Volume 110 — South Carolina Reports

Before Spain, J., Darlington, at chambers, February 23, 1917. Held: in conformity with the facts as established in this case, that the contract upon which the lien claimants herein base their claims were divisible contracts, especially the contracts of the Perkins Manufacturing Company, in that it appears that separate invoices were delivered to the Hotel Melrose for each and every shipment made, and…

Before Smith, J., Greenville, Summer term, 1917. Action by the Paris Mountain Water Company against the City of Greenville and others. Prom the sustaining of defendant’s demurrer and dismissal of the complaint, plaintiff appeals. The amended complaint herein is as follows: The plaintiff, by its amended complaint, respectfully shows to the Court: 1.

Before Spain, J., Florence, Spring term, 1916. Suit by C. M. Matthews and others against Z. C. Lynch and others, as trustees of School District No. 39. From decree dismissing complaint, plaintiffs appeal. The decree referred to in the opinion is as follows: The above case came before me for trial on the equity side of the Court without a jury.

<p>Before Moore, J., York, Summer term, 1917.</p> <p>Action by Bernice L. Powell against the Southern Railway Company, and the Virginia Bridge & Iron Company. From an order denying its petition for removal to a Federal Court, the Virginia Bridge and Iron Company appeals.</p> <p>cite: As to the right of the Virginia Bridge and Iron Company to remove its cause to the Federal Court for the District of Virginia: 241 Federal 696; Judicial Code, 1911, sec. 28; Hopkins Judicial Code, p. 65, sec. 65; act March 3, 1875c, 137; sec. 3, 18 Stat. at E. 470; act March 3, 1887c, sec. 1, 24 Stat. at E. 552; act August 13, 1888c, 866; sec. 1, 25 Stat. at L. 433; 1 Comp. Stat. 510; 4 Fed. Stat. Ann. 349; Pierce Code, sec. 7204; 168 Fed. Rep. 363, 366; 94 C. C. A. 609; 292 U. S. 318; 196 U. S. —; 236 U. S. —; 214 U. S. 249; 203 U. S. 449; 239 Fed. 305; 211 Fed. 505; 24 Fed. 343; 205 Fed. 821; 222 Fed. 979.</p> <p>cite the following additional authorities: 178 Fed. 432; 95 Fed. 368; 232 Fed. 636.</p> <p>cite: As to the jurisdiction of the State Court: Amended act, approved April 5, 1910, sec. 28, Judicial Code; U. S. Reports, 59 L. Ed. 599; U. S. Reports, 60 E. Ed. 402 ; 239 U. S. 496; 60 L. Ed. 402. As to defendants being joint tort feasors: 76 S. C. 4; 178 U. S. 245; 44 E. Ed. 1055; 175 U. S. 635. The Virginia Bridge and Iron Company invoked the aid of State Court: 117 U. S. 349; 99 U. S. 545; 100 U. S. 474; 79 S. C. 204. The State Court is at liberty to determine for itself whether, on the face of the record, a removal has been effected: 709 of the Revised Statutes; 77 S. C. 103; 117 U. S. 430; 122 U. S. 513; 131 U. S. 240; 138 U. S. 298; 42 L. Ed. 1113.</p>

Before Spain, J., Marlboro, Summer term, 1917. • Action by Rufus Dudley against the Atlantic Coast Line Railway Company. Judgment for defendant, and plaintiff appeals.

<p>Before AVieson, J., AVilliamsburg, at chambers, August 3, 1917.</p> <p>Proceedings for injunction by the Farmers and Merchants National Bank of Bake City, S. C., against the Curlee Clothing Company and others. From an order vacating an injunctional order, petitioner appeals.</p> <p>cites: As to sufficiency of service upon adverse party: 5 Rich. Eq. 5; 49 S. C. 328. As to the validity of the injunction: 69 S. C. 256.</p> <p>cite: As to service upon the adverse party: Sec. 273, Code of Procedure, 1912; 89 S. C. 189; 71 S. E. 817. As to invalidity of order of Injunction sought to be vacated: Code of Procedure, 1912, 442. As to power of Judge to vacate order made by another Judge: Code of Procedure, 1912, sec. 227.</p>

Before Sease, J., Aiken, Fall term, 1917. Action by C. H. O’Dell against Robert McElmurray and others, as trustees of the Downer Institute. Judgment for plaintiff, and defendants appeal. submit: An employee cannot recover for services actually rendered upon a quantum meruit where he without justification or excuse abandons the contract before the end of the term: 98 S. C. 25; 4th McCord 247; 80 S. C. 80; Wharton on Contracts, sec. 717; 30 Am. St. Rep. 55; 41 Am.

Before SeasE, J., Aiken, Ball term, 1917. Action by J. W. Williams against H. H. Howard, sheriff of Aiken county, and S. E. Holley. Judgment for defendants, and plaintiff appeals. cites: As to the search of a person’s premises without a search warrant and in the absence of the owner: S. C. Const. (1895), art. I, sec. 16; Am. & Eng. Encyc. of Eaw (2d Ed.), vol. XXV, pp. 144-145; Am. & Eng.

Before SeasE, J., Union. Action by Gordon Hill May against the Seaboard Air Line Railway Company. Erom an order of nonsuit, plaintiff appeals. submit: Infants are entitled to greater care as passengers than adults: 2 Hutchinson on Carriers (2 Ed.), sec.-995. Plaintiff was lawfully on train from which he was ejected: 2 Hutchinson on Carriers (3d Ed.), sec. 1062. The ejectment at Chester was illegal: 2 Hutchinson on Carrriers (3d Ed.), sec. 1090.

Before PeuriEoy, J., Anderson, Fall term, 1917. Action by H. Ludlow against War ley C. King and Ellison C. Asbell. From an order directing a vedict for plaintiff, defendants appeal. submit: It was error to permit the introduction in evidence of the judgment in the former case (King & Asbell v. Ludlow) : 77 S. C. 493; 215 U. S. 52; Code of Procedure, sec. 521.

Before Sitipp, J., Florence, Summer term, 1916. Action by J. M. Truluck and another against the Atlantic Coast Line Railroad Company. From verdict for plaintiff in the magistrate’s Court, defendant appealed to the Circuit Court, which reversed, and plaintiffs appeal. submits: Under the evidence, which was conflicting, the verdict of the jury was final, and should not have been disturbed on appeal: 106 S. C. 123; 106 S. C. 337.

<p>Before Mauldin, J., Charleston, Spring term, 1918.</p> <p>Action by Agnes Duncan and others against George D. Westerlund and others. Judgment for plaintiffs, and sundry defendants appeal.</p> <p>cite: As to the cause of action being barred by the statute of limitations: 209 111. 385; 70 N. E. 685; 119 111. 207; 9 N. E. 208; 111 Ga. 654; 57 E. R. A. 504; 9 S. E. 351; 30 S. C. 617; 11 Hill’s Eq. 90; 1 Hill 292; 39 Cyc., p. 464, sec. Ill; 118 U. S. 104.</p> <p>As to the bar of the statute of limitations: Civil Code of S. C. 1912, vol. II, sections 126, 148, 147, 157; 18 S. C. 280; 25 S. C. 234; 39 S. C. Daw 501; 18 S. C. 324; 20 S. C. 49; 25 S. C. 228; 25 S. C. 293; 156 N. C. 482; 72 S. E. 842; 185 Fa. St. 447; 40 A. 293.</p> <p>cite: As to the indebtedness from the estate of Archibald Duncan to the estate of John Duncan being a partnership indebtedness due from the estate of Archibald Duncan to Jno. Duncan, as surviving partner: 30 Cyc. 453; 29 Atl. (N. J.) 327; 5 Met. 585; 46 N. W. (South Dakota) 193; 108 Fed., p. 709. As to the plea of the bar of the statute of limitations: 52 S. C. 193; Code of Procedure; sections 136, 349 and 350; 118 U. S. 97; 117 U. S. 567; 30 Cyc., pp. 630-700; 6 N. W. (Mich.) 215; 73 Am. Dec. (Tenn.) 191; 68 Am. Dec. (Ind.) 604; 59 Am. Dec. (N. C.) 233; Story Partn., sec. 97; 56 N. W. (Ky.) 810; 9 Cal. 616; 87 111. 570; 36 Miss. 40; 9 Daly (N. Y.) 104; 6802 Federal Cases; 13 Ala. 752.</p>

Before PruriRoy, J., Laurens. Action by the Union National Bank against Kate E. Cook and others. Judgment for plaintiff, and defendants, J. C. Cox, and the Bank of Fountain Inn, appeal. Statement: The cause was referred to ■ Hon. F. P. McGowan, special referee, to take the testimony and report all issues. The special referee filed his report, and upon exceptions thereto, filed by the defendants, the cause was heard before his Honor, Judge J. E. Peurifoy.

Before Bowman, J., Raurens, Fall term, 1916. Action by John McMorris against the Charleston and Western Carolina Railway Company. Judgment for plaintiff, and defendant appeals. cite: As to the question of probable■ cause: 92 S. E. 335; Southerland on Damages, vol. IV, sec. 1239. As to the question of malice: 2 Hill 499; 5 S. C. 476; 72 S. C. 429 ; 92 S. C. 335; 18 R. C. D. 32; 16 S. C. 401.

