Volume 100 — South Carolina Reports

Before DeVorE, J., Yorkville, February, 1914. Claim by R. J. Herndon, as -a creditor to share in the distribution of the assets of the York Cotton Mills, an insolvent corporation.

Before Prince, J., Columbia, April, 1914. Action by W. B. Guimarin and E. R. Heyward, copartners, doing business under the firm name of W. B. Guimarin & Co., against Southern Rife and Trust Co., of Greensboro, N. C., as receiver of the Central Carolina Construction Co., which had been adjudicated bankrupt in the United States District Court for the Western District of North Carolina. The facts are stated in the opinion.

Before Bowman, J., Orangeburg, June, 1914. Action for' claim and delivery of four bales of cotton, bought by D. S. Livingston and J. P. Robinson, doing business under the firm name of Livingston & Robinson, plaintiffs, against Seaboard Air Line Railway, a corporation duly organized by law and doing business in this State, William L. Whetstone and Lizzie E. JLnaker, defendants. From judgment for defendants, plaintiff appeals.

Before Watts, J., Yorkville, September, 1911. Action by Ella R. Saye and Vessie.R. Brandt against W. R. Hill for damages alleged to grow out of a trespass upon lands, and the conversion of articles found thereon. From judgment for plaintiffs, defendant appeals. The facts are stated in the opinion. The exceptions were as follows: 1.

Before Spain, J., Barnwell, March, 1913. Action by Paul Williams against Annie E. Weekley for claim and delivery of personal property. The defendant claimed the right to retain possession of the property as assignee of a negotiable note, and chattel mortgage securing same, executed by the plaintiff to G. Frank Bamberg. From judgment for plaintiff, defendant appealed. The facts and exceptions are stated in the opinion. cites: As to damages: Code Civil Proc., sec. 338.

<p>Trial. Qualification of Jurors. Negíligénce. Issues for Jury. Charge. New Trial. Weight of Evidence. Excessive Verdict. Newly Discovered Evidence. Carrier and Passenger.</p> <p>1. Trial—Qualification of Jurors.—Whether a juror is or is not disqualified by reason of interest or bias from serving upon a jury is to be ascertained by the Court in the..exercise of its discretion, and the juror need not be put upon his voir dire unless a request therefor is made by a party to the action.</p> <p>2. Jury — Excusing from Panel — Discretjpn.— Excusing from the panel two jurors, who stood up when the Court asked if any of them were in defendant’s employ, was in the discretion of the Court, though one had only a small rent account to collect for defendant, and the other a contract for advertising space with a company, of which defendant’s president was an officer or stockholder.</p> <p>3. Carriers—Injury to Passenger—Contributory Negligence.—There being evidence that an electric car was moving very slowly when a passenger stepped on the running board to alight, the question of her contributory negligence is for the jury, and not one of law.</p> <p>4. Trial—Instruction—Opinion on Facts.—A requested charge that if a passenger leaves her seat while the car is in motion, and steps on the running board, she assumes the risk- incident to such position, and, if injured through no negligence of the company, cannot recover, is objectionable as intimating an opinion on the facts.</p> <p>5. Appeal and Error—Review—Denying New Trial—Preponderance of Evidence.—The question of preponderance of evidence is for the trial Court on motion for new trial, and not for the Court on appeal after denial of the motion.</p> <p>G. Appeal and Error—Review—Excessive Damages.—The question of mere excess of damages for personal injury is one for the trial Court, and not for re-examination on appeal; it being one on the evidence, and the excess not appearing as a matter of law.</p> <p>7. New Trial—Newly Discovered Evidence—Cumulative Evidence.-— Where, at the trial, defendant, to show that plaintiff had changed her testimony, over objection that the stenographer’s notes were the Dest evidence, introduced testimony of witnesses as to what plaintiff - had testified, the stenographer’s minutes are not newly discovered evidence, but merely cumulative, as regards defendant’s motion for new trial.</p> <p>8. Trial-—Instructions—Applicability to Evidence.—An instruction as to injury of a passenger through an instrumentality under the exclusive care and control of the carrier is pertinent, where there is evidence that the passenger is injured by the sudden jerk of the car under the carrier’s exclusive care and control.</p>

Before Rice, J., Hampton, June, 1914. Action by the Southern Cotton Oil Company against W. Fred. Lightsey. From judgment for plaintiff, defendant appeals. cites: Code Civil Proc., sec. 207; 10 Cyc. 923; 5 S. E. 478. cites: Code Civil Proc., sec. 207; 9 Abb. 104; Voorhies N. Y. Ann. Code, sec. 157, p. 311; 206 Pa. St. 372; 133 N. Y. 270; 63 S. C. 186; Cook Corp. (5th ed.), sec. 719, p.,1791; 18 L. R. A. (N. SO 683; 24 How. Pr. 92; 2 Waits Pr. 343; 14 S. C. 228; 81 S. E. 181.

Before Hon. C. J. Ramage, special Judge, Florence, March, 1914. The defendant, Luke Adams, indicted for bastardy. At the June, 1914, term of the Court of Sessions for Florence county the defendant was tried under this indictment. A jury was empaneled, and his Honor, Judge C. J. Ramage, upon learning that it was a bastardy case, ordered the Court room cleared of all negroes and boys. There were present the usual number of spectators.

Before Prince, J., Columbia, March, 1914. Action by Annie G. Wynn against Caledonian Insurance Company, to recover under a policy of insurance issued by the defendant covering a dwelling in the city of Columbia. The defendant answered, admitting generally the allegations in the complaint, but denied its liability upon the ground that the policy has been avoided by the plaintiff in that additional insurance was taken out on the property without its consent.

Before SeasE, J., Hampton, February, 1914. Action for foreclosure of chattel mortgage securing a note which did not provide for interest after maturity. From a judgment in favor of the Gibbes Machinery Company against the defendant, W. T. Hamilton, the latter appeals.

