Volume 109 — South Carolina Reports

Before Rice, J., York, Fall term, 1915. Proceedings by W. R. Carroll against the Town of York, J. C. Wilborn, Mayor, A. T. Hart, John S. Sandifer, C. F. Sherer, Thomas W. Speck, J. G. Dickson and William Dickson, Aldermen, constituting the town council of said town of York, S. C., to avoid payment of license. From a judgment allowing the exaction and collection of the tax, W. R. Carroll appeals.

Before Rice, J., Oconee, Spring term, 1917. Baxter Roach, as judgment creditor, procured rule to show cause issued to J. G. Breazeale and another, why bid at execution sale should not be complied with, and from the decree the respondents appeal.

Before DeVorE, J., Richland, Fall term, 1917. Action by D. W. Robinson and others against Benjamin P. McMaster. Plaintiffs had judgment, issued execution, which was returned nulla bona, and obtained an order ex parte requiring defendant to appear for examination concerning his property.

Before WhaeEy, J., County Judge, Richland, 1917. This action was commenced in the magistrate’s Court praying judgment for $2 actual damages, and $98 punitive damages. After refusal of magistrate to direct a verdict for defendant, the jury returned a verdict as follows: “$2 actual damages, and $73 punitive damages.” The county Court affirmed the findings of the magistrate.

<p>1. Evidence—Parol Evidence Showing Date oe Memorandum..—The true date of a written contract may be shown by parol; the date being no part of the instrument.</p> <p>2. Evidence—Parol Evidence—Varying Memorandum by Parol.— A contract in writing for the sale of land, consisting of an order for $1 as part payment and a receipt therefor, as such, stating balance of consideration and date due, speaks for itself and cannot be varied by parol evidence.</p> <p>3. Appeal and Error—Review—Discretion oe Court—Reception oe Evidence.—Whether the Judge shall exclude the jury and hear testimony that he may pass on its relevancy is within his discretion.</p> <p>4. Appeal and Error—Presentation oe Question Below.—Error in excluding evidence will not be considered on appeal where the record does not show what was expected to be proved by such evidence.</p>

<p>Before DeVore, J., Summer term, 1917.</p> <p>Action by the Security Loan & Investment Company against J. P. Etheredge. From a judgment for plaintiff, defendant appeals.</p> <p>cite: 79 S. C. 526; 97 S. C. 375; 52 S. C. 224; 70 S. C. 295; 74 S. C. 246; 75 S. C. 261; 80 S. C. 392; Vance on Insurance, sections 72-73, p. 109; Kerr on Insurance, sections 131-132, pp. 293-4.</p>

<p>Carriers—Injury to Passenger—Evidence—Rules.—In a passenger’s action against a street railway company for personal injury, the rules of the company are admissible in evidence.</p>

Before Memminger, J., Berkeley, Summer term, 1917. Action by F. Q. O’Neill against the Cooper River Corporation, the Midland Timber Company and others. From a judgment for plaintiff, the defendants named appeal. The exceptions were as follows: 1. That the Court erred in not holding that the respondent, F. Q. O’Neill, was bound by the provisions of the original timber deed from Lucas to Farr. 2.

Before SeasE, J., Orangeburg, Spring term 1917. Action by Amarintha E. Dantzler and others against Mary Rebecca Riley and others. From a judgment dismissing the complaint, plaintiffs except. cite: As to construction of deed of J. Michael Dantzler to his children: 37 Flá. 457; 42 S. C. 65; 2 Black Com. 317; 63 Am. Dec. 440; 2 Ed. A. & E. Ene. R, vol. IX 138; 77 S. C. 172; 3 Washb. Real Prop. 378; 1 Ed. A. & E. Ene. R, vol.

Before Sease, J., Spartanburg, May 23, 1916. Action by Mrs. Betty Avent against L. D. Proffitt. From a judgment for plaintiff, defendant appeals. cite: As to duty owed by an architect to his employer: 36 Atl. 104; 4 Cyc. 964; 100 U. S. 195; 30 Cyc. 1578; 43 Wis. 381; 34 Iowa 290; 2 Am. & Eng. Enc. Law (2d ed.) 818; 5 C. J. 201, 25; 53 111. 463; 20 111. 437; 128 Minn. 452; 34 N. Y. 370; 5 N. Y. Sup. 839; 4 Rich.

Before Peurieoy, J., Colleton, Summer term, 1916. Before SeasE, J., Colleton, Fall term, 1916. John Waring was tried at the Summer term of the Court of General Sessions, 1916, Colleton county, on the charge of murder, before his Honor, Judge JPeurifoy, and a jury. He’ was convicted of manslaughter, and 'from sentence appeals.

<p>Deeds—Estate Created—Conditional Fee—"Heirs of Her Body”— “Children.”—Deed to a woman “and to the heirs of her body,” to have and to hold during her life, at her death “to go equally to her children, should she leave any,” and, in case she died leaving =■ no child or children, to go to her legal heirs, created a conditional' fee, and not a life estate with remainder to her children; it being clearly the intention of the grantor to convey his entire estate, which intention would be defeated by interpreting the words “heirs of her body” to mean “children,” not a word of limitation under such circumstances, since there were no other words of limitation, in the deed by which the children could take the fee in remainder, and the clause that in case she died leaving no child or children, etc., being without legal effect, since she did not die without leaving; children.</p>

Before Mauedin, J., Spartanburg, Spring term, 1917. Action by Anderson Hodge, for false arrest, against Piedmont and Northern Railway Company. Judgment for plaintiff, and defendant appeals. cite: As to sufficiency of warrant: 29 S. C. 180; 81 S. C. 131; 40 S. C. 298. As to conductor ■assisting in the arrest: Code of Laws, sec. 3273; 80 S. C. 332. cite: As to condtcctor assisting in the arrest: Vol. I, Code of Laws 1912, sec. 3273; Crim. Code, sec. 672; 64 S. C. 326; vol.

<p>Mortgages—Appointment oE Receiver.—A mortgage clause, that the mortgagor should hold and enjoy the premises until default in payment, did not imply an agreement to surrender after default, which warranted appointment of receiver upon the mortgagee’s application, in the absence of a pledge of the rents and profits; for, the mortgagor being the legal owner until foreclosure, an agreement to retain a part of his right will not be construed as surrender of all other rights.</p>

Before Rice, J., Spartanburg, Spring term, 1916. Action by J. A. Melton against Cohannet Mills. From judgment for plaintiff, defendant appeals. cite: As to proximate cause: 58 S. C. 493; 61 S. C. 494.

Before DeVore, J., Darlington, Fall term, 1916. Action by the First National Bank of Hartsville, S. C.r against D. E. Wood, W. B. Gay, I. M. Johnson and others.. Judgment for plaintiff, and the named defendants appeal.. cite: As to alteration of note after delivery: 32 S. C. 238; 91 S. C. 138; 2d Am. & Eng. Ency. of Daw 183; 91 S. C. .135; Joyce on Defenses' to Commercial Paper, sec-161; 2d Corpus Juris 1206; 8 Corpus Juris 728; 23 L. R. A. 599; 37 Am. Rep. 68; 10 Amer.

Before Maurdin, J., Greenville, Summer term, 1917. Action by W. A. Spillers against H. H. Griffen. From judgment for plaintiff, defendant appeals. cite: As to cross-examination by plaintiff of his own witness: 22 S. C. 199; 43 S. C. 127; 89 S. C. 235. As to res gestae: 75 S. C. 190.