<p>Before Bowman, J., Anderson, Fall term, 1917.</p> <p>Action by Elma Clayton against the Southern Railway Company. Judgment for plaintiff, and defendant appeals.</p> <p>The following are the exceptions to be reported:</p> <p>1. It was error to permit the plaintiff to say, over the objection of defendant’s attorney, “I would have fallen if I hadn’t had on any shoes, I suppose.” This was wholly a matter of conjecture, and not a case where the witness could give an opinion after stating the facts.</p> <p>2. Because it was error to permit the jury, against the objection of defendant’s attorneys, to be taken to the office of Dr. Ashmore, an expert witness for plaintiff, and there be witness of and take part in said issues and conversations, and hear discussions and arguments, the harm done being that the jury was surrounded by conditions in which the influences were wholly to the advantage of the plaintiff. And because the expert witness for defendant, Dr. Gibbes, who lived in Columbia, had no opportunity to explain and illustrate his testimony, as did Dr. Ashmore. And because it was irregular to try a case, even in part, away from the Court room.</p> <p>3. Because it was error to strike out of the testimony of Conductor Dawson this statement: “And I don’t remember whether she said she couldn’t see good or not, but I considered that that is what she meant by dropping her glasses.” He had immediately before stated that when he took up her ticket she told him she had dropped her glasses in the station at Columbia and had broken them. The only inference to be deduced was that the loss of her glasses affected her vision.</p> <p>4. Because it was error to charge as follows: “If she convinces you by the preponderance of the testimony that she was injured and did suffer the damages mentioned in here, then you say was that injury or these damages caused by the carelessness and negligence of the company in the particulars named in the complaint? And, if you find that she was injured as a result of that, then it would be your bounden duty to say how much she is entitled to. She would De entitled to damages.” The error consists in this: The charge takes no account of the plea by defendant that plaintiff’s own negligence and contributory negligence were the causes of the injury if she suffered any. It is immaterial that elsewhere his Honor charged on these points. The damage has been done.</p> <p>5. It was error to charge as follows: “Just because she is hurt you can’t give the railroad company’s money just to compensate her feelings, and so forth, unless she suffered these injuries as a direct result of their carelessness and negligence.” The charge ignores the pleas by defendant that if she suffered any injury, it was due to her own negligence, or her contributory negligence. True the Judge charged the law applicable to her own negligence and to her contributory negligence elsewhere, but the harm was done by this erroneous charge.</p> <p>6. It was error to charge as follows, at request of plaintiff, without explaining or modifying the request to the effect that even if the carrier were negligent it was not liable if plaintiff’s negligence contributed to the injury as a proximate cause thereof. “Whatever mode of conveyance, whether passenger, freight or mixed train, a carrier is liable for any negligence which is the proximate cause of injury to the passenger, and in that sense the law requires the highest degree of care in all cases, but in applying the rule the jury should take notice of the particular mode of conveyance.”</p> <p>, 7. Because it was. error to charge plaintiff’s 6th request, as follows : “Although a railroad company is not ordinarily under any duty to render assistance to a passenger in alighting from its train, yet if the company’s servants, within the scope of their employment, undertake to render such assistance the railroad company will be liable for any negligence connected with the rendering of such assistance, provided such negligence is the proximate cause of the injury to the passenger.” The error consists in not charging in connection with this charge, the law applicable to the question of plaintiff’s own negligence and contributory negb'gence.</p> <p>8. His Honor erred by adding to the 8th request of plaintiff the following: “I don’t like it much in that shape, but I believe it is my duty to charge it. If you find the facts that are alleged in there—and it is incumbent upon you to find that those are the facts before you can make any such verdict. The facts are with you, and if you can find that these are the facts, then that is the conclusion you should draw from them.” The charge is objectionable because it is on the facts—it undertakes to instruct the jury what inference it should draw from a given state of facts; hence it violates the provision of section 26, article V of the Constitution, to wit: “Judges shall not charge juries in respect to matters of fact, but shall declare the law.”</p> <p>9. Because it was error to allow Dr. Ashmore, a witness for the plaintiff, to state in his office, in the presence of the jury and over the objection of defendant’s 'attorney, that Mr. Ware had asked that he make a further X-ray examination; he had seen some plates and wanted to see if there was any improvement. This was an indirect way of stating Mr. Ware’s opinion that on the 19th the plates he saw showed injury. It was hearsay. Mr. Ware was not a witness in the case.</p> <p>cite: As to opinion evidence: 19 S. C. 70; 57 S. C. —; 58 S. C. 74; 87 S. C. 298-9.</p> <p>submit: Defendant has not laid the proper foundation for a review of the question as to whether the admission of opinion evidence was error: 3 S. C. 512; 13 S. C. 457; 53 S. C. 358; 56 S. C. 374; 60 S. C. 271; 59 S. C. 242; 56 S. C. 146; 68 S. C. 421. As to opinion evidence: 103 S. C. 198; 61 S. C. 15; 105 S. C. 134; 93 Ga. 6; 19 S. E. 25; 59 S. C. 314; 19 S. C. 66; 57 S. C. 449; 62 S. C. 281; 72 S. C. 256; 82 S. C. 71; 93 S. C. 125; 95 S, C. 9; 102 S. C. 142; Wig. Ev., sections 1917-1929; 3 Wig. Ev., sec. 1929. As to not being essential in civil cases that the trial be held in the courthouse, but it may be held, either wholly or in baii. in another place or building as necessity or convenience may demand: 29 Conn. 137; 64 Vt. 511; 24 Atl. 1013; 18 Ran. 383 ; 119 Ky. 384; 84 S. W. 310; 27 Ky. E. R. 8; 121 S. W. 429; 100 Wis. 157; 75 N. W. 975; 69 A. S. R. 906; 41 E. R. A. 563; 23 Ea. Ann. 43; 61 Ela. 8; 55 So. 851; 91 N. W. 856; 119 Ga. 108; 66 S. E. 64; 45 W. Va. 792; 32 S. E. 198; 84 S: C. 343. A witness should not be permitted to give his opinion of words and phrases: 5 Encyc. Ev. 712. When a defendant thinks that the trial Judge is excluding any testimony that is material and competent he should stale why and wherein it is competent, and, if ruled out, except to the Judge’s ruling, and ,failing to do this, he is deemed to acquiesce in the ruling of the lower Court and cannot complain in this Court: 103 S. C. 363; 104 S. C. 340; 107 S. C. 248. Admission of opinion evidence rests in the discretion of trial Judge, and there was no abuse of discretion here: 102 S. C. 142. As to the decree of care due from carrier to passenger: 55 S. C. 392; 91 S. C. 139; 187 N. Y. 73; 79 N. E. 846; 10 E. R. A. (N. S.) 411; 116 Am. St. Rep. 591; 10 Ann. 366; 207 Fed. 802; 10 C. J. 932. Judge’s charge must be considered as a whole: 96 S. C. 15; 95 S. C. 302; 88 S. C. 570. A charge which assumes facts hypothetically is not a charge upon facts: 47 S. C. 488; 58 S. C. 380; 59 S. C. 248.</p>

Before Sease, j., Barnwell, Fall term, 1917. Action by Harmon Muns against Q. A. Kennedy. From a judgment for plaintiff, defendant appeals. cite: As to rescission of contract: 37 S. C. 7; 86 S. C. 170. cites: As to rescission of contract: 46 S. C. 75. As to findings of fact by Circuit Judge not being reviewable: 55 S. C. —.

. Before Bowman, J., Oconee, Spring term, 1917. Action to probate the last will and testament of Mrs. Rosa Fahnestock, deceased, by James C. Owens, as executor of the last will and testament of Mrs. Rosa. Fahnestock, deceased, against Thomas G. C. Fahnestock and others. Probate Court admitted will dated September 24, 1915, and refused to admit paper dated January 1, 1916.

Before Prince, J. Richland, Fall term, 1917. Action by Charley N. Enlee and Dasey Belle Enlee against the Seaboard Air Line Railway. Judgment for plaintiffs, and defendant appeals.

<p>1. Executors and Administrators — Demurrer — Material Matters.— In suit by one of two executors for instructions, demurrer does not lie to collateral averments of complaint showing differences of opinion between the executors.</p> <p>2. Appeal and Error •— Orders Appealaele. ■—■ In suit by one of two executors for instructions, assuming allegations are irrelevant, the Court’s refusal to strike them out is not appealable; their relevancy being easier to determine when all the evidence, is in.</p>

<p>Landlord and Tenant—Lease—Letter.—Landlord’s letter to tenant held not an unequivocal agreement to the terms of the instrument, constituting- a lease for ten years, drawn up by the tenant, and forwarded to the landlord for her signature.</p>

<p>Master and Servant—Injuries to Servant—Assumption of Risk.— Where a railroad servant, engaged in lifting heavy timbers and placing them on a dump car to be used in the construction of a trestle, was injured while lifting a' piece of timber because the crew was inadequate, he could not recover, having assumed the risk.</p>

Before Spain and McIver, JJ., Beaufort, Spring term, 1918. Proceeding by Emily K. Turner and others against J. B. Walker. Prom an order denying writ of certiorari to defendant, and granting plaintiffs writ of mandamus prayed for, defendant appeals.

<p>Before Spain, J., Horry, Spring term, 1917.</p> <p>Action by W. G. Stackhouse against W. J. Conerly. Judgment for plaintiff, and defendant appeals.</p> <p>submit: The transaction between the parties was a sale of the land described in the deed and did not create a mortgage: 21 S. C. 400; 27 S. C. —; 3 Rich. Eq. (24 S. C. Eq.) 153; 31 S. C. 280; 90 S. C. 490; 103 S. C. 253; 52 S. C. 54; 90 S. C. 494 ; 73 S. E. 1038; 3 Pom. Eq. 1195; 55 S. C. 70; 32 S. E. 816.</p> <p>submits : The facts are calculated to create a mortgage and not a sale of the land: 99 S. C. 31-36; Jones on Mortgage, sections 244-250-273-4-5-6; 90 S. C. 490.</p>

<p>1. Appeal and Error—Reservation of Grounds of Review—Request to Charge.—When neither of plaintiffs requested the trial Judge to charge that negligence of a plaintiff cannot be interposed as a defense when the wilfulness of defendant was the proximate cause of. injury and neither called to the attention of the Judge the fact that he had failed to charge that proposition, an exception, assigning error upon such failure, must be overruled.</p> <p>2. Appeal and Errob—Exceptions—Rule of Court.—Exceptions in violation of rule 5, sec. 6, of the Supreme Court (90 S. E. 7), providing that each exception must contain within itself a complete assignment of error, and that a mere reference to any request to charge will not be considered, are not properly before the Supreme Court for consideration.</p> <p>3. Appeal and Error—Exceptions—Distinct Propositions op Law— Rule of Court.—An exception containing two distinct propositions of law violates rule 5 of the Supreme Court (90 S. E. 7).</p>

Before Memminger, J., Clarendon, Spring term, 1917, C. H. Mathis was convicted of trafficking in seed cotton, contrary to statute, and he appeals. cite: As to right of defendant to have trial Judge to pass upon the competency of a witness after he is sworn: Jones on Evidence, sec. 796, p. 1000; 13 Mass. (19 Pick.) 202; 55 S. C. 37; 7 T. R. 300; 2 Nott& McCord, 309; (Kan. 1894) Civil Code, sec. 323, subd. 2; 53 Kan. 669; 37 Pac. 172; 50 Cent. Dig. 239; 12 App. 127 (50 Cent.

