Volume 8 — South Carolina Reports

Before TOWNSEND, J., at Darlington, October, 187Ó. Action by Thomas E. Cox, as Sheriff of Darlington County, against B. W. Edwards.

Before CARPENTER, J., at Edgefield, July, 1875. Motion to set aside a judgment by default, entered by J. M. Clark & Sons against the Southern Porcelain Manufacturing Company, on March 18, 1871. The case is as follows: The action of J. M. Clark & Sons was commenced by summons’ with complaint annexed, on the 3d of February, 1871. It was served on James Hope, President, and George Schaub, General Agent of the company, on the 8th and 9th of February, 1871.

Before COOICE, J., at Abbeville, May, 1875. This was a petition entitled Ex parte John M. Mackay, Jr., in re William C. Barrett, trustee, against James N. Cochran.

Before REED, J., at CharlestoN, November, 1875. This was an action by Edmund A. Gibbes against Juliet G. Elliott to recover the value of a set of diamond jewelry, alleged in the complaint ttí belong to the plaintiff and to have been converted by the defendant to her own use and to be of the value of $10,000. The answer denied each and every allegation of the complaint. The case was referred to a Referee, by consent, to take testimony.

Before MOSES, J., at Newberry, July, 1875. The case on’which the appeal was heard is contained in the following statement agreed on by counsel: “ I. On the 20th day of March, A. D. 1871, the defendant, James H. Blease, rented a parcel of land from the plaintiff, J. S. Hair, and bargained with the plaintiff for plantation supplies necessary to the cultivation of the same; and to carry out the purposes of such agreements, they executed their instrument of writing, reciting the…

This was an application to the Supreme Court by William J. McKinlay against F. L. Cardozo, State Treasurer, for a writ of mandamus. The petition alleged : 1. That Francis L. Cardozo is the Treasurer of the State of South Carolina. 2. That by an Act of the Legislature of the State of South Carolina entitled “An Act to provide for the appointment of a Land Commissioner and to define his duties and powers,” approved March 27, 1869, it.is provided: “Sec. 4.

BEFORE CARPENTER, J., AT BlCHLAND, JUNE, 1875. This was an action by Elias Wolf and others, trading under the firm of Wolf, Mayer & Co., against C. Hamberg. The case is sufficiently stated in the opinion of this Court.

Before REED, J., at Charleston, June, 1875. This was an indictment against William A. Hord for an assault with intent to kill. Pie was found guilty and sentenced by the Court to confinement in the State Penitentiary at hard labor for one year. He appealed, on the ground that the sentence was contrary to law — because it directed the imprisonment to be in the State Penitentiary and not in the common jail of the County.

Before MOSES, J., at Newberry, September, 1874. This was an appeal from the Probate to the Circuit Court. Held: a mortgage for the purchase money, which excluded dower. In Ciarle vs. Munroe, (14 Mass.

<p>Before Reed, J., at Charleston, May, 1876.</p> <p>The case was as follows:</p> <p>Macon B. Allen brought an action in the Court of Common Pleas for Charleston County against the County of Charleston, and an answer, verified by one of the County Commissioners, was filed by the attorney of the defendant.</p> <p>On the 25th January, 1875, an order was entered, by consent, that the plaintiff have judgment against the defendant for $403.72, and thereupon judgment was entered.</p> <p>On the.31st March, 1875, the plaintiff, by writing endorsed on the record, assigned the judgment to T. M. Mordecai, in trust, to sell the judgment and apply the proceeds to the satisfaction of certain claims against the plaintiff. The assignee issued execution upon the judgment in his own name.</p> <p>On the 13th day of April, 1875, an order was made by the Court setting aside this and other judgments against the County of Charleston, and referring them to a Referee for trian No written notice of this order was served upon the plaintiff, his attorney or the assignee. [See the petition to' set aside the judgments and the order of 13th April, 1875, in Ex parte Williams, in re Campbell vs. County of Charleston, 7 S. C., 71.]</p> <p>After the order of 13th April, 1875, was, made, the plaintiff and his attorney on record, without the knowledge or consent of the assignee, submitted the case to the Referee for trial. Proofs were taken and argument heard by the Referee, who filed his report allowing the plaintiff $36.50.</p> <p>No exceptions to the report were filed.</p> <p>On the 4th May, 1876, T. M. Mordecai, the assignee, moved His Honor Judge Reed to rescind so much of the order of the 13th April, 1875, as applied to this ease, alleging that the submission of the case to the Referee for trial by the attorney for the plaintiff on record, without the knowledge or consent of the assignee, was without authority, — his authority as attorney of record having been ended by the assignment of the judgment. The motion was refused, and the assignee appealed.</p> <p>cited Treasurers vs. McDowell, 1 Hill, 185.</p> <p>contended that the motion to rescind the order of 13th April, 1875,.was addressed to the discretion of the Circuit Judge, and his decision will not be reviewed upon appeal. He referred to Meek vs. Richardson, 4 Rich., Eq., 91; 4 Waite’s Pr., 245, 465; Voorhies’ Code, 651, note Ic.</p>

