Volume 105 — South Carolina Reports

Before Bowman, .J.,- Bennetsville, August, 1915. Action by Mary A. Manship and another, as executrix and executor of the estate of Aaron T. Manship, against H. H. Newton and wife. From a decree of the Circuit Court dismissing the complaint, .and sustaining exceptions to the referee’s report in favor of plaintiffs, they appeal.

<p>■ Before Gary, J., Lexington, August, 1915.</p> <p>Suit to construe a will, by J. L. Matthews, administrator, against Corrie Clark and others. From a decree, respondents appeal.</p> <p>The decree appealed from is as follows:</p> <p>This suit was instituted for the purpose of obtaining an authoritative construction of the will of George C. Clark, late of Lexington county, who died in November, 1910. When the pleadings were all made up and filed, there had been injected into the case issues not contemplated by the complaint, although entirely proper and timely. The issues so injected are: “Is the widow of the testator entitled to both the legacy left her by the terms of the will and dower also, and has the widow by accepting the legacy waived her ■right to claim dower?” Judge DeVore decided all the issues in the case except those just referred to. He made an order’ directing the clerk of this Court to take the evidence and report the same to the Court on these issues, .especially reserving them for further adjudication. The clerk reported the testimony so taken, and these reserved issues are now before me for adjudication.</p> <p>The law governing the case is certain and familiar, but the difficulty arises in the application of the facts of the case to law that has long been settled, both in England and in this country.</p> <p>In Gordon v. Stevens, 11 S. C. Eq. (2 Hill Eq.) 46, 27 Am. Dec. 445, the law is stated to be that: “The widow’s right of dower is one with which the law invests her, and over which the husband has no control. He can neither dispose of it by contract in his lifetime, nor direct the disposition of it after his death by will or otherwise. She can only be deprived of it by her own act or voluntary consent. The husband has, however, the unquestionable right to annex to the dispositions of his other property, by will, any condition he may think proper, which is not in itself against the law. He may therefore make it the condition of a legacy to his wife that she shall renounce her dower or declare that it shall be in lieu or bar of her dower, and, if she accept it, it must necessarily so operate. It seems to be universally agreed, too, that although no such condition or declaration is expressed in the will she will not be entitled to both the legacy and the dower, if retaining her dower would be inconsistent with the provisions of the will and defeat the intention of the testator.”</p> <p>The case of Cunningham v. Shannon, 25 S. C. Eq. (4 Rich. Eq.) 135, is to the same effect, and holds that “every devise which a husband makes of land upon which his wife’s right of dower attaches is presumed to be .made subject to the right of dower, unless the contrary appears on the face of the will, in express words, or by the strongest kind of implication.” This is undoubtedly the law.</p> <p>What are the facts of this case ? What was the intention of the testator? Does it appear by the strongest kind of implication or by express declaration that it was the intern tion of the testator that the legacy to the wife was to be in lieu and bar of her dower? These questions must be answered in view of the language of the will and the surrounding circumstances.</p> <p>The testator had a large family and his estate owed debts to the amount of $15,000. He had paid about $12,000 for his land, the same being about 2,900 acres. The timber on the land had been sold and taken off, leaving the land very much less valuable than it was prior to the removal of the timber. It is very doubtful whether the wife’s dower would amount to as much as the legacy in cash of $3,000 which legacy was to be derived from a sale of the land.</p> <p>It will be remembered that the will was drawn by a layman — a man not skilled in the use of technical words. Giving to the language of the will the ordinary common sense meaning, it seems to me that the testator has used the strongest kind of untechnical language to indicate that the legacy should be the only interest of any kind, whether it be called a “share” or “an estate” that should be claimed by the wife. The language of the testator in the case before us makes a stronger case calling for an election by the wife than does the language in the case of Bannister v. Bannister, 37 S. C. 529, 16 S. C. 612. In the Bannister will we have no such express declaration as we have in this will, and the circumstances relied on in the Bannister case as calling for an election are all present in this case. For similar reasons, the case before us is a stronger case demanding an election than the case of Hair v. Goldsmith, 22 S. C. 566.</p> <p>The language of the will before us is: “I will that my wife, Corrie Clark, be paid the sum of three thousand dollars, $3,000.00, as her full and entire share of all my personal property and real estate, out of funds provided for below.” And, “It is my will and desire that my wife shall receive $3,000.00 as her full and entire share of my estate.” The . testator also directs that his real estate be converted into cash, and directs what shall be done with the cash after first paying the $3,000 legacy.</p> <p>It seems to me that the strongest kind of implication is that the legacy was to be in lieu' of any other rights of the wife; and that for her to have her dower in addition to the legacy would be inconsistent with the provisions of the will, and would in a measure defeat the intention of the testator. Certainly, the disposition made by the testator of his real estate, as I interpret the will, is not consistent with the idea that the real estate should be converted into cash, the legacy paid to the widow, the balance divided and invested for the children, and still leave the real estate to the extent of one-third liable to be occupied by the widow during her life, the interpretation contended for. This would be the condition if the widow is allowed both legacy and dower. I cannot bring myself to think that such was the intention of the testator.</p> <p>• In accepting the legacy the wife gave her receipt to the effect that the legacy was accepted as in full settlement and discharge of her dower rights. This is not conclusive of her rights, but it is a contemporaneous circumstance tending to show what the wife regarded as the intention of the testator. She is presumed to have acted with full knowledge that she was not compelled to accept the legacy.</p> <p>It is urged strongly that the word “share” is used in the provision above quoted, and not the word “dower,” and that the wife’s dower was an estate and not a share of testator’s estate. Therefore the testator did not refer to dower rights when he spoke of “her full and entire share of my estate.” But as I have already pointed out, the will was drawn by a layman not versed in legal nomenclature. Doubtless he never gave a thought to the shade of difference in meaning between “full and entire share of testator’s estate,” and “dower rights in testator’s estate.” I think the shade of difference is too slight to have been considered either by the testator or his unskilled scrivener. Seeking the intention of the testator in the light of the language used, the surrounding circumstances, and the' recognized canons of construction, I have reached the conclusion above announced.</p> <p>It is therefore ordered, -adjudged, and decreed that Corrie E. Clark, having accepted the legacy provided for her in the will of George C. Clark, deceased, is not entitled to dower in lands' owned by him during their coverture; the said legacy and the acceptance thereof by the said Corrie E. Clark being in lieu and extinguishment of her dower rights.</p> <p>cite: As to wife’s right to dower: 4 Rich. Eq. 140, 147; 22 S. C. 566 and 572; 30 S. C. 249, 254, 555; 43 S. C. 438; 34 S. C. 86; 63 S. C. 129; 37 S. C. 529; 44 S..C. 427; 59 S. C. 522; 80 S. C." 19; 83 S. C. 365; 6 Rich. Eq. 36, 37; 2 Johns. Ch. 448; 2 Ves. Jr. 572; 2 Hill Ch. 46.</p> <p>cites: 22 S. C. 566, 572; 58 S. C. 125, 135..</p>

Before SeasE, J., Charleston,. May, 1915. Action by Annie A. Metts and another against the Charleston Theater Company. Judgment for plaintiffs, and defendant appeals. cite: As to punitive damages: 213 Pa. 20; 1 R. R. A. (N. S.) 1184; 125 S. W. 255; 13 Mees. & W. 38; 183 N. Y. 250; and submit: A theater ticket is a revocable license.

<p>1. Pleading — Motion to Strike Out Irrelevant Matter — Discretion. —Motions to strike out allegations as irrelevant and redundant are addressed to the discretion of the trial Judge.</p> <p>2. Pleading — Motion to Strike Out Irrelevant Matter — Discretion. —It is not an abuse of discretion to strike out irrelevant matter from a complaint containing allegations appropriate to a cause of action in contract and one based on deceit, where plaintiff does not indicate on which he relies or whether he relies upon the fact that the complaint contains two causes of action; Code Civ. Proc. 1912, sec. 216, allowing in actions ex delicto several wrongful acts to be pleaded together without election between them, not being applicable.</p> <p>3. Pleading — Motion to Strike Out Irrelevant Matter — Discretion. —All allegations not appropriate to a cause of action relied on are superfluous and should, on motion, be stricken.</p>

<p>Intoxicating Liquors — “Storing and Keeping in Possession” — Viola, tion op Ordinance. — One who, receiving whiskey from an express office, placed the liquor temporarily in a room in house of his employer until he could get off at dinner and carry it to his own house in another part of town did not thereby violate an ordinance forbidding “storing” or “keeping” of liquor in another place than his house or private room, although when leaving the liquor he opened the package and took a drink.</p>

Before Gary, J., Florence, November, 1915. Action by C. T. O’Earrell, trustee in bankruptcy of J. A. Poston, against J. A. Poston, bankrupt, and another. From an order denying motion of defendants, they appeal. The complaint and motion papers are as follows: The plaintiff, complaining of the defendants, alleges: 1.

