Volume 104 — South Carolina Reports

Before Moore, J., Greenwood, April, 1915. Action by Mrs. Annie B. Walker against George H. Taylor and others. Judgment for plaintiff, and defendants appeal. The decree of the trial Court is as follows : The facts upon which this action is brought are clearly established by the testimony to be as follows: The plaintiff is a daughter of Joseph Benson, who died many years ago and left as his heirs at law and distributees his widow, Mrs. Harriet Benson, and the plaintiff.

Before Rice, J., Sumter, November, 1914. Action by Ella Dutton, as administratrix of the estate of Lee Dutton, deceased, against the Atlantic Coast Line Railroad Company and others. The following are the exceptions referred to in the opinion: 1.

Before Wieson, J., Pickens, April, 1914. Action by T. D. Plarris against J. F. Plarris and others. From a judgment for defendants, plaintiff appeals. The exceptions are as follows: The plaintiff appeals to the Supreme Court from the judgment entered upon the verdict in this case upon the following grounds : 1.

<p>1. Bills and Notes — Promissory Notes- — -Makers.—Where defendant signed her name on the back of a piece of paper containing a crop mortgage and note executed by her tenant, and she contended that she did not intend to waive her lien on the crops, she is liable as a maker of the note, for one who writes his name on the back of a promissory note before delivery is a maker.</p> <p>2. Pleading — Complaint—Election.—-In such case, where the complaint, which was in two counts, alleged defendant’s inscribing her name on the back of the paper and her liability as maker of the note or instrument for the payment of money, only one cause of action was stated and -one remedy sought, so motion to elect cannot be required.</p> <p>3. Estoppel — Claim in Action. — In such case, defendant having contended that her signature was not a waiver of her landlord’s lien, she cannot defeat an action on the note because the chattel mortgage is on the same document.</p>

Before Wirson, J., Columbia, April, 1915. Action by Alice S. Beard against the North State Life Insurance Company. From a judgment for plaintiff, defendant appeals. cite: As to ■testimony disputing statements in application: Civil Code, sec. 2722; 115 Term. 471; 112 Am. St. Rep. 862; 97 S. C. 418. Waiver of statute: 2 Bailey, 425;. 1 McM. 297; 21 S. C. 356; 1 Jones Mtges. 752.

Before Shipp, J., Kingstree, October, 1915. Action by the Conestee Chemical Company against B. Wallace Jones and others. From a judgment for plaintiff, defendant named appeals. The appellant thus states his case: “This action was for the collection of three promissory notes and for the foreclosure of a mortgage of real estate situated in Williamsburg county.

Before Mauudin, J., Barnwell, March, 1915. . Action by Lavinia Williams against J. R. Harden. Judgment for the plaintiff in the Circuit Court on appeal from a magistrate’s Court, and defendant appeals.

Original application by the Regents of the State Hospital for the Insane of South Carolina, for writ of mandamus against Carlton W. Sawyer, Comptroller General. cites: Const., art. IV, sec. 23; 61 Am. St. Rep. 549; 22 lb. 638; 13 S. C. 46; 101 S. C. 48; 68 S. C. 411; 39 S. C. 307; distinguishes‘99 S. C. 218 and 89.

Before Prince, J., Marion, April, 1915. Action by M. W. Davis against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. The exceptions were as follows: 1.. Because his Honor, the presiding Judge, erred, it is respectfully submitted, in refusing to direct a verdict for the defendant on the cause of action based upon, wilfulness ana in refusing to grant a new trial, on the following grounds: First.

Before Shipp, J., Florence, May, 1915. Action by Mrs. Beulah White Ilderton against Dr. Wm. Ilderton. From an order directing the payment of temporary alimony, defendant appeals. cite: As to grounds for allowance of temporary alimony: 91 S. C. 246; 10 Rich. Eq. 163-173; 60 S. C. 447; 24 S. C. 377; 1 McC. Ch. 197; 16 Am. Dec. 597; 68 S. C. 128. Nonsupport: 14 Cyc. 614, 624; 22 N. J. Eq. 88; Dong, Domestic Relations 240; Crim. Code. 697.

Before Prince, J., Greenville, June, 1915. Action by Mary Simpson against the Mills Manufacturing Company. Judgment for plaintiff, and defendant appeals. Exceptions 3, 4 and 5 were as follows : 3. In charging the jury that the defendant was liable for punitive damages if it had consciously retained the minor in its service with the knowledge that plaintiff objected to it. (1) Punitive damages could not be recovered, but only actual damages.

<p>1. Appeal and Eeeoe — Special Findings — -Submission.—In an action for damages for causing plaintiff’s discharge by sending to his employer an assignment of his wages, defendant cannot complain, not having requested it, that the Court failed to submit to the jury the question whether there was fraud, for under Code Civil Procedure 1912, sec. 321, declaring that the Court may direct the jury to find a special verdict, a request is necessary to put the Court in error for failure to do so.</p> <p>2. Execution — Against the Person. — Code Civ. Proc. 1912, sec. 230, . declares that in an action for recovery of damages not arising out of the contract when defendant is about to remove from the State or when the action is for an injury to person or character, the defendant may be arrested, while section 346 declares that if the action is one in which defendant might have been arrested, execution against the person of defendant may be issued on return of an execution against his property unsatisfied in whole or in part. In an action for damages for wrongfully causing plaintiff’s discharge from his employment, the Court issued an order providing that execution should issue against defendant’s person if execution against his property was returned unsatisfied. Held, that the order was justified.</p>

Before Mauldin, J., Barnwell, March, 1915. Action by A. H. Meyer and others, copartners, doing .business under the firm name of R. Jonas & Co., against J. O. Brunson and others, doing business under the firm name of the Women’s Wear Shop. Judgment of nonsuit, and plaintiffs appeal. cites: 2 Rich. Eq. 395; 7 R. C. R. Corporations, secs: 42, 44, and 332; 17 A. & E. Enc. of R. (1st ed.) 866; 12 R. R. A. 351; 46 S. C. 372, 292; 41 Am.

Before Hon. M. F. Ansel, special Judge, Greenville, • June, 1915. Action by Ella Webb against the Southern Railway Company.

Before SeasB J., Charleston, June, 1915. Action by Henry Buist, as substituted trustee under the will of Caroline A. Sifly, for a construction of the will, against Cornelia S. Walton, Walter G. Knight, as executor of Caroline E. A. Norris, deceased, and others. Report of the master construing the will confirmed, and defendant, Knight, executor, etc., appeals. cites: As to definition of “issue” and “share:” Civil Code, sec. 3574; 2 Bailey 442; 6 Rich. Eq. 26; 2 McC.

Before Memminger, J., Pickens, October, 1915. Action for partition by S. A. Major and W. A. G. McWhorter against J. W. Major and others, in which, after the death of plaintiff, Major, his executrix and executor were substituted as parties plaintiff. Decree for the substituted representatives of the plaintiff, Major, and defendant, J. W. Major, and plaintiff, W. A. G. McWhorter, appeal. cite: As to reconversion: 90 S. C. 146; 99 S. C. 151; 101 Am.

<p>Before Prince, J., Marion, Spring term, 1915.</p> <p>Action by Pearly Tyler, as administrator of the estate of Marsden Tyler, deceased, against the Atlantic Coast Line Railroad Company and another. Judgment for the defendants, and plaintiff appeals.</p> <p>cite: As to licensees: 61 S. C. 556; 90 S. C. 335. Testimony presented issue for jury: 68'S. C. 483; 61 S. C. 556; 90 S. C. 263; 90 S. C. 331; 91 S. C. 548; 92 S. C. 171; 93 S. C. 339; 93 S. C. 551; 97 S. C. 66; 101 S. C. 8. Evidence of recklessness: 93 S. C. 342 and 551; 101 S. C. 8. Punitive damages: 75- S. C. 290; 93 S. C. 342. Construction of charge: 70 S. C. 79; 87 S. C. 193; 93 S. C. 57; 75 S. C. 309. Duty of defendant: 61 S. C. 556; 33 Cyc. 836; Ann.- Cas. 1912c, 310; 57 S. C. 208, 209; 64 S. C. 117. Crossing signals: 52 S. C. 323; 58 S. C. 70; 76 S. C. 368; 90 S. C. 263; 91 S. C. 548; 95 S. C. 206; 99 S. C. 290. Contributory negligence: 94 S. C. 257. Trespasser on track: 61 S. C. 559. Issue for jury: 76 S. C. 63; 71 S. C. 156. Charge on facts: 63 S. C. 507; 83 S. C. 328; 84 S. C. 568; 91 S. C. 216; 30 S. C. 218; 86 S. C. 379; 91 S. C. 541; 72 S. C. 392, 393. Trespassers: 90 S. C. 262; 70- S. C. 183. Remarks granting nonsuit: 95 S. C. 206; 80 S. C. 383; 10 S. C. 360; 73 S. C. 383; 81 S. C. 374. Contributory negligence an affirmative defense: 72 S. C. 392; 101 S. C. 398.</p> <p>cite: As to proximate cause: 58 S. C. 222; 81 S. C. 112; 94 S. C. 145; 78 S. C. 80; 34 S. C. 451; 86 S. C. 106; 97 S. C. 428. Trespassers on track: 57 S. C. 243 ; 63 S. E. 46. Remarks on motion for nonsuit: 74 S. E. 363.</p>

Before Hon. C. M. Eeird, special Judge, York, Eall term, 1914. . Action by Julian E. Strait against the City of Rock Hill. From a judgment for plaintiff, defendant appeals. cites: Civil Code, secs. 2951, 3053; 58 S. C. 413; 43 S. C. 402; 89 S. C. 506; 101 S. C. 493 and 521; 49 N. E. 633; 153 Mass. 260; 26 N. E. 999; 31 E. R. A. 174; 44 N. E- 399; 57 R. R. A. 218; Ann.

