Volume 49 — South Carolina Reports

<p>Before Buchanan, J., Sumter, March, 1896.</p> <p>Action by Uevander Elmore against Darling U. Davis, James T. Davis, J. Dee Davis, Alfred U. Davis, Murray H. Davis, Joshua W. Davis, John U. Davis, Sarah Davis, in her own right and as executrix of John Davis. Complaint dismissed. Plaintiff appeals:</p> <p>cite: 27 S. C., 269; Code, 98; 27 S. C., 193; 20 S. C., 462; Harper, 390; 1 McC., 137; 23 S. C., 388; 12 S. C., 108; 17 S. C., 544; 18 S. C., 232; Rice, 375; 21 S. C., 291; 9 S. E. R., 523.</p> <p>cite: Code, 98; 3 Brev., 553; 59 N. Y., 426; 46 lb., 182; Code, 274; 36 S. C., 559; Harp. Eq., 106; 7 Rich. Eq., 84; Harp. R, 390; 1 Brev., 101, 103; 1 McC. R, 161; 2 Brev:, 400; 13 Rich. R, 178; 5 Strob., 141.</p>

Before Watts, J., Darlington, March, 1896. Action by Frank Parrott against R. V. Malpass, in claim and deliyery, for possession of certain personal property distrained by defendant, as landlord, for rent for lands used for agricultural purposes. Magistrate gave judgment for plaintiff. Defendant appealed. Circuit Court affirmed judgment below.

Before Witherspoon, J., Chester, March term, 1896. Action by S. N. Sadler against S. G. Nicholson, H. M. Ross, and H. J. McKeown, as stockholders of the Fishing Creek Manufacturing Company, on their liability as stockholders. The complaint was dismissed as to the two latter and continued against the first named. Judgment against her for $20'0.

Before Townsend, J., Spartanburg, February, 1896. Action by J. R. Littlejohn against the Richmond and Danville Railroad Company for damages for injuries sustained while attempting to cross a public street in town of Gaffney City by climbing between two freight cars of a train of cars standing across the street. Judgment for plaintiff. .Defendant appeals. cites: Duty of railroad of signalling before moving cars: 38 S. C., 136; 39 S. C., 514: 57 Fed.

Before Benet, J., Orangeburg, June, 1896. Motion on the part of Ware Furniture Company to set aside the five judgments mentioned in caption, confessed to the plaintiffs therein by J. E. Steadman. The Circuit decree is as follows: These various matters came before me on the motion of the Ware Furniture Company, a judgment creditor, junior to the several judgment creditors named above.

Before Aedrich, J,, Horry, October, 1896. Petition of Emaline Worley to clerk of court, to' have homestead assigned to her out of the estate of her husband, Coleman Worley.