<p>Before Smith, J., Jasper, Ball term, 1917.</p> <p>Action by J. E. and Ala May Berg against the AYestern Union Telegraph Company. Judgment for defendant, and plaintiffs appeal.</p> <p>submits: The message, in question, was not an interstate transaction: 180 S. W. 502; 57 Ind. App. 93; 104 N. E. 771; 187 U. S. 617. As to punitive damages: Vol. I, S. C. Code, 1912, sec. 3330; 24 Bed. Stats. 379; 36 Bed. Stats. 539; 34 Stats. 595; 191 U. S. 486; 74 So. 779; 220 U. S. 364; 234 U. S. 542. As to evidence of wilfillness: 89 S. C. 190; 92 S. C. 216; 90 S. C. 540.</p> <p>cite: As to actual damages under State law: 70 S. C. 418; 70 S. C. 539; 72 S. C. 294; 74 S. C. 491; 101 S. C. 159. As to no mental anguish under the Federal law: 94 S. E. 870; 29 S. C. 510; 81 S. C. 169; 92 S. C. 43; 91 S. E. Rep. 154; 187 U. S. 617; 23 Sup. Ct. 214; 47 R. Ed. 333; 91 S. E. 157; 236 U. S. 568; 36 Sup. Ct. 419; 59 R. Ed. 721; 162 Pac. 708; 71 S. E. 815; 187 U. S. 617; 174 Ky. 210; 231 Fed. 405; 162 U. S. 654; 93 S. E. 467; 147 N. C. 66; 60 N. E. 721 (C. C.); 18 Fed. 10; 102 U. S. 541; 26 R. Ed. 224; Davis et al. v. W. U. T. Co. (Kansas City Court of Appeals, not yet reported); 226 U. S. 491; 116 Va. 1009; 91 S. E. Rep. 154; 93 S. E. Rep. 465; 174 Ky. 210. As to punitive damages under the State law: 75 S. C. 182; 82 S. C. 87; 84 S. C. 482. As to punitive damages under Federal law: 147 U. S. 108; 13 Sup. Ct. 261; 37 R. Ed. 97; 105 S. C. 289; 90 S. E. 701; 94 S. E. 870.</p>

Before WhagEy, County Judge, Richland, December 1, 1917. Action by J. H. Thomas against W. R. Register. Judgment for plaintiff, and defendant appeals. cite: As to inadmissibility of testimony as to conversations which plaintiff had with others than defendant: 90 S. C. —; 73 S. E. 187. As to inadmissibility of self-serving declarations: 24 D. R. A. (N. S.) 253, note; 10 Rich. D. 123; 65 S. C. 21.

<p>1. Criminal Law—Judicial Notice—Matter of Common Knowledge— Properties of Concentrated Lye.—It is matter of common knowledge that, when taken internally, concentrated lye is a dangerous and destructive agency, causing injury and even death, if of sufficient quantity and strength.</p> <p>2. Homicide—Attempt to Poison—Evidence.-—Relative to offense under Cr. Code 1912, sec. 149, of attempting to administer poison or destructive thing intending to kill, evidence of color and effect of water of well held prima facie proof it was sufficiently strong from concentrated lye to be poisonous or injurious to health.</p> <p>3. Homicide — Attempt to Poison—-Intent.-—-Intent manifested in attempt being the gravamen of the offense, under Cr. Code 1912, sec. 149, of attempt to administer poison, intending to kill, it is immaterial that enough concentrated lye was not put in a well to cause death or serious sickness from the water.</p> <p>4. Criminal Law—Requested Instruction—Conformity to Evidence. —Instruction stating, “The State relies on circumstantial evidence,” and “the charge is not supported by direct evidence,” is properly refused; there being some direct evidence supporting the charge.</p> <p>5. Criminal Law—Instructions—Requests Covered by Charge.—The principles in defendant’s requested instructions having been covered by the general charge, refusal of request, was not prejudicial.</p>

Before Rice, J., Lexington, Fall term, 1917. Statement: This action was commenced in August, 1916, to recover of the defendant a balance of seven hundred dollars, due on the purchase price of a tract of land, which plaintiff had formerly sold her for the sum of one thousand dollars, as stated in the deed (f. 21), and on which she had paid three hundred dollars at the time of the sale.

Before MemmingER, J., Marlboro, Fall term, 1917. The action was to set aside a deed for the grantor’s incapacity, and the testimony was as follows: James Welsh, sworn on behalf of the plaintiff and examined by Mr. T. I. Rogers: “I knew Nancy Cottingham. She was my wife’s sister. She had one child who died I think in 1910, before Nancy died. This child did not leave any children. Nancy left one brother, Ezekiel Thomas, and three sisters, Sarah, Eaura and Eliza.

Before Whaley, Comity Judge, Richland, March term, 1918. Proceeding by Amanda M. Webb and another against C. J. Cook.

Before Prince, J., Dillon, Spring term, 1917. Action by Joe Reaves and Annie Reaves. From judgment for plaintiffs, defendant appeals. cite: As to refusal of motion for directed, verdict as to punitive damages: State Constitution (1895), article IX, sec. 2; 19 S. C. 353; 90 S. C. 436; 36 S. C. 110; 17 S. C. 467; 70 S. C. 83; 57 U. R. A. 611; 37 Cyc. 1775.

Before Rice, J., Barnwell, Summer term, 1917. Action by Charlie Brown against the Southern Railway Company. Judgment for plaintiff, and defendant appeals.

<p>Before Moore, J., Greenville, Fall term, 1916.</p> <p>Sam Duncan and Eliza Coster, alias Eliza Duncan, were convicted of adultery, and they appeal.</p> <p>cites: As to error in ruling out the records of the divorce granted in Georgia: 76 S. C. 149.</p> <p>(oral argument).</p>

Before Smith, J., Richland, Summer term, 1917. Ernest Cooper was convicted of the malicious killing of a hound dog, and he appeals. ■ submits: That on appeal from the refusal of a Circuit Judge to grant a new trial on questions of fact no relief can be obtained in the Supreme Court: 24 S. C. 593; 36 S. C. 514.

Before Maurdin, J., Charleston, Spring term, 1918. Action by Travis Barnes, by his guardian ad litem, against the Atlantic Coast Line Railroad Company, a corporation, and others.

Before Spain, J., Greenville, Fall term, 1917. Proceeding in the nature of quo warranto by E. D. Green against W. E. James and others. 'Judgment for petitioner, and respondents appeal. cite: As to irregularities vitiating entire election: 79 S. C. 418; 76 S. C. 588; 86 S. C. 456; 78 S. C. 472; 84 S. C. 148. As to failure to open and keep open the registration books for requisite time before election: Code of Caws, vol. I, section 221. (oral argument).

Before Memminger, J., Dillon, Fall term, 1917. Action by J. D. Haselden against W. M. Hamer. Judgment for defendant, and plaintiff appeals. cite: As to the refusal of the presiding Judge to grant continuance desired by the plaintiff: 97 S. C. 178; 81 S. E. 424; Ency. of PI. and Prac, vol. I, p. .87.

Before Prank B. Gary, J., Chesterfield, Pall term, 1913. Action by H. D. Barry against T. S. Gregory. Judgment for defendant, and plaintiff appeals. cite: As inadmissibility in evidence of a person not shown to have been the agent or attorney of the party against zvhom they are offered: 25 S. C. 151; 58 S. C. 210; 32 S. C.. 547. (no citations).

Before SeasE, J., Barnwell, Fall term, 1917. Action of claim and delivery by J. A. Porter against Eddie Sanders, in which Martin Mixon and another intervened. 'Judgment for plaintiff, and the'interveners appeal. cites: As to landlord’s lien for rent, and its priority: Civil Code, vol. I, 1912, sec. 4162; 36 S. C. 274. As to the right of third persons to intervene in actions of claim and delivery: Code, vol. II, sec. 267; Code, vol.

Before Wrrson, J., Florence, Fall term, 1917. Action by Fred. F. Stevens against J. Khetter. Judgment for defendant, and plaintiff appeals. cite: As to the rights of a bona fide holder for value of commercial paper, where he has acquired such paper after maturity, but got the paper in due course from a bona fide holder for value, who acqtdred paper before maturity and without notice of any infirmities: Negotiable Instruments Act, sec. 28 (vol.

<p>1. Criminal Law — Change op Venue — Discretion op Court.—The granting or refusing of motions for change of venue is discretionary with Court; but discretion must be judicial, and not arbitrary.</p> <p>2. Criminal Law—Change op Venue—Local Prejudice.'—■'Where, on motion for change of venue, accused, charged with arson, submitted affidavits of 20 prominent citizens of county, showing impossibility of impartial trial in such county because of prejudice against accused, the inflamed state of public mind, and popularity and influence of prosecutor, and State offered nothing to the contrary, accused was clearly entitled to the change.</p>

Before Moore, ]., Hampton, Fall term, 1916. Tillman Harvey and Hurley Harvey were jointly prosecuted for murder. Tillman Harvey was acquitted, and Hurley Harvey was convicted of manslaughter, and he appeals. cites: As to the right a relative has to act in the defense of his kinsman, who is assailed: 78 S. C. 253. (oral argument).

