Volume 7 — South Carolina Reports

Action by the Homestead Building and Loan Association against Joseph A. Enslow, the Citizens’ Building and Loan Association of Charleston, and others. The case was referred to Thomas Y. Simons, Esq., as Referee, in whose report the facts are fully stated.

Indictment against Dyer McJunkin for murder, committed in November, 1874.

<p>This was an action by Charles F. Levy and Laura L., his wife, and others against the executors of Jacob Barrett, deceased, and others, to obtain, amongst other things, the judgment of the Court as to the construction of the will of the testator upon the claim of the plaintiff, Laura L. Levy, one of the daughters of the testator.</p> <p>The testator, when his will and codicil were made, had eight children, his daughter, Laura L. Levy, and his son, Isaac Barrett, being two of them. Isaac died in the lifetime of his father. The others survived him, and they and their children, with the husbands of such of the females as were married, were parties to the action either as plaintiffs or defendants.</p> <p>The will and codicil are as follows:</p> <p>WILL.</p> <p>“In the name of God, amen. I, Jacob Barrett, of Charleston, State of South Carolina, do make and declare this to be my last will and testament. I give, devise and bequeath to my daughter Laura my three (3) houses and lots at corner of Anson and Hasel streets, and on Anson street, all being one lot; álso the brick house on State street, corner of Unity alley; also the sum of $5,000, being amount already received by said Laura and her husband for insurance of a building on Broad street, in Charleston, and also the lot on which the said building stood; the property given to my said daughter Laura to be charged against her in the distribution of my estate at the sum of eighteen thousand five hundred dollars ($18,500).</p> <p>“I give, devise and bequeath to my daughter Sarah the house and lot on East Bay, formerly known as the French Coffee House, to be charged against my daughter Sarah in the distribution of my estate at the sum of twenty-five thousand dollars ($25,000).</p> <p>“I give, devise and bequeath to my daughter Pauline my brick house and lot in New York, situated on Thirty-sixth street, between Sixth and Seventh avenues, to be charged against my daughter Pauline in the distribution of my estate at the sum of sixteen thousand dollars ($16,000).</p> <p>“ I give, devise and bequeath to my daughter Eugenia Amanda my two houses and lots in Brooklyn, New York, situated in Second Place, to be charged against her in the distribution of my estate at the sum of twenty thousand dollars ($20,000).</p> <p>“I give, devise and bequeath to my daughter Mary Beatrice my other two houses in Brooklyn, situated in Second Place, also to be charged against my daughter Mary Beatrice in the distribution of my estate at the sum of twenty thousand dollars ($20,000).</p> <p>“And whereas, from special reasons, my son Isaac will not receive any portion of my estate, and'his sister Laura having always extended to him much attention and kindness, I believe that it will be gratifying to him that I should make some extra provision for my daughter Laura. In consideration of such kindness and attentions, I hereby give, devise and bequeath to my daughter Laura the same portion of my estate as would have been bequeathed to my son Isaac, had 'this exception not been made. And I hereby authorize my executors to this my last will and testament, immediately after my death, to give my brick house and lot on East Bay, and known as one of the Prioleau Range, to my daughter Laura, in consideration of her kindness to her brother Isaac, and to be charged against my daughter Laura in the final distribution of my estate out of the portions which would have been bequeathed to my son Isaac at the sum of fifteen thousand dollars ($15,000). And it is my will and desire that, in consideration of this bequest, my daughter Laura will continue to extend to her brother the samé kindness; to give him a comfortable support; pay all his expenses of clothing, boarding and lodging, doctor’s bills, etc., while he lives single and with her; but should my son Isaac marry with the consent and approval of his mother, then his wife and children to receive for their support and maintenance the same portion of the income of my estate as my other children, and ten thousand dollars ($10,000) to be appropriated to my daughter Laura for the benefit of herself and her children. Should my son die and leave no child or children, then his wife to receive the interest of $10,000 for her support and maintenance during her widowhood, and the remaining interest of this portion to go to my daughter Laura,for the benefit of herself and her children.</p> <p>“I give, devise and bequeath to my- son Jacob my brick house, Vendue Range; also my house and lot on East Bay corner of Unity alley, and my brick house on East Bay, formerly occupied by Hyams, to be charged against my son in the distribution of my estate at the sum of fourteen thousand dollars ($14,000).</p> <p>“I give, devise and bequeath to my son Solomon, Star Plantation, in Washington County, Georgia; also my house and lot in the town in Linton, Georgia, and a tract of land in Glynn County, also in the State of Georgia, and known as Carbright, to be charged against my son Solomon in the distribution of my estate at the sum of six thousand dollars ($6,000).-</p> <p>“ I give, devise and bequeath to my beloved wife Hetty Barrett the sum of four thousand dollars per annum, to be paid to her by my executors in such monthly or quarterly instalments as may be best suited to her wants, as it is my wish to fully secure to my beloved wife a maintenance in accordance with the manner in which she has lived during my own lifetime. I desire that the amount herein set apart for her maintenance and support be paid to her out of a sum necessary to secure to her that amount. It is my will and desire, that upon the death of my wife, the property devoted to her uses during her lifetime shall revert back to my estate, and be distributable under the provisions of my will respecting the residue of my estate. It is further my will that my executors, hereafter named, in this my will, shall set apart out of my estate the sum of fifty thousand dollars ($50,000) of my best securities, and in like manner invest all the accruing interest on the same in good, safe securities, and its increases during the life of rpy wife; and she shall be fully authorized and empowered, by her last will and testament, to dispose of the same fund at her discretion, giving the same and all of its accumulations to one or more of my children or grandchildren, to the exclusion of any or all of the others, and in such shares as she may think proper. It is further my will and desire that the property given to my children under this my will, whether it be property specially devised or a part of the residue, shall be held by them for and during their natural lives respectively; the property devised to each of my daughters to be received by her, and held by her, for her sole and exclusive use and behoof, free from all debts and encumbrances, contracts or engagements of their present or any future husbands; and after the death of any of my children, the income of the payments devised to such child or children shall be applied to such child or children surviving them for their maintenance and support. It is my further will and desire that should any of my children depart this life leaving no child or children surviving him or her, or should the child or children left surviving by any of my children departing this life shall so depart this life before attaining the age