Volume 101 — South Carolina Reports

<p>1. Trusts — Sale of Property — Power of Court. — The power to sell trust property must be exercised with the utmost caution, and it is not enough that the beneficiaries are willing to sell, but the necessity for or advantage of a sale must appear.</p> <p>2. Trusts — Testimentary. Trusts — Sale of Trust Property. — Where testator provided for a postponement of a sale of trust property for twenty years, but allowed a discretion as to sale after the death of his wife, a family settlement, to avoid litigation, advancing the time of sale, will not be enforced, especially where an anticipation of time of sale was not for the wife’s benefit.</p> <p>3. Trusts — Testamentary Trusts — Sale of Trust Property. — The Court may not anticipate the time of distribution of a testamentary trust estate, and thereby destroy trusts and defeat the rights of contingent remaindermen.</p>

<p>Before SsasE, J., Barnwell,</p> <p>Action by Isham F. Ritter, as administrator of the estate of Tillman Ritter, deceased, against Atlantic Coast Tine Railroad Company and- Joe Johnson. From a judgment for plaintiffs, defendants appeal. The facts are stated in the opinion.</p> <p>As to whether speed of train was negligent or wilful: 63 S. C. -494. Contributory negligence: 94 S. C. 143; 95 S. C. 253; 95 S. C. 370; 91 S. C. 546; 93 S. C. 329. Failure to keep lookout harmlessas engineer could presume decedent would not drive into place of apparent danger: 57 S. C. 243; 94 S. C. 143; 98 S. C. 492; 30 Am. Rep. 54; 47 S. C. 105 and 375 distinguished. Proximate cause of injury: 58 S. C. 222; 91 S. C. 201; 94 S. C. 143; 63 S. C. 271; 81 S. C. 193; 34 S. C. 448; 78 S. C. 374; 21 S. C. 466; 47 S. C. 375.</p> <p>Mr. Townsend cites: 91 S. C. 218; 99 S. C. 277; 93 S. C. 551; 90 S. C. 266; 97 S. C. 72; 88 S. C. 7; 90 S. C. 311.</p>

Before SeasE, J./ Sumter, Action by M. B. Saunders against Atlantic Coast Line Railroad Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion of the Court. cites: As to refusal of motion to direct verdict: Mann-Elkins Act of Congress, June 18, 1910, secs. 2, 6. Action for damages arising out of misinformation by agent cannot be maintained: 119 Ala. 539; 43 L. R. A. 385; 72 Am.

<p>Before Prince, J., Camden,</p> <p>Action by J. C. Robinson against Western Union Telegraph Company. Prom judgment for plaintiff, defendant appeals. The facts are stated in the opinion.</p> <p>submit: There was-no evidence to show wilfulness: 76 S. C. 249; 84 S. C. 67; 84 S. C.' 54. Charge as to damages: 77 S. C. 56; 97 S. C. 385; 86 S. C. 242.</p> <p>relies upon 97 S. C. 385.</p>

<p>Courts. Process. Appearance. Waiver. Magistrates.</p> <p>1. Courts — Process—Magistrate.—In the absence of proof that justice requires process to be returnable ■within less than twenty days, a magistrate cannot make a summons in an action for more than $25.00, returnable within that time.</p> <p>la. Justices op the Peace — Process—Time to Answer. — Code Civ. Proc., sec. 97, subd. 16, provides that, when $25 or more is demanded, the complaint in a magistrate’s Court shall be served not less than 20 days before the day fixed for trial, provided that, if plaintiff shall show the grounds of an apprehension that the debt may be lost in an affidavit served with a copy of the complaint, he may make such process returnable in such time as justice may require. Held that, where the only affidavit made and served- was an affidavit for aji attachment, and defendant, after objecting to the jurisdiction of the magistrate, withdrew from the case, and did nothing to waive his right to 20 days’ notice, a summons to appear in 15 days was illegal, and the judgment thereon was voidable for lack of jurisdiction.</p> <p>16. Justices op - the Peace — Jurisdiction — Magistrate’s Report.— Where there was no affidavit before a magistrate authorizing him to make the summons returnable in 15 days, under Code Civ. Proc., sec. 97, subd. 16, his report that he in fact followed the direction of the proviso of that subdivision availed nothing.</p> <p>3. Courts — Process—Appearance.—A special appearance for the purpose of objecting to the jurisdiction of the Court and to set aside an attachment, is not a waiver of irregularity in, or invalidity of, process.</p> <p>3. Courts — Process—Appearance.—A special appearance for purpose of objecting to the jurisdiction of the Court, and to vacate an attachment, and the giving of a bond under Code Civil Proc. 295 and 296, to procure a discharge of the attachment, pending appeal from a judgment based thereon, is not a waiver of the defendant’s- right to challenge the judgment for want of jurisdiction, because of defect in process.</p>

<p>Pleadings. Issues. Amendment.</p> <p>1. Pleadings — Issues.—Where a complaint alleges that a culvert to drain surface waters was wilfully and mantonly constructed with intent to injure the plaintiff, the issue whether it was negligently constructed does not arise, and should not be submitted to the jury.</p> <p>2. Pleadings — Amendment.—An amendment should not be permitted in an action for an alleged wilful and wanton injury, after the testimony and argument has closed, the jury has been charged and has retired to consider the case, alleging that the injury was also negligently done.</p>

Before Sease, J., Spartanburg, Action by W. F. Aldrach against South Carolina Light, Power & Railways Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion submit: Company had right to cut off lights on failure of plaintiff to pay amount due: 81 S. C. 447; 88 S. C. 354. Tender not valid: 15 Rich. 318; 3 Strob. 25; 38 Cyc/148, 151.

Before Hon. C. J. Ramage,' special Judge, Florence, Action by J. J. Avent against Southern Express Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. submit: One suing on contract cannot recover on a quantum meruit: 48 S. C. 298; 94 S. C. 292; 37 Ohio St. 402. submit: The consideration to be paid ivas fixed by implied contract: 70 S. C. 377; 34 S. C. 255.

<p>Before Ricé, J., Barnwell,</p> <p>Action by Henrietta Cave, Henry Cave, Alonza Cave, George Cave, Savannah .Creech, Solina Brown, plaintiff s-appellants, against Evan Cave, Lexie Cave, Mary Johnson, Sallie Creech, Rebecca Bellinger, Willie Kirkland, Carrie 'Kirkland, Eliza Cave, Harzella McTeer, Albert Cave, Einie Bradley, defendants-appellants. Erom judgment for the defendants, plaintiffs appeal. The facts are stated in the opinion.</p> <p>cites: As to declarations of parents to show illegitimacy of children: 48 Am. St. Rep. 448. Rumors cannot overcome presumption of legitimacy: 2 McC. 227. Burden to show illegitimacy: 11 Am. St. Rep. 162; 1 Greenleaf Ev., sec. 28; 1 Bishop, Marriage and Divorce, sec. 1170; 9 Beavan 553; 23 Am, Dec. 777; 17 N. C. 47; 22 Am. St. Rep. 897; 15'Ga. 160. Presumption as to continuance of existing relationship: 10 S. C. 502.</p> <p>cites: As to presumption favoring innocence: 5 Rich. 452; 10 Rich. 502; 74 S. C. 407.</p>

<p>Death by Wrongful Act. Action's. Municipal Corporations. Abatement and Survival op Actions. Statutes. Evidence.</p> <p>1. Death by Wrongful Act-^-Actions — Municipal Corporations.— Under Civil Code 1912, secs. 1974 and 3053, a municipal corporation is liable for damages arising from injuries and death caused by a defect in, or failure to repair, a highway, due to the neglect or mismanagement of such corporation, to be recovered as provided in Lord Campbell's Act, Civil Code, sec. 3955.</p> <p>2. Statutes — Evidence.—The printed statutes published by authority are prima facie- evidence of the printed law.</p> <p>' 2a. Statutes — Construction—References to Other, Statutes. — Since the references to sections 1475 and 2280 and chapter 93 (secs. 3964-4015) in Civ. Code 1912, sec. 1974, providing for the survival of an action for injury and death through a defect in a street or bridge, are to matters entirely foreign to the subject of the enactment and are obviously erroneously inserted, the section is to be read as though such references were not included therein.</p> <p>3. Abatement and Survival op Actions. — Under Civil Code, sec. 3963, causes of action for injuries to the person survive to the personal representative.</p>

<p>Before Shipp, J., Union,</p> <p>Action by W. A. Cannon against Lockhart Mills. From judgment for plaintiff, the defendant appeals. The facts are stated in the opinion.</p> <p>submit: There was no substantial testimony to establish negligence on the part of the defendant, and a verdict in his favor should have been directed: 6 Thom. Neg., sec. 7393; 63 L. R. A. 424; 213 U. S. 7; 87 S. C. 176; lb. 321; 91 S. C. 272; 93 S. C. 73. Degree of care required: Pollock Torts (8th ed.) 41. Proximate cause: 4 Thom. Neg. 3774, 3891; 132 Pa. St. * 626; 19 Atl. 299; 2 Atl. 500; Labatt, Master and Servant, sec. 142; 63 L. R. A. 419. Act of fellow servant sole proximate cause of injury: 63 L. R. A. 420; 213 U. S. 8.</p> <p>submit: Pel-lozv servant’s negligence no defense, if the negligence of the master combined with it to produce the injury: 92 S. C. 560. Duty of master to warn, guard and protect employee: 95 S. C. 244. Burden on defendant to show that act of fellow servant was sole proximate cause of injury: 95 S. C. 12; 92 S. C. 560; 84 S. C. 283; 79 S. C. 592.</p>

Before Hon. C. J. Ramage, special Judge, Monck’s Corner, Action by N. A. Hunt against Atlantic Coast Lumber Corporation. In refusing a motion for nonsuit, the presiding Judge said : “I have had the stenographer to read me the testimony in this case, and it appears from the testimony that Mr. San-derson talked to Mr. Pearce after this timber was cut and before it was moved.

Before Wilson, J., Greenville, Action by J. B. Grainger, as administrator of the estate of Abell Grainger, deceased, against Greenville, Spartan-burg and Anderson Ry. Company. The facts are stated in the opinion. From judgment for plaintiff, defendant appeals on the following exceptions : 1.

Before Hon. W.. A. Holman, special Judge, Columbia, • Action by Mrs. Beauregard Magdalene Koennecke, as administratrix of the estate of J. T. Koennecke, deceased, against Seaboard Air Line Railway. From a judgment for plaintiff, defendant appeals on the following exceptions: 1.

Before MemmingEr, J., Marlboro, Jesse Jones, being indicted for murder, and convicted of manslaughter, appeals. The facts are stated in the opinions.

