Volume 112 — South Carolina Reports

Before SéasE, J., Sumter, Spring term, 1918. Action for partition. From an order of nonsuit, plaintiffs appeal. submits: It cannot be doubted but that when the deed of 1881 was made to Mary A. Weeks and her children, the effect in the beginning was to make her and her children tenants in common: 91 S, C. 216; 41 S. E. 898.

Before PeuriEoy, J., Jasper, Summer term, 1917. Action by Leonora C. Pinckney and another against Edward Knowles and another. Judgment of nonsuit, and plaintiffs appeal. cite: As to error in granting a nonsuit: Greenleaf on Evidence, section 300 (13 Ed.); Code of Civil Procedure, sec. 331; Elliott 3d 558, 559, 597, 526; 1st Bailey Law, p. 39; 23 S. C. 96; 2 Rich. Law, p. 481; 33 S. C. 1, 89; Code of Civil Procedure, sec. 131; 74 S. C. 298, 300; 24 Stat. 130.

Before Townsend, J., Orangeburg, Spring term, 1918. Action by O. W. Hartness against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals.

Before SeasE, J., Marlboro, Fall term, 1918. William Josey was convicted for manslaughter, and he appeals. cite: As to the true and settled rule about retreat in self-defense: 96 S. C. 293; 33 S. C. 98; 66 S. C. 469. As to the fault in bringing on a difficulty so as to deprive defendant of the plea of self-defense: 85 S. C. 101; 79 S. C. 80.

.Before Wharry, County Judge, Richland, September term, 1918. Action by H. F. Wheeler against W. S. Smith. Judgment for plaintiff, and defendant appeals. submits: The case . was not properly on the docket at the time it zvas called for trial, and the cause should have been stricken from the calendar and the case continued: Code of Civil Procedure 1912, sec. 314; 46 S. C. 502.

<p>Before DeVore, J., Charleston, Spring term, 1919.</p> <p>Action by J. K. Nettles against W. P. Cantwell and others, Board of County Commissioners of Charleston county. From an order refusing to enjoin defendants from issuing bonds, plaintiff apeals. Appeal dismissed.</p> <p>Following is the agreed statement of facts referred to in opinion:</p> <p>It is agreed that the following facts shall constitute the agreed statement of facts for the hearing of the petition and answer in this cause:</p> <p>The plaintiff, J. K. Nettles, is a taxpayer in the city and county of Charleston, and the defendants constitute the board of county commissioners of Charleston, county.</p> <p>An act of the legislature of South Carolina, as per copy attached to the complaint, was duly passed and approved February 26, 1917. (30 St. at Large, p. 542), and an election thereunder held on .the 10th day of October, 1917', at which election the majority voted in favor of the issuance of said bonds.</p> <p>By an act of the legislature, approved the 12th day of February,. 1918 (30 St. at Barge, p. 1037), the election so held was declared valid in all respects, together with the bond issue in pursuance of said election, and the said bonds were thereby declared valid in all respects and valid obligations of the county of Charleston and incontestable in the hands of bona fide purchasers for value.</p> <p>The city of Charleston is a political subdivision of Charleston county.</p> <p>The assessed taxable value of property in Charleston county, according to auditor’s books for 1917, was $29,215,-450. The indebtedness of Charleston county, exclusive of the city of Charleston, was $26,000, as follows:</p> <p>Bonds, school district No. 1, Santee, $10,000; Edisto Island Bridge bonds, $13,000; James Island Bridge bonds, $3,000; total, $26,000.</p> <p>The assessed taxable value of property in the city of Charleston, according to assessors’ books, 1917, was $22,-316,315.</p> <p>The indebtedness of the city of Charleston was the sum of $5,618,000, as follows: 4% refund bonds, $3,350,000; 4)4% refund bonds, $100,000; 5% refund bonds, $313,500; 5% stock, $23,000; sewerage bonds, $331,500; waterworks bonds, $1,500,000; total, $5,618,000.</p> <p>In addition to above indebtedness, Charleston school district, which is comprised within the present limits of the city of Charleston, is authorized by act of legislature to issue $250,000 of bonds. Under amendment to Constitution, article X, section 5, approved January 30, 1917, the limitations imposed by that section do not apply to this district.</p> <p>Of the above indebtedness, $3,786,500 was outstanding at the time of the adoption of the Constitution of 1895, and largely exceeded and still exceeds 15 per cent, of the assessed taxable value of property in the city of Charleston.</p> <p>The sewerage and waterworks bonds are exempt from the limitations of article X, section 5, of the Constitution.</p> <p>The assessed valuation of property in Charleston county in 1918 was $32,008,261, and in the city of Charleston in 1918 was $23,700,137.</p> <p>The proceeds of the Charleston county bonds will be used by the sanitary and drainage commission of Charleston county in the construction of highways in certain townships in the county of Charleston without any contribution whatsoever from any of the said townships within which the proceeds of said bonds are to be employed.</p> <p>submit: We admit that if Verner v. Muller, 89 S. C. 54.5, is followed bonds can be issued by the county to buy bridges. The act under discussion is unconstitutional, in that it allows inequitable taxation: Const. 1895, art. X, sec. 1. The indebtedness of the city of Charleston now exceeds 15% °f value of all taxable property, and if Charleston county is permitted to isstie bonds the percentage of indebtedness will be still further increased in violation of the Constitution: Const. 1895, art. X, sec. 5.</p> <p>cites: The county has power to issue bonds to buy bridges: 89 S. C. 545. Act. does not violate sec. I, art. X, Const. 1895. The city of Charleston, by exceeding constitutional limitation, could not deprive a political division covering or extending over same territory from incurring indebtedness up to its constitutional limit: 72 S. C. 546; 104 S. C. 421; 42 S. C. 395. The greater part of the bonded indebtedness of the city of Charleston was created before the adoption of the Constitution of 1895, and article X, sec. 5, does not apply to this: 49 S. C. 78; 103 S. C. 10.</p>

Before Maupdin, J., Charleston, Spring term, 1918. Action by E'. C. E. Adams and others against M. V. Haselden, Elizabeth E. Horlbeck, W. C. Fripp, and others. Judgment for defendants, and plaintiffs appeal. cite: As to the right of plaintiffs, as individuals, to bring this action: Benjamin on Sales, Corbin’s Edition —; 20 Cyc., p. 80; 116 U. S. R. Ed., Book 29, p. 740 (Editor’s note); 160 U. S. R. Ed., Book 40, p. 543; 63 N. H. 152; 56 Am.

Before Rice, J., Greenville, Fall term, 1918. . Action by the Jefferson Milling Company against W. M. Ellison. From an order refusing to set aside a judgment and allow defendant to answer, defendant appeals. submits: The Court should have set the judgment aside on the ground that appellant was sick on the day the case was tried, under the attendance of a physician, who advised him that it would not be safe to leave home on that day: 82 S. C. 502; 105 S. C. 418.

Before DeVore, J., Lancaster, Fall term, 1917. Walter Evans and others were convicted of murder, and they appeal. submit: Where two or more persons are killed by one and the same act under one and the same impulse, only one crime is committed; and the slayer cannot be held to answer under more than one charge, but the indictment may charge the killing of two or more persons by the same act under one count: 10 Ency. P. &. P. 155; 42 Ind. 420; 7 Cold. (Tenn.) 508; 10 Enc.

Before Whaley, County Judge, Richland, - term, -. Action by Calvin Johnson against the Atlantic Coast Line Railway Company. Judgment for defendant, and plaintiff appeals. submits: The proximate cause of an injury is for the jury: 68 S. C. 55; 106 S. C. 220. No difference is made between large or small tools or appliances: State Const. 1895, article IX, sec. 15; S. C. Stats, of 1916, p. 970; Fed.

Before Smith, J., Richland, June term, 1917. Action by the Enterprise Bank against the Carolina Investment Company.

<p>1. Evidence — Parol Evidence — Warranty of Title. — In action for breach of warranty of title, testimony by defendants that they intended to convey to plaintiff only such interests as they had in the land described in the deed, which was in fact less than a sixth interest in each defendant, and to warrant title only to such interest, was not rendered admissible, over the objection that it was parol evidence to vary the terms of a written instrument, by plaintiffs pleading that, notwithstanding the terms of the deed made defendants warrantors of the entire estate, the intention was that each conveyed and warranted the title only to a sixth undivided interest.</p> <p>2. Trial — Excluding Irrelevant Evidence. — Although plaintiff, by failing to move to strike out irrelevant matter set up as a defense, has no right to have testimony supporting it excluded, the Court may and should exclude it either on plaintiff’s objection or its own motion.</p> <p>3. Covenants — Warranty of Title — Knowledge by Grantee of Defects. — Knowledge by the grantee of a defect in his grantor’s title is no defense to an action on the grantor’s warranty of title.</p>

Before Moore, J., Barnwell, Spring term, 1918. Action by T. J. Gilliam against W. Riley Black.

