Volume 103 — South Carolina Reports

Before Wiuson, J., Greenville, April term, 1914. Action by B. G. Wade, as administrator of the estate of William Wade, deceased, against W. J. Oliver. From judgment for plaintiff, defendant appeals. The fifteenth request to charge was as follows: “A man may be careless and negligent of his receiving injury, and yet his negligence may not be contributory negligence.

<p>Original Jurisdiction. August, 1915.</p> <p>Petition by John Henry Chappell, an elector and taxpayer for an injunction against R. M. McCown, as Secretary of State, S. T. Carter, as State Treasurer, and C. W. Sawyer, as Comptroller General, and C. T. Graydon, Warren M. Thomas and J. F. Howell, as Commissioners of Election for Richland County, to enjoin them from incurring expenses in preparing for the election directed by an act to submit to the qualified electors of the State the question of the prohibition of the manufacture and sale of alcoholic liquors, etc., approved February 16, 1915, 29 Stats. 88, on the alleged ground that the act is unconstitutional and void.</p> <p>The Circuit Judges, being called to the assistance of the Supreme Court in this case, which was heard by the Judges sitting en banc, in August, 1915.</p> <p>cite: As to right of plaintiff to bring action: 75 S. C. 418; 97 S. C. 3. Injunction will be granted where property rights are involved and there is no adequate remedy at law: ■81 S. C. 392; 78 S. C. 570; 94 S. C. 199; 44 S. C* 256; 26. S. E. 425. Injunction proper remedy: 41 S. C. 220, 253, 259 to 264; 17 R. R. A. 145; 65 S. E. 72; 132 Ga. 727; 62' S. C. 68. The legislature cannot delegate its power to the voters: U. S. Const., art. IV, sec. 4; State Const, art. Ill, sec. 1; art. I, sec. 14; lb., sec. 13; 60 S. C. 1; 30 S. C. 519,-. 87 S. C. 270; 72 Pa. St. 508; 13 Am. St. Rep. 716; 6 A. & E. Enc. of R. 1021; 36 N. J. 72; 13 Am. Rep. 72; Cooley’s Const. Lim. (6th ed.), pp. 137, 140,, 143; Oberholtzer, The Referendum, Initiative & Recall in America, pp. 208 and 210, 216; 6 R. C. L. “Delegation of legislative power:” 5 Iowa 492; 4 Harrington 492; 33 Iowa 134; 8 N. Y. 483; 59 Am. Dec. 506; 92 N. Y. 311, 316; 44 Am. Rep. 380; 134 N. Y. 506; 31 N. E. 873; 70 S. C. 361; 191 N. Y. 428; 84 N. E. 380; 62 Mo. 188, 194; 21 Am. Rep. 411; 23 L. R. A. 113; 115 Term. 445; 91 S. W. 293; 48 Cal. 279; Locke, Two Treatises on Government 276; 62 Mo. 188; 21 Am. Rep. 411; 92 Wis. 63; 65 N. W. 738; 3 R. I. 33; 3 Mich. 343; 26 Vt. 357; 6 N. H. 264; 2 Iowa 165; 8 N. Y. 483.</p> <p>submit: Plaintiff has a plain and adequate remedy at law: 78 S. C. 570; 79 S. C. 414; 78 S. C. 228. Flection should not be enjoined: Paine Elections, sec. 940; 54 S.-C. 1; 81 S. C. 392; note in 40 L. R. A. (N. S.) 577; 123 La. 443; 49 So. 12; 58 W. Va. 651; 52 S. E. 776; 78 Miss. 648; 29 So. 465; 88 Miss. 489; 41 So. 186; 9 Ann. Cas. 120; 132 Ga. 727; 65 S. E. 72; 31 Okla. 620; 40 L- R. A. (N.- S.) 576; 61 111. 201; 48 111. 485; 62 111. 306; 82 111. .119; 3 L. R. A. (N. S.) 382; 30 L. R. A. 90; 16 C. C. A. 516; 69 Fed. 852; 151 111. 41; 25 L. R. A. 143. Initiative and Referendum: 44 Oregon 120; 74 Pac. 710; 75 Pac. 222; 53 Oregon 162; 99 Pac, 427; 57 Oregon 102; 37 L. R. A. (N. S.) 339; 223 U. S. 110; 223 U. S. 151; 21 Okla. 33; 95 Pac. 435; 18 Ann. Cas. 197; 106 Ark. 506; 153 S. W. 826; notes in 11 L. R. A. (N. S.) 1092, and 33 L. R. A. (N. S.) 969; 112 Pac. 402; 53 Wash. 432; 102 Pac. 408; 137 Iowa 452; 115 N. W. 177; 113 Pac. 775; Cooley’s Const. Lim., p. 120; 26 Wis. 291; 1 L. R. A. (N. S.) 483; Black, Intoxicating Liquors, sec. 45; Cooley’s Const. Lim. 174; 13 Bush. 485; 37 Iowa 462; 50 N. J. L. 585; 1 L. R. A. 86; 5 Dak. 397; 3 L. R. A. 3-55; 41 N. W. 746;.46 Ohio St Rep. 607; 6 L. R. A. 745; 23 N. E. 63; 1 Bl. Com. 57; 84 Va. 619; 5 S. E. 565; 14 Bush. 218; 29 Am. Rep. 407; 64 Miss. 59; 8 So. 201; 82 Mich. 393; 10 L. R. A. 69; 47 N. W. 39; 86 N. C. 8; 21 Vt. 456; 23 Cyc. 78, 79; 95 S. C. 104; note in 15 L. R. A. (N. S.) 942; 73 Ga. 604; 29 Fed. 865; 42 Ind. 547; 1 L. R. A. (N. S.) 482; 42 Ind. 547; 72 Pa. 491; 13 Am. Rep. 716; 40 Mo. 458, 464; 42 Md. 71; 20 Am. Rep. 83.</p> <p>also filed an argument for respondents, cites: As to Federal guaranty of republican form of government: 2 U. S. 457; Federalist, No. 38; 139 U. S. 461; 178 U. S. 578; 88 U. S. 162; 74 U. S. 700; Black. Const. Law, ch. 10, sec. 91, p. 239. Only political rights are involved: Anderson, L. D. 905; 2 Bouvier L. Die. 597; 105 N. W. 520; 3 L. R. A. (N. S.) 382, and cases in note; 36 Cal. 658, 662; 151 111. 41; 25 L. R. A. 146; 30 L. R. A. 97; 69 Fed. 16; C. C. A. 516. The questions involved are governmental and political: Black. Const. L., ch. 5, sec. 52, p. 83; 73 U. S. 50; 5 Pet. 20; 48 U. S. 42; 71 U. S. 475; 40 L. R. A. (N. S.) 576-8; 178 U. S. 579; 139 U. S. 449. The Constitution requires free elections: Art. II, sec. 15; art. I, sec. 1. And the Courts will not interfere: 78 S. C. 575; 81 S. C. 392; 44 S. C. 259, 268; 189 U. S. 487, 488; 231 U. S. 38; 15 L. R. A. 572, 573.</p> <p>The petition was then refused in a formal order.</p>

Before Wilson, J., Columbia, April, 1915. Action by John W. Lillard, a resident citizen, freeholder and taxpayer of the city of Columbia, county of Richland and State of South Carolina, on behalf of himself and all others likewise interested and situated, against W. D. Melton, chairman.; A. B. Langley, H. H. Hinnant, J. T. Reese and Andrew Patterson, Jr., as “Richland County Commission for Permanent Highways.” From an order refusing an injunction, and dismissing the…

Before Hon. M. F. AnsEE, special Judge, Greenville, June, 1915.