<p>Before Witherspoon, J., Richland, November, 1895.</p> <p>Action by Samuel A. Gardner and Elizabeth A. Wolfe against Elizabeth Gardner, A. E. Geiger, E. A. Gardner, Alice Gardner, Elizabeth Gardner, the younger, Rula Gardner, Elizabeth B. Geiger, and B. Frank Gardner, in his own right and as trustee, to set aside a trust deed.</p> <p>The cause was referred to Jos. W. Muller, Esq., who heard all the issues, and made the following report:</p> <p>To the Honorable the presiding Judge Fifth Circuit Court aforesaid: I, the undersigned, special referee, respectfully beg leave to report as follows: That, pursuant to an order of the Court herein, referring it to me to hear and determine all the issues in the above cause, and to report my findings of fact and conclusions of law to this Court, I held references from time to time and took the testimony, which is herewith filed. The testimony is very conflicting, and I have given it the most earnest and careful consideration. It seems that on the 15th day of September, 1873, Samuel Gardner duly made and executed his will. During his lifetime, to wit: on the 14th day of June, 1879, he executed to the defendant, Elizabeth Gardner, his wife, his bond in the penal sum of $31,680, conditioned to pay one year after date, the sum of $15,840, and to secure the payment thereof, he executed a mortgage on all his real estate. Mr. Gardner died in 1883, and shortly thereafter the said mortgage was foreclosed, and the property covered thereby was purchased by Elizabeth Gardner, who went into possession thereof. On the 15th of December, 1888, Elizabeth Gardner, for the consideration of $5, executed to her son, B. Frank Gardner, a deed of the premises in trust, to hold the same for certain uses and purposes. Provision was m&de in this trust deed for all of the beneficiaries named in the will of Samuel Gardner, except the plaintiffs. Plaintiffs contend that after the death of the said Samuel, his family, the said beneficiaries under his said will, including his wife, the said Elizabeth, met in council, and then and there made an agreement for settlement of said estate, by which it was mutually agreed that the said Elizabeth should use the said mortgage for the purpose of settlement, and should at once proceed to foreclose the same through the courts, and the children, the beneficiaries, would remain silent and permit the same; that she, the said Elizabeth, would buy in the said property under said mortgage, take the title in her own name for convenience, raise sufficient money to pay off the debts of the said Samuel; and that the rents and profits thereof should be first applied to the payment of the taxes, insurance, interest, and repairs, and the remainder of said rents and profits should go to the support and maintenance of the said Elizabeth during her life, and after her death the said property, or what remained thereof after the payment of the debts, should be distributed-to the persons named and in the proportions stated in the will of the said Samuel; and to that end that the said Elizabeth should make a will. Plaintiffs also contend that it was in pursuance of this agreement that the said Elizabeth was permitted to foreclose said mortgage and buy in said property. And that the said trust deed from Elizabeth to B. Frank Gardner was obtained by false and fraudulent representations and undue influence. Elizabeth did, on the 17th February, 1886, make her will, in which she seems to have tried to dispose of the property as nearly as possible as her husband, Samuel, had done in his will. The real contention of the plaintiffs, then, is, that by virtue of the contract or family settlement set up in the complaint, a trust, whether resulting or constructive, attached to the premises described in the complaint (whether in the hands of Elizabeth Gardner or in the hands of grantees) in favor of the plaintiffs, the terms of the trust being declared in said contract or family settlement. If it be true that the alleged family settlement was made, it follows that Mrs. Elizabeth Gardner had no right to make the trust deed, and it should be cancelled and set aside.</p> <p>Under all the authorities which I have examined, it seems that the evidence necessary to establish such a trust must be “Clear and unequivocal.” “Clear, full, and satisfactory.” “Clear and certain.” “Strong and very clear.” 2 Pom. Eq. Jurs., p. 633, sec. 1058; 10 Am. & Eng. Ene. Uaw, pp. 29, 49, 84, and notes. Has the alleged family settlement been proved by evidence of the character required? There can be no doubt, that shortly after the death of Samuel Gardner, all of his family, or most of them, at least, met in Mrs Gardner’s parlor, in Columbia, whether for the simple purpose of hearing his will read or, as the witness, Mr. Crawford, says, “for the purpose of settling the estate of Samuel Gardner, and the further purpose of foreclosing this mortgage,” is immaterial. At that meeting both the will and the mortgage were produced, but as to what was done and said, there is considerable conflict of testimony. Even the witnesses for the plaintiffs do not agree as to what the agreement or settlement was. Samuel Gardner says, his mother “was to make a will, and will the property, as near as she could, as my father had willed it;” while Mr. Crawford says that the understanding reached was, “that the property should be held by Mrs. Gardner for her use during her natural life, with remainder to her children, share and share alike, that is my recollection.” So that, even if I reached the conclusion that there was a family settlement, binding upon all of the family, it would be difficult, if not impossible, to find what the agreement actually was, and who are entitled to the property. I do not think, however, that the evidence is sufficient to warrant me in finding that there was a family settlement. The fact that there was some opposition to the foreclosure of the mortgage, and that that opposition was withdrawn, is not, in my judgment, enough. The bona Jides, the consideration of the mortgage, may have been questioned. This was but natural, for it covered all the Samuel Gardner real estate, and was for an amount almost equal to the value of the property.</p> <p>I do not understand Mr. Crawford, who was Mrs. Gardner’s attorney, to say that any binding contract was made, but that an “understanding” was reached. He says further: - “Whether that division was provided for by her last will and testament, I cannot say, but think it was; be that as it may, the old lady got after me several times to draw her last will and testament, but it was drawn in my absence by Mr. Shand, and that last will and testament is now a fact. The contents I cannot swear to.” Now, surely, if such a contract or family settlement was made, as plaintiff contended for, affecting, as it did, an estate worth about $20,000, Mr. Crawford would have reduced it to writing, and would have immediately drawn and executed Mrs. Gardner’s will, carrying out that agreement, and not have waited for her to “get after him” several times to draw it. Would not the other members of the family have insisted iipon having the agreement put in writing? It seems most reasonable to infer, from Mr. Crawford’s course, that he considered the alleged contract only an understanding, a family expectation, not binding or obligatory. Again, it is hard to understand how Mr. Crawford would permit Mrs. Gaxdner-to make any such contract. He certainly considered her mortgage a valid and subsisting lien on the property. He testifies that the consideration of the mortgage was the debt that Mr. Samuel Gardner was owing his wife, growing out of the use of her money and other property obtained as his wife’s distributive share in her father’s estate. True, the evidence shows that she came into possession of this property prior to 1868, at which time the law was, that all the personal property of the wife reduced by the husband to possession during coverture became the absolute property of the husband, and liable for his debts; yet it is equally true, the husband could make a gift to the wife. Counsel for the plaintiffs argue that Mr. Gardner could not have intended a gift to his wife, because she says, “my husband made a mortgage of the property to me. * * * He made the mortgage for me as long as I lived.” But she says, also, “of course, it was my money — all the property was left in my charge; I suppose it was my property — don’t know whose it is.” These and other inconsistencies in the old lady’s testimony can easily be accounted for when it is remembered thai she was seventy-four years of age when she gave her testimony, and admitted herself that her memory was poor. If Mr. Gardner only intended to give his wife a life estate in the property, a mortgage, absolute on its face and payable one year after date, was a most singular method of effecting his purpose. It seems to me far more reasonable that he intended to do just what he did, leave to her the money which he said he owed to her morally. Mr. Crawford says Mr. Gardner told him “that he felt that, inasmuch as he had used the money of the old lady, he ought to make this mortgage to her of the principal and interest.” Again, Mrs. Gardner says: “I did not promise to make a will and leave the property in same proportions as contained in the will of Samuel Gardner. I did not make the will on account of any agreement had with my children.” B. Frank Gardner, Mrs. Ann E. Geiger, and Dr. J. W. Geiger all swear positively that there was no agreement. So that, of all those that were present at that family council, Samuel A. Gardner is the only one who swears that there was an agreement. But counsel for plaintiff argues that there were corroborating circumstances; that the mortgage was foreclosed, and the property bid in by Elizabeth Gardner, without opposition on the part of the family; that the estate of Samuel Gardner was settled up in the foreclosure suit; and that Elizabeth Gardner did make her will, disposing of the property as nearly as practicable as Samuel had done in his will.</p> <p>All of these circumstances fail to convince my mind. As the Pollard mortgage, Mrs. Gardner’s mortgage, and the other debts against the estate would about exhaust the entire property, there was no incentive to any other member of the family to bid on the property. Mrs. Gardner’s mortgage, if valid, and the other debts of Samuel Gardner, had to be paid, and I cannot see any significance in the fact that the estate of Samuel Gardner was settled up in the foreclosure suit. It was but natural for Mrs. Gardner', then a very old lady, to make her will; and equally natural for her to dispose of the property as her husband had done. Besides, there are circumstances which tend to corroborate the defendants’ testimony. From the time Mrs. Gardner purchased the property at the foreclosure sale up to the time of the trust deed, she dealt with the property as her own absolute propert}' — selling a portion and mortgaging a portion, and using the money in part for her own purposes. I cannot believe that Mrs. Gardner would have violated the family agreement, if there had been one, and committed a breach of trust. Again, when Samuel A. Gardner learned of the trust deed, he complained of his mother’s treatment of him; but, as Mr. Seibels says, never disputed the right of his mother to dispose of the property as she pleased, I have only discussed what to my mind are the most salient portions of the testimony, but have weighed carefully all of it, and find, as matter of fact, that there was no contract or family agreement entered into, as alleged in the complaint; that Mrs. Elizabeth Gardner, at the time she made the trust deed, owned the property in question in her own right, having purchased the same at the foreclosure sale.</p> <p>I further find, as matter of fact, that there was no fraud or deception practiced upon Mrs. Elizabeth Gardner, as alleged in the eighth paragraph of the complaint. It follows, as matter of law, that the plaintiffs are not entitled to the relief sought, and that the complaint should be dismissed.</p> <p>The Circuit Judge confirmed this report, and the plaintiffs appeal.</p> <p>cites: 77 Mass., 506; 19 S. C., 591; 32 S. C., 263; 19 S. E. R., 685; 3 Rich. Eq., 423; Harp. Eq., 212.</p>

