Volume 49 — South Carolina Law Reports

BEFORE GLOVER, J., AT WILLIAMSBURG, FALL TERM, 1867. The plaintiff sued in assumpsit on a promissory note, drawn by Thomas S. Nelson, the defendant’s intestate, for the sum of four hundred and thirty-five dollars, dated January 31st, 1859.

<p>Sheriff — Negligence.</p> <p>In an action against tlie sheriff for negligence in failing to make an arrest on hail process, plaintiff cannot recover for the sheriff’s default in keeping his office closed. He should have charged such default in his pleading. Bernble.</p> <p>Where a sheriff used due diligence in his effort to find one against whom hail process had been lodged, and who resided in the country— held that the sheriff was not liable, merely because during the time he was absent making the effort, his office was closed, and before he returned the defendant came to the court-house, and there took the cars and left the State.</p>

<p>Fines — In what currency payable.</p> <p>The Court in imposing a fine for a criminal offence, may direct that it shall he paid in gold, but if nothing he said as to the currency, it will he understood to be payable in the ordinary currency at the time.</p> <p>Fines imposed in March, 1867, on convictions for assault and battery, could not be discharged by payments in bills of the Bank of the State of South Carolina.</p>

<p>Committee of Lunatic — Trover—Conversion.</p> <p>In 1858 B. became committee of the estate of G., a lunatic. The estate consisted of a rice plantation and slaves, which. B. had in charge and managed, as committee, until May, 1865, when G. died. G. left a will, by which he appointed his widow, T., and one R., executors. The will was proved 29th January, 1866, and T. qualified as executrix, 10th February, 1866. B. continued in charge of the plantation during the year 1865, and made a crop thereon, under a contract to divide equally with the freedmen, and on the 9th January, 1866, he, B., removed from the plantation the share of the rice to which he was entitled under the contract. In an action of trover by T. against B. for a conversion in removing the rice, held, that B. ’s act was not tortious, and therefore that the action could not be sustained.</p> <p>It is the duty of one who was committee of the estate of a lunatic, to take care of the estate after the death of the lunatic, for the benefit of those who have succeeded to the inheritance ; he may rightfully retain possession until ordered by the Court to give it up, and he acts at his peril if he gives it up without such order.</p>

BEFORE ROBERT H. WARD LAW, ESQ., DISTRICT JUDGE, ABBEVILLE, NOVEMBER, 1867. Indictment for stealing a mare. Crawford, the prosecutor, was allowed to testify, that be saw defendant in jail. Defendant acknowledged that he had taken the mare; told how or where he had taken her out. The jailer was present. Other evidence was given and the prisoner was convicted.

BEFOBE T. B. LOGAN, ESQUIBE, DISTBICT JUDGE, WILLIAMSBUBG, 1867. The report of the District Judge is as follows: “ This was an indictment for stealing a ten dollar bill. Peter McLain, the prosecutor, swore that the defendant confessed to him that he had stolen the money; and defendant’s father gave him a ten dollar bill in place of the one which his son had stolen.

<p>Debt — Limitations, Statute of — Payment, presumption of— ' Lapse of time.</p> <p>For the money due on an instrument under seal, by which defendant agreed to pay the plaintiff a sum certain, for the hire of a negro woman, and also to furnish the woman with certain specified clothing, pay the taxes and physician’s bill, and return her at the end of the year, an action of debt lies, to which the bar of the statute of limitations does not apply.</p> <p>Where the full period of twenty years has not elapsed, the artificial presumption of payment does not arise, and in such case, the circumstances relied on to raise the presumption, to be sufficient, must satisfy the mind of the trier of fact, that payment has, in fact, been made.</p>

<p>Larceny — Misnomer—Amendment of Information — Ownership of stolen goods.</p> <p>Information for larceny in District Court, may, after plea in abatement for misnomer, be amended by substitution or addition of real name.</p> <p>Information for stealing a cow the property of A. Proof that the cow was running at large when stolen — that she was the property of A’s mother-in-law, an old woman nearly blind, of whose property and affairs A had the entire management and control., Yerdict guilty. Held, that the allegation of ownership was not sustained by the proof and new trial ordered.</p>

<p>BEFORE DAWKINS, J., AT ANDERSON, EXTRA TERM, 1867.</p> <p>The facts of this case are stated in the opinion delivered in the Court of Appeals.</p>

BEFORE MUNRO, J„ AT ABBEVILLE, NOVEMBER, EXTRA TERM, 1867. The prisoner was convicted of murder and be now moved in arrest of judgment. The facts are stated in the opinion delivered in the Court of Appeals.

