Volume 113 — South Carolina Reports

Action by John P. Glenn against L. P. Walker. Judgment for plaintiff, and defendant appeals. submit: It was essential that both executors should have joined in the deed of conveyance, and one could not delegate to the other the power of sale entrusted to him: Harper 411; 11 R. C. L. 356; Acts of 1876; 50 L. R. A. 604; 50 L. R. A. (N. S.)' 622 (note); Bouvier’s vol. —, p. 2468, also vol. I, p. 820; 66 S. E. (N. C.) 866; 68 S. E. (Ga.) 473; 66 S. Ei (Ga.) 168.

<p>1. Sames — Jury Question; Buyer's Notice to Seller to Ship — In buyer’s action for seller’s refusal to deliver balance of goods under contract to sell certain amount during certain period, question of whether buyer had ordered shipment of balance of goods in time for shipment before expiration of period held for jury.</p> <p>2. Sales — Jury Question ; Waiver op Terms op Contract. — In buyer’s action for seller’s nondelivery of balance of goods under contract to sell certain amount during certain period, question of whether seller waived his right to have buyer’s orders for shipment in time to ship goods before expiration of period held for jury.</p> <p>3. Sales — Tender After Repudiation by Other Party. — When one party to a contract notifies the other party that he elects to breach the contract, other party need not make tender, since tender would be an idle performance.</p> <p>4. Saxes — Nondelivery; Buyer’s Damages. — Buyer’s damages for seller’s failure to deliver were measured by market value of goods at time and place of delivery, or, if not ascertainabble at place of delivery, at nearest market place, plus cost of shipment to place of delivery, if any.</p> <p>5. Sales — Prospective Profits; Action for Nondelivery. — In buyer’s action for nondelivery, buyer’s ability to have made profit or to suffer loss by resale to others was immaterial; being res inter alios acta.</p>

Action by H. Y. Hinnant against the Southern Railway Company and others.

Action by Mollie E. Cole, administratrix of the estate of William H. Cole, against the Jefferson Standard Rife Insurance Company. Judgment for defendant on a directed verdict, and plaintiff appeals. cite: As to the authority of the Insurance Commissioner: Code of 1912, vol.

Action by the Farmers Bank & Trust Company against R. H. Fudge and others and the Lancaster Mercantile Company and another. From a judgment for plaintiff, the last named defendants appeal. This action was commenced on the 20th of October, 1917, for the foreclosure of four mortgages on certain lands. The complaint contains two causes of action. In the first, it is alleged: That the defendant, R. H. Fudge, made his promissory note, of which the following is a copy: “$10,300.

Habeas corpus by Bessie Gill against Neely Walker and others, to .determine the right to custody of Mattie Ree Meeks, an infant. Judgment for petitioner, and defendants appeal. submit: Probate Court had jurisdiction to appoint the appellants general guardians: Vol. II, Code of Laws S. C. 1912, sec. 43. Duly appointed general guardian is entitled to the custody of the ward: 21 Cyc. 62; 21 Cyc. 64; 112 Ind. 183; 2 Am. St. Rep. 177.

Action by Fannie B. Bangley against the Southern Railway Company and another. Judgment for defendants, and plaintiff appeals. Following is the complaint and answer and exceptions referred to in the opinion: Complaint.

• In the Original Jurisdiction. Certiorari by Tristram T: Hyde and others and by John I. Boykin and others to review action of W. Turner Logan and others, Democratic Executive Committee. Action of committee set aside. submit: The Court has power to act in this case: 54 S. C. 478; 93 S. C. 327; 70 S. C. 263; 86 S. C. 451; 2 Rich. 6. Nature and purpose of the primary: 59 R. R. A. 447. Messrs.

<p>1. Dismissal and Nonsuit — Nonsuit as to Items op Account or Separate Elements op Damages. — A nonsuit cannot be granted as to items of an account or separate elements of damages, but the remedy is by a request to charge that the objectionable items and elements of damage are not recoverable.</p> <p>’ 2. Contracts — Evidence ; Performance. — In an action by subcontractor against the contractor to recover for work done in constructing manholes and flush tanks in a sewer system for a city, where plaintiff had testified that his work was satisfactory to the city and its inspectors, evidence by the city engineer, as to whether plaintiff’s work was satisfactory, was improperly excluded.</p> <p>3. Damages — Breach op Contract; Elements. — Where plaintiff subcontractor had performed part of the work under a contract for the construction of manholes and flush tanks in sewer system in subservience to defendant’s contract with the city, the value of plaintiff’s services in the performance of the contract was an item to be considered in the cost of performance.</p> <p>4. Evidence — Hearsay; Report op City Inspector Inadmissible. — In a subcontractor’s action against a contractor to recover for the construction of certain manholes and flush tanks in sewer system, where plaintiff had testified that his work was satisfactory to the city, a report of a city inspector was properly excluded as hearsay. Hydricic, Watts and Gage, JJ., dissenting in part.</p>

<p>1. Transactions With Persons Since Deceased. — Code Civ. Proc. 1912, sec. 438, does not prevent a husband from testifying as to a transaction between his wife and a person since deceased; he not being a party and having no legal or equitable interest in the action.</p> <p>2. Evidence — Parol Evidence Showing Consideration. — It was competent to prove by parol evidence what the real consideration was in a deed reciting, “In consideration of $1,200 to me in hand paid at and before the sealing of these presents.”</p> <p>3. Evidence — Parol Evidence Showing Consideration. — Where a Warranty deed recited, “In consideration of $1,200 to me in hand paid at and before the sealing of these presents,” it was competent to prove by parol that part of the $1,200 was by agreement of the parties not paid, but was reserved by the vendee to pay an outstanding incum-brance; such testimony not contradicting the warranty clause of the deed, but rather tending to sustain it.</p>

