Volume 9 — South Carolina Reports

<p>Before COOKE, J., at Greenville, June Term, 1876.</p> <p>This was an action by Greenville County against James M. Runion, County Treasurer, and James Darby, Williams Cox, William McKinney, Hardy Solomon, W. P. Shockly, Wm. M. Linderman, James E. Cox and Isaac Kelley.</p> <p>The complaint alleged that on the day of December, 1874, the defendant, James M. Runion, was appointed County Treasurer for Greenville County, and on the 23d day of the same month and year, he, the said James M. Runion, and the other defendants (naming them) entered into bond in the penal sum of twenty thousand dollars, conditioned that he, the said James M. Runion, shall well and truly perform the duties of the said office of County Treasurer for the said County of Greenville as now or hereafter required by law during the whole period he may continue in said office; that the said James M. Runion, under and by virtue of his office as County Treasurer, and upon the duplicate furnished by the County Auditor between the 15th day of January, 1875, and the 15th day of March of the same year, collected large sums of money in the way of taxes, some thirty thousand dollars of which was collected for and on account of the plaintiff, and which the law required him to hold and disburse upon the checks of the County Commissioners of said County.</p> <p>The complaint further, alleged that the said James M. Runion, as County Treasurer, received from the State Treasurer the sum of $13,691.45, the amount of the free school fund to which the plaintiff was entitled out of the State appropriation, to which add $2,355, the amount of the poll tax collected by him, and $749.64, the amount received by him from his predecessor in office, making $16,795.09 as the amount of the free school fund received by him to the credit of the plaintiff. That, as plaintiff is informed, this amount has been disbursed, excepting $4,728.50, and that the defendant, as County Treasurer, has disbursed the amount collected for plaintiff in the way of taxes, excepting $4,920, which, added to the amount of the school fund, makes $9,720, and this amount the plaintiff charges that the defendant, James M. Runion, has fraudulently and in breach of his trust appropriated and converted to his own use. And the complaint further alleged that the said defendant, James M. Runion, as County Treasurer, on the 15th day of September, 1875, made his report to the County Commissioners, showing that he was then indebted to the plaintiff in the said sum of $9,720, upon which said sum the County Commissioners drew their checks, payment of •which has been and still is refused by the defendant.</p> <p>The plaintiff demanded judgment that the said bond be declared forfeited and that judgment be awarded against the defendants in the sum of $20,000 and the costs of the action.</p> <p>The defendant filed a demurrer on the ground that the complaint does not state facts sufficient to constitute a cause of action.</p> <p>His Honor the presiding Judge, after hearing argument, made an order that the demurrer be overruled and that plaintiff have judgment thereon, but with leave to the defendants to withdraw their demurrer and put in an answer within sixty days.</p> <p>The defendants James M. Runion and Hardy Solomon appealed.</p>

This was an action entitled The State, ex relatione W. J. Whipper, against J. P. Reed. Held: and J. P. Reed, the defendant, was elected. He received his commission, qualified as Judge, and took possession of the office. On the 11th day of December another election was held by the Legislature for Judge of the First Judicial Circuit. At that elecr tion W. J. Whipper, the relator, was elected.

Before NORTHROP, J., at Spartanburg, July Term, 1876. This was an action by James H. Ware against W. T. Miller. The case is as follows: On the 11th March, 1867, the plaintiff commenced an action of assumpsit against H. N. Maddox. The writ was endorsed with an order for bail. On November 12th, 1867, the Sheriff of the County (Spartan-burg) arrested Maddox, who, on the next day, gave a bail bond to the Sheriff, with W. T. Miller, the defendant, as bail.

Before CARPENTER, J., at Richland, February, 1877. This was an action by Eliza Montgomery against Edwin J. Scott & Son and Clifton J. Houston to set aside a bond and mortgage for one thousand dollars to the said Edwin J. Scott & Son, bearing date the 1st day of April, 1875. The mortgage was of a lot, with buildings thereon, in the city of Columbia, and was recorded 22d April, 1875.

