Volume 6 — South Carolina Reports

Beeoke COOKE, J., at Columbia, August, 1873. This was a suggestion by the Citizens’ Savings Bank and the South Carolina Bank and Trust Company, as relators, against the city of Columbia and Jesse E. Dent, Sheriff of Richland County, praying for a writ-of prohibition to restrain the enforcement of certain executions issued by the city against the relators for the collection of license fees.

Before CARPENTER, J., at Richland, May Term, 1874. At March Term, 1867, of the Court of Common Pleas for Rich-land County, D. B. DeSaussure, the appellant, obtained an order for judgment against one Joseph A. Reese, and on the 21st March of the same year, after the rising of the Court, he entered his judgment in the Clerk’s office, issued execution thereon and lodged the same with the Sheriff.

Before COOKE, J., at Abbeville, June Term, 1874. Action by Thomas Eakin, plaintiff, against John Knox, defendant. The case was- referred to Edward Noble, Esq., as Referee, from whose report it will be fully understood. The report is as follows: The case made is briefly this: In 1861, Thomas Eakin, Ben. H. Eakin and John Knox, as jmrtners, bought a tract of land, hired laborers, provided themselves with animals, and put under way a cotton plantation in the County of Abbeville.

Before COOKE, J., at Abbeville, June Term, 1874. This was an action by Janet H. McLarin against Knox & Cunningham to subject certain real estate to an annuity bequeathed to the plaintiff by John McLarin, Sr., deceased, whose will is as follows : “ I devise and bequeath my whole estate, real and personal, to Agnes McLarin, widow of my brother, during her lifetime, and at her death to my nephew, John McLarin, Jr., his heirs and assigns forever, in fee simple. “ It is further…

Before GRAHAM, J., at Charleston, June Term, 1874. This was an action by Caroline A. Bollmann, administratrix of Henry Bollmann, deceased, against Behrend Bollmann for an account of partnership property and effects of the firm of Bollmann Brothers.

<p>On demurrer by plaintiff to defendants’ answer, the Judge who heard the case endorsed “Demurrer overruledHeld, That this was an interlocutory and not a final order on which judgment could be entered dismissing the complaint.</p> <p>The fact that an heir holds his share of descended real estate under a decree for partition which assigned the different shares at fixed values, is no defense to an> action, by a creditor of the ancestor to subject the lands to the payment of his debts.</p> <p>That the personal estate of the intestate was large and more than sufficient to pay his debts is no defense to an action against the heir to subject the real estate to the payment of the debts.</p> <p>Demurrer to defenses, alleged in the answer, of payment and laches: Held to have been properly overruledthe facts set forth as proof of payment and laches, being insufficient to enable the Court to determine the questions of payment or laches.</p> <p>That judgment, without satisfaction, was recovered against the executor for the same debt, is no defense to an action against the heir to subject the real estate to the payment of the debt.</p> <p>In an action against husband and wife to subject real estate which had descended to the wife to the payment of debts of her ancestor, defendants alleged in their answer a discharge of the husband in bankruptcy subsequent to the indebtedness and the sale of the lands under the proceedings: Held, That a demurrer to this allegation was properly overruled.</p> <p>A demurrer to a defense alleging a former recovery must be determined by the facts stated in the answer, and the record cannot be used to modify or affect them.</p> <p>Where an answer sets up defenses, other than a counter claim, and a demurrer thereto is overruled, the effect is not to dismiss the complaint, but to leave the allegations as “controverted by a direct denial or avoidance, as the case may require,” undor the rule prescribed by £ 191 of the Code of Procedure.</p>

Before COOKE, J., at Greenville, September, 1874. This was an action by W. B. Charles, trustee, against R. H. Jacobs, administrator. The case, as stated in the brief, is as follows : “This was a complaint to renew a judgment held by the plaintiff above named, as trustee for his mother, Martha A. Charles, and her children, which judgment was originally a confession to William Jacobs, the maternal grandfather of the plaintiff, by one Edward 0. Jacobs.

Before COOKE, J., at Abbeville, April, 1874. Action by Samuel Hunter, appellant, against Wardlaw & Edwards, respondents, to recover the possession of a mare and a mule. On the 8th of March, 1872, the appellant gave to the respondent an agricultural lien, under the Act, for an amount not to exceed $175, with a mortgage of the mare and mule and other chattels as further security.

Before CARPENTER, J., at Edgefield, June Term, 1874. This was an action by Isabella A. Boykin and Elizabeth Brown against John B. Watts.

