Volume 56 — South Carolina Reports

Before Benet, J. Pickens, July, 1898. Action for partition by Nancy E. Sanders, Hannah Sanders, Martha Waldrop, and Mary Roper v. W. R. Price; same plaintiffs v. Elizabeth Cooper; same plaintiffs v. D. A. Cooper.

Before Aldrich, J., Barnwell, fall term, 1898. Action foi possession of land by J. J. Mims et al. v. J. R. Hair. From verdict and judgment for plaintiff, defendant appeals. cite: Charges on land devised are usually paid out of both estates for life and in remainder: 1 Wis., 168; 2 Ecp Cas. Abr., 370; Prac. Ch., 288, 397; 3 Atlc, 201. Devise is enlarged to fee when land is charged zvith trust which cannot be performed without: 6 Co., 16; 4 Tenn., 93; 1 Bail., 102.

Before Buchanan, J., Sumter, October, 1898. Action for possession of land by Jimmie Logan and Lafate Logan against Mary Brunson, William H. Brunson, Blanding W. Brown, Hester Brown, Benjamin Brown, J. P. Logan, and Fannie Logan. From verdict and judgment for plaintiffs, defendants, appeal. cites: As to vested transmissable interests: 15 Strob. Eq., 44; 23 S. C, 512. As to devise to a class: 11 Rich. Eq., 527; 15 S. G, 432’; 17 S. C., 53.

Before Gary, J., Richland, January, 1899. Petition by Carolina National Bank, in the case of Homestead Building and Loan Association, against G. W. Parker. Held: the master found as charged in the complaint and admitted by the answer, and decree was signed on July 15th, 1898, declaring plaintiff’s mortgage to- be a first lien on the premises and petitioner’s lien junior thereto.

Before Gage, J., November, 1898. Action by Joseph M. Sims against Ohio River and Charleston Ry. Co. for damages resulting from construction of an embankment. From orders refusing to strike out amended complaint and overruling demurrer thereto, defendant appeals. cites: Amended complaint states no cause of action of which Court of Common Pleas has jurisdiction: 54 S. C., 114; 21 S. C., 240; 24 S. C., 476; 18 S. C., 316; 58 Am.

Before Aldrich, J., Barnwell, December, 1898. Foreclosure by Joseph A. Simon against Lucretia Sabb, Grace Morgan, Julia Jones, Hannah Mixson, and Peyton M. Cater, on the' following conjplaint: The plaintiff, by his complaint herein, respectfully shows: I. That one John J. Cater, of the county and State aforesaid, departed this life on or about the day of , 18 , leaving a considerable estate in land, which was subsequently, divided among his children, and the tract…

Before BuchanaN, J., Darlington, April, 1899. Petition by P. A. Wilcox for mandamus against G. P. Scarborough, sheriff of Darlington County, requiring him to accept his bid, and execute title thereunder at execution sale. From order issuing writ, respondent appeals. cite: Sheriff’s sale's are for cash, and purchaser must pay at once: 13 Am. Dec., 287; 5 Cal., 66; 2 Gill., 481; 41 Am. Dec., 441; Speer Eq., 485.

Before Klugh, J., Charleston, March, 1899. Foreclosure by Joseph W. Barnwell, trustee, Ann Josepha Wilson, and Ellen E. Ha-yne against Sophia Frances Shepherd Marion.

Before Watts, J., Marion, 1898. Action on note by B. G. Worth and C. W. Worth, survivors of the firm of Worth & Worth, against James Norton. From order setting aside service of summons and complaint, plaintiffs appeal. cite: On main . question: Art. I., sec. 6, Con. U. S. cite: On main question: Art. I., sec. 6, Con. of U. S.; Cons, of S. C. of 1790, 1868, 1895; 4 McC., 152; Rev. Stats., 194, 195, 196.

Before Townsend, J., Lexington, February term, 1898, and Gary, J., October, 1898. Action for possession of land by Manning Hartley et al. v. J. C. Glover. From judgment based on verdict before Judge Townsend, and from decree on equitable defenses by Judge Gary, plaintiffs appeal. cite: All presumptions must be indulged in favor of the jurisdiction of the Courts: 35 S. C., 613; 48 S. C., 569; 20 Am. Dec., 578; 13 Am. Dec., 395; 16 Am.

Before Gary, J., Sumter, April, 1898. Foreclosure by Richard I. Mánning against the heirs at law of Frances Knox. From Circuit decree, plaintiff appeals. cite: Pozver of sale includes power to mortgage: 2 DeS., 460; 52 S. C., 369; 14 Gratt., 96. Mortgage was a delegation of power to appoint to uses: 27 S. C., 313. The declaration of uses in the deed of 1881 in favor of the heirs of Prances was not a limitation to them as purchasers: 51 S. C., 555; 4 Rich.

Before Buci-ianan, J., Florence, September, 1898. Foreclosure by Pelzer, Rogers & Cot v. the heirs at law of H. L. Morris. From refusal of motion by defendants for leave to amend answer by setting up plea of usury, so- as to make it conform to facts proved, defendants appeal.

Before Townsend, J., Newberry, November, 1898. Action for personal injuries by Monroe Cooper against Georgia, Carolina and Northern Railway Company. From judgment for plaintiff, defendant appeals. The following paragraphs of the complaint state the cause of action: ■ “IV.

Before Gage, J., Fairfield, November, 1898. Motions in above stated cases to set aside the judgments therein by default. The Circuit order is as follows: This is a motion to vacate a judgment. The judgment was filed by the plaintiff against the defendant, 9th October, 1891, and it was by default.

Before Gary, J., Fairfield, February, 1899. Action by Riordan & Co. against William R. Doty. At close of plaintiffs’ case, counsel for defendant made a motion for a nonsuit on the following grounds: 1. That there is no- proof to' go to the jury that the party making the sale of the alleged cotton was at the time of the making of such sale the owner or assignee of such cotton so alleged to have been sold. 2.

