Volume 5 — South Carolina Reports

Before GREEN, J., at Sumter, May Term, 1873. Evander Kirby recovered judgment against Andrew W. Woods, administrator of R. F. Hickson, deceased, before the year 1868, and issued execution thereon. Hickson was seized, at the time of his death, of a tract of 535 acres of land, which was subject to the lien of the judgment, and this ivas a rule upon John M. Tindal, Sheriff of Sumter, to compel him to sell the land under the execution.

Before MAHEE, J., at Aiken, May Term, 1873. Action by the Southern Porcelain Manufacturing Company, plaintiff, against George M. Thew, Cashier of the National Bank of Augusta, defendant. Held: at which alone he could have received authority to contract said debt or confess said judgment.

Before GRAHAM, J., at Orangeburg, May- Term, 1872. On the 8th day of February, 1872, Joseph A. Keller obtained judgment, and on the next day entered execution thereon in the office of the Sheriff of Orangeburg County, against Ann Myers, Levi Myers and Capers Myers. The judgment was for $5,436.60, on a bond given in 1863.

Before MOSES, J., at Union,-Term, 1873. Action by Philip Dunn, Sheriff of Union County, against A. D. Spears, James D. Sartor, Nelson Kelly, Samuel Sims and George Gallman, to compel the defendants to interplead under § 145 of the Code of Procedure.

Before GRAHAM, J., at Charleston, September, 1872. Action by Caroline L. Miller, plaintiff, against Charles H. Simonton, defendant.

Before MELTON, J., at Kersiiaw, October Term, 1872. Held: that in their subsequent use of the same language, in relation to the same subject-matter, they used them in an entirely different sense, because they omitted the note of explanation added in the former instance?

Before ORR, J., at Greenville, - Term, 1871. This was an action against the defendant, as executor of Jesse Hammett, deceased. The issues made by the pleadings, and the facts, as set forth in the brief, are stated in the opinion of the Court. His Honor the Circuit Judge ordered a non-suit, and the plaintiff appealed.

Before RUTLAND, J., at Darlington, October Term, 1871. Held: as matter of fact, that the deposit by Mr. McCown was special, and that there did not appear to have been any steps taken by which he could pay Mrs. DeLorme’s portion until 1863; that $200 in the bills first deposited by McCown remained on hand at his death, which were sold at twenty-seven cents on the dollar.

Before MOSES, J., at Spartanburg, April Term, 1873. Action by D. E. Converse, plain tiff,'against John H. Evins, as administrator of S. IT.

Before GRAHAM, J., at Orangeburg, January Term, 1873. Action against the South Carolina Railroad to recover damages for a horse killed upon the road of the defendant.

Before CARPENTER, J., at Chambers, Columbia, July 3, 1873. On February 15, 1873, Simon S. Bachman entered in the office of Jesse E. Dent, Sheriff of Richland County, an execution against Jacob Sulzbacher for $1,076.85,and on the same day, at 11J o’clock,. A. M., the Sheriff levied the execution on the personal property of the defendant therein.

In the Criminal Court, Charleston, April Term, 1872.. Indictment against Tappin G. Green under the Act of 1866, (13 Stat., 406, § 6,) providing that any person committing a breach of trust, with a fraudulent intention, shall be held guilty of larceny.

Before GRAHAM, J., at Charleston, February Term, 1872. This case had been tried before, and a new trial ordered by the Supreme Court, (see 3 S. C., 1.) The complaint, after stating that the defendant, the South Carolina Railroad Company, is a body corporate, doing business as carriers of passengers and merchandise, alleged as follows : “ For a first cause of action— “ 1.

This was a-writ of habeas corpus, directed to the Sheriff of Green-ville County, commanding him. to have the body of Edward F. Stokes, with the day and cause of his caption and detention, before the Supreme Court. The Sheriff made return to the writ, and submitted as the cause of caption and detention a warrant, signed by the Judge of the 8th Circuit, in words and figures as follows: “STATE OF SOUTH CAROLINA, Greenville County.

