Volume 107 — South Carolina Reports

Before Gary and SfasF, JJ., Charleston, Action by Eaura E. Nelson, as administratrix of the estate of Philip Nelson, deceased, against the Atlantic, Gulf & Pacific Company. From a judgment for plaintiff, defendant appeals.

Before SeasE, J., Florence, Action by A. J. Fowler, as administrator of Mary E. Miles, against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals. cite: As to 'misrepresentations operating as a fraud upon insurer: 61 S. C. 343; Richard's Ins. 478; 83 Fed. 631; 75 S. E. 915; 83 Atl. 169; 117 U. S. 29; 55 Atl. 23. Materiality of representations: 139 Pac. 242; 36 So. 595; 80 Atl. 1085; 83 Atl. 169; 69 Atl. 385; 35 Atl. 197; 44 N. E. 1088.

Before Smith J., Spartanburg, Action by E. B. Dean against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. cite: As to rules and regulations in schedules filed: 202 U. S. 242, 245; 204 U. S. 426, 445; 227 U. S. 639, 656. Cannot be waived: 226 U. S. 441; 95 S. C. 427; 158 U. S. 98; 226 U. S. 491; 215 U. S. 481. Shipper has notice: 100 S. C. 469; 227 U. S. 639. No waiver here shown: 101 S. C.-527.

Before Hon. W. A. Holman, special Judge, Camden, Action by the National Bank of Savannah against the Southern Railway — Carolina Division. Judgment for defendant, and plaintiff appeals. cite: As to plea in bar: Action on contract rather than tort: 85 S. C. 537; 89 S. C. 415; 13 Cyc. 85, 86 ; 13 S. C. 88; 3 McC. 499, 500; 10 Rich. 382; 202 Fed. 90.

<p>1. Pleading — Motion to Strike — Immaterial Averments — Answer.— In an action on a written contract reciting that plaintiff had sold and conveyed to defendant a tract of land, the consideration being various sums and lands in exchange, together with the satisfaction and payment of a note and chattel mortgage executed to plaintiff by another, on which there was due considerably more than $1,000, but that it was inconvenient to pay the same, and, therefore, defendant agreed to pay plaintiff $1,000 in full satisfaction of the note and mortgage, or if defendant preferred the same should be assigned to him, averments in the answer as to what defendant said the mortgagor told him, together with the mortgagor’s denial of the claim, held properly stricken; such allegations raising no issuable fact, and there being no averment that defendant believed them.</p> <p>2. Contracts — Action — Answer—Failure of Consideration.' — -In such case, the answer after the striking out of allegations as to' statements of the mortgagor held sufficient to show a failure of consideration.</p> <p>3. Contracts — Construction.—Such contract was not merely a guaranty of the payment of the note and mortgage, but was an express agreement to pay the sum named.</p> <p>4 Assignments — Assignment Without Recourse — Obligation, of Indorser. — An assignment of a chose in action, without recourse; as a mortgage and note, relieves the assignor of the general liability of an indorser, but in the absence of further limitation he is liable on the implied warranties of a vendor that the note and mortgage are valid and subsisting legal obligations, and that the property described in the mortgage is subject to levy.</p> <p>5. Contracts — Actions—Directed Verdict. — In an action on a contract, where defendant set up failure of consideration, and there was evidence to support his plea, verdict should not be directed for plaintiff.</p>

<p>Fraudulent Conveyances — Burden of Proof — Mortgage of Fraudulent Grantee — Bona Fide Mortgagee. — The burden is on plaintiff suing to foreclose a mortgage executed by one to whom property had been conveyed in fraud of the grantor's creditors to prove, as against the creditors, that she was a bona fide mortgagee without notice of the fraud.</p>

Before Shipp, J., Dillon, Suit by E. A. McCormac and another against W. W. Evans and others. Judgment for defendants, and plaintiffs appeal. The statement of facts in the Circuit decree is recited in the dissenting opinion of the Chief Justice, and referred in the opinion of the Court. cite: As to distinction between legal and equitable causes of action: Pom. Code Rem. (3d ed.), secs. 521, 522, 523. This action is equitable: 27 S. C. 77) 46 S. C. 144; 1 Pom. Eq. Juris.

<p>Before Prince, J., Bamberg,</p> <p>Suit by Gulielma De Witt against Laura C. Dowling and others. Decree for defendants, and- plaintiff appeals.</p> <p>Plaintiff’s exceptions referred to are as follows:</p> <p>(1) Because the Circuit Judge erred in not holding that an outstanding claim of dower was such an incumbrance as was covered and guarded against by the covenants of warranty in the deed from E. H. Dowling to plaintiff herein, which claim was in existence at the time of the execution of the deed in question.</p> <p>(2) Because his Honor erred in not holding that to the extent of the amount assessed against the plaintiff as dower, that the plaintiff was to that extent evicted from the premises which she was holding and enjoying under the express warranty of the said E. H. Dowling, and in not holding that the right of dower claimed and recovered was a diminution of the value of the land, but consistent with the passing of the fee.</p> <p>(3) Because his Honor erred in not holding that in the allotment of dower, or a sum of money in lieu thereof, amounts to actual eviction and ouster, and an action on the breach of the covenants in the deed cannot be maintained until after the eviction; in this case the payment of the sum of money assessed in lieu thereof.</p> <p>(4), Because his Honor erred in not holding that the contingent right of dower in the wife whose husband is living at the time of the conveyance, is an incumbrance against which the general warranty is intended to protect the vendee, in this case the warranty of E. H. Dowling to the plaintiff, his vendee, was a protection against the outstanding claim of dower of the wife of the said E. H. Dowling.</p> <p>(5) Because his Honor erred in holding that plaintiff had failed to show that the estate of E. H. Dowling at the time of his death, 1906, was not sufficient to satisfy all claims against said estate, when, it is respectfully submitted, he should have held that until dower was demanded and recovered, that then and only then did the plaintiff have any notice of the claim of dower in the lands conveyed by the husband of the demandant.</p> <p>cite: As to breach of warranty: 27 S. C. 193; 67 S. C. 216; 39 S. C. E. (5 Rich.) 12; 5 S. C. 407. Limitation of action: 5 S. C. 407. Measure of damages: Civil Code, sec. 3536; 5 S. C. 405; 43 S. C. 33.</p> <p>cites: As to proof of fraud: Bail. Eq. 138. Covenantee not a creditor before breach of warranty: 55 111. 261, 269. Circumstances at'time of conveyance control case: 2 Bail. 128, 130.</p>

