog was the property of O., a son of J. B., who was eighteen years old, and who resided with his father, and to whom it had been given by his sister, did not sustain the indictment, and new trial ordered.</p> <p>Is a clog ‘personal property’ within the Act of 1861, so that an indictment, for a malicious trespass in killing it, can be maintained ?</p>

<p>Assault— Verdict — New Trial.</p> <p>On indictment for-assault and battery, tlie verdict was, “We find the defendants guilty of an assault but not with the intention of injuring the parties, and not of the battery.” Because there was doubt of what the jury meant, new trial granted.</p>

BEFORE DAWKINS, J., AT CHARLESTON, JANUARY TERM, 1867. The report of his Honor, the presiding Judge, is as follows: “The defendants were indicted and found guilty of the murder of E. M. Branford. The prisoners appeal; and I will give a brief statement of the case, as the evidence will accom. pany this report and explain the facts fully. “On the 24th June, 1866, the prisoners, with other colored persons, had a difficulty with some of the city police, at or near the battery.

BEFORE DAWKINS, J., AT KERSHAW, SPRING TERM, 1867. The report of his Honor, the presiding Judge, is as follows: “The prisoners were indicted jointly, with Duncan McRa, who has not been arrested by the process of this Court, and who, if alive, is beyond its jurisdiction.. The others were tried together, and found guilty.

BEFORE GLOVER, J., AT ABBEVILLE, SPRING TERM, 1867. The report of Ms Honor, tbe presiding Judge, is as follows : “The action was trespass quare clausum fregit to recover damages for injuries done to plaintiff’s road in Abbeville District. The consideration of the grounds of appeal makes it necessary to furnish the evidence with this report, which is as follows: Leroy J. Wilson was in plaintiff’s service in spring of 1864.

BEFORE W. H. CAMPBELL, ESQ., DISTRICT JUDGE, GREEN-VILLE, APRIL TERM, 1867. The report of the presiding Judge is as follows: “ This was an indictment for a malicious ¡trespass, under the Act of 1857, for shooting a mare, the property of W. H. Ashmore. The offence charged was committed on the 17th August, 1866, whilst the Act of 1865, “to amend the criminal law,” was in force, which- Act was partially repealed by the Act of 1866, “to alter the Act” of 1865.

<p>Taxes— Cotton — Non-Eesident—Tax Execution — A gent— Summary of Law.</p> <p>Cotton belonging to a non-resident of the State, which was in his agent’s possession on the 1st of May, 1865, but before the 1st of October thereafter was removed by the owner’s direction beyond the limits of the State, was not liable to the tax laid by the Act of December, 1865, on all cotton sold between the 1st of May and the 1st of October, 1865, and all cotton on hand on the day last mentioned.</p> <p>Where a tax execution did not specify for what it was issued, except that it was for non-payment of taxes, but it appeared that it was, in fact, issued for a double tax, in part on cotton sold, and so far was illegal, and, in part, on cotton on hand, held, that the Court could not undertake to apportion the tax and say how much was for cotton sold and how much for cotton on hand, and therefore, on that ground alone, if no other existed, the prohibition must go to the whole execution, leaving the tax collector to issue another for the true amount.</p> <p>Where an agent had on hand on the 1st of October, 1865, cotton of his principal, a non-resident of the State, but before the ensuing December it had been removed beyond the limits of the State and his agency had ceased, held, that he was not personally liable for the tax laid by the Act of December, 1865, on cotton on hand on the 1st of October of that year.</p> <p>Summary of the law of this State in reference to taxation, and the rights and duties of tax payers and agents, and tax collectors, in making and receiving returns, and issuing tax executions.</p> <p>Note by Judge "Wakdlaw concerning the regulations for assessment and collection of State taxes.</p> <p>(a) Tax Acts. The legislation which has been had in this State, before and since 1776, on the subject of taxes, is so scattered and confused, that it is extremely difficult to trace its history, or to determine precisely the existing law upon some points embraced in it. The earliest Tax Acts of the Province have been lost. (See list of Acts appended to vol. x. Stat. at Large, Nos. 5,12, 68, 96,112, 341.) But all that might have been obtained were not published in the Statutes at Large, when they might have been, and the MSS., with the other contents of the State House, were destroyed in the conflagration of Columbia, Feb., 1865. These omissions in the Statutes at Large are greatly to be deplored, not so much, however, as others, which the compilers chose to make, with reference to Courts, Militia, Slaves and other subjects, which they detached from the chronological order, to be inserted in the last volume, (7, 8, and 9,) where they are not to be found.