In the case of Knox & Gill vs. The South Carolina Railroad Company, reported ante p. 22, the following petition for re-hearing was now presented to the Court: The defendants in this case respectfully pray the Supreme Court to grant a re-hearing in this cause, in order to allow their counsel to submit grounds and authorities not heretofore cited, to the end that the decision of the Circuit Court and the Supreme Court in the premises may be reconsidered and reversed : 1.

Before MACKEY, J., at Chester, April, 1873. Action by Samuel McKeown, plaintiff, against John L. Carroll and Agnes Carroll, his wife, defendants. The case was as follows : The complaint, filed February 19th, 1873, was for an injunction to restrain the defendants from committing waste in certain lands alleged to belong to the plaintiff, of which defendants were in possession.

Before GRAHAM, J., at Orangeburg, January Term, 1873. This was an action by Mary M. Hubbell, against William C. Courtney, as executor, and George H. Sass and others, as devisees of Jacob K. Sass, deceased, for specific performance of a contract for the sale of a lot of land in the village of Orangeburg.

Before MAHER, J., at Colleton, February Term, 1873. This was a bill in equity for foreclosure by William Zorn against the Savannah and Charleston Railroad Company. The case was referred to a Referee, whose report to the Court contains a full statement of the facts and points of law involved in it.

Before GRAHAM, J., at. Charleston, December Term, 1873. Case agreed upon in a controversy submitted without action. The City Council of Charleston claims to recover of the stockholders of the People’s National Bank $6,312.50. The following are the facts upon which said controversy depends: ■ 1.

This was a petition by Carson and others, citizens of Charleston, to the Supreme Court, for a writ of certiorari to the Board of Commissioners of Election of the city of Charleston, to remove into that Court the plaint and record, together with the testimony taken .by them, in a certain case in which an election for Mayor and Aldermen of the city of Charleston had been contested.

Before MACKEY, J., at York, July Term, 1873. This was an indictment against Samuel B. Hall, late Judge of Probate of,the County of York.

Before GRAHAM, J., at Charleston, August, 1873. Held: under the authority of In Re. Kennedy, 2 S. C., 216, that the homestead was exempt from levy‘and sale, and dismissed the rule. Cochran appealed. relied mainly upon Dunn vs. Barry, 15 Wal., 610.

Before GRAHAM, J., at Charleston, March Term, 1873. This was an action of foreclosure, commenced July, 1872. In October, 1872, judgment by default was entered, and a decree made directing the mortgaged premises to be sold by a Special Referee.

Before TOWNSEND, J., at Bennettsville, September Term, 1873. This was an action by C. W. Dudley against Noah Odom to recover $700 alleged to be due on contract. The case was this: The plaintiff held a judgment by confession for $2,112.98, entered 22d August, 1866, against John Odom, the father of defendant; and J. H. Hudson also held an older judgment against John Odom, which amounted, at the time of the sale herein mentioned, to about $1,500.

Before GRAHAM, J., at Charleston, December, 1872. On the 29th April, 1871, W. W. Ward commenced an action in the Court of Common Pleas for Williamsburg County, against Mantone & Co., on a money demand for services rendered by the plaintiff as Sheriff, and in March, 1872, he recovered judgment for $177.40. Execution on the judgment was entered in the Sheriff’s office of Charleston County, and on the 15th May, 1872, Mantone & Co. paid the money to the Sheriff.

Before GREEN, J., at Manning, October Term, 1873. Action by John B. Moore and William R. Flud, against William H. B. Richardson and James B. Richardson, to recover the possession of real estate, described in the complaint as a plantation known as Birch Hill, containing 2,900 acres of land, lying in Clarendon, bounded, &e., [stating the boundaries].

Before FARMER, J., at Colleton, May, 1872. This was an action by C. R. Miles and L. D. DeSaussure, against Samuel J. King, C. P. W. King and Caleb Sauls, to foreclose a mortgage of land. The ease was this: In the year 1854, Samuel J. King and C. P. W. King gave to Edward J. Parker their bond for $5,000, and on the 26th May, 1855, to secure the payment of the debt, they executed to Parker their mortgage of a tract of land in Colleton.