<p>Before Sease, J., Edgefield,</p> <p>Proceedings to contest the will of Mrs. Margaret -L. McKie, in which Daniel McKie and others were proponents and Josiah McKie contestant. Decree for contestant, and proponents appeal.</p> <p>The following is the charge of the Court and the exceptions of appellant:</p> <p>Mr. Foreman and Gentlemen: To put you at ease along' that line, I have already made arrangements for the sheriff to get your supper for you immediately after this charge is made; and he will either bring it to you or conduct you to the hotel. You are to try this case, gentlemen, according to the law and evidence; you have taken an oath that you will well and truly try this case according to the law and the evidence; you have no interest in the outcome of the case, except to render a proper verdict. You have no friends that you are to take care of as .jurors; neither have you any enemies that you are to punish by your verdict; you and I are totally disinterested parties; we are not here to do anything but the right thing according to our best understanding; you will not be influenced by anything that is improper for you to consider. The question that I propose to submit to you reads as follows, and you will have this small piece of paper with you, and also the alleged will, in the jury room, and nothing more: Is the paper presented for probate, and dated 3d day of October, 1912, the last will and testament of Margaret L. McKie? And you will answer, “Yes or No,” and write your name, and the word “Foreman” under it. That is the only question that is submitted to you. You will answer that according to the law and evidence; you cannot make any law of your own; you must take the law as given you by the Court; and just here there are certain propositions óf law that I desire to call to your attention along the lines of the requests to charge on both sides, and the requests to charge. I cannot state all the law in one proposition, because it would take too long a sentence, covering a page or more, and you would not understand it, very likely, as well as if I should instruct you in shorter propositions of law and the requests that are written out.</p> <p>Now, before that: We are not here to make the will of Margaret L. McKie; we are not here to say, if you conclude that it is the will of Margaret E. McKie, that it is a just will pr an unjust will, because the law says, and it is the law, that a person having property has the right and privilege of making any disposition of their property that they please. The only question is: Is the paper that has been introduced in testimony the will of Margaret E. McKie? If it is not her will, then your answer to this question will be, “No;” if it is her will, then the answer to the question will be, “Yes.” The law prescribes how a will shall be made. Under section 3564, and I believe the enactment of this law was by the legislature in 1824, says: All wills and testaments of real and personal property shall be in writing, and signed by the party so devising the same, or by some other person in his presence and by his express directions, and shall be attested and subscribed in the presence of the said devisor, and of each other, by three or more credible witnesses, or else they shall be utterly void and of none effect. That does not mean that a blind person cannot make a will; that does not mean that a person who is totally blind cannot make a will, but the statute, in order for a will to be valid, must be complied with and you must find that it has been complied with from the testimony; it may be inferred from the testimony; all conclusions of juries are inferences'from the testimony.</p> <p>I charge you, gentlemen, that the proponent of a will is called upon to prove that it is the will of the deceased by the preponderance of the evidence. That does not necessarily mean the greater number of witnesses, but it means by the greater weight of the evidence. It does not mean that it must be proven to be the will of the deceased beyond a reasonable doubt; but it simply means that the testimony must preponderate in favor of the validity of the will. For example: If you take all the testimony in favor of the will, and put it in an imaginary scale or balances on the one side thereof, and take all the testimony against the will, or the validity thereof, and place on the other side of the imaginary scales or balances, and if it stands evenly balanced in your mental picture, in your experiment, then the will cannot stand, and your answer to that question will be “Nobut if .the side in your mental picture in which you have placed all the testimony in favor of the will preponderates in the slightest degree over the evidence against it, then there lies the preponderance, and you would write a verdict in the form of “Yes” to this question. That is what I mean by preponderance of the evidence.</p> <p>A great deal has been said about presumptions. I charge you as a general principle of law applicable to all presumptions in this case, that all presumptions are rebuttable. There is no conclusive presumption in this case, and when I speak of presumption I mean a presumption that is rebut-table.</p> <p>Now, taking up the requests of the proponent of the will, I charge you as follows-:</p> <p>“ (1) That the law in this State puts no restraint upon the power of a citizen to dispose of his or her property as he sees proper. He may give all of his property to one or more of his children, and exclude the balance of his children from participation in his estate; or he may give his property to a stranger, if he sees proper to do so.” I charge you that.</p> <p>I charge you this as requested:</p> <p>“(2) When the proponent of a will proves the formal execution of it, including the attestation and subscription, as required by law, a presumption of testamentary capacity arises, since every adult person is presumed to be sane until the contrary appears.” I charge you that, and in connection I desire to read you a further sentence from a case from which that is quoted. Now, that is in addition to the other request. I read from volume XXXI, S. C. R. (2 Richardson’s Reports), page 236: “Where a testator is of sound mind his knowledge of the contents of the will, as of any other instrument, is presumed from the fact of execution. If he be of doubtful capacity, the law requires that the presumption ■arising from the fact of execution, should be confirmed by additional and. more direct proof of assent. The character of that proof is to be considered.” And I add, is to be considered by the jury, or rather, all the testimony is for the jury.</p> <p>“(3) When the formal execution of a will is proved, a prima facie case is made out, and the burden is then on the contestant to show the invalidity of the will.” I charge you that.</p> <p>“ (4) When a testator is of sound and disposing mind and memory at the time of the execution of a will, his knowledge 'of its contents, as of any other instrument in writing, will be presumed from the fact of execution.” I charge you that, and in connection I desire to read from the Enc. of Evidence, page 258: “The general presumption is that a testator, having executed his will, had knowledge of its contents, but this presumption is never conclusive, and the surrounding circumstances may be so suspicious as to require affirmative evidence of this fact.” Also on page 259, footnote: “That the testator did know and approve of the contents of the alleged will is therefore part of the burden of proof assumed by every one who propounds it as a will. This burden is satisfied, prima facie, in the case of a competent testator by proving that he executed it. But if those who oppose it succeed by a cross-examination of the witnesses, or otherwise, in meeting this prima facie case, the party propounding must satisfy the tribunal affirmatively that the testator did really know and approve of the contents of the will in question before it can be admitted to probate.” I charge you that, and I simply adopt the language as my own charge on that point to that extent.</p> <p>The respondent, Josiah McKie, has requested me to charge you the following propositions of law. I take it that this first request is a correct analysis of the statute that I read in your hearing, to wit, section 3564. It only elaborates and explains that section that I read to you; that is, section 3564 of the Code of Taws of South Carolina.</p> <p>“(1) That under section 3564 of the Code of Laws of South Carolina, it is enacted, and it is the law, that all wills shall be in writing, and be signed by the party purporting to enter into the same, or by some other person in his or her presence, and by his or her express direction; and the jury is charged that if the alleged will in this case of Margaret E. McKie was not signed by her, but by her son, Daniel McKie, in her presence, but not by her expressed direction, then they must find that it was not her will, for the statute requires that the will must be either signed by her, or by some other person in her presence, and by her expressed direction, or otherwise it is null and void.” I charge you that, gentlemen; and I charge you also that the statute says nothing about where one person assists another in signing a will; and I charge you that if another person assists the maker of a will, the alleged maker of a will, of her own signature, then that would be a sufficient compliance with the law on that point.</p> <p>“(2) That whilst ‘expressed direction’ may be inferred from circumstances surrounding the transaction, yet the jury must'be satisfied that such expressed directions were given by the testatrix, before they can find in favor of the will.” I charge you that in connection with what I have already charged you.</p> <p>“(3) Ori the question as to whether or not the paper.in question, purporting to be the last will and testament of Margaret E. McKie, was her last will and testament, the jury is charged that unless they find from the preponderance of the testimony that she knew it was her will, and was acquainted with its contents, and executed it as such, they must find against the will. They must be satisfied that she knew its contents, or even if she executed it, is is not her will.” I charge you that, gentlemen.</p> <p>“(4) The jury are the judges of her mental capacity at the time of the alleged execution of the paper in question, and if they find for any reason that she was of doubtful capacity, then before they can find for the will they must go further and find that she gave instructions for its making, or that it was read over to her and that she understood it.” • I charge you that, and in that connection I desire to instruct you on the matter of undue influence. You will notice that the law says undue influence; it does not say influence, because I do not suppose any will ever was made unless something influenced the making of the will. The influence, which is undue and sufficient to invalidate a will, must be so great as to constrain the inclinations of the testator, to overbear and conquer his will, and make him the obedient, though reluctant, agent of another’s dictation in the testamentary disposition of his property. His free agency must be overcome, so that the instrument does not express his will, but the will of another. That is what I mean when I say “undue influence.” Therefore I charge you that if the alleged testatrix was unduly influenced in the making of this paper as her will, then you will find against the will, and answer the question, “No.”</p> <p>“(5) Whilst it is so, that proof of the execution of a will raises a presumption that the testatrix knew the contents of the will and approved it, yet that presumption is only prima facie, and is rebuttable; and the jury are the judges whether by the testimony the presumption has been rebutted or not, and if in any way they are satisfied that the presumption has been shaken then they are to say from all the evidence whether they are satisfied that the testatrix knew of the contents and approved of the will, and if on all of the evidence they are not so satisfied, they should find against the will.” I charge you that.</p> <p>Now, in the sixth request to charge I leave the words “was blind;” I prefer to leave out the words, “was blind,” because that might be charging on the facts. I charge you the sixth request with that modification.</p> <p>“(6) The jury is charged that if they find that the testatrix, at the time of the alleged execution of the will, was of doubtful capacity, then before they can find in favor of the will they must be satisfied by the preponderance of the testimony, that she gave instructions for the making of the will, or that it was read over and explained .to her, and she understood it and approved of it as her will.” I charge you that, but I charge you also, in that connection, that if you find that that was her will, giving emphasis to “will” — that is, that it was no one else’s will, that it was no one else’s will— that necessarily carries with it that she knew the contents of the will, and that it was her will and was made without undue influence; even then, of course, you would find accordingly.</p> <p>- The main question, and the sole question is, and all the evidence has been introduced to throw light on this question, is the paper presented for probate and dated 3d day of October, 1912, the last will and testament of Margaret L. McKie? Now, you are entitled to have this with you in the jury room, on that question, and that is all. Whatever your verdict is, you will write it out in this shape, “Yes,” or “No,” and sign your name and write the word “Foreman” under it. You will bring in a sealed verdict, and when you have agreed on your verdict, you will seal it up, put it in an envelope, put it in your pocket, knock on the door, inform the sheriff that you have agreed, and he will let you out; say nothing about your verdict and be back in Court at 9 :30. Retire.</p> <p>Exceptions: First. Because his Honor, the presiding Judge, having allowed proponents’ fourth request to charge, to wit: “When a testator is of sound and disposing mind and memory at the time of the execution of a will, his knowledge of its contents, as of any other instrument in writing, will be presumed from the fact of execution” — erred by charging further in relation thereto: “That the testator did know and approve of the contents of the alleged will is therefore part of the burden of proof assumed by any one who propounds it as a will.”</p> <p>Second. Because his Honor, the presiding Judge, having allowed proponents’ fourth request to charge {supra) and the respondent, Josiah McKie, having-failed to present any testimony whatsoever, that the testatrix did not know of and approve the contents of her will, his Honor erred, as a matter of law, in refusing proponents’ third ground of motion for a new trial.</p> <p>Third. Because his Plonor, the presiding Judge, erred in allowing the fourth request to charge submitted in behalf of the respondent, Josiah McKie, to wit: “The jury are the judges of her mental capacity at the time of the alleged execution of the paper in question, and if they find for any reason that she was of doubtful capacity, then before they can find for the will they must go further and find that she gave instructions for its making, or that it was read over to her, and that she understood it”- — the error being, it is respectfully submitted, that or which tended to show, any doubt as to the testamentary capacity of the testatrix, the rule of doubtful capacity as stated by his Honor imposed upon proponents a burden of proof which the law does not impose, thereby the jury was misled to the prejudice of proponents.</p> <p>Fourth. Because his Honor, the presiding Judge, erred in allowing the sixth request to charge submitted in behalf of respondent, Josiah McKie, to wit: “The jury is charged that if they find that the testatrix, at the time of the alleged execution of the will, was of doubtful capacity, then before they can find in favor of the will they must be satisfied by the preponderance of the testimony, that she gave instructions for the making of the will, or that it was read over and explained to her, and she understood it and approved of it as her will” — the error being, it is respectfully submitted, that there being no testimony in the cause, which showed, or which tended to show, any doubt as to the testamentary capacity of the testatrix, the rule of doubtful capacity, as stated by his Honor, imposed upon proponents a burden of proof which the law does not impose, and thereby the jury was misled to the prejudice of proponents.</p> <p>Fifth. Because his Honor erred in charging the jury as follows: “I charge you, as a géneral principle of law applicable to all presumptions in this case, that all presumptions are rebuttable. There is no conclusive presumption in this case, and when I speak of presumption I mean a presumption that is rebuttable”- — -the error being that his Honor thereby charged on the facts of the case, to wit, “There is no conclusive presumption in this case,” said statement having the effect of removing from the consideration of the jury the question whether or not the presumptions which exist in the case were rebutted by the testimony.</p> <p>Sixth. Because his Honor, the presiding Judge, erred in admitting in evidence the testimony of Mrs. Bettie Wood as to the statement alleged by her to have been made to her by James McKie, now deceased, the said Jas. McKie, at the time that said statements were alleged to have been made, not having any interest in the matters in controversy in this proceeding; and it is respectfully submitted that the statements so alleged to have been made in relation thereto constitute hearsay testimony.</p> <p>Seventh. Because his Honor, the presiding Judge, erred in admitting in evidence the testimony of the witness, John M. Wood, as to the-statements alleged by him to have been made to him by James McKie, now deceased, the said James McKie, at the time said statements were alleged to have been made not having any interest in the matters in controversy in this proceeding; and it is respectfully submitted that the statements so alleged to have been made in relation thereto constitute hearsay testimony.</p> <p>cite: As to presumption as to testamentary capacity: 2 Rich. L. 236; 49 S. C. 159. Burden of proof as to undue influence: 86 S. C. 477; 51 Am. Dec. 652. Undue influence: Cheves. 1; Schouler Wills 228; Williams Exors. 34; 49 Am. Dec. 629, 630. Declarations inadmissible: 25 Pa. St. 456; 54 Pa. St. 222; 93 Am. Dec. 691; 99 Mass. 127, 128; 80 Am. St. Rep. 617; 58 Am. St. Rep. 400; 13 Ene. Ev. 289.</p> <p>cite: As to execution of will: Civil Code, sec. 3564; Gardner Wills 207; 4 Cyc. 1104; 3 Rich. 16; 39 S. C. 518. Burden of proof: 86 S. C. 477; 49 S. C. 165. Refusal of new trial: 66 S. C. 75. Rule of doubtful capacity: 1 Bailey 93; 2 Rich. 229; 3 Hill 73; 12 Rich. 242; Hearsay Evidence, Jones Ev. (2d ed.) 374. Declarations against interest: McKelvey Ev. (2d ed.) 318, 321; Wigmore Ev., sec. 1466; 4 Ene. Ev. 90; 16 Cyc. 1120; Jones Ev. (2d ed.), sec. 253; 89 Am. St. Rep. 390; 17 Cyc. 793, 806, 808. Policy of rules governing proof of wills: 39 S. C. 531; Schouler Wills, sec. 78. Exclusion of children: 4 McC. 195.</p> <p>cite: As to presumption from execution of will: 14 Ene. Ev. 258, 259; Schouler Wills (2d ed.), secs. 155, 240. Objections to charge should be called to attention of the trial Court: 23 S. C. 231, 232; 88 S. E. 442. Evidence of assent in execution: 1 Bailey 95; 3 Hill 341; 2 Rich. 238; 12 Rich. 232; 1 Jarman Wills 64, 65; 14 Ene. Ev. 261; 21 N. J. Eq. 561, 562. Harmless error: 89 S. C. 378; 95 S. C. 302; 88 S. E. 26; 85 S. E. 298. Declarations admissible: 2 Green-leaf Ev., sec. 690; 8 Rich. L. 198.</p> <p>also cites: As to burden of proof: Civil Code, sec. 3581. Evidence showing undue influence: 1 Gardner Wills 194; 30 A. & E. Enc. of L. (2d ed.) 585; 119 Ala. 641; 24 South. 459; 127 Mich. 607; 86 N. W. 1036; 35 N. Y. 559; Chaplin Wills 173; 90 Va. 849; 19 S. E. 314; 67 Vt. 443 ; 32 Atl. 255. Jury, to determine mental capacity: Bailey’s Law 92; Hill 74; 3d Hill’s Law 346; 2d Rich. Law 236; 86 S. C. 479. Execution of will: 3 Strob. L. 299. Declarations admissible: 1 Enc. Ev. 504, 510, 523; 5 Rich. Eq. 128; 79 S. C. 54; 47 S. C. 467; 17 SC. 142; Chamberlayne’s Best on Evidence, p. 487; 12 Mass. 163; 31 Vt. 443 ; 88 N. C. 208; 104 Ind. 70; 13 Bush. (Ky.) 163; 59 Me. 162; 8 N. H. 366; 18 S. C. 492; 6 Enc. Ev. 447; 7 Enc. Ev. 610; 145 U. S. 285.</p>