<p>Practice — Note payable in gold.</p> <p>In an action on a sealed note for “sixty dollars, payable in gold,” plaintiff can recover no more than the sixty dollars, and interest thereon. He is not entitled to have the premium on gold added to that amount. (a.)</p>

<p>Trespass on Land — Misdemeanor.</p> <p>It is not necessary to constitute a misdemeanor under the Act of 1866 by “entry on the enclo>ed or unenclosed lands of another,’’ after notice prohibiting the same, that the entry should be made under claim of title. The words of the Act are used in their ordinary acceptation.</p>

IN THE DISTRICT COURT, YORK, JULY TERM, 1867. These were prosecutions for bastardy. In one ease the child was born 5th February, 1863, and the warrant was issued 5th April, 1867. In the other case, the child was born 29th December, 1865, and the warrant was issued 18th January, 1867.

BEFORE MOSES, J., AT RICHLAND, FALL TERM, 1867. This was an indictment for murder. The prisoner was found guilty, and he now moved this Court for a new trial,

BEFORE DAWKINS, J., AT ANDERSON, FALL TERM, 1867. This was an appeal from a magistrate’s decree. His Honor sustained the decree, and the appellant below, who was the defendant in the action, brought up the appeal to this Court, where it was now heard. cited 3 Strob. Eq. 422; Tucker vs. Williams, Dud. 329 ; Nesbit vs. Taylor, Eice, 297; Easter-ling vs. Thomson, Rice, 350; Young vs. Kinard,2 Rich. Eq. 254.

<p>Constitutional Law — Taxes — Express Companies — Gross Income.</p> <p>A tax imposed by tlie State “on tlie gross amount of the receipts of express companies,” is to he understood as assessed upon the gross sum received within this State on account of the company that is doing business within the State, excluding as well such share of the actual collections as belong to the railroad and other companies by arrangement with which the transportation of the express matter is effected, as such portion as is received for the use of foreign connecting express companies ; and such tax is not prohibited by any provision of the Constitution of the United States, or the State of South Carolina. It is not a regulation of “commerce among the States,” nor a duty on imports or exports. ’ ’</p>

<p>A sealed note for $2,500, dated 1st June, 1864, and payable twelve months after date, “ in such currency as can immediately be made available in payment of the old debts of the estate of ‘P,’ dollar for dollar,” held to be within the Ordinance of September 1865, providing “That in every action arising on any contract whether under seal or parol, written or oral, made between the 1st January, 1862, and the 15th May, 1865, it shall be lawful for either party to the action to introduce testimony showing the true value and real character of the consideration of such contract at the time it was made, so that regard being had to the particular circumstances of each case, such verdict, or decree, may be rendered as will effect substantial justice between the parties.”</p> <p>Held, also, that the ordinance did not impair the obligation of contracts, and therefore was not in conflict with the provision of the Constitution of the United States that “no State shall pass any law impairing the obligation of contracts.”</p> <p>Held, further, that a sealed note for $7,000 dated the 25th August, 1863, and payable “six months after the ratification of peace with the United States, or before,” at payee’s option, with interest; was within the provision of the ordinance.</p>

<p>As these cases involved only questions of law, no statement of the facts is deemed necessary. It is sufficient to say that some of them were against persons of color, and some against white persons, and that they all were appeals from convictions in District Courts, which had been referred by the Court of Appeals to this Court.</p>