Petition, in the original jurisdiction of this Court, by William R. McCreight against F. R. Zemp, as mayor, and W. F. Malone, W. G. Wilson, and D, E. Hinson, as aider-men, composing the city council of the city of Camden, for an injunction, restraining them from issuing certain city bonds.

Before Watts, J., Chesterfield, January, 1896. Action by Miles Threatt against Brewer Mining Company, for damages and injunction. The jury found verdict for plaintiff for $1,000. The following is the decree on the equity side: This cause came on for trial before me at the special term of Court in January, 1896, held for said county, and the issues as regarded the alleged nuisance and damages were duly submitted to a jury on the law side of the Court.

Before BENET, J., Charleston, June, 1896. Held: that although under the Nebraska statute a special deputy, appointed to serve a summons, was required to make his return under oath, jurisdiction was obtained if no objection was made to the return on that ground, although the return was not under oath.

Before Gary, J., Lexington, February, 1896. Proceeding in the probate court of Lexington County by Julian E. Kaufman, executor, to prove in due form of law the will of Mrs. Lucinda Drafts, at the instance of her daughter, Mrs. Ella Caughman. The probate court set up the' will, and the contestant appealed to the Circuit Court, which found in favor of the will. Contestant appeals, on the following exceptions: 1.

<p>Before Townsend, J., Oconee, July, 1896.</p> <p>Indictment against Anderson Chastian for unlawfully storing and keeping alcoholic contraband liquor. Defendant was convicted, and appeals.</p> <p>The trial Judge charged the jury as follows:</p> <p>The indictment is for storing and keeping in possession alcoholic liquors. The law is so plain that I don’t see that I need detain you about it. It is written in black and white. If a man undertakes to keep liquor, it must have the stamp of the state commissioner. If he is going to keep dispensary liquor, it is usually bought in dispensary packages, and has the stamps on it. If he is going to deal in blind tiger liquor, he must get stamps and put oil it. .The law is as plain as “A B C,” and, like all statutory law, is plain and to the point. It is no use for me to detain you about it. You have heard the testimony. The question is: Did he have liquor there, keeping it there without any stamps on it? If so, he must show that he had bought it through the regular channel, the dispensary, or that he obtained from the state commissioner the proper stamps to put on it. The law provides how he shall do it. The law prevents this storing and keeping in possession liquors, shows how it may be kept safely and without any trouble. And if a man is not minded to put himself to that trouble, then he will have to look out for the consequences. But matters of fact are for you. You must determine whether it is so or not, so far as the facts are concerned. The law is here, and we have got to abide by it. It don’t make any difference whether it is wise or not. That is not the point with sworn officers. If you have any reasonable doubt as to the guilt of the defendant, give him the benefit of it.</p> <p>cite: Dispensary law of 1896; 14 S. C., 104; 18 Ohio, 462.</p> <p>(No written argument.)</p>

Before Watts, J., Chesterfield, February, 1896. Action by the DeSoto Gold Mining Company agáinst John D. Smith, as county treasurer of Chesterfield County, to recover certain taxes paid by it under protest, and assessed against a former holder of the property.

Before Benet, J., Charleston, May, 1896. Action by Julia E. S. Wagner, in her own right and as administratrix of estate of- Levi P. Wagner, deceased, William Wagner, Max Wagner, and Clement Wagner, against Joshua C. Sanders, H. G. Eeland, and J. B. Morrison.

