Volume 108 — South Carolina Reports

Before Mauldin, J., Camden, February, 1916. Action by Henry Barfield and others against Henry C. Barnes and others.

<p>Before Sease, J., Conway, April, 1916.</p> <p>Action by D. Allen Spivey against the Conway Lumber Company and others. Judgment for defendants, and plaintiff appeals.</p> <p>The declaration of trust involved is as follows :</p> <p>I, Byron B. Moulton, Boston, in the State of Massachusetts, send greeting:</p> <p>Whereas, on or about the 23d day of August, 1904, Rufus G. Melson, Frances Moulton, William P. Melson, Elva Mel-son, Edith A. Pittman and Katie M. Galbraith, heirs at law* of William P. Melson and Mary F. Melson, lately deceased, by proper deed made under their hands and seals, did convey to me, the said Byron B. Moulton, all and singular, the certain plantation and tract of land containing in the aggregate six hundred (600) acres, more or less, situate near the town of Conway, in the county of Horry, in the State of South Carolina, known as the former residence and plantation of the said William P. Melson, deceased, and also a certain parcel of land situate in the town of Conway, in the said county and State, being a part of lot number 33, of which Mary F. Melson died seized and possessed, and fully described in said deed, for the expressed consideration of -, being the amount of outstanding liens and incumbrances against said property.</p> <p>Whereas, by sale of a portion of said premises, to wit: Of the said parcel or part of lot number 33, as aforesaid, I, the said Byron B. Moulton, have received in cash an amount in money equal to that paid out by me in settlement of the aforesaid incumbrances upon the said premises lacking approximately the sum of two hundred and fifty ($250) dollars.</p> <p>Now, know all men, that I, the said Byron B. Moulton, do, by these presents, make known, admit and declare that upon the payment to me of the said sum of (approximately) two hundred and fifty ($250) dollars, with interest thereon from this date, together with all counsel fees, taxes, costs, charges and expenses already incurred by me, and such as may be hereafter incurred in and about the said premises, with the legal interest upon the said charges, if any may be due, within thirty (30) days from date hereof by Rufus G. Melson, Frances Moulton, William P. Melson, Elva Melson, Edith A. Pittman, and Katie M. Galbraith, that I will hold all and singular, the unsold portion of said premises, to wit: the said plantation and tract of land in said deed described, and to which reference is craved for a more particular description thereof, in trust for the use and benefit of the aforesaid Rufus G. Melson, Frances Moulton, William P. Melson, Elva Melson, Edith A. Pittman and Katie M. Gklbraith, their heirs and assigns, saving and excepting therefrom, all and singular, the merchantable timber, of every kind and description, upon the said premises not heretofore sold by said William P. Melson in his lifetime, together with all necessary and proper rights of entry for ingress and egress, ways, rights of way for teams, vehicles, railroads or tramroads for the cutting and hauling of said timber at any time hereafter. But whether the said sum or sums of money be paid me within the said thirty (30) days by the beneficiaries hereinbefore named, or not, I further stipulate and declare that in order to aid and benefit the aforesaid Rufus G. Melson, Frances Moulton, William P. Melson, Elva Melson, Edith A. Pittman and Katie M. Galbraith, I will cause the timber hereinbefore reserved upon the said premises to be sold by my attorney, Robert B. Scarborough, or such other attorney or agent as I may name, in a fair and equitable manner, as expeditiously as practicable, and according to my best judgment and in accordance with my instructions, and the proceeds thereof, after first retaining for myself the said sum of (approximately) two hundred and fifty ($250) dollars, and all attorney’s fees, taxes, costs and expenses incurred herein and in the sale of the said timber, with legal interest thereon (if said sum shall not have been otherwise paid me), I will pay over to the said Rufus G. Melson, Frances Moulton, William P. Melson, Elva Melson, Edith A. Pittman and Katie M. Galbraith, their heirs or assigns, in equal shares and proportions, reserving, however, out of such money going to any particular beneficiary, such amount of money as may be due me by him or her upon any account.</p> <p>And I do further make known, admit and declare that upon the acceptance by said Rufus G. Melson, Frances Moulton, William P. Melson, Elva Melson, Edith A. Pittman and Katie M. Galbraith, beneficiaries, of the terms hereof, within thirty (30) days, as hereinbefore provided, I will cause said land and premises to be surveyed as soon as practicable and the same valued and appraised by three or five commissioners or appraisers to be selected by said Rufus G. Melson, Frances Moulton, William P. Melson, Elva Mel-son, Edith A. Pittman and Katie M. Galbraith, or a majority of them, and the same divided as nearly as possible into parcels of equal value, and the said parcels to be apportioned and selected by said parties by lot or agreement among themselves, and upon said allotment and selection being made, that I will execute and deliver to said aforesaid parties, their heirs and assigns, a conveyance in fee for the parcels so selected by them or allotted to them, subject to the reservation of timber and rights of way hereinbefore made.</p> <p>But, this declaration of trust is upon the express condition that said Rufus G. Melson, Frances Moulton, William P. Melson, Elva Melson, Edith A. Pittman and Katie M. Galbraith, beneficiaries herein, shall within thirty (30) days from this date pay to me, the said Byron B. Moulton, the said sum of two hundred and fifty dollars (approximately), and the costs and charges aforesaid, or by agreement in writing, duly entered into by them, contract to and with each other to accept the benefits of this declaration of trust upon the terms hereinbefore stipulated and co-operate in the division of the said premises in manner and according to the plan and terms aforesaid.</p> <p>And I further declare and stipulate that until the said premises shall have been fully divided and apportioned, according to the aforesaid plan, that I will retain and hold the entire and absolute possession and control of the said premises, free from any liability to account to the said beneficiaries hereunder for any rents and profits.</p> <p>All admissions, declarations and covenants herein made by me shall be binding upon my heirs, executors, administrators or assigns.</p> <p>In witness whereof, I have hereunto set my hand and seal, this twenty-third (23d) day of December, A. D. 1904, and in the one hundred and twenty-ninth (129th) year of the sovereignty and independence of the United States of America. Byron B. Moulton. (L. S.)</p> <p>The part of the decree directed to be reported is as follows :</p> <p>It is admitted that the deed of the Melson heirs vested in Byron B. Moulton title to the land and timber. The declaration of trust made by Moulton declared that he would hold the land in trust for the Melson heirs, but expressly excepted the timber and rights of way over the land for the cutting and removing of the same at any time thereafter.</p> <p>On April 4, 1905, when he conveyed to Edith A. Pittman the land described in the complaint, he expressly excepted from the operation of the deed all merchantable timber of every kind and description upon the premises.</p> <p>I construe this deed not only according to its terms, but from all the evidence submitted to me, as conveying to Mrs. Pittman only the land, and retaining in Moulton the absolute right to the timber and rights of way specified in the deed. Therefore, Mrs. Pittman never had any title to the timber, and while her deed to the plaintiff, made in 1909, contained no exceptions, I hold that he was affected with a notice furnished by the public records of Horry county that Mrs. Pittman was not the owner of the timber. Indeed, Mrs. Pittman’s conveyance to him'expressly referred to the deed under which' she sold, and its record.</p> <p>It follows that, as Mrs. Pittman could not convey what she did not own, the plaintiff acquired no title to the timber and is not entitled to maintain this action.</p> <p>Counsel for the plaintiff insisted at the hearing that, even if it should be found that the timber was excepted in the several conveyances referred to, yet under the terms of the declaration of trust, and the agreement subsequently entered into between the Melson heirs and Byron B. Moulton, the latter was in fact and in law trustee for the said heirs; that the deed made by Moulton to Freeman conveyed the timber for a limited time only; that the time limit has expired, and that the title to the timber has reverted to the Melson heirs, and the plaintiff, holding under Mrs. Pittman, one of the heirs, should be remitted to her rights and should be allowed to maintain this action. Having reached the conclusion that the plaintiff - has failed to prove title to the timber and is not entitled to maintain this action, it is unnecessary to decide the other questions presented in argument.</p> <p>Under the authority of the decisions of the Supreme Court of South Carolina, I hold that the fee in the timber was retained by Moulton when he made the deed to Mrs. Pittman. Subsequently he conveyed the timber on the entire tract to W. A. Freeman for a limited time. Whether that' time has expired is not now important to inquire. Whether the defendant, Raper, has title to the timber and privileges claimed does not concern plaintiff.</p> <p>Plaintiff’s exceptions:</p> <p>(1) That his Honor, the presiding Judge, was in error, it is respectfully submitted, in construing the declaration of trust made by Byron B. Moulton as making him trustee for the land only, as distinguished from any interest in the merchantable timber that might revert to him, or as to the proceeds of said merchantable timber, or any timber right or interest that might be left in him after he had been paid the sum mentioned in said declaration of trust; but he should» have held that this instrument denominated, as the declaration of trust, showed on its face painly and unequivocally that Byron B. Moulton held both land and. timber in trust for the heirs at law of William P. Melson, Sr., and that the only purpose of making said conveyance to Byron B. Moulton, and his declaration of trust, and the exception therein in relation to the merchantable timber on said land, was to provide for repaying to the said Byron B. Moulton the balance due him by the estate, and the balance that might be due him by some of the individual heirs at law for sums advanced to them by him. The recital contained in said declaration, to the effect that Byron B. Moulton, in order to aid and benefit the said Edith A. Pittman and others, that he would cause the timber reserved therein to be sold in a fair and equitable manner as expeditiously as practicable, according to his best judgment and according to his instructions and the proceeds of the same, after first retaining to himself the sum of $250 with all fees and expenses, he would pay over to the said Edith A. Pittman and others, heirs at law of William P. Melson, Sr., in equal shares and proportions, less any amounts that said individual heirs might owe to him for advances, was sufficient to show that he was not to retain in either the land or the timber any beneficial interests beyond that especially named, to wit, the repayment to him of all amounts due him, and this was 'sufficient to show that the intention of the instrument, taken with all of the other instruments, was to make him a trustee for the benefit of said heirs, and should have held that, as his trust had been executed when this action was brought, his rights had vested in the beneficiaries or their successors in interest, and he should have held, therefore, that the plaintiff herein had title to both the land and the timber thereon being, if the time limit for removing the same had expired.</p> <p>(2) That he erred in holding that Byron B. Moulton was vested with the absolute title to-both land and timber, and should have held that he took it as-trustee, not only as to the soil itself, but as to any rights in the timber that might revert to him after the purpose of his trust had been carried out.</p> <p>(3) He should have held that the exception contained in the deed of April 4, 1905, from Byron B. Moulton to Edith A. Pittman was only intended for the protection of the person to whom he, the said Moulton, had conveyed said timber, and that he was acting as trustee in behalf of Edith A. Pittman and her successors in interest and grantee in making said exception, and could not change the nature of the trust which he had imposed upon him.</p> <p>(4) That he erred in holding that Mrs. Pittman never had any title to the timber, and that although her deed to the plaintiff in 1909 contained no exceptions, still the plaintiff was affected with the notice furnished by the public records; but he should have held that Edith A. Pittman, as a cestui que trust under the declaration of trust before mentioned, as soon as the purposes of the trust.had been performed, became vested by operation of law with any right or interest in said timber that otherwise would have reverted to Byron B. Moulton after the expiration of the time limit for cutting and removing said timber, and should have held that the plaintiff under the deed of general warranty from Edith A. Pittman was entitled to all of her rights, and, therefore, vested with good title to said timber, provided the time limit had expired.</p> <p>(5) The agreed statement of facts having provided that the question of whether the time limit had expired was to be settled by the Court, his Honor was in error in disregarding the other questions raised by the agreement of facts, and he should have decided the question of the time limit, and if he found that it had expired, he should have held that the plaintiff was entitled to a permanent injunction, restraining the defendants, their agents and servants, from cutting and removing any of the timber from said land, and their exercising any rights of ingress or egress over said land; and he, therefore, was in error in holding that it was unnecessary to decide the other questions presented in the agreed statement of facts and in the argument.</p> <p>(6) That his Honor erred in holding that the fee in the timber was retained by Moulton when he made the deed to Mrs. Pittman; but he should have held that Byron B. Moulton was bound by the terms of his trust, and so, also, was any person to whom he conveyed the timber and timber rights, as said declaration of trust was duly recorded before the conveyance of said timber, and he should have held that, the time limit in said timber deed having expired and the purposes of the trust having been fulfilled, the timber and the rights of ingress and egress had reverted and vested by operation of law in Edith A. Pittman and her grantee under her warranty deed to the plaintiff herein.</p> <p>(7) That he was in error in dismissing the complaint and dissolving the temporary order of injunction, but he should have granted a perpetual injunction against the defendants, prohibiting the cutting and removing of said timber.</p> <p>(8) That he erred in directing the clerk of the Circuit Court to enter upon the docket against each of several similar cases to this the words, “Heard April 6, 1916,” as it was only an agreement of counsel with which the Court had no concern that those other cases should be controlled by the event in this particular case.</p> <p>submits: Purchaser took subject to- trust: 100 S. C. 220. Trust relationship: 39 Cyc. 57, 63, 528; 63 Ind. 129; 81 S. C. 506. No title after time limit: 90 S. C. 176; 47 L. R. A. (N. S.) 883.</p> <p>cites: As to title to timber: 46 S. C. L. 314; 80 S. C. 106; 89 S. C. 341.</p>