<p>1. Constitutional, Law — Jurisdiction—Power or Legislature. — Where the Constitution confers jurisdiction upon a Court, the legislature cannot take it away.</p> <p>2. Courts — Constitution—County Court — Court op Common Pleas.— Since the legislature cannot deprive the Court of Common Pleas of the jurisdiction in civil cases or of the appellate jurisdiction in cases within the jurisdiction of magistrates’ Courts, given by Const., art. V, sec. 15, the legislative power, given by sec. 1, to establish county Courts, may be exerted by conferring upon a county Court established by the legislature concurrent jurisdiction with that invested in the Court of Common Pleas, including, in view of sec. 23, concurrent jurisdiction over appeals from magistrates’ Courts.</p> <p>3. Statutes — Partial Unconstitutionaeitst. — In view of Const., art. V, secs. 1, IS, 23, the act creating a county Court for Richland county, act March 1, 1917 (30 St. at Large, p. 156), sec. 3, purporting to confer upon that Court exclusive jurisdiction over appeals from magistrates’ Courts, is constitutional so far as it gives such Court jurisdiction of such appeals, and unconstitutional and void only so far as it attempts to make that jurisdiction exclusive.</p>

Before Peuripoy, J., Charleston, Fall term, 1917. Action by Boliver B. Furman and another against the A. C. Tuxbury Band & Timber Company, a corporation.

Before PeuriBoy and Shipp, JJ., Greenwood, April term, 1917, and April term, 1918. Action by J. P. Muse against W. B. Clark, George Bailey, Hugh E. Giles and F. E. Donnald. From judgment for plaintiff, the first three defendants appeal. Messrs.

Before Whaley, County Judge, «Richland, - term, -. Action by I. C. Peterson against the Atlantic Coast Line Railroad Company. Judgment for defendant, and plaintiff appeals. submit: His Honor should have charged the law relating to passenger and' carrier, and left it to the jury to determine whether or not appellant was a passenger at the time of his injury: 6 Cyc.; pp. 336, 337; 52 S. C. 572; 5 Am. & Eng. Enc. 488 (2d Ed.) ; 51 S. C. 151.

Before Townsend, J., Kershaw, Summer term, 1918. Action by Callie Coulter against the Hermitage Cotton Mills. A nonsuit was allowed, and plaintiff appeals. cite: As to right of a wife to maintain suit for a tort without joining her husband as a party with her: 82 S. C. 560; (N. Y.) E. R. A. 553; Code of Procedure, sec. 445; Am. & Eng. Enc., vol. Ill, 1st Ed., p. 235; 4 Denn. (N. Y.) 80; 12 N. Y. 622; Am. & Eng.'Ency. E., 2d Ed., vol.

Before Moore, J., Jasper, Spring term, 1917. Aleas Cooler and another were convicted of murder, and they appeal. submit: The defendants were entitled to twenty challenges: Criminal Code, vol. II, Code of'Raws, 1912, sec. 82. The Circuit Judge had a perfect legal right to remove a juror from the panel or to dismiss the entire panel: R. C. R., vol. VIII, p. 156, sec. 145, and cases cited thereunder; R. C. R., vol. VIII, p. 155, sec. 143.

Before Prince/J., Lee, Fall term, 1916. Willie Bethune was convicted of murder, and appeals. submit: The record does not disclose any evidence of murder, and it was error to refuse to direct a verdict in favor of defendant, in so far as the charge of murder was laid against him: 30 S. C. 74; 72 S. C. 110. There is no analogy between the case of State v. Emerson, p8 S. C., p. 95, and the case at bar.

Before Wilson, J., Horry, Fall term, 1917. Action by Burroughs & Collins Co. and Samuel Q. Floyd against Matthew T. Floyd and others. From a judgment dismissing the complaint, plaintiffs appeal. Mr. Woodward submits: That this deed should be reformed so as to convey a fee simple: 85 S. C. 472; 92 S. C. 305; 94 S. C. 349; 106 S. C., 346.

Before Wilson, J., Greenville, Spring term, 1918. Action by James M. Richardson against R. W. Ellis. From an order confirming findings of master, to whom case was referred, defendant appeals. Mr. John C. Henry, for appellant, submits: That if equities should be found equal, prior equity would prevail: 10 R. C. E. 386, ,387. An estate cannot be thrust upon a person against his will: 8 R. C. E. 975.

Before Whaley, County Judge, Richland county, November term, 1917. Action by Mrs. M. S. Salley against E. W. Parker and J. A. H. Geiger.

Before Spain, J., Horry, Spring term, 1917. Action by Flora J. Holliday against Sarah Agnes Jordan. Judgment for plaintiff, and defendant appeals.

<p>1. Appeal and Error — Construction of Mandate — Modification of Decree.- — -Where in action to set aside a deed and for an accounting trial Court decided against plaintiff on both issues and ordered him to pay costs, but Supreme Court on appeal modified decision so as to . render judgment for plaintiff as to the accounting, the modification had the effect of leaving open the question of costs.</p> <p>2. Appeal and Error — Erroneous Reasons for Ruling — Harmless Error. — Though Judge of lower Court .in carrying out modification of decree in accordance with opinion of Supreme Court erred in holding that decree as to costs was not reversed by Supreme Court, the . error is without prejudice, where it appears upon the face of his decree that in his judgment the costs should be adjudged against plaintiff as they were by the decree modified.</p>

Before Wieson, J., chambers, Manning, S. C., June 6. Action brought in the Common Pleas Court, of Sumter county, for Virginia Shearer against Lee Shearer. Prom an order granting temporary alimony and attorney’s fees, defendant appeals. cite: As to the law governing the allowance of alimony: 91 S. C. 245; 10 Rich. Pq. 173; 68 S. C. 123; 100 S. C. 298. cite: As to the law governing the allowance of alimony: 60 S. C. 447; 91 S. C. 245; 79 S. C. 59.

Before SeasE, J., Williamsburg, Spring term, 1918. Action by the Rankin Lumber Company against R. L. Graveley and others, and from an order of the Common Pleas Circuit Court, refusing a motion by the defendant, the Pee Dee Brick & Tile Company, a corporation, etc., to change the place of trial from Williamsburg county to Marion county, the defendants appeal. submit: The defendant, trustees, were not and are not necessary parties to this action: Code of Civil Procedure,…

Before Memminger, J., Richland, Spring term,--. Action by William J. Walsh and others against Matilda A. Evans and others. Judgment of nonsuit, and plaintiffs appeal. Code Civ. Proc. 1912, sec. 123, is as follows: “1.

Before Rice, J., Spartanburg, - term, --. Action by Annie L. Wingo against the-New York Fife Insurance Company, and by Augustus F. Maxwell against the same defendant. The cases were tried together by consent. judgment for defendant, and plaintiffs appeal. submit: There is only one question in the case: (1) Was there any testimony upon which the jury could base a verdict for the plaintiffs?

<p>Criminal Law — Selection op Jury — Mistrial—Homicide Prosecution. —In murder prosecution, where juror, after being sworn, informed Court that he was opposed to capital punishment, and would not agree to any verdict involving infliction of death penalty, Court did not err in ordering a mistrial, though two jurors had been accepted and sworn and had taken their seats as jurors in the case.</p>

Before SeasE, J., Spartanburg, - term, -. Action by A. C. Gossett against John T. Gladden before a magistrate. Judgment for plaintiff. An order for' new trial was entered which, on plaintiff’s appeal to- the Circuit Court, was reversed, and defendant appeals. submits: Magistrates have the same power to grant new trials as Circuit Judges: Code of Procedure 1912, sec. 97, subd. 17.

In the Original Jurisdiction of the Supreme Court. Application by Henry E. Raines and others for certiorari, A. Marion Stone and others being respondents, to review the action of the city Democratic executive committee of the city of Charleston in refusing to recognize O. H. Bissell as a member of such committee and refusing him participation with the committee in the determination of certain contests. Writ refused, rule discharged, temporary restraining order revoked.

Before Moore, J., Aiken,-term,-. Action by M. W. Spradley against the Georgia Home Insurance Company. Judgment for plaintiff, and defendant appeals. The following are the reasons of the lower Court for holding the policy divisible: The defendant contends that the policy stipulates, that the entire policy shall be void if the title to the property covered thereby is not in the party insured.

Before Memminger, J., Fairfield, Fall term, 1918. Action by Thomas A. Fairey against C. E. Strange and wife.

Before Gary, J., Raurens, Summer term, 1918. Action by John A. Franks against W. G. Ross. Judgment for plaintiff, and defendant appeals. The landlord’s order referred to in the opinion is as follows : • “Mr. John A. Franks: Please arrange for Press Davenport to get enough acid prosphate to mix with cotton seed meal, which he can swap seed for, to make two or three tons of mixture, or as much less as he wishes, to- go on our place he works.

Before Prince, J., Kershaw, Fall term, 1917. Action by the State of South Carolina against E. H. Bowen and others. Judgment for plaintiff, and defendants appeal. submit: It was error to admit in evidence a certified copy of original bond on file in the State treasurer’s office — the original bond was the best evidence: Vol. I, Code of Laws of SC. 1912, sec. 3992; Code of Laws of S. C. 1912, sec. 3996.

Before Wharey, County Judge, Richland, -- term, -. Action by Kirkland Distributing Company against the Seaboard Air Dine Railway and the City of Columbia. Prom a judgment for defendants, plaintiff appeals. submit: That the defendants are liable for joint and concurrent negligence in causing the injury complained of.

Before Townsend, J., Richland, Summer term, 1918. Action by E. T. Harwell against the Columbia Mills. Judgment for plaintiff, and defendant appeals. cites: As to assumption of risk: 137 Ky. 414, 421; 1 Shearm & Redf. on Neg. (6th Ed.), section 209; 179 S. W. R. 34 (Mo.); 156 Wis. 452; 151 Wis. 149, 153; 151 Ap. Div. (N. Y.) 432; 122 Ap. (N. Y.) 480; 155 Ind. 507; 27 R. I. 158; 205 Pa. St. 170; 178 N. Y. 377; 61 Att. Rep. 388; 72 N. J. Raw 218.