Before Moore, J., Spartanburg, November, 1914. This was an action brought by plaintiff, M. A. Connolly, as a citizen, freeholder and taxpayer of the town of Wood-ruff, against the defendants, E. A. Beason and others, who constitute the town council of said town, to enjoin the issue of $37,000.00 of coupon bonds of said town for the purpose of establishing and maintaining a waterworks plant for the use and benefit of the citizens of said town, and to enjoin the issue of…

<p>Before Sease, J., Laurens, September, 1914.</p> <p>From judgment and sentence to death after conviction for arson, Greenwood Rodgers, the defendant, appealed. The facts are stated in the opinion.</p> <p>The exceptions were as follows:</p> <p>1. That his Honor erred in not submitting the plea of former jeopardy to the jury, it being a question of fact for the jury and hot for the Court.</p> <p>2. That his Honor erred in not holding that the arson was a contributory cause of the death of George F. Young.</p> <p>' 3. That his Honor erred in overruling the motion of the defendant’s attorney in arrest of judgment, as the arson was one of the contributing causes of the death of George E. Young and the prisoner had already been tried and convicted of murder and recommended to the mercy of the Court.</p> <p>4. That his Honor erred in sentencing the prisoner to the electric chair on the 23d day of October, said execution to take place while the prisoner was serving a life sentence for a crime of which the arson was but a part.</p> <p>5. That his Honor erred in holding that the Court was able to abrogate and set aside the sentence of the former Court which the prisoner was then serving and substitute a new sentence, which sentence was to be imposed before the first sentence was fully served.</p> <p>6. That his Honor erred in holding that the State can prefer on the same facts a series of charges.</p> <p>7. That his Honor erred in not holding the conviction of murder on the same testimony and facts as used at the trial for arson to be a bar.to the charge of arson.</p> <p>8. That his Honor erred in overruling the motion in arrest of judgment.</p> <p>submits: The identity of the offenses should have been submitted to the jury: 76 S. C. 72, 74. Proof of ownership: 46 S. C. 265. Former jeopary: .1 Green (N. J.) 361; Archbold’s Criminal Prac. & Pldg., p. 373. Effect of judgment upon first conviction: 13 S. C. 439; 59 Ala. 654; 62 Ala. 51; 24 Wis. 492; 1 Am. Rep. 197; 26 L. R. A. (N. S.) 273; 26 Am. Dec. 130; 12 Cyc. 779, note; 83 Am. St. Rep. 568; 101 Md. 465. Different offenses growing out of same acts: Bishop Criminal Law, 7th Ed., vol. I, par. 1060; 58 Am. Dec. 548; 1 Tex. App. 47; 1 Green 361; A. C. 131; 25 Am. & Eng. Ency. Law 317; 38 Ga. 187; Dud. 42; 2 McMull. 395; 17 Eric. Law, 2d Ed., 597; 43 S. E. 514; 11 Tex. App. 207; 3 N. Y. Weekly Digest 162; Bishop Crim. Daw, par. 1958.</p>

<p>Before Memminger, J., Greenville, April term, 1912.</p> <p>Action by Spartan Goodlett against Max H. Goodlett and others. From the judgment rendered, plaintiff appeals.</p> <p>submits: Agreement to pay 8 per cent, interest was in writing: 31 S. C. 282; 46 S. C. 15; 11 Rich. L. 178; 29 S. C. 533; 77 S. C. 16. Stranger to contract cannot set up usury: 9 Ind. 135 ; Webb, Usury, sec. 283.</p> <p>cite: As to agreement to pay 8 per cent, interest: 32 S. C. 238; 17 Wis. 463; 2 Tread. 767; 3 Brev. 511; 2 Nott & McC. 328; 2 Bail. 317; 2 Hill 343; 11 Rich. 410; McM. Eq. 329; 24 S. C. 204; 58 S. C. 294; 69 S. C. 386; 47 S. C. 430.</p>

Before Spain, J., Bennettsville, 1914. Action by A. A. Gray against the Marion County Lumber Company. Erom an order of injunction pending action and disposition of case on appeal, defendant appeals.

Before Memminger, J., Charleston, June, 1914. S. T. Schiadaressi, being convicted'on October 31st, 1913, in the recorder’s Court in Charleston, for selling intoxicating liquors, appealed to the Court of General Sessions, which affirmed the conviction.

Before Hon. W. A. Holman, special Judge, Columbia, June, 1914. Action by Bennis Rorin Easier, an infant, by his guardian ad litem, H. R. Easier, against the Columbia Railway, Gas & Electric Company. Erom a judgment for plaintiff, defendant appeals. cite: As to defendant’s liability for surgeon’s negligence: Thompson Negligence, sec. 3841; Ann. Cas. 1912b, 933 and note; 28 L. R. A. 554; 107 N. Y. 228; 1 Am. St. Rep. 815; 23 R. R. A. 581; 45 S. E. 741; 50 Am.

Before Wipson, J., Anderson, March, 1914. Action by T. T. Wakefield against P. E. Spoon. From a judgment for plaintiff, defendant appeals.

Before Bowman, J., Orangeburg, June, 1914. Action by Annie E. Ashe and another against the Stándard Oil Company. ■ The complaint alleged, inter alia, that the plaintiff, Annie E. Ashe, was grievously injured and wounded, having been kicked in the stomach and knocked down by a mule belonging to the defendant while such mule was hitched to its deliver}! wagon, and while standing in a traveled way in the. city of Orangeburg, such mule being unhitched and unattended at the time.

Before Prince, J., Spartanburg, September, 1913. Action for partition by Margaret M. Wertz, as executrix, and in her own right, against J. B. Wertz and others. From an order compelling R. E. Cudd, purchaser, refusing to perform his purchase, to pay the loss sustained on a resale, he appeals. The following’ is the order of Circuit Judge Prince: The plaintiff and defendants were tenants in common of a lot of land on North Liberty street, in the city of Spartan-burg.

<p>Street Railways. Negligence. Charge.</p> <p>1. Trial—Instruction on Facts.—In an action for the wrongful killing of plaintiff’s intestate, whether or not defendant’s operation of its street car over a switch at a greater rate of speed than four miles an hour, in violation of its own rule, was negligence, was an issue for the jury, so that instruction that it was negligence per se was erroneous as an instruction on the facts.</p> <p>2. Street Railroads—Negligence—Violation of Speed Ordinance.— A street railroad’s violation of an ordinance, fixing a- rate of speed over switches, is negligence per se.</p>

<p>Master and Servant. Witnesses. Evidence. Appeal and Error.</p> <p>1. Witnesses—Examination—“Leading Question.”—A question, which does not suggest to the witness an answer either in the affirmative or negative, is not a “leading question.”</p> <p>2. Appeal and Error—Discretion of Trial Court—Leading Question.—Allowance of leading questions rest in the discretion of the trial Court, and its action will not be disturbed unless the discretion has been abused to the prejudice of the party complaining.</p> <p>3. Appeal and Error—Rulings on Evidence—Objections—Specification .of Grounds.-—Where the record does not show any specific ground of objection urged below to the admission of evidence or any specific ground on which the Court rested its ruling, the ruling is not reviewable.</p> <p>4. Appeal and Error—-Harmless Error—Erroneous Admission op Evidence.—A party cannot complain of the admission of evidence to prove facts shown by his subsequent cross-examination of witnesses.</p> <p>5. Appeal and Error—Trial—Order op Proof—Discretion op Court.— The admission of testimony in reply rests largely in the discretion of the trial Court, and the Court on appeal will not interfere unless there has been an erroneous exercise of discretion.</p>

Before SbasE, J., Spartanburg, June, 1914.' Action by J. C. B. Turner against the Columbia National Bife Insurance Company. Held: gentlemen, that payment can be made by a promissory note. The decisions of our Court have held that where a policy is delivered, and the company takes a note for the policy, thereby waiving its right, if it does waive its right thereby, to a cash payment, the policy would be good if the person died before the note is paid.

