(55 S. C. 193)

STATE v. WINE et al. (Supreme Court of South Carolina. May 18, 1899.)

CRIMINAL LAW-APPEAL-REINSTATEMENT.

Appeal in murder case, dismissed by the clerk for noncompliance with Sup. Ct. Rule 7, will be reinstated on showing that appellants are unable to pay the fees of the stenographer for a certified copy of his notes of the testimony, claimed to be necessary for proper preparation of the "case," and that he has refused to furnish them therewith without payment of his fees in advance.

Warley Wine and another were convicted of murder, and appealed. Their appeal was dismissed, and they move to reinstate the same. Granted.

C. M. Efird, for the motion. U. X. Gunter, Asst. Atty. Gen., for the State.

McIVER, C. J. This is motion to reinstate an appeal dismissed by the clerk for failure to comply with the provisions of rule 7 of this court. The motion is Jased upon the ground that appellants are unable to pay the fees of the stenographer for a certified copy of his notes of testimony taken at the trial, which is claimed to be necessary for the proper preparation of the "case," and that, upon demand, the stenographer has refused to furnish appellants with a copy of the testimony unless his fees are paid in advance. It appears from the record submitted to us that appellants have been convicted of the offense of murder, and sentenced to be hanged; that they have appealed, and are unable to perfect their appeal by reason of their inability to pay the expense of procuring a copy of the testimony, the charge of the judge presiding at the trial, and of his rulings during the trial. It would amount to a denial of justice to refuse the motion to reinstate the appeal which has been dismissed by the clerk, properly, under the showing made before him. This court therefore feels bound to exhaust every effort in the case involving such grave consequences, to enable the appellants to secure their right of appeal. It is therefore ordered that the motion to reinstate this appeal be granted, and that the stenographer of the First circuit be, and he is hereby, required to file with the clerk of this court, on or before the first day 33 S.E.-1

of the next term of this court, for the use of the supreme court in considering this appeal, a copy of the testimony taken at the trial, together with a copy of the judge's charge, and his rulings during the trial. It is further ordered that a certified copy of this order be served upon the stenographer of the First circuit as soon as practicable. It is further ordered that this case be continued until the next term of this court.

(55 S. C. 132)

NEWTON v. WOODLEY. (Supreme Court of South Carolina. May 9, 1899.)

APPEAL-REHEARING.

It is no ground for exception to the rule that rehearing will not be granted, though the court was equally divided, unless some material fact or principle has been overlooked or disregarded, that the question involved is of grave public importance, involving the interests of the public generally as well as of the parties, and that the question arises out of the construction of a written instrument, in its relation to a statute.

On rehearing. Denied.

For former opinion, see 32 S. E. 531.

PER CURIAM. This court being equally divided upon the question involved in this case, as appears by the opinions filed on the 23d day of March, 1899 (32 S. E. 531), the judgment of the circuit court stands affirmed, by virtue of the provisions of the constitution of this state. The appellant now files his petition for a rehearing, for the purpose of having the question involved authoritatively determined by the court en banc, as provided for in section 12 of article 5 of the constitution. Inasmuch as it is not, and cannot be, claimed that any constitutional question is involved, the circuit judges cannot be called to the assistance of this court, as provided for in the constitutional provision above cited, unless at least two of the justices of this court desire it; and, as no such desire has been expressed, this would be decisive. We may add, however, in deference to the zeal and earnestness with which this petition has been urged, that we see no ground for making this case an exception to the well-settled rule in regard to petitions for a rehearing, viz. that, unless some material fact or prin