<p>Action by Robert F. Ilderton, Jr., by his guardian ad litem, Robert F. Ilderton, against the Charleston Consolidated Railway & Righting Company. Judgment for plaintiff, and defendant appeals.</p> <p>submits: Admission that witness would testify as stated in affidavit did not justify the trial of the case: Rule 27 of the Circuit Court; Civil Code, sec. 3987; 83 S'. C. 193; 76 S. C. 144; 30 Am. Dec. 688 (Ky.) ; 68 S. C. Discretion of the Court must be guided by law and cannot be exercised in the denial of a plain legal right: 68 S. C. 35; 15 S. C. 328.</p> <p>submit: It was not an abuse of discretion for the Judge to order the suit to be tried: 110 S. C. 259; 96 S. E. 530; 88 S. C. 384; 42 S. C. 209 (citing 33 S. C. 106); 33 S. C. 275; 4 Strob. 61, 25, 122; 29 S. C. 581; 89 S. C. 190; 82 S. C. 236; 64 S. C. 144; 98 S. C. 144.</p>

Controversy without action by William Banks and others against the Columbia Railway, Gas & Electric Company. Judgment for plaintiffs, and defendant appeals. submits: The intention of the legislature can he gathered only from a literal interpretation of the language used in the statute, which is plain and unambiguous: 99 S. C. 218; 82 S. E. 1048; 62 S. C. 57; 39 S. C. 810; 13 S. C. 46.

<p>1. Receiving Stolen Goods — Evidence Justifying Inference of Guilty Participation. — Evidence held sufficient to justify inference of a defendant’s guilty participation in the crime of receiving stolen goods.</p> <p>2. Criminal Law — Conviction May Rest on Uncorroborated Accomplice Testimony. — The uncorroborated testimony of accomplices is sufficient in law to sustain conviction of an offense.</p> <p>3. Criminal Law — Instruction on Accomplice Testimony Not on Facts. — In a prosecution for receiving stolen goods, statement of the Court in instructing that it had been suggested that no one could be convicted on the uncorroborated testimony of an aaccomplice, but that such was not the law, and it was for the jury to determine what weight should be given the testimony of any witness, whether an accomplice or any other, held not erroneous as a charge on the facts, in that the jury were instructed that the testimony of an accomplice was as good as that of any other witness.</p> <p>4. Criminal Law — Length of Sentence Discretionary With Trial Court. — Within the limits prescribed by statute, the length of sentence imposed is entirely within the discretion of the trial Court, and the Supreme Court cannot review sentence to three years imprisonment for receiving stolen goods of the value of only $40.</p> <p>5. Constitutional Law' — Regulation of Penalties Within Legislative Discretion. — Defendants, convicted of receiving stolen goods exceeding $20 in value, cannot com plain of the legislature’s policy in providing only imprisonment without alternative fine for the offense, and in allowing the imposition of a much greater punishment for receiving stolen goods*above the value of $20 than where their value is less than that amount; the matter being for legislative and not judicial consideration.</p>

Action by Arthur S. Sease and others against the Barn-well Lumber Company. Judgment for plaintiffs, and defendant appeals. submits: That under the allegations of the complaint the acts of the defendant, if true, come clearly within section 4o6p, of vol.

Action by Fannie Baxley against the Barnwell Lumber Company. Judgment for plaintiff, and defendant appeals. Defendant’s second, fifth and sixth exceptions were as follows: (2) That the Court erred in allowing the witness, W. H. Baxley, to testify over the objection of the defendant’s attorney as to what the damage to the place amounted to; whereas, the Court should have confined the damage to the stumpage value of trees cut.

Action by M. D. Moore against' William W. Arthur and others. From an order denying a motion to change the venue, and extending the time within which defendants could plead, both parties appeal. submit: The action is of a personal nature and the proper county in which to try it is the county of Richland, where defendant resides: Story’s Eq.