<p>Contracts. Indemnity Bonds. Guaranty Insurance.</p> <p>1. Contracts — Construction.—A stipulation in a builder’s contract that the contractors shall furnish at their own cost the material necessary to do the work, raises the implied promise on their part to pay the material men.*</p> <p>la. Appeal and Error — Finality of Decision. — While an.appeal from a pro forma order, simply overruling demurrer to the complaint on the ground that it does not state a cause of action, is legal, the bar should promote'one trial of a case.</p> <p>16. Contracts — Contracts for Benefit of Third Person — Third Person’s Right of Action. — A stranger to a contract can recover upon it only if it appears that it was made for his benefit, and that there was some obligation to him which supplies consideration.</p> <p>lc. Municipal Corporations- — Contractor’s Bond — Actions — Pleading. — In an action by a materialman on the bond given a city by its contractor for paving work, the affirmative of the issue whether the words of the paving contract and the bond manifested an intention to protect materialmen was on the plaintiff.</p> <p>2. Contracts. — Where the specifications for a public work, the proposal, the acceptance, and bond given to secure the performance of the contract are inter-dependent and refer to each other by cross references, they are synchronous and evidence a single transaction.</p> <p>3. Contracts — Indemnity Bonds.- — Indemnity contracts, written for a premium by corporations engaged in such business are a modern device; and in their construction little help may be had from cases of indemnity arising out of transactions of a different character.</p> <p>4. Contracts. — The right of a third person, for whose benefit a contract is made, to recover thereon is not dependent upon the question whether the party making the contract, in making it acted as agent of the party to be benefited.</p> <p>4(t. Municipal Corporations — Contractor’s Bond — Materialmen — Necessity for Sealed Authority. — Although authority of an agent to execute an instrument under seal, in the absence of the principal, must, in all instances, be itself under seal, where a paving contractor for a city executed a bond to secure such city, it being within the contemplation of the parties that the bond should also secure material-men for the work, such bond was efficacious to give a materialman a right of action against the bonding company thereon, although the city had no sealed authority from the materialman-to .execute an instrument under seal, since the relationship between the material-man and the bonding company was not dependent upon whether the city was the agent for the materialman when the bond was executed.</p> <p>5. Contracts — Specialty—Simple.—Where a seal is not necessary to the validity of a contract, it may be regarded as surplusage, and the instrument take effect as a simple contract.</p> <p>56. Municipal Corporations — Operation as Simple Contract. — The fact that a city had no sealed authority from a materialman, who furnished material for a paving work, to execute a sealed contract for the work and the bond securing the city and materialmen from default by the contractor did not bar the materialman’s action on the bond against the bonding company, since the seal to the contract and bond, not necessary to their validity, could be disregarded as surplusage, the instruments operating as simple contracts.</p> <p>6. Municipal Corporations — Contractor’s Bond — Nature op Liability — “Surety.”—Where a bonding company executed a bond to secure a city and materialmen from harm from any default of a paving contractor, although the company referred to itself as a “surety” in the bond, it was not such, and its contract to be construed, as others, fairly from the words used, its agreement being to save persons from possible harm in a transaction into which they were about to enter, while a surety’s contract is to pay a person that which a third person is first liable to pay the second.</p> <p>7. Bonds. — The amount of a bond to insure the performance of a contract is presumably fixed with reference to an apprehended partial failure, and the reasonably- probable outcome.</p> <p>7a. Municipal Corporations — Indemnity Bond — Construction.— Where a bonding company agreed to save a city harmless in the matter of a paving contract. amounting to $80,000, the bond being fixed at $28,000, the discrepancy between the amount of the bond and the cost of the work was not decisive of the issue, whether such bond was intended to secure materialmen.</p> <p>8. Bonds — Construction.-—:The construction of a bond as embracing a particular provision does not exclude other provisions, not then under consideration.</p> <p>Footnote. — Liability of surety company as distinguished from liability of individual surety, see 23 A. & E. Ann. Cas. 1912b, 1087; 57 S. C. 459, 35 S. E. 754 ; 33 L. R. A. (N. S.) 513. Companies guaranteeing performance of contracts as insurers, see notes in 33 L. R. A. (N. S.) 513; 47 L. R. A. (N. S.) 295. As to right of subcontractor, material-man, or laborer to -maintain action on contractor’s bond to owner, see notes in 27 L. R. A. (N. S.) 573, and 53 L. R. A. (N. S.) 1915a, 768. Implied power to incorporate’ in contract for public work, or in contractor’s bond, the requirement that the contractor shall pay laborers and materialmen, see note in 46 L R. A. (N. ,S.) 325, and 11 L. R. A. (N. S.) 1028.</p> <p>9. Bonds — Construction.—Where a bond, made and delivered to a city, to secure the performance of a builder’s contract, stipulated that the contractors should weE and truly comply with all the agreements of their contract and proposal, which expressly required them to furnish the necessary material, and impliedly bound them to pay therefor; and further stipulated that they should promptly pay all claims of all persons furnishing material, it was intended to save harmless, not only the city, but also others who might be injured by the failure of the contractors to perform their agreements, and it became the primary obligation of the bonding company to see that the materialmen were paid, as the debts due them by the contractors were contracted; and such materialmen have a right to sue and recover thereon.</p>

Before Bowman, J., Greenwood, April, 1914. Action by Arthur Jefferson, an infant, by Elijah Jefferson, his guardian ad litem, against Southern Express Company. From order of nonsuit, the plaintiff appeals. cites: As to issue for jury: 61 S. C. 218; 63 S. C. 96; 65 S. C. 122 and 440. Nominal damages: 4 Ene. Ev. 4.

Before Watts, A. J., Laurens, July, 1915. The first proceeding was a petition for writ of mandamus, brought by the National Loan and Exchange Bank of Greenwood and W. T. Bailey, petitioner-respondents, against Adolphus W. Jones, John P. Derham and W. G. Query, constituting the South Carolina Tax Commission, and J. W. Canfield, County Auditor, respondents-appellants, complaining of the acts of the tax commission in so far as their acts relate to the assessment of the property…

Before SeasE, J., Greenwood, October, 1914. Action by Farmers and Merchants Bank against W. E. Rivers and C. A. C. Waller. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. cite: As-to adverse possession: Code Civil Proc., secs. 128, 129 and 130; Civil Code, sec. 3543; 82 S. C. 378; 72 S. E. 235; 79 S. C. 286; 29 S. E. 147. cites: As to notice: 1 McC. 170, 171; 78 S. C. 501; 22 S. C. 32; 14 S. C. 626.

In trie Original Jurisdiction. Petition on the relation of W. W. Huckabee against Isaac C. Hough, in the nature of quo warranto, to determine title to the office of sheriff of Kershaw county. The facts are stated in the opinion. submits: There is no inherent power of appointment in Governor: 92 S. C. 395; 89 S. C. 113; 111 S. W. 990; Throop. Pub. Off, sec. 362; 8 Cyc. 857. Civil Code, secs. 695 and 1137 limit.it to fill vacancies. Suspension creates no vacancy: Throop. Pub.