of twenty-one (21) years or marriage, the property devised to such child or children shall revert to' my estate, and shall become devisable as a part of my estate, and subject to the same conditions as the residue of my estate. It is my will and desire that my executors shall set apart, out of my estate, the sum of ten thousand dollars ($10,000) of the State of Georgia, city of Columbus, bonds of the longest date, for the following purposes, viz.: The sum of five thousand dollars ($5,000) I devise and bequeath to the congregation, Hasel street, to be held by the trustees of that synagogue, and the interest of said five thousand dollars ($5,000) annually to go towards the payment of the minister of said congregation; I devise and bequeath the other five thousand dollars ($5,000) to the Hebrew Orphan Society, Broad street, Court House Square, to be held by the trustees of that institute, and the interest of that amount to be used by said trustees in furthering the objects of that society. All the rest and residue of my estate, both real and personal, of whatsoever character and kind, I leave in trust to my executors, hereafter named in this my last will and testament, for the benefit of my children and grandchildren; the interest of all such property to be invested in safe securities, and kept together until twenty (20) years after my death; then, at that time, it is my will and desire that the final division of my estate shall take place, according to the tenor and meaning of this my last will, among my surviving children, the child or children of either of my children who may have departed this life previous to this distribution standing in the place of such deceased parent. I hereby appoint George W. Williams, H. H. DeLeon, Charles T. Lowndes, W. B. Smith, W. C. Bee, executors of this my last will.</p> <p>“ In witness whereof I have hereto set my hand and seal this 21st day of September, 1870.”</p> <p>CODICIL.</p> <p>“ I, Jacob Barrett, do hereby declare this to be a codicil to my last will and testament. I do hereby revoke so much of my within contained will as devises and bequeaths to my daughter Laura my brick house and lot on East Bay, and known as one of the Prioleau Range, and direct the same to be held as therein directed, according to the residue of my estate.</p> <p>“ I do further direct that the final division of my estate shall take place among my surviving children at the period of ten years after my death, instead of twenty years, as specified in my said will, and that at such time the amounts devised to my children be first equalized and the residue divided as therein directed. I do further direct that the portions of my estate left to all of my children shall be subject to the following trusts, to wit: In trust to them for life, and after their death to such children as they may leave surviving, the child or children of any deceased child to take such share as his, her or their parent would have taken if alive; and in case there should be no such child or children, grand-child or grand-children, then the same to revert to my estate and become devisable as a part of the residue of my estate, hereby revoking such portions of my will as may be inconsistent with this codicil, but confirming the said will in all other respects.</p> <p>“Witness my hand and seal this 10th day of January, Anno Domini 1871.”</p> <p>The case was referred to G. Lamb Buist, Esq., who made the following report:</p> <p>This case was referred to me on the 11th day of November, 1873, by the Honorable R. F. Graham, Judge of the First Circuit, by virtue of an order in the words following, to wit: “The decree hitherto made in this cause having been set aside, and the cause remanded for further proceeding, on motion of R. S. Duryea, attorney for the infant defendants, and on hearing J. Barrett Cohen and James B. Campbell, (attorneys of Charles F. Levy and wife, Joseph Cohen and wife, Bushrod F. Rice and wife, Michael W. Larendon and wife, Solomon J. Barrett and wife and Jacob Barrett,) and Porter & Conner, (attorneys of Daniel Dishon and wife,) and R. S. Duryea, (attorney of Mrs. H. J. Barrett,) and Simons & Seigling, (attorneys of the executors of Jacob Barrett,) it is ordered that this case be referred to G. Lamb Buist, Esq., as Special Referee, to take testimony and report the same, and more especially to take testimony as to the situation of the estate and the circumstances affecting the various parties, particularly the infants, entitled under the will; also as to the condition of the families of the children of the late Jacob Barrett, and the necessity or propriety of allowing maintenance; also the propriety of allowing the interest for the nurture, support and education of the families of the said the children of the said Jacob Barrett; also to take testimony on any other matter arising under the pleadings which may be brought before him, with leave to report any special matter.”</p> <p>I have been attended by all the solicitors in the case, and taken at several references the testimony submitted with this report.</p> <p>The other question presented for my consideration is as to the construction to be placed on the will of the testator as to the claim of Mrs. Laura Levy, one of the daughters of the testator.</p> <p>It is contended on her behalf that she is entitled to two-eighths part of the estate of the testator, being her own share or portion and that of her brother Isaac.</p> <p>The will provides as follows: “And whereas, from special reasons, my son Isaac will not receive any portion of my estate, and his sister Laura having always extended to him much attention and kindness I believe that it will be gratifying to him that I should make some extra provision for iny daughter Laura; in consideration of such kindness and attention I hereby give, devise and bequeath to my daughter Laura the same portion of my estate as would have been bequeathed to my son Isaac had this exception not been made. And I hereby authorize my executors to this my last will and testament, immediately after my death, to give my brick house and lot on East Bay, and known as one of the Prioleau Range, to my daughter Laura in consideration of her kindness to her brother Isaac, and to be charged against my daughter in the final distribution of my estate, out of the portion which would have been bequeathed to my son Isaac, at the sum of §15,000; and it is my will and desire that in consideration of this bequest my daughter Laura will continue to extend to her brother the same kindness, to give him a comfortable support, pay all his expenses of clothing, boarding and lodging, doctors’ bills, etc., while he lives single; but should my son Isaac marry, with'the consent and approval of his mother, then his wife and children to receive for their support and maintenance the same portion of the income of my estate as my other children, and §10,000 to be appropriated to my daughter Laura, for the benefit of herself and her children. Should my son die and leave no child or children, then his wife to receive the interest of $10,000 for her support and maintenance during her widowhood, and the remaining interest of this portion to go to my daughter Laura, for the benefit of herself and her children.”</p> <p>The testator in his will further directs that the final division of his estate shall take place, according to the tenor and meaning of this his last will, among his surviving children, etc., and in his codicil he provides as follows, to wit: “I do hereby revoke so much of my within contained will as devises and bequeaths to my daughter Laura my brick house and lot on East Bay, and known as one of the Prioleau Range, and direct the same to be held as therein directed according to the residue of my estate.” The will is dated 21st September, 1870; the codicil 10th January, 1871. And Isaac Barrett died prior to testator on September 9th, 1871, unmarried, and without issue.