Before Maurdin, J., Greenville, Summer term, 1916. Suit by Phyllis Mims and others against Sarah Ann Jones and others. Decree for plaintiffs, and Sarah Ann Jones appeals. The cause was heard by the Circuit Judge on the following exceptions taken by plaintiffs to the master’s report: 1.

Before Sease, J., Marion, Action by John W. Porter against the Bennettsville & Cheraw Railway. Judgment for plaintiff, and defendant appeals. cites: As to refusal to direct verdict: 99 S. C. 417. Injury due to extraordinary natural conditions: 67 N. J. D. 324; 93 Minn. 428; 15 Am. Neg. Rep.'412; 69 Pac. 338; 12 Am. Neg. Rep. 477; 143 Ind. 381; 14 Am. Neg. Cas. 46'6; 21 Am. Neg. Rep. 85. As to expert testimony: 11 R. C. Iy. 581; 74 S. C. 235; 59 S. C. 318.

Before Wilson and Bowman, JJ., Columbia, Accounting by W. J, Simons, as committee of the person and estate of R. J. Palmer, a lunatic, contested by R. J. Palmer. From an order of Judge Wilson requiring the probate.

<p>Before Shipp, J., Bennettsville, Spring term, 1916.</p> <p>Action by Don Kelly against the Keystone Lumber Company. Judgment for plaintiff, and defendant appeals.</p> <p>The appellant states his case as follows:</p> <p>“Don Kelly, on the 28th day of October, 1913, while in the employ of the Keystone Lumber Company, ‘and attending to his regular duties,’ was struck on the right side and on the right arm by a rope that was used in rigging up a skidder. The skidder, at this time, was on an ordinary flat car. The track had been built out in the woods, and headed toward a tree, and at this point the machine was in operation. The bull block was rigged up to this tree by means of a chain, to which was attached a rope, holding the bull block, or pulley arrangements, steady. The chain to the tree holding the derrick or bull block in place gave way, and the rope, striking Don Kelly, injured him.</p> <p>“The plaintiff, Don Kelly, in operating this skidder, was in charge of the throttle of the engine, and also of the friction lever which controls the drum. When the engine is running and the lever released the cable is unwound from the drum, taken out into the woods, fastened to the saw stock, the signal given to the man operating the skidder, and by pressing the lever down, this cable is tightened and the log drawn in and loaded on a car. This pull throws pressure on the chain that holds the bull block in position, and it was at the time the saw stock was being thrown in and the pressure was on this chain that it gave way and struck Kelly, who was on the flat car where the skidder was stationed. The strain upon the cable, and consequently upon the bull block, is regulated by pressure upoñ the friction lever in charge of operator.</p> <p>“This way of rigging up a skidder is the usual and ordinary way of doing this work. The chain gave way at this time because of the fact that it was defective. Don Kelly knew that the chain was defective, and continued to work it without being told to do so after the defect was noted, and without being promised that the chain would be repaired. Don Kelly was 24 years old on .the 27th day of September, 1915. Therefore he was about 22 years old when the accident occurred.</p> <p>“The sole question before the Court at this time is whether or not Don Kelly assumed the risk of the injury Which he afterwards sustained.”</p> <p>distinguishes: 103 S. C. 102; 104 S. C. 452 and 411; 89 S. C. 387. As to assumption of risk, cites: 18 S. C. 278; 102 S. C. 402; 85 S. C. 363; 233 U. S. 473; 55 L. R. A. (N. S.) 1915c, 47. The case at bar does not fall within the doctrine announced in the line of cases holding that with knowledge of the defect and of the danger the employee may continue in order to meet an extraordinary, emergency: 66 S. C. 204; 18 S. C. 280; 48 S. C. 3.84; 52 S. C. 443; 61 S. C. 478. Nor does the case 'at bar fall within the rule recognised where the employee, knowing the defect, continues the zvork, relying upon the master’s assurances of safety, or promise of reparation: 55 S. C. 100; 72 S. C. 346; 21 S. C. 547; 72 S. C. 264; 72 S. C. 102; 80 S. C. 232; 72 S. C. 237.</p> <p>cite: As to assumption' of risk: 13 Cyc. 761; 26 Cyc. 1196-1202; 191 U. S. 64; 233 U. S. 492; 99 S. C. 374; 102 S. C. 402; 80S. C. 238; 61 S. C. 468.</p>

Before Hon. Edw. McIvEr, special Judge, Charleston, Action for alimony by Agnes E. Molloy against T, L. Molloy. From an order granting plaintiff’s motion for temporary alimony and counsel fee, defendant appeals. cite: 10 Rich. Eq. 173; 91 S. C. 246; 94 S. C. 204; 69 S. C. 125. submit: An order granting alimony pendente lite and counsel fees is within the discretion of the trial.

Before Prince, J., Manning, Suit by C. F. McFadden against Lena E. McFadden and others. From a decree, plaintiff appeals. The following is the decree of trial Court: This is a suit for specific performance on the part of the plaintiff against Lena E. McFadden, in which other parties claiming interest in the land are made parties. Lena E. McFadden refuses to purchase, alleging that the plaintiff cannot give a good and marketable title to the premises.

Before Gary, J., Greenwood, Actions by estate of John. Silvey, W. A. Speer, A. C. McHand and R. K. Rambo, partners known and trading under the firm name of John Silvey & Co., and by the Craddock-Terry Company, and by the Ward-Truitt Company, against Leon Koppell and Morris Koppell, partners known and trading under the firm name of the Palmetto Dry Goods Company.

<p>Before Seasf, J., Spartanburg,</p> <p>Action by A. J. Thomas and others against the Spartan-burg Railway, Gas & Electric Company and another. From an order allowing plaintiffs to examine as witnesses officers of the unnamed defendant, and an order settling the “case,” defendants appeal.</p> <p>cite: As to discovery: Code Civ. Proc., secs. 429 and 430 ; 40 S. C. 393, 400; 24 S. C. 558; 14 Cyc. 342, 346, 347, 348. 'Appeal lies: Code Civ. Proc., sec. 11 s. d. D.; 101 S. C. 191.</p> <p>cite: 89 S. C. 579; 98 S. C. 196.</p>

Before SkASB, J., Saluda, Action by B. Frank Forrest, as administrator of the estate of W. L. Parkman, deceased, against John D. Jennings, in his own right and as administrator with the will annexed de bonis non of the estate of Rosanna Parkman, deceased. Decree for plaintiff, and defendant appeals. cites: As use of technical terms by testator: 6 Rich. Eq. 26; 1 Rich. Eq. 396; 44 Am. Dec. 229. Effect to entire will: 3 Strob. Eq. 211.

Before Bowman, J., York, Spring term, 1916. Action by Leslie Caston, by his guardian ad litem, against the City of Rock Hill. Judgment for plaintiff, and defendant appeals. Defendant’s exceptions were as follows: 1. Because of error in-charging the jury “that the term 'street,’ as employed in the statute, includes the- pavement or sidewalk for pedestrians and also the highway part thereof used by vehicles — that is, what the term in its ordinary acceptation includes.