Before Gary, J., Laurens, August, 1916. Petition by Madison Cunningham against the Walterloo Cash Company, for cancellation of a mortgage. Decree for plaintiff, and defendant appeals. The Circuit decree was as follows: This is a summary proceeding instituted by the petitioner under the authority of section 3462, Code of Laws of South Carolina, vol.

Before Witson, J., Lexington, February, 1917. Action by Mrs. Minnie Arthur Rish, administratrix of the estate of Henry V. Rish, deceased, against the Seaboard Air Line Railway. From an order granting plaintiff’s motion for leave to file a reply to defendant’s answer, and from an order overruling defendant’s motion for judgment on the pleadings, defendant appeals.

Before Shipp, J., Camden, November, 1916. J. K. Smith was indicted for disposing of personal property covered by lien, and, from a judgment quashing the indictment, the State appeals.

Before Bowman, J., Charleston, January, 1917. Proceedings in escheat by the State, on the relation of the Board of Commissioners of the Sinking Fund of the State, through R. M. McCown, Secretary of State, as agent of the board and as escheator, against the estate'of Belle Percival, otherwise known as Anne Rouise Purcell (Purcil), deceased, consolidated with petitions by Bridget Purcell and others, and by Patrick Purcell respectively, claiming by way of traverse to be heirs…

Before Moore, J., York, August, 1916. Action by M. S. Lewis against W. B. Wilson, Jr., and others. From an order striking out the answer and counterclaim, defendants, W. B. Wilson, Jr., C. J. Walker and Margaret Wilson Walker, appeal. cite: As to proof of parol collateral agreements: McKelvey Ev., secs. 275, 277, pp. 367, 368; 27 S. C. 376; 16 S. C. 352, 357; 31 S. C. 313, 319; 15 S. C. 505; 26 S. C. 304 and 312; Jones Mtges., secs. 64, 384, 612, 1297; 3 S. C. 332.

Before Smith, J., Columbia, August, 1916. Action by Thomas W. Bishop against Hampton Jacobs. From an order allowing defendant to answer after he was in default, plaintiff appeals. cites: As to abuse of discretion: 77 S. C. 223; 53 S. C. 230;' 104 S. C. 419. Allowance of answer: 36 S. C. 556, 576; 53 S. C. 230; 75 S. C. 7; 77 S. C. 223; 101 S. C. 370; 104 S. C. 419. Custom of counsel: 50 S. C. 403. Inexcusable delay: 81 Me. 403; 10 Am. St. Rep. 265; 102 S. C. 354.

Before Prince, J., Manning, October, 1916. Action by M. C. Galluchat against the Atlantic Coast Line Railroad Company and another. From a judgment for plaintiff, defendants appeal.

<p>Before Mauldin, J., Columbia, April, 1916.</p> <p>Suits by the Columbia Savings Bank & Trust Company against Thurston W. True, B. H. Carlton and others, and by the Century Building & Loan Association against Aaron David, Thurston W. True, B. H. Carlton and others. From the decree, the Columbia Savings Bank & Trust Company and unnamed defendants, appeal.</p> <p>Columbia Savings Bank & Trust Co., and Mr. James S. Verner, for R. Leon Shull, appellant, submit: In an action for the cancellation of an instrument on the ground of fraud and deceit, the plaintiff must prove that the defendant made a false statement as to a past or present fact, which he knew was false at the time of making it, and the plaintiff must show that he believed the false statement to be true, and acted on it to his injury: 50 S. C. 367; 88 S.' C. 156; 26 S. C. 275; 68 S. C. 106; 2 Hill 657; 2 Spears 9; 2 Bailey 270; 62 S. C. 42. Dealer’s talk: 101 S. C. 221. Duty of purchaser: 14 A. & E: Enc. of L. Ill and 159. Laches: 18 A. & E. Enc. of E. 102. Real estate brokers special agents: 86 S. C. 162. Dealings with special agents: 19 Cyc. 294, note 33; 91 Md. 285; 46 Atl. 987; 88 Va. 454; 13 S. E. 914; 49 Fed. 785; 27 S. C. 132; 10 Rich. 332; 2 Corpus Juris 562; 29 A. & E. Ann. Cas. 471; 73 S. C 47, 57. No offer to return property before action to rescind contract: 97 S. C. 34; 56 S. C. 508; 74 S. C. 202; 43 S. C. 257; 71 S. C. 149; 52 S. C. 104 and 244; 21 S. C. 226; 2 Pom. Eq. Rem., par. 688; 14 A. & E. Enc. of E. 161; 1 A. & E. Ann. Cas. 910; 14 Id. 261; 1 L. R. A. 201; 4 Id. 413; 25 Id. 37; 30 Id. 36 and 48; 34 Id. 363; 36 Id. 442; distinguish 79 S. C. 205; 88 S. C. 132, 142, 152. Testimony as to agent’s declarations: 98 S. C. 279. Contract of guaranty not within scope of agency: 86 S. C. 162; 31 Cyc. 1647. Right to rescission; prompt action: 48 U. S. E. Ed. 419; 88 S. C. 160; 13 S. C. 214; 1 Rich. 101. Fraudulent misrepresentations: 99 S. C. 396; 61 S. C. 192. Value a matter of opinion: 14 A. & E. Enc. of E. 34, 35, 36, 41, 124, 126; 35 E. R. A. 417; 93 U. S. 55. Negligence as bar to rescission: 9 S. C. 20. Fraud not presumed: 1 Rich. 101; 13 S. C. 211; 88 S. C. 156; Jones Ev. (2d ed.), sec. 13.</p> <p>Berry and Bethea, distinguish 50 S. C. 397; 62 S. C. 46, 49. Expressions of opinion not representations of fact: 1 Elliott Contracts, sec. 84, pp. 138, 140, 141. Promissory representations not ground for rescission of contract: 1 Elliott Contracts, sec. 84, p. 144; 3 Id., sec. 2414, p. 571; 89 Wis. 499; 35 E. R. A. 417 to 441; 10 Rich. E. 311, 316; 101 S. C. 221, 234-237; 10 E. R. A. (N. S.) 651. Affirmance of contract: 8 L. R. A. (N. S.) 452, 455. Voluntary payments: Dudley E.- 261; 90 S. C. 475; 100 S. C. 84; 2 Rich. 319. Transfer without notice: 3 Hill 22, 26, 29.</p> <p>cites: As to review of findings of fact: 96 S. C. 148; 91 S. C. 473 ; 92 S. C. 501. Law as to fraud: 50 S. C. 397; 80 S. C. 298; 199 N. Y. 314; 92 N. E. 670; 20 A. & E. Ann. Cas. 910; 26 S. C. 275; 1 Strob. 223; 2 Parsons Contracts (6th ed.) 773; 2 Bay 11; 7 S. C. 47; 15 S. C. 124; 79 S. C. 205. Liability of principal for acts of agent: 77 S. C. 549; 4 Strob. 353; 37 S. C. 194 and 377; 65 S. C. 75 and 413; 76 S. C. 211. Findings of fact on legal issues conclusive: 55 S. C. 360; 59 S. C. 560; 44 S. C. 364; 72 S. C. 270 and 312; 104 S. C. 375.</p> <p>True, cites: As to agent’s authority: 47 S. C. 147; 1 Strob. L. 220; 99 S. C. 432; 106 S. C. 200; 91 S. E. 579; 105 Ala. 653; 92 S. C. 43; 1 Abb. Dec. (N. Y.) 454; 36 Barbour (N. Y.) 377. Fraud inducing purchase: 26 S. C. 275; 50 S. C. 397; 62 S. C. 42; 79 S. C.' 205; 80 S. C. 292; 86 S. C. 576; 87 S. C. 87; 93 S. C. 185; 84 S. C. 265. Rules of evidence where fraud is alleged: 104 S. C. 227. Flection to pursue principal: 31 Cyc. 1578.</p>

<p>Before Rice, J., Union, May, 1916.</p> <p>Action by Phifer & Gossett against M. O. Belue and others. Prom a judgment for defendants, plaintiffs appeal.</p> <p>cite: As to power of Judge at' chambers: Civil Code, sec. 3833; 103 S. C. 530; 47 S. C. 31; 54 S. C. 303; 92 S. C. 303; ■'T co >4 M-l O o el tí tí «8 < '•O in o ¿T ■3-m 00 O <M o\ O CO . o in 00 Q m ^ -xñ °° CT\ u « . o vx --S ¿T .S’ co in g-i Ü g o u p p cn n> On P to O Xfx CO Q\ o Ln P-» o n> 00</p> <p>cites: As to subrogation: 41 S. C. 408; 56 S. C. 357. Temporary injunction: 69 S. C., 156 and 554; 87 S. C. 566.</p>

Before PruriFoy, J., Rideeland, February, 1917. Action by J. S. Berg, administrator of the estate of Fred. Berg, deceased, against the Atlantic Coast Fine Railroad Company. From an order requiring plaintiff to amend the complaint, he appeals. Messrs. Padgett & Moorer cite: Richey’s Fed. Emp. Liability Act 106; 227 U. S. 59; 228 U. S. 173; 227 U. S. 145; 98 S. C. 197; note in 7 N. C. C. A. 629; 106 S. W. 1190.