<p>The -Charleston Bridge Company was convicted for not keeping its bridge in proper condition, "and appeals.</p> <p>The defendant’s exceptions, ordered reported, are as follows :</p> <p>1. That his Honor erred in not quashing the indictment in the case, on the ground that section 618 of Criminal Code 1912 is applicable only when a bridge is allowed so to fall into disuse and lack of repair as not to be a bridge, and thereby become a nuisance, and no facts appear in the indictment warranting such an inference or conclusion.</p> <p>2. That his Honor, in not quashing the indictment in this case on the ground that section 618, Criminal Code 1912, is incongruous, in that its title is “Proprietors of Bridges Liable to Indictment for Not Keeping Up Their Work — Penalties Recovered — How to Be Applied;” whereas, the act purports to define offenses by owners of bridges, and only fixes penalties for offenses against owners of bridges, and is, therefore, violative of article III, section 17, of Constitution of S. C. 1895.</p> <p>3. That his Honor erred in not quashing the indictment on the ground that section 618, Criminal Code 1912, is incongruous and meaningless, in that it provides no punishment, except for offenses against bridge owners, and that a conviction of defendant under this statute would be meaningless.</p> <p>4. That his Honor erred in not quashing the indictment on the ground that section 618 of Criminal Code 1912 is incongruous, in that it is an old and obsolete statute, no longer of force in this State by reason of disuse, and is meaningless in its terms.</p> <p>5. That his Honor erred in not quashing the indictment on the ground that there was no longer any common law in force in this State applicable to this case; whereas, he should have held that there is no statutory law in this State perpetuating the common law applicable to this case, and that there is no common law in this State applicable to this case.</p> <p>6. That his Honor erred in not quashing the indictment on the ground that there is no common law of force in this State applicable to this case; whereas, he should have held that by the act of 1911 (known as section 2838 [2830], Code 1912, vol. I) the common law indictment was abolished as to corporations, and that by the act of March 13, 1919 (Statutes 1919, p. 285), owners of toll bridges are no longer required to keep up their works to answer the ends of their creation, but must keep them up in accordance with the requirements of the State highway department of this State.</p> <p>7. That his Honor erred in allowing witness for the State, W. R. Bonsai, to testify as to plan to repair bridge without hindrance to land traffic; whereas, it is submitted that this plan would obstruct navigation and be a violation of Fed. eral statutes known as page 1150, 30 Stat. at Targe (Act March 3, 1899c, 425, sec. 9 [U. S. Comp. St., sec. 9971]) and page 362, 28 Stat. at Targe (Act August 18, 1894c, 299, secs. 4, 5 [U. S. Comp. St., secs. 9861, 9973]), prohibiting the obstruction of channels and regulating the use of draws in bridges.</p> <p>8. That his Honor erred in allowing witnesses of the State, Momar Goldsmith and J. W. Brandt, to testify as to motor trucks not being allowed to cross the bridge; whereas, it is respectfully submitted that this class of transportation was not contemplated in the act under which this bridge was constructed, nor when the present bridge was actually con- ■ structed.</p> <p>9. That his Honor erred in allowing witness of State, Wilson G. Harvey, to offer in evidence and in admitting in evidence statement of earnings of bridge; whereas, it is submitted that this testimony was irrelevant, and only tended to cloud the real issues of the case.</p> <p>10. That his Honor erred in refusing to direct a verdict in favor of defendant in this case, on the ground that there was no testimony tending to show a violation of any criminal law in this State.</p> <p>’ 11. That his Honor erred in refusing to direct a verdict in this case in favor of defendant on the ground that the testimony showed without contradiction that the bridge had never ceased to be a bridge during the times alleged in the indictment, was answering the ends of its creation, and was only closed for a short time for necessary repairs.</p> <p>12. That his Honor erred in refusing motion of directed verdict in favor of defendant, and in holding that section 618, Criminal Code 1912, contemplated that the defendant must not only keep up the bridge for the purpose for which it was created, but must provide for different kind of travel as it progressed, and that otherwise defendant should abandon the bridge and surrender its charater; whereas, it is submitted that said section should be construed strictly, and only provides for keeping up the bridge to answer its ends at the time of its. creation.</p> <p>13. That his Honor erred in charging the jury in this case that the “ends of the creation of a toll bridge over a navigable stream involves the idea, not only that it was to carry such traffic as was reasonably expected at the time, but to measure up to such requirements as it should thereafter be called upon to do in the'carriage of traffic; in other words, to adapt themselves to the conditions as they might arise in the future, which is the object of the creation of a bridge, not only to carry the traffic then presented, but to adapt itself to changed conditions; otherwise to abandon the enterprise and let some one else take it up” — -it being respectfully submitted that said section 618 of Criminal Statute 1912 is a criminal statute, and-should be construed strictly, as only requiring defendant to keep bridge in condition to answer the ends contemplated at time of its creation.</p> <p>14. That his Honor erred in commenting on remarks of counsel of defendant about “people being dragged into a criminal Court, etc.whereas, it is respectfully submitted that it is a disgrace to be dragged into a criminal Court, and lhat, even if this were not so, such comment on argument of counsel was unnecessary, and tended to prejudice the jury against the defendants and its counsel.</p> <p>15; That his Honor erred in refusing to charge the following written request of defendant, viz.: “The jury is instructed that the bridge, in question was authorized and created under the provisions of the Act of 17th of December, 1808, at a time when automobiles and heavy trucks were not in existence, and that the failure to provide a bridge suitable for automobiles and heavy trucks could not be deemed a violation of the law requiring the bridge to be kept in condition to answer the ends of its creation”- — • whereas, it is submitted that this is a correct proposition of law and applicable to this case.</p> <p>16. That his Honor erred in refusing to charge the following written request of defendant, viz.: “That it appears from the evidence that the present bridge was built about 1886. If you find that the bridge was suitable for, traffic such as was contemplated by the builders of the bridge at that time, and was only closed for necessary repairs, you must find the defendant not guilty”- — whereas, it is submitted that this is a correct proposition of law applicable to this case.</p> <p>17. That his Honor erred in refusing to charge the following written request of defendant, viz.; “That under the act authorizing said bridge the bridge company was and is authorized to make such rules and by-laws not repugnant to the laws of the land for the good order and proper government of said company as may be thought expedient or necessary” — whereas, it is submitted that same was a correct proposition of law applicable-to this case.</p> <p>18. That his Honor erred in refusing to charge the following request of defendant: “That not until the act of 1919, placing bridges in the State under the supervision of the State highway commission, has the General Assembly of this State seen fit to exercise any supervision over toll bridges owned by private corporations, and have left the managament and control of same to the officers and directors of said corporation” — whereas, it is submitted that this was a correct proposition of law applicable to this case.</p> <p>19. That his Honor erred in refusing to charge the following written request of defendant: “That it was no offense against the laws of this State for defendant company, during the course of repairs on said bridge, to refuse to use any temporary makeshift for the use of said bridge, as there is no law in this State requiring the bridge to be kept open at all hazards; but, on the contrary, the law specifically provides that when a bridge is injured by freshets or otherwise the bridge may be closed, provided the repairs are commenced within six months and completed within two years. Section 2170, vol. I, Code 1912” — whereas, it is respectfully submitted that this was a correct proposition of law applicable to this case.</p> <p>20. That his Honor erred in refusing to charge the following written request of defendant, viz.: “The act of Congress prohibits the obstruction of navigable streams except in ways affirmatively authorized by Congress, and I charge you that Congress has only authorized the erection of bridges across navigable streams with suitable draws as provided by statute, and that these draws must be opened and caused to be opened under such rules and .regulations as in the opinion of the Secretary of War the public iñterests may require” —whereas, it is submitted that this was a correct proposition of law applicable to this case.</p> <p>21. That his Honor erred in refusing to charge the following written request of defendant, viz.: “I charge you that the act requiring toll bridges to be kept in repair, so as to answer the ends of their creation, fixes no standard of repair in which the bridge must be maintained; the only criterion is that the bridge can be used as a bridge under the terms of the statute authorizing its creation, and must not be allowed to become a nuisance across a stream or navigable water of this State” — whereas, it is submitted that this was a correct proposition of law applicable to this case.</p> <p>22. That his Honor erred in refusing to charge the following written request of defendant, viz.: “The jury is. instructed that if the bridge company kept its bridge in such shape that it could be used as a bridge by the general public for the purposes for which it was created, and yet was. obliged to. close same for such time as was necessary to make needed repairs, that it is not guilty of any crime either at common law or under the statutes of this State” — whereas, it is submitted that this was a correct proposition of law applicable to this case.</p> <p>23. That his Honor erred in refusing to charge the following written request of defendant, viz.: “The statutes of this State specifically provide that where a bridge has been injured by freshets or otherwise that the bridge company-shall have the right to establish a ferry, but the bridge company is not required to establish same, and the bridge company is required to ccmmence repairs, within six months, and to finish same within two years. Section 2170, .vol. I,. Code 1912” — whereas, it is submitted that this was a correct proposition of law applicable to this case.</p> <p>24. That his Honor erred in refusing a new trial and arrest of judgment, on the ground that section 618, Criminal Code 1912, contemplated an indictment based on information, and not a statutory indictment provided in the act of 1911, and that, even if said section should be construed as a. whole, there is no one to whom the penalty can be paid;there being no informer of record in this case.</p> <p>25. That his Honor erred in imposing a fine of $10,000;-whereas, it is respectfully submitted that, in the light of the-facts of the case, said fine was unwarranted, and excessive, and in violation of article I, sec. 19, of Constitution of„1895, prohibiting excessive fines.</p> <p>26. That his Honor erred in imposing a fine of $10,000: on defendant in this case, when it is submitted that said fine-was based on a misconception of the facts of the case, on* matters not appearing in the record or in testimony, and on ideas in the mind of the Circuit Judge not warranted by the actual facts of the case.</p> <p>27. That his Honor erred in imposing a fine on defendant; whereas, it is submitted that section 618 of Criminal Code 1912, only authorizes a fine for offenses against owners of bridges, and there is no provision of law in this State authorizing a fine to be imposed upon the defendant for violating the terms of said section.</p> <p>28. That his Honor erred in refusing the motion of defendant for continuance in this cause; whereas, it is respectfully submitted that, in view of the affidavit presented and other facts shown by the record, a sound discretion would have necessitated a continuance until the next term of the Court.</p> <p>cites: As to exceptions II, III. IV, V and VI: Constitution of 1895, article III, sec. 17, Sixth Stats., p. 315; Act making the common law of England applicable to this country, Acts of 1868, 1873, 1892. This act is not in the 1902 Code nor in the Code of 1912: Code of 1912, vol. I, sec. 2830; Stats. 1919, p. 285; 28 S. C. 1. As to exceptions I, VIII, XI, XII, XIII, XV, XVII, XVIII, XXI: Blackstone, 4th Com., p. 167. As to exceptions VII, XIX, XX, XXI, XXII, XXIII: Sixth U. S. Statutes at Large, sec. 1150; 28 U. S. Statute at Large, sec. 363, Code of 1912, vol. I, sec. 2170. As to the fine: Exceptions XXIV, XXV, XXVI, XXVII; Constitution of 1895, article I, sec. 19.</p> <p>cite: As to exceptions 18, 11, 12, is, 15, 16 and 21: Crim. Code 1912, sections 635, 628, 615 and 618;'Acts of 1919, p. 285; 76 N. W. (Mich.) 977; 45 N. W. (Iowa) 1042; 106 N. W. (Neb.) 221; 26 N. E. (Ind.) 42; 25 Atl. (Pa.) 147; 54 N. E. (Ohio) 1054; 132 N. W. (Neb.) 722; 125 N. W. (Neb.) 722; 125 N. W. (Neb.)’ 1082; 14 Gray (Mass.) 242. Exceptions 2 and 3: Crim. Code 1912, sec. 618; Stats, at Large, vol. VI, p. 315; Gen. Stats. 1131-1132; Revised Stats. 354; 85 S. E. 234 ; 68 S. E. 561; Endlich on Stat. Inter., sec. 295. As to exception 4: Crim. Code 1912, sec. 135; Act of 24th February, 1912, satisfying the Code. As to exceptions 5 and 6: Crim. Code, sec. 83; 43 S. E. 658.; 62 S. E. 311; 61 S. C. 1064; Act of March 13, 1919 (referred to in exception; Crim. Code 1912, sec. 618. As to exceptions J and 20: Vol. XXXII of the Opinions of the Attorney General, p. 312; 98 Atl. 472. As to exception p: The fine must he proportianate to the means of the party to be sentenced: Blackstone. As to exception 18: Crim. Code 1912, sec. 618. As to- exception ipip: Sec. 2170, vol. I, of the Code has no bearing on the case. As to exception 24: Sec. 2832, of vol. I, Code 1912; Crim. Code 1912, sec. 618. As to exception 28': Supreme Court rule 5, Sec. 6; 60 S. E. 309.</p>