<p>Before Benet, Charleston, July, 1896.</p> <p>Proceedings in contempt against J. N. Nathans, James Simons, Julian Mitchell, Henry A. M. Smith, Huger Sink-ler, John H. Doscher, A. F. C. Cramer, and E. H. Sparkman, in the case of Theodore Wenzel and John W. Burmester against Palmetto Brewing Company et al.</p> <p>The Circuit decree states the facts as follows:</p> <p>First. That this Court, the Court of Common Pleas, issued its order of injunction on the 31st of December, 1895, in this cause, whereby it restrained and enjoined the Palmetto Brewing Company, John H. Doscher, the Security Savings Bank, the De Da Vergne Refrigerating Machine Company, and all other creditors and stockholders of the defendants from taking any action whatever in the premises pending the further order of the Court.</p> <p>Second. That notwithstanding the service on the 31st of December, 1895, upon E. H. Sparkman, cashier of the said Security Savings Bank, and J. H. Doscher, president of the said Palmetto Brewing Company, of the aforesaid restraining order, and notwithstanding the deposit in the post office of Charleston, S. C., with postage prepaid, of the summons and complaint herein, together with the said restraining order, addressed to the De Ea Vergne Refrigerating Machine Company, New York City, said deposit having been made on the said 31st December, 1895, yet that, nevertheless, the said De Ea Vergne Refrigerating Machine Company, defendant herein, thus enjoined and restrained so far as a non-resident defendant could be enjoined and restrained, caused to be filed on 6th January, 1896, in the Circuit Court of the United States for the District of South Carolina its bill of complaint against the said Palmetto Brewing Company, the said Security Savings Bank, and the Consumers’ Coal Company, praying foreclosure and sale and administration of assets of the said Palmetto Brewing Company, and for the appointment of a receiver.</p> <p>Third. That said bill of complaint was filed by J. N. Nathans, Esq., as the solicitor of the said De Da Vergne Refrigerating Machine Company, and sworn to by him as such solicitor.</p> <p>Fourth. That said J. N. Nathans, Esq., was also the attorney for the said Security Savings Bank in these proceedings, and as such duly made return for said bank to the order and rule issued on 31st December, 1895.</p> <p>Fifth. That on the 6th January, 1896, upon the motion of the said J. N. Nathans, Esq., an order was granted by the Judge of the said United States Court appointing A. F. C. Cramer receiver of the said Palmetto Brewing Company, and a general restraining order issued, and a rule to show cause why this injunction and receivership should not be made permanent.</p> <p>Sixth. That the usual subpoena ad respondendum, issued on the 6th January, was personally served on C. O. Witte, president of the Security Savings Bank, A. F. C. Cramer, president of the Consumers’ Coal Company, and J. H. Dos-cher, president of the Palmetto Brewing Company.</p> <p>Seventh. That on the 8th January, 1896, an order was made in the said cause in the said United States Court authorizing the receiver, Cramer, to continue the business of the said Palmetto Brewing Company, said order being made on the motion of the said Mr. Nathans, complainant’s solicitor.</p> <p>Eighth. That on the 16th January, 1896, the said Security Savings Bank filed its cross-bill in the said United States Court, duly sworn to by the said E. H. Sparkman, its cashier.</p> <p>Ninth. That the aforementioned J. N. Nathans no longer appeared to represent the said Security Savings Bank, but his place was taken as solicitor of the said bank in said cause by Huger Sinkler.</p> <p>Tenth. That the subpoena on said cross-bill was duly issued on said date and served on the said Cramer as president of the Consumers’ Coal Company, and on said Doscher as president of the said Palmetto Brewing Company.</p> <p>Eleventh. That three days prior to this, namely, on the 13th of January, 1896, this Court of Common Pleas had by formal decretal order made its order of injunction of 31st December, 1895, permanent, and had appointed Aug. Bequest receiver of the Palmetto Brewing Company.</p> <p>Twelfth. That to avoid all appearance of conflict between this Court and the said United States Court, and out of the respect and courtesy proper to be shown by one Court to another, the said Bequest, receiver of this Court, filed his petition in the said United States Court, setting forth his claim to the possession of the said property, that the said United States Court thereupon duly issued a rule to show cause why the order appointing Cramer receiver of the United States Court should not be rescinded, and why the petitioner, Bequest, receiver of this Court, should not obtain and retain possession of the property in question.</p> <p>Thirteenth. That the hearing was set for 21st January, 1896. That at said hearing before his Honor, Charles H. Simonton, United States Circuit Judge,Nthe Palmetto Brewing Company, by its attorneys, Messrs. Mitchell & Smith, made a return, sworn to by the said Doscher, its president, who is also personally a party defendant herein, in which return the following language was used with reference to this Court and its appointment of a receiver:</p> <p>“And this respondent further shows that this respondent duly and to the extent of its ability opposed the appointment of a receiver in the State Court under such proceedings, but a receiver having.been appointed therein, and a receiver likewise having been appointed by this honorable Court, this respondent avers and alleges that the proceedings in the State Court under which such receiver has been appointed are wholly insufficient, irregular, null and void, and that the further prosecution of the same will redound to the injury of this respondent, etc.”