Before Townsend, J., Spartanburg, February, 1899. Rule to show cause against sheriff in case of W. B. Belknap & Co. against A. W. and W. K. Greene, trading as Greene Bros. From order requiring sheriff to satisfy Oldest judgment in full, he appeals. cites; Rev. Stat., 744; 2 Head, 558. cites: Rev. Stat., 744; Code, 309; 2 Strob., 309; 37 S. C., 2x4; 46 S. G, 116; 13 S. G, 284; 6 S. G, 12; 13 Rich., 322; 2 McM., 155; 2 Speer, 92; 9 Ore., 215.

Before Watts, J., Darlington, fall term, 1898. Action for goods sold and delivered by F. W. Wagener & Co. against M. C. Kirven. Judge charged the jury as follows : This is an action brought by the plaintiff against the defendant to recover a certain amount of money which plaintiff alleges the. defendant is due them by reason of goods sold and delivered to the defendant.

Before Gage, J., Fairfield, September, 1898. Action by D. A. Crawford against Southern Railway Co. for damage to cattle in transportation. The following is a copy of one of the contracts on which the cattle were shipped: (Original — read this contract.) Southern Railway Company.

Before Townsend, J., August, 1898. Action by Margaret A. McElwee against Eliza J. Kennedy and James R. Kennedy, Mary B. Pressley, J. A. Crawford, administrator of Eliz. J. McElwee, James L. Moss, W. Brown Wylie and Ida E. Wylie, to set aside certain deeds as frauds upon creditors.

Before Klugh, J., Spartanburg, October, 1898. Action to set aside devise and for partition by Eugene Beaty, by guardian ad litem, against Violet Richardson, alias Violet Beaty, in her own right and as executrix of W. B. Beaty, Violet Beaty, the younger,' and Charlotte Beaty. The Circuit decree is as follows: Many years ago W. B. Beaty intermarried with the defendant, Charlotte Beaty. The issue of the marriage was one child, the plaintiff, Eugene Beaty.

Before Gary, J., Richland, February, 1899. Action by Frederick L. Green, as administrator of the estate of Allen J. Green, deceased, and as administrator of the estate of Frederick L. Green, deceased, and also in his own right, William G. Green, G. Washington Pringle, Allen C. Green, Walter G. Green, Sally S. Green, Allen J. Green, of Alabama, Walter Green, and Martha C. Green, appellants, against Lucy J. Green, Halcott P. Green, as trustee, Sally G. Heyward, Lucy P.…

Before Klugh, J., Abbeville, October, 1898. Action to set aside voluntary deed by Edmonds T. Brown Co., Marshall, Wescoat & Co‘., and Stern & Co., against B. Berrian Allen and David K. Cooley, late partners under the firm name of Allen & Cooley, Katurah W. Allen, Gibbes & Co., and F. W. R. Nance, as sheriff of Abbeville County.

Before Watts, J., Darlington, December, 1898. - Action on note by Lewis Jerkowski, Harry E. Moss and Emanuel Blu-mensteil, executors Samuel Jerkowski, against S. Marco and Lewenthal. From judgment overruling demurrer, defendants appeal on following exceptions: • First.

Before Aldrich, J., Aiken, January, 1899. Action for specific performance ¡by Wm. Alexander against Jefferson McDaniel and B. F. McDaniel. From Circuit decree decreeing specific performance defendants appeal. cites: Courts have inclined against enforcing parol contracts on ground of part performance: 2 DeS. Eq., 189. And will not do so where evidence as to agreement is contradictory: 32 S. C, 533; 21 S. C., 119; 41 S. C., 354.

Before Buchanan, J., Clarendon, October, 1898. Action for possession of land by Annie E. Hodge against Alice Hodge and Harvey L. B. Hodge.

