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After the passage of the Civil Rights Bill, the orders were to mala- DO distinction at all. *195 *In the latter case, the subject of the grant is dominion over the land. Fair, Jones, for appellant: The parties really interested are creditors of the intestate, whose land was sold by the plaintiff for partition. The plaintiff had no right to receive such cur- rency, and the credits should be stricken out.
CAR.— 1 *2 3 SOUTH CAROLINA REPORTS in charge of the whole premises. On the right hand side is the ladies' room, and my office is on the left. The ticket -window is all of twenty-tive feet from the door of the ladies' room. Not so in the case of a deed conveying the "power of disposal," when such a conveyance is made for the use and enjoyment of the grantee. Credits signed by the plaintiff *201 were entered on the bond as *follows: De- cember 1st, 1862, 3.80; December 7th, 1863, .701 ; December 27th, 1863. The plaintiff appealed from the judgment of the Circuit Court, and the questions made by the appeal appear in the opinion of this Court.
Cab.) REPORTS OF CASES HEARD AND DETERMINED IX THE SUPREME COURT OF SOUTH CAROLINA VOLUME III FROM AUGUST 12, 1871, TO NOVEMBER 20, 1872 BY J.
REPUBLICAN PRINTING COMPANY, STATE PRINTERS 1873 ANNOTATED EDITION ST. 1916 583315 JUDGES AND OTHER LAW OFFICERS DURING THE PERIOD COMPRISED IN THIS VOLUME JUSTICES OF THE SUPREME COURT.
In general, conveyancing deals only with the surface of the ground, and, accordingly, we have come to consider surveyors' lines as the true boundaries of property. The case, as it appeared by the Sheriff's return, was this: There were three execu- tions in the Sheriff's office against Uriah Small, defendant, one in favor of Wm, Mc- Mullen, another in favor of Mary Small, and a third in favor of James P. Mc Mul- len's execution was against Uriah Small and James P. The other executions were against Uriah Small alone. The only parties before the Court were the respondent, Mc Mullen, and the Sher- iff against whom the rule issued. D6 12.] Where a Commissioner in Equity received payments in Confederate currency, on a bond payable to himself as Commissioner, he cannot repudiate his own acts in receiving such cur- rency, and in an action on the bond in his own name, have the credits stricken out.
The legal conception of land is that of a right, within the limits of law, to control some part of the earth embracing its surface and content.
The notion of accessibility forms no part of the idea of land, yet the difficulty that arises in attempting to form a legal concep- tion of a vein of mineral as laud, springs from the idea of its inaccessibility. The Sheriff appealed, on the ground that the Court having held that the money was not applicable to Mc Mullen's execution, the rule should have been discharged. While it was a prompt and efficient remedy against a recusant Sheriff, who, in contempt of the process committed to him, refused or neglected to appropriate money collected by sale or otherwise, to the execution of the plaintiff clearly entitled to it, it was not to be substituted, as the process through which the rights of contending parties to such mon- ey were to be decided. We are not disposed to extend the power of deciding rights under a proceeding by rule against the Sheriff, beyond the limit to which it has been allowed by the decisions hereto- fore made in the Courts of this State. although proved to have been given as a renewal of a note given for loaned Confederate States notes, bearing date the 11th of February, 1st;:;, was a new contract, entered into after the war. So, had proof of that character been introduced, the ruling brought before us would have to be regarded as, in effect, destroying the value of such testimony, and would be held er- roneous. Although the Circuit Court clearly mis- conceived the operation of the Act "to deter- mine the value) of contracts made in Con- *200 federate *States notes or their equivalent," (14 Stat., UTT,) still there was no error in the charge that the note in question was not subject to the provisions of that Act, for, as we are hound to assume from the case as it stands before us, no evidence was offered sufficient to show that the parties contracted in reference to Confederate values. For the same reason, the request to charge was ir- relevant to the case. therefore, of no importance to the defendant to connect the renewed note with the orig- inal note as part and parcel of the same transaction and obligation.
Such is the practice of mankind, and it is due to the practice of the law that its ideas should keep pace with the habits and usages of practical life. Small, and ordered the Sheriff to apply it to that execution. The mode of proceeding by rule to compel a Sheriff to apply money raised by sale of a defendant's property, must be restricted to the end for which it was intended by the long practice which has sanctioned its use. ©=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 95 '198 3 SOUTH CAROLINA REPORTS 3 S. His Honor charged the jury that he re- garded the note of 1865 as a different con- tract from that of 1st;::, the one being paya- ble in Confederate money, and the other in United states currency. Because his Honor erred in charging the jury, that the note sued on. Had the defendant offered testimony tend- ing to show that the parties used the term "dollars" in a mistaken sense, mutually adopted, or in a sense dictated by the com- mon understanding and usage of the com- munity in Which they resided and dealt, it would not have been competent, under the rulings in Neely v. for the Circuit Court to have rejected such testimony.