</p> <p>Before the adoption of the Federal Constitution, duties on imports and exports, and bills of credit, contributed largely to the revenue required for the public use. Of these a satisfactory view may be obtained by examination of the Acts shown by the General Index, 10 Stat., (words — Duties, Bills of Credit,) and of the appendix to 9 Stat. and Dr. Cooper’s note, 2 Stat. 708.</p> <p>To direct taxation resort seems alwaj^s to have been had for supply of deficiencies. The earliest Tax Act, which inquiry can now reach, was passed in 1701, 2 Stat. 182. Thenceforward until 1783, after irrbgular intervals, other such Acts were passed, some providing for payment of taxes in several successive years, (1703, 2 Stat. 208; 1716, 2 Stat. 666 ; 1722, 3 Stat. 71, 192,) and the most important, with respect to regulations for collection of taxes, being those just referred to, and those of 1724, 3 Stat. 238 ; 1734, 3 Stat. 383 ; 1760, 4 Stat. 128 ; and 1777, 4 Stat. 365. The longest intervals in which there was no Tax Act were between 1739 and 1753, 1769 and 1777, and 1779 and 1783. From 1783 down, there has been an annual Tax Act. This before 1790 was passed in Charleston in the month of February or March; in 1790, 5 Stat. 149, in Charleston in January ; in 1791, 5 Stat. 188, at the second session of that year and the first held in Columbia, it was passed in December; and in December of every year since, it has been passed.</p> <p>Before 1788, every Tax Act contained all the regulations and directions for collection of the taxes it imposed, which were deemed necessary. Some of these were repeated again and again, from 1701 down ; others, introduced by addition or amendment as occasion required, were generally copied from the Act, where they first appear, into every subsequent Act. In February, 1788, regulations intended to be permanent, most of which had before prevailed, were enacted in a Separate Act, and these were omitted in subsequent Acts to raise supplies. Afterwards, alterations and additions were made, and copied from Act to Act until 1803, 5 Stat. 452, when they were made permanent by a supplement to the Act of 1788. Again the process of change and copying went on until 1815, 6 Stat. 7, when the classification of lands (which had been inserted in every Tax Act from 1784 down) was fixed in a form which remained unaltered until 1865, and to it some other general regulations were annexed. After another series of years, in which new regulations were copied time after time, another separate Act was enacted in 1843,11 Stat. 246 ; but unfortunately that Act contained no code of tax regulations, but only such of the changes, introduced after 1815, as wore approved, with some additions. From 1843 to 1849, the Acts to raise supplies contained only the subjects and rates of taxation. In 1849 and subsequent years, additions were made, and the Acts of 1865 and 1866 have copied most of these, and have made other important changes.</p> <p>The whole mass, out of which the present regulations for the assessment and collection of taxes may be evolved, may now be found in the before-cited Acts of 1788, 1803, 1815, 1843, 1865, and 1866, and in an Act concerning Courts, 1791, 7 Stat. 276, § 18-22. The sections last cited may seem to be misplaced ; the search for them in the Tax Acts, likely to be made, may, however, find there other matters not expected; as for instance, in the Act of 1803, before cited, the authority under which a present Sheriif makes title to land sold by his predecessor. It is understood to be a traditional usage in the House of Representatives to admit, on motion of the Chairman of Ways and Means, at the third reading of a bill to raise supplies, or of a bill to make appropriations, amendments without the previous notice which is required in the case of any other bill; and thus, in the hurry of limited time toward the close of a session, a matter, which would otherwise have been lost, has sometimes been admitted into one of the favored bills, although not entirely congruous to it. Many regulations concerning Boards of District Police, enacted from 1803 onward, were incorporated in tire permanent Acts of 1815 and 1843, or have been transferred to separate Acts which require reports from those Boards. A provision of 1811, § 35, which required names of persons, with the tax paid by each, to be transmitted by the Comptroller-General to the Clerk, was afterwards repeated and then inserted in the permanent Act of 1815, § 11; but, however useful it might be in respect to jury-lists, as well as for other purposes, does not seem to be now regarded.'