<p>Before Watts, J., Darlington, November, 1898.</p> <p>' Action.by Lawrence S. Welling and Marion Bonnoitt against Eastern Building- and Loan Association of Syracuse, New York, on the following complaint:.</p> <p>First. That the plaintiffs reside ■ at Darlington Court House, county of Darlington, in the State of South Carolina, and are citizens of the said State.</p> <p>■ Second, That the defendants, the Eastern Building and Loan Association, above named, is now, and was at the times hereinafter mentioned, a foreign corporation, duly chartered under the laws of the State of New York. That at some date prior to the times hereinafter mentioned, the defendants entered and commenced carrying on a building and loan business in this State, and, for this purpose and in accordance with the laws of this State, appointed and kept a resident agent therein on whom legal process might be served, so as to bind the defendant and give to' the Court issuing the same, jurisdiction.</p> <p>Third. That the present resident agent of the said defendant in this State is T. H. Spain, Esq., who> resides at Dar-lington Court House, in said State, and that the defendant has property in this State.</p> <p>Fourth. That on the ist day of May, A. D. 1891, the plaintiffs, at Darlington Court House, in the county of Dar-lington and State of South Carolina, executed and delivered to the defendant a mortgage of certain real estate situate in the town and county of Darlington and State aforesaid, and particularly described in said mortgage, which was recorded in the office of register of mesne conveyance for the county of Darlington on the 10th day of June, A. D. 1891, in book No. 15, pages 301, 302, 303, 304 and 305.</p> <p>Fifth. That the aforesaid mortgage was given h> secure the payment of the sum of $6,177.60, the same 'being the principal, interest and premium of a loan from the defendant of $4,500, which said load was made pursuant to the bylaws of the said defendant’s association, and was evidenced and secured by seventy-eight certain promissory notes of even date with said mortgage, and payable to the , said defendant association, at its offices in Syracuse, in the State of New York, one on or before the last Saturday of each and every month until all of said seventy-eight notes were fully paid, together with interest on each of said notes, after maturity, at the rate of six per cent, per annum until said notes were fully paid.</p> <p>' Sixth. That all of said notes, and the mortgages given to secure the same, have been fully paid in accordance with the terms, stipulations and conditions of the said notes, mortgage and by-laws of said defendant association.</p> <p>Seventh. That the last of said notes, amounting to the sum of $41.70, falling due on or before the last Saturday in October, 1897, these plaintiffs, on the 28th day of September, A. D. 1897, remitted the amount of the same to the defendant by express, carriage prepaid, at its home office in the city of Syracuse, in the State of N'ew York, and said sum, remitted as aforesaid, was received by the defendant.</p> <p>Eighth. That at the time of making the remittance aforesaid, to wit: on September 28th, 1897, these plaintiffs also-remitted and tendered the fees of office to the defendant, and requested the defendant to enter satisfaction of the mortgage aforesaid, in accordance with the provisions of vol. 1, chapter 42, article 3, sections 1894 and 1895, of the Revised Statutes of South Carolina of 1893; and that although the said fees of office, remitted and tendered as aforesaid, were received by the defendant, and more than three months have elapsed since said remittance and tender were made, and- the same received by the defendant, and more than three months have elapsed since said request was made to enter satisfaction of the mortgage aforesaid, yet the defendant has failed and neglected to- enter satisfaction of said mortgage, and has unlawfully refused and stiff refuses so1 to dO', contrary to- and in violation of the act aforesaid.</p> <p>Ninth. That the reason of such failure, neglect and refusal of the defendant to satisfy the aforesaid mortgage, the defendant forfeited to*, became and is indebted to- these plaintiffs in the sum of- $1,800, and that thereby this action accrued in favor of these plaintiffs against the said defendant, according to the provisions of the act aforesaid, for the said sum of $1,800.</p> <p>•Wherefore, the plaintiffs demand judgment against the defendant for the said sum of $1,800, with costs..</p> <p>The defendant, the Eastern Building and Loan Association of Syracuse, N. Y., answering the plaintiffs’ complaint herein: ‘</p> <p>First. Alleges that the true name of this defendant is, and always has been, the “Eastern. Building and Loan Association of Syracuse, N. Y.,” and not “Eastern Building and Loan Association,” in which name it is sued.</p> <p>Second. And this defendant, further answering, admits that the plaintiffs reside at Darlington Court House, county of Darlington, in the State of South Carolina, and are citizens of the said State; that the defendant is now, and was at the times hereinafter mentioned, a foreign corporation, duly chartered under the laws of the State of New York; that in accordance with the laws of the State of South Carolina, the defendant has appointed and kept a resident agent therein, on whom legal process mig-ht be served so as to bind the defendant, and that the present resident agent of the defendant in this State is T. H. Spain, Esq., who resides at Darlington Court House, in said State; and that said plaintiffs-executed and delivered to the defendant a mortgage of certain real estate situate in the town and county of Darlington, and State first aforesaid, and particularly described in said mortgage, which was recorded in the office of the register of mesne conveyance for the county of Darlington, on the iofh of June, A. D. 1891, in book No-. 15, page 301, &c.</p> <p>Third. And each and every other allegation in said complaint contained, and not hereinbefore expressly admitted, this defendant denies.</p> <p>Fourth. And for a further and separate answer and defense to the plaintiffs’ complaint herein, the defendant alleges that it was duly incorporated on or about March 1, 1890, under chapter 122 of the laws of 1851 of the State of New York, and the acts amendatory thereof and supplementary thereto-; that subsequently and on or about February 2; 1891, the plaintiffs duly applied in writing to the defendant', at its home office in the city of Syracuse, N. Y., for fifty shares of its instalment stock, 'and agreed thereby to abide by all the terms, conditions and by-laws contained or referred to in'its certificate of shares, and also to comply with all the rules and regulations of the defendant association; that on or about said date, defendant accepted said application and issued to the plaintiffs, at its home office in the city of Syracuse, N. Y., fifty shares of its instalment stock of the par or maturity value of $100 per -share, and amounting in all to $5,000, represented by its several certificates of shares, Nos. 4967, 4968, 4969, 4970, and 4971, which said certificates of shares were on or about said date duly accepted by the plaintiffs. That subsequently and on or about the 6th day of April, 1891, the plaintiffs applied to the defendant, at its home office in the city of Syracuse, N. Y., for an advance of the maturity value of the aforesaid shares, to wit: the sum of $5,000, in accordance with the rules and regulations of this defendant, said advance to* be at a gross premium of ten per cent, and interest, and running premium each at the rate of five per cent, per annum, payable monthly, and offered to secure the repayment of the same in accordance with the rules and regulations of the defendant by security on the premises referred to in the complaint herein; that said application so made as aforesaid, was accepted and granted to said plaintiffs by the board of directors of this defendant, at its said home office; that thereupon said advance of the said maturity value of said shares was duly made by this defendant and secured to be paid by the mortgage referred to in the complaint herein, and by the collateral assignment to this defendant by said plaintiffs of the aforesaid shares of stock; that the monthly payment mentioned and referred to in said mortgage comprised the monthly payment