<p>Judgment—Entry by Cleric—Conformity to Judgment of Court.—■ In a mechanic’s lien foreclosure action, judgment of foreclosure of the lien reciting “that the respondent is justly due to the plaintiffs, the sum of * * * dollars,” did not authorize the clerk of Court to enter a general judgment for a specified sum of money against the defendant in personam, since there were no words expressly authorizing the entry of such a judgment, and it was necessary for the Court to ascertain and determine the amount due by defendant under the mechanic’s lien, and it would not have been in accordance with the terms of the statute as to foreclosure of mechanic’s lien for the Court to decree that plaintiff was entitled to a judgment in personam against defendant.</p>

Before Rice, J., Aiken, Summer term, 1917. M. O. Hewitt was convicted of delivering and transporting liquor in violation of act February 20, 1915 (29 Stats. 140), and he appeals. Mr. Salley cites: As to charge upon facts: 25 S. C. 177-8-9; Wharton’s Criminal Evidence, sections 66, 67; 103 5. C. 280; 94 S. C. 305. As to motion in arrest of judgment: Clark on Criminal Procedure 493; 8 R. C. E. 228; 12 Cyc. 758; 12 Cyc. 757; 52 S. C. 469.

Before Maurdin, J., York, Kail term, 1916. ' Action by Mrs. Kate J. Hutchison and Miss Kate J. Hutchison against the Southern Railway Company. Judgment for defendant, and plaintiffs appeal. cites: As to regulations of the Interstate Commerce Commission: 95 S. C. —. As to duty of carrier to give passenger information: 90 S. C. 510; 88 S. C. 421; 53 S. C. 210; 75 S. C. 142; 105 S. C. 423; 2 L. R. A. (N. S.) 110; 78 Mo. 610; 156 Ala. 222; 47 So.

<p>1. Trial—Nonsuit—Evidence.—For the Supreme Court to sustain order of nonsuit, it must be satisfied that plaintiff’s evidence, when considered in connection with defendant’s, is susceptible only of the inference that it fails entirely to sustain the material allegations of the complaint.</p> <p>2. Appeal and Error—Allowance op Amendment to Answer—Discretion op Court.—Exception by plaintiff to the action of the trial Court in allowing defendant to amend its answer after remand on first appeal must be overruled, where it is not made to appear that the Court’s discretion was erroneously exercised.</p>

Before Wilson, J., Edgefield, Spring term, 1917. John Ernest Abney was convicted of malicious mischief,, and he appeals. cites: As to wilfulness and malice: Crim. Code, sec. 222; 88 S. C. 238.

<p>Appeal and Error—Subsequent Appeal—Questions Precluded.— Exceptions to insufficiency of evidence fully considered on a former appeal will not be considered in a subsequent appeal, where the evidence is practically the same and to consider exceptions would require a reprint of the former opinion.</p>

<p>1. Carriers—Live Stock—Notice of Injury.—Where it was the carrier’s duty to unload an animal, and where, if it had done so, it could have seen, or ought to have seen, an apparent injury, it could not, on appeal, be heard to complain of its lost opportunity to see the injury, if any.</p> <p>2. Evidence—Parol Evidence—Receipt—Condition of Animal.—A receipt given when an animal was received, being only prima facie evidence as to the condition of the animal, either party might after-wards show a different condition at the time of shipment.</p> <p>3. Estoppel—Carriage of Animal—Receipt—Injury to Animal.— The shipper of an animal was not estopped, by signing a receipt, from showing that the animal was severely injured, and not, as he first thought, only slightly injured, as he had a reasonable time after he received the animal to ascertain the extent of the injury and his damage, if any.</p>

<p>Before Mauldin, J., Richland, Spring term, 1916.</p> <p>Action by C. S. Fulmer against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals.</p> <p>cite: As to punitive damages: 82 S. C. 87; 83 S. C. 22.</p>

<p>Before Si-iipp, J., Richland, November 10, 1916.</p> <p>Action by Eliza J. Meyer against Lawrence B. Owens •and others. From an order refusing to strike a demurrer to the complaint, plaintiff appeals.</p> <p>cites: As to joinder of causes of action: Code of Procedure, sec. 218; 70 S. C. 253; 29 S. C. 407, 412-13; 105 S. C. 80; 72 S. C. 387. As to right of trial by jury: Code of Civil Procedure, sec. 312; 23 S. C. 370; 43 S. C. 192; 37 S. C. 169. Frivolous pleadings: Code, sec. 306; 37 S. C. 607; 2 S. C. 427; Black’s Law Die. 526; 90 S. C. 160; 91 S. C. 864.</p> <p>cite: As to joinder of causes of action: Code, sec. 218; 23 Cyc. 428; 30 S. C. 114; 31 Cyc. 885-6-888-887; 23 Cyc. 431-432 ; 23 Tex. Civ. App. 504; 41 Mo. 274; 51 Kan. 617 (cited 1 Encyc. P. & P. 209) ; 45 Iowa 315 (cited 1 Encyc. P. & P. 209); 23 Cyc. 428; 29 S. C. 412-13; 70 S. C. 253. As to frivolous demurrer: 6 Ency. PI. & Pr. 685-7; 46 Minn. 208 (cited 6 Encyc. PI. & Pr., p. 387).</p>

Before Bowman, J., Greenwood, Fall term, 1916. Action by Daisy B. Reynolds, administratrix of the estate of J. B. Reynolds, deceased, against J. P. Stockman. Judgment for defendant, and plaintiff appeals. cite: As to the construction of contracts of sale of standing timber: 25 Cyc., p. 1549; 9 Cyc. 583-587. cite: As to construction of contract: 34 S. C. 92; 98 S. C. 226.

Before PruriRoy, J., Jasper, Summer term, 1917. ■ Defendant was convicted of selling liquor and from sentence appeals. cites: As to charge upon facts: Constitution 1895, art. V, sec. 26.

<p>Master and Servant—Injury to Servant—"Proximate Cause.”—In an action for personal injuries under the Federal act by a station master, who was assaulted by a robber 'at night, while engaged in interstate commerce, the proximate cause of the injury was the act of the robber, and not defendant railway company’s failure to maintain sufficient lights about the station, since, when the negligence appears merely to have brought about a condition or situation under which another and entire independent and sufficient agency intervenes to cause the injury, the latter is the proximate cause and the former the remote cause.</p>

Before Rice, J., Union, Spring term, 1916. Action by Frank Smith against Western Union Telegraph Company. From a judgment for defendant, plaintiff appeals. cite: As to the duty of a telegraph company when it discovers that the person, for whom the message is intended, lives beyond the free delivery limits: 77 S. C. 181; 47 S. E. 607; 48 S. E. Rep. 653; 74 S. C. 304; 84 S. C. 5; 81 S. C. 432.

Before Shipp, J., York, Fall term, 1916. Action by Barbara A. Moser, as administratrix of the estate of Thomas Gaston Moser, against the Fort Mill Manufacturing Company. From an order of nonsuit, plaintiff appeals. cite: As to injuries caused to servant by defective machinery: 95 S. C. 240. As to contributory negligence: 82 S. C. 550; 95 S. C. 302. Where a servant sustains injury from a defect in machinery, there is prima facie evidence against master: 71 S. C. 81.