Before Hon. C. J. Ramage, special Judge, Columbia, December, 1914. Action by Richard Bell against Alice Bell and Isaac Dakin. From order on verdict upon issues submitted to jury (99 S. C. 501, 503, 84 S. E. 369), plaintiff appeals. The facts are stated in the opinion. submits: Question of notice to Lakin was res judicata> and order submitting same should be reviewed.

Before DeVorE, J., Florence, November, 1914. Action by W. M. Steele against Atlantic Coast Line Railroad Company and L. L. Crumpler. From judgment for plaintiff, defendants appeal. The facts are stated in the opinion of the Court. The charge of the trial Judge, on assumption of risks, was as follows: Every one of these specifications of negligence alleges, I believe, that the appliances of the coupling were defective.

Before Memminger, T., Columbia, December, 1913. Held: jointly and severally, liable to the stockholders of the Seminole Securities Company, upon the ground that, acting as trustees to hold certain funds arising from the sale of stock of said company, to be applied to the formation and control of an accident insurance company, they were guilty of gross negligence and consequent breach of…

Before Mauedin and Shipp, JJ., Sumter, 1915. Action by W. A. Thompson against Z. F. Highsmith, in which an order of injunction was granted by Judge Mauldin -against defendant. Thereafter, in a proceeding by the State for contempt for violating the order, defendant was adjudged guilty by Judge Shipp. Defendant having appealed from both orders, he moves to suspend their operation until the appeal shall be heard and decided.

Before Shipp, J., Florence, November, 1915. Action by M. D. Lucas against City of Florence, and ■others, constituting the city council. From an order dismissing complaint, plaintiff appeals.

Before DeVorE, J., Aiken, October, 1915. Action by City National Bank, of Lansing, Michigan, against John M. Given. From judgment for plaintiff, the defendant appeals. The facts are stated in the opinion. cites : 80 S. C. 292; Civil Code, secs. 2528 and 3990. cites: As to notary’s certificate: Civil Code, secs. 2528 and 3990; 2 Daniel Neg. Inst. (5th ed.), secs. 945, 595, 969, 933. Proof of presentment: 55 S. C. 438, 439; 13 Peters 136; 45 S. C. 533.

Before Moore, J., Laurens, May, 1915. Action by The J. W. Copeland Company against W. R. Brown. From an order refusing to dissolve an attachment, the defendant appeals. The facts are stated in the opinion of the Court.

<p>Assault With Intent to Ravish. Evidence of Intent. Identify cation.</p> <p>1. Assault With Intent to Ravish — Evidence of Intent. — Evidence that a strange man, without any excuse, entered a woman’s bedroom, came up behind the chair where she was sitting, with his person exposed, and without speaking until she hearing a noise turned and discovering his presence, ordered him out of the house,- whereupon he got between her and door,-and when she moved to leave the room by another door, he caught her hand and pulled it from the knob, and then, frightened by her screams and the coming of neighbors in response thereto, ran away, is abundantly sufficient to establish the intent of the assault.</p> <p>2. Cbiminal Law — Evidence—Identity.—The sufficiency of evidence to establish and identify the defendant in a criminal prosecution as the person who committed the offense, is for the jury.</p> <p>3. Cbiminal Law — Evidence.-—It is competent for a witness in testifying to the identity of the accused, after testifying that she saw a man at a certain time and place, and to the circumstances showing her opportunity to observe, to state “I believe the defendant is the man I saw.”</p> <p>Footnote. — As to certainty of testimony with reference to identity, see Underhill - Crim. Ev., sec. 55, 40 Mont. 326, 106 Pac. 364, 20 Ann. Cas. 398; Wharton Crim. Ev. (8th ed.), secs. 131 and 803, note; Jones , Ev. (2d ed.), sec. 361; 1 Wigmore Ev., sec. 660, note 1'; People v. Jennings, 252 111. 534, 96 N. E. 1077, 43 L. R. A. (N. S.) 1206.</p>

<p>Intoxicating Liquors. Municipal Corporations. Ordinances. Charge.</p> <p>1. Intoxicating Liquors — Municipal Corporations — Ordinances.— A municipal corporation may by ordinance prohibit the transportation of intoxicating liquors within its limits.</p> <p>2. Intoxicating Liquors — Municipal Corporations — Ordinances.' — ■ An ordinance amending an ordinance prohibiting the sale of intoxicating liquors, so as to include the transportation of such liquors within its prohibitions, is effective, as there is no specific law prescribing the form in which ordinances shall be passed.</p> <p>3. Criminal Law — 'Appeal and Error. — -Where there is evidence to sustain a verdict in a municipal Court, concurred in by the Circuit Court, it will not be disturbed by the Supreme Court on appeal.</p> <p>4 Charge. — A charge stating- that the case at bar differs from another, which could have no application, is not error.</p> <p>Footnote. — As to validity of municipal ordinance declaring that all or certain classes of offenses denounced by law of State shall be offenses also under the ordinance, see notes in 26 L. R. A. (N. S.) 493.</p>

Before DeVorE, J., Aiken, October, 1915. Action by R. R. Farmer and others against T. B. Corley. From judgment in favor of Josephine Farmer, her children, who are the other plaintiffs claiming an adverse interest to her, appeal. cites: 67 S. C. 130; 97 S. C. 123. cites: 94 S. C. 308; 99 S. C. 307.

Before Gary, J., Anderson, March, 1915. Action by Jesse M. McAlister against W. H. Tucker. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. cite: As to time when rent becomes due: 24 Cyc. 1171; 68 S. E. 952; Civil Code, 3503. The charge was not requested by appellant: 100 S. C. 218.

Before Smith, J., Newberry, September, 1915. Action by Julia O. F. Parry against Southeastern Life Ins. Company. From judgment for defendant, plaintiff appeals. The former appeal is reported in 95 S. C. 1, 78 S. E. 441. The new trial there granted was had before a jury.

<p>Before Memminger, J., Marion, June, 1915.</p> <p>Action by Sellers & Moore against P. S. Campbell. From judgment'dismissing complaint, the plaintiffs appeal.</p> <p>cite: 20 S. C. 542; 32 S. C. 277; 38 S. C. 507: 73 S. C. 190.</p> <p>cite: 91 S. C. 121. Questions of fact in law case not reviewdble in Supreme Court: 77 S. C. 414; 63 S. C. 45; 58 S. C. 1; 78 S. C. 487.</p>

