Volume 111 — South Carolina Reports

Before Memminger, J., Marlboro, Fall term, 1917. Action by L. D. Newton against Luther Bennett. Judgment of magistrate’s Court for plaintiff reversed by Circuit Court, and plaintiff appeals. submit: The plaintiff is not unmindful of the fact that this Court has held that an order reversing the judgment of a magistrate and ordering a new trial because of error of finding of fact is not appealable: 73 S. C. 71; 83 S. C. 33; 91 S C. 5; 91 S. C. 337; 103 S. C. 223; 77 S. C. 319.

<p>Before Smith, J., Richland, Summer term, 1917.</p> <p>Action by Vashti Triplett against the City of Columbia. Judgment for defendant, and plaintiff appeals.</p> <p>Order of Circuit Court, sustaining demurrer to complaint:</p> <p>Omitting the merely formal parts of the complaint, the plaintiff in this cause alleges, substantially, that for some time prior to the 1st day of June, 1916, the defendant, through the neglect and mismanagement of its agents and employees, permitted a large pool of stagnant water, “about twenty-five feet long by fifteen feet wide, and varying at different times from a foot to four feet in depth,” containing “large quantities of trash, refuse and decaying matter,” to remain in and upon Pulaski street, a public highway within the corporate limits of the said city of Columbia; that the plaintiff, “who resided near to the pool or puddle above referred to,” without any negligence on her part or in any way negligently contributing thereto, “was caused to contract colitis on or about the 1st day of June, 1916, and was thereby made sick and ill; and to continue sick and ill for a long period of time, and be placed in danger of death, and to suffer great pain, misery, and discomfort,” to her great damage, and that such injuries and damage were due to the neglect and mismanagement of the defendant in the particulars mentioned.</p> <p>The cause was heard by the Court on a motion to dismiss the complaint (section 198 of the Code of Civil Procedure), and the sole question presented therein for the determination of the Court is whether a municipal corporation is liable, under the provisions of section 3053 of the Civil Code 1912, for damages under the facts set forth in the complaint, which are admitted to be true for the purpose of this inquiry. Tuit v. Railway, 28 S. C. 397, 5 S. E. 831.</p> <p>It is the settled law of this State that a municipal corporation vested with certain powers under the Constitution and' laws of the State and chargeable with the duty of keeping the streets or public highways within its corporate limits in proper repair, is not liable in a civil action for damages for injuries to the person or property sustained in consequence of a violation of such duty, in the absence of a statute imposing such liability, and a substantial compliance with the requirements and conditions upon which such liability is predicated.</p> <p>Such a liability, howevér, has been created in this State, under the conditions and limitations therein imposed, by a legislative enactment (21 Stat. 91) now appearing as section 3053 of the Code of 1912, and which is as follows:</p> <p>“Any person who shall receive bodily injury, or damages in his person or property, through a defect in any street, causeway, bridge or public way, or by reason of defect or mismanagement of anything under control of the corporation within the limits of any town or city, may recover, in an action against the same, the amount of actual damages sustained by him by reason thereof. If any such defect in a street, causeway or bridge existed before such injury or damage occurred, such damage shall not be recovered by the person so injured if his load exceed the ordinary weight: Provided, The said corporation shall not be liable unless such defect was occasioned by its neglect or mismanagement: Provided, further, Such person has not in any way brought about any such injury or damage by his or her own negligent act or negligently contributed thereto.”</p> <p>Construing the provisions of this act, and those of a similar act, establishing the liability of the county for injuries to the person and property for defects in the public highways and bridges under its control, the Court at an early period declared the ground upon which such liability rested. Acker v. County of Anderson, 20 S. C. 495; Brown v. Laurens County, 38 S. C. 282, 17 S. E. 21; Mason v. County of Spartanburg, 40 S. C. 390, 19 S. E. 15, 42 Am. St. Rep. 887; Dunn v. Barnwell, 43 S. C. 398; 21 S. E. 315, 49 Am. St. Rep. 843; Barksdale v. Laurens, 58 S. C. 413, 36 S. E. 661; Hutchison v. Summerville, 66 S. C. 448, 45 S. E. 8; Bryant v. Orangeburg, 70 S. C. 137, 49 S. E. 229. In the case of Dtmn v. Barnwell, supra, Mr. Chief Justice Mclver, delivering the opinion of the Court, in his usual clear and forceful statement, does not leave the slightest doubt that liability under this statute is limited solely to such injuries to the person and property as are due to “a defect in any street, causeway, bridge or public way,” and that the terms “neglect” and “mismanagement” are therein used in connection with keeping the streets, etc., in proper repair. That such is the unmistakable conclusion of the Court, it is only necessary to refer to the language of the learned Chief Justice (43 S. C., at page 401, 21 S. E., at page 316, 49 Am. St. Rep. 843), as follows: “It is apparent from the title of this act, as well as from the terms used in the body of the act, that the sole purpose was to give a person who had .sustained an injury by reason of a defect in a street a right of action to recover damages for such injury. The title of the act is as follows: ‘An act providing for a right of action against a municipal corporation for damages sustained by reason of defects in the repair of streets, sidewalks and bridges, within the limits of said municipal corporation,’ and it is manifest that the purpose thus declared in the title was adhered to in the body of the act, especially from the language used in the proviso above set out, where it is declared that the corporation should not be liable, ‘unless said defect was occasioned by its neglect or mismanagementindicating very clearly that the term ‘mismanagement,’ as used in a previous part of the act, meant mismanagement in making repairs on the streets, so that the corporation should be held liable not only for neglect in making the repairs on the streets, but also for mismanagement of anything under the control of the corporation in making such repairs. There is nothing whatever in the act indicating an intention on the part of the legislature to make a municipal corporation liable for any other nonfeasance or misfeasance on its part, except such as was connected, with the keeping of the streets, etc., in proper and safe repair.”</p> <p>This doctrine, without the slightest qualification, was recognized and applied in several of_ the subsequent cases (.Barksdale v. Laurens, supra; Hutchison v. Summerville, supra; Bryant v. Orangeburg, supra), and not until the decision of the Co„urt in the case of Irvine v. Greenwood, 89 S. C. 511, 72 S. E. 228, 36 L. R. A. (N. S.) 363, could any question with regard to a modification thereof have been suggested with any degree of plausibility. ■ And it is plain to the Court that an examination of the latter case will disclose no intention of the Court whatever to abandon the basis of liability so strongly stated in the case of Dunn v. Barn-well, but merely to define, more clearly and definitely, as was made necessary by the facts of that case, the motive and extent of. the duty imposed “to keep a street in repair,” for the violation of which the act established liability. This distinction is clearly recognized and stated by Mr. Justice Woods in an exceedingly able and elaborate opinion in the use of the following language (89 S. C., at pages 519, 520, 72 S. E. 228, 231, 36 R. R. A. (N. S.) 363 :</p> <p>“In the case of Dunn v. Barmvell, 43 S. C. 398, 21 S. E. 315 (49 Am. St. Rep. 843), the Court, construing the statute in the light of its title, held that the liability created by it was limited to misfeasance or nonfeasance connected with the keeping ‘of any street, causeway, bridge or public Avay’ in proper repair. The construction has been followed in cases arising since the statute was incorporated in the Civil Code. Hutchison v. Summerville, 66 S. C. 448, 45 S. E. 8; Bryant v. Orangeburg, 70 S. C. 142, 49 S. E. 229.”</p> <p>“But we are unable to give the duty of keeping streets in repair the narrow meaning contended for by respondents. To keep a street in repair means to keep it in such physical condition that it will be reasonably safe for street purposes. It is not enough that its surface should be safe. A street is not in repair when poles or wires or other structures are so placed in or over it as to be dangerous to those making a proper use of the street. In Duncan v. Greenville, 71 S. C. 170, 50 S. E. 675, it was held that a wagon left on the public road so as to put travelers in peril must be regarded, under the statute, as a failure to keep the road in repair. In this case the pole was placed in the street as a fixture and became a part of the street, which it became the duty of the municipal authorities to keep safe.”</p> <p>Applying the principle thus declared, the defendant was held liable under the act for an injury to the plaintiff, a boy 17 years of age, caused by coming in contact'with a chain hanging by the side of an electric light pole which conveyed a fatal charge of electricity.</p> <p>In the case of Stone v. City of Florence, 94 S. C. 375, 78 S. E. 23, the defendant was held liable under the statute for an injury to a child of tender years by falling into an unguarded ditch, in which the defendant had burnt some trash and had left a smouldering fire, regardless of whether the ditch Avas in the street or on the extreme edge thereof. The most casual consideration of this case obviously sustains the rule declared in the case of Irvine v. Greenivood. In stating the conclusions of the Court, Mr. Justice Hydrick, 94 S. C., at pages 377, 378, 78 S. E., at pages 22, 24, says : “In Irvine 7/. Greenwood, 89 S. C. 511 (72 S. E. 228, 36 R. R. A. (N. $.) 363), the neglect or mismanagement complained of consisted in leaving an electric light pole in the street from which an iron chain connected with the wire hung so low that plaintiff caught it and received a deadly charge of electricity. It was argued for the city that this was not such a defect in the repair of the street as was contemplated by the statute. In rejecting that contention, the Court said: ‘But we are unable to give the duty of keeping streets in repair the narrow meaning contended for by respondents. To keep a street in repair means to keep it in such physical condition that it will be reasonably safe for street purposes. It is not enough that its surface should be safe; a street is not in repair when poles or wires or other structures are so placed in or over it as to be dangerous to those making a proper use of the street. In Duncan v. Greenville, 71 S. C. 170, 50 S. E. 675, it was held that a wagon left on the public road so as to put travelers in peril must be regarded under the statute as a failure to keep the road in repair. In this case the pole was placed in the street as a fixture and became a part of the street, which it became the duty of the municipal authorities to keep safe.’ In Hutchison v. Summerville, 66 S. C. 442, 45 S. E. 8, this Court held that the corporation was liable for an injury to plaintiff resulting from negligence in leaving a ditch at the end of a sidewalk unguarded, so that plaintiff fell into it. Hence, if a ditch or drain along the edge of a street or highway is negligently left unguarded, and a person lawfully using the highway is injured thereby, the corporation is liable. It is not material, therefore, whether the ditch into which the plaintiff fell was wholly within the street, or merely along the extreme eastern edge of it; for, in either case, defendant is liable if, under all the circumstances, it was negligence to leave it unguarded. Negligence in the repair of a street may consist in omission or no’naction.”</p> <p>The application of the doctrine declared in the case of Irvine v. Greenwood, supra, and distinctly recognized in the case of Slone v. City of Florence, supra, quite naturally and logically led to the enforcement of liability against a municipality for an injury caused by being carelessly and negligently run over on a public street by a fire engine under the control of its employees (Creps v. City of Columbia, 104 S. C. 371, 89 S. E. 316), and by an automobile negligently operated upon its streets while engaged in a speed contest with its knowledge and consent. Burnett v. City of Green-ville, 106 S. C. 255, 91 S. E. 203; Sexton v. City of Rock Hill, 107 S. C. 505, 93 S. E. 180. In the latter cases the Court strictly adhered to the doctrine that the acts complained of rendered the street unsafe for street -purposes, and liability was, therefore, ultimately based upon the ground stated in the case of Irvine v. Greenwood.</p> <p>A careful examination of the cases will show beyond controversy that, in every instance in which it has been sought to hold a municipality liable for personal injuries under the statute, its liability has been limited to some act of nonfeasance or misfeasance connected with a failure to keep its “streets, etc., in proper and safe repair” (Dunn v. Barnwell, supra) ; or, to put it in different language, for some act of omission or commission which rendered the streets, etc., not “reasonably safe” for “prime street purposes” (Burnett v. City of Greenville, supra) ; that a discharge of the duty to keep “in proper and safe repair” imposes the duty to keep “reasonably safe” for “prime street purposes,” and that the plaintiff in such cases sustained a “bodily” injury as the direct and proximate result of the delict while engaged in the use of the street for legitimate purposes. The case of Irvine v. Greenwood, supra, is not in conflict with the latter view as the Court in that case expressly refused to sanction the doctrine (89 S. C., p. 522, 72 S. E. 232, 36 E. R. A. (N. S.) 363), “that playing by boys and girls while they are still of the age of youthful sportiveness is an illegitimate use of a street, not to be anticipated by the authorities whose duty it is to keep highways in a reasonably safe condition.” (Italics added.)</p> <p>Naturally, the next inquiry is to determine whether the requirements of the statute as determined by the cases have been fully met imthe allegation of this complaint. •</p> <p>It will be observed that there is no allegation which either directly or inferentially charges that the “pool or puddle” of water rendered the street unsafe for “street purposes.” There is no allegation that the plaintiff sustained any “bodily injury” as the direct and proximate cause thereof, while engaged in the use of the street for a legitimate purpose. On the contrary, the allegation setting forth the character of the injury complained of — the contraction of disease— and that the plaintiff “resided near to the pool or puddle,’'’ would clearly indicate that the only unsafety alleged was to the health of one who “resided near,” and, as a matter of fact, may never have used the street at all, rather than an allegation of “bodily injury” to one while engaged in the legitimate use thereof.</p> <p>The Court is clearly of the opinion that it was never the purpose of the legislature to extend the liability of a municipal corporation to a case of this nature.</p> <p>submit: That the fads stated in the complaint constitute, under the provisions of section 3033 of the Civil Code of 1912, a cause of action against the city of Columbia for damages: Civil Code of 1912, sec. 3053; 36 S.'E. 561; 88 S. E. 469; 77 S. C. 281; 57 S. E. 857; McQuillian on Municipal Corporations (6th Ed.), sec. 2604, sec. 2610, subdiv. 1, note 25, also sec. 2622; 20 S. C. 213; 21 S. E. 540; 96 S. C. 24; 79 S. E. 630; 89 S. C. 511; 72 S. E. 228; Civil Code 1912, vol. I, sec. 3053; 54 S. C. —; 32 S. C. 388; 40 S. C. 327; 24 S. E. 337; 88 S. E. 464; 71 S. E. 449; 13 Pick (Mass.) 130; 23 Am. Dec. 662.</p> <p>submits: The case at bar is different from that of Mayrant v. City of Columbia, 77 S. C. 281. The complaint alleges a public nuisance. This being true, if the action were against a private citisen or corporation, it could not be maintained: 102 S. C. 442. If a city were to fill an excavation in the highway with rubbish and refuse matter, and thereby create a nuisance, it might be liable for injury to adjacent property, but it would not be liable for sickness among the occupants thereof: 162 N. C. 469; R. R. A. 1915c, 751; 150 N. C. 718; 22 R. R. A. (N. S.) 940.</p>

Before Whaley, County Judge. Richland, - term, 1917. Action by U. B. Jeff coat against Atlantic Coast Line Railroad Company. Judgment of nonsuit in the magistrate Court was sustained by the County Court, and plaintiff appeals. The facts were agreed upon in the magistrate’s Court and the case was heard by the County Court upon the agreed statement of facts in the magistrate’s Court, and upon the exceptions to the magistrate’s judgment.