<p>1. Railroads — Injuries to Stock on Track — Presumption op Negligence. — That a horse was killed by locomotive prima facie shows negligence of defendant railroad company, and the jury may, if it . sees fit, disregard all the evidence introduced by defendant.</p> <p>2. Railroads — Injury to Stock on Track — Questions por Jury.— Where plaintiff makes out a prima facie case by showing killing of stock by locomotive, the liability of defendant railroad is for the jury. ■ '</p>

<p>Master and Servant — Action for Enticing Servant — Liability.—In action for enticing a servant, where the contract of employment was voidable under the statute of frauds, and notice of termination by the servant was given before any act on part of defendant tending to show he enticed the servant, defendant was not liable.</p>

Before SeasR, J., Lexington, October, 1915. This is a suit .by Ridonia Elizabeth Rish against Mary Ann Wingard and others for the construction of the will of Adam Rish.

<p>1. New Trial — Motion for Nonsuit or Direction of Verdict. — Exceptions assigning error in refusal of the motion for, new trial for insufficiency of the evidence cannot be sustained where appellant failed to move for nonsuit or to direct a verdict as required by rule 77 of the Circuit Court, providing that the point that there is no evidence to support an alleged cause of action shall be first made by motion for nonsuit or to direct verdict.</p> <p>2. Trial — Instruction—Charge on Facts. — In an action to recovei an amount paid defendant by plaintiff’s husband, under agreement whereby defendant promised to convey to plaintiff a tract of land, the charge that a person may make a contract through an agent which will be as binding as if made by the person himself was not erroneous as a charge on the facts.</p>

Before Mauldin, J., Sumter, August, 1915. Action by Anna H. Singleton against D. W. Cuttino. Decree for defendant, and plaintiff appeals. submit: It is not necessary- for the plaintiff to show a perfect title, but only a good and marketable one: 24 S. C. 483; 48 S. C. 282; 59 S. C. 342, 350.

Before SeasE, J., Anderson, June, 1915. Suits by the Southern Railway Company against the Wilmont Oil Mills and against the Broadway Cotton Oil Company respectively.

Before MemmingER, J., Greenville, October, 1915. Charles Tapp and John Pruitt were convicted of manslaughter, and Lizzie Pruitt as accessory after the fact, and they appeal. The charge directed reported is as follows: “Now, to say that you men cannot decide a point, and not be absolutely satisfied upon it on circumstantial evidence, is absolute folly.

<p>Appeal and Error — Review—Findings.—Where all exceptions present questions of fact, it is incumbent upon the appellants to show that the preponderance of testimony is against the findings made by a Circuit Judge.</p>

Before DeVore, J., Barnwell, December, 1915. Action for foreclosure by W.- J. Young against B. L. Brabham and others. From a decree in favor of plaintiff, the defendants appeal. cite: Order of reference was appealable: 73 S. C. 227. Notice of reference: 12 S. C. 561. Opportunity to except to master’s report: 36 S. C. 26; 43 S. C. 103; Code Civil Proc., sec. 332; Rule Circuit Court 30. cites: As to discretion of trial Court: Code Civil Proc., sec. 331.

<p>1. New Trial — Construction op Order. — -Where. there was failure to comply with an order directing a new trial, unless plaintiff should within 20 days from the date thereof remit as much as one-half of the recovery, the order amounted to an order for a new trial absolutely, so that subsequent orders that plaintiff, a nonresident, give a bond for costs, and on his failure to do so for a nonsuit, were properly made.</p> <p>2. Appeal and Error — New Trial — Granting op Motion — Presumption — Piling of Order. — On motion for a new trial made in Court the filing of an order therefor after the Court arose was proper, and, where there was nothing in the case to show that the Court had risen when the order was made, the presumption of fact was to the contrary.</p> <p>3. New Trial — Decision on Motion — Knowledge—Estoppel.—If plaintiff and his counsel left the Court before defendant’s motion for a new trial was decided they could not afterwards say that they did not know what was decided.</p> <p>4>. Appeal and Error- — -Notice—Motion for New Trial — Determination. — If an order for a new trial, unless plaintiff should remit part of the recovery, was made after the Court rose, and there was an appeal therefrom, appellant could have given his notice of appeal within 10 days after written notice that such order had been granted, as provided by Code Civ. Proc. 1912, sec. 384.</p> <p>5. New Trial — Order—Constructive Knowledge. — Where an order for a new trial, unless plaintiif should remit part of the verdict, was made in term time, the parties had constructive notice of it and were bound to follow it.</p>

Before Bowman, J., Columbia, October, 1915. Action by the Brookland Bank against John F. Martin and A. W. Martin. Judgment for plaintiff, and defendant, A. W. Martin, appeals. submit: Fraud vitiates contract: 71 S. C. 153. Negligence: 26 S. C. 91. Direction of verdict: 71 S. C. 148. submit: Fraud is not sufficiently charged in pleadings: 65 S. C. 184; 96 S. C. 242 ; 9 Enc. PI. & Pr. 184.

Before Bowman, J., Sumter, April, 1915. Action by J. S. Capell' against W. A. Shuler and others. From an adverse order, plaintiff appeals. The order and the complaint are as follows: Order.

<p>Railroads — Action to Establish Easement — Defense — Burden of Proof — Statute.—Under act December 16, 1851 (12 St. at Large, p. 93), sec. 15, providing that, in the absence of any contract with a railroad in relation to land through which its road passes, it shall he presumed that the land on which the road is constructed, together with 65 feet on each side of the center thereof, has been granted to the company by the owner, a railroad claiming such easement and suing to enjoin' a defendant admitted to be the owner of the land through which the railroad ran from preventing the location of a telegraph line for railroad purposes outside the land actually occupied by the roadbed, where the defendant set up a contract limiting the plaintiff to the land actually occupied by the railroad bed and ditches, and where there was no evidence of defendant’s recognition of the easement, and where there was evidence that she had prevented encroachments on her land outside of the roadbed, had the burden of proving that there had never been such a contract.</p>

Before DeVorE, J., Manning, March, 1916. Action by the Coe-Mortimer Company against R. H, Briggs and others. Judgment for plaintiff, and defendants appeal. cites: As to voluntary deed: Ann. Cas. 1914b, 945. Res judicata: 89 S. C. 407; 84 S. E. -538: Dismissing complaint: 90 S. C. 229. citesAs to sufficiency of complaint: 87 S. C. 95; 32 A. & E. Ann. Cas. 1914b, 945 to 960. -Allegation that conveyance was fratidulent: 64 S. C. 354; 27 S. C. 431; 33 S. C. 28; 31 A. & E. Ann.

Before Hon. C. M. Eeird and C. C. Featherstone, special Judges, Chester, November, 1914, and May, 1915. Action Sarah F. DuBose, in her own right and as administratrix of Susan C. Kell, deceased, against John A. Kell, and others. Judgment for defendants, motion for new trial denied, and plaintiff appeals.

Before Prince, J., Florence, April, 1915. Action by the Farmers & Mechanics Bank of Florence, S. C., against J. D. Whitehead and W. L. Whitehead, as copartners, and others. Judgment for plaintiff, and defendants appeal. The note sued upon is in the words and figures following: Lake City, S. C., Jan. 21, 1908. $1,000.00.

Before Ríes, J., Dillon, March, 1915. Action by Max Fass against the South Atlantic Life Insurance Company. Judgment for plaintiff, and defendant appeals. The following is the exhibit referred to in the opinion: Exhibit 1.

<p>Before Bowman, J., Darlington, August, 1915.</p> <p>Action by J. R. Galloway against the Western Union Telegraph Company. From an order taxing on remand the costs of a previous appeal (101 S. C. 159, 85 S. E. 309) against plaintiff, he appeals.</p> <p>cite: Code Civ. Proc., secs. 361, 365, 424; 11 Cyc. 28; 7 R. C. L. 783; 36 L. R. A. (N. S.) 626; 165 App. Div. N. Y. 826; 155 S. W. 328; 129 La. 825; 143 Ky. 480; 129 S. W. 376; 141 Mo. App. 637; 134 App. Div. N. Y. 58; 120 S. W. 1088; 187 Mass. 421; 89 S. W. 729; 33 App. Div. N. Y. 136; 25 S. C. 243; 45 S. C. 4; 41 S. C. -206; 44 S. C. 376; 22 S. C. 309; 43 S. C. 262; 79 S. C. 388; 47 S. C. 150.</p> <p>cite: As to who is prevailing party: 53 Mo. 328; 39 S. C. 463; 43 S. C. 262; 47 S. C. 163; 45 S. C. 4; 45 Vt. 531; 133 Mass. 587; 79 S. C. 389; 41 S. C. 206.</p>