Before Hon. W. A. Hodman, special Judge, Columbia, Action by Alice V. Vance against Carolina A. Ferguson. From judgment for plaintiff against defendant, the latter appeals. The facts are stated in the opinion. submits: Record of deed to Randolph Cemetery inadmissible, without proof of loss of the original: 35 S. C. 311; 5 Rich. 372; 2 Hill 542; 2 Rich.. 144; 43 S. C. 370; 22 S. C. 365; 59 S. C. 246; 71 S. C. 267; 2 Elliott Ev., sec. 1449; 1 Greenleaf Ev., sec. 558.

Before DeVorE, J., Yorkville, Action by Fennell Infirmary against Southern Railway Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. submit: The 1. C. C. Tariff governs shipment: 158 U. S. 98; 202 U. S. 242; 119 Ala. 539; 43 L. R. A. 385; 72 Am. St. Rep. 936; 204 U. S. 435; 63 Mo. App. 145; 14 S. Dak. 443; 223 U. S. 573; 102 N. E. 366; 38 E. R. A. (N. S.) 353; 5 Ga.

Before Rice, J., Manning. Fall term, 1914. Action by Madison Cantey, as administrator of the estate of Marion Cantey, deceased, against Clarendon County. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. cite as to definition of “mob:” 27 Cyc. 812, 813; 10 Daly (N. Y.) 300; 10 L. R. A. 926; 40 Tex. Crim. Rep. 411; 15 A. & E. Enc. of L. 598; 29 Tex. Crim. App. 573; 41 Tex. Crim. App. 59. cite: “Mob:” 5 Words and Phrases 4549; 40 Tex. Cr.

<p>1. Change op Venue — Determination op Issues on Affidavits. — Where a change of venue is asked on affidavits, alleging that the plaintiff is not the owner of the note sued on, and that the suit is preten-sive and sham, the Court properly refused the motion, and declined to determine these substantial and material issues in the action at chambers, and upon affidavits.</p> <p>2. Venue — Change op Venue — Promotion op Justice. — The Judge at chambers has no right to. change the place of trial on the ground that the ends of justice will be promoted thereby.</p> <p>3. Bills anb Notes — Action on Note — Presumptions—Ownership.— Possession of a note is prima, facie evidence of ownership thereof, and the burden is on the maker to overcome such presumption, where it is denied.</p> <p>4. Venue — Change op Venue — Matters Considered on Motion. — The question of ownership of a promissory note sued on cannot be decided at chambers on a motion for change of venue based on affidavits.</p> <p>5. Venue — Change op Venue — Motion—Matters Considered. — In an action on a promissory note, whether collusion existed between the holder and an indorser to deprive the payee of his right to trial in the county of his residence, cannot be tried at chambers on a motion for change of venue based on affidavits.</p> <p>6. Venue — Change op Venue — Motion — Matters Considered.— Whether an action on a promissory note by an indorsee against the maker and an indorser was pretensive cannot be tried at chambers on a motion for change of venue based on affidavits.</p> <p>7. Venue — Codepend'ants—Action on Note. — A suit on a promissory note against the maker and an indorser, who resided in different counties, is properly brought in the county of the indorser’s residence.</p>

<p>Before Bowman, J., Orangeburg,</p> <p>Action by Southern Iron & Equipment Company against Orangeburg Railway. From order, plaintiff appeals. The facts are stated in the opinion.</p> <p>submit: Answer was frivolous: 27 S. C. 164; Bliss, Code Pleadings (2d ed.), secs. 334 and 421; 4 Words and Phrases, 2980; 54 S. C. 400; Code Civil Proc. (1902), sec. 268; Pom. Code Rem. (4th ed'.), sec. 528; 37 S. C. 606; 67 Fed. 49; lb. 593; 2 Abbotts, Trial Brief (2d ed.) 965. Defendant waived its rights by accepting the car and executing draft: 78 S. C. 205; 87 S. C. 428; 34 S. C. 516; 92 S. C. 569; 74 S. C. 575; 80 S. C. 29. Amendment improper: 80 S. C. 217.</p> <p>cite: As to frivolous answer: Code Civ. Proc. 306; 85 S. C. 338; 54 S. C. 400; 86 S. C. 170; 80 S. C. 297; 2 S. C. 422. Application to amend answer: 30 S. C. 564; 74 S. C. 236; 79 S. C. 270 ; 82 S. C. 1; 81 S. C. 574; 10 S. C. 98; 70 S. C. 89; 9 S. C. 334. Appeal premature: 77 S. C. 441; 74 S. C. 13; 92 S'. C, 361.</p>

<p>' Evidence. Exhibits. Admissibility. Practice. Irregularities.</p> <p>1. Evidence — Exhibits—Admissibility.—There being testimony identifying an exhibit offered in evidence, it should be admitted by the Court.</p> <p>2. Municipal Courts — Irregulirities—Waiver.—The stenographic taking of testimony, with the knowledge and acquiescence of defendant’s. counsel in a municipal Court, instead of having it taken in longhand and subscribed by the witness, is a mere irregularity, which is waived by defendant’s failure to object.</p>

<p>Res Judicata — Waters.—The right to recover damages to land caused by the building of a permanent dam on a river, pursuant to an act of the legislature providing that the corporation building the dam should be liable for all damages caused thereby, is not res judicata by reason of a judgment recovered in a prior action before the completion of the dam, for damages then caused to the same lands by a temporary cofferdam and other work performed in the construction of the permanent dam.</p>

Before Gage, J., Darlington, Spring term, 1913. ■ Action by J. R. Galloway against Western Union Telegraph Company. The facts are stated in the opinion. From a judgment in favor of the plaintiff, for $100.00 puni-tiye damages and $100.00 actual damages, the defendant appeals on the following exceptions: 1. His Honor erred, it is respectfully submitted, in allowing the following testimony of Dr. Wm.

Before Wilson, J., Edgefield, Action by Kate M. Adams against Georgia-Carolina Power Company. The facts are stated in the Circuit decree, which was, omitting the formal order for specific performance, as follows: This is an action for the specific performance of a contract for the sale of certain lands by the plaintiff to the defendant.

Before Hon. W. A. Holman, special Judge, Columbia, Action by J. H. Jones and Sallie Jones against Western Union Telegraph Company. From a judgment for plaintiffs, defendant appeals. The facts are stated in the opinion. submit: There was no duty upon carrier to ■advise the sender of its inability or failure to deliver the telegram; and cite: 74 S. C. 300; 76 S. C. 529; 77 S. C. 174; 81 S. C. 432 ; 84 S. C. 1; lb. 155; 92 S. C. 577; 92 S. C. 211.

<p>Pleading. Sham Answer. Bilis and Notes.</p> <p>A denial of information sufficient to form a belief as to the truth of the allegation that the payee of a past due promissory note is the owner thereof, held, properly stricken from all answers by the makers, in an action thereon, as a sham defense; where the admitted correspondence between the parties shows the makers had full information after the maturity of the note that the payee held same, and purposed to enforce its payment.</p>

<p>Limitations or Estates. Deed. Fee Conditional.</p> <p>1. Deeds — Construction—-Words and Phrases.' — -The terms “begotten” and “to be begotten” when used in a deed are construed as synonyms, unless a contrary intention clearly appears.</p> <p>2. Deeds — Limitations op Estates — Fee Conditionae. — In a grant by deed “to A and her heirs begotten by her present husband, B,” the word “heirs” is one of limitation, and not of purchase, and A takes a fee conditional.</p>

Before Wilson, J., Dillon, Action by R. B. Bane against T. A. Dillon and others to quiet title to certain lands. From judgment dismissing complaint, the plaintiff appeals. The facts are stated in the opinion. cite: 67 S. C. 130; 8 Rich. Eq. 10; 3 Hill 193; 11 Rich. 394; 76 S. C. 487; 16 S. C. 290; 67 S. C. 307; 91 S. C. 300; 47 S. C. 288; 16 S. C. 290; 67 S. C. 300; 47 S. C. 288. cite: 16 S. C. 293; 48 S. C. 440; 94 S. C. 308; 1 Strob. Eq. 346; 1 Rich.

Before SeasE, J., Charleston, On December 12, 1914, the Board of Commissioners of the Sinking Fund of the State of South • Carolina commenced proceedings, under Civil Code 1912, secs. 4076 to 4098, to escheat the property left by Belle Percival, otherwise known as Anne Douise Purcell (Purcil), late of Charleston, S. C., who died November 29, 1914, intestate, and it was alleged without heirs.

Before Hon. W. A. Hocman, special Judge, Columbia, The facts are stated in the opinion. cites: As to allowance of interest: 97 S. C. 189; 19 S. C. 445. cites: As to allowance of interest: 61 S. C. 393; 64 S. C. 277; 66 S. C. 379. Distinguishes: 97 S. C. 189; 19 S. C. 445. The complaint could be considered amended: 61 S. C. 329; 61 S. C. 548; 68 S. C. 250; 68 S. C. 403; 68 S. C. 554; 24 S. C. 596.

<p>Carriers of Goods — Bnxs of Lading — StiruRation as to Adjustment of Amount of Loss or Damage.</p> <p>A stipulation in a bill of lading that the amount of any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at time and place of shipment, establishes the rule for determining the value of the property in case of loss.</p>

<p>Carriers and Passengers. Issues. Direction op Verdict. Discharge op Passengers. Contributory Negligence. Proximate Cause. Charge. Consistency.</p> <p>1. Carriers and Passengers — Discharging Passengers — Issues.'—Where the testimony tended to show that an unusual number of passengers, of which the conductor had notice, were to leave the car in the dark at a station, and he thought they were getting off on both sides of the car, as was customary, though the regular landing place was on one side only, and before six passengers, moving with reasonable promptness and celerity could alight, the conductor, without observing closely to ascertain whether all passengers to disembark had done so, signalled the train forward, and it moved with a sudden jerk, which threw plaintiff, who was in the act of alighting from the train with a number of other passengers on the side opposite to the regular landing, where the conductor stood, to the ground and injured her, the direction of a verdict for the defendant carrier was properly refused, and the issue as to the carrier’s negligence submitted to the jury</p> <p>2. Carriers and Passengers Alighting prom Train — Contributory Negligence. — While there was no evidence of an invitation to a passenger to alight from a train at other than the regular landing place, but where passengers were accustomed to alight with the knowledge and acquiescence of the carrier, the issue as to whether or not passenger was guilty of contributory negligence in attempting to there alight, was properly submitted to the jury.</p> <p>3. Carriers and Passengers — Stop at Stations — Negligence.—A charge that a failure to stop a train a reasonably adequate length of time for passengers moving promptly and with' due diligence to get off, even if they were attempting to get off on the wrong side, where the conductor knew or should have known they were, is negligence, approved.</p> <p>4. Carriers and Passengers — Injury in Alighting — Proximate Cause. —-A charge that a plaintiff’s negligence, if any, in getting off on the wrong side of a train, would not defeat recovery of damages, if she would have met the same fate on the other, approved as upon proximate cause.</p> <p>5. Carriers and Passengers — -Passengers Alighting — Proximate Cause. —-A charge that the distance between car steps and the ground could have no effect, unless the cause of injury; was not prejudicial to the carrier.</p> <p>6. Carriers and Passengers — Charge—Consistency.—A charge submitting to the jury the issue whether a train stopped at the usual and prepared stopping place, is not inconsistent with a charge that there was no evidence that it stopped before it reached the station.</p>