<p>Before Shipp, J., Union, Spring term, 1917.</p> <p>Action by Lucy Frances Hazelwood against Calvin Mayes and others. Judgment for plaintiff, and defendants appeal.</p> <p>Following are the exceptions for purpose of appeal:</p> <p>(1) Because his Honor erred in allowing the witnesses, T. H. Hazelwood and T. I. Hazelwood, to testify as to who H. H. Hazelwood was and when he died; the error being, it is respectfully submitted, that this is hearsay evidence.</p> <p>(2) Because his Honor erred in allowing the witness, T. G. Hazelwood, to testify as to what transactions he had as agent for his mother in regard to the dower in the land in question, what he said to Mr. Little, and what he did, what he said to Judge Joe Gentry and to other parties, in that it is respectfully submitted that the defendants had no notice of same, were not parties to said transactions and notice; and it is further submitted that this is error, in that it is incompetent under section 438 of the Code, and furthermore under the statute of frauds.</p> <p>(3) Because his Honor erred, it is respectfully submitted, in permitting the witness, G. B. Hazelwood, to testify as to conversations had with 'third parties in regard to the setting off of the dower and transactions concerning same, together with conversations; the error being, it is respectfully submitted: (a) In that the defendants had no notice of said transaction of conversations and were not parties to same. (b) In that it is incompetent under section 438 of the Code. (c) In that it is incompetent under the statute of frauds.</p> <p>(4) Because his Honor erred, it is respectfully submitted, in allowing the witnesses, J. C. White and Arthur Lancaster, to testify as to conversations in regard to the arbitration and allotment of dower, and what they did and said to third parties; the error being, it is respectfully submitted: (a) In that these are transactions and conversations of which the defendants had no notice or knowledge, and were not parties to same, (b) In that it is respectfully submitted that said evidence is incompetent under section 438 of the Code, (c) In that it is incompetent under the statute of frauds.</p> <p>(5 ) Because his Honor erred, it is respectfully submitted, in overruling motion of appellants for a nonsuit: (a) In that there is no testimony to show that the appellants had any notice as to any claim of right of dower of the plaintiff to the land in question, (b) In that the said dower was not recorded in the clerk of the Court’s office for Union county, in the State of South Carolina, and there is nothing to show that the appellants had any notice whatever of the said right of dower of the plaintiff, (c) In that there is no testimony from which a reasonable 'inference can be drawn that the appellants lived in such place ‘as would give them notice.</p> <p>(6) Because his Honor erred, it is respectfully submitted, in charging the jury and holding as a matter of law that the plaintiff took such steps in law as to have her dower measured within the ten years, whereas, his Honor should have held that the plaintiff had not taken such steps in law in regard to the allotment of dower as would entitle plaintiff to recover against the appellant as innocent purchasers for value without notice, in that the plaintiff does not bring her action within the ten years after the death of the husband.</p> <p>(7) Because his Honor erred, it is respectfully submitted, in that he charged the jury that there is no dispute about it being set off, they would have to find that it was actually set off to her; whereas, it is respectfully submitted that his Honor should have left the credibility of said testimony to the jury.</p> <p>(8) Because his Honor erred in charging the jury that “the question for the jury is how much damages; that is the only question I see open for the jury; find the land for the plaintiff, with such damages as she is entitled to; it will be my duty to instruct them about the measure of damages”— the error being that the plaintiff was not entitled to any damages, in that the appellants were innocent purchasers for value without notice as to dower rights.</p> <p>(9) Because it is respectfully submitted that his Honor erred in charging the jury, “I think as a matter of law the plaintiff is entitled to recover possession of this land;” and further charging the jury, “She will be entitled to such damages as she may sustain by reason of the defendants having deprived her of the possession”- — -it being respectfully submitted that the appellants had no notice of any claim of dower on the part of the plaintiff to the land in question, and that the plaintiff .had no record made of same after the expiration of ten years; and the appellants having purchased the land after ten years as innocent purchasers for value without notice, it is respectfully submitted that his Honor erred in holding as a matter of lpw that the plaintiff ivas entitled to recover.</p> <p>(10) It is respectfully submitted that his Honor erred in charging the jury that the plaintiff was entitled to recover against the appellants damages by reason of having detained and worked the land in question, in that the appellants purchased the land ten years after the dower rights accrued, for a valuable consideration, without any notice of any dower right or claim on the part of the plaintiff.</p> <p>(11) In that it is respectfully submitted that his Honor erred in signing and passing an order at chambers revoking a former order and granting a new trial, in that his Honor had no jurisdiction to pass the order bearing date February 6, 1917, at Spartanburg, S.' C., at chambers.</p> <p>(12) Because his Honor erred, it is respectfully submitted, in that his Honor held that a reference would be useless to the defendants, in that “the plea of purchase for value without notice can never prevail against the legal title, unless it can be brought strictly under the recording acts, and in the latter case it would not be an equitable issue, but strictly one at law; the verdict of the jury in this case settled the issue at law, and there is now no issue to be brought as the plea of purchasers for value without notice, as an equitable plea, can never prevail against the legal title; the order of reference heretofore made is, therefore, set aside and revoked” — the error being, it is respectfully submitted, to wit: (a) In that the appellants, have a right as a matter of law and legal defense to set up as a bar to this action that they are innocent purchasers for value without notice, in that the appellants purchased the land in question more than ten years after the dower right accrued to the plaintiff, (b) In that it is respectfully submitted that when a dower right accrues for more than ten years, and there is a purchase of the premises without any notice, either constructive or actual, or otherwise, to the purchaser who obtains the title, then it is respectfully submitted that this constitutes a legal and valid defense and bar to the action, (c) In that the plaintiff’s failure to record her dower right and title to dower in the clerk of the Court’s office within ten years after it accrued, and her further failure to have some constructive or actual notice of her right to dower or authority over the place in existence after the ten-year period of accrual of the right of dower brought to the knowledge of appellants.</p> <p>cites. As to the plea of bona fide purchaser without notice and the plea of the statute of limitations: 28 S. C. 582-583; 17 S. C. 563 '; Code of 1912, vol. I, from p. 955 down to 963; Code of Procedure, sec. 125; 1 Brev. 76; 3 Brev. 246; 1 N. & McC. 85; Rice’s Eq. 158; McM. Eq. 35; 2 Rich. Eq. 1. The equitable issue should have been submitted to the master: 12 S. C. 97; 21 S. C. 392; 105 S. C. 375; 96 S. E. 740. His Honor had no right at chambers to revoke the order of reference: 108 S. C, pp. 61-2-3.</p> <p>cite: As to hearsay evidence being competent to establish facts of family history: 4 Encyc. Evidence 50; Greenleaf on Evidence, sec. 278; 89 S. C. 490. As to the competency of the testimony of the witness, T. G. Hazelwood: 81 S. C. 456; 100 S. C. 375; 86 S. C. 358; 92 S. C. 180; 34 S. C. 464. Section .?.gc of this Code not applicable. The assignment of dower may be parol: 10 A. & E. Law, 2d Ed., pp. 171-172. As to constructive notice of plaintiff’s claim of dovcer: 25 S. C. 339; 5 Rich. 525; 59 S. C. 222; 2 M. Con. Rep. 59; 1 Bail. 77; 2 Bail. 319; 3 Rich. 66; 5 Rich. 525; 22 S. C. 45; 24 S. C. 215; 20 S. C. 550; 22 S. C. 446; A. & E. Encyc. Law, 2d Ed., vol. X, pp. 151-152; 3 Dána (Ky.) 371: vol. I, Civ. Code 1912, sec. 3542. The defense of purchaser for value without notice has no application here: 28 S. C. 58; 28 S. C. 580; 67 S. C. 389; 105 S. C. 329. As to his Honor’s order at chambers, revoking a former order referring the issue of innocent purchaser for value without notice: Code of Procedure, sec. 375; 69 S. C. 55; 7 S. C. 71; 75 S. C. 318; 43 S. C. 314; 64 S. C. 291.</p>

<p>1. Cabbiehs — Cabbiage of Goods — Acceptance of Receipt — Effect.— Where jeweler, returning diamonds to company which had submitted them for inspection, filled in receipt of express company, excepting rate and agent’s signature, agent inserting rate, signing receipt, delivering it, and receiving package, acceptance of receipt by jeweler . made its provisions binding upon him. •</p> <p>2. Cabbiehs — Cabbiage . of Goods — Limiting Liability. — Where express company’s receipt stated that, if value was more than $50, etc., it must be stated in writing, and excess charges paid, contract for shipment, made by acceptance of receipt, was for limited liability within law, and recovery against company must be limited.</p> <p>3. Evidence — Pbesumption—Compliance With Law.- — -In action against express company for loss of diamonds, it must be presumed company was conducting its business according to acts of Congress regulating interstate commerce.</p> <p>‘4. Evidence — Pbesumption—Cebtificate of Official. — In action against express company for loss of diamonds, in absence of contrary evidence, Court must presume from certificate of secretary of Interstate Commerce Commission that company’s tariff was legally in effect.</p> <p>■5. Cabbiehs — Caehiage of Goods — Liability fob Loss — Inteestate Commebce — Statute.—Under Act Congress March 4, 1915, where diamonds were shipped by express, wrapped to conceal them from view, and carrier was not notified of character of goods, it was not liable for loss beyond amount stated as value by shipper, by acceptance of a receipt limiting value and by obtaining a corresponding rate.</p>

Before Smith, J., Richland, Summer term, 1917. Action by Parham - Thomas - McSwain, Incorporated, against the Atlantic Life Insurance Company. From a judgment for plaintiff, defendant appeals. submit: The verdict and judgment appealed from must be tested by the charge so far as concerns the question whether there was any evidence to support the verdict: 16 S. C. 1. There was no evidence of fraud: (6 Otto) 96 U. S. 544; 24 R. Ed. 674; 81 S. C. 152-159; 97 S. C. 128.

Before Spain, J., Marlboro, Summer term, 1917. Action by A. S. Jackson, for specific performance of a contract, against A. E. Rogers and W. E. Rogers. From decree for plaintiff, defendants appeal. The contract reads as follows: “Rent Contract.

Before Memmingrr, J., Richland, Spring term, 1918. ' J. B. Hanahan and K. C. Hardin were convicted of manslaughter and they appeal. Held: gentlemen, in that case, and it is undoubtedly plain for any one, that it could not be said that the failure to have the light could be the proximate cause of the man’s injury, because the object of the light .was to give notice of the approach of the train, and that object had been accomplished, as the man had seen it approaching;…

<p>1. Appeal and Error — Invited Error. — Defendant city, which, on application for order requiring city council to appoint commissioners to assess damages alleged to have been done to plaintiff’s lot by raising grade of abutting street, made question whether plaintiff’s lot was damaged an issue by its answer, cannot complain of Court finding that plaintiff’s lot was damaged; it having invited such finding.</p> <p>2. Appeal and Error — Finding—Prejudicial Error. — On application for order requiring city council to appoint commissioners to assess damages alleged to have been done to plaintiff’s lot by raising grade of abutting street, a Court finding that plaintiff’s lot was damaged, being a prima facie finding, was without prejudice to the city.</p> <p>3. Municipal Corporations ■— Changing Grade op Street — Liability for Damages. — In the absence of statute, a city is not liable for damages to property due to change of grade of abutting street.</p> <p>4 Municipal Corporations — Changing Grade op Street — Liability por Damages. — Under Civ. Code 1912, sec. 2926, as to cities having authority to lay out, open, close, and widen streets, or otherwise alter those in use, provided that they shall first pay damages, a city is liable for damages resulting to abutting property from change of grade of street; the words “otherwise alter” not referring only to alteration of the same general nature as those described by the words “lay out,” “open,” “close,” and “widen.”</p> <p>5. Statutes' — Construction—General and Specific Words. — The rule of ejusdem generis cannot be invoked in the construction of Civ. Code 1912, sec. 2926, as to cities having authority to lay out, open, close, and widen streets, or otherwise alter those in use, the specific words “lay out,” “open,” “close,” and “widen” not all being of the same general nature.</p>

<p>1. Action — Contract or Tort. — Allegations that plaintiff and defendant entered into contract, and that defendant committed breach, from which plaintiff sustained damages, stated cause of action arising ex contractu, even though allegations were also appropriate to action of tort based on fraud.</p> <p>2. Appeal and Error — Matters Reviewable — Saving Objections.— Where complaint stated causes of action both ex contractu and in tort, and defendant made no move to require a more definite complaint, nor to require plaintiff to elect, plaintiff cannot be confined to either on appeal on the question of sufficiency of the complaint.</p> <p>3. Compromise and Settlement — Performance or Breach. — Under compromise, where defendants were to pay to plaintiffs a certain amount, to be deposited in a certain bank, the defendants were guilty of a breach of contract, where they deposited the money, but immediately garnisheed.</p>