</p> <p>I have given this question the most careful consideration, with a view7 to the determination of the proper construction to be placed on the testator’s will; and to arrive at a proper conclusion, it is necessary to consider, first, the interest to which Mrs. Levy would be entitled had Mr. Isaac Barrett survived his father; and, secondly, whether, under the terms of the will, in consequence of his decease, she no longer can lay claim to his share or portion.</p> <p>And, first, I am of opinion that had Isaac survived his father and remained unmarried, Mrs. Levy would have received, in the language of the will, “the same portion of my estate as would have been bequeathed to my son Isaac had this exception not been .made,” which exception was made in the following words: “And whereas, from special reasons, my son Isaac will not receive any portion of my estate, and his sister Laura having extended to him much attention and kindness,” etc. It is a reasonable and natural conclusion that if testator had no special reasons or made no exception to Isaac, his share would have been the same as that of the other children, and this results from the provision that, in the event of the marriage of Isaac, his wife and children should receive for their support and maintenance the same portion of the income of his estate as his other children, and $10,000 to be appropriated to his daughter Laura, for the benefit of herself and children ; and should his son die and leave no children, that his wife should receive the interest of $10,000 for her support and maintenance during her widowhood, and the remaining interest of this portion should go to his daughter Laura, for the benefit of herself and her children. In the codicil, the testator only revokes so much of his will as devises and bequeaths to Mrs. Levy his house and lot on East Bay, and the same goes into his residuary estate. He further changes the period of distribution from twenty to ten years, and recites trusts upon which these are to be held.</p> <p>I cannot perceive in the will wherein Isaac Barrett was named as a legatee of testator; for special reasons he was excluded ; and for kindness already extended, the share he would have received but for the special reasons was bequeathed to Mrs. Levy, subject to certain modifications, should the contingency arise of marriage of Isaac, with the consent and approval of his mother.</p> <p>Having construed the intention of testator in his will on this point to be:</p> <p>1. That for special reasons Isaac was to receive no share;</p> <p>2. That to his sister Laura there was devised his share or portion to which the other children were entitled; and,</p> <p>3. That the contingency of his marriage did not arise to vary the nature of Mrs. Levy’s interest;</p> <p>I am of the opinion that the decease of Isaac prior to testator has no effect upon Mrs. Levy’s interest to the one-eighth share, and she is, in my judgment, entitled under the terms of the will to the same.</p> <p>Some of the parties excepted to so much of the report as holds that Mrs. Laura L. Levy is entitled to two-eighths under the will of Mr. Jacob Barrett, instead of one-seventh, and that each of the other children is entitled to but one-eighth, instead of one-seventh, on the following grounds:</p> <p>1. Because, even if the said Referee had power to report on a question of law, his construction of the said will is incorrect, inasmuch as Mr. Barrett made no devise, bequest or gift to his son Isaac except the Prioleau Range property, which gift was revoked by his codicil.'</p> <p>2. Because Isaac having died before his father, and subsequently to the making of the will and codicil, all legacies which might have been given to him lapsed, and if any person was to take what he would have taken, — to use the words of the will, “had this exception not been made,” — it could only be under such condition of things as must have existed had he been in a position to have a portion of the estate bequeathed to him.</p> <p>3. Because if Isaac had lived and remained unmarried, Laura L. Levy would have, taken nothing under the will except the Prioleau Range property, which was revoked by the godicil.</p> <p>4. Because the words used in the will under Avhich it is claimed that Laura L. Levy is entitled to two shares, except so far as the Prioleau Range property is concerned, would, if Isaac were alive and unmarried, be void for uncertainty.</p> <p>5. Because after the purchase of the Wentworth street house for Mrs. Levy by Mr. Barrett, which title was placed in evidence by Mrs. Levy, and prior to the death of Isaac, the testator, by his codicil, revoked the gift of the Prioleau Range property, and declared that the property left to all of his children should be divided as directed under his will, to wit, among his surviving children.</p> <p>6. Because a will speaks from the death of a testator, and at the time of the death of Mr. Jacob Barrett, Isaac was dead and could have taken no portion.</p> <p>7. Because, under the provisions of the will and codicil, Laura Avas entitled to no more than an equal share with the other surviving children of the testator.</p> <p>The decree of His Honor is as follows:</p> <p>Reed, J. This case was heard upon the report of the Referee, and exceptions to the same on the part of all the plaintiffs, excepting only Charles F. Levy and Laura L., his wife, and all of the infant defendants, excepting only the children of Mrs. Laura L. Levy.</p> <p>The questions raised were, first, can any portion of the income of the estate, which is large, be applied to the education and maintenance of the children of the testator and their issue, who are the ultimate devisees, and who are shown to be in extremely destitute circumstances prior to the period fixed for the final distribution of the estate, which, under the codicil, is not to be made until ten years after the death of the testator. The Referee has decided this question in the affirmative, and recommends that five thousand dollars of the income be applied annually to their use.</p> <p>To this finding there is no exception, and, concurring in the justice and necessity of the application, the report of the Referee on this subject is confirmed.</p> <p>The other question, and the one on which the report of the Referee is excepted to, is what portion of the estate Mrs. Laura L. Levy is entitled to under the will of her father, the testator?</p> <p>If the Referee is correct in his conclusions, she is entitled to two-eighths of the estate, and each of her brothers and sisters to one-eighth ; that is to say, she would take for life, and her children after her death, double the estate that would be taken by each of her brothers and sisters. If, on the other hand, the Referee is wrong, then Laura (Mrs. Levy) would take the same estate under her father’s will as each of her brothers and sisters; that is to say, each would take one-seventh under the limitations of the will.</p> <p>The testator left surviving him his widow, Mrs. Hetty J. Barrett, and seven children, to wit: Laura (Mrs. Levy,) Sarah (Mrs. Joseph Cohen,) Pauline (Mrs. Dishon,) Eugenia Amanda (Mrs. Rice,) Mary Beatrice (Mrs. Larendon,) and Jacob Barrett and Solomon Barrett.</p> <p>Isaac Barrett died before his father.