<p>Before Peince, J., Columbia,</p> <p>Action by John G. Mobley against E. G. Quattlebaum. From a decree in favor of defendant, plaintiff appeals.</p> <p>. The Circuit decree was as follows:</p> <p>This is an action commenced by the plaintiff vendor against the defendant vendee, to enforce specific performance of a contract made on 17th day of March, 1913, by which the plaintiff agreed to sell and convey to the defendant a lot containing one acre measuring 208 feet on each side, in the city of Columbia, at the southeast corner of Barnwell and Blanding streets, in the said city, at the price of twenty-two thousand ($22,000) dollars, of which price the defendant was to pay five thousand ($5,000) dollars in cash upon the execution and delivery of the titles within sixty days after contract made, and was to give “bond and mortgage for $17,000 for three years at 6 per cent, from this date.” Deed to be made and bond and mortgage to be given within sixty days from the date of the contract.</p> <p>The complaint sets out the contract in full, and there is no dispute as to its execution.</p> <p>The defendant denies that the contract became operative and binding because of misrepresentations which entered into it. The contract itself provides that the plaintiff is “to convey the said property above described to the said E. G. Quattlebaum, heirs, or assigns, in fee, by a proper deed, with covenants of general warranty, with the dower duly renounced; free from encumbrances, except such as are herein agreed to be assumed.” There is nothing in the contract and no allegation or proof showing or tending to show that there were to be any mortgages assumed.</p> <p>The plaintiff alleges, paragraph 1, that he is the owner in fee simple of this land; and that, paragraph 4, he is ready and willing to perform the agreement on his part, and ■ “stands ready to convey and let this defendant in possession of said premises,” etc.; and that, paragraph 5, on the 15th of May, 1911, he “duly tendered to the defendant the deed for the premises pursuant to the agreement;” and that, paragraph 6, he “has duly performed all the conditions of the said agreement on his part.”</p> <p>The defendant, in answer to the allegations of paragraph 1, as to the title of the plaintiff, says he has no knowledge sufficient tp form a belief as to the .truth thereof, and a similar answer is made in respect to the allegations of paragraph 4 as to the willingness of the.plaintiff to perform his agreement.</p> <p>In answer to the allegations of paragraph S as to the tender of the deed, the defendant only admits tender of “some paper writing.” But denies knowledge or information sufficient to form a belief as to the balance of the allegations in reference thereto; and in answer to the allegations of paragraph 6, that the plaintiff has performed his part of the agreement, defendant denies the same.</p> <p>The defendant, as a further answer, sets up misrepresentations by the plaintiff inducing him to enter into the contract and material to it.</p> <p>The material representation relied upon by the defendant in his pleading and his proof consist of the statement contained in a paper writing, Exhibit “Y,” which was prepared by the plaintiff himself and furnished by him to his agent, Keenan, for'the purpose of being used “by Mr. Keenan to sell the property by,” and it was prepared to “enhance the sale,” in the language of the plaintiff himself. The statements contained in this paper and relied upon by the defendant, are the following:</p> <p>“Premises now renting for $95 a month. Ordinance passed by the city council making Blanding street the next to be paved.</p> <p>Southern Railway authorities have decided to move shops which are in front of the residence in the next two years. This work may be done much sooner as the land now occupied for shops is totally inadequate.”</p> <p>Defendant alleges and offers testimony of himself and of the agents for plaintiff, showing that the paper writing containing these statements, prepared by the plaintiff himself, was offered by plaintiff’s agent to the defendant before he entered into the contract sued on herein. The agents say that they believed the statements to be correct, and so represented them to plaintiff, and the defendant says that he relied upon them in making the contract. And there is much evidence offered by the defendant, tending to show that these three distinct representations would materially enhance and add to the value of the property in question.</p> <p>On the other hand, plaintiff seeks to limit the authority of his agent, and the scope and effect of this paper writing, claiming that it was only given to the agent as a matter of opinion, largely based upon rumor and hearsay, and that the agent had no authority to present or represent these statements as facts. And plaintiff also takes the position that defendant could have ascertained the truth of these statements by inquiry and diligence and ought not to have relied upon them.</p> <p>Plaintiff also offers evidence to show that the statement as to the rents is true and that the statement in regard to the removal of the railway shops is not material and would not add materially to the value of the property because the land where the shops are situated might be put to other purposes which would also detract from the value of the property; and that defendant could have easily ascertained by inquiry from the city authorities as to whether paving-ordinance had been passed.</p> <p>The evidence in the case shows that the defendant did not wait for sixty days to elapse, but had made his arrangements, and had made an agreement with the plaintiff in consideration of a small discount, to carry out and comply with his contract, in the early part of April, 1913, and was ready and able at that time to do so. On the day fixed for compliance, the defendant, while coming into the city for the purpose of meeting an appointment to carry out the contract, first learned that the rentals actually being received for the property were materially different from that stated in the paper writing. He then called up the attorneys who were acting for both parties and advised them of this fa'ct, and that he must refuse to comply. He says that he then made further inquiries and ascertained that the other statements contained in this paper were not correct.</p> <p>The defendant testifies that he went over with the plaintiff the rents pn the property shortly before this, about the 4th or 5th of April, and plaintiff showed him that he was receiving $93 per month as rental. The evidence shows that the actual rental being received by plaintiff at the time this contract was made, as known by his tenants, and his agent, Parker, was $75 per month; but plaintiff, while not materially questioning this, claims he was not getting the full rental value of the property and that upon a fair estimate of its rental value, it was more than $95 per month.</p> <p>Plaintiff admits, and the uncohtradicted evidence shows, that no ordinance had been passed for the paving of this street, and that the paving of a street does materially enhance the value of property thereon. A petition had been circulated to the city council, asking for the paving of this street, and it had been largely signed. The evidence does not show whether it had enough signatures to warrant the passage of an ordinance for its paving. The evidence does show that the residents on a number of other streets had filed similar petitions and that in the opinion of the street commissioner, who made recommendations and whose recommendations were usually acted upon, this street would not be the next one to be paved.</p> <p>The undisputed evidence also shows that the Southern Railway authorities had not decided to move the shops which are now situated in front of this residence. Plaintiff claims that he based his statement in this regard upon rumors, and offers evidence of such rumors. Each of these statements contained in the paper writing is a positive statement of an existing fact, and the plaintiff himself says it was made to enhance the value of the property and to sell it by.</p> <p>As to the alleged limitations of the authority of the plaintiff’s agents in making representations, in order to effect the sale of the land, the law, as we understand it, is that such limitations on the authority of the agents within the general scope of his duties, is not binding upon, and does not affect, a third party, in this case, the defendant, unless such limitations are brought home to the knowledge of such party, and there is no evidence in the case tending to show knowledge on the part of the defendant of limitations of the authority of plaintiff’s agents. Lowry v. R. R. Co., 92 S. C. 42-3, 75 S. E. 397; Whaley v. Duncan, 47 S. C. 147, 25 S. E. 54; Hiller v. Bank, 96 S. C. 74, 79 S. E. 902.</p> <p>The Court is of the opinion that the said statements are material, and even if not material, it does not lie in the mouth of the plaintiff to say either that they are not material or that the defendant ought not to have believed or relied upon them. In the language of the Supreme Court of 'the United States, in Claflin v. Ins. Co., 110 U. S. 95, 3 Sup. Ct. 507, “No one can be permitted to say in respect to his own statements upon a material matter that he did not expect to be believed.” Nalt. Bk. v. Kershaw Oil Mill, 202 Fed. 90, 120 C. C. A. 365.</p> <p>It is not material in our opinion as to whether these statements were knowingly false, or 'made without any knowledge as to their truth or falsity or by mistake, for in any event the party making them is responsible therefor, and if they turn out to be false in fact, it is fraud in law. Claflin v. Commonwealth Ins. Co., supra; Monroe v. Gardner, 5 S. C. E. (3 Brev.) 31, 5 Am. Dec. 532; Nash v. Company, 163 Mass. 574, 47 Am. St. Rep. 493.</p> <p>The right of specific performance either in behalf of the vendor or vendee is not an absolute right, but rests in the judicial discretion of the Court to be exercised according to the settled principles of equity and always with reference to the facts of the particular case. Davenport v. Latimer, 53 S. C. 572, 31 S. E. 297; Midland Timber Co. v. Pretty-man, 93 S. C. 16, 75 S. E. 1012; Holley v. Anness, 41 S. C.. 354-5, 19 S. E. 646; Pope Mfg. Co. v. Gormully, 144 U. S. 237-8, 36 E. Ed. 419, 12 Sup. Ct. 637.</p> <p>It has been suggested that the case of Holley v. Anness has been overruled by the decision of the Supreme Court in Hammond v. Foreman, 48 S. C., pages 178-9, 26 S. E. 212. An examination of the Hammond case will show that the Justice who delivered the opinion did not overrule the Holley v. Anness case, or in anywise touch upon the principle for which it is cited above. And an examination of • the case of Midland Timber Co. v. Prettyman, 93 S. C. 16, 75 S. E. 1012, and the case of Marthison v. McCutcheon, 84 S. C. 256, 66 S. E. 120, will show that both of them recognize, refer to and approve the doctrine above announced, and the case of Holley v. Anness in express terms. The principle announced in all of these cases is that before the Court will enforce specific performance, “the contract must be certain, and upon a valuable consideration ; it must be perfectly fair in all its parts, free from any misrepresentation or misapprehension, fraud, or mistake, imposition or surprise.” And that the Court will refuse to enforce a contract “where it appears that the contract sought to be enforced does not express the true agreement of the parties, either., by-reason of fraud, accident or mis"take.”</p> <p>Another principle of equity equally as well settled is “where one of two innocent parties must suffer by the fraud or wrong of a third person, the loss should fall on him who enables said third person to commit the fraud or other wrong.” Natl. Bk. v. Kershaw Oil Mill, supra, and authorities there cited.</p> <p>Under these settled rules of the Court of equity for such cases in view of the evidence offered herein, we are of the opinion that this is one of the cases which the Court will not require to be performed specifically. The language in some of the cases cited above may almost be applied to this case. It may be that the defendant made a mistake in signing the contract before he had made proper inquiry and that he should have ascertained from first hand the truth of these statements before signing the contract. But the plaintiff cannot claim laches or negligence on the part of the defendant, when he furnished the statements which misled the defendant.</p> <p>It is said that the defendant was a shrewd, experienced real estate trader. A careful examination of the evidence shows that he had bought and sold three or four pieces of property in the city of Columbia, upon which he had made some supposed profit, but the profit was tied up in, and represented by, mortgages on the property. His profession from which he derives his support and income was, and is, the practice of dentistry.</p> <p>But a further reason for the refusal to decree specific performance in this case lies in the fact that the undisputed evidence shows that at the time of the making of the contract and at the time plaintiff offered to carry it out, there existed on the property three valid mortgages, securing debts to the amount of $9,500 of principal, besides accumulated interest, as to which latter there was no evidence. All of these mortgages were past due and payable. There is no mention made of them in the contract, and the defendant testified that the first time he had any intimation of them was a statement by Mr. Belser, attorney for both parties, early in April when he was arranging to comply, that Mr. Mobley could not comply the first time because he had not made arrangements as to some bond or bonds. The plaintiff offers the testimony of himself, and of the witness, Belser, that they had arranged to have these mortgages taken up; but nothing beyond these general statements is offered to the Court to show how this was to be carried out.</p> <p>The plaintiff has alleged in his complaint his willingness and his ability and his tender of full compliance with all the conditions of the agreement, and this it put in issue by the answer. Plaintiff offers in support of this allegation the deed which he had executed and tendered to the defendant. This deed contains on it no release of any of these encumbrances, and no other paper has been offered tending to show that any such release was made or being made. What the arrangements were for releasing these mortgages, the plaintiff does not give any definite information as to. It is certain that the amount of cash to be paid was not sufficient to pay off these mortgages. But it is said that the defendant waived performance of this condition by refusal to comply when the deed was tendered in May. This is not an action for damages for breach of contract, in which such suggestion might be material; but is an action in which the plaintiff seeks to hold the defendant for the specific purchase of land under the contract set out in the complaint, and undertakes to show, as he must, that he is complying fully on his part. In such case, he must both allege and show to the Court such facts as would enable it to see definitely that he can carry out his contract. Prothro v. Smith, 27 S. C. Eq. (6' Rich. Eq.) 332; Alexander v. Herndon, 84 S. C. 186, 65 S. E. 1048; Farm Land Co. v. Roseman, 93 S. C. 351, 76 S. E. 979.</p> <p>The plaintiff has set out a contract to convey a title with full warranty and “free from encumbrances.” Even if he had not set out and proved this specific provision of the contract, the law would imply a contract to make such a title free from encumbrances, and the existence of mortgages on the property is sufficient excuse for nonperformance on the part of the vendee. Prothro v. Smith, 27 S. C. Eq. (6 Rich. Eq.) 333; Gallamore v. Grub, 72 S. E. 629, 156 N. C. 575; Alexander v. Herndon, 84 S. C. 186, 65 S. E. 1048.</p> <p>For these reasons, the Court is of the opinion, and so adjudges, that the plaintiff is not entitled to the relief prayed for and that his bill herein be dismissed with costs.</p> <p>submits as to: Doctrine of caveat emptor: 100 N. C. 338; 66 N. C. 233; 69 S. C. 87; 2 Strob. Eq. 153; 9 S. C. 35; 9 Cyc. 428; 125 U. S. 247; 37 L. R. A. 597; 30 R. R. A. (N. S.) 873. As to specific performance: Richardson’s Cas. 235; 57 S. C. 133.</p> <p>As to limitations of agent’s authority: 96 S. C. 82; 47 S. C. 147; 92 S. C. 43; 31 Cyc. 1644. As to materiality of misrepresentation: 93 S. C. 16; 84 S. C. 656; 53 S. C. 572; 144 U. S. 237; 6 R. R. A. (N. S.) 588-590; 128 U. S. 442 ; 41 S. C. 354; 95 Pac. 898; 17 R. R. A. (N. S.) 430. Estoppel of plaintiff: 110 U. S. 81; 89 S. C. 418; 85 S. C. 540; 120 C. C. A. 365; 202 Fed. 90; 4.1 S. C. 355; 68 S. E. 19; 152 N. C. 604. Duty of vendor to remove encumbrances: 57 S. C. 133; 6 Rich. Eq. 332; 72 S. E. 628; 99 S. C. 88; lb. 117; 89 S. C. 584. Distinguishes: 100 N. C. 338; 66 N. C. 233; 69 S. C. 87; 2 Strob. 153; 9 S. C. 20; 9 Cyc. 428, 430;. 125 U. S. 245; 13 Peters 26; 37 R. R. A. 597; .15 Fed. 365; 30 R. R. A. (¡N. S.) 872; Rich. Eq. Cas. 235.</p>