<p>Before Pfurifoy, J., Anderson, Fall term, 1910.</p> <p>Action by Jane E. Ellison and others against W. E. Mattison, individually and as administrator, c. t. a. of Peter Johnson, deceased, and J. D. Stone. From a judgment for plaintiffs, defendants appeal.</p> <p>W. E. Mattison. Messrs. Bonham, Watkins & Allen submit: It was error to find that Mattison was barred by the statute of limitations. The party pleading the bar of the statute of limitations must prove it clearly: 71 S. C. 78. Stone cannot claim the protection of the statute of limitations. Stone became by construction of law trustee of the children of Mary Bllison and Nancy Mattison: 2 McCord Ch. 143. There can be no adverse claim or possession by trustee against cestui que trust: 35 S. C. 430. Constructive trusts arise through the doctrine of equitable estoppel: 106 S. C. 291. Stone had constructive trust through the will of Peter Johnson and the rights of the remaindermen thereunder and is bound thereby: 76 S. C. 415. A trustee will not be allowed by his own act to defeat or destroy his trust; and those who deal with him in respect of the trust estate with knowledge of the trust, are bound by the terms of the trust: 100 S. C. 222.</p> <p>J. D. Stone, submit: That under Peter Johnson’s will, Caroline and Mary took absolute estates: 1 McC. Ch. 90, page 51; 17 S. C. 567; 41 S. C. 298; note in Am. Cas. 1917b. As to the will of Peter Johnson having been carried out: 5 Rich. Eq. 215; 23 S. C. 515; 23 S. C. 382; 2 Williams Executors 1010; 56 S. C. —; 52 S. C. 88; 12 S. C. 263; 96 S. C. 82. As to statutes of limitations: 50 S. C. 128; 85 S. C. 173. As to adverse possession: 72 S. C. 312, 320; 78 S. C. 155; 80 S. C. 110; Code of Civil Procedure, sec. 134.</p> <p>submit: Caroline Mattison and Mary Bllison took, under the will of Peter Johnson life estates with remainder to their children: 90 S. C. 146, 149; 99 S. C. 151, 156, 157. The word “desire” as used in the will of Peter Johnson is mandatory and not merely precatory: 20 Atl. 624; 137 Pa. 448; 21 Am. St. Rep. 890; 47 Atl. 633, 635.; 61 N.-J. Eq. 25; 37 N. E. 203; (Pa.) 8 Atl. 920, 922; 15 Ohio St. 103, 111; 114 Atl. 885, 886; 44 N. J. Eq. (17 Stew.) 460; 9 Cyc. 48; 75 Atl. 100, 10b; 75 N. H. 408; 37 L. R. A. (N. S.) 646. The plea of res adjudicata is unsound: 90 S. C. 146; 99 S. C. 151, 154, 155; 90 S. C. 147; 72 S. C. 991; 90 S. C. 158. The sale directed by the zvill has never been made, hence the interests of the respondents have not been divested: 90 S. C. 146; 35 S. C. 531; 99 S. C. 151, 155. As to adverse possession, the Circuit Court found as a matter of fact that the possession was not adverse, and this finding cannot be reviewed by the Supreme Court: 89 S. C. 555; 95 S. C. 245; 72 S. C. 312; 78 S. C. 457, 458; 72 S. C. 287; 51 S. E. 805; 90 S. C. 319, 321; 89 S. C. 9. The only way in which the interests of respondents could have been divested without their consent was an actual sale under the power, and this has never been made: 99 S. C. 155. It was the duty of Stone to hold the fund and use it during the life of Mary, and at her death in ipió to deliver it over to the plaintiff: 35 S. C. 422, 430; 100 S. C. 220; 76 S. C. 415; 106 S. C. 386. Upon the failure of Stone (in ipió) to turn the fund over to respondents, the statute of limitations commenced to run and not before. Moreover, a trustee in such case should not be permitted to plead the statute: 104 S. C. 1. The forty-year limitation is not applicable in this case: 108 S. C. 302.</p>

Before' Mauldin, J., Greenville, Summer term, 1918. Action by Samuel M. Beam against the Continental Casualty Company.

Before Spain, J., Greenville, Fall term, 1917. Action by the Greenville Nursery Company against the Southern Railway Company and the Carolina, Clinchfield & Ohio Railway Company. From a judgment in favor of the plaintiff, the first named defendant appeals.

Before Shipp and Mpmminger, JJ., Dillon, Spring term and Fall term, 1917. Action by Kate F. Donaldson against D. W. Temple. Judgment for plaintiff, and defendant appeals. submit: That appellant could not be held liable for the rental value of the premises, but only for such rents as he actually received: 2d Strob. Eq. 160; 14 S. C. 292; 38 S. C. 440; 39 S. C. 239'; 42 S. C. 537.

<p>Before SeasE, J., Spartanburg, Summer term, 1918.</p> <p>Action by Lee Brothers & Greer against W. S. Glenn and another. Judgment for plaintiffs, and defendant appeal.</p> <p>submit: Under the general denial of the allegations of the complaint, the defendant may give in evidence anything which contradicts or tends to contradict the plaintiff’s proof, or disprove the claim by him: 8 S. C. 258'; Pomeroy’s Remedies and Remedial Rights, sec. 660.</p> <p>submits: The testimony objected to was incompetent as tending to establish a distinct affirmative defense, and, therefore,inadmissible under a general denial: 8 S. C. 258. The object of a pleading is to advise the party of the issues he will have to admit and new matter which does not controvert the plaintiff’s case cannot be proved under a general denial: 20 S. C. 522.</p>

Action by A. B. Patterson against the British and American Mortgage Company, R. B. Creech, and C. F. Rizer. Judgment of foreclosure and sale, and subsequent to sale defendant, R. B. Creech, petitions to have sale vacated and set aside, opposed by H. Grady Boynton, purchaser. From judgment confirming sale, defendant, R. B. Creech, appeals.

Before Memminger, J., Dillon, Fall term, -. Action by W. M. Hamer against J. H. David. Judgment for defendant, and plaintiff appeals. Mr. Rogers submits: One cannot rely upon misstatements of fact, if the truth is within reach: 101 S. C. 236; 107 S. C. 203; Columbia Savings Bank & Trust Company v. True: Advance Sheets, December 4, 1918. A party to a contract cannot hold fast to the benefits, and at the same time avoid the obligations under it: 88 S. C. 160.

Before SeasE, J., Spartanburg, Summer term, 1918. Action by Tñomas P. Pearson, administrator of the estate of S. F. Pearson, deceased, against the Piedmont & Northern Railway Company. Judgment for plaintiff, and defendant appeals. submit: Counsel’s contention is not good law, even as against an admittedly bald trespasser and dead-beat: 67 S. C. 396; 23 S. C. 535; 69 S. C. 342; 51 S. C. 154.

Before W. P. Greene, special Judge, Spartanburg,term, 1918. Action by Ila Coggins against C. F. Cannon. 'Judgment for plaintiff, and defendant appeals.

Before Sease, J., Spartanburg, Summer term, 1918. Action by the Southern Stove Works against the Converse Savings Bank. From an order granting a new trial after a verdict for plaintiff, plaintiff appeals. The check in question was drawn by the Turner-Setzler Furniture Company in favor of plaintiff on defendant bank, deposited by plaintiff in the Old State National Bank of Evansville, Ind., and sent by that bank to defendant for collection.

Before Townsend, J., Orangeburg, Spring term, 1918. Action by the Savannah Guano Company against B. T. Fogle. Judgment for plaintiff, and defendant appeals. Mr. Williams submits: “A contract may be formed by accepting a paper containing terms.

Before Prince, J., Fairfield, Spring term, 1918. submit: Is the contract of sale in this case to be construed as a conditional sale or as a chattel mortgage? 6 Am. & En. Enc. of Law, p. 453; Harper’s Raw 391; 16 (S. C. R. 391) ; Rice’s Raw 421; 24 S. C. R. 421; 14 S. C. 522; 18 S. C. 446; 21 S. C. 212; 27 S. C. 624; 43 S. C. 39.

Before Sease, J., Sumter, Fall term, 1918. Ben Lesesne, Mat Hannibal, John Richardson and Cunningham White were convicted of assault and battery, and appeal. The following facts are set forth in the record: The defendants, Ben Lesesne, Mat Hannibal, John Richardson, and Cunningham White were jointly indicted with one Harrison Prince for assault and battery of a high and aggravated nature.

Before Gary, J., York, Spring term, 1919. Application by C. B. McFadden against Frank Collier and another to enjoin sale of automobile under attachment imposed by J. M. Stewart, attachment plaintiff, From a decree ordering the sheriff to proceed to sell the automobile, C. B. McFadden appeals.

Before Prince, J., Bee, Fall term, 1917. Action by Elsie Rodgers against D. W. Rodgers, in which F. P. Rodgers intervened as a defendant. From a judgment for defendant, F. P. Rodgers, plaintiff, appeals. cite: As to notice beginning with the filing of the lis pendens, even though the complaint be not filed: 19 S. C. 337; 67 S. C. 251; 71 S. C. 1.

Before SeasE, J., Barnwell, Kali term, 1917. Action by Kannie May Halford against the Southern Railway Company.

Before Shipp, J., Spartanburg, - term, -. Action by J. H. Coggins against Wm. McKinney and Minnie Coggins. From a judgment for plaintiff for a part of the relief demanded, both parties appeal. cite: As to statute of fraiids: 21 S. C. 480; 3 Pomeroy Eq.