<p>Seduction. Defenses. Unaccepted Offer of Marriage. Corroborative Evidence. Deception. Trial Remarks. Charge.</p> <p>1. Seduction — Defenses—Subsequent Offer of Marriage.- — -An unaccepted offer of marriage is no defense to a prosecution for seduction.</p> <p>2. Seduction — Corroborative Evidence. — -Where an unmarried woman, having a child, charged the defendant with having seduced her, the birth of the child, the defendant’s admission that he was at all times willing to marry her, that after the alleged intercourse he left the neighborhood without informing her that he was going and for what time, although he states he was in love, with her, and returned shortly before the child was born and again .asked her to marry him; that she then consented, but afterwards, on learning of statements by him that he intended to marry, and then abandon or divorce her, refused to accept his offer of marriage, are circumstances corroborating her testimony that he seduced her under promise of marriage.</p> <p>3. Seduction — Deception.—If a seducer makes a promise of marriage, by which he induces a woman to surrender her virtue, without intending to fulfil his promise, and thereby deceives her, his conduct is in violation of Crim. Code, sec. 389.</p> <p>4. Charge on Facts — Remarks During Trial. — A remark in reference to defendant’s motion for direction of a verdict, that “there is some evidence as to every ingredient of the crime. I think the baby is some corroboration, but still there is other corroboration,” is not objectionable as a charge upon the facts.</p> <p>, Footnote. — As to necessity in criminal prosecution for seduction that the woman be corroborated, and the elements to which corroboration must extend, see notes in 19 Am. & Eng. Ann. Cas. 869, and State v. Turner, 82 S. C. 278, 280, 17 Ann. Cas. 88, 64 S. E. 424.</p>

Before SeasE, J., Spartanburg, March, 1915. Action by T. P. Sims against the Mutual Fife Insurance Company of New York on insurance contract. From an order allowing the plaintiff to amend the complaint so as to include an additional cause of action based on an allegation of fraud in refusing to perform the contract, the defendant appeals. cite: 19 S. C. 560; 21 S. C. 221. cite: 81 S. C. 574.

Before Rice, J., Columbia, June, 1915. James Sanders, convicted of murder, appeals. Refusing motion for new trial, the Circuit Judge said: “I could not even entertain a motion for a new trial and order a new trial without giving the State an opportunity to rebut those affidavits.

Before SEasE, J., Anderson, July, 1915. Action by L. Feinstein against A. Politz, originally brought in a magistrate’s Court. During the trial the presiding magistrate took the stand as a witness in order to prove a memoranda made by him as referee in bankruptcy with reference to an alleged fact in the case. Judgment being rendered in the magistrate’s Court for the defendant, the plaintiff appealed to the Circuit Court, which ordered a new trial before the magistrate.

Before Wilson, J., Gaffney, October, 1915. This was an action brought by the Ross Tin Mine, a corporation, as plaintiff, against the Cherokee Tin Mining Company, a corporation, and Owen Gaffney, defendants, to set aside and to declare to be null and void a certain lease between the said plaintiff and John Baker and D. D. Nicholas, the interest of the said lessees having been transferred to the said defendant, and to enjoin the said defendants from entering upon the leased…

Before Rice, J., Sumter, February, 1915. Action by Ellen Rush against D. M. Green. From judgment for defendant, plaintiff appeals. The facts are stated in the opinion. cite: 99 S. C. 64; 31 S. C. 276; 61 S. C. 579. cite: 54 S. C. 191; 92 S. C. 501; 90 S. C. 494.

Before Hon. M. E. Ansel, special Judge, Greenville, June, 1915. Action by International Harvester Company of America against Monroe Banking & Mercantile Company and R. A. Monroe. From decree dismissing complaint, the plaintiff appeals. submit: The contract was completely executed: 2 Strob. Eq. 370; 42 Am. Dec. 439; 64 Am. Dec. 147, 151; 16 Am. Dec. 42.

Before Rice, J., Dillon, March, 1915. Action by Clarkie Ann Hyatt against Marion County Dumber Company to recover damages for injuries to crops growing on lands in Dillion county, caused by the alleged acts of the defendant in obstructing a watercourse and thereby causing the waters to be backed upon said lands and preventing their natural drainage. From order changing the venue, the plaintiff appeals.

<p>Actions. Injury to Real Property. Venue. Growing Crops.</p> <p>1. Actions — Injury to Real Property. — Injuries to growing crops by obstructing the drainage of and backing water upon the lands, are injuries to real property.</p> <p>2. Actions — Venue.—Actions for injuries to real property must be tried in the county in which the subject of the action, or some part thereof, is situated.</p>

Before Hon. F. T. Willcox, special Judge, Abbeville, October, 1915. Action by H. Weinraub against Southern Railway Company. ' From judgment of the Circuit Court modifying judgment rendered by magistrate, defendant appeals. It does not appear in the case how the point, as to failure of proof of value of goods shipped, was made before either the magistrate or Circuit Judge.

Before Mauldin, J., Hampton, February, 1915. Action by J. G. Folk, as administrator of the estate of Jessie M. Folk, deceased, plaintiff, against D. F. Moore, W. D. Barnes, S. A. Agnew and J. R. Folk, defendants. From judgment for plaintiff, defendants appeal.

Before Smith, J., Gaffney, Spring term, 1915. Action by M. Lou Kitchen, as administratrix of estate of T. W. Kitchens, deceased, against G. S. Melton and Gaffney Manufacturing Company. From judgment for defendant, plaintiff appeals on the following exceptions: That his Honor erred: 1.

Before Memminger, J., Marion, June, 1915. B. Frank Price, being convicted of murder, with a recommendation to mercy, appeals. The facts are stated in the opinion. ' submit: As to examination of witness: 72 S. C. 194. Competency of evidence: 71 S. C. 136; Jones Ev., sec. 300; Greenleaf Ev., sec. 101; 10 L. R. A. (N. S.) 335, 339; 85 S. W. 191; 29 S. W. 871; 34 N. E. 731.

<p>Railroads — Animals Injured on Track — Presumptions — Res Ipsa Louuitur. — The rule of evidence announced in Danner’s case, 38 S. C. L. (4 Rich.) 30, is not arbitrary, but rests upon the assumption that a present status, unusual and hurtful, must often and from the necessity of the case, be charged in the first instance and until the truth is established, to him who stands next to it in time and place, and does not amount to a denial of due process.</p> <p>Footnote. — See discussion of the common law aspects of the maxim, "Bes ipsa loquitur/’ by the late Mr. Justice Lurton, in Cincinnati etc. B. Co. v. South Fork Coal Co., 139 Fed. 528, 71 C. C. A. 316, 1 L. R. A. (N. S.) 563, and as to the validity of statutes making certain facts prima facie evidence in Mobile etc. B. B. Co. v. Turnipseed, 219 U. S. 35, 31 Sup. Ct. 136, 22 A. & E. Ann Cas. 1912a, 463, and note.</p>

Before Smith, J., Union, April, 1915. Action by J. H. Webber, as administrator of the estate of Myrtle H. Webber, deceased, against Southern Life & Trust Company. From judgment for plaintiff, defendant appeals.

Before Hon. C. M. Efird, special Judge, Chester, November, 1914. Action by Mrs. Susie C. Newbold against Robert McCrorey. From judgment for plaintiff, defendant appeals. The facts are stated in the Circuit decree as follows: In November, 1910, Eethia Hemphill, a daughter of the defendant, McCrorey, was convicted of murder and sentenced to life imprisonment in the State penitentiary.

Before Rice, J., Sumter, January, 1915. Action by Edward Miller against May Bossard Smith, Prances Smith and W. Percival Smith, executor and trustee of J. J. Bossard, deceased. From judgment for defendants, plaintiff appeals. The facts are stated in the opinion. cites: As to effect of quitclaim deed: 1 Jones Mortgages, sec. 251; 41 S. C. 167; 92 S. C. 501; 1 McMul. Pq. 13; 21 S. C. 400; 28 S. C. 371.

