Volume 106 — South Carolina Reports

Before Shipp, J., Florence, Summer, 1915. Action by H. W. Byrd against the Atlantic Coast Bine Railroad Company. From a judgment for plaintiff, defendant appeals. On dr about February 9, 1915, the plaintiff in this action applied to the freight agent of defendant at Coosawhatchie, ■ South Carolina, for permission to ship over its line to Florence, South Carolina, certain machinery, weighing, subject to correction, 10,900 pounds. None of the machinery in the car was crated.

Before Bowman, J., Sumter, April 7, 1915. Action by Henry J. Harby against Thomas Wilson. From a judgment for defendant, plaintiff appeals. The following are the contract and letter referred to in the opinion: State of South Carolina, County of Sumter. By virtue of the contract made and entered into this 23d day of August, 1913, by and between Harby & Co., of Sumter, S. C., parties of the first part and Thos.

Before Moore, J., Anderson, December, 1915. Action by G. E. Turner against the Blue Ridge Railway Company. Judgment for plaintiff, and defendant appeals. submit: No fact will be considered not stated in case: Rule 9; 58 S. C. 474; 85 S. C. 532. Exceptions necessary: 35 S. C. 473; 48 S. C. 355; 53 S. C. 304. Contradicting witness as to collateral matters: Wigmore Ev., sec. 42; 52 S. C. 536; 1 Hill 250; 22 Tex.

<p>1. Tender—Wrongful Refusal—Duty to Care for Goods.—Where a tender of goods is refused, though wrongfully, the tenderer becomes the bailee for the tenderee, and must take care of the property at the risk and expense of the tenderee.</p> <p>2. Damages—Duty to Minimize—Refusal of Tender of Goods.—The principle that one injured by the negligence of another must reasonably exert himself to minimize his damages is not applicable to the case of a tender of goods wrongfully refused, so as to place any duty on the tenderee on the tenderers’ failing in their duty of taking care of the goods, because, the goods being in the tenderers’ possession, the tenderee cannot interfere therewith without invading their possession.</p>

Before Shipp, J., Bishopville, December, 1915. Action by Waddy T. Duncan, Jr., by his guardan ad litem. Waddy T. Duncan, against T. H. Clarke and another. From a judgment of nonsuit, plaintiff appeals. cites: Words of inheritance unnecessary in trust deeds: 46 S. C. 522; 15 S. C. 278; 35 S. C. 314; 37 S. C. 309; 36 S. C. 27. Trust executed: 85 S. C. 373; 78 S. C. 143.

<p>1. Master and Servant—-Injury to Third Person-—Liability op Master—-Torts op Servant.—In an action by plaintiff against a railway, its freight agent, and two assistant freight agents, for damages from the bite of a cat allowed to be on the railroad’s premises while plaintiff was there on business, alleging that it was known by the defendants to be vicious, that it had rabies, and that plaintiff suffered the administration of Pasteur’s treatment to prevent hydrophobia, a directed verdict for the agent, leaving the liability of the others to the jury, which returned a verdict against the railroad alone, could not stand, where no delict of the company was proved other than through the assistant agents.</p> <p>2. Master and Servant — Injury to . Third Persons — Respondeat Superior—Verdict.—Such verdict could not be sustained, where the railroad’s liability was predicated solely upon the conduct of its agents under the doctrine respondeat superior, since if the railroad was liable to the plaintiff, the agents whose wrongful acts caused the injury were liable over to it for the amount it would be compelled to pay on the verdict, of which remedy the judgment of acquittal deprived the railroad.</p>

Before Rice, J., York, January, 1916. Action by Laura E. Parish against the Town of York-ville. Judgment for plaintiff, and defendant appeals. cites: As to burden of proof: 46 Am. St. Rep. 49. Estoppel: 33 S. C. 178. License revocable: 12 Me. 222; 53 Me. 506; 43 Mass. 520; 60 Mass. 154. License coupled with an interest: 23 S. C. 16. cite: 96 S. C. 24. Plaintiff’s rights as lower riparian owner violated: Wood, Nuisances, secs. 427, 579; 81 Am.

Before Moore, J., Walterboro, August, 1915. Action by W. G. McCabe, Jr., and W. F. Gray, copartners, trading under- the firm name of W. Gordon McCabe & Co., against the Colleton Mercantile & Manufacturing Company.

Before Rice, J., Manning, Fall term, 1915. Action by Charles F. Middleton and others against David Devi. Verdict for defendant was set aside, and he appeals.

Before Moore, J., Columbia, May, 1915. Action by W. B. Guimarin and another against the Southern Life & Trust Company, as receivers of Central Carolina Construction Company, and Southern Life & Trust Company. From a judgment for plaintiffs, defendant appeals.

Before DeVore, J., Bamberg, November, 1915. Action by the Continental Insurance Company and others against Seaboard Air Tine Railway. Judgment for plaintiffs, and defendant appeals. cite: As to effect of judgment on former appeal: C. C. Rule 77; 96 S. C. 346; 98 S. C. 466. cite: 17 S. C. 189; 33 S. C. 504; 52 S. C. 171; 81 S. C. 518; 84 S. C. 196; 102 S. C. 347; 89 S. C. 400.

Before Bowman? J., Columbia, October, 1915. Action' by the Westchester Fire Insurance Company against J. H. Bollin and A. W. Bpllin, doing business under the firm name of J. H. Bollin & Sons. Judgment for the plaintiff on directed verdict, and defendants appeal. cites: As to proof of corporate capacity: 31 S. C. 309; 35 S. C. 821; 73 S. C. 503; 79 ,S. C. 565.

<p>1. Principal and Agent—Compensation—Contract.—Under a contract of employment as traveling representative at a salary based on producing- a business of 1,500 tons, and commissions on tonnage shipped to his customers over and above that amount, sales to be made subject to the employer’s approval, the commissions depended upon the sales actually accepted and approved, or the business produced, and not on the goods delivered.</p> <p>2. Customs and Usages-—-Evidence.—While custom may be relevant in doubtful cases, a general custom of the fertilizer trade was irrelevant, where there was no doubt at the time of the trial as to the terms of contract sued on.</p> <p>3. Principal and Agent—Action por Commission-—Evidence—Letter. —In a salesman’s action upon a contract for a salary based on a certain amount of sales, and for commissions for excess sales, the employer’s letter offering employment on certain terms, being simply the act of one party to the contract, was irrelevant.</p>

Before Moore, J., Lancaster, May, 1916. Application by Septimus Massey and others for an injunction against J. L. Glenn and others, commissioners. Held: that it frequently becomes necessary to redeclare this fundamental maxim.

