the other creditor as a non-resident, without averring that his debt
had been paid, or released, or that he had waived or refused the ben-
efit of the common security. Saffold v. Wade's Executor, 214.
41. Same. A creditor whose claim against the insolvent estate of his
deceased debtor has been destroyed as a subsisting debt, by the fail-
ure to file it within nine months after the declaration of insolvency,
cannot be subrogated in equity to the rights of a surety under a
mortgage given for his indemnity by the debtor. Watson v. Rose's
Executor, 292.
42. Same; assignment of mortgage. When a mortgage of land given by
the principal debtor to his surety, for indemnity against the debt, is
transferred by the surety to the personal representative of the de-
ceased creditor, in consideration of his release from liability on the
debt, the transfer will be upheld in equity as an equitable assignment
of the mortgage, although it contains no technical words of convey-
ance, and is neither attested nor acknowledged as a deed; and the
mortgage may be foreclosed by the assignee. Carlisle v. Wilkins's
Adm'rs, 371.

43. Resulting trust in lands, in favor of person advancing purchase-money.
The principle is well settled, that a resulting trust in lands, in favor
of the person by whom the purchase-money was advanced, may be
established by parol evidence; but the evidence must be full, clear,
and convincing. In this case, the verbal declarations of the father,
in whom the legal title was vested, as made to one witness, both be-
fore and after the purchase, were held insufficient to establish a trust
in favor of his son; there being an unexplained discrepancy between
the amount of the purchase-money paid, as recited in the deed, and
that alleged to have been advanced by the son; the person by whom
the money was alleged to have been sent not being examined as a
witness, and there being no knowledge of the trust, or other con-
firmatory proof, among the members of the family. Lee v. Browder,
288.
44. Resulting trust in lands declared against purchaser at execution sale.
Where a purchaser at sheriff's sale verbally agreed with the defendant
in execution, prior to the sale, to pay a specified price for one of the
two tracts of land, and to apply the purchase-money in satisfaction of
the judgments and other debts which might have liens on the lands,
paying over the residue, if any, to the defendant himself; and, hav-
ing bought both tracts at the sale, for a price much less than he had
agreed to give for one, and paid the purchase-money as stipulated, he
took possession of the tract which he had agreed to buy, but left the
defendant in undisturbed possession of the other up to the time of his
death, disclaiming any right to it in himself; held, that a court of
equity would, on these facts, declare a resulting trust in favor of the
defendant, or, on his death and insolvency, in favor of his creditors,
in the tract of land so left in his possession, but would not hold the
purchaser liable for the estimated value of certain trees on the other
tract, which the defendant reserved by the contract, but which he
never removed or demanded. Carithers v. Lay's Adm'r, 391.
45. Construction of trust deeds, as to powers and duties of trustee, and in-
terest and liability of husband in and for surplus profits. A deed of
gift, executed in South Carolina prior to 1860, conveying about
thirty slaves to a trustee, in trust that he would allow the said
K. C. D.," the husband of a married woman, who was the daughter
(or, in another case, a near relative) of the grantor, "to possess the
said slaves, their issue, and increase, and to take the profits of their
labor, for the maintenance of himself and family, during the life of
the said Elizabeth," his wife, "or so long as he is willing to remain

CHANCERY — Continued.