Before Gary, J., Barnwell, March, 1917. Action by the Farmers Union Mercantile Company against F. H. Anderson. From a judgment sustaining a demurrer to defendant’s counterclaim, he appeals. cites: As'to counterclaim: 11 S. C. 337; 2 Bay 351; 10 Rich. 318; Pomeroy Rem., sec. 798, p. 817. cite: 57 S. C 500.

Before PeuriFoy, J. Spartanburg, September, 1916. Action by Eliza H. Haughton against the Order of United Commercial Travelers of America. From a judgment for defendant, plaintiff appeals. cite: As to time for Court: Acts 1916, p. 695; Const., art. V, sec. 16; 7 S. C. 274; 3 S. C. 566;'22 S. C. 419; 7 R. C. E. 988; 76 S. C. 115; 6 E. R. A. (N. S.) 1047. Time for notice of appeal: 77 S. C. 156; 58 S. C. 39; 36 S. C. 599.

Before Shipp, J., Columbia, October, 1916. Action by August Kohn against Martin Stork and others. From an order striking out their answer as sham and irrelevant, defendants appeal. cites: As to sufficiency of answer: 9 S. C. 438; 97 S. C. 389; 10 S. C. 513; 100 S. C. 196. cite: As to consideration for note: Neg. Inst. Law, 28 Stat., p. 672, sec. 24; Daniel’s Neg. Insta. Law (6th eel.), sec. 161; Bryant’s. Code PL, sec. 177.

Before Bowman, J., Greenwood, October, 1916: ' Action by S. P. Wright against the Greenwood Telephone Company. Judgment for plaintiff, and defendant appeals. cite: As to negligence: 1 Rabatt, Master and Servant, sec. 35. Negligence toward public: 123 Mass. 26; 2 Wash. 25; 57 N. Y. 567; 15 Am. Rep. 530; 98 Cal. 384; 35 Am. St. Rep. 180; 91 Wis. 360; 51 Am. St. Rep. 912; 190 N. Y. 452. Proximate cause: Thompson.Neg.

<p>1. Carriers — Interstate Shipments — Notice op Loss. — Where a bill of lading for an interstate shipment stipuated that claims for loss or damage should be made promptly in writing to the agent at point of delivery, and, if not made within ten days, the carrier should not be liable, the carrier’s consideration on the merits of a claim not so filed does not operate as a waiver, and that question should not be submitted to the jury.</p> <p>2. Carriers — Carriage op Goods — Actions—Evidence—Sufficiency.— In an action against a carrier for negligent delay in transportation of goods, evidence held, to warrant finding that shipper did not give notice of delay within time stipulated by bill of lading.</p> <p>3. Carriers — Carriage op Goods — Actions—Presumption'.—There is no presumption of law that a shipper claiming damages for delay in transportation of goods gave the written notice of claim required by the hill of lading.</p> <p>4. Carriers — Carriage op Goods — Notice—Provisions.—A stipulation in a bill of lading for an interstate shipment that notice of claim for damage or injury should be made promptly in writing to the agent at point of delivery, and that a failure to give such notice within ten days would bar the claim, is reasonable, for the shipper might give notice of damage by his agents at the point of delivery, their knowledge of damage being imputable to the shipper, and no particular form of notice being necessary. .</p>

Before Moore), J., Greenville, December, 1916. Action by Henry A. Robinson against the Southern Cotton Oil Company. From a judgment for defendant, plaintiff appeals. cite: As to burden of proof on bailee: 76 S. C. 24S, 247, 248; 98 S. C. 476; 99 S. C; 24; 84 S. C. 119; 91 S. C. 272. As to evidence of negligence: 76 S. C. 245; 143 S. C. 683; 77 Pac. 664; 24 L. R. A. (N. S.) 1117, 1120; 43 L. R. A. (N. S.) 1121-1175; 75 S. E. 140; 37 S. E. 392; 79 S. E. 589; 76 S. C. 14.

<p>Before Mauldin, J., Greenville, September, 1916.</p> <p>Action by C. B. Thomas against J. A. Foster, Treasurer, etc. Judgment for plaintiff, and defendant appeals.</p> <p>cites: 21 S. C. 292; 63 S. C. 425; 165 U. S. 150; 142 U. S. 339; 199 U. S. 89; 66 S. C. 37; 63 S. C. 169; 79 S. C. 519; 73 S. C. 71.</p> <p>cites: 21 S. C. 294; Dillon Munc. Corp. 357; 91 N. C. 554; 25 Minn. 248; 151 Ky. 389; 30 S. C. 366; 129 Am. St. Rep. 238.</p>

Before SrasE, J., Lexington, November term, 1915. Action by J. H. Lorick against the Seaboard Air Line Railway. Judgment for plaintiff, and defendant appeals. Mr. J. B. S. Lyles cites: As to plaintiff’s own negligence was sole cause of injury: 61 S. C. 468, 489; 59 S. C. 539; 66 Fed. 193; 6 C: C. A. 190. No proximate causal connection: 101 S. C. 563; 105 U. S. 449; 89 S. C. 23; 229 U! S. 265.

<p>Before SeasE, J., Walhalla, July, 1915.</p> <p>Action by William M. Brown and William J. Stribling, partners doing business as Brown & Stribling, against John J. Rankin and another. From a judgment for plaintiffs, defendant, John J. Rankin, appeals.</p> <p>cites: 100 S. C. 371; 77 S. C. 420; 91 S. C. 122.</p> <p>cites: As to immaterial amendment: 102 S. C. 326; 1 Enc. PI. & Pr. 429. Mortgagee’s right to indulge debtor: Civil Code, sec. 4108; 77 S. C. 420. Tender: 38 Cyc. 137, 165, 166; 28 Enc. 15, 17. No estoppel: 77 S. C. 420, 426; 91 S. C. 122; 100 S. C. 371; 104 S. C. 163; 96 S. C. 120, 123; 11 Cyc. 425.</p>

<p>1. Logs and Logging — Construction op Timber Deeds — Habendum Clause — “Premises.”—A deed made pursuant to an option lumber contract contained two habendum clauses, which read “To have and to hold, all the short straw, poplar and cypress on the said five tracts of land in said five options above described and named, together with all the rights and privileges, members, rights and privileges stipulated in said option to be given to the said.Cape Pear Lumber Company, their successors and assigns.” “To have and to hold all and singular, the said premises before mentioned unto the said Cape Fear Lumber Company, their successors and assigns forever.” Held, that as the term “premises” is used as embracing all that part of the deed which precedes the habendum and is the proper technical sense of the term as used in conveyances, and as the deed refers to the option contract giving a limited time within which to cut and remove the timber, a second habendum clause conveyed only such privileges and rights as are set forth in the option, and not a fee in the timber.</p> <p>2. Logs and Logging — Construction op Timber Deeds — Rule.—Where timber deed refers to another instrument for its terms, it takes both instruments to show the entire contract.</p> <p>3. Infants — Sale of Property — Validity—Master's Deed. — In a proceeding on account of the infancy of a party in interest seeking the aid of the Court to carry out the provisions of an option timber contract, if the master had attempted to exceed his authority and convey a fee in the timber, the excess over the rights and privileges as set forth in the option would have been void.</p> <p>4. Logs and Logging — Master's Timber Deed — Action to Determine Rights Under Deed. — A proceeding to declare that the rights under a master’s timber deed made in an action by the parties to carry out the provisions of an option had expired, and to enjoin the exercise of any further rights under the deed and for damages, is not a proceeding to reform a deed.</p> <p>5. Logs and Logging — -Timber Deeds — Tender op Purchase Price.— In an action to declare that the rights under a master’s deed executed pursuant to a timber option had expired, the return of the money received as consideration for the deed was not necessary in the absence of an attempt to reform the deed.</p> <p>6. Logs and Logging — Option Timber Contract — Construction—Reasonable Time. — Where an option timber contract is silent as to when the purchaser is to commence to cut the timber, the cutting and removal must be within a reasonable time.</p> <p>7. Evidence — Parol Evidence Varying Written Agreements. — While an option timber contract speaks for itself and cannot be varied by parol evidence as far as its contents are concerned, where it is silent as to the time when the purchaser was to commence to cut the timber, the circumstances surrounding the parties at the time it was made can be detailed, and anything that took place at that time which would tend to show what the parties intended as to the time in which the cutting was to commence would be competent to be considered for what it was worth.</p> <p>8. Logs and Logging — Option Timber Contract — Duty op Purchaser. —It was incumbent on the purchaser of timber under an option contract to ascertain the facts and circumstances of the situation of the parties when he purchased, and was charged with knowledge of the proper legal construction of the contract as to ■ the time when the cutting should commence.</p> <p>9. Appeal and Error — Review—Reversible Error. — It is not reversible error for a Judge to base- his correct judgment on the wrong' case previously decided, the question being was the conclusion right, and not, did the trial Judge assign the right reason or the right case for it?</p>

Before Seasb, J., Marion, June, 1916. Action by the Farmers & Merchants Bank against J. G. Flolliday and others. From a judgment, the Peoples Bank appeals. cite: As to filing transcript of judgment: Code Civ. Proc., secs. 341, 348; 3 Words & Phrases 2764-5; 14 S. C. 35; 46 S. C. 292; 50 S. C. 380; 33 S. C. 611. Clerk’s office hours: Civil Code, secs. 1305, 1307. Two fund doctrine: 18 S. C. 425, cites: As to entry of judgment: Code Civ.

Before Prince, J., Kingstree, December, 1916. Action by the Henry Mercantile Company against the Georgetown & Western Railroad Company. Judgment for plaintiff. The Mercantile Company made application for' an order requiring George J. Graham, as sheriff of Williamsburg county, to levy upon certain property that was owned by defendant. Order issued, and defendant appeals. cite: As to rule of statutory construction: 84 S. C. 563; 9 S. C. 44; 13 Rich. 277; Cooley Const.