</p> <p>(b) Appropriations. Appropriations were, for a long time, usually made in the Tax Acts. The earliest Appropriation Act, in the form now customary, which came after the Constitution of 1790, was passed in 1803, 5 Stat. 473 ; but before that time there had been schedules or estimates of charges, one of which was sometimes appended to the Tax Act, and sometimes embodied in it, 5 Stat. 377, 450. In 1793, 5 Stat. 308, no- estimate is now to be seen, although the last clause of the Tax Act for that year appropriates the money to be raised to. arrearages due and expenses of the current year. In 1777, 1778, and 1779, there appears no estimate and no appropriation to uses inore precise than the public uses. In the provincial times the General Index, Stat. 10, word Appropriations, will show that at first there was only some general purpose indicated toward which the money was applied in particulars not now preserved; that special appropriations and estimates soon prevailed, and may be found in the Tax Act, (see 3 Stat. 313, 344;) that, in 1733, 3 Stat. 186, there was an estimate without Tax Act, and in 1731, 3 Stat. 334, a separate Appropriation Act; and that from 1733 to 1769 were regular estimates.</p> <p>(c) Time. A distinction must be observed between the commencement of the fiscal year — that is, the time at which begin the annual charges which a Tax Act is intended to meet — and the time to which, in a return to a tax collector, the possession of property or liability to certain taxation is to be referred.</p> <p>(d) Piscar Tear. In the earliest Provincial Acts, provision is made for the apportionment of an exact sum already due between inhabitants residing within the town-plat of Charleston and other inhabitants of the province, and between the individuals of each of these classes, according to their several liabilities ; and reference to time is made only for fixing the times of assessment and payment. The estimate for 1733, before cited, seems to show that the fiscal year then began, as the legal one did, on March 35. An Act passed March 34,1734-5, 3 Stat. 338, by its title shows that it was intended to defray “the contingent charges of the government for one year, commencing September 39, 1734, and ending September 39, 1735,” and by its preamble declares these charges to be for the current year; and the same may be observed of the Act of December, 1735, 3 Stat. 357. Prom 1731 to 1758 each Tax Act was for the year in which it was passed, beginning 25th of March preceding. In 1759, April, 4 Stat. 103, an Act was passed for defraying the charges from March 25, 1758, to December 31, 1758, inclusive, manifesting a change of the year. Prom 1760 to 1769 each Act was passed in the early part of the year, and was to defray the charges of the year preceding, stating the first day of January as the commencement of the year. The Acts of 1777, 1778, and 1779 in no way designate the time they were expected to meet. The Acts 1783-1790 are each for the year of our Lord in which it was passed, so that the Act of 1788, 5 Stat. 50, does not seem of itself to have worked a change of year. The Acts 1791-1824 were each passed in December, and each for the current year. 1825-1830 there seems in the title of the Tax Acts to have been a misapprehension, as each is said to be for the year following the December in which it was passed. 1831-1840, each is entitled for the year in which it was passed, and from 1841 down each is more specially entitled for the year commencing October preceding. _</p> <p>(e) Day to wmen kbtubn keeers. Every Tax Act prior to 1791 was wholly prospective, as to the possession of property and liability to any tax imposed. The regulations of February, 1788, provided that under the Tax Acts of that year, contemporaneous with these regulations, the taxable property, or that of which a person liable to taxes was possessed in any right, should be returned by the first Monday of October then next, (October, 1788 ;) that the liability should be for property held in any right on the first day of October then next; that the same rule should prevail as to succeeding taxes and years, and that for taxes on property sold on the first day of October or afterwards, in each year, the seller should make return and payment. Here no retrospect was contemplated. But when in December, 1791, the Tax Act was passed, and reference to the first of October then past was preserved, the times for return and payment were necessarily altered, as necessarily the return made in the spring acquired a retrospective effect. Prom that time forward October first was looked to in the returns of lands and slaves, (see 1803, 5 Stat. 452, 470; and 1805, 5 Stat. 516 ;) and of money at interest, (5 Stat. 386 ;) but the sales of merchandise, 1815-1822, were expressly made to refer to the first day of January preceding each Act, almost a year before. This taxation of sales, by Act passed long after they were made, was in 1823 superseded by a