Before SeasE, J., Barnwell, Fall term, 1917. Paul H. Allen was convicted of obstructing a public highway, and he appeals. cites: As to not requiring the solicitor to state whether the indictment was brought under the common law or under the statutes: 14 Rich. L. 174; 48 S. C. L. 174; 2 Brev. 300; 4 S. C. L. 300; 1 N. & McC. 512; 12 S. C L. 512. As to the county supervisor and county board of commissioners having proven to abandon a public road: Civil Code 1912, section 1932.

Before Mauldin, Eauréns, Pall term, 1917. Action by Helen E. Sullivan against the Sullivan Power Company. Prom a judgment for plaintiff, defendant appeals. . cite: As to measure of damages: 8 R. C. L. 481, and cases cited; 105 Pac. 1070; 28 E. R. A. (N. S.) 968; 81 S. C. 554; 84 S. C. 399.

Before Bowman, J., Anderson, Ball term, 1917. J. R. AVilliams awas convicted of manslaughter, and he appeals. cite: As to exclusion of testimony as to declaration made by defendant shortly after the homiede: 107 S. C. 275. As to the necessity of retreat: 85 S. C. 241; 90 S. C. 290; McClain on Commercial Law, sec. 311; 66 S. C. 473; 10 R. C. L. 872.

Before Wi-ialey, County Judge, Richland, November term, 1917. Action by R. Goldberg and others, copartners doing business as the American Metal & Waste Company, against the Carolina Public Service Company. Judgment on verdict for plaintiff, and defendant appeals. cites: As to admissibility of parol evidence to explain the meaning of certain words in a written contract: 87 S. C. 67; 86 S. C. 8; 93 S.' C. 406.

Before Prince, J., at chambers, Winnsboro, S. C., March 7, 1918. Action by Mary C. Smyer, as executrix of the last will and testament of Robert D. Smyer, deceased, against the Southern Railway Company and L,. C. Jones. From an order denying the motion of defendant, Jones, for change of venue, he appeals.

<p>1. Insurance—Life Insurance—Loan Value of Policy.—Under life policy stipulating comjiany would loan amount stated in annexed table, other indebtedness being first deducted, loan value at end of fifth year was amount stated in table, less next annual premium, amount of a prior loan indebtedness, and interest on unpaid note.</p> <p>2, Insurance—Life Insurance—Waiver by Officer in Own Beiialf.— The president of a life insurance company could not waive a right of the company in his own behalf.</p>

Before Prince, J., Richland, Fall term, 1917. Action by Lillie Perry Abbott against the Columbia Mills . Company. From a judgment for plaintiff, defendant appeals. submits: That the mere fact that the machinery proves defective, and that an injury results therefrom, does not fix the master’s liability, prima facie it is presumed that the master has discharged his duty to the servant, and that he zvas not at fault.

Before Rice, J., Union, Spring term, 1917. Action by T. C. Duncan, as trustee, etc., and others, against the Union-Buffalo Mills Company. From a judgment and decree for plaintiffs, and from an order of supersedeas, defendant appeals. cite: As to charge upon facts: Constitution of 1895, article V, sec. 26; 47 S. C. 488; 49 S. C. 488; 51 S. C. 453; 61 S. C. 556; 61 S. C. 357; 63 S. C. 516; 68 S. C. 153; 71 S. C. 156; 104 S. C. 16.

Before Smith, J.,' Richland, Summer term, 1917. Claim and delivery by J. D. Elders against S. F. Feutrei in Justice Court. A judgment for plaintiff was affirmed on appeal to the Circuit Court, and defendant appeals.

Before Shipp, J., York, Spring term, 1917. Action by Zula Horton against the Pullman Company. From an order setting aside verdict for punitive damages, plaintiff appeals. submits: There was evidence tending to support the verdict: 105 S. C. 287; 73 S. C. 503; 68 S. C. 55; 25 S C. 133; 63 S. C. 576; 103 S. C. 113; 23 Am. St. Rep. 356; 42 Fed. Rep. 484; 129 Am.

cites: As to transaction* and communications by plaintiff with• a deceased person: Code of Civil Procedure, sec. 438; 89 S. C. 347; 100 S. C. 351; 205 N. Y. 384; 98 N. E. 918. As to error in not granting nonsuit: 99 S. C. 421; 81 S. C. 111. As to waiver: 84 S. C. 97; 88 S. C. 222. As to refusal of motion for neza trial: 93 S. C. 94; 95 S. C. 1. Before Bowman, J., Charleston, Spring term, 1917.

Before Wilson, J., Horry, Fall term, 1917. Action by Lula E. Crawford against the Mullins Lumber Company.

Before Spain, J., Greenville, Fall term, 1917. Proceeding by N. R. Wilson against Greenville Comity. Judgment for claimant and defendant appeals. cites: As to right of appellant to have special benefits to the land set off against the value of the land actually taken: 107 S. C. 337; Lewis on Eminent Domain (3d Ed.), sec. 687; 9 L. R. A. (N. S.) 796 (note); 167 U. S. 548; Cooley Const. (6th Ed.) 697-702; 2 Dillon Mun.

Before Spain, J., Marlboro, Fall term, 1917. Action by W. S. Gibson against the Atlantic Coast Line Railroad Company. From an order of nonsuit, plaintiff appeals. cites: As to punitive damages: 81 S- C. 340; 84 S. C. 539; 83 S. C. 354; 33 Cyc. 931-2. As to negligence per se in operating a train through a town in violation -of a town ordinance: 83 S. C. 354; 144 U. S. 434.

Before Rice, J., at chambers, Aiken, S. C., January 19, 1918. Actions by Joseph Simmons and Joseph Ashley, respec-' tively, against Marion Wall and another.

Before Prince, J., York, Spring term, 1918. Action by J. A. Fox against the Junior Order United American Mechanics. From judgment of nonsuit, plaintiff appeals. submits: That unreasonable by-laws are not binding: 68 S. C. 55; 3 Enc. of Law, 2d Ed. 1062. When the facts are undisputed the question, whether a by-law, rule• or regulation is reasonable is one for the Court: 99 S. C. 141; 78 S. C. 382; 66 S. C. 202; 44 S. C. 442; 98 S. C. 206.

Before Bowman, J., at chambers, Charleston. Action by Patrick Hanley against the Charleston Bight & Water Power Company. Prom-an order granting defendant’s motion for a change of venue, plaintiff appeals. submit: That Berkeley was the proper county for trial of this cause: 78 S. C. 325.

Before Peurieoy, J., Laurens, Spring term, 1917. Action by Willie Lee Henderson, by G. M. Henderson, her guardian ad litem, against the Lydia Cotton Mills and another. Judgment for plaintiff, and defendants appeal. cite: As to admission in evidence the stenographer’s transcript of the testimony of two witnesses taken at a former trial: 29 S. C. 303. As to exclusion of opinion evidence: 19 S. C. 70; 57 S. C. 446.

Before Spain, ]'., Darlington, Summer term, 1917. Action by the Murchison National Bank against J. B. Reynolds and-others. From order of reference after judgment for plaintiff, defendants, Ernest Clifford Reynolds and others, appeal. submit: That any order referring a cause to an attorney, who had been counsel in the cause, is in violation of the law: Constitution of 1895, article V, section 6.

Before Bowman and PeuriFoy, JJ., Anderson, Fall term, 1917, and Spring term, 1918. Action by the Commercial Security Company against the Donnald Drug Company. Judgment for defendant, and plaintiff appeals. cites: As to amendment of complaint during trial: 3 Cyc. 224; the Negotiable Instruments Act, sec. 59 (Acts 1914, pp. 668-696, inclusive), sec. 52; Code of 1912, vol. II, sec. 219; Pomeroy’s Code of Remedies, 4th Ed., pp. 612-636; 54 S. C. 109; Code of 1912,'vol.

<p>1. Trial—Equity Cases—Submission of Issues.-—Under the statute providing that a Judge who is to hear a chancery cause shall frame the issues upon which he desires the aid of the jury, when the case is continued to a subsequent term and tried by another Judge, such Judge is not bound by the issues made by the original Judge and may make another order of submission.</p> <p>2. Evidence—Statement by Third Person.—In a suit to set aside for fraud, a deed executed by a decedent, letter written by a daughter of the grantee in relation to the physician and mental condition of the grantor were incompetent, being merely the statements of a third person.</p> <p>3. Trial—Introduction of Evidence—Discretion of Court.—Admission of testimony, proper only for the opening, after defendant has closed, is within the discretion of the trial Court.</p> <p>4. Witnesses — Cross-Examination. — A party may cross-examine the witnesses of the adverse party on any subject pertinent to the issue.</p> <p>5. Trial—Conduct of Court—-Expression of Opinion.—In an equity suit, tried to a jury, a statement by the Court during the examination of a witness, “The gentleman forgets there are 13 jurors on this case, and they better satisfy the thirteenth as well as the 12,” was not erroneous as being the expression of an opinion.</p> <p>6. Trial—Instructions—Sufficiency.—In a suit to cancel a deed given by decedent to her brother for fraud, an instruction that it was competent for a woman to give her property to her brother was erroneous as ignoring the defense of a valuable consideration, where eight questions were submitted to the jury, none of which involved the sufficiency or nature of the consideration.</p> <p>7. Trial—Instructions—Applicability to Evidence.—In a suit to cancel a deed for fraud, it was not error to confine the jury to the fraud of the defendant to the exclusion of the fraud of his agents, where there was no evidence that defendant acted through agents, or that any of such agents were guilty of any fraud.</p> <p>8. Evidence—Presumptions.—Extreme weakness of body raises no presumption of weakness of mind.</p> <p>9. Trial—Instructions—Applicability to Issues.—In a suit to cancel a deed for fraud, it was not error to refuse to charge that a grossly inadequate consideration is a badge of fraud, where sufficiency of the consideration was not submitted.</p> <p>10. Appeal and Error—Review—Questions of Fact in Equity Cases.— In' a suit to set aside a deed for fraud, tried to a jury, where the verdict found that there was no fraud, the appellate Court has no jurisdiction of such question.</p>

Before Maurdin, J., Laurens, Fall term, 1917. Action by M. W. Oxner against the Seaboard Air Line Railway Company. Judgment for plaintiff, and defendant appeals. cites: As to error in Judge’s charge by reading to the jury: Sec. 896 of the Criminal Code of 1912; 108 S. C. 256; 65 S. C. 60; 136 U. S. 104; 84 Law Ed. 390; 39 S. E. 913; 48 S. E. 597; 52 S. E. 140. (oral argument).