of dues estimated to accrue and become payable on said shares until .the same should mature and reach their par value, said dues being at the rate of 75 cents per share per month, and in addition thereto the aforesaid monthly interest and premium during said period; that under and by virtue of the by-laws of this defendant, which was expressly made a part of said mortgage, and the provisions of the defendant’s charter or articles of association, both of which said plaintiffs, for themselves, their heirs, executors, administrators and assigns, covenanted and agreed to keep and perform, as well as said law under which defendant is incorporated, the plaintiffs agreed and became obliged to pay the dues on said shares until the same matured, and the interest and premium aforesaid on said advance until said maturity; and that said dues and interest and premium are, by virtue of defendant’s articles of association and by-laws and the terms of said mortgage, all payable to' this defendant, at its home office in the city of Syracuse, N. Y. And'this defendant further shows that no payments of dues on said shares have beeen made since the month of July, 1897; and that at the time of the commencement of this action, and at no time prior thereto, said shares of stock so advanced upon as aforesaid, had not attained the value of $100 each, and that all of said shares had not then, and have not now, attained the value of more than the sum of $3,121.50; and that there is now justly due and owing to this defendant 011 account of said advance, and secured by said mortgage, after applying the value of said shares so advanced or loaned upon by said defendant, the sum of $1,878.50, with interest, premium and fines on said advance from August 1, 1897, which sum the plaintiffs have never tendered or offered to pay to> the defendant. And this defendant further shows that under the law under which it is incorporated, its charter or articles of association and bylaws, it is a mutual institution, in which all of the members thereof must, according to their respective holdings, share equally in the profits and losses; and that the defendant -has no means of maturing its shares except by the contributions of its members thereon and the earnings to which the same are entitled; and that the rights of plaintiffs are not superior to that of any other member in the amount that they are entitled to receive under said shares; and that having been loaned or advanced the full maturity value of said shares, they are bound by virtue of their agreements with this defendant to pay to it in cash, the difference between the value of said shares and the amount of said advance, together with any arrearages of interest and premium, if any, or to continue the payment of the monthly dues on said shares, and the interest and premium on said advance, until said shares have matured, before they are entitled to a satisfaction and discharge of their said mortgage, and that the plaintiffs have not performed either of said obligations.</p> <p>Wherefore, the defendant demands judgment, dismissing the plaintiffs’ complaint, with costs.</p> <p>After the testimony was introduced and full argument made, the attorneys for the plaintiffs and defendant admitted the same state of facts, including the laws of the State of New York, which were introduced into evidence, and agreed, as there is no fact to' be found 'by the jury, that his Honor can direct a verdict for the plaintiffs or defendant, in accordance with his construction of the written contract under the law. Plaintiffs’ attorneys request his Honor to direct the jury to return a verdict in favor of the plaintiffs.</p> <p>Defendant’s attorneys asked his Honor h> direct the jury to return a verdict in favor of the defendant on each or all of the following grounds:</p> <p>ist. That the Eastern Building and Loan Association was incorporated under the chapter 122 of the laws of 1851 of the State of New York, and the acts- amendatory thereof; and as the plaintiffs contracted with the defendant, then they are bound by such laws, and are not exempt from making the monthly or other stated payments provided in the articles of association, upon the ground that by reason of losses or otherwise the association has continued longer than was originally anticipated, whereby the payments made on such shares may amount to more than the amount originally advanced, with legal interest thereon.</p> <p>2d. That the Supreme Court of the State of New York, in December, 1895, in the case of O’Malley v. The Peoples’ Building, Loan and Savings Association, decided that a corporation charter under said chapter 122 of the laws of 1851 of the State of New York, and the acts amendatory thereof, did not possess the power or authority to- issue a certificate specifying a fixed maturity period, and that such a clause should be construed as an estimated period of maturity.</p> <p>3d. That the payment by plaintiffs of the sum represented by the seventy-eight notes to the defendant does not repay the amount of plaintiffs’ loan to defendant, unless such payments and the earnings of the defendant had matured the plaintiffs’ stock.</p> <p>4th. That the plaintiffs’ indebtedness upon their loan secured from defendant will not be fully paid until the shares of stock held by the plaintiffs reach par value, or by reason of plaintiffs’ payment into the loan fund of defendant and the dividends credited thereto.</p> <p>5th. That the plaintiffs are not entitled to a cancellation of ffieir mortgage until such time as their stock matures and reaches the par value of $ioo per share.</p> <p>6th. That until the amounts paid by the plaintiffs into the loan fund of defendant, augmented by dividends credited thereto, matures plaintiffs’ stock, the plaintiffs are not entitled to- a discharge of their mortgage.</p> <p>7th. That defendant association was incorporated under chapter 122 of the laws of 1851 of the State of New York, and the acts amendatory thereof, and that the plaintiffs are members of said association, bound by its articles of incorporation and its by-laws, rules and regulations, and the defendant being, under said laws, a mutual corporation, the plaintiffs, as members, are bound to- sustain their pro rata share of any losses the association may suffer, as well as to participate in dividends declared from the earnings.</p> <p>In ruling upon the legal question as to whether or not the mortgage in issue had been paid and should be marked satisfied, Judge Watts said: The question came up before me whether this mortgage was cancelled. If it was cancelled, it was the duty of the holder of the mortgage to cancel it in the register’s office, in this county, within three months; if not, the penalty under the statutes attaches. Now, there are a great many interesting points in this case. It has been most ably argued on both sides; I have listened to- it with a great deal of pleasure, as it was something new to- me. I am frank to say that I know very little about building and loan associations. I have had very few cases before me since I have been on the bench and never had a case while at the bar. For a short time I owned some stock in one, but I never knew anything' about it, and I got out of it as quick as I could. But my views in the case are these, and in announcing them I do not think it is necessary for me to- consider all the points which have been so ably argued ip this case.