Before Gary, J., Chesterfield, October, 1913. Action by the Virginia-Carolina Chemical Company against .R. B. Raney. Judgment for plaintiff, and defendant appeals.

Before Memminger, J., Walterboro, July, 1914. Action by R. H. Wichman, doing business under the trade-name of A. Wichman & Son, against the Atlantic Coast Line Railroad Company. Judgment for defendant, and both parties appeal. The facts are stated in the opinion. submit: Consignee not liable for freight charges between Charleston and Walterboro: 10 Rich. L. 38; 44- S. C. L. 38. Penalty recoverable: 90 S. C. 475; 96 S. C. 383; 98 S. C. 63, 468.

Before DeVorE, J., Chester, August, 1914. Partition suit by Rosa Campbell against James Stewart and others. Prom a judgment for defendants, complainant appeals and brings exceptions. Exceptions overruled.

Before Memminger, J., Ridgeland, May, 1914. ■ Petition for writ of mandamus by J. W. Rouse, as county superintendent of education for Hampton county and school district No. 21, of Hampton county, the State of South Carolina, petitioners against J. B. Benton, as county superintendent of education for Jasper county, and as a member of the county board of education for Jasper county, and C. M. Jaudon and T. W. Malphrus, as members of the county board of education for Jasper…

<p>Appeal and Error. Equity. Reviews. Reformation of Instruments.</p> <p>1. Reformation of Instruments—Grounds—Mistake.—The Court will reform an instrument where there is a mutual mistake as to the facts on which it is based, or as to the stipulations therein, or where one of the parties acted under a mistake induced by the fraud, deceit, or imposition of the other.</p> <p>2. Reformation of Instruments—-Grounds—Mistake.—Where only one of the parties to an instrument was under a mistake as to the facts or stipulations in the instrument, equity will not reform it except under very strong and extraordinary circumstances showing imbecility or something which would make it a wrong to enforce the agreement.</p> <p>3. Reformation of Instruments—Grounds—Mistake.—Where a grantee bargained for the land actually conveyed by the grantor and the grantee acted in good faith and was in no way responsible for an error of the grantor who possessed capacity, equity would not reform the deed at the suit of the grantor.</p> <p>4. Appeal and Error—Findings—Review.—A party appealing from an adverse judgment rendered on findings of a special master, approved by the trial Court, must satisfy the Supreme Court by a preponderance of the evidence that the findings are erroneous, or the judgment will not be disturbed.</p>

Before Hon. C. J. RamagE, speciál Judge, Florence. April, 1914. Action on insurance policy by W. D. Frierson against United States Casualty Company.

Before Wilson, J., Anderson, February, 1914. Action in nature of quo warranto, by the State, on relation of P. N. Lindsey, against E. T. Tollison. The Circuit decree was as follows: This is an action to decide the title to the office of supervisor of registration for Anderson county.

Before Bowman, J., Abbeville, March, 1914. Action by Clark Burford against Seaboard Air Line Railway. From an order of nonsuit, the plaintiff appeals. This case was brought by the plaintiff against the defendant for the recovery of damages, actual and punitive, on account of an alleged injury received by the plaintiff while ill the employ of Abbeville Ice, Laundry and Fuel Company.

<p>Before Spain, J., Lexington, February, 1914.</p> <p>Action by Murphy Hutto against Southern Railway Company and H. E. Thompson. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion.</p> <p>submit: Omission to give signals was not a proximate cause of plaintiff’s injury: 34 S. C. 450; 84 S. C. 137. The statute not intended for persons farming near track: 11 L. R. A. 353. Cases distinguished: 87 S. C. 325; 52 S. C. 328; 58 S. C. 74; 82 S. E. 45; 65 S. E. 214; 81 S, C. 338; 10 Ann. Cas. 294; 33 S. C. 139, and notes to 11 L. R. A. 352 in 2 L. R. A. Extra Annotations, p. 630.</p> <p>submit: Omission to give signals negligence per se: 83 S. C. 354; 91 S. C. 201; 87 S. C. 324; 92 S. C. 297.</p>

Before Hon. C. M. Epird, special Judge, Lancaster, November, 1914. From an order overruling a demurrer to answer in action brought by W. N. Ashe against Southern Railway Company, the plaintiff appeals. The pleadings and exceptions were as follows: The complaint of the plaintiff herein would respectfully show to the Court: 1.

Before Moore, J., Winnsboro, June, 1914. Action by Interstate Chemical Company against Farmington Corporation, H. B. Heath and W. C. Heath. From judgment for plaintiff, the Farmington Corporation and W. C. Heath appeal.' The facts are stated in the opinion. submit: To be sham a pleading must be false: 20 Enc. PI. & Pr. 13; 31 Cyc. 623, 624, 628; 97 S. C. 389; 44 S. C. 143; 69 S. C. 559; 97 S. C. 389.

Before SeasE, J., Union, May, 1914. Appeal by McKinley Music Company, plaintiff, from order of Circuit Court granting a new trial before magistrate, on appeal from a judgment in favor of W. N. Glymph, trading as Glymph’s Pharmacy, defendant. The facts are stated in the opinion. submits: Further return should have been required from magistrate: 56 S. C. 562; 96 S. C. 284.

Before Memminglr, J., Dillon, March, 1914. Action by A. L. Bridgeman against Southern Bell Telephone and Telegraph Company. From a judgment for defendant, plaintiff appeals. The facts are stated in the opinion.

Before SeasE, ]., Bamberg, March, 1914. 'Action for foreclosure of a mortgage brought by Mrs. W. S. Folk against Mrs. Lottie Flughes, Ruth Hughes, Grace Hughes and Robert Hughes.

Before Gage, J., Barnwell, November, 1913, and Hampton, October, 1913. The first two above mentioned actions were brought in a magistrate’s Court in Barnwell county to recover damages for the loss of goods in shipments from Augusta, Ga., to Blackville, S. C., and penalty for failure to adjust and pay claim within forty days.

Before Gary , J., Darlington, September, 1913. A judgment of conviction for disorderly conduct in a municipal Court, having been affirmed on Circuit, the defendant,' T. J. Byrnes, appeals to this Court on the following exceptions: I.That his Honor, the presiding Judge, erred in refusing to sustain appellant’s first ground of appeal, to wit: 1. That the mayor erred in refusing a motion to quash the verdict, in that venire was illegally drawn.