Action by Rosa Raymon against Sam Raymon for a ■divorce. From an order granting suit money and temporary alimony, the defendant appeals. submit: The County Judge abused his discretion: 68 S. C. 123; 91 S. C. 245; Hair v. Hair, 10 Rich. —.

<p>submit: The record does not show that the defendant was engaged in the business or vocation of hiring or soliciting emigrants: 63 S. C. 60; Standard Directory. The defendant was acting as an employee of a corporation, withdrawn for the particular occasion from his regular duties as a laborer, and intrusted with the duty of hiring laborers. The statute does not forbid a corporation, through its own employees, to hire or solicit laborers in this State, to be employed by it beyond the limits of the same: 110 S. C. 336; (Ga.. 39 S. E. 913; (N. C.) 48 S. E. 597; (N. C.) 52 S. E. 140; 71 Ala. 499; 6 Wall. 35; (Va.) 56 S. E. 223. The statute, as construed by the trial Court, lays an undue burden upon interstate commerce: 13 Wall. 154-156; Wigmore on Evidence, vol. IV, sec. 2577; 247 Fed. 888; 246 Fed. 786; 84 S. C. 34; 63 S. C. 68; 179 U. S. 270; 99 S. E. (S. C.) 841; 17 R. C. E., p. 493; 187 U. S. 622; 142 Ala. 43; 39 So. 203.</p>

Shuler Jones was convicted of murder, and appeals. cite: As to law of express malice: 43 S. C. 138. As to the law of what is “bringing about a difficulty:” 87 S. W. 151; 58 Ga. 212; 13 S. E. 398; 31 Miss. 504; 24 S. W. 6-11; 5 S. W. 353; 109 A. S. R. 807-8; 21 Cyc., p. 810; 21 Cyc. 807; 60 A. S. R. 17; 60 Tex., p. 17; 76 Tex. 736; 37 A. S. R. 983; 55 S. C. 34; 142 M. O. 443; 25 Ga. 527; 26 Tex. App. 274; 8 Am.