Before Moore, J., York, Action by Ed Fewell against Allen Hall, Nannie Hall, J. W. Johnson, W. G. Stevens and C. E. Spencer. From judgment for plaintiff, the defendants, Allen Hall and Nannie Hall, appeal. The facts are stated in the opinion. cite: 56 S. C. 154; 55 S. C. 198. cite: 82 S. C. 98; 57 S. C. 110; 32 S. C. 186; 40 S. C. 11, and 52 S. C. 472.

<p>Insurance. Nonpayment op Premiums. Waivek. Issues.</p> <p>1. Insurance — Actions on Policy — Questions por Jury — Forfeiture.— In an action on a life insurance policy, where the defense was forfeiture for nonpayment of premiums, and it appeared" that the insured had given his notes for the premium, and received a receipt stating that the premium had been paid and the policy continued in force, subject to the condition of any notes given therefor as shown in the margin, but no notes were mentioned in the margin, and. both parties introduced evidence as to the intent of the parties, it was a question for the jury whether it was intended that a failure to pay the notes would result in a forfeiture of the policy.</p> <p>2. Trial — Taxing Case from Jury — Conflicting Inferences. — Where the facts are undisputed, but conflicting inferences may be drawn therefrom, the Court cannot direct a verdict.</p> <p>3. Insurance — Actions on Policies — Sufficiency of Evidence — Waiver of Forfeiture. — In an action on a life insurance policy, evidence held sufficient to take to the jury the question whether the insurer had waived its right to declare a forfeiture for failure to pay premium notes.</p> <p>4. Insurance — -Actions on Policies — Question for Jury — Waiver of Forfeiture. — Where a number of facts in evidence, taken together, were sufficient to support an inference of waiver of forfeiture of a life insurance policy for nonpayment of premium notes, though no one of them would support such inference, the question of waiver is one for the jury.</p>

Before DeVore, J., Lancaster, Action by S. Joyce Clark against New York Life Insurance Company. From judgment for plaintiff, defendant appeals. The facts are stated in the Circuit decree, which was as follows: “These two cases are identical.

Before Gary, J., Darlington, The defendant, E. B. McCall, was convicted in a municipal Court of a misdemeanor, and the judgment reversed on appeal to the Circuit Court. Erom the judgment of the Circuit Court, the town appeals. cites: 147 Ky. 536; 33 L. R. A. (N. S.) 331; 92 Ga. 41; 22 L. R. A. 248; 95 Mo. 402; 19 B. R. A. 775; 44 Am. St. Rep. 75, 79; 40 S. C. 221; 2 N. & McC. 27; lb. 34; 3 Hill 94.

<p>Before Wilson, J., Marlboro,</p> <p>The defendant, Walter Rogers, being convicted of a malicious injury to a railroad track, appeals on the following exceptions:</p> <p>1. Because his Honor erred- in allowing a copy of a transcript of the testimony of a witness, John Johnson, taken at a former trial to be put in evidence upon the trial of the defendant; it being respectfully submitted that it was error on the part of the trial Judge to admit this testimony for the following reasons:</p> <p>(a) The testimony of a witness at a former trial is inadmissible in a subsequent trial in this State.</p> <p>(b) The proper foundation was not laid under the law in those States where such testimony is permitted.</p> <p>(c) A copy of a transcript of the testimony is inadmissible unless it should be shown that the original transcript has been lost, or is beyond the reach of the Court.</p> <p>2. (a) Because his Honor, the presiding Judge, committed error in allowing the attorney for the State on a cross-examination to read from the transcript of the testimony of Ike Dudley,- a witness at the former trial, who was present at Court, but who was incompetent as a witness by reason of the fact that he was disqualified, it being respectfully submitted that it was error to permit the attorney for the State to bring before the jury testimonjr which was inadmissible and incompetent and to allow the State in this indirect way to get incompetent testimony before the Court.</p> <p>(b) Because his Honor committed error in allowing the attorney for the State to read from the transcript of the testimony of Hattie Rogers, a witness who testified at the former trial, and who was present in Court, and whose testimony could have been obtained by the State, it being respectfully submitted that the reasons assigned for not placing this witness upon the stand were invalid and that the State could not in this way impeach the testimony of their own witness at a former trial by creating the impression that if this witness would go upon the stand she would swear falsely, because of the facts stated by attorney for the State, it being the presumption of law that a witness will testify to the truth, and it being further submitted that the State could not in this indirect way secure the testimony of this witness, Hattie Rogers, and thus deny the defendant the right of the full and complete cross-examination.</p> <p>Because the testimony of John Johnson, Ike Dudley and Hattie Rogers were improperly admitted in evidence.</p> <p>Record of testimony of deceased witness is admissible in civil cases only: Green-leaf Ev., sec. 163; 22 S. C. 425; 1 Strob. 258; 1 N. & McC. 409; 1 Rich. 124; 29 S. C. 317; Stevens on Ev., art. 32; 23 L. R. A. (N. S.) 873.</p> <p>cites: 16 Cyc. 1089, 1090; 161 Am. St. Rep. 850, 887; 25 L. R. A. (N. S.) 868; 84 S. C. 187.-</p>

<p>Telegrams. Delivery to Carrier. Agency op Messenger.</p> <p>1. Telegrapi-is and Telephones — Limitation op Liarility — Law op Georgia. — By the law of Georgia a stipulation on the back of a telegraph blank that, if the message he sent to the office by the telegraph company’s messenger, such messenger is the agent of the sender for that purpose, is valid and binding, and fpr delay in the transmission of a dispatch caused solely by delay of such messenger, the message having been transmitted promptly after its delivery by the messenger to the company’s office agent, the company is not liable.</p> <p>2. Telegraphs and Telephones — Contract por Transmission op Message' — -Law Governing. — Where a contract for the transmission of a telegraph dispatch was made in Georgia, and the message was sent from such State to a point in South Carolina, the law of Georgia governed the liability of the telegraph company to the recipient for delay.</p>

Before Shipp, J., Union, Action by B; G. Wilbiirn, as executor of Sophronia Whit-mire, against K. C. Whitmire and others. From a judgment setting aside the will, the executor appeals. submit: Partial insanity not affecting the provisions of a will, does not invalidate it: 40 Cyc. 1013; 15 S. C. L. 183; 12 S. C. Eq. 7; 50 S. C. 105; 49 S. C. 159. Testimony shoves no lack of testamentary capacity: 49 S. C. 165. As to undue influence; 22 S. C. Eq. 53.