<p>Criminal Law, Larceny After Breach of Trust With Fraudulent Intent. Partnership. Charge. Issues. Definition.</p> <p>1. Criminal Law—Larceny After Breach of Trust.—-A copartner cannot be convicted of larceny after breach of trust committed with reference to the copartnership property.</p> <p>2. Partnership—Issues.—Whether a partnership exists between two or more persons is dependent upon the agreement between them, and whether the parol testimony in the case at bar established it, was properly submitted to the jury, with instructions as to what facts, if established, would constitute such relationship.</p> <p>. 3, Embezzlement—Breach of Trust—-Partnership—Evidence.-—-In a prosecution for breach of trust with fraudulent intent, evidence held to take to the jury the question, whether a partnership existed between defendant and prosecutor which would be a defense to the prosecution.</p> <p>4. Criminal Law—Parol Evidence—“Partnership.”—“Copartnership” is a factitious relationship between two or more persons, and its existence depends on the agreement between the parties and the agreement may be establishd by parol.</p> <p>5. Partnership—Definition.—The statement in Price v. Middleton $• Ravenel, 75 S. C. 108, 55 S. E. 156, as to what constitutes a partnership followed and approved.</p>

Before Gary, J., Laurens, June, 1914. Appeal by Charley Hondros from a judgment of the Court of General Sessions affirming a judgment rendered by a magistrate for the forfeiture of twelve boxes of cigars exposed for sale on Sunday. The exceptions were as follows : I. Because his Honor, F. B. Gary, erred in overruling the defendant’s exceptions to the judgment of the magistrate and in confirming the said judgment. II.

<p>Criminal Law. Jurors. Summoning and Impaneling. Homicide. Evidence. Witnesses. Cross-Examination.</p> <p>1. Jury—Summoning Jurors—Noncompliance With Statute.—Conceding- that Civ. Code 1912, sec. 4026, providing- that jurors shall be summoned “as provided by law,” refers to Civ. Code 1902, sec. 2923, providing- that the sheriff shall summon each person drawn as juror by reading to him the venire with his indorsement thereon of such person having been drawn or by leaving- at his place of abode a written notification thereof and of the time and place of the sitting of the Court, where the sheriff mailed a subpoena to each of the 36 men on the venire, 27 of whom acknowledged the receipt of the subpoena and appeared in Court, and the sheriff also served as many of the other 9 men as he could find by delivering the subpoena to them, and one of them appeared, the failure to comply strictly with the statute was not ground for quashing the venire, since while jurors ought to be summoned in formal manner, and all named in the venire, who can with reasonable diligence be found, ought to be summoned and to attend, a formal summons is not necessary, if they attend.</p> <p>2. Jury—Additional Jurors—Statutory- Provisions.—Under Civ. Code 1912, sec. 4023, providing that nothing in that article shall prevent the clerk of Court of Common Pleas from issuing- venires for additional jurors in term time upon the order of the Court whenever it is necessary for the convenient dispatch of its business, in which case the venire shall be served and returned and the jurors required to attend on such days as the Court shall direct, where the sheriff served by mail or in person all of the 36 men named in the original venire, the Court, after the original panel had been exhausted in a homicide case, was warranted in ordering the issuance of a venire for additional jurors. .</p> <p>3. Jury — Additional Jurors — Statutory Provisions — “Jurors in Attendance”—Tales Box.—Under Cr. Code 1912, sec. S2, relative to peremptory challenges, Civ. Code 1912, sec. 4018, providing that the names on the jury list shall be written on separate ballots and placed in a jury box, which shall be kept securely locked, and that at the same time there shall be placed in a special apartment in such box, to be known as the “tales box,” the names of not less than 100 nor more than 400 persons, whose names appear on the list -as residing within five miles of the courthouse from which jurors shall be drawn to supply deficiencies arising from any cause of emergency during the sitting of the Court, section 4023 relative to issuing venires for additional jurors in term time, and Circuit Court rule 25 providing that in the impaneling of a jury in criminal cases, where the right of peremptory challenge is claimed and allowed, a child under 10 years of age shall draw one from the names of all the jurors in attendance, which one, having answered, shall be presented to the accused, and so on, until, in regular course, the panel be exhausted or a jury formed, where, upon the exhaustion of the regular panel in a homicide case, the Court directed the issuance of a venire for 15 additional jurors, it was error to call one of such additional jurors who happened to be present in Court without waiting until all of such additional jurors had been summoned and given a reasonable time to appear and without then drawing the names as provided in the rule, as “the jurors in attendance” within the rule means the jurors in attendance or who have had notice and a chance to attend.</p> <p>4. Criminal Law—Jurors—Summons to Attend.—Where all of the men drawn as jurors and named in the venire, who could be found, were either served personally with notice, or acknowledge service by mail of notice, to attend as jurors, the irregularity in attempted service by mail is immaterial, not of substance, and does not invalidate the panel.</p> <p>5. Criminal Law—Jurors—Impanelino.—A juror should not be presented to the defendant in impaneling the jury in a criminal case, and the defendant required to exercise his right to challenge, before the sheriff has exercised due diligence to summon all the jurors named in the venire, and before such jurors could have a chance to attend.</p> <p>O. Homicide—Evidence—Declarations op Deceased.—On a trial for homicide, where accused testified that, at an interview between him and deceased a few days before the homicide, deceased manifested a hostile and threatening attitude towards him, it was error to admit i, evidence ,of deceased’s declarations a few minutes after such interview as to things that occurred in the interview having no reference to his claimed threats or threatening attitude.</p> <p>7. Homicide—Evidence—Admissibility.—On a-trial for killing a man claimed to have wronged accused’s daughter, it was error to admit evidence and permit cross-examination of accused and his daughter as to the lewd life of the daughter and her stepmother, accused’s wife, and their illicit intercourse with men other than deceased.</p> <p>8. Witnesses—Contradiction—Admissibility.—On a trial for killing a man as a result of a meeting between him, another man, and accused’s wife and daughter at a bawdyhouse, the testimony of the proprietor of such house that deceased did not engage the rooms at her house was irrelevant and incompetent to contradict the daughter’s testimony that he did engage the rooms.</p> <p>9. Criminal Law — Homicide — Witnesses — Cross-Examination. —A cross-examination of a defendant, being tried for murder, while on the stand as a witness, upon collateral, immaterial and irrelevant matters, which prejudices the defendant’s cause and tends to prevent a fair trial thereof, is reversible error.</p> <p>10. Criminal Law —Homicide — Witnesses—Cross-Examination.-—The cross-examination of the daughter of a defendant, on trial for murder upon collateral, immaterial and irrelevant matters, which exposed her to the contempt and ridicule of the jury, and prejudiced the defendant’s cause and tended to prevent a fair trial thereof, is reversible error.</p> <p>11. Criminal Law—Homicide—Witnesses—Evidence.—The contradiction of a witness as to an immaterial statement as to a collateral matter is both irrelevant and incompetent.</p> <p>12. Criminal Law—Homicide—Evidence.—The admission of irrelevant testimony which tends to prejudice the defendant’s cause, and prevent a fair trial thereof, is reversible error.</p> <p>13. Homicide—Presumptions and Burden op Proop—Insanity.—One who pleads unsoundness of mind in excuse of a homicide must prove such unsoundness by a preponderance of the evidence or by so much evidence as will raise a reasonable doubt about his guilt of the offense charged; and hence an instruction that while defendant was bound to prove, by a preponderance of the evidence, that he was of unsound mind, if upon a consideration of the entire testimony any reasonable doubt remained as to whether or not he was sane, he was entitled to an acquittal, was properly refused.</p>

Before Rice, J., Sumter, April, 1912. Action to recover possession of real property brought by Atlantic Coast Dine Railroad Company against Mary A. Dawes. From a judgment for defendant, plaintiff appeals. The facts, and exceptions, so far as material, are stated in the opinion.