<p>1. Appeal and Error—Reversal—Amount op Recovery—Trivial Excess.—An action to recover from a carrier for loss and statutory-penalty for neglect to pay claim in due time, where the dispute was whether the refund for freight charges should be 11 cents or IS cents, is a fit case to apply the maxim, “De minimis non curat lex."</p> <p>2. Carrier—Loss op Goods—Delayed Payment—Statutes—Penalty. —While a statute providing a penalty for neglect of a carrier to pay a loss in due time is penal, yet it was enacted to meet a hurtful policy of delaying payment, and to that extent is remedial.</p>

<p>Before Smith, J., Richland, Summer term, 1916.</p> <p>Defendants demurred to the complaint for misjoinder of causes of action. From order overruling the demurrer, they appeal.</p> <p>cites: Jones on Mortgages. section 1378; 9 Iowa 297; 14 Kansas 387.</p> <p>cites: Code of Procedure, section 168; Pomeroy’s Remedies and Remedial Rights, p. 299; 26 S. O. 474; Code 138; Pom. Rem. 248, 257; 9 Rich. Eq. 318; 1 S. C. 279; 37 S. C. 520; 43 S. C. 66; 64 S. C. 221; 105 S. C. 525; 78 S. C. 302; 24 S. C. 39; 1 Bailey 13; Ene. P. & P„ vol. 15; 528 Pom. Rem. 442, 447; 15 S. C. 10; Pom. Rem. and Rem. Rights (2d ed.), p. 398.</p>

<p>1. Quo Warranto—Venue—Involving State Office.—The venue of an action of quo warranto involving title to a State office, that of chief game warden, kept at the seat of the State government, is in Richland county, the case not falling within Code Civ. Proc. 1912, section 173, subd. 2, providing that actions against a public officer for an act done by him in virtue of his office shall be tried in the county in which the cause of action or some part arose, since the alleged unlawful intrusion into the office, and usurpation of its duties and powers, arose where the office was kept, at the seat of the State government, in Richland county.</p> <p>2. Courts—Original Jurisdiction of Supreme Court—Sending Case to Circuit Court.—As the jurisdiction of the Supreme Court extends all over the State, it is not improper, in an action or proceeding in the original jurisdiction, to lay the venue as of the county in which the cause of action arose or would be triable if the action were brought in the Circuit Court, but when the Supreme Court sends a case to the Circuit Court it is sent to the county of the proper venue.</p> <p>3. Trial—Notice—Docketing Case—Statute.—Code Civ. Proc. 1912, sec. 314, as to docketing a case 14 days before Court by plaintiff, or 7 days before Court by defendant, was intended to take the place of any other notice of trial or notice of issue.</p> <p>4. Reference—Order Before Case Is Docketed.—Code Civ. Proc. 1912, sec. 314, was not intended to and does not interfere with the power of the Court to pass such orders in pending cases as may be necessary or proper to prepare and speed them to a hearing on the merits, so that, after issue joined, the Court or a Judge at chambers may order a reference even before the case is docketed; certainly such section does not interfere with the Judge’s, power to proceed with the preparation for hearing or the hearing of matters or proceedings which he is authorized to determine at chambers.</p> <p>5. Jury—Right to Trial By—Constitution.—Const., art. I, see. 25, providing that the right of trial by jury shall be preserved inviolate, preserves the right only in those cases in which the parties were entitled to it under the law or practice existing at the adoption of the Constitution.</p> <p>6. Jury—Right to Trial By—Quo Warranto.—At the time of the adoption of its first Constitution by the State of South Carolina, neither party to a proceeding in quo warranto had a right, under existing law or prevailing practice, to demand a jury trial of issues of fact.</p> <p>7. Jury—Right to Trial By—Quo Warranto—Constitution.—Under Const., art V, sec. 25, providing that each of the Justices of the Supreme Court and the Judges of the Circuit Court shall have the same power at chambers to issue writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition, and interlocutory writs or orders of injunction as when in open Court, a jury trial of issues of fact in quo warranto is not demandable by either party as of right, though the Court or Judge hearing the .proceeding, if he desires, in his discretion, and for his own assistance, may have the benefit of a verdict of a jury on the issues of fact.</p>

<p>1. Homicide—Murder.—Where one who had escaped from jail, where he was incarcerated on a charge of breaking into a dwelling house in the nighttime, shot and killed a police officer when the latter stepped into the room where he was hiding through the window to arrest him, the circumstances were sufficient to warrant conviction of murder.</p> <p>2. Homicide—Murder—Accessory Before the Fact.—There can be no accessory before the fact to the offense of manslaughter.</p> <p>3. HomicilE—Accessory—Evidence.—In a prosecution for being accessory before the fact to murder of a police officer testimony that the murderer told the sheriff that defendant told him not to go back to jail, from which he. had escaped, but to kill the first damned policeman that came toward him, was not incompetent to prove the charge of accessory, in that it did not tend to prove that defendant advised the murderer to kill the particular officer by name or other designation.</p> <p>4. Homicide—Accessory Before Fact—Gravamen of Offense.—The gravamen of the offense of being accessory before the fact to murder of a police officer consisted in advising the murderer to kill any person who might lawfully attempt to arrest him.</p> <p>5. Criminal Law—Evidence—Statement Implicating Others.— The general rule, except in conspiracy, is that a confession or statement made by one of two or more defendants on trial is to be received in evidence as made, though it may implicate the others, but nevertheless is to be received as evidence against the declarant alone; the jury being cautioned that it must not be considered against the other defendants.</p> <p>6. Criminal Law—Evidence—Hearsay.—In a prosecution for being accessory before the fact to the murder of a police officer, the sheriff’s testimony that the murderer told him that defendant advised him (the murderer) to kill the first damned policeman that came toward him was inadmissible against defendant as hearsay, because it did not tend to prove the charge against the murderer, but only the charge against defendant.</p>

Before Prince, J., Sumter,-. Action by W. E. Sparks, as administrator of Eugene Sparks, deceased, against the Atlantic Coast Line Railroad Company and another. Judgment for defendants and plaintiff appeals. cite: As to effect of decision of the Supreme Court upon a former appeal in this case: (104 S. C. 266) ; 101 S. C. 11; 32 S. C. 511; 10 Ark. 555; 182 Ind. 278; 38 App. D. C. 5; 140 Fed. Rep. 419; 149 Fed. Rep. 136; 73 Tex. 12; 15 Am.

Before DeVore, J., Marion, Fall term, 1916. Two actions by Marion Cotton Oil Company against the Atlantic Coast Fine Railroad Company. Judgment for defendant in both cases, and plaintiff appeals. cites: As to constitutionality of section 2574 of the Code of Laws 1912, when applied to an intrastate shipment:'78 S. C. 42; 82 S. C. 387.

Before DeVorE, J., Kershaw, Spring term, 1917. Action by W. T. Smith and others, trading as the Camden Furniture Company, against the Southern Railway Company. Judgment in magistrate’s Court for plaintiff, and defendant appealed to the Circuit Court, where the appeal was docketed, and after three years was struck off, with leave to restore, and defendant moved to restore the case to the calendar.