<p>Marriage. Prohibited Degrees.' - Validity. Bigamy.</p> <p>1. Marriage — Prohibited Degrees. — The marriage of a man with his niece of the half blood, contracted in 1882, was voidable only, and not void, and until avoided by decree of a Court of competent jurisdiction, was valid and binding, and rendered a subsequent marriage bigamous.</p> <p>2. Marriage' — Prohibited Degrees. — Civil Code 1912, sec. 3743, prohibiting the marriage of uncle and niece, includes relatives of the half blood within these degrees.</p> <p>3. Marriage — Avoiding Contracts Op. — The power conferred by Civil Code 1912, sec. 3753, upon the Court of Common Pleas to hear and determine any issue affecting the validity of a marriage contract and declare the same void, is limited to cases where the marriage contract has not been consummated by cohabitation of the parties.</p> <p>4. Marriage — Incest—Ex Post Facto Law. — The provisions of Civil Code 3743, and Crim. Code, sec. 388, declaring marriages within the prohibited degrees of relationship incestuous, cannot affect the status of parties cohabiting under a marriage contracted prior to the enactment of such statutes.</p> <p>5. Marriage — Prohibited Degrees. — Civil Code, sec. 3743, prohibiting marriage within specified degrees of relationship, renders such marriages voidable only, and not void.</p> <p>6. Bigamy. — Where defendant married the daughter of his half-sister .and no proceeding to have it declared invalid was ever commenced, his marriage to another woman after separation from his first wife was bigamous.</p>

Before Prince, J., Columbia, Action by Mary Etta Cathcart Clark and others against the Southern Express Company. From a judgment for plaintiffs, defendant appeals. The case was heard upon the following agreed statement of facts: The plaintiff is a resident of the city of Columbia, State of South Carolina.

Before Moore, J., Abbeville, William Henry McCalla was convicted of manslaughter, and he appeals. with leave of Court, review the cases in 66 S. C. 423; 86 S. C. 211, and 86 S. C. 213, and cite: 2 Hill 619; 10 Rich. 341; 28 S. C. 29; 2 Strob. 464; 55 S. C. 326; 2 Dewin 215; Foster’s Criminal Daw 302; 2 Bishop Crim. Daw, secs. 642, 643, 744; Hawkins, P. C. (Curw. Ed.), p. 89, sec. 1; 21 Cyc. 760, 765; 66 S. C. 422.

Before Rice, J., Bennettsville, Brooks English was convicted of abandonment of his wife and failure to support her without just cause, and he appeals on the following exceptions: I. Because the presiding Judge committed error in not holding that the statute under which the indictment was framed is unconstitutional; it being submitted that the said act is in violation of and is contrary to article I, section 24 of the Constitution of the State of South Carolina. II.

Before Memminger, J., Beaufort, Action by E. W. Fripp and others, as Township Commissioners of St. Helena township, and also individually, against R. A. Coburn and others, as County Commissioners of Beaufort county. From a judgment for plaintiffs, defendants appeal on the following exceptions: 1.

Before Mauudin, J.,' Greenville, William Foster was convicted in the recorder’s Court of violating an ordinance of the city of Greenville, and he appealed to the Circuit Court. From the judgment upholding the conviction, defendant appeals on the following exceptions: 1.

<p>Before Wieson, J., Dillon,</p> <p>Action by Richard Bounds and another, by J. Rich Hayes, their guardian ad litem, against the Sovereign Camp of the Woodmen of the World. Prom a judgment for plaintiffs, defendant appeals on the following exceptions:</p> <p>First. His Honor erred, it is respectfully submitted, in not granting the nonsuit asked for by the defendant.</p> <p>The plaintiffs proved the beneficiary certificate, death of the assured, and the letter from the general attorney of the defendant company. Exhibit “A.”</p> <p>The only testimony before the Court showing how the deceased came to his death was contained in said letter, which clearly showed that the assured came to his death in consequence of the violation, or attempted violation, of the laws of this State, in that the assured, without just cause or excuse, commenced a difficulty with one Vernon Parham, struck him with his fist on his head, drew a gun on the said Vernon Parham and attempted to shoot and murder the said Parham, and that the said Parham killed the assured in self-defense, and that the death of the assured was the direct, proximate and natural result of the assault of the assured on the said Parham and the ensuing fight.</p> <p>The error being, that the cause of the death of the said assured was within the exemption set forth in the fourth paragraph of the conditions of the said beneficiary certificate, which is valid and binding, and therefore the plaintiffs in this action are not entitled to recover as a matter of law, and the nonsuit should have been granted.</p> <p>Second. That his Honor erred, it is respectfully submitted, in not granting the direction of verdict asked for by the defendant.</p> <p>All of the testimony showed that the deceased came to his death in consequence of the violation, or attempted violation, of the laws of this State, in that the assured, without just cause or excuse, commenced a difficulty with one Vernon Parham, struck him with his fist on the head, drew a gun on the said Vernon Parham, and attempted to shoot and murder the said Parham/ and that the said Par-ham killed the assured in'self-defense, and that the death of the assured was the direct, proximate and natural result of the assault of the assured on the said Parham and the ensuing fight.</p> <p>The error being that the cause of the death of the said assured was within the exemption set forth in the fourth paragraph of the conditions of the said beneficiary certificate, which is valid and binding, and therefore as a matter of law the jury should have been instructed to find for the defendant.</p> <p>Third. That his Plonor erred, it is respectfully submitted, in not granting a new trial as asked for by the defendant, as all of the testimony showed that the deceased came to his death in consequence of the violation, or attempted violátion, of the laws of this State, in that the assured, without just cause or excuse, commenced a difficulty with one Vernon Parham, struck' him with his fist on the head, drew a gun on the said Vernon Parham, and attempted to shoot and murder the said Parham, and that the said Par-ham killed the assured in self-defense, and that the death of the assured was the direct, proximate and natural result of the assault of the assured on the said Parham and the ensuing fight.</p> <p>The error being that the cause of the death of the assured was within the exemption set forth in the fourth paragraph of the conditions of the said beneficiary certificate, which is valid and binding, and therefore the plaintiffs are not' entitled to recover in this action, and the defendant was entitled to a new trial, and it should have been granted.</p> <p>submit: Whether there ivas a forfeiture was a question of law for the Court: 30 S. E. 918; 58 S- E. 630. Death caused by engaging, in a fight: 96 N. Y. 614; 48 Am. Rep. 658; 97 Inch 478; 49 Am. Rep. 469; 13 E. R. A. 838; 147 S. W. 316; 25 Cyc. 874, 875, 876; 99 Mass. 317.</p> <p>cite: 6 Am. Rep. 115; 8 Am. St. Rep. 913; 25 Am. St. Rep. 685, 692; 112 Am. St. Rep. 368; 48 Am. Rep. 658; 90 Am. Dec. 455; 99 S. W. 930; 13 L. R. A. 258, 262; 3 Am. & Eng. Ann. Cas. 872.</p>

<p>Landlord and Tenant. Defective Premises. Negligence. Parent and Child.</p> <p>1. Landlord and Tenant — Injuries to Tenant's Child — Liability For. — Plaintiff was the lessee of premises abutting on a street which was higher than the house. A board walk three or four feet wide extended from the house to the sidewalk. Thereafter the street was widened, and the lessor directed the contractor to saw the walk in two. The piece sawed off was left, and the lessor’s wife and another occupant moved it into the yard, where it was used as a fence. Held that, defendant not having directed the placing of the portion sawed off upon the demised premises, he was not liable for an injury sustained by plaintiff’s minor child when the fence fell on it.</p> <p>2. Landlord and Tenant — Injuries to' Tenant’s Child — Intervening Causes. — In such case, defendants were not liable; there being two intervening causes, the removal of the walkway and its use as a fence.</p> <p>3. Parent and Child — Injuries to Child — Imputed Negligence. — In such case, where those in charge of the infant were guilty of negligence, the tenant could not recover.</p>

Before Bowman, J., Abbeville, Action by W. A. London and J. T. Elder, partners trading under the name and style of London & Elder, against Enoch Smith. Judgment for plaintiffs, and defendant appeals.

Before Memminger, J., Dillon, Action brought by Benjamin J. Bethea against J. Furman Allen for recovery of real estate. The instruments construed by the Court were in form as follows: “State of South Carolina, County of Marion.

<p>Before Gary, J., Anderson,</p> <p>Action by R. A. Jackson against B. M. Duckworth. From an order of reference, defendant appeals.</p> <p>cites: 34 S. C. 169; 99 S. C. 460; Code Civil Proc., secs. 312 and 331; 24 S. C. 555; 64 S. C. 290; 65 S. C. 455; 78 S. C. 169; Id. 197; 83 S. E. 491; 84 S. C. 101; 85 S. E. 299.</p> <p>cite: 68 S. C. 503; Id. 574; 79 S. C. 54; 78 S. C. 199. Order proper: 64 S. C. 290; 34 S. C. 174; 27 S. C. 239. Objection not specified below: 28 S. C. 249; 13 S. C. 347; 14 S. C.'487; 29 S. C. 159; 87 S. C. 28; 85 S. C. 101; Id. 278; 88 S. C. 460.</p>

Before Shipp, J., Greenville, Fall term, 1914. Action by Georgia Harris, as administratrix of the estate of Clark Harris, deceased, against Greenville Traction Company, brought under Lord Campbell’s Act for damages for the alleged wrongful death of plaintiff’s intestate. The deceased came to his death by stepping, or jumping, from a moving street car between stops. From judgment for defendant, plaintiff . appeals.

<p>Appeal and Error — Findings op Fact. — It is incumbent on appellant from findings of fact, concurred in by the master and trial Judge, to satisfy the appellate Court by the preponderance of the evidence that the finding was erroneous.</p>

Before Gary, J., Charleston, Action by W. H. Pieper, as guardian ad litem of Violet A. Pieper, against Joseph Shahid. From an order overruling a demurrer to complaint, the defendant appeals.

Before Rice, J., Hampton, Action by James P. Doughty, Jr., against W. Bred. Light-sej'-. From an order refusing the defendant leave to answer, he appeals. The facts are stated in the opinion. submits: Court may relieve defendant in case of mistake: Code Civil Proc., sec. 226; 17 S. C. 445-; 77 S. C. 226; 70 S. C. 166. Defense was meritorious: Civil Code, secs. 3421 and 3425.