<p>Before DeV ore, J., Spring term, 1916.</p> <p>Action by R. E. Wheeler against S. M. Wheeler and others. From the judgment, plaintiff and the named defendant appeal.</p> <p>submits: That the words “bounded by Pudding Swamp ” mean the thread of the stream: 3d Kent’s Com. 428; citing 1 Sim & Stewart 190; 17 Pick. 41; 4 Rich. E. 84; 2 N. & McC. 99; 2 McM. 47; McM. Eq. 290; 27 S. C. 144; 43 Am. Dec. 672; Rand. 417, 420; 13 Allen (Mass.) 146, 154; 6 Conn. 471- 474; 128 Pa. 528, 532; 18 Atl. 390; 56 S. E. Rep. 136; 71 Fed. 526; -19 C. A. 99; 37 U. S. App. 539; Fed. Cas. No. 6, 169 (Pet. C. C. 64) ; 8 Cent. Dig. 533; 7 R. I. 411; 1 Cyc. 634. The deed and plat being repugnant, the deed governs: 5 Cyc. 914; 13 Cyc. 634; 52 Am. Dec. 482; 137 Ga. 308; 73 S. E. 640; 1 R. I 411; 63 S. W. (Ky.) 288; 77 S. E. 376; 42 S. C. 342; 20 S. E. 151; 35 S. C. Eq. (14 Rich. Eq.) 271; 1 Dev. on Deeds, sec. 213, et seq.; 82 Ark. 209; 101 S. W. 407; 12 D. R. A. (N. S.) 956, and note; 102 S. C. 242; 3 S. C. 251; Cruise’s Digest, tit, 32 Deed, c. 19, sec. 13; 52 Am. Dec. 484; 3 Am. Dec. 500. The construction of the deed and plat is for the Court: 82 S. C. 70; 8 Rich. D. 320; 4 Rich. L. 80; 46 S. C. 220; 59 S. C. 590; 24 S. C. 359; 11 Conn. .332; 29 Am. Dec. 299; 42 Conn. 269; 12 Allen (Mass.) 86; 73 S. E. 645 ;»15 S'. C. 32; 6 S. C. 353; McMull. 462; Greenl. Evd., S. C. 276, 277; 38 S. C. 420; 35 S. C. 127; Greenl. Evid. S. 275; 42 S. C. 8; 17 S. C. 480; Starkie on Evidence, vol. 75; 67 S. C. 331. Plaintiff being in possession does not have to rely on the strength of his own title, and unless the defendants set up affirmatively some title or possession in themselves the plaintiff should recover, even if without title: 31 S. C. 266; 101 S. C. 48; 103 S. C. 466; 8 Rich. Daw 315; 53 S. C. 92; 3 Strob. 474, 477-8; 8 Rich. Law 321; 22 S. C. 361.</p> <p>cite: As to refusal of motion to direct a verdict for plaintiff: 2 McMull. 346; 5 Cyc. 904. As to competency of parol testimony: 5 Cyc., p. 967; 77 S. C. 456-7, 480; 92 S. C. 65. As to the introduction in evidence of a drawing made at the time of deeds from the original source: 2 Hill 492; 14 S. C. 549; 16 S. C. 469; 25 S. C. 187; 42 S. C. 146; 94 S. C. 77; 78 S. C. 521; 87 S. C. 388. As to charge: 1 Rich. 135; 22 S. C. 507; 44 S. C. 548; 22 S. E. 724; 67 S. C. 18; 45 S. E. 113; 49 S. C. 1; 100 S. C. 144; 63 S. E. 1130; 62 S. E. 884 (N. C.); 64 S. E. 997; 16 Cyc. 926; A. & E. Ency. (1st Ed.), vol. II, p. 655. As to requiring R. B. Wheeler to testify to an agreement he had with purchasers to postpone payment for the timber sold on the lands in dispute: 98 S. C. 234. Color of title and claim to land need not be in writing, and can be shown by a line of stakes or the markings on trees: 2 Rich. 629.</p>

Before Shipp, J., Dillon, March term, 1917. Action by Martha R. Bethea against the Beaufort County Lumber Company. Judgment dismissing the complaint, and plaintiff appeals. The receipts referred to are as follows: “$84.00. November 4, 1912.

Before Bowman, J., Anderson, Spring term, 1918. Action by S. A. Haynes against M. A. Kay. Verdict for plaintiff, and from an order granting defendant’s motion for a new trial, plaintiff appeals. Order reversed, and cause remanded for judgment on the verdict. cites: As to respondent’s additional grounds to sustain the order granting a new trial: 103 S. C. 354; 103 S. C. 216; 51 S. C. 540; 68 S. C. 46; 100 S. C. 33.

Before Sease, J., Spartanburg, Fall term, 1916. Broadus Campbell was convicted of manslaughter, and he appeals. cite: As to the degree or quanity of force a person assaulted may use to prevent 'the assailant from taking his life, or inflicting serious bodily harm.upon him: 1 Bishop Crim. T., sec. 865; 13 Ohio C. C. N. 471.

Before DeVorE, J., Lexington, August, 1917. Actions by the Cayce Land Company and others against the Southern Railway Company, and by the same plaintiff against the same defendant and another.

Before Memminger, J., Marlboro, Kail term, 1917. Action by Harris P. Pearson against H. T. Easterling, A. G. Easterling and others. Judgment for plaintiff, and defendants named appeal. The following is a statement of the case: This action was commenced July 13, 1913, and has been in the Supreme Court twice heretofore and is reported in 104 S. C. 178, 88 S. E. 376; 107 S. C. 265, 92 S. E. 619.

Before Moore, J., Orangeburg, Fall term, 1917. Action by W. C. Fairey against William Haynes. From judgment for plaintiff, defendant appeals.

Before Seasií, J., Spartanburg, Spring term, 1917. Action by John H. Brown, as administrator of Fred. C Tuck, deceased, against the Southern Railway Company and others. From judgment for plaintiff, defendants appeal. cite: As to the rights of the defendant, city, to amend its answer: 96 S. C. 300; 42 N. E. 703; Dillon Mun. Corp., sec. 1037; 49 Atl. 257. As to the refusal of the motion for a severance: Code of Civ. Procedure, sec. 318.

<p>Attachment — Undertakings — Signing by Plaintiff. — The written undertaking required by the statute in attachment is insufficient when-not signed by the plaintiff, but only by another party as surety before issuance of warrant.</p>

Before PeuriFoy, J., Abbeville, Spring term, 1917. Action by J. W. Vermillion, as administrator of the estate of W. F. Vermillion, deceased, against the Woman’s College of Due West, S. C. From judgment for defendant, plaintiff appeals. Messrs. Cothran, Dean & Cothran submit : Jt is a primary duty resting upon the owner of the property who, for a consideration, invites another upon the-premises to see that they are reasonably safe: Cooley on Torts 604; 102 U. S. 577.

Before Wilson, J., Spartanburg, Fall term, 1915. Action by N. S. Trakas and others, partners trading as N. S. Trakas & Company, against M. V. Mitchell and others. From orders granting a temporary and a permanent injunction, the defendants appeal. submits: A defendant in possession cannot-he ousted by temporary injunction: 84 S. C. 39; 27 S. E. 408.

Before Wilson, J., Florence, Fall term, 1917. Action by Mrs. M. E. Willis against the Alcolu Railroad Company to recover possession of land. From a judgment on a verdict directed for defendant, plaintiff appeals. submits: That appellant should have been allowed to offer ezhdence tending to prove the facts and circumstances under which the defendant railroad company had acquired its rights of way over lands of appellant: 69 S., C. 481.

Before Smith, J., Greenville, Ball term, 1917. R. R. Quinn and others were convicted of unlawfully transporting liquor, and they appeal. The following are the exceptions: (1) That his Honor erred in refusing to direct a verdict of not guilty, when the undisputed testimony showed that the evidence upon which the defendants were arrested and convicted was obtained by an unlawful search of the persons and property of the defendants without due process of law.

<p>Before Shipp, J., Union, Fall term, 1917.</p> <p>Action by W. M. Gist and others against David C. Gist and others. Judgment for defendants, and plaintiffs appeal.</p> <p>cite: As to the proper construction of the will of Mary B. Gist: 28 A. & E. Law, p. 394; 86 Ga. 709; 5 Jones Eq. (N. C.) 344; 78 Am. Dec. 229. As to claim of adverse possession: 3 S. C. 34; 25 S. C. 519; 59 S. C. 440. As to respondents’ exceptions, which ask that the decree be sustained, upon the ground that the master improperly allowed appellants to amend complaint: 83 S. C. 321; 81 S. C. 5, 74; 74 S. C. 244; 1 Encyc. PI. & Prop. 564; 70 S. C. 550; 80 S. C. 1.</p> <p>Mr. Jones submits: The master had no power to grant the amendment to the supplemental complaint: Ct. C. Rule VII; Code of Procedure, sec. 446 ; 21 S. C. 226; 21 S. C. 221; 30 S. C. 564; 9 S. E. 684; 31 S. C. 199; 9 S. E. 814; 13 S. C. 21; 13 S. C. 397; 18 S. C. 310; 19 S. C. 567; 27 S. C. 1; 2 S. E. 702; 30 S. C. 564; 9 S. E. 684; 32 S. C. 117; 10 S. E. 822; 32 S. C. 142; 10 S. É. 932; 79 S. C. 272; 60S. E. 689; 62 S. E. 1113; 82 S. C. 1; 62 S. E. 1115; 51 Fed. 511; 49 S. C. 513; 18 S. C. 305; 24 S. C. 172; 31 S. C. 199. Was the trust executed when the oldest child became of age: 3 S. C. 99; 4 Strob. 66; 28 S. C. 131; Hill 413; 29 S. C. 139; 36 S. C. 399; 36 S' C. 354.</p> <p>submits : That the amendment allowed in this case does not come within the reason of the decision in Buist v. Williams: 83 S. C. 321.</p>

Before Shipp, J., Union, Ball term, 1917. Action by Inez Gist and others against W. H. Gist and others. Judgment for plaintiffs, and defendants appeal.

Before Mauldin, J., Fairfield, - term. Action by C. M. Free against the Parr Shoals Power Co. Verdict for plaintiff, and defendant appeals. Mr. Herbert submits: That the only damages for which defendant would have to answer would be damages affecting the .plaintiff specially and peculiarly, and not general damages: 54 S. C. 242; 32 S. E. 358; 46 S. C. 327.

<p>1. Commerce — Interstate Commerce — Sale op Intoxicating Liquor.— Sale of beer made during June and July, 1914, by shipping two carloads from Maryland to South Carolina pursuant to written order, was not within Cr. Code 1912, secs. 794, 829, having been made prior to adoption of act February 20, 1915 (29 St. at Large, p. 140), and hence within protection of Interstate Commerce Law which is paramount to State’s police power.</p> <p>2. Commerce — Interstate Commerce.- — The Interstate Commerce Law is paramount to the police power of the State.</p> <p>3. Commerce — “Interstate Commerce” — Sale of Goods. — The sale of a legitimate article of interstate commerce is as much a part of “interstate commerce” as its transportation or delivery.</p> <p>4. Intoxicating Liquors — Place op Sale — Interstate Shipment.— Where seller in Maryland pursuant to written order from buyer in South Carolina shipped latter two carloads of beer, the sale -took place before arrival of the beer at its destination and its delivery to buyer.</p> <p>5. Commerce — Interstate Commerce — Intoxicating Liquor — Unlawpul Purpose.- — -Where seller in Maryland shipped beer to buyer in South Carolina, the fact that latter purchased the beer for purposes forbidden by Cr. Code 1912, secs. 794, 829, did not destroy the interstate nature of the shipment.</p>

<p>Before SeasL, J., Sumter.</p> <p>Mandamus by Singleton Bradford against Thomas F. Richardson, Judge of probate of Sumter county. Judgment for petitioner, and respondent appeals.</p> <p>Statement. The appeal in the aforesaid proceeding and action brings up the question of the constitutionality of the amendatory Quart-a-Month Raw, passed at the 1918 session of the General Assembly, and approved on the 18th day of February thereof.</p> <p>submit: That the act is unconstitutional, in that the body thereof contains subjects not expressed in the title: Const, of 1895, art. Ill, sec. 17. No such criminal offense as the punishment of an officer, ivhether judicial or quasi judicial, for improper discretion exercised. by him: Throop on Public Officers, sec. 857; Bishop’s Criminal Raw, 7th Ed., sec. 460; Wharton’s Criminal Raw, 9th Ed., sec. 85. As to an act in its body enacting a different subject from that specified in the title: 16 S. C. 56; Cooley’s Constitutional Rimitations, 143v; 79 S. C. 96; 75 S. C. 425, et seq.; 80 S. C. 127; 68 S. C. 148; 51 S. C. 249; 91 S. C. 453; 92 S. C. 94; 63 S. C. —; 64' Am. State Reports, p. 72 (et seq.); see especially notes of Judge Freeman. The act is also unconstitutional, in that it attempts to enlarge the jurisdiction of the Court of probate, as fixed by the Constitution of i8pg: Constitution of 1895, judiciary article, number 5, sec. 19; Freeman on Judgments, sec. 531; Throop on Public Officers, sections 533-536; 17 A. & E., 2d Ed., p. 717; 37 Am. State Reports, p. 286; 516 S. C. 288; 52 S. C. 526; 70 S. C. 7; Constitution of 1868, article IV, sec. 20; Constitution of 1895, article V, sec. 19; 10 S. C. 348-354; 4 S. C. 167; 106 S. C. 71; Cooley on Constitutional Rimitations (■ — -th Ed.), p. 127; Constitution of 1895, judicial article I, sec. 19; 19 S. C. p. 350; 11 S. C. 335; 15 S. C. 595; Cooley on Constitutional Rimitations (7th Ed.) pp. 127 and 245; 85 S. E. 919; 2 McCord’s Raw, star page 400; 1 Bailey’s Raw 163; 1 Mill’s Constitutional Reports 268.</p>

Before Gary, J., Sumter, Spring term, 1918. Action by J. B. Osteen against Henry Lowry, resulting in judgment for plaintiff, defendant appealing to the Circuit Court, which set aside the judgment and dismissed the proceeding without prejudice, and plaintiff appeals.