<p>Estoppel—Estoppel in Pais—Assurance to Contractor.—If the manufacturer of roofing assured a contractor that rafters in a new building were sufficient to carry the load of the roofing, doing so to get the contract to supply roofing, in the owner’s action against it on its guaranty of its roofing, it cannot be heard to say that the rafters were not sufficient.</p>

Before Memminger, J., Barnwell, Fall term, 1916. Action by Drayton Walker against Malinda Henderson and others, for partition of land of an estate. Judgment for defendant, and plaintiff appeals. Messrs. Bates & Simms cite: 82 S. C. 264.

Before Gary, J., Barnwell, Spring term, 1917. Suit by the Heyward Williams Company against P. J. Zeigler and another. Plaintiff based its action on three notes, the principal sums amounting in the aggregate to $2,856 and 90-100. The defendants denied owing plaintiff anything, and set up a counterclaim for $10,000. At the close of the plaintiff’s case, defendants moved for the direction of a verdict in their favor, which motion was refused.

Before DeVore, J., Lee, Spring term, 1916. Action by G. W. Mosely and others against Martha C.. Smith and another. Decree for plaintiffs and defendant, Smith, appeals. J. W. Davis testified: That he had been a member of the Spring Hill Lodge ever since 1877; that the lodge was moved from the old locality near Mr. Smith’s store semewhere about 1906. “Q. Did the Masons build that new hall ? A. They did.

<p>1. Guardian and Ward—Action on Bond—Parties.—Under Code Civ. Proc. 1912, sec. 162, providing that a trustee of an express trust may sue without joining with him the person for whose benefit the action is prosecuted, a Judge of Probate may sue on a guardian’s bond without joining the wards as parties.</p> <p>2. Guardian and Ward—Interest on Fund.—A guardian is liable for interest on money received before the end of the calendar year, where he converts the money, or interest is earned from others during such time.</p> <p>3. Guardian and Ward — Action on Bond — Commissions.—Where guardian has been discharged, and is sued on his bond by the Judge of Probate, he cannot deduct commissions from a judgment in favor of the Judges, under Civ. Code 1912, sec. 3653, allowing commissions for money paid away in credits, debits, legacies, or otherwise during the course and continuance of their managements.</p> <p>4. Guardian and Ward—Disbursement op Funds—Liability.—Where an executor is appointed guardian of children, and takes over insurance money, the money of the wards must be held separate from deceased’s estate, and if any of it is applied on debts of the estate the guardian and his bondsmen are liable.</p> <p>5. Homestead—Waiver—Directions by Will.—Direction by testator that his debts be first paid-is not a waiver of homestead rights, but mortgages must be paid.</p> <p>6. Executors and Administrators—Homestead—Power op Executor to Waive or Preserve.—An executor can neither preserve nor impair homestead rights.</p> <p>7. Guardian and Ward ■— Homestead Rights op Ward ■— Duty op Guardian.—A guardian who is also executor of an estate must reserve his ward’s homestead right in personalty, and cannot apply it on debts of the estate.</p> <p>8. Guardian and Ward—Disbursing Ward’s Money—Authority.—A guardian of infants cannot purchase the interest of the widow in the homestead for the wards.</p> <p>9. Subrogation — Guardian and Ward. — Where guardian purchases property for his wards without authority, the transaction must be treated as his own, but he will be subrogated to the rights of the wards.</p> <p>10. Guardian and Ward—Liability op Surety.—Except in flagrant cases, a surety for a guardian is liable for money received and misappropriated before the execution of the bond.</p> <p>11. Guardian and Ward—Sureties—Liabilities as Between Sureties.-— Where a Probate Judge requires a guardian to furnish additional sureties for the purpose of adding to the security, but not to affect the existing sureties, the first sureties are primarily liable for misappropriations prior to the signing of the new sureties, but all are ultimately liable.</p>

Before Prince, J., Richland, Fall term, 1917. Suit to foreclose a mortgage by Elizabeth C. Kr'entzlin against Clarendon W. Barron, Sarah Boylston and others. From decree confirming in part the master’s report, but sustaining exceptions to so much as held that defendant, Boylston was entitled to two mortgages claimed by him, etc., defendants. Sarah Boylston and others, appeal.

Before PeuriFoy, J., Laurens, Spring term, 1918. Statement: This was an action on a contract to furnish electric power, alleged to have been made in 1908 between plaintiff and the city council of Laurens. The defendants denied the right of plaintiffs to recover and set up sundry counterclaims. The plaintiff obtained a verdict for the sum of $3,143.58, and from judgment thereon defendants appeal.

Before Gary, J., Sumter, Fall term, 1917. Harvey Anderson was convicted of larceny and housebreaking in the nighttime, and from sentence appeals. cites: As to a scintilla of evidence: 78 S. C. 556; 83 S. C. 24. As to Judge expressing his opinion in the presence of the jury in refusing motion for nezv trial: 80 S. C. 383; 81 S. C. 379; 90 S. C. 221. As to Court's duty to direct verdict: 12 Cyc., 594, sec. b; 115 Ala. 14; 117 N. C. 695; 23 S. E. 98.

Before Memminger, J., Barnwell, Fall term, 1916. Action by the Lummus Cotton Gin Co. against T. S. Cave. Judgment for defendants, and plaintiff appeals. Messrs.

Before PeuriEoy, J., Cherokee, Fall term, 1917. Action by J. A. Ballentine against D. D. Covington. Judgment for plaintiff, and defendant appeals.

Before DeVorE, J., Richland, Spring term, 1917. Action by R. L- Shull .against W. C. Gladden, W.' M. Gladden, andj.-S. Shehan. ' From judgment for plaintiff, defendant, W. M. Gladden, appeals. Plaintiff alleged: That on the 25th day of.

Before Rice, J., Anderson, Summer term, 1917. Statement: In August, 1915, J. L. McGee, a member of the county board of commissioners for Anderson county, hired I. N. Holland to work a team of mules on the public roads of Anderson county. This Holland did and filed his claim .in his own name with the county board of commisisoners and was paid by them accordingly. One night about 10 o’clock one of the mules killed itself by breaking its neck.

Before Shipp, J., Fairfield, Spring term, 1917. Action by J. C. Stouffer against E. E. Roberts, Agent, and others. Judgment for defendants, and plaintiff appeals. cites: An administrator cannot contract a debt to bind the estate of his intestate: 2 Tr. Con. Rep. 677; 2 Nott & McCord 328; 2 Bail. 317; 3 McCord 486.

Before Memminger, J., Charleston, December 4, 1917. Action by Eliza A. Williams against C. Deas Gadsden. From judgment for plaintiff, defendant appeals. Defendant’s exceptions are as follows : (1) That his Honor erred in construing the will of Paul C. Grimball to the effect that the plaintiff, Eliza A. Williams, took title in fee to his “Waterloo Plantation,” upon the death of her father, Robert C. McEaddin, the survivor of the life tenants.

Before Rice, J., Anderson, Spring term, 1917. Action by Rose Williams against the Working Benevolent State Grand Lodge of South Carolina. From an order of nonsuit, plaintiff appeals. The five exceptions directed to be reported were as follows : (1) Because it was error for the Court to grant a non-suit on the ground of defect of parties when the question had not been raised by demurrer or answer.

Before DeVore, J., Richland, Summer term, 1917. Action by H. C. McLendon, as administrator of the estate of Victor McLendon, deceased, against the Hampton Cotton Mills Company. Judgment for plaintiff, and defendant appeals. cite: As to error in not directing nonsuit on the ground that there ivas no evidence of negligence on the part of defendant: 6 Am. Negligence Rep., p. 74; 25 S. C. 29; 78 S. C. 10; 56 Am.