If we find difficulty in conceiving of the ownership of *1 96 a vein of mineral as land, it probably 'arises from the fact that we cannot conceive of the outlines of such property being traced by surveyors' lines. A man's possessions, as the owner of laud, is a solid body of rock, soil and water, bounded by planes instead of lines. (November Term, 1871.) [Execution 328.] Before Thomas, J., at Lancaster, October Term, 1870. Under these executions, the Sheriff *197 sold property of Uriah Small, *and this rule was granted, at the instance of Mc Mullen, to compel the Sheriff to apply the money arising from the sale to his execution. The opinion of the Court was delivered by MOSES, C. When the Circuit Judge held that the fund, in the hands of the Sheriff, was not applicable to the execution of the plaintiff, at whose in- stance the rule was ordered, it should have been discharged. (April Tenn, 1871.) [Hill* and Note* «=»131.] Action on a waled cote, dated in the fall of 1865, the consideration of which was an- other Bealed note, given in 1863, payable in dol- lars. 0., 169, we held that although the words "dollars" and -- la\ ful money" were used in a contract, still, it was competent to enquire, as a question of fact, into the intent and understanding of the parties in the use of such terms. I don't know when this Bill was passed, but it was before this. That the defendants are liable, notwith- standing that the servant acted contrary to their instructions, if he acted as their ser- vant. That the servant was acting in the course of his employment. That whether the servant was acting in the course of his employment, was a question of fact, and should have been submitted to the jury to decide. If Wollen was at the time acting as the servant of the respondents, hut acted in vio- lation of their orders, the respondents are unquestionably liable for his acts, unless they are shown to be willful or malicious. The evidence shows that Wollen was at the time in the course of his employment, and hence the respondents are liable, in the absence of any evidence tending to show that he acted willfully or maliciously. The question whether Woden was at the time in the course of his employment is a mixed question of law and fact. ♦They cited upon the first point — Story on Ag., § 452; Mc Manus v. That case professed to follow Lord Mountjoy's case, and we are at liberty to conclude that the construction put upon the grant was the result of the principle settled in that case. In these cases, payments in Confederate money to an attorney on a mort- gage, were set aside, and the mortgage set up. That ceased to be as soon as the Civil Rights Bill had passed. I told him that it was done without my knowledge or consent. The plaintiffs here rested, and the defend- ant ruoved for a nonsuit on the grounds: That Charles Wollen was not acting within the scope of any employment or agency, di- rect or indirect, when he excluded plaintiff from the saloon, but was acting without au- thority, beyond his legitimate employment, and in violation of the instructions and wishes of the defendant, extended to its prop- er agents ; and that, upon the testimony, the act was the tort of Charles Wollen, for which he is responsible, and not the Company. The plaintiffs appealed to this Court, on the grounds: 1. 07.] Chamberlain, Seabrook & Dunbar, for ap- pellants, maintained the following proposi- tions: 1. to pass upon the question, but it should have been submitted to the jury under proper in- structions as to the matters of law involved. This shows clearly that the limita- tion, as to time, was not the turning point in the case. Mcmullen 498 a question whether the owner of the soil can reach it, in order to perfect a symbolical de- livery, but whether the statute of uses can reach it so as to give effect to a deed of bar- gain and sale. Although a rule to compel the payment, to a plaintiff in an execution, of money collect- *198 ed by the Sheriff, lies at the instance of *such plaintiff, (Kirkpatrick & Co. Ford & Aiken, 2 Speer, 112,) yet if it appears by the cause shown, that the fund is claimed by different parties, and it is doubtful which of them is entitled to it, the rule will be dismissed, and the parties left to litigate their rights by suit.
As it regards livery of seizin, it is not, now-a-days, caskey v. It is only on the sup- position that the Sheriff is in contempt, that the Court enforces the rule by an order of attachment ; and when it is made to appear that, as against the plaintiff who has brought him before the Court, he has violated no right or duty, the rule must be discharged. The motion is granted, and the order of the Circuit Court set aside. and not subject to the provisions of the Act of 1st; 1 .), to determine the value of contracts made in Confederate States notes, or their equivalent. Because the renewal of a note is not a new contract, hut a recognition of the former contract. But it does not appear that any other evi- dence was introduced tending to show that the parties intended something different from the legal import of the term "dollars," than the fact that the only consideration of the note sued upon was a previous note, made in is! Had the original note been sued upon, the plaintiff would have been entitled to recover the full nominal value of that note in United States currency, unless something more was shown than the date of the note. By the terms of the Act, the statute did not extend to the case. Had the original note been sued upon, as has been stated, the evi- dence before the Court would have entitled the plaintiff to recover the full value of that note in United States currency. I gave no instructions to keep colored persons out of the parlors, and there were none at that time. He then said that his foster sister had been ordered *3 out of that *room. Redding, or any body with her, with re- gard to any violence. I know that she has been in there and nobody disturbed her. At no time that night was any complaint made by her or anybody about any violence. Had there been anything In the granting part of the deed, or in the consideration, showing that the parties intended it to he exclusive, it is clear that it would have been upheld as a de- mise. Where a case is opened under the Ordi- nance of 1865, the true value only of the pay- ments should be allowed.