<p>Action by Elmer L. Rikard against Middleburg Mills. Judgment for plaintiff, and defendant appeals.</p> <p>submit : His Honor should have directed verdict for the defendant on the ground that there was no evidence as to what was the proximate cause of the accident, and no evidence of negligence on the part of the defendant: 45 S. C. 278; 22 S. E. 883; 72 S. C. 403; 97 S. C. 114; 69 S. C. 530; 48 S. K 538.</p> <p>submits : The rules governing nonsuits apply to motions to-direct a verdict: 96 S. C. 153; 109 S. C. 101. It may be that no one fact would of itself warrant the inference of negligence, and yet, when taken together, they produce belief, which is the object of evidence: 14 Rich. 237; 75 S. C. 334; 55 S. E. 774 ; 76 S. C. 388; 57 S. E. 194; State v. Redman. The weight of the testimony being for the jury, the case should not be taken from them where there is any testimony supporting plaintiff’s claim: 97 S. C. 331; 81 S. E. 484; 97 S. C. 403; 100 S. C. 389; 84 S. E. 880; 98 S. C. 125; 82 S. E. 275; 98 S. C.-396; 82 S. E. 433; 99 S. C. 364; 83 S. E. 633; 100 S. C. 296. It is the'duty of the master to provide a reasonably safe place for the servant to work; and when there is testimony tending to show that there 'was a failure of duty in this respect, in consequence of which failure the servant sustained injury, it makes out a prima facie case of negligence on the part of the master: 72 S. C. 130; 69 S. C. 387; 35 S. C. 405; 93 S. C. 396; 35 S. C. 406. It is the general duty of the master to exercise due care in the selection of its servants: 71 S. C. 57.</p>

'Action by the Farmers & Merchants National Bank of Take City, S. C., against the Bank of Hemingway. Judgment for plaintiff, and defendant appeals. The agreed statement of facts, order of the trial Judge, and appellant’s exceptions, referred to in the opinion were as follows: The facts of this case are not disputed.

Bud Gandy was convicted of manslaughter, and appeals. Exceptions of Appellant.

<p>Proceedings between the State and B. R. Lloyd, and from the judgment, Lloyd appeals.</p>

Action by Annie Rhame, by her guardian ad litem, against the City of Sumter and Eugene Eorshee. Judgment for plaintiff, and first named defendant appeals. submits,: The City and For-shee were not joint wrongdoers, therefore the principle that joint wrongdoers cannot have contribution, the one from the other, does not apply: 111 S. C. 152.

John E. George was convicted of manslaughter, and he appeals. submits: That it was error and misleading to the jury in the use of the word “possible” tzvice by the presiding Judge when instructing them as to the law of self-defense, it being szibmitted that the word “probable” or “reasonable” should have been used by the Court: Century Dictionary and Encyclopedia, pp. 4991, 4638 and 4741; Webster’s Unabridged Dictionary, pp. 1019, 1040 and 1093; Black’s Daw Dictionary, Third…

Action by B. O. Gibson and others against Delle Nora Gibson and others. From judgment for plaintiffs, defendants appeal.

<p>Juey — Action for Specific Performance of Land Contract, Which Defendant Claimed to Be Option, Does Not Reouire Jury Trial. —In view of Code Civ. Proc. 1912, sec. 312, providing that “an issue of fact, in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury,” in an action for specific performance of land sale contract, the question as to the contract’s being an option arises out of the transaction on which plaintiff bases his action, and where the answer contained no allegations raising an issue of title, jury trial was not required, and the Court could make a reference.</p>

<p>Proceeding to eject from a dwelling house by the Gran-iteville Manufacturing Company against Harvey Renew. Prom judgment for plaintiff, defendant appeals.</p> <p>submits: That all the testimony shows that the appellant entered the house in question under “a contract to serve another ,” as is said in section 3508, which says, such an occupant ushall show cause before him at the expiration of ten (10) days from the personal service of such notice.” The relation of landlord and tenant does not obtain where a person enters under ■such circumstances: R. C. L., vol. XVI, pp. 578-582-583; Am. & English Ann. Cases 1916c, pages 1110-1111-1113. If appellant was a tenant at all, he was a weekly tenant, and he zuas certainly entitled to a week’s notice: Cyc., vol. XXIV, p. 1385; R. C. H, vol. XVI, p. 1174 (section 695). The notice attempted to be given by the respondent, was not given on Saturday requiring vacation on the following Saturday; but it was given on Thursday, requiring vacation on Saturday, and it falls because of that fact: R. C. R., vol. XVI, p. 1174 (section 696). The failure of the magistrate to declare the law to the jury was error: 58 S. C., p. 92.</p> <p>submit: A finding of fact in the magistrate’s Court by a jury, and sustained by the Circuit Court, is conclusive of the case on the facts: 99 S. E. (415), p. 828. A custom becomes a part of a contract to rent: Taylor’s Landlord & Tenant, sec. 540; 1st Hill’s Law, p. 358; 104 S. C. 380; 104 S. C. 439. Even if the magistrate failed to declare the law in his charge to the jury it was harmless error, because the facts of the case showed that the verdict ivas correct: 109 S. C. 245. The procedure in this case was properly brought under section 3509, Civil Code, 1912, vol. I, 98 S. B. O. 198. The' Circuit Judge found that Renew was a tenant at a specific rent, reserved, for a time, to be measured by the time of service, in the mill, and has also specifically found that the tenancy had terminated by the fact of Renew leaving the mill, and this finding of fact “is final:” 99 S. E. 828; Code of Civil Procedure,’ sec. 407. Whether a person holding a house and lot is a tenant or a servant because he also serves in a factory, is a question that has been considerably discussed, and there are some outside decisions both ways, but we submit to'the Court that the vital question in the determination of that matter, is whether he was paying rent: 1 Spear’s Law Report, p. 429; 100 S. C. 366; 42 Am. Dec., pp. 122-131.</p>

A. R. Breuer was prosecuted for bigamy. From so much of the judgment, on a conviction, as suspended sentence, the State appeals. submits: A Circuit Jtidge has no power to suspend a sentence in cases of felony such as bigamy: Criminal Code, sec. 381; Acts of 1912, p. 773. Bigamy is a felony: 2 Rich., p. 220; Constitution of 1895, article II, sec. 6.