<p>Before Peuriíoy, J., Charleston, Fall term, 1917.</p> <p>Emelio Ferri and Isaiah Murray were convicted, respectively, of buying and selling lint seed cotton during prohibited season in violation of act February 15, 1916, and they appeal.</p> <p>submit: Is this statute special, legislation and a denial of the eq%ial protection of the laws? 64 S. C. 194; 94 S. C. 444; 99 S. C. 377. Is the statute unconstitutional on other grounds? 84 S. C. 279; 106 S. C. 102; 80 S. C. 153; 244 U. S. 590; 211 U. S. 539; 245 U. S. 60; 42 S. C. 222; 123 U. S. 660; 18 S. C. 103; Corpus Juris, vol. XII, 945. Is the statute in question merely a regulation? 41 S. C. 244; 143 U. S. 517; 113 U. S. 27; 113 U. S. 703; 82 Fed. Rep. 623.</p> <p>Mr. Smythe submits: The statute is not special legislation: 64 S. C. 194; 12 Corpus Juris, p. 1134; 65 S. W. (Tenn.) 871; 56 S. W. 834; 156 N. W. 975. There is a reasonable basis for the classification created by this statute: 21 S. C. 292; 68 Ala. 58; 9 S. E. (S. C.) 338; 11 S. E. (S. C.) 545; 40 S. E. (S. C.) 970; 54 S. E. (S. C.) 970; 54 S. E. (S. C.) 363; 67 S. C. 1070; 76 S. E. (S. C.) Ill; 220 U. S. 61; 218 U. S. 36-52; 12 Corpus Juris 1129-1130.</p>

<p>Before Mauldin, J., Charleston, Spring term, 1918.</p> <p>Action by John T. Clark against American Agricultural Chemical Company and another. Petition of defendant named for removal to the Federal Court overruled, and it appeals.</p> <p>The complaint stated:</p> <p>First. That as plaintiff is informed and believes, the defendant above named is now, and at the times hereinafter mentioned was, a corporation organized and doing business under the laws of one of the States of the United States, and as such owns, manages and operates a fertilizer plant, known as the Ashepoo Fertilizer Works, in the county of Charleston, together with all the appurtenances thereto belonging, including a certain tower and the wire gU3i cables connected therewith.</p> <p>Second. That as plaintiff is informed and believes, the defendant, Benjamin T. Bradham, is now, and at the times hereinafter mentioned was, a citizen and resident of the State of South Carolina and county and city of Charleston, and an employee of said defendant, American Agricultural Chemical Company.</p> <p>Third. That on or about the 13th day of October, 1917, the plaintiff above named, John T. Clark, was in the employ of said defendant, American Agricultural Chemical Company, as a laborer, and as such was ordered and directed by said defendant, Benjamin L. Bradham, as a representative of the master, American Agricultural Chemical Company, and as his immediate foreman in charge of the work, to tar a certain wire guy cable forming one of the supports of a tower at the plant of said Ashepoo Fertilizer Works; that in order to perform said work said defendant, Benjamin T. Bradham, fastened a block and tackle to the eyebolt to said cable at the point where it was attached to said tower and said plaintiff made what is known as a boatswain’s chair and said block and tackle was.attached to said chair, the plaintiff sitting therein, and the said plaintiff got into said boatswain’s chair and swung himself off from said tower, the said defendant, Benjamin L. Bradham, in the meantime holding on to said rope for the purpose of letting said plaintiff down along said wire guy cable, as said plaintiff was tarring along said cable. That, just as said plaintiff swung off from said tower said eyebolt holding and fastening said cable to said tower, and which was supporting the chair in which said plaintiff was working, broke, and said plaintiff was thrown with fearful force and violence a distance of about sixty-five feet to the wooden floor of a dock near said tower, was rendered unconscious, had his left knee broken, his skull injured, and his whole body fearfully shocked and bruised. That he was confined in the hospital for a period of one hundred and two days, suffered, still suffers, and always will suffer the most fearful pain and anguish, both physical and mental, and has become partially paralyzed, and has been permanently injured.</p> <p>Fourth. That the injuries to plaintiff, as aforesaid, were caused by the joint and concurrent carelessness, negligence, recklessness and wantonness of said defendant corporation, its agents and servants, and the said Benjamin F. Bradham, in the following particulars, to wit:</p> <p>(a) In failing, and omitting to furnish said plaintiff a reasonably safe place to work and reasonably safe appliances to work with.</p> <p>(b) In failing and omitting to inspect said eyebolt before fastening said rope to it so as to have ascertained the fact that it was worn out and defective.</p> <p>(c) In ordering and directing said plaintiff to do the work which he was required to perform in a dangerous way instead of a safe way, to wit, by unhooking said cable and allowing it to be tarred on the floor of said dock.</p> <p>(d) In not having first tested said eyebolt to see whether it would stand the strain of the weight of plaintiff.</p> <p>Fifth. That by reason of said joint and concurrent carelessness, negligence, recklessness and wantonness of said defendant corporation, its agents and servants, and the said Benjamin F. Bradham, as above set forth, said plaintiff had his left leg broken, his skull injured, has been partially paralyzed, suffered, still suffers and always will suffer, the most fearful and excrutiating physical and mental pain, was confined in the hospital for a period of one hundred and two (102) days, and was and will be prevented from attending to his daily avocations, and has been permanently injured to his damage thirty-five thousand ($35,000) dollars.</p> <p>Wherefore, plaintiff prays judgment against said defendants in the sum of thirty-five thousand ($35,000) dollars, and the costs of this action.</p> <p>The petition for removal shows:</p> <p>1. That it is one of the defendants in the above entitled ’ action, and that the matter or amount in dispute in said suit exceeds, exclusive of interest and costs, the sum of three thousand ($3,000) dollars.</p> <p>2. That there is in the said suit a controversy which is wholly between citizens of different States, and which can be fully determined as between them, to wit, between -your petitioner, American Agricultural Chemical Company, of the State of Connecticut, one of the defendants in the said suit, which avers that it was at the commencement of this suit, and still is, a resident and citizen of the State of Connecticut, and of no other State, being a corporation created and organized by and existing under the laws of the State of Connecticut, and that it was not at the commencement of this suit, and is not now, a resident or citizen of the State of South Carolina, and the plaintiff, John T. Clark, who was at the commencement of this suit, and still is, a resident and citizen of the State of South Carolina, and who is not now, and was not, at the commencement of this suit, a resident or citizen of the State of Connecticut.</p> <p>3. Your petitioner further shows that the other defendant in this suit, to wit, Benjamin T. Bradham, was at the commencement of this suit, and still is, a resident and citizen of the State of South Carolina.</p> <p>4. Your petitioner further shows and alleges that while it is possible that the plaintiff may have a cause of action against your petitioner, yet that there is no cause of action set out in the complaint in this cause against the defendant, Benjamin T. Bradham, and, because there is no cause of action against the said last named defendant, that, therefore, the cause of action against your petitioner is a separate controversy wholly between the plaintiff and your petitioner, in which the said defendant, Benjamin T. Bradham, is not a proper or necessary party, and in which he is in nowise interested, and that full and complete justice can be rendered between the necessary and proper parties tO' this cause, to wit, between the plaintiff and your petitioner, entirely independent of the defendant, Bradham.</p> <p>5. That it is alleged in the complaint in this cause that the plaintiff, Clark, was employed by your petitioner as a laborer, and as such, was directed by the defendant, Brad-ham, as a representative of the master, to wit, your petitioner,, to-tar a certain wire guy cable, and that by reason of the breaking of an eyebolt supporting said guy, just as plaintiff hung his weight upon the same, intending to descend said guy for the purpose of tarring it, the plaintiff fell, sustaining certain injuries, which injuries, it is alleged in the complaint, were caused by the joint and concurrent negligence and recklessness of the two defendants, in the following particulars :</p> <p>(a) In failing and omitting to furnish the plaintiff a safe place to work, and safe appliances.</p> <p>(b) In failing to inspect the said eyebolt.</p> <p>(c) In directing the plaintiff to do the work in a dangerous away, instead of in a safe way.</p> <p>(d) In not having first tested the eyebolt.</p> <p>Your petitioner respectfully submits that the delicts set out in subdivisions A, B and D, if said delicts, in fact, occurred, constitute breaches of the duty owing by your petitioner to the plaintiff, which were nondelegable duties, and that for any breach thereof, your petitioner, and it alone, is responsible, and that the defendant, Bradham, in. his individual capacity, as differentiated from his capacity as the representative of your petitioner, owed to the plaintiff no-duty to furnish a safe place and safe appliances, to inspect the eyebolt or to test the same, and that a failure to do any or all of these things were entirely nonfeasance on the part of said defendant, Bradham, for which he, in his individual capacity, was and is in no ways responsible to plaintiff.</p> <p>And your petitioner further shows, referring to subdivision C, hereinbefore set out, that if the way in which the-plaintiff undertook to do the work in hand, in which it is-alleged he was directed by the defendant, Bradham, was-dangerous, that that danger in the nature of things, could and did consist entirely in the possibility of a breaking of the guy or its support, which danger being open, obvious, plain and patent, the plaintiff in entering into his contract of employment with your petitioner, must be held to have-assumed, and that, therefore, there is no .cause ,of .action against either the petitioner or the defendant, Bradham, by reason of any injuriés which may have resulted to the plaintiff arising out of the danger aforesaid.</p> <p>And for the considerations aforesaid, your petitioner alleges that the plaintiff has no controversy in this cause against the defendant, Bradham, and that, therefore, the cause presents a controversy solely and wholly between the petitioner and the plaintiff.</p> <p>6. And your petitioner further expressly alleges that the said Benjamin L. Bradham is not a necessary or proper party to this suit, but that he was made a defendant therein fraudulently and for the sole purpose of preventing your petitioner from rempving this suit to the District Court of the United States for the Eastern District of South Carolina, and thereby unlawfully, wrongfully and fraudulently depriving it of one of the rights conferred upon it by the Constitution and laws of the United States of America, and that the plaintiff well knew at the time of bringing this suit that the defendant, Bradham, wras not a necessary or proper party thereto, and that the plaintiff had no cause of action against him, and that the allegations in the complaint tending to show a cause of action against the defendant, Brad-ham, were false and fraudulent, and that the said joinder of the defendant, Bradham, was knowingly fraudulent, and with the said fraud was intentional on the part of the plaintiff .and with full knowledge of the matters and things which made it fraudulent. And in support of said allegation, your petitioner expressly alleges and in support of said allegation craves reference to the affidavits which are hereto attached and hereby made a part of this petition; that the plaintiff at the time of bringing this suit, well knew that the defendant, Bradham, was not his superior or the representative of the master in charge of the work in hand, but that the plaintiff and the said Bradham were fellow .servants, receiving their instructions from a common superior, to wit, ■L. H. Carter, the superintendent of the works of your petitioner, and H. M. Simons, the assistant superintendent, and that, therefore, the allegations in the third paragraph of the complaint herein to the effect that the defendant, Bradham, was a superior of the plaintiff, are wilful, false and knowingly fraudulent; and, further, that the plaintiff at the time of bringing this suit, well knew that it was in no way the duty of the defendant, Bradham, to furnish him with a safe place to work and safe appliances to work with, or to inspect the said eyebolt or to test the same, but that the defendant, Bradham, was only a fellow servant of the plaintiff, and that the plaintiff had the sanie responsibility relative to the work in hand as had the defendant, Bradham; and, further,' that the plaintiff well knew at the time of- bringing this suit that the defendant, Bradham, suggested to the plaintiff that he, the plaintiff, should test the strength of the said guy, and that the plaintiff replied that it was strong enough to hold up “half of hell,” thereby expressly assuming any risk incident to the weakness of the said eyebolt; and, further, that said plaintiff himself, tested the strength of said guy and said eyebolt in a method which he himself suggested, and carried out on his own responsibility; and, further, that the plaintiff well knew at the time of bringing this suit that the defendant, Bradham, did not instruct or direct him as to the manner or method in which he should perform the particular work of tarring the guy; that he and the defendant, Bradham, were engaged in the said work as fellow servants, and that the plaintiff represented himself as a painter well accustomed to doing work on high places, and assumed charge on his own responsibility of the work of tarring the guy, and the defendant, Bradham, assisted him therein in accordance with the suggestions of the plaintiff, and as his fellow servant.</p> <p>.And now within the time prescribed by the act of Congress in this behalf, your petitioner herein presents a good and sufficient bond as provided by the statute in such cases that it will within thirty days from-the--date of/-filing this petition make and file with the United States District Court for the Eastern District of South Carolina a certified copy of the record in this suit and for paying all costs which may be awarded by the said District Court if said Court shall hold that such suit was wrongfully or improperly removed thereto.</p> <p>And your petitioner, therefore, prays this Honorable Court to proceed no further in these matters and in this cause except to make the order of removal required by law, and to accept the said surety and bond, and to cause this suit to be removed into the District Court of the United States for the Eastern District of South Carolina.</p> <p>And it will ever pray, etc.</p> <p>Personally appeared before me T. D. Darlington, who, being duly sworn, says that he is the local manager of American Agricultural Chemical Company, the petitioner named in the foregoing petition; that he has read the same, and that the facts therein stated are true of his own knowledge, and that they came to his knowledge in the ordinary course of his duties as local manager as aforesaid; and that the reason this verification is made by deponent and not by petitioner, is that the said petitioner is a corporation and incapable of making an oath. T. D. Darlington. Sworn to before me this 5th day of March, A. D. 1918. Campbell B. Simons (Seal), Notary Public for S. C.</p> <p>Affidavit of B. H. Carter. Personally appeared before me E. PI. Carter, who, being duly sworn, says that he is the superintendent of the Ashepoor Works, of the American Agricultural Chemical Company, at which works were received the injuries to the plaintiff, John T. Clark, which injuries are the subject of this suit. That Benjamin U. Bradham, one of the defendants in this cause, was employed by the defendant company to work during the winter season in charge of printing bags, and had worked in that capacity for two seasons; that the nature of the industry carried on by the defendant company is such that from about the middle of May to about the first of December in each year, there is comparatively little activity at the plant, and a great numbei of hands are of necessity laid off; and that during those-months, the printing of bags, in which the said Bradham is. at other seasons of the year employed, is discontinued. That in order to keep the said Bradham in the employ of the company and to give him employment throughout the entire year, it is the custom, not only with him, but with all of the other white employees at the plant, to put them, during the idle months, at the work of keeping the plant in good repair and condition, and to do such jobs of painting, carpentering, etc., as are incidental thereto; and that while so engaged the said Brabham is entirely divorced from his occupation in printing bags, and performs the work of a common laborer. That in such last named capacity, the said Bradham has no authority or control over any of the other employees of the defendant company and is in no sense or particular a representative of the company, or a foreman, but takes his orders directly from H. M. Simons, the assistant superintendent of the plant, or from the deponent, and is not clothed with authority to issue instructions or orders to any person in connection with such work. Louis H. Carter. Sworn to before me this 6th day of March, 1918. G. B. Harry Dehrmann (Seal), Notary Public for S. C.</p> <p>Affidavit of H. M. Simons. Personally appeared before me H. M. Simons, who, being duly sworn, says that he is the assistant superintendent at the Ashepoo Plant of the American Agricultural Chemical Company, one of the defendants in this cause, and has for his immediate superior, from whom he receives his instructions, L. H. Carter, the superintendent of said plant, whose affidavit is filed herewith. That early in the month of September, 1917, the plaintiff, Clark, came to the deponent and requested to be employed, representing himself to be an experienced painter, and, deponent being in need of such a man in connection with the repair and maintenance of the plant, employed the said'Clark to1 dc such work. That the defendant, Benjamin L. Bradham, being engaged in work incidental to the maintenance of the plant, as is set forth in the said affidavit of L. H. Carter, deponent put the said Bradham and the said Clark together, doing various jobs of painting around the plant; and also put with them two colored men to help them in this work. That the said Bradham was in no way or sense given any authority over the said Clark, nor was he in any way made the foreman of those four men or made the representative of the company, but that all orders and instructions relative to the work to be done by them were given by the deponent to the said Clark and the said Bradham together, and given as much to the one as to the other, and that neither one of them had any authority over the other, nor any discretion in determining or directing how the work or any particular job should be done, but all such orders and decisions came from the deponent. That in the course of this work, deponent instructed the said Bradham and the said Clark to go down on the clock and paint the tower which stands thereon and the guys which support the same, but gave no orders as to how the details of the work were to be accomplished, nor did he place either of the said men in authority over the otherand that they proceeded to the execution of this work as fellow servants, and as on precisely the same plane of authority. That there was no way by which the said Clark as a reasonable man could have reached the conclusion that he was in any way subject to the authority or orders of the said Bradham; that he had never received any instructions to take orders from the said Bradham, or to obey his directions ; but that he, the said Clark, had the same authority as to the work in hand as did the said Bradham, and that he and the said Bradham, had worked together in this way for about a month before the accident, which is the subject of this suit, took place. That, as a matter of fact, in the work of painting, which was in progress at that time, deponent considered.¡the.plaintiff,,Clark, as the more experienced and skillful man in that particular work of the two and was more inclined to prefer the said Clark in the said work than the said Bradham, by reason of his experience as a painter as aforesaid.</p> <p>That both the said Clark and the said Bradham, in such work, actually performed the labor incidental thereto, and actually did the work of ordinary laborers.</p> <p>That the reason why the deponent issued no particular or minute instructions as to how the said tower and the said guys were to be painted, was because the said Clark, having represented himself as an experienced painter and accustomed to doing work on high places, deponent considered him competent to do the work without such particular instructions. H. M. Simons. Sworn to before me this 6th day of March, 1918. George F. Harry Dehrmann (Seal), Notary Public for S. C.</p> <p>Affidavit of Benjamin L. Bradham. Personally appeared before me Benjamin T. Bradham, who, being duly sworn, says that he is one of the defendants in this cause. That he has been employed by the defendant, American Agricultural Chemical Company, for about two years, and that during the winter season he has to do with the printing of bags for use by said company; that during the summer season, there being no1 necessity for such printing at that time, deponent is employed by the company to do work in connection with the maintenance of its plant, and in such capacity turns his hand to such painting, carpentering or other repair work as may be incident to such maintenance, and as he may be instructed to perform by Mr. T- H. Carter, the superintendent, or more particularly, by Mr. H. M. Simons, the assistant superintendent. That during the summer of 1917, deponent was sent to the plant of the Maybank Fertilizer Company to check a bulk shipment of acid, in which the American Agricultural Chemical Company was interested, and upon the completion of this work, and upon his return to the Ashepoo plant of the American Agricultural Chemical Company, he found the plaintiff, Clark, at work at the said plant, having been employed during the absence of the deponent. That under the instructions of the said assistant superintendent, Mr. Simons, deponent and the said Clark were put to work together, doing repair work around the said plant, and that Mr. Simons had put with them two negroes, helping with this work under the instructions of the said Mr. Simons. That deponent was not, by Mr. Simons or Mr. Carter, or any other person clothed with any authority whatsoever over the said Clark, nor did he have any right to instruct or direct the said Clark as to what he should do or how he should do it, or as to anything at all, but that he and the said Clark received their instructions together from the said assistant superintendent, who gave them their instructions, as much to the one as to the other; and that deponent did not understand that he had any authority over the said Clark, nor did he at any time or in any way assume 'any such authority or undertake to give Clark any instructions or directions, but that he and the said Clark worked together on the same plane of authority. That he and the said Clark were instructed by the said assistant superintendent to go to the tower on the dock at the said plant, and to paint the same and the guys which supported it, and that no instructions were issued to them as to the exact method by which the work should be done. They then proceeded to the tower and to the painting of the guys, and Clark, stating that in his capacity as an experienced painter, was accustomed to doing work at considerable heights, said that he would tar the guys; and that in preparation for the same he, the said Clark, rigged up a block and tackle and a boatswain’s chair, arranging the same without any suggestions from deponent, but entirely in accordance with his own ideas; that deponent suggested to the said Clark that it might be well to test the strength of the guy before going on it, and himself, with the two negroes, hung on the guy at its lower end, in order to test its strength; whereupon the said Clark laughed and said that there was no necessity to do that, for the reason that the said guy “was strong enough to hold up the half of hell.”. That the said Clark, before undertaking to paint the said guy, ordered the two negroes who were working with him and the deponent, to draw him up in the said boatswain’s chair a portion of the wa)' up the guy, and, having satisfied himself thereby that his arrangement of the sling and tackle was in proper condition, and in good working order, he got into the sling and swung himself over, the arrangement being that he was to be lowered down the guy to do the tarring; and then and there the eyebolt broke and the plaintiff fell.</p> <p>That in no detail connected with the work on the said tower, or guy or in any work which deponent and said plaintiff had done together, did the deponent order or direct the plaintiff in any particular; but, on the contrary, plaintiff being an experienced painter, deponent was inclined to defer to1 his superior skill and knowledge. That- the deponent' said or did nothing at any time while Clark was at work for the American Agricultural Chemical Company, which would justify the belief that he, deponent, was in any way the superior or entitled to direct or control his action. That deponent is in no sense an experienced painter, and his painting, prior to this occasion, had been limited to ordinary painting, and that he had never undertaken to tar a guy or to do work in any way similar thereto. That the deponent expressly denies that he ordered or directed the plaintiff, Clark, to tar the said guy, or that he was the representative of the American Agricultural Chemical Company or the foreman of the said plaintiff. Benjamin U. Bradham. Sworn to before me this 6th day of March, A. D. 1918. G. E. Harry Dehrmann (Seal), Notary Public for S. C.</p> <p>The Exceptions. 1. That his Honor erred in not holding that the petition and affidavits supporting it and the removal bond, showing on their face a proper cause for removal to the United States District Court under the Rémoval Act of Congress, it became his duty to accept said petition and bond according to the provisions of the said statute and to proceed no further in the case.</p> <p>2. That his Honor erred in not holding that the allegations of the petition for removal as supported by the affidavits attached thereto, made out a case of fraudulent joinder, which rendered it necessary that the petition and bond should be accepted by the State Court, and that said Court should proceed no further in the case.</p> <p>3. That his Honor erred in holding that the petition and affidavits did not, upon their face, make such a showing of fraudulent joinder as necessitated v the acceptance by the State Court of the petition and bond for removal, and that such Court should proceed no further in the cause.</p> <p>submit: The petition and bond for removal, being on their face in compliance with the act of Congress providing for the removal of causes, and said petition and affidavits showing a proper case for removal, the Court erred in refusing to sign the order accepting the petition and bond, and that said Court should not have proceeded any further in the case: 232 U S. 318; 196 U. S.'239; 236 U. S. 305; 104 U. S., at p. 14; 106 U. S. 122; 229 U. S. 102; 215 U. S. 308; 213 U. S. 207; 117 U. S.430; 118U. S. 287; 131 U. S. 240; 214 U. S. 153 and 158; 239 U. S. 496. The Judge erred in not holding that the petition and bond upon their face made such a showing of fraudulent joinder as justified their acceptance by the State Court under the act of Congress: 194 Fed. 514; 186 Fed. 540; 203 Fed. 291; 242 U. S. —; 243'U. S. 422; 200 U. S. 206, at p. 215; 204 U. S. 176; 239 U. S. 496, at p. 500; 206 Fed. 496.</p> <p>submit: The trial Judge committed no error in refusing the motion and holding that the Court of Common Pleas had jurisdiction to proceed with the trial of the case: 232 U. S. —; 58 E. Ed. 545; 132 U. S. 599; 33 E. Ed. 474; 117 U. S. 430; 29 E. Ed., p. 962; 72 S. C. 473; 65 S. C. 332; 94 S. C. 334; 194 U. S. —; 48 L. Eel., pp. 909-910. The mere allegation that the joinder of the defendant, Benjamin L. Bradham, is fraudulent is not sufficient: 215 U. S. 308; 54 E. Ed. 208; 227 U. S. 184; 57 L. Ed. 473. Complaint states a good cause of action against the resident defendant, Bradham, and also a case of joint liability against both defendants: 232 U. S. —; 58 E. Ed. 547; 65 S. C. 338, and cases cited; 79 S. C. 502; 232 U. S. —; 58 E. Ed. 545.</p>