<p>Boundaries. Location. Evidence. Trial. Argument. Charge. Issues. Appeal and Error. Exceptions.1</p> <p>1. Exceptions—Setting Forth Objections—Motion por New Trial —Record.—Under rule 5 exceptions should state the grounds of the motion for new trial and the requests to charge, or so much as appellant wishes to have the Court consider, and then state in the record that the exceptions correctly stated the grounds of motion and requests to charge.</p> <p>2. Appeal and Error—Review—Statement of Facts.—The Court will not consider statements of facts appearing only in the exceptions.</p> <p>3. Exceptions, Bill of—Incorporation of Testimony.—Exceptions are objectionable when they incorporate at length the testimony to which objection is made, and are argumentative in form.</p> <p>4. Boundaries—Evidence—Survivor.—In a boundary suit, testimony of plaintiff’s surveyor that, if the boundary line claimed by defendant were projected, it would cut off property concededly belonging to plaintiff, is- admissible.</p> <p>5. Boundaries — Evidence ■— Physical Objects Outside Disputed Ground.—-Where, in a boundary suit, plaintiff testifies as to physical - objects outside the land in dispute, which was in form a triangle, to show the true boundary line, and a plat agreed upon by the surveyors as correctly representing the lines as claimed by the respective parties, and showing the physical objects testified to by plaintiff, testimony of the surveyors as to the location of the physical objects was properly received.</p> <p>6. Boundaries—Conflicting Elements—Quantity.—Though quantity, as a matter of description, is ordinarily one of the lowest in the scale of importance, there may be circumstances in which it would be controlling.</p> <p>7. Boundaries—Evidence—Acreage.—In an action involving the boundary line of two tracts of land, which were part of an original tract containing three tracts, testimony as to the acreage of the three tracts is not error.</p> <p>8. Boundaries—Evidence—Surveyors.—In a boundary case, admission of testimony of surveyor that he could not run a straight line 52 chains long through hilly woodland without aid of an instrument is not error, as it was a fact which needed no testimony to prove it.</p> <p>9. Trial—Argument of Counsel—-Testimony of Witnesses in Other Suit.—-Where witnesses in a boundary suit had been witnesses in a former suit between the same parties, references made in examination of witnesses and argument of counsel to the other suit, mostly as to whether the witness had or ■'had not gone over the disputed line before or after that suit, the result not being mentioned, were not error.</p> <p>10. Appeal and Error—Record—Argument of Counsel.-—An assignment of error to the argument of counsel in commenting on absence of a pencil sketch cannot be considered, when the record does not show what the comment was, that objection was taken to it, or that the Court made or was requested to make a ruling on it.</p> <p>11. Appeal and Error-—-Record—Punitive Damages.—Under Circuit Court rule 77 the point that there was no evidence to support a verdict for punitive damages is not reviewable, where the record does not show that a motion for nonsuit or direction of the verdict on that issue was made.</p> <p>12. Evidence—Declarations—Former Owner.—In a boundary suit, the declaratons of a former owner in possession, accompanying and explaining acts of ownership, and tending to show the character and extent of his possession, are admissible.</p> <p>13. Witnesses—-Transactions With Decedent.—In a boundary suit, testimony of a former owner as to a conversation of a'third person with his father, then the owner of the land, is not obnoxious to Code Civ. Proc. 1912, sec. 438, as it was not a transaction between the witness and the deceased, and it was not against a defendant who sustained any of the relations to the deceased mentioned in the statute.</p> <p>14. Appeal and Error—Boundaries—Instructions—Rules for Determining Boundary.—In a boundary suit, instructions stating the rules laid down for guidance of juries in such cases should be given when requested, and the failure to give such instructions is reversible error.</p>

Before Gary, J., Chesterfield, November, 1913. Action by E. T. Watson against J. R. Paschall and others. From, an order granting a new trial after verdict for plaintiff, he appeals. The defendants moved to set aside the verdict and grant a new trial, which motion was granted in the following order: “This case has been before the Supreme Court two 'or three times. The nature of the case may be ascertained from some of the reports of the case.

Before DeVore, J., Winnsboro, Spring term, 1914. Action by W. Glover Jordan against Southern Railway Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. The exceptions were as follows: 1.

<p>Master and Servant. Federal Employer’s Liability Act. Negligence. Evidence. Issues for Jury.</p> <p>1. Evidence—Personal Injuries—Complaints op Pain.—Complaints of bodily pain after a personal injury may be proved.</p> <p>2. Negligence—Actions—Issues—Proof.—Where there is evidence to sustain any one of the several specifications of negligence in the complaint, the case is for the jury.</p> <p>3. Master and Servant—Injury to Servant—Negligence—-Question for Jury.—In an action by an employee for injuries by a timber falling- on his foot while loading timbers in a car, evidence held to require submission of the issue of the employer’s negligence to the jury.</p> <p>4. Master and Servant—Injury to Servant—Employers’ Liability Act.—A complaint in an action for injuries to a railroad employee, which alleges that the company’s line extended from a point in the State to a point in a sister State, that the road was an interstate road and engaged in interstate commerce, that the employee was a bridge carpenter on the road and was working with a bridge force at the time of the accident complained of, states a cause of action, under the Federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65. [U. S. Comp. St. 1913, secs 8657-8665]).</p> <p>5. Master and Servant—Injuries to Servant—Question for JuAy.— Where, in an action for injury to a railroad employee, the issue was whether the work, at the time of the injury, was interstate or intrastate commerce, the Court must charge the law as to both, and leave it to the jury to determine whether the State or Federal law applies.</p>

Before Gary, J., Laurens, April, 1914. Action by Elizabeth Dagnall against John T. Dagnall. Erom a decree denying an application for alimony, the plaintiff appeals. The facts are stated in the opinion. cites: 1 McC. Ch. 205; 10 Rich. Eq. 163; 68 S. C. 125; Tiffany, Dorn. Relations, 177, 179, 184; 3 Rich. 183; 2 DeS. 45 ; 4 DeS. 33; lb. 571. - •

Before SeasE, J., Union, Summer term, 1914. Action by Almond Garner against Western Union Tele-' graph Company. From judgment for defendant, plaintiff appeals. The facts are stated in the opinion. submit: Delay is evidence of negligence: 82 S. C. 87; 73 S. C. 379.