<p>Before Gary, J., Lexington, September, 1915.</p> <p>Proceeding to prove the will of Mrs. Emma E. Perry. From a decree of the Circuit Court dismissing the appeal from the order of the probate Judge refusing probate, proponents appeal.</p> <p>Judge Gary filed the following decree in the Court below :</p> <p>Upon notice to prove the will of Mrs. Emma E. Perry in solemn form, a paper purporting to be her last will and testament was offered for probate. Considerable evidence was offered by both the proponents of the will and by those who resisted its being admitted to probate. The probate Judge decided against the proposed will, holding that undue influence had been exerted in procuring it to be made. The proponents of the will appealed from this judgment, and the matter is now before the Circuit Court. Ordinarily a trial de novo should be had, but by agreement of counsel the questions are before me for determination upon the evidence offered before the probate Court.</p> <p>Two questions, besides the questions as to the admission of evidence, are now before me: First. Was the proposed will void for incapacity on the part of the testator, Mrs. Emma E. Perry? Second. Is the signature to the proposed will the true signature of Mrs. Emma E. Perry, or is it a forgery? I shall consider these questions in the inverse order of their statement.</p> <p>In reaching a conclusion I have been very much handicapped by reason of the fact that I am called upon to determine grave questions of fact without having before me the witnesses who are called to establish them. I am deprived of the opportunity of seeing and observing the' demeanor of the witnesses on the stand—a most important privilege when called upon to determine whether or not witnesses are testifying the,truth. There is little, if any, conflict as to the law.</p> <p>Realizing the full import of my conclusion as to the facts, I am constrained to find that the signature to the proposed will is not the true signature of Mrs. Emma E. Perry. A comparison of this signature with those conceded to be hers will demonstrate it. It would be useless for me to specify the many points of difference, for a comparison and inspection alone will reveal them. Nor will it serve any useful purpose for me to point out the many and various circumstances that impel me to my conclusion. The result is what is desired. I will, however, give a few of the circumstances that have had weight with me: •</p> <p>It is rather remarkable, and a circumstance which I have considered, that in a town full of good people there should, have been selected as subscribing witnesses to the will three men whose reputation for truth and veracity is such that the mayor and several other citizens who know them should be willing to swear that they are unworthy of belief. Generally people are loath to-testify so harshly as to their fellow citizens, and when there is such" unreserved testimony along this line it is significant.</p> <p>The letters written by Mrs. Perry to her sisters about three months before the proposed will is said to have been dictated by Mrs. Perry show unmistakably that Mrs. Perry had no love for some who are large beneficiaries under the proposed will, and that she thought they had no love for her and were trying to get her property at her death. Whether this was true or not makes no difference. In the absence of any evidence tending to show that she had been convinced that she entertained an erroneous view of things, we must conclude that she continued in the same frame of mind. If she did, it was most unnatural for her to prefer those about whom she felt so strongly above her own sisters and brothers, for whom she seemed to have a real affection.</p> <p>In reaching my conclusion, which was most reluctant, I have attached importance to the testimony o'f the trained nurse. She is supposed to be disinterested. A few hours before it is claimed the will was signed, she was discharged, notwithstanding the fact that the patient was no better and still very ill. She was called again, and remained with Mrs. Perry until the latter’s death. No reason has been suggested why she would pervert the facts as to Mrs. Perry’s condition as to mind and body. Her testimony alone would indicate physical and mental incapacity on the part of Mrs. Perry to make a will.</p> <p>In view of all the testimony, and a careful rereading of it, I hold that the proposed will is not the will of Mrs. Emma E. Perry. Even if Mrs. Perry wrote her name, as is alleged, I hold that her act was not the result of her own will and desire, but that at the time she was not possessed of sufficient mental capacity to know what property she had or to whom she desired it to go at her death.</p> <p>It is therefore hereby ordered, adjudged and decreed that the appeal herein be dismissed, and the case remanded to the probate Court for such action as may be deemed proper.</p> <p>cite: As to character of proceeding: 74 S. C. 189; 82 S. C. 40; 86 S. C. 470, 477. As to proof of testamentary capacity: Page on Wills, 94, 97, 98; 7 Rich. 497; 50 S. C. 95, 105; 40 Cyc. 1004, 1008, 1009, 1011; 1 Bailey 92; 19 Am. Dec. 656.</p> <p>submit: Questions of fact in law cases are not reviewable on appeal: 74 S. C. 191.</p>

<p>1. Commerce—Intoxicating LiauoRS—Interstate Commerce.—Interstate shipments of intoxicating liquor consigned to the shipper with order to notify were intended by the party to be notified for unlawful use. The shipments were held by the carrier for some time pending directions by the party notified, who was allowed to determine time of delivery. Held that, notwithstanding the interstate character of the shipments, and rulings that under the Wilson Act (act August 8, 1890, c. 728, 26 Stat. 313 [U. S. Comp. St 1913, sec. 8738]), liquors transported from one State to another do not lose their character as an interstate shipment until arrival at their destination and delivery to the consignee, the liquors became subject to the local laws upon retention by the railroad company for an unreasonable time; it being deemed on grounds of public policy that there was a constructive delivery to the person notified.</p> <p>2. Appeal and Error—-Review—Harmless Error.—Errors not prejudicial and which could not reasonably be supposed to have affected the result are no ground for reversal.</p>

Before Bowman, J., Columbia, October, 1915. Application for mandamus by Thomas F. Brennen against the Southern Express Company. From a judgment dismissing the complaint, plaintiff appeals. cite: As to right to use and import, receive and possess intoxicating liquors: 55 S. C. 207 and 247; 170 U. S. 438 ; 5 How. 504, 583; 28 Tex. Crim. 295; 154 Ky. 471; 133 Ky. 50; 164 Ala. 599; 33 W. Va. 141, 151; 163 Ky. 227; Freund Police Power, secs. 453, 454.

<p>Mortgages — Foreclosure—-Necessary Parties.—In suit foreclosing a mortgage, where it appeared that in the deeds of the property to the mortgagor from her deceased husband, the habendum read, “Unto the said L. (mortgagor) during her natural life, and at her death to be equally divided between the body issue of H. P. (grantor) and L.,” and to “her heirs and assigns forever,” and that some of their children were living at the date of the deeds and were still living, such children were parties necessary to be brought in under section 171 of Code Civ. Proc. 1912, as to bringing in parties necessary to the determination of a controversy.</p>

Before Hon. C. J. RamagS, special Judge, Greenwood, October, 1915. Action by-James W. Callison against Charleston & Western Carolina • Railway Company. From a judgment for plaintiff, defendant appeals. submit: I. The plaintiff must not only show negligence or wilfulness by the defendant, but also that the injury complained of was the result of such negligence or wilfulness: 63 S. C. 271; 21 S. C. 466; 78 S. C. 193; 90 S. C. 42; 81 S. C. 193; 81 S. C. 100; 33 S. C. 198. II.

<p>1. Sales—Breach op Warranty—Contracts—Construction.—A contract for sale of machinery, by which the seller agreed- to correct “any defects of labor or material which might develop within 30 days,” covers latent as well as patent defects, • and the purchaser cannot recover for breach of warranty as to latent defects discovered at any time within six years after original use.</p> <p>2. Sales—Breach op Warranty—Replacing Defective Parts—Reasonable Time.—Under a contract for sale of machinery, by which the seller agrees to correct defects discovered within 30 days, he is entitled to a reasonable time within which to replace the defective parts, and is not guilty of breach unless he fails to correct within a reasonable time.</p> <p>3. Sales—Breach of Warranty—Replacing Defective Parts—Reasonable Time—Question for Jury.—The question what constitutes a reasonable time for correction of defects is for the jury.</p> <p>4. Sales—Breach op Warranty—'Damages.—The purchaser is entitled to recover only such damages as proximately result from failure to correct defects within a reasonable time, and after due notice.</p> <p>5. Sales—Breach of Warranty—Evidence—Admissibility.—The purchaser was entitled to recover all defects resulting within 30 days, and all damages resulting therefrom after a lapse of sufficient time to correct them; the liability benig fixed at such time.</p> <p>6. Sales—Breach op Warranty—Duty to Minimize Damages.—It was the purchaser’s duty to reasonably exert itself to minimize damages, and such as might have been averted are not proximate and cannot be recovered.</p>

In the Original Jurisdiction. Proceeding by the State of South Carolina, on the relation of Leroy Springs and others, against Luther Ellison and others. cite: As to duty of respondents to protect themselves: 2 Strob: Eq. 154. Cumulative voting for directors: Const. 1895, art. IX, sec. 11; Civil Code, sec. 2787; 232 Pa. St. 53; Am.

Before Moore, J., Lexington, February, 1916. Action by Mrs. Minnie Arthur Rish, administratrix of the estate of Henry V. Rish, deceased, against the Seaboard Air Line Railway.

Before Prince, J., Hampton, February, 1916. J. K. Shuman, being convicted on manslaughter, appeals. Defendant’s first and second exceptions, referred to in the opinion, were as follows: (1) Because his Honor, the presiding Judge, erred in charging the jury as follows: “And you must be satisfied from the greater weight of the evidence that he did believe that it was necessary; that there was open to' him no other apparently reasonably safe way of saving himself.