tax on the stock in trade on hand the first day of January, 1824, and so a tax on the stock in hand on the first day of January after the Act continued until 1852, when there was a renewal of the former tax upon sales for the year beginning the first day of January before the Act, and that continued until 1865 inclusive. In 1866 quarterly returns of sales, made during the year beginning the first of January after the Act, were required; and by the Act of I860, the first day of January following, instead of the first day of October preceding, is the day to which taxes on property, imposed by that Act, shall have reference both as to possession and valuation, except where some other date is specially designated, and the income taxed is that which arose in the year beginning the first day of January preceding the Act. The Act of 1865, in the second section imposing the tax, and in the seventh section concerning the return on oath, has express reference to the first day of October, in regard to cotton, turpentine, and resin on hand.</p> <p>(f) Oath. The oath to be administered to a person who makes a return was prescribed in 1716, 2 Stat. 668, § 15, and, after frequent repetition, was in 1788 made permanent in nearly its original form, having no relation to October or any preceding time. In 1799, 5 Stat. 375, § 25, it was made to have express reference to the first day of October preceding in respect to money at interest, but there, as in many other instances, where the oath is repeated, the words, “ touching the same,” always introduced, would, by a rigid construction, confine its obligation to money at interest, or in other instances to lands and slaves, although other taxable property was returned. The supplementary Act of 1803 omits the oath, but the Tax Act of that year, § 11, repeats it, with special mention of lands and slaves, and so, after intermediate repetitions, does the permanent Act of 1815. A form of oath was afterwards omitted until 1822, 6 Stat. 198, § 5, when a special oath as to sales was prescribed, which was plainly intended to be additional to an oath respecting other matters. This special oath was, 1823, 6 Stat. 224, § 5, altered so as to accommodate it to the change from a tax on sales to a tax on stock in hand the first day of January after the Act, and, so altered, it was annually repeated until 1842 inclusive. In 1843 it was omitted, probably because a permanent provision of that year, 11 Stat. 217, § 5, copied from what had been partly contained in the Act of 1815, § 4, and more fully enacted in 1828, 6 Stat. 376, § 17, and often repeated, enjoins upon every tax collector, under a heavy penalty, to require a return on oath from each person liable to the payment of taxes “of his or her taxable properly” as required by law. The Tax Acts of 1807 and 8, 5 Stat., prescribed a special oath, concerning a penalty for non-residence on a plantation, to be administered to every person who returned more than thirty slaves, and special mention of an oath, as was before said, is made in the Act of 1865, § 7. The form set forth in 1815 has, by the changes which the enactments of 1843, 1865, and 1866 have necessarily produced, been brought substantially to this: “I swear that I will now make a full and true return, as required by law, of all taxable property and subjects of taxation, which, at the times provided in respect to each kind of property or subject of taxation, I was possessed of, interested in, or entitled to, either in my own right or in the right of any other person or persons whomsoever, or as executor, administrator, guardian, trustee, attorney, or agent, or in any other manner whatever, according to the best of my knowledge and belief; and that I will give true and just answers, according to the best of my knowledge, to all such questions as shall be asked me touching my liability to taxation under the laws of this State; and all this I swear without any kind of equivocation or mental reservation whatsoever. So help me God!”</p> <p>(g) Double Tax. Throughout the series of Acts prior to 1788, there was provision for assessment of a person who failed to make return, and for summary collection from him, in defect of information, of double the amount that the assessor might suppose he ought to be rated at; and this is, in cumbrous phraseology, made permanent by sections 9 and 11 of the Act of 1788.</p> <p>(h) Concealment. The Act of 1716, 2 Stat. 669, § 17, for voluntary concealment of any part of his taxable property, which any person is guilty of in rendering his account, provides for a forfeiture of the property concealed, to be adjudged in a Court of record. In 1733, 3 Stat. 354, the forfeiture was reduced to treble tax on the part concealed, and nothing said as to the mode in which it should be ascertained and enforced. In 1758, 4 Stat. 57, the forfeiture was raised to five times the value of the tax on what was concealed; and in this form a permanent provision was made by Act of 1788, § 8, and perhaps reference to § 26 was intended. See State vs. City Council, 12 Rich. 731; Slate vs. Allen, 2 McC. 59; Crosby vs. Warren, 1 Rich. 388 ; State vs. Simons, 2 Sp. 761.