Before Memminger, J., York, Fall term, 1918. Action by G. H. Greene against H.- G. Mobley, and another. Decree for defendant and plaintiff appeals. submits: The deed was void under .the Statute of Elizabeth: 12 R. C. L., p. 492; 30 Cyc. 420; 30 S. C. 431; 97 S. C. 261; 11 S. C. ; Ency. P. & Pr„ vol. XXI, pp. 70, 76; 20 Cyc. 746; 26 S. C. 175; Code 1912, vol.

<p>Before Shipp, J., Florence, Summer term, 1917.</p> <p>Action by Charles M. Betts & Co. against Sallie B. Richardson. Judgment for plaintiff, and defendant appeals.</p> <p>Exception 3 alleged error in the Court’s finding that the debt due the plaintiff is for improvements on the homestead, and that under section 28 of article III of the Constitution of South Carolina 1895, and section 3718, vol. I, Code of Raws of South Carolina 1912, the defendant is not entitled to homestead in said property as against plaintiff’s debt, in that such conclusion is contrary to the law and the overwhelming weight of the evidence in this cause, for the reason that, by the complaint and the testimony of the plaintiff’s witnesses and all other evidence in this cause, it appears conclusively that the plaintiff’s judgment against the said B. B. Richardson was obtained in an action founded upon the demand for the payment of money only in the nature of a promissory note, but it does not appear, by allegation or testimony or any other evidence in this cause, that said judgment was obtained, as provided in section 3718, to secure or enforce the payment either of taxes or of obligations contracted for the purpose of said homestead or the erection or making of improvements or repairs thereon, or for the purchase of said personal property, and that the Court or authority issuing said process had certified thereon that the same was for some one or more of said purposes and no other; and it is respectfully submitted, as a legal conclusion, that the certificate not having been indorsed on said process for purchase money, and the plaintiff having failed to sue and perfect a mechanic’s lien against said property, the homestead exemption should be allowed the defendant out of said real property in exclusion of and prior to plaintiff’s judgment.</p> <p>cites: As to error of the Circuit Judge in his finding of fact that B. B. Richardson was insolvent at the time of the conveyance herein assailed: 12 R. C. L. 578; 1 Nott. & McCord 334; 1 Bailey Law 575; 102 S. C. 19; 34 S. C. 1. As to error in the presiding Judge’s findings that debt due plaintiff is for improvements On the homestead and that defendant is not entitled to homestead exemption against such debt: Civil Code 1912, sec. 3718; 30 S. C. 459; 15 S. C. 36. As to error of Circuit Judge in ordering that plaintiff’s demand be paid first in priority to the claim of defendant for disbursements made by her from her personal funds for funeral and other expenses of last illness: Civil Code 1912, sec. 3632.</p> <p>Mr. Page cites: As to sufficient proof of insolvency: 20 S. C. 390; 7 S. E. 743; 18 S. C. 526. This action was brought under section 3455, Code of Lazvs 1912, vol. I, and it is only necessary to show that the creditor is unable to obtain satisfaction of the debt at the time of the commencement of the action: 94 S. C. 80; 77 S. E. 742; 33 S. C. 530; 12 S. E. 419; 34 S. C. 1; 12 S. E. 560; 24 S. C. 506. As to the deed in question being voluntary: 35 S. C. 436; 14 S. E. 935; 98 S. C. 402; 82 S. E. 638; Bailey Eq. 142 (8 S. C. Eq. 142) ; 12 R. C. L. 476, and cases cited; Id. 513 and 592, sec. 107, and cases cited; 12 R. C. L. 333; 39 S. C. 146; 17 S. E. 696; 47 S. C. 297; 25 S. E. 162; 18 S. C. 528; 34 S. C. 1; 12 S. E. 560; 20 Cyc. 469; 102 S. C. 19; 96 S. C. 204; 20 Cyc. 457 and 511; 64 S. C. 82; 41 S. E. 829; 87 S. C. 494 ; 70 S. E. 165; 2 Rich. Eg. 54; 82 S. C. 97; 63 -S. E. 62; 64 S. C. 354; 42 S. E. 169; 55 S. C. 9; 33 S. E. 15; 105 S. C. 86; 89 S. E. 533; 35 S. C. 431; 14 S. E. 935; 24 S. C. 490; 27 S. C. 272; 3 S. E. 340; 22 S. C. 512; 38 S. C. 496; 17 S. E. 255; 54 S. C. 514; 32 S. E. 523; 22 & C. 200; 36 S. C. 49; 14 S. E. 929. As to defendant not being entitled to homestead exemption against plaintiff’s debt: 18 S. C. 235; 33 S. C. 229; 11 S. E. 703; 30 S. C. 459 ; 9 S. E. 518; 25 S. C. 273; 55 S. C. 441; 33 S. E. 500; 84 S. C. 109; 65 S- E. 1019.</p>

Before Memminger, J., Charleston, - term, -. Action by M. Dumas against Thomas W. Carroll and another. Decree for plaintiff, and defendarits appeal. The following is the agreed statement of facts and decree appealed from: On August 1, 1867, one S. N. Hart conveyed to Robert Fleming the premises 305 King street, and bond and mortgage was given for two-thirds of purchase price, which was satisfied of record March 17, 1869.

Before Whaley, County Judge, Richland, - term, -. . Action by Alonzo Keith against Atlantic Coast Line Railroad Company, began in magistrate’s Court, and from an adverse judgment defendant appealed to the County Court. From a judgment of the County Court for defendant, plaintiff appeals.

<p>Before SeasE, J., Sumter, Spring term, 1918.</p> <p>Action by Peter Harry against H. D. Barnett for breach of cropper contracts for the years 1914 and 1915. Judgment for plaintiff, and defendant appeals.</p> <p>The contract for 1914, differing from that for 1915 only that in 1915 plaintiff was to plant 20 acres of cotton and 10 acres of corn, was, so far as material, as follows:</p> <p>“This agreement made between estate J. E. Barnett, of the first part, and Peter Harry, of the second part, witnesseth:</p> <p>“That the party of the second part agrees to cultivate a two-horse farm for party of the first part, on the place known as the Wells farm. The party of the second part agrees to prepare the land, plant and cultivate 40 acres in cotton, 10 acres in corn, and that they will prepare and plant the land and cultivate and gather the crop by the direction of the party of the first part or his agent, and will do any other work about that farm that may be necessary; that is, to keep ditch banks and hedgerows clean and the ditches open. And it is agreed, further, that the party of the second part shall use as much commercial fertilizer as may be agreed upon by the party of the first part, and that the party of the second part shall pay one-half of all manures used on said farm during present year. The party of the second part agrees also to furnish all labor that may be necessary to the making and gathering of said crop, and that no claim shall be made for same; and, further, that he will put all cotton produced on said farm in marketable condition, and will pay for one-half expenses of ginning and will pay for one-half bagging and ties used on said cotton.</p> <p>“In consideration of the above agreements being faithfully carried out by the party of the second part, party of the first part agrees to give the party of the second part one-half of the entire crop made on said farm, except the cotton seed. And it is agreed that the party of the second part is to get one-half of the cotton seed made the present year, provided he remain on said farm another year, and use said seed as manure only; otherwise, party of the second part to have no claim on seed whatever.”</p> <p>The first three exceptions are as follows:</p> <p>1. That his Honor, the trial Judge, erred in stating in the presence of the jury, “A man- wouldn’t make that kind of contract — peonage one — that would require him to stay on his place and serve the balance of his life,” for the reason that said remark conveyed to the jury the trial Judge’s opinion upon a fact in dispute between the parties, in violation of the constitutional prohibition, and his Honor further erred in refusing to grant a new trial upon motion duly made on this ground.</p> <p>2. That his Honor, the trial Judge, erred in refusing defendant’s third request to charge, said request being as follows : “I charge you that under the contract of 1914 the plaintiff was entitled to have the cotton seed from the 1914 crop applied to the 1915 crop in proportion to the acres planted; that is to say, if the plaintiff planted 50 acres in 1914, under the contract, and only planted 25 acres in 1915, then he would be entitled to have one-half of the seed grown in 1914 applied to his 1915 crop, and unless you find that the defendant failed to apply the seed.grown in 1914 in accordance with this principle, the plaintiff cannot recover. It is for you to say whether or not Harry executed the contract” —for the reason that said request contained a sound proposition of law applicable to the facts of this case.</p> <p>3. That his Honor erred in construing the words “said farm,” in the phrase “provided he remain on said farm another year,” as meaning the Wells place, for the reason that said words refer to the particular portion of the Wells place cultivated by plaintiff during the particular year in question, and his Honor erred in not so holding.</p> <p>cite: As to charge upon facts: 99 S. C. 221; 81 S. C. 379; 62 S. E. 438; 80 S. C. 383; 61 S. C. 891; 73 S. C. 383. Plaintiff never had title to the cotton in question: 70 S. C. 392; 15 S. C. 86; 52 S. C. 580; 2 Bail. 581; 1 Hill 364; 1 Hill 339. Trover, which was the common law action upon a conversion, cannot he maintained by one zvho has neither title nor right of possession: 38 Cyc. 2044.</p> <p>cite: As to the allegation of error complaining of the reason given by the trial Judge for admitting certain testimony upon the trial, the allegation of error being that the Judge had given in the presence of the jury his opinion about a fact in dispute between the parties: Stokes v. Murray, 99 S. C. 221, cited and differentiated.</p>