Before CARPENTER, J., at Columbia, October Term, 1873. Action by the Central National Bank of Columbia, against the Charlotte, Columbia and Augusta Railroad Company. The case is fully stated in the opinion of the Court. The following were the authorities cited upon the point on which the ease was decided : For appellant — .Moss vs. Oakley, 2 Hill. Nt Y., —; White vs. Vt. & Mass. R. R. Go., 21 How., 277 ; Langston vs. So. Ca.

Before CARPENTER, J., at Columbia, December, 1873. The facts of the case are so fully stated in the opinion of His Honor the Circuit Judge as to render any further statement here unnecessary.

Before GRAHAM, J., at Charleston, June Term, 1872. The grounds and reasons for the dismissal of the appeal are fully set forth in the opinion of the Court.

Before GRAHAM, J., at Charleston, September Term, 1872. This case will be understood from the judgment of the Circuit Judge, which is as follows : Graham, J. The plaintiff, for many years before and during the war a deposit customer of the Bank of Charleston, seeks to have his deposit account stated during the currency of Confederate Treasury notes.

Before CARPENTER, J., at Columbia, October Term, 1873. This was an action for the price and value of certain articles of manufactured marble sold and delivered by the plaintiff to the defendant. The case was this: The plaintiff had been Superintendent of the Penitentiary, but had ceased to be so before the action was commenced.

Before GRAHAM, J., at Charleston, July Term, 1872. This was an action by W. T. Burge & Co., against W. W. Willis, to recover $54.58, balance of an account for goods sold and delivered. The defendant demurred on the ground that it appeared on the face of the complaint that the Court had no jurisdiction of the subject of the action. His Honor sustained the demurrer, and judgment was entered for the defendant. The plaintiffs appealed.

Before CARPENTER, J., at Edgefield, June Term, 1873. This was a petition for dower, filed by Susan E. Horde, against Lewis D. Landrum, in the Court of Probate.

Before CARPENTER, J., at Camden, April Term, 1873. This was a proceeding for settlement of the insolvent estate of John Chesnut, deceased. It was commenced by a petition filed by James D. Kirkpatrick, as administrator of the decedent, praying for a sale of the real estate for payment of debts. James Chesnut, L. L. Whittaker, as administrator of Ellen Chesnut, deceased, and others, were made parties defendant.

Before GRAHAM, J., at Charleston, March Term, 1872. Action by G. H. Zeigler against the Northeastern Railroad Company to recover damages for injuries sustained by the plaintiff through the negligence of defendant.

Before CARPENTER, J., at Columbia, July Term, 1873. This was an action by the Columbia Water Power Company, a body corporate, against the city of Columbia. Held: that “ the notice, thus to engraft time into the contract, must be express, distinct and unequivocal.

<p>Petition for leave to file a bill of review, or bill in the nature of a bill of review, refused. *</p> <p>After remittitur the Supreme Court has no jurisdiction, and cannot re-hear the case.</p>

This was a petition by the Attorney General to the Supreme Court for a writ of mandamus to compel N. G. W. Walker, Sheriff of Barnwell… Held: and that the County Board of Canvassers had certified that a majority of the votes were given for Barnwell as the County seat, proceeded to state, in effect, that after the decision of this Court in the case of the State vs. The Chairman County Canvassers, 4 S. C., 485, the poll lists and other papers relating to the election were…

Before GRAHAM, J., at Charleston, December Term, 1873. Action upon a money demand. When the case came on for trial, defendants moved that they be allowed to open and reply. The motion was denied and defendants excepted. The verdict was for the plaintiff, and defendants appealed.

Before CARPENTER, J., at Columbia, May Term, 1873. This was an action by Thomas W. Pope, against Phineas F. Frazee and Win. D. Frazee, to set aside a sale made by the first named defendant, as Sheriff of Richland County, under a decree for foreclosure. The case and exceptions are so fully stated in the opinion of the Court as to render any statement here unnecessary. His Honor the Circuit Judge made a decree setting aside the sale, and the defendants appealed.

Before COOK, J., at Camden, September Term, 1873. This was a petition for dower by Mary A. Lyles, widow of James V. Lyles, deceased, against Susan B. Pickett, executrix of John B. Pickett, deceased, and others, brought before the Circuit Court by appeal from the Court of Probate. The issue was as to the seizin of the petitioner’s husband, and it was submitted to a jury.