<p>Before Hon. C. J. Ram age, special Judge, Monck’s Corner,</p> <p>Action by John Duncan against John M. McDougal. From judgment for defendant, plaintiff appeals. The facts are stated in the opinion.</p> <p>Conversation of Court with counsel on one side only improper: 96 S. C. 285. - Facts showed presumption of grant to plaintiff’s testator: 3 Strob. D. 501; 40 S. C. 168; 2 Mills Const. 425; 2 Strob. L. 141; 11 Rich. 429; 14 S. C. 552; 2 Rich. 19; 2 Strob. L. 6; 62 S. C. 194; 71 S. C. 426, 427; 72 S. C. 312, 320; 78 S. C. 155. No proof of adverse possession: Code Civ. Proc. 1912, 126, 130. Devise undisputed and established: Civil Code 3579; 9 Rich. L. 131; 3 Rich. R. 629; 4.McC. 233; 1 Nott. & McC. 328; Id. 329; Harper’s R. 32; 131 U. S. 314.</p>

Before Hon. C. J. Ramage, special Judge, Florence, Action by J. W. Holliday against G. H. Pegram and C. W. Payne, copartners in trade, under the firm name of G. H. Pegram & Co. From a judgment for plaintiff, defendants appeal: submit: Allegation of contract is irrelevant in action on quantum meruit: 94 S. C. 406; and should have been stricken out: 71 S. C. 340; 64 S. C. 509; 54 S. C. 95; 18 S. C. 479; 80 S. C. 499; 18 S. C. 479; 71 S. C. 7; Pom. Rem.

Before MoorE, J., Orangeburg, Action by Preston B. Sanders against Standard Warehouse Company, L. S. Dewitt, Mary I. Dewitt and the Bank of Denmark, and the Citizens Exchange Bank.

<p>Before Hon. C. M. Eeird, special Judge, York,</p> <p>Action by J. C. Pool against Carolina Traction Company. From a judgment for plaintiff, defendant appeals.</p> <p>cite: As to pleadings: Bryan’s Code Pleading, secs. 249, 252, 254. Diagram from Gray’s Anatomy, p. 527, in evidence: 12 Cush. 193; 59 Am. Dec. 178; 9 A. & E. Enc. of L. 888, note 1, and 887, note 2.</p> <p>cites: As to pleadings: Code Civ. Proc. 220, 224, 227; 96 S. C. 21; 55 S. C. 101; 72 S. C. 478. Collison: 58 Am. Dec. 622; 2 Words & Phrases, 1259. Diagram: 46 S. C. 59; 57 S. C. 447; 46 S. C. 55; 40 S. C. 134; 69 S. C. 104. Harmless error: 41 S. C. 420; 69 S. C. 165; 36 S. C. 373; 40 S. C. 93; 27 S. C. 63; 53 S. C. 451. Exceptions not sustained by record: 79 S. C. 53; 76 S. C. 128; 72 S. C. 125; 82 'S. C. 534; 72 S. C. 411.</p>

Before Hon. C. J. Ramage, special Judge, Columbia, Prosecution by the City of Columbia against E. E. Phillips for violation of municipal ordinances. The defendant being found guilty, and sentenced to pay a fine of $40 or serve 30 days in jail, appealed. The facts are stated in the opinion. cite: As to amendment of warrant: 33 S. C. 113; 46 S. C. 563; 43 S. C. 56.

Before DeVorE, J., Greenville, Action by Joseph Dunlap against Greenville, Spartanburg and Anderson Railway Company. From a judgment for plaintiff for $1,000, actual damages, the defendant appeals on the following exceptions : First.. The Circuit Court erred in refusing to direct a verdict in favor of the defendant, inasmuch as (a) There was no evidence of negligence on the part of the defendant operating as a proximate cause of plaintiff’s injury.

Before DrVorE, J., Greenville, Action by J. B. Grainger, as administrator of the estate of Abel Grainger, against Greenville, Spartanburg and Anderson Railway Company. From a judgment for defendant, plaintiff appeals.

Before Hon. C. J. RamagE, special Judge, Camden, Fall term, 1914. Henry Brown, being convicted of assault and battery of a high and aggravated nature, appeals. submits: Cross-examination was improperly restricted: 12 S. E. 626.

Before Sease, J., Abbeville, Fall term, 1914. Action on account of goods sold brought by W. D. Barks-dale against James S. Gibert. From judgment for plaintiff, defendant appeals. cites : As to finality of first application of payment: 30 Cyc. 1239; 18 Mo. App. 583; 24 Gratt. 721; 67 Am. St. Rep. 389; 108 Fed. 287; 44 La.

<p>Before Gary, J., Charleston,</p> <p>Action by Malfino Lorenzo against Atlantic Coast Line Railroad Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion.</p> <p>cites: As to admission of evidence: 76 S. C. 49. Contributory negligence: 77 S. C. 61; 49 S. C. 18.</p> <p>cite: As to evidence■: 97 S. C. 67; 12 A. & E. Enc. of L. (2d ed.) 43; 13 Cyc. 211. As to contributory negligence: 83 S. C. 327. Issue for jury: 61 S. C. 404; 76 S. C. 46.</p>

Before Memminger, J., Edgefield, Action by G. C. McDaniel against Charleston & Western Carolina Railway Co. . From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion. cite: 10 Rich. E. 54; 55 S. C. 334; 73 S. C. 306; 78 S. C. 527. No evidence of negligence: 45 S. C. 278; 69 S. C. 529; 72 S. C. 564; 19 S. C. 32, 38. Remarks in refusing nonsuit were pre}\idicial: 73 S. C. 383; 80 S. C. 383; 81 S. C. 378, 379; 83 S. E. 83; 87 S. C. 410.

Before Moore, J., Abbeville, Action by J. F. Hendricks, N. B. Hendricks, F. B. O’Dell, Mrs. N. L. Williams, J. P. O’Dell, D. B. O’Dell,… Held: “The underlying question of the case is this: What interest did Eliza A. Callaham take under the will of Basil Calla-,ham in the two hundred and sixteen acres of land? It seems to me clear that she took nothing more than a life estate unless she should marry, when she was to have one-third of the proceeds of the sale of the land.

<p>Before Sease, J., Spartanburg,</p> <p>Rule to show cause issued at instance of S. T. Lanham, as master, against John S. Haynes, to compel compliance with his bid at master’s sale. From an order directing compliance, the purchaser appeals. The facts are stated in the opinion.</p> <p>submit: A trust is an estate in property held by one for the benefit of another: Bouv. L. Diet. 615; Rapaljie & Lawrence Law Die. 1296; 2 Washburn, R. E. (6 ed.), sec. 1405; Tiede-man on Real Prop., sec. 496; 39 Cyc., p. 17; 4 Rich. Eq. 406; 13 Rich. Eq. 406. The word “heirs” essential in legal deeds to create a fee: 88 S. C. 296; 12 Rich. 318; 36 S. C. 298; 32 S. C. 85; 39 S. C. 18; 40 S. C. 468; 48 S. C. 341; 77 S. C. 173; 78 S. C. 191; 42 S. C. 58; 84 S. C. 426 ; 85 S. C. 472. Reason and limitation to exception in trust deeds: 15 S. C. 284; 35 S. C. 329; 46 S. C. 537; 44 S. C. 503; 46 S. C. 356. Statute of limitations, Code Civ. Proc. 134, docs not run during existence of outstanding life estates: 76 S. C. 432, 448.</p> <p>submit: None of the heirs of Burnell High, except those parties to this action, nor their ancestors, have been in possession of this land for over forty years: Code Civ. Proc., sec. 134; 76 S. C. 432.</p>

Before Rice, J., Charleston, Action by the J. S. Pinkussohn Cigar Company against Clyde Steamship Company. From judgment for plaintiff, defendant appeals. Plaintiff has burden to show that damage occurred before delivery to drayman, who was the last carrier: 1 Hutch. Carriers (3 ed.), sec. 68; 91 S. C. 272. Burden on plaintiff that excepted risk was not sole cause of damage: 194 U. S. 427; 12 How. 272; 11 Wall. 129.

<p>Railroads. Animals Injured on Tracks. Nonsuit. Ciiar&e. Negligence. .</p> <p>1. Railroads — Animals on Track — Issues.—Where there is a conflict of testimony as to whether, an injury to a horse on a railroad track could have been avoided by the use of due care on the part of the railroad company’s servants, a nonsuit should not be granted in an action against such company for the damages arising from the injury.</p> <p>2. Charge — Negligence.—Where a charge predicated plaintiff’s right to recover upon proof that his horse was negligently or wilfully killed by the defendant’s servants, an instruction to define killing, “if the horse was so injured by getting into the trestle, if it went there through natural fright, or through the negligence of the defendant’s servants, if it was in such' condition that it had to be killed, its value would be the measure of damages,” was not objectionable as allowing recovery where horse was killed through natural fright, and not negligence of defendant.</p>

<p>Commerce. State Regulation. Overcharge for. Freight. Adjustment of Claim. — The penalty prescribed by Civil Code 1912, sec. 2573, for failure to adjust claims for overcharge on freight within a specified time is inapplicable to interstate shipments.</p>

Before Memminger, J., Charleston, Action by August Wichman v. Mary Scarpa, Jane Barton, Paul Scarpa, Barton Scarpa, Mary Bilbro, May Patrick, Rheta Scarpa and Edward Scarpa, the last named being a minor over the age of fourteen years. From an order requiring the plaintiff to make his complaint more definite and certain, he appeals. The facts are stated in the opinion. submits: Order involves merits and is appealable even before final judgment: 52.