Before Prince, J., Hampton, February, 1916. Action by R. C. De Roach and another against the Southern Railway Company. From a judgment for plaintiffs, defendant appeals. cite: As to cause of action for delay: 240 U. S. 34. As to measure of carrier’s liability: 240 U. S. 632 and 612; 241 Ü. S. 319; 109 N. E. 281; 89 S. E. 655. cites: As to punitive damages: 60 S. E. 405 ; 88 S. E. 269.

Before Gary, J., Edgefield, October, 1915. Action by Kate M. Adams against the Georgia-Carolina Power Company. From a judgment denying the motion of plaintiff to cancel a deed from plaintiff to defendant upon return of the consideration, plaintiff appeals. cite: As to power to decree equity: 139 U. S. 216.

<p>Before Rice, J., Chester, November, 1915.</p> <p>Action by Willie Spence against the Southern Railway Company. From a judgment for plaintiff, défendant appeals.</p> <p>cite: Code Civil Proc., secs. 361, 365, 409 and 412; Civil Code, secs. 4204, 4207 ; 25 S. C. 243 ; 44 S. C. 376; 41 S. C. 206; 79 S. C. 388; 95 S. C. 217; 22 S. C. 313; 79 S. C. 389; 37 S. C. 159 and 445; 41 S. C. 206; 43 S. C. 262; 39 S. C. 388; 93 S. C. 316; 95 S. C. 217. As to. jurisdiction: 225 U. S. 243 ; 237 U. S. 121; 240 U. S. 632; 235 U. S. 651.</p> <p>cite: As to prevailing party: 41 S. C. 206; 44 S. C. '376; 79 S. C. 388; 37 S..C. 417; 39 S. C. 465; 42 S. C. 329; 95 S. C. 217; 93 S. C. 316; 19 S. C. 455. Jurisdiction: 90 S. C. 475.</p>

Before Hon. H. P. Green, special Judge, York, August, 1915. Actions by the National Union Bank of Rock Hill and others, and the First. Trust & Savings Bank of Rock Hill and others, against Harry E. Neil, as Treasurer of York County. From a judgment for plaintiffs, defendant appeals. cites: As to method of taxation: Civil Code 1912, secs. 341 to 358; Const. 1895, art. X, sec. 5.

Before Moore, J., Columbia, July, 1915. Actions by the Carolina National Bank of Columbia against Prescott B. Spigner, treasurer of Richland county. Held: and owned by the said plaintiff bank; that the bonds mentioned and described in .the complaint have not been assessed for taxation, and no taxes have been levied thereon against the plaintiff bank, no taxes having been assessed and levied against the bank except the taxes upon its real estate as required by. law.

Before Rice, J., Winnsboro, Fall term, 1915. Action by W. J. Shelton against the Southern Cotton Oil Company. From a judgment for defendant, plaintiff appeals. cite: As to relation of landlord and tenant: 44 S. C. 462; Civil Code 3497 and 3499; Code Civil Proc., sec. 131; 1 N. & McC. 369-371; 4 Rich. I,. 590; 55 Am. Dec. 770; 41 S. C. 136. Motion for new trial: 19 S. C. 491; 21 S. C. 550; 45 S. C. 529.

Before Memminger, J., Sumter, July, 1916. Action by P. D. Jennings against P. O. Jennings. There was judgment against defendant, and he appealed, but the original notice of appeal, on which the indorsed proof of service, was lost, and thereafter found, and defendant moves to be allowed to perfect his appeal.

<p>1. Compromise and Settlement—Exemption prom Liability-—Contract After Injury—Federal Employers' Liability Act.—Federal Employers’ Liability Act, as re-enacted in 1908 (Act April 22, 1908, c. 149, sec. 5, 35 Stat. 66 [U. S. Comp. St. 1913, sec. 8661]), declaring void any contract, the purpose of which is to enable a carrier to exempt itself from liability created by the act, refers only to contracts before an injury, and does not prevent a contract of settlement.</p> <p>2. Release — Injury—Setting Aside — False Representations.—For false representations of a railroad’s surgeon as to the extent of an employee’s injury, he failing to exercise due care in ascertaining the facts on which he based his opinion as to the condition of the injury, a release of the company’s liability, thereafter obtained by the claim agent and signed by the employee to get further employment, as the surgeon knew would be necessary, may be set aside, the employee in signing having acted on the surgeon’s representations.</p> <p>3. Master and Servant—Injury—Assumption of Risk—Evidence.-—• Evidence, in a servant’s action for injury to a brakeman in turning a switch, then breaking or theretofore broken, held not to show plain, open, and obvious defect, as regards assumption of risk.</p> <p>4. Master and Servant—Injury—Negligence-—-Evidence.—Evidence ■ of the master’s negligence in a brakeman’s action for injury in turning a switch, then breaking or theretofore broken, held sufficient to go to the jury.</p>

Before Moore, J., Lexington, February, 1916. Action by T. L. Flarman against the Southern Railway Company. Judgment for plaintiff for actual and punitive damages, and defendant appeals. cite: As to recovery of punitive damages: 89 S. E. 655; 109 N. E. 281; Carmack Amendment, 240 U. S. 34, 612 and 632. cite: As to Carmack Amendment: 95 S. C. 485; 98 S. C. 63; 78 S. C. 56; 99 S. C. 470; 226 U. S. 504. Distinguish: 89 S. E. 655.

Before Smith, J., Columbia, June, 1916. Action by Parham-Thomas-McSwain, Incorporated, against the Atlantic Life Insurance Company. From order setting aside a directed verdict on defendant’s counterclaim and refusing defendant’s motion for a directed verdict on plaintiff’s cause of action, defendant appeals. submit: Order is appealable: 43 S. C. 190; 11 S. C. 134; 34 S. C. 169; 43 S. C. 187; 61' S. C. 1; 24 S. C. 86; 32 S. C. 105. Fraud: 20 Cyc. -20; 10 Rich.

Before Hon. Edw. McIver, special Judge, and Wilson, J., Charleston, January and April, 1916 Action by John E. Seyle, administrator of John H. Seyle, deceased, against the Charleston Terminal Company. Judgment for defendant, and plaintiff appeals. cite: As to burden of proof: 1 Greenleaf Ev., sec. 41; 98 S. C. 381; 100 S. C. 375; 236 U. S. 671. Character of employment: 97 S. C. 50.

Before Moore, J., Greenwood, March, 1915. Leah Freeland was convicted of unlawfully having cocaine in her possession, and she appeals. cites: As to sufficiency of indictment: 2 Hill 133; 1 N. & McC. 91; 54 S. C. 286; Crim. Code 1912, sec. 405; Const, art. Ill, sec. 17; 17 S. C. 462, 463.

<p>Before Wilson, J., Manning.</p> <p>R. B. Mellette, Sr., was convicted in a magistrate’s Court for obstructing a neighborhood road by the removal of a bridge connecting it with a public highway, and from a reversal of the judgment and the dismissal of the prosecution, the State appeals.</p>

Before Bowman, J., Hampton, November, 1914. Action by Hartwell Barnes against the Charleston & Western Carolina Railway Company. After judgment for the plaintiff in the magistrate’s Court, the defendant’s appeal to the Circuit Court was dismissed, and defendant appeals to the Supreme Court. cites: As to jurisdiction. Code Civil Proc. 80, 88, 89. Character of action: 1 Wash-burn Real Property, sec. 15; 12 Rich. L,. 317; 84 S. C. 510; 45 S. C. 313; 61 S. C. 329.

Before Wieson, J., Laurens, May, 1916. Action by John N. Herndon, as administrator with will annexed, of the estate of E. M. Caine, deceased, against Mrs. Rosa I. Caine and others. From a judgment of the Circuit Court, reversing a judgment of the probate Court for the defendants, defendants appeal. cites: As to commissions: Civil Code, secs. 3648, 3655, 3656. Breach of trust: 1 S. C. 218; 18 S. C. 444. Receipts explainable: 1 Bailey 178; 2 McC. 320; 1 Rich. 32.