</p> <p>Fourteenth. That at said hearing the said Security Savings Bank, represented on that occasion by Mr. Huger Sinkler, made a sworn return, signed by E. H. Sparkman, cashier, and the De Ha Vergne Refrigerating Machine Company made a sworn return, sworn to by its solicitor, the said Mr. J. N. Nathans, in which returns, among other matters, the respondents say that upon the face of the complaint in this cause in this Court of Common Pleas it appears that the plaintiff had no legal right to institute legal action, and that the order of this Court was irregular and illegal.</p> <p>Fifteenth. That the Consumers’ Coal Company also made a sworn return, signed by A. F. C. Cramer, its president, its solicitor being Mr. James Simons. Its return states among other things, “that the property having first been taken posr session of by this, the United States Court, by its receiver, for the benefit of creditors, who are entitled to payment of their demand before stockholders, the same should not be surrendered by the receiver of this 'Court, who according to the statement of said petition was in possession of the property in question before the appointment of the receiver by the State Court, and is now in possession thereof.”</p> <p>It was mainly upon the facts set forth above that the various rules in these contempt proceedings were issued against the several parties and their counsel.</p> <p>After a thorough discussion of the law of the case, the Circuit Judge makes the following order:</p> <p>It is, therefore, ordered, adjudged and decreed, that the respondents, John H. Doscher, A. F. C. Cramer, and E. H. Sparkman, are each guilty of contempt of this Court, and that to purge themselves of such contempt they do each pay a fine of $100.</p> <p>Further ordered, adjudged and decreed, that the respondents, J. N. Nathans, Huger Sinkler, Julian Mitchell, and Henry A. M. Smith, are each guilty of contempt of this Court, in having done acts in the premises unworthy of members of the bar and officers of this Court, and that until they purge themselves of such contempt, or until the further orders of this Court, they each be suspended from their offices as attorneys, solicitors and counsellors of the Circuit and Probate Courts of this State.</p> <p>This Court has no power to issue an order, affecting the proceedings in the United States Courts, but it may be in the power of the respondents to purge themselves of the contempt by undoing what they have done in the premises in the United States Court. If this be impossible, and this Court is satisfied that such is the case, it is ordered, that the respondents, J. N. Nathans, Huger Sinkler, Julian Mitchell, and Henry A. M. Smith, do and each pay a fine of $500, and that they each be suspended from their offices as attorneys, solicitors and counsellors of the Circuit and Probate Courts of this State until the fine is paid.</p> <p>Prom this judgment, defendants appeal.</p> <p>cite: Power of contempt exercised for two purposes: 26 Penn. St., 19; 1 Mill, 145; 1 Bail., 605; 4 Strob., 322; 5 S. C., 370. Contempts are of two classes: 7 S. C., 235. Judgment in contempt: 7 Wall., 364; 7 Wheat., 38. Ascertaining meaning of decree: 5 Rich. Eq., 550; 25 S. C., 562. Non-resident defendant cannot be enjoined: 25 S. E. R., 44; 110 U. S., 154; 22 S. E. R., 184; 18 lb., 120; 19 lb., 149, 286; 24 N. H., 370; 154 U. S., 256; 2 S. C., 183; 1 Pet., 340; 128 U. S., 305. Attorney enjoined for one client is not for another: 73 N. Y., 416; 75 lb., 368; 40 Ga., 356. Conflict of jurisdiction: 2 U. S. C. C. A. R., 286; 13 Wall., 679; 55 Fed. R., 137; 17 Am. E. R., 229. Contempt sentence at chambers void: 28 Pac., 961; 14 Am. St. Rep., 809; 101 N. Y., 245; 26 Penn. St., 19; 33 S. C., 496; 14 S. C., 266; 27 S. C., 409; 141 Ill., 165; 16 Ill., 534.</p> <p>cite: Contempt proceedings must be on affidavit: 10 S. C., 35. Order not served not violated: 4 S. C., 388; 29 Eng. C. E., 247; 25 S. E. R., 44. Suit in one jurisdiction not bar to suit in another: 99 U. S., 178; 22 Fed. Rep., 28, 710; 7 lb., 520; 9 lb., 785; 12 lb., 225; 50 lb., 640,'656; 59 lb., 249; 51 lb, 381.</p> <p>cite: Has Circuit fodge power to disbar or suspend except by stahite: Stat. West. M., 2 c. 10; act 4 Henry, c. 18; 2 Stat., 447; 7 Stat., 173; 4 Stat., 668; 5 Stat., 289; 6 Stat., 239; 14 Stat., 96; 16 Stat., 471; Gen. Stat. 1882, secs. 2159-2163; Rev. Stat., secs. 2287-2290; 5 S. C., 159; 4 Wall., 333; Johnson’s Cases, 153; 1 Cal., 143; 16 Wall., 505. Do our statutes authorize penalties imposed: Rev. Stat. 2291, 2292; 2 Cranch, 379; U. S. Stat., 725. Can Circuit Judge pronounce jtidgment in criminal contempt at chambers: 14 S. C., 241; 27 S. C., 408; 33 S. C., 407; 28 Pac. Rep., 962; 7 S. C., 240; 1 Bail., 605; 4 Strob., 322; 5 Strob. E., 88; 10 Bovil, 2 c., C. B. N. S., 6; 21 S. C., 11; 47 S. C., 38. Was any contempt in fract committed: 8 S. C., 390; 3 How., 464; 149 Mass., 56; 41 Fed. Rep., 311; 3 Wall., 384; 13 lb., 670; 15 S. C., 516; 18 S. C., 209; 124 U. S., 131. Penalty excessive: 107 U. S-, 302; 5 S. C., 159. Acts com?nitted not contempt: 4 Wall., 378; Con. 1868, Art. II., sec. 30; Con. U. S., art. 3, secs. 1, 2; 14 Pet., 67; 18 How., 503, 520; 20 How'., 175; 61 Md., 530; 110 U. S., 151; 95 U. S., 714; 98 U. S., 476; 156 U. S., 350; 35 S. C., 94; 39 S. C., 484; 41 S. C., 22; 22 S. E. R., 178; 134 U. S., 316; 156 U. S., 521; 42 S. C., 511; 140 Mass., 52; 136 U. S., 384; 70 Wis., 611; 8 Cal., 812; 6 Wall., 166, 514; 154 U. S., 266. State Court cannot keep non-resident out of U. S. Court: 93 U. S., 548; 99 U. S., 168; 154 U. S., 256; 32 N. E. R., 623; 136 N. Y., 169; 6 Wall, 194, 517; 9 Wall., 414, 418; 24 Fed. Cas., 336; Rev. Stat/U. S., 753; 1 Wheat., 363; 135 U. S., 61.</p> <p>cites no additional authorities, except as to what is a cross bill: 1 Wall., 5; 11 Wall., 108; 101. U. S., 187.</p> <p>cite no additional authorities.</p> <p>cites no additional authorities.</p> <p>cites no additional authorities.</p> <p>filed no printed argument.</p>