Before Reed, J., at Charleston, June Term, 1876. This was an action by J. B. Mason against T. M. Carter.

Before COOKE, J., at Greenville, 1871. The only statement of the ease which has reached the Reporter’s hands is contained in the opinion of the Court. -, contra.

Before CAEPENTEE, J., at Edgefield, March, 1876. This was an action by a plaintiff styling itself the Commercial Insurance and Banking Company against J. L. Turner. The action was at first brought in the name of “ J. C. Fargo, Cashier of the. Commercial Insurance and Banking Company, Augusta, Ga.,” plaintiff.

<p>An order of the Circuit Court, allowing an appeal which had been denied by the Probate Court, upon the ground that it had not been taken in time, is not appealable.</p> <p>An order of the Circuit Court, on an appeal from the decree of an inferior Court, must involve the merits or it is not appealable.</p> <p>Ordinarily the Court will not interpose an objection to a proceeding which is not made by a party in interest, but there are exceptions to the rule, one of which is where great practical inconvenience is likely to arise from disregarding the objection.</p>

<p>To an action against a Constable under ? 16, Chapter XXVI, of the General Statutes, to recover ten times the amount of fees improperly charged, it is no defense that the costs had been taxed by a Trial Justice and included in an execution by the plaintiff.</p>

Before NORTHROP, J., at Spartanburg, August, 1876. This was an action by J. A. Henneman against W. W. Thomson, brought before a Trial Justice. The Trial Justice gave judgment for the plaintiff and the defendant appealed to the Circuit Court. The case, as stated in the brief, is as follows: On the 11th day of January, 1875, Henneman drew a draft on Thomson, payable at sight, to the order of George Cofield, Cashier. It was accepted by Thomson.

Before MAHER, J., at Barnwell, January, 1876. This was an action by Angus A. Faust against the South Carolina Railroad Company, in which the plaintiff recovered judgment and the defendant appealed.

This was a petition by L. M. Bunton as relator against A. L. Cobb, County Treasurer, for a writ of mandamus to compel the ^respondent to pay certain school claims helvd by the relator. The points of law decided in thé case sufficiently appear in the opinion of the Court.

This was a petition by Wade H. Coleman as relator to the Supreme Court against Jesse C. Smith, County Treasurer of New-berry County, for a writ of mandamus.

<p>"Where a railroad company issued bonds, with coupons for interest attached, which were guaranteed by the State, and, to secure the payment thereof, gave to the State a Statutory lien on all the franchises, rights and property of the company, and the company afterwards failed to pay the coupons and became insolvent, and before the bonds became due the statutory lien or mortgage was foreclosed in an action by the State and all the franchises, rights and property of the company were sold: Held, That the holders of the coupons past due at the time of the sale were not entitled to priority of payment over the owners of the principal debt, which was not then due, but that such proceods were distributable pari passu between the holders of the coupons past due and the owners of the bonds.</p> <p>In the distribution of equitable assets, the general rule is to treat all debts as standing upon the footing of equality and to be.paid pari passu.</p> <p>Creditors called in to present and establish their claims in an action for the settlement of the affairs of an insolvent corporation have the same right of exception, appeal and objection to the report, orders and decrees in the case as creditors who were parties to the action by name.</p> <p>In an action for the settlement of the affairs of an insolvent corporation, a creditor who has been called in under a general notice to creditors to present their claims, and who stands by and silently acquiesces in the orders and proceedings that are taken in the cause, will not afterwards'be allowed to come in as a party defendant and file an answer contesting the validity of the proceedings that have been already had in the cause.</p> <p>The actions referred to in £ 290 of the Code of Procedure, — requiring issues of fact to be made up to be determined by a jury, — are such actions as before the adoption of the Code were recognized as actions at common law.</p> <p>Where an agent made a written contract for his principal and also for himself in his individual right, purporting to be a .contract under seal, and affixed the seal opposite his own signature: Held, That such seal might be regarded as the seal of the principal as well as of himself.</p> <p>A contract by an agent, under seal, but which does not require a seal to make it valid, may be ratified by the principal by any writing, acts or words which would be sufficient to confirm a simple contract.</p> <p>A contract by one assuming to act as an agent, but not authorized so to act: Held, To have been ratified by the subsequent acts, conduct and acquiescence of the principal.</p> <p>Where exceptions are taken to the report of a Referee because of the omission of facts alleged to have been proved, the proper course is to move the Circuit Court to recommit the report on the exceptions thus taken.</p> <p>Where a creditor fails to submit his claim within the time fixed by an order calling in creditors, he is not debarred from coming in and proving his claim as long as the fund remains under the control of the Court.</p>