Before Wieson, J., Union. Action by Evelina Rice, as administratrix of the estate of S. M. Rice, deceased, against Cardoza Hampton. Judgment for the plaintiff, and defendant appeals. The contract on which 'the action was based was as follows: Union, S. C., April 2, 1912.

<p>1. Trusts — Deeds — Construction — Rule.—The legal interest of the trustee in an estate given to him in trust is measured, not by words of inheritance in the deed or will, but by the object and extent of the trust upon which the estate is given, whether it be greater or less than the estate given trustee in the instrument.</p> <p>2. Trusts—Trust Deed—Construction.—Where a deed conveyed an estate in trust to the wife of the grantor for life, with remainder over in fee to the children, the trust was active until the death of the life tenant, but passive as to the remainder to the children, as no active duty rested upon the trustee in connection with the remainder.</p> <p>. 3. Trusts—Trust Deed—Construction.—Although the estate conveyed to the children could not become a vested interest in possession until the death of the life tenant, when the life tenant died the statute executed the use in the children.</p> <p>4. Trusts—Trust Deed—Construction.—Where a trust deed conveyed land in fee for the use of the grantor’s wife and children during the life of the wife, and at her death to go to her children, the use of the word “fee” and the absence of any restrictive words in granting the estate to the children showed an intention on the part of the grantors to dispose of the land in fee, and a child of the life tenant in esse when the deed was executed, but who predeceased his mother, took a vested interest in the land, which upon his death descended to his only child and the only grandchild of the life tenant.</p>

<p>1. Municipal Corporations—“Defect in 'Street”—Statute.—-Statute making city liable for injuries occurring “through a defect in any street” includes keeping street in such physical condition that it is reasonably safe for street purposes.</p> <p>2. Municipal Corporations—Torts—Use of Streets for Racing Automobiles.—A city is liable for personal injuries resulting from permitting the use of streets for racing-and testing automobiles; such streets not being reasonably safe for ordinary street purposes.</p>

Before Bowman, J., Sumter, Spring term, 1915. Action for foreclosure by R. L. Wright against Mary Alice Seale indier own right and as executrix of the last •will and testament of W. H. Seale. From a decree for plaintiff, defendant appeals. cites: As to boundaries and location: 99 S. C. 203; 59 S. C. 133. Tender: 88 S. C. 525. cite: As to location: 99 S. C. 200. Plats: 4Ó S. C. 535.

Before Rice, J., Winnsboro, Eall term, 1915. Action by T. G. Patrick, trading under the firm name and style of T. G. Patrick & Co., against Beverly M. English, as administrator cum testamento annexo of the estate of John G. Mobley, deceaséd. Judgment for plaintiff, and defendant appeals. cites: As to relation of irregular endorser to note before act’of 1914: 41 S. C. 84; 45 S. C. 373; 48 S. C. 309; 63 S. C. 433; 75 S. C. 255.

Before Gary, J., Pickens, February, 1916. Gus Scott was convicted of stealing from the house of another certain cotton seed, and he appeals. cite: As to proof of identity of cotton found: 2 Hill 287. Variance between indictment and proof: 10 Rich. E. 169; 4 McC. 16; 3 S. C. 230; 77 S. C. 383; 1 Wigmore Ev, sec. 154.

<p>Before Moore, J., Greenwood, Spring term, 1915.</p> <p>Will Stevens, convicted of murder, appeals.</p> <p>cites: As to self-defense: 103 S. C. 316. Charge on self-defense: 104 S. C. 260.</p>

Before Hon. W. B. Gruber, special Judge, Union, May, 1915. ' C. H. Hampton was convicted of unlawfully selling liquor, keeping a place where liquor was sold, etc., and he appeals. cites: As to issue on plea of not guilty: 85 S. C. 268, 269, 271; 28 S. C. 225. Charge: 31 S. C. 235. Duty to read transcript of evidence to jury: 61 111. 365; 32 How. St. Tr. 1, 672; 23 How. St. Tr. 1013, 1054; 29 La.

<p>Before Smith, J., Columbia, May, 1916.</p> <p>J. N. Grice was convicted of selling liquor, and appeals.</p>

<p>Witnesses—Cross-Examination—Discretion op Court.—In a prosecution for selling liquor, the action of the Court, in refusing to allow a State’s witness to be asked on cross-examination “if he had not been indicted for nonsupport of his family,” was not an abuse of the Court’s discretion to limit the extent to which an attorney shall be permitted to cross-examine a witness.</p>

<p>Before Shipp, J., Columbia, September, 1916.</p> <p>Janie Roof was convicted of assault and battery with intent to kill, and appeals.</p>

Before Smith, J., Columbia, June, 1916. Walter Griffin was convicted of seducing a girl of sixteen years, by means of deception and promise of marriage, and he appeals.

<p>Before Prince, J., Barnwell, March, 1916.</p> <p>Aquilla Raysor and another were convicted of grand larceny, and appeal from order denying them new trial.</p> <p>cites: 104 S. C. 353; 12 N. Y. App. Div. 639.</p> <p>cites: 44 S C. 326; 14 S. C. 432; 49 S. C. 330; 85 S. C. 229; 87 S. C. 546; 89 S. C. 41, 50</p>

<p>1. Criminal I,aw—Admissions or Confessions—Testimony at Coroner's Inquest.—'Testimony of one when examined before a coroner’s jury cannot be used against him on a subsequent prosecution for the homicide, as this would be to require him to furnish testimony against himself; any admission or confession in such testimony not being free and voluntary.</p> <p>2. Criminal Law—Harmless Error—Admission oe Evidence.—Error in admission against defendant in homicide of his testimony at the coroner’s inquest is not harmless because of evidence of a similar declaration by him elsewhere.</p>

Application in original jurisdiction bor certiorari. Original application for certiorari by the Waterloo School District No. 14 against Cross Hill School District No. 6. cites: As to creation and alteration of school districts: 21 -Statutes 1076; 20 Stats. 49 and 1409; Const. 1868, art. X, Revised Statutes 1872, p. 248; 60 S. C. 46; 19 Stats. 1050; Const. 1895, art. XI, sec. 5; XVII, sec. 11; U. S. Const., art. I, sec. 10'; XIV Am., sec. 1; 54 S. C. 277; 57 S. C. 129, 317;…

<p>Before Hon. Thos. F. McDow, special Judge, Greenwood, November, 1915.</p> <p>Gus Waller was convicted of illegal sale of liquor in . mayor’s Court of the city of Greenwood, and appealed to the Circuit Court, where conviction was affirmed, and hé appeals.</p>

<p>Before Mémminger, J., Monck’s Corner, March, 1916.</p> <p>Action by Barcha Josephine Bunch and another against F. A. Dunning. From a judgment for plaintiffs, defendant appeals.</p> <p>cite: As to evidence of declarations of deceased to strangers: Jones Ev., sec. 140, p. 157. Want of consideration: 44 S. C. 378; 53 S. C. 348; 56 S. C. 169; 57 S. C. 95; 59 S. C. 560; 71 S. C. 577; 27 S. C. 201. Issues confined by pleadings: 84 S. C. 117, 120 and 541; 84 S. C. 399; 75 S. C. 512; 79 S. C. 478; 82 S. C. 464. Possession retained by grantor: 120 Ga. 1018; 48 S. E. 400. Nonpayment of .consideration: 129 N. C. 325; 40 S. E. 179. Failure to record: Rice’s Eq. 243. Delivery: 53 S. E. 351; 36 S. E. 227; 45 S. E. 262. Presumption as to: 52 S. C. 472; 89 S. C. 268; 95 S. C. 328. Exclusion of evidence: 103 S. C. 277. Conveyance to bastard children: Civil Code, secs.’ 3454, 3575; 86 S. C. 94 and 115. Charge on facts: 81 S. C. 374; 73 S. C. 383; 80 S. C. 383. Presumption of innocence: 102 S C. 174. Charge as to burden of proof: 81 S. C. 541; 75 S. C. 512; 79 S. C. 478. Consideration for deed: 71 S. C. 577; 44 S. C. 378; 59 S C. 560; 53 S. C. 348; 57 S. C. 95; 56 S. C. 169; 40 S. E. 179; 48 S. E. 400. Refusal to charge: 69 S. E. 1055; 66 S. E. 514; 61 S. E. 530.</p> <p>The former cites: 20 S. C. 232; 52 S.-C. 132; 1 Hill L. 16.</p>

Before Bowman, J., Orangeburg, July, 1916. Action by Sylvanus Sandford and others against Govan F. Sandford and others. Decree for defendant, Govan F. Sandford, and plaintiffs and certain other defendants appeal. cite: As to rule of construction: 102 S. C. 242; 75 S. C. 434.