<p>Execution. Discharge of Insolvent Debtor. Statutory Provisions. Mistake. Construction.</p> <p>1. Execution — Discharge of Poor Debtors — Statutory Provisions — Mistake — Construction.—Under Code Civ. Proc. 1912, sec. 237, providing for the discharge of a defendant arrested on civil process upon giving bail or depositing the amount mentioned in the order of arrest, or ‘‘under the provisions of sections 2702-2718 * * * of the Code of 1912,” as previous editions of the Code of Procedure indicate that “sections 2702-2718” was inserted by mistake, and that Civ. Code 1912, secs. 4176-4194, relating to the discharge of prisoners as insolvent debtors, were intended, the provisions in the Code of Procedure and in the Code of Laws are to be construed together to allow a defendant arrested under the Code of Civil Procedure to take advantage of the Insolvent Debtors’ Act.</p> <p>2. Execution — Discharge of Poor Debtors — Statute.—Defendant was arrested under Code Civ. Proc., sec. 230, in a civil action, and sought to be discharged under the provisions of the Insolvent Debtors’ Act (Civ. Code 1912, secs. 4176,4177, 4180, and 4182). Plaintiff demanded a trial by jury under section 4183, which provides that, when a plaintiff accuses the defendant of fraud of having given an undue preference, or of having made a false schedule, the clerk shall call a jury who shall try these issues, which was accordingly ordered by the clerk. The defendant appealed from this order, and the Court limited the issues to be presented to the jury to one question, whether a raise schedule had been filed. Held,, that all the issues raised by the plaintiff should have been submitted to the jury, and that the Court’s action in limiting the issues to the sole question whether a false schedule had been filed was error.</p>

<p>Before Hon. J. B. Park, special Judge, Winnsboro, February, 1915.</p> <p>Action by the Germofert Manufacturing Company against A. B. Cathcart. Judgment for the defendant, and plaintiff appeals.</p> <p>cite: 74 S. C. 576; 97 S. C. 359; 77 S. C. 496; 10 111. 113; 37 S. C. 17; 27 S. C. 380; Cyc. Contracts 457.</p> <p>The former cites: As to admissibility of testimony: 97 S. C. 358 and 389; 77 S. C. 493.</p>

<p>1. Evidence — Value—Other Land. — In an action for damages to plaintiff’s land from backwater caused by damming of a river, where plaintiff claimed that the land was worth $100 an acre, testimony of the plaintiff, on cross-examination, that his father had previously sold adjoining land for $20 an acre, was admissible as tending to show market value.</p> <p>2. Appeal and Error — Reversal eor Harmless Error. — The error of the Court in refusing to admit testimony will not work a reversal of judgment unless the error is prejudicial.</p> <p>3. Appeal • and Error — Review—Harmless Error. — In an action for damages to plaintiff’s land from backwater caused by damming of a river, where other witnesses testified to the value of land in the general locality, the improper exclusion of plaintiff’s testimony, on cross-examination, as to the price received by his father for adjoining land, was harmless.</p>

<p>Before Gary, J., Edgefield, August, 1915.</p> <p>Action by J. M. Turner against W. R. Harris. From an order of the Circuit Court remanding the case to the magistrate, the defendant appeals.</p> <p>cites: As to jurisdiction of magistrate: 68 S. C. 368; 62 S. C. 533; 97 S. C. 57; 56 S. C. 425; Code Civ. Proc., sec. 97, subd. ,19.</p> <p>cites: Code Civ. Proc.. sec. 176; 22 S. C. 276; 26 S. C. 70; 86 S. C. 329; 84 S. C. 343; 87 S. C. 56.</p>

Before Gary, J., Charleston, November, 1914. Action by W. F. Gaines against the Charleston Light and Water Company.

Before Rice, J., Columbia, June, 1915. Jerry E. Jones was convicted of manslaughter, and he appeals. submits: Charge deprived defendant of his right to protect his dwelling and person, and the Court erred in refusing request to charge.

Before Hon. Chas. Carroll Simms, special Judge, July, 1915. Audie Beam was acquitted of the charge of'transporting alcoholic liquors, and the Town of Blacksburg appeals. The latter cite: As to merits: 100 S. C. 91; Const., art. I, secs. 13 and 16; Crim. Code, sec. 4; 72 S. C. 104, 109 and 110. As to right of town to appeal: 30 S. C. 399; 76 S. C. 39; 66 S. C. 398; 101 S. C. 267.

Before Sease, J., Walhalla, July, 1915. Action by Henry Smith against W. F. Hughes. From a judgment for defendant, plaintiff appeals. cites: As to refusal of nonsuit: 31 S. C. 343; 22 S. C. 4; 16 S. C. 397; 2 Hill L. 499; 57 S. C. 227; 26 Cyc. 24; 44 S. C. 165. cite: As to probable cause: 3 Strob. L. 307; 81 Kan. 360; 56 L. R. A. (N. S.) 2; 38 Am. Dec. 231; 3 Rob. (La.) 17; 2 Stark on Ev. 916; 96 Tex. 255; 64 L. R. A. 474 ; 3 Strob. L. 576. As to nonsuit: 1 McM.

<p>Before Mauldin, J., Bamberg, March, 1915.</p> <p>Action by Reda K. Mayfield against the British and American Mortgage Company, Limited. From a judgment for plaintiff, defendant appeals.</p> <p>cite: As to when ruling on motion for new trial will be reviewed: 100 S. C. 284; 92 S. C. 425; 72 S. C. 430, 433; 54 S'. C. 141; 71 S. C. 154; 99 S. C. 421; 2 Bail. 35; Bay 272; 3 Strob. 361 and 566. Usury: 8 S. C. Fq. (Bail.) 498, 507; 116 U. S. 98; 9 Pet. 397; 21 N. Y. 219; 25 Iowa 289; 46 Am. St. Rep. 179; 38 S. C. 184; 44 S. C. 94; 49 S. C. 356; 88 S. C. 528. Court will itself determine what is a reasonable attorney’s fee: 94 S. C. 386, 387; 97 S. C. 480; 84 S. C. 462; 71 S. C. 258; 62 S. C. 186; 38 S. C. 183; 49 S. C. 350, 352. Written contract for 8%: 77 S. C. 146; 100 S. C. 85; 31 S. C. 288. Not usurious to collect interest in advance: 77 S. C. 146; 55 S. C. 104; 46 Am. St. Rep. 171, 189; 6 R. R. A. (N. S.) 612, 613. Charges added to interest do not exceed highest rate: 83 S. C. 528; 29 A. & E. Enc. of R. (2d ed.) 494; Webb, Usury, sec. 100, p. 112; 62 S. C. 174. Agency: 91 S. C. 491; 83 S. C. 526; 19 R. R. A. (N. S.) 391. Borrower’s contract with his own agent: 71 S. C. 258; 84 S. C. 462 ; 46 Am. -St. Rep. 196, 197; 46 R. R. A. (N. S.) 1161; 116 U. S. 98; 91 S. C. 321. Charge as to agency: 81 S. C. 333; 96 S. C. 78, 79. Estoppel: 33 S. C. 209; 95 S..C. 333, 338, 339; 13 S. C. 370; Bigelow, Estoppel (4th ed.) 543, 612, 613; 81 S. C. 332; 93 S. C. 193; 27 S. C. 235; 122 U. S. 241. Agreement as to attorney’s fees operated to estop borrower: 92 S. C. 336; 120 C. C. A. 365; 202 Fed. 90; 89 S. C. 418; 71 S. C. 155; 85 S. C. 540; 36 S. C. 478; 18 S. C. R. 59; 2 Bay 23; 31 S. C. 442; 34 S. C. 186, 187; 45 S. C. 653, 654. Lender innocent: 120 C. C. A. 368; 92 S. C. 336. Renewal agreement: 18 S. C. R. (2 Bail.) 54; 36 S. C. 468; 37 S. C. 590. 591, 593. Usury not to be imputed to an executed transaction: 67 S. C. 568, 569, 570; 62 S. C. 174 and 192. Voluntary payment: 100 S. C. 86;. 90 S. C. 488, 489; 30 Cyc. 1298. Law practical: 55 S. C. 143; 6 Rich. Eq. 334.</p> <p>cite: As to agency: 65 S. C. 116, 120; 49 S. C. 345, 355; 83 S. C. 521, 525, 528; 65 S. C. 118, 119. Notice to lender: 98 S. C. 344; 49 S. C. 352. Estoppel: 44 S. C. 538; 98 S. C. 279; 2 Elliott, Contracts, sec. 967. Method of calculating interest: 55 Minn. 520. 526; 57 N. W. 311; 62 S. C. 174. Renewal agreement: 6 S. C. R. (1 Treadw.) 144; 2 Speers 85; 77 S. C. 144, 147; 13 S. C. R. (2 McC.) 173; 13 Am. Dec. 707; 2 Elliott, Contracts, sec. 980; 116 U. S. 98.</p>

<p>Before Mauldin, J., Barnwell, May, 1915.</p> <p>Action by John C. Fowke and others against Mrs. Sinea De Witt and others. From a judgment for plaintiffs, defendants appeal.</p> <p>The appellants thus state their case:</p> <p>“This action was commenced for the purpose of reviving a certain judgment rendered in the Court of equity on the 6th day of November, 1869, in a .cause entitled Johnson Hagood, Commissioner in Equity, v. William H. Hagood, John J. Cater, and Charles M. De Witt.</p> <p>“Since the rendition of said judgment John J. Cater died testate November 9, 1872, Charles M. De Witt and William H. Hagood, codefendants, died intestate prior to the,year 1881, as is admitted in the seventh paragraph of the complaint.at folio 18 of brief, and the plaintiffs, who are the alleged executors of J. J. Cater, deceased, now seek judgment against the heirs and distributees at law of Charles M. De Witt, deceased, as principal and codefendant of said J. J. Cater for the deficiency upon the original judgment.</p> <p>“The defendants, answering the complaint, first set up a general denial, and, second, the statute of limitations.</p> <p>“The cause was heard before Hon. T. J. Mauldin, and, after argument submitted, rendered his decree, granting the plaintiffs the relief prayed for in the complaint, to which the defendants now except.</p> <p>“The plaintiff’s contention is that in 1859 C. M. De Witt, John J. Cater, and William H. Hagood executed and delivered their bond to Johnson Hagood, commissioner in equity for the district of Barnwell, in the penal suit of $1,406.28, conditioned for the payment of the full and just sum of $713.14, to be paid on the 16th day of June, 1859, with interest, and in order to secure the said bond C. M. De Witt' executed to said commissioner his mortgage deed, covering certain lands as security to the bond, and that thereafter, on the first day of April, 1859, C. M. De Witt, John J. Cater, and William H. Hagood executed and delivered their certain other bond in the penal sum of $1,293.85 to Johnson Hagood, commissioner in equity, conditioned for the payment of the full and just sum of $646.69 one year from date, with interest, and in order to secure the said bond C. M. De Witt executed and delivered to said commissioner in equity his certain other mortgage deed covering lands in the said district; that said bonds and mortgages were given to the commissioner in equity for money loaned by the said commissioner to C. M. De Witt; that said bonds were not paid at their maturity, and suit was instituted by the commissioner on the behalf of W. A. Nerland, clerk of the Court, to recover the amount and foreclose the nomtgages, to sell the premises, and apply the proceeds of said sale to the indebtedness of said bonds, which resulted in judgment on the 6th day of November, A. D. 1869, against C. M. De Witt, J. J. Cater, and William H. Hagood, and that the parties to the original action, by consent under order of the Court, postponed the sale of the mortgage premises until September, 1879, when an order was passed fixing the date of sale on sales day in November, 1879, or some subsequent convenient sales day thereafter, and that the sale occurred on sales day in . December, 1879, and that the amount realized from said sale was not sufficient to pay the said judgment, and a large sum therefore remained unpaid, and that Judge McKay, on June 11, 1881, upon motion of complainants’ counsel, ordered the clerk to issue execution against C. M. De Witt and his sureties, if said balance was not paid by November 1, 1881. In the meantime C. M. De Witt and his said sureties had departed this life, and thereafter, in pursuance to said order the lands of J. J. Cater and William H. Hagood, sureties of said C. M. De Witt, were sold by the sheriff and applied to the extinguishment of the deficiency upon the said judgment debt.</p> <p>“The appellant takes the position by exceptions 1, 3, 5, and 8 that the credits entered upon the said judgment derived from the sale of the land of the codefendants of Charles M. De Witt were not binding upon the heirs and distributees at law of Charles M. De Witt, deceased, and that said alleged credit was involuntary, or an enforced payment, and that such credit derived from the sale of the lands of the codefendants of said Charles M. De Witt, deceased, did not operate as a new starting point from which said judgment would commence to run, for the reason that section 3535 of the Code of 1912, vol. I, requires: ‘That if the holder of such lien or liens * * * shall, at any time during the continuance of such lien, cause to be recorded upon the record of such mortgage, or deed, having the effect of a mortgage, or shall file with the record of such judgment, decree or other lien a note of some payment on account or some written acknowledgment of the debt secured thereby, with the date of such payment or acknowledgment, such mortgage deed having the effect of a mortgage, judgment, decree or other lien, shall be, and continue to be, a lien for twenty years from the date of record of any such payment on account or acknowledgment.’ ”</p> <p>cite: Civil Code as existence of claim: Sec. 3535; 31 S. C. 11; 32 S. C. 378; 72 S. C. 179; 28 S. C. 302; 16 S. C. 198; 14 S. C. D. (3 McC.) 240; 33 S. C. D. (2 Strobh.) 353; 70 S. C. 228; 46 S. C. 11; 198 S. C. 489; 81 S. C. 82. As to liability of heirs: 28 S. C. 285; Angel Lim. 263; 6 Johns. Ch. 373; 24 S. C.' 99; 33 S. C. 354. Receipt: 28 S. C. 285; 16 S. C. 198. Evidence: Code Civ. Proc., sec. 438.</p> <p>cite: 33 S. C. 354; Code Civ. Proc., sec. 348.</p>