</p> <p>(i) Arrears. An Act of 1704 provided for omissions and for collection of arrears the same process which defaulters were subject to. In .4718-19, the Chief Justice was empowered, at the request of the Commissioners appointed to receive the taxes, to grant new executions for arrears and to proceed as against defaulters. In 1723 lists were required to be furnished to the Treasurer, and he was directed to collect arrears by warrants under his hand; and thus the law was repeated again and again until it was made permanent, 1788, § 7, 16. By the supplementary Act of 1803, § 3, the tax collector is authorized to issue executions for all arrears of taxes certified by the Comptroller-General, and he is required to annex to his general return a list of all the taxable property not returned, which has come to his knowledge, or the names and descriptions. By the Tax Act of 1788, § 15, collectors are authorized to collect taxes from defaulters of the five preceding years, who had not paid to their predecessors.</p> <p>In 1826, § 20, a tax-collector was authorized to issue executions against all persons who were in arrears to his deceased predecessor. In 1827, § 13, another was authorized to renew executions which his predecessor had not caused to be collected ; and in 1828, § 14, he was required to sign executions against defaulters of three and four years standing.</p> <p>(k) Swearing oee. From 1701 down to 1788, there was provision for a taxable person coming at the time appointed for payment to swear off the excess, which had been imposed upon him by over-rating or undue assessment; and this was permanently enacted by the sixth section of the Act of 1788. The 25th section of that Act relates to the limits of the parish of St. George, Dorchester. An Act of 1779, 5 Stat. 366, § 2, “respecting the division line between the parishes of St. James, Goose Creek, and St. George, Dorchester,” repeals the “sixth” clause of the Act of 1788. Grimke’s P. L. was published in 1790, and was in 1799 the only printed collection then existing of the Acts between 1734 and 1790. It sets forth the Act of 1788, with the sections so numbered that what is in the Statutes at large, published long afterwards, shown to be the 25th, appears as “the sixth.” It can scarcely be doubted that the Legislature intended, in 1799, to repeal the section (25th) which related to the parish line. See State vs. Council of Mount Pleasant, 8 Rich. 214.</p> <p>(e) Execution. A summary execution against defaulters has prevailed from the earliest period. At first it was issued by a justice of the peace, 1701, 2 Stat. 182; afterwards by the Chief Justice, 1716-1723, 2 Stat..; in 1724-1733, 3 Stat., by the public Treasurer; in 1734, 3 Stat. 388, and ever since, by the inquirers and collectors, subject to the right of the Treasurer or Comptroller-General as to arrears before mentioned.</p> <p>In 1736, 3 Stat. 443, a form of warrant or execution was prescribed, directed to a constable or provost-marshal, which in substance was repeated in every subsequent tax-act until 1788. The general Act of 1788, 5 Stat. 52, § 10, in specifying the mode for enforcing collection, adopts the form before in use, only adding lands to goods and chattels, and requiring the process to be directed to the constable living nearest to the defaulter’s residence, and no form has since been given. In 1799, the tax collector was required to place his warrants in the hands of the Sheriff only; and this provision, after intermediate repetitions, was confirmed by the general regulations of 1803, with directions for employment of the coroner when the Sheriff is interested. Subsequent enactments impliedly required some change of the form of execution prescribed in 1788. The temporary specific lien, created by the 15th section of the permanent Act of 1843, could not be made available without some special directions to the Sheriff, which the mandatory part of the process would give more properly than oral instructions would; and the same may be said of the special execution against a free negro, 1830-1843, § 2. Executions for arrears, certified by the Comptroller-General, or arrears unpaid to a preceding collector, (cases mentioned under the head inws,) would not consist with the preliminary recital which is prescribed. In these cases, and in others where double tax executions are spoken of, it seems plain that the Legislature has considered it competent foi' a tax collector to adapt his execution to the requirements of the occasion; and the defendant may well complain if, 'in a case out of the ordinary course, a paper requiring a Sheriff, who may know nothing not shown by it, to invade rights of property and person, should not on its face explain why and for what it has been issued.