Before Memminger, J., Walterboro, July, 1914. Action by I. A. Speights against Colleton County. From an order affirming a judgment of a magistrate’s Court, against the county, the latter appeals. cite: 34 S. C. 144,; Civil Code 1912, sec. 1972; 27 S. C. 419. Provisions as to navigable streams: Civil Code, ch. 29, and Crim. Code, secs. 615 and 635.

Before SeasE, J., Spartanburg, June, 1914. Action by E. P. Walker against Spartanburg Realty Company. From a judgment of the Circuit Court modifying the judgment of a magistrate’s Court so as to allow a landlord rent for only a portion of a month, the landlord appeals. The facts are stated in the opinion. cite: As to tenancy from year to year: 66 S. C. 162; 30 S. C. 210; 120 N. Y. 37; 17 Am.

<p>Before Shipp, J., Gaffney, Summer term, 1914.</p> <p>Action by T. G. McCraw against H. A. Killian. From order of nonsuit and refusal to direct a verdict for plaintiff, he appeals. The facts are stated in the opinion.</p> <p>cite: As to form of distress warrant and manner of'levy: 26 S. C. 331; Chev. b. 249; 3 Strob. 27; 46 N. J. b. 363; 105 Pa. St. 187; 9 Ene. b. 650 and 652, 656; 24 Gyc. 1293 (8). Cases distinguished: 81 S. C. 214.</p> <p>cites: 26 S. C. 331; 2 S. E. 612; 20 S. E. 193.</p>

Before Gage, J., Barnwell, December, 1913. Motion by L. V. Owens, a purchaser of lands at a judicial sale in an action brought by B. S. Darlington et al. v. W. W. Bush et al., for foeclosure of a mortgage.

Before Moore, J., Chester, July, 1914. Motion for a new trial on the ground of newly discovered , testimony made by Meeks Griffin, Thomas Griffin, John Crosby and JNelson Brice, after conviction for murder. The facts are stated in the opinion. submits: General Sessions had jurisdiction to grant motion: 80 S. C. 367. Its order is appealable: 40 S. C. 297. The Supreme Court has jurisdiction on appeal to review errors of law: 14 S. C. 423; 51 S. C. 405.

Before Rice, J., Walterboro, March, 1914. Action by A. Bennett against Colleton Cypress Company, A. McKenzie and A. Wigfall. From judgment for plaintiffs, defendants appeal.

<p>Bills and Notes. Innocent Holder for Value Before Maturity. Evidence. Direction of Verdict.</p> <p>1. Bills and Notes—Innocent Purchaser—Evidence.—Letters written by the payee to the maker of a negotiable promissory note before its transfer are not admissible in evidence, to affect the rights of an innocent purchaser for value, who thereafter purchases it, before maturity.</p> <p>2. Bills and Notes—Innocent Holder for Value.—Evidence tending to show that the payee of a negotiable promissory note acted in bad faith, is not admissible in an action by an indorsee and holder for value before maturity, where there is no evidence to show that the indorsee acted in bad faith, or had notice of any defect affecting the paper or facts to put a prudent man upon inquiry, before his purchase.</p> <p>3. Evidence — Documentary Evidence — Entries in Books. ■— In an action on a note by an indorsee thereof, defendant on the ground of failure of consideration and on the ground that plaintiff was not an innocent purchaser of the note for value before maturity, a ledger sheet, showing the account between plaintiff and the payee and an entry on the stub of the payee’s checkbook, stating that the note was placed with plaintiff for collection, were properly excluded.</p> <p>4. Bills and Notes—Actions—Direction oe Verdict—Failure oe Prooe.—In an action on a note by an indorsee thereof, in which defendants alleged a failure of consideration and that plaintiff took the note after maturity with knowledge thereof, where there was no evidence to make out the attempted defense, a verdict for plaintiff was properly directed.</p>

Before Gary, J., Bennettsville, Fall term, 1914. Action by J. T. Medlin against Adams Grain and Provision Company. From judgment for plaintiff, defendant appeals. cites: As to admissibility of telephone conversation: 60 S. C. 67; 6 L. R. A. (N. S.) 1180; 35 111. App. 540; 103 111. Ap. 632; 27 Pa. Super. Ct. 366. Measure of damages in trover: 2 Speers L. 487; 6. Rich. b. 310.

<p>Landlord and Tenant. Master and Servant. Eviction. Judgment. Res Judicata. Evidence. Damages. Appeal and Error. Issues.</p> <p>1. Master and Servant—Evidence.—Testimony of . a servant that he was discharged because he quit his master’s work to attend to his personal enterprise is not prejudicial to the master.</p> <p>2. Damages—Evidence.—A party, after stating the facts, may give his estimate as to the amount of damage done to property by defendant or its agents.</p> <p>8. Landlord and Tenant—Rent—Payment.—Where the payment of rent is at issue, testimony that it has' been paid by a third party is relevant.</p> <p>4. Evidence—-Reply.—Where a party undertook to show a particular kind of house was to be rented only to a person furnishing more than one hand to the mill, testimony that such houses were rented and occupied by families furnishing only 'one hand was- admissible in reply.</p> <p>5. Landlord and Tenant—Ejectment—Judgment—Res Judicata.— A judgment rendered by a magistrate evicting a person from premises under Civil Code 1912, sec. 3509, cannot be collaterally attacked, and estops such person from denying that he was such tenant, and from showing that he was wrongfully dispossessed.</p> <p>6. Landlord and Tenant—Ejectment—Damages.—A tenant wrongfully dispossessed of leased premises may recover punitive damages against the landlord, under Civil Code 1912, sec. 3509.</p> <p>7. Appeal and Error—Issues.—Whether there was any evidence to sustain a finding for punitive damages will not be considered on appeal, where not raised below by motion for nonsuit or the direction of a verdict.</p>

Before Wilson, J., Walhalla, March, 1914. Action by William M. Brown and Wm. J. Stribling, as partners under the style and firm name of Brown & Stribling, plaintiffs, against John J. Rankin and C. R. Angel, defendants. From a judgment for defendants, plaintiffs appeal. The facts are stated in the opinion. cites: 77 S. C. 420, 426. As to estoppel: 96 S. C. 120, 123; 11 Ency. 425.