This was a petition to the Justices of the Supreme Court praying for a writ of mandamus to compel the County Treasurer of New-berry County to pay certain school claims.

Before MACKEY, J., at Lancaster,- May, 1876. This was an action by Eli West, as administrator of Milly West, deceased, against Thomas J. Cauthen, as executor of Rebecca Truesdel, deceased. The case is fully stated in the following judgments of the Probate Judge of Lancaster County, and of His Honor the Circuit Judge. The decree of the Judge of Probate is as follows: In the Fall of 1859 Rebecca Truesdel died, leaving of full force and effect her last will and testament.

Before MAHER, J., at Barnwell, January, 1876. This was an action by F. M. Bamberg vs. The South Carolina Railroad Company, to recover damages for an injury to a mare of the plaintiff’s, which the defendants had transported for the plaintiff from Augusta, Ga., to Bamberg, S. C. The action was brought before a Trial Justice, who gave judgment for the plaintiff for $46.50, and an appeal was taken to the Circuit Court.

Before COOKE, J., at Abbeville, October, 1876. The statement contained in the opinion of this Court is sufficient for a full understanding of all the points with reference to which the case is reported.

This was a petition to the Supreme Court for a writ of habeas corpus. The case will sufficiently appear from the opinion of the Court.

<p>Before CARPENTER, J., at Richland, October Term, 1876.</p> <p>This case having been remanded to the Circuit Court by a judgment of the Supreme Court, (7 S. C., 385,) it now came on to be heard in the Circuit Court a second time.</p> <p>The defendant’s counsel contended that as the tax deed was now in evidence this.Court had nothing tó do but to set it up and dismiss the complaint. They also contended that the complaint should be dismissed upon the ground, sustained by the Supreme Court, that the execution of the mortgage had not been proved according to law.</p> <p>His Honor denied the motion to dismiss, and made an order, on the motion of the plaintiff’s attorneys, appointing a Referee and directing him “ to take and report the testimony de novo, to be produced by the parties herein upon the issues raised by the pleadings.” The defendants gave notice that they appealed from the order.</p> <p>1. The Supreme Court having decided that the “tax deed ” was in evidence, the Circuit Judge should have so regarded it, and not ordered the testimony in regard thereto to be taken “de novo.”</p> <p>2. The “tax deed” being in evidence, and its execution admitted, the Circuit Judge was obliged to sustain it by reason of the provisions of the Act of the General Assembly of this State, fifteenth volume,-page 778, providing that when “such deed is made by the County Auditor for any real estate sold at delinquent land sale, it shall be prima facie evidence of a good title in the grantee, his heirs and assigns, to the real estate therein described.” And the Supreme Court is now asked to so decide and save the defendants any further expense and delay.</p> <p>3. The defendants having moved the Circuit Court to dismiss the complaint because the execution of the mortgage sought to be foreclosed had not been proved according to law, and the Supreme Court, upon appeal, having decided that ground “well taken,” the presiding Judge should have dismissed the complaint.</p> <p>4. The order of the presiding Judge directing that the testimony be taken “de novo” upon “the issues raised by the pleadings” is directly contrary to the decision of the Supreme Court holding that the “tax deed” was in evidence and its execution admitted, and also to the decision of that Court that the defendant’s motion to dismiss the complaint because the execution of the mortgage was not proved according to law and subjects the defendants to unnecessary expense, litigation and delay.</p> <p>“The questions decided by the Supreme Court on an appeal are conclusively adjudicated so far as the same case is concerned.”— Manufacturing Company vs. Price, 6 S. C., 278.</p>

Before MACKEY, J., at Lancaster, June, 1876. Held: That this ti’ansaction in a public office and remaining there as of record gave currency to the Statute of Limitations, and that a bill for an account, filed more than four years afterwards, was barred.— Colburn vs. Holland, 14 Rich. Eq., 176. Third. Can the claimant maintain an exclusive right to the proceeds of this judgment?