</p> <p>The scheme of the will, aside from the liberal provisions made for the wife, a part of which was in any event to fall into the residue, and the remaining portion also into the residue, if not disposed of by will in her lifetime, seems to have been to equalize his children, beginning by dividing among them so much of the estate as it was intended should be possessed and enjoyed by them immediately after the testator’s death, into eight specific shares, of unequal value, postponing tbe possession of tbe residue, which was much the largest portion, until twenty years after the testator’s death, according to the will, which period was altered by the codicil to ten years, which said codicil also revoked the devise, of the Prioleau Range property, and directed that the same should be held as a portion of the residuary estate.</p> <p>In these specific and ultimate divisions does Mrs. Levy take one share in her own right, or is she entitled to two-eighths, one-eighth in her own right, and one-eighth in the right of her brother Isaac ?</p> <p>The language used to express the will of the testator on this sub-' ject of Isaac’s share is greatly confused, and, if it can be construed at all, is susceptible of several constructions of about equal probability.</p> <p>The theory adopted by the Referee has been elaborately and ably urged by the counsel representing Mrs. Levy. On the other hand, counsel representing the remaining devisees and legatees insist that such a construction is utterly fallacious, and that the whole tenor of the will necessarily limits Mrs. Levy to her own seventh of the estate, or else its terms in regard to this*-matter are incomprehensible and must be rejected as void for uncertainty. I concur with the counsel who have reached the last named results, but I have arrived at my conclusions by an entirely different course of reasoning.</p> <p>According to my view, it was the intention of the testator to make specific allotments of certain property to each of his children, excepting Isaac, to be enjoyed by them immediately after his decease, and to give the remainder of his estate to his executors, in trust, for tfie use of his children whilst they lived, but to be divided, with its accumulations, among the survivors of them twenty years after his decease.</p> <p>For reasons that were known to himself, he excepts his son Isaac from this specific division; indeed he did not regard himself as disposing of any other property directly to his children, and gave the specific property that would have been given to him, “ had this exception not been made,” to his sister Laura, believing it would be gratifying to him, (Isaac,) and in consideration of the kindness and attention rendered and to be rendered to him by his sister. That portion was the brick house and lot on East Bay, known asoné of the Prioleau Range, and charged in the final distribution of his estate out of the portion which would have been bequeathed to his son Isaac at the sum of fifteen thousand dollars; and this was given, not only in consideration of past kindness and attention, but also in trust, that her good offices should be continued towards her brother whilst he remained single and lived with her; but, if he married, then his family, who would become his protectors, was to receive the same “ income ” (portion) of the estate as testator’s other children, including, as he supposed and intended, the Prioleau Range property; and, in that event, Laura was to be relieved of her trust, and to receive ten thousand dollars for all services rendered to her brother.</p> <p>Isaac never married, and died before his father, the testator.</p> <p>The will was executed on the 21st September, 1870, and, after-wards, in December of the same year, testator purchased for his daughter Laura, at a cash cost of eight thousand five hundred dollars, a house and lot in Wentworth ^street, the conveyance of which was dated December 1st, and recorded on the 20th December.</p> <p>On January 10,1871, but twelve days after the deed was recorded, testator made a codicil to his will, revoking the devise of the Prioleau Range property. The value of the house and lot on Wentworth street was thus taken out of the residuary estate, and the Prioleau Range property added to the residue, for the double purpose, as I take it, of increasing the residue for ultimate division among his surviving children, and for the purpose of fixing and paying to Laura a cash compensation for services rendered and to be rendered to her brother Isaac, or, as the testator calls it, “ kindness and attention.”</p> <p>If this view be correct, it follows that Mrs. Levy is limited to an equal share with her brothers and sisters in the final settlement of the estate, and cannot take two-eighths, as contended for. Is it correct ? Taking these words; “ for special reasons, my son Isaac will not receive any portion of my estate,” found at the beginning of the clause of the will on this subject, as also some isolated expressions of similar import in the body of the clause, the construction might seem strained; but, upon an examination of the whole instrument, the number and condition of testator’s family, his object in disposing of his property by will, as illustrated by his vesting the bulk of it in the hands of certain eminent bankers a§ trustees, for a long term of years; the reasons, as gathered from the paper itself, which may be supposed to have actuated him in its execution, the terms of the codicil, whereby it is directed that a final division of his estate among his “surviving children” shall be made at the end of ten, instead of twenty years, “ the amounts devised ” to his children, being “first equalized;” the fact that Isaac was one of his children, and, if he had survived to that time, would have taken his share of the residue, either in his own right or as cestui que trust of his sister Laura, render this construction, as I think, not only the most reasonable that can be suggested, but in perfect accord with the intention of the testator.</p> <p>If I am right, and, whether right or not, it resolves the very grave doubts that exist in favor of the justice and equity of the case ; and if wrong, then I think the paper cannot be intelligently construed, so far as any interest, either in or through Isaac, is concerned, and is therefore void for uncertainty.</p> <p>Either view will accomplish what nature, as well as his declaration, suggests testator must have intended to do for his children— put them on an equality.-</p> <p>It is therefore ordered, adjudged and decreed that so much of the report of the Referee as sets out that Mrs. Laura L- Levy is entitled to two-eighths in the final distribution of the estate of the testator, Jacob Barrett, is overruled; and it is further ordered, adjudged and decreed that the said Laura L. Levy is only entitled on such final settlement to take one child’s part of the residue, and no more.</p> <p>It is further ordered, adjudged aud decreed that the executors of Jacob Barrett do pay the children of the said Jacob Barrett, the plaintiffs in this cause, the sum of $5,000 per annum, to be equally divided among them, from the date of the death of the said Jacob Barrett, and that they continue to pay the same amount annually in the manner above directed, until the period of final distribution of the estate, and that said amount be'applied to the support and maintenance of the plaintiffs and of their children.</p> <p>It is further ordered that the costs of these proceedings be paid by the estate.</p> <p>It is further ordered that any party to these proceedings have leave to apply, at the foot of this decree, for such further .order or decree as may be necessary in the premises.</p> <p>The plaintiffs, Charles F. Levy and Laura L., his wife, for themselves and in behalf of their children, appealed from so much of the decree as sustained the exceptions to the report.</p>

