Index to Thirteenth Volume.

pends the operation of the order and prohibits the further action of
the receiver in carrying out the mandate of the order from which
the appeal is taken. State vs. Johnson.....

2. An injunction, restraining a Board of Canvassers from pro-
ceeding to canvass and certify the result of an election until the
further order of the Judge granting the same, where the statute re-
quires the Board to proceed by a certain day, is unauthorized.
ex rel. Bloxham vs. State Board of Canvassers....

State

3. An injunction will not be granted if the party seeking it could,
by proper vigilance, have protected himself by the ordinary means
at law, or where the case in equity proceeds upon a defence equally
available at law. County Commissioners Columbia County VS.
Bryson, et al.....

..... 28x

4. Courts of equity will not interfere by injunction to stay pro-
ceedings upon a writ of mandamus.—Ibid.....

5. Where the land of one is levied upon to satisfy the debt of
another, a bill for injunction may be maintained to restrain the sale,
notwithstanding the party injured may have an action at law, an
actual sale having the effect of bringing a cloud upon his title and
affecting the value of the property to an extent not easily susceptible
of measurement or redress at law. Budd vs. Long.....

6. A Court of Equity will not enjoin a judgment and execution
on the ground that there were errors and irregularities in the pro-
ceedings anterior to judgment, the correction of such errors being
the proper subject of motion or writ of error.-Ibid.....

7. An injunction continues, under the practice in this State, for
the time fixed by the order granting it, and if no time is limited,
until the hearing, unless it is sooner dissolved. There are no terms
of the court for chancery proceedings. The court, under the statute,
is always open for such proceedings, whether interlocutory or final.
Scarlett vs. Hicks, et al......

8. To dissolve an injunction where the only relief to be obtained
is a perpetual injunction staying proceedings at law, is equivalent
to dismissing the bill. In such a case as this, where there is abund-
ant equity in the bill, where some of the defendants are non-resi-
dents, and where a subpoena has been issued and served upon one
of the defendants in person, and upon the attorney of the non-resi-
dent defendants, the injunction should not be dissolved upon the
ground of delay in prosecuting the suit.-Ibid..

9. That a party procures the entry of his appearance with the state-
ment that his appearance is special, does not alter the effect of the
appearance if he contests the suit upon its merits. If, notwithstand-
ing this entry, he contests the suit upon its merits in the court below,
obtaining a judgment in his favor, and upon an appeal to this court

Index to Thirteenth Volume.

contests the appeal upon its merits, he is in court for all purposes,
and upon remanding the case will be held to file his defences in the
regular order of pleading.—Ibid.....

10.

That defendant "has interfered and intermeddled with the
property and still continues to do so, and has and still continues to for-
bid the tenants and lessees to pay the rents to the plaintiff, and has
forcibly entered one of the buildings on the premises," does not lay
a foundation for an injunction. There are clear remedies at law for
a failure of a lessee to pay rent. The forcible entry is remediable at
law also, and the terms "interfering and intermeddling" do not dis-
close a case of threatened trespass, accompanied with irreparable in-
jury or other circumstances calling for the aid of a court of equity.
Burns vs. Sanderson & Burns..

(See Practice, 28-29.)

314

381

INSOLVENCY OF ESTATES-

was

1. A Sheriff was required by a rule of court to report what action
had been taken under an execution, and reported on oath that he
had sold property of the defendant in judgment and execution, (who
an administratrix,) and had realized a sum of money from said
sale, but that he had, before sale of the property, been notified of the
fact that the administratrix had filed notice of the insolvency of the
estate in the Probate Court, and that such notice of insolvency was
on file in the records of said Probate Court; whereupon on the mo-
tion of the attorney of the plaintiffs in the judgment and execution,
the court ordered the Sheriff to pay over to the said attorney the
money realized on said execution from such sale, or stand committed
as for contempt, and the Sheriff paid over said moneys under the
order: Held, That the return of the Sheriff that a suggestion of
the insolvency of said estate had been duly made and filed in the
Probate Court, tendered an issue to the rule, and the peremptory or
der to pay over the money to the attorney without inquiring into the
truth of the return was an error, and if such suggestion of insolven-
cy had in fact been filed by the administratrix, it was unlawful to
direct the Sheriff to pay the money to the attorney, as the money
represented assets of the insolvent estate and should be distributed
pro rata in the settlement. Matthews, Sheriff, vs. Williams...