<p>Before Bowman, J., Camden, Fall term, 1915.</p> <p>Suit for partition by Henry Gardner and others against G. F. Horton and others. From a judgment, plaintiffs and defendant, J. F. Gardner, appeal.</p> <p>John C. Horton had seven children; G. F. Horton, Elizabeth J. Horton, James J. Horton, J. Martin Horton, H. T. Horton, Sarah E. Gardner, and Mary Sowell. Sarah E. Gardner and Mary Sowell were not mentioned in the will. They had died at the date of this suit, which was by their children and the husband of Sarah E. Gardner against the other five children, the widow and J. F. Gardner, one of the sons of Sarah E. Gardner. Plaintiffs claimed title as tenants in common with J. F. Gardner. The widow, Cynthia L., answered, claiming a third. The other defendants defaulted. Judgment decreed ownership in Cynthia E., one-third, in the five defendants, children of testator, each 2-21, and in the plaintiffs and defendant, J. F. Gardner, a total of 4-21, being 2-21 in the heirs of Sarah E. Gardner and 2-21 in the heirs of Mary Sowell.</p> <p>submits: That the testator never intended that H. T. Horton should have any other portion of the land described in the complaint, as he already had a certain tract of land deeded to him by the said John C. Horton, and if this construction is correct it would seem further from the wording of the said will, that his son, J. P. Horton, and his daughter, Elizabeth J. Horton, and his son, James J. Horton, and his son, J. Martin Horton, and his wife, Cynthia L. Horton, were deemed by him to have had a sufficient share of the said tract of land for the same reason that he had provided for them in the will, and had not provided for them in a deed as he had his son, PI. T. Horton The other property of which the testator died seized and possessed, and which he did not dispose of by will, “be divided among my heirsas he says, would mean those other of his kin who are not mentioned in the will. He merely refers to the statute of the State for the manner in which the others not named in the will should be provided for; that is, they should receive the proportion of'the lands that the statute would give them if the same were divided by the statute. They get their land really from the will, because the party died testate as to these lands, having provided for their disposition in the last said clause of his said will; and cites: 26 S. C. 38 and 450; 27 S. C. 295; 29 S. C. 466; 30 S. C. 184; 46 S. C. 169.</p> <p>cites: As to construction of will: 13 S. C. 512; 17 S. C. 504; 93 S. C. 69. Heirs defined: 37 S. C. 264; 3 Rich. Eq. 550. Advancements distinguished: 13 S. C. 512; 12 Rich. Eq. 410; 17 S. C. 504; 93 S. C. 70. Ademption: 13 S. C. 512; 54 S. C. 380.'</p>

Before Gary, J., Florence, November, 1915. Action by Y. S- Gilkerson against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. The following is the request to charge and modification thereof referred to in the opinion: “1.

Before Shipp, J., Barnwell, May, 1915. Action by T. A. Greene against Henry Washington. From an order of reference with leave to amend the answer, plaintiff appeals. as to counterclaim, cite: 15 S. C. 461; 30 S. C. 167; Code Civ. Proc. 321; 93 S. C. 99. cite: As to equitable relief: 15 S. C. 458; Pom. Rem. 767; distinguish 45 S. C. 120; 54 S. C. 402. Equitable counterclaims allowed: 69 S. C. 227; 90 S. C. 128; Code Civ. Proc., sec. 331; 49 S. C. 423; 34 S. C. 169.

<p>Before Memminger, J., Greenville, Spring term, 1915.</p> <p>Action by Rowena Greer against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Before Moore, J., York, November, 1915.</p> <p>Action by W. L. Hall against W. T. Lemmond and another. From an order refusing to dissolve an attachment, defendants appeal.</p>

Before Mauldin, J., Dillon, Fall term, 1915. Action by S. H. Hamilton against the Stubbs Company. From a judgment for plaintiff, defendant appeals. cite: As to right to distrain: Civil Code, sec. 3514; 24 Cyc. 1283; 138 Ill. 483; 95 Md. 548; 27 N. J. L. 243 ; 72 Ga. 35; Civil Code, sec. 3515, 3516, 3517; 3 McC. 484; 2 Hill 484; 2 Spears 370; 20 S. C. 483.

<p>Before Prince, J., St. Matthews, Fall term, 1915.</p> <p>Action by Viola Harmon and others against Alice Barber and others to settle the estate of J. P. Barber, deceased, in which Bank of Cameron filed a claim. From judgment disallowing the claim, the bank appeals.</p> <p>cite: As to liability of drawer: 10 Wall. 604; Thompson Bills, 409; 5 A. & E. Enc. of E. (2d ed.) 1044. Manner of presentment: 42 E. R. 455; 16 C. B. (N. S.) 288; 92 E. R. 428; 78 N. Y. 269; 80 N. Y. 100; 13 E. R. A. 303; Morse on Banks & Banking, secs. 231 and 427; Tiedeman Commercial Paper, sec. 444; 2 Daniel’s Neg. Inst., sec. 1559; 44 D. R. A. 240; 5 R. C. D. 514; 135 Iowa 605; 23 Am. Rep. 632. Notification of dishonor within reasonable time: 92 S. C. 440; 97 S. C. 335; 2 N. & McC. 433; 5 A. & E. Enc. of E. (2d ed.) 1031, 1044, 1046; 3 lb. 805, 806, 814; Parson’s Bills & Notes 72, 73 and 74. Charging check to drawer, not payment: 34 Am. Rep. 534; 44 L. R. A. 240. Negligence in forwarding check: Brady Checks 70 and 71. Insolvency of drawee: 97 S. C. 339; distinguishes 3 Hill 77; 92 S. C. 91 and 440.</p> <p>cites : As to negligence of bank as collecting agent: 92 S. C. 91 and 440; Bolles Modern Law of Banking, 548, 549, 577; 56 Fed. Rep. 967; 76 Minn. 136; 3 Hill 77; 112 U. S. 276. Delay in presentation: 2 Bolles Modern Law Banking, p. 603; Brady Law of Checks, pp. 279 and 285, secs. 195 and 199'; 109 Ala. 326; 221 Ill. 319; 76 Minn. 13.6.</p> <p>cites: 4 A. & E. Enc. of L. (2d ed.) 483; 82 Am. St Rep. 291; 46 lb. 672.</p>

<p>1. Appeal and Error — -Discretion op Trial Court — Evidence—Reputation. — Where one’s reputation is brought into question, the trial Court is allowed a wide discretion in determining the preliminary question whether the time or place at which it was sought to prove it is so remote or distant as to deprive it of substantial probative value, and its exercise of such discretion will not be reversed except for manifest error -resulting in prejudice to the party complaining.</p> <p>2. Appeal and Error — Harmless Error — Evidence—Exclusion—Reputation op Party. — In an action for slander for calling plaintiff a thief, where the facts upon which defendant claimed that plaintiff’s reputation in another State was bad were brought out on the cross-examination of the plaintiff and were before the jury, the exclusion of defendant’s evidence as to plaintiff’s reputation in such other State, even if remotely relevant, was no material injury to defendant.</p> <p>3. Trial — Instructions—Province op .1 ury. — In an action for slander for calling plaintiff a thief, where one of the jurors drawn stated in Court, in the presence of the other jurors, that he did not approve of such sort of eases being brought into Court and was excused, an instruction, cautioning the jury that they should not undertake to make law or administer it as they thought it ought to be, and that they should have no prejudice against such character of action because it was allowed by law, and that plaintiff could not recover unless he made out a proper meritorious case, was not erroneous as an expression of the Court’s opinion as to the merits of the ease, or as a suggestion that' damages should be awarded in such case to prevent breaches of the peace, etc.</p> <p>4. Libel and Slander — Instructions—Issues.—In a married woman’s action for slander for calling her a whore, an instruction that, while it was made a criminal offense by the statute to maliciously utter or circulate any false statement concerning the chastity of a woman punishable by finé, or imprisonment or both, that did not take away plaintiff’s right to bring a civil action for damages was relevant and proper.</p> <p>5. EvmENCE — Peesotiption-—Reputation.—The law presumes that a woman charged with being a whore was innocent of such charge, and was a person of good reputation.</p>

Before Moore, J., Laurens, May, 1915. Action by Jennie A. McChesney against J, C. Smith, individually, and as executor of the estate of D. C. Smith. From a judgment for defendant, plaintiff appeals. cite: As to whether the facts of this case present a case for abatement on account of the alleged shortage in acreage: 2 Speer 68; 23 S. C. 105 ; 41 S. C. 198; 35 S. C. 391; 58 S. C. 473; Rice Eq. 55; 68 L. R. A. 908; 12 Pac. 84; Pom. Eq.

<p>Wills — Estates Cheated — Construction—“Other Ecivivalent Words.” —Civ. Code 1912, see. 3551, provides that whenever an estate is limited to take effect on death of any person, without heirs of the body, or issue, or issue of the body, or other equivalent words, they shall mean failure at the time of such person’s death. Section 3571 provides that no words of limitation shall be necessary to convey an estate in fee simple, by devise, but every gift of land by devise shall be considered as in fee, unless contrary to the intention of the testator. Held, that “heirs” falling within “other equivalent words”, has the effect of those specifically mentioned, so that where testator ■ granted an estate providing that if two of his children devisees died leaving no heirs, the property was to go to certain other children by his second wife, such other children were entitled to the estate on the death of the primary devisees without issue or children then living.</p>

Before Memminger, J., Greenville, October, 1915. Action by the Paris Mountain Water Company against the City of Greenville. From judgment dismissing the complaint, the plaintiff appeals. The facts are stated in the opinion. submit: The legislation relied on by the city contravenes article VIII, section i of the Constitution of 1893.

Before Rice, J., Darlington, Spring term, 1915. Action by Francis J. Pelzer against J. W. Ragsdale and others, to foreclose a mortgage of realty. Decree for foreclosure, allowing plaintiff’s attorney a fee of $1,250, and defendants appeal.

<p>Attorney and Client- — -Authority — Settlement, op Suit. — In the absence of fraud or mistake, where the undoubted attorneys of record for a party solemnly agree to settle and adjust the issues and subject matter of the suit, he cannot later by other counsel repudiate the agreement.</p>

Before Bowman, J., Barnwell, December, 1914. Action by the Savannah Chemical Company against D. P. Johnson, to which, by Court order, Jas. A. Willis was made a party defendant. Judgment of nonsuit, and plaintiff appeals. cite: 46 S. C. 46; 50 S. C. 37. Right to recover for goods sold: 52 S. C. 36; 70 S. C. 250. Joinder of actions: Code Civ. Proc., sec. 218; 48 S. C. 79; Pom. Remedial Rights, sec. 463.