Before Bowman, J., Manning, January, 1915. Action on bond by Joseph Holladay against Joseph N. Hodge and others. From judgment for plaintiff, defendants appeal. The facts are stated in the opinion.

Before Gary, J., Abbeville, September, 1915. Charles B. Thomas, convicted of manslaughter, appeals. The following statement of facts appears in the case: “The indictment charged the defendant with the murder of one R. C. Fields. It is alleged that homicide was committed with a pistol. There was a second count in the indictment, charging the defendant with carrying a concealed weapon about his person, to wit, a pistol.

<p>Railroads. Persons on Tracks. Licensees. Charge. Issues. Proximate Cause. Damages. Appeal and Error.</p> <p>1. Appeal and Error — Damages.—Where a verdict for only actual damages is rendered, the refusal to direct a verdict for defendant on cause of action for punitive damages is not assignable as error.</p> <p>2. Issues. — Where there is testimony tending to prove the allegations of plaintiff’s complaint motion to direct verdict for defendant is properly refused.</p> <p>3. Issues — Proximate Cause. — Where the testimony tends to prove negligence on the part of both plaintiff and defendant, hut more than one inference may be drawn therefrom as to the proximate cause of the injury, these issues are for the jury. ’</p> <p>4. Trial — Instructions—Cure of Error. — Although a portion of the charge, to the effect that if persons were accustomed to cross defendant’s track at the place where deceased was killed he was a licensee, when taken alone appears to be on the facts, it is not error, if, when considered with the whole charge, it is not susceptible of that meaning.</p>

Before DlVorE, J., Greenville, April, 1915. Action by J. W. Adams against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. • cite: As to regulation as to production of ticket: 2 Hutch. Carriers, sec. 1036; 31 111. App. 435; 34 S. W. 852; 115 S. W. 459; 34 Atl. 11; 78 S. W. 470; 47 S. E. 206; 33 S. E. 255; 152 Fed. 608; 58 So. 963. Distinguishes: 99 S. C. 397. Trespasser: 80 S. E. 530.

Before SbasE, J., Spartanburg, January, 1915. From a conviction for violating the city ordinances of Spartanburg, the defendants, B. Willis, Grover Fowler, J. C. Wilson and C. M. Wall, appeal. The facts are stated in the opinion. cite; As to taking testimony: Civil Code, secs. 3008, 3010; 63 S. C. 98.

Before Copes, J., Bamberg, March, 1912. Mallie Curry and Henry Brown, having been convicted with another of grand larceny, appeal. The testimony tended to show that the.peas stolen were worth $1.65 per bushel. The other facts are stated in the opinion. submit: Plea by one of defendants of guilty of petit larceny being accepted, these defendants-appellants should not be convicted of grand larceny: 3 McC. 187.

<p>1. Bills and Notes — Innocent Purchasers — Rights of. — Where defendants, having executed promissory notes, executed new notes on the holder’s representation that he had lost the originals, but required no indemnity bond to save them harmless on the originals,' defendants’ payment of the second notes will not defeat the rights of an innocent purchaser to whom the holder had fraudulently disposed of the original notes.</p> <p>la. Bills and Notes — Parties—Demand.—Commencement of action is a sufficient demand for payment of notes in action against maker.</p> <p>2. Bills and Notes — Defense—Burden of Proof. — The burden of proof is on the maker of a negotiable note to prove that an indorsee holding same is not an innocent purchaser without notice and a mere showing that there were circumstances tending to cast suspicion on the note will not establish bad faith.</p> <p>3. Bills and Notes — -Issues—Verdict.—A verdict for plaintiff properly directed where testimony shows that a negotiable promissory note fraudulently obtained by payee from maker, was subsequently acquired in good faith for value before maturity, by the indorsee holding it, and there is no testimony tending to show such holder to have been guilty of negligence, laches or other defense.</p>

Before Prince, J., Winnsboro, October, 1915. Action by Jennie B. Hair against the Winnsboro Bank. From judgment for plaintiff, defendant appeals. The charge of the Circuit Judge was as follows: Mr. Foreman and Gentlemen of the Jury: The plaintiff comes into Court and alleges in her complaint against the Winnsboro Bank that at the time mentioned in the complaint she had on deposit in said bank in the savings department an amount exceeding two thousand dollars.

Before Hon. C. J. Ramage, special Judge, Columbia, December, 1914. Action by Joseph Safrén against J. B. Meyer. From judgment for plaintiff, defendant appeals. The facts are stated in the opinion. The trial Judge, after stating the issues, and reading an extract from 19 Cyc. 319, on false imprisonment, charged the jury as follows: Now, unlawful arrest, gentlemen, is arresting the person without authority of 'law.

Before Moore, J., York, July, 1914. Action by Southern Railway Company against S. J. Kimball and W. O. Kimball. The facts are stated in the opinion. From judgment for defendants, plaintiff appeals. The seventh exception was as follows: • 7.

<p>1. Executors and Administrators — Power op Sale. — Where testator’s will directed that his debts be paid, and then devised to his children, naming them, all the proceeds arising from the sale of his house and lot in the town of Clio, to be equally divided after all just debts were paid, the executors were given, by necessary implication, power to sell the land, more particularly where there was no other way in which to pay the debts.</p> <p>2. Executors and Administrators — Sale op Realty — Power to Bid In. — Executors, who advertised a- sale of testator’s realty, which they had power to sell, in their discretion could bid the place up to the price they were willing to take for it and bid it in themselves, acting in their representative capacity for the estate, and not personally.</p> <p>3. Work and Labor — Service Rendered by Child — Presumption.— Services rendered a parent by children are presumed to have been rendered from affection, and not from any expectation of being paid.</p> <p>4. Work and Labor — Parent’s Liability por Services — Necessity por Contract. — A daughter suing her father’s estate for compensation for services cannot recover, unless there was an express agreement providing for specific or reasonable compensation and the father not only intended to pay her something, but legally obligated himself to do so.</p> <p>5. Wills — Election op Legatee. — Where testator’s will gave to his daughter, who had rendered him services in his lifetime, and her two sons, all of his effects, including household and kitchen furniture, “this to be a. balance in lieu for all services rendered to. me by her since she has been with me, this to be equally divided between them,” and the daughter, after admitting the validity of the gift to her and her sons, thus taking the property, filed a claim against the estate for services rendered from the date of the will to the date of testator’s death, she could not recover, having elected to take the propertj in full of all claims, while a will speaks from testator’s death.</p> <p>6. Work and Labor — Services by Child — Agreement to Pay — -Sufficiency of Evidence. — In a daughter’s suit against her father’s estate for services rendered him in his lifetime, evidence held insufficieni to show that the father had agreed to pay the daughter anything.</p> <p>7. Wills — Election—Acceptance of Note. — Where a father, to whom his daughter rendered services, executed a note, payable by his estate, which he left her by will, the daughter, having accepted the note and proved it as a claim for her services, could not claim more therefor, and that the instrument was evidence of an agreement to pay for the services.</p> <p>8. Wills — Forfeiture of Legacy. — -Where a will gave personalty to testator’s daughter and her sons in full “in lieu for all services” rendered while she was living with him, and provided that if any of his children attempted to have his will set aside or changed they should forfeit all right in his estate, but without making any gift over of the subject-matter of the legacy to the daughter, such daughter, by taking the property under the will and seeking to get in addition compensation for her services by proving an account therefor, did not forfeit her interest in the estate, since in case of a legacy breach of such a condition will not work a forfeiture, unless there is a gift over of the subject-matter of the legacy, and where there is no such gift and a probabilis causa litagendi, a breach of the condition will not work a forfeiture either as regards a legacy or devise.</p> <p>9. Use and Occupation- — ■ Damages. ■ — • Where a daughter, after 'her father’s death, remained in possession of his house, to which she made no claim of title, after his executors had demanded possession and she had refused to give it up, she was liable to them for the fair rental value of the property.</p> <p>10. Executors and Administrators — Right to Commission. — Statute.— Under Civ. Code 1912, sec. 3648, providing that if an executor neglects to render annual accounts he shall not be entitled to commissions, an executor is entitled- to commissions, unless shown to have failed to make regular annual returns, being entitled to no commissions in the years in which he failed.</p> <p>11. Executors and Administrators — Authority to Procure Monument. — It is within the authority of executors to procure a monument for testator’s grave.</p>