<p>Where, in October, 1861, an administrator, by leave of the Ordinary, sold the personal estate of his intestate on credit, secured by notes payable in one, two and three years, with interest payable annually, and in stating his account it was assumed that the contracts were made with reference to payment in Confederate currency; that the principal and interest were paid as they became due, and that the Sealing Act applied to the case: Held, That the amounts should be charged and scaled not as of the date of the sale, but as of the dates when the principal and interest became due.</p> <p>Where an administrator is charged with the amount of the sale bill, he should not, as a general rule, be charged with interest until the end of the year.</p> <p>In stating the account of a deceased administrator on behalf of an administrator de bonis non of his intestate, interest should not be charged during the period that the estate of his intestate was unrepresented; but the liability for interest is not suspended from the time letters of administration de bonis non are sued out until action commenced against the representative of the administrator.</p>

Before MACKEY, J., at Lancaster, July Term, 1874. The brief upon which the appeal was heard fully states the case, and is as follows: Minor Clinton, Esq., who was the executor of the last will of Abram Perry, deceased, died in 1865 testate. Irvin Clinton and K. G. Billings were named as executors in the will of M. Clinton, but the former declined to qualify.

Before MACKEY, J., at Lancaster, July, 1874. Held: nor the balance in the hands of M. Clinton, as executor of A. Perry, ascertained in the lifetime of the executor; but the Referee, B. R. Clyburn, on the reference held in obedience to the order dated June 27th, 1867, herein above referred to, ascertained the same, and in his report on claims, filed July the 10th, 1874, it is…

Before Graham, J., at Charleston, February, 1874. This was an action under the Code to determine which of the .parties was lawfully entitled to the office of corporation counsel of ¡the city of Charleston. R. S. Tharin was the relator and E. B. ••Seabrook the defendant.

Before Mackey, J., at Lancaster, July Term, 1874. This was an action by K. G. Billjngs, late Commissioner in Equity for Lancaster County, against J. S. Williamson, for foreclosure of mortgage of real estate, given to secure the payment of a bond payable to the plaintiff as Commissioner in Equity, his successors in office, attorney, executors, administrators or assigns.

Before CARPENTER, J., at Columbia, May Term, 1874. This was an action by Thomas Withers against Samuel Jenkins to recover the possession of a lot of land in the city of Columbia. Held: that, as the trust was voluntary and the trustee had declined it, there was insufficient proof that the deed had been delivered, and therefore ordered that the complaint be dismissed with costs. The plaintiff appealed.

Before COOKE, J., at Chambers, Greenville, December, 1874. Petition for writ of mandamus by James M. Runion (in his own name) against Joseph P. Latimer, respondent. A rule to show cause was issued and the respondent made a return thereto, and afterwards, by order of the Judge, a supplemenal return.

Before GRAHAM, J., at Charleston, March Term, 1874. This was an action by Isaac Hammond, plaintiff, against the North Eastern Railroad Company, defendant, to recover damages for injuries sustained by the plaintiff on the 16th of May, 1873, on •the road of the defendant. The summons was framed under the first subdivision of Section 152 of the Code of Procedure, and the complaint concluded with a •demand of judgment for the specific sum of money mentioned in the summons.

Before' Townsend, J., at Darltngton, Term, 1873. This was a bill in equity by Nancy F. Dewitt, administratrix, and heir at law of Samuel B. Dewitt, deceased, and others, heirs at law of the intestate, against Margaret Atkinson and others, heirs at law, and Erasmus G. Kirven, administrator de bonis non of William H. Atkinson, deceased, for specific performance of a contract for the sale of land.

Before COOKE, J., at Greenville, September Term, 1874'. This was an action by William Lynch, plaintiff, against John H. Goodwin, defendant, commenced July 10th, 1872, to recover the amount due on a single bill.

Before MOSES, J., at Newberry, August, 1873. Held: as to the Payne land, that the purchase money had all been paid; that the sale to Scurry was bona fide and without notice, and that the owners w'ere entitled to the protection of the same statute above named, and he decreed accordingly.

Before TOWNSEND, J., at Darlington, Term, 1873. Held: inter alia, that the trust in favor of the plaintiffs could be shown by parol; that the defendants could not show by parol any consideration for the mortgage, (as forbearance, for instance, which in this case was attempted to be shown,) except that ^expressed upon its face; that Henry Bischoff & Co. were mortgagees in good faith for…

Before MACKEY, J., at Chester, January Term, 1874. This was a motion to vacate and set aside an attachment and judgment recovered in an action by Smith & Melton against Jerre T. Walker. The summons in the action bore date the 4th December, 1871, and the judgment was entered February 22d, 1872. The complaint set forth two causes of action — one an open account and the other a promissory note.