<p>Before Mauldin, J., Aiken, April, 1915.</p> <p>Action by Arnold Rish against Harmie Jackson. Judgment for defendant, and plaintiff appeals.</p> <p>cites: As to estoppel: 96 S. C. 121, 138; 100 S. C. 371; 91 S. C. 122; 45 S: C. 518. Rights of mortgagee: Civ. Code, sec. 4108; 44 S. C. 317. Claim and delivery: 94 S. C. 345. Issues: 76 S. C. 481 and 316; 52 S. C. 236; 21 S. C. 321; Ann. Cas. 1913d, 168; 85 S. C. 112. Charge on facts: 56 S. C. 524; 47 S. C. 489.</p> <p>cites: As to estoppel: 52 S. C. 396; 77 S. C. 425; 67 S. C. 432; 80 S. C. 557. Issues: 17 S. C. 34; 69 S. C. 196; 85 S. C. 1; 86 S. C. 544; Code Civ. Proc., secs. 312, 326; 17 S. C. 426; 5 S. C. 412. Bstoppel in pais: 89 S. C. 391; 122 U. S. 241. Issues, order of trial: 48 S. C. 433; 94 S. C. 408; 18 S. C. 232.</p>

<p>1. PRINCIPAL AND SURETY — COMMERCIAL SURETIES— CONSTRUCTION OP Obligation. — A commercial surety is not entitled to have its obligation construed with the strictness of a private surety, and its bond should be treated as that of an insurer of performance by the principal.</p> <p>2. Principal and Surety — Bonds—Validity.—Where the contract for performance of which a bond was given was changed before the bond was actually signed, and the surety received the premium after its principal’s default, though it had. notice of that fact, it could not defeat recovery on the bond on the ground that the contract had been varied.</p> <p>3. Evidence — Parol Evidence Rule — Identification op Check.— Where evidence merely went to the identification of a check, it is not inadmissible on the ground that it was to vary the writing.</p> <p>4. Principal and Surety — Discharge op Surety — Extension op Time. —Where a commercial surety received payment of the premium after its principal had defaulted, though it had knowledge of that fact, a mere extension of time to the principal will not release the surety.</p> <p>5. Limitation of Action — Running op Statute — Agreements Restricting Time por Suit.. — Under Code Civ. Proc. 1912, secs. 137, 144, respectively providing that an action on a contract may be brought within six years, and that no provision in any contract whereby it is agreed that either party shall be barred from bringing suit if not brought within a period less than the time prescribed by the statute of limitations shall be valid, suit may be brought against a surety after the expiration of the six months’ period within which the bond required it should be brought; the action falling within the six-year statute.</p> <p>6. Principal and Surety — Contracts—What 'Law Governs. — Though the surety was a nonresident, the leso fori governs a surety bond for - the performance of a contract within the State.</p>

<p>1. Negligestce — Evidence—Bnrden of Piioof.- — In an action for injuries the plaintiff assumes the burden of furnishing evidence of negligence.</p> <p>2. Negligence — Evidence—Direct or Circumstantial. — In an action for injuries the negligence of defendant may be proved by either direct or circumstantial evidence.</p> <p>3. Master and Servant. — Rules of Evidence ■ — ■ Under Federal Employers’ Liability Act. — The State rules as to sufficiency of evidence to prove negligence apply in actions under the Federal Employers’ Liability Act, April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, secs. 8657-8665); as that act contains no specific provision as to quantity or method of proof of negligence.</p> <p>4. Trial — -Reception of Evidence — Res Gestae. — The trial Court has considerable discretion in determining what is res gestae.</p> <p>6. Appeal and Error — Exclusion of Evidence — -Harmless Error. — No error can be predicated on the exclusion of evidence which is after-wards given by other witnesses.</p>

<p>1. Wills — “Heirs oe the Body.” — The words “heirs of the body” mean all lineal descendants to the remotest posterity, unless the instrument shows they were used in a restricted sense, as to indicate “children.”</p> <p>2. Wills — Rule in Shelley's Case — Words of Distribution. — The words “to each an equal share,” standing alone, are not sufficient to show an intention on the part of the testator to use the words “heirs of the body” in the sense of “children.”</p> <p>B. Wills — Construction—Giving Effect to All Parts. — An interpretation which will give force and effect to all the provisions of an instrument is preferable to one which will destroy one or more of its provisions.</p> <p>4. Wills — Words of Purchase or Limitation — “Heirs of the Body.” —In the devise of one “during the term of her natural life and at her death to the heirs of her body, to each an equal share, the children of any deceased child representing the parent,” the words “heirs of her body” are to be construed to mean “children,” and regarded as words of purchase.</p> <p>5. Wills — Limitation Over — Issue of Persons Deceased. — Where lands are devised to one “during the term of her natural life and at her death to the heirs of her body, to each an equal share, the children of any deceased child representing the parent,” and the devisee of the life estate dies leaving several children, 'and also a grandchild, who is the son of her daughter, who was living at testator’s death, but who dies before devisee, the grandchild takes as executory devisee an interest in the lands and a share of the rents and profits.</p> <p>6. Remainders — Executory Devisee — Barring.—An executory devisee derives his rights directly from the testator, and no party holding under the will can destroy his rights by merger or otherwise.</p>

Before Shipp, J, Union, September, 1914. Action by John W. Sartor for himself, and as administrator of John Sartor, and as trustee of the estate of'John Sartor, against the Newberry Rand and Security Company and others. From the judgment rendered, 'the plaintiff and the defendants, the Glenn Rowry Manufacturing Company, the William Coleman Company, the C. H. Cooper Company, and the Summer Bros. Company, appeal. cite: As to parties represented by administrator: 15 Enc.

Before Wilson, J., Columbia, February, 1915. Suit by the Thomas Drug Store against the National Surety Company. From a judgment for plaintiff, defendant appeals. The facts are stated in the opinion. cite: As to performance of contract: 69 S. C. 303; Code Civ. Proc., sec. 212; 9 Cyc. 719.

Before Sease, J., Abbeville, October, 1914. Action by J. W. Vermillion, administrator, against the Woman’s College of Due West. Judgment of nonsuit, and plaintiff appeals. distinguish this case from 98 S. C. 5, and cite: 109 Fed. 294; 65 h. R. A. 372; 31 D. R. A. 224; 7 L. R. A. (N. S.) 496; 22 R. R. A. (N. S.) 486; 31 R. R. A. 224; 179 U. S. 136; 120 Fed. 392; 31 R. R. A. 224; 23 R. R. A. 581; 2 R. R. A. (N. S.) 556.

<p>Damages — Breach oj? Contract — Amount Not Shown. — Where a railroad company, which licensed plaintiff to build a station on its right of way at his own expense and act as its agent, reserved the right to revoke the license and terminate the agency at any time, which it did, its only failure to perform the contract according to terms being failure to give plaintiff written notice of the revocation of the license and to allow him 60 days thereafter to remove the building, in the absence of a showing of damage to plaintiff by such failure, he had no cause of action for breach of contract.</p>

<p>INTOXICATING LiatTOES — OFFENSES—LiaUORS PROHIBITED — -“INTOXICATING Liquor.” — -Liquor which will not intoxicate by immoderate use because one using it “would become sick long before he becomes intoxicated” is not “intoxicating liquor” forbidden to be delivered within the State by act Peb. 20, 1915 (29 St. at Large, p. 140).</p>

Before Bowman, J., Kingstree, April, 1915. Action by E. M. Britton and others against J. E. Hemingway and others. Erom a judgment for defendants, plaintiffs appeal. cite: As to estoppel: McM. Eq. 193; 66 S. C. 362; 25 S. C. 460; 7 Rich. 354. Deed created life estate in P. M. and A. B. Britton: 1 DeS. Eq. 157; 1 Washb. R. P. 116; 35 S. C. 338; 71 S. C. 270; 52 S. C. 110; 67 S. C. 7; 1 Rich. 170; 81 S. C. 343; 83 S. C. 329.

Before Hon. C. M. Euird, special Judge, January, 1915. Action by the Chero-Cola Bottling Company against the South Carolina Light, Power and Railways Company. Judgment for plaintiff, and defendant appeals.

Before Rice, J., Dillon, March, 1915. Action by J. C. Davis, Probate Judge for Dillon county, against I. Blum, originally brought in magistrate’s Court. The testimony of plaintiff, Judge of Probate, was that the defendant told him that he would pay the costs in a certain will case should it go against his wife, who was contesting the probate; that on the strength of such promise, he proceeded with the case and looked to the defendant for payment when it was concluded.

Before Moore, J., Columbia, May, 1915. Action by Parham-Thomas-McSwain, Incorporated, against the Atlantic Life Insurance Company.

Before Wilson, J., Columbia, February, 1915. Action by E. M. Lancaster and another against the City of Columbia. From a judgment for plaintiffs, defendant appeals. cites: As to variance between allegations and proof: 72 S. C. 557; 82 S. C. 345. Defects in sidewalk: 84 S. C. 122; 89 S. C. 511; 88 S. C. 553; 6 McQuillan, Munc. Corp., sec. 2785; 129 N. Y. Supp. 1028; Elliott, Roads and Streets, sec. 791; 110 Wis. 478; 88 S. C. 533.

Before Hon. M. F. Ansel, special Judge, Columbia, May, 1915. Action by George A. Lea, Jr., against the South Atlantic Pecan Company. From a judgment for plaintiff, defendant appeals.

<p>Before Hon. FI. P. Green, special Judge, York, 1915.</p> <p>Action by Ella R. Saye and another against W. E. Hill. Judgment for the plaintiffs, 'and defendant appeals.</p>

Before Maurdin, J., Bamberg, March, 1915. Action by T. Gertrude All and her husband against the British and American Mortgage Company, Limited. Defendant moved for a change of venue, and from an order denying its motion, it appealed. cite: As to nature of action: 62 S. C. 176; 72 S. C. 364. Venue: Code Civil Proc., secs. 173, 461. Cause of action: 5 A. &. E. Enc. of Law (2d ed.) 773; Pom.

Before Bowman, J., Sumter, February, 1915. Action for injunction by E. D. Jennings against F. O. Jennings and another. From a judgment holding defendants in contempt for a violation of the injunction granted, they appeal. cites : As to jurisdiction: 49 S. C. 199; 91 S. C. 412. As to pendency of appeal: 30 S. E. 593; 59 S. C. 56; Code Civ. Proc., sec. 395; Civil Code, sec. 1967. cites: As to jurisdiction: 49 S. C. 199; 7 A. & E. Enc. of E. 55.