<p>Before Prince, J., Barnwell,</p> <p>Paul H. -Allen was convicted of obstructing a road, and he appeals.</p>

Before Prince, J., Aiken, Action by P. M. Markert against the North Augusta Warehouse & Fertilizer Company: From a judgment for plaintiff, defendant appeals. cite: As to innocent purchaser: 6 S. C. 159. Plaintiff’s lien: 96 S. C. 313. Notice to defeat rights of innocent purchaser: 35 Cyc. 346; 70 S. C. 274; 75 S. C. 264 and 560; 59 S. C. 146.; 70 S. C. 489. Remedy of lienee: 14 S. C. 38; 15 S. C. 548; 1 Bailey 238; 43 S. C. 459; 53 S. C. 132; 105 S. C. 157; 69 S. C. 350.

Before Gary, J., Florence, David Smith and Dpffy Graham were jointly indicted for murder, and convicted of manslaughter. Duffy Graham appeals. cite: As to fight without concert: 4 A. & E. Enc. of L. 620; 27 Ala. 37; 36 S. C. 533. Evidence of assistance: 11 A. & E. Enc of E. (2d ed.) 35; 1 Bishop Cr. Daw 648 (4) ; 2 Brev. 338; 4 Am. Dec. 583; 41 So. 283; 15 So. 722; 2 A. & E. Enc. of D. (2d ed.) 36; 33'Ind. 418; 65 Mo. 29.

Before Mauldin, J., Dillon, Action in claim and delivery by Caroline Hamilton against N. M. Blanton. From a judgment for plaintiff, defendant appeals. submits: The landlord’s remedy to enforce lien under Civil Code, 1912, secs. 4162, 4166, is exclusive; and cites: 55 S. C. 499; 15 S. C! 552; 91 S. C. 123; 14 S. C. 40; 101 S. C. 355; 1 Corpus Juris. 989, par. 102; 20 S. C. 484, 485; 49 S. C. 6. Claim and delivery: 70 S. C. 547; 102 S. C. 494.

Before Mauldin, J., Dillon, Action by the Beaufort. County Lumber Company against Ivey Johnson and D. S. Hyatt. From a decree for plaintiff, defendants appeal.

Before Wilson, J., Dillon, November, 1914; Rice, J., Action by J. D. Haselden against W. M. Hamer. From judgment for plaintiff, defendant appeals. Held: to demand of Hamer their value, which he is now doing under supplemental complaint. The evidence of Mr. Mullins and the plaintiff makes it clear enough that Haselden applied to the former for a loan with which to pay Hamer the sums due him, and for the repayment of which Hamer held the stocks as a pledge.

Before Mauedin, J., Camden, Action by C. L. China against Seaboard Air Line Railway. From judgment for plaintiff, defendant appeals. cite: As to burden of proving malice: 16 S. C. 393; 70 S. C. 429; 5 S. C. 476; 20 S. C. L. 499. Larceny after breach of trust: Crim. Code, sec. 188. Consultation with counsel as negativing malice: 19 A. & E. Enc. of L. 650, 657, 658, 659.

Before DeVorE, J., Columbia, Petition by W. H. Gibbes against Alfred A. Richardson. From the decree rendered, both parties appeal. The decree of the trial Court was: The complaint in this cause is brought under and by authority of sections 466 and 470 of the Code of Procedure 1912. To the complaint involved here, the defendant, A. A. Richardson, filed a demurrer. I shall not consider the demurrer, except in so far as the same may be affected by this decision.

<p>Before DeVorE, J., Chesterfield,</p> <p>Action by H. R. Whitman ¿gainst the Seaboard Air Line Railway. Judgment for plaintiff. From an order of the Circuit Court dismissing defendant’s appeal to the Supreme Court, it appeals.</p> <p>cite: Code Civil Proc. 384; 52 S. C. 505; 89 S. C. 108; 86 S. C. 262; 65 S. C. 87; 49 S. C. 388.</p>

Before Shipp, J., Chesterfield, Action by H. R. Whitman against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant appeals. submit: This action was admittedly dead on the two first causes of action; hence the •whole basis of his claim. It was not barred; it was dead: 70 S. C. 259, 260; 239 U. S. 199. And cite: As to statutory cause of action: 70 S. C. 258; 60 L. Ed. Co. of Adv. Sheets 121; 57 L. Ed. U. S. 520.

Before Wirson, J., Greenwood, Action by the' Farmers & Merchants Bank against C. A. C. Waller and another. From a judgment for plaintiff, the named defendant appeals. cites: As to boundaries and location: 53 S. C. 90. New trial on question of location: 11 Rich. 597. Possession follows legal title: 78 S. C. 513. Burden of proof: 71 S. C. 322. Presumption from possession: 37 S. C. 102; 14 S. C. 594 and 552; 78 S. C. 23.

<p>1. Elections — Election Contests — Pleading—Remedies.—If an election contest petition is indefinite, the remedy of the contestees is riot by demurrer, but by a motion to make the allegations of the protest more definite and certain.</p> <p>2. Elections — Contests — Inconsistent Findings and Judgment.— Where the judgment in an election contest was that the election was void, an apparent inconsistency in finding that more than one-third of the legal votes were cast against a proposition requiring for its success at least two-thirds of the votes cast would give way to the ultimate judgment, and the election could not be held valid as a defeat of the proposition submitted.</p> <p>3. Elections — Qualifications of Voters — Residence.—Residence of a person being a mixed question of law and fact, his intention is the. controlling element.</p> <p>4. Elections — Qualifications of Voters — Residence—Proof of Intention. — Intention of a voter may be proved by his acts and declarations or other circumstances.</p> <p>5. Elections — Qualifications of Voters — Residence—Proof of Intention. — When all the circumstances, taken together, are not inconsistent with a voter’s intention to retain an established residence, they are insufficient in law to deprive him of his rights; for it will be presumed that he intends to continue a residence once gained until the contrary appears.</p> <p>6. Elections — Qualifications of Voters — Residence—Proof of Intention. — That a man does not live, sleep or have his washing done where he has gained a residence, or that his family lives elsewhere, or that he works elsewhere are facts not necessarily inconsistent with intention to continue residence, and, if opposed by his oath, corroborated by indisputable circumstances, are insufficient to deprive him of the right to vote gained by the established residence.</p> <p>7. Elections — Qualifications of Voters — Residence—Proof of Intentoin. — Evidence held insufficient to sustain finding that a voter whose vote was protested on the ground of nonresidence had lost his residence once established in the county where he voted.</p> <p>8. Elections — Qualifications of Voters — Residence—Proof of Intention. — If a person votes at an election in another county, his act being inconsistent with an intention to retain his residence, he is not entitled to vote in the county.</p> <p>9. Elections — Qualifications of Voters — Payment of Poll Tax.— Const., art. 2, sec. 4, subd. “a,” requiring as a prerequisite to the right to vote that the voter shall have paid a poll tax six months before election, if then due and payable, applies to all elections whether general or special.</p> <p>10. Elections — Qualifications of Voters — Payment of Poll Tax.— Under such section, the poll tax for the year 1915, being payable at any time between October 15th and December 31st, without penalty, any elector who paid the tax on or before December 31st was entitled to vote at the election on May 9, 1916.</p> <p>11. Elections — Validity—Receipt of Void Ballots. — Where enough voters were permitted to vote without having paid the poll tax under Const., art. 2, sec. 4, subd. “a,” to have changed the result of the election, the whole election was void, where the poll could not have been purged of such illegal votes.</p>

Before Wilson, J., Spartanburg, ' Action by Mrs. G. E. Case, as administratrix of G. E. Case, deceased, against the Atlanta & Charlotte Air Bine Railway and another. Judgment for plaintiff, and defendants appeal.

Before Bowman, J., Camden, Action by Eunice Outlaw against the National Council, Junior Order United American Mechanics, and another. From a judgment for plaintiff, the defendant named appeals. cite: As to answer of local lodge: 3 A. & E. Enc. of L. 295; 6 S. C. 169. Answer as to catise of death: 86 S. E. 677. Liability of fraternal orders: 86 S. E. 677; 69 S. E. 414; 66 S. E. 579.

<p>Before Prince, J., Anderson,</p> <p>Suit by J. Irvin Brownlee and others against J. A. Brock and others. Judgment for defendants, and plaintiffs appeal.</p> <p>cites: As to nature of assessment certificates: 48 S. C. 395; 85 S. C. 156.</p> <p>cite: As to provision for interest on bonded indebtedness: 22 Cyc. 1522 ; 16 A. & E. Enc. of E. 1001. Hodgepodge legislation: Cooley’s Const. Lim. 171, 173; 36 Cyc. 1017; 76 S. C. 332; 106 S. C. 159. Title of act: 77 S. C. 272; 88 S. C. 493; 74 S. C. 448; 79 S. C. 96. Special legislation: 77 S. C. 260; 61 S. C. 205. Bonded indebtedness: 103 S. C. 10, 50, 184; 72 S. C. 546. Petition for election: 95 S. C. 104.</p>

<p>1. Wills — Contract to Make Will — Evidence—Sufficiency.—In an action to enforce against executors and legatees of the estate of his mother an alleged ’contract whereby mother was to make plaintiff equal by her will, evidence held insufficient to prove the contract alleged by the measure of proof required in such case.</p> <p>2. BnuiTY — Issues for Jury — Denial—Discretion of Court. — In actions in equity, although parties comply with the statute and rule 28 of the Circuit Court, denial' of a jury trial is by express terms of Code Civ. Proc., sec. 312, within the discretion of the Court.</p> <p>3. Appeal and Error — Denial of Jury Trial — Abuse of Discretion.— Denial of a jury trial in an equity suit will not be disturbed on appeal, in the absence of a showing of prejudice by the party complaining.</p> <p>4. Appeal and Error — Review—Harmless Error. — Error cannot be predicated upon exclusion of an answer where no prejudice is shown.</p>

<p>1. Chattel Mortgages — Delivery—Question for Jury. — In action for possession of mortgaged- chattels, delivery of the note and mortgage is a question .of fact susceptible of proof, since it involves intention and act.</p> <p>2. Chattel Mortgages — Delivery.—If a party delivers notes and a chattel mortgage to another for a special purpose of having the other indorse the notes, there is no delivery to the other for his own benefit, and the party incurs no liability to such other.</p> <p>3. Chattel Mortgages — Consideration—Seal—Effect.—While the seal on a note and chattel mortgage is prima facie evidence of consideration, it is not conclusive, and does not prevent proof of the true purpose of execution.</p> <p>4. Payment — Receipts—Burden of Proof. — Burden of proving execution of a receipt for the amount due-on a chattel mortgage is upon a defendant who executed the mortgage.</p> <p>5. Payment — Receipt—Execution—Presumptions.—Although a chattel mortgagee could not read, it is presumed, at least prima facie, that she knew and understood the contents of a receipt, which she executed for the amount due on the mortgage.</p> <p>6. Chattel Mortgages — Actions—Attorney's Fees. — In the absence of provision in the chattel mortgage for the recovery of attorney’s fees, in suit on the mortgage the plaintiff is not entitled to recover such fees.</p>

Before Maurdin, J., Columbia, Suit by J. B, Meyer against Henry T. Bouchier and another. From judgment for plaintiff, the named defendant appeals. cite: As to release of joint debtor: 2 Elliott Contracts, sec. 1482, p. 753; 115 U. S. 300; 28 Fed. Cas. No. '16487; 34 Cyc. 1081-1083; Civil Code, secs. 3944-3946; 72 S. C. 330. Compounded: 35 E. R. A. 141; 2 Johns 405; 2 Q. B. 114. Contribution: 9 Cyc. 800, 801; 7 A. & E. Enc. of E. 341; 4 Pom. Eq.