Before BENET, J., Oconee, July, 1895. Action by William O. Hamilton against Charles McAlis-ter, for rescission of contract upon mutual mistake.

Before Witherspoon, J., Chester, March, 1896. Indictment at common law against Wade and Walker Crocker, for obstructing common highway. Defendants were found guilty and sentenced. From this judgment they appeal. cites: Classification of roads: 1 McM., 47; 2 Strob., 62; 11 S. C., 368. Introdtuction of records: Rev. Stat., 2361.

Before Earee, J., Union, December, 1895. Held: however, “that when the administrator accounts as such, he will be chargeable with the balance so found in his hands as survivor, and at such accounting these appellants may raise the point whether they are bound by the balance heretofore found.” 28 S. C., 606.

Before Gary, J., Abbeville, January, 1897. The defendant, Randolph Carter, was indicted for arson in burning the dwelling.house of S. R. Morris, found guilty, and sentenced. Defendant appeals. cite: Criminal Code, 140; 14 Stat, 175; 16 Stat, 681; 45 S. C., ; 46 S. C., 13; 17 S. C., 467; 12 Am. Rep., 303; 22 Am. Rep., 569. (oral argument).

<p>Motion to docket case, and for hearing at present term.</p>

<p>Before Benet, J., Greenville, December, 1895.</p> <p>The facts are fully stated in the opinion.</p> <p>cite: 39 S. C., 498; 7 R. I., 470; 75 Am. Dec., 248; 15 S. F. R., 199; 59 Fed. Rep., 999.</p> <p>cite: 39 S. C., 498; 7 Cranch, 19; 29 Barb., 383.</p>

Before Gary, J., Richland, April, 1896. Indictment against Thomas C. Aughtry for murder. Convicted, with recommendation to mercy, and sentenced to penitentiary for life. Defendant appeals. cite: Charge on facts: Sec. 26, art. V., Con. 1895; 31 S. C., 235; 32 S. C., 45; 47 S. C., 517; 15 S. C., 392; 14 Rich. L., 23; 28 S. C., 254, 272; 63 Ga., 639; 7 Nev., 148; 29 S. C., 15.

Before Townsend, J., Abbeville, June, 1896. The defendant, James Haddon, was indicted for rape, found guilty, with recommendation to mercy, and sentenced to penitentiary for life. From this judgment he appeals. cites: Con. 1895, art. III., sec. 33; Crim. Stat., 113; 22 Stat., 223; 29 S. C., 34; 28 S. C., 572; 20 S. C., 352. (oral argument).

<p>1. Notice — Injunction.—It is not necessary to give adverse party notice of application to Justice of this Court to stay proceedingspending appeal, and such injunction may be granted with or without security.</p> <p>2. Appeai, — Mandamus.—The right of appeal lies from a peremptory-writ of mandamus, requiring a sheriff to sell lands claimed .as homestead.</p> <p>3. Ibid. — Ibid.—Service or Order. — The right of appeal from a writ of mandamus to'a sheriff is not affected by the fact that the writ was not served on the sheriff, as these are not contempt proceedings.</p>

The plaintiff, A. J. Salinas & Sons, commenced an action against C. Aultman & Co., and J. C. Klugh, as master of Abbeville County, for an… Held: and properly held, cannot be accomplished directly. IV. Because the said order was granted without notice to the defendants. V. Because the original order and the papers on which it was granted were never served upon the defendants. VI. Because no papers in the said case were served upon the defendant, C. Aultman & Co. VII.

<p>Controversy without action, in the original jurisdiction of this Court, by Sarah G. Nicholson against John C. Cousar.</p>

Before Townsend, J., Newberry, March, 1896. Indictment against Mack Jones and John Brown, for murder. They were convicted of manslaughter. Motion for new trial was made on after-discovered evidence, but was refused, because the after-discovered evidence was merely cumulative. Defendant appealed.

Before Benet, J., Florence, November, 1896. E. A. Brown was tried and convicted by the mayor’s court of the city of Florence for selling liquors in said city in violation of a city ordinance. He appealed to the Circuit Court, which reversed the mayor. From this judgment the city of Florence appeals. cites: 30 S. C., 95; 21 S. C., 292; 11 S. C., 291; 4 Rich., 104; 29 S. C., 355. cite: 19 S. E. R., 458, 745; 15 S. C., 550; 22 Stat., 89.

Before Gary, J., Edgefield, June, 1896. Action in foreclosure by the Band Mortgage Investment and Agency Company of America, Limited, against Mattie S. Gillam, S. B. Burton, and Bank of Edgefield, asking for a sale of the mortgaged premises and a judgment for deficiency, and was begun on 14th October, 1892.

Motion to dismiss appeal. The case of Ella F. Wil-loughby against the North Eastern Railroad Company was tried at Florence, February term, 1897, before a jury, and resulted in a verdict for defendant. Court adjourned February 6. Notice of intention to appeal from the judgment “entered or to be entered” was served February 13. During the trial of the cause, certain original records were used from the county of Williamsburg.

Motion to reinstate appeal dismissed by the clerk, under Rule 1. Action by John Crosswell and Arthur Crosswell against the Connecticut Indemnity Association, tried at Sumter, fall term, 1896. Notice of intention to appeal was served in proper time, and by agreement proposed “Case” was served on December 31, 1896. Upon disagreement, it was referred to Judge Benet, January 23, 1897, for settlement.

Before Mr. Justice Pope, Newberry, October, 1896. Suit by A. J. Salinas & Sons against C. Aultman & Co. and J. C. Klugh, as master of Abbeville County. Mr. Justice Pope, on September 24, issued a rule to show cause why an injunction should not be granted, and made a temporary restraining order. On October 5, defendant moved to vacate the order of the 24th September.

Motion to reinstate appeal. Action by B. S. J. Hayes against T. Sims Sease, February term, 1896, Eexington County. Verdict for plaintiff for $825. Motion for new trial was made, and on February 29, Circuit Judge filed order granting new trial, unless plaintiff remitted $250. Defendant served notice of appeal 9th March, and ón 12th March plaintiff moved for taxation of costs.

Before Witherspoon, J., Abbeville, December, 1896. The following is the Circuit decree: This is a proceeding commenced by petition and affidavit, praying for a writ of mandamus against F. W. R. Nance, as sheriff of Abbeville County, to require him to sell as such sheriff a certain tract of land hereinafter more particularly described.

Before Witherspoon, J., Abbeville, November, 1896. Action by C. Aultman & Co. against W. B. Utsey, A. J. Salinas & Son, and others. Held: in the case reported in 41 S. C., 304, that Judge Izlar had failed to pass upon the question of the right of A. J. Salinas & Son to the homestead of F. M. Pope in the premises in dispute, and remanded the case to the Circuit Court, in order that it be determined. It was heard by Judge Ernest Gary at Abbe-ville, June term, 1894.

Before Townsend, J., Laurens, May, 1896. Action in foreclosure by the Equitable Building and Loan Association against Mary C. Vance. The Circuit decree is as follows: This is an action to foreclose a mortgage given by the defendant to the plaintiff on February 5,1892; on a tract of land in Laurens County, S. C. The plaintiff is a corporation, created and existing under the laws of Georgia, and its principal office is in Augusta, Ga.