Before Bowman, J., Bennettsville, August, , 1915. Action by P. A. McKellar, as trustee, against J. A. Stanton., Jr., and others, in their own right and as executors. From an order denying jury trial, defendants appeal. cite: 72 S. C. 463; 5 R. C. E., p. 1091, sec. 41; 44 S. C. 63. cites: As to fiduciary relationship: 94 S. C. 312; 100 S. C. 51; 75 S. C. 112; 46 S. C. 146; IS S. C. Eq. (Chev.) 189; 1 Corpus Juris. 621, sec. 68; 1 R. C. L. 224, sec. 26; 35 Am.

<p>Before Sease, J., Lexington, September, 1915.</p> <p>George W. Rish was convicted of murder and sentenced to life imprisonment, and he appeals.</p> <p>The charge was as follows:</p> <p>Mr. Foreman and Gentlemen of the Jury: You are to be congratulated on the fact that you have at last reached the last stage of this trial. You have given close attention to the testimony and to the arguments of counsel, and I now ask you to pay attention to the brief charge on the law as the Court shall give it to you.</p> <p>The charge against this defendant as set out in the indictment is murder, and that also includes the charge of manslaughter. Murder is the taking of human life with malice aforethought, either expressed or implied. Manslaughter is the killing of a person in sudden heat and passion upon a sufficient legal provocation. In murder there is malice; there can be no murder without malice and malice is the intentional doing of a wrongful act without just cause or excuse. That is the broad definition of malice. It means, in matters of homicide, ill will, old 'grudges,- as are sometimes evidenced by ill will, hatred, and determination, and intentionally doing a wrongful act; it may*be proven by anything from which a jury could draw the inference that the man did the act wilfully and intentionally without just' cause or excuse.</p> <p>I charge you that you must give the defendant the benefit of any reasonable doubt that may arise in the consideration of the case. You are not to give him the benefit of every doubt. • You will note that I instructed you that you must give him the benefit of every reasonable doubt.</p> <p>You are to give him the benefit of every reasonable doubt that may arise on the whole case, for instance, if you have a reasonable doubt as to whether his plea of self-defense has been made out by the preponderance of the evidence, you would give him the benefit of that reasonable doubt and come to the conclusion that he had made out his plea of self-defense and write a verdict of not guilty. If you have a reasonable doubt as to whether it is murder or manslaughter — or murder, or murder with recommendation to mercy, you would give him the benefit of that reasonable doubt and find him guilty of the lesser offense, carrying with it a lesser punishment.</p> <p>The presumption is that the defendant is innocent, and that presumption stays with him throughout the entire case, until the State has satisfied you beyond a reasonable doubt of his guilt. A reasonable doubt means that the words imply a doubt for which you can give a reason. It is not a •fanciful doubt, but a reasonable doubt arising out of the testimony. I should instruct you that you are the sole judges of the credibility of the witnesses, the force and effect that is to be given to their testimony. That is your business. It is not the business of the Court. You are bound to take the law as the Court gives it to you; you cannot make any law of your own under your oath; you are bound to try this case under the láw and the evidence.</p> <p>Manslaughter is the killing of a person in sudden heat and passion upon sufficient legal provocation. That is the complete definition of manslaughter so far as this case is concerned. It is sometimes called the unlawful killing of a' person without malice either expressed or implied.</p> <p>Now, going back briefly to the subject'of murder. The malice necessary to make a homicide murder does not have to exist in the breast of a person accused for any appreciable length of time, just so it is there at the time of the fatal blow.</p> <p>As an example of murder and manslaughter, Mr. Foreman, if a man does you an injury, physical injury, commits an assault and battery upon you, or some physical aggression upon you, or spits upon your person, and by reason of that sudden heat and passion thus aroused you shoot then and there and kill him, you would not be acting in self-defense, it would be manslaughter; but if you waited until after cooling time, and you think about it, and you go back and meet and kill the man for thus insulting you or thus- assaulting you, it would be murder. There are the two principal definitions of murder and manslaughter. There are hundreds of examples I could give you. I cannot charge you what is sufficient legal provocation, but I can charge you what is not. Words are not sufficient to reduce a homicide from murder to manslaughter. Provocation, you must understand, is inconsistent with self-defense; provocation looks towards manslaughter; that provocation must be sufficient to reduce the killing from murder to manslaughter. The provocation necessary to reduce the grade of homicide carries with it the idea of some physical aggression of one party to another. It is sometimes called the charities of the law, that is manslaughter. The law realizes that oh account of the nature of man that when he is suddenly aroused and takes the life of another man in sudden heat and passion, that he is not entirely within his rights, the law says it is not murder, but it is manslaughter, and, therefore, the punishment is largely in the discretion of the Court by imprisonment of not less than 2 years nor more than 30 years.</p> <p>(I charge you that where' a man admits the taking of human life the law places upon him the burden of showing that it was done ita self-defense. The law says that the burden is on the man' who admits taking human life to satisfy a jury of his country that he did it in self-defense.) The law says that he must not only satisfy a jury, but he must satisfy a jury by the greater weight of the evidence, by the preponderance of the evidence — not necessarily by the greater number of witnesses — but by the greater weight of the evidence. By that weight he must satisfy the jury that he did act in self-defense. Now, the law says the State must prove the case beyond a reasonable doubt. The law says that the defendant, where he admits the killing, must satisfy the jury by the preponderance of the evidence, and not beyond a reasonable doubt, that he acted in self-defense; but as I instructed you, if you have a reasonable doubt as to whether or not he has made it appear by the preponderance of the evidence that he did act in self-defense, if you have a reasonable doubt on that proposition, you would give him the benefit of that doubt and say that he has proven his case by the preponderance of the evidence — his plea of self-defense by the preponderance of the evidence — and you will write a verdict of not guilty on the ground of self-defense.</p> <p>What is self-defense? That is, what is the law of self-defense ? What does the law require of a man who sets up the plea of self-defense? He must satisfy the jury by the preponderance of the evidence that he was without fault in bringing on the difficulty; and if you find that the defendant in this case has satisfied you that he was without fault in bringing on the difficulty, he must go further and show, not merely that the other man was at fault, but that it was necessary to take the life of his assailant, to take the life of the other man to save himself from serious bodily harm or from losing his own life. He must show to the satisfaction of the jury by the preponderance of the evidence that any man ordinarily constituted would have been warranted in believing or coming to the conclusion that the danger was such that he was warranted in coming to the conclusion that his life was in danger or that he was in danger of receiving serious bodily harm or of losing his own life at the hands of the deceased at the time of the homicide. He must also show by the preponderance of the evidence that there was no other probable means of escape but to strike to death, because the law will not allow a man to take the life of his fellow man if he can avoid it with reasonable safety .to himself. He must get out of the way if he is assailed by his fellow man and save himself if he can reasonably do so. A man must avoid the taking of human life, if he can do so and save himself reasonably, under, the law of the land, that is, if he could reasonably do so. It is not if he could do so, because after a man has calmed off he might see where there was other probable means of escape; but when he is assaulted he might not have time to look for all the avenues of escape. Therefore the law says a man must avoid taking human life when he can do so, with reasonable safety to himself.</p> <p>The law seeks to be reasonable and I charge you on the subject of self-defense that a man has a right to act from appearances, and if the appearances were such, although there might not have been any actual danger, that a man of ordinary firmness and courage would have been warranted in coming to the conclusion that danger did actually exist then and there and the necessity was then and there upon him to take his life to save himself from serious bodily harm or from losing his life.</p> <p>If that were not the law, the law of self-defense would be limited and small, because, to take an extreme example: If a man were to snap a loaded pistol at you in an angry mode or place such a pistol in a shooting attitude, a man would be warranted in coming to the conclusion reasonably that there was danger, and you would have the right to kill the man, or do whatever is necessary to save yourself from being killed, even though it afterwards turn out that the pistol was unloaded and that you were not in any actual danger. The defendant must show you that he actually believed at the time of the killing that he was in danger of receiving serious bodily injury or losing his own life.</p> <p>Now, gentlemen, I think that is all the law of self-defense. I have charged you the law of murder, manslaughter, and self-defense:</p> <p>I charge you this — I overlooked it — that where a person takes the life of a human being with a deadly weapon, such as a shotgun or a pistol, and nothing else appears, the presumption is that it was done with malice and that the killing is murder; but when all the facts and circumstances come out surrounding a situation tfiat presumption fails and the State is called upon to prove malice, the same as it is called upon to prove every other material allegation of the indictment before you can write a verdict of guilty of murder.</p> <p>Where one is found guilty of murder, and nothing else is said, the punishment is death by electrocution; where one is . found guilty of murder and the jury recommends him to the mercy of the Court, the punishment is hard labor, or life imprisonment at hard labor; and where one is found guilty of murder it is entirely in the discretion of the jury whether or not the extreme penalty of the law shall be inflicted, or by the recommending lesser punishment which is imprisonment for life.</p> <p>Where one is found guilty of manslaughter the punishment is not less than 2 nor more than 30 years in the discretion of the Court.</p> <p>I notice in this indictment that the defendant is charged with carrying concealed weapons. It is against the law for a man to carry a concealed weapon upon his person, whether in the daytime or in the nighttime; so if you find that the defendant has been proven to be guilty .beyond a reasonable doubt of carrying a concealed weapon as charged in the second count, say guilty on the second count. On the first count, which charges murder or manslaughter, the form of your verdict will be guilty, which would mean guilty of murder; or guilty with recommendation to the mercy of the Court, which means guilty of murder with recommendation; or guilty of manslaughter; or not guilty. That verdict would operate as to the first count in the indictment. As to the second count your verdict will be guilty or not guilty on the second count. Whatever your verdict is, write it and sign your name with the word “Foreman” under it.</p> <p>cite: As to dying declarations: 9 S. C. 212; 15 Rich. 349; 26 S. C. 154; 25 S. C. 168; 79 S. C. 66. Charge on self-defense: 79 S. C. 390; 80 S. C. 337; 13 S. C. 464; 76 S. C. 124; 71 S. C. 146; 59 S: C. 297. Retreat: 29 S. C. 34 and 201; 42 S. C. 205; 43 S. C. 128.</p> <p>cites: As to duty to retreat: 72 S..C. 194.</p>

Originae Jurisdiction. April term, 1916. Petition for writ of certiorari, by the State, on relation of R. Reon Shull and another against Richard I. Manning as Governor. The petition and affidavit were as follows: The petition of R. Leon Shull and Jas. D. Moorehead respectfully shows: (-1) That your petitioners are now, and were on the 22d day of March, 1916, qualified registered electors of the city of Columbia, South Carolina.

Before Rice, J., Sumter, November, 1914. Action by W. E. Sparks, administrator of the estate of Eugene Sparks, against the Atlantic Coast Line Railroad Company and L. C. Jones. From a judgment against the first named defendant alone, it appeals. Mr. McLemore cites: As amendment of exception: 98 S. C. 431; 49 S. C. 374; 20 S. C. 190; 34 S. C. 160; 35 S. C. 593; 60 S. C. 67. Charge: 68 S. C. 525; Labatte M. & S., secs. 2585 to 2595; 12 Mod. 488; 72 Am.