Before Hon. W. W. Lewis, special Judge, Laurens, Action by M. J. Owings and others against T. M. Shaw and another. Judgment for plaintiffs, and defendants appeal. cite: As to accord and satisfaction: 1 Corpus Juris. 500; 1 R. C. L. 199, 200. Crop mortgages: Civil Code, sec. 4106. Tenancy at will: 10 Pick. 205; 81 Ind. 382; 50 L. R. A. 300; 88 Am. St. Rep. 756. cite: As to accord and satisfaction: 15 Rich. L. 327; 1 Am. St. Rep. 588. Removal of crops: 103 Am.

<p>Intoxicating Eiauons — Prosecution—Jurisdiction of Court of General Sessions- — Statutes.—Acts 1915,.p. 140, sec. 1, provides that it shall be unlawful for any person to convey any intoxicants from a point without the State into the State, or from one point to another in the State, for delivery to any person within the State, etc. Section 7 provides that any person violating the act shall be subject to a fine of not less than $100 or imprisonment for not less than three months, or both, in the discretion of the Court. Cr. Code 1912, sec. 825 (the dispensary act of 1894), provides that no person shall transport from place to place in the State any liquor containing alcohol under a penalty of $100 or imprisonment for 30 days. Const. 1895, art. Y, sec. 18, provides that the Court of General Sessions shall have jurisdiction in all criminal cases, except those in which exclusive jurisdiction shall be given to inferior Courts, and there shall have appellate jurisdiction, and section 21 provides that the magistrates shall have exclusive jurisdiction in such criminal cases as the General Assembly may prescribe; such jurisdiction not to extend to cases where the punishment exceeds a fine of $100 or imprisonment for 60 days. Const. 1868, sec. 19, prescribed that all offenses less than felony or imprisonment for 30 days shall be tried summarily before a justice of the peace. Held, that the dispensary act and the provision of the Constitution of 1868 have been superseded by the act of 1915 and the provisions of the Constitution of 1895, and that the Court of General Sessions had jurisdiction to try defendant charged with violating acts 1915, p. 140, sec. 1.</p>

Before Shipp,' J., Bennettsville, Spring term, 1916. Action by IT. P. Pearson against H. T. Easterling and others. Judgment for plaintiff, and defendants appeal.

Before Smith, J., Anderson, Walter Gaboon and another were convicted of manslaughter, and appeal. cite: Civil Code, sec. 3992; 3 Ene. Ev. 207. Manslaughter a felony: 21 Cyc. 661; 24 S. C. 112, 114; Crim. Code, sec. 148. Felonies disqualify: 15 S. C. 235; 40 Cyc. 2205; 3 Ene. Ev. 204; 48 S. C. 143; 12 S. C. 287. Res gestae: 68 S. C. 310; 83 S. C. 477; 76 S. C. 92; 68 S. C. 277; 56 S. C. 369; 68 S. C. 310.

Before Sease, J., Spartanburg, Summer term, 1916. Action by the Morgan Silver Plate Company against the Bobo Undertaking Company, R. E. Cudd and others, and C. P. Hammond and others. From a judgment for plaintiff, defendants, Cudd and others and Hammond and others, appeal.

<p>Before Moore, J., Greenville, Fall term, 1916.</p> <p>J. H. Cole was convicted of bribery, and he appeals.</p> <p>cite: 5 Cyc. 1039; 97 Am. Dec. 711; 39 Cyc. 1364; 29 Cyc. 1327, 1332; 40 Cyc. 2171, 2177.</p>

<p>Appeal and Error — Discontinuance of Appeal. — Where a case was settled by appellant without knowledge of his attorney, the appeal was discontinued.</p>

Before Wiuson, J., Columbia, Spring term, 1916. Action by Sarah Sternheimer against the Order of United Commercial Travelers of America. Judgment on directed verdict for defendant, and plaintiff appeals. cite: As opening and closing case: C. C. Rule 59; 30 S. C. 207. Issue for jury as to payment: .16 A. & E. Enc. of E. (1st ed.) 465. Waiver: 102 S. C. 381.

Before MemmingEr, J., Charleston, John Harley and others were convicted of maintaining a lottery, and appeal. Appeal dismissed. cites: As to search: 88 S. E. 411, As to charge: 15 S. C. 544, 545; 16 S. C. 460. cites: As to admissibility of articles as evidence: 40 S. C. 363. Constitutional restrictions: 123 U. S. 166; 21 Wall. 171; 92 U. S. 542; Greenleaf Ev., sec. 254a; 90 S. E. 408-411.

<p>Insurance — Action on Policy — Evidence.—In an action on a life policy, where plaintiff alleged that she was the legal wife of the insured, and defendant alleged that insured was “living with another woman as his wife,” it cannot, after admitting that plaintiff was insured’s legal wife, introduce evidence that she was merely his concubine.</p>

Before SeasE, J., Orangeburg, Procéeding by Daniel D. Berry and others against Gena Ammons and others to set aside an order of the Circuit Court establishing a drainage district. From an order of the Circuit Court affirming that of the clerk, complainants appeal. The following exceptions -\yere taken in the case: 1.

Before Wirson, J., Anderson, Spring term, 1917. Action by Fox & Weeks against Mrs. Alice M. Laney. From judgment for defendant, plaintiffs appeal. submits: Charge was misleading and not applicable to case: Bashfield Instructions to Juries, pp. 182, 194; 60 S. C. 9; 57 S. C. 280; 102 S. C. 57; 78 S. C. 537; 58 S. C. 247. Original promise: 9 Cyc. B. 666. Consideration:9 Cyc., pp. 310, 311, 315; 3 Parsons Contracts 24; 29 S. C. 9. Charge misleading: 102 S. C. 413.

Before Bowman, J., Monck’s Corner, Consolidated actions by Philip Driggers against J. I. Cannon. Judgments in magistrate’s Court for plaintiff, and defendant appealed to Circuit Court, where appeal was dismissed, and defendant appeals. cites: As to jurisdiction: 19 S. C. 218. Necessity for plaintiff's right to possession: 34 Cyc. 1303; 102 S. C. 499. Share croppers: 52 S. C. 580; 18 S. C. 510; 56 S. C. 298; 102 S. C. 499.

Before DeVorE, J., Bennettsville, Action by J. C. Hubbard, trustee, against F. G. Hollis. Judgment for plaintiff, and defendant appeals. cites: As to notice of insolvency: 97 U. S. 80. cites: 64 S. C. 460; 130 Fed. 782; 143 Fed. 295; 165 Fed. 853. Equitable action: 108 U. S. 74. submit: Action is legal, not equitable: 70 S. C. 478; 67 S- C. 69. Issue for jury: Loveland Bankruptcy 625, 626. Notice of insolvency: 64 S. C. 460.

<p>1. Replevin — Satisfaction of Judgment by Delivery of Property— Estoppel to Contend Property was Delivered. — Defendants in replevin, cast in judgment, had. the right to deliver the property in kind in satisfaction of the judgment, but they could not convert it to their own use, allow it to be sold under- order of Court, and then contend that it was delivered to plaintiff because plaintiff happened to be the purchaser.</p> <p>2. Replevin- — Judgment for Plaintiff — Conclusiveness as to Liability of Surety. — Judgment for plaintiff in replevin was conclusive as to the liability of the surety on defendants’ bond.</p>

<p>Appeal and Error — Appealable Order. — An order refusing to give judgment on a counterclaim and allowing plaintiff to reply to it after time allowed by law has expired is not appealable, since it was a matter within the Judge’s discretion, and a judgment absolute cannot be rendered in any view of the case.</p>

<p>Gaming — Futures—Instructions.—In an action to recover the balance due on a transaction relating to futures in cotton, the instruction “whether a contract for the purchase or sale of cotton for future delivery is good or bad depends upon the intention of the parties at the time, and if it was their intention to receive or deliver the cotton or to sell their contract to some one else before maturity, then they are bound by such contract, even though they may have changed their minds after the contract was entered into,” was erroneous because under it the jury could substitute the intention of the parties that the cotton be actually delivered and accepted, as required by statute to that of allowing the contracts to be sold before maturity.</p>

<p>Before Mauedin, J., Spartanburg,</p> <p>Action by Samuel B. James against the Victor Manufacturing Company. Nonsuit was granted, and plaintiff appeals.</p> <p>cite: As to wilfulness: 88 S. C. 47; 88 S. C. IS; 91 S. C. 477; 88 S. C. 7; 98 S. C. 96. Measure of damages: 40 Cyc. 601; 57 N. E. .719; 56 R. R. A. 899; 14 Am. St. Rep. 319; 49 S. C. 95; 65 S. E. 361; 93 S. C. 420. Trespass: 93 S. C. 426; 66 S. E. 59. Reasonable use of stream: 40 Am. Rep. 194; 56 E. R. A. 899; 57 Fed. 1000; 14 L. R. A. 329; 108 U. S. 317; 50 E. R. A. 564; 77 Am. St. Rep. 335.</p> <p>cite: As to no evidence to show damage: 96 S. C. 342. Surface drainage: 110 Mass. 216, 219; 14 Am. Rep. 592; 10 L. R. A. (N. S.) 586; 24 E. R. A. 572. Reasonable me of stream: 60 S. C. 254; 79 S. C. 351; 96 S. C. 420.</p>

Before SeasE, J., Hampton, Action by J. A. McKenzie and others against Leon A. Long and others-. From judgment for appellants, defendants appeal. submits: Order of survey desirable but not required: 32 S. C. 534; 11 S. E. 390; Code 1912, section 3538, and cases cited; 3 McC. 84; 1 Hill 380; Cheves R. 119; 5 Rich. R. 13; 2 Strob. R. 60; 10 Rich. R. 395.