<p>Before DeVore, J., Charleston, Spring term, 1919.</p> <p>In the matter of the will of Morton Hunt. Proceedings by Mrs. Reta Baring Hunt to probate Will. Jurisdiction of Court objected to by J. A. Guerin, and from judgment of Circuit Court affirming judgment of probate Court sustaining its jurisdiction, he appeals.</p> <p>submits: That A. Morton Hunt died a resident of Dorchester county: 107 S. C. 209; 17 S. C. Eq., p. 1.</p> <p>submit: This being a matter relating to the probate of a will, it is exclusively a law matter triable on the law side of the Court, and the issue made on the question of jurisdiction being solely a question of fact, the concurrent findings of the probate Judge and the Circuit Judge are conclusive and not reviewable in this Court: Vol. I, Code of 1912, secs. 34, 77; 74 S. C. 189; 3 S. C. 531; 73 S. C. 79; 15 S. C. 80; 19 S. C. 604; 43 S. C. 338; 21 S. C. 272;. 25 S. C. 381; 26 S. C. 298; 2 S. C. 24; 40 S. C. 276; 18 S. E. 794; 13 S. C. 37; 18 S. C. 198; 20 S'. C. 471; 80 Rich. 90; 35 S. C. 417; 14 S. E. 931; 82 S. C. 42; 12 Rich. Eq. 196; 74 S. C. 189; 53 S. E. 170; 104 S. C. 339. Hven if reviewable, the decision of the Circuit Jtidge is certainly not “opposed to the clear weight of the testimony,” and even "in equity cases the findings of fact of the probate Court will not be interfered with unless they appear to be (in the language of Mr. Justice Woods in the case of In re Solomon’s Estate, supra), “opposed to the clear weight of the testimony:” 13 S. C. 87; 18 S. C. 193.</p>

Before Gary, J., Dillon, Spring term, 1918. Action by the Beaufort County Dumber Company against James H. Carabo and another. From an order of injunction, defendants appeal. submits: That the building of a tenant house is an ordinary plantation purpose:,93 S. C. 82; 96 S. C. 140.

Criminal Law — Venue—Failure to Support Wife and Children.— In prosecution of husband, under Cr. Code 1912, sec. 697, for failure to support wife and children, the county of husband’s residence, and not that of residence of wife and children, was proper county for trial; the offense having been committed in such county. Before Townsend, J.,v Kershaw, Summer term, 1919.

Before Mauldin, J., Lexington, Spring term/ 1919. Action by Henry Son and others against Ethel B. Shealy and another. Judgment for the plaintiffs, and defendants appeal. cites: As to the construction of the deed of Isaac Alewine: 6 Rich.

<p>Before Townsend, J., Barnwell, Fall term, 1918.</p> <p>Action by Sallie F. Mathis against J. W. Hair and others. Decree for plaintiff, and defendants appeal. ■</p> <p>cite: As to the failure of plaintiff to show a prior agreement or intention which is not expressed in the deed, to convey a fee simple, fee conditional or other estate, which was left out of the deed by reason of a. mistake of law: 94 S. C. 349; 67 S. C. 280; 45 S. E. 164; 44 S. C. 22; 21 S. E. 973; 4 Rich. Eq. 349. Cases distinguished: 85 S. C. 472; 95 S. C. 305; 106 S. C. 346. As to the plaintiff being a volunteer in the subject matter of this litigation: 2d Pomeroy 588, 679; 34. Cyc. 151; 44 S. C. 22; 21 S. E. 984 (dissenting opinion). As to laches of plaintiff and her grantor in consulting a lawyer, etc.: 44 S. C. 22; 21 S. E. 984; 4 Rich. Eq. 307.</p> <p>cite: As to the reformation of deeds in which either there is no habendum clause, or in which the habendum clause contained no words of inheritance: 85 S. C. 472; 92 S. C. 305; 94 S. C. 349; 106 S. C. 346; 44 S. C. 22. As to ignorance of law or mistake of law: Rich. Eq. 349; 20 S. C. 317; 26 S. C. 47; 109 S. C. —; 96 S. C. 604; 49 S. C. 27; 44 S. C. 37; 67 S. C. 480. As to laches: 106 S. C. 346; 106 S. C. 310; 44 S. C. 37.</p>

Before Peurieoy, J., Oconee, Spring term, 1918. Action by the Standard Boiler & Plate Iron Company against W. S. Brock. Judgment for defendant, and plaintiff appeals.

Before PeuriRoy, J., Oconee, Spring term, 1918. Action by J. M. Watkins and others against W. M. Justice and others. From judgment for plaintiff, defendants appeal. submit: First exception is too general to merit the consideration of the Court: 96 S. E. 290.

Before DeVorE, J., Abbeville, Fall term, 1918. Action by the Calhoun Mills against the Black Diamond Collieries.

<p>Before SeasB, J., Spartanburg, Summer term, 1918.</p> <p>Action by Elizabeth S. MacKendree and others against the Southern States Life Insurance Company of Alabama. Judgment for defendant, and plaintiffs appeal.</p> <p>Plaintiff’s citations, referred to in the opinion, on question of contestability of life insurance policies for fraud: Insurance Co. v. Arnold, 97 S. C. 421; 81 S. E. 964; Ann. Cas. 1916c, 706; Reagan v. Union Mut. Life Ins. Co., 189 Mass, 555; 76 N. E. 217; 2 L. R. A. (N. S.) 821; 109 Am. St. Rep. 659; 4 Ann. Cas. 362; Great Western Life Ins. Co. v. Suavely, 206 Fed. 20; 124 C. C. A. 154; 46 L. R. A. (N. 5.) 1056; Clement v. New York Life Ins. Co., 101 Tenn. 22; 46 S. W. 561; 42 L. R. A. 247; 70 Am. St. Rep. 650; Massachusetts Benefit Life Ass’n v. Robinson, 104 Ga. 256; 30 S. E. 918; 42 L. R. A. 261. See Huestess v. Insurance Co., 88 S. C. 35; 70 S. E. 403; Moulor v. American Life Ins. Co., 111 U. S. 335; 4 Sup. Ct. 466; 28 L. Ed. 450; Owen v. Insurance Co., 84 S. C. 254; 66 S. E. 290; 137 Am. St. Rep. 845; Beard v. Insurance Co., 104 S. C. 45; 88 S. E. 285.</p> <p>Defendant’s citations: New York Life Ins. Co. v. Fletcher, 117 U. S. 519; 6 Sup. Ct. 837; 29 R. Ed. 934; Insurance Co. v. Arnold, 97 S. C. 418; 81 S. E. 964; Ann. Cas. 1916c, 706; Reagan v. Union Mut. Life Ins. Co., 189 Mass. 555; 76 N. E. 217; 2 L. R. A. (N. S.) 821; 109 Am. St. Rep. 659; 4 Ann. Cas. 362; Wheelton v. Hardisty, 8 El. & Bl. 232-283; Massachusetts Ben. Life Ass’n v. Robinson, 104 Ga. 256; 30 S. E. 918; 42 R. R. A. 261; Northwestern Ins. Co. v. Montgomery, 116 Ga. 799; 43 S. E. 79; Welch v. Union Cent. Life Ins. Co., 108 Iowa, 224; 78 N. W. 853; 50 R. R. A. 774; New York Life Ins. Co. v. Weaver’s Adm’r, 114 Ky. 295; 70 S. W. 628; Gambrill v. Insurance Co., 83 S. C. 236; 65 S. E. 231; Drakeford v. Knights of Damon, 61 S. C. 342; 39 S. E. 523; Ætna Life Ins. Co. v. Moore, 231 U. S. 543; 34 Sup. Ct. 186; 58 R. Ed. 356; Security Mutual Life Ins. Co. v. Webb, 106 Eed. 808; 45 C. C. A. 648; 55 R. R. A. 122; New York Life Ins. Co. v. Fletcher, supra; Gardner v. North State Mutual Life Ins. Co., 163 N. C: 367; 79 S. E. 806; 48 L. R. A. (N. S.) 714; Ann. Cas. 1915b, 652; Fishblate v. New York Fidelity, etc., 140 N. C. 589; 53 S. E. 354; Bryant v. Life Insurance Co., 147 N. C. 181; 60 S. E. 983; Alexander v. Life Insurance Co., 150 N. C. 536; 64 S. E. 432; Talley v. Metropolitan Life Ins. Co., 111 Va. 778; 69 S. E. 936; Empire Life Insurance Co. v. Jones, 14 Ga. App. 647; 82 S. E. 62; JFtna Life Ins. Co. v. Conway, 11 Ga. App. 557; 75 S. E. 915; Owen v. Insurance Co., 84 S. C. 253; 66 S. E. 290; 137 Am. St. Rep. 845; The Sailors v. Woelfle, 118 Tenn. 755, 102 S. W. 1109; 12 L. R. A. (N. S.) 881; Bankers’ Reserve Life Ins. Co. v. Omberson, 123 Minn. 285; 143 N. W. 735; 48 L. R. A. (N. S.) 265; Insurance Co. v. Bailey, 13 Wal. 616; 20 h. Ed. 501; Cable v. Insurance Co., 191 U. S. 288; 24 Sup. Ct. 74; 48 L. Ed. 188.</p>

Before Townsend, J., Richland, Summer term,' 1918. Action by Sarah F. Drennan and others against Charles O. Brown and others. Judgment for defendants, and plaintiffs appeal. cite: As to charge of laches and neglect on part of appellants: 62 S. C. 73 (quoting from Babb v. Sullivan, 43 S. C. As to actual or constructive occupancy by plaintiffs: 86 S. C. 358; 30 E. R. A. (N. S.) in note, p. 250.