Before Memminger, J., Columbia, November, 1913. Action by Lizzie M. Mims, as administratrix of the estate of John J. Mims, deceased, plaintiff, against Atlantic Coast Line Railroad Company and S. B. Divine, defendants.

<p>Before Bowman, J., Beaufort, November, 1913.</p> <p>Action by Gustave Sanders against D. Landreth Seed Company. From judgment for plaintiff, defendant appeals.</p> <p>submits: Invoice was a part of contract: 34 S. C. 301; 92 S. C. 95. Implied warranty: 35 Cyc. 409; 6 N. Y. St. 4; 117 Ky. 382; 78 S. W. 143; 25 Ky. L. Rep. 1472; 63 L. R. A. 647; 80 S. C. 292. Purchaser must protect himself by investigation: 8 Ency. 643; 46 S. C. 288; 2 Strob. Eq. 154; 53 S. C. 35; 19 S. E. 187; 21 Fed. 435; 41 Am. R. 215; Pom. E. Juris., secs. 892-3; 1 Rich. 106; 13 Wall. 379; 125 U. S. 247; 135 U. S. 609; 142 U. S. 43; 158 U. S. 505; 16 Am. St. Rep. 137; 56 Am. St. Rep. 196; 81 Am. Dec. 662; 5 Am. Dec. 642; 37 Am. Dec. 404; 109 Fed. 31; 2 N. & McC. 54. Title passed to purchaser at point of shipment: 1 Benj. Sales, p. 466; Moore, Carriers, p. 159. Implied warranty extends only to kind or species: 58 Md. 59; 35 Cyc. 409.</p> <p>submits: Original contract complete, and not changed by invoice, etc.: 77 S. C. 219. No duty to inspect on delivery: 70 S. C. 496. Implied warranty: 15 S. C. 95.</p> <p>submits: Implied warranty is only against defects existing at time of delivery: 1 Bay. 324 and 480. Variance between allegations and testimony is without objection: Code Civil Proc., secs. 224 and 227; 96 S. C. 18; Pom. Code Rem., 4th ed., sec. 636; 54 S. C. 98. Title passed on delivery to carrier: Benj. Sales 93; 71 Ala. 368; 73 Me. 278; 91 Me. 31; 43 Ark. 353; 21 111. App. 213; 130 Pa. St. 138; 104 N. C. 25; 38 W. Va. 53; 42 S. W. 1107; 73 N. Y. 252; 13 R. I. 347; 72 S. C. 450; 81 S. C. 226; 90 S. C. 323; 93 S. C. 30; 70 S. C. 494; 24 Am. and Eng. Enc. of E. 1072; 179 Fed. 151; 76 N. W. 1082; 2 E. R. A. 514; 172 Fed. 113. Where buyer has the opportunity to inspect, and defects are 'not latent, rule of “sound price, sound goods” does not apply: 2 Bay. 380; 18 S. C. 93 ; 2 Bay. 498; 1 Bailey 179; 2 N. & McC. 540'; 1 N. & McC. 148; 3 Strob. 64; 1 Rich. 404; 58 S. C. 56; 80 S. C. 292; 85 S. C. 486; 1 Rich. L. 48; 38 Brev. 230. By acceptance plaintiff waived the right to allege inferiority zvhich was obvious to him: 78 S. C. 200; 2 Bay. 498. Plaintiff’s rights and duties: Benj. Sales, pars. 1343, 1339, 634; 2 Mills, 76; 1 Bailey 648; 10 S. C. 164. Reasonable time to examine goods, and accept or reject: 15 S. C. 123; 37 S. C. 7; 36 S. C. 65; 85 S. C. 486. Measure of damages on discovering defective condition of goods: 78 S. C. 424 ; 74 S. C. 202; 75 S. C. 342; 88 S. C. 572.</p>

<p>Appeal and Error. Mortgages. Evidence.</p> <p>1. Appeal and Error—Harmless Error—Referee’s Statement.'—It is not reversible error for a referee to state too strict a rule, if the true rule shows that the appellant is not entitled to the relief for which he asks.</p> <p>2. Mortgages—Absolute Deed as Mortgage—Security for Debt—A conveyance intended as a security for a debt is a “mortgage,” what- - ever may be its form.</p> <p>3. Mortgages—Absolute Deed as Mortgage—Presumption.—A conveyance absolute in form is presumed to be an absolute conveyance, and, to establish its character as a mortgage, the evidence must be clear, unequivocal, and convincing.</p> <p>4. Mortgages—Absolute Deed as Mortgage—Sufficency of Evidence— “Redeem.”—Evidence, in a mortgagor’s action to redeem land purchased by a mortgagee on foreclosure sale, held not sufficient to show that the sheriff’s deed was a mortgage, so that plaintiff might redeem; “redeem,” in a popular sense, meaning to buy back, recover by purchase, repurchase.</p> <p>5. Deeds — Mortgage — Redemption — Evidence. —Where a mortgagee became a purchaser of the mortgaged lands at a judicial sale, under proceedings for foreclosure of the mortgage and received a conveyance absolute in form, and entered into possession of the lands, and the mortgagor delayed until after the lapse of years and the death of such purchaser to assert a right to redeem, and there is no proof of 'an obligation on the part of the mortgagor to pay any debt or definite sum to such purchaser; the conveyance will not be held to have been a mortgage, because of a parol agreement by the purchaser to allow such mortgagor to repurchase such lands, when able, at some indefinite time in the future.</p>

Before Memminger, J., Charleston, July, 1914. Action by Sarah Carter against Southern Railway-—-Carolina Division. From an order overruling a demurrer to third defense in answer, plaintiff appeals. The defense demurred to, and contract in question, were' as follows: Third. For a third defense: 1.

Before Hon. W. A. Holman, special Judge, Columbia, May, 1914. Action by the Mutual Lumber Company against Southern Railway Company for conversion of certain goods. The defendant appeals from an order striking from the following answer the portion enclosed in brackets: 1._ Defendant has no knowledge or information sufficient to form a belief as to the allegations of -paragraph one, and, therefore, denies the same. 2. Admits the allegations of paragraph two. 3.

Before DeVorE, J., Gaffney, November, 1913. Motion by E. G. Brown, C. F. W. Brown and D. B. Brown to vacate and set aside a judgment which had been obtained by default and to allow them to file an answer in a case brought against them by Thomas M. Caldwell, as clerk of Court; Anna Brown, Joyce Janette Brown, Winnie May Brown, Lloyd Ralph Brown, by their guardian ad litem, G. K. Page.

Before Sease, J., Bamberg, March, 1914. Prosecution by town of Denmark against J. H. Robinson for storing intoxicating liquors. From an order of the Circuit Court granting a new trial, the town appeals.