</p> <p>The question here is: What was this mortgage given to-secure ? A mortgage is a pledge to pay certain things — the pledging of certain property to pay certain things incorporated in the mortgage — a bond or note, something of this kind. My construction of this mortgage is this: The agreement between the parties in that mortgage was that these plaintiffs executed seventy-eight notes to be paid at certain times. That was the evidence of the debt. The security to pay those seventy-eight notes was the real estate described in this mortgage. When they mortgaged their property, it was not to- secure fifty shares of building and loan stock. There was no provision in that mortgage that they were to continue to pay their monthly assessments thereon until the fifty shares of stock had matured the value of $100 each; but they simply pledged their property to pay the seventy-eight notes as they fell due, with any fines that might be due under the by-laws. Now, the sole question is, have they paid those seventy-eight notes ? If they have been paid, the lien of this mortgage has been cancelled — extinguished. It is admitted that severity-five of these notes have been paid, and of the other three, tender was made and the offer refused. I hold, under the plain terms of this mortgage, that when- these plaintiffs paid the seventy-five notes and tendered the payment of the other three notes, and the defendant refused to accept them, that that extingished the lien of this mortgage, and this mortgage should be marked satisfied and cancelled. And the undisputed testimony also is that the fees of the register was tendered, and the defendants refused to- mark the mortgage satisfied I, therefore, hold-, as a matter of law, that the penalty attaches in favor of the plaintiffs against the defendant. The mortgage says that these notes were to> be paid in accordance with the by-laws of the association. That meant they were to be paid at materity, as I take it; and if they were not paid, the fines and penalties provided by the by-laws were to be attached and to- become a part of these notes. I hold that the mortgage is cancelled, and that when the plaintiffs paid the seventy-five notes and tendered the payment of the other three notes, that it was the duty of the association to turn that mortgage over; and when they failed to do that, then the plaintiffs 'had the right to wait three months (I believe is the statute), and when they tendered them the fees, it was their duty to mark it satisfied; and if they did not do that, they are -bound to pay up the penalty as prescribed by the statute.</p> <p>I don’t think it is necessary in this case to pass, upon the point as to whether or not Welling and Bonnoitt are still members of this association. I am satisfied, under the testimony, that the mortgage is dead. I presume that this case will, of course, go to the Supreme Court, and they will settle the law full}'-. I am sorry we have not a decision of our own Court with reference to a case like this. But those are my views, and I so hold.</p> <p>The defendants have asked me to direct a verdict in their favor on the ground that there is no dispute between them on the facts of the case, and that is a question of law to be construed by me. The plaintiffs also ask for a verdict to be directed in their favor. Under the undisputed facts in the case, I think I have the light to direct a verdict in favor of the plaintiffs. I refuse to direct a verdict for the defendant, as requested.</p> <p>From the judgment entered on this verdict, the defendant appeals.</p> <p>There being on the dockets, ready for trial at same -time, five other cases in like plight, namely, Henry M. Wilcox v. Same, Kittie M. Oakes and W. B. Oakes v. Same, H. A. Edwards v. Same, C. E. Ward w. Same, and A. W. Welling v. Same — it was agreed that judgment should be taken in all the cases for the amounts sued for, and an order was passed providing that the appeal in this case should settle the issues in all of them. Accordingly, the attorneys interested in all of the cases participated in the argument.</p> <p>cite: The articles of incorporation, by-laws, laws of New York, application for shares, certificates, all papers relating to loan, and the printed matter of the association are to be read and construed together as the contract between the parties: 52 N. Y. R., 131; 39 Sup. Ct. Rep., 73; 66 N. Y., 533; 94 N. Y., 104; 83 Hun., 92; 92 Hun., 572; 148 N. Y., 281. This contract must be construed according to the lazos of New York: 22 S. E. R., 521; 93 Va., 380; 177 Pa. St., 233; 66 Fed. R., 827; 27 S. E. R., 274; 30 lb., 827; 129 U. S., 397; 87 Ga., 1; 79 Tex., 246; 40 S. W.,'466; 83 Fed. R., 403; 91 U. S., 406; 83 la., 1-20; 57 N. W. R.,'311; 13 Pet., 77; 52 N. J. L., 550. That loan is made on real estate does not change this rule: 74 Wis., 329; 27 S. E. R., 692. No definite period mentioned in the certificates or the mortgage can be construed by the Courts as a guaranteed period of maturity: 92 Hun., 572; 117 N. Y., 175; 72 Ala., 207; 8 R. I., 310; 31 Mich., 76. Plaintiff and defendant never sustained relation of debtor and creditor: 41 N. E. R., 139; 76 N. W. R., 625. This Court has held that such a contract is governed and construed according to the laws of the place of payment: 49 S. C., 402; 50 S. G, 308; 51 S. C., 33, 27; 53 S. C., 73. Tender must be made at place of payment: 74 U. S., 207. And plaintiff having alleged tender in Syracuse, cannot deny it: 51 S. C., 164; 8 Rich., 117. And hence this is N. Y. contract.. The comity recognizing the corporation of a sister Stale is a part of its common law, and governs unless State indicate intention to repeal: 18 S. C, 525; 42 S. G, 291; 106 U. S., 104; 1 S. G, 155. Questions not considered on Circuit will not be considered here: 49 S. G, 21; 39 S. G, 6; 37 S. G, 572. Plaintiff’s action is purely stahdory, and is conditioned on things enumerated in statute: 40 S. G, 342; 45 S. G, 344. Foreign lazos are introduced- to rebut presumption that laws in both States are same: io Wheat., 367; 134 U. S., 905. And defendant is not deprived of constitutional right by having resident agent: 14 Pet., 67; 5 How., 310; 121 U. S., 915. As to equitable estoppel: 13 S. C., 29; 54 S. C., 344; 96 U. S., 676; 41 N. E. R., 139. Point in this case has been previously decided to be mere expression of opinion: 21 N. E. R., 12; 29 N. J. Eq., 262. A corporation carries its charter wherever it goes: 103 U. S., 338; 139 U. S., 55; 131 U. S., 161. If appellant cannot set up defense that it cannot guarantee maturity at fixed time, the contract is void: 167 U. S., 200; 48 N. E. R., 677; 41 Am. Rep., 237; 106 U. S., 104; 135 U. S., 262. Contract valid in N. Y. is valid here: 10 Wheat., 152; 3 Strob. Eq., 301; 6 Rich. Eq., 58; 10 Rich. Eq., 475. The Court under admissions here could direct the verdict: 42 S. G, 30; 13 S. C, 376; 21 S. C, 557-</p> <p>The latter cites: B. & L. Assn, defined: 30 S. E., 914. Acceptance of notice of withdrawal terminates membership: 27 S. E. R., 545. Burden is on defendant to show notes are not paid: 2 Hill L., 319. Articles of association are binding on all its members: 42 N. E. R., 711. Upon payment of all dues and surrender of certificate at maturity, borrower is entitled to have mortgage cancelled: 52 P., 623; 43 S. W. R., 280.</p> <p>cite: We think this case fully settled by Williamson v. B. & L. Assn., 54 S. C., 582. Court will not require respondent to pay more if contract is ultra vires: 13 Am. S. R., 653; 7 Wall., 392; 96 U. S., 258; 22 N. Y., 258, 439; 63 N. Y., 62. Appellant will not be heard on plea of ultra vires: 83 Penn., 160; 60 Am. St. R., 172; 53 N. Y., 62; 97 N. Y.,378. Acts of defendant1 s agent amount to a waiver of any right to now insist that plaintiffs’ cause of action has not accrued: 5 Nans., 275; 17 N. Y., 428; 10 Ins. Law J., 774. Where period of maturity of these certificates expired and they are presented for payment, membership terminated and plaintiffs became creditors: 85 Pa. St., 394; 93 Pa. St., 308; 2 Bosw., 381; 25 N. Y. Supp., 835.</p> <p>cite: Party desiring rules of law different to those of forum, must aver and prove them: 5 N Y., 448; 91 U. S., 13; 8 Minn., 13. When a contract ■is open to two constructions, one lawful, the other unlawful, the former must prevail: 117U. S., 367; 86 N. Y., 384; 118 U. S., 235. Private citizens are not presumed to know foreign laws: 9 Pick., 112; 9 Col., 11; 22 N. Y., 259. Defendant is estopped from setting up plea of ultra vires: 22 N. Y., 259; 9 Col., 11; 121 N. Y., 582; 137 N. Y., 417; 63 N. Y., 62. It is also estopped by conduct: 42 S. C., 231; 27 S. C, 234; 11 N. E. R., 243; 20 Ch. Div., 21; 3 DeG. and J., 387; 15 Nev., 428. When loans zvere granted, plaintiffs’ shares of stock were withdrazm, and their membership ceased: 50 S. C, 89; 27 S. E. R., 32; 12 Rich. Ecp, 124; 15 S. C., 462; 44 S. C., 120. Place of performance is a mixed question of lazv and fact, intention of parties governs: 19 S. C, 588; 49 S. C., 407; 51 S.-C., 428. If these be N. Y. contracts, they are unlazvful: 106 U. S., 124; 69 Me., 105. Our statutes, acts i8py, 484., acts i8p8, 747, requiring all contracts to be construed according to S. C. laws, applies here: 54 S. C, 428. The enforcement of foreign laws rests solely upon theory of comity: 45 S. C., 369; 38 N. J. Eq., 224. What is meaning of comity ? 159 U. S., 113; 54 S. C., 413.</p>