Before Mauldin, J., Columbia, April, 1916. Action between Jane Huggins and W. D. Turner and others. From the judgment entered, the former appeals. Remanded for trial of. issues of delivery by jury. cite: As to authority of agent to deliver deed after death of principal: 106 S. C. 300; 27 S. C. 316; 40 S. C. 415 and 460. Forfeiture of estate: 15 S. C. 11; 65 S. C. 251. cites: As to delivery of deed: 23 S. C. 89; 44 S. C. 372; 74 S. E. 610; 93 S. C. 450.

<p>1. Chattel Mortgages — Rights of Mortgagor — Injury to Property After Condition Broken. — Although the mortgage given by plaintiff on his automoblie was past due, plaintiff had such property rights as entitled him to maintain an action for injury to the automobile.</p> <p>2. Trial — Charging on Facts. — The mortgagor after condition broken could, as a matter of law, maintain an action for injuries to the automobile, and the Court, in referring to the automobile as plaintiff’s, did not charge on the facts.</p>

Before Memminger, J., October, 1916. Action by the Salley Oil Mill, in its own behalf and as trustee, etc., against the Southern Railway — Carolina Division, and another.

<p>Before Hon. E. R. McIvEr, special Judge, Charleston, April, 1916.</p> <p>Action by Elva M. Rabb, as administratrix, against the New York Life Insurance Company. Judgment for plaintiff, and defendant appeals.</p> <p>cite: As to proof of performance of conditions precedent: Code Civ. Proc., sec. 212; 14 Ency. PI. & Pr. 628, 629; 102 N. Y. 312. Payment of premiums: 2 Joyce Ins., par. 1099; 19 Abb. Pr. 217; 3 Robb. 232; 41 Conn. 399; 28 N. J. Eq. 167; 12 Kan. 475; 30 Ohio St. 240; 96 S. C. 375. Conditions subsequent: 100 S. C. 162; 77 S. C. 294; 46 S. C. 541; 94 S. C. 138; 37 S. C. 117; 42 S. C. 14; 43 S. C. 26; 70 S. C.' 75. Waiver: 54 S. C. 375. Agency: Civil Code, secs. 2711, 2712; 22 Cyc. 1446. Waiver by agent: 29 S. C. 560; 83 S. C. 262; 88 S. C. 221; 72 S. C. 361; 78 S. C. 395; 81 S. C. 548; 95 S. C. 1; 90 S. C. 168; 76 S. C. 248; 99 Pac. 537; 70 S. E. 157; 156 Pac. 304; 69 S. C. 303.</p> <p>cite: As to payment of premium: 96 S. C. 375. Presumptions and burden of proof: 25 Cyc. 925, 927; 88 S. C. 37; 159 Fed. 408. Nonsuit: 63 S. C. 567; 1 Hill 382. Waiver of forfeiture: 88 S. C. 38; 103 S. C.-288. Limitations on powers of agent: 90 S. C. 175; 57 S. C. 365; 93 S. C. 406; 88 S. C. AO; 80 S. C. 272, 273; 97 S. C. 380, 381.</p>

Before Maurdin, J., Chester, November, 1916. Action by O. A. Darby against the Southern Railway Company and another. From a judgment of a magistrate’s Court in favor of the defendant, Atlantic Coast Dine Railroad Company, affirmed by the Circuit Court, plaintiff appeals. cite: As to jurisdiction of magistrate: Code Civ. Proc., sec. 174; 47 S. C. 3$7. Cause of action for penalty: 47 S. C. 387; 65 S. C. 326; 81 S. C. 390.

<p>Before PpuriFoy, J., Ridgeland, July, 1916.</p> <p>Action by Solomon Lipman against the Atlantic Coast Line Railroad Company. Prom a judgment of dismissal, plaintiff appeals.</p> <p>cites: 121 U. S. 637; 93 S. C. 533; Ann. Cas. 1914a,-17; 16 Am. Rep. 40; 67 S. E. 1103; 80 Md. 23; 26 R. R. A. 220; 130 Ala. 334; 54 E. R. A. 752; 206 Mass. 477; 30 L. R. A. (N. S.) 1046; 103 S. C. 327.</p> <p>cites: As to interstate fares: 90 S. C. 517; 32 I. C. R. 773; 95 S. C. 427; 100 S. C. 284, 292; 101 S. C. 11; 90 S. C. 517; 100 S. C. 292; 95 S. C. 427; 101 S. C. 11. Stopping places: 75 S. C. 355; 82 S. C. 483; 207 U. S. 328. Passenger refusing to pay the lawful fare a trespasser: 38 S. C. 1; 90 S. C. 187; 15 Gray 20; 77 Am. Dec. 347. No actual damage alleged: 101 S. C. 20; 105 S. C. 147; 121 U. S. 649. No duty to trespasser: 23 S. C. 531; 49 S. C. 17; 57 S. C. 243; 63 S. C. 46; 64 S. C. 24 and 553. Mental anguish unconnected with physical injury: 78 S. C. 559; 68 S. C. 101; 81 S. C. 322; 82 S. C. 478; 84 S. C. 15; 57 S. C. 330; 104 S. W. 159; 84 Ark. 42; 13 E. R. A. (N. S.) 159; 95 S. W. 794; 104 S. W. 554; 116 Mo. 617; 22 S. W. 554; 116 S. W. 192; 127 S. W. 707; 29 Ohio St. 126; 23 Am. Rep. 729. Wilful conduct of conductor unauthorized by master: 105 S. C. 287; 97 S. C. 152; 147 U. S. 101.</p>

<p>Before Smith, J., Columbia, July, 1916.</p> <p>Action by the Gibbes Machinery Company against the Southern Railway Company. From a judgment of nonsuit, plaintiff appeals.</p> <p>cite: As to charges: 90 S. C. 475. Estoppel: 11 A. & E. Enc. of L. 429; 13 S. C. 369; 33 S. C. 209; 48 S. C. 226.</p> <p>cites: 41 I. C. C. R. 438; 90 S. C. 475 and 521; 92 S. C. 291; 94 S. C. 136; 95 S. C. 430; 100 S. C. 475; Ann. Cas. 1913d, 226.</p>

<p>Appeal and Error — Appealable Order. — An order allowing a new party defendant to be brought in to litigate the question whether the money ■ recovered by such party in a prior suit against one of the defendants was not payable to a defendant not a party to that suit is not appeal-able; it affecting no substantial right of the new party.</p>

Before Prince, J., Sumter, Fall term, 1916. Action by Phillips-Patterson Company against Northwestern Railroad Company of South Carolina. Defendant’s motion for direction of a verdict overruled upon the first ground, and sustained as to the second and third grounds, and plaintiff appeals. Mr. Seabrook cites: As to stoppage in transitu: 74 S. C. 360; 23 S. C. 290; 80 S. C. 194; 18 Ohio Ct. R. 333; 10 Ohio Cir.

<p>Before Memmingkr, J., Manning, March, 1917.</p> <p>Action by C. H. Ragin against the Northwestern Railroad Company of South Carolina and another. Judgment in magistrate’s Court for defendant named, and on appeal to Circuit Court judgment reversed, and judgment rendered for plaintiff, and defendant named appeals.</p> <p>cite: As to effect of recitals in bill of lading: 85 S. C. 537; 94 S. C. 212; 99 S. C. 187, 198.</p> <p>cites: As to joinder of action: 95 S. C. 493; Code Civ. Proc., sec. 493.</p>

<p>1. Master and Servant — Scope of Employment. — Where defendant motor company’s mechanic, who sometimes operated cars for transportation of passengers, took defendant’s car at night for a “joy ride,” the motor company was not liable for the mechanic’s torts while on such trip.</p> <p>2. Master and Servant — Torts of Servant — Ratification.—Where the servant was not acting at all for the master, and did not profess to be, retaining the servant after knowledge of his tort would not constitute ratification, binding the master.</p> <p>3. Costs — Argument—Amount.'—Under rule 9, subd. 3 (104 S. C. 528, 90 S. B. 8), the respondent on reversal is liable only for cost of printing-10 pages of appellant’s argument and will not be taxed with costs of an argument of 62 pages.</p>

Before Memminger, J., Bamberg, November term, 1916. Action by D. Dowling against the Seaboard Air Line Railway and another. Judgment for plaintiff, and defendants appeal.

Before Wieson, J., Abbeville, March, 1916. Action by Robert Gilliam, as administrator, etc., against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. cites : As to res gestae: 103 S. C. 270; 84 S. C. 190; 94 S. C. 146. Assumption of risk: 233 U. S. 492. Beneficiaries: 228 U. S. 173; 227 S. C. 59 and 145; 237 U. S. 648; 104 S. C. 16. cite: As to exceptions: 59 S. C. 87, 104; 53 S. C. 448.

<p>Before Prince, J., Sumter, December, 1916.</p> <p>Bx parte application by Christine E. Green, formerly Christine E. Rembert, individually and as guardian of Arthur Rembert and others, against Edward Rembert and another, and suit by Christine E. Rembert against Edward E. Rembert. Erom a decree for Christine E. Green, the named defendant appeals.</p> <p>submit: Consent decree a mere contract: 9 Rich. Eq. (30 S. C. Eq.) 56; 21 Fed. 842, 865; 5 Ency. PI. & Pr. 1065, 1075. Construction of decree: 7 Oregon 406; 2 Ohio St. 14; 27 Cal. 360; 6 Munf. (Va.) 87.</p> <p>cite: As to enforcement of decree: 16 Cyc. 106; 4 Greene (Iowa) 229; 13 Bush (Ky.) 518; 1'5 N. Y. St. 644.</p>

Before DeYorE, J., Chesterfield, October, 1916. Actions by Morton Rainwater, Julius R. Johnson and Rufus Powe, respectively, against the Merchants & Farmers Bank of Cheraw, S. C. From orders refusing reference, defendant appeals.

<p>1. Appeal and Error — Damages—Instructions—Harmless Error. — in action for damages by threatened assault of defendant’s servant upon plaintiff, direction of verdict on actual damages for defendant and instruction that nominal damages were presumed from the invasion of plaintiff’s rights were not inconsistent, and, if error, were favorable to defendant.</p> <p>2. Master and Servant — Torts op Servant — -Liability.—The master is civilly liable for the wilful tort of his servant done within the scope of his employment, notwithstanding he may not have directed or ratified the servant’s conduct.</p> <p>3. Damages — Presumptions. — Where defendant’s servant threatened plaintiff with assault, though there were no actual damages, the law presumed nominal damages from the invasion of plaintiff’s rights.</p>

Before Maurdin, J., York, November, 1916. Action by Thomas Young against the Southern Railway Company, for injuries alleged to have been caused by falling from defendant’s train, on which he was employed as porter when he was suddenly seized with epileptic convulsions.