<p>Before Shipp, J., Greenville,</p> <p>Action by Charles H. Whitner against Southern Railway Company. From order of nonsuit, plaintiff appeals on the following exceptions:</p> <p>It is respectfully submitted that the presiding Judge erred in granting the motion for a nonsuit, in the following particulars :</p> <p>1. In holding that W. T. Henderson agreed to build an overhead bridge.</p> <p>He should have found that under the testimony the defendant offered to build a bridge over the cut if Henderson would pay half of it, and that Henderson agreed.</p> <p>2.In holding that this was not a public road because it had not been used for twenty years.</p> <p>He should have held that where a person offers his land to the public and sells lots which can only be reached by a road for which he has acquired the right of way, opened and dedicated to the public, that it becomes as much a public road as though it had been in use for twenty years.</p> <p>3. In holding that the case of Moragne against the Railway Company establishes the doctrine that even if the road in question was a neighborhood road that section 3288 of volume I of the Code of Laws would not apply.</p> <p>He should have held that said case goes no further than to hold that section 3288 does not apply to private ways.</p> <p>4. In holding that the road originated iñ a trespass, and therefore the public could acquire no right until after twenty years’ use.</p> <p>He should have held that it was not a trespass for Henderson to cross the railroad.</p> <p>5. In holding that section 1964 of volume I does not apply to private ways and that the road in question was a private way.</p> <p>He should have held (first) that the road was a public road; (second) but even if it was not that the section includes all roads or ways except public highways.</p> <p>6. In holding that section 1964 is unconstitutional under the Moragne case or otherwise.</p> <p>He should have held that section 1964 was not before the Court in the Moragne case, and it was not intended by the language used by the Court to declare section 1964 unconstitutional.</p> <p>7. In holding that the defendant was not liable by statute for failure to keep the crossing, safe.</p> <p>: It should have been left to the jury to decide the amount .of damages. The testimony tended to show that the crossing had been made safe for persons to cross and the defendant had thrown out planks and timbers, and thereby made ■it dangerous.</p> <p>submits: This was a neighborhood road, dedicated to the public when lots on it were sold: 9 A. & E. Enc. of E. 21, 22, 34; 77 S. C. 437, 438; 54 S. C. 299; 2 Strob. 63. Civil Code, sec. 1964, applies.</p> <p>distinguishes : 63 S. C. 494; 77 S. C. 437; 94 S. C. 105.</p>

Before Wilson, J., Columbia, Action by J. Frank Bailey against Savannah Guano Company. From an order overruling a demurrer to complaint, the defendant appeals. The material allegations of the complaint were as follows: That on or about the 18th day of September, 1913, plaintiff and defendant herein entered into a contract of employment, of which the following is a copy: “Savannah Guano Company, Savannah, Ga., September 18, 1913.

Before DeVorE, J., Florence, Action by Maybank & Company against F. M. Rogers. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. cite: 89 S. C. 73.' submit: Exclusion of testimony not prejudicial: 55 S. C. 403; 76 S. C. 275; 87 S. C. 415. Admission of agent does not bind principal: 5 S. C. 358; 98 S. C. 282; 13 S. C. 183; 40 S. C. 456; 17 S. C. 521; 62 S. C. 128; McKel-vey Ev., p. 280, note; 71 N. Y. 118, 134; 31 Cyc. 1387, 1388.

Before Bowman, J., Hampton, Action at law by The National Bank of Augusta, plaintiff-respondent, against J. Q. Stillwell, as receiver of the Farmers Cotton Oil Company, et al., defendant-respondent, and Warren, as receiver of H. Ginn, appellant. From judgment for plaintiff, the defendant, Warren, as receiver of the estate of Ginn, appeals. The facts are stated in the opinion. cites: Code Civil Proc., secs. 347 and 348. cites: 97 S. C. 457; 34 S. C. 468.

<p>Before Shipp, J., Spartanburg, Spring term, 1914.</p> <p>From an order on rule to show cause, issued in case of the Southern■ Trust Company v. W. Y. Wilkins et al., the defendant, H. M. Brown, appeals. The facts are stated in the opinion.</p> <p>relies upon the two-fund doctrine and cites: 26 Cyc. 935; 11 Rich. Eq. 259; 74 S. C. 375.</p> <p>Wilkins, cite: 1 Pom. Eq. Juris. 965; 26 E. R. A. (N. S.) 55; 43 S. C. 439; 184 U. S. 405; 50 N. E. 566; 74 S. C. 368; 71 S. C. 36; 59 Pac. 1102; 51 Pac. 1043; 8 E. R. A. (N. S.) 944; 33 So. 241; 49 Am. Rep. 126; 39 lb. 368; 37 S. W. 467; 37 L. R. A. 580; 33 So. 241; 103 N. W. 1072; 31 E. Ed. U. S. 541.</p>

Before Sease, J., Barnwell, Action by Southern Engine &' Boiler Works against W. A. Dicks. From judgment for defendant, plaintiff appeals.

Before Moore, J., Abbeville, Action by J. W. Tucker against R. E. Cox, as trustee of the Bank of Calhoun Falls, and the Bank of Calhoun Falls. The facts are stated in the Circuit decree, as follows : This action was originally commenced against R. F. Cox, as trustee of the Bank of Calhoun Falls, and the Bank of Calhoun Falls. R..

<p>Before DeVorE, J., Winnsboro,</p> <p>■ Action by James W. Booth against J. G. White Engineering Company. From judgment for plaintiff, defendant appeals, on the following exceptions:</p> <p>Exception 1. Because his Honor, the presiding Judge, erred in failing to sustain the motion of the defendant for nonsuit and direction of verdict on the ground that the act of the defendant’s servant, Hensinger, was without the scope of his employment, when the only reasonable deduction to be drawn from the testimony was that Hensinger, when he shot Booth, was acting without the limit of the authority extended to him by the J. G. White Engineering Company.</p> <p>Exception 2. Because his Honor, the presiding Judge, erred in failing to sustain the motions of defendant for non-suit and direction of,verdict on the ground that the only reasonable deduction to be drawn from the evidence was that Hensinger and Booth were fellow servants engaged by the same master in the same general employment.</p> <p>Exception 3. Because his Honor, the presiding Judge, erred in charging the following: “A servant in the employment of a master assumes ordinary risks that are incident to his employment, but he does not assume the risk of incompetent servants.” This charge constituted error and imposed on the master the liability to his servants for the incompetency of fellow servants regardless of the diligence the master has employed in selecting them, and further that said charge was contrary to the facts proven in this case, and inapplicable thereto in that there was no evidence that the master had failed to use due diligence in the selection of the servant whose delicts are charged against him.</p> <p>Exception 4. Because his Honor, the presiding Judge, erred in refusing to charge defendant’s request as follows: “That if you find that the act of Hensinger was justifiable, when that is made the basis of a cause of action, that act could not warrant a recovery of damages.” Said instruction being a correct proposition of law, entirely applicable to the case at bar, in that any act on the part of the steward that was justifiable in law would relieve him of any liability, and if he was acting- for the master, would likewise relieve the master.</p> <p>Exception 5. Because his Honor, the presiding Judge, erred in refusing to charge the jury defendant’s request, that there was no evidence justifying the award óf punitive damages, careful examination of the record showing that there was no evidence of wilfulness and wantonness therein which would justify the submission to the jury of that issue.</p> <p>Exception 6. Because his Honor, the presiding Judge, erred in charging the jury: “Did the defendant on that occasion, through Hensinger, do what a person of ordinary reason and care would have done ? I do not know whether he did or not; if he did, he complied with the law; if he failed to do what a person of ordinary reason and care would have done, he failed to comply with the law; in other words, in order for you to ascertain whether this defendant was negligent, you will' take all the facts and circumstances into consideration; you have heard them, and say whether, under all the facts and circumstances, he was guilty of negligence, and then, if you so conclude, you will go a step further and ascertain from the evidence whether that negligence was a direct and proximate cause of injury.” Said charge being erroneous in that it assumes that Hensinger’s actions were the actions of the master, and that said Hensinger was the vice principal on the spot, thus holding the master responsible for the negligent actions of the steward, if any, when the evidence showed that the acts complained of were beyond the scope of Hensinger’s employment, and when the master could only be held for the negligence of Hensinger within the scope of his employment.</p> <p>Exception 7. Because his Honor, the presiding Judge, erred in charging the jury as follows: “Now, before you can ascertain whether or not the steward of this mess hall represented the master, you must ascertain from this evidence, whether or not he was doing and performing the duties that was imposed upon the master. If he was performing a duty that the master had to perform, then, he was the same as the master, and in that connection, I may state to you for the purpose of this case, that whenever this defendant company employed a person to labor for it, to do work of any kind, that the relation of servant and master came into existence, the defendant company being the master and the laborer beirig the servant.”</p> <p>And as follows:</p> <p>“Now, then, if he was representing the master, that is, the company, then his negligence, so far as he was negligent, in the performance of his duties that he was employed to perform, if he was negligent in the pursuit of his duties, his negligence would be attributed to the master. It would be the same thing as the master’s negligence if he was representing the master, doing the work that the master was required to do.”</p> <p>And further:</p> <p>“Was he acting within the scope of his authorit}' and his agency and at the time was he performing the duties imposed upon him by his employment and was he representing the master, that is, performing the duties that the master is required to perform?” This constituted error in that—</p> <p>(a) The master was held liable for any acts of Hensinger which might appear to be in the line of defendant’s duty regardless of the extent of Hensinger’s authority. •</p> <p>(b) The master was held liable for any acts of Hensinger, voluntary, malicious or otherwise, which might be construed as an attempt on his part to perform the duties required of the master; regardless of the correct rule that the master could be bound by the acts of Hensinger only within the scope of the duties to be performed by Hensinger.</p> <p>Exception 8. Because his Honor, the presiding Judge, erred in overruling the motion of defendant for a new trial on the ground that the following attitude of Hensinger, as defined by his Honor, was chargeable to the defendant:</p> <p>“Well, one of the facts and circumstances connected with it was that this man (Hensinger) was warned that ‘they are coming there to cut you up.’ ‘All right,’ by his attitude, ‘let them come. I will get ready for them and get a pistol and put a pistol in my pocket. I know those people are coming here to supper. I know' this house will be crowded, but let them come anyhow. I have got 'control of this house. I was put her to boss it. Let him come. I will meet him when he comes in here and I will shoot and shoot in his crowd.’ ”</p> <p>This constituted error in that there is no evidence tending to show that this defendant authorized or employed the said Hensinger “to boss” anyone involved in this affair, and, further, there is no evidence that defendant authorized the steward either to make trouble or to defend himself therefrom, or that when acting in that capacity he was representing the master.</p> <p>Exception 9. Because his Honor, the presiding Judge, erred in refusing to grant the motion for a new trial in this cause and in holding as a matter of law in connection therewith that Hensinger was a representative of the master, require'd 'to maintain a safe place for the plaintiff to eat and acting directly for the master, when there was no testimony tending to show that the master had invested said Hensinger with any authority whatsoever to maintain the safety of the boarders at the mess hall, other than to manage the waiters and look after the preparation and service of the meals.</p> <p>Exception 10. Because his Honor, the presiding Judge, erred in overruling defendant’s motion for a new trial on the ground that the jury had decided, and had the right to decide, that the actions of the steward were within the scope of his employment, said issue being an issue of law to be determined by the Court and not by the jury.</p> <p>cite: Bx. i: 100 Am. St. Rep. 155; 22 Cyc. 1080; 131 Fed. 161; 69 E. R. A. 642, 653; 30 N. W. 148; 36 Am. Dec. 189; 12 E. R. A. (N. S.) 1155; 73 N. Y. 543; 54 Am. St. Rep. 72; 5 Rich. 27; 86 S. C. 73: 72 S. C. 205. Bx. 2: 71 S. C. 56; 78 S. C. 414; 80 S. C. 232. Bx. 3: 77 S. C. 550; 18 S. C. 262; 1 Eabatt, M. &. S. (1st ed.) 179. Bx. 4: 142 U. S. 18; 54 E. R.'A. 649, 658.</p> <p>cite: As to scope of employment: 67 S. C. 419; 68 S. C. 89; 3 S. C. 1; 99 S. C. 453; 13 S. C. 5; 37 S. C. 377; 16 S. E. 40; 65 S. C. 45; 43 S. E. 295; 69 S. C. 413; 47 S. C. 290; 76 S. C. 211; 56 S. E. 908; 82 S. C. 173'; 63 S. E. 744; 95 S. C. 356; 78 S. E. 977; 89 S. C. 1; 77 S. C. 546; 4 Strob. 363; 37 S. C. 194; 15 S. E. 78; 37 S. C. 377; 16 S. E. 40; 58 S. C. 143; 36 S. E. 509; 65 S. E. 75; 43 S. E. 295; 67 S. C. 395; 45 S. E. 932; 69 S. C. 413; 48 S. E. 200; 76 S. C. 211; 67 S. C. 391; 3 S. E. 580; 29 S. C. 381; 33 S. E. 427; 35 S. C. 475; 72 S. C. 205; 89 S. C. 1; 67 S. C. 398; 3 S. C. 9. As to fellow servants: 72 S. C. 246, 269; 51 S. E. 882; 97 S. C. 409, 410; 115 Minn. 172; 131 N. W. 1078; 25 A. & E. Ann. Cas. 775; 30 lb. 1030; 122 Pac. 785; 198 Mass. 224; 84 N. E. 321; 17 E. R. A. (N. S.) 568. Charge on self-defense: 89 S. C. 492.</p>