<p>Constitutional Law — Taxes—Bills of the Bank of the State of South Carolina.</p> <p>The Charter “of the Bank of the State of South Carolina,” in its sixteenth section, provides that “the hills or notes of said Corporation drginally made payable, or which shall have become'payable on demand, in gold or silver coin, shall be receivable at the Treasury of the State, cither at Charleston or Columbia, and by all lax collectors and other public officers, in all payments for taxes or other moneys due the State.” Subsequent Acts, by directing that the taxes shall be collected only in certain kinds of money therein enumerated, not including the bills of the Bank of the State, impliedly prohibit the receipt of these latter bills for taxes. Such subsequent prohibitory Acts do not impair the obligation of any contract made by the State ■with the holders of the bills or others, and are not contrary to any provision of the Constitution of the United States.</p> <p>By the terms of the Charter, the State bound itself to receive “the bills or notes” only so long as they were convertible on demand into “gold or silver coin,” and did not bind itself to receive them after they had ceased to be so convertible, and had depreciated so much as to be no longer current.</p>

<p>BEFORE DAWKINS, J., AT NEWBERRY, SPRING TERM, 1867.</p> <p>The report of bis Honor, the presiding Judge, is as follows:</p> <p>“These suits were brought upon two joint and several promissory notes, dated 3d October, 1859. One of the notes is drawn payable twelve months after date, and has a credit endorsed thereon for seven hundred dollars, dated the 6th February, 1861.</p> <p>“The other note is drawn payable the 3d October, 1861, without any credit. The defendants pleaded the statute of limitations. The plaintiffs replied the Act of the General Assembly, entitled “An Act to extend relief to debtors, and to prevent the sacrifice of property at Sheriff’s sales,” ratified the 21st December, 1861. To this replication the defendants demurred. The demurrers fin both cases were overruled, and verdicts were found for the plaintiffs.”</p> <p>The defendants appealed and moved the Court, of Appeals to reverse the judgment below, and for a new trial, on the grounds :</p> <p>1. Because bis Honor, the presiding Judge, erred in holding that the Act of the General Assembly entitled “An Act to extend relief to debtors, and to prevent the sacrifice of property at Sheriff’s sales,” was sufficient to avoid the plea of the statute of limitations filed by the defendants.</p> <p>2. Because the fifth section of said Act suspends the statute of limitations only so long as the Act, prohibiting the service of mesne and final process, should be of force ; and said Act was never of force as to these cases, the promissory notes sued on having been made, and plaintiffs’ right of action thereon having accrued, before the passage of said Act.</p> <p>The case was ordered to this Court, where it was now heard.</p>

<p>A ttachment, Foreign — Practice.</p> <p>Under the foreign attachment Acts no judgment can be entered against a garnishee who has made return to the writ of attachment.</p> <p>More than seven years after writ of foreign attachment served, garnishee, on receiving notice of motion to enter judgment against him, allowed, on sufficient cause shown, to make his return, and thus defeat the application to enter judgment.</p>

The case first stated was heard at Richland, Fall Term, 1867, before Moses, J., who made a report as follows : “By the Act to raise supplies, passed on December 21, 1866, the Legislature imposed 'a tax on the gross income of all railroads (not exempted by law) of one dollar on every hundred dollars,’ and required ‘that it be returned to and paid directly into the treasury of the State.’ — Acts of 1866, pp. 896, 397. “ The South Carolina Railroad Company, not considering that…

BEFORE MUNRO, J., AT CHARLESTON, APRIL TERM, 1867. Tbe report of his Honor, tbe presiding Judge, is as follows : “This was a rule in behalf of Mrs.-r- Mixer, ad-ministratrix of tbe estate of the late Daniel Mixer, upon the plaintiff) to show cause why satisfaction should not be entered on the judgment in the above stated case, which had been confessed by her intestate in his lifetime, to the plaintiff, in the sum of $5,000, as collateral security for the payment of the rent…

BEFORE MOSES, J., AT CHARLESTON, JUNE TERM, 1867. Tbe report of bis Honor, the presiding Judge, is as follows : “This was an action on the case brought, as plaintiff’s attorney, in his opening remarks, said to the jury, by the plaintiff as administratrix of James Conlin, under the Act of 1859, to recover damages of the defendants for the death of the intestate, caused by the wrongful act, neglect, or default of the defendants.