Before GRAHAM, J., at Charleston, August, 1874. John J. Monaghan died, intestate, on the 20th December, 1872. At the time of his death, he was in possession, as owner, of a lot of land on the South side of George street, in the city of Charleston.

Before COOKE, J., at Greenville, January Term, 1875. This was an action by “G. W. Sullivan for the use of Hewlett Sullivan, holder, plaintiff, against William Hellams, defendant,” as the summons and complaint were entitled. The action was upon a sealed note payable to G. W. Sullivan, the plaintiff, and he alleged in the complaint that the action was brought for the use of Hewlett Sullivan.

Before COOKE, J., at Abbeville, June Term, 1873. This was an indictment against Jerry Coleman for the murder of Adam Hackett. Two witnesses were examined for the prosecution.

Before GRAHAM, J., at Charleston, June, 1874. Action by Ann Creighton and others, plaintiffs, against Loftus C. Clifford and wife and others, defendants. The case was referred to Samuel Lord, Esq., Referee, from whose report it will be fully understood.

Before COOKE, J., at Greenville, April Teem, 1874. This was the same case of Sullivan vs. Thomas reported on first appeal. — 3 S. C., 531. To understand the points made by the present appeal, it is only necessary to publish the notice and grounds of appeal given on the first appeal, dated November 6th, 1871, and the proceedings which took place after the judgment of the Supreme Court on that appeal was returned to the Circuit Court.

Before CARPENTER, J., at Richland, May Term, 1874. This was an action of trespass to try title by M. C. Allen, trustee, plaintiff, against J. Fagan and others, defendants.

Before TOWNSEND, J., at Darlington, November, 1872. This was an action by Henry K. W. Flinn, and Robert L. Hart as administrator of Ellen M. Brown, deceased, plaintiffs, against James M. Brown, Sr., and Joseph T. Brown, defendants, to set aside a deed of trust made by the intestate, Ellen M. Brown, on the 28th day of November, 1870, whereby she conveyed her personal property, consisting of bonds and stocks, to the defendant, James M. Brown, Sr., in trust for the donor for…

Before TOWNSEND, J., at Darlington, October Term, 1874. Held: “ But the concurrence of the wife in her husband’s receipt of a legacy is not a gift.” ' In this case, if the husband claims by way of gift, it was incumbent on him to establish the gift. There is no proof that there was a direct gift of the incomes employed by H. K. W. Flinn in purchasing the land by his wife.

Before Graham, J., at Charleston, March, 1874. This was an action by the Chicora Exporting and Importing Company of South Carolina against Joseph Crews. Held: that purchased as this cotton was by these parties imparted to it a hostile character in relation to the government, it certainly could bear no such impress in its relation to the defendant, who was the fiduciary agent of the plaintiffs.

<p>The questions decided by the Supreme Court on an appeal are conclusively adjudicated so far as the .same case is concerned.</p>

<p>Where, before the adoption of the Code, costs were taxed under a bill in equity, and no appeal was taken: Held, That the Court would not consider the question whether, since the adoption of the Code, costs under the former laws could bo taxed.</p> <p>Where there is no agreement in writing for a different rato of compensation to a Referee, his costs must be taxed at $3 a day, as prescribed by Section 339 of the Code.</p> <p>Where, under a bill to wind up a decedent’s estate, the creditors agree that certain fees of an attorney employed to defend a claim against the estato shall bo payed out of the assets: Held, That they should be taxed to be paid out of the creditors’ shares.</p> <p>Where the statement of facts upon which an execution is founded appears only in the exception itself, the Court cannot consider it. The facts must be made to appear in the mode pointed out by the Code.</p>

Before MOSES, J., at Newberry, June Term, 1874. The points decided by the Court on this appeal from the judgment below will be sufficiently understood from the opinion of the Court.

Before COOKE, J., at Abbeville, April Term, 1874. Action by James A. Clarke, plaintiff, against John I. Swearingen, defendant.

Before COOKE, J., at Abbeville, April Term, 1874. Action by Thomas A. Daniel against Ansel Swearengen and James Swearengen for enticing plaintiff’s servants to leave his employment.