Before Memminger, J., Barnwell, Fall term, 1916. Action by the Collins-Plass Thayer Company against John H. Hewlett. Judgment for plaintiff, and defendant appeals. The charge referred to in the opinion was as follows: Mr. Foreman and Gentlemen of the Jury: This controversy is before you for determination. You will have in the jury room what is known as the complaint, which sets out the claims of the plaintiff. You will have also the answer.

Before Memminger, J., Barnwell, Fall term, 1917. Action for specific performance, upon an alleged oral contract for the sale of real estate. From a decree in favor of plaintiff, defendant appeals.

Before Gary, J., Barnwell, Spring term, 1917. Action by. Simeon Danielson against Medico C. Mixson and Eldred C. Hay. From a judgment for defendants, plaintiff appeals. The decree of the Circuit Court, directed to be reported, was as follows: This case comes before me upon exceptions to the report of the master, which exceptions may be found in the record. The action is for the foreclosure of a mortgage of real estate.

Before Bowman, J., Calhoun, Spring term, 1917. Statement: The appellant with another were put on trial under an indictment charging them with murder. The issues were much simplified by the Solicitor requesting only a verdict of manslaughter. The case was tried before Judge Bowman, with a jury, at St. Matthews, Calhoun county, South Carolina, at the May, 1918, term of the General Sessions.

<p>Before Memminger, J., Williamsburg, Spring term, 1917.</p> <p>Robert Nelson, alias John Nelson, was convicted of larceny of live stock, and from sentence, he appeals.</p> <p>The only exception complains of error in the charge of the presiding Judge, in that it prejudiced the minds of the jury against defendant and coerced them into finding a verdict against defendant.</p> <p>cite: 89 S. C. 232.</p> <p>(Oral argument.)</p>

<p>Before Shipp, J., Sumter,--term, -.</p> <p>Action by W. A. Mills against the Sumter Lumber Company and others. From a decree of the Circuit Court, affirming, pro forma, a decree of the master, plaintiff appeals.</p> <p>The writing involved is as follows:</p> <p>This deed made the 6th day of March, 1912, between Sumter Lumber Company, a corporation chartered and doing business under the laws of the State of South Carolina, party of the first part, Fred. Harper and Leon Goodman, Trustees, parties of the second part, and American National Bank of Lynchburg, Va., party of the third part:</p> <p>Whereas, At a meeting of the stockholders of the said Sumter Lumber Company held at Sumter, S. C., on the 4th day of March, 1912, at which meeting duly called there was present a majority of the stockholders of said company, a resolution was unanimously adopted authorizing and directing the president and secretary of said Sumter Lumber Company to convey -by a good and sufficient deed, for certain considerations set out in said resolution, hereinafter described property to the said parties of the second part: Now, this deed witnessed that, for and in consideration of the sum of five dollars in hand paid the said party of the first part by the said parties of the second part, the receipt whereof is hereby acknowledged, the said party of the first part doth hereby grant, bargain, sell, and convey, with general warranty of title unto the said parties of the second part, the following described real estate: A lot of land in the city and county of Sumter; also' a considerable amount of sawmill machinery, fixtures, office supplies, etc.—but upon this trust to secure the payment of the sum of thirty-five thousand dollars to the said party of the third part, with interest thereon at 6 per cent, per annum, evidenced by the negotiable note of the said party of the first part dated November 3, 1911, for thirty-five thousand dollars, and payable to the said party of the third part four months after date, and to secure all renewals and extensions of said note, either in whole or in part.</p> <p>The said party of the first part covenants that it will pay all taxes and assessments on said property, that it will keep the buildings thereon and personal property above described insured in some solvent company in at least the sum of twenty-five thousand dollars for the benefit of this trust, and! should it fail to pay said taxes, or take out said insurance, the same may be done by the party of the third part, and any sums so paid by the party of the third part, and any sums so paid with interest, shall become a part of the debt hereby secured.</p> <p>.If default be made in the payment of said note, or any renewal or extension of the same, as the same becomes due, then the said trustees, or either of them, upon being requested so to do, by the said party of the third part, and after duly advertising the time and place of sale in such manner as they, may deem best, shall proceed to sell the property hereby conveyed by public auction on the premises for cash as to> enough to defray the cost of executing this trust, the whole of the debt herein secured, and any sum paid for taxes, assessments, or insurance, and as to the residue upon such terms as the said party of the first part shall direct.</p> <p>In case of a sale under this deed, dhe parties of the second part shall be entitled to a commission of 5 per cent, upon the gross amount of such sale, and should the debt herein secured and the obligations herein assumed be fully paid after a discharge, then this deed shall be released at the proper cost of the grantor.</p> <p>The said party of the first part covenants that it has the right to convey said property, that it has done no act to incumber the same, that in case of sale-under this deed, the purchaser from said trustees shall have quiet and peaceable possession of said property, free from all incumbrances, and that until executed such other and further assurances of title as may be requisite.</p> <p>submit: The trust deed is void under sections ?455, 87?2 and of the Civil Code of 1012: 87 S. C. 495; Cheves Eq. 71; 3 S. C. 266; 23 S. C. 416.</p> <p>submit: The instrument in question is a deed of trust in the nature of a mortgage: 27 Cyc. 966; 3 S. C. 266. The instrument is not void under the Statute of Elisabeth: 38 S. C. 437; 28 S. C. 444; 64 S. C. 355; 44 S. C. 183 (pp. 191-192); 27 S. C. 386; 56 S. C. 154; 4 Cyc. 280; folio (11); 27 S. C: 285; 12 S. C. 154 (p. 167) ; Rice Eq. 300; Rice Eq. 73; 26 S. C. 449; 64 S. C. 354; 87 S. C. 495; 105 S. C. 60; 91 S. C. 437; 74 S. E. 1072.</p> <p>submit: The trust deed is not void as violative of the Statute of Elisabeth, or sec. 3455 of the Civil Code of 1912: 56 S. C. 154, 34 S. E. 86; 64 S. C. 354, 42 S. E. 172; 17 S. E. 255; 17 S. E. 698; 3 S. E. 340; 19 S. E. 1002; 89 S. E. 467; 2 S. E. 113; 136 U. S. 223; 24 Atl. 403; 38 S. E. 563, 573; 49 W. Va. 150; 17 S. E. 696, Words & Phrases, vol. I, 572-3-4; Words & Phrases, vol. I (second series), 313-4; 2 S. E. 113; 3 S. E. 322; 3 S. E. 340; 7 S. E. 823; 17 S. E. 253, 696; 19 S. E. 1002; 21 S. E. 635; 42 S. E. 165; 21 S. E. 640; 23 S. C. 406; 2 S. E. 325; 11 S. E. 337; 7 S. E. 838; 85 S. E. 595; 3 S. E. 342.</p>

Before PeuriEoy, J., Richland, Fall term, 1917. This was an action by the plaintiffs, stockholders of the defendant corporation, for an accounting and the appointment of a receiver. A temporary restraining order was granted by Judge M. T. Smith at the time of the service of the summons and ■complaint. . Subsequently plaintiffs gave notice of a motion for the appointment of a receiver and a continuance of the restraining order.