Before GREEN, J., at Manning, Mat Term, 1873. This was an action by William Green, against Mitchell Jacobs, to recover the possession of a horse.

Before GRAHAM, J., at Charleston, March Term, 1873. This was an action by E. Bull against J. R. Lambson for the price and value of a turpentine still made for defendant and delivered to him. The weight of the still, as stated in the bill of particulars, was 2,871 pounds, and the price charged 55 cents per pound. The answer contained only a general denial of the allegations of the complaint. The plaintiff was examined as a witness on his own behalf.

Action by W. T. Shumate against Edward Powell, tried in Greenville County.

Before GRAHAM, J., at Orangeburg, March Term, 1873. This was an action by Edmund Bull against J. R. Lambson and D. G. Hough, as copartners, under the name of J. R. Lambson & Go., for goods sold and delivered. Service of the summons and complaint was acknowledged by Lambson for himself and Hough. At the close of plaintiff’s case defendant moved for a non-suit on the ground that no copartnership but only the individual liability of Lambson had been proved.

Before THOMAS, J., at Chester, February Term, 1872. This was an action by Thomas T. J. Chalk against Giles G. Patterson, for money had and received. The case was as follows: The defendant was Commissioner in Equity for Chester District from the year 1858 to the year 1868, inclusive.

Before COOKE, J., at Anderson, February Term, 1874. This was an action by Amanda C. Wilson, against John Harper, upon an instrument alleged in the complaint to be the single bill of the defendant.

These were ten petitions to the Supreme Court by as many different relators, praying for writs of mandamus against F. L. Cardozo, State Treasurer.

Before THOMAS, J., at Chester, January Term, 1872, This was a bill in equity, filed March 27th, 1869, by John Hardin, administrator of Jesse Cornwell, deceased, against Jesse H. Hardin and others, heirs and creditors of the intestate, for a sale of the real estate, in aid of the personalty, and for settlement of the estate. John Hardin afterwards died, and in June, 1871, Cynthia Wilkes, as administrator de bonis non of the estate, was substituted as plaintiff in his stead.

Before MOSES, J., at Spartanburg, October Term, 1873. This was au action by John Davis against J. Winsmith, to recover the amount of a sealed note, given by the defendant to the plaintiff, for $250 “in gold or its equivalent in currency, for the rent of the place formerly owned by George D. Smith,” dated January 5th, 1867, and payable twelve months after date.

Before MACKEY, J., at Lancaster, October Term, 1873. This was a second hearing of the case reported 3 S. C., 45.

Before COOKE, J., at Greenville, September Term, 1873. R. H. Earle held a judgment, and execution thereon, for $150.73, against E. F. Stokes, in reference to which the following proceedings took place: On the 22d July, 1872, J. L. Southern, Sheriff of Greenville County, made an affidavit, by which, after stating the case, he said that there is an unsatisfied execution in his office against the defendant in the above stated case, for the sum of one hundred and fifty 73-100…

Before MOSES, J., at Chambers, Newberry, February, 1873. This was a rule to show cause, issued in the name and on behalf of Jesse C. Smith, Clerk of the Court of Common Pleas and General Sessions for Newberry County, against Thomas M. Lake, late Clerk of the same Courts, to compel the-latter to turn over to the former the bonds and other' securities and moneys belonging to the office.

Before CARPENTER, J., at Columbia, May Term, 1873. Action by G. Muller against T. B. Wadlington, on a bond for $2,102, dated the 2d January, 1854, and payable, with interest from date, on the 1st January, 1855.

Before COOICE, J., at Chambers, Abbeville, October, 1873. William B. Charles brought an action in Greenville County against R. H. Jacobs, as administrator of E. O. Jacobs, deceased, on a judgment by confession, and at the September Term, 1873, of the Court of Common Pleas for that County, he obtained a verdict for $4,174.95 — the only issue made by the pleadings being that of payment.

Before GRAHAM, J., at Charleston, March Term, 1873. This was an action by Charles H. Cohrs and H. R. Banks against John Fraser & Co. to 'recover the value of 1,152 bales of cotton held by the defendants for safe keeping, as alleged by plaintiffs.