Before REED, J., at Charleston, November, 1875. Held: on motion in arrest of judgment, that declaration was bad. Lord Campbell, C. J.: “The judgment must be arrested. The duty, a breach of which is laid, does not arise from the particular facts stated in the declaration, nor from the general relation.of master and servant;” * *• and per Coleridge, J.: “ No special contract is stated.

Before', MOSES, J., at Newberry, March, 1875. The case is as follows: The plaintiffs, Lambert J. Joües and William C. Parker, and the defendant, William H. Webb, were partners in business at New-berry, under the partnership name of Webb, Jones & Parker.

Before REED, J., at Charleston, April, 1875. Held: worked and managed by the said Receiver and Advisory Board with the greatest possible skill and economy, and the results be reported quarterly to the Court in this cause, and the net profits, after paying all necessary expenses, including such amounts, if any, as may be due the employees and officers for services, shall be applied…

Befoke COOKE, J., at Abbeville, Octobee, 1875. This was an indictment against Jerry Coleman for the murder of Adam Hacket. The case had been tried before, and, upon an appeal by the prisoner, a new trial had been ordered. The only statement of the case made at this, the second trial, .which the Reporter has been able to obtain is that contained in the opinion of the Court. The prisoner was convicted and appealed to this Court.

Befoee'REED, J., at OraNgeburg, February, 1875. This was an action by William B. Gates, J. C. Gates and Alice M. Irick, infant children of Christian A. Gates, deceased, by their guardians ad litem, and by Laban A. Irick, husband of the said Alice M. Irick, against William C. Whetstone, as executor of the last will and testament of the said Christian A. Gates, deceased, and John J. Jackson and Barbara E., his wife, for an account.

Befoee COOKE, J., at Abbeville, January Term, 1876. This was an action by L. P. Guffin, as Sheriff of Abbeville County, against J. Boyd Ingram and Thomas Stuart. The case was as follows: In the year 1871, H. S. Cason.was Sheriff of Abbeville County, and had in his office one or more executions against the property of Nathan Ingram, which he had levied upon the property mentioned in the bond upon which this action was brought.

Before REED, J., at CharlestoN, November, 1875. This was an action by George W. Clark against James Harper to recover the amount alleged to be due on a draft for $250, drawn by John B. Harper on the defendant, payable to the order of Stephen Owens, at twelve months, dated January 1st, 1869, accepted by the defendant and endorsed by the payee in blank.

Before CARPENTER, J., at Edgefield, JuNE Term, 1874. This was an action by M. W. Lyles against Isaac Bolles, late Sheriff of Edgefield County, and L. G. Holloway, John Trapp, and others, sureties on his official bond, to recover damages for the alleged negligence of the said Isaac Bolles in failing to take a bond from one L. A. Tully in an action of trover which Lyles had brought against him.

This was a petition by Catherine 0. Barnwell to the Supreme Court for a writ of mandamus against the State Treasurer to compel him to issue to her a bond or certificate of stock for one-half the amount of interest claimed to be due to her by the State on a certain certificate of-stock issued under the Act of June 1,1838, “for rebuilding the city of Charleston,” and which was held by her as guardian. The facts of the ease are fully stated in the opinion of the Court.