Before Spain, J., Florence, Spring term, 1917. Action by the Sauls-Baker Company against the Atlantic Coast Line R. R. Co. From the judgment, plaintiff appeals. cites: As to error of presiding Judge in not disregarding defendant’s plea of the statute of limitations: 92 S. C. 33; Code of Procedure, sections 138, 142; 72 S. C. 362; Civil Code, 1912, sections 2519 and 2573; 70 S. C. 409; 71 S. C. 208.

Before Smith, J., Greenville, Spring term, 1917. Actions by C. H. Clyde against Southern Public Utilities Company and others, and by Rosamond Keelons Powell against Southern Public Utilities Company and C. M. Childress. From • judgment for plaintiffs, defendant appeals. As to refusal of motion for a directed verdict: Rule 20, Traffic Ordinance of the city of Greenville; 91 S. C. 523; 90 S. C. 281; 100 S. C. 113; Crim. Code 1912, sec. 602.

Before Smith, J., Richland, Summer term, 1917. Action by Theodore O. Loveland and others doing business as Brenard Manufacturing Company against N. H. Collins. Judgment for defendant, and plaintiffs appeal. Affirmed on entry of remittitur; otherwise reversed. submits: The negotiable law is inapplicable: LXXVIII Stats. 668-696.' As to charge on facts: State Constitution, art. V, sec. 26; 81 S. C. 546, 552; 91 S. C. 202; 105 S. C. 55.

Before Smiti-i, J., Richland, Summer term, 1917. Action by John M. Graham against the State of South Carolina. From an order overruling demurrer to the complaint, the State appeals. submit: The act permitting suit (2/ Stats., upó) creates no cause of action—■ imposes no liability as against the State, where none existed independently of it.

Before Gary, J., Orangeburg, October, 1916. Action by P. Webb Bull against Anna B. Fallaw and others. Judgment for surplus proceedings of judicial sale, and defendants appeal.

Before Smith, J., Richland, Summer term, 1917. Action by W: H. Ruff, Jr., against the Columbia Railway, Gas and Electric Company. Judgment for plaintiff, and defendant appeals. The charge of the Court below is as follows: The Court: Mr. Foreman and Gentlemen of the Jury: This action is brought by the plaintiff to recover actual and punitive damages of the defendant for certain acts of wrong which are alleged therein.

Before DeVorE, J., Richland, April 7, 1917. Action by George McNeill and others, copartners, trading under the name of the Capital City Garage, against the Electric Storage Battery Co. and others. From an order refuusing to set aside the service of the summons and complaint upon the Electric Storage Battery Co., said defendant appeals.

Before Shipp, J., Richland, Fall term, 1916. Action by the Kirkland Distributing Company against the Seaboard Air Line Railway. Judgment on directed verdict for defendant, and plaintiff appeals cite: As to negligence of defendant in failing io provide drainage to carry off water on a track, which it had built for its own purposes: 87 S. C. 424; 54 S. C. 242; 62 S. C. 22; 62 S. C. 25.

Before DeVore, J., Marlboro, Fall term, 1918. Action by the Bank of Pageland against J. E. Willis. Judgment for plaintiff, and defendant appeals. The following is the decree of the Circuit Court: This was an action brought by the Bank of Pageland as an assignee of D. IT. McGregor & Company for an accounting for half of a crop belonging to W. E. Pate, who was a share cropper under the laws of North Carolina in making a crop in Anson county, North Carolina.

<p>1. Appeal and Error—Law op the Case—Question por Jury.—Where on appeal it was held that there was a question for a jury, such decision became the law of the case on a second trial, where plaintiff’s evidence was the same.</p> <p>2. Master and Servant—Assumption op Risk.—On the question of assumption of risk, it was for the jury to determine whether the servant acted as one of ordinary prudence should act under similar circumstances, and it was not necessary that he should have “full knowledge” of the danger.</p> <p>3. Trial—Instructions Construed as a Whole.—Although the Court erred in an instruction, it was not reversible error, where he corrected the mistake in further instructions, and the jury could not have been misled by the charge as a whole.</p> <p>4. Appeal and Error—Motion por Nonsuit or Directed Verdict— Necessity.—Where a defendant'’made neither a motion for nonsuit nor for a directed verdict, he is precluded from any relief on appeal on questions of fact.</p> <p>5. Courts—Rules,—The Supreme Court has a right, in the orderly conduct of business, to frame rules as to how the question of raising points shall be made and the manner in which they are to be first made, and in so doing it is not a denial, of right, but simply a question of practice, and inherently in the power of the Court to adopt.</p>

Before Efird, special Judge, York, Fall term, 1914. Action by C. H. Sandifer. and others against the Southern Railway Company. Judgment for defendant, and plaintiffs appeal. submits : Where a railroad is laid out across a highway or other way,it shall be constructed so as not to obstruct the same: Civil Code of 1912, sec. 3285.

<p>1. Appeal and Error—Allowance op Amendments—Discretion of Court.—The matter of the allowance of amendments is in the discretion of the trial Court, and exceptions to his action cannot be sustained in the absence of showing of erroneous exercise of such discretion.</p> <p>2. Tender—Refusal—Effect.—Where a railroad paid its injured servant $275 for a release, and the servant claimed fraud, and his attorney oSered to return the money, with interest from date of payment, asking whether the railroad would accept a certified check or the money, and the claim agent of the railroad stated that the matter had been disposed of, and there was nothing further that he could do, plaintiff was relieved from the duty to make actual tender.</p> <p>3. Commerce — “Interstate Commerce” — Switching Car.—Where a railroad’s conductor, when injured, was engaged in switching a car bound out of the State of Virginia to its home road to the siding to be sent to such home road, he and the railroad were engaged in interstate commerce and the Federal Safety Appliance Act (U? S. Comp. St. 1916, sec. 8605, et seq.) was applicable.</p> <p>4. Release—Taking as Admission of Liability—Question for Jury.— In a railroad servant’s action for injury, whether, by taking a release, the railroad did or did not admit liability, was a question for the jury on proper consideration of the entire evidence in the case, for the taking of a release does not in and of itself necessarily amount in law to an acknowledgment or denial of liability.</p> <p>5. Appeal and Error—Record—Grounds of Motion for New Trial.— Where the grounds of the motion for new trial are not set out in the record, exceptions assigning error in refusal of the motion cannot be considered.</p>

Before PeuriEoy, J., Union, Fall term, 1916. Action by Mrs. N. C. Oliver and others against C. M. McWhirter and others. From a judgment for defendants, plaintiffs appeal. cite: As to validity of a deed of conveyance of real estate having but one vuitness: 87 S, C. 388; 9 S. C. 269; 24 S. C. 595; 27 S. C. 201; 34 S. C. 401; 54 S. C. 394; 69 S. C. 78; 5 Rich. 545; 95 S. C. 479; 102 S. C. 395; 91 S. C. 185; 98 S- C. 260; 27 S. C. 205.

Before Spain, J., Greenville, Kali term, 1917. Action by H. O. Bray against Kress & Mays. Judgment for plaintiff, and defendant appeals. cite: As to error in admitting in evidence copy of telegram: Note 44 K. R. A. 438; 18 U. C. O. B. 60; 82 S. C. 249; 44 R. R. A. 438; 78 Pac. 579; note 8 Am. Cas. 270; 31 Minn. 481; 18 N. W. 291. As to motion for non-suit: Enc. of Law, vol. XIV, p. 762; 50 S. C. 507. As to charge to jury: 17 S. C. 480; 15 S. C. 296; 3 S. C. 253; Thomp. Charg.