Before Earle, J., Abbeville, January, 1896. Indictment against Richardson Washington and John Mitchell for the murder of Narcissa Bagwell. Both defendants were convicted of murder; Mitchell being recommended to the mercy of the Court, and was sentenced to imprisonment for life. From this judgment he appeals. cite: Charge on facts: 48 S. C., 488. Confession: 36 S. C., 524. made oral argument.

Before Townsend, J., Spartanburg. Indictment against Tom Adams and Pink Macombson for house breaking and larceny. Both convicted, and Adams, being sentenced, appealed. cites: One defendant may introduce testimony to contradict his codefendant: 23 S. E. R., 476; 29 S. C., 230. was represented by Assistant Attorney General Townsend in oral argument.

Before Witherspoon, J., Union, October, 1896. Indictment against A. G. Rice, I. C. Rice, Ed. Rice, Aaron Rice, and Gaines Macbeth for assanlt and battery with intent to kill. Convicted of high and aggravated assault and battery, and after sentence the defendants appealed. cite: Admission of trial justice docket: 7 S. C., 224. Testimony of good character in reply inadmissible: 12 Rich., 654. Oral argument.

Before Townsend, J., Charleston, December, 1896. Action by John H. Devereux' against Edward McCrady and Thomas R. McGahan, executors and trustees under the will of William Burney. From an order referring the case to the master, to take an accounting between the parties, the plaintiff appeals. cite: Accounting: Cheves Eq., 146; 2 Johnson’s Ch., 501. cite: Accounting: Code, 292, 293; 27 S. C., 235; 34 S. C., 169. Order not appealable: 33 S. C., 389; 48 S. C., 315.

Before .Watts, J., Edgefield, September, 1896. Action by Fannie E. Miller against the Farmers’ Bank of Edgefield in the probate court for dower. Judgment for plaintiff. Defendant appeals.

<p>Before Watts, J., Spartanburg.</p> <p>Indictment against James Moore, who is appellant.</p> <p>cites 29 S. C., 44.</p>

<p>Criminal Law — Repealing Statutes — Punishment Under Repealing STATUTES. — When a criminal statute is repealed by a subsequent act, which is not inconsistent with it, and in which the punishment prescribed for the same offense is either the same as, or less than, that prescribed in the repealed statute, a party committing the offense during the existence of the repealed statute, may be tried and convicted under the repealing statute.</p>

Before Watts, J., Darlington, October, 1896. Action by McCullough & Blackwell against T. J. Kervin, J. P. Kervin and J. N. Kervin on a promissory note. Judgment for plaintiff. Defendants appeal. file no argument. cite: Demurrer to counter-claim: 31 S. C., 16; 32 S. C., 245; Code, 194; 21 S. C., 225; 18 S. C., 305; 27 S. C., 95; Rev. Stat., 1390,1391. Defense not equitable: 42 S. C., 95; 43 S. C., 191; 47 S. C., 189; 46 S. C., 147; 5 Pet., 501.

Before Barle, J., Greenville, April, 1896. Controversy, without action, by Southern Railway Company against city council of Greenville, as to interest on sum of money illegally collected by defendant. Judgment for plaintiff. Defendant appeals. cites: Rev. Stat., 1392. cites: 47 S. C., 186; 1 N. & McC., 45; Cheves D, 63; Code, 297; 18 S. C., 600; 48 S. C., 175.

Before Benet, J., Greenville, November, 1895. Action in claim and delivery by B. M. McGee against Jesse R. French, for two bales of cotton. Judgment for defendant. Plaintiff appeals. cites: Notice: 14 S. C., 321; 4 Rich. Fq., 105; 1 Speer Fq., 159. Agency: 3 Wheat, 369. New trial: 16 S. C., 2; 19 S. C., 489.

Before Witherspoon, J., Oconee, September, 1896. Action by Geo. W. Dean against J. W. Todd, magistrate, for ten times amount of costs unlawfully collected. The following is the Circuit decree: The above entitled action came on for. trial before me at September term of Court of Common Pleas for Oconee County, a jury trial having been waived by consent of all parties, plaintiff and defendant. The testimony was taken before me, and I find the following as matters of fact: 1.

<p>Before Benet, J., Barnwell, July, 1896.</p> <p>Action in foreclosure by W. J. Rutherford & Co. against Sarah D. Johnson. Defendant demurred. Demurrer overruled. Defendant appealed.</p> <p>cite: 9 S. E. R., 802; 27 Conn., 560; 30 Pac. Rep., 734; 65 Ill., 29; 59 Col.,-538; 64 How. Pr., 138; 12 Kan., 223; 24 N. E. R., 791; 25 N. E. R., 377.</p> <p>cite: 15 S. E. R., 252; 27 S. C., 107; 39 S. C., 436.</p>

<p>Before Harte, J., Barnwell, November, 1896.</p> <p>Action in foreclosure by Pittman Bros, against S. J. Ray-sor. Judgment for defendant. Plaintiff appeals.</p> <p>cites: Married woman estopped by her declarations: 45 S. C., 651; 42 S. C., 323; 38 S. C-, 437; 33 S. C., 233; 31 S. C., 441; 26 S. C., 288; 34 S. C., 246.</p> <p>cite: Whoever invokes estoppel mtist show that he has been indvtced to change or alter his position: 36 S. C., 211; 42 S. C., 326; 31 S. C., 426; 35 S. C., 461. Assignees haye no higher equities than assignors: 38 S. C., 148; 45 S. C., 83.'</p>

Before Earle, J., Barnwell, November, 1896. Action by A. B. Conner against Mary M. Ashley, Harriet J. Ashley, and W. A. Holman, executor. Defendant demurred. Demurrer overruled as to the two first and sustained as to the last. The plaintiff and the defendants, Ashleys, appeal.

Before , J., Abbeville, January, 1897. Indictment against Wade Atkins for assault and battery with intent to kill. The presiding Judge charged the jury as follows: This case against the defendant is for assault and battery with intent to kill.