This was an application by the Attorney General to the original jurisdiction of the Supreme Court for a judgment of “ouster” against the Hon. A. J. Shaw, one of the Circuit Judges of the State, from office, on the ground that he had been unconstitutionally elected.

Before REED, J., at Charleston. This was an action by E. H. Gadsden and Rebecca, his wife, against William Whaley, as executor of Joseph Whaley, deceased.

Before Maher, J., at Barnwell, June, 1876. This was an action by the State of South Carolina against D. H. Teague as executor of the last will and testament of Isaac N. Teague, deceased, George E. Steedman, M. F. Molony, Simon Brown, P. W. Farrell and Martin Keeler.

Before REED, J., at Charleston, May 11, 1876. This was an action by Charles F. Levy, his wife and others, against George W. Williams and others, executors of the last will and testament of Jacob Barrett, deceased.

This was an information filed in the Supreme Court to oust the defendant from the office of Solicitor of the First Circuit of the State. Held: and hence a formal resignation is not necessary in any such case.” People, ex rel. Martin, vs. Board of Police. — -35 Barb., 553. 1. The right of the elector in this State to hold more than one office, State or Federal, as a general proposition, is definitively declared by the express provisions of the Constitution.

Before MOSES, J., at Union, June, 1875. This was an action by Robert W. Shand as Receiver of the Cotton Planters’ Loan Association of the Fifth Congressional District of South Carolina against Columbus Gage. There were six other actions, by the same plaintiff, against as many different defendants, in which the facts and questions raised were the same as in the action above named.

Before CARPENTER, J., at Edgefield, July, 1876. ■’ Action by Warren, Wallace & Co. against Geo. W. Burton to foreclose a mortgage of real estate given by the defendant to the plaintiff.

<p>A warrant drawn on the County Treasurer, under the Act of 19th MaTch, 1874, § 84, to defray the expenses of making assessments for taxation is payable “ from the first collection of County funds ” of the fiscal year for which the assessments wero made, and not of the fiscal year in which they were made.</p> <p>The Act of 19th March, 1874, $ 84, is not repealed, either expressly or by implication, either by the Act of 7th June, 1877, to reduce and fix the salaries of certain officers, or by the Act of 9th June, 1877, to raise supplies and make appropriations for the fiscal year commencing November 1st, 1876.</p>

<p>A mechanic's lieu upon a “building or structure and upon the interest of tbe owner thereof in the lot of land upon which the same is situated:” £felcl, To include several adjoining lots enclosed by a common fence and used and controlled by the owner of the building for one common and avowed purpose, though as to some he was not the absolute owner.</p>

<p>Under the Act (General Statutes, Chapter CXXXIX, $ 1, p. 746,) grand jurors were drawn in January, 1876, to serve during that year, and at the next term of the Court, held in the same month and year, they were, before being empaneled, discharged by the Court on the ground of fraud and illegality. A special term was then ordered by the Judge to he held in March of the same year, and the grand jury which had been drawn in January, 1875, having been summoned to attend, did so, and at the regular term in May found a bill of indictment for murder: Held, That the indictment was valid.</p> <p>Under the law as it stood in 1876, (see General Statutes, Chapter CXXXIX, § 1, p. 746,) if a grand jury drawn in January to serve during that year should bo discharged at the next term of the Court before they were empaneled, the grand jurors who had been drawn and who had served during the preceding year could be recalled and their acts would be valid.</p> <p>At the trial of an indictment for murder, certain declarations of the deceased, which were reduced to writing by a Trial Justice and signed and sworn to by the deceased about one hour after the fatal wound was given, and which he the next day, within about an hour of death, when he was conscious of his hopeless condition, in speaking to his physician, said that he intended these to be considered as his dying declarations, were properly received in evidence.</p>

Before MACKEY, J., at Yore, June, 1876. This was an action by William H. Snider and M. Alice Latimer against Charlotte J. Robertson, Ader E. Hacket (now Faulconer) and E. Almeen Hacket to recover… Held: died intestate as to this real estate. The Act of 1791 provides as to “real estate” when one shall die without disposing thereof by will. In Biehardson vs. Biehardson, (Dud.