Before Gage, ]., Richland, July, 1898. Action for appointment of receiver and for accounting by W. A. Neal, superintendent State Penitentiary, against Joel W. Súber, and continued against Charles W. Súber, administrator. The following is the Circuit decree, less the formal parts: This is an action at law, begun in November, 1896, by the plaintiff against one Joel W. Súber. That defendant having died, C. W. Súber, his administrator, was substituted in his stead.

Before Klugh, J., Spartanburg, October, 1898. Two actions for injunction by Jessie M. Thomson against C. P. Brown, and E. A. Brown, administrator of J. J. Brown, and J. M. Nicholls, sheriff of Spartanburg County, and same plaintiff against the two first named defendants, and E. A. Crawford, sheriff of York County. The Circuit decree is as follows: 1 This cause came on for hearing at Spartanburg, in July, 1898, on exceptions to the master’s report.

Before Gage, J., Fairfield, November, 1898. Foreclosure by The Bank of Columbia against F. M. Gadsden. From Circuit decree, defendant appeals. cite: Plaintiff must “stand in shoes” of assignor: 38 S. C., 138; 43 S. C, 287; 45 S. C., 83; 49.S. C., 469; 50 S. C., 241. An express contract for indemnity may be executed when the surety assumes responsibility or afterwards, and is very elastic in construction: 4 DeS., 45; 15 S. C., no; 15 S. C., 5°5i 40 S. C., 22.

Before Klugh, J., Spartanburg, October, 1898. Action by The Merchants and Planters National Bank of Union v. The Clifton Manufacturing Co. The following is that portion of the Circuit decree relating to the Harris check: The remaining item of the overdraft is the check for $2,299.23. in favor of R. W. Harris. It was drawn on the nth day of December, 1896, and dated January nth, 1897.

<p>1. Wills — Life Estate. — A devise to testator’s children of all his lands and personal property, “allowing my wife the use and maintenance upon said property during her life, or as long as she remains my widow/' does not give the wife a life estate, but only a support on the lands. Mr. Justice Gary dissents.</p> <p>2. Rehearing refused.</p>

Before Klugh, J., Florence, February, 1897. Action for partition by John C., Richard H., and Mary A. McClenaghan, against Leah McEachern, H. H. McOlenag-han, Charles E. McClenaghan, J. Boyd, sr., J. Boyd Brun-son, jr., and Bessie and Marie Brunson. From verdict under instructions, plaintiffs appeal.

Before Watts, J., Edgefield, March, 1899. Action by Laura M. Swearengen against The Hartford Fire Ins. Co. and Laura S. Hardy. From judgment on verdict for plaintiff, defendants appeal. cites: Judge should have tried the case without a jury: 12 S. C., 97; 31 S. E. R., 867; 52 S. C, 471. As to equitable lien: 124 Mass., 61; 8 Rich., 338.

Before Gary, J., Newberry, July, 1899. Indictment against Noah R. Taylor for murder. The charge is as follows, omitting the formal parts: In this case there is little law to give you.

Befo're Gary, J., Spartanburg, July, 1899. Indictment against Frank Smith for assault and battery with intent to kill. From sentence on verdict, defendant appeals.

<p>1. Grand Jurors. — The Act of 1899, 23 Stat., 39, as to when objections to jurors should be raised, does not apply to grand jurors.</p> <p>2. Ibid. — New Trial. — A new trial will not be granted on motion, after verdict, because a member of the grand jury finding the bill was not a registered elector, because 'he could have ascertained that fact before trial.</p> <p>3. Ibid. — Ibid.—Before new trial will be granted on ground of disqualification of grand juror, appellant must show that he has been prejudiced by that fact.</p>

Before Townsend, J., Laurens, July, 1899. Indictment against James Boyd for house-breaking- and larceny. From order quashing indictment, State appeals. The latter cites : Motion to quash- comes too late after pleading: 30 Pac. -R., 891; 35 Pac. R., 710; 37 Pac. R.; 169; 23 S. E. R., 334; 38 S. C., 272.

Before Townsend, J., Laurens, January, 1899. Action to set aside deed for fraud on creditors by J. B. E. Sloan against R. Lee Hunter, as administrator and heir-at-law of H. M. Hunter, J. H. Hunter, Mary E. Copeland, Ella S. Evans, G. W. Hunter and Henry C. Hunter. From Circuit decree, defendants appeal. cite: Administrator of judgment creditor is necessary party: 18 S. C., 131. Testimony of Mooney was a privileged communication: 3 Barb., 595.

Before Gage, J., Cherokee, January, 1899. Action by John E. Bankhead against C. S. Good administrator, to have one judgment set off against another. From Circuit decree, defendant appeals. cite on point decided, Rich. Eq. Ca., 385 : Thomas & McBlzvee, 35 Si rob. L., 131. cites on same point, 2 Pet., 465; 91 U. S., 143; 13 S. C., 260; 10 Wall, 583; 1 McC. Gh., 22; 40 S. C., 211.