<p>Before PeuriEoy, J., Anderson, Spring term, 1918.</p> <p>Action by John Hall against Lewis Ligón and others. Judgment for plaintiff was reversed on appeal to the Circuit Court, and plaintiff appeals.</p> <p>submit: Plaintiff based his action upon his right to the immediate possession of the property and not upon his sole ownership of same: Code of Civil Procedure, vol. II, sec. 80; Code of S. C., vol. I, sec. 1605; R. C. D., vol. IX, pages 3-6; 14 Cyc., pp. 247-251-254; Code of Procedure, sec. 407.</p> <p>Mr. A. H. Dagnall submits: It is well settled that the title and right to the possession of personal property of a decedent, testate or intestate, immediately vests in the personal representative until administration is completed and the estate fully settled: 18 Cyc. 153; 58 S. C. 166; 62 S. C. 428; 1 McCord Eq. (7 S. C. Eq.) 169; 9 S. C. 258; 20 S. C. 347; 58 S. C. 166; 62 S. C. 427; 11 Enc. Plead. & Prac., pp. 2, 3 and 4. If there is only one heir at law, and no creditors, an action can be maintained by the sole heir at law: 1 Rich. Eq. 1 (18 S. C. Eq.); 62 S. C. 427. Under ■no circumstances could plaintiff maintain this action in his own name without joining the other heirs of the plaintiff: 102 S. C. 503; 18 Enc. Plea. & Prac., p. 508; 34 Cyc. 1387.</p>

Before Bowman, J., Lexington, Spring term, 1918. Held: that where the causal negligence is attributable partly to the carrier and partly to the injured employee, he shall not recover full damages, but only a diminished sum bearing the same relations to the full damages that the negligence attributable to the carrier bears to the negligence attributable to both, the purpose being to…

<p>Before Townsend, J., at chambers, Columbia, S. C., May 4, 1918.</p> <p>Application by the Gregory-Conder Mule Company, in the partition case of Robert Spigener and others against L/ucile Crews and others, to have certain funds in the hands of the master for Richland county resulting from the sale of lands applied to the payment of a judgment. From an order requiring the master to pay the moneys over to -petitioner, James M. Green and others appeal.</p> <p>The following is the order appealed from:</p> <p>Order for Disbursement of Funds. This is an application by the Gregory-Conder Mule Company, a judgment creditor of the late Marion E. Green, for an order to require the master to pay to it certain funds in his hands, proceeds of sale of an undivided interest in real estate which belonged, at the time of her death, to Mrs. Green. It is opposed by her children, who claim such proceeds as her heirs at law. It appears from the record before me, that Mrs. Marion E. Green was, during her lifetime, the head of a family, residing in this State, consisting of herself and a granddaughter, who lived with her. It does not appear that her children, who claim these proceeds of sale, were members of her family at the time of her death; they may have become emancipated or members of other families. This interest in real estate was the only real property she owned at the time of her death, and was of less value than -one thousand dollars. No attempt was made to levy on this property during the lifetime of Mrs. Green, and no homestead was assigned or allotted to her. Her children claim these funds are protected from the creditor’s judgment under the homestead law.</p> <p>Where homestead has not been assigned or allotted during the life of the judgment debtor, the only provision for its allowance is in the act of 1880, XVII Statutes 517, now embraced in section 3714, Code of Laws of South Carolina 1912, vol. I.</p> <p>Where only children survive the debtor, the statute conditions their right to the homestead upon their living thereon, Yoe v. Hanvey, 25 S. C. 97, or the continuance of the family at the time when the attempt is made to enforce the judgment, and when the homestead is claimed. Carolina National Bank v. Senn, 25 S. C. 581; Gray v. Putnann, 51 S. C. 101.</p> <p>Unless the children of the debtor are members of her family at the time they claim homestead against her debts, they cannot interpose her right of homestead where it has not theretofore been claimed by her as against her creditors.</p> <p>It is, therefore, ordered that the master for Richland county be, and is hereby, ordered and required to pay to the Gregory-Conder Mule Company, or Messrs. Lyles & Lyles, its attorneys, the moneys in hand ($817.70), arising from the sale of the real estate belonging to the late Mrs. Marion E. Green, in the above entitled cause.</p> <p>cites: As, to the right of appellants to have the funds in question assigned to them as heirs at law of the late Mrs. Marion M. Green, said funds being exempt under the homestead from the judgments rendered against Mrs. Green in her lifetime: Const. 1895, art. Ill, sec. 28; Code, p. 612; Code 1912, sec. 348, subd. 4; 25 S. C. 389; 28 S. C. 233; 26 S. C. 227; 107 S. C. 364; 51 S. C. 97; 73 S. C. 324; 21 S. C. 375; 2 S. C. 309; 54 S. C. 579; 99 S. C. 411; 45 S. C. 61; 73 S. C. 234; 19 S. C. 243 ; 24 S. C. 428; 29 S. C. 178; 26 S. C. 1; 54 S. C. 208; Civil Code, sec. 3714; 28 S. C. 234 ; 57 S. C. 526.</p> <p>submit: 1. The Constitution of 1895, article III, section 28, only provided for a homestead “to the head of any family residing in this State,” and the language of that provision as to persons entitled to the exemption is exactly the same as the language-used in the Constitution of 1868, article II, section 32. “A. person can claim homestead only against a debt of his own or of one zvhose family he is a member of. Children of a deceased debtor cannot claim, each for himself, as the head of a family, a separate homestead out of the lands of the-deceased debtor against his debt; but collectively they are entitled to one homestead, whether they be infants or adults:” 25 S. C. 572; 51 S. C. 101.</p>

Before Gary, J., Richland, Fall term, 1918. Charlie Jacobs was convicted of having in his possession and storing alcoholic liquors for unlawful purposes, and he appeals. submits: “That proof of distinct and independent offenses is not admissible on the trial of a person accused of crime, but there are exceptions to or modifications of this general rule, as where such evidence reasonably tends to show the malice, intent or motive of the defendant with respect to the crime…

Before Mumminger, ]., Charleston, Summer term, 1918. Action by the Midland Timber Company against Bolivar B. Furman and others. Decree for plaintiff, and defendants appeal. submit: The contract sued on is usurious: (Exodus, chap. XXII, 25th verse) ; Ezekiel, chap.