<p>1. Pleading — Demurrer—Effect.—A demurrer admits facts, but not construction of statutes or conclusions of law or fact.</p> <p>2. Statutes — Construction — General Words. — General words in a statute will be construed to apply only to the subject treated of.</p> <p>3. Constitutional Law — Insurance—Eciual Protection — Regulation —Statutes—Validity.—Act March 2, 1916, sec. 7, exempting the State Warehouse Commissioner from its operation as to discriminatory rates for insurance on property, • applies only to that taken in his business as commissioner, and is not invalid as denying equal protection to other insurers.</p> <p>4. Constitutional Law — Class Legislation. — It is not unlawful to classify business and provide different rules for different classes.</p> <p>6. Constitutional Law — Insurance — Euual Protection of Laws.— Act March 2, 1916, sec. 8, exempting mill mutuals and factory insurance from its operation, is not therefore unconstitutional classification; there being a valid distinction between mutual insurance and ordinary insurance.</p> <p>6. Statutes — Partial Invalidity — Effect.—If only an exception to operation of a statute is unconstitutional, it alone is invalid, but the statute itself is valid.</p> <p>7. Constitutional Law — Insurance—Confusion of Powers — Powers of Commissioner. — Act March 2, 1916, sec. 6, authorizing the insurance commissioner to review rates, is not unconstitutional as confering legislative and judicial duties on the commissioner, but his duties are ministerial only.</p> <p>8. Statutes — Validity — Suejects and Titles. — Act March 2, 1916, authorizing the insurance commissioner to review rates, is not unconstitutional under Const., art. Ill, sec. 17, requiring the subject to be expressed in the title, because the title fails to state his authority; the general purpose and subject of preventing unlawful combinations being expressed.</p> <p>9. Statutes — Validity-—Subjects and Titles. — Act March 2, 1916, prohibiting combinations of insurers and providing a penalty, is not unconstitutional under Const., art. Ill, sec. 17, requiring the subject to be expressed in the title, because the title fails to mention a penalty, since a prohibition and penalty necessarily go hand in hand.</p> <p>10. Monopolies— Combinations — Penalty — Validity. — Act March 2, 1916, prohibiting combinations of insurers, and requiring affidavits of rates, etc., is not invalid as providing a penalty for false swearing in excess of the Criminal Code provision as to perjury; it being competent to make such penalty heavier under certain circumstances, and Cr. Code 1912, sec. 344, allowing an additional penalty.</p> <p>11. Constitutional Law — Vested Rights- — -Contracts With Foreign Corporations. — A citizen can acquire no vested right under a contract with a foreign corporation for his services, since the foreign corporation enters the State on sufferance, and can be excluded at the will of the State.</p> <p>12. Constitutional Law — Obligation of Contracts — Insurance.—The State cannot impair the obligation of an insurance contract, though the insurer be a foreign corporation</p> <p>13. Pleading — Demurrer—Matters Admitted — Conclusion of Fact. — - The allegation that by reason of enactment of a statute a foreign insurer was compelled to withdraw from the State is a conclusion of fact, and is not admitted by demurrer.</p> <p>14. Constitutional Law — Raising Constitutional Questions — Foreign Corporations. — That a statute requires certain acts to be done by a foreign corporation a year hence is no ground for its withdrawal from the State on the enactment of the statute, and it cannot complain of loss of business during the year.</p> <p>15. Injunction — Petition — Sufficiency. — Petition for injunction to restrain the insurance commissioner from carrying out the provisions of Act of March 2, 1916, regulating insurance rates, held insufficient to sustain the sole grounds on which the writ could issue.</p> <p>16. Constitutional Law — -Judicial Functions — Public Welfare — Who Determines. — Under Const., art. IX, sec. 13, requiring the legislature to enact laws to prevent agreements against the public welfare, it is primarily for the legislature to determine what agreements are against public welfare.</p>

<p>1. Abatement and Survival — Other Action Pending — Ground for Rule. — The ground for sustaining a plea of other action pending is to prevent a multiplicity of suits, but the rule is not inflexible, and cannot be so strictly applied as to shield a public officer in violating a plain mandate of a statute, especially where public interests are involved, and will not be sustained if sustaining it would delay work of public interest and would prevent relief of the petitioner.</p> <p>2. Mandamus — Schools and School Districts — Duties of Officers— ■ Violation of Statute. — It is no ground for the refusal of a school treasurer to pay moneys to the county treasurer as required by statute that if they are so paid the school board will divert them from the declared use, but such officer must obey the statute, and his action will be compelled by mandamus.</p> <p>3. Mandamus — Public Officers — Scope of Inouiiiy. — In an original proceeding by mandamus to compel an officer to pay moneys to the county treasurer, as specifically required by statute, the question whether, if paid, the money will be diverted from the declared use, and whether other officers should be restrained from such diversion, is not involved.</p>

Before Smith, J., Spartanburg, -, 1915. Action by Archibald B. Gwathmey, Jr., and others,' partners trading as Gwathmey & Co., against J. F. Burgiss. From a judgment for plaintiffs, defendant appeals. cite: As to essentials of account stated: 1 Cyc. 366, 369, 458. Rules of Exchange irrelevant: 50 S. C. 537, 548; South Carolina Statute, Civil Code, secs. 3421, 3422; 98 S. C. 279 and 162, 163.

In the Originar Jurisdiction. January, 1916. Application for certiorari by T. A. Robinson and others against R. M. McCown and others to determine the validity of election proceedings. cite: As to meaning of “old county:’’ 93 S. C. 217. Legislative construction: Civil Code, secs. 634, 637, 639, 641, 642. Second election within four years: Const., art. VII, sec. 2; 79 S. C. 414; 102'S. C. 255.