<p>Before Hon. F. E. Wiiacox, special Judge, Abbeville, October, 1915.</p> <p>Action for partition by Emma J. Sheffield and others against Mrs. Irene R. Grieg. From a judgment for plaintiffs, defendant appeals.</p> <p>The surviving children of George Ii. Kay were G. W. H. Kay, C. B. Kay, J. R. Kay, J. H. Kay, and Emma J. Sheffield, all minors at the time of his death. This suit is brought by Emma J. Sheffield, J. H. Kay, and Robert H. Kay, the only child of J. R. Kay, who predeceased Jane Kay. Plaintiffs claimed, among other things, that the making of the agreement or conveyance of the 793 acres referred to in the opinion was a full exercise and renunciation of the power contained in the will to dispose of the land, whether by mortgage or otherwise, and that the power given by the will did not include power to mortgage.</p> <p>cite: As to powers: Washburn R. P., secs. 1657, 1658, 1665, 1667, 167*9. Effect of alienation: 36 S. C. 107; 27 S. C. 514; 33 S. C. 313 and 414; 19 S. C. 297; 21 S. C. 1; 29 S. C. 466; 56 S. C. 82. Intention of testator: 19 S. C. 297. Power to mortgage embraced, in power to sell: 1 Bail. Eq. 468; 18 Am. Rep. 75; 60 N. J. Eq. 471; 99 U. S. 48; 2 DeS. Eq. 460; 1 Strob. Eq. 41; 27 S. C. 522; 12 Rich. Eq. 349; 56 S. C. 85; 101 S. C. 196; 31 Cyc. 1072. Purchase without notice: 23 S. C. 500; 34 S. C. 151; 31 S. C. 147; 38 S. C. 457; 61 S. C. 265; 60 S. C. 172, 178. Statute of limitations: 50 S. C. -127; 78 S. C. 154; 85 S. C. 373. Estoppel: 96 S. C. 83.</p> <p>cites: As to construction of power: 31 Am. St. Rep. 762; 43 S. C. 271; 51 S. C. 366; 6 S. C. 189; 21 N. J. Eq. 574; 129 Mass. 286; 46 Atl. 648; 60 Md. 150; 38 Am. Rep. 340; SO Am. Rep. 456; 56, Am. Rep. 456; 2 Perry Trusts, sec. 768. Necessary parties to action for foreclosure: Jones Mt’ges. (3d ed.), sec. 1558; 2 Hilliard Mt’ges. 129-135; 63 Am. Dec. 373. Release of power: 33 S. C. 425; 36 S. C. 100. Notice of breach of trust: 24 S. C. 179; 25 S. C. 340; 35 S. C. 422; 100 S. C. 226; 28 A. & E. Enc. of L. 1126.</p>

<p>1. Trial — Injuries to Servant — Instructions ■ — • Charge on Facts— “Diligence” — “Prudence”—“Reasonable Care.” — In action for death of servant, a charge as to duty of master to use care, defining “prudence,” “diligence,” and “reasonable care” to “mean more than mere mechanical skill,” and that “it includes circumspection and foresight in regard to reasonably probable contingencies and must be proportionate to the danger,” is not error as a charge on the facts.</p> <p>2. Master and Servant — Injuries to Servant — -Action—Burden or Proof — “Act of God.” — In action for death of servant struck by lightning alleged to have come over negligently ungrounded wire into power house where he was working, it appearing that the proper grounding of the wire was a matter within the particular knowledge of defendants, defendants, pleading act of God, had the burden of proving that lightning was the sole cause and did not concur with their own negligence, for in law “act of God” means not only vis _ major, but a vis major uncoupled with negligence.</p> <p>3. Trial — -Instructions—Burden of Proof. — In such action, where the plaintiff undertook to prove the alleged negligence of defendants and defendants offered evidence contra, an instruction, in effect telling the jury that on that issue the testimony of the .defendants must preponderate, was proper, since that was the only thing which could excuse the killing.</p> <p>4. Master and Servant — Action—Question for Jury — Negligence op Master. — In such action, evidence that the wire was coiled about projecting bushings outside the power house and not grounded at that place, but 200 feet away; that the lightning came into the power house thereby — held to warrant sending the issue of defendant’s negligence to the jury.</p> <p>5. Evidence — Judicial Notice — Electricity. — Courts take judicial notice of the fact that for well-nigh a generation the ingenuity and the resources of men have been exploiting the power of electricity.</p>

Before Smith, J., Anderson, February, 1916. Doc Freely, convicted of murder, appeals. The facts are stated in the opinion. cite: As to conduct of trial, sending jury back a second time without their consent, to consider case: Civil Code, sec. 4050; 75 S. C. 494; 45 S. C: 466. As to exclusion of testimony, as to defendant’s declarations: 3 Wigmore Ev. 2230; 93 Am. Dec. 274; 145 U. S. 710, 711.

Before Gary, J., Conway, September, 1915. Thomas W. Livingston was convicted under section 389 of the Criminal Code, and appeals.

Before MooRE, J., Charleston, June, 1915. J. W. Messervey was convicted of manslaughter, and appeals. Appellant states his case as follows: “On July 6, 1909, the defendant, J. W. Messervey, shot one J. D. Altman at Ravenel, in Colleton county, from which wound the said J. D. Altman subsequently died in Charleston county. The same year an indictment for murder was found by the grand jury of Colleton county against J. W'.

<p>Before Memminger, T., Greenville, Fall term, 1915.</p> <p>Jesse Kilgore was convicted of assault and battery with intent to kill, and he appeals.</p> <p>The following are defendant’s exceptions:</p> <p>(1) That the presiding Judge erred in intimating his. opinion as to the weight and sufficiency of the evidence constituting the defense of self-defense, offered by the defendant, in that the presiding Judge spoke slightingly and sneeringly of “this same old self-defense.”</p> <p>(2) That the presiding Judge erred in charging upon the facts, and in telling the jury that the law of self-defense is a hard rule to apply, “because men generally consider that it is a sign of cowardice to seek to get away from the difficulty,” when such statement and expression has nothing to do with the law of the case, and is a statement of fact of which the Court cannot legally take judicial notice.</p> <p>(3) That the presiding Judge erred in charging the jury that it is “often a mistaken idea as to the necessity for killing; that people go to work and shoot and kill others and come into Court and set up self-defense, and seek to get the jury to release them, when really the facts don’t make out any case of self-defense.” This expression is a plain violation of the constitutional prohibition against charging upon the facts, since the facts stated are matters that the Court cannot take judicial notice of, and while spoken of in general terms, the same must necessarily have been understood by the jury to apply to the facts of the case at bar. The use of such expressions plainly makes' the presiding Judge a participant in the trial of the issues of fact, all to the prejudice of the defendant.</p> <p>(4) Error in the presiding Judge in his supplemental charge to the jury, when it came in for further instructions, as to the extreme penalty.in case of conviction. The jury, having received the case at 11:30 o’clock a. m., returned to the Court room at 3 :25 o’clock p. m., and asked the effect of the extreme limit of a sentence in such a case. After giving the information, the presiding Judge further proceeded to charge the jury as follows: “I want you to understand while you are out here that we don’t want to make a mistrial. You see the great number of witnesses that we have examined here in this case. All those- witnesses on behalf of the State have to be paid for by the county, arid it involved a great deal of expense to try and retry these cases; sooner or later some jury has to decide it. The Court has been sitting here — this is now the fifth week that I have been here, and there hasn’t ben a single mistrial made” — the error being as follows:</p> <p>(a) It was improper for the Judge to tell the jury, “We don’t want a mistrial,” because the wishes and desires of the Judge are immaterial and should not influence a jury, and if they do, the Judge thereby becomes a participant in the trial of the issues of fact.</p> <p>(b) The expense to the State and county was not a proper consideration by which to arrive at the truth of the charge.</p> <p>(c) The fact that the Court had been sitting five weeks and there had not been a single mistrial was not a proper consideration for the jury, and the absence of such mistrials may have been due to the same urgent language by the Court in previous cases.</p> <p>(d) It is more important to arrive at a just verdict than a quick verdict.</p> <p>(e) The State should not count expense in administering justice to its citizens.</p> <p>(f) It was not proper to seek to influence the jury in the case at bar by telling them that the other juries for five weeks had agreed on verdicts, as the case being tried was not like any other case, and it'is no more reason to urge a verdict in a given case because the previous cases had resulted in verdicts than it would be to expect the jury to find a verdict of “not guilty” because all previous juries had found verdicts of “not guilty.”</p> <p>(g) The mere fact that some jury must in the future decide the case would not be conclusive, because in a future trial the testimony would probably be different from the testimony at the trial before Judge Memminger.</p> <p>(h) That it was error to tell the jury that it was much to the credit of the other juries that they realized that “their object was to decide cases — go ahead and decide them”— and that the Judge “hoped that in the case being tried the jury would do the same,” whereas, it is not the object of a jury merely to decide a case by a majority vote, or by tossing a coin, or by haphazard, but the law requires a verdict to speak the conviction of each individual juror as to the truth of the case being triéd, and it is more important that the rights of the individual be conserved by an orderly administration of justice, according to the forms of law, than that expense be saved and litigation disposed of.</p> <p>cites: Branson Instructions to Juries, sec. 20; Moore on Facts, secs. 19, 20, pp. 24, 26, 33; 103 S. C. 277; 98 S. C. 299; 38 Cyc. 1674.</p>

Before Hon. C. J. Ramage, special Judge, Columbia, December, 1914. Claim and delivery by Ned Stroy against Arthur Nicpee. From a judgment of the Circuit Court, affirming judgment of the magistrate for plaintiff, defendant appeals. cites: As to jurisdictional value: 16 S. C. 371, 373; Const., art. V, sec. 21; 87 S. C. 369, 371. Right to possession: '51 S. C. 42, 43. Claim equitable: 60 S. C. 103, 105; 87 S. C. 369, 371.