<p>1. Municipal Corporations—Streets—Vacation—Powers.—Under the statute stating the charter powers and providing that the town council shall have full power to make regulations as to streets of the town necessary and proper for security, welfare, and convenience, the town council of West Greenville had power to close two streets across which a railroad was about to put eight or ten tracks, as a measure for safety within the town police power.</p> <p>2. Municipal Corporations—Powers.—While a town has only the power given it by the legislature, that does not mean that the power to do each particular act must he specifically granted.</p> <p>3. Injunction—Restraining Vacation of Streets—Powers of Court. —Though Courts are open to award damages for invasion of private rights, they are not justified in keeping open a dangerous street while doubtful rights are being litigated.</p>

Before Gary, J., Florence, November, 1915. Action by D. R. Cook and others against W. J. M. Knight and others. From an order denying their motion to make the complaint more definite and certain, defendants appeal. cites: Allegation as to discovery of mistake necessary: 62 S. C. 88; 77 S. C. 541; 94 S. C. 349; Code Civ. Proc., sec. 438. Laches: Ann. Cas. 19-15b, 313; 82 S. C. 264; 16 Cyc. 236, 267, 268; 11 Rich. Eq. 33; 10 R. C. E. 395; 2 Am.

Before Shipp, J., Georgetown, May, 1916. Action by James Raftelis against the Bank of Georgetown. From an order denying defendant’s motion to require plaintiff to state his two causes of action separately, defendant appeals. ■ - . • ' submits: Separate statements: C. C. Rule 18; Code Civ. Proc., sec. 218. Order appealable: 26 S. C. 415; 8 S. C. 112; 11 S. C. 122. Distinguishes: 42. S. C. 547; 60 S. C. 521; 36 S. C. 36; 74 S. C. 13; 77 S. C. 367; 34 S. C. 346.

<p>1. Insurance—Action on Life Policy—Sufficiency of Evidence.—In action by beneficiary to recover on life policy, where insurer claimed premium received by it was paid and applied upon another policy, evidence held sufficient to submit the case to the jury.</p> <p>2.. Appeal ahí Error—Review—Directed Verdict.—Where there was sufficient evidence to submit case to the jury, no additional grounds for sustaining a directed verdict can be considered on appeal unless shown that plaintiif could not in .any event succeed.</p>

Before Moore, J., Saluda, May, 1916. Suit by George C. Wheeler and others against E. M. Corley and others. From a decree, defendants, Batesburg Cotton Oil Company and another, appeal. The latter cite: As to constructive notice of liability of mortgagors: 27 Cyc. 1044; 1 Hilliard Mortgages 275. Subsequent purchaser: 28 S. C. 516; 45 S. C. 18; 18 S. C. 138; 27 Cyc. 1183; 6 N. Y. Sup. Ct. 462.

Before Hon. Edward McIver, special Judge, Charleston, April, 1916. Action by the American Funding Corporation against M. M. Edwards, against whom default judgment was rendered. From an order denying two motions of defendant, he appeals.

Before Prince, J., Hampton, February, 1916. Action by John Tuten and others against H. F. McAl- . haney, L. R. Bishop and another. Judgment for plaintiffs against McAlhaney, and for Bishop, and McAlhaney appealed. The decree of Judge Prince referred to is as follows: This action came on to be heard before me at Hampton, S. C., at the Spring, 1916, term of Court. Certain issues of fact were, by consent of counsel, framed by the Court and submitted to a jury.

<p>Railroads—Injuries at Crossing—Jury Case.—In an action against a railroad for killing two horses and injuring a buggy and a gun in a crossing collision, case held for the jury under the evidence.</p>

Before Rice, J., Gaffney, March, 1916. Action by R. C. Ellis against James R. Jenkins. From order of Circuit Court reversing judgment in magistrate’s Court, plaintiff appeals. cites: As to liens on crops: Civil Code, sec. 4164; 96 S. C. 313. Conversion of cotton: Civil Code, sec. 3542; 70 S. C. 487; 96 S. C. 313; 102 S. C. 508. Remedy of creditor: 3 Pom. Eq. Juris., sec. 1414; 24 S. C. 533 and 534; 18 S. C. 431; 1 Story Eq. Juris., sec. 633; 3 Rich. L. -132.

Before Mauldin, J., Columbia, March, 1916. Action by Clarendon W. Barron and another against the Southern Scale & Fixture Company. Judgment for plaintiffs. From an order refusing to vacate the entry of judgment, defendant appeals. cite: As order for judgment: 1 Freeman Judgments (4th ed.) 43; 13 S. C. 254; 31 S. C. 171; 40 S. C. 193, 199, 200; 3 Jones Mtges.

<p>Before Spain, J., Darlington, December, 1915.</p> <p>Action by Harriet Ford Byrd and others against George O’Neal and others. From a judgment reversing the findings of master in favor of the plaintiffs, and dismissing the complaint, plaintiffs appeal.</p> <p>cite: As to laches: 94 S. C. 361; 43 S. C. 436; 5‘ Pom. .Eq. Juris. 33; 34 Cyc. 964; 35 U. S. D. Ed. 1063; 85 Fed.’517; 71 Fed. 618; 91 Fed. 191; 58 Fed. 297; 105 Am. St. Rep. 400; 101 Am. St. Rep. 38; 65’Am. St. Rep. 504; 25 U. S. R. Ed. 52. Estoppel: 93 S. C. 397; 48 R. R. A. (N. S.) 759. Construction of contract: 37 S. C. 309; 98 S. C. 239; 8 R. C. R. 1057. Warranty: 35 S. C. 531, 536; 16 Cyc. 718; 19 S. C. 9. Specific performance of executory contract: 34 S. C. Eq. (13 Rich. Eq.) 42; 85 S. C. 475; 94 S. C. 358. Findings of master not excepted to: 13 S. C. 410; 43 S. C. 103; 45 S. C. 262; 56 S. C. 215; 1 Elliott Ev., sec. 145; 44 S. C. 32. Reformation of deeds: 34 -S. C. Eq. 42; 44 S. C. 22; 84 S. C. 426; 92 S. C. 305; 85 S. C. 472; 98 S. C. 234.</p> <p>cites: As to construction of contract: 85 S. C. 475; 98 S. C. 238; 34 S. C. Eq. 42; 92 S. C. 307. Laches: 27 S. C. Eq. 96; 52 S. C. 345; 59 S. E. 762; 18 A. & E. Enc. of R. (2d ed.) 125; 69 S. E. 724; 5 Pom. Eq. Juris. 33; 44 S. C. 27. Executory contract to convey fee: 8 R. C. R. 1058; 6 R. R. A. 663; 110 Ala. 431; 18 So. 13; 83 S. C. 444; 37 S. C. 312.</p> <p>Mr. Pollock cites: As to mistake: 44 S. C. 22; 85 S. C. 472; 84 S. E. 532; 78 S. E. 17; 92 S. C. 305. Effect of delay: 45 S. C. 164. Laches: 43 S. C. 436; 39 S. E. 950; 42 S. E. 106.</p>

<p>Railroads — Killing of Stock-—Negligence — Jury Question.—In an action for the killing of plaintiff’s colt, a letter by the superintendent of the defendant railroad company, that investigation disclosed that the colt ran into the train after the engine had passed, is sufficient showing to carry the case to the jury on the presumption of negligence arising from the killing, notwithstanding the negligence was denied.</p>

Before SeasE, J., Marion, April, 191-6. Action by Levi F. Taylor against the Southern States Life Insurance'Company. Judgment for plaintiff, and defendant appeals. cite: As to issue for jury: 104 S. C. 20; 103 S. C. 519. Total disability: 122 Pa. St. 979; 9 Am. St. Rep. 148; 121 Mo. 548; 93 Tex. 487. Insured cannot recover upon proof of partial disability: 93 Tex. 487; 62 Kan. 75; 72 Vt. 325; 61 Neb. 563; 106 Iowa 81; 153 Ala. 630.