</p> <p>(m) Non-besidents. Increased taxes, from 1778 to 1783, and from 1793 down, have been imposed upon absentees from the United States, with special exceptions, which have been occasionally varied. These taxes were triple, 1808-1825, except 1813, when they were quintuple; double at all other times, and so fixed in 1843.</p> <p>The ordinary provision for collection of taxes upon the property of nonresidents has been a return from the person resident here who had possession, with execution against that person, and perhaps against the absent owner, to which the specific properly and his other property here would be subject.</p> <p>Of absent owners, lands seem most to have attracted the attention of the Legislature, next slaves. In 1734, 3 Stat. 384, § 3, when land owned by a non-resident was not returned, the collectors were directed either to sell wood or timber therefrom, to the amount of the tax the land was liable for, or to let to farm all or any part of it, for a term not exceeding four years, till the tax was paid by the rents; and this provision was repeated until 1784 inclusive, the term of lease having been extended in 1758 to seven years, and in 1764 and afterwards to twenty-one years.</p> <p>In 1737, 3 Stat. 474, § 5, it was provided that land found to belong to a non-resident, who had no legally constituted attorney or trustee within the province, should be proportionably rated, and if, after notice by publication, the tax, with interest, was not paid within two years, the land should be forfeited to the king, and be considered vacant. In 1777, forfeiture to the State was enacted, and the provision was in substance continued till 1784 inclusive. In 1786, the provision was extended to “tracts of land, negroes, or any other taxable property,” and the time of notice was reduced to one year, and sale at auction directed, with saving of -the rights of infants and feme coverts ; and in this form it was made permanent, 1788, § 19. In 1791, 7 Stat. 276, sales of property for taxes were made subject to regulations, which were applicable to all cases ‘ ‘ of default made by any person in the payment of any tax.” 1795-1798, particular notice was taken of lands which had been sold to persons living in the Northern States and foreign countries, who paid no taxes, and tax-collectors were enjoined to inquire, report, and collect “ agreeably to the mode prescribed for selling the property of those who make default in paying taxes.” If this authorized immediate sale of the lands of nonresidents, a return to the mode prescribed in 1788 seems to have been made, 1801, § 10, when twelve months notice.was required before sale; and the supplementary Act of 1803, § 6, confirms the enactment of 1801, with directions for sale in lots and saving of tlie rights of persons who had obtained new grants.</p> <p>In the separate Act of 1843, section 6 requires return by each person liable to the payment of taxes for his or her taxable property ; section 12, in case any taxable property (perhaps of an inhabitant) shall be removed from the State after the first day of October, and before payment of taxes, subjects the property of the owner which may remain to liability for the “taxes on that which has been carried from the Stateand section 11 constitutes taxes on lands, slaves, goods and chattels, specific liens “ on the said lands, slaves, goods and chattels, for one year from the time the liability to taxes attached upon the owner or proprietor thereof..”</p> <p>The question has not yet been presented, whether a'tax execution against a non-resident is a cumulative remedy, which may be had in lieu of those prescribed in 1788 and 1803, or in connection with them. Many expressions of the Legislature bear on this question. Before 1716, only the inhabitants residing in the province were assessed; in 1716, planters and others residing, living, or otherwise interested in the province; in 1751, inhabitants and others interested in the province; in 1788, “ persons living in the State who are possessed of any lands, slaves,” &c., “all persons whosoever anyways liable to pay taxes,” “any taxable person 1792, “ all persons anywise liable to pay the taxes hereby imposed.” In 1815, § 4, a return of taxable property is required from the owner, “unless the owner is absent from the State.” The Act of 1843 contains the words above extracted from it, and also provides for taxes upon taxable property in this State, to which persons who reside out of the United States are entitled. The Act of 1788 directs warrants after ten days exposure of the list of defaulters, “if any person or persons whosoever shall neglect to pay in his or her tax;” and the Act of 1803 speaks of “all persons liable to pay any tax,” of taxes and arrears of taxes on lands of non-residents, and directs warrants against “any person who shall make default in payment of taxes.”