<p>Before Gary, J., Edgefield, August, 1915.</p> <p>Action by the county of Edgefield against the Georgia-Carolina Power Company. From an order overruling demurrer to complaint, defendant appeals.</p> <p>The complaint referred to in the opinion is as follows:</p> <p>(1) That the plaintiff is, and was at the time hereinafter mentioned, a body politic and corporate under the Constitution and laws of the State of South Carolina, and has legal capacity to sue and be sued.</p> <p>(2) That the defendant is, and was at the times hereinafter mentioned, a corporation duly organized under the laws of the State of South Carolina, and has legal capacity to sue and be sued in the Courts of this State.</p> <p>(3) That during the years 1913 and 1914 the defendant and its agents and servants, acting within the scope of their duties, erected, or caused to be erected, a concrete dam across the Savannah River below and near the mouth of Stevens Creek, about 5 miles south of ferry and highways hereinafter referred to, the said concrete dam being 30 feet in height, and one end thereof abutting in Edgefield county and State of South Carolina, and that the defendant completed and closed the said dam on or about the 10th day of January, 1914, and since said time has maintained and still maintains the said dam, and intends to maintain the same for all time hereafter.</p> <p>(4) That the county of Edgefield at the time the said dam was completed and closed, and for a great number of years prior to said time, to wit, for not less than SO years, has owned and maintained a public highway leading from Plum Branch, in the county of Edgefield, via Parksville, Modoc, and Clarks Hill, in said county, across Stevens Creek at Shaw and McKie’s Mill to the Martin town road, another public highway owned and maintained by the county of Edgefield, at a point near where Anderson Branch crosses the Martin town road; that the said public highway is, and has for a number of years been, one of the most important highways of the county, and is a necessary and the only outlet for citizens of said county residing west of Stevens Creek to the city of Augusta, the nearest market for said section, and the town of Edgefield, the county seat of said county, as well as to the churches in said section; that the said highway had a ford across said creek at Shaw and McKie’s Mill at a point about 10 yards below where the old millrace emptied in said creek, and the said county of Edgefield owned the said ford and the right and easement thereto as a crossing for said highway since the time it had owned and maintained said highway; and that the said ford was used as a part thereof.</p> <p>(5) That in order to afford a crossing for said highway across Stevens Creek at Shaw and McKie’s Mill, in Edgefield county and State of South Carolina, in addition to said ford, the county of Edgefield has for a great number of years, to wit, not less than 20 years, owned, operated, and maintained a free public ferry across Stevens Creek at said point, and at the public expense has during said time employed a ferryman to have charge of and operate said ferry; that during all of said time up to the time of the erection and completion of the dam of the defendant above mentioned the width of Stevens Creek at the point of Shaw and McKie’s Mill, where said ferry was operated, was 170 feet, and the depth of said stream was ordinarily 5 feet, and that during all of said time it was practicable for the county of Edgefield to operate the flat at said ferry by means of a wire cable attached to posts or trees on each side of said stream, and that the said flat could be operated by one man, to wit, the man employed by the county to have charge of and operate said ferry, or his servant, and the flat could be put across the stream of said creek by the ferryman in less than 3 minutes, and that all citizens of the county of Edgefield desiring to use said highway and cross Stevens Creek at said point were able to obtain ready and speedy passage across said stream for themselves and their vehicles, and that at the times when the waters of Stevens Creek were swollen by heavy rains the passage across the stream in the said flat was not interfered with or retarded, except in cases of extraordinary flood; that the ford across said creek above referred to could be used and was used as a means of crossing said creek, except in times of high water, and the right and easement to said ford was of great value to the county of Edgefield.</p> <p>(6) That since the defendant has completed its dam and closed the same sq as to obstruct the waters of Savannah River and Stevens Creek the water has been backed up and ponded into Stevens Creek to such an extent as to make the waters of said creek at Shaw and McKie’s Mill overflow the banks of said creek and to flood and destroy the approaches to said banks for the flat of the ferry operated by the county of Edgefield as aforesaid, and also to flood and destroy the public highways leading to said ferry on each side of the said creek for a distance of at least 180 feet on one side of the said stream and 400 feet on the other side, and to destroy and render impassable the said ford, and that the rise in the waters of the said stream at the said point at Shaw and McKie’s Mill on said Stevens Creek where said ferry has heretofore been maintained by the. county is permanent, and that the water of said Stevens Creek at said point is now 571 feet in width, and that the depth of said water has been greatly increased, and that the said water at said point now stands 17 feet in depth in the bed of the stream as it existed before said dam was erected, and to various depthsion the shores thereof as far as the waters reach at present; that this condition of the creek at the point above mentioned is permanent, and that it is the purpose and intention of the defendant to permanently pond the water at its present height, if not more.</p> <p>(7) That by raising and ponding the waters at the said point at Stevens Creek as aforesaid the defendant has destroyed the banks and landing places for the flat, which was heretofore maintained by the county of Edgefield as a public highway, and has obstructed, destroyed, and submerged, and intends to continually obstruct and submerge, at least 180 feet of the public highway of the county of Edgefield on one side of said stream and 400 feet on the other, and has rendered the flat heretofore used by said county and operated by means of a wire cable stretched from shore to shore utterly useless and impracticable, and has rendered impassable and destroyed said ford across said creek, all to the great damage of Edgefield county and to its citizens generally.</p> <p>(8) That in order to afford a crossing for its citizens who use the said highway across Stevens Creek at Shaw and McKie’s Mill since the erection and completion of the said dam by defendant, the county of Edgefield has used as a temporary means of crossing said stream another fiat, but that on account of the great increase in the width of the stream it is no longer practicable to operate a flat by means of the simple device .theretofore used by the county of Edge-field, and it now requires two men to operate the flat across said stream, and that even with two men it is much more dangerous and difficult to operate said flat than it was to operate a flat with one man before the said stream was widened by the defendant, and it requires a good deal longer time to cross said creek, and that on account of the great depth of water at said point of crossing occasioned by the dam of the defendant there is danger to life and property in crossing said stream on said flat, and during ordinary rise in the stream occasioned by rains and high water the said flat as at present operated by the county is very dangerous and almost impracticable to be operated, due to the fact that on account of the great length of the cable with which said flat is operated, if there is even a moderate current in the stream, the said cable sags, and the flat drifts out of its course, and there is great danger of upsetting the same, to the destruction of the lives and property of the persons thereof conveyed.</p> <p>(9) That before the erection and completion of the said dam of the defendant the county of Edgefield, by its duly constituted authority, to wit, the county supervisor and corinty board of commissioners of Edgefield county, notified the defendant in writing not to in any way interfere with or affect any of its public roads, highways, or crossings, and ■referred specially to the crossing and highway at Shaw and McKie’s Mill at Stevens Creek and the public ferry thereat maintained, and after the defendant completed and closed its said dam, and the rise in the waters of Stevens Creek occasioned thereby had obstructed, submerged, and destroyed the ford and ferry of the county of Edgefield across Stevens Creek at said point, the county board of commissioners notified the defendant, its officers and agents, of the damage thereby done, and • demanded that they remove the same forthwith, but that the defendant has failed and refused to do anything to relieve the damages to the said highway and crossing of the count)' as hereinabove set forth; that, notwithstanding such notice by the county of Edgefield, and notwithstanding that it had never acquired any right to interfere with the public highways and crossings of said county, the defendant wilfully and unlawfully raised the waters of said creek so as to destroy the public crossing and ferry at Shaw and McKie’s Mill in said county, so as to obstruct the highways and approaches, leading thereto, as hereinabove set forth, and negligently failed to protect, provide for, and preserve the same, in that it failed to provide a bridge or adequate ferry to afford a crossing for said highway at said point.</p> <p>(10) That it is necessary for the county of Edgefield to provide a safe crossing at Shaw and McKie’s Mill over Stevens Creek for the use of its citizens and the-public generally, and that on account of the obstruction and submerging of its said highways, ford, and ferry it will either be necessary for the county of Edgefield to construct' a bridge at said point at great cost, or to provide an expensive ferry for transporting passengers across said stream, and that -the county of Edgefield has been peculiarly and specially damaged by the acts of the defendant in raising the water of Stevens Creek so as to destroy and submerge the public highways of the plaintiff and its public ferry and its ford, as hereinabove stated, in the sum of $50,000.</p> <p>(11) That A. A. Edmunds, county supervisor, N. E. Broadwater and James DeVore, county commissioners, are, and were at the times mentioned in this complaint, the legally constituted county board of commissioners of Edgefield county, in said State, and that this action was authorized and instituted by said county board of commissioners for and in the name and behalf of the county of Edgefield.</p> <p>Wherefore, the plaintiff demands judgment against the defendant for the sum of $50,000, and for the costs and disbursements of this action.</p> <p>The demurrer follows:</p> <p>(1) Because the plaintiff fails to allege in the complaint that the defendant was without legal authority from the General Assembly of the State of South Carolina and from the Congress of the United States to build, maintain, and use the dam described in the complaint, or that the dam was not built or is not being maintained or used in the manner prescribed by such acts, and does not allege that the said dam was built or is being maintained and used in a negligent, improper, unskillful, or illegal manner, and fails to allege that the increase complained of in the width and depth of Stevens Creek and the obstructing and submerging of the approaches of the public highway to the ferry over said creek was not a necessary and unavoidable consequence of the exercise by defendant by the authority so granted it to build, maintain, and use said dam.</p> <p>(2) Because it appears on the face of the complaint that the dam described in the complaint- was authorized under the laws of the State of South Carolina and of the United States, and that the defendant was acting within the scope of their duties in erecting or causing to be erected said dam. The law of the State of South Carolina conferring said authority upon this defendant to build said dam is contained in the act of the legislature of this State entitled “An act to incorporate the Georgia-Carolina Power Company,” approved March 1, A. D. 1909, and is contained in the Public Laws of said State in the twenty-sixth volume of the Statute at Large, p. 398, of which said statute this Court will take judicial cognizance, it being a public act. The act of Congress of the United States conferring upon this defendant the authority to erect and maintain said dam is contained in an act of said Congress entitled “An act to authorize the building of a dam across the Savannah River at or near the mouth of Stevens Creek between the counties of Edgefield, South Carolina, and Columbia, Georgia, which said act was approved on the 5th day of August, 1909,” etc. (36 Stat. 180, c. 10), in accordance with the provisions of another act of Congress entitled “An act to regulate the construction of dams across navigable waters,” which said act was approved on the 21st day of June, 1906 (34 Stat. 386, c. 3508), of which said acts this Court will take judicial co'gnizance. The plaintiff does not allege that the said dam was not built or is not being maintained and used in the manner and in accordance with the provisions prescribed by said acts, or that the said dam was built and is being maintained and used in a negligent, improper, unskillful, or illegal manner.</p> <p>(3) Because it appears on the face of the complaint that the wrong and injury complained of against this defendant consists in its having increased the width and depth of said Stevens Creek, and in obstructing and submerging the approaches of the public highway on either side of said stream at the point where said public highway crosses the same by means of a ferry at or near Shaw-McKie Mill; that the said wrong and injury complained of, if not authorized by said acts, would constitute a nuisance, and would be an indictable offense under the laws of said State, and would not constitute a cause of action for which the plaintiff is entitled to recover damages, and, if authorized by law, it would be neither a nuisance nor a ground for damages of which plaintiff could complain.</p> <p>(4) Because it appears on the face of the complaint that the county of Edgefield “is a body politic and corporate under the Constitution and laws of the State of South Carolina that, as such body politic and corporate, it has control, through its commissioners, of the public highways of the county under the authority from the General Assembly of South Carolina as contained in the general statutory laws of the State, subject, however, to the paramount control of the State itself through its General Assembly; that by a public act of the General'Assembly of this State approved March 1, 1909, of which the Court will take judicial cognizance, the General Assembly of this State authorized the defendant to build, maintain, and use the dam described in the complaint, and there- is no allegation in the complaint that the flooding and submerging of the highway at Stevens Creek was not a necessary and unavoidable consequence of the exercise of the authority so granted defendant by said act. Therefore, even if the plaintiff or the public has been put to additional inconvenience and expense, as alleged in the complaint by reason of said authorized and lawful construction, the damages so suffered are damnum absque injuria, and do not constitute a cause of action against this defendant.</p> <p>cite: Acts incorporating defendant: 26 Stats, at T.398 and 1038. Act of Congress authorising dam: Acts of Congress, 1909, p. 180. Act of Congress to regulate the construction of dams across navigable streams, June 21, ipoó: Gen’l Stats, of U. S., p. 386. Allegations as to character of construction: 34,S. C. 66; 28 S. C. 396-7; 47 S. C. 484 ; 33 S. C. 216, 218. Unnecessary obstruction of highway: Civil Code, sec. 1947. Construed in connection with charter: 4 L. R. A. 429;-62 Am. St. Rep. 164; 37 S. C. 551; 22 Mich. 322; and submit: The act of our General Assembly creating and incorporating the defendant, by its own terms, is made a public act of which the Court will take judicial notice and read it into the complaint as effectually as though it were fully set forth therein. The Court will also take judicial notice of the act of Congress in question: 47 S. C. 474 and 482; 89 S. C. 124; 17 Enc. of Law 928, 930, 931, 934; 53 S. C. 588; Constitution of 1895, art. VI, sec. 4; 69 S. C. 356; 169 Fed. 162. Where an obstruction of a stream {which is a ptiblic highwayj is permitted by authority of the General Assembly, no damages can be recovered, on account of such obstruction, unless the obstruction was not made in accordance with the provisions of the act authorizing it, or unless the work was done in a negligent, unskillful or improper manner: 34 S. C. 62; 47 S. C. 464; 71 S. C. 156; 76 S. C. 325; .101 S. C. 158; 67 S. C. 181; 71 S. C. 241; 28 S. C. 23 ; 93 S. C. 125. Cite: As to ownership of highways: Elliott, Roads and Streets (2d ed.), secs. 421, 423, 651, 652; 57 Me. 425; 2 Am. Rep. 64; 98 S. C. 272; 42 N. E. 120; 9 Am. St. Rep. 144; 27 S. C. 419. Navigable waters as highways: Const., art. I, sec. 28; art. XIV, sec. 1; 47 S. C. 480; 9 Am. St. Rep. 142; 44 Am. St. Rep. 220. No peculiar damage suffered by county: 1 Hill 365; 30 S. C. 539; 46 S. C. 327; 49 S. C. 95; 68 S. C. 540; 82 S. C. 181; 1 Brevard 125.</p> <p>cite: As to counties: Const., art. VII, sec. 9; Civil Code, sec. 587. Obstructions to highways: Civil Code, sec. 1947; Crim. Code, sec. 648; 69 S. C. 353. County may maintain action for injuries: 11 Cyc. 467; 37 Cyc. 252; 1 Brev. 134; 88 S. C. 484; 9 S. C. 1; 16 S. C. 241; 29 S. C. 584; 35 S. C. 508; 11 S. C. 360; 29 Cyc. 1197, 1198, 1199, 1200, 1201. Construction of grant: 44 Am. St. Rep. 220; 81 Ky. 225; 15 Cyc. 614; 2 Gray 1; 9 Am. St. Rep. 142; 4 Cush. 63; 23 Minn.' 167; 68 N. Y. 167; 23 Ohio St 523; 13 . Am. Rep. 255; 95 S. C. 268.</p>

Before Bowman, . J., Camden, October, 1915. Action by Eunice Outlaw against the National Council, Junior Order United American Mechanics, and De Kalb Council, No. 112, Junior Order United American Mechanics. Judgment for plaintiff, and defendants served notice of intention to appeal. On motion to dismiss appeal from an order refusing to approve defendants’ proposed case and extending time for settlement.

Before DeVore, J., Marion, December, 1914. Action by the Raleigh & Charleston Railroad Company against P. F. Jones and another. From a judgment for plaintiff, defendants appeal. cite: As to estoppel: 84 S. C. 426, 430; 82 S. C. 24, 27; 93 S. C. 397; 159 U. S. 46, 49. Privileged communications: 40 Cyc. 2361, 2365; 30 S. C. 144, 150. Burden of proof on issue as to estoppel: 93 S. C. 190. cites: As to estoppel: 82 S. C. 25. Declarations of agent: 100 S. C. 258.

In the Original Jurisdiction. April term, 1916. Petition for mandamus by the State, on the relation of N. F. Walker, as treasurer of the South Carolina School for the Deaf and the Blind, against Carlton W. Sawyer, Comptroller General of South Carolina. cites: As to appropriation of public moneys: Const. 1895, art. IV, sec. 23. Regard to legislative intent: 99 S. C. 218; 96 S. C. 36; 86 S. C. 419; 87 S. C. 102. Evidence: 39 S. C. 3Ó7; 100 S. C. 165; 36 Cyc. 1138; 44 Cent.

Before'Hon. C. J. Ramage, special Judge, October, 1914. Action by C. W. Harrison against S. W. Crosby. From a judgment for defendant, plaintiff appeals. cites: As to presumption in favor of holder as indorsee for value, etc.: 87 S. C. 78; 28 S. C. 143; 32 S. C. 538. Charge: 64 S. C. 509; 77 S. C. 39. ' cites: As to circumstantial evidence of holder's bad faith: 91 S. C. 461.