ciple of law has been overlooked or disregarded, the petition will not be granted. This salutary rule is frankly conceded by counsel for petitioner to be necessary to prevent delays in the administration of justice, and to insure the prompt determination of controversies between citizens; but they seek to take this case out of the operation of this rule by the following considerations: (1) Because of the grave public importance of the question involved; involving not merely the interests of the parties to this case, but also the interests of the public generally. (2) Because the question involved does not grow out of the testimony adduced in this case, but arises out of the construction of a written instrument, in its relation to the statute forbidding the taking of usury. (3) Because, "in the brief space of time in which counsel agreed and undertook to present the appeal, it was done in an unsatisfactory and perfunctory manner," and that for this reason the distinction in questions of usury, between contracts executed and executory, was not fully discussed by counsel "in their hurried argument," and hence such distinction was overlooked by the court. As to the first and second of these considerations, it is sufficient to say that they have been found in many cases, and no doubt will be found in many other cases; and to allow such considerations the force of qualifying the well-settled rule would, to a great extent, emasculate the rule, and defeat its salutary effect in preventing delays in the administration of justice. As to the third consideration, it seems to us that counsel fail to do themselves justice in characterizing their argument as "perfunctory"; but, in addition to this, we are able to say that the case was thoroughly and carefully considered, and the point as to the distinction between contracts executed and executory was not only not overlooked, but was expressly referred to in one of the opinions. Inasmuch as it is claimed that this case presents an exception to the general rule, we have departed from our usual custom in disposing of petitions for a rehearing, solely for the purpose of indicating the reasons why we do not consider that this case can be taken out of the operation of the general rule; and, after a careful consideration of the whole matter, we are of opinion that there is no ground for a rehearing. It is therefore ordered that the petition be dismissed, and that the stay of the remittitur heretofore granted be revoked.

(55 S. C. 254)

DE LOACH v. SARRATT et al.1 (Supreme Court of South Carolina. May 1, 1899.)

DEATH OF PARTY-REVIVAL AGAINST REPRESENTA

TIVE-PROCEdure-NotiCE-EQUITY-ISSUES FOR JURY-DISCRETION OF COURT-SECONDARY EVIDENCE-FRAUDULENT CONVEYANCES - EVIDENCE -OWNERSHIP OF LAND.

1. Code Civ. Proc. § 142, provides that no action shall abate by the death of a party there

1 For order staying remittitur, see 33 S. E. 365.

to if the cause of action survive, and that, in case of death, the court, on motion within a year, may allow the action to be continued against his representatives or successors in interest. In an action to subject certain lands to the payment of plaintiff's claim, one of the defendants died after issue joined, and the court made an order, on an ex parte application therefor by the plaintiffs, by which the action was continued against the successors in interest of the defendant or her personal representative, providing for the service of such order on the persons named. It further required such persons to appear, and defend the issues joined, within 20 days after the service of the order. 'Held, that such method was the proper practice to continue such action against the successors in interest of the deceased.

2. The service of an order on one temporarily living without the state, requiring such person, as successor in interest of a deceased person, to appear, and defend the issues raised by the pleadings, in an action to set aside conveyances of real estate to the deceased person, is sufficient to give the court jurisdiction to try the issues raised, and it is not necessary that such notice should be served by publication.

3. Under Code Civ. Proc. § 274a, which provides that in all equity cases the presiding judge may, in his discretion, cause to be framed an issue or issues of fact to be tried by a jury, the supreme court will not interfere with the discretion of a circuit judge in refusing to frame issues for a jury.

4. Secondary evidence of the contents of returns of property made to the auditor under oath is inadmissible where it does not appear that such returns are lost, but merely that they could not be obtained except by a great amount of trouble and effort.

5. Testimony as to the contents of a letter written by the witness is inadmissible in the absence of the letter, without showing it to be lost.

6. In an action against a wife and husband to set aside conveyances to the wife by the latter on the ground that they were fraudulent as to the creditors of the husband, it is not error to require the husband to testify fully as to what he was worth during the time covered by the alleged fraudulent transactions.

7. It is competent to show by a witness that he has made a statement in writing; but, that being proven, oral testimony of the contents of the writing is incompetent. as not being the best evidence.

8. Const. 1868, art. 14, § 8, provides that the real and personal property of a woman held at the time of her marriage, or that which she may thereafter acquire by inheritance, shall not be subject to her husband's debts, but shall be held as her separate property. Defendant was married after the adoption of the constitution, and thereafter joined her husband in partition of lands to which she became entitled by inheritance before her marriage. The decree set aside a tract to defendant and her husband, but provided that she alone should execute a mortgage to secure the other heirs for the excess of her share contained in the tract. The husband, without authority from the wife, returned the tract for taxation as his own, and managed and controlled it. He also deeded a part of said tract in his own name, and received the money, and deposited it in the bank in his own name. Plaintiff, who was endeavoring to subject said tract to the payment of the husband's debts at the time of the transaction out of which her claim arose, executed a deed to defendant's husband, in which she described the tract as belonging to defendant. 'Held, that the evidence did not warrant a finding that her husband owned and was possessed of the tract at the time of the creation of the claim.

9. Tax records, made up from data secured by returns made by taxpayers, which show the lands acquired or alienated by the party mak