<p>1. Master and Servant—Injury to Servant—Safe Appliance—Negligence—Burden of Proof.—Evidence that a door of a box car was so constructed as to be liable to slide off the overhead rail when its latch was unfastened, tended to show a failure on the part of the master to provide safe appliances and. a reasonably safe place for the servant to work, and where the evidence showed that a brakeman, required in the performance of his duty, to ride on the outside of a flat car, in close proximity to the car having such door, was injured by the fall of the door, the burden was on the master to rebut the presumption of negligence.</p> <p>2. Master and Servant — Injury to Servant—'Contributory Negligence—Evidence.—In a brakeman’s action for personal injury due to having his leg broken by the fall of a car door, evidence held not to admit only of the inference that plaintiff’s negligence contributed to the injury</p> <p>3. Appeal and Error — Record on Appeal — Contents. •— Where the charge is in no respect involved by the appeal, it is error for the trial Court in settling “case” to require defendant to print it as part of the record.</p>

Before Sease, J., Barnwell, Fall term, 1917. Action for partition by Emily R. Riley and another, by W. T. Riley, their guardian ad litem, and others, against Janie C. Lewis and another. Decree for plaintiffs, and defendants appeal. cite: As to the standing of a child “en ventre sa mere:” 18 S. C. 47; 16 Am. E. E. L., 2d Ed., p. 258; Tiedeman on Real Property, sec. ■481; Tiffany on Real Property, vol. I, p. 293; 29 Am. Eng. E. Law, 2d Ed., p. 93.

Before Whaley, County Judge, Richland, January term, 1918. Action by Dora Wix and another against the Columbia Mills Company. Judgment for plaintiff, and defendant appeals.

Before Sease, J.,' Union, Spring term, 1917. Action by George W. Goings and another against Lemuel Mitchell. Judgment for plaintiff, and defendant appeals. submits: That the plat offered in evidence was never proven or identified: 82 S. C. 215 •; 90 S. C. 513; 80 Si C. '273; 80 S.‘ C. 242. There is a difference in the law between an action for the recovery of land, and an action for the taking possession and depriving plaintiff of the possession of property: 53 S. C. 90.

<p>1. Trial—Right to Open and Close—Admission of Plaintiff’s Cause —-Answer—Rule of Court.—-Under rule of Court permitting defendant to open and close if admitting plaintiff’s cause by pleadings, where a complaint did not refer to application for insurance or its amendment, an answer denying truth of statements in application and pleading their untruth to avoid policy and averring that it was accepted as true and its amendment did not entitle defendant to open and close.</p> <p>2. Trial—Right to Open and Close—Admissions of Plaintiff’s Cause ■—-Time.—Under rule of Court permitting defendant .to open and close, where he admits plaintiff’s cause by the pleadings and assumes burden of proof, an offer to admit plaintiff’s cause made at trial was too late.</p> <p>3. Trial-—-Special Verdict — Directory Statute. — Under Code Civ. Proc. 1912, Sec. 321, providing that the Court may direct a special verdict upon any or all of the issues, the Court is not bound to so direct.</p> <p>4. Evidence—Fact or Conclusion—Reflection on Witness.—Where plaintiff characterized a release as a fraud on her, a question to a witness who had advised her to execute the release, as to whether a verdict for plaintiff would reflect on him was not objectionable as calling for opinion evidence, that not being a matter of opinion, but of knowledge.</p> <p>5. Insurance—Life Insurance—False Statement in Application— Evidence.—In action on life insurance policy, defended on ground of insured’s fraud and concealment in stating that he had not consulted any physician about an illness not specifically mentioned in application, evidence held not to show fraud or concealment.</p> <p>6. Release—Validity—Fraud.-—-A release from one claiming under a life insurance policy i§- invalid if obtained by insurer through false statement of insurer’s agent.</p> <p>7. Release—Yalidity—Question for Jury.—In action on life insurance policy for $2,000, the validity of beneficiary’s release to insurer’s ' agent for $91.55, representing aggregate premium and interest thereon, held a jury question. .</p>

<p>Before Wilson, J., Abbeville, Spring term, .1916.</p> <p>Johnny Wideman was convicted of manslaughter, and he appeals.</p> <p>cites: As to res gestae: 47 S. C. 386; 56 S. C. 655; 12 S. E. 26“ (Ga.); Underhill on Criminal Evidence, sec. 94. As to bias of witnesses: 32 Kan. 372; 2 Abb. Pr. (N. Y.) 256. As to dying declarations: Underhill on Criminal Evidence, sec. 102; 24 Cal. 24; 9 S. C. 208; 34 S. C, 139; 56 S. C. 374; 13 S. C. 463; 103 S. C. 316. .</p>

Before Mauldin, J., Eaurens,--term. Action by J. Warren Bolt against A. B. Milam and another. Judgment for plaintiff, and defendants appeal. cites: As to object of claim and delivery: 30 S. C. 357; 9 S. E. 512; 18 E. R. A. (N. S.) 1357; 104 S. C. 357; 105 S. C. 142; Code of Procedure (1912), sec. 321; 94 S. C. 345; 47 S. C. 563; 42 S. C. 127.

Before SeasE, J., Barnwell, Fall term, 1917. Action by the Home Bank of Barnwell against Claude Anderson and others. Judgment for plaintiff, and defendants appeal. cites: As to the construction of Judge Prince’s order granting a new trial: 75 S. C. 405. cite: As to construction of Judge Prince’s order: 73 S. C. 403.

Before Peurifoy, J., Spartanburg,, Spring term, 1916. Action to set aside a deed and mortgage given by plaintiff to defendants, and to restore the status quo ante of the parties. The issues raised by the pleadings and set out in the case (fol. 27) are three in number, as follows: “1. Senile decay, mental and physical weakness in the appellant. 2. Inadequacy of consideration and advantage taken of appellant. 3.

<p>Before DeVore, J., Richland, April term, 1917.</p> <p>Action in equity by Mary A. Huguenin and others against Julius H. Adams and another to set aside a deed. Judgment for defendants, and plaintiffs appeal. .</p> <p>submit: That while in cases for setting aside conveyances between parties bearing to each other a highly confidential or trust relations, there exists a well recognised distinction between undue influence actively exercised and cases where reliance is placed solely upon the existence of. confidential or fiduciary relation between the parties, coupled with a transaction or conveyance from the weak party to the strong, who thereby procures valuable property for nothing or for a very nominal valuation, or there is deception and •not the fullest and fairest dealings between the parties, yet .such conveyances, will be set aside whether the undue influence be actively exercised or arise by implication from the relation of the parties and the character of the transaction: 57 S. C. 413; 94 U. S. 506; 24 S. C. 1; 30 S. C. 473; 1 Story Eq. Jur., sec. 238; 61 S. C. 504; 2 Pom. Eq. Jur., secs. 955-956; 4 DeS. Ch. 684; 6 Ves. 266;.14 A. & E. Ency. L„ 2d Ed. 194; 87 S. C. 1-7; 5 Rich. Eq. 450; 53 Ala. 89. As to the matter of the ginning and packing account: it is submitted that there is no proper evidence upon which to base the findings of the master or the Circuit Judge as to these items, and that such items are not within the terms of the agreement for compensation alleged in the complaint and admitted by the answer: 81 S. C. 506; 14 D. R. A. (N. S.), p. 488, and note; 31 Cyc., p. 1474c; 57 S. C. 98; Bailey’s Eq. 266. An agent receiving money and not applying it to the purposes specified in the agreement under which he acts within a reasonable time, is chargeable with interest: 4 DeS. Eq. Ill; 31 Cyc. 9, 1479g; Bailey Eq. 97; 57 S. C. 42; 42 S. C. 109; 58 S. C. 22; 3 Hill 204; 81 S. C. 511; Bailey Eq. 226.</p> <p>submit: To reverse the decree, the Court must be convinced that the trial Judge either committed error, or abused his discretion: 100 S. C. 331. The master had the advantage of seeing the witnesses face to face, and having so seen was able to judge the testimony accurately: 5 Strobbart 189 (36 S. C. D.). Before the conveyance can be set aside-on the ground of undue influence it must be shown that the influence was such as was exerted -upon the grantor at the moment of the signing of the deed, and to be such as to render the mind of the grantor incapable of understanding the nature and circumstances of the act: 115 Iowa, 91 Am. St. Rep. 158; 198 Pa. St. 236; 82 Am. St. Rep. 808; 48 Minn. 504; 31 Am. St. Rep. 655; 104 Mo. 201; 24 Am. St. Rep. 326; 90 S. C. 202; 13 Cyc. 285; 9 Cyc. 455; 64 S. C. 273; and authorities there cited; 118 U. S. 127; 93 S. E. 129; 86 S. C. 491; 95 S. E. 329; 64 S. C. 256. The undue infltience must have been actually exerted: Pomeroy Eq. Jur., vol. VI, sections 952-6; 61 S. C. 505; 16 S. C. 334. The deed was founded upon a proper consideration: 83 S. E. 131; 2 Hill Law 404; 44 S. C. 378; 64 S. C. 256; 93 S. C. 376; Rice’s Chancery 243; Cheve’s Eq. 148; 14 S. C. 475. As to the rents of the Shiver place: 100 S. C. 230. Respondent could be charged with interest on annual balances in his hands only from the time of the demand for an accounting by Mrs. Huguenin: Bailey’s Eq. (8 S. C. Eq.) 226; 28 S. E. 782; 16 So. 873; 3 Atlantic 264 (N. J., 1885); 11 Daly 107 (N. Y.) ; 11 S. C. Eq. (2-Hill’s) 158.</p>

Before Rice and Shipp, JJ., Marlboro, Spring term, 1915, Summer term, 1916. Action for specific performance, etc., by Ira W. Williams against C. G. Bruce and the Marion County Lumber Com.pany. From a decree refusing specific performance, etc., plaintiff and defendant, Bruce, appeal. The version of the two parties as to the intent of the trade is as follows: Bruce testifies: “In my talk with Ira-Williams on September 11, 1912, the old contract was made null and void.