<p> New Trial. </p> <p>Motion for now trial on tlie ground that “ the verdict of the jury was' arbitrary, capricious, and without any foundation whatever in the evidence.” The evidence reviewed and new trial refused.</p> <p>When the verdict is wholly without evidence to support it, still more when it is directly against the entire evidence, and even when the preponderance of the evidence is manifestly in opposition to it, and especially when, in any of these cases, the impression made upon the mind of the presiding Judge concurs with the view of the Court above; new trials, on the ground that the verdict is without, or against, or in opposition to, the evidence, will be granted ; but not, it seems, in other cases.</p>

<p>Worlc and Labor — Surveyor—Commissioners in Partition.</p> <p>Semite, That the fees of a surveyor retained to survey lauds for commissioners in partition sliould He taxed as costs in tlie cause, and that he cannot charge one of the heirs or joint owner’s of the lands for his services, although such joint owner may have been active in procuring his services.</p> <p>Commissioners in partition are entitled to reasonable compensation for their services, and should not, it seems, employ one of their' own number as surveyor, and thus enable him to charge in that capacity also.</p> <p>A separate plat for each heir, of the parcel allotted to him, should not be made and returned into Court.</p> <p>In an action for work and labor, it is a good defence to show that the work was so unskilfully, carelessly or wrongly done that the employer suffered injury thereby, or that it was useless and had to be done over again.</p> <p>A surveyor employed by commissioners in partition owned adjoining lands, and, in running the line between his own and the lands to be partitioned, a dispute arose as to the location: Held, that the surveyor when the dispute arose became interested, and could no longer act, and that charges for services afterwards rendered could not be allowed.</p>

<p>Costs — Statute of Limitations.</p> <p>Where a plaintiff recovers judgment and sues out execution thereon, as , a general rule, no right of action against him for the costs accrues to the officers of the CLourt until nulla bona, or non est inventus, as the case may be, has been returned. Until such return the statute of limitations does not commence to run against the claim.</p> <p>The statute of limitations was suspended by the stay law from 21st December, 1861, to 21st December, 1866, just five years. The suspension did not cease with the decision, in May, 1866, of State vs. Oarew, 13 Rich. 494.</p>

<p>Dog — Killing Sheep — Pleading.</p> <p>In an action on tlie case against tlie owner of a dog, to recover for sheep killed by the dog, the plaintiff is not entitled to recover under the Act of 1859, unless it be alleged in the declaration that the offence was committed contrary to the form of the Act. If there be no such allegation the action will be considered as brought at common law, and the plaintiff held to such allegations and proof as the common law requires.</p>

<p>Mortgage — Tenant—Legal Title — “ Out of Possession.”</p> <p>A mortgagee in fee does not become vested with the legal title merely because the mortgaged premises are temporarily occupied by a tenant of the mortgagor under a lease made after the mortgage was executed. The mortgagor is not “ out of possession ” by reason of such occupancy, within the meaning of the Act of 1791.</p>

<p>Promissory Note — Payment to depository for safe-keeping.</p> <p>B. being indebted to C. by promissory note payable to C. or bearer, paid the same to C.’s agent with whom it had been deposited for safe-keeping during C.’s absence, and the note was surrendered by the agent to B. At the trial of an action by C. against B. to recover the amount of the note, the presiding Judge charged the jury that the, possession of the agent was like that of an ordinary chattel — a naked bailment — depositum, and implied no authority to receive payment and surrender the note: — Held, that the charge was erroneous and new trial ordered.</p> <p>The possession by an agent of a promissory note payable to bearer is not strictly analogous to the possession of an ordinary chattel. In the former case the agent has authority, prima facie, to receive payment and surrender the note, and the maker paying in good faith will be protected. The presumption, however, may be rebutted by contrary evidence.</p>