2. When money has been thus paid over, and the order is reversed
or set aside, the court should require the money to be restored, and
is clothed with power to enforce restitution by summary process.
Ibid.

615

615

(See Limitations.)

INSTRUCTIONS-

I. It is not error for the Court to refuse to repeat instructions al-
ready given to the jury. Dixon vs. State.....

636

Index to Thirteenth Volume.

INSTRUCTIONS

(Continued.)

2. The jury having returned into Court asked the instruction of
the Court upon
a particular question, and the Court gave them an
instruction verbally and afterwards reduced it to writing from mem-
ory: Held, That under the statutes, the charge and instructions of
the Court to the jury must be first reduced to writing, and given to
them as written.-Ibid....

636

3. The Court should give counsel an opportunity to reduce to
writing any special instruction, relating to points contained in his
charge or instructions, and should give in writing his own ruling
of the law upon the points raised as presented, and declare the same
to the jury.-Ibid...
636

4.

It is not error to permit the jury to take with them, when they
retire to deliberate, the written charge and instructions of the Court,
provided they take the whole of them.-Ibid.....

5. Where facts are in issue under the pleadings, it is the exclu-
sive province of the jury, under the statute regulating criminal pro-
ceedings in this State, to determine whether such facts are establish-
ed by the testimony; therefore, in a prosecution for "receiving sto-
len goods, knowing the same to have been stolen," a charge of the
court that "the place, the date, the value of the property, and the
fact that a bale of cotton was stolen, have been fully established,"
is erroneous. Collins vs. State....

INTERNAL IMPROVEMENT ACT-

(See Constitutional Law, 11.)

JUDGMENT-

636

651

I. Royall made a bona fide sale to L. and M. of a judgment and
execution which was a lien upon property covered by a junior mort-
gage, under which execution the mortgaged property was improper-
ly sold, after the transfer of the judgment and execution. In a suit
in equity, instituted for the purpose of foreclosing the mortgage, and
to set aside the sale under the execution, it is not necessary to make
the original plaintiff, who had so parted with his interest in the
judgment and execution, a party to the foreclosure suit, as he had no
legal or equitable interest in the matter. Ritch vs. Eichelberger et al..... 169

2. When a party has two funds out of which he can satisfy his
debt, and a junior creditor has a lien upon one of the funds only,
the first creditor will, in equity, be compelled to resort to that fund
which the junior creditor cannot reach, so that the junior creditor
may avail himself of his only security, where it can be done without
injustice or injury to the debtor or creditor.—Ibid..

3. After successive pleas have been held bad, on demurrer thereto,
it is error to enter a judgment for want of a plea; the proper judg
ment is a final judgment on the demurrer. Garlington vs. Priest.....

169

559

Index to Thirteenth Volume.

JUDGMENT―(Continued.)

4. Where the judgment of the Circuit Court is based upon a consideration of all the testimony adduced, and none of the testimony is properly brought before this Court, the judgment must be affirmed. Penny vs. Holmes..

5. A decision of the Circuit Court overruling a demurrer in an "action for the recovery of money only," is not such an "order, decision, or judgment," as authorizes an appeal before final judgment under section 10 of the Code of Procedure. Barkley vs. Russ......

6. All the persons named as plaintiffs or defendants in a joint judgment must join in prosecuting a writ of error, but if some refuse the others may prosecute it in the names of all without their consent. Standley vs. Jaffray et al.....