<p>Before Prince, J., Bamberg, March, 1916.</p> <p>Action, by J. A. Sandifer against Atlantic Coast Line .Railroad Company. From judgment for plaintiff, defendant appeals.</p> <p>submit: Injury was due to act of God: 6 Cyc. 378, 379, 382, 383; 18 S. C. L. (2 Bail.) 423; 29 S. C. 102, 193; 65 S.- C. 509; 80 S. C. 207</p> <p>submits: Plaintiffs action rests on either negligence or wilfulness: Elliott Railroads (2d ed.), sec. 1176; 123 IndJl5; 18 Am. St. Rep. 303; 7 E. R. A. 588; 31 S. C. 393; 10'S. E. 91; 76 S. C. 207; 56 S. E. 959; 78 S. C. 384; 58 S. E. 1094.</p> <p>cite: As to liability: 29 S. C. 96. Issue for jury: 98 S. C. 125; 89 S. C. 314; 94 S. C. 309; 91 S. C. 201. Duty to keep crossing in repair: 76 S. C. 554.</p>

<p>Sales — Fraudulent Representations — Questions for Jury.- — -In an action alleging fraudulent representations as to quality of certain mill machinery sold, where there was testimony from which a reasonable inference might be drawn that defendant knowingly and intentionally took advantage of plaintiff, the case was properly submitted to the jury.</p>

<p>1. Appeal and Error — Presentation of Ground of Review in Court Below — Necessity.-—An erroneous misstatement by the Court as to the issues cannot be taken advantage of on appeal where not called to the Court’s attention below.</p> <p>2. Damages- — Punitive Damages — Tort Actions. — In an action of tort for the alleged unlawful, wilful and malicious expulsion of plaintiff from the defendant lodge, punitive damages may be recovered though no charge of fraud was made.</p> <p>3. Evidence — Degree of Proof — Defense.—Defendant has the burden of proving its defense by the preponderance of the evidence.</p> <p>4. Insurance — Fraternal Insurance- — -Rules of Order. — A fraternal insurer cannot change its rules so as to defeat the policy of one whc died before the change was made.</p> <p>5. New Trial — Grant—Right To. — Though plaintiff, who had a verdict, was willing to allow defendant a new trial the trial Court might in its discretion deny defendants’ motion for a new trial, for the rights of other litigants and of the public should be considered.</p>

<p>Before Wilson, J., Lexington, September, 1916.</p> <p>Action for foreclosure by W. B. Rawl against R.’ Glover Able and others. From decree for plaintiff, defendants appeal.</p>

<p>Before DeVorE, J., Columbia, February, 1917.</p> <p>Action by E. C. R. Adams' and others against W. C. Fripp and others. From an order denying a change of venue, the defendants, other than Fripp, appeal.</p> <p>submit: Order is appealable: 6 S. C. 313; 9 S. C. 284; 38 S. C. 399; 46 S. C. 317; 54 S. C. 368; 55 S. C. 384. Power at chambers: 74 S. C. 516. Restdence: 73 S. C. 181. Distinguished from 101 S. C. 144. Abuse of discretion: 46 S. C. 317; 83 S. C. 476; 47 S. C. 499. Place of trial: 11 S. C. 122, 132.</p>

<p>Before DeVore, J., Bennettsville, December, 1916.</p> <p>Action by J. E. Rogers against Marion County Lumber Company. The defendant appeals from the Circuit decree, which was as follows:</p> <p>Decree. On June 30th, 1898, J. E. Napier conveyed to Cape Fear Lumber Company for the consideration of one hundred and thirty dollars ($130.00) all the timber measuring fourteen inches and up on a tract of land containing one hundred and two and one-half (102y2) acres, more or less, situate in Marlboro county, except a very small portion thereof which is situate in Dillon county. The deed contains the following clause:</p> <p>“The said Cape Fear Lumber Company to have ten years from the time they commence to- cut the timber to cut and remove said timber, and if at the end of that time they have not removed said timber, then by the payment of six per cent, upon the purchase pricfe they can have ten years longer time to remove same.”</p> <p>In 1904 Cape Fear Lumber Company conveyed this timber to Marion County Lumber Company, and in 1913 Marion County Lumber Company conveyed to the defendant. In 1905 J. E. Napier conveyed to the plaintiff herein firty-three (53) acres, more or less, of the tract covered by the above mentioned timber deed. The remainder of the tract is now owned in fee simple by the defendant under a purchase made in 1913.</p> <p>No timber was ever cut or removed from the said tract of land by the defendant or either of its predecessors prior to the commencement of this action. This action was commenced on April 23d, 1914, and shortly after that time defendant cut a few crossties on the land, and thereupon plaintiff procured an interlocutory injunction.</p> <p>The complaint alleges, among other things, that it was incumbent upon Cape Fear Lumber Company, its successors and assigns, to begin the cutting and removal of this timber within a reasonable time after the date of the deed] that a reasonable time had elapsed and expired, and that defendant has no interest in the timber, but that its claim thereto is a cloud on plaintiff’s title, preventing him from a complete enjoyment of his rights in the land in question. He demands that the cloud be removed and that it be adjudged that the defendant has no right, title or interest in the timber on that portion of the land -covered by the said timber deed which was conveyed to plaintiff. The cause was heard before me on the 15th day of December, 1916, in open Court at Bennettsville, South Carolina, upon the testimony of the plaintiff taken before T. C. Hamer, Esquire, referee, and upon the testimony of J. L. Camp in behalf of the defendant.</p> <p>The law in a case of this kind appears to have been settled by the Supreme Court in the cases of Minshew v. Lumber Corporation, 98 S. C. 8, 81 S. E. 1027, and Gray v. Marion County L^lmber Company, 102 S. C. 289, 86 S. E. 640. It was the duty of the Cape Fear Lumber Company and its successors to commence to cut and remove this timber within a reasonable time, and what would be a reasonable time must be determined by the facts and circumstances surrounding the parties at the time the contract was made, in so far as such facts and circumstances were known to both parties.</p> <p>It appears from the evidence that Messrs. Mitchell and Kellum represented the Cape Fear Lumber Company in the transaction in question. It is admitted that Mr. J. E. Napier and Mr. Kellum are dead, and Mr. Mitchell did not testify in the case. In this respect the case is very similar to the Gray case where the original grantor did not testify. Plaintiff testified, however, that he resided in the neighborhood of this tract of land at the time the deed was made; that he knew Mitchell and Kellum; that they came into that community in 1898, and that they gave him to understand that they would cut the timber they were buying in that neighborhood “right away.” It also appears from the testimony that Cape Fear Lumber Company was at that time engaged in the manufacture of lumber at Wilmington, North Carolina, and that about the time this timber was purchased this company also purchased considerable timber in Columbus county, North Carolina, Horry, Marion and Marlboro counties, South Carolina. It is reasonable to infer that the Cape Fear Lumber Company was thoroughly familiar with the lumber business, for it was engaged in the manufacture of lumber at and before these purchases were made. There is no evidence that Napier or the plaintiff had any familiarity whatever with the lumber business, or the conditions surrounding the business of the Cape Fear Lumber Company, beyond the fact that the company had a mill at Wilmington.</p> <p>It appears from the evidence offered in behalf of defendant that about 1902, which must have been approximately four years after the execution of the deed in question, Cape Fear Lumber Company undertook to' log timber from Columbus county, North Carolina, and Horry county, South Carolina, to its mill in Wilmington, but that this plan proved “bad business,” that Marion County Lumber Company was formed in the late summer or early fall of 1904, and this company took over the holdings in Marion and Marlboro counties, South Carolina; that this company commenced the construction of a large plant at Marion in 1905, and the same was completed in the summer of 1906, and that this company then commenced to construct its railroad and to cut its timber in Marion and Marlboro counties.</p> <p>The foregoing statement of facts does not appear to show due diligence on the part of the defendant or its predecessors. There is no reason whatever to assume that it was the contemplation of the parties that Cape Rear Lumber Company would first experiment to see whether timber bought in Columbus county, North Carolina, and Horry county, South Carolina, could be profitably logged to its mill at Wilmington. But even if we assume this to be the case, the testimony in behalf of the defendant shows that the experiment was not made until approximately four years after the execution of the deed in question. It further appears from the testimony of defendant that the construction of a mill at Marion was not commenced until seven years after the deed was made. It surely could not have been in the contemplation of the parties that such a period of time should elapse before a mill for the cutting of this timber was erected. It further appears from the testimony of the defendant that the mill was built at the southeastern edge of the timber holdings.</p> <p>The. salient features of the case are practically the same as those of the Minshew and Gray cases, particularly the latter, so far as the facts are concerned. The deed in the Gray case'was practically the same in its terms as that in the case at bar. I am unable to resist the conclusion that at the time this suit was brought more than a reasonable time had elapsed for the commencement of the cutting and removal of the timber in question; and I SO' find. And I, therefore, find that the defendant has no rights under the deed so far as the tract of land owned by plaintiff is concerned.</p> <p>It is, therefore, ordered, adjudged and decreed, that the defendant has no right, title or interest in or to the timber upon the tract of - land owned by plaintiff described in the complaint, and its rights therein expired by lapse of time prior to- the commencement of the cutting and removal thereof; and that the defendant and all others claiming under or through it be, and they are hereby, barred from in an}r way interfering with the land herein, involved, or the timber thereon.</p> <p>The exceptions were as follows :</p> <p>1. Because his Honor erred, it is respectfully submitted, in declaring a forfeiture by holding that there was no substantial difference upon the facts in the case under consideration and the Minshew and Gray cases.</p> <p>(a)In that it appeared from the testimony in the Min-shew case that R. L. Montague had no mill and no plans for the cutting of timber purchased from Wall; whereas, in the case at bar, Cape Fear Lumber Company had a mill at Wilmington, N. C., one hundred miles distance.</p> <p>(b)In that in the Minshew case, the successors in title of Montague went to a distant point with several large rivers intervening to- build its mill; whereas, in the case at bar, the successors in title of Cape Fear Lumber Company came approximately near to the timber to build its mill.</p> <p>(c) In that the successors in title of Montague cut in a desultory way without any well defined plan for reaching the timber in controversy; whereas, in the case at bar the successors in title of Cape Fear Lumber Company systematically went forward to cut the timber in controversy and used every reasonable means to- reach it.</p> <p>(d) In that in the Minshew case contracts to adjacent lands were introduced to show that Montague and his associates had contracts of lands in the same neighborhood providing ten years from the date of the deed for the cutting ; whereas, in the case at bar the defendant introduced a cóntract to adjacent land showing ten years from the date of the deed for the cutting with a ten year extension and another contract from the plaintiff himself providing for twenty years from the date of the deed for the cutting.</p> <p>(e) In that in both the Minshew and the Gray cases, it appeared that the lands involved were capable of cultivation and that the leaving of the timber thereon imposed an extraordinary burden on the freehold; whereas, in the case at bar, it is conceded that there is a low, flat swamp through the premises which subjects the lands to overflow.</p> <p>cite: As to reasonable time: 25 Cyc. 1553; 102 S. C. 289; 90 S. C. 153; 98 S. C. 21.</p>

Before Smith, J., Columbia, July, 1916. Action by the Trustees of the University of South Carolina against the City of Columbia. From a judgment for defendant, plaintiff appeals. submits: State is real party in interest: 77 S. C. 12; 22TU. S. 636; 35 L. R. A. (N. S.) 243. Presumption of title: 22 S. C. 50 and 484. No reasonable ground to question State’s title: 99 S. C. 421; 104 S. C. 16. No adverse possession: 102 S. C. 395; 103 S. C. 460; 105 S. C. 329; 37 S. C. 334.