<p>Before Smith, J., Columbia, May, 1916.</p> <p>Proceeding by W. H. Glover against B. R. Heyward to foreclose a mechanic’s lien. From an order of the Circuit Court, on defendant’s appeal from a default judgment in a magistrate’s Court, dismissing the appeal and revoking the order staying the proceedings', defendant appeals.</p> <p>cite: Code Civ. Proc., secs. 405, 225; Civil Code, secs. 4120, 4121, 4122, 4126; 20 S. C. 500; 22 S. C. 534; 43 S. C. 173.</p> <p>submits: Order is not appealable: 76 S. C. 193 ; 79 S. C. 265 ; 70 S. C. 178, 216; 74 S. C. 366; 79 S. C. 198; 56 S. C. 28; 52 S. C. 305; 56 S. C. 28; 56 S. C. 12, 28. • Notice of appeal defective: 10 Mod. Am. Law 101; Code Civ. Proc., sec. 206; Rules Circuit Court, 12, 13. No proper proof of service: Code Civ. Proc., sec. 183; 13 S. C. 198; 19 S. C. 602. Effect of omission: 30 S. C. 607; 77 S. C. 155. Question not passed on below:' 51 S. C. 366; 54 S. C. 223; 60 S. C. 392; 63 S. C. 123. Hearing on return: Code Civ. Proc., sec. 405.</p>

Before Mauldin, J., Dillon, February, 1916. Action of claim and delivery by the Merchants & Planters Bank against M. W. Brigman and S. V. Lane, as sheriff of Dillon county. Judgment for plaintiff, and defendant, Lane, excepts and appeals. cite: AL to action to enforce forfeiture: 6 R¡ C. L. 439, 448, 434, 437; 12 R. C. L. 125, 134; 1 R. C. L..1146; 19 Cyc. 1357; 96 U. S. 395; 24 U. S. 531; 12 Wheat 1. Moot questions: 15 S. C. 372; 2 Cyc. 533.

Before Sease, J., Spartanburg, Spring term, 1916. Action by Lillie V. Moseley against the Carolina, Clinch-field & Ohio Railway of South Carolina and another. Judgment for defendants, and plaintiff appeals.

Before Bowman, J., York, February, 1916. Action by Joseph H. Sanders against York county. From an order sustaining defendant’s demurrer to the complaint, plaintiff appeals. cite: Civil Code 1912, sec. 1972; 83 S. C. 506; 71 S. C. 170; Civil Code 1912, sec. 3053; 58 S. C. 413; 43 S. C. 401; 44 S. C. 168.

Before Prince, J., Aiken, April, 1916. Action by W. C. Vann and another against J. A. Tyler and another, trading under the firm name and style of Tyler Bros. Judgment for plaintiffs, and defendants appeal. cites: As to opinion of witnesses with reference to damages: 19 S. C. 70; 57 S. C. 448, 449; 73 S. C. 12, 13; 91 S. C. 538, 539; 93 S. C. 128. Special damages: 39 S. C. 468; 83 S. C. 502, 503; 81 S. C. 538; 74 S. C. 295; 91 S. C. 331; 65 S. C. 506.

Before Rice, J., Barnwell, July, 1916. Action by R. R. Mims against R. S. Garvin and another.

<p>Before Rice, J., Aiken, August, 1916.</p> <p>Action by the Bank of Williston against Owen Alderman and another. Defendants appeal from an order of reference granted upon plaintiff’s motion, on the ground that he is entitled to a jury trial.</p> <p>cite: As to character of action: 100 S. C. 158, 159; Minor (Ala.) 75; 4 Harr. 170; 28 Ga. 242; 46 Am. Dec. 655; 6 Am. Dec. 86; 45 N. H. 482; 55 Am. St. Rep. 878; 27‘ Cyc. 866; Kerr Fraud 407 to 409; 2 Pom. Eq. Juris. 839; Story Eq. Juris. 105; 20 S. C. 489; Bail. Eq. 495; Dudley 261; 2 Bay 80; 22 Cyc. 766. Deceit: 9 Rich. 300. Right to jury trial: 20 S. C. 486; 27 Cyc. 885.</p> <p>cite: As to injunction: 84 S. C. 112; Bailey Eq. 495; 2 Pom. Eq. Juris. 856; 102 S. C. 308. Constructive trusts: 3 Pom. Eq. Juris. 1047, 1051; 39 Cyc. 16?, 170, 172; 23 S. C. 686; 56 S. C. 273; 23 S. C. 148. Mode of trial: 69 S. C. 196; 43 S. C. 242, 243. Motion for issue to jury: 73 S. C. 507.</p>

Before Rice, J., Aiken, June, 1916. Seth Winfield was convicted of manslaughter, and appeals. Defendant’s exceptions were as follows: (1) The presiding Judge erred in modifying defendant’s fifth request to charge by instructing the jury that if defendant was shooting at Norman Wilson in self-defense and killed Rich Johnson, he would not be guilty.

Before Shipp, J., Sumter, Eall term, 1915. Action by J. M. Bagnal against the Southern Express Company. Judgment for plaintiff in the magistrate’s Court, which was affirmed on appeal by the Circuit Court, and defendant appeals.

Before Shipp, J., Sumter, -, 1916. Suit by Edwin W. De Leon and others against Perry M. De Leon -and others.

Before Shipp, J., Dillon, Spring term, 1916. Action by J. W. Dillon & Son Company against J. S. Oliver and another.

Before Smith, J., Columbia, June, 1916. Action by W. H. Aughtrey against William A. Wiles and others. Judgment for defendants, and plaintiff appeals. Plaintiff’s exceptions are: (1) That his Honor, the presiding Judge, erred in granting defendants’ motion for a nonsuit on the ground that plaintiff was a trespasser; the testimony showing that he entered upon the premises in question through an implied invitation from the defendants, and was therefore a licensee.

Before Hon. D. D. McColl, special Judge, Chester, November, 1915. Suit by Mrs. Nannie E. Baker and another against the Metropolitan Life Insurance Company. Judgment for plaintiffs, motion for new trial overruled, and defendant excepts and appeals. cite: As to notice to insurer through examining physician as its agent: 95 S. C. 196. Issue for jury: 99 S. C. 417. Misleading instruction: 66 S. C. 18.

Before Rice, J., Aiken, June, 1916. Action for partition by Nina A. Clark against Jennie Dunbar and others. From an order for a judgment for a deficiency based on the last sale, defendants appeal. cites: 1 DeS. 144; 15 Cyc. 47; 17 A. & E. Enc. of L. 1076. cites: 41 W. Va. 339; 23 S. E. 571; 56 Am. St. Rep. 843; 68 Miss. 278; 24 Am. St. Rep. 273; 69 E. R. A. 33; 29 Ohio St. 529; 129 U. S. 73; 56 S. C. 343.