Before DrVore, J., Greenville, March, 1915. Action- by Elizabeth M. Thomas against the GreenvilleCarolina Power Company. From a judgment for plaintiff, both parties appeal. cite: As to construction of deed from Mrs. Thomas: 17 S. C. 132; 68 S. C. 470; Preamble, 3 McC. L. (14 S. C. L.) 298; 2 Bail.- (18 S. C. E.) 430; 62 Am.

Before Hon. C. J. Ramage, special Judge, Greenwood, September, 1915. Action by the Greenwood Cotton Mill against T. P. Tolbert. Judgment for plaintiff, and defendant appeals. submits: There is no allegation of a cause of action for breach of warranty: 3 Brev. 63; 35 Cyc. 446, 406, 409; 105 Minn. 115-117; 86 Minn. 94; 90 N. W. 120; 149 N. C. 299; 62 S. E. 1076. Requests to charge: 35 Cyc. 607; 2 Rich. 40; 2 N. & McC. 65; 2 McC. 432.

Before Bowman, J., Columbia, October, 1915. Action by Nelson W. Trump against P. V. Mikell and others. From an order striking out certain allegations of the answer and from an order of reference to the master, the named defendant appeals. submits: The Code Civ. Proc., sec. 210, authorizes the striking out of irrelevant or redundant matter.

<p>Before Hon. C. J. Ramage, special Judge, Camden, Fall term, 1914.</p> <p>Action by Bessie Mae Turman and husband against the Seaboard Air Line Railway and another. From a judgment for plaintiffs, the named defendant appeals.</p> <p>cite: As to effect of stipulation on free pass: 226 U. S. 491; 234 U. S. 576. As to punitive damages: 147 U. S. 101; 95 Fed. 657; 112 Fed. 114; 124 Fed. 983; 91 Fed. 462; 128 Fed. 85; 96 Fed. 929.</p> <p>submits: Stipulation not valid as against wilful acts: 192 U. S. 517; 75 S. C. 298; 87 Am. St. Rep. 265; 74 S. C. 102-104; 160 N. C. 196.</p>

Before Mauldin, J., Columbia, January 1916. Action by the Virginia-Carolina Chemical Company against Van Dorn S. Wilkins, doing business under the name of Yellow Hard Pine Dumber Company. From adverse orders, plaintiff appeals. Plaintiff’s affidavit for attachment is as follows: State of South Carolina, county of Richland. W. S. Neil, being duly sworn, deposes and says: 1.

Before AVilson, J., Columbia, April, 1915. Action by Sallie A. AAfebb, administratrix of the estate of Hiram C. Webb, against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. submit: Plaintiff’s case depends upon one witness, who told irreconcilable stories, and whose testimony was inherently impossible: 56 N. Y. S. 223; 38 App. Div. 620; 54 Atl. 747; 49 S. E. 722; 102 Fed. 379.

Before Bowman, J., Columbia, December, 1915. Action by the Wesley M. E. Church against the City of Columbia, to recover amount of assessment paid under protest. From judgment for defendant, plaintiff appeals. cites: Const., art. X, sec. 4; Civil Code, sec. 294, subd. 2; 63 S. C. 7; Const., art. X, sec. 3, art I, sec. 17; 34 Ill. 203 and 276; 4 Conn. 419; 53 Wis. 183; 29 Wis. 400; 45 Ala. 310; 93 Pa. 129; 2 Cooley Taxation (3d ed.) 1153.

Before Bowman, J., Lancaster, March, 1916. Action by H. T. Williams, administrator of the estate of Margaret E. Williams, against the Philadelphia Life Insurance Company and others. From an order sustaining demurrer to the complaint, plaintiff appeals. Complaint referred to, and in the opinion held to state a cause of action, is as follows: 1.

■ Before Hon. F. E. Wieecox, special Judge, Abbeville, February, 1916. Action to foreclose by Hugh Wilson against W. T. Magill and others. From a decree for complainant, the defendant, Anderson Phosphate & Oil Company, appeals. As to rule of priority cite: Adams Ecp, p. 315; Pom. Eq. Juris., sec. 678; Harper’s Eq. 164; Bispham’s Eq. 62. cite: As to two fund doctrine: 3 Pom. Eq.

<p>1. Pleading — Amendment—Matter, of Description. — In an action to recover from seller for an alleged shortage in quantity and quality of cottonseed oil, sold where plaintiff alleged that the car was shipped January 24, 1907, amendment of declaration as to the date the carload of oil was shipped was properly allowed; it not stating a new cause of action.</p> <p>2. Pleading — Reservation of Grounds of Review — Waiver of Objection.- — The objection that plaintiff did not make it appear by affidavits that its pleader had made a mistake in a date alleged in its declaration was waived when defendant’s counsel did not object on plaintiff’s motion in the trial Court to amend.</p> <p>3. Pleading — -Amendment—Propriety.—In an action to recover from seller for a shortage in cottonseed oil sold, where plaintiff alleged the car was shipped January 24, 1907, amendment on plaintiff’s motion to make the pleading state that the oil was sold on such date and shipped later was properly allowed, though operating to bring the cause of action within the date, when, according to the first allegation, it was barred by the statute of limitations.</p>

<p>1. Appeal and Error — Remand—Amendment—Allowance—Discretion of Court. — Where on retrial after appeal plaintiff applies for leave to amend his complaint, the application is addressed to the discretion of the trial Court.</p> <p>2. Appeal and Error — -Review—Discretion of Trial Court — Allowance of Amendments. — Where after two appeals plaintiff applied to the trial Court for leave to make a trial amendment, it was not, it appearing that the issues had been crystalized by appeals, an abuse of discretion on the part of the Court to deny leave.</p> <p>3. Railroads - — ■ Construction ■ — • Injuries — -Actions—Evidence.—In an action against a railroad company for injuries to property of an owner through whose land the right of way ran, where the company admitted its liability for some injuries and an independent contractor was liable for all others, evidence of such injuries was properly excluded.</p> <p>4. Easements — Purchasers of Servient Estate. — A railroad company was granted a right of way through lands, and entered thereon, building its . track. The grant was recorded in the clerk’s office and duly indexed, but was not properly probated as required by law. The railroad company had possession of the right of way, and subsequent owners asserted no rights therein until it was purchased for plaintiff by her husband, an engineer in the employ of the railroad company. Held, that plaintiff could not be treated as a bona fide purchaser without knowledge, and thus, on the ground that the right of way deed was improperly recorded, deny the railroad company’s easement.</p> <p>5. Easements — Rights oe Purchaser — Subsequent Acquisition oe •Land. — Where land was taken by a railroad company under grant of a right of way, a subsequent purchaser from the owner, who granted the right of way, is entitled to no compensation for the lands taken before she acquired title.</p> <p>6. Adverse Possession — Titee—Acquisition of. — Where a railroad company entered into possession of land under a grant of right of way, and the grant was duly recorded, its possession for over 21 years under claim of an easement ripened into adverse title.</p>