Before Townsend, J., Richland, Summer term, 1918. Action by W. J. Troublefield against G. S. Heyward and others. From judgment for plaintiff, defendants appeal. submits : It was the duty of the Court, with all the contract reduced to writing by the parties, to construe the contract: 103 S. C. 500; 88 S. C. 360.

Before Memminger, J., Richland, Spring term, 1918. Action by the Board of Directors, etc., against Elizabeth G. Lowrance and others. From order overruling defendant’s named demurrer, defendant named appeals. Following are the exceptions for appeal: That the presiding Judge erred in overruling defendant’s demurrer to the complaint and in not sustaining same upon the several grounds therein stated: First.

<p>1. Execution-^-Supplementary Proceedings — Fund in Hands of Corporation. — In supplementary proceedings in search of assets to pay judgment, judgment creditor may, in view of Code Civ. Proc., secs. 352, 356, arrest fund in hands of third party, alleged to belong to judgment debtor and proven prima facie to so belong, and hold fund until issue of ownership shall be decided; it being immaterial that third party is a corporation.</p> <p>2. Execution — Supplementary Proceedings — Possession of Receiver.— In supplementary proceedings in search of assets to pay judgment, if fund arrested was in truth the property of judgment debtor, all of it ought to go to his receiver.</p> <p>3. Execution — Supplementary Proceedings — Appointment of Receiver. — In supplementary proceedings in search of assets to pay judgment, Code Civ. Proc. 1912, sec. 356, is warrant of Judge for appointment of receiver, and Judge is governed in his procedure by sections 351-360, and not by section 303.</p> <p>4>. Execution — Supplementary Proceedings — Arresting Funds in Hands op Third Party. — In supplementary proceedings in search of assets to pay judgment, held that judgment creditor was proceeding against money which United States Government paid for lumber, and not against the lumber, or a credit for the lumber, so as to interfere with operations of Federal government.</p>

<p>Before Shipp, J., Abbeville, Spring term, 1918.</p> <p>John Henry Jackson was convicted of murder, and he appeals.</p>

Before Bowman, J., Calhoun; Spring term, 1917. Ed Johnson was convicted of crime, from an order refusing a motion for a new trial, upon the ground of discovered evidence, he appeals.

Before Memminger, J., Marlboro, Ball term, 1917. Suit by Irving Grant against L. C. Chavis. Nrom a decree for plaintiff, defendant appeals. submits: Deeds may be reformed in equity if fraud or mutual mistake so as to effect the intention of the parties and this may be done upon parol evidence where the proof is clear, convincing and satisfactory.

Before Whaley, County Judge, Richland, July Term, 1917. Action by Lillie Nauful against the National Loan and Exchange Bank of Columbia. Held: and charged said request. 12. Because his Honor erred in refusing to charge request No. 4, of the plaintiff, as follows: “That the law gives a bank the right to hold any money they may have on deposit, until all debts due by the depositor are paid in full” — said request embracing a sound proposition of law, and applicable to the…

<p>1. Negligence — “Wanton”- — -What Constitutes. — An act committed in such manner that a person of ordinary reason and prudence would say that it was a reckless disregard of another’s rights is “wanton,” although the wrongdoer does not actually realize that He is invading the rights of another.</p> <p>2. Trial — -Failure to Give Request — Duty op Counsel. — Counsel presenting requests need not call the attention of the Court to the fact that they have not been charged, unless they know the reason why requests were not charged.</p> <p>3. Notice — -Knowledge op Undisclosed Facts — Presumption.—When a person has notice of such facts as are sufficient to put him upon inquiry, which, if pursued with due diligence, would lead to the knowledge of other facts, he must be presumed to have knowledge of the undisclosed facts.</p> <p>4. Trial —■ Requests — Failure to Give — Duty op Counsel. — Where defendants’ request commenced, “qualify plaintiff’s third request as follows,” and defendants’ counsel knew that plaintiff’s third request had been withdrawn, and that the Court had not given the request commencing as stated, it was counsel’s duty to notify the Court that defendants still insisted upon their qualified request.</p> <p>5. Trial — Charge Upon the Facts. — In action for death of plaintiff’s intestate due to collision of automobile with defendant’s passenger train at a dangerous crossing, and for damages to automobile, instruction with reference to giving warning held not subject to objection that it was a charge upon the facts.</p> <p>6. Appeal and Error — Harmless Error — Instruction on Weight op Evidence.- — Error, if any, in charging that under mortuary table the expectancy of a person 17 years of age is between 42 and 43 years held harmless.</p>

<p>Before Townsend, J., Richland, Summer term, 191H</p> <p>Alex. Ayoub was convicted for grand larceny, and he appeals.</p>

Before Townsend, J., Richland, at chambers, April 4, 1918. Action by E. McKay Miller against George Goodwin, Gus F. Wiles and others. From an order referring cause to the master, the defendants named appeal. submits: That Judge Tozvnsend zvas without jurisdiction to grant the order appealed from: Code of 1912, vol. VII, sec. 3833; Code of 1912, vol. II, sec. 330; 25 S. C. 72; 97 S. C. 459; 98 S. C. 184; 24 Am. St. Rep. 366; 79 S. C. 557; 104 S. C. 393.

Before Peurieoy, J., Charleston, Fall term, 1917. Action by Jas. J. Frain against the Fraternal Aid Union, and William H. Frain intervenes. Judgment for plaintiff, and Wm. H. Frain, intervenor, appeals. submit: The insured was hound by the terms and provisions of the certificate of insurance: 77 S. C. 520; 90 S. C. 136; 104 S. C. 474.

Before Shipp, J., Union, Fall term, 1917. Action by G. B. Barron and others against Robert Thompson and others. From the judgment rendered, both plaintiffs and defendants appeal. The report of the master was as follows: This case was heard by me on the 28th and 29th of July, 1916, at which time the testimony was taken and arguments heard in behalf of both plaintiffs and defendants herein.

<p>Jury — Jury Trial — Foreclosure. — An action to foreclose a mortgage being in equity, the Court is under no compulsion to order a jury trial.</p>

<p>Before Si-iipp, J., Greenwood, April term, 1918.</p> <p>Action by Mary E. H. Young against John Williams Young and others. From a decreé setting aside a verdict for plaintiff and awarding a new trial, plaintiff appeals.</p> <p>submit: Where a new trial is granted on legal grounds an appeal will lie: 107 S. C. 501. The testimony establishes that the manner in which deed was obtained from plaintiff operates as a fraud on her rights, and the deed is void: 92 S. C. 384; 89 S. C. 268. Plaintiff had the right to attack the deed for {fraud when offered in evidence without pleading it: 93 S. C. 167; 38 S. C. 277; 83 S. C. 340; 97 S. C. 124. As to what is necessary to constitute equitable estoppel: 97 S. C. 116; 96 S. C. 106; 84 S. C. 430. Act done after party’s position has been taken or changed will not avail as ground for estoppel: 70 S. C. 195; 84 S. C. 431. Deed ivas obtained upon a misrepresentation as to what it was and the effect of it; a misrepresentation, both of law and fact: 92 S. C. 384; 106 S. C. 332; 87 S. C. 2; 89 S. C. 268.</p> <p>submits: That the ,lapse of twenty years is sufficient to raise presumptions enough to quiet title: 1 Hill’s Chancery 380; 17 S. C. 481. It is the duty of any person called on to sign a paper to read the paper before signing it, and if they do not read it then they are bound by the terms of it: 103 S. C. 494. As to estoppel: 31 S. C. —; 77 S. C. 191-192. Ignorance is no excuse: 12 S. C. 354.</p>

Before Wilson, J., Greenville, Fall term, 1917. B. B. Martin was convicted of using an automobile without the owner’s consent and of malicious mischief to personal property, and he appeals. submits: That as neither the indictment alleged, nor the law said anything about conspiracy, it was error to charge the law as to conspiracy: 88 S. C. 230; 40 S. C. 299.

Before PeuriEoy, J., at chambers, Colleton, August 23, 1918. Action by the Big Salkehatchie Cypress Company, a corporation, against the Colleton Cypress Company, a corporation. From an order dissolving an interlocutory order of injunction, plaintiff appeals. Reversed, and supersedeas granted by a Justice of the Supreme Court, continued.

Before Townsend, J., Richland, Summer term, 1918. Action by the United States Casualty Company against the Consolidated Auto Company. Directed verdict for plaintiff, and defendant appeals. cite: As to an agent’s authority to accept payment for his principal in some other medium than money: 107 S. C. 537; Story on Agency, sec. 181; Cooley’s Briefs on Ins. 471-2. cites: As to what constitutes payment: 30 Cyc. 1181; 9th Richardson, 3d S. C. Reprint., vol. XVII.

<p>1. Homicide — Dying Declarations — Hope op Life. — To make a dying declaration admissible, deceased, at time of making declaration, must have lost all hope of life.</p> <p>2. Homicide — Dying Declarations — Hope of Life. — It does not necessarily follow that because deceased sends for a physician, or asks that one be sent for, he has any hope of life from the timely aid of such physician, for he may want physician to relieve suffering.</p> <p>3. Homicide — Dying Declarations — Determination of Deceased’s Condition. — Whether deceased was in such condition, at time of making alleged dying declaration, that declaration is admissible, is primarily for the trial Court.</p> <p>4i. Homicide — Review—Discretion of Court. — Trial Court’s ruling that conditions under which deceased made alleged dying' declarations were such as to make declarations admissible will not be reversed on appeal, unless clearly erroneous and prejudicial.</p>

Before Sease, J., Sumter, Spring term, 1918. Action by Manning Richardson against the Atlantic Coast Line Railroad Company. From judgment for plaintiff, defendant appeals. submits: The trial Judge should have granted defendant1 s request to charge the jury, that there was no evidence of wilfulness: 69 S. C. 434; 62 S. C. 252; 88 S. C. 7; 99 S. C. 89; 104 S. C. 107, at page 114.

<p>Before Shipp, J., Abbeville, Spring term, 1918.</p> <p>John Hearst and George Carter were convicted of grand larceny, and they appeal.</p>

Before DeVore, J., Spring term, 1917. Action by the Westinghouse Electric & Manufacturing Company against the Glencoe Cotton Mills. Judgment for plaintiff, and defendant appeals. cite: As to the 'correct measure of damages proper to be recovered by defendant under its counterclaim: 82 S. C. 468, at page 473 ; 29 S. C. 736; 89 S. C. 420. The jury was given a broad-correct rule as to the measure of damages, but they zvere also given an inconsistent and incorrect rule.

Before Gary, J., Clarendon, Fall term, 1917. Junius Martin was indicted and tried before a magistrate upon a charge of abandoning land rented. He was convicted and sentenced, and appealed to the Circuit Court, which dismissed the prosecution, and the State appeals. Exception overruled.