<p>CHARGE-TO instruct a jury that "If the evidence raises a mere conj ect-tire or suspicion, or even a probability" as to the contention of plaintiff, would be error, because the inference or preponderance of evidence may depend on probability.</p>

Before Buci-ianan, J., Kershaw, June, 1899. Claim of B. B. Williams, sheriff of Kershaw County, against said county for dieting prisoners. From Circuit decree reversing action of County Commissioners, the county appeals. cites: Rev. Stat., 2561; 22 Stat., 226, 474, 740; 30 S. C., 410; 17 S. C, 148; 37 S. G, 558; 13 S. C, 1.

Before Buchanan, J., Saluda, August, 1899. Proceedings by mandamus by William Maxwell to require W. E. Bodie, supervisor of S'aluda County, and W. A. Edwards, cleric, to draw county warrant for claim against county in judgment. From order granting writ, the respondents appeal. cites: 22 Stat., 158; Rev. Stat., 681; 8 S. C., 127; 13 S. C., 262; Con. 1895, art. 10, sec. 3.

Before Gage, J., Abbeville, June, 1899. Action by South Carolina Mutual Insurance Company against T. J. Price, to enforce statutory lien against insured’s property. From refusal of motion for order of reference, plaintiff appeals. The former cites: 53 S. C, 130; 26 S. E. R., 212.

Before Klugh, J., Greenville, December, 1898. Action in claim and delivery by Alexander Bros. & Go. v. Thos. F. Jamison. From judgment on verdict for plaintiff, defendant appeals. cites: Affidavit should have been Med in clerk’s office in twenty days: 46 S. C., 42; 36 S. C, 155. Charge: 47 S. C, 489. cites: Plaintiff cannot be made to suffer for neglect of sheriff to lile papers in clerk’s office: 36 Am. St. R., 277; 15 Am.

<p>1. Costs. — -Sheriff—Search.—A sheriff cannot charge for search for a person under a magistrate’s warrant.</p> <p>2. Ibid. — Ibid.—Mileage.—A sheriff is entitled to the actual mileage travelled by him in serving all warrants in each case issued by a magistrate.</p> <p>3. Ibid. — Ibid.—Arrests—Mileage.—A sheriff is entitled to mileage on magistrate’s warrants as in two cases when on same trip he arrests two defendants in different cases.-</p>

<p>1. Habeas Corpus — Jurisdiction.—Under writ of habeas corpus this • Court cannot enquire into errors at law in the proceedings under which petitioner has been imprisoned by magistrate, except as to jurisdiction.</p> <p>2. Peace — Jurisdiction.—Magistrate has jurisdiction to bind over a party to keep the peace, and in default of bond, put him in jail.</p>

Before Benet, J., Sumter, June, 1899. Indictment against John Sanders for stealing a 'horse. The Judge instructed the .jury as follows : This is a case purely of fact for you to decide, with perhaps a little comment on the law' applicable to' the case.

Before Gage, J., Anderson, August, 1899. Indictment against James Chapman in Magistrate Court for violation of contract. From Magistrate’s judgment defendant appeals to Court of Sessions, and from affirmance of judgment below, defendant again appeals. cites: 22 Stat., 457;. Gen Stat. 1882, 2084; 32 S. C., 123; 20 Stat., 381; 14th Amend. U. S. Con.; 120 U. S., 68; 113 U. S. 27; 134 U. S., 594-

Before Townsend, J., Greenville, April, 1899. Action for debt by F. P. Dill against' G. W. Durham, in magistrate’s court at Greers. Judgment for plaintiff. Defendant appeals. Appeal sustained. Plaintiff appeals to this Court. cite: Is act of 1887 repealed by 21 Stat., 275? 41 S. C., 501; 11 Wall., 88.

Before Gage, J., Greenville, July, 1899. Action in claim and delivery by Easter Manuel against Rosa F. Loveless, in magistrate court. Appeal is by defendant from an order of Circuit Court dismissing her appeal from magistrate court. cite: 41 S. C., 93; Code, 360. cites: Code, 359, 360; 7 S. C., 342; 9 S. C., 82.

Before Buchanan, J., Florence, September, 1898. Action for possession of land by David1 Lee against Louis Miles and J. C. Lynch. From judgment upon verdict for plaintiff, defendant appeals. cite: Construction of deed erroneous: 35 S. C., 314. Three ways of proving title: 15 S. C., 478. Terms of written instrument cannot be varied by parol: 54 S. C, 343. cite: Intention of grantor must be sought in construing a deed: 35 S. C., 331; 15 S. C., 277.

Before Klugh, J., Greenville, November Term, 1898. Indictment against John G. Chaffin for murder. From verdict of guilty with recommendation for mercy, and sentence thereon, defendant appeals. cite: Error to rule out expert question to Dr. Bot-tum: 34 S. C., 16; 21 S. E. R., 4; 120 U. S., 430; 168 U. S., 532. Where witness states facts, he may give opinion, though not expert: 1 McM., 56; 19 S. C., 66; 120 U. S., 430.

Before Townsend, J., Newberry, March, 1899. Foreclosure by George T. Reid against Mary F. Wells. The Circuit decree is as follows: This case was commenced by service of summons and complaint on the 21st of September, 1898. The complaint is in the usual form for the foreclosure of a mortgage, claiming judgment against the defendant for $1,060.35, and interest from the 22d January, 1887, at ten per cent, per annum.

Before Gary, J., February, 1899. Action for damages for personal 'injury by Amos Rutherford against Southern Railway Company.

Before Buchanan, J., Lexington, June, 1899. Action on account by Lookout Mountain Medicine Co. against W. A. Hare & Co. in magistrate court. From order of Circuit Judge sustaining defendants’ appeal from magistrate, plaintiff appeal's on following exceptions : 1.

Before Gage, J., Greenwood, May, 1899. Foreclosure by Patrick Armstrong, administrator of Jno. F. Armstrong, against Zac'hariah W. Carwile, Jr., and Geo-. H. Taylor.