Before Townsend, J., Sumter, at chambers, March 25, 1919. Habeas corpus proceedings by Isaac Murray and Christian Harris. From an order discharging relators, the State appeals. cites: As to the mandate of the Governor of South Carolina being sufficient without further or other papers of extradition: 44 S. C. 335; Rev. Sts. U. S., sec. 5278; 13 S. C. 83.

<p>1. Vendor and Purchaser — Performance of Contract — Quantity of Land — Deficiency.—Where amount of land named in deed exceeds amount included in description, the deficiency, in itself, does not render vendor liable therefor, in absence of written warranty of area.</p> <p>2. Vendor and Purchaser — Misrepresentation—Fraudulent Intent. —Generally, if there is a misrepresentation in fact by vendor, purchaser who relies thereon is entitled to relief, though vendor did not intentionally misrepresent such fact, since misrepresentation may exist without fraudulent intent.</p> <p>3. Evidence — Parol Testimony — Deed.;—Words of deed showing with exactness and certainty what land was conveyed cannot be varied by parol.</p> <p>4. Vendor and Purchaser — Quantity of Land — Liability of Vendor. —Vendor who sells parcel of land parallelogram in shape and exactly 100 feet deep and 80 feet wide at exact valuation per foot is liable to purchaser for any deficiency in the lot actually conveyed.</p> <p>5. Vendor and Purchaser — Quantity of Land — Liability of Vendor —Misrepresentation—Vendor who represents lot to be certain number of feet deep and sells it for gross sum without regard to exact size is liable for deficiency, where lot is not the represented number of feet deep.</p> <p>6. Evidence — Parol Agreement — Deed.—Where deed is ambiguous as to land conveyed, parol agreement is competent to show intention of parties.</p> <p>7. Vendor and Purchaser — Misrepresentations—Reliance Upon — Jury Question. — In purchaser’s action for vendor’s failure to convey quantity of land represented to be in certain lot, where evidence showed circumstances to be such that purchaser had no reasonable cause to rely on the representation, vendor was entitled to directed verdict.</p> <p>8. Vendor and Purchaser — Misrepresentation—Reliance Upon. — To recover difference in amount of land between that actually conveyed and that represented to be in lot, purchaser must show that he had reasonable cause to rely upon the misrepresentation, and how he came to be misled.</p> <p>9. Vendor and Purchaser — Misrepresentation—Depth of Lot — Reliance by Purchaser. — Real estate dealer of 30 years’ experience, who had bought lots by the foot, who had carefully considered purchase of certain lot, and who had frequently passed the lot, and had had the time and the facility to measure it before buying, held hot misled by vendor’s representation as to depth of lot.</p>

Before W. P. GrEEnE, special Judge, Spartanburg, Spring term, 1918. Action by Wade Smith against the Union Central Life Insurance Company. From a ruling of the trial Judge that plaintiff was entitled to trial by jury, the defendant appeals. The following is the contract referred to in the opinion: The terms of this contract to be strictly confidential.

Before Shipp, J., Florence, at chambers, April 22, 1919. Action by Willie G. Griste against Thomas S. Burch. From judgment for plaintiff, defendant appeals.- This is an action in claim and delivery to recover possession of a certain machine or device hereinafter described.

Before Whaley, County Judge, Richland, April term, 1919. Action by Rorick & Rowrance, Incorporated, against J. C. Heslep and W. R. Harbeck, as partners, and W. R. Harbeck individually.

Before Gary, J., Dillon, Spring term, 1918. Action by the Peruvian Guano Corporation against J. S. Thompson and another. Judgment for defendants, and plaintiff appeals. Messrs. Willcox & Willcox, submit: That the respondents are individually liable to appellant: Elliott on Private Corporations 527; 7 R. C. L., pp. 491, et seq.; 72 S. C. 485; 230 Fed. Rep,, p. 1005; 103 Md. 364; 64 Atl. 26; 8 L. R. A. (N. S.) 738; 7 Ann.

Before Prurifoy, J., Charleston, Fall term, 1917. A. B. Reeves was convicted of carrying on the business of an emigrant agent without having obtained a license therefor, and he appeals. cite: Are the provisions of sections 8pg and 8p6 of the Criminal Code of South Carolina ipi2, constitutional? Constitution of 1895, sec. 1, art. X; 18 S. E. (S. C.) 342; 41 S. E. (S. C.) 13; 20 Cyc. 1287.

Before Townsend, J., Clarendon, Spring term, 1918. Action by Jasper Dingle against the Northwestern Railroad Company of South Carolina. Judgment for defendant, and plaintiff appeals. submits: The Circuit Judge having held that there was no evidence of negligence on the part of the defendant-respondent, the order appealed from is a legal one and the Supreme Court has jurisdiction: 107 S. C. 502.

Before Memminger, J., Marlboro, Fall term, 1917. Action by Flora Bullard and others against Samuel Cox and others. Judgment for ^defendants, and plaintiffs and the defendant, Samuel Cox, appeal. Messrs.

<p>Before Townsend, J., Lexington, - term, -.</p> <p>The Brookland Bank levied execution on a judgment against A. W. Martin, and brought action to enjoin sale of A. W. Martin’s interest in land sold in partition proceedings by W. A. Martin and others against A. W. Martin and others, and A. W. Martin files a petition asking that a homestead be set apart to him out of the proceeds of sale. Petition granted, and the -Brookland Bank appeals.</p> <p>cites: As to the allowance of homestead: Constitution, article III, sec. 28; Civil Code, sec. 3711. As to the meaning of “head of a family:” 36 S. C. 576, 578; 32 S. C. 165; 33 S. C. 597; — S. E. Rep. 439.</p>

Before Shipp, J., Abbeville, Spring term, 1918. Action by Mrs. Belle Chapman against E. W. Williams, in his own right, and as Chairman of Board of Trustees of the Afro-American Presbyterian Church, and the Afro-American Presbyterian Church. Judgment for plaintiff, and the Afro-American Presbyterian Church appeals. cites: As to the act of the defendant, B. W. Williams, in giving the note and mortgage in question: 21 L. R. A. (N. S.) 1045-1072 (notes thereunder).

<p>Railroads — Governmental Control — Actions.—Under Acts Cong. August 29, 1916, and March 21, 1918, and Presidential Proclamation of December 26, 1917, and March 29 and April' 11, 1918 (U. S. Comp. St. 1918, secs. 1974a, 3115%a-3115%p, and section 1974a, note, section 3115%h, note), relating to the governmental control of railroads during war, held that General Order No. 60 promulgated by the Director General, and declaring that actions of injury to persons or property shall be brought against the Director General and not otherwise, is valid, and no such action can be maintained against the railroad company alone.</p>

<p>1. Partees — Substitution op Assignee on Assignment After Suit Allowed. — The cause of action being assignable,nonsuit should not be granted because of assignment after commencement of action, but, under provision of Code Civ. Proc., 1912, sec. 170, substitution of assignee should be allowed.</p> <p>2. Assignments — Rights op Action for Injury to Property Assignable. — Right of action for injury to property is assignable.</p>

<p>Criminal Law — Appeal—Reservation op Grounds op Review — Inconsistency op Verdict With Evidence. — Where defendant did not raise in the Circuit Court the question of error in sentencing on a verdict-inconsistent with the evidence, in that defendant had been found guilty on a count charging him with procuring a name to be forged on a note, and on a count charging him with himself writing the name, such question is not properly before the Supreme Court for consideration on defendant’s appeal.</p>

Before Whaley, County Judge, Richland, - term. Action by A. P. Mull and others against E. C. Touch-berry. From a judgment for plaintiff, defendant appeals. The second and third paragraphs of the second defense of the answer, directed to be reported, read as follows: 2.

Before Memminger, J., Kershaw, Spring term, 1918. Action by Henry C. Barnes and others against Mary Leevy and others. From an order sustaining demurrers to the complaint, plaintiffs appeal. cite: As to right of contingent remaindermen to maintain action for an injunction against future waste of property, and for an accounting for waste already committed: 25 S. C. 162; Pomeroy’s Equity Jurisprudence, vol. V, p. 815; 1 S. C. 179; Rewin on Trusts, 728; 8 Rich.

Before Memminger, J., Richland, Spring term, 1918. Action by Susan McFaddin against Charlie Lumpkin and others. Judgment for plaintiff, and certain defendants appeal. The will of Emanuel Holman was dated May 1, 1905, he died December 4, 1908, and the will was admitted to probate December 19, 1908.