<p>1. Trial — Motion to Direct Verdict — In Effect a Demurrer.—A motion to direct a verdict for the reason that defense “is not sound” is in effect a demurrer because allegations are not sufficient to constitute a defense.</p> <p>2. Payment—Application—Question for Jury.—In action on defendant’s notes given plaintiff in payment under contract for fertilizer sold by defendant to planters, where defendant shipped to plaintiff cotton received from planters without direction on what debt to apply it, and plaintiff claimed this was to be applied on another indebtedness, evidence held sufficient to submit case to jury.</p> <p>8. Payment—Application of Payment.—Where defendant received cotton from planters in payment for fertilizer sold by defendant and furnished by plaintiff under contract, held, that defendant took the cotton as trustee for plaintiff, to be applied on planters’ notes, and hence when plaintiff received it from defendant, it could be applied only on defendant’s contract indebtedness.</p> <p>4. Sales—Bona Fide Purchaser—Consideration.—Past indebtedness is not a sufficient consideration to constitute the relation of a purchaser for valuable consideration without notice.</p>

<p>Before Bowman, J., Cheraw, July, 1915.</p> <p>Action by T. G. Griggs and J. J. Griggs, partners, trading as Griggs Bros., against D. L. Graves. From a judgment for plaintiffs, defendant appeals.</p>

Before Bowman, J., Columbia, October, 1915. Action by Roberta C. Stone, administratrix of the estate of Samuel B. Stone, deceased, against the Columbia, New-berry and Laurens Railroad Company. Judgment for defendant, and plaintiff appeals. cite: As to whether action against another bars this: 96 S. C. 228; 89 S. C. 408. Issues for jury: 101 S. C. 73;. 103 S. C. 1; 89 S. C. 15. Nature of employment: 229 U. S. 156 and 146.

Before Rice, J., Union, April, 1916. George Wiley was convicted of manslaughter, and he appeals from the judgment of conviction and from refusal of his motion for new trial.

Before MemmingER, J., Monck’s Corner, March, 1916. Action by Frank Read against the Atlantic Coast Line Railroad Company and another. Judgment for the plaintiff against the named defendant, and that defendant appeals.

<p>Before Shipp, J., Marion, September, 1916.</p> <p>Application for mandamus by James W. Johnson against the Carolina Gas & Electric Company. Erom an order granting the writ, respondent appeals.</p> <p>cite: As to duty to consumer: 127 Pac. 619; 27 Pac. 441; 156 Pac. 836. Remedy: 217 Pac. 620; 90 S. C. 475; 182 S. W. 186; L. R. A. 1916d, 300. Distinguish 81 S. C. 438; 88 S. C. 351. Admitted facts: 94 S. C. 43. Remedy of consumer: 78 S. C. 200; 104 S. C. 125; 81 S. C. 438. Tender: 30 Cyc. 1186; 18' S. C. R. (2 Bail.) 274; 39 S. C. 4; 30 Cyc. 165; 10 S. C. Eq. (1 Hill) 122. Mandamus: 41 S. C. E. (7 Rich.) 271.</p> <p>cite: 81 S. C. 438; 88 S. C. 350. Findings of fact in proceedings for mandamus: 56 S. C. 48. Disputed bills.: 29 E. R. A. 376. Refusal to render service: 26 Cyc. 323; 68 S. C. 31.</p>

<p>1. Reference'—Special Master — Power—Statute.—In view of Civ. Code 1912, sec. 1379, authorizing appointment of special master in case of vacancy, and sec. 1380, prescribing the duties of a master, in a proceeding by creditors of the estate of an intestate decedent to declare fraudulent deed executed by decedent to wife, the appointment of a special master clothed him with all the powers of a regular master, and the decree of another Judge, who heard the argument on the report, that the master take further testimony and report amount of dower demandant was entitled to and make a sale, continued the special master in such capacity, and the fact that the sale did not occur at' the time nominated in the decree did not deprive the special master of his jurisdiction to continue as such until the conclusion of the case.</p> <p>2. Reference—Dower and Homestead—Findings—Failure to Object. —In an action by a creditor in behalf of itself and other creditors of the estate of an intestate decedent to set aside as fraudulent a deed executed by deceased to his wife, in which wife claims homestead and dower, where the decree did not direct the method to be used in determining homestead and dower, and the master adopted the usual course giving notice to the parties to select appraisers for that purpose, and plaintiff’s attorney represented the creditor’s class and selected an appraiser to determine homestead and dower, any other creditor is estopped to object to the action of the master.</p> <p>3. Reference—Homestead—Findings—¡Sufficiency of Excefxtons.— Exceptions to the homestead appraisement, which do not contain any evidence to establish the claim that the assessments were excessive and wrongful, beyond the bare statement of that fact, will be overruled.</p> <p>4. Reference — Findings — Attorney’s Fees ■—• Premature Establishment.—The action of the master in establishing the fees for plaintiff’s attorney in advance of the sale of the property, and the actual bringing into Court of the net funds realized therefrom, was premature, and an exception thereto will be sustained on the ground that such services have not occurred.</p>

Before Shipp, J., Sumter, Fall term, 1915. Action by B. D. Jennings against W. A. Bowman. From a judgment for defendant, plaintiff appeals.

<p>Mortgages—Assignment to Mortgagor—Merger.—Where one while having legal ownership of land took bare legal title by assignment of an incumbrance on the land, evidenced by bond, mortgage, and note, for the sole purpose of reassigning, and without delivery or right to possession of the papers except by paying the obligation due the bank to whom he assigned, there was no merger, and the obligation of the mortgage was not extinguished.</p>

Before Wilson, J., Camden, Spring term, 1915. Actions by the Camden Wholesale Grocery Company against the National Fire Insurance Company of Hartford, Connecticut, and the Home Insurance Company of New York. From a judgment of nonsuit, the plaintiff appeals.

Before Mauldin, J., Greenville, June, 1916. •Action by the Norwood National Bank against the Piedmont Publishing Company, George R. Koester and Lewis W. Parker. Judgment for defendants, and plaintiff appeals. submit: That Koester and Parker were makers of the note in question: 104 S. C. 44; 1 Randolph Com. Paper, secs. 65, 149; 7 Cyc. 560, 614; Neg. Inst. L., sec. 184; 126 Mich. 521; 86 Am. St. Rep. 559; 48 S. C. 308.

<p>Before Hon. J. L. Gwínn, special Judge, Spartanburg. July, 1915.</p> <p>Action by Fuella L. True against J. N. Cudd. Judgment for plaintiff, and defendant appeals.</p> <p>The defendant’s fifth request to charge is as follows:</p> <p>“ (5) That a person has no right to make another person his debtor without the consent of such other person, and if a stranger pays the debt of \ another person, without any solicitation on his part, and without taking any assignment of the obligation which he paid, then such stranger is not entitled to recover.”</p> <p>The Court gave same, modified as follows:</p> <p>“That I find, gentlemen of the jury, has been decided to be the law of this State. I think the case is dated exactly 100 years ago, Mr. Carson, and is correct. But in that connection I would say that that principle of law does not prevent one from buying a claim against another. In other words, Mr. Foreman, it is none of my business, because the law says in that case it would be an intermeddling to be going around and buying your debts; but if one of the counsel here had a claim, either an account or a note, against you, I would have a perfect right in law to go and buy that note and buy that account, and I would hold it against you just as counsel would. In other words, that principle of law announced here that if a man pays a debt of another without any solicitation on his part and without taking an assignment of the obligation, such stranger is not entitled to recover, that is, I could not get a cause of action against you by intermeddling in your business, volunteering to pay something that was doubtful, anything of that kind. But any man has a right to buy a claim against another man, to pay money for him; in that sense of the word, he has a right. I see Mr. Carson has limited this, without taking an assignment of the obligation.”</p> <p>cite: As to advertisement as evidence: 38 S. C. 210; 28 S. C. 151; 53 S. C. 451; 19 S. C. 373. Declaration against interest: 15 S. C. 390. Charge on facts: 47 S. C: 488; 85 S. C. 296 and 283 ; 56 S. C. 531. Agency of husband for wife: 56 S. C. 134, 135; 35 S. C. 523; 31 S. C. 441; 39 S. C.. 535; 43 S. C. 476; 55 S. C. 586; 49 S. C. 355, 356. Notiae to agent: 44 S. C. L. 297; 37 S. C. 100; 57 S. C. 29; 44 S. C. 482; 57 S. C. 369; 74 S. C. 227. Verdict contrary to charge: 68 S. C. 523; 73 S. C. 466. Payment of another’s debt: 27 Cyc. 838, 841; 34 S. C. h. 532; 32 S. C. L. 270; 5 S. C. L. 385; 10 S. C. 33; 33 S. C. 140.</p> <p>cite: As to confused request: 84 S. C. 283. Notice to agent: 31 Cyc. 1587-1596; 1 A. & E. Enc. of E. (2d ed.) 1144-1150 and 1145. Payment of another’s debt, note: 23 E- R. A. 120.</p>