<p>1. Magistrate — Finding of Fact. — On Appeal from Circuit Court findings of fact on appeal from magistrate are final, and cannot be reviewed here.</p> <p>2. Estoppel — Husband and Wife — Horse.—A wife being present and knowingly allowing her husband to execute and deliver a bill of sale on her horse, is afterwards estopped from setting up her title thereto as against such bill of sale.</p>

<p>Supreme Court — Pleadings—Answer—Jurisdiction.—Has the Supreme Court jurisdiction to allow a party to answer? This question should have been made before remittitur was sent down, and comes too late after it has gone down.</p>

Before Watts, J., Richland, May, 1899. Action by John T. Sloan against W. H. Gibbes on the following complaint: 1.

Before Watts, J., Chesterfield, October, 1898. Action for possession of real estate by Ellen Pegues Smith against W. T. Lowery. From order appointing receiver tO' collect rents and pay taxes, defendant appeals.

Before TOWNSEND, J., Dorchesteir, May, 1899. Indictment against C. J. Allen for forgery. From sentence on verdict of guilty, defendant appeals. Mr. Gruber cites : Indictment should have charged the act done feloniously or with feloniotis intent: 5 Stat., 397; 11 Stat., 341; 8 Rich., 21; 5 Strob., 66; 2 Treadway, 759. Evidence tending to show forgery and uttering other instruments improperly admitted: 2 Treadway, 758.

Before Watts, J., Saluda, May, 1899. Action by M. A. Whittle, sheriff, against Saluda County for costs. From order of Circuit Court, upon appeal of plaintiff from action of county commissioners, the defendant appeals. cites: Rev. Stat. 2561, 2562.

Before Gage, J., Richland, July, 1898. Action by A. H. Levister against Southern Railway Company for damages for personal injuries.

Before Gage, J., Anderson, August, 1899. ■ Indictment against W. H. Tucker and J. B. Tucker for failing to' remove trash, &c., from running streams. The order on 'Circuit dismissing the appeal from magistrate court and overruling constitutional objections, is as follows :■ This is an appeal from the judgment of a magistrate. The prosecution is under section 1273 of the Revised Statutes of 1893.

Before Buchanan, J-, Chesterfield, April Term, 1899. Indictment against W. J. Mitchell for violating dispen-sar)'- law. The trial Judge instructed the jury as follows, omitting formal parts: So, then, Mr. Foreman, the defendant is upon trial under three counts in the dispensary law.

<p>1. Pleadings — Complaint—Corporation—Stockholder.—In a suit against a stockholder of a corporation for his sfaltuitory liability by a creditor of the corporation, the complaint must allege all the conditions upon, wrhioh a creditor may pursue a stockholder, and all the facts necessary .to create his statutory liability.</p> <p>2. 'Corporation — Notes and Bills — Stockholder—Debtor and Creditor., — -In such a suit where the note is dralwn payable in two years, interest payable semi-annually, the date of the maturity of the note is not altered by a provision that Ithe whole debt becomes due on ■default 'in payment of interest.</p> <p>3. Pleadings — Consideration—Corporation—Stockholder.,—In such a suit it is not neoessary to> allege a consideration for the corporate debt.</p> <p>4. Ibid. — Demand—Corporation—Stockholder.—In such a suit it is not neoessary to allege demand upon stockholder before suilt.</p>

Before Gage, J., Greenville, Ma)»- Term, 1899. Indictment for murder against Mattie A. Hughes. From order overruling plea of former jeopardy, defendant appeals. cite: Is this order ap-pealable? 54 S. C, 234; 36 S. C., 559; 21 A. M. R., 281. Defendant’s plea of former jeopardy should have been sustained: Secs. 5, 17, 18, 25, 29, art. I., Con. 1895; xi S. C, 288; 24 S. C., 159, 165; 15 S. W. R., 718; 42 F. R., 587; Crim.

Before Watts, J., Richland, April, 1899. Action- on note by Marshall Ayres against S. L. and W. L. DesPortes, executors of R. S. DesPortes, and John A. DesPortes. From judgment against executors of R. S. DesPo-rtes the defendants appeal. cite: Deeds of assignment zvith preferences are void in this State: 31 S. C., 346; 46 °S. C., 337.

Before Gage, J., Spartanburg, February, 1899. Foreclosure by M. 'C. Lipscomb, administrator de bonis non, cum testamento annexo of 'C. B. Hammett, against Laura V. Hammett and her children. From judgment of foreclosure, defendants appeal. cite: Actions in foreclosure must be tried in county where land lies: Code, 144; 2a Stat., 793. As to the construction of the deed: 4 DeS., 209; 3 Rich. Eq., 158, 574; 23 S. G, 238; 1 Bay, 454; 16 S. C., 294; 1 'Strob.

Before Watts, J., Laurens, October, 1899. Action in magistrate court by Arthur Grant against Clinton Cotton Mills on following summons: Summons for Debt. — By J. W. Peterson, Esq. To M. S. Bailey, President 'Clinton Cotton Mills: Complaint having been made unto me by Arthur Grant that you are indebted to him in the sum of five and seven one-hundredths dollars, for work done in the weaving department of the Clinton Cotton Mills from March 25th, A. D. 1899, to and including…

Before Townsend, J., Greenville, April, 1899. Action on insurance policy by W. H. Jacobs against the Mutual Insurance Company of Greenville, S. C. From order of nonsuit plaintiff appeals. cite: Where one secures a conveyance to be made to himself through a verbal promise to hold the land in trust for the grantor or another, and after the conveyance has been made declines to be bound by the promise, equity will enforce the trust: 2 Rich.

Before Townsend, J., Beaufort, September, 1899. Action by Edward Lynah against A. H. Heyward for impounding cattle. From order Circuit Court affirming magistrate’s judgment, defendant appeals. cites.; Code, 363. cites: Code, 362, 364, 396.

<p>Surety — Application op Payments. — As against a surety who executed a bond to indemnify a bank for overdrafts of his principal in a cotton account for a particular season, the bank cannot apply to another account of the principal, the proceeds of drafts drawn in favor of the cotton account, then dishonored, but afterwards collected by suit. Pelser, Rodgers & Co. v. Steadman, 22 S. C., 284, distinguished from this.</p>

Before Gary, J., Spartanburg, July term, 1899. Indictment against J. K. Stuckey for murder of John Sevier. From verdict of manslaughter, and sentence thereon, defendant appeals on the following exceptions, alleging error in the trial Judge: I. In allowing the witnesses, Dr. W. W. Rigby and Jno-.