Before Spain, J., Greenville, Fall term, 1917. Action by. J. B. Phillips, as administrator, against the Piedmont & Northern Railway Company. Judgment for plaintiff, and defendant appeals. cite: As to signals: 92 S. C. 291. As to lookout: 94 S. C. 143. As to the jury not awarding punitive damages: 69 S. C. 110, at 115-6; 85 S. C. 467; 105 S. C. 480.

Before Peurifoy, J., Beaufort, Summer term, 1917. Action by Annie Schein against P. M. Epstin. Judgment for plaintiff, and both plaintiff and defendant appeal. Statement of facts: This is an action for damages for certain alleged trespasses and for an injunction restraining further trespasses.

Before Memminger, J., Aiken,-term. • Action by O. R. Faust against J. P. Bonnett. Judgment for plaintiff, and defendant appeals. submits: The clerk of Cotirt had no authority to issue the warrant of seizure: Code 1912, vol. I, sec. 4166; 101 S. C. 48; 96 S. C. 313; 96 S. C. 488; 13 S. C. 46. The affidavit whereon the warrant was issued is fatally defective: 24 S-. C. 119; 24 Cyc. 1393; 28 S. C. 209, and cases cited therein; Code 1912, vol. I, sec. 4169; Code of 1912, vol.

Before SeasE, J., Union, Spring term, 1917. Proceeding by the Lockhart Power Company against J. V. Askew to condemn land. Prom a judgment fixing the compensation, petitioner appeals.

Before Gary, J., Pickens,-term. Judgment in the case of Merchants National Bank affirmed, and judgment in the case of C. W. Hickman reversed and the case remanded with instructions to enter up judgment for plaintiff. Actions by the Merchants National Bank and by Charles W. Hickman against Lloyd PI. Smith and others.

Before DeVorE, J., Richland, Spring term, 1917. Suit by Sarah Barnes against William H. Lyles. Judgment dismissing the complairit, and plaintiff appeals. cite: As to the relationship between attorney and client] and the duty owed by the former to the latter: 61 S. E. 806, 809 (N. J.); 23 L. R. A. (N. S.) 679, 690 (Ga.); 13 S. E. 561; 1 McC. Chan. 524; 1016 Am. Dec. 623; 64 S. C. 254; 26 Conn. 213; 27 Kan. 195; 31 Ky. 580; 30 S. C. 238; 9 S. E. 115; 33 Cal. 425; 91 Am.

Before PsuriEoy, J., Jasper, Summer term, 1917. Willie Broughton was convicted of selling whiskey, and he appeals. ■ Statement: The contention by defendant is that he bought a pint of whiskey for two other parties, acting solely as their messenger and in no way participating in the sale. submits: That statutes prohobiting the sale of intoxicating liquors are directed against the act of selling only, and that the offense is committed only by the vendor, or someone who aids…

Before Spain, J., Horry, Spring term, 1917. Action for trespass on realty by C. C. Gor.e and another against the Whiteville Lumber Company. Judgment of nonsuit, and plaintiffs appeal. s cite: As to title as a basis of trespass quare clausinn fregit: 104 S. C. 391. As to possession as a basis of trespass: 86 S. C. 358; 68 S.' E. 637; 61 S. C. 292; 104 S. C. 460. As to possession by agent: 59 S. C. 115; 37 S. E. 240.

Before SeasE, J., Spartanburg, at chambers, 1918. Action by E. D. Bullock against Eemmon Jackson. From an order that plaintiff be allowed to gather his crops and deposit the proceeds with the clerk of Court, to be held subject to settlement of dispute, defendant appeals. submits: That injunction cannot be used to transfer possession of property from one to another: 27 S. C. 415; 78 S. C. 222; 88 S. C. 476; 84 S. C. 440; 35 F. R. A. (N. S.) 707, and note, and cases cited.

Before Moore, J., Lexington, Spring term, 1916. Action by John Jeffcoat and others against Maria A. M. Wingard and others. Decree for plaintiffs, and defendants appeal. submit: The deed from Jeffcoat to Wingard, dated 28th October, i88p, was not a mortgage, but a fee simple deed: 103 S. C. 233; 70 111. 457; 20 Fed. Cases No. 11, 801; 27 Cyc. 993-4. Respondents were not entitled to a trial by jury: 48 S. C. 175; 53 S. F. 795.

Before Gary, J., Dee, Fall term, 1917. Charlie Sanders and Harrison Sanders were convicted for grand larceny, and Alec Holmes was convicted for receiving stolen property, and defendants appeal.

Before Süase, J-, Barnwell, at chambers, September 17, 1917. Action by James Julian Bush against Robert M. Aldrich. From an order denying motion to vacate the service, defendant appeals. submit: This is an action in personam: 3d Cushing 578; 55 Kansas 830; 70 Pac. 891; 110 U. S. 151; 28 B. Ed. 101; 3d Sup. Ct. Rep. 585; 31 Fed. Rep. 252; 6 Cranch 159; 3 Baw Ed. 185; 10 B. R. A. 500; 41 Fed. 283; 176 U. S. 399; 44 F, Eel. 520; 20 Sup. Ct.