Action by T. L. Harmon against Walker D. Hines, Director General of Railroads. From an order overruling motion to set aside service, defendant appeals. submits: The service should have been made upon an operating official operating the Seaboard Air Line Railway, the railroad in respect of which the cause of action arose: General Orders No. SO and No. 50a; 99 S. E. 846; Northern Pacific Railway Company v. State of North Dokata, 249 U. S. —; 39 Sup.

<p>1. Refusal to Direct a Verdict por Defendant.- — -Under all the evidence in this ease, the Judge was clearly right in submitting the issues to the jury for their determination.</p> <p>2. Refusal to Grant a New Trial Upon the Ground That the Verdict of the Jury Was Not Sustained by the Evidence. — There was ample evidence to sustain the verdict.</p> <p>3. Judge's Charge. — The Judge’s charge was lucid, fair and full.</p>

<p>1. Principal and Agent — Liability of Doer of Wrong and One Concurring Therein. — If one defendant committed a wrong on plaintiff by removing his property, it is immaterial to his liability whether he did so as agent for another, and, if such other concurred in the wrong, both are responsible, be they principals or principal and agent.</p> <p>2. Venue — Change in Action to Recover Chattel to County of Foreclosing Mortgagee's Residence from That of Residence of Purchaser Properly Denied.- — In an action for recovery of a skidder brought against two defendants of different counties, one the mortgagee of the skidder, the other the purchaser at foreclosure sale, in view of the allegations of the complaint, not shown to be untrue, that the mortgagee concurred in the sale and removal of the skidder by the purchaser in the county of such purchaser’s residence, motion for change of venue to the county of the mortgagee’s residence was properly denied.</p>

Suit by James R. Hood against Charles S-Edens. From an order setting aside a temporary injunction, plaintiff appeals. submits: The temporary restraining order having been granted upon a proper prima facie showing, it was reversible error to dissolve it: 69 S. C. 156; 107 S. C. 40; 69 S. C. 56; 62 S. C. 196; 67 S. C. 84; 42 S. C. 103; 94 S. C. 202; 51 S. C. 435.

Action by T. L. Harmon against the Southern Railway Company.

Action by R. D. Lee, I. C. Strauss, and Davis D. Moise, as executors, against the Sumter Pine & Cypress Company and others. Judgment for plaintiffs, and the named defendant appeals.

<p>Appeal and Error — -Failure to Comply With Court Rule by Filing Points and Authorities Justifies Dismissal. — Where appellant has failed to file points and authorities as required by Court rules, but states in the record that “submitted without argument,” the appeal must be dismissed.</p>

<p>1. Arrest — Improper Arrest and Bail Does Not Defeat Cause op Action to Recover Monet. — Arrest and bail is merely a matter ancillary to the action, and the question of conformity to the statutes for arrest and bail are proper in a motion to discharge the arrest, but nonconformity to the statutes does not defeat a cause of action set up in a complaint to recover money and a note, and is not ground for sustaining a demurrer to the complaint.</p> <p>2. Pleading — Payment to Plaintive Suing for Monet Defense and Not Counterclaim. — In an action against an attorney to recover . money placed in his hands, where defendant put in a bill against the plaintiff, which tended to show that at plaintiff’s request he had paid out all of the funds, including fees, to the defendant, except a certain amount which he tendered in Court, the matters set up by defendant were simply matters of defense, and not a counterclaim, as no separate judgment could have been rendered thereon.</p> <p>3. Appeal and Error — Allowing Reply to Answer Under Erroneous Belief That Answer Contained Counterclaim Harmless. — Since it . was within the discretion of the trial Court to allow a reply to an answer, there was no reversible error in allowing a reply to an answer under the erroneous belief that the answer contained a counterclaim.</p> <p>4. Attorney and Client — Contract Between Attorney and Client Question for Jury. — In an action against an attorney to recover money left in his hands, whether a receipt tendered in evidence by the plaintiff was a receipt referred to in a power of attorney, and whether it was a part of the contract, held for the jury.</p> <p>5. Trial — -Testimony Not Oejected to Must Be Considered by Jury.— Testimony introduced without objection must be considered by the jury.</p> <p>6. Appeal and Error — Questions op Pact Not Reviewable. — The appellate Court cannot pass upon the facts, not even when a witness makes a contradictory statement; it being for the jury to say which statement they believe.</p> <p>7. Attorney and Client — Withdrawal of Evidence from Jury in Action for Accounting Error. — In an action against an attorney to recover money left in his hands, Court erred in withdrawing from the consideration of the jury evidence of defendant that he had a contract for the collection of certain disputed claims, and that plaintiff wrongfully settled with the debtors without his consent, and that defendant was withholding part of the money left with him as compensation for his services.</p>

Action by Rena Robison' against G. M. Barton. Judgment for defendant, and plaintiff appeals.

Action by Sarah A. Bartell and others against Barnabas Edwards and others. Judgment for defendant, and plaintiffs appeal. cite: As to covenants to stand seised to uses — their characteristics and requisites: 2 Blackstone, p.. 338; 4 S. C. 634; 1 Am. Dec. 231; 1 Am. Dec. 229; 4 Kent 493; 24 S. C. 234; 3 Washburn, p. 606. Except in wills and trust deeds, a fee cannot he created without the use of words of limitation: 101 S. C. 424; 102 S. C. 361; 109 S. C. 44!

Suit by J. A. Kaminer and others against D. E. Kaigler and others. Decree for plaintiffs, reducing the amount of their claims, and they appeal. submits: What was originally. and at the beginning a gratuity cannot afterwards be converted into a debt: 38 S. C. -158; Bail. Eq. 388.