Before Mauldin, J., York, November, 1916. Action by C. A. Dobbins against the Seaboard Air Line Railroad Company. Judgment for defendant, and plaintiff appeals. cites: As to defense of contributory negligence: 92 S. C. 490. Conduct of trial: 70 S. C. 211; 75 S. C. 68; 67 S. C. 136; 73 S. C. 503. Charge on negligence: 42 S. C. 402; 58 S. C. 229; 52 S. C. 291; 71 S. C. 156. Sudden emergency: 82 S. C. 72; 81 S. C. 339; 60 Am. St. Rep. 705.

Before Shipp, J., Georgetown, June, 1916. Action by Julius Owens against the Atlantic Coast Lumber Corporation. From an order sustaining a demurrer to the complaint, plaintiff appeals. cites: As to construction of pleadings: 8 S. C. 103; 12 S. C. 1; 29 S. C. 258; 70 S. C. 274; 31 Cyc. 290.

Before Wieson, J., Darlington, December, 1914. Two actions by R. Furman Tedder and others against William Tedder, Jr., and others by R. Furman Tedder and others against Thomas Tedder, Jr., and' others. From a decree for defendants, ■ plaintiffs appeal. Mr. Brown cites: As to continuance of illicit relationship: 2 Dow. 501; 9 S. C. Eq. (Rich. Eq. Cas.) 101; lb. 109; 101 S. C. 45. Miscegenation: 13 Stats. 31 and 394; 17 Stats. 186; Civ. Code (1912), sec. 3757.

<p>Before MemmingEr, J., Aiken, October, 1916.</p> <p>Action by Mary J. Pooser against the Town of Salley. Judgment for nonsuit, and plaintiff appeals.</p> <p>cite: As to care due: 37 R. R. A. (N. S.) 1159. Issue for jury: 102 S. C. 83; 96 S. C. 467; 95 S. C. 305; 97 S. C. 333; 98 S. C. 51 and 129; 101 S. C. 256; 100 S. C. 109; 106 S. C. 130.</p> <p>cite: As to statutory liability: Civil Code, 1912, sec. 3053; 58 S. C. 417; [73 S. C. 254; 87 S. C. 277; 94 S. C. 377. Necessity for notice of defect: 2 Smith Munc. Corp. 1297, 1298, 1299, 1300, 1302, 1303, 1304, 1544 and 1545; 9 S. E., 17; 4 A. & E. Ann. Cas. 1000; 69 S. C. 357 and 359; 83 S. C. 551; 88 S. C. 553; 64 N. Y. 636; 51 App. Div. 450; 89 S. C. 31. Care of streets: 84 S. C. 124; 2 Smith Munc. Corp. 124. Nonsuit: 106 S. C. 128, 129; 99 S. C. 421; 104 S. C. 30.</p>

<p>1. Auctions and Auctioneebs — Contbact Right to Sede Peopeety.— Adi auctioneer of land had the right to advertise and sell lots at any time between the dates set by the contract between him and the owner, and the owner would have been bound to make deeds to the purchasers.</p> <p>2. Auctions and Auctioneebs — Contbact to Seia Lots — Bbeach by Owneb. — If the owner of lots contracted with an auctioneer to sell them between certain dates, and then put the auctioneer off as to the whole sale by pleading illness until the time limit for sales had expired, doing so with the intent to break up the sale, the owner breached the contract as effectually as if he had done so summarily and unequivocally.</p> <p>3. Auctions and Auctioneebs — Bbeach of Contbact by Lot Owneb— Question bob Juby. — In an action by an auctioneer against the owner of lots for breach of contract to permit their sale at auction, question of the owner’s breach by putting the auctioneer off until the time limit for sales had expired, with intent to break up the sale, held for the jury.</p>

Before Bowman, J., Orangeburg, May, 1916. John G. Williams, having been convicted of an offense, moved for a new trial on the ground of newly-discovered evidence. From an order denying the motion, he appeals.

Before Prince, J., Dillon, Spring term, 1917. Action by J. D. Rowell and others against D. H. Hyatt and others. Judgment for plaintiffs, and defendant named ■appeals. This is an action by plaintiffs, children of John Rowell, to recover possession of a tract of land devised in the will of their grandfather, William Rowell, in terms as follows: “Item First.

<p>In Original Jurisdiction, October term, 1917.</p> <p>Proceeding by the State, on the relation of James B. Addy, against the State Board of Education and its members for injunction.</p>

<p>Indictment and Information — Necessity of Preliminary Hearing.— Where, at the time a warrant was sworn out charging defendant with selling whiskey, the Court of General Sessions was in session, and an indictment predicated on the warrant was returned before defendant was arrested and taken before the magistrate, there was no necessity for a preliminary hearing before the magistrate.</p>

<p>Appeal and Error — Misleading Instructions — Error.—Where plaintiff was attacking certain items of settlement made by her attorney as being without authority where the attorney thought she had given him general authority to settle with the defendant, an instruction that to bind plaintiff he had to be “specifically” authorized was misleading and prejudicial; there being a great difference between general and specific authority.</p>

Before Gary, J., St. George, December, 1916. Action by the Fairfield Timber Company, a corporation, against James S. Simmons and others. Judgment for plaintiff, and Simmons appeals. cite: As to nature of estate in grantee created by timber deed: 45 S. C. 621; 46 S. C. F. 314; 80 S. C. 106; 89 S. C. 328; 90 S. C. 176; 98 S. C. 8; 95 S. C. 352; 96 S. C. 53; 214 Fed. 424 ; 93 S. C. 13; 97 S. C. 247. Right of landowner at time of the extension: 1 Speers 32.

Before Whaley, County Judge, Richland. Action by J. O. Glenn against Pacific Mills. cite: As to refusal to grant new trial: 92 S. C. 259. As to defect in machinery not being presumed from its breaking or from failure to perform: 72 S. C. 101; 78 S. C. 472. makes no citations.

Before MiímmingRr, J., Bamberg, November, 1916. ■Action by the Nixon Grocery Company and others against J. A. Spann and others. From an order directing defendant, J. A. Spann, to turn over certain lands to a receiver, he appeals. cite: As to order requiring property turned over to receiver: 82 Miss. 527; High on Receivers, sec. 459. Homestead: Civil Code, sec. 3711; 24 S. C. 210; 8 Jere Baxter (Tenn.) 533; 99 S. C; 415.

Before Prince, J., Anderson, at chambers, May 25, 1917. Mandamus by the State, on the relation of James N. Pearman, against J. Mack King and others. From judgment for petitioner, respondents appeal.

Before S. W. G. Shipp, J., Chester. Action by Maggie H. Hafner against City, of Chester. From judgment for plaintiff, defendant appeals. cites : As to allowing testimony of repairs to street after accident: 144 U. S. 206; 30 Minn. 465; 108 N. Y. 108; 51 Conn. 524; 77 Mo. 34; 75 Tex. 56; 123 Ind. 15; 132 111. 53; 86 Mich. 14; 152 Mass.. 168; 21 T. N. S. 261, 263; 51 S. C. 230; 77 S. C. 73; 85 S. C. 92; 99 S. C. 104.

Before Prince, J., Chesterfield, April, 1917. Proceeding for relief under section 225 of the Code, on the ground of excusable neglect. From an order denying defendant’s motion, they appeal.- cite: As to motion for relief, and not appeal from judgment, being proper remedy: 2 Encyc. PI. & Pr. 173; 5 Corpus Juris 200; 6 S. C. 30; 78 S. C. 316. As to the Circuit Judge having authority -under section 225: 19 S. C. 143.

<p>Before Smith, J., Greenville.</p> <p>Defendants appeal from a conviction on the charge of receiving stolen goods', knowing them to be stolen.</p> <p>The latter cite: As ,to the question of identity of goods: 106 S. C. 270. And urged that case at bar does not come within rule stated therein.</p> <p>cites: As to identity and ownership of property: 10 Ene. Ev. 668; 106 S. C. 272. As to corpus delicti: 2 Strob. 273; 4 McC. 358; 28 L. R. A. (N. S.). As to liability of one partner for the criminal acts of the other: 1 Mills Const. Rep. 274; 4 Strob. 303; 83 S. C. 256-7; Clark’s Crim. Law (2d ed., Hornbook Series) 329; Wharton’s Crim. Law (11th ed.), secs. 1235-6. As to guilty knowledge: Wharton’s Crim. Law, sec. 1229; 83 S. C. 256-7; 20 S. C. 110; 83 S. C. 157; Wharton’s Crim. Law (11th ed.), secs. 1229-30; Clark’s Crim. Law (2d ed., Hornbook Series) 330; 83 S. C. 356; 77 S. C. 383. As to intent: 10 Ene. Ev. 674; Clark’s Crim. Law 330; 30 S. C. 134; 39 S. C. 350; 77 S. C. 385; 83 S. C. 258.’ As to admissibility of evidence: 30 S. C. 134; 39 S. C. 350; 80"S. C. 390; Jones on Ev., sec. 143.</p>

<p>Before Mauedin, J., Spartanburg, Spring term, 1917.</p> <p>Action by Wm. Wright against J. C. Lee and another. Plaintiff appeals'.</p> <p>cites: 25 S. C. 321; 84 S. C. 350; 69 S. C. 278; 16 S. C. 374.'</p> <p>cites : 89 S. E. 666;</p> <p>16 S. C. 372; vol. II, Code of Civil Procedure, 1912; section 80, paragraph 12; 29 S. C. 31; 32 S. C. 171; 25 S. C. 385; 70 S. C. 294; 74 S. C. 71; Code of Civil Procedure, sec. 80, paragraph 13.</p>

<p>1. Executors and Administrators — Sale oe Property — EeeECT op Filing Claim — Estoppel.—Where a mortgagor sold a mortgaged mule, the mortgagee, by filing a claim against the mortgagor’s estate, was not estopped to proceed against the purchaser of the mule for a balance remaining.</p> <p>2. Chattel Mortgages — Purchase op Mortgaged Property — Conversion. — One buying a mortgaged mule and selling it is liable for conversion.</p> <p>3. Chattel Mortgages — Sales op Property — Remedies op Mortgagee. —A mortgagee of a mule, on sale of the mule by mortgagor and a sale by the purchaser, can either sue the purchaser for conversion or proceed to recover its possession.</p>

Before Shipp, J., Richland, Spring term, 19 — . Action by the Equitable Surety Company against the Illinois Surety Company, the United States Fidelity and Guaranty Company, and another. From an order overruling demurrer to the complaint, the United States Fidelity and Guaranty Company appeals. The sections of the Civil Code of 1912, directed to be reported, are as follows: Sec. 2724.