<p>Before Sease, J., Winnsboro, September, 1912.</p> <p>Action b)'- William M. Cathcart, as administrator, etc., of the estate of John H. Cathcart, deceased, against John P. Matthews, continued after his death against J. E. Matthews and another, as his executors. Judgment for plaintiff, and defendants appeal.</p> <p>submit: Action cannot be sustained as one of trespass quare clausum fregit: 28 A. & E. Enc. of R. (2d ed.) 573; 59 S. C. 131; 86 S. C. 361-366; 60 S. C. 401. Hither actual or constructive possession essential: 28 A. &. E. Enc. of R. (2d ed.) 573-575; note in 30 R. R. A. (N. S.) 243; 86 S. C. 358; 2 Hill R. 644; 3 N. & McC. 422 and 424; 1 Bail. 306; Rice R. 368; Dudley R. 340; 3 Strob. R. 465 ; 1 McMul. 449; 2. N. & McC. 363; 4 Rich. R. 104; 1 Hill R. 260; 2 Spears R. 451; 60 S. C. 400; 61 S. C. 293; 4 Rich. 105; 3 Hill R. 265. Mere equitable title insufficient: 1 N. &. McC. 369; 79 S. C. 473 ; 88 S. C. 184. Adverse possession: 1 Am. & Eng. Enc. L. (2d ed.) 795. Permissive holding: Code Civil Proc., sec. 126; 1 Cyc. 1039; 35 S. C. 609; 36 S. C. 56 and 322; 42 S. C. 50 and 63; 77.S. C. 129; 78 S. C. 513. Plaintiff’s possession lacks continuity: Chev. L. 205; 14 S. C. 592; 29 S. C. 380; 26 S. C. 224-7; 48 S. C. 45; 50 S. C. 166-7; 64 S. C. 480-488; 69 S. C. 84-5. Matthews established legal title: Civil Code, sec. 3453. Deed takes effect from-delivery: 9 Am. & Eng. Ene. E. (2d ed.) 152; Devlin Deeds, sec. 260-4; 1 Mills 190; 2 Strob. L. 306; 1 Strob. Eq. 347. Record evidence of delivery: 22 S. C. 371; 38 S. C. 397; 81 S. C. 455. Payment of taxes evidence of claim: Tiedeman Real Property, sec. 495; 16 S. C. 143; 78 S. C. 31. Presumption as to possession: Code Civil Proc., sec. 126; 25 S. C. 524; 48 S. C. 28; 65 S. C. 526; 71 S. C. 330. Claim of title from common source: 1 Hill E. 382; 49 Am. Dec. 381; 1 Strob. L. 1; 5. Rich. R. 541; 22 S. C. 133; 25 S. C. 453; 69 S. C. 78; 92 S. C. 187; 95 S. C. 484. Plaintiff barred by statute of limitations: 40 S. C. 168; 50 S. C. 127; 60 S. C. 172; 66 S. C. 293; 72 S. C. 319-320; 78 S. C. 154 and 324. Also by presumption of a grant: 5 Rich. R. 459; 2 Rich. R. 19; 71 S. C. 521; 17 S. C. 482; 4 Rich. R. 103; Riley’s Eq. 102; 2 Rich. Eq. 99; 4 Rich. Eq. 152; 3 Hill 366; 1 Hill Ch. 380; 11 Rich Eq. 152; 31 S. C. 91; 72 S. C. 380; 80 S. C." 110; 36 S. C. 197; 20 S. C. 52; 11 Rich. 430; 14 S. C. 103; 120 U. S. 537; 175 U. S. 510. Breach of trust does not prevent title vesting in the trustee’s grantee: 1 Perry Trusts (lsted.), secs. 334, 335 ; 1 Strob. 45. Rents follow as an incident to the legal title: Perry Trusts (1st ed.), secs. 843, 844; 2 Pom. Eq. Juris., secs. 975, 979, 980; 1 Pom. Eq. Juris., sec. 219; 19 Am. St. Rep. 267; 64 Am. Dec. 197; 72 Am. St. Rep. 160.</p> <p>cite: As to motion for nonsuit: 9.6 S. C. 153 ; 84 S.' C. 299. Issues for jury: 2 McC. 268 and 289; 2 Bail. 321; 2 Hill 495; 3 Strob. 498; 64 S. C. 489; 62 S. C. .195. Possession: Cooley Torts (Student’s ed), sec. 166; 1 Cyc. 987; 1 Am. & Eng. Enc. of E. 227. Trespass quare clausum: 70 S. C. 373; 86 S. C. 358. Common source of title: 92 S. C. 185; 97 S. C. 79; 71 S. C. 520; 62 S. C. 563; 48 S. C. 243; 1 Strob. 1. -</p>

Before Mauldin, J., Dillon, October, 1915.' Action by Frances Fass joining E. Randolph Williams and another, as trustees of the Atlantic Life Insurance Company, as parties plaintiff, against the Liverpool, London & Globe Fire Insurance Company, consolidated with suits by the same plaintiffs against the North Carolina Home Insurance' Company and the Insurance Company of North America.

<p>Before Prince, J., Orangeburg, October, 1915.</p> <p>Action by James L. Parker against the Victoria Real Estate Company. Judgment for plaintiff, and defendant appeals.</p> <p>argue the following exceptions: (1) The Court erred in permitting declarations made by the plaintiff as to his possession, because the Court erred in permitting the plaintiff, Parker, to testify in derogation of his own title in an action in which he was a party plaintiff: 54 S. C. 127, 83 S. E. 388. (2) Because the Court erred in permitting the plaintiff to testify that his solemn deed in fee simple was other than what it appeared to be on its face, and that the deed was made in trust, and allowed him to give oral testimony as to an express trust. (3) Because his Honor erred. in permitting the plaintiff to testify in derogation of his solemn deed given twenty-seven (¿f) years before, and without any explanation or reason why he had not taken any action sooner, and in not holding that the plaintiff was estopped by his own laches. (4) Because his Honor erred, having held that no testimony could be given to show that the deed was other than it appeared on its face to be unless distinct notice had been given to each one in the chain of title, including the Victoria Real Estate Company, and then permitting such testimony to be given before such notice had been proved: 14 S. C. 312; 83 S. C. 339; 1 Cyc. 1039; 77 S. C. 129; 78 S. C. 520; Abbott’s Trial Ev. 638. (5) Because his Honor erred in admitting testimony to prove the deed other than it appeared to be on its face when no notice had been proved to the defendant prior to its purchase of the property, and the defendant stood in the position of a bona fide purchaser for value, and no testimony should have been admitted-affecting its rights under its deed. (8) Because the presiding Judge erred in allowing testimony to the effect that the deed from plaintiff was other than what it purported on its face to be, to wit, a fee simple deed, the plaintiff’s complaint alleging only that he was the owner in fee of the property sued for and not setting out any of the facts upon which he relied for a recovery, to wit, that the said deed' was in trust and of which fact no notice was by the pleadings given defendant, and it was error to allow testimony to sustain such facts which were not set up or alleged in the plaintiff’s complaint, and of which the defendant had no notice. (4) Because the Court erred in not holding that no trust could be created of the land sued for, unless the same was manifested and proved by some writing signed by the party enabled to declare such trust, or else it was utterly void, and the Court erred further in permitting testimony to show a trust created other than by a writing: 78 S. C. 490. (9) Because the Court erred in permitting parol testimony to show that a deed, fee simple on its face, was given in trust, which could only be created by some writing. (11) Because his Honor erred in allowing oral testimony to establish an express trust of real estate, which can only be created by some writing signed by the party to be charged therefor. (7) Because his Honor, the presiding Judge, erred in refusing to charge as follows: “The defendant requests the Court to charge the jury that in this case the deed from Parker to Badham conveyed a title in fee simple without any trusts whatever, which title he could by proper deed convey, because no trust was set out in the deed from Parker to Badham, and, therefore, your verdict must be for the defendant, unless the plaintiff has acquired title by adverse possession since the deed from him: Section 3676, Civil Code 1912, volume I.” (10) That the Court erred in not sustaining defendant’s contention that the plaintiff was estopped by his own laches from any recovery in this action, there being no explanation of the failure to bring the action for twenty-seven (27) years: 83 S. C. 329. (12) Because the plaintiff, having parted with his title, could not rely or set up his own possession as against his grantee and those claiming under him unless and until he had made a positive disclaimer and given notice that his possession was adverse and hostile, and then such possession would only run as to the actual possession of such land as he might be in possession of, there being no constructive possession under such circumstances: 77 S. C. 129.</p> <p>citer-N-y to admissibility of declarations: 16 S. C. 135; 48 S. C. 485; 1 Greenleaf Ev. (15th ed.) 163; Jones Ev. 306, 442 ; 58 S. C. 370; 68 S. C. 106; 19 S. C. Eq. 582; 20 S. C. R. 403; 26 S. C. 310; 33 S. C. 35, 36; 71 S. C. 151. No objection taken to testimony at proper time renders it admissible: 13 Ene. Ev. 118; 13 S. C. 457; 24 S. C. 592. Creation of trust by parol: Perry Trusts (5th ed.), sec. 79; Greenleaf Ev., p. 362; 6 S. C. Eq. 130; 20 S. C. Eq. 363. As to laches: 62 S. C. 89; 64 S. C. 298. Possession as notice: 22 S. C. 32; 23 S. C. 490; 29 S. C. 147; 78 S. C. 499. Proof of fraud: 33 S. C. 35; 58 S. C. 370; 50 S. C. 293; 71 S. C. 280, 285. Proof of collateral agreement: 68 S. C. 106; 26 S. C. 304, 310, 312, 315; 31 S. C. 313, 319; 72 S. C. 362; 94 S. C. 237; 90 S. C. 454; 89 S. C. 73; 79 S. C. 459; 65 S. C. 134; 68 S. C. 523, 527; 61 S. C. 166. Baches: 82 S. C. 266; 43 S. C. 441; 62 S. C. 89; 64 S. C. 298; 90 S. C. 103; 97 S. C. 216. Possession as notice of equity: Civil Code, secs. 2457 and 3543; 86 S- C. 468; 22 S. C. 32; 23 S. C. 490; 29 S. C. 147; 78 S. C. 499. Execution of trust: Civil Code, sec. 3673; 29 S. C. 135; 36 S.' C. 397; 53 S. C. 6; 75 S. C. 15; Perry Trusts (5th ed.) 298, 305, 521; 23 S. C. 274; 18 S. C. 184; 46 S. C. 522; 51 S. C. 271.</p>

Before Shipp, J., Florence, April, 1915. Action by Otis K. Scott against the Atlantic Coast Line Railroad Company. Judgment for plaintiff. From an order granting a new trial, plaintiff appeals.