Before COOKE, J., at Columbia, May, 1876. This was an action by Jesse Arthur, William L. Arthur, John F. Arthur, F. H. Mitchell and Mary L. Mitchell, his wife, against Robert Anderson, Eliza Anderson, Margaret A. Meeker and Cornelia Arthur.

Before COOKE, J., at Richland, July, 1876. Action by Thomas L. Kaminer, as administrator of Mary Leap-hart, deceased, and Polly Leaphart against John C. Hope, surety on the administration bond of Levi Gunter, administrator of Martin T. Leaphart, deceased. The case is stated in the opinion of the Court.

This was a petition to the Supreme Court by C. W. Buttz for a writ of mandamus to compel the Comptroller General to pay him his salary as Solicitor of the First Circuit. The case is fully stated in the judgment of the Court.

Before MACKEY, J., at Lancaster, May Term, 1875. This was an action by David A. Williams, assignee in bankruptcy of James D. Mcllwaine, against Andrew J. Kibler. James D. Mcllwaine had given a mortgage of land in 1866 to the defendant, which was foreclosed by a decree of Court in 1867. The land was sold by the Commissioner under the decree, and the defendant was the purchaser. Mcllwaine was afterwards adjudged a bankrupt and the plaintiff was appointed his assignee.

Before MACKEY, J., at Fairfield, August, 1877. This was an action by W. H. Lyles against George W. Kirkpatrick for specific performance of a contract for the sale of land.

Before CARPENTER, J., at Kershaw, August Term, 1876. This was an action brought in the Probate Court for Kershaw County by Mary E. Shaw against Rebecca M. Cunningham and others for partition of lands. The action was transferred by consent to the Circuit Court, in which a decree was rendered and an appeal therefrom taken. The case is fully stated in the opinion of the Court.

Before REED, J., at Aiken, September Term, 1877. This was an indictment against F. Pope for “ maliciously, unlawfully and willfully setting fire to, burning and destroying, in the night time3 stacks of hay and ricks of corn fodder.” At the trial he demanded twenty peremptory challenges, but was allowed only five. He was convicted, and appealed on the ground of error in the refusal of the Court to allow him twenty peremptory challenges.

Before CARPENTER, J., at Edgefield, April Term, 1876. Action by M. Lebeschultz against Thomas P. Magrath to recover the amount of a sealed note given by defendant to the plaintiff. - The defendant, by his answer, alleged that he was a resident of Charleston County, but he made no demand in writing before the time for answering expired, as directed by Section 149 of the Code, that the place of trial be changed from Edgefield County to Charleston.

Before TOWNSEND, J., at Darlington, February, 1877. This was an action by Matchet Field against Samuel F. Hurst and others. The case is as follows: The defendant answered the complaint but filed no demurrer. At the trial the defendant’s counsel contended that the complaint contained several causes of action; that they could not be united in one complaint, and that therefore the plaintiff must elect his cause of action in advance of the trial.

Before COOKE, J., at Greenville, April, 1877. This was an action by Thomas H. Roe and James Roe, administrators of Thomas Roe, deceased, against Mary Harrison, administratrix of William H. Harrison, deceased, and James Harrison, administrator of the estate of Thomas E. Harrison, deceased.

Before NORTHROP, J., at Laurens, November, 1876. The ease is as follows : In December, 1869, Sanford B. Mahaffey became the purchaser of a tract of land lying in the County of Laurens, which was sold by Ira W. Rice, as Clerk of the Court, for partition between the heirs of William Hunter, and gave bond and mortgage to secure the payment of the purchase money. In May, 1875, suit was brought in the name of Rice, as plaintiff, against Mahaffey to foreclose the mortgage.