<p>Where the object of an executed contract for the purchase of land has been defeated by the purchaser's eviction by paramount title from part of the land, equity will rescind the contract, though there was no fraud, but only mistake, on the part of the vendor.</p> <p>In decreeing the rescission, equity will require the purchaser to account for the rents and profits of the part from which there was no eviction, during the time he used and occupied the same, and also for waste committed thereon by him.</p>

Action by J. W. Tillman, plaintiff, against W. W. Walkup, defendant, on a sealed note for $130; dated January 29th, 1870, given by the defendant to B. J. Cureton, and assigned by him on February 21st, 1870, to the plaintiff.

Indictment against Ed. Watson, alias John F. McCord, for grand larceny. The case stated in the brief for this Court is as follows: This was an indictment for grand larceny. On his arraignment, the defendant pleaded not guilty. The Solicitor introduced evidence lo the effect that some time in January, 1875, the defendant met one James Downs in the city of Greenville, and asked him if he did not wish to buy some whiskey.

Indictment against Edward Watson, alias John F. McCord, for grand larceny. The case is stated in the brief, which is as follows'; This was an indictment for grand larceny, and the defendant, on his arraignment, pleaded not guilty. The State introduced evidence to show that on the 20th day of January, 1875, the defendant met one B. G. Hamly, in the city of Greenville, and asked him if he wanted to buy some whiskey. Hamly said that he did, and would get something to put it in.