<p>Homicide. Appeal and Error. Charge.</p> <p>1. Homicide — Appeal—Harmless Error — Instructions.— An instruction, that “murder is the highest crime known to the law,” even if error because rape and arson are also capital offenses, is not prejudicial.</p> <p>2. Homicide — Instructions—Murder.—An instruction, that murder is the felonious killing of a human being by another with malice aforethought, is not erroneous in failing to charge that “murder is the killing of a person,” etc.</p> <p>3. Homicide — Instructions • — ■ “Manslaughter” • — ■ “Murder.”— An instruction that “manslaughter” is the felonious killing of a human being without malice in sudden heat on sufficient legal provocation, and, that if malice existed, felonious killing with malice is “murder” though done in heat and passion upon provocation by deceased, is free from objection.</p>

Before DeVorE, J., Manning, January, 1916. Willie ■ Bethune was convicted of murder, and b.eing refused a new trial, he appeals. submit: If it had been known to the trial jury: (1) That the witness, McFadden, had ’declared a different state of facts almost immediately before he testified on the stand, the jury could not have given his testimony credit.

<p>Criminal Law — Evidence—Res Gestae. — In a prosecution for assault and battery with intent to kill, testimony of a witness that he was working in the room where the fight occurred; did not see it, but heard a shout, looked, saw the prosecutor holding his left side, and bending over; that he ran .to him, .but, before he did, saw the defendant going through the door; that when asking the prosecutor what was the matter, was told that the defendant “had cut him all to pieces” before he knew what he was doing — was admissible as part of the res gestae.</p>

<p>1. Arrest — Criminal Actions — Necessity op Warrant — Actual Possion op Officer. — Without a warrant in his actual possession an officer cannot lawfully make an arrest for a misdemeanor not committed in his presence.</p> <p>2. Arrest — Criminal Actions — Actual Possession of Warrant by Officer — Production Upon Demand. — Where the officer attempting to make an arrest is known, the production of the warrant cannot be required before the arrested person has actually submitted to his authority, though it may be demanded immediately thereafter.</p> <p>3. Arrest — Criminal Actions — Warrant—Presumption That Defendant Knew Official Character of Officer. — Where nothing to the contrary appears, it will be presumed that the official character of the officer making an arrest is known to the defendant.</p> <p>4. Arrest — ■ Criminal Action— Necessity of Warrant— Actual Possession by Officer. — -Where officer with warrant for arrest of accused in his possession drove to the home of accused, and left the warrant in a buggy some 200 yards from the house where the arrest was made, held, the officer was in such actual possession of the warrant as to make the resistance of the accused unlawful.</p>

<p>Before Shipp, J., Barnwell, August, 1915.</p> <p>Action by Alfred Aldrich against Atlantic Coast Line Railroad Company. From judgment for defendant, plaintiff appeals.</p> <p>Mr. McLemore cites; 134 S. W. 275; 147 N. Y. Suppl. 794; 159 Wis. 429; 150 N. W. 484; 212 Fed. 324; 227 U. S. Ill; 219 U. S. 498; 225 U. S. 101; 29 S. C. 510; 81 S. C. 162 and 169; 92 S. C. 43.</p>

<p>1. Usury — Usurious Transaction — Mistake in Amount of Interest.— Collection of excessive interest by mistake or other error against the intent of the party will not support a charge of usury.</p> <p>2. Usury — Usurious Transaction — Notes.-—If a note on which usury is collected is paid by another note, usury cannot be charged against the last note as having been collected on the note so paid. '</p> <p>3. Banks and Banking — Officers—Mistake—Individual Capacity— Liadility. — The fact that the president and former cashier of a bank advised defendant in their individual, and not in their official, capacity did not make the bank responsible to defendant who acted on their mistaken judgment.</p>

<p>Bail — Recognizance ■ — ■ Breach ■ — • Motion to Estreat. — Where one accused of grand larceny was admitted to bail, the condition of his recognizance being that he should personally appear before the next succeeding term of Court to answer to a bill of indictment to be preferred against him, and he left the State and jurisdiction of the Court and did not appear, although no indictment was returned against him, the condition of the recognizance was broken, and it was properly estreated.</p>

<p>Before Mauldin, J., Columbia, March, 1916.</p> <p>Action by Dawson E. Creps and Corrie Creps against City of Columbia to recover damages for personal injuries. From order overruling demurrer to complaint, defendant appeals. The facts are stated in the opinion.</p> <p>cites: Civil Code, secs. 3053, 2952; 43 S. C. 398; 58 S. C. 413; 66 S. C. 448 ; 70 S. C. 137; 89 S. C. 511; 94 S. C. 375; 100 S. C. 304.</p> <p>cites: 89 S. C. 511; 71 S. C. 170.</p>

<p>Appeal and Eiuum — Finding op Fact — Conclusiveh-ess.—In an action for specific performance of a contract for plaintiff’s sale of land, where the only question raised by the pleadings was the legal question of title, the trial Court’s finding of fact was conclusive and final where there was any evidence at all to' support the finding.</p>

<p>Before Shipp, J., Barnwell, July, 1915.</p> <p>Action by Nixon & Wright against Alex. Robinson. Judgment for plaintiffs, and defendant appeals.</p> <p>cite: 27 S. C. 240.</p> <p>cite: 27 S. C. 243; 45 S. C. 388; 95 S. C. 33.</p>

Before Prince, J., Florence, Spring term, 1915. Action by J. L. Friedheim against the Walter H. Hildic Company. From a judgment for plaintiff, defendant appeals. cite: As to definition of “net:” 89 U. S. 136; 22 Fed. 743; 71 Pac. 69; 15 Minn. 519; 2 Am. Rep. 154; 19 Md. 143; 29 Cyc. 670. cite: As to construction of contract: 9 Cyc. 590; U. S. 24 L. Ed. 563; 19 Md. 413.

<p>1. Evidence — Admissibility—Self-Serving Acts. — While a party to a land suit cannot prove in aid of his own title his acts or declarations, one defending under claim of adverse possession may show that he gave a mortgage and an option for the timber, as evidence of character of his possession.</p> <p>2. Evidence — Conclusion—Admissibility.—A witness in suit defended on the ground of adverse possession may relate acts of possession or ownership, but cannot say who has been in possession.</p> <p>3. Jury- — -Nature of Action — Injunction—Answer—New Matter— Effect.. — Although plaintiff’s suit was to restrain defendants’ alleged trespass, where defendants set up adverse possession, the nature of the case was to-be determined from the whole pleadings, and the issue of title to land was properly left to the jury.</p> <p>4. Quieting Title — Conflicting Paper Title — Evidence.—Defendant’s paper title, beginning in 1836, is of equal force and effect with plaintiff’s beginning a century before, if it covers the same land.</p> <p>5. Adverse Possession- — -Character of Possession — Time. — Although one has possession of land for 20 years, it is not presumed that the land was acquired from the State, nor ig title acquired unless such possession was adverse.</p> <p>6. Trial — Instructions—Cure of Errors. — Although in one instruction the Court correctly submitted the issue of adverse possession, there was error if other instructions given on request incorrectly stated or confused the issue. •</p> <p>7. Judgment — Verdict and Judgment — Variance. — In a suit to restrain alleged trespass, where defendants set up adverse possession, and, on submission by agreement of issue of title, the verdict was simply “for the defendants,” decree that defendants were the fee-simple owners of the land was improper.</p>

Before Prince, J., Florence, Spring term, 1915. Action by S. E. Jeffords, as administrator of the estate of Mrs. E. R. Gee, against J. F. Muldrow. Judgment for plaintiff, and defendant appeals. cite: Code Civ. Proc., sec, 438; 11 S., C. 549; 26 S. C. 160; 38 S. C. 166. cite: Code Civ. Proc., 438; 11 S. C. 549.

Before Memm-ingEr, J., Pickens, November, 1915. Action by the Pates & Allen Company against R. E. Bowen and others to determine the priority of certain chattel mortgages. After a judgment determining such priority, the Court, upon a rule to show cause, ordered and adjudged that the Bank of Norris was entitled to the property under the decree, or, if delivery cannot be had, to its value.

<p>Before SeasE, J., Laurens, November, 1914.</p> <p>Action by Annie A. Simpson against the Western Union Telegraph Company. Judgment for defendant, and plaintiff appeals.</p> <p>cite: 83 S. C. 44; 82 S. C. 247; 78 S. C. 424; 27 Stats. 131; 71 S. C. 511; 10 Rich. L. 382; 19 S. C. 366. Stipulation against liability for negligence invalid: 75 S. C. 512. Pvidence of negligence and wilfulness: 83 S. C. 8; 84 S. C. 482; 88 S. C. 388. Issue for jury: 76 S. C. 275; 89 S. C. 567. Notice of special damages: 26 Stats. 84. Agency of messenger: 82 S. C. 247.</p> <p>cite: As to agency of person writing message: 70 S. C. 16; 27 S. C. 63; 53 S. C. 448; 70 S. C. 539; 82 S. C. 250; 37 S. C. 452; 37 Cyc. 1694; 159 Ala. 254; 149 Ala. 617; 53 Am. Rep. 754; 63 Tex. 668; 24 S. W. 86; 18 S. E. 1008; 72 N. Y. Suppl. 634;.48 So. 712; Jones Telegraph & Telephone Companies, sec. 317; 5 Rich. 27. Construction of stipulation as presentation of claim: 71 S. C. 506; 37 Cyc. 1689; 27 N. E. 313; 150 N. C. 431; 96 Tenn. 66; 65 N. W. 37. Pvidence as to damage: 99 S. C. 132; 96 S. C. 423.</p>

Before DeVorE, J., Bamberg, November, 1915. Action by B. H. Smith and another against T. M. Phifer and others.

<p>Appeal and Error — Review-—-Findings — Conclusiveness. — Where a Circuit Court without a jury affirmed a probate Court decree admitting a will to probate, its findings of fact cannot be reviewed on appeal.</p>

Before Rice, J., Chester, October, 1915. Action by Willie .Spence against the Phcenix Assurance Company, Limited, of London. From a judgment for defendant, plaintiff appeals. cite: As to notice and estoppel: 102 S. C. 311; Civil Code, sec. 3550. And as to waiver of forfeiture: 102 S. C. 115-121; 102 S. C. 381; 68 S. C. 392; 78 S. E. 443. ask the Court to review 102 S. C. 115, and' cite: 16 N. Y. St. Rep. 342; 1 N. Y. Suppl. 31; 18 Pa. Sup.

Before Bowman, J., York, February, 1916. Action by A. E. Sutton against the Catawba Power Company. From a judgment for plaintiff, defendant appeals. cite: Brection of dam not a trespass nor nuisance: 37 S. C. 335; 95 S. C. 271. One action for damages: Jones Easements, sec. 527; 8 A. & E. Enc. of L. 677-9; Gould, Waters, sec. 416; 2 Farnham, Waters, sec. 589; 4 Sutherland, Damages, secs. 1063-4, 1067-8, 1090; 1 Id., secs. 106, 110, 116; 112 Mass. 334; 17 Am.

Before Sease, J., Charleston, April, 1915. Action by Joseph Alston against the Virginia-Carolina Chemical Company. From a judgment for plaintiff, defendant appeals. cite: As to absence of duty to warn: 20 A. & K. Hnc. of L. 94; 55 S. C. 483. Contributory negligence: 21 S. C. 541.

Before Moore, J., Lexington, February, 1916. Action- by the Lawton-Gillespie Company against the American Central Insurance Company. From an order refusing to transfer cause to calendar two, for trial by the Court, defendant appeals. cites: 44 S. C. 116; 76 S. C. 313; 52 S.C. 461; 83 S. C. 49; 33 S. C. 389; 22 S. C. 320; 84 S. C. 426; 92 S. C. 305; 102 S. C. 311. cites: 75 S. C.. 315; 38 S. C. 201; 66 S. C. 77.