Before Maurdin, J., Bishopville, August, 1915. Suit by Napoleon B. Smith and others against Martha C. Smith and others. Judgment for plaintiffs, and defendant, Martha C. Smith, excepts and appeals. The exceptions were as follows: His Honor erred, it is respectfully submitted, in the following particulars: First.

Before SeasE, J., Lexington, February, 1916. Action by Marcellq Jefcoat against Pope Jefcoat and others. From a judgment for defendants, plaintiff appeals.

Before Prince, J-, Florence, April, 1915. Action by H. Van Epps and D. Moultrie Epps, copartners trading under the firm name and style of Epps & Epps, against the Atlantic Coast Line Railroad Company. Judgment for plaintiffs, and defendant appeals. cites: As to damages from delay of carrier: 15 Ga. App. 751; Hutchinson Carriers, sec. 651; 109 Mo.

Before Bowman, J., Lancaster, March, 1916. Actions by the Baker-Jennings Hardware Company, by the Sulzberger & Sons Company of America, and by the Brown Manufacturing Company against W. B. Culp.

Before DeVorE, J., Bamberg, November, 1915. Action by J. J. Cleckley against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. cite: As to ditty of passenger to inform himself of schedules, etc.: 19 Am. Rep. 703. cites: 53 S. C. 213 ; 6? S. C. 132; 75 S. C. 144 and 289; 93 S. C. 533; 91 S. C. 71; 96 S. C. 459.

Before Shipp, J., Orangeburg, April, 1915. Action by D. Langley against A. M. Stokes. From an order granting plaintiff’s motion to discontinue, defendant appeals. cites: As to discontinuance: 77 N. C. 271. Counterclaim: 70 S. C. 89; 80 S. C. 459. Objections to discontinuance: 29 N. J. L. 264. cite: 80 S. C. 455; 82 S. C. 15; 90 S. C. 122.

Before Sease, J., Charleston, April, 1915. Suit in equity by Miss Harriott M. Lesesne against Lang-don Cheves and Henry C. Cheves, individually and as trustees under the will of Harriott K. Middleton, deceased, and Alice Middleton, and against Louise G. Logan and others. Judgment for plaintiff, and the trustees and defendant, Alice Middleton, appeal.

Before Mauudin, J., Sumter, June, 1915. Suit by John F. McNair and others against William Alex. Decree of foreclosure and sale, and, after sale to plaintiffs, Bettie Alex, in possession, refused to surrender possession. On application for rule to show cause, and return thereto, plaintiffs were ordered let into possession, and Bettie Alex appeals. submits: 1.

Before Shipp, J., Bennettsville, March, 1916. Action by the Merchants National Bank of Raleigh against C. P. Hodges. From an order striking out his answer as sham and frivolous, defendant appeals. The former cites: 43 S. C. 25; 27 S. C. 164; 9 S. C. 438. cite: 37 S. C. 607; 46 S. C. 95, 96.

<p>Before Bowman, J., Columbia, December, 1915.</p> <p>Action by Andrew J. Mobley and others against Billa C. Jackson and others. From a judgment, dismissing the complaint, plaintiffs appeal.</p> <p>submit: The will is to be construed as an entirety: 59 S. C. 138; 82 S. C. 210; 42 S. C. 345. Construing the second and third clauses of the will alleged in the complaint it is plaintiffs’ contention that upon the purchase of thei premises in question by the■ then sole acting executor from funds of the estate in 1873, although the title to the premises was taken in the name of the executor as such, theft immediately the premises so purchased became a part and parcel of the estate of N. P. Bynum, deceased, and subject to the provisions of his will to the same extent as though he had possessed the land and devised it specifically: Bail. Eq. 236; 25 S. C. 149; 46 S. C. 230; 51 S. C. 271. The devise of the use of the premises to Bmma J. during het* natural life or as long as she remained a widow gave her a legal life estate or estate during widowhood in the premises: Schouler on Wills (2d ed.), sec. 503; 2 Jarman on Wills, page 404; 90 Me. 463. The rest and residue of his estate disposed of under the third clause of his will was what remained of his estate, exclusive of the lot in question, and this is the construction we contend for: 2 DeS. Eq. 127; 1 Hill Eq. 94; 4 Rich. Eq. 25; 1 Strob. Eq. 114; 23 S. C. 259; 82 S. C. 211; 44 L. R. A. (N. S.) 810; 18 A. & E. Enc. of R. 725‘; 9 Mise. (N. Y.) 653; 83 Hun. 612. As to effect of power: 68 S. C. 260; 43 S. C. 266; 51 S. C. 366; 36 Ohio 17; 15 Gray 503; 2 Rich. Eq. 137; 11 Rich. Eq. 157, 195, 196; 36 S. C. 384, 398; 71 S. C. 426.</p> <p>submits: On termination of life estate, the premises became part of the residuary estate: 32 S. C. 72; 31 S. C. 408; 87 S. C. 55; 1 Strob. Eq. 129. As to sale by executors, cite: 18 Cyc. 331; 1 Bail. 59; 58 S. C. 382; 50 N. J. L. 636; 9 S. C. 492; 27 S. C. 591. Title in trustee: 53 S. C. 6; 4 Rich. Eq. 485; 31 S. C. 23. Vested rights: 18 S. C. 339.</p>

Before Prince, J., Orangeburg, October, 1915. Action by Ellen D. Sharpe, individually and as administratrix of the estate of Jefferson D. Sharpe, deceased, against J. Benjamin Sharpe. Judgment for defendant, and plaintiff appeals. The following is the testimony in the record referred to in the opinion, showing the circumstances and what was said and done in reference to the attempted gift of the $1,500 :• Q. Did he say anything about some money he had in bank? A. Yes, sir.

Before Mauldin, J., Columbia, February, 1916. Action by Green Williams against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant excepts and appeals. The exceptions were as follows : Exception 1.

<p>1. Mandamus — Demurrer—Facts Admitted. — A demurrer 'to a petition for a writ of mandamus admits the truth of all facts alleged and of all facts which can by fair and reasonable intendment be inferred from those alleged.</p> <p>2. Carriers — Furnishing Cars — Implied Contracts. — A railroad company built a sidetrack on its right of way to accommodate an oil mill, and shortly afterwards a sawmill was built near it between the oil mill and the main line. For several years it furnished cars on the sidetrack for the sawmill as well as other mills, and still furnishes cars for the use of the oil mill. It could place cars on the sidetrack for the use of the owner of the sawmill at a saving of time, labor, and money to itself, and it had no adequate and reasonable facilities for loading lumber on another sidetrack where it offered to furnish cars. Shortly before its refusal to furnish cars on the sidetrack, it promised through its roadmaster to extend the sidetrack for its own and the sawmill owner’s convenience. Relying on the previous course of dealing and being led to believe by the company that it would continue to furnish cars, the sawmill owner expended a considerable amount in repairs and improvements to the mill, of which, and also of the fact that he had acquired large quantities .of timber to manufacture into lumber for shipment, the company had notice. If the company was not required to furnish cars, the mill owner would be compelled to go out of business, and to sacrifice his property and industry. Held, that the facts showed an implied contract by the railroad company to continue to furnish cars on the sidetrack for the shipment of the mill owner’s lumber, and it was, therefore, bound to do so.</p> <p>3. Contracts — Implied Contracts. — The law implies a contract between persons where the ordinary course of dealing between them, considered in the light of all the circumstances, reasonably warrants the inference that they mutually intended to contract.</p> <p>4. Carriers — Shipping Facilities — Reason for Failure to Furnish. — • Where a railroad company owes.a party no duty to furnish him cars on a sidetrack, its reasons for its refusal to so furnish them is immaterial.</p> <p>Note — This case was heard at the November term, 1912, before Mr. Justice Gage was elected Associate Justice. Its earlier publication was inadvertently delayed. — Reporter.</p> <p>As to mandamus to compel private corporation to perform duties arising out of contract, see notes in 8 A. & E. Ann, Cas. 410, 12 A. & E. Ann. Cas. 112, A. & E. Ann. Cas. 1912c, 890.</p> <p>5. Mandamus — Demurrer—Permitting Piling oe Answer. — Where a petition for a writ of mandamus to compel a railroad company to furnish cars on a sidetrack showed an implied contract by the company to so furnish them, the company upon the overruling of its demurrer to the petition would be allowed to answer only on condition that it perform the implied contract pending the hearing and decision on the merits.</p>

Before Wieson, J., Columbia, April, 1915. Action by A. B. Comer against the Atlantic Coast Cine Railroad Company. From a judgment for plaintiff, defendant appeals. submit: There was no evidence showing negligence, and cite as to momentary stop and then starting before final stop to discharge passengers: 55 S. C. 389; 77 S. C. 397; 127 Am. St. Rep. 509; 7 C. R. A. (N. S.) 1076; 60 N. W. 148; 41 Mo.

Before Shipp, J., Florence, July, 1915. Action by F. G. Bass against the Western Union Telegraph Company. 'From a judgment for plaintiff, defendant appeals. cite: As to evidence to show agency: 72 S. C. 251. Explanation of delay: 87 S. C. 174; 77 S. C. 148; 84 S. C. 54. Measure of 'damages: 70 S. C. 16; 74 S. C. 557; 60 S. C. 201; 53 S. C. 410. Speculative damages: 76 S. C. 345; 40 S. C. 524; 65 S. C. 490.