and keep them in said State;" if the wife survived her husband,
the trust was to cease, and she was to have the absolute estate; if he
survived her, the trust was to continue as before, until each child
attained majority, when he or she was entitled to receive a propor-
tionate share of the property according to the number of the children;
and if the husband should die before his wife, or remove from South
Carolina, then the trustee "may sell" the said slaves, or any part
thereof, as he may think best, except the house servants, which the
said Elizabeth may reserve and take with her," and invest the pro-
ceeds of such sale in any manner he may think best, for the benefit
of the said Elizabeth and her children, held, 1st, not to require
the trustee to dispossess the husband of the property, on his removal
from South Carolina; 2d, nor to render either the trustee or the hus-
band liable to a strict account of the profits of the property and the
expenses of the family, or responsible for any excess of profits over
expenses. Du Bose v. Carlisle, 590.
46. Purchase of lands pending suit in chancery. When land is sold
under a decree in chancery, subjecting it to the payment of the com-
plainant's debt against the defendant, and is bought at the sale by
the complainant, who receives the register's deed; and an ejectment
suit is at the same time pending against the defendant by a third
person, to recover the land; the chancellor will, on the petition of
the purchaser, award a writ of assistance, to put him in possession,
against a tenant who, pending the chancery suit, was intruded on
the land by the plaintiff in ejectment. Chapman v. Gibbs, 502.

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II. PLEADING AND PRACTICE.

47. Where bill may be filed. — A bill for the partition of lands between
several tenants in common, an account of the rents and profits while
in the possession of a purchaser, and the removal, if necessary, of
the trustee, who refuses to assert his legal rights, is properly filed in
the district in which the lands are situated, and material defendants
reside, although the trustee was appointed by the chancery court of
another district. Tindal v. Drake, 574.

48. Filing bill. A bill in chancery is to be considered as filed so as to
entitle it to a place on the docket, and put it in the custody and
power of the court, when it is deposited with the register, or with his
assistant in his office, with the intention of filing it, although the
fact and date of filing are not then indorsed on it. The State, ex rel.
Stow, 69.
49. Dismissal of bill by complainant. The complainant may dismiss his
bill at pleasure at any time before the defendant has pleaded, an-
swered, or demurred, and without notice to any one; and an entry
of such dismissal on the docket, made on a rule day at his instance,
by the register's clerk, will be presumed to have been made with the
knowledge and approval of the register himself. Ib. 69.

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50. Pendency of two or more bills between same parties at same time; elec-
tion. - On motion to strike from the docket one or more of several
causes standing on the docket at the same time, between the same
parties, and relating to the same matters, the proper practice is a rule
on the plaintiff, in the first instance, to show cause why he should not
make his election between the several suits, and to dismiss or strike
from the docket all the others; and if he fails or refuses to make an
election, to dismiss all except the suit first commenced. Ib. 69.
51. Who may file bill to enjoin illegal tax. — A bill in chancery against a
municipal corporation, to prevent a threatened usurpation of power
by the corporate authorities, or the violation of a duty imposed by law,
whereby the burden of taxation will be increased, may be filed by

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CHANCERY - Continued.

property-holders or tax-payers, without the intervention of the attor-
ney general, or other officer representing the State. N. O., M. & C.
Railroad Co. v. Dunn, 128.

52. Parties to bill to enforce vendor's lien. - When lands are sold by an
administrator under an order of the probate court, and the purchase-
money is not paid, the right to file a bill to enforce the vendor's lien
ordinarily belongs to the personal representative; but, when the sale
is made for division among the heirs, they may maintain a bill for
that purpose in their own names. Knight v. Blanton's Heirs, 333.
53. Misjoinder of plaintiffs. It was formerly a rule of chancery prac-
tice, that where several persons joined as plaintiff's in a suit, all must
be entitled to relief, or the bill would be dismissed; but, under the
liberal system of amendments now prevailing, relief may be granted
to a part of the plaintiffs, and the bill be dismissed as to the others.
lb. 333.

54. Multifariousness.

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A bill for the partition of lands, and an account
of the rents and profits while in the possession of a purchaser, is not
multifarious, because it also asks the removal, if necessary, of the
trustee, who refuses to assert his legal rights against the purchaser.
Tindal v. Drake, 574.

55. Parties to bill for partition. Where children take as tenants in com-
mon under a deed, whether immediately or in remainder, the children
and heirs of a deceased tenant may join with the survivors in a bill
for partition and an account of the rents and profits. Ib. 574.
56. Same. If the bill seeks a partition of lands, and an account of the
rents and profits which accrued after the death of a deceased tenant
in common, his personal representative is not a necessary or proper
party; but, if it also seeks an account of the rents and profits which
accrued prior to his death, his personal representative is a necessary
party, unless facts are averred which show that there is no necessity
for administration on his estate. Ib. 574.