Before MACKEY, J., at Fairfield, May Term, 1873. Held: also, in Western Union Telegraph Company vs. Carew, (7 Amer. L. Reg., 18, and 15 Mich., 525), that such regulations are reasonable and binding on those dealing with the company. — ■ Breeze & Mumford vs. United States Tel. Co., 31 How. Pr. R., 86; Camp vs. U. S. Tel. Co., 1 Metcalf, (Ky.,) 154; Ellis vs. Am. Tel.

Before GRAHAM, J., at Charleston, September Term, 1873. This was an action by Elizabeth C. Magwood against the South Carolina Railroad Company and the South-western Railroad Bank and H. M. Magwood, for an account of the proceeds of certain stock of the plaintiff, alleged to have been sold without authority.

Before GRAHAM, J., at Charleston, March Term, 1873. This was an action by T. C. Jenkins against the City Council of Charleston, to recover $871.69, a balance alleged to be due by the defendant to the plaintiff for interest, at six per cent., which accrued during the years 1870 and 1871, on certain stock of the defendant owned by the plaintiff. The plaintiff was a citizen and resident of the State of Maryland, and owner of the stock in question.

Before MACKEY, J., at Lancaster, October Term, 1873. Action commenced April 29th, 1872, by J. R. Welsh, against A. J. Kibler, as administrator of J. A. Cunningham, deceased, to recover damages for an alleged breach -of a covenant for quiet enjoyment. The answer denied the allegations of the complaint, and pleaded the Statute of Limitations.

<p>Before THOMAS, J., at Darlington, December, 1874,</p> <p>This was a petition by Columbus W., Hewett and Brainard N. Hewett, minor children of Thomas N. Hewett, deceased, for the homestead exemption allowed by the Constitution.</p> <p>The petition was filed March 18th, 1872, in the Probate Court, and was heard, in the first instance, by the Judge of that Court.</p> <p>It appeared that Thomas N. Hewett died during the late war, leaving some real estate, which had been sold before the petition was filed, under a decree made by the Court of Equity, in a case of Ham against Nelson and others, to which the petitioners were parties defendant.</p> <p>The bill in Ham vs. Nelson was for sale of the realty and to marshal assets. It was filed December 30th, 1867, and the decree for sale was made September 29th, 1868. The sales were made in October, 1868, and November, 1869, and the proceeds were in the custody of the Circuit Court.</p> <p>The Probate Judge made no decree, but suggested that application be made to the Judge of the Circuit Court.</p> <p>The application was now made to the Circuit Court, and His Honor made a decree that Sl-,000 of the proceeds of the sales be invested in the purchase of a tract of land,' for the use of the petitioners, as a family homestead.</p> <p>The creditors of Thomas N. Hewett, deceased, appealed.</p>

Before MAHER, J., at Colleton, February Term, 1873. This was an action by Rosina A. Lucken and her four infant children, Catharine A. Lucken, Theodora B. Lucken, John T. Lucken and Welham Lucken, against Albert Wichman, administrator of Henry W. Lucken, deceased, for account and distribution.

Before CARPENTER, J., at Edgefield, March Term, 1873. This was a special proceeding, commenced by rule lo show cause, to obtain an order setting aside a judgment for irregularity. The facts were these: The Southern Porcelain Manufacturing Company is a corporation, under a charter from this State, granted in the year 1856. In 1868 it carried on business in the County of Edgefield, at aplace which was afterwards included within the limits of the new County of Aiken.

Before TOWNSEND, J., at Marlborough, May Term, 1874. John R. McQuaige, the prisoner, was under indictment for the murder of Robert J. Breeden, deceased; of the thirty-six petit jurors composing the original panel for the present term, five did not attend, and their places were supplied by five others summoned from the by-standers.

Before MOSES, J., at Newberry, May Term, 1874. The judgment of His Honor the Circuit Judge is as follows: Moses, J. To rightly understand the issues involved in this appeal, it is necessary that a brief history of this action should be given.