<p>Criminal Law. New Trials. Appeal and Error.</p> <p>Appeal and Error—New Trials.-—■'Where an appeal from order granting a new trial in a criminal case involves only questions of law, the Court may render judgment absolute on appeal; nut where questions of fact are involved, which prevent the entry of judgment absolute, the appeal will be dismissed.</p>

Before Rice, J., Charleston, April, 1914. Action by Kate Fitzgerald, as administratrix of John Fitzgerald, deceased, against J. I. Case Treshing Machine Company. From a judgment for plaintiff, the defendant appealed. The facts and exceptions are stated in the opinion. » submit: The charge was upon the facts: 78 S. C. 103; 71 S. C. 156; 76 S. C. 49; 69 S. C. 434; 54 S. C. 509. Negligence a mixed question of law and fact: 35 S. C. 493; 25 S. C. 30; 51 S. C. 453.

Before DeVorE, J., Spartanburg, December, 1913. Action by Bank of Inman. against Mrs. B. IT. Elliott, E. B. Belcher, and J. W. Ballenger as administrator of the estate of N. C. Ballenger, deceased. From judgment for plaintiff, the defendant-administrator appeals. The facts are - stated in the opinion. submit: Extension of time for payment released surety: 23 S. C. 588; 41 S. C, 217; 51 S. C. 124.

Before MoorB, J., Yorkville, Summer term, 1914. Action by E. W. Kimbrell Company against Mills & Young Company. From a judgment in favor of defendant by the Circuit Court on appeal from a magistrate’s Court.

Before DeVore, J., Lexington, August, 1914. Action by the Palmetto National Bank against Lexington County. From judgment for plaintiff, in an action at law, defendant appeals. The judgment appealed from was as follows: This matter came on to be heard before me, having been marked “heard,” at the Summer term of said Court and was argued this day, Messrs-. Weston & Aycock representing the plaintiff, and Messrs. C. M. Efird and J. B. Wingard representing the defendant.

Gage, J., Darlington, April, 1913. Action by George E. Watkins against South Carolina Western Railway. From judgment for plaintiff, defendant appeals. The facts were stated in the case, as follows: “This action was commenced on June 1, 1912, by due service of a summons and complaint.

<p>1. Public Officers—Circuit Solicitor—-Vacancies.—An appointee by the Governor, under Civil Code, sec. 694, to fill the office of Circuit Solicitor, holds under Civil Code, sec. 695, only until the office Can be filled at the next general election.</p> <p>2. District and Prosecuting Attorneys—Appointment' or Election— Constitutional and Statutory Provisions—“Officer of Executive Department.”-—Const., art. V, sec. 29, declares that there shall be one Solicitor for each Circuit, to be elected by the qualified electors thereof for a term of four years. Civ. Code, sec. 682, defines the executive department to consist of the Governor, the Attorney General, and Solicitors, etc. Section 683 provides for the filling of a vacancy in the office of Attorney General, etc. Section 694 provides that the Governor shall appoint Circuit Solicitors upon vacancies in such offices. Section 695 provides that he shall appoint to a vacancy in an office of the executive department until it is filled by general election, or by the General Assembly, etc. And section 722 declares that the office of Circuit Solicitor shall become vacant if he ceases to reside in the county. Held, that the Solicitor was an “officer of the executive department,” and that the Governor had no power io appoint a Solicitor for a time extending beyond the first general election held after the vacancy occurred.</p> <p>3. District and Prosecuting Attorneys—Appointment to Elective Office—Constitutional Provisions.—Such provisions, if construed to empower the Governor to appoint a Circuit Solicitor for the full unexpired term, would be void, since, when an office is-made .elective by the Constitution and a vacancy arises, the Governor cannot fill it by appointment, except temporarily, where the Constitution gives him no such express power, or change the term of an office by appointment for the full unexpired term which would be less than if the vacancy was filled by a general election for a full term.</p>

Before Wilson, J., Edgefield, October, 1913. Action by Nannie E. Harris against Southern Railway Company. From judgment for plaintiff, defendant appealed. The facts are stated in the opinion. As to penalty statute of State: 98 S. C. 63 ; 234 U. S. 421.

Before Memminger, J., Dillon, March, 1914. Action by Marion County -Lumber Company against C. P. Hodges. Appeal by defendant from order refusing him leave to amend answer. cites: As to judicial discretion: 94 S. C. 16; 47 S. C. 498. The rights of parties grow out of transaction stated in 69 S. C. 95. Right to amendment: 95 S. C. 341; 85 S. C. 261; 80 S. C. 217. cite: Opinion on former appeal in this case: 96 S. C. 140.

Before Shipp, J., Spartanburg, Spring term, 1914. Action by A. J. Thomas against Spartanburg Railway, Gas & Electric Company and South Carolina Eight, Power & Railways Company. From an order sustaining a demurrer and dismissing complaint, the plaintiff appeals. The facts are stated in the opinion.

<p>Before Rice, J., Charleston, April, 1914.</p> <p>Action by John R. Halsall against Atlantic Coast Bine Railroad Company. Erom an order refusing motion by defendant for an order carrying out the mandate of the Court on a former appeal by entry of a formal order dismissing the complaint, and for leave to enter up judgment for costs, defendant appeals.</p>

Before Gary, J., Darlington, December, 1913. On January 18, 1909, A. T. Baird, trustee, rented 45 acres of his Dovedale plantation to R. B. Weatherford for the year 1909, for 15 bales of cotton weighing 500 pounds each, and took three separate rent liens for five bales each.

Before Gary, J., Darlington, December, 1913. Action by J. P. Kirven, plaintiff, against E. W. Register, as sheriff, and A. T. Baird, trustee.

Before Hon. C. J. Ramage, special Judge, Marion, Spring term, 1914. Action by J. W. Moore'and R. S. Moore, copartners under the firm name of J. W. & R. S. Moore, against Marion Cotton Oil Company. From judgment for plaintiffs, the defendants appeal.

<p>Fraternal Benefit Associations. • Designation of Beneficiary.</p> <p>1. Fraternal Benefit Associations—Beneficiaries.—Under Civil Code 1912, see. 2752, a member insured in a fraternal benefit association may designate either his wife or mother as the beneficiary, and change such designation from time to time; the beneficiary having no vested interest prior to the death of tlie insured.</p> <p>2. Fraternal Benefit Associations—Certificates.—Where a certificate of membership in a fraternal benefit association provides that the benefit shall be paid to the “widow, legal -heirs or legal representatives” of the member, the widow is not to be deemed the sole beneficiary, but as one of a class from which the beneficiary is to be selected and designated.</p> <p>3. Fraternal Benefit Associations—Designation of Beneficiaries.— Where the by-laws and regulations of a fraternal benefit association and certificate of membership are silent as to .the manner of designating, or changing, a beneficiary, such designation, or change, may be made by the insured member in his will.</p>