Before Shipp, J., Greenville, September, 1914. Action by J. G. Trimble against J. P. Carlisle. Judgment for plaintiff, and defendant appeals. The one of the notes sued on, which provided for monthly payments, is as follows : $1,000.00 Greenville, S. C, Nov. 23, 1909. Beginning July 23, 1910, after date I promise to pay to the order of William V. Holley fifty and no 100 dollars per month for twenty months. Payments to be made on the 23d of each month after date of this note.

Before Rice, J., Cheravv, March, 1915. C. L. McLeod and L. H. McLeod, being convicted of violating the ordinance of the town of Cheraw, with reference to the storage and transportation of intoxicating liquors, appeal. The facts are stated in the opinion of the Court. cite: As to former jeopardy: Cooley Const. Lim. (2d ed.) 327; 1 Bishop Crim. Law, sec. 1013; 1 Bailey 651; 47 S. C. 166.

<p>Before Smith, J., Union, February, 1915.</p> <p>Action by J. H. Brandon against Ottaray Cotton Mills. From judgment for plaintiff, defendant appeals.</p> <p>The former cite: As to duty to warn: 55 S. C. 483; 80 S. C. 351; 3 Labatt M. & S. (2 ed.) 1066; 4 lb. 1516. Assumption of risk: 86 S. C. 69; 89 S. C. 502.</p> <p>Negligence in requiring machinery oiled while in motion: 92 S. C. 249; 68 S. C. 55; 84 S. C. 364; 85 S. C. 372; >2 S. C. 102. Assumption of risks: 77 S. C. 69; 80 S. C. 360; 74 S. C. 18; 72 S. C. 34; 80 S. C. 239; 86 S. C. 69; 80 S. C. 567; 75 S. C. 150. Duty to warn: 76 S. C. 452; 86 S. C. 116; 80 S. C. 232; 99 S. C. 112.</p>

Before Moore, J., Anderson, October, 1915. A. J. Campbell, being convicted of storing and selling intoxicating liquors, appeals. The facts are stated in the opinion. submits: Exceptions only attempt to raise■ questions of fact: 62 S. C. 405; 100 S. C. 443.

Before Prince, J., St. George, October, 1915. Action by Joseph Murray against the Southern Bell Telephone & Telegraph Company. From a verdict for defendant, the plaintiff appeals. The latter submits: Agency may be shown by parol: 74 S. C. 225; 3 Elliott Ev. 1629, 1638; 76 S. C. 531; 80 S. C. 211. Master liable for wilful acts of servant: 67 S. C. 395; 3 S. C. 1, 8; 56 S. C. 126; 57 S. C. 347. Scope of agency: 82 S. C. 467; 37 S. C. 381; 125 S. W. 441.

Before Spain, J., Dillon, May, 1915. Action by William A. Hamilton against W. M. Hamer and another. From a judgment for plaintiff, defendant named appeals. submit: In action for specific performance the vendee in possession is not relieved by tender from liability for interest: 20 S. C. 30; Pom. Contracts, secs. 428, 429 and 430; 74 N. E. 763'; 107 N. W. 40; Pom. Specific Performance, secs. 429, 430 ; 38 N. Y.. 137; 9 N. E. 41; 17 S. C. 334; 2 Greenleaf Ev., par. 600; Ann.

Before Shipp, J., >Monck’s Corner, March, 1915. Washington J. Brown and another were convicted of arson, and they appeal. Reversed and remanded, with directions to be discharged unless held on some other charge. submit : As to proof of corpus delicti. The corpus delicti consists of-two component parts: First, the existence of a certain fact or result forming the basis of the criminal charge; and, second, the existence of a criminal agency as the cause: 43 Ark. 331; 5 Colo.

<p>Before Wirson, J., Columbia, February, 1915.</p> <p>Action by O. H. Folley & Co. against W. E. Smith and J. P. Mehan as partners. From a judgment for plaintiff, defendants appeal.</p> <p>cites: On construction of contract': 98 S. C. 3; 79 S. C. 155.</p>

Before Moore, J., Lancaster, September, 1915. Action by the Seaboard Air Line Railway against G. McDuffie Hampton and others, members of and as constituting the Railroad Commission of South Carolina, and' others. From an order denying plaintiff an interlocutory injunction, it appeals.

Before Hon. C. J. Ramage, special Judge, Columbia, October, 1915. Action by John A. Civil, in his own right and as administrator of the estate of C. P. Keough, deceased, and others, against Sarah Frank Toomey and others. From the judgment, defendants appeal.

<p>I. Triad — Objection to Evidence. — In an action by a showman against an express company for damages by delay in carrying a piano, where, to’ a question to the showman, asking him to state his average earnings in towns of approximately the same size as the destination of the piano, and under the same conditions as there existed, defendant’s attorney objected on the ground that it would be the witness’ opinion as to the conditions, the objection that it would tend’ to prove the average earnings of the entire show with the piano, was not presented.</p> <p>2. Trial- — Objection to Evidence. — In an action for delay in shipping a piano, the objection, “I object to that,” to plaintiff’s testimony was too general for consideration as stating no grounds.</p> <p>3. Carriers — Carriage op Goods — Delay in Shipment — Evidence.— In an action against an express company for delay in transporting a piano for a showman, plaintiff’s testimony as to the difference in his earnings at C., to which the piano was shipped, without it, and the average earnings in towns of approximately the same size and under the same conditions as C., was admissible to show actual- damages.</p> <p>i. Evidence — Evidence Responsive to Pleadings. — In an action against an express company for delay in shipping a piano, testimony, given in response to the allegations of the complaint, was not irrelevant.</p> <p>5. Appeal and Error — Harmless Error — Admission op Evidence. — In an action against an express company for delay in Shipping a piano, error in the admission of testimony, which other testimony showed was not prejudicial to appellant’s rights, was not ground for reversal.</p> <p>6. Evidence- — -Hearsay.—In an action by a showman for delay in the shipment of his piano, testimony as to declarations, made by girls who sang in the show, as to whether there was any exhibition on certain nights, was inadmissible as hearsay.</p> <p>7. -Damages — Punitive Damages. — Where an express company, shipping a piano, delayed it in such a manner that a person of ordinary reason and prudence would have said it was a reckless disregard of the shipper’s rights, the company was liable for punitive damages.</p> <p>8. Carriers op Goods — Insurers.—A carrier-of goods is an insurer in the sense that it is absolutely liable for nonperformance of its con- ' tract to carry and safely deliver the goods with reasonable promptness, except where performance is prevented by the act of God or the public enemy.</p> <p>9. Carriers — Carriage of Goods — Liability for Delay — Instructions. —In an action against an express company for delay in transporting a shipment, where the Court charged that a common carrier, accepting freight for transportation, insures safe delivery, and is bound to carry it according to contract, unless prevented by the act of God,' or the public enemy, and on defendant’s counsel suggesting that the express company did not undertake to insure against delay, charged that the carrier was bound to carry out its contract, such charge was proper, as simply meaning that the express company was liable for an unreasonable delay.</p> <p>Footnote. — Damages from unreasonable delay in transportation of goods by a carrier are elements of loss, damage or injury to such goods, see N. Y. P. N. R. Go. v. Peninsula Produce Exchange, — U. S. —, 36 Sup. Ct. 230. As to excuses for delay by carrier in transportation of goods, see note in 9. L. R. A. 836.</p>