<p>Cow Stealing and Malicious Trespass — Limitations, Statute of — Practice.</p> <p>Indictment for cow stealing, docketed in District Court at April Term, . 1867. Hoi. pros, entered at April Term, 1868, and new indictment for cow stealing and malicious trespass then docketed. The offence was committed in 18C8, and so laid in the indictment. After the evidence for the State had been closed, the presiding Judge quashed the indictment, on the ground that the prosecutor was barred by the Act of limitations of 1748. Held, that the order to quash was erro- ' neons, and case restored to the docket.</p> <p>The District Court has jurisdiction of offences committed before the Act creating the Court was passed.</p> <p>An indictment cannot be quashed because the prosecution is barred by lapse of time.</p> <p>A nol. pros, does not put an end to a criminal prosecution, as non suit does to a civil action.</p> <p>Discharge of defendant from his recognizance is the regular mode of terminating a prosecution without trial, but such, it seems, will not be the effect if an indictment be pending and the case be continued.</p> <p>Prosecution for cow stealing is barred, it seems, by the Act of 1748; but not a prosecution for malicious trespass under the Act of 1857. In the latter offence the fine only is barred.</p>

<p>Money Had and Received — Voluntary Payment.</p> <p>Assumpsit for money had and received will not iie to recover from a railroad company an amount paid by the plaintiff to the defendant for freight on goods, in excess of the rates the company were, bylaw, entitled to exact; the payment having been made after the goods had been carried and delivered, and without objection, protest or notice of discontent.</p>

<p>Nuisance— Obstructing Landing.</p> <p>Indictment for obstructing a public landing is not sustained by proof that a public road leading to the landing was obstructed by the defendant at a place within one hundred yards of the landing.</p>

BEFORE ALDEIGH, Trover for the conversion of two bales of cotton. The case was tried 21st March, and the verdict was for the plaintiffs. The defendant appealed on the ground that the verdict was not sustained by the evidence.

BEFORE GLOVER, J., AT EDGEFIELD, SPRING TERM, 1868. The report of his Honor, the presiding Judge, is as follows : “ The plaintiff sued in debt, on a bond dated November ■5, 1860, with a condition to pay nine hundred and forty-eight dollars and seventy cents, twelve months after date, with interest from January 1, 1861.

The report of the presiding Judge is as follows: “ This was an indictment for stealing a plough. The testimony was conflicting. Joseph Cockfield, the prosecutor, said the plough was his, and that he recognized it; that he sometimes worked in iron, and recognized the plough as having been “pointed” by him.

BEFORE MOSES, J., AT SUMTER, SPRING TERM, 1868. The report of his Honor, the presiding Judge, is as follows : “ This was an action on a promissory note for $300, by defendant to plaintiff, dated October 6, 1860, at one day,— interest from date. “ The execution of the note was admitted, and plaintiff closed his case.

BY GLOYER, J., AT EDGEFIELD, SPRING TERM, 1868. Held: contrary to the impression of one of the counsel, that it was not necessary that the witnesses should see each other sign. “2.

BEFORE DAWKINS, J.,AT-MARLBOROUGH, SPRING TERM, 1868. The report of bis Honor, the presiding Judge, is as follows: “The prisoner was indicted, tried and convicted of the murder of Cornelius .Newton, on the 22d day of April, 1867. On the Friday night previous to the homicide, the deceased went to the house of one Charles Hodge, who lives at a plantation known as the “ Eed Hill,” below Bennettsville, where several families lived as tenants.

BEFORE MOSES, J., AT CHARLESTON, MARCH, 1868. Held: as contended, though a lien may be thereby given on all the property of the person taxed, that it so continues even against such portion of which the title may be afterwards transferred.

<p>Petit Larceny — Dog.</p> <p>Semble, That tlio stealing of a dog “ below the value of $20 ” is made petit larceny by the Act of December, 1866, § 14, 3 Stat. 407.</p>

<p>Limitations, Statute of — Payment by one Joint Contractor.</p> <p>B., as principal, and C., as surety, gave to A. their joint and several promissory note, and B. afterwards made two payments thereon: tile first within four years from the accrual of the cause of action on the note, and the second after the expiration of that period, but within four years from the time of the first payment. In an action by A. against C., commenced within four years of the second, hut more than four years after the first payment: Held, that the action was barred bj’’ the statute of limitations.</p> <p>A payment by one of several joint contractors, within four years from the accrual of the cause of action, on the contract, creates a new starting-point for the statute of limitations, not only as against the party malting the payment, but, also, it seems, as against the other contractors then living; but a payment made more than four years after such accrual, has no such effect, (except as against the parly himself who makes the payment,) even though it be made within four years after such first payment.</p>