<p>Action for partition by Mary L. Burton and another against Claude W. Burton and others and Nannie A. Burton and another.</p> <p>From a judgment for plaintiffs, defendants first named appeal.</p> <p>cites: As to the rule of construction: 42 S. C. 345. As to the definition of the word “heirs:” 37 S. C. 255; 16 S.'E. 122-127; 1 McMul. Eq. 206, 207; 3 Rich. Eq. 550; 21 Cyc. 418, 419; 10 Ky. R. Rep. 867, 868; 67 Pa. St. 446; 36 S. C. 38-44; 3 Rich. Eq. 156. As to construction of a will: 105 S. C. 13.</p> <p>cite: As to the construction of wills: 4 DeS. Equity Reports, pp. 274 and 301 and 302; Richardson Equity Reports, vol. I, pp. 61 and 63; 1st Nott and McCord 321; 2 McCord’s Chan. 260; 5 Yesey’s Reports, pp. 242-246; 2 Mass. Rep. 56; 2 Mass. 208; 6 Mass. 169; 8 Mass. Rep. 3; 11 Mass. •Rep. 528; 11 Johnson Rep. 201; 1st Munf. 537, 539; Black-itone (Sharswood’s Ed.), p. 379 (comments by Judge Shars-ivood) ; 6 Peters, p. 84; 6 Peters 68; Coke’s First Institute 112b; 12 Wendell (N. Y.) 602; 12 Cent. Rep. 397; 7 Cent, iep. 576; 10 West. Rep. 146, 121, 111, 221; 13 N. Y. 284; ¡6 Abb. Pr. (N. S.) 206; 47 Iowa 607; 2 Myl. and K. 149; 6 Ves. Jr. 100; 31 U. S. 6 Pet. 68 (8 R. Ed. 322); 12 Wend. 665; 4 Iowa 180; 9 Paige 124; 4 N. Y. Ch. R. Ed. 633; 116 Jones & S. 327; 25 U. S. 12 Wheat 568 (6 R. Ed. 731); 31 U. S. 6 Pet. 68 (8 R. Ed. 322); 9 Paige 107; 4 N. Y. R. Ed. 627; 12 Wend. 602; 2 Barb. 229; 19 N. Y. 344; 47 N. Y. 512; 53 N. Y. 233; 10 Hun. 189; 52 N. Y. 12; 38 N. Y. 410; 28 N. Y. 82; 72 Iowa 601; 72 Iowa 604; 27 Am. Decisions, p. 590; 25 Amer. Reports, p. 769; 85 Va. 459; 8 S. E. 672; 2 R. R. A. Annotated 848. As to wills — codicils — construction and effect: American State Reports, vol. CX, p. 516; 71 S. C. 188; A. & E. Ency. of Raw, vol. VI, p. 186bb; 1 Nott and McCord, p. 322; Powell on Device, p. 24, pp. 541-546, p. 199; 82 S. C. 402; 81 S. C. 282.</p>

Suit by George W. Stone against John L. Stone to foreclose a mortgage. Judgment for defendant, and plaintiff appeals. submit: Hudgens paper merely a receipt, not the contract between the parties: 9 S. C. 92; 19 S. C. 375; 39 Cyc. 1223-1224. Scrivener, respondent’s agent: 100 S. C. 159; 21 S. C. 235; 69 S. C. 90; 44 S. C 22; 34 Cyc. 915; 92 S. C. 307.

<p>1. Railroads — Action por Penalty Arising Out op Federal Control Not Maintainable. — The proviso in General Order No. 50 of Director General of Railroads that the order should not apply to suits for recovery of fines, penalties, or forfeitures, does not permit suits against railroads for penalties incurred under local laws by reason of acts of agents of the government.</p> <p>2. War — Power op Congress Supreme.- — The power of Congress in the emergency of war is supreme, and local laws must yield when they conflict with it.</p>

<p>Action by Ella G. Wren and others against Margaret R. McCay and others. From judgment for plaintiffs, defendants appeal.</p> <p>cite: As to estoppel: 10 R. C. L. 689; 12 S. C. 314; 22 S. C. 123 (2 Phill.); 141 Iowa 285; 119 N. W. 702; 133 A. S. R. 170; Cooley on Torts (2d Ed.), latter part sec. 569; 41 Conn. 197; 30 Iowa 423; 36 Iowa 125; 14 Am. Rep. 505; 81 S. C. 329; 95 S. C. 328. As to the rule in the exception of wills: 31 U. S. 68; 8 Raw Ed. 322; 28 U. S. 346; 7 Raw Ed. 701; 26 S. C. 564; 28 S. C. 325; 1 Hill’s Chan. 56 and 63 S. C. 474 (cited and differentiated from case at bar). As to the rule in determining whether there has been a performance or breach of a condition precedent or of a condition subequent: 40 Cyc. 1717; 37 Barb. 496; William on Executors 1376; 19 S. C. 184; 1 Story Eq. 291; 9 S. C. 213 ; 27 R. R. A. (N. S.) 684 (footnote); 12 Ky. R. Rep. 827; 15 S. W. 511; 118 N. C. 422; — S. E. 751; 26 S. C. 47R and 1 Hill 56, have no application to the case at bar.</p> <p>cite: As to what is a contingent remainder: 10 S. C. 387; 10 S. C. 398. This is not a vested remainder: 10 S. C. 387. Not a fee defeasible: 102 S. C. 243. Courts favor a construction rendering the estate a remainder instead of an executory devise or limitation: 24 A. & E. Encyc. E. (2d Ed.) 429. This is not an executory devise or limitation: 16 S. C. 170; 2 Minor Inst. 369; Fearne on Remainders 385; 16 S. C. 325; 24 A. & E. Ency. L. (2d Ed.) 430; 24 A. & E. Ency. E. (2d Ed.) 428-9. The contingent remainder here is not transmissible: 26 S. C. 471. By the terms of the will none were or could be trusted with the “kind care” of Lawrence, but a “child” of the testator: 28 S. C. 326; 1 Hill Ch. (10 S. C. Eq.) 56; 17 Ill. (7 Peck) 59-61. Both conditions must be fully performed before the devisee may take: 50 S. C. 488; 28 S. C. 326; 2 Bl. Com. 157. This is a condition precedent: 28 S. C. 331. The devise is void for uncertainty: 28 S. C. 326; Jarman on Wills (5 Am. Ed. 1880), pp. 661-2; 26 S. C. 470; 4 Kent Com. 125. Precedent conditions must be literally performed: 4 Kent Com. 125; 2 Bro. G. C. 431-460; Full Eng. Reprint 255; 16 Wall. (U. S.) 206; 33 N. J. R. 499; Underhill on Wills, pp. 637-644; 16 Wall. (U. S.) 206; 26 S. C. 470; Jarman on Wills (5 Am. Ed.) 520. The condition to kindly take care of Lawrence was to be personally performed by one of the testator’s children, and could not be performed by his heirs or personal representatives: 28 S. C. 326. The contingent interest of Thomas was not transmissible to his heirs or personal representative: 26 S. C. 470. The contingent remainder having failed, then the estate reverted to the estate of the testator and passes under the residuary clause of his will: 109 S. C. 439. The increase of the residuary estate by accident is permissible %mder the rules of law: 91 S. C. 103. In order to take under the devise, the taker must be a child of the testator, and must have fulfilled the condition precedent by taking kindly care of Lawrence until his decease: 63 S. C. 474-490; Ricíi. Eq. Cas. 321-323; 19 S. C. 181. There could be no estoppel here: 81 S. C. 331-2; 67 S. C. 449, et seq.</p>