Before COOKE, J., at Chambers, August, 1874. These were three actions commenced in the County of Anderson, each entitled The State of South Carolina, ex relatione Lydia A. M. Van Wyck and others, plaintiffs, against Isabella H. Norris and others, defendants, for settlement of the estate of Andrew 0. Norris, deceased, alleged to be insolvent. The case is sufficiently stated in the opinion of the Court.

Beb’ore REED, J., at Charleston, June Term, 1875. This was an appeal from an order made June 19th, 1875, in the Circuit Court, in the case Ex parte Thomas C. Dunn, Comptroller General of South Carolina, in re Daniel Hand against The Savannah and Charleston Railroad Company and others. A full statement of the facts of the case is contained in the opinion of this Court.

Before COOKE, J., at Greenville, July, 1874. This was an action by William Perry, plaintiff, against the Sullivan Manufacturing Company, defendant, for injunction and account.

<p>An order of a Circuit Judge denying a motion in a civil action on a money demand to change the place of trial, made under Section 149 of the Code of Procedure, is not appealable.</p>

<p>A party cannot be attached for contempt in refusing to obey a writ of mandamus issued by the Supreme Court of the State, where the cause in which it issued has been removed by writ of error to the Supreme Court of the United States, until that Court, by some action of its own, has returned the case to the State Court.</p>

Before TOWNSEND, J., at Darlington, December, 1873. Held: “That a creditor holding a mortgage security is a trustee, to sell not only for the benefit of the mortgagor but for his own use.” The interest in or title to the slaves in this case was a qualified one, and the mortgagee was not the owner.

Before TOWNSEND, J., at Marion, July, 1873. This was a bill in equity, filed in 1869 by A. P. Johnson and wife and others against John E. Harrelson, executor of Hugh H. Harrelson, deceased, and others, for partition of the real estate left by the testator and for account.

Before CARPENTER, J., at Edgefield, March Term, 1874. These were two actions — one of John E. Green and another of James E. Green against the Charlotte, Columbia and Augusta Railroad Company, in which the issues were tried before juries and verdicts given for the plaintiff.

Before CARPENTER, J., at Richland, January Term, 1875. This was au action by John P. Southern and L. D. Childs against John Fisher, as trustee of the Citizens’ Savings Bank of South Carolina, bankrupt.

Before CARPENTER, J., at Kershaw, January Term, 1875. This was an action by Anna M. Conway against William R. Cunningham to enjoin the defendant from selling, under a power of sale contained in a mortgage, the mortgaged property, and to deliver up the mortgage to be canceled.

Before TOWNSEND, J., at Marion, March Term, 1873. This was an action by Barfield Rogers against Mary Ann Rogers to recover the possession of a tract of land.

Before Graham, J., at Orangeburg, Ootober Term, 1874. This was an action by Thomas H. Zimmerman against J. W. Autley and others to subject certain real estate to the claims of the judgment creditors of Rufus P. Autley on the allegation that it was purchased and paid for by him, and that he, with the intent to defraud his creditors, of whom the plaintiff was* one, procured the conveyances to be made to another for the benefit of himself and family, and also to set aside a…

Before MAHER, J., at Aiken, May Term, 1875. The prisoner, Louis Dent, was tried for murder, the indictment alleging the offense to have been committed at Graniteville, in the County of Aiken. He was found guilty, and moved an arrest of judgment. The motion was overruled, and, after sentence, he appealed to this Court.

Before MAHER, J., at Aiken, January Term, 1874. M. Rhodes and R. Red brought separate actions ex delicto before a Trial Justice against the Wilmington, Columbia and Augusta Railroad Company. The defendant demurred in each case to the jurisdiction of the Court. The Trial Justice overruled' the demurrer and gave judgment for the plaintiff.

This was a petition to the Supreme Court, entitled “ The State of South Carolina, ox relatione Henry C. Corwin, against Thomas C. Dunn, Comptroller General of the State of South Carolina,” praying for a writ of mandamus to issue to the petitioner four warrants pursuant to the provisions of the Act of March, 1875, “to provide for the settlement and redemption of certain claims against the State,” in payment of a certain pay certificate owned by the petitioner which had been…

Before MAHER, J., at Barnwell, August Term, 1874. Action by Robert Smalls, plaintiff, against F. E. Wilder, defendant, on a money demand. The complaint, which was verified, set forth .a copy of a due bill alleged to have been given by the defendant to the plaintiff for-$700, on which $300 had been paid, and demanded judgment for $400, the balance due thereon, and interest and costs.