Before Earre, J., Charleston, June, 1896. Three indictments respectively against J. H. Beckroge, E. Perano, and J. A. Bertucci, in the following form: At a Court of General Sesssions begun and holden in and for the County of , in the State of South Carolina, at Court House, in the county and State aforesaid, on the Monday of , in the year of our Eord 189 , the jurors of and for the county aforesaid, in the State aforesaid, upon their oath, present: That , at Court House, in…

Before Benet, J., Charleston, March, 1896. Three indictments against H. Stello, E. & G. Stenken, and P. J. Hillson, respectively, for maintaining a common nuisance.

Before Barre, J., Beaufort, October, 1896. Action by John O’Brien against Eelix Ramon de Rarri-naga and M. A. Echevarria. From an order dissolving an attachment levied on the ship, Ramon de Rarrinaga, the plaintiff, appeals on the following exceptions: 1. Because his Honor erred in holding that appellant had no cause of action. 2.

Before Earee, J., Barnwell, November, 1896. Action by Caroline M-. Anderson against Samuel C. Cave, David S. Hair, Carrie C. Farrell, Jennie Brown, T. S. Cave, W. E. Cave, and H. B. Cave. The following is the concluding portion of the Circuit decree, which is not incorporated in the opinion: „ “It further appears that the plaintiff was at the time of said proceeding in the probate court sui juris.

Before Earee, J., Barnwell, November, 1896. Action by E. B. Cuthbert & Co. against Mike Brown and Jenny Brown, on a note. The amended answer permitted by the Circuit Judge is as follows: The defendant, Jennie Brown, answering the complaint herein by this amended answer, alleges: I. That she is a resident of the State of South Carolina, to wit: of the county and town of Barnwell.

Before Townsend, J., Spartanburg. Indictment against Alfred Adams and Arch Young for handling and hauling liquors.

<p>1. Peactice — Foreclosure—Exceptions—Reference.—Where a defendant neither answers nor demurs to a complaint in foreclosure, he has no right to demand time to except to a report of a referee as to amount due. Distinguished from McGhee v. Merriman, 43 S. C., 103.</p> <p>2. Interest — Judgment—Costs.—Costs and charges may draw interest after entry in judgment.</p>

Before BarlE, J., Greenville, June, 1896. Claim by Alexander Bros, against Greenville County for license tax as hawkers and peddlers, paid under protest. County board of commissioners disallowed the claim. Plaintiffs appealed. Circuit Court affirmed judgment below. Plaintiffs appeal. cites: 42 S. C., 211. cites: 21 Stat., 407; 42 S. C., 211.

Before Benet. J., Barnwell, July, 1896. Action in foreclosure by J. B. White & Co. 'against Mattie Goldsberg and H. S. Lifshiz. The following is the Circuit decree, excepting the formal parts: This is an action to foreclose a mortgage made by the defendant, Mattie Goldsberg, in favor of the defendant, H. S. Lifshiz, to secure her note for the sum of $400, which note and mortgage were assigned to the plaintiff, who brings this action.

<p>Before Buchanan, J., Richland, fall term, 1896.</p> <p>Action by the Congaree Construction Company against Columbia Township, of the county of Richland. Judgment of nonsuit. Plaintiff appeals.</p> <p>cite: Bonds valid: 23 S. C., 70; 25 S. C., 260; 6 Pet., 297; 11 Wheat., 368; 16 How., 432; 105 U. S., 72; 101 U. S., 677; 16 Wall., 689; 100 U. S., 52; 18 Wall., 71; 12 S. C., 282; 21 S. C., 573; 103 U. S., 411; 86 ü. S., 227; 105 U. 5., 237; 5 S. E. R., 128; 159 U. S., 682; 101 U. S., 407; 103 U. S., 562; 116 U. S., 356; 120 U. S., 759; 24 Ill., 75; 62 111., 268; 9 Hemp., 252; 100 N. C., 92; 13 S. C., 290. Conflict of decisions: 2 S. C., 228, 231; 5 S. C., 126; 7 S. C., 150; 5 S. C., 410. Bonds affirmed: 20 Stat., 12; 30 S. C., 579 and 588. Statute of limitations: Code, 111, sub. 2; 8 S. C., 129; 9 Wall., 483; 14 Wall., 282; 3 Wall., 381; 38 Amer. Dec., 318.</p> <p>cite: Bonds void: 30 S. C., 1, 579, 587; 45 Fed. R., 336; 47 Fed. R., 429; 1 Wall., 175. Stahtie of limitations: 113 U. S., 135; 5 S. C., 156; 2 S. C., 248; Code, 111, sub. 2; 22 N. Y., 57; 1 Cow., 513; 80 N. Y., 254; 8 Gray., 509; 11 Wheat., 392; 36 Tex., 648; 94 U. S., 315.</p>

Before Townsend, J., Baruwell, March, 1897. Action by Elizabeth A. Brown against Charles E. Pech-man. The following is the Circuit decree: This case was heard by the Court upon an agreed statement of facts, jury trial being expressly waived.

Before Gary, J., Spartanburg, December, 1896. Indictment against Chris Cannon for murdering Capt. Blassingame. The following is the charge of the Circuit Judge, omitting the formal part: Now, you will take first into consideration, did the defendant make a statement which would lead you to believe that he was in the house? Under what circumstances was he in that house?

Before Klugh, J., Sumter, March, 1897. Action by John A. Garrett against Angelina Niel. From order refusing nonsuit on ground that plaintiff had not complied with the law in giving security for costs, the defendant appeals. cite: Rev. Stat., 794; 2 Hill, 232; 9 Rich. R., 411; 30 S. C., 451; 31 S. C., 427; 33 S. C., 161. cite: Rev. Stat., 794; Rule X., Cir. Ct.; 31 S. C., 360; 2 Rich., 10.

Before Buchanan, J., May, 1896, and Watts, J., February, 1896, Chesterfield. Action by John H. Perkins, as administrator de bonis non of estate of Nancy J. Perkins, against the heirs at law of Nancy J. Perkins and parties in interest in her estate, for settlement of same. From an order refusing the payment to Benjamin T. Perkins, a defendant, of a legacy, this defendant appeals on the following exceptions: First.