Before Moore, J., Pickens, Condemnation proceedings by Board of County Commissioners for Pickens County against J. M. Freeman and another. Judgment of $100 for defendants, who appealed to Circuit Court, where defendants had judgment for $800, and plaintiff appeals. cite: As to liability of. county: 20 S. C. 116; 40 S. C. 342.

Before Rice, J., Charleston, P. N. Gorse was convicted of unlawfully storing contraband liquors,-and appeals. cites: As to contraband liquors:.87 S. C. 442. Storing: 63 S. C. 103 ; 89 S. C. 132. Proof of corpus delicti: 7 A. & E. Enc. of G. (2d ed.) 864; Wigmore Evidence, sec. 2971; 1 Wharton Crim. Ev. (11th ed.) 454.

Before Memminger, J., Charleston, Rice, J., T. W. Mappus was convicted of a violation of the prohibition law, and he appeals. cites: As to repeal of act fixing time for Court: 89 S. C. 84;82S. C. 130; 30 S. C. 395. submits: Question as change of venue is speculative: 58 S. C. 570. Rffect of void statute: Cooley Const. Rim. (4th ed.) 227. Presumption of constitutionality: 89 S. E. 1028. Acting Solicitor: 91 S. C. 27.

Before Rice, J., Charleston, The Southern Express Company and E. P. Berry were convicted of violating the prohibition statute, and they appeal. cites: As to regulations interstate commerce: 237 U. S. 424 and 597; 204 U. S. 429; 222 U. S. 370; 223 U. S. 1; 236 U. S. 439, 445 ; 242 U. S. 311. Corporation not liable for criminal act of servant: 43 L. R.A..

<p>Before Rice, J., Charleston,</p> <p>A. J. Barton was convicted of an offense, and he appeals.</p>

<p>Before Moore, J., Greenville,</p> <p>I. P. Burns and others were convicted of violating the liquor laws, and appeal.</p> <p>cites: 68 S. C. 98.</p>

Before Memminger, J., Orangeburg, R. A. Walton was convicted of forgery, and he appeals. The instrument charged to have been forged was as follows: Orangeburg, S. C., 9-30-1914. M. R. A. Walker: Sold to John F. Newborne, Cotton Buyer, 3 bales Cotton, Marks 7. Our Number, 2; weight, 694. Our Number 3 ; weight, 665. Our Number, 4; weight, 668. Jeff Stro.

Before Bowman, J., Abbeville, J. C. Bannister was convicted of disposition of property under lien, and he appeals. cite: As to drawing jury: Civil Code, sec. 4030; 77 S. C. 248. Charge on facts: 47 S. C. 488; 48 S. C. 136. Charge in interrogative form: 49 S. C. 488; 48 S. C. 136.

<p>Intoxicating Liquors — Transportation-—Statute.—In view of Cr. Code 1912, sec. 823, providing that all liquors except those purchased from a county dispensary for a lawful use and those passing through the State consigned to points beyond the State shall be deemed contraband and may be seized in transit without warrant, where a defendant purchased liquor for lawful use from a county dispensary which had the legal right to sell it to him and transported it with his personal baggage to another county not having a dispensary, he was not guilty of the offense of transporting contraband liquor.</p>

Before Wieson, J., Anderson, Action by S. Zemurray against J. K. Menos. From an order of nonsuit, plaintiff appeals. . cite: As to construction of contract: 78 S. C. 5; 89 S. C. 80. Question of law: 67 S. C. 34; 93 S. C. 537. cites: As to offer and acceptance: 9 Cyc. 246, 256, 258; 26 S. C. 258 and 610; 2 DeS. 389; 9 S. E. 689. Burden of proof: 9 Cyc. 757, 741. Acceptance after inspection: 67 S. E. 738; 69 S. E. 881; 58 S. E. 806.

'Before Wilson, J., Union, Action by the Zone Oil Company and others against Sue F. Beaty. On petition by Mrs. Sue F. Beaty and another to restrain a judicial sale. From an order granting the injunction, the Zone Oil Company and others appeal. The chambers order of Judge Wilson, referred to in the opinion, is as follows: The above stated case was heard before me this 26th day of November, 1915, after hearing arguments for petitioners and respondents.

Before Shipp, J., Columbia, Action by A. F. Gobbel against the Columbia Railway, Gas & Electric Company. From an order of nonsuit, plaintiff appeals. cite: As to motion for nonsuit: C. C. Rule 18; 63 S. C. 559; 55 S. C. 450; 80 S. C. 460. Order not to be sustained on additional grounds: 78 S. C. 127. Fraudulent misrepresentations: 20 Cyc. 44, 91 and 86, 87; 9 Rich. F. 300; Bigelow Frauds, secs. 2 and 3; 128 U. S. 383; 1 Strob.

Before Moore, J., Lexington, Actions by Henry M. Sawyer, as administrator of the estate of Paul Mabus, deceased, against Mrs. Sallie Mabus and the First National Bank of Batesburg, and against Mrs. Sallie Mabus and the Citizens Bank of Batesburg. From judgments for plaintiff, defendants appeal.

<p>1. Appeal and Error — Review—Order Dismissing Appeal. — Where a Circuit Court Judge did not assign any reason for his order in dismissing an appeal from a magistrate, and there is nothing in the record showing that he based his conclusions upon any propositions of law contended to be erroneous by appellant’s attorneys, the appellate Court must assume that the order was based on meritorious grounds, if any such are disclosed by the record.</p> <p>2. Magistrate — Jurisdiction.-—-Although Const., art. V, sec. 21, provides that the jurisdiction of magistrates shall not extend to cases in chancery, in an action in claim and delivery, to recover possession of a horse tried before a magistrate, defense of estoppel was in pais, and not equitable in its nature, and hence the magistrate had jurisdiction thereof.</p>

Before Moore, J., Greenville, Action for injunction by Samuel B. James against the city of Greer. From an order sustaining defendant’s demurrer to the complaint, but remitting the case to the Court of Common Pleas, of another county, defendant appeals.- cite: 96 S. C. 26.

<p>Appeal and Error — Review.—Decision in Aiken v. Seabury (92 S. E. 1048), 107 S. C. —, followed.</p>

<p>1. Execution — Execution Against the Person- — Judgment on Which Authorized. — In an action for the division of a crop, a judgment finding plaintiff entitled to one-third of the crop and stating its value was not an ordinary money judgment, and plaintiff was entitled to execution against the person of the defendant after the return of an execution against his property unsatisfied.</p> <p>2. Execution — Execution Against the Person — Persons Liable — Statute. — Where defendant in an action for division of crops disposed of the whole crop pending the action, he was within Code Civ. Proc. 1912, sec. 230, providing that the defendant may be arrested in an action for property embezzled by a person in a fiduciary capacity.</p>

Before Memminger, J., Manning, Fall term, 1916. Suit by the McClary-Broadway Company against S. Dingle and others. From an order sustaining demurrer to the complaint, plaintiff appeals. cites: As to appointment of receiver before judgment: Code Civ. Proc., sec. 303 ; 84 S. C. 222. Joinder of actions: Code Civ. Proc., sec. 218; Pom. Code Rem., p. 494, sec. 370. Assignments by insolvent debtors: Civil Code, sec. —; 39 S. C. 375; 80 S. C. 90; 40 S. C. 1. cites: 27 S. C. 415.

Before Shipp, J., Columbia, Action by T. B. Prince against the Massasoit Manufacturing Company. Judgment for plaintiff, and defendant appeals. The material portions of the complaint were as follows: “3.

Before Maurdin, J., Darlington, Action by R. W. Williamson against G. Walter Abbott and others. From a judgment for plaintiff, defendants appeal. cite: As to requirement of easement by prescription: 2 McC. 445; 53 S. C. 514. Degree of proof: 22 S. C. 545. Relation of tenant: 1 Cyc. 1062; 53 R. R. A. 951; 89 Am. St. Rep. 89; 1 Spears R. 231; 35 S. C. 610; 15 Am. Dec. 455; 17 Am. Dec. 518; 47 Am. Dec. 462. Adverse user: 2 Strob. 60; 96 S. C. 259.

Before Mauldin, J., York, Action by W. T. Dallas and others against Claud Inman and others. From an order at chambers sustaining demurrer to complaint and refusing temporary injunction, plaintiffs appeal. submit: The notice of motion to vacate restraining order, and return to order to show cause did authorize order dismissing complaint. The relief went beyond that demanded in notice: 19 S. C. 294. It controverted allegations of complaint, and was not a demurrer: Code Civ.

Before Prince, J., Kingstree, Action by H. H. Kinder against the Atlantic Coast Lumber Corporation and others. • Defendants appeal from order refusing to dismiss complaint and striking case from the calendar. cite: As to former decision by preceding Judge construing contract: 54 S. C. 582; 43 S. C. 221; 92 S. C. 1; 90 S. C. 229; 88 S. C. 464; 16 S. C. 364. Form or purpose of former construction immaterial: 59 How. Pr. 136; 30 Kan. 234; 93 Am.

Before Moore, J., Greenville,-, 1916. W. R. Tooley and Fleet Cantrell were convicted of storing alcoholic liquors, and they appeal. The exceptions follow: 1.

<p>1. Criminal Law — Continuance—Discretion of Court. — Where no subpoena or warrant for arrest of absent witness was shown to the Court and there was no compliance of defendant with Circuit Court rule 27, there was no error in overruling a motion for continuance, especially where one of the witnesses appeared and testified in the case.</p> <p>2. Criminal Law — Appeal and Error — Matters Reviewable. — Where defendant’s attorney simply objected to testimony without stating any grounds and the exception does not point out any error of law or prejudicial error, the exception presents nothing for review.</p> <p>3. Homicide — Evidence—Reputation of Deceased. — The general reputation of the victim of a homicide for violence may be shown, but not particular acts- of violence.</p>

Before PeuriEoy, J., Union, B. M. Charles and W. J. Estes pleaded guilty to a violation of the dispensary law, and the sentence imposed was suspended on terms.