<p>1. Insurance — Insurer Not Liable on Policy of Which Insured Had No Knowledge. — If insurer sent general agent a policy essentially different from that for which insured had applied, and if insured at no time had knowledge thereof or assented thereto, insurer is not liable thereon, though policy had not been canceled at time of insured’s death.</p> <p>2. Insurance — What Constitutes Delivery of Policy to Insured.— Generally, when an insurance company sends a policy the contents of which is known to, and assented to, by the insured, to the company’s general agent for delivery to the insured, then delivery is effected, and the contract of insurance is of force.</p> <p>3. Evidence — Collateral Agreement With Agent, as to Premium of Policy Inadmissible. — Where application provided that all “agreements made by or with the company or the agént taking this application are reduced to writing and made a part of the application,” evidence of agreement between general agent and insured’s husband, a special agent, that initial premium should be paid by a bonus to be earned by husband as agent, held incompetent in action on the policy, where such agreement was not made part of application.</p> <p>4. Insurance — Prepayment of First Premium May Be Waived.— Parties to insurance contract may waive that part of contract requiring prepayment of initial premium before insurance shall take effect.</p> <p>5. Insurance — Recital of Payment of First Premium Presumed True. — Where policy reciting payment of first premium was sent to general agent for delivery, first premium will be presumed to have been paid.</p> <p>6. Insurance — Waiver May Arise by Implication. — Waiver often rests in a subtle operation of mind and speech; it may arise by expression, but more often by implication.</p> <p>7. Insurance — When Waiver of Payment of First Premium May Be Inferred. — If insurer, with a right to payment of first premium before taking effect of insurance, shall make any speech or perform any act from which a reasonable inference may be drawn that the insurer does not stand upon its rights, then waiver may be inferred.</p> <p>8. Insurance — Where Defense Was No Contract, Meaning of Letter of Insurer for Jury. — In action on life policy, where defense was that no contract of insurance was ever entered into between the parties, the meaning of a letter from insurer to insurer held for jury.</p>

Before Mauldin, J., Spartanburg, Spring term, 1917. Action by F. M. Farr, as administrator, against the Pacolet Manufacturing Company. Judgment for plaintiff, and defendant appeals. cite: As to degree of care required of the plaintiff himself on account of physical deficiencies: 87 S. C. 387.

Before Shipp, J., Charleston, Fall term, 1918. ReRoy Simmons was convicted of manslaughter, and he appeals. Messrs. Logan & Grace cite: As to alleged confessions made to police officers by defendant while under arrest: 168 U. S. 543; 69 S. C. 74; Greenleaf, sec. 225; 74 S. C. 478; 69 S. C. 72; 6 A. & E. Ene., p. 530; 18 R. R'. A. (N. S.), P-768; 50 R. R. A. (N. S.), p. 1077; 9 Richardson’s Raw, p. 428; 93 S. C. 149; 98 S. C. 498; 104 S. C. 146; Russell on Crimes —.

Before Prince, J., Anderson, Pall term, 1918. Action by the Commercial Security Company against the Donald Drug Company, a partnership, etc. Judgment for defendant, and plaintiff appeals. submits : That the change in the date of the maturity of the respective notes did not render them invalid: Negotiable Instrument Act 1914, sec. 12, .article I; sec. 52, article IV; subd. 4, sec. 17; article I, sec. 124; article VI; cases cited under S. I. B., p. 55; Brannon’s Negotiable…

<p>1. Appeal and Error — Finding Reviewed to Determine ip Evidence to Sustain Them. — The Supreme Court will not review findings of Circuit Court, except for purpose of determining whether there is any evidence whatever to sustain them.</p> <p>2. Railroads — When Action Lies Against Carreer and Not Director General in Federal Control. — The consignee can recover penalty against railroad in action against railroad, instead of against Director General of Railroads, where action was commenced and cause of action arose before issuance of General Order No. 50.</p>

Before Shipp, J., Oconee, Spring term, 1919. Alex Rogers was convicted for bigamy, and he appeals. Following is the indictment referred to in opinion: “The State of South Carolina, County of Oconee.

Before Rice, J., Florence, Spring term, 1918. . Action by Lodge No. 13, Joint Stock Company of South Carolina, against C. R. Brown. Decree for plaintiff, and defendant appeals. submit: In the absence of a written agreement setting forth intelligently, and in detail, the terms thereof, we submit that such a contract as contended for by the plaintiff was void for want of definiteness: 66 S. C. 89; 54 S. C. 184.

<p>Before Memminger, J., Marlboro, Fáll term, 1917.</p> <p>Action by J. T. Medlin against H. M. Hodges for breach .of contract for sale and future delivery of cotton seed. From a judgment on a verdict directed for plaintiff, defendant appeals.</p> <p>Defendant’s exception is as follows:</p> <p>“His Honor erred in directing the jury to find for the plaintiff, when the contract was for future delivery, and it was for the jury to decide whether under the evidence adduced it was established that the defendant was the owner or assignee of the cotton seed when the contract was made, or that it was the bona fide intention of both parties at the time of making the contract that the cotton seed should be actually received and delivered in kind by the parties to the agreement at the future period mentioned.”</p> <p>cite: As to the certain prerequisite facts that must be established in a suit on a contract of this nature, and as to the burden of proof being on the plaintiff: 45 S. C. —; 50 S. C. 548; 54 S. C. 382; 98 S. C. 283; 104 S. C. 334; 98 S. C. 285. The Judge should not have directed a verdict in this case — the facts and circumstances were for the consideration of the jury: 98 S. C. 285. Partial performance by Hodges not sufficient: 104 S. C. 285.</p> <p>submit: The construction of a written contract is a question of law for the Court when made by letters: 17 S. C. 477. The burden in this case was upon the plaintiff to show that it was a bona fide intention of both parties that the seed should be actually delivered and received: 50 S. C. 543; 50 S. C. 548. When there is no dispute as to facts, the Judge may direct a verdict: 66 S. C. 300; 105 S. C. 73; 91 S. C. 17; 66 S. C. 283. In all cases the Court may instruct the jury to find upon particular questions of fact: Code, sections 320, 321; 99 S. C. 187. When the vendor fails to deliver goods sold, the vendee is entitled to recover the difference between the contract price and the market value of the goods at the time and place of delivery: 88 S. C. 576.</p>

Before Bowman, J., Greenville, Spring term, 1919. Action by Grover Cleveland against J. C. Cannady and H. C. Harvley, agent for the Charleston & Western Carolina Railway Company. From an order denying a motion to vacate the attachment, defendant, Harvley, appeals. submit: Cannady had no property in the check at the time of the attachment: 72 S. C. 450; 88 S. C. 77; 23 S. E. (W. Va.) 702; 2 R. C. E. 859.

Before Memminger, J., York, Fall term, 1918. Separate actions by E. W. Sturgis, by W. T. Sturgis, by B. M. Sturgis, and by W. V. Sturgis against the city of Rock Hill. Judgment for defendant, and plaintiffs appeal. The report of Special Referee John R. Hart is as follows: “All of the above actions are similiar in their natures.

Before Whaeey, County Judge, Richland, July term, 1918. Action by John H. Brown against O. Y. Owings. Judgment for plaintiff, and defendant appeals. The following is the complaint : 1. That both parties to this action reside in Columbia, said State and county. 2.