Before Moore, J., Abbeville, April —, 1915. Action by Frank and John Kerr against A. Seldon Ken.nedy, as executor of the last will and testament of Mrs. Josephine F. Sloan, deceased, and others. From a decree for plaintiffs, defendants appeal. cite: As to degree of proof necessary to establish the alleged contract: 3 S. C. R. 195; 48 S. C. 86; 57 S. C. 60; 57 S. C. 559 ;73 S. C. 156 & 195; 22 S. C. 454, 457; 100 S. C. 348, 349;.Ill Am. St. Rep. 496; 99 Am.

Before Shipp, J., Sumter,-. Z. E. Highsmith was convicted of contempt in violating an injunction issued against him in an action by W. A. Thompson, and appeals. cites: As what constitutes contempt: 65 Ind. 512. Jurisdiction at chambers: 49 S. C. 226; 70 S. C. 288. Public policy affecting contract: 91 Ill. App. 181; 45 Iowa 106; 60 N. H. 198. cites : As to validity and construction of contract: 20 Cyc. 128, 1281; 30 S. C. 412; 9 S. E. 422; 4 S. C. 401; 9 Cyc. 25; 523 to 527.

Before Sease, J., Lexington,--. Action by Charley Bush against the Weston & Brooker Quarry Company. There was a verdict for plaintiff, and from an order overruling defendant’s motion for change of venue, for refusal of motion for nonsuit, and from the judgment, defendant appeals. cite: As to waiver of right to change of venue: 74 S. C. 438; 69 S. C 27-8; 74 S. C. 69. Place of business: 79 S. C. 555; 47 S. C. 387; 65 S. C. 326.

Before Maurdin, J., Columbia, March, 1916. Action by the Guaranty Trust Company of South Carolina against R. Y. Kibler and others. Judgment for plaintiff, and defendant, Pearle Kibler, appeals.

Before Bowman, J., Bishopville, March, 1915. Action by the International Harvester Company of America against E. D. Law. From an adverse judgment, plaintiff appeals. cite: As to evidence of break of machinery after period of warranty: 69 S. C. 100; 24 S. C. 124 to 129; 46 S. C. 411; 1 Greenleaf Ev., sec. 275; 86 S. C. 489; 86 S. E. 350; 153 N. W. 1059.

<p>Before Prince;, J., Marion, Spring term, 1915.</p> <p>Action by Robert Kickbusch and others against Charles P. Ruggles. From an order requiring the complaint to be made more definite and certain, and for a bill of particulars, and from the sustaining of a demurrer to the complaint, plaintiffs appeal.</p> <p>cites: As modification of order by succeeding Circuit Judge: 97 S. C. 457. As to motion to strike out: 48 S. C. 227. Renewal of: 51 S. C. 33; 58 S. C. 152; 73 S. .C. 9. Remedy by motion to make more definite: 82 S. C. 170; 63 S. C. 525; 66 S. C. 588; 74 S. C. 473. Waiver: 53 S. C. 580. Bill of particulars only in actions upon accounts: Code Civ. Proc. 208. Preliminary affidavit: 2 A. & E. Enc. of L. (1st ed.) 248; 3 Ene. P. & P. 521; 31 Cyc. 585. Not required in cases for fraud: 75 S. C. 338; 100 N. Y. S. 192; 114 App. Div. 791. Application for redress within corporation should not be required: 10 Cyc. 993; 23 Am. St. Rep. 411; 24 Id. 625. Damages recoverable: 70 S. C. 108; 94 S. C. 312. Waiver of objection to misjoinder: 89 S. C. 426.</p> <p>cites: As to bill of particulars in actions for tort: Code Civ. Proc., sec. 208; N. Y. Code 158; Circuit Rules of Court 4; Miller’s Compilation 34-38; 68 S. C. 326; 2 Waite’s Practice 348; 6 Boswell 681; 5 Wait’s Pr. 21; 6 L. R. A. 851; 56 L. R. A. 810. As to demurrer: 24 S. C. 40. Action by stockholders: 44 S. C. 46; 113 U. S. 302; 48 S. C. 82; 39 S. C. 44; 60 S. C. 199; Taylor Private Corporations, secs. 690, 696, 697; and submit: It is a well settled principle that the wrongs if committed by a director or directors who occupy the fiduciary position of trustees, are wrongs to the corporation as distinguished from wrongs to an individual stockholder of the corporation: Pomeroy’s Equitable Jurisprudence, 3d edition, par. 1088, 1094; 95 N. E. 929; 149 U. S. 815; 68 N. E. 142; 81 Fed. 10; 166 Fed. 822;’ 196 Fed. 544; 102 N. E. 318. (b) In such event, an action at law can not be maintained by a stockholder of a corporation for injury done to his stock and capital by the negligence or misfeasance of directors, nor because of a conspiracy on the part of directors to wrong and injure the corporation, even although such action thereby indirectly injures the plaintiff’s share and interest in the corporation: 46 Am. Dec. 693; 10 Cyc. of Law & Practice 964, note 76; 70 N. E-, 444; 12 N. E. 58; cited with approval in 44 S. C. 46; 53 Tex. 56; 26 Conn. 456; 44 N. J. Law Rep. 462; 102 N. E. 318; 88 Mass. 55, 56; 149 U. S. 178; 97 111. App. 503; 59 Fed. 992; 63 Am. Dec. 67. (c) If the corporation or its directors refuse to institute suit for the recovery of such injuries, the right may accrue to a stockholder to sue, but it is important to observe that such right exists in the stockholder only on behalf of all the stockholders and creditors of the corporation by bill in equity for damages for a breach of trust, and the amount recovered constitutes a sum for distribution among all of the stockholders as their interests may appear: 104 U. S. 427; Machen on Corporations, par. 1172; Cook on Corporations, par. 734; page 2427, also page 2431; Pomeroy’s Eq. Jurisprudence, ■ par. 1094, page 2121, par. 1095; 181 N. Y. 121 (73 N. E. 562); 96 U. S. 655; 53 Tex. 56 and 88; 6 Allen 53; 63 Am. Dec. 674; 41 Am. Dec. 368; Angelí & Ames on Corporations, section 312. (d) Of course, a director may become liable to a stockholder individually, as, for instance, by the conversion or tortious taking of his certificate of stock, trespass on the case for refusing tó make a transfer of stock on a proper occasion, assumpsit for a dividend declared or false representation made by a director to a stockholder, whereby the director has been able to purchase the stock at less than its value from the stockholder: 46 Am. Dec. 673 ; 77 S. E. 1024 (S. C.). (e) It is important to observe that every suit instituted in South Carolina, in which the plaintiffs have sought to hold a director for mismanagement or of fraud, such as is presented in plaintiff’s petition, have been suits in equity and not at law: 17 S. E. 258; 26 S. E. 1; 31 S. E. 498; 69 S. E. 604; 64 S, E. 398. IV. (a) Inasmuch as a shareholders bill is filed in the right of the corporation and on behalf of all stockholders, the cases hold that a shareholder can not join in such suit an individual claim against the company, or an individual claim against the director charged with the fraud: Machen on Corporations, sec. 1182; Cook on Corporations, par. 734; note 3, page 2431; note 2, page 2432; 94 N. Y. App. Div. 383; 78 Eed. 526; 91 N. Y. Supp. 477; 108 Fed. 909; 1Q1 N. Y. Supp. 199; 55 N. H. 218. (b) Nor is such action authorized by the jumbling statute under the lazvs of South Carolina, because section ip4, chapter II, vol. II of the Code of South Carolina, ipi2, provides that the defendant may demur to the complaint when: (5) Several causes of action have been improperly united; or, (6) That the complaint does not state facts sufficient to constitute a cause of action. And section 218 provides, that while the plaintiff may unite in the same complaint several causes of action, whether they be such as have been heretofore denominated, legal or equitable, or both, where they all arise out of: (2) Contract, express or implied; or, (4) Injuries to character; or, (7) Claims against a trustee, by virtue of a contract, or operation of law. The statute further provides that such causes of action, so united, must all belong to one of these classes, and must affect, all the parties to the action, and not require different places of trial, and must be separately stated. Cite: As to effect of the judgment in action between stockholders and corporation: 26 Conn. 456; 12 Mete. 371; 102 N. E. 318; 53 Tex. 56; 81 Fed. 10; 185 Mass. 422; 44 N. J; E. 462 ; 68 N. E. 143; 63 Am. Dec. 672; 40 Me. 415; 149 U. S. 178; 70 N. E. 444; 46 Am. Dec. 693; 88 Mass. 55, 56; 97 111. App. 503; 59 Fed. 992; 45 Fed. 668; Cook Corporations, par. 734, p. 2427; Machen Corporations, par. 1172; 166 Fed. 820; 49 N. J. E- 462 ; 68 N. E. 143. Remedy in equity: 17 S. E. 258; 26 S. E. 1; 31 S. E. 498; 104 U. S. 829; 69 S. E. 604; 64 S. C. 398; 77 S. E. 1023. Joinder of causes of action: 24 S. C. 39; 68 S. C. 257; 82 S. C. 562; 43 S. C. 221; Machen Corporations, par. 1182; 78 Fed. 526, 529; 91 N. Y. Supp. 477; 99 N. Y. Supp. 692; 101 N. Y. Supp. 199, 202; 108 Fed. 909. As to res adjtidicata: 1 Rich. Eq. 361; 23 Cyc. 1232, note 69.</p>