<p>Before MclvER, J-, Jasper, Spring term, 1918.</p> <p>Three actions by the Pineland Club' and others, by the Okeetee Club, and by H. L. Pratt, against J. S. Berg, treasurer of Jasper county. From an order sustaining demurrer 'to the complaint, the plaintiffs in each case appeal.</p> <p>The statute referred to in the opinion, being Act February 27, 1917 (30 St. at Large, p. 190), sec. 1, is as follows:</p> <p>“Be it enacted by the General Assembly of the State of South Carolina, That from and after the passage of this act, all persons, firms, corporations or associations holding or acquiring lands, either in fee or term of years, more than five thousand acres, shall pay a license fee for all lands in excess of said five thousand acres which are now used or to be hereafter used for the purposes of raising and protecting fish or game or both, in the following sums, that is to say: All lands in excess of five thousand acres which are used and intended to be used for the purposes of raising-game or fish, the sum of two cents per acre, up to thirty thousand acres; and all acreage in excess of thirty thousand, the sum of four cents per acre; all lands in excess of fifty-five thousand acres, five cents per acre.”</p> <p>The complaint is as follows:</p> <p>The plaintiffs, complaining- of the defendant, allege:</p> <p>First. That the plaintiff, Pineland Club, is an unincorporated association consisting of the plaintiffs, E. W. Clark, George C. Clark, Joseph S. Clark, Arthur Lyman, Oliver Ames, Lewis R. Morris, D. Crawford Clark and Horace Stebbins, whose property is held in trust by the plaintiffs, E. W. Clark and Arthur Lyman, by virtue of a deed between E. W. Clark, surviving trustee et al., and E. W. Clark et al., dated the 30th day of, October, 1917, and recorded in Jasper county, in Book 2D, p. 262. That the property so held by said trustees is located in Jasper county, State aforesaid, sand said trustees are required under said deed to pay such taxes as may be imposed against said club.</p> <p>Second. That at the time of the payment of the taxes hereinafter mentioned, the plaintiffs held the following property in Jasper county, to wit: 17,582 acres in fee; 5,818.92 acres under leasehold for five years, with the right of the lessor to sell, freed from lease, upon 60 days’ notice. Shooting privileges over about 4,000 acres. That before the payment of the taxes, notice to terminate said lease was given, so that the said lease terminated January 1, 1918. That neither the plaintiffs or either of them hold any title over the said 4,000 acres, but have merely the right to shoot over the same.</p> <p>Third. That more than two-thirds of the said land held in fee, and under said leasehold, are unfit for cultivation, being either low or swamp land, or land located in or along the branches. ■</p> <p>Fourth. That the members of the Pineland Club, or many of them, enjoy the privileges of hunting as an incident to their membership in said club, and, therefore, they prohibit all hunting on their holdings except by members; and, in addition, they limit by strict rules the amount of game each member may kill. That in this manner alone does the club raise and protect game. That such hunting, raising, and protection of game is done merely as a recreation, and not as a .business, or for pecuniary profit. That the Pineland Club uses its lands as is customary b3r landowners throughout the State.</p> <p>Fifth. That by virtue of an act of the legislature, No. 97, passed February 27, 1917, there has been charged against the Pineland Club on the books of the defendant, the treasurer for Jasper county, the sum of $448, which represents a tax on a total 27,40.0 acres, to wit, all the holdings of the Pineland Club, including the acreage over which the said club has only shooting privileges. That on the 20th day of December, 1917, the plaintiffs paid the said tax under protest in accordance with Code S. C., vol. I, sec. 461; the following being the protest delivered to the said treasurer upon the payment of the tax:</p> <p>“State of South Carolina, County of Jasper. To J. S. Berg, Esq., Treasurer Jasper County, Ridgeland, S. C. Payment Under Protest. Dear Sir: The Pineland Club hereby hands you the sum of four hundred and forty-eight ($448) dollars; being the amount charged on the books.of your office against the said club, as a license imposed by reason of the act of the legislature, No. 97, February 27, 1917. This payment is made under protest, in accordance with Code, sec. 461. The grounds of protest are as follows:</p> <p>“First. That the Pineland Club owns about 17,582 acres in fee; and has possession of about 5,818.92 acres under lease for five years, with the right of lessor to sell, freed from lease upon sixty days’ notice; and shooting privileges over about 4,000 acres. The notice to terminate the said lease has been given, and said lease terminates January 1, 1918. That more than two-thirds (2-3) of the said lands held in fee and under said leasehold, are unfit for cultivation, being either low and swamp land, or land located in or along the branches; and that the shooting rights over the 4,000 acres are not included within the terms of the act. The said tax has been imposed upon all the acreage above mentioned.</p> <p>“Second. That the Pineland Club plants the arable lands under its control, and uses its properties as is usual and customary by landowners in this State. That there is no ground for imposing upon the said club a tax not imposed on other landowners in this State.</p> <p>“Third. That the only means of raising and protecting game adopted by the Pineland Club is that in common use by landowners throughout the State, to wit, by prohibiting poachers, and further, by limiting the amount of game that each member of the Pineland Club may shoot, and thereby preventing the game from being exterminated. And, therefore, the terms of the statute are not applicable to the Pine-land club.</p> <p>“Fourth. That the said statute, if its terms are held to be applicable to the Pineland Club, is unconstitutional, because it violates the following provisions of the Constitution of the State of South Carolina, to wit:</p> <p>“Art. I, sec. 5. 'The privileges and immunities of citizens of this State, and of the United States, under this Constitution, shall not be abridged, nor shall any person be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.’</p> <p>“Art. I, sec. 6. ‘All property subject to taxation shall be taxed in proportion to its value.’</p> <p>“Art. Ill, sec. 34. ‘The General Assembly of this State shall not enact local or special laws concerning any of the following subjects, * * * to wit: * * * (6) To provide for the protection of game. * * * (9) In all other cases where a general law can be made applicable, no special law shall be enacted.’</p> <p>“Art. X, sec. 1. ‘The General Assembly shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe regulations to secure a just valuation for taxation of all property * * * And provided, farther, That the General Assembly may provide for a graduated tax on income, and for a graduated license on occupations and business.’</p> <p>“Art. Ill, sec. 15. ‘Bills for raising revenue shall originate in the House of Representatives.’</p> <p>“This act having originated in the Senate.</p> <p>“The Pineland Club avers that this tax is not a tax on an occupation or business, for the reason that the raising and protection of game by the Pineland Club is not for business or profit, but solely for recreation as an incident to the ownership of land.</p> <p>“Fifth. That the said act of the legislature likewise violates the following clause of the Constitution of the United States, to wit:</p> <p>“Amendment, art. XIV, sec. 1, to the effect that ‘No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty'-, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (Signed) The Pineland Club, by J. C. Richardson, Manager.”</p> <p>Sixth. That the plaintiffs and each of them, allege that the said tax is unlawful for the following reasons :</p> <p>(a) Because it is placed upon land over which the Pine-land Club has only shooting privileges.</p> <p>(b) Because the lands of the Pineland Club are not used or hereafter to be used for the purpose of raising and protecting fish or game, of both, in the sense intended by the said statute; the raising and protecting of said game being only an incident to the ownership of land, and not done as a business or a profit.</p> <p>(c) That if the terms in language are applicable to the Pineland Club, then the same becomes unconstitutional as violating the following provisions of the Constitution of South Carolina:</p> <p>Art. I, sec. 5. “The privilege and immunities of citizens of this State and of the United States, under this Constitution shall not be abridged nor shall any person be deprived of life, liberty or property, without due process of law, nor shall any person be denied the equal protection of the laws.”</p> <p>Art. Ill, sec. 34. “The General Assembly of this State shall not enact local or special laws concerning any of the following subjects, * * * to wit: * * * (6) To provide-for the protection of game. * * * (9) In all other cases, where a general law can be made applicable, no special law shall be enacted.”</p> <p>Art. N, sec. 1. “The General Assembly shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe regulations to secure a just valuation for taxation of all property, * * * And provided, further, That the General Assembly may provide for a graduated tax on incomes, and for a graduated license on occupations and business.”</p> <p>Art. II, sec. IS. “Bills for raising revenues shall originate in the Plouse of Representatives.”</p> <p>This act having originated in the Senate.</p> <p>And also the following provisions of the United States Constitution, to wit:</p> <p>Amendment, art XIV, sec. 1, to the effect that: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.; nor deny to any person within its jurisdiction the equal protection of the law.”</p> <p>And for reasons set forth in said protest.</p> <p>Wherefore, plaintiffs pray that the amount of said tax, to wit, $448, be returned to them.</p> <p>The exceptions were as follows:</p> <p>The appellants except to the judgment sustaining the demurrers, on the following grounds:</p> <p>First. Because his Honor erred in holding that the allegations of the complaint showed that the appellants were included within the terms of the act entitled, “An act requiring all persons, firms, corporations or associations holding or acquiring more than five thousand acres of land at any one time for the purposes of raising fish or game to pay into the treasuries of the respective counties of South Carolina certain license,” approved February 27, 1917, and were property taxed in accordance with said statute; and in not holding that, if the allegations of the complaint are true, the appellants were not included within the terms of the said statute, and should not have been taxed, and the demurrer should have been overruled.</p> <p>Second. Because his Honor erred in holding that the said statute authorized a license to be levied against the appellant, the Pineland Club, on account of land over which the said club held only shooting privileges; and in not holding that the said satute did not authorize a tax based on such tenure.</p> <p>Third. Because his Honor erred in holding that the said statute, being applicable to the appellants, was not in violation of the Constitution of the State of South Carolina, and in not holding that the said statute is contrary to the said Constitution, and, therefore, void, for the following reasons, to wit, because it violates:</p> <p>(a) Art. I, sec. 5, of the Constitution of the State of South Carolina, providing: “The privileges and immunities of citizens of this State and of the United States under this Constitution, shall not be abridged, nor shall any person be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws.” In that, the said act purports to deprive owners of land of a rightful use of their property.</p> <p>(b) Art. I, sec. 6, of the Constitution of the State of South Carolina, providing: “All property subject to taxa-. tion shall be taxed in proportion to its value.” In that, the property of the appellants is not taxed in proportion to its value.</p> <p>(c) Art. Ill, sec. 34, of the Constitution of the State of South Carolina, providing: “The General Assembly of this State shall not enact local or special laws concerning any of the following subjects, * * * to wit: * * * (6) To provide for the protection of game. * * * (9) In all other cases where a general law can be made applicable, no special laws shall be enacted.” In that, the said act involves a subject where a general law is required or could be made applicable, and the said act is a special law as it excepts Berkele}'’ county from its operation.</p> <p>(a) Art. X, sec. 1, of the Constitution of the State of South Carolina, providing: “The General Assembly shall provide by law for a uniform and equal rate of assessment and taxation, and shall prescribe regulations to secure just valuation for taxation of all property * * * And provided, further, That the General Assembly may provide for a graduated tax on incomes, and for a graduated license on occupations and business.” In that, the tax provided for by the said act can be justified only as a graduated license on occupation and business, and the complaint shows that such raising and protection of game as is done by the appellants is for solely pleasure, and not as an occupation or business.</p> <p>Fourth. Because his Honor erred in holding that the said statute, being applicable to the appellants, was not in violation of the Constitution of the United States, and in not holding that the said statute is contrary to the Constitution, and consequently void, for the following reasons, to wit, because it violates- the United States Constitution: Amendment, art. XIV, sec. 1. “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the-United States, nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” In that, the statute purports to deprive the plaintiffs of their property without due process of law, and denies to appellants the equal protection of the laws of the State of South Carolina.</p> <p>submit: The act is unconstitutional: Constitution of 1895, article I, section 6; article X, sec. 1; 6 S. C., p. 6. Appellants not engaged in occupation or business: Cyc. 25, p. 614, and notes; 46 Ala. 307; 31 Tex. 277; 5 N. C. 291; 35 Am. Dec. 72; 52 D. R. A. (N. S.) 953; 49 L. R. A. (N. S.) 411; 62 Ga. 645; 25 Cyc. 609, and notes. Persons not liable: 110 Ga. 198; 35 S. F. 365; 67 L. R. A. 799; 52 L. R. A. (N. S.) 954; Cooley on Taxation, p. 394; 37 Cyc. 754. Taking away property zvithout due process of law: 12 Cyc. 1215, and cases cited in notes. Denial of equal protection of laws: 60 S. C. 46; 59 S. C. 417. It is special legislation: Constitution of 1895, art. I, sec. 34; 99 S. C. 381-382; 51 S. C. 51; 59 S. C. 110; 60 S. C. 501; 62 S. C. 249; 66 S. C. 219; 73 S. C. 194; 99 S. C. 379; 85 S. C. 186. The statute violates amendment, article XIV, sec. i, U. S. Constitution, prohibiting a State from enforcing any lazv, which deprives any persons of property without due process of law, or which denies persons the equal protection of the law.</p> <p>submit: The evident purpose of the act is to raise money, and not to protect game—there are abundant game laws: Acts of 1911, No. 62; Acts of 1912, No. 340; Acts of 1915, Nos. 141 and 151; Acts of 1917, No. 31. This license fee violates the following constitutional provisions: (a) article I, section 5; (b) article I, sec. 6; (c) article I, sec. 34; (d) article X, sec. 1; (e) Constitution of the United States, Amendment XIV, sec. 1; sec. 42 S. C. 300; 31 S. E. 252. As to cases bearing on article III, sec. 34: 51 S. C. 51; 28 S. E. 15; 56 S. C. 516; 35 S. E. 215 and 218; 66 S. C. 37; 44 S. E. 377; 165 U. S. 150; 17 Sup. Ct. 225; 41 E. Ed, 666; 66 S. C. 219; 44 S. E. 797; 59 S. C. 114; 37 S. E. 226; 165 U. S. 150; 41 L. Ed. 666, and cases therein cited. There is no force in the suggestion that this License Pee Act can be sustained on the ground that it was enacted in p-itrsuance of the police power: 53 S. C. 250; 31 S. E. 322; 21 S. C. 295; 238 U. S. 56; 59 E. Ed. 1199; 165 U. S. 150; 4 S. C. 376; 6 S. C. 1; 59 S. C. 110; 37 S. E 226; 59 S. C. 396; 38 S. E. 11; 60 S. C. 501; 39 S. E. 5; 61 S. C. 205; 39 S. E. 381; 62 S. C. 247; 40 S. E. 553; 66 S. C. 229; 44 S. E. 790; 73 S. C. 194; 52 S. E. 960; 85 S. C. 186; 67 S. E. 158; 85 S. C. 517; 67 S. E. 781; 99 S..C. 381; 83 S. E. 594; 173 U. S. 509; 43 E. Ed. 786; 174 U. S. 99; 43 E. Ed. 909; 177 U. S. 584; 44 E. Ed. 897; 184 U. S. 539; 46 E. Ed. 670.</p> <p>submit: A demurrer admits facts but not construction of statutes or conclusions of law or fact: 104 S. C. 268. The act in question is an exercise of the police power: 21 U. S. L. Ed. 161; U. S. 646; 222 U. S. 225; 6 S. C. 6; 143 U. S. 517; 136 Mass. 239; 53 L. Ed. 319; 31 E. Ed. 205; 34 L. Ed. 455; 61 E. Ed. 1336; 56 E. Ed. 1230; 17 L. R. A. 388; 58 L. Ed. 387; 200 U. S. 592; 148 Fed. 523; 177 U. S. 595; 163 U. S. 299; 245 U. S. 60; 53 S. C. 259; 2 Speer 761. The presumption in favor of the constitutionality of legislative enactments exists until the constitutional inhibition is clearly shown: 101 S. C. 312; 89 S. C. 128. The title to all wild birds is in the State, and it follozvs that the legislature has the right 'to place a license tax upon landowners in this State for the use of their property as game preserves for raising and protecting game: Vol. XI of the Code of Laws of 1912 (Crim. Code), sec. 715. As to the charge that the act under attack is special legislation in violation of article I, sec. 24, subdivisions 6 and 9 of the Constitution of 1895: 58 S. C. 110; 60 S. C. 504; 66 S. C. 221; 64 S. C. 194; 17 E. R. A. 385; 109 S. C. 1; 95 S. E. 121; 85 S. C. 186; 99 S. C. 379.</p>