Before PeuriEoy, J., Union, U. M. Charles and another were convicted of assault and battery of a high and aggravated nature, and appeal. cites: As to sentence on conviction for assault and battery: 88 S. C. 229; 89 S. C. 134; 86 S. C. 369, 370. Relevancy of testimony within discretion of trial Court: 98 S. C. 121; 35 S. C. 41; 60 S. C. 67; 65 S. C. 2; 72 S. C. 350; 73 S. C. 387; 75 S. C. 265; 76 S. C. 275; 83 S. C. 58 and 103; 85 S. C. 17; 89 S. C. 135 and 235.

<p>Corporations — Directors—Liability.—Where a sheriff paid execution sale proceeds to a corporation’s director and treasurer, who distributed them among stockholders, all the directors are liable to an unpaid corporate creditor, even if the execution sale dissolved the corporation, since Civ. Code 1912, secs. 2814-2816, continues the directors of dissolved corporations as trustees to collect its assets and pay its debts.</p>

Before SeasE, J., Georgetown, Action by Julius Owens, as administrator of the estate of Flora Owens, deceased, against the Atlantic Coast Lumber Corporation. From an order requiring plaintiff to amend his complaint, he appeals. cites: As to nature of action: Civil Code, sec. 3955. Contract only shows relationship between parties, and was collateral to cause of action: 70 S. C. 875; 81 S. C. 317; 66 S. C. 124.

Before Wilson, J., Kingstree, Consolidated actions by C. F. Stuckey and W. A. Fitch against D. W. Alderman & Sons Company. From an order granting defendant’s motion for change of place of trial, plaintiffs appeal. cite: As to venue: Code Civil Proc., sec. 172, subd. 1; 16 S. C. 276; 80 S. C. 488. Lightwood stumps: 27 A. & E. Enc. of L. (2d ed.) 192; 37 Cyc. 339; 36 Wis. 92. Portion of realty: 97 Pa. 486; 30 Pa.’ 185; 72 Am. Dec. 694; 1 Washb.

<p>Before Rice, J., Spartanburg,</p> <p>William Hughes having been convicted of murder appeals.</p> <p>cite: As to manslaughter: 52 Am. Dec. 711; Crim. Code, sec. 148; Clark Crim.’ Daw 165; 66 S. C. 422; 34 S. C. 129; 66 S. C. 475; 79 S. C. 390. Issue for jury: 28 S. C. 572; 101 S. C. Ill; 104 S. C. 258; 106 S. C. 272; 29 S. C. 34; 78 S. C. 186. Omission to charge: 58 S. E. 859; 88 S. E. 822; 50 Atl. 571. Rights of convict: 66 S. E. 788.</p>

<p>Before Peurifoy, J., Beaufort,</p> <p>Ella Freeman was convicted of storing and keeping in possession contraband liquors, and she appeals.</p> <p>cite: 63 S. C. 102; 89 S. C. 132.</p>

Before Smith, J., Lexington, Polly Ann Hedgepath was convicted of grand larceny, and she appeals. cites: As to apparent error in admission of evidence: 12 S. C. 89; 20 S. C. 581; 27 S. C. 609; 34 S. C. 120; 36 S. C. 506; 39 S. C. 151; 40 S. C. 345; 41 S. C. 522.

<p>1. Criminal Law — Res Gestae — Statements of Accused — Duration of Transaction.- — In a murder trial, where defendant claimed that deceased fired first shot and the State claimed deceased was unarmed, and it appeared that fatal shot was fired in a public highway after defendant had alighted from his buggy, that the shooting caused defendant’s horse to run away, -that defendant ran after it, and on his return several minutes later told bystanders that there were two holes in his trousers caused by a bullet fired by deceased, his statement was admissible as part of res gestae.</p> <p>2. Homicide — Evidence — Dyino Declaration. — In a murder trial, where it appears that after deceased was shot he was in a semiconscious condition from which he reacted somewhat, the subsequent dying declaration is not admissible until it is proven that declarant’s condition causing disability had been removed.</p>

<p>Replevin — Venue—Subject Matter. — In an action of claim and delivery for possession of a horse, where the defendant, who had possession, resided in K. county, it was error to refuse a change of venue to such county, although plaintiff and the other defendant resided in the county where the action was brought, in view of Code Civ. Proc. 1912, sec. 172, providing that an action for the recovery of personal property restrained must be tried in the county in which the subject of the action, or some part thereof, is situated.</p>

Before Wieson, J., Greenwood, Action by J. L. Cook against George Q. Cook. From an adverse order, plaintiff appeals. cite: As to procedure to enforce lien: Civil Code, sec. 4167; 31 S. C. 444; 27 S. C. 126. cite: Civil Code, secs. 4166, 4167, 3059; 26 Stats. 178; 31 S. C. 444; 58 S. C. 98; 27 S. C. 126. Attachment: Code Civ. Proc., sec. 279.

Before Wieson, J., Bishopville, J. Ellis Gilbert and others were convicted of assault and battery, and appeal. submits: Evidence not reviewable on appeal: 65 S. C. 510; 68 S. C. 53 and 119. Common design of defendants: 1 Brev. 310. Charge: 79 S. C. 97. cites: As to aiding and abetting: 97 S. C. 442 ; 94 S. C. 26; 51 L. R. A. (N. S.) 718. Cross-examination: 98 S. C. 182. Sentence: Crim. Code, sec. 105; 58 S. C. 436; 68 S. C. 196; 88 S. C. 229; 86 S. C. 370.

<p>Before Peurieóy, J., Ridgeland,</p> <p>William Gens was convicted of having in his possession an illegal amount of intoxicating liquors, and appeals.</p>

Before DeVorE, J., Columbia, Action by Joseph Safran against Moses Safran. Defendant appeals from order refusing to declare an undertaking in a claim and delivery proceeding null and void. cites: C. C. Rule 9; Civil Code 1176; Code Civ. Proc. 260; 5 Cyc. 9, 10; 31 S. C. 390; 31 S. C. 375; 38 S. C. 228; 9 Corpus Juris 27. cites: As to voluntary bond:, 2 Strob. 152; 1 Wend. 35; 4 Kan. 570.

<p>1. New Trial — Refusal—Discretion of Court. — The Circuit Court’s action in ’refusing defendant a new trial after a default judgment against it in a magistrate’s Court on the ground of inadvertence, .mistake, etc., rests within the Court’s discretion.</p> <p>2. Carriers — Penalty for Failure to Pay Claim — Validity.—A statutory provision, penalizing a railroad $50 for'not paying a claim within 40 days, held invalid when applied to an interstate shipment.</p> <p>3. Appeal and Error • — ■ Harmless Error —• Excluding Affidavit. — An exception that the Court excluded from the case on appeal an affidavit offered at the hearing will be overruled, where the affidavit would not change the result.</p>

Before Peurieoy, J., Beaufort, Mortgage foreclosure proceedings by N. Christensen and F. H. Christensen, trading as N. Christensen & Sons, against Oliver Griffin. Judgment for plaintiffs, and' defendant appeals. cite: As to form of judgment: 1 Black Jdmts. 8. Caveat emptor: 2 Bail. 413; 89 U. S- 634. cites: As to lien on homestead: Const., art. Ill, sec. 28; Civil Code, sec. 3718; 52 S. C. 222; 33 S. C. 230.

<p>Before Moore, J., Greenville,-, 1917.</p> <p>Arthur Batson and others were convicted of illegal sale of liquor, and appeal.</p> <p>cites: 103 S. C. 334.</p>

Before Maurdin, J., Spartanburg, Action by E. S. Thompson, as executor of A. E. Thompson, deceased, against H. E. Chapman, administrator of Albertha Lawrence, deceased. Judgment for plaintiff, and defendant appeals. cite: As to issue for jury: 106 S. C. 123, 128; 99 S. C. 417, 421. Presumption of ownership: 16 Cyc. 1074. Inferences: 149 S. W. 21; 141 N. W. 231; 50 So. 30; 133 N. W. 142; 181 Fed. 91; 85 N. E. 832; 97 Am. Dec. 59; 74 C. C. A. 553; 103 111.

Before Prince, J., Sumter, Action by Anna H. Singleton against D. W. Cuttino. From a judgment for plaintiff, defendant appeals. cites: As to effect of decision ■ on former appeal: 30 S. C. 534; 33 S. C. 582; 4 Corpus Juris, 1239, 1241. As to legal judgment in equitable proceeding: 32 S. C. 203; 88 S. C. 140. Damages: 39 Cyc. 1992; 126 Ga. 786; 8 L. R. A. (N. S.) 137. Specific performance wrong remedy: 32 S. C. 203, 528; 41 S. C. 354; 36 Cyc. 556; 60 S. C. 391; 54 S. C. 437.

Before Shipp, J., Bishopville, Action for partition by R. K. Huggins against F. V. Huggins and others. From a judgment for defendants, plaintiff appeals. cites: As to presumption: 89 S. C. 268, 272; 20 S. C. 52; 57. S. C. 413; 85 S. C. 329; 93 S. C. 268; 87 S. C. 1; 30 S. C. 467; 24 S. C. 1; 86 S. C. 389.

<p>1. Criminal Law — Instructions — Province of Jury — “Flight” — “Leaving a Community.” — In a murder case, “leaving a community” and “flight” are not synonymous words, since “flight” is the evading of the course of justice, by a man voluntarily withdrawing himself, and where a defendant left the community after a crime, but denies that he was evading arrest, flight or evasion of arrest is a question for the jury; hence it was error to charge that an inference might be drawn against the defendant from the fact that he left the community.</p> <p>2. Witnesses — Impeachment—Hostile Attitude. — In a murder case, the Court properly refused to allow one of the witnesses to answer the question, “Going back a little bit, didn’t your brother get in a shooting scrape several years ago?” as it did not suggest its alleged purpose to show the hostile attitude of the witness.</p>

<p>1. Appeal and Error — Burden to Show Error. — Defendant, claiming that the trial Court abused its discretion in not granting defendant’s motion to open up a default judgment against him, to be allowed to answer, and to require plaintiffs to amend their complaint, has the burden to show the abuse of discretion.</p> <p>2. Judgment — Pleading — ■ Default — Motion to Set Aside and for • Time to Answer — Compliance With Rule of Court — Time for Answer or Demurrer. — Under rule 19 of the Circuit Court, time to answer or demur to a complaint will not be granted, unless the party applying for the order shall present to the Judge to whom the application is made a certificate of the attorney or counsel retained by defendant to defend the action that, from the statements made to him by defendant, he verily believes that defendant has a good and substantial defense on the merits, and motion to set aside a default judgment will not be granted unless there is a substantial compliance with the provisions of the rule.</p> <p>3. Judgment — Default — Application to Open — Negligence — Sufficiency of Evidence. — On defendant’s motion to open up a default judgment against him and to be allowed to answer, etc., evidence held to show inexcusable negligence and want of vigilance on defendant’s part to such an extent as to warrant the trial Court in the exercise of his discretion in denying the motion.</p>

<p>Before Peurifoy, J., Ridgeland,</p> <p>George Allston was convicted of an offense, and he appeals.</p> <p>cites: 104 S. C. 146; 73 S. C. 116.</p>

Before Hon. Jos. A. McCullough, special Judge, Lexington, Action by C. L. Cassidy against J. F. Hutto;. R. L. Lybrand & Co., Incorporated, intervening. From a judgment for intervener, plaintiff appeals. cite: As to landlord’s lien for rent: Civil Code, sec. 4162; 36 S. C. 277] 81 S. C. 464, 465. Substitution of parol for prior written contract: 81 S. C. 464; Rice’s Eq. 108; 79 S. C. 141.