(See Arrest of Judgment. See Jurisdiction, 12. See Mortgage.)

JURISDICTION—

I. Where there are equities arising from contract, or by operation of law, by virtue of which the plaintiff is entitled to subject specific property to sale, the courts of the State where the property is situated have jurisdiction, although none of the parties are residents of the State where the property is. In such a case the jurisdiction attaches to the thing, and can only be brought into action where the thing is. La Trobe et al. vs. Hayward......

2. A bill in chancery was filed, praying that the record of a judgment at law and an execution thereon, which had been destroyed by fire, might be re-established or supplied by copies thereof, and that a copy of the execution might be placed in the hands of the sheriff in lieu of the one destroyed: Held, On demurrer to the bill, that the power to supply a new record when the original has been lost or destroyed, pertains to the court in which the record was made, and is an inherent power in courts of general jurisdiction; and a court of equity has no jurisdiction to supply or establish the record of a court of law which has been lost or destroyed. Keen et al. VS. Jordan

cause

......

3. When a Judge of the Circuit Court orders the transfer of a to another circuit, under the provisions of "an act to provide for the more effectual administration of justice in this State," approved January 24, 1851, he should affirmatively state in the order of transfer, or in some other paper to be filed, the reason why the transfer is made, or the order will be irregular. Swepson et al. vs. Call and Baker...

...

4. A judge has no jurisdiction of a cause in which he is interested, and can make no order therein except for the purpose of transferring it to some other circuit whereof the judge is qualified to try the cause, and if the judge of the circuit to which the cause is sent

579

589

596

190

327

337

S. C. R. Vol. XIII.-49.

Index to Thirteenth Volume.

is also disqualified, held, that it is his duty to order the papers to be returned to the court from which they were sent, in order that some other circuit may be selected.-Ibid...

5. The jurisdiction of the court in which a suit is commenced is not provided merely by an order of transfer under the act of January 24, 1851, nor does the court to which the transfer is directed to be made obtain jurisdiction until the papers reach the court mentioned in the order.-Ibid....

clerk of the

6. A civil cause is not pending in a court until the papers showing the existence of the cause are deposited with the clerk who has the custody of the records of the court having jurisdiction of the cause. Ibid.

7. The requirements of a statute authorizing a transfer of a cause from one court to another must be strictly observed and everything necessary to transfer jurisdiction under the statute must appear in the record of the cause.-Ibid...

337

337

337

337

8. The fourth section of the act approved January 24, 1851, authorizing a judge of one circuit to make orders in suits pending in another circuit in vacation, when the judge of the latter circuit is under the disabilities mentioned in the act, is not in conflict with the Constitution of 1868. The order made by the judge of another circuit is pro hac vice the order of the court in which the cause is pending, and such order must be filed therein.-Ibid.. 337

9. An order of a circuit judge in a cause supposed to be pending in another circuit is void, unless the cause is pending therein at the time the order is made.-Ibid....

10.

Where the statute prescribes a particular mode of serving the process, and that the officer's return shall show the precise manner of service, a return stating that the process is "served on the within named party," is not sufficient to authorize the entry of a judgment or decree. The statute must be strictly pursued in such cases, other wise the court has not jurisdiction of the person of the party to be served. Standley vs. Arnow..

11. The courts of this State derive their jurisdiction from the State constitution. They cannot assume jurisdiction not granted, or which is denied, although the effect may be that the obligation of a contract cannot be enforced. The jurisdiction of the courts is no part of the obligation of a contract. The last clause of section 26, article xvi, of the constitution, provides that "all judgments and decrees rendered in any of the courts of this State since the 10th day of January, A. D. 1861, upon all deeds or bills of sale, or upon any bond, bill, note, or other evidence of debt, based upon the sale or purchase of slaves, are hereby declared set aside, and the plea of failure of consideration shall be held a good defence in all actions in said suits." McNealy vs. Gregory...

337

361

417