<p>Before Maurdin, J., Gaffney, - term, -.</p> <p>Action by J. R. Sparks, as trustee for Bonner McCraw Company, bankrupt, against A. B. McCraw. Judgment for plaintiff, and defendant appeals.</p> <p>Following are the findings of fact and conclusions of Court referred to in opinion:</p> <p>This is an action by J. R. Sparks, as trustee of the Bonner McCraw Co., bankrupt, against the defendant, A. Bonner McCraw, to recover from him certain real estate described in the complaint and to require him to turn over the same or the proceeds thereof, and all monies, notes, mortgages and other evidences of the amount of money or property of the bankrupt in the possession of or under the control of the defendant.</p> <p>The contention of the plaintiff, briefly stated, is that the defendant, as the president and general manager of the Bonner McCraw Co., bankrupt, a corporation, used and converted the money and property of the corporation for the purpose of acquiring property in his own name and, at the expense of the corporation and its creditors, to promote his individual interests.</p> <p>The defendant, by his answer, denies generally all allegations of the complaint material to plaintiff’s cause of action, and further avers that the corporation was indebted to him in the sum of $1,300 or more, and that if the Court should find anything to be due him to the corporation, the sum above stated should be set off against the same.</p> <p>All issues were referred by this Court to G. W. Speer, Esq., as special referee, to take the testimony and report his findings of fact and conclusions of law to this Court, with leave to report any special matter. Several references were held, at which a great volume of testimony, oral and documentary, was submitted, including evidence taken before the referee in bankruptcy, so far as the same should be relevant to the issues made in this case.</p> <p>On October 12, 1917, the referee filed his report, in which he found from the evidence that ■ the allegations of the plaintiff’s complaint are sustained, and recommended that the title to the property sought to be recovered be adjudged to be in the trustee, the plaintiff, with such other recommendations as are designed to carry into effect the decree of the Court.</p> <p>To this report the defendant filed exceptions, and the cause came on to be heard by me as presiding Judge of the Court of Common Pleas for Cherokee county, during the Spring term of the Court. The cause was submitted to me then, and arguments made by counsel for the plaintiff and defendant. The cause was marked “Heard” by me and taken under advisement until such time as I might give the matter careful consideration.</p> <p>The evidence in the cause is abundant to support the findings and conclusions of the referee.</p> <p>The defendant was the president and manager of the bankrupt corporation, he and his wife were the sole stockholders. They had no other property when the business was organized, and all the property acquired by the defendant individually has been acquired through the use of the corporate property. As early as 1912, the first year of the business, the defendant used $1,000 of the corporate funds, with which he purchased the house and lot now occupied by his family, and paid the remaining $1,000 of the purchase money by giving a mortgage on the premises to a local building and loan association. This debt to the B. & T. was repaid by checks of the corporation, down to whatever amount may remain due. No meeting of the stockholders was ever held, and no attempt was made to declare a dividend out of the profits of the business, if there were any, but the money was used as if it were the private property of the defendant, and no means were adopted to separate the funds from the corporate ownership.</p> <p>Later on, the defendant, by use of the corporate funds, commenced to acquire -in his own name other real estate, described in the complaint, and made improvements thereon out of the funds of the corporation in the nature of dwellings thereon, while part of the funds so used were withdrawn directly from the corporation by checks in many instances, in others the indebtedness of the defendant individually to the contractors and material men were discharged by crediting their accounts on the books of the corporation with the amounts due them by the defendant personally. The defendant claims that he has paid back into the corporation more money than he withdrew, but this claim is not found to be true by the referee, but from the very nature of the defendant’s course of dealing with the corporate funds and'property the funds redeposited by him belonged to the corporation and could not be regarded as the discharge of any personal obligations of the defendant. He could not pay his own debt to the corporation with money belonging to the corporation. However, the results do not lend support to the contention of defendant.</p> <p>In 1915 and 1916, while he was acquiring this property, the creditors began to suffer, as shown by the list of claims filed against the bankrupt corporation. When the petition in bankruptcy was filed on May 25, 1917, the corporation admittedly owed some $10,000 or $12,000, with assets as scheduled amounting to $7,400, which included notes and open accounts to the amount of $2,900, leaving $4,500 as stock in trade and merchandise. The amount of claims actually filed with the referee in bankruptcy exceeded the amount scheduled by a considerable sum and the actual value of the assets much less.</p> <p>The defendant, as manager of the corporation, was not able to account for the loss to creditors, nor was he able to give a satisfactory account of the conduct of the business or of its assets. In a statement made by the defendant to one of the creditors on February 23, 1917, he represented that the corporation was solvent, with net assets amounting to $6,950, which, as shown by the evidence, was absolutely untrue, as the business was then insolvent. His conduct in converting property of the Gaffney Hive Stock Co., a creditor, shows the utter disregard had by the defendant for the rights of creditors of the corporation. Testimony was introduced to show that the defendant admitted to creditors that he was using the corporation’s money to build houses on lots purchased by him in his own name, and that when he sold these lots he would pay the creditors their accounts. This is testimony also to show that the defendant, in a statement made to or in the presence of one Allison, declared that if he ever went into bankruptcy his creditors would get nothing.</p> <p>In a statement made by the defendant, as manager and president of the bankrupt corporation, to the Federal income tax officials for 1916, he represented that the business had on hand, January 1, 1916, stock of the value of $6,784, to which he added purchases during the year to the amount of $17,510; that he sold during the year goods to the amount of $18,190, and had left a stock of goods of the value of $6,304, and that his total indebtedness was the sum of $2,065. This, as proven by subsequent investigation before the referee, was untrue.</p> <p>No rational account is given of the proceeds of the $18,190 realized from the sale of goods. The net results of the business is an unexplained loss to creditors of some $10,000, while the defendant has acquired property in his own name to the extent of several thousand dollars, which plaintiff seeks to recover.</p> <p>It was the duty of the defendant, as manager and-president of the bankrupt corporation, to show that he exercised the utmost good faith in his transactions and dealings with corporate funds and property, and especially i's this rule applicable when it is shown that the manager has acquired property to his own advantage, while the corporation and its creditors have suffered loss. This the defendant has failed to do.</p> <p>The facts and circumstances related above, along with other evidence in the case, leads to the same conclusion as arrived at by the referee.</p> <p>It was contended in argument that the loss shown in assets and the volume of debts ascertained was largely due to the liberality of the defendant in extending credit to his friends. The schedule as filed by the defendant for the bankrupt does not sustain this contention. The open accounts, as scheduled by the defendant, amounts to only $2,800, which is a relatively small credit business from sales of $18,190 during the year, and falls far short of explaining the deficiency of some $10,000 over and above the total amount of assets. It is also shown by the testimony that the defendant has used the rents from portions of the property described in the complaint for the personal use of himself and family; that he has traded one or more of these lots to other parties, who have no deeds, but who have made payments from time to time thereon, and the defendant admitted that he had no account of such statements, and that if the purchasers could not produce receipts showing payments made by them, they would have to pay again.</p> <p>It is clear from the evidence as a whole that the defendant has used the corporation, its funds and property, as a means to gain an advantage to himself personally.</p> <p>It is, therefore, adjudged and decreed, that the report of-the referee herein be, and the same is hereby, affirmed and made a part o'f the judgment and decree of the Court, and the exceptions thereto be overruled.</p> <p>Further decreed, that the defendant turn over and deliver to the plaintiff herein, as trustee, all deeds and conveyances to the property described herein in his possession or under his control, and all mortgages held by him for the purchase money, or any part thereof, and all other evidences of indebtedness held or controlled by him or affecting the property involved, the title .to which is here adjudged to be in the plaintiff, as trustee. That the trustee take charge of the said property and sell the same where not affected by the rights of purchasers, or any equity of the defendant therein; that the defendant be, and he is hereby, enjoined perpetually from collecting any money or monies as rent or purchase money from any of the property herein or purchasers thereof; that he do account to the plaintiff for all such sums of money heretofore received by him as rent or purchase money.</p> <p>Further decreed, that the plaintiff, as trustee herein, shall take such steps to secure the property herein or its proceeds as he may be advised, protecting fully the rights of all persons who may have acquired any of the property as innocent purchasers or who, as creditors without notice, may hold valid liens thereon.</p> <p>Further decreed, that any sale or sales made hereunder by the trustee shall be for cash, after three weeks’ notice published in one or more of the newspapers published in Gaffney, and that he make to the purchasers thereof deeds of conveyance thereto.</p> <p>Further decreed, that the plaintiff may apply at the foot of this decree for such other or further relief as he may be advised to carry into effect the terms of this decree and its purposes.</p> <p>.cite: As to Bonner McCraw Company being a valid corporation and McCraw not being liable for its debts: Solaman v. Solaman Co. (1897), A. C. 22; Machen, Modern Taw of Corporations, par. 1086; 74 Fed. 849; 70 S. W. (Texas) 597; 141 Mass. 590; 6 N. E. 837. As to the strength of the evidence necessary to establish a resulting trust by parol proof: Pomeroy, vol. II, sec. 1040; 2 S. C. 595; 93 S. C. 450; 52 S. C. 388, 391; 78 S. C. 490, 496. As to part of defendants claim for salary being a preferred claim: Chap. VII, sec. 64; U. S. Bankruptcy Law. As to the presumption where dividend has been declared: Machen, Modern Law of Corporations, sec. 1344; 103 N. W. 796; 107 Ala. 572; 18 So. 137. As to creditors following funds diverted before they became creditors: 102 U. S. L. Ed. 106; Ohio .(1913), 203 Fed. 225.</p> <p>submit: There was a distinct issue of title to real estate, and a trial by jury was demandable as a matter of right: Code of Civil Procedure, sec. 312. The right to trial by jury was waived by consenting to order of reference: Ibid. The determination of the issue rests upon the facts found by the referee and the Circuit Judge. This Court has no power to review the facts: 25 S. C. 72; 76 S. C. 167; 39 S. C. 390; 88 S. C. 180; 77 S. C. 414; 90 S. C. 186; 91 S. C. 129; 95 S. C. 245; 90 S. C. 278; 100 S. C. 144; 100 S. C. 443. Even in equity cases, this Court must be satisfied that the preponderance ' of the evidence is against the concurrent findings of fact by referee and Circuit Judge before it will reverse such findings: 96 S. C. 106; 96 S. C. 148; 100 S. C. 59; 100 S. C. 157.</p>

Before Townsend and Memminger, JJ., Richland,-. Action by the State of South Carolina against the Columbia Railway, Gas & Electric Company. Prom an order refusing its motion to approve and accept its petition and bond for the removal of the case into United States District Court, and from an order overruling its demurrer to the complaint, defendant appeals.

<p>1. Master and Servant — When Question of Assumption of Risk Is for Jury. — Whether an 18-year-old employee of average intelligence, but of limited experience, appreciated the danger of sliding a loaded wheelbarrow down an unguarded gangway from which he was thrown into a river, when one of the legs of the wheelbarrow slipped off, held for the jury, though the conditions were obvious.</p> <p>2. Master and Servant — Appreciation of Danger Necessary to Assumption of Risk. — A master, to relieve himself from liability on ground that servant assumed risk, must show, not only that the servant knew the danger, or that it was so obvious that he should have known it, but also that he comprehended or appreciated it.</p>

Before Shipp, J., Abbeville, Fall term, 1918. Action by Jessie J. Lewis, as executrix, and others, against Wm. C. Dunlap and others. From judgment rendered, plaintiffs appeal. cite: As to statutory law as to usury: Act of 1882; Act of 1877; Act of 1898; Elliott on Contracts, vol. II, sec. 964; 72 S. C. 367. Who may plead? Second Elliott on Contracts, sec. 961; 58 S. C. 240-245; 62 S. C. 165; 62 S. C. 178-191.

Before Wilson, J., Florence, Fall term, 1917. Action by Winslow Wright & Co., a partnership, against Thos. Edward McKnight. From an order overruling a motion to dismiss, defendant appeals. cite: As to whether or not, having withdrawn his prior action, the appellant was still able to raise the plea of another action pending: 1 R. C. L., p. 11; 80 S. C. 64.

<p>1. Master and Servant — When Contributory Negligence a Jury Question. — In action for injuries to planing mill employee from negligently placed and exposed trim saw, question of employee’s contributory negligence held for jury.</p> <p>2. Master and Servant — When Assumption of Risk a Jury Question. — In an action for injuries to planing mill employee for injuries from negligently placed and exposed trim saw, question of assumption of risk held for jury.</p> <p>3. Trial — When Case for Jury. — Where testimony was susceptible of more than one inference, Court properly submitted case to jury.</p>

Before Mauldín, J., Union, Fall term, 1918. Action by Mrs. N. C. Oliver and others against C. M. McWhirter and others. Judgment for defendants, and plaintiffs appeal.