<p>A judgment rendered, against a defendant residing in another County is not void for want of jurisdiction.</p> <p>The defendant should resort to the remedy prescribed by Section 149 of the Code.</p> <p>A motion to change the venue is ordinarily within the discretion of the Circuit Court, but where a question of jurisdiction is involved the decision is appealable.</p> <p>Section 149 of the Code is not repealed by the Act of March 17,1875.</p>

Before COOKE, J., at Orangeburg, May Term, 1877. George Bolivar, Clerk, and assignee of the Sheriff, against Jane M. Zeigler, defendant. Action on a bond given to the Sheriff by the defendant for the purchase money of land sold under a decree for partition.

Before NORTHROP, J., at Abbeville, September, 1877. This was an action by Warren, Wallace & Co. against Joshua Y. Jones, as Sheriff of Abbeville County.

Before COOKE, J., at Greenville, June Term, 1876. This was a petition by William B. Charles, trustee, against Richard H. Jacobs, administrator with the will annexed of Ed. O. Jacobs, deceased, and also administrator de bonis non mm testamento annexo of William Jacobs, deceased, to renew an execution on a judgment by confession for $2,485.57, which William Jacobs in his lifetime held against Ed. 0. Jacobs.

Before MACKEY, J., at Columbia, November 16,1875. This was an action by James Hornesby and wife and their minor children against John Burdell and wife and John Doby, Sheriff.

Before COOKE, J., at Abbeville, May Term, 1877. This was an indictment against Jesse Wimbush and Cyrus Wimbush for resisting a Constable in the discharge of his duty. They were found guilty and appealed.

Before REED, J., at Anderson, September Term, 1877. This was an action by Albert J. Clinkscales against the Pendleton Manufacturing Company, Wm. Perry and others. Held: the title to the property commenced when the order was made, and the Sheriff was ordered to return the property. — 3 Waite’s Dig., 1618, § 119; Steele vs. Sturgis, 5 Abb., 442. III.

Before COOKE, J., at Richland, May, 1876. This was an action by the Wilmington, Columbia and Augusta Railroad Company against the Greenville and Columbia Railroad Company. The complaint alleged as follows: 1.

Before REED, J., at Charleston, June, 1860. This was an action by Chichester & Co. against William S. Hastie.

Before COOKE, J., at Abbeville, January Term, 1877. This was an action by Francis Arnold against Peter McKellar to recover the possession of real estate.

Before NORTHROP, J., at Abbeville, September Term, 1877. Held: That as Cochran had given no direction as to the application of the proceeds of his crops, his factors had the right to apply them to whichever of their demands they deemed most advantageous to themselves; that their right could not be affected by Cochran’s assignment; that the sale of the mortgaged slaves was neither a forfeiture…

Before MACKEY, J.,,at Lancaster, August, 1876. This was an action by Churchill B. Jones, trustee of Sarah Jones, and guardian of James R. Massey, Jr., against James R. Massey and others, defendants. The facts of the case are fully stated in the report of the Referee, to whom it had been referred to take the testimony, and in the decree of the Circuit Court. The report is as follows: Mrs. Elizabeth Massey died in 1859, leaving a will, of which Dixon Barnes was sole executor.

<p>In an action to recover land, brought against one who claimed as a purchaser under “A,” who had purchased from “C,” deceased: Held, That “A” was a competent witness to prove “ C's” declarations in relation to the title.</p> <p>A purchaser from a deceased person, who is offered as a witness to prove the declarations of such person, is not an incompetent witness under the proviso to § 415 of the Code of Procedure.</p>

Before COOKE, J., at Richland, August, 1876. This was an action by Caroline J. Geiger, Isabella C. Geiger, Juriah E. Geiger, Frederick Ann Geiger and John A. Geiger for himself and as administrator of the estate of H. J. Geiger, deceased, against George Kaigler, for foreclosure of a mortgage. The facts are sufficiently stated in the circuit decree and the opinion of this'Court.