</p> <p>From 1716 until the same was made permanent, 1788, § 12, it was repeated that a person removing between his return and the time appointed for payment, without having paid his taxes, should be liable to execution as a defaulter.</p> <p>Under the head oath will be seen above the long-continued resolution of the Legislature to hold liable, for the tax on any property, the person in the State who, in the absence of the owner, has possession thereof or interest therein. The word “agent” was first introduced into the oath in 1777; but still the words “legally constituted” attorney or trustee were retained in the section which authorized forfeiture and sale of the lands of non-residents, afterwards extended to goods, and made permanent, as before shown. Until 1791, the possession or interest in autre droit was always spoken of as existing at the time of the return, for the return, as before shown under the head day to which retwrn refm'g, had no retrospect; but in 1791, and afterwards, the return, which every one liable to taxation was required to make of the taxable property held in his own right, or any other right, had relation to the first day of October preceding; and the liability, imposed by the law and enforced by the oath, must have embraced every one who on that day had possession or interest, and could not discharge himself, by swearing, at any time before the time appointed for payment, that his liability in auti’e droit had ceased.</p> <p>This right to discharge arises from an equitable construction of the 18th section of the Act of 1788. That section is a perpetuation of a provision which was introduced in 1789 in mitigation of the Act of 1737 and preceding Acts. The attorney or trustee had been held personally liable for the tax on land, notwithstanding his renunciation or disclaimer before the tax was levied. In 1739, 3 Stat. 528, § 4, was added, “unless he shall make oath that ho hath bona fide renounced his power before the payment of the tax becomes due, without having done it to avoid the payment of the said tax, ’ ’ and shall not again be attorney or trustee within one year. In 1758, the provision was extended to taxes on slaves, and other taxable goods, as well as those on lands, and then in 1788 it was made permanent. By the express words, an attorney or trustee might, by renunciation, release himself from liability, even after he had made return; a fortiori, he is released by entire completion of the purposes for which he was appointed, or other cessation of his power and interest, without his voluntary termination of them; and surely by such cessation before a return was required from him, not less than after. If a legally constituted attorney would be thus discharged from liability, how much more an overseer, a bailee, or other irregular agent, a guardian who has surrendered the property to his ward become of age, an executor, administrator, or other trustee who has been removed from his trust, or a temporary occupant, who has yielded possession to the owner for whom he held. If discharge can be had from a tax, which the agent assumed by his return made before he yielded his authority, it would be strange to enforce his personal liability, when not only his power ceased, but the property which is taxed was taken out of his reach before he had reason to expect that a tax on it would be imposed.</p>

<p>Jurisdiction — Courts—Persons of Color — Ex-post facto Law.</p> <p>The Court of General Sessions is a superior Court of general jurisdiction, and nothing shall be intended to be without its jurisdiction but that which specially appears to be so.</p> <p>The constitutional provision that the District Court “ shall have jurisdiction of all criminal cases wherein the accused is a person of color ” does not exclude the superior Court from exercising jurisdiction in such cates.</p> <p>The Act of 1865, conferring exclusive jurisdiction on the District Courts in all criminal cases wherein the accused is a person of color, having been repealed by the Act of September, 1866, as to offences above the grade of larceny, held, that the Court of General Sessions, after the passage of the latter Act, had jurisdiction to try persons of color for capital offences, committed whilst the former Act was of force.</p> <p>Courts of magistrate and freeholders for the trial of free persons of color were abolished by an ordinance of the Convention of 1865.</p> <p>An Act reviving the jurisdiction of a superior Court so as to enable it to try persons for offences committed during a period when an inferior Court had exclusive jurisdiction to try them, is not an ex-post facto law.</p>