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57. Non-joinder of parties. A bill should not be dismissed, on account
of the non-joinder of necessary parties, without giving the complain-
ant an opportunity to bring them in by amendment. Ib. 574.
58. Defective service of process.- A defective service of process on a de-
fendant who, though not a necessary, is a proper party to the bill, is
a reversible error. Curry v. Falkner, 564.

59. Publication against non-resident defendant. When there is a non-
resident defendant, the 22d rule of chancery practice requires that
the affidavit of his non-residence must state the place of his residence,
if known, or the fact that it is unknown; and a copy of the order
of publication must be sent to him by mail, if his place of residence
is known. lb. 564.

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60. Publication against non-resident defendant. In making publication
against a non-resident defendant, it is discretionary with the register
or the chancellor to designate the place where the order shall be pub-
lished; and it is no objection to an order of publication, made by
the register in chancery of Russell county, Alabama, that it is re-
quired to be published in Columbus, Georgia. Mobley v. Leophart,

587.

61. Same; waiver of irregularity. A defendant who cross-examined
witnesses, and submitted the cause for final decree on pleadings and
proof, without raising any objection to the regularity of an order of
publication and decree pro confesso against another defendant, who
was a non-resident, cannot question their regularity on error. Ib. 587.
62. Dissolution of injunction, for want of equity in bill. When the bill
alleges a substantial ground for equitable relief, the injunction should
not be dissolved on account of a defective allegation, which might be
remedied by amendment. Robertson v. Walker, 484.

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CHANCERY. - Continued.

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63. Same; on denials of answer.· When the answer denies, fully and
directly, all the allegations on which the equity of the bill rests, the
injunction should be dissolved on motion, unless special reasons for
retaining it are shown; and when the injunction seeks to restrain
the enforcement of a judgment or decree for money (Rev. Code,
§ 3437), a refunding bond should be required from the defendant.
Robertson v. Walker, 484.

64. Conditional continuance. — In a chancery cause, an order granting a
continuance to the defendant, on condition that he execute a bond,
with sureties, for the payment of whatever decree may be finally ren-
dered against him in the suit, is not in excess of the discretionary
power of the court in the imposition of terms. Dudley v. Witter,
456.

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65. Chancellor's decree on question of fact. -The chancellor's decision on
a question of fact will not be reversed on error or appeal, unless
there is a decided preponderance of the evidence against its correct-
ness. Bogan v. Daughdrill, 312.

66. Trial of issue of fact; bill of exceptions. A bill of exceptions is
unknown to chancery practice, and cannot be reserved to the rulings
of the chancellor on the trial of an issue of fact before him by a
jury; the only remedy for erroneous rulings, whether the issue is
tried at law or before the chancellor, is an application to the chan-
cery court for a new trial. Barnett v. M. & E. Railroad Co. 555.
67. Attachment for contempt; right to be heard by counsel.. When a
party to a pending chancery suit is attached for contempt in violating
an injunction, there is no provision of law, constitutional or statu-
tory, which secures to him the right to be heard by counsel in the
matter of the contempt. Ex parte Hamilton & Smith, 66.

68. When prohibition lies not to chancellor. This court will not award a
writ of prohibition to the chancellor, at the instance of a defendant
in a pending suit, to restrain action under a bill for injunction in the
matter of a contested election, and under an attachment for contempt
in violating the injunction, on the ground that the chancery court has
no jurisdiction of the subject-matter of the bill, when it does not
appear that the petitioner has ever answered the bill, or moved to
dismiss it for want of equity, or sought relief in any other mode in
the chancery court. Ex parte Hamilton, 62.

CHANGE OF VENUE.