Before CARPENTER, J., at Edgefield,1 November Term> 1875. « This was an action by J. J. Pierce, Butler & Co. against Thomas Jones & Son to recover the amount alleged to be due on two promissory notes given by the defendants to the plaintiffs — one for $4,000, dated March 17th, 1873, and payable on the 1st day of November thereafter, and the other for $5,820.08, dated March 16th, 18,74, and payable fifteen days after date.

Before MACKEY J., at Lancaster, October Term, 1876. This was au action by Burrell R. Hancock against John D. Caskey, J. M. Caskey and Wylie Q. Caskey to recover damages for a certain quantity of oats alleged to have been the property of the plaintiff, and, on the fir3t day of July, 1874, tp have been wrongfully taken by the defendants and converted to their- own use, The case was as follows : The oats which were alleged to have been converted by the defendants were grown…

Before CARPENTER, J., at Edgefield, 1875. After the decision of the Supreme Court in this case, at April Term, 1874, (reported 5 S. C., 415,) settiug aside the judgment by confession given by Bullock, as President of the Southern Porcelain Manufacturing Company, to Thew, the plaintiff, a motion was made in the Court below that the defendant be required to plead or demur to the declaration upon which the confession of judgment was made.

Before REED, J., at CharlestoN, JaNuary Term, 1876. This was an action by Charles 0. Witte against Mrs. Sally C. Williams. The complaint alleged two causes of action, as follows : First, for a first cause of action— 1.

Before MOSES, J., at Newberry, August, 1875. This Was an action by the Greenville and Columbia Railroad Company against Levi Bates Maffett, Robert Maffett and David Kibler. The case, as agreed upon'by counsel and set forth in appellants brief, is as follows: 1. Levi Bates Maffett, as principal, and Robert Maffett and David Kibler, as his sureties, executed their bond to the Green-ville and Columbia Railroad Company on the 15th day of September, A'.

Before REED, J., at Charleston, June, 1875. This was an action in the nature of a creditors bill by Fraser & Dill and Mary F. Davis against William Whaley as executor of Joseph Whaley, deceased, the City Council of Charleston and others.

This was an appeal from the refusal of the Circuit Judge in the next preceding ease to grant a motion made on behalf of William Whaley, executor of Joseph Whaley, deceased, and of his children, William Whaley, Jr., Washington A. Whaley and Joseph Wha-ley, — the three last named being minors.

Before CARPENTER, J., at Richland, January, 1876. These were two actions by Ella A. Livingston against Jacob H. 'Wells and also against Thomas J. Robertson, as executor of John Caldwell, deceased.

This was a petition to the Supreme Court entitled the “State of South Carolina ex relatione William H. Wallace, Speaker of the House of… Held: as evidences of their legal membership, certificates of the Secretary of State and of the Clerk of the Supreme Court, as hereinafter more particularly described, of the certified determination of the Board of Canvassers, and eight members, to wit, the members elect from the Counties of Laurens and Edgefield, — W. S. Allen, J. C.…