<p>Before Prince, J., Spring term, 1918.</p> <p>Action by A. T. Morgan against the Springstein Mills. Judgment for plaintiff, and defendant appeals.</p> <p>Statement by. Appellant: The plaintiff conqedes that the injury was caused solely by the act of a fellow servant (ff. 81, 82), but contends that the appellant negligently failed to furnish a competent fellow servant. The appellant contends that there is no evidence that it was negligent in employing the fellow servant, no evidence that the fellow servant was incompetent and that under all the testimony the only inference or conclusion to be drawn from the testimony is that the plaintiff knew of the alleged incompetency of his fellow servant, and waived his right to hold the master liable by continuing in the employment of the master after such knowledge, and assumed the risk, after full knowledge.</p> <p>The answer also set up the defense of contributory negligence (f. 18), as well as the defenses of fellow servant and assumption of risk (ff. 13-18). The Circuit Judge charged the jury there was no evidence of wilfulness and no proof of punitive damages (ff. 154-156). The plaintiff was clearly guilty of contributory negligence, and should have been non-suited on that ground, there being no proof of wilfulness.</p> <p>submit: The general rule is that a single act of negligence by a servant does not tend to show that the servant was incompetent; much less is to be regarded evidence that the master knew or ought to have known at the time of the accident that the offending servant was incompetent: (Tex.) 48 S. W. 570; (Ala.) 39 Sou. 822; (111.) 86 N. E. 150; 86 Fed. 433; 26 Cyc. 1297; 2 Thompson on Negligence 1054; 89 S. C. 505. Long service by the employee tends to show that he was a faithful and careful man: 96 S. C. 426. Bvidence of the employee’s reputation for incompetency was inadmissible: 98 S. C. 51; 11 R. C. R. 616. Knowledge by master of employee’s incompetency must be proven directly and cannot be inferred from evidence showing that the employee was incompetent: 18 R. C. L,., sec. 305, p. 728; (Cal.) 20 L. R. A. (N. S.) 322; 48 L. T. A. 378, note. The master is not liable for the injury of an employee caused solely by the acts of negligence of a fellow servant, where the master has used due care in the selection of stick servant: 1 McMull. 385; 36 Am. Dec. 268; 18 R. C. L., sec. 194, p. 715; 26 Cyc., p. 1276, and note, p. 1278. A nonsuit should have been granted: 87 S. C. 449; 72 S. C. 237; 71 S. C. 53; 70 S. C. 95; 77 S. C. 328; 89 S. C. 15. Plaintiff assumed risk with full knowledge and cannot recover: 18 R. C. L., p. 724, sec. 201; 18 R. C. D., p: 639, sec. 135; 104 S. C. 455; 104 S. C. 200; 104 S'. C. 405; 102 S. C. 209; 102 S. C. 280.</p> <p>cite: As to the admission of testimony as to fellow servant’s incompetency: 80 S. E. 52 (N. C.); 70 S. C. 325; 61 S. C. 488; 63 S. C. 569. The objection of counsel falls short of stating a formal objection and the ground therefor. Trial Judge should not be convicted of error upon insufficient objection: 89 S. C. 385; 60 S. C. 9; 62 S. C. 546. No motion was made to strike out testimony complained of, and if the admission was error, it was not prejudicial: 100 S. C. —; 97 S. C. 148. Almost the identical testimony had been previously given by same witness without objection, and testimony of a similar character was subsequently introduced by plaintiff without objection, and defendant was permitted to introduce on its behalf testimony of an exactly similar character: 90 S. C. 366; 91 S. C. 523; 93 S. C. 168; 95 S. C. 9. The testimony was admissible as the opinion of an expert: Hick’s case (63 S. C.); 59 S. C. 318; 69 S. C. 104; 96 S. C. 371; 2d Elliott Evidence 1036; 74 S. C. 233. Uven if the testimony was not admissible as the opinion of ah expert, the witness had the right to express his opinion upon stating the facts upon which the opinion was based, and the trial Judge had discretion in determining whether the testimony was admissible, and his ruling should not be disturbed unless it is clearly erroneous and prejudicial: 90 S. C. 271; 57 S. C. 448; 92 S. C. 304; 74 S. E. 886 (N. C.). The testimony as to Parker’s reputation was clearly competent: Wigmore on Evidence, sec. 1621 (7) ; 89 S. C. 22. Appellant cannot now complain o/ the admission of Robinson’s testimony — no objection having been made at the time: 90 S. C. 470; 93 S. C. 397. Again, appellant’s objection is untenable, because the testimony zvas favorable to it: 91 S. C. 507; 97 §. C. 278. If Parker zeas incompetent no notice to the master of such incompetency was necessary to raise the inference of incompetency: 63 S. C. 559; 89 S. C. 21. ■ As to assumption of risk: Eabatt (1st Ed.), sec. 279a; 102 S. C. 409; 107 S. C. 99; 81 S. C. 524; 66 S. C. 208; 26 Cyc. 1185; Labatt, sec. 354; 86 S. C. 235; 18 S. C. 180; 84 S. C. 287; 55 S. C. 100; 72 S. C. 102.</p>

Before Bowman, J., Lexington, Spring term, 1918. In the matter of the will of James H. Spires, deceased; Annie M. Spires and W. M. Spires, proponents, and W. A. Spires and others, contestants. From a judgment sustaining the will, the contestants appeal. Mr. Bfird submits: That the mental state of. an individual may be proven and is properly proven by his unsworn declarations with reference to that menial condition: Chamberlayne on Evidence, vol.

Before Moore, J., Barnwell, Spring term, 1918. Action by Rena Fanning and others against C. Y. Bogacki.

<p>Before Rice, J., Horry, Spring term, 1918.</p> <p>Action by Lillie Mae Floyd and others against the Mont’ gomery Lumber Company. Judgment on verdict for plaintiffs, and defendant appeals.</p> <p>The testimony referred to in the opinion is:</p> <p>Johnson Floyd, a witness for the plaintiff, testified: Direcl ■examination: I am a son of Frederick Floyd, my mother's name was Nancy Floyd, my father had six children by his first wife and seven by his last. Hardy Floyd, Elizabeth McDaniel, Asbury Floyd, Goudin Floyd, William H. Floyd and D. C. Floyd were children by the first wife. Gus Floyd was my half brother. I am 44 years old and was only eight when my father died about 36 years ago. After father’s death my mother and all his children lived on the old Fred. Floyd place. Mother died two years ago. Up until a couple of years she stayed on the old place, the house got burned and she stayed with these children. The old house got burned two years ago and after it was burned she lived with the other children. Cross-examination: I am one of the heirs that signed the timber deed to Mullins Lumber Company. My mother was my father’s second wife, and she also signed this title to the Mullins Lumber Company. Q. At that time, how long had it been since Augustus Floyd had lived on that place? A. I suppose he left when I was small, I suppose thirty or thirty-five years ago when he left. Q. Did he leave after this title had been made that has been introduced in evidence signed by the children, of the first wife? A. He was away when that was signed. Augustus Floyd bought some of the old heirs, D. C. Floyd, Gourdin Floyd and Elizabeth McDaniel. I don’t remember what he paid. He did not pay them all, three took pay and three did not, three of the older children. The title which was introduced, to Augustus Floyd, was left in the hands of my uncle and he has it yet. Augustus Floyd left my mother and her children in possession of this land. I was one of them. Q. What arrangements did he have with you about it; in other words, had he promised that he would sign a deed to you ? (Objected to as being obnoxious to sec. 438 of the Code.) Objection sustained.</p> <p>cites: As to excluding an offer of settlement: 102 S. C. 130. As to section 438 of the Code: 6 S. C. 30; 7 S. C. 123. As to admitting the tax duplicates of the■ county treasurer: 98 S. C. 289; 78 S. C. 23. As to title by presumption of a grant and the presumption of ouster of tenants in common by twenty years’ continuous, open and adverse possession: 59 S. C. 440; 48 S. C. 489; 48 S. C. 28; 50 S. C. 161; 26 S. C. 179; 93 S. C. 567; Code of Procedure, section 133; 80 S. C. 110; 2 Hill’s Ch. 511; 11 Rich. 429; 3 S. C. 254; 26 S. C. 179; 1 S. E. 711; 38 S. C. 394; 17 S. E. 136; 40 S. C. 179; 18 S. E. 257; 48 S. C. 291; 26 S. E. 657; 48 S. C. 472; 26 S. E. 787; 78 S. C. 155. As to disability of infancy: 53 S. C. 126; 94 S. C. 71. As to liability and measure of damages: 2 Hill’s Equity 277; 38 Cyc. 91 and 117.</p> <p>cites: As to exception to admission of evidence not objected to: 88 S. C. 15; 88 S. C. 56; 88 S. C. 80; 91 S. C. 507. Assignment of error not sustained by the record will not b.e considered: 91 S. C. 507. As to section 438, Code of Civil Procedure: 94 S. C. 349. As to the admission in evidence of county treasurer’s tax duplicates: 78 S. C. 143. As to refusal of motions for a nonsuit, and for a directed verdict: 100 S. C. 499; 91 S. C. 4_39. As to the Judge’s charge: 106 S. C. 92; 91 S. C. 439. As to offer of compromise: Code of Procedure, sec. 424. As to possession and ocmipation: Code of Procedure, sections 126, 127, 128, 129, 130, 131. As to persons under disability: Code of Procedure, sec. 133. As to parties to actions and special proceedings being competent zvitnesses except in certain cases: Code of Procedure, section 438.</p>

Before Whaley, County Judge, Richland, 11th July, 1918. Action by Paul Richardson against the Union Seed & Fertilizer Company. Judgment of nonsuit, and plaintiff appeals. submit: The servant has the right to assume that the master has furnished suitable appliances, and he may proceed to work with such appliances unless the same are so obviously defective that no ordinarily prudent man would undertake to use the same: 85 S. C. 372; 82 S. C. 548; 84 S. C. 354.

. Before PeuriEoy, J., Hampton,-term,-. Action originating in magistrate’s Court by T. B. Schirmer against the Charleston & Western Carolina Railway Company.

Before DeVore, J., Union, Spring term, 1918. Action by Ida E. Whitlock against the Town of Jones-ville and others. Demurrer to complaint sustained, and plaintiff appeals.

Before Wilson, J., Clarendon, Summer term, 191-8.. Action by C. H. Ragin against the Northwestern Railroad Company of South Carolina and Henry W. Frost & Co. From orders of trial Court overruling demurrer to the complaint and ordering its amendment so as to show a joint obligation of defendants, and dismissing complaint on failure to so. amend, plaintiff and Henry W. Frost & Co. both appeal. submits: The complaint in this action is entirely different from the complaint which…

<p>Insurance — False Representations — Waiver—Questions for Jury.— In action on life policy, defended on the ground of false representations of insured that she did not have tuberculosis, and had not been under the care of physicians for more than two years, whether defendant by issuing policy waived misrepresentations 'held, under evidence, for the jury.</p>

Before Memminger, J., Richland, Spring term, 1918. Action by the Equitable Surety Company against the Illinois Surety Company and others. Directed verdict for plaintiff, and the United States Fidelity & Guaranty Company appeals. cites: As to exoneration of appellant: 159 App. Div. (N. Y..) 542.

Before Memminger, J., Richland, Spring term, 1918. Action by Sallie Glass Spigener and another against the Seaboard Air Line Railway and others.

Before SeasE, J., Spartanburg, Summer term, 1918. Action by E. C. Thomas against J. E. Shea. Erom an order discontinuing the cause, defendant appealed to the Circuit Court, which set aside the order, and plaintiff appeals. cite: As to right of discontinuance: Code of Civil Procedure, sections 88, 89, 90; 6 Ency. P. & P. 833, 836; 2 Brev. 32; 1 Speer 329; 82 S. C. 15; 80 S. C. 455; 84 S. C. 246.

Before Whaley, County Judge, Richland, April term, 1918. Action by Mrs. R. E. Aughtry against the City of Columbia. From judgment for plaintiff, defendant appeals. submits: That the evidence failed to show any defect in the sidewalk or negligence or mismanagement of anything under control of the defendant in making repairs to the street, and no cause of action arises under section 3033 of vol.

<p>1. Master and Servant — Contributory Negligence — Question fob Jury. — Whether a 14-year-old employee was guilty of contributory negligence when injured by putting- his hand inside a machine which he was helping to clean, in order to remove cotton, is a question for the jury.</p> <p>2. Master "and Servant — Injury to Servant — Cleaning Moving. Machinery.- — Evidence held to show that a 14-year-old servant was directed to clean moving machinery in which he was caught and injured.</p> <p>3. Trial — Instructions—Reuuests.—In an action by a father against employer for loss of services of minor son, an instruction that it was the duty of the servant to obey the orders of the master was in general correct, and if defendant wished a further instruction, he should have requested it.</p> <p>4. Master and Servant — -Minor Servant — Warning.—The master is held to a stricter account to a servant of tender years than to an adult, since the master is required to warn such servant of dangers.</p> <p>5. Trial — Instruction—Construction With Other Instructions.- — An instruction that the duty of the master to furnish a safe place to work is nonassignable, and that it would be liable for any injury resulting to the servant from working in an unsafe place at the direction of any one authorized by the master, was not error, where there was a further instruction that, if the danger was open and a person of ordinary prudence would have seen it, then the blame was on the 14-year-old servant, and not the master.</p> <p>6. Master and Servant — Injuries to Servant — Negligence—Violation of Master's Rules and of Statute. — Where a minor servant was by the direction of one authorized by the master, employed at cleaning moving machinery, such, being in violation of the master’s rules and of the statute, was negligence as a matter of law.</p> <p>Note. — As to failure to warn being proximate cause of injury, see notes in 3 A. L. R. 1029 and 4 A. L. R. 478.</p>

Before Wilson, ]., Spring term, 1918. Action by A. J. Sentell against the Norris Cotton Mills. From judgment for plaintiff, defendant appeals. submit: The master is not bound to supervise the mere details of the work nor to provide against dangers which might be avoided by reasonable cai'e on the part of the servant: 4 Nab. M. & S., p. 1567.

Before Wilson, J., Greenville, Spring term, 1918. Action by J. L. Ballenger, administrator of Foster Simpson, deceased, against the Fisk-Carter Construction Company, for death of deceased when a car of lum6er ran down a grade into' a post, after he as directed unloosed the brakes, the track being, it was claimed, icy and slippery. Judgment for plaintiff, and defendant appeals. Messrs.

<p>1. Master and Servant — Master's Duty to Warn Ignorant Employee. —It is master’s duty to warn immature or ignorant employee working on unsafe machinery of the danger.</p> <p>2. Master and Servant — Injury to Employee — Dangerous Machinery — Jury Question. — In action for injuries to newly employed workman while working on planing machine with unprotected cylinder, where there was abundant evidence that machine was dangerous, and that no warning had been given, Court properly refused to direct verdict for defendant.</p> <p>3. Master and Servant — Dangerous Machinery — Negligence op Employer — Evidence.—In action for injuries to newly employed worker from unprotected knives attached to cylinder on planer on which employee was working, evidence held to support a reasonable inference of negligence by master as a proximate result of the injury.</p> <p>4. Master akb Servant — Dangerous Machinery — Planing Machine— Assumption op Risk. — Newly hired employee did not assume risk of working- on planing machine with cylinder with attached knives, though cylinder was in plain view, where its dangerous character was not obvious and employee did not know and had no opportunity to learn thereof.</p> <p>5. Master and Servant — Injury to Employee — Negligence of Fellow Servant. — In action for injuries to employee, who slipped on floor and cut his hand in cylinder, defense that injury was caused by negligence of fellow servant employed to sweep floor was not available, where there was no evidence that fellow servant disobeyed instructions by failing to sweep floor when required to do so by master.</p>

<p>1. Costs — Appeal—Recoed.—The case not conforming to the rule, the evidence not being given in narrative form, and much of it being wholly unnecessary, disbursements will not be allowed; both sides being responsible for the record.</p> <p>2. Ejectment — Necessity of Title. — One in possession of land has right to retain possession against all the world, except the true owner, and so need not show title to recover of one removing her from possession.</p>

Before Béuriíoy, J., Richland, Fall term, 1917. Action by Anne Moore Arthur against R. L. Hollowell. From order sustaining plaintiff’s demurrer to defendant’s answer, defendant appeals. submits: The execution of the deed was not legally proven so as to entitle it to registry: Civil Code 1912, section 3453; Cheves 272; 1 McMullen 373; 29 S. C. 170. If not legally proven, record of a deed is not notice to subsequent creditors and purchasers without notice: 22 $.