Before GRAHAM, J., at Charleston, April Term, 1873. This was an action by R. D. Bacot, plaintiff, against D. Heyward and W. G. DeSaussure, defendants.

Before GRAHAM, J., at Charleston, June Term, 1874. This was an action by Sarah L. Lesesne against Charles O. Witte, for specific performance of a contract for the sale of a lot of land in the city of Charleston. By an order of the Court, dated January 31, 1874, it was referred to a Referee to take testimony, and from his report, dated June 3, 1874, it appeared that D. Lesesne, formerly a merchant of the city of Charleston, departed this life on the 10th February, 1871.

<p>From the mere fact that an agent, employed to sell goods, and having in his possession a horse and wagon of his principal, as also the goods offered for sale, puts up at a hotel, the law wilL not presume a contract by the principal to pay the hotel keeper for the board and lodging of the agent and keeping of the horse.</p> <p>Where a non-suit is improperly refused, if the nature of the. demand is such that a recovery cannot be had, the Supreme Court will dismiss the complaint, but if it is merely a case of insufficiency of evidence, then, it seems, a now trial only should be granted.</p>

Before MOSES, J., at Newberry, Abril, 1874. This was an action by John McCullough and William J. Duffie, against Jacob Kibler.

Before COOKE, J., at Abbeville, June Term, 1873. R. P. Brownlee and H. PI. Harper were the administrators of J. Brownlee, deceased. Their administration bond bore date August 8, 1863. In the year 1866 they sold the personal estate, for gold or its equivalent, and on the 9th April of the same year they filed the sale bill in the'office of the Judge of Probate. The sales amounted to $5,353.41.

Before MOSES, J., at Spartanburg,--Term, 1873. This was an action by John Winsmith against Joseph Walker, to recover the value of five bales of cotton converted by the defendant.

Before GRAHAM, J., at Charleston, February Term, 1874. This was an action by George Willis, and Caroline, his wife, against Alexander K. Knox. The complaint alleged: 1.

Before GRAHAM, J., at Charleston, November Term, 1873. This was an action, for malicious prosecution, by George Russell against James Cantwell. Held: and the evidence being very slight, the plaintiff was discharged. At the time of the prosecution, the plaintiff, as he himself and others testified, was the slave of one Thomas B. Gordon.

Before GRAHAM, J., at Charleston, March Temm, 1873. On the 6th day of January, 1872, Samuel L. Bennett proved, in common form, before the Judge of Probate for the County of Charleston, a paper, purporting to be the last will and testament of Hannah Vesey, deceased, bearing date the 17th day of March, 1870, and on the same day qualified as executor thereof. The paper had three subscribing witnesses, and was signed by the decedent with her mark.

Before ORE, J., At Abbeville, October Term, 1872. This was an action by Wm. H. Parker, late Commissioner in Equity of Abbeville County, against Frances L. Wilson, executrix of John M. Wilson, deceased. The action was on a bond, dated 1st February, 1864, and conditioned for the payment of $12,200, in two equal annual instalments, with interest from date, payable annually.

Before COOKE, J., at Abbeville, January Term, 1874. Held: in the case of Kennedy, if there was a family and a family homestead existing at the adoption of the Constitution, that instrument immediately acted upon such family, through its proper head, by way of conferring the right of exemption.” “The purport of Section 4 (Act of 1868) is to provide for the continuance of the right in the…

Before GRAHAM, J., at Charleston, December Term, 1873. Action by A. C. Chandler against Wm. C. Geraty, Daniel H. Towles and Francis W. Towles. The plaintiff sued ou a bond executed and delivered to him by the defendant on the first day of January, 1872, and conditioned for the payment of $3,333.33, in three equal annual instalments, with interest thereon at ten per cent, per annum, payable annually, until the whole amount of principal and interest shall be fully paid.

Before MACKEY, J., at York, July, 1874. On the 2d July, 1874, the plaintiffs served a summons on the defendant to appear at the term of the Circuit Court to be held for York County, on the day of 187 , and show cause, if any he had, why a judgment of the plaintiffs against the defendant, obtained on the 9th of February, 1872, should not be revived and become a lien on all the real property of the defendant in York County, in accordance with the Act of the General Assembly of…