Before Bowman, J., Marlboro, July, 1915. John Pearson was convicted of assault with intent to commit rape, and he appeals on the following exceptions : 1. Because the testimony in the case did not show directly, or by inference, the intent on the part of the defendant to commit a rape upon the prosecutrix.

Before Wilson, J., Columbia, April, 1915. Action by Sarah Sternheimer against the Order of United Commercial Travelers of America. From an order requiring plaintiff to file security for costs, she appeals. submit: The right to demand security for costs is a personal right, and is waived by delay or the failure of defendant to assert the right promptly: 19 Ericy. PI. and Pr. • 362-363; 11 Cyc. 176, et seq.; (Utah) 85 Pac. 1011; 34 N. J. Eq. 488; 117 App. Div.

<p>1. Railroads — Crossing Accidents — -Instructions.-—-In an action for damages resulting from a crossing accident, the Court charged that it was obligatory on plaintiff to establish by the preponderance of the evidence that in some one or more of the ways, or by some one of the negligent acts set out in the complaint, he was injured, and therefore the jury should first determine whether he was injured, and next how injured, and, if not injured by one or more of the negligent acts set out in the complaint, verdict should be for defendant. Held, that the charge was not erroneous as permitting the jury to find for plaintiff though he did not establish by the greater weight of the evidence that defendant was negligent.</p> <p>2. Trial — Instructions — Assuming Negligence. — In such case, the charge was not erroneous as being on the weight of the evidence, contrary to Const., art Y, sec. 26, in assuming that defendant was guilty of negligence.</p> <p>3. Appeal and Error — Review—Harmless Error — -Instructions.—In a crossing accident case, the Court charged that, when a traveler in using a public highway exercises due care and caution in going on a railroad crossing and is confronted by a sudden peril due to the negligence of the railroad company, he is not guilty of negligence if, because of fright, he does not take the safest course. Plaintiff claimed that, when he saw defendant’s car approaching, he told the driver to whip up, thinking he could get over the tracks. There was abundant evidence to show plaintiff’s injuries and defendant’s negligence. Held, that the instruction, if technically incorrect, was harmless.</p> <p>Footnote. — As to care required of one confronted with sudden emergency, see notes in 37 L. R. A. (N. S.) 43 to 58. Errors of judgment when confronted with sudden danger, see notes -in 6 L. R. A. 195, 7 16. 843, 11 16. 131. As to contributory negligence at railroad crossing of driver of automobile required to act in an emergency, see notes in 46 L. R. A. (N. S.) 708.</p>

<p>Before Wilson, J., Lexington, February, 1915.</p> <p>Action by the Batesburg Cotton Oil Company against the Southern Railway Company and another. Judgment for defendants, sustaining their demurrers, and plaintiff appeals.</p> <p>cites: As to the construction placed by the parties on the contract: 2 Parsons, Contracts (16th ed.), sec. 498; 48 L. R. A. 41-46. Issue as to whether the representations were made, and with what intent: 50 S. C. 397, 401, 402; 92 S. C. 384, 393.</p> <p>cite: As to issue of fraud: 98 S. C. 162; 82 S. C. 176; 1 Strob. 400; 62 S. C. 42; Cooley, Torts 474; 23 Beav. 530; 5 Pa. St. 216; 47 Am. Dec. 408; 97 S. C. 25; 75 S. C. 339; 14 Rich. 237; 20 Cyc. 17, 18, 62. Construction placed by parties on contract: 72 S. C. 427; 78 S. C. 390; 98 S. C. 234.; 32 S. E. 192; 9 Cyc. 399. Policy of State: 20 'S. C. 430; 101 U. S. 71; 174 U. S. 95; 77 S. C. 467; 85 S. C. 165.</p> <p>submit: The warehouse agreements and the industrial tract agreements are valid, not against public policy: 85 S. C. 168; 175 U. S. 91; 5 Ann. Cas. 744; 12 Ann. Cas. 495. The plaintiff having availed itself of the advantages and received the benefits of the agreements, is estopped from pleading that its agents acted ultra vires in executing the same: 65 S. C. 45; 37 R. R. A. 682; 20 R. R. A. 767, 775; 23 Fed. Rep. 232; 96 U. S. 341; 47 Ind. 407; 17 Am. Rep. 702; 141 Mass. 496; 10 Cyc. 248, 249; 2 Cook, Corporations (6th ed.), sec. 681; 89 S. C. 185; 172 N. Y. 172; 23 Sup. Ct. 527; 87 S. C. 445; 54 S. C. 582; 60 Am. St. Rep. 172; 19 Sup. Ct. Rep. 300; 11 R. R. A. 845. The plaintiff cannot avoid the exemption clauses in the industrial track agreements by pleading false representations as to their legal effect: 8 A. & E. Enc. of R. (1st ed.) 636; 8 lb. 636; 14 lb. 54; 27 Ann. Cas. 1143; 91 U. S. 23 R. Ed. 205; 35 R. R. A. 605; 37 R. R. A. 503; 1 Cook Corp. (6th ed.), sec. 147; 101 S. C. 235; 9 S. C. 20.</p>

Before Hon. C. M. Eeird, special Judge, Spartanburg, June, 1915. W. S. Glenn was found guilty of contempt of Court, and he appeals. submit: Jurisdiction can be questioned at any time: 25 S. C. 385; 28 S. C. 313; 70'S. C. 288. Contempt proceedings criminal: 1 Bail. 605 ; 49 S. C. 199. Special Judge was given power only to preside in Common Pleas: 28 Stats. 602; Const., art. V, secs. 1, 15, 18; 49 S. C. 204; 2 Bishop Crim. Law (6th ed.) 149; 20 Wall. 392; 9 Cyc. 5.