<p>An agricultural lien not recorded within thirty days, though afterwards recorded, is good between the parties, and may be enforced by warrant issued by the Clerk.</p>

F. Campbell brought an action by summons and complaint against the County of Charleston to recover the sum of $7,594.96, alleged to be due by the defendant to the plaintiff, on certain claims which he held against the County. C. W. Buttz, Esq., Solicitor of the First Circuit, appeared for the defendant and filed an answer on its behalf. The case was placed on Docket No. 1, and during the present term of the Court it came on for trial.

This was an action by Henry Jacobs and others as County Commissioners of Fairfield County, and W. J. Crawford as School Commissioner of the same County, plaintiffs, against the Winnsboro National Bank, defendant.

Action by Mary S. Witsell, plaintiff, against the City Council of Charleston and George W. Williams & Co., defendants. The case was referred to J. E. Burke, Esq., as Referee, and the facts are fully stated in his report, which is as follows: This case was referred to me to inquire as to the matters stated in the pleadings, and to report upon all the issues of law and fact involved in the case, with leave to report any special matter.

This was an action by James- E. Bass, as administrator of Charles Lucas, deceased, and others, against George W. Lucas, Benjamin W. Edwards and others, defendants, to subject real estate of which the defendant Edwards had become the owner to certain alleged trusts in favor of the said Charles Lucas.

After the decision of the Supreme Court at April Term, 1870, (reported 2 S. C., 64,) His Honor Judge Thomas, on October 11th, 1870, made the following order: “It is ordered that upon the payment into Court of the sum of $50, to be applied, under the decree of the Supreme Court, to the claim of Chafee, St. Amand & Croft, and the further payment by the defendants of their own costs already incurred in this case, the bill be dismissed, unless within thirty days from the date of…

This was an action by Churchill B. Jones against Sarah R. Massey and others, for partition. Th'e case was as follows: Elizabeth Massey made her last will and testament bearing date the 16th day of December, 1858, and shortly thereafter departed this life, leaving the same of force. By the first and third clauses thereof, she devised and bequeathed as follows : 1.

This was an action by Charles Holley and others, plaintiffs, against George W. Walker and others, defendants, for partition of a tract of land. The defendant, Walker, answered the complaint and denied all the allegations thereof.

Action by W. K. Ryan, plaintiff, against W. B. Pettigrew, defendant, to recover the possession of a tract of 162 acres of land, on which defendant resided, lying in Darlington County. The defense alleged in the answer was that the plaintiff purchased the land under an agreement by which he was to hold it as a homestead for the use and benefit of the defendant.

Action by Lorenzo D. Abrams and another, plaintiffs, against James P. Moseley and others, defendants, for partition of a tract of land lying in Greenville County.

This was an appeal from the decree of the Probate Judge of Orangeburg County in a case of D. S. Twitty and J. F. Eisenmann, petitioners, against Peter M. Houser, administrator of John A. Keitt, deceased, David Houser and E. H. Houser, defendants.

This was an action by William S. Rowe against the Greenville and Columbia Railroad Company for negligently killing the plaintiff’s cow by a passing train of the defendant. .The action was brought before a Trial Justice, and the complaint alleged that the cow casually and without fault of the plaintiff strayed upon the track and ground occupied by the railroad of the defendant in the city of Columbia.

On the first day of February, 1867, William Choice, the respondent, recovered judgment in the Court of Common Pleas for Green-ville County against John Charles, the appellant. Subsequently one A. M. Hamilton also recovered judgment in the same Court against Charles, and under this latter judgment the “Home Place’ of the appellant, “including dwelling house, out-house and appurtenances,” was assignee) to him as a homestead, exempt from levy and sale under execution.

These were two separate actions entitled: 1. W. D. Gillison vs. Savannah and Charleston Railroad Company; 2. T. H. Gregorie vs. The same.

This was an action by W. M. Grier, as executor of R. C. Grier, deceased, against A. T. Wallace, on a joint and several sealed note for $632.50, given by Robert Whitesides and the defendant to the plaintiff’s testator, bearing date the eighth day of January, 1858, and payable one day after date. The defense alleged in the answer was that the note was given for the purchase money of slaves, and that they were unsound at the time of the purchase.

The cases stated in the caption of the report of the Referee, herein contained, and also in the caption of the opinion of the Court, were entitled (1) William McCelvey vs. W. D. Mars, as assignee; (2) William McCelvey vs. Thomas Thomson and W. H. Par Jeer; and (3) Ex parte William McCelvey, in re William McCelvey vs. A. P. Conner and others.

This action was commenced by A. P. Wylie on the day of November, 1874, against David Lyle, as administrator of estate of W. H. Gill, deceased, W. Delaney Gill, Jane D. Gill and Susan Gill, children and minor heirs at law of W. H. Gill; A. E. Wylie, as purchaser and assignee of the rights of Margaret H. Bates, who was the wife of W. H. Gill; and Thomas Shannon, J. R. Kennedy and S. W. Mobley, judgment creditors of W. H. Gill, holding liens.

This was an action by Smith & Melton, against Alfred Moore to recover damages for an alleged breach of an implied warranty, in a sale of thirty-two bales of cotton by the defendant to the plaintiffs, that such cotton was good merchantable cotton.