<p>Before Hon. C. M. Efird, special Judge, York,</p> <p>Action by D. J. Cline against Southern Railway Com- • pany. From an order of nonsuit, plaintiff appeals. The facts are stated in the opinion.</p> <p>submits: Testimony to be considered most strongly in favor of plaintiff: 98 S. C; 129; 21 S. C. 93; 70 S. C. 250; 61 S. C. 468; 59 S. C. 162; 57 S. C. 429. Duties of master: 72 S. C. 264; Id. 411; 78 S. C. 415; 72 S. C. 130; 69 S. C. 387; 38 S. C. 211; 72 S. C. 420; 63 S. C. 576; 79 S. C. 81; 71 S. C. 60; 18 S. C. 262; 35 S. C. 407; 70 S. C. 470, 490; 34 S. C. 211; 32 S. C. 301; 18 S. C. 262; 77 S. C. 427; 98 S. C. 125; 91 S. C. 127; 94 S. C. 324; 93 S. C. 397; 86 S. C. 137; 71 S. C. 56; 53 S. C. 362. Assumption of risk from knowledge of defect: Const., art. IX, sec. 15; 93 S. C. 115; 48 S. C. 384; 55 S. C. 101; 60 S. C. 9; Id. 204; 79 S. C. 81; 52 S. C. 233; 75 S. C. 150; 33 S. C. 358; 68 S. C. 55; 52 S. C. 438; 61 S. C. 480; 81 S. C. 539; 63 S. C. 576. Nonsuit improper: 90 S. C. 316; 67 SI C. 122; 66 S. C. 91. Proximate cause: 94 S. C. 324; 76 S. C. 207; 76 S. C. 202; 90 S. C. 312; 98 S. C. 125; 68 S. C. 489; 68 S. C. 55. Wilfulness: 82 S. C. 454; 96 S. C. 267. Assumption of risks: 66 S. C. 204; 60 S. C. 9; 21 S. C. 541; 52 S. C. 438; 55 S.C. 103; 77 S. C. 428, 430; Labatt, M. & S., secs. 615, 617, 658; Thompson, Neg., sec. 3760; 81 S. C. 46; 82 S. C. 224; 80 S. C. 539; 75 S. C. 557; 70 S. C. 315.</p> <p>cite: 1 Labatt, M. & S., sec. 2; sec. 29, p. 66; sec. 268, p. 614; 61 S. C. 491. Servant engaged in interstate commerce: 229 U. S. 146; 233 U. S. 473; Richey, Fed. Em. Liability Act 69, 70. Assumption of risks: 233 U. S. 492; 234 U. S. 725; 236 U. S. 454; 2 Labatt, M. & S., secs. 585, 585, pp. 1717-1719; 1 lb., sec. 268, p. 614; sec. 228, pp. 531-535; 55 S. C. 488; 72 S. C. 242; lb. 348, 349; lb. 269, 270; 1 Labatt, M. & S., secs. 263, 264, p. 279b. Plaintiff’s own carelessness proximate cause of injury: 1 Labatt, M. & S., sec. 364, pp. 882-885.</p>

Before Maurdin, J., Orangeburg, Action by W. C. Fairey against William Haynes. From judgment for plaintiff, defendant appeals. cites: 97 S. C. 289; 96 S. C. 355; 47 S. C. 489; 50 S. C. 161; 51 S. C. 453. submits: The exclusion of evidence was within the discretion of trial-judge: 98 S. C. 123.

<p>Actions. Judgment Granting Leave to Amend. Costs.</p> <p>1. Actions — Judgment Granting Leave to Amend. — Where an order dismissing a complaint is affirmed, with leave to apply for permission to amend the complaint, and such permission is promptly applied for and obtained, the original action is continued by service of such amended complaint.</p> <p>2. Costs. — No rule requires an action to be suspended until' costs and disbursements theretofore accruing and taxed therein shall have been paid.</p>

Before Hon. C. J. Ramage, special Judge, Columbia, Action by H. M. Poore against Southern Express Company. From judgment for plaintiff, defendant appeals. submit: Mere negligent delay did not amount to conversion: Hutch. Carriers (3d ed.), secs. 651, 1372; 7 Rich.

<p>Before Hon. W. A. Holman, special Judge, Columbia,</p> <p>Action by Roddey Automobile Company against R. C. Keenan. From judgment for plaintiff, defendant appeals.</p> <p>cite: As to plea of failure of consideration: 37 S. C. 7; 40 S. C. 110; 43 S. C. 257; 1 N. & McC. 312; 12 Rich. 46; 74 S. C. 206; lb. 210; 87 S. C. 99; 72 Ga. 66.</p> <p>cite: Plea: 40 S. C. 110; 35 Cyc. 539; IN. & McC. 312; 74 S. C. 202; 43 S. C. 257. Mere misstatement of issues: 95 S. C. 101; 96 S. C 81.</p>

Before Memminger, J., Bennettsville, Fall term, 1913. Action by E. D. Wise against Atlantic Coast Line Railroad Company. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. submit: Acceptance of bill of lading without dissent is binding on shipper: 96 S. C. 356; 92 S. C. 573; 82 S. C. 374; lb. 146; 84 S. C. 87; 29 A. & E. Ann. Cas. 984; 227 U. S. 476;. 194 U. S. 426; 97 Am. Dec. 117; 113 Mass. 299; 18 Am. Rep. 485; 115 Mass. 304; 15 Am.

Before Bowman, J., St. George, From an order dismissing a petition for certiorari to the State board of canvassers, the petitioner, John J. Howell, appeals. The facts are stated in the opinion. cites: As to duties of bocird: 207 Mo. 129; Civil Code, secs. 242 and 243; 86 S. C. 458; 7 S. C. 246; 15 S. C. 332. Abuse of discretion: 47 S. C. 488; 14 Cyc. 383; 55 Ind. 334, 335; 4 Bur. 2539; 20 D. R. A. (N. S.) 1178; 6 PI. & Pr. 819. cite: 97 S. C. 19; 86 S. C. 459; 20 S. C. 354.

<p>Before Prince, J., Spartanburg,</p> <p>Action by John A. Harrison, as administrator of the estate of James Harrison, deceased, plaintiff, against Southern Bell Telephone and Telegraph Company, defendant.</p> <p>Prom judgment for plaintiff, defendant appeals. The facts are stated in the opinion.</p> <p>cite: There was no evidence excusing deceased’s use of the gtiy wire: 85 S. C. 372. No actionable negligence operating as a proximate cause: 85 S. C. 338. Deceased violated rules of caution prescribed to govern his work: 82 S. C. 548; 70 S. C. 252; and was guilty of contributory negligence as matter of law: 94 S. C. 145; 85 S. C. 372; 77 tí. C. 341, 342; 98 S. C. 496. Assumption of risk: 86 S. C. 72; 86 S. C. 179; lb. 235; 78 S. C. 479; 72 S. C. 348; 80 S. C. 238; 55 S. C. 488. Deceased adopted an obviously unsafe way of doing the work, and is ■thereby guilty of contributory negligence as matter of law: 86 S. C. 72; 89 S. C. 505; 77 S. C. 335. Charge on facts: 97 S. C. 110. . Remarks refusing nonsuit: 87'S. C. 410; 81 S. C. 379.</p> <p>submit: Issues for jury: 93 S. C. 72; 96 S. C. 362; 81 S. C. 211; 92 S. C. 395; 89 S. C. 20. Refusal of new trial: 98 S. C. 42. Remarks refusing nonsuit: 84 S. C. 1; 72 S. C. 352,</p>

Before DeVorE, J., Winnsboro, Action by D. A. Crawford against' Southern Railway Company. From judgment for plaintiff, defendant appeals.

Before Bowman, J., Aiken, Action by Manufacturers Finance Company against H. P. Dyches. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. submits: Testimony was inadmissible: 85 S. C. 493; Starkey, Ev. 648; 9 Ene. Ev. 487; 27 S. C. 276: 4 Camp. 22; 12 East. 10; 15 Mees. & W. 560; 3 Camp. 426; 2 Strob. 122; 1 McC. Ch. 490; 59 S. C. 581.

<p>Dead Bodies. Protection. Carrier ato Passenger. Extortionate Charges. Damages. Charge. Appeat, and Error.</p> <p>1. Dead Bodies — Protection.—A friend or relative undertaking to afford burial to a dead body has a right to see that the body is protected, decently interred, and that its resting place is uninter-ferred with.</p> <p>2. Carrier and Passenger — Extortionate Charges. — Both actual and punitive damages may be recovered by a passenger, who, as custodian of a corpse and in charge of a funeral party, had paid the legal charges for transportation, where the carrier’s ticket collector subsequently in course of the journey annoyed such passenger and wrongfully extorted from him, under threats of compulsion, the payment of additional illegal and unreasonable charges, in order to avoid indignity to the corpse.</p> <p>3. Charge — Appeal ard Error. — A charge of a sound proposition of , law, not wholly applicable to the issues, is not reversible error, unless .the attention of the Court was directed to its inapplicability at the time and prejudice results to the appellant.</p>