<p>Where a cause of action upon a guaranty accrued21st of December, 1866, and the guarantor died in April, 1870: Held, That an action upon the guaranty against the heirs and devisees of the guarantor to subject real estate to the payment of the debt, commenced June 21,1871, was not barred by the Statute of Limitations.</p> <p>An action against heirs and devisees, to subject real estate, descended or devised, to a debt of the testator or intestate, cannot be commenced until nine months after the death of the testator or intestate, although no executor or administrator of the testator or intestate is a party to the action.</p> <p>The Statute of Limitations applies to an action against heirs and devisees to subject real estate in their possession to a debt of their ancestor or devisor.</p> <p>The provision of the Act of 1789 exempting executors or administrators from suit for nine months applies to suits in equity.</p>

Before MAHER, J., at Barnwell, May, 1876. This was an action by M. A. Ransom against M. A. Anderson and N. D. Anderson to recover the possession of certain real estate. The complaint alleged that the plaintiff was seized in fee simple of the premises in question and entitled to the immediate possession thereof.

Before REED, J., at Anderson,. October, 1875. Action by Baxter Hayes, administrator of John B. Armstrong, deceased, against Reuben. Clinkscales. •The case as gathered from the report of a Refei'ee, to whom all the issues were referred, is as follows: The action was to recover the amount of a promissory note for $681.45, given by the defendant to the plaintiff’s intestate, due and payable November 22, 1859.

Before NORTHROP, J., at Spartanburg, April Term, 1877. This was an action by G. D. Carrier, assignee of H. D. Carrier, against James A. Hague and E. L. Hague, his wife. The case, as set forth in a brief prepared by counsel, is as follows: The cause of action, as set forth in the complaint, was a sealed note, as follows: “$188.

<p>Where one is both executor of a will and trustee thereunder of a legacy given by the will, his receipt of the legacy vests the fund in him as trustee, and his co-executor is no longer liable for it.</p> <p>Where A and B were appointed executors of a will and trustees thereunder, and B qualified as executor and accepted the trust, and then A qualified as executor and paid the trust money to B, taking his receipt therefor as trustee: Held, That this was not only evidence that A had not accepted the trust, but was also conclusive evidence that he had repudiated it, and, consequently, that A was not liable to account to the cestui que trusts for the trust fund paid to B.</p> <p>An executor held not liable for the devastavit of his co-executor.</p> <p>One appointed both executor and trustee by the will: Held, Upon the evidence, to have accepted the trust, and by such acceptance to have been discharged from liability as executor.</p> <p>Where one is appointed by the will both executor and trustee, the mere fact that he qualified as executor is not proof that he accepted the trust.</p> <p>The evidence given in the cause held insufficient to prove that one appointed by the will both executor and trustee, and w ho had qualified as executor, had accepted the trust.</p>

Before REED, J., at Charleston, May, 1876, This was an action of Martha R. Singleton against Charles T. Lowndes. The case was referred to Charles H. Simonton, Esq., as Referee, and will be fully understood from his two reports therein. The first report is as follows: The case, as made out in the pleadings and by the evidence, is as follows: The plaintiff is the niece of the defendant, being the only child of his sister, Mrs. Mary Pon Kinloch.

Before REED, J., at Charleston, March, 1877. Action by Wilmot G. DeSaussure and others, as executors of Etienne Poincignon, against Thomas J. Lyons for specific performanee of a contract for the sale of a lot of land in the city of Charleston. The case is as follows: On the 28th of February, 1876, the plaintiffs, as executors as aforesaid, agreed with the defendant to sell to him the said lot of land at a certain price.