Before Smitx-i, J., Summer term, 1917. Action by Mary A. Parnell and husband against the Saxe-Gotha Mills. From an order overruling demurrer to complaint, defendant appeals. Messrs. Elliott and Bowles cite: As to zvhether or not damages for personal injuries are recoverable on account of the breach of a covenant on the part of a landlord to repair: 32 S. C. 590; 8 Ind. App. 615; 52 Am.

Before Bowman, J., Richland, Fall term, 1915. Action by Albert M. Boozer against M. A. Evans. Judgment on verdict for plaintiff, and defendant appeals. New trial ordered. cite: As to error in Judge’s charge: 93 S. C. 569; 86 S. C. 358. As to refusal of trial Judge to allow jury to bring in special verdict: 88 S. C. 193; 90 S. C. 197; Code of Procedure, sec. 321; 104 S. C. 83. As to the restraining order: Code of Procedure, sec. 274; 89 S. C. 189; 80 S. C. 51.

Before Smith, J., Richland, Summer term, 1917. Action by May Cook, administratrix of J. Walter Cook, against the Southern Railway Company. From an order directing removal of the cause to the Federal Court, plaintiff appeals. The following is the complaint: Plaintiff above named, complaining of the above named defendant, alleges: (1) That the plaintiff is the duly appointed administratrix of the estate of J. Walter Cook, deceased.

Before Whaley, County Judge, Richland, October term, 1917. Action by John Glasgow against the Pacific Mills. Judgment for plaintiff, and defendant appeals. submit: The asking of questions calling for incompetent and irrelevant testimony, even though’ not answered, is prejudicial and calls for the setting aside of the verdict: 92 S. C. 262; 172 N. Y. 507; 65 N. E, .494.

Before Bowman, J., Charleston, Spring term, 1917. Action by E. P. Grice and Arthur R. Young, as receivers of the Security Real Estate & Investment Company, against S. Pickens Anderson, as administrator of the estate of R. M. Anderson, deceased, and others. From the judgment rendered, plaintiffs appeal. Code Civ.

Before Memminger, J., Sumter, Spring term, 1917. Action by W. A. Bowman against H. J. Harby. From an order granting plaintiff new trial after verdict for him, and from order settling the case for appeal, defendant appeals, and plaintiff moves to dismiss the appeal from order granting him new trial.

<p>Before SeasE, J., Orangeburg, Spring term, 1917.</p> <p>Action by Ellen Squire, as administratrix of the estate of William Squire, deceased, against the Southern Railway Company. From judgment for plaintiff, defendant appeals.</p> <p>cite: As to error in permitting plaintiff to amend her complaint at the trial: 80 S. C. 217; Code of Procedure, sec. 194; 50 S. C. 398; 27 S. E. 873; 64 S. C. 491; 42 S. E. 427; 70 S. C. 270; 49 S. E. 863; 75 S. C. 350; 74 S. C. 236, 244; 54 S. E. 375. As to refusal of Judge to direct a verdict for defendant: 90 S. C. 40; 66 S. C. 256; 57 S. C. 433; 179 U. S. 663 ; 158 Pac. 977; 233 Fed. 31; 158 Pac. 977. The action should have been brought and tried under the Federal Employers’ Liability Act: 37 Sup. Ct. R. 4; 233 U. S. 473; 34 S. Ct. R. 646; 238 U. S. 473; 34 S. Ct. R. 646; 238 U. S. 260, 263; 35 Sup. Ct. R. 780; 241 U. S. 177; 36 S. Ct. 517; 146 Pac. 1097; 64 Oregon 597; 131 Pac. 507; 129 Pac. 151; 46 L. R. A. (N. S.) 1121; 203 Fed. 956; 37 S. Ct. 4; 37 Supt. Ct. 246; 100 S. C. 294; 37 S.‘ Ct. R. 356-7; 37 S. C-t. 703; 37 S. Ct. 170; 233 Fed. 137; 233 U. S. 405; 102 S. C. 281. The jury should have been allowed to pass upon the nature of the employment, in which deceased was engaged: 157 Ky. 453; 163 S. W. 461; 148 S. W. 145; 159 Ky. 237; 167 S. W. 128; 146 Ky. 240; 160 S. W. 945; 159 Ky. 718; 169 S. W. 471; 164 S. W. 857; 206 Red. 868; 91 Atl. 650 (Conn. 1914).</p> <p>cite: As to allozvance of amendment to complaint: 241 U. S. 477; 36 Sup. Ct. Rep. 517; 101 S. C. 105; 226 U. S. 570; 86 S. C. 98. As to prima facie evidence of negligence: 101 S. C. 83; 61 S. C. 488; 72 S. C. 411; 75 S. C. 305. As to knowledge by employee of the unsafe condition of any machinery, ways or appliances: 66 S. C. 317; 101 S. C. 84. As to this case coming within the State law and not under the Federal Employers’ Liability Act: 36 Sup. Ct. Rep. 517; 37 Sup. Ct.' Rep. 515; Advance Sheets, Sup. Ct, July 1st, 1917, 515; 37 Sup. Ct. Rep. 116; Advance Sheets, Sup. Ct. Rep., February 1, 1917, 118; 101 S. C. 108. As to the charge of the trial Judge that “The facts show that this is a case under the State statute, known as Lord Campbell’s Act:” 100 S. C. 297; 37 Sup. Rep. 117.</p>

<p>Before Bowman, J., Charleston, Spring term, 1917;.</p> <p>Statement:</p> <p>Carl Dannhauer, having pleaded guilty to indictment charging unlawful storing of alcoholic liquor, and having received sentence of which six months was suspended on condition, was required to show cause why suspended sentence should not become effective. From order that suspended sentence become effective, he appeals. Appeal dismissed, and order staying execution of sentence revoked.</p> <p>cites: As to the constitutionality of the Court of General Sessions for Charleston county: Cooley on Constitutional Limitations (4th Ed.), pp. 194-198-199; Constitution of South Carolina (1895), art. VI, sec. 2; Cooley on Constitutional Limitations (4th Ed.), pp. 227, 220; Constitution of South Carolina (1895), art. V, sec. 13. As to an order making the terms of a suspended sentence operative not being appealable: 87 S. C. 466, 473; 1 Strob. 347; 32 S. C. 14; 61 S. C. 22; 58 S. C. 564.</p>

Before Rice, J., Aiken, Summer term, 1917. Josephine Bradley was convicted of violating the act to regulate shipment of intoxicating liquors into the State, and she appeals. cites: As to unconstitutionality of the act of 1915; regulating the shipment of spirituous, vinous, fermented or malt liquors or beverages into this State: Art. VIII, sec. 11 of the Constitution of. South Carolina, 1895, and art. Ill, section 17 of same instrument.