This was an action by Francis Cherry for malicious prosecution in a trial for “petty larceny” before a Trial Justice, in which the plaintiff had been acquitted. At the trial, the Trial Justice before whom the prosecution for petty larceny had been had, one Bolger and the plaintiff himself were examined as witnesses for the plaintiff.

This was an action by John H. McElwee against Thomas F. Jeffreys. The questions of law involved in the case sufficiently appear from the facts stated in the decree of the Circuit Court and the opinion of this Court.

This was an action by the State of South Carojina and S. W. Melton, Attorney General of said State, against Niles G. Parker, late State Treasurer, the object of which was to recover the sum of $25,000 of the fund of the State alleged to have been embezzled and fraudulently applied and converted by the defendant to his own use. The complaint stated the facts upon which the claim was founded, and it was verified by the affidavit of the plaintiff, S. W. Melton.

This was an application to the Circuit Court for a writ of mandamus, and was entitled The State of South Carolina, ex relatione James… Held: conducted and determined as is now provided by law for the holding of elections for State and County officers,” and by Section 3 it is provided: “ That upon the canvassing of the votes given at such election, the Commissioners of Election shall certify to the Board of County Commissioners for said County the number of votes given for…

This was a petition by Samuel McGee and a number of other laborers against the Piedmont Manufacturing Company to enforce payment of a mechanic’s lien. The petition alleged, that the petitioners, within ninety days after the termination of the contract under which their labor was performed, filed a notice of their lien as required by the statute ; the petition also referred to a schedule annexed thereto in which the respective claims of the petitioners were stated.

<p>“A,” a bank in Charleston, South Carolina, wishing to obtain credit for its over drafts on its correspondent, “B,” a bank in Liverpool, made an agreement with the agent of “B,” by which it pledged a certain amount of bonds of the State as security for any of its over drafts on “ B.”</p> <p>In 1861 bills were drawn by “A” on “B,” on the faith of its entire credit, cash and marginal, with “B,” which were not presented for acceptance till 1864.</p> <p>In 1863 *‘B” closed its business relations with “A,” and made out its account against “A,” showing a balance due. by it to “B,” “A” having become insolvent: Held, That “ B ” was entitled to be paid such balance out of the bonds in preference to the holders of the bills drawn in 1861, but that such holders had a lien on the bonds m preference to the general creditors of “A.”</p>

This was a petition for a writ of mandamus. The case is stated in the following opinion of His Honor the Circuit Judge: Moses, J. The relator, Harry B. Scott, as School Commissioner for the County of Newberry, exhibited his petition in this Court on the 8th day of April, 1875, verified by his oath, setting forth as follows: That he is the School Commissioner for Newberry County.

This was an indictment against Walter Jackson and Emanuel Fields for conspiracy to cheat and defraud William Smith. The indictment was in the usual form, charging that the defendants “unlawfully did combine, conspire, &c.” The defendants appeared and pleaded “not guilty.” At the trial Fields was used by the Solicitor as a witness for the State.

This was an action by Charles Powers and others against James A. McEachern and others. The case on which the appeal was' heard is contained in the decree of the Circuit Court, the amendment agreed on by counsel and the will of John G. Powers, below set forth. The decree of the Circuit Court is as follows : Townsend, J. John G. Powers died in 1867, leaving a considerable real and personal estate.

This was a creditor’s bill for settlement of the estate of Allen. McFarlan, deceased, of whose ivill W. D. Johnson and others were executors. The ease is as follows: This was an action in the Court of Common Pleas for the County of Chesterfield, instituted by the executors of the last will and testament of Allan McFarlan, deceased, against his heirs at law and creditors, to marshal the assets of his insolvent estate.

This was an action of “trespass to try title,” by James R. Massey and others against Wiley R. Duren, Able Funderburk and Hannah Funderburk. It was commenced in 1860. The pleas were the general issue, and a special plea by Wiley R. Duren, alleging that the land sued for was owned in fee by Thomas R. Duren, an infant son of the defendant Wiley R. Duren, in whose behalf he, the said defendant, was in possession.

This was a petition in the Probate Court by William M. Seigler against William K. Seigler, for account as guardian of the estate of the petitioner. On the 5th of November, 1856, the defendant was appointed by the Court of Equity for Edgefield District and gave bond for the discharge of his duties.

This was an action by Thaddeus G. Buckner, as executor of the last will and testament of Thomas W. Gillison, against the Savannah and Charleston Railroad Company.

This was an action by Wilmot G. DeSaussure, Julius Trouche, Florence T. Downey and Lawrence A. Duval, as executors of the last will and testament of Etienne Poincignon, deceased, Clarence A. Trouche and Gustavus Follin, against Behrend Bollmann for specific peformance of a contract for the sale of a lot of land.

This was an action by Thomas W. Davis against John Vaughan to recover the possession of personal property. It was brought before a Trial Justice, and on the 17th of December, 1874, judgment therein was entered for the plaintiff. The defendant, on the same day, prepared a written notice of appeal and served the same on the Trial Justice.

This cause was heard upon a statement of the case, which is as follows: On the 22d day of February, 1871, Garrison A. Visanska, one of the defendants, mortgaged to H. K. Thurber & Co. a tract of. land in the County and State aforesaid, containing 1,050 acres, known as the Belcher plantation, as security for a debt of $2,000 which he owed them. The mortgage was subsequently duly assigned by H. K. Thurber & Co. to David Lewi.