<p>Before Memminger, Richland, Spring term, 1918.</p> <p>Action by Frederick W. Germany against John W. Kelley. Judgment for plaintiff, and defendant appeals.</p> <p>cites : As to the motion for a directed verdict: Modern American Raw, vol. X,.p. 183; 96 S. C. 153. As to a request to charge invading the province of the jury: 99 S. C. 432. As to charge assuming a disputed fact: 89 S. C. 502; 96 S. C. 74; 99 S. C. 201; 74 W. Va. 1. As to charge on adverse possession: 95 S. C. 120; 95 S. C. 152. As to charge rendering an opinion on the facts: 1001 S. C. 33. As to claim of a grantee of land, zcho entered into' possession of the land as marked on the ground, and founded on color of title, consisting of a deed and plat: Code of Procedure of 1912, secs. 127-128; 83 S. C. 191. As to the effect of payment of taxes for the statutory period: 95 S. C. 245. As to adverse possession: 91 S. C. 300; 95 S. C. 120; 98 S. C. 289; 95 S. C. 245; Code of 1912, secs. 127-130; 86 S. C. 461. Possession of any part under a zvritten instrument or decree zjuill be possession of the whole: 82 S. C. 215. As to adverse possession by defendant: 78 S. C. 513; 87 S. C. 577; 860 S. C. 358; 79 S. C. 438; 82 S. C. 359; 87 S. C. 166; 86 S. C. 461; 86 S. C. 483; 87 S. C. 388; 78 S. C. 513; 82 S. C. 358; 86 S. C. 285; 78 S. C. 23; 82 S. C. 534. A nonsuit cannot be .granted if there is any competent evidence to go to the-fury: 90 S. C. 384; 92 S. C. 33; 92 S. C. 528; 95 S. C. 120. As to the effect of the admission of incompetent evidence for plaintiff: 93 S. C. 538. Defendant can hold the line marked out: Harper 232; 1st Cyc. 1124. As to questions for jury to determine: 98 S. C. 42; 95 S- C. 302; 96 S. C. 153; 96 S. C. 358; 97 S. C. 331; 97 S. C. 403; 95 S. C. 428. If there is any evidence in favor of a party, the Judge cannot direct a verdict against him: 98 S. C. 279; 100 S. C. 107. The Circuit Judge cannot pass upon the credibility of ^witnesses: 96 S. C. 398. Where the testimony is conflicting the question is for the jury: 101 S. C. 249; 91 S. C. 439; 101 S. C. 433; 102 S. C. 433; 104 S. C. 16; 99 S. C. 421; 106 S. C. 123; 103 S. C. 1; 104 S. C. 63; 104 S. C. 214; 108 S. C. 92. It is the policy of the law to hear cases fully on their merits and not dismiss them unheard: 93 S. C. 358. Where testimony containing new matter is introduced by the plaintiff after the defendant has closed, failure to allow defendant to contradict or explain it is rez>ersible error: 104 S. C. 116. To maintain an action of quare clausum fregit, the plaintiff must prove that he was in possession, actual or constructive, when the trespass was committed, and possession is a question of fact for the jury: 105 S. C. 329. Where the anszver does not contain allegations sufficient to constitute a defense, the proper remedy is by demurrer and not by a motion for direction of a verdict: 102 S. C. 77. The Court must charge the law and allow the jury to apply it according to the facts as they find them: 102 S. C. 77.</p> <p>submit: If he had the legal title, he zvas presumed to be possessed of the land within the ten years, and it was necessary to rebut this presumption by proof of continuous adverse possession of some other person for ten years: 71 S. C. 330; Code of Procedure (1912), sec. 126. As to the actual possession of part of a tract of land under a deed, and the extension of possession to the boundaries without regard to the quantity actually occupied: Code of Procedure 1912, sec. 128; 26 S. C. 219; 25 S. C. 181; 3 Strob. 498; 2 Strob. 24; 2 Speer 450; 1 N. & M. 369; 3 Brev. 153; Cyc. 1126. Defendant’s evidence failed to establish his allegation that his claim to the area in dispute was founded upon a written instrument: 13 Cyc., p. 633-4; 8 Rich. (42 S. C. D.) 315. Defendant has never protected the land by a substantial enclosure, nor cultivated it: Code of. Procedure (1912), sec. 130. Defendants acts were mere occasional trespasses, and could not under any circumstances ripen into title: 4 Rich. 68; 53 Am. Dec. 715; 133 111. 657; 23 N. E. 425; 24 N. E. 674; 62 N. H. 400; 25 N. J. D. 1; 55 Pa. St. 172; 1 Cyc. 990; Dudley (S. C.) 177; 2 Mott & McC. 343 ; 10 Am. Dec. 609; 1 Cyc. 991-992; McMull. 354; 2 Rich. 627. The possession must be actual, physical, exclusive, hostile and continued during the time necessary to create the bar tinder a statute of limitation: 1 Cyc. 981</p>

Before Wi-iarey, County Judge, Richland, November term, 1917. Action by George W. Efftison, as guardian ad litem, against the Southern Railway Company.

Before Wilson, J., Greenville, Spring term, 1918. Action by Mary McPhail Allen against George Brownlee and another. Decree for plaintiff, and defendant named appeals. The following is the item of the will referred to in the opinion: “Item 5.

•Before Shipp, J., York, Fall term, 1917. Action by D. J. Cline against the Southern Railway Company and another. A demurrer to the complaint was sustained in part and overruled in part, and both plaintiff and defendants appeal. The following is the amended complaint: For a first cause of action: (1) Paragraphs 1 and 2 allege the incorporation of the defendants.

Before SeasE, J., Spartanburg, - term, -. Action by J. W. S. Pigler, as executor of the will of W. H. Pigler, deceased, against G. W. Pigler and others. Erorn 'an adverse judgment, plaintiff appeals.

Before Rice, J., Saluda, Rail term, 1917. Action by L. A. Whittle and another against the Miller Lightning Rod Company and another. Demurrer sustained to complaint, and plaintiffs appeal. submit: That the complaint states a cause of action ex delicto, and is not subject to demurrer, because the contract between the parties was set out therein: Vol. IV, 915, No. 1; 167 Ind. 491; Ency. of Pleading and Practice, Vol. I, pp. 657-660; 79 S. E. 41; 12 Ga.

Before Memmingrr, J., Spring term, 1917. Action by F. M. Eargle, as administratrix, etc., against the Sumter Lighting Company. Judgment for defendant upon a directed verdict, and plaintiff appeals. cite: As to the lazo in regard to granting nonsuits: 81 S. C. 456; 86 S. C. 300; 88 S. C. 193; 95 S. C^XÍS-, 97 S. C. 331; 98 S. C. 348; 98 S. C. 125.

Before Spain, J., Greenville, Fall term, 1917. Action by Jesse Tate against R. F. Fenhardt and others. Judgment for plaintiffs, and defendants appeal. submit: A right of action for usurious penalty does not survive against the estate of the lender: 58 S. C. 240 ; 62 S. C. 165; vol. I of the Code, sections 3963, 2520 and 2519.