Before Rice, J., Cheraw, April, 1915. . Action by Minnie L. Gladden and others against P. E. Chapman and another. From a judgment against certain plaintiffs, they appeal. cite: As to necessity for existence of cause of action to sustain service by publication: Code Civ. Proc., sec. 185. Death of party: 23 S. C. 291. Publication in maiden name no notice to married woman: Code Civ.

. Before Smith, J., Columbia, May, 1916. Suit by A. D. McFaddin, master, against Washington Clark and another, for foreclosure of a mortgage given the master to secure the purchase money for lands sold by him. Order overruling objection by defendants to plaintiff’s right to bring action, and defendants appeal. Mr. Edmunds cites: Code Civ. Proc., secs. 160, 162. As to method of objection: 6 S. C. 119; 13 S. C. 430; 54 S. C. 227.

<p>Bhidoes—Counties—Liability fob Injubies.—Case of Banders v. York County, 106 S. C. 374, 91 S. E. 305, followed..</p>

Before Hon. J. L. Glenn, special Judge, Spartanburg, July, 1915. Action by Olivia M. Sainé against J. P. Hertzog. Judgment for J. P. Hertzog. Judgment for plaintiff, and defendant appeals. submits: This appeal raises four questions: 1.

Before Spain, J., Bennettsville, April, 1915. Action by E. F. Southard against the Marlboro Agricultural Company, a corporation. From an order allowing plaintiff to discontinue the action, defendant appeals. The exceptions are as follows: 1. Because Hon. T. H. Spain committed error in granting the motion to dismiss the case for the reason that the pleadings had been made up and the case was ready for trial. 2.

<p>Before Mauldin, J., Greenville, August, 1916.</p> <p>Action by J. T. Blassingame against Greenville County, From an order granting plaintiff a new trial, defendant appeals.</p>

<p>Before Memminger, J., Monck’s Comer, April, 1916.</p> <p>Action by T. O. Sweat against George W. Wolfe, admin- • istrator of the estate of J. L. Smith. From a judgment dismissing the action, plaintiff appeals.</p> <p>cites: 7 A. & E. Enc. of L. (1st ed.) 333; 18 Cyc. 878, 884; Code Civ. Proc., sec. 224.</p> <p>cites: As to cause of action against an administrator for a wrongful seizure: 58 S. C. 289. Stare decisis: 62 S. C. 469. Refusal of leave to amend: 104 S. C. 491.</p>

<p>1. Appeal and Error—Final Judgment—Order for New Trial.—The jury’s first finding, that the land sought to be partitioned was not included in the deed under which plaintiffs. claim, being conclusive against their right, the order denying, as regards such finding, their motion to set aside the findings, was a final judgment as regards appeal by them, though setting aside the second finding that the deed was not delivered, and granting a new trial as to such question.</p> <p>2. Evidence—Opinion—Matter in Issue.—As to the issue whether a certain tract was within the description of the deed, witnesses may not answer yes or no, but only describe the land and point it out on the plat.</p> <p>3. Partition—Evidence.—The will alleged in the complaint for partition and set up in the answer as the source of defendants’ title is admissible in evidence.</p> <p>4. Adverse Possession — Evidence. — Deeds executed by a father to his children of parts of the land subsequently claimed by them to have been included in his prior deed to them tend to show the character of his possession, continued for more than 30 years after the prior deed.</p> <p>5. Deeds — Delivery — Evidence. — Deeds executed by a father to his children of parts of land claimed to have been included in a prior deed by him to them have a bearing on the question whether the prior deed was delivered.</p> <p>6. Appeal and Error—Review—Objection Below.—Objection that conversations admitted in evidence were not made in the presence of the parties, not being made below, is not available on appeal.</p> <p>7. Appeal and Error—Review—Facts.—The facts bearing on the legal issue of title claimed by defendants in partition and submitted to the jury cannot be reviewed on appeal.</p> <p>8. Deeds—Construction.—The construction of a deed is a question of law for the Court.</p> <p>9. Trial—Charge on Facts.—The construction of a deed being a question of law for the Court, it is not a charge on the facts for it to hold it ambiguous.</p> <p>10. Boundaries—Description—Adjoining Lands.—The call of a deed for boundary on the south “by S. and others” is not filled by only one adjacent proprietor besides S.</p>

Before Smith, J., Spartanburg, August, 1916. Suit by Geneva Brown against Julia Golightly. From a decree for plaintiff, defendant appeals. The decree in the trial Court was as follows: This action was commenced on the 22d day of May, 1911, to have the plaintiff adjudged the owner in fee of the land described in the complaint, for the specific enforcement of the contract which is alleged tó be the source- of -the plaintiff’s interest, and for the sale thereof in partition.

Before Smith, J., Union, March, 1916. On application by William Coleman and another, executors of Ann E. Rice, deceased, for final settlement and discharge, Wallace and Barron and George S. Mower petitioned for allowance of attorney’s fees. An allowance was made by the Circuit Court on appeal from the probate Court, and S. M. Rice and others appeal. submit: The contracts of employment and retainer set up by the petitioners, Messrs.

<p>Before Hon. Edward McIvEr, special Judge, Charleston, April, 1916.</p> <p>Action by I. B. Skudowitz against F. N. Basha and others. From a judgment for plaintiff, defendants appeal.</p> <p>cite: As to issue raised by pleadings: 100 S. C. 389; 2 Ency. PI. & Pr. 1005 and 1376 ; 4 Cyc. 353-355; 9 Cyc. 733, 737. Want of consideration: 27 S. C. 621; 47 S. C. 176; 4 Enc. PI. & Pr. 946; Pom. Code Rem. (4th ed.), 812; 1 N. & McC. 189; 1 Brev. 230. Amendment: 96 S. C. 18, 21; 101 S. C. 527. .</p>

<p>1. Appeal aot Error — Notice op Appeal — Effect — Supersedeas.— Notice given in due time of intention to appeal from an order striking out defendant’s answer and rendering judgment against her did not operate as a supersedeas and stay further proceedings thereon, and the entry of judgment by the clerk after the notice of appeal had been brought to his attention and filed was not improper.</p> <p>2. Appeal and Error—Right—Entry op Judgment as Prerequisite.— Appeal cannot be taken to the Supreme Court until entry of judgment.</p> <p>3. Pleading-—Denial op Allegations op Complaint.—The answer of defendant denying knowledge or information sufficient to form a belief as to the allegations in specific paragraphs of the complaint put in issue the allegations in the paragraphs.</p> <p>4 Pleading-—Striking Answer-—Frivolity or Falsity.-—If upon an inspection of the pleadings it manifestly appears that the answer is sham or frivolous, the trial Court can strike it and give judgment; if upon an examination of the pleadings it appears from them without extraneous outside evidence, such as affidavits, that the answer is false, it can be stricken'and judgment rendered.</p> <p>5. Pleadings—Striking Answer—Frivolity or Falsity.—Where in a law case, an answer puts in issue material facts alleged in the complaint; these issues must be tried by a jury in the manner provided for by law, and not by the Judge upon ex parte affidavits.</p>