<p>1. Wills—Construction—Deed—Incorporated in Will.—Under a wiE giving to testator’s son. one share of the estate, including land advanced to him, and instructing that the deed to such land be delivered upon testator’s death, the estate devised is determinable by the limitation in the deed, and not solely by the words of the will.</p> <p>2. Wills—Construction—'Incorporation of Deed—Codicil—Repu!blication.-—A codicil held to be such a republication of a will as made the reference therein to a deed apply to a new deed to the same land made after the will, but before the codicil.</p> <p>3. Wells—Construction—Fee Conditional—“Children”—'‘‘Heirs op His Body.”—Although the words “child” and “children” may be construed “heir of his body” and “heirs of his body” when necessary to give effect to testator’s manifest intention to create a fee conditional, such may not be done where it defeats his clearly expressed intention to convey a life estate with remainder to children, if any, otherwise to revert to his estate.</p> <p>4. Wills—Construction—Devise op Remainder—Implication.—Where, by the granting clause of a deed incorporated into a will, testator’s son is given a life estate only, coupled with a provision if he di|ed childless the land should revert, and no provision is made of the remainder, if he should die with a child, the child cannot take as a purchaser by implication.</p> <p>5. Wills — Construction'—Devise — Line Estate. — A will giving an express life estate to a son, coupled with the condition that if he die without a child the land should revert, negatives the intention to enlarge the life estate, so that the son and his children could take in indefinite succession.</p> <p>6. Wills—Construction—Estates.—Where an estate is once given by words of clear and ascertained legal significance, it will neither be enlarged or cut down by superadded words in the same or subsequent clauses of the will, unless they raise an irresistible inference that such was testator’s intention.</p> <p>7. Wills—Construction—Line Estate—Mortgage.—Where a son took only a life estate under a will, with remainder undevised, except upon a condition which did not happen, the reversion was intestate property, and descended to testator’s heirs at his death under the statute of distribution.</p> <p>8. Wills—Assignment of Interest in Estate.—An assignment by a deviseee of her right, title, and interest in lands of the estate of her deceased father, held insufficient to convey legal title, since it was not witnessed or under seal as required by law.</p>

Before Wieson, J., Oconee, Spring term, 1917. Action by Mrs. W. C. Ivester against W. W. Fowler and others to recover possession of land.

Before Rice, J., Bamberg, Summer term, 1916. Action by the J. Van Bindley Nursery Co. against the Southern Railway Company. From judgment of the Circuit Court, reversing judgment of the magistrate’s Court, it appeals. submit: The bringing of the suit within the four months is a substantial compliance with the terms of the bill of lading: 36 Sup. Ct. Rep. 541; 5 Ala. A 644; 59 Sou. 538; 76 S. C. 253; 77 S. C. 380; 4 R. C. R, sec. 254; 84 S. C. 252; 91 S. C. 506.

Before Smith, J., Richland, Summer term, 1917. Action by J. R. Binder against the Seaboard Air Rine Railway. Judgment for defendant, and plaintiff appeals. The portion of the complaint referred to in the opinion is as follows: Second. That on or about August 4, 1913, this plaintiff was in the employment of this defendant, working upon its roadbed between Blaney and Jacob’s, two stations along defendant’s line of railway, between Columbia and Camden.

Before PeuriToy, J., Cherokee, Fall term, 1911. Suit by the Atlanta & Charlotte Air Line Railway Company against the Limestone Globe Land Company et al. Judgment for plaintiff, and defendant appeals. . submit: Respondent must rely on a written contract with the owner of the land, over which it claims a right, and can invoke no presumption arising out of the act of incorporation to establish a right of way over any land not occupied by it, but which is in the actual occupancy…

Before R. C. Watts, Associate Justice, and Memminger and Spain, JJ., Darlington, —, 1917. Motion to vacate orders of supersedas refused. Motion to dismiss appeals from orders of Memminger and Spain granted. Action by R. Furman Tedder and others against Wm. Tedder and others. ■ From orders of the Circuit Court, defendants appeal; orders of supersedeas being made by Mr. Associate Justice Watts.

Before PkuriPoy, J., Abbeville, Spring term, 1917. Action by J. M. Kyker against Enoch Smith. From judgment for plaintiff, defendant appeals. submit: It was error in the Court to refuse to direct a verdict in favor of defendant, when it appeared from plaintiff’s testimony that the account sued on was the joint property of one Ferguson, and plaintiff: Code of Procedure, sec. 160; 78 S. C. 302; 106 S. C. 495.

Before MoorE, J., York, Summer term, 1917. Action by Kenan, McKay and Spier against Yorkville Cotton Oil Company. From judgment for defendant, plaintiffs appeal. The following is the contract: Atlanta, Ga., 7-19-1915. Sold to Messrs. Kenan, McKay & Spire, Atlanta, Ga.

<p>1. Master and Servant—-Injuries to Servant—Negligence—“Snapshot”—“Undesired Emergency.”—Question for Jury.-—In action against railroad for injuries to conductor of train, when thrown from top of car by a “snapshot,” or an “undesired emergency” in air brakes, being a condition of such brakes which causes them to go into emergency when used for an ordinary stop, whether defect could develop between two stations 'held for jury.</p> <p>2. Master and Servant—Injuries to Servant—Negligence—Question por Jury.—In action against railroad for injuries to conductor of train, when thrown from top of car by “undesired emergency” in air brake, whether train was sufficiently inspected at its starting point to discover any defects held for jury.</p> <p>3. Master and Servant—-Injuries to Servant—Duty op Inspection.— Where railroad’s engineer was in charge of engine and tender of train (conductor having charge only of rest of train), railroad was liable for injuries to conductor through “undesired emergency” in air brake of tender, though conductor undertook to inspect to discover “undesired emergency,” but failed to- do so, because his inspection went only from tender back.</p> <p>4. Master and Servant—Injuries to Servant—Defect in Apparatus— “Terminal.”—If there was defect in railroad locomotive’s tender, and it required mechanical department to fix it, defect should have been eliminated when train reached place where the work could have been done, though such place was not a “terminal;” the rule requiring the engineer to report defects in his engine to the mechanical department at “terminals.”</p> <p>5. Master and Servant—Safe Instrumentalities—Delegation of Duty.—A railroad’s duty to provide reasonably safe instrumentalities for its conductor was unassignable, so that it made no legal difference whether failure to inspect a train to discover an “undesired emergency” in the air brake was the error of the master mechanic or of the engineer.</p> <p>6. Appeal and Error — Harmless Error — Presumption — Actual Knowledge.—An error as to presumption is harmless when appellant proves it had actual knowledge, or knew such facts as would lead to actual knowledge.</p> <p>7. Evidence—Parol Evidence Affecting Writing—Rule of Employer. —In a conductor’s action for injuries against his railroad, the case not showing to whom a rule of the railroad applied, parol evidence, necessary for the purpose, was properly admitted to show to whom the rule did apply.</p> <p>8. Appeal and Error—Review—Amount of Verdict.'—The amount of the verdict in an action for personal injuries is a question for the trial Court.</p> <p>9. Negligence—Comparative Negligence — Injuries to Servant — Instruction.—In conductor’s action against his railroad for injuries, instruction that, if jury found plaintiff guilty of contributory negligence, they should diminish damages to extent negligence was attributable to him, adequately covered rule that under Federal statute negligent employee cannot recover full damages.</p> <p>10.Master and Servant—Federal Employers’ Liability Act.—Under the Federal Employers’ Liability Act (U. S. Comp. St. 1916, secs. 8657-8665), a railroad was liable for injuries to its conductor caused by an “undesired emergency” in an air brake, if the brake was defective or the engineer’s act was wilful.</p>

Before Wirson, J., Edgefield, Spring term, 1917. Suit by lone T. Kirkland and others against John S. Moseley, as executor of Angelina Bacon, deceased, and others. Decree dismissing the complaint, and plaintiffs appeal.