<p>Before Prince, J., Anderson, at chambers, 'Anderson, November, 1917.</p> <p>Suit by John W. Dinley and others, as a body corporate under the name and style of the Board of Drainage Commissioners of Eighteen Mile Creek Drainage District, against the Citizens National Bank of Anderson, S. C., and another. From a decree in favor of plaintiffs, defendants appeal.</p> <p>The constitutional amendment designated as article I of amendments to the Constitution reads as follows:</p> <p>“The General Assembly shall provide by law for the condemnation, through proper official channels, of all lands necessary ’ for the proper drainage of the swamp and lowlands of this State, and shall also provide for the equitable assessments of all lands so drained, for the purpose of paying the expenses of such condemnation and drainage.”</p> <p>Civ. Code 1912, sec. 2200, is as follows:</p> <p>“Notice. — If the petition is entertained by the aforesaid clerk of Court, notice shall be given by publication for two consecutive weeks in some newspaper of general circulation within the county or counties, if one shall be published in such counties, and also by posting a written or printed notice at the door of the courthouse, and at five conspicuous places within the drainage district, that on the date set, naming the day, the said clerk of Court will consider and pass upon the report of the viewers. At least fifteen days shall intervene between the date of publication and the posting of notices and the date set for the hearing.”</p> <p>The digest of the clerk’s duties mentioned in the opinion is as follows:</p> <p>Duties of the clerk in a drainage case:</p> <p>(1) To issue a summons to such landholders who have not joined in a petition-for drainage, and to appoint an engineer and board of viewers.</p> <p>(2) To consider the preliminary report of engineer and viewers: (a) It if be practicable; (b) if it benefits the public health; (c) if it shall impair a public highway; (d) if it be conducive to the general welfare of the community.</p> <p>(3) To give two weeks’ notice; by publication, if the petition be entertained by him, that he will consider and pass on the report.</p> <p>(4) To then hear and determine any objections to be made to the report; to verify the sufficiency of the petition before filed; to exclude such landowners who will not be affected, and to include those who shall; to declare established the drainage district.</p> <p>(5) To act in condemnation proceedings as he already acts in other condemnation cases.</p> <p>(6) To refer bade to engineer and viewers the report for them to make a complete survey and plans, and to fix a time for that business.</p> <p>(7) To extend the time for'a complete survey and to fix another day for its completion.</p> <p>(8) To examine the final report when it is filed with him, and to accept it if in due form and in accordance with law; to refer it back to engineers and viewers if not in due form, etc., for another report; then to give two weeks’ notice of a final hearing on the report.</p> <p>(9) To keep a drainage'record in a book.</p> <p>(10) To appoint a board of drainage commissioners.</p> <p>(11) To confirm the classification of the lands by engineers and viewers with reference to the benefits to it.</p> <p>(12) To draw out of the banks, at the maturity of drainage bonds, the sinking fund provided for their redemption.</p> <p>(13) To confirm assessments for the construction of drains.</p> <p>submit: The drainage laws are unconstitutional: 165 Ill. 527; 36 L. R. A. 105; 56 Ohio St. 375; 38 L. R. A. 519; 60 Am. St. Rep. 756; 47 N. É. 551; Cooley Const. Lim. 109; Art I of the amendments to the Constitution (adopted in 1901) ; sec. 27, art. V, Const. 1895; 5 R. C. R. 626; 11 C. J. 848, 890; 132 111. 403; 7 R. R. A. 729; 23 N. E. 1072 ; 5 R. C. R. 626; sec. 1, art. V, Const. 1895; sec. 14, art. I, Const. 1895; 165 111. 527; 36 R. R. A. 105; 56 Ohio St. 575; 38 R. R. A. 519; 60 Am. St. Rep. 756; 47'N. E. 551. As to powers of deputy clerk under the drainage-laws: Code of Raws 1912, sec. 2199; sec. 1304 ibid; 238 Fed. 510; 20 Wall. 92; 22 R. Ed. 320; 5 R. C. R. 628; 11 C. J. 913-14; 105 N. C. 65; 11 S. E. 177; 113 N. C. 18, S. E. 70; 95 Ky. 757; 31 S. W. 874; 106 Am. St Rep. 437; 31 R. R. A. 33; 30 S. C. 527; 9-S. E. 659; 13 Cyc. 1045; 113 N. C. 1; 18 S. E. 701; 31 Fla. 150; 12 So. 17; 10 R. R. A. 177; Note 106 Am. St. Rep. 826; Code of Raws 1912, secs. 2232, 2199, 2200, 2201, 2211. As to time required for publication: Code of Raws 1912, sec. 2200. As to powers of drainage commissioners in having the work done: Code of Raws 1912, sec. 2211.</p> <p>cite: As to main issue: Code of Raws 1912, sec. 2197, as amended by the acts of 1914 and 1915; art I, Const. 1895, secs. 14 and 27; art. V, Const. 1895, secs. 1, 20 and 21; Code of Raws, secs. 1313, 1318, 1322, 1323, 1348, 1349, 1373; Code of Civil Procedure, secs. 263, 264,- 280, 295; R. C. R. 626-7 ; 36 R. R. A. Ill; 38 R. R. A. 519. As to powers of deputy clerk: Code of Raws, vol. I, sec. 1304; Reading Case Raw 628-9. As to time required for publication: Code, vol I, secs. 2200 and 1700; 10 Rich. 395. As to powers of drainage commissioners in having the work performed: Chap. XXXII, art. I, Code 1912; Code of Raws 1912, vol. I, secs. 2216, 2226, 2227, 2230 and 2232.</p>

<p>Before DeVore, J., Richland, Spring term, 1917.</p> <p>Robert Weston was convicted of carrying an unlawful weapon, and he appeals'.</p> <p>cites: 16 S. C. 187.</p>

<p>Before DeVore, J., Richland, Spring term, 1917.</p> <p>Appeal from order overruling demurrer to complaint upon the improper joinder of causes of action.</p> <p>cite: 85 S. C. 79; Code of Civil Procedure 218; 13 S. C. 317.</p> <p>cites: 64 S. C. 578-9; 59 S. C. 25; 84 S. C. 267; 48 S. C. 78-80; Pom. Code Rem., sec. 245; 104 S. C. 440; 52 S. C. 192; 22 S. C. 584-5; 10 S. C. 52; 103 S. C. 65.</p>

<p>1. Appeal and Error — Harmless Error. — Error, if any, in excluding testimony is not prejudicial, where another witness testified fully to the same fact.</p> <p>2. Trial — Instructions—Statements oe Judge. — Where the Judge left all the facts to the jury for their determination, a remark that certain facts were within the knowledge of people of ordinary intel- » ligence, and that the witness must state facts and permit the jury to draw their inferences, was not erroneous.</p> <p>3. Statutes — Special Laws — Drainage—Validity.—Cr. Code 1912, sec. 237, requiring landowners to clean out streams, and section 238, making it a misdemeanor to obstruct a stream, are constitutional in view of act Feb. 18, 1905 (24 St. at Large, p. 830), authorizing the'. General Assembly to pass local or special laws concerning drainage.</p>

<p>1. Trial — Instructions—Reading Statutes. — In an action for death on railroad track, where it was alleged death was caused by train</p> <p>• operated in violation of law, the mere reading of the statute to the jury was sufficient, or the Court could embody the statute in his own language.</p> <p>2. Trial — Questions Eor Jury. — Where more than one inference can be drawn from the evidence, it is properly submitted to the jury.</p> <p>3. Negligence — Wantonness—Violation otí Statutes — Jury Question — “Negligence Per Se.” — The violation of statute is “negligence per se," but not wilfulness or recklessness or wantonness per se, being merely evidence of the latter, in an action for death.</p> <p>4. Appeal and Error — Estoppel to Allege Error — Consent to Proceeding. — Where attorneys voluntarily waived argument after the jury communicated its desire not to hear argument, they cannot maintain that they were prejudiced thereby.</p>

Before Shipp, J., Florence, May, 1917. Action for partition by R. D. Witherspoon against Fred. Witherspoon and others. From an order refusing to allow the named defendant to answer, He appeals'. submits: That it was an abuse of discretion on the part of his Honor, when-he refused to allow the defendant, Fred.

Before Bowman, J., Charleston, Spring term, 1917. Action by Annie T. Rouk, as administratrix of Henry M. Rouk, deceased, against the Virginia-Carolina Chemical Company and another. From a judgment for plaintiff, the defendant named appeals. cite: As to error in admitting death certificate: Wigmore on Evidence, Ed. 1904, vol.

Before Bowman, J., Charleston, - term. S. P. Stewart was convicted of an offense in the recorder’s Court. From a decision reversing the verdict and sentence, the State appeals.

<p>Principal and Surety — Cancellation oe Bond — Failure to Give Notice. — Where defendant surety, on a county dispenser’s bond •required by Civ. Code 1912, secs. 6S2, 6S3, did not give the notice required by section 66S, providing for withdrawal of sureties from official bonds, it was not released from liability, and the principal could not recover for wrongful act of surety in canceling bond, and thus causing his discharge.</p>

Before Rice, J., Spartanburg, Spring term, 1916. Arthur Mason was convicted under an indictment containing two counts, one charging assault and battery with intent to kill and the other charging an aggravated breach of the peace, and appeals. cites: Art. V, sec. 26, Cons. 1895; 47 S. C. 489; 49 S. C. 488.

Before Gary, J., Aiken, Spring term, 1917. Action by the J. I. Case Threshing Machine Company against H. P. Dyches. Directed verdict for plaintiff, and defendant appeals'.

Before Moore, J., Pickens, Fall term, 1916. Action by Easley Loan and Trust Company against W. T. Jeanes. From judgment on directed verdict, defendant appeals. cites: As to refusal of motion to amend answer: Code of Procedure, sec. 224; 86 S. C. 98; Code of Procedure, sec. *194. As to direction of verdict: 74 S. C. 575; 62 S. C. 42; 106 S. C. 32. file no argument.