Before Msmminger, J., Charleston, -, 1916. Action by the Enterprise Real Estate Company against the City Council of Charleston and others. Held: but was an election at which was also submitted cotemporaneously the question as to the issue of bonds. 4.

Before PeuriEoy, J., Spartanburg, Action by Mrs. S. A. Hughes against the South Carolina Light, Power & Railway Company and another. From an order setting aside the verdict and granting new trial, plaintiff appeals. cite: As to ground for setting aside verdict: 75 S. C. 326 and 517; 100 S. C. 283. Issues: 7S S. C. 293.

Before Hon. W. P. Greene, special Judge, Edgefield. Action by Prank B. Powell, by his guardian ad litem, against Mrs. Elizabeth C. Cobb. From a judgment of the Court of Common Pleas affirming a judgment of the magistrate’s Court for plaintiff, defendant appeals. cite: As to the judgment on appeal in Circuit Court: Code Civ. Proc. 383. Lack of evidence to support judgment: 44 S. E. 385. Fraud: 3 Pom. Eq.

<p>1. Trial — Verdict—Severance as to Parties — (Several Liability.— In an action for personal injuries received in a collision between, plaintiff’s bicycle and automobile, where city is charged with failure to light street at and near place of accident, and other defendants are charged with operating an automobile with reckless speed without lights and without signal, the tort is several, not joint, and the jury may find city guilty and acquit other defendants.</p> <p>2.' Municipal Corporations — Defect in Streets — Negligence—Sufficiency of Evidence, — In an action against a city to recover for personal injuries received in collision caused by defective condition of street, where city which owned electric light plant had failed on night of accident to light a lamp at the crossing of two much-traveled streets, the jury might reasonably infer that city had been negligent.</p> <p>3. Municipal Corporations — “Defect in Street” — “Mismanagement”— Duty to Light. — The negligent failure by a city owning an electric light plant to light an electric lamp at the crossing of two much-traveled streets constitutes a “defect in the street” and a “mismanagement” of the lamp, so as to render it liable, to one who suffers personal injuries in collision caused by such neglect between his bicycle and automobile.</p>

Before Shipp, J., Barnwell, Action by the Southern States Phosphate & Fertilizer Company and another against John F. Weekley and others. Judgment for defendants, and plaintiffs appeal. cite: As to burden of proof of ownership of money: 94 S. C. 65; 98 S. C. 406. Burden of proof of notice of fraud: 77 S. C. 541. Constructive trusts, or trusts ex maleficio: Pomeroy Eq. Juris. (3d ed.), secs. 1044 and 1057; 39 Cyc. 26 and 33; 5 Am. State Rep. 593; 48 Mo. 115; 19 Dec. Dig. 1579.

<p>Before Gary, J., Greenwood,</p> <p>Action by A. H. Jennings and others against the Automobile Sales Company and others. From an order appointing a receiver, defendants appeal. ;</p> <p>cite: As to evidence of corporate organization: Civil Code, secs. 2838, 2839. Receiverships: 34 Cyc. 79 and 80; 73 S. C. 131; 53 S. C. 364; Code Civ. Proc. 303.</p> <p>cite: 84 S. C. 220.</p>

Before MemmingER, J., Orangeburg, Action by Daniel H. Marchant against F. J. D. Felder and others. Judgment for plaintiff, and the named defendant appeals. cite: As to mistake in measurement: 39 Cyc. 1311, 1313; 2 McC. 441; 98 S. C. 286. Boundaries control over distances: 53 S. C. 91; 59 S. C. 133; 41 S. C. 198; 98 S. C. 286. Repugnance between general and particular description: 2 Devlin Deeds, sec. 1039; 3 Strob. 127.

Before Hon. Jos. A. McCullough, special Judge, Lexington, Action by Mrs. Mary E. Strickland, administratrix of the estate of H. B. Strickland, deceased, against the Southern Railway Company. From a judgment for defendant on its motion for directed verdict, plaintiff appeals. cite: As to issue for jury: 103 S. C. 115. Safe tools and appliances: 100 U. S. 213-217; 135 U. S. 554-570; 191 U. S. 64-67.

Before Shipp, J., Camden, Action by Ellen M. Williams against the Northwestern Railroad Company of South Carolina and another. From a judgment against the named defendant, it appeals. cite: As to cause of action: Civil Code, sec. 3226. Inconsistent causes of action: 1 Enc. PI. & Pr. 183; 7 lb. 352; Pomeroy Code Rem. (4th ed.) 659, 660. Ownership or control of engine: 67 S. E. 546; 31 S. C. 378. cites: As to waiver of misjoinder by failure to demur: 47 S. C. 211; 38 S. C. 485.

<p>Master and Servant — Injury to Servant — Relief Contract — Release in Full.- — Civ. Code 1912, sec. 2808, provides that the acceptance of benefits under a relief department contract shall not bar an action for negligent injury notwithstanding a subsequent release given on payment of such sum only as may be due employee under contract. Plaintiff was injured while employed by defendant and while he was to accept an amount tendered and brought suit for damages for a member of defendant’s relief department. A dispute existed as to the amount due plaintiff on the relief contract, and plaintiff refused his injury. A compromise was effected whereby plaintiff was paid $3,500, which he accepted, executing a release “in full payment by way of settlement and compromise, of all claims and damages growing out of or incident to the injury received by me.” Meld, the release was a bar to a suit on the relief contract.</p>

Before Nice, J, Barnwell, Action by the Southern Cotton Oil Company against J. H. Hewlett and another. 'From an order of the Common Pleas Circuit Court, defendants appeal. cite: As to statutory provisions being mandatory: 19 S. C. 435; 27 S. C. 618; 54 S. C. 241; 67 S. C. 332. Issuance of process: Const, art. V, sec. 31; Civil Code, secs. 1319, 4217; Const, art. IX, sec. 4217; Code Civ.

Before MemmingEr, J., Bishopville, Action by R. D. Welsh against the Atlantic Coast-Rine Railroad Company. From , an order refusing to grant defendant’s motion for an order of survey, it appeals. cite: As to right to appeal from order: Code Civ. Proc., sec. 11, subd. 1; 11 S. C. 122; 65 S. C. 226; 101 S. C. 437; 102 S. C. 442. Right to survey: Civil Code, secs. 3528, 3529; 25 S. C. R. (Chev.) 119; 87 S. C. 424.

Before Wilson, J., Spartanburg,-, 1916. Action by Mrs. Lizzie Wood against the Southeastern Life Insurance Company. Verdict directed for defendant, and plaintiff appeals. cite: As to delivery of policy: 68 S. C. 391; 71 S. C. 356. Payment of premium: 1 Cooley’s Briefs on Ins. 471. Waiver: 97 S. C. 375; 71 S. C. 359. cite: Limitations of agent’s authority: 45 S. E. 547; 71 S. E. 438; Oshander Ins. (2d ed.) 295; 92 S. C. 161. Construction of contract: 25 Cyc. 719; 75 N'.

<p>Before Gary, J., Greenville,.-, 1916.</p> <p>J. A. Burns was convicted of the unlawful transportation of intoxicating liquors, and he appeals,</p>

Before Ricu, J., Charleston, Action by Robert T. Smith, as executor of Elizabeth M. Heyward, deceased, against Julius H. Heyward, as executor of Elizabeth M. Heyward, deceased, as guardian, etc., and others. Prom an order refusing to change the place of trial, defendant named appeals. cites: As to venue: Code Civ. Proc. 172, 173; 22 S. C. 276; 23 S. C. 385; 72 S. C. 572; 11 S. C. 122. also cites: Code Civ. Proc. 174; 25 S. C. 385; 28 S. C. 318. cite as to venue: Code Civ.

<p>Intoxicating Liquors— Illegal Transportation — Confiscation of Automobile — Rights of Mortgagee.' — Where the mortgagee did not have knowledge of or consent to the use of the automobile by the mortgagor for the illegal transportation of liquor, his interest could not be confiscated.</p>

<p>Subrogation — Purchaser op Mortgaged Property — Rights op- Purchaser. — A chattel mortgagor sold a bale of cotton covered by a mortgage, but failed to apply the proceeds to the mortgage debt. The mortgagee sued the purchaser for possession. After seizure of the cotton, but before it was delivered to the mortgagee, the purchaser paid the mortgagee the full amount due on the mortgage, and the mortgagee assigned the mortgage and the debt secured by it to him. Held, that he was not a mere volunteer, and, having paid the mortgage with the understanding that it should not become extinguished, he could recover the balance of the mortgaged property from the mortgagor and subject it to the mortgage debt.</p>

<p>The decree rendered on Circuit by the Hon. Frank B. Gary, Circuit Judge, in case of Seignous v. Limehouse, Sheriff, reported, ante, 107 S. C. 546, 93 S. E. 193, is of interest to the profession, as dealing with the rights and remedies of an innocent mortgage in property subjected to forfeiture because of the acts of the mortgagor, and is here published.</p> <p>1. The alleged unconstitutionality of an act of the legislature is not a ground for issuance of mandamus.</p> <p>2. A mortgagee of a chattel, seized for forfeiture because of a violation of law by the mortgagor, has an adequate remedy at law for its recovery, other than by mandamus to compel its delivery.</p>