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1. In criminal case; to what county. Under the statute which gives the
defendant in a criminal case the right to a change of venue (Rev.
Code, §§ 4206-7), the venue must be changed, on his proper appli-
cation, to the nearest county free from objection;" and neither
the time when the next term of the court will be held in that county,
nor the convenience of the witnesses, is sufficient to authorize the
removal to any other county. Ex parte Reeves, 55.

2. Clerk's certificate to transcript. It is not necessary that the clerk's
certificate, appended to the transcript on a change of venue, should
be under his seal, private or official; and if the certificate is other-
wise defective, its defects may be supplied by the testimony of the
clerk. Hall v. The State, 9.

CHARGE TO JURY.

1. Abstract charge.

An abstract charge may properly be refused, al-
though it asserts a correct legal proposition. Drake v. The State,
30; Faulk v. The State, 15.

2. Charge assuming facts not proved. — A charge to the jury must be
confined to the evidence: a charge which assumes as proved a fact

of which there is no evidence whatever, is erroneous.
Falkner, 359.

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Wise v.

3. Charge excluding part of evidence. A charge which, in effect, ex-
cludes from the consideration of the jury any evidence, however
weak, tending to prove a fact material to the party excepting, is
erroneous. M. & W. P. Railroad Co. v. Moore, 394.

4. General charge on evidence. When the evidence is conflicting as to
any fact, which is material to the determination of the cause, a gen-
eral charge in favor of either party is erroneous. McGehee v. Har-
rison, 522.

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5. Giving charge as asked, but in connection with general charge. When
the court, after having given a general charge to the jury, gives a
special charge at the request of one of the parties, the special must
necessarily be considered by them in connection with the general
charge; and the court may so instruct them. Hemingway v. Garth,

530.

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6. Charge on part of evidence. A party has the right to request instruc-
tions to the jury, based on the hypothesis which the evidence in his
favor tends to establish; such charges are not objectionable, though
based on a partial view of the evidence, since the opposite party may
request charges founded on a contrary hypothesis, if there is evi-
dence tending to establish it. Griel & Brother v. Marks, Fitzpatrick
& Co. 566.

COMMISSIONER OF DEEDS.
Appointment, and proof thereof. The appointment of a commissioner
by the governor, to take the acknowledgment of deeds, &c., in an-
other state or territory (Rev. Code, § 65), may be certified by a com-
mission under the great seal of the State, signed by the governor in
his official capacity, and countersigned by the secretary of state;
and the courts will take judicial notice of the officer when appointed.
Keller v. Moore, 340.

COMMISSION MERCHANTS.

1. Factor's lien. A factor has a lien on the goods in his possession, not
only for his advances, commissions, and expenses, but also for any
general balance due him; but he cannot assert this lien in opposi-
tion to the terms of a special contract, under which he received the
goods. Schiffer & Nephews v. Feagin, 335.

2. Commissions for advances.

A charge of two and a half per cent. for
advances by a factor or commission merchant, when not used as a
device for usury, is legal, and is regarded as a just compensation for
the risk, trouble, and expense incurred. Ib. 335.

COMMON CARRIERS.

1. Burden of proof as to damage or injury to goods. When goods are
delivered by a common carrier in a damaged or injured condition,
the onus is on him to show that they were received by him in that
condition, or that the injury occurred, without fault on his part, by
the act of God or a public enemy. M. & W. P. Railroad Co. v.
Moore, 394.

2. Liability of carriers owning different parts of continuous line or route of
transportation.· When parts of a continuous line or route of trans-
portation are owned by different carriers, between whom no connec-
tion is shown to exist, each carrier is liable, in the absence of a
special contract, only for losses and injuries occurring on his own
particular portion of the route. Ib. 394.

3. Liability for loss of goods; what constitutes delivery. — To render a com-
mon carrier liable for the loss of goods, there must have been an
actual delivery of the goods to him, or a constructive delivery, with