<p>Before Mauldin, J., Sumter, July, 1915.</p> <p>Action by the Atlantic. Coast Line Railroad Company against Mary A. Dawes. Judgment for defendant, and plaintiff appeals.</p> <p>Messrs. Purdy & Bland cite: Charter: 11 Stats. 388, 389. Presence of track: 67 S. C. 507. Evidence as to plat: 79 S. C. 253. Objection on new trial: 100 S. C. 483.</p> <p>submit: 1. There was evidence of adverse possession; 2. Burden of proving there was no contract was on plaintiff; 3. The existence of a contract was a question for the jury; 4. Plaintiff must show consent before it can invade yard.</p>

<p>1. Railroads — Fires—Actions—Defect of Parties. — A railroad com- - pany fired lands after one of the plaintiffs had entered in contract to purchase the same. Thereafter the property was conveyed with an -assignment of any right to recover damages, and on plaintiff’s conveyance of a portion of the premises he assigned to his grantee the right to recover a portion of the damages. Held, that where plaintiff and his grantee joined in an action for the damages, there was no defect of parties.</p> <p>2. Railroads — Fires—Rights of Action. — As Civ. Code 1912, sec. 3226, declaring that a railroad company shall be responsible to any person whose property may be injured by fire communicated by its locomotive, merely extended the common' law liability of a railroad company, but was not highly penal, the right of action was not necessarily limited to him who was the owner at the time of the fire, so as to preclude assignment.</p> <p>3. Assignments — Actions—Right to Assign. — In view of Civ. Code 1912, sec. 3963, declaring that causes of action for injuries to property shall survive both to and against the representatives of deceased persons, and despite Code Civ. Proc. 1912, sec. 160, declaring that such section shall not be deemed to authorize an assignment of a thing in action not arising out of a contract, a right of action against a railroad company under Code of Laws, sec. 3226, for firing premises may be assigned.</p> <p>4. Railroads — Fike—Actions—Owner.—While, to recover under Civ. Code 1912, sec. 3226, making a railroad company liable for firing property by means of its engine, plaintiff must show his ownership, and a mere oral statement that plaintiff is the owner of the land is insufficient, proof that plaintiff held a binding contract for the purchase of the land is sufficient to establish his ownership, such person being the equitable owner, though not holding the legal title.</p> <p>Footnote. — As to right of vendee in actual possession to maintain an action for injury to real property, see notes in 30 L. R. A. (N. S.) 231, and 26 A. & E. Ann. Cas. 1913a, 1295. As to assignability of cause of action for destruction of property by fire, see notes in 20 A. & E. Ann. Cas. 259, and 29 A. & E. Ann Cas. 1913d, 929.</p>

Before Gary, J., Lexington, June, 1915. Action by Rosanna Hayes, as administratrix of the estate of Boliver Hayes, deceased, against the Seaboard Air Line Railway'and another. Judgment for the plaintiff, ' and defendants appeal. The facts are stated in the opinion.. cite: As to duty owed intestate, and his contributory negligence: 67 S. C. 499; 86 S. C. 106.

<p>Before Bowman, J., Columbia, September, 1915.</p> <p>W. D. Chappell, Jr., was convicted of carrying a concealed weapon, and he appeals.</p> <p>submits: Affidavit insufficient: 85 Ga. 220; Crim. Code, sec. 85. Concealed zveapons: 16 S. C. 187; 76 Ala. 88; 94 Ala. 79; 86 Ala. 66; 38 Tex. 170; 114 Ga. 538.</p>

Before Wilson, J., Gaffney, October, 1915. Action by C. A. Sparks and others against E. R. Cash and others, Board of Trustees of School District No. 10 of Cherokee county, in which R. C. Sarratt and others prayed to be made parties, which was refused. Erom the refusal, petitioners appeal. cite: As to abuse of discretion: 80 S. E. 470; 84 S. E-876. Parties: Code Civ. Proc., secs. 166 and 167; 58 S. E. 931; 1 Bailey 13; 15 Enc. PI. & Pr. 528; 51 S. E. 272; ' Pom. Eq.

<p>Before Smith, J., Gaffney, May, 1915.</p> <p>Action by R. C. Sarratt and others against E. R. Cash and others, as Board of Trustees of School District No. 10 of the county ,of Cherokee. There was judgment for defendants, and plaintiffs appealed. From an order declaring the appeal abandoned and dismissing it, plaintiffs appeal.</p> <p>cites: As to leave to perfect appeal: Code Civ. Proc., secs. 387, 388. Power of Judge at chambers: Civil Code, sec. 3833. Pinal judgment: Code Civ. Proc., sec. 304; lb. 440 ; 34 S. C. 132; 47 S. C. 31; 14 S. C. 517; 52 S.'C. 505.</p> <p>cite: As to orders at chambers: 12 S. C. 122; 14 S. C. 11; 57 S. C. 75; 26 S. C. 99; 55 S. C. 379; 51 S. C. 379; 45 S. C. 413; 80 S. C. 77; 64 S. C. 428; 52 S. C. 305. Failure to perfect appeal: Code Civ. Proc., secs. 384, 378, 387, 388; 49 S. C. 377; 12 S. C. 559; 24 S. C. 138; 14 S. C. 166; 16 S. C. 115; 75 S. C. 546.</p> <p>cite: As to powers at chambers: 55 S. C. 381; 64 S. C. 543; 47 S. C. 31; 54 S. C. 400; 75 S. C. 545. When leave to perfect appeal will be granted: 39 S. C. 550; 91 S. C. 343; 75 S. C. 545.</p>

<p>Before SeasE, J., Gaffney, January, 1915.</p> <p>Action by R. C. Sarratt and others against E. R. Cash and others, Board of Trustees of School District No. 10 of Cherokee county. Erom a judgment for defendants, plaintiffs appeal.</p> <p>submit: Referees should have passed upon question of location: 38 S. C. 158.</p> <p>cite: As to findings of referees: 12 S. C. 158; 20 S. C. 282;- 57 S. C. 530. Official discretion: Civil Code, sec. 1761; 1 Ene. E. 993; 23 lb. 365; 1 Cyc. 974, 975; 209 Mass. 259; 95 N. E. 504; 23 Anno. Cas. 495; 29 Cyc. 901; 31 lb. 1425. As to findings of fact by referees: 20 S. C. 282; 12 S. C. 154; 57 S. C. 530.</p>

<p>Before Bowman, J., Manning, February, 1915.</p> <p>Action by W. D. Cannon against the Clarendon Hardware Company. Judgment, for plaintiff, and defendant appeals.</p> <p>cites : As to plaintiff’s failure to testify: 2 Evans, Poth. Obi. 149; 22 Fed. Cas. 1285-6; 106 Ra. 586; 31 A. & E. Ann. Cas. 1914a, 919. Burden of proof and question for jury: 29 E. R. A. 638; 145 Iowa 185; 44 Am. Dec. 693; 83 Am. St. Rep. 150; 42 R. R. A. 326; 31 Am. Rep. 273; 57 Am. Dec. 120; 10 E. R. A. 676; 3 R. C. R. 1041, 1071, 1075. Question as to ownership: 22 A. & E. Anno. Cas. 1912a, 186; 81 S. C. 24.</p> <p>cites: 86 S. E. 3; 84 S. C. 1005; 98 S. C. 220; 91' S. C. 455; 97 S. C. 52; 85 S. E. 406.</p>