<p>Before Whaley, County Judge, Richland, August, 1917.</p> <p>Appeal from an order sustaining a demurrer to complaint upon the ground that it failed to state facts sufficient to constitute a cause of action.</p> <p>The complaint is as follows:</p> <p>The plaintiff above named, complaining of the defendant above named, alleges:</p> <p>(1) That on or about the 1st day of July, 1917, the defendant promised and agreed to sell to the plaintiff herein six hogs, which were then on the plantation or premises of one Mills, in Lexington county, S. C., for the sum of $60, and at that time accepted and received from the plaintiff $10 as part payment of the purchase money of said hogs, and gave to the plaintiff a memorandum in writing, signed by himself, whereby he acknowledged the receipt of the said $10, and agreed to deliver to the plaintiff the said six hogs upon the payment of the further sum of $50, which was to be paid on the 4th day of July, 1917, and upon the payment thereof to deliver the said hogs to the plaintiff.</p> <p>(2) That on the said 4th day of July, 1917, the plaintiff herein went to the defendant, and offered to pay the defendant the said sum of $50 upon the delivery of the said hogs either at Columbia, or at the said farm of Mills, in Lexington county, but the defendant refused to deliver the said hogs to the plaintiff, and still refuses' to do so, although the plaintiff has made repeated offers to pay the said sum of $50 upon delivery to him.of said hogs in good condition. ,</p> <p>(3) And the plaintiff alleges that he has performed all the conditions of the contract of purchase imposed upon him by the terms thereof.</p> <p>(4) And the plaintiff alleges that he is engaged in the truck farming business, and has much truck, vegetables, and fruit which he is unable to sell on the market, and which he hoped and intended to feed to said hogs, which were then very poor, and thereby fatten them, and sell them when fat on the market. And the plaintiff alleges that by reason of the said facts the said hogs were of particular value to him; and that for the reason aforesaid a monetary judgment would not be an adequate remedy, or fully compensate him for the loss occasioned by the defendant’s breach of his contract.</p> <p>(5) And the plaintiff alleges that at the time of the sale the said hogs were worth the said sum of $60, but that if in good order they are now worth the sum of $100. •</p> <p>Wherefore, the plaintiff asks judgment that the defendant be required specifically to perform his contract with the plaintiff by delivering said hogs to him upon the payment of the said sum of $50, and for such other and further relief as may be just and proper.</p> <p>cites: As to error in not dismissing: Rule 18 of the Circuit Rules; 93 S. C. 487; Code of Procedure, sections 193 and 198. If complaint states any cause of action either at law or in equity, it should not be dismissed: 70 S. C. 118; 70 S. C. 572; 98 S. C. 400; 80 S. C. 223; 105 S. C. 525.</p>

Before Smith, J., Richland, Summer term, 1917. Action by James Woodrow, trustee, against John W. Rillard and another. From an order denying a motion for the appointment of a receiver in supplementary proceedings, plaintiff appeals.

<p>Before Moore, J., Pickens, Fall term, 1916.</p> <p>From taxation of costs, defendant appeals.</p> <p>cite: 41 S. C. 208; 79 S. C. 388; 22 S. C. 313; 104 S. C. 391; 93 S. C. 317.</p> <p>No copy of argument furnished Reporter.</p>

Before SeasE, J., Jasper, Spring term, 1916. Controversy without action. From judgment for plaintiff, defendant appeals. The following statement appears in the record: “This was an action for claim and delivery of personal property, to wit: One mouse colored horse mule named Pete (all other property mentioned in the complaint and in the mortgage being either dead or released). The following is a copy of the note and mortgage under which the plaintiff claims possession: $250.

Before Memmingsr, J., Kingstree, April, 1917. Action by S. B. McElveen and another, as executors of the will of Mary L. Adams, deceased, against J. P. Adams. cite: As to title of executors under will: Dud. 6; 7 A. M. & Eng. Ency. 170; 1 Williams on Executors 112; 18 Cyc. 55; 13 Howard 466 (14 L. Ed., U. S. 226). An express trust in personal property may be created by parol: 39 Cyc. 51; 14 S. C. 210; 11 5. C. Eq. 598; 24 S. C. Eq. 398; 47 S. C. 322.

Before SeasE, J., Union, Fall term, 1917. Frances Hollis was convicted of manslaughter, and she appeals. The Court’s charge to the jury was as follows: Mr. Foreman and Gentlemen of the Jury: The charge against this defendant is murder. That charge also includes manslaughter. The defense is self-defense, and also a killing to prevent the commission of a felony, to wit, assault with intent to ravish. The State must prove the guilt of the defendant beyond a reasonable doubt.

<p>(S. E. 868.)</p> <p>1. Vendor and Purchaser — Rights oe Purchaser — Contracts—Subsequent Conveyances. — Where husband and wife contracted to buy land in 1863, their rights were fixed and vested at that time, and where they completed their purchase and received a deed in 1871, when the law had been changed, their rights under the contract were superior to the deed, and' were determinative of the rights of their successors in interest.</p> <p>2. Constitutional Law — Retrospective Amendments — Eeeect. — Where husband and wife contracted in 1863 to buy land, their acceptance of a deed in 1871, after adoption of the Constitution of 1868, changing the existing law as to property rights of husband ■ and wife, did not affect their rights.</p>

Before Smith, J., Greenville, Spring term, 1917. W. A. Teal was convicted of seduction, and he appeals. The following is the Judge’s charge: Mr. Foreman and gentlemen of the jury, at the time and place and in the manner therein described the defendant at the bar is charged in this bill of indictment with the statutory crime of seduction.

Before Bowman, J., Charleston, Spring term, 1917. Action for personal injuries. Judgment for plaintiff, and defendant appeals. Civ.

Before Smith, J., Richland, Summer term, 1917. Action for malicious prosecution and appeal from order setting aside verdict of jury, in favor of plaintiff for $750 and granting new trial. cites: As to judicial powers of magistrates: -19 Stats. 819; Crim. Code 1912, sec. 23; Constitution 1895, art. V, secs. 6-21-26; 30 S. C. 105; 61 S. C. 25; 58 S. C. 92. cites: As to granting new trial: 64 S. C. 485; 77 S. C. 319; 92 S. C. 361.

Before Gary, J., Greenville, Spring term, 1916. Exceptions 4, 5,6,7 and 8, directed to be reported, were as follows: (4) His Honor erred in charging the jury in substance that if the defendants agreed to have a fight and engaged in a fight they are'supposed to have intended the consequences which followed from that unlawful act, from which death resulted and are equally responsible.

<p>Before Si-iipp, J., York, Spring term, -19171</p> <p>Action by Dennis K. Hall against the Western Union Telegraph Company.</p> <p>cites: 91 S. E. Rep. 1009; 21 U. Ed. 146; 21 E. Ed. 710; 32 D. Ed. 346; 100 S. C. 469; 95 S. C. 431.</p> <p>cite: Barnes’ Interstate Trans. S. 28, p. 69, et seq.; 240 U. S. 403; 116 U. S. 517; 32 S. W. (Tex.) 889-; 30 U'R. A. 713; 234 U. S. 542; 122 U. S. 347; 218 U. S. 406; 240 U. S. -612; 92 S. E. (N. C.) 1000; 220. U. S. 364; 162 U. S. 650; 91 S. E. 154; 116 Va. 562; 234 U. S. 542; 240 U. S. 612; 37 Sup. Rep. 405; 203 Fed. 140; 33 I. C. C. 500; 44 I. C. C. 670; 42 Wash. L. R. 722; 42 App. Cas. 398; 73 So. Rep. 983; 114 Ark. 193; 169 S. W. 946; Ark. 319; 179 S. W. Rep. 494; 117 Ark. 210; 174 S. W. Rep. 552; 117 Ark. 156; 174 S. W. Rep. 232; 97 Kan. 619; 156 Pac. 716; 99 Kan. 7; 160 Pac. 985; 164 Pac. 267; 174 Ky. 210; — S. W. Rep. 70; 114 Me. 277; 96 Atl. 219; 196 S. W. 28; 132 N. C. 390; 91 S. E. 1009; 93 S. E. (N. C.) 773; 156 Pac. 1175; 158 Pac. 1139; 162 Pac. 708; 23 Piula.. Dist. R. 291; 59 Pa. Sup. Ct. 122; 92 S. C. 52; 192 S. W. 924; 119 Va. 14; 89 S. E. 106; 116 Va. 1009; 83 S. E. 424; 116 Va. 562; 82 S. E. 91; 91 S. E. 154; 91 S. E. 157; 161 N. W. 773; 222 U. S. E. Ed. 264; 57 S. E.-383; 147 U. S. 101; 41 Fed. 865; 103 Fed. 847; 109 Fed. 377; 174 Fed. 607; 105 S. C. 287; 106 S. C. 156; 239 U. S. 352.</p>

Before DeVore, J., Edgefield, August, 1915. Action by W. W. Wise against the Carolina Hail Insurance Company and another. Judgment for plaintiff, and defendants appeal. cite: As to deposit of premium notes with insurance commissioner: Sections 2701, vol. I, Code 1912. Assignment of premium notes to creditors: Corpus Juris, vol. V, pp. 866 and 868; 33 S. C. 451; Black on Bankruptcy, sec. 592, p. 1248; 17 E. R. A. (N. S.), pp. 935 and 944; 74 S. C. 368.

Before Gary, J., Berkeley, Fall term, 1916. Prosecution for larceny-of live stock. submits: The. sole question presented by the exceptions is: Did the State offer evidence tending to establish the corpus delicti? If there was no evidence tending to establish this fact, it was error of law in refusing the motion to direct a verdict for defendants, and again in refusing the motion for a new trial: 81 S. C. 100; 58 S. C. 495; 77 S. C. 379; 68 S. E. (N. C.) 917; 64 Sou.

Before Wirson,- J., Anderson, Spring- term, 1917. Action for foreclosure of a mortgage of real estate. The amount involved was $10,000, and from an allowance of $800 as attorney’s fee, the mortgagor appeals. cite: 84 S. C. 450; 94 S. C. 383; 104 S. C. 396; 105 S. C. 201. cite: 105 S. C. 200; 104 S. C. 397; 103 S. C. 299.

Before Rice, J., Spartanburg, Spring term, 1916. Action by Joseph Sexton, an infant, by his guardian ad litem. Judgment on verdict for plaintiff, and defendant appeals. submit: In this case, where the injury was ■inflicted upon the private premises of the defendant, an entirely different rule, from that in cases where the instrumentality inflicting the injury was located in close proximity to the highway, applies: R. R. A., 1916b, 947.