Before Memminger, J., Darlington, Fall term, 1917. .Action by R. D. Hide against the Hartsville Oil Mill. Judgment for plaintiff, and defendant appeals. The following are the exceptions referred to in opinion: (1) Because from the undisputed evidence the relation between McDonald and the defendant was that of buyer and seller, not agency, and his Honor erred in refusing the motion for a directed verdict and the motion for a new trial on said ground.

<p>Before Shipp, J., Union, Spring term, 1918.</p> <p>Proceedings by D. Ambrose Hughes against T. A. Green, to open arid set aside a settlement between guardian and ward. Decree of probate Court affirmed by Court of Common Pleas, and respondent appeals.</p> <p>submit: The final settlement made by the respondent as administrator of the estate of W. T. 'Hughes on May 20, 1909, and final settlement, made by the respondent as guardian of the estate of petitioner on January 2, 1913, were judgments: 20 S. C. 493; 53 S. C. 407. The ground upon which any Court zvould disturb the judgments or settlements between the parties is stated in the test-books to be fraud, misrepresentations or mutual mistake: 18 Cyc. 1215; 12 R. C. R. 1150. The rule in this State is that the distributees, being all of age and sui juris, having made a settlement, which was stated for them by the ordinary (but not in the form of a decree), intended to be in full, and the parties gave discharges in full to the administrator, were precluded from questioning any matter involved in the settlement, and had no right to open the settlement except upon proof of fraud, misrepresentations, concealment or mistake of facts: 21 S. C. Eq. 48; 2 S. C. 95; 4 S. C. 19; 19 S. C. 561 (468). Persons occupying a fiduciary relation are chargeable with interest from the beginning of the calendar year next after the appointment: 82 S. C. 109.</p> <p>submit: Green should account for the Goings rent, $2to, with interest from ipi3: 51 S. C. 506; 3 Rich. 45; A. & E. En. Raw, p. 70; 2 Strob. Raw 3. Expenses ordinary of attending to the estate are the executors’ or trustees’ personal expenses, covered by his allowance of commissions, and will not be allowed after complication any way for it. 2 McC. Chan., p. 213. An attorney’s or clerk’s fee can not be allowed except where the propriety and necessity for his employment is shown — none shown here: 11 S. C. 118; 60 S. C. 281. Generally the trustee should have been made to pay interest: 1566-69; 1 McC. Chan. 459; 11 A. & E. En. Raw 1215; C. & 1217d; 14 Rich. Eq. 304; 9 Rich. Eq. 184; 82 S. C. 117.</p>

<p>Before Smith, J., Colleton, Fall term, 1917.</p> <p>Action by William Griffin against H. S. Thayer and others. From judgment for plaintiff, defendants appeal.</p> <p>submit: That the defense of assumption of risk must be pleaded, and, not having been set up in the answer, defendants cannot now invoke it: 73 S. C. 511; 75 S. C. 68; 80 S. C. 7; 76 S. C. 452; 50 S. C. 53; 68 S. C. 514; 70 S. C. 470.</p>

Before Whaley, County Judge, Richland, September, 1917. Action by Mamie Dreher and her husband against the Columbia Mills Company.

Before Whaley, County Judge, Richland, March, 1918. Action by Hal H. E. Rhea against ■ Dora Maxwell, as administrator of the estate of Samuel W. Rhea, deceased.

Before Peurifoy, J., Anderson, Spring term, 1918. Action by W. J. McClure against the Plome Insurance Company of New York. Judgment for plaintiff, and defendant appeals. submit: The soliciting agent, Johnson, could not bind the company by an extraneous agreement as to who should adjust losses: 98 S. C. 279; 84' S. C. 181; 91 S. C. 316.

Before PeuriEoy, J., Jasper, Summer term, 1918. W. J. Robinson was convicted for forgery, and he appeals. submits: Standing aside a juror, even for insufficient cause, is discretionary with trial Judge: 84 S. E. 308; 71 S. E. 966.

' Before DeVorE, J., Fairfield, Spring term, 191?. Action by the Richmond Guano Company against Walter R. Kirkpatrick. From a judgment for plaintiff on a directed verdict, defendant appeals.

Before Gary, J., Clarendon, Fall term, 1917.' Action by F. C. Thomas against the Northwestern Railroad Company of South Carolina and another. Motion for directed verdict denied, and the Atlantic Coast Line Railroad appeals. cite: As to the refusal of motion for directed verdict: 3 I. C. C. 527; 40 I. C. C. 84; 45 I. C. C. 547.

<p>Before Whaley, County Judge, Richland, June term, 1918.</p> <p>Action by Santo Sotille, doing business as the SotilleCadillac Company, against A. M. Stokes. From a verdict and judgment for the defendant, plaintiff appeals.</p> <p>cite: As to the proper rule for estimating damages for the deprivation of the use of the automobile involved in this case: 81 S. C. 181 (1908); 69 N. Y. 589; 69 Am. Dec. 718 (1858); 77 S. C. 182; 82 S. C. 468 (1908); 50 N. E. 58; 155 N. Y. 446 (1898); 45 N. Y. 462; 41 S. E. (W. Va.) 911 (1902); 2 Ind. (2 Carter) 597 (1851); 5 App. D. C. 524; 48 Mich. 428; 12 N. W. 640 (1882); 91 Mich. 156; 30 Am. S. 466 (1892) ; 37 Pac. 51 (1894) ; 36 Barb. (N. Y.) 36 (1861) ; 51 N. W. (Ia.) 250 (1892); 20 Howd. Prac. (N. Y.) 102 (1860); 130 U. S. 620 (1889); 1 Pa. St. 165 (1865). As to his Honor, the presiding Judge, refusing plaintiffs motion for a nonsuit as to the counterclaim based upon an alleged breach of warranty; 9 S- C. E. (2 Mills) 413 (1818) ; 15 S. C. 93 (1880). As to verdict not being in accord with the instructions of the Court, and without evidence to support it: 82 S. C. 468 (1908); 66 S. C. 61 (1902); 102 S. C. 141.</p> <p>cites: On whole case: 60 S. C. 9; 107 S. C. 387; 98 S. C. 121; 83 S. C. 58; 89 S. C. 134; 90 S. C. 425; 81 S. C. 181; 102 S. C. 130; 80 S. C. 292; 3d Strob. 64, 71; 106 S. C. 133; 102 S. C. 295; 101 S. C. 462. As to his Honor’s submitting to the jury the question of failure of consideration as to the notes: 40 S. C. 110; 27 S. C. 621-; 105 S. C. 144; 101 S. C. 463.</p>

<p>Appeal and Error — Effect of Decision on Parties Not Appealing.— Where there were seven interests involved when the attorney’s fees were fixed and only three appealed, decision that decree as to appellants is reversed, but that parties not appealing are bound, means that the parties not appealing are bound for four-sevenths of fee as formerly fixed, and not for the whole fee.</p>

Before Memminger, J., Kershaw, Spring term, 1918. Action by J. E. Creed against the National Eire Insurance Company, of Hartford, Conn. Judgment for plaintiff, and defendant appeals. Mr. Robinson cites : As to absolute assignment of policy prior to fire: Cooley’s Briefs, pp. 82-83; 26 S. C. 505; 3 Met. 66; 16 Pet. 496; 2 Am. Read. Cas. 247; 19 Cyc. 635; Cooley 1063; Joyce on Insurance (2d Ed.), sec. 2308.

<p>Before Townsend, J., Richland, Summer term, 1918.</p> <p>Action by J. L. Mimnaugh against Carrie E. Baker and others. ' Judgment for plaintiff, and defendant named appeals.</p> <p>The following are the exceptions:</p> <p>1. His Honor, the presiding Judge, erred in finding as a matter of fact that the terms of sale between M. A. Evans and Carrie E. Baker was as follows, to wit: “$200 on plaintiff’s mortgage, $500 cash on delivery o'f deed, and balance of $2,800, to be evidenced by her bond payable six months after date, with interest at 8 per cent, per annum, payable monthly, and secured by her purchase money mortgage,” there being no testimony to support any such terms as “$500 cash on delivery of deed,” in particular.</p> <p>2. His Honor erred in deciding that the purchase was not concluded until April 20, 1916, on the payment of $500, when a deed was given by appellant; whereas, as a matter of law, the purchase was concluded February 27, 1916, when M. A. Evans and apellant reached an agreement as to the sale of the property, and under said agreement the purchaser was given immediate possession of the property and made valuable improvements thereon.</p> <p>3. His Honor erred in finding and concluding that Carrie E. Baker was not the head of a family and not entitled to homestead exemption; the error being in finding, contrary to the evidence, and law, that appellant’s sister and nieces had not become a part of her household, in that appellant had not adopted the nieces, whom she had supported and educated, and because the said nieces had not “severed their relations to the family in which they were born.”</p> <p>cites: As to second exception: 28 S. C. 58; 108 S. C. 451; 94 S. E. 868; 17 S. C. 98; 15 S.-C. 135; 17 A. & E. Ene. E. 781; 3 DeSaus. 74; 65 N. C. 240 (1886) ; 7 Att. Rep. 232. As to third exception: 26 S. C. 1; 33 S. C. 597; 32 S C. 168; 23 S. C. 316; 51 S. C. 493; 5 S. C. 493; Code 1912, vol. I, sec 3711. -</p> <p>cite: As to second exception: 45 S. C. 443, and cases cited; Pom. Eq., vol. E sections 367-8; vol. Ill, sec. 1260; 23 Cyc. 1373; 17 Enc. 780; Freeman on Judgments, vol. II, 4th Ed., secs. 363-364; 1 S. C. 62; 3 Jones on Mortgs. (7th Ed.), secs. 1684, 1687; 28 S. C. 58, and 15 S. C. 135, differ in vital particulars from case at bar. As to the usual procedure in cases of this kind: 3 Jones on Mortgs. (7th Ed.), sections 1685, 1687-8; 87 S. C. 116. As to third exception: 26 S. C. 18; 32 S. C. 168; 5 S. C. 493; 23 S. C. 216; 21 S. C.■ 11; Pom. Eq. 368; 38 S. C. 113.</p>

Before Whaeey, County Judge, Richland, - term. 1918. Action by Jess Adams and another against the Harditi Motor Company. Judgment for plaintiffs, and defendant .appeals. Mr. Graydon submits : The motion for a nonsuit as to special damages ought to have been granted.

Before DeVorE, J., Lexington, Summer term, 1918. Defendant, Prank Stone, was indicted for abandoning his wife, Eva Stone. Defendant’s motion to dismiss was granted, and the State appeals. submits: There are three exceptions that may well be considered together, as they raise practically the same issue, stated somewhat differently.

<p>1. Carriers — Passengers—Refusal to Carry on Ticket Sold — Dam ages. — Where the defendant carrier’s agent sold a ticket, and the. conductor refused because of the routing of the ticket to carry t lie purchaser, and she sued for the resulting damages, testimony held not at all suggestive of.the wilful conduct of the conductor, but io merely suggest negligence of the ticket seller for which plaintiff was compensated by a verdict for actual damages.</p> <p>2. Carriers — Contract of Transportation — Breach—Action for Neo ligence and Wilfulness. — In a passenger’s action against a railroad company for actual and punitive damages, where there is evidenciof negligence in the routing of the ticket but none of the conductor’s wilfulness in refusing to carry the passenger, the Court should so direct the jury, and a nonsuit on the whole case would be improper.</p>

Before Sease, J., Spartanburg, Summer term, 1918. Suit by Rosalie A. Biber, as landlord, against W. R. Dillingham, tenant, brought before a magistrate under Civ. Code 1912, sec. 3509, to eject the defendant, tenant. Judgment for the landlord, which the Circuit Court, upon appeal, reversed, and the plaintiff appeals cites: As to sufficiency of notice to tenant of the termination of the contract: Code of Daws of South Carolina (1912), sec. 3509; 54 S. C. 264; Am. & Eng. Enc.

Before SeasE, J., Spartanburg, Summer term, 1918 Action by J. N. Cudd against J. W. Rogers. From a judgment for defendant, plaintiff appeals. cite: As to the law of mortgagee’s consent to sale of mortgaged property: 33 S. C. 451 (474); 75 S. C. 201.

Before Mauldin, J., Spartanburg, Spring term, 1917. Suit by R. E. Daniel and others against E. C. Daniel and S. S. Daniel. Erom a decree in favor of S. S. Daniel, plaintiffs and E. C. Daniel, appeal submit: An order of final discharge is a disavowal of a trust: 26 S. C. 237.

Before Memminger, J., Richland, Spring term, 1918. Action by D. J. Honeycutt against Pacific Mills. Judgment for plaintiff, and defendant appeals. submit: Plaintiff’s injury was caused by the act of a fellow servant, and to hold defendant liable, he must show that the fellow servant, when the accident occurred, was obeying an order of the master: Rabatt on Master and Servant, vol. I, p. 1231.

Before Smith, J., Kershaw, January, 1918. Action by J. M. Carson and others against Mary B. McCaskill, the Bank of Bethune, and another.

Before PeuriBoy, J., Newberry, Fall term, 1916. Ira O. Burton was convicted of manslaughter, and he appeals. The following proceedings were had at the trial: During the selection of the jury the defendant made nine objections peremptorily. Juror No. 17, sworn, says: “I am not related by blood or marriage to the defendant. I haven’t formed or expressed an opinion as to the guilt or innocence, except I was a member of the coroner’s jury.

<p>Before- Greenville-Term -.</p> <p>Arthur Cagle-and Sergeant Moore were convicted of petit larceny and sentenced to the State Industrial School, and they appeal.</p>

Before SeasE, J., Barnwell--Term-. Action by Mrs. Cora Brooker against A. E. Silverthorne, Judgment for plaintiff, and defendant appeals. submits: No recovery for mental suffering is permissible except under the mental anguish statute: 84 S. C. 15. In this State dcunages cannot be recovered for mental anguish disconnected with, and in the absence of bodily injury: 78 S. C. 552; 58 S. C. 582; Addison on Tort's, section 1; Cooley on Torts, p. 3.