Before TOWNSEND, J., at Marion, November Term, 1874. This was an action by the survivors of Gilliland, Howell & Co. against E. H. Gasque. Held: and notes sued on were in the hands of Col. N. Phillips, a lawyer, at that time, of Marion, S. C. He held, in the aggregate, more than one-half-the claims against the assigned estate, and had C. D. Evans appointed agent of creditors, and he drew up a paper by which the terms of the assignment were accepted and a release was executed…

Before ORR, J., at Picicens, November Term, 1873. This was an action by Susan Trotter, plaintiff, against W. W. Robinson, defendant, to recover the possession of real estate. The plaintiff was the appellant. The brief prepared for this Court contained an agreed statement of facts, the grounds of appeal and a copy of a power of attorney referred to in the statement of facts, but nowhere was it stated in the brief what was the nature of the issue submitted to the jury.

Before CARPENTER, J., at Edgefield, March Term, 1874. Indictment against Henry Kilcrease for murder. The witnesses on the part of the State, who testified before the grand jury which found the bill of indictment against the prisoner, were not sworn in open Court before testifying, but were sworn by the grand jury, and on this ground a motion was made on behalf of the prisoner, before he put in his plea, to quash the indictment.

Before GRAHAM, J., at Charleston, March, 1874. This was an action by Cuffee McKelvay against the South Carolina Railroad Company to recover $35.37 due the plaintiff for wages as a mechanic. The defense was that the money had been attached in defendant’s hands in an action of Elisha Cannon against plaintiff.

This was an action by Wolf, Mayer & Co., plaintiffs, against C. Hamberg, defendant, wherein the plaintiffs, before the amendment of the Code of the 23d November, 1875, had entered judgment against the defendant before the Clerk of the Court.

Before REED, J., at Charleston, June Term, 1875. This was an action by Henry Heyivard and W. C. Bee as executors of W. C. Heyward, deceased, against Jane Ann Walker, F. Richards and E. W. Edgerton. The ease was referred to H. E. Young, Esq., who submitted a 'report as follows: This case was referred to me, by order of 24th February, 1873, to inquire into and report upon the law and facts of the same.

Before MAHER, J., at Aiken, May, 1875. Action by N. G. W. Walker and Charles Peckman against Frank Veno and Peter James to recover the possession of a tract of land. The facts were as follows: John Veno was seized in fee simple at the time of his death of the tract of land the subject matter of action. He died intestate in October, 1848, leaving as his heirs at law his widow and four infant children.

Before SHA.W, J., at Williamsburg, March Term, 1875. Held: without question, that nothing shall be intended to be without the jurisdiction of a superior Court but that which specially appears to be so; and nothing shall be intended to be within the jurisdiction of an inferior Court but that which is expressly alleged. — Peacock, vs. Bell, 1 Saun.

Before Mackey, J., at Richland, August, 1875. This was a petition by N. G. Parker to the Hon. Thomas J. Mackey, Judge of the Fifth Circuit, stating that the petitioner was illegally detained in custody by the Sheriff of Richland County, and praying for a writ of habeas eorpus. The writ was issued at Columbia on the 13th of August, 1875, and on the 16th of the same month, at the same place, the return was made and the petitioner discharged from custody.

Before MAHER, J., at Barnwell, September Term, 1874. This was an action by Eliza G. Sanders, plaintiff, against Henry Hartzog, defendant, to recover the possession of a lot of land in the town of Bamberg. The case was as follows: Thomas J. Counts, by his deed of release bearing date the 17th September and recorded the 21st November, 1867, conveyed the lot in question, fully describing .the same therein by metes and bounds, to Burrell Sanders.

Before REED, J., at Charleston, March Term, 1875. Action by B. H. Hutton, surviving partner of the late firm of Benkard & Hutton, of the city of New York, against Edgerton & Richards, of Charleston, on a promissory note for $527.48, dated 1st January, 1868, and payable, with interest, at six months. Defense that the note was without consideration except as to $171 admitted to be due with interest.

Before COOKE, J., at , March Term, 1874. Action by R. H. Jacobs, as administrator de bonis non, with the will annexed, of E. O. Jacobs, deceased, against John L. Woodside and Thomas Goldsmith. The case is as follows : The action w'as on a sealed note for $4,408.50, dated October 20, 1860, payable twelve months after date to E. 0. Jacobs, executor, and signed by John Charles, John L. Woodside and Thomas Goldsmith.