This was an action by Washington L. Prince against Drayton Nance. The case is contained in the following statement for this Court, signed by the attorneys of the parties, as authorized by the Act of Assembly authorizing such statement: The plaintiff, on the 23d day of January, 1875, sued out his complaint against the defendant for arrears of rent for several past years, claiming as due him the sum of $612.32, besides interest.

On February 20, 1867, Ambrose Gibson entered up a judgment, in the Court of Common Pleas for Edgefield County, against Nancy Gibson, for $3,208.34, and on March 30, 1874, A. P. West and P. Jennings, for another, recovered another judgment against Nancy Gibson, which was entered up in the same Court on that day.

This was an action by B. Sanders against the County Commissioners of Colleton County. The case is fully stated in the opinion of the Court. The defendants appealed.

This was a bill in equity, filed on May 21st, 1867, by Louisa C. Bolling against Abigail M. Stokes, T. Henry Stokes, her husband, Martha A. Hickson, William Hickson, her husband, and Anna Childs, and afterwards amended by making George W. Collins a party defendant.

This was an action by B. W. Edwards, administrator de bonis non of Leviniah King, deceased, against the creditors and heirs at law of Leviniah King, to marshal her assets, and for a sale of the real property to pay debts. The case may be briefly stated as follows: On the 27th October, 1860, B. Clements recovered judgment against Leviniah King, in the Court of Common Pleas for Darling-ton County, in the sum of $1,315.40.

<p>Where the term of a Circuit Court, as fixed by law, has expired, the Judge has no power, by order, to continue its existence, convene it at another time, and proceed to the trial of cases.</p>

This was a petition to the Supreme Court by Mrs. M. A. McLaughlin for a mandamus to compel the County Commissioners of Charleston County to draw a check upon the County Treasurer for tlie amount of her claims therein specified against the County of Charleston. • The facts are stated in the opinion of the Court.

<p>This case is sufficiently stated in the opinion of the Court.</p>

This was an action by Thomas H. Cooke, executor, and Jane M. Zeigler, executrix of Daniel Zeigler, deceased, against John M. Pennington and William Price for foreclosure of a mortgage of real estate given by John M. Pennington to the testator and to the said Jane M. Zeigler, bearing date February 26, 1872. Price was made a defendant on the ground, as alleged in the complaint, that he purchased the land at a sale for taxes made in Ma}', 1873.

This-was an action by Susan Blackwell and her four children, who were infants, and’ sued by their guardian ad litem against Landon Tucker, to set aside and vacate, on the ground of fraud, a payment made in July, 1863, on a bond held by the Commissioner for the benefit of the plaintiff.

This is a new trial of the samé case reported in 5 S. C., 221. The action was to recover damages for negligently running the defendant’s train against a wagon in which the plaintiff was riding, breaking the wagon and killing the horse that was drawing the same and injuring the plaintiff. The accident occurred at a place near the city of Charleston, where the defendant’s track crosses the public highway, along which the plaintiff was riding in a covered wagon.

This was an action by the South Carolina Railroad Company against the Wilmington, Columbia and Augusta Railroad Company. Held: That there could be no recovery, as the contract must be in writing and came within the fourth Section of the Statute of Frauds.

This was an action by John J. Roach against James M. Ivey, Allen Jones and R. Thomas May, to recover the sum of $3,077.66, alleged to be due by the defendants to the plantiff upon a state of facts substantially the same as that set forth in the case herein stated. The case is as follows: On the 10th August, 1869, the plaintiff formed a mercantile copartnership with James M. Ivey and R. Thomas May.

These were two bills in equity — one filed July 18, 1867, by James Rose, Henry Gourdin and William C. Bee, executors of Thomas Alston Coffin, deceased, against Joseph A. Huger, Arthur M. Huger, Allen S. Izard, James R. Pringle and James Rose Coffin, to foreclose a mortgage given by Joseph A. Huger to George M. Coffin, deceased, and James R. Pringle, of his one undivided third portion of plantation called “Clydesdale;” the other filed July 22, 1869, by Charles T. Lowndes…

.This was an action by Ida J. Featherston, Emma E. Young, Helen H. Williams and Ella L. Latimer, plaintiffs, against J. C. 0. Featherston, Frances C. McDavid and Ezekiel Norris, defendants. The plaintiffs are the children and legatees of J. W. Featherston, deceased. The defendant J. C. 0. Featherston is a legatee and executor, and the defendant Ezekiel S. Norris is a surety on the official bond of A. 0.

<p>A purchaser at a sale under the decree of an Ordinary for partition is not discharged from his liability by transferring his bid to a third person. Payment alone discharges him.</p> <p>If the Ordinary takes security from the transferee of the bid, that may increase the sources to which the parties entitled may look for payment, but it does not discharge the bidder.</p> <p>Where an Ordinary became the purchaser at a sale made under his own decree for partition, and afterwards transferred his bid, and the transferee complied with the terms of sale: Held, That the Ordinary and the sureties on his official bond were liable for the amount of the bid.</p> <p>An order for injunction under a creditor’s bill restraining creditors from suing and calling them in to prove their claims in that case is subect to the entire control of the Court which made the order, and does not invalidate a decree made by it establishing a claim in another cause which could have been proved under the order.</p>