<p>An action was brought in the Supreme Court of the State entitled “The State, ex relatione Theodore G. Barker, Samuel McGowan, J. I. Ingram, Robert Aldrich, John W. Harrington, William Wallace and John B. Erwin, vs. C. C. Bowen, Timothy Hurley, John Winsmlth, Thomas B. Johnston, William B. Nash, Wilson Cooke and William F. Myers,” in which the complaint or suggestion is as follows:</p> <p>“Be it remembered that Theodore G. Barker, Samuel McGowan, J. I. Ingram, Robert Aldrich, John W. Harrington, William Wallace and John B. Erwin come here the 2d December, A. D. 1876, before the honorable the Supreme Court of the State of South Carolina, and, by leave of said Court first had and obtained, according to the form of the statute in that case made and provided, give the Court here to understand and be informed that on the 7th November, 1876, a general election was duly held in the said State for electors for President and Vice President of the United States; that at said election the above named relators, Theodore G. Barker, Samuel McGowan, J. I. Ingram, Robert Aldrich, John W. Harrington, William Wallace and John B. Erwin, were duly and legally elected by general ticket, (they being as many in number as the said State is entitled to appoint,) and had the highest number of votes at said election.</p> <p>“That at said election the votes for the opposing candidates for said offices, respectively, were thereupon duly counted by the several Boards of Managers of the said election, and by them duly returned in their respective Counties to the Boards of Canvassers for their several Counties, and, the several Boards of County Canvassers having made their statements of the votes cast, the same, together with all the papers appertaining to said election, were by the Boards of County Canvassers duly transmitted to the Board of State Canvassers of the said State.</p> <p>“ That the said Board of State Canvassers -.met at the office of the Secretary of State on or before thé 10th day of November next after such election and proceeded to canvass the votes given for the electors of President and Vice President,.and made a false and fraudulent statement of all the voles, as appears by a comparison of the statements of the County Canvassers with the statements and returns of the precinct Managers in the' several Counties, and falsely determined and certified as the persons elected as Electors of the State of South Carolina, of President and Vice President, the following named persons: Christopher C. Bowen, John Win-smith, Timothy Hurley, Thomas B. Johnston, William B. Nash, Wilson Cooke and William F. Myers.</p> <p>“And, thereupon, the Secretary of State caused a copy, under the seal of his office, of the certified determination of the Board of State Canvassers to be delivered to each of the persons therein declared to be elected.</p> <p>“And the said Christopher C. Bowen-, John Winsmith, Timothy Hurley, Thomas B. Johnston, William B. Nash, Wilson Cooke and William F. Myers, not being duly and lawfully elected, and not having received the highest number of votes cast at such election, received said certified determination so delivered, and under and by virtue thereof, as evidence of title to the said offices' and functions of State electors of President and Vice President of the United States, claim the right as such to meet and assemble at the capital on the first Wednesday in December next, being the next after their election, and then and there threaten and claim to vote by ballot for President and Vice President. .</p> <p>“And the said relators further give the Co.urt to understand and be informed that if a true and correct statement of all the votes cast at said election had been made by the- Board of State Canvassers, by comparing the statements of the County Canvassers with the statements and returns of the precinct Managers in the several Counties, and if the said Board had justly and truly de.termined and certified the persons so elected as electors, your relators above named would have been found' to be elected, and to have received the highest number of votes ca.st for electors at said election,-and would have been so determined and certified, and would have been entitled to receive a copy- of the said certified determination, under the seal of his- .office, from the Secretary of State, and would have been entitled to assemble, according to law, at the State capital, on Wednesday next, and then and there to cast the votes of the State of South Carolina for President and Vice President of the United States of America.</p> <p>“ Whereupon the said relators pray the consideration of the Court here in the premises, and that due process of law may be awarded against the said Christopher C. Bowen, John Winsmith, Timothy Hurley, Thomas B. Johnston, William B. Nash, Wilson Cooke and William F. Myers, in this behalf, and to make them answer to the State, and show by what warrant or authority they claim to have, use and enjoy the offices, liberties, privileges and franchises aforesaid.” • • ■</p> <p>And this was a petition by the defendants to the Supreme Court asking that said action be transferred to the United States Circuit Court for the District of South Carolina.</p> <p>The grounds upon which the application to transfer were founded are stated in the opinion of the Court.</p>

This was a suggestion to the Supreme Court in the case of the State, ex relatione R. M. Sims and others, vs. H. E. Hayne. It was filed December 2d, 1876, and is as follows: And now come the relators into Court and give the Court to know and understand: That David T. Corbin, an attorney and counselor at law of this Court, has been guilty of sundry contempts of this Court, to wit: 1.

<p>An action in the nature of quo warranto does not lie in the name of the State to determine the title to the office of elector of President and Vice President of the United States; and the objection can be made by the defendants under a plea to the jurisdiction of the State Court in which the action is brought.</p> <p>An action to determine the title to an office can only be maintained by or in the name of the sovereign with whom the franchises and privileges of the office originated.</p> <p>The franchises and privileges of the office of elector of President and Vice President originate and are exercised under the Constitution and laws of the United States and not under those of the State, though the power to appoint to the office is with the State. *</p>

This was a petition to the Supreme Court entitled “ Ex parte Tilda Stephens, alias Tilda Norris,” for a writ of habeas corpus. Held: or if, by the acceptance of an an incompatible dr disqualifying office, he had in' law vacated his former office, the argument of opposing counsel might prevail. Here, however, he had simply done an act, and that act is void and nugatory. Now, in law a man is held to intend the natural consequences of his acts.

BefoRb CARPENTER, J., at Richland, 1876. This was a petition by Peter Smith for a writ of habeas corpus. The material facts were that in December, 1876, the petitioner was a prisoner in the custody of the Superintendent of the Penitentiary, under sentence of the Court of General Sessions for a criminal offense of which he had been convicted.