Before Rice, J., Lancaster, October, 1915. Action by W. N. Ashe against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. This is an action for damages for the unlawful ejectment of a passenger.

Before Rice, J., Bennettsville, April, 1915. Action by B. F. Avery & Sons, a corporation, against J. H. Bennett and another, copartners in trade as Marlboro Plow Stock & Implement Company. From an order refusing a motion to answer after the expiration of the time allowed by statute, the defendants appeal. Mr. Owens cites : Code Civ. Proc., sec. 225; 13 S. C. 160; 27 S. C. 368; 76 S. C. 179; 77 S. C. 226. cite: As to plaintiff's right: Code Civ. Proc.; sec. 303.

Before Gary, J., Greenville, April, 1916. Action by W. C. Beacham against the City of Greenville. Judgment for defendant, and plaintiff appeals. The following is the decree of the Court below: This case comes before me for a hearing upon the complaint and answer. The facts are not disputed.

Before MoorE, J., Abbeville, March, 1915. Actions by Jesse Boyd and others against W. N. Hall and against Robert B. Bowen. Judgments for plaintiffs, and defendants appeal.

<p>1. Sales — Bills op Lading — Delivery to Carrier- — -Effect.—Where goods were shipped on straight bill of lading and the consignee by contract released the carrier on delivery at its siding, the fact that a draft on the consignor’s qgent was attached would not rebut the presumption that title passed on delivery to the carrier, since the draft in no way affected delivery, as to which there was no indication on the bill of conditions precedent.</p> <p>2.’ Frauds, Statute of — Sufficiency of Instrument — Several Writings. — To take a case out of the statute of frauds, a contract may be made up of several writings.</p> <p>3. Contracts — Actions—Nature—Several Writings. — Where plaintiff proved a contract between defendant and a third person and another contract between such third person and plaintiff on the same subject-matter, the recovery was on contract and not quantum valebat.</p> <p>4. Sales- — Contracts—Burden of Proof. — Where express contract for sale of goods was proved, constructive receipt of the goods was sufficient to show delivery, and no actual receipt need be proved.</p>

Before DeVore, J., Greenville, February, 1915. Action by Watson Burden against the Woodside Cotton Mills. From a judgment for plaintiff, defendant appeals. cites: As to penalties: 13 A. & E. Enc. of L. (2d ed.) 53 and 54. Mr. Henry cites: As to proof of custom: 8 Am. St. Rep. 771; 44 S. C. 227; 46 N. W. 306; 46 S. C. 220; 3 Enc. Ev. 952, 955; 27 A. & E. Enc. of L. 748; 9 Pick. (Mass.) 198; 58 Am. Dec. 718; 53 S. C. 295; 10 Am. St. Rep. 669.

Before Gary, J.,- Anderson, April, 1915. Action for partition by Wm. M. Burriss and others against J. T. Burriss and others. Judgment for defendant, J. L. Burriss, and plaintiffs appeal. submit: A fee conditional cannot be the subject of a devise by will, and upon the death of the donee without heirs of the body, the estate reverts to the heirs of the testator: 17 S. C. 549; Harpers Law, 92; 5 Rich. Eq. 441.

<p>Before Hon. H. P. Green, special Judge, York, April, 1915.</p> <p>A. V. Worthy was convicted of storing and keeping contraband liquor, in violation .of an ordinance of the city of Rock Hill, and appeals.</p> <p>cite: Crim. Code, sec. 44; Civil Code, sec. 3002 and 3005; 93 S. C. 371.</p> <p>cites: Civil Code, sec. 2909, 2953, 3002; Crim. Code, sec. 44; 24 S. C. 266; 100 S. C. 234.</p>

Before Wirson, J., Columbia, March, 1915. Action by J. D. Cordele against the Hampton Cotton Mills Company. Judgment for plaintiff, and defendant appeals. cite: As to assumption of risk: 86 S. C. 69 and 116; 89 S. C. 505; 80 S. C. 238; 72 S. C. 243, 282 and 386; 72 S. C. 348. Pure accident: 72 S. C. 398; 2 Labatt Master & Servant, sec. 837; 20 Fed. 555; 179 U. S. 263; 86 S. C. 131. Contributory negligence: 86 S. C. 72. Charge as to: 70 S. C. 328; 72 S. C. 174; 89 S. C. 390.

Before Hon. C. J. Ramage, special Judge, Camden, Fall term, 1915. Action by Alice Dial against W. R. Gardner and another. Judgment for plaintiff, and defendants appeal. The following statement of facts appears in the record; “The plaintiff sues to recover judgment for an unlawful entry upon her tract of land by the defendant, W. R. Gardner. The plaintiff alleges and proves ownership and seisin in fee of a tract of land containing 800 acres, more or less.

Before Prince, J., Marion, April, 1915. Action by Charles E. Gill and others against Charles F. Ruggles. Judgment for defendant on his motion for a nonsuit, and plaintiffs except and appeal. Exceptions overruled. ‘ Exceptions 2 to 5, referred to in the opinion, were as follows: 2. Because his Honor erred, it is respectfully submitted, in sustaining the objection of the defendant to the following testimony: “Q. Did that 'company make any money during its existence?

Before Moore, ]., Union, September, 1914. Separate actions by Mrs. S. E. Gregory and J. E. Thompson against Sovereign Camp of Woodmen of the World. From judgment against Mrs. Gregory, she appeals. From judgment in favor of Mr. Thompson, the defendant appeals. The facts are stated in the opinion. cites: Civil Code 1912, S. C., sec. 2752 and 2755; 84 S. C. 253, 256; 42 S. C. 291; 15 A. & E. Ann. Cas. 235, 236; 1 Bacon, Ben. Soc. & Fife Ins.

Before Rice, J., Darlington,--, 1915. Action by A. G. Hart against the Western Union Telegraph Company. Judgment on directed verdict for defendant, and plaintiff appeals. submit: Issue as to proximate cause was for jury; and cite: Ann. Cas. 1913b, 351; 60 S. C. 201; 40 U. R. A. 211; 69 S. C. 534; 103 S. C. 321; 102 S. C. 285; 68 S. C. 64; 65 S. C. 332; 55 S. C. 179; 65 S. C. 97; 54 S. C. 503; 52 S. C. 336; Joyce on Electric Law, section 816a. cite:.

<p>1. Corporations— Dissolution— Statute.— Civ. Code 1912, sec. 2812, providing the manner in which a corporation may be dissolved, does not contemplate a dissolution until the affairs of the corporation have be'en liquidated.</p> <p>2. Railroads — Setting Fires — Statute.—A railroad corporation, which set fire to a lot of cotton placed on a platform on its right of way while it was operating its road'and before it conveyed its franchise to another, was liable under Civ. Code 1912, sec. 3226, providing that every railroad corporation shall be responsible in damages to any person, etc., for injury by fire communicated by its locomotives or originating within the right of way of the road.</p> <p>3. Corporations — -Dissolution.— A corporation cannot be dissolved except in the manner provided by the statute.</p> <p>4. Evidence- — -Documents-—-Formal Proof as to Execution — Collateral Fact. — In an action against a railroad for firing a lot of cottor. placed on a platform on its right of way, testimony as to the amount received for cotton sold, a mere collateral fact, did not require formal proof as to the execution of the check which was paid for it.</p> <p>5. Appeal and Error- — Presentation of Objections — Competency of Evidence. — In an action against a railroad for firing a lot of cotton on its right of way, parol testimony as to the price offered plaintiff immediately before the fire, the price received after it was repacked and the cost of unbaling, repacking, etc., must, on appeal, be regarded competent, where no objection was made thereto.</p> <p>6. Appeal and Error — Review—Invited Error — Evidence—-Rule of Damage. — In an action against a railroad for firing cotton on its right of way, where, on appellant’s request, the Court announced the rule that the only amount of damages recoverable was the difference between the market value of the cotton before being damaged and its market value at such time after the fire as plaintiff, with the exercise of due diligence, could have put it on the market, together with the expense incurred in getting it in marketable condition, parol testimony of the price offered plaintiff immediately before the fire, . the price received after it was repacked, and the cost of repacking, etc., must, on appeal, be regarded as admissible.</p>

Before Shipp, J., Barnwell, March, 1915. Action by Annie E. Hogg against Mutual Eife Insurance Company of New York. The facts are stated in the opinion.

<p>Appeal and Error — Order—Amendment of Summons and Complaint— Effect. — An order as to amendment of summons and complaint, properly construed, giving neither party any right which he did not have without it, and defeating no right that either had without it, appeal of neither can be sustained.</p>

<p>Judgment — Mattebs Concluded. — In creditor’s suit, question how much was advanced on a note and mortgage of the debtor presented after appointment of receiver as a claim was improper, where the validity of the mortgage was res judicata, and the only question was how much had been paid on it.</p>

<p>Before Shipp, J., Florence, April, 1915.</p> <p>Action by Ella F. Jones against A. H. Williams and others. From an adverse decree, plaintiff appeals.</p> <p>cite: As to variation in contract: Story Eq; Juris., sec. 775; 36 Cyc. 644, 699, 700, 625. Modification of contract: 56S. C. 259; 57 S. C. 279.</p> <p>cites: As to res adjudicata: 89 S. C. 754; and further submits: The defense of bad faith on plaintiff’s part should have been sustained: 94 S. C. 16; 16 Cyc. 144; 38 S. C. 228; 21 Enc. PI. & Prac. 61. The defense of laches should have been sustained: 89 S. C. '574; 36 Cyc. 695; 14 S. C. 434.</p>

<p>1. CONSTITUTIONAL Law-MASTER AND SERVANT-INJURIES TO SERVANT-Insurance Contracts — Due Process — Euual Protection — Right to Contract — Obligation op Contracts. — Civ. Code 1912, sec. 2808, making void the contract of the servant of a railroad by which insurance is provided him, apd which provides that acceptance of benefits waives the right of action against the railroad, and that bringing such action waives the right to benefits, is not void as denying equal protection of the laws, or depriving the railroad of its property without due process of law, or unreasonably denying the right of private contract, or impairing the obligation of a contract.</p> <p>2. Master and Servant — Employers’ Liability Act — Applicability.— Federal Employers’ Liability Act of April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, secs. 8657-8665), providing that a carrier may set off in suit for damages the amount of relief already paid, was not available to an employer who had not paid the benefits provided for by its relief department.</p>

In the Originar Jurisdiction. Petition by Philip La Tourette for a writ of mandamus requiring Fitz Hugh McMaster, as Insurance Commissioner, to issue to him a license as an insurance broker. cite: As to definition of brokers: 16 A. & E. Enc. of L- 970; and submit: That sec. 2 of the act of March 2, 1916, — Stats, at Large —, attempts to deny to him, a bona fide citizen and resident of the State of New York, privileges and immunities which are granted tox the citizens of this…

<p>Appeal and Error — Review—Con clttsiveness op Verdict. — In an action for value of merchandise delivered to a third person on defendant’s written order, which was ambiguous in its terms, and the meaning of which must he determined from extraneous evidence, including the previous course of dealings of the parties with respect to similar transactions, held the finding of the jury on such evidence was conclusive on appeal.</p>

Before Wilson; J., Darlington, November, 1914. Action by John McSween against Annie Windham and others. ' Judgment for defendants, and plaintiff appeals. The following is the report of the Hon. Thos. H. Spain, master: The above entitled case was referred to me by an order bearing date April 3, 1911, to take testimony and determine the law and facts, and report my findings of law and fact to the Court.