<p>Proceedings by the City Council of Charleston to eject the Terry Fish Company from premises let to it. Judgment for plaintiff, and defendant appeals.</p> <p>The 11 exceptions, made into four grounds, referred to in the opinion, are as follows:</p> <p>First. That the notice to quit served on the Terry Fish Company was not a legal notice, as it should have run in the name of the commissioners of the market or the dock commission, but certainly not in the name of the city council of Charleston.</p> <p>Second. That the testimony showed that the Terry Fish Company should not have been ejected from the premises occupied by it.'</p> <p>Third. That the Court should have held that the question of title was involved, and that, therefore, the civil and criminal Court had no jurisdiction.</p> <p>Fourth. That the Court should have held that the Terry Fish Company had a-right to offer in evidence the deed and indenture of Charles Costeworth Pinckney and others to the city council of Charleston, dated March 27, 1788, as this would have shown:</p> <p>(a) That the city council of Charleston is neither the owner nor the landlord of the property at the foot of Market street, occupied by Terry Fish Company.</p> <p>(b) That the city council of Charleston held the premises occupied by Terry Fish Company only as a trustee for a public market, and that by operation of law and breach of the trust the title to the property was no longer in the city of Charleston.</p> <p>(c) The Terry Fish Company is in possession of the premises now occupied by it as a part of the public market of the city of Charleston and lawfully in possession under the terms of the trust deed, and, therefore, has an equitable title to said premises, and cannot be dispossessed by the city council of Charleston as trustee in breach of its trust.</p> <p>submit: If it be held that the commissioners of the market rvere not the landlords of Terry Pish Company, but that its tenancy was from year to year as contended by,the city of Charleston, then three months’ notice from the landlord before the end of the calendar year is necessary to terminate such tenancy: 30 S. C., p. 210. The Court will take judicial notice of the fact that under the act creating the Civil and Criminal Court of Charleston, it has no jurisdiction where the title to land is involved. A tenant may show that the landlord’s title has expired or terminated by operation of law: 248 U. S., pp. 478-480; 60 Taw Ed., p. 758; 26 S. C., p. 608; Ind. S. E., p. 3. The property occupied by the Terry Pish Company was deeded to the city council of Charleston to use for the purpose of a public market, and Terry, as a member of the public interested in the continued maintenance of the market, had a right to insist upon the execution of the trust: Cyc., vol. VII, p. 522.</p> <p>submits: When a landlord allows his tenant to remain in possession after the time stated in the lease, such tenant is presumptively a tenant from year to year: 90 S. C., p. 50. In Charleston where such a tenant is required to vacate the leased property, three months’ notice previous to the end of the calendar year must be given: 30 S. C. 210. As to the nature of tenancy, see, also, vol. I, Civil Code, note to paragraph 3502. The Civil and Criminal Court had jurisdiction: 24 S. C. 507'; 10 S. C. 301; 13 S. C. 198; 21 S. C. 598; 32 S. C. 148; 49 S. C. 152; 48 S. C. 189; 81 S. C. 465-466; 96 S. E. R. 481. The Terry Fish Company which went into possession of the property in question as a subtenant of the tenant of the city council of Charleston is estopped to deny the title of the city council of Charleston: 21 Cyc., p. 893; 131 Mass. 566; 24 Cyc., p. 934. This estoppel is applicable in summary proceedings to recover possession of the leased property: 24 Cyc., p. 943. Before surrender of possession,' the tenant cannot set itp an inconsistent title in itself acquired from a third person: 24 Cyc. 949. Tenant cannot dispute his landlord’s title: 24 Cyc. 950; 18 Wall. U. S. Supreme Court, p. 436; 1 Nott & McCord, 371. As to landlord’s remedy: 54 S. C. 262. As to agreement to pay rent: 97 S. C. 334; 102 S. C. 307; 52 S. C. 1. Tenant cannot show that landlord’s title has ended: 4th Strobhart, p. 196-203. The trust deed toas properly excluded from the evidence: 15 S. C., pp. 10-35; 65 S. C. 251-256; 75 S. C. 428-432; vol. I, Code of 1912, sections 3996-4000.</p>

Jess. Murphy was convicted of murder, and from an order denying new trial for after-discovered evidence, he appeals. submit: The ground upon which this appeal is made is that the presiding Judge abused his discretion, in that he passed upon facts which should be heard by a jury: 105 S. C. 437; 91 S. E. 382; (Ga.) 70 S. E. 975.

<p>H. M. Gibbs was convicted of manslaughter, and he appeals.</p> <p>cite: As to error in not permitting defendant’s co^msel to ask the witness, Mrs. Lackey, if she had not married the deceased before the death of her first husband: 98 S. C. 117; 79 S. C. 187; Const, of 1895, article II, sec. 6. As to contradiction of Mrs. Lackey, the prosecuting witness: 43 S. C. 105; 70 S. C. 452. As to the law of retreat: 72.S. C. 194; 79 S. C. 150.</p>

Actions by Gertrude B. Thompson and husband, and by Edyth Kellers and husband, against the Atlantic Coast Line Railroad Company and others.

<p>Proceeding by Henry Meier, executor, to prove a paper-purporting to be the will óf Mrs. Meta H. C. S. Rodenberg, deceased, opposed by J. N. Kornahrens and others. Prom a decree of the probate Court rejecting the alleged will, the executor appeals. Prom an order framing issues to be submitted to jury on hearing of the appeal, the executor appeals.</p> <p>submit: The appeal herein involves but one question and that is a question of practice, namely, when does the ten days commence within which must be served the notice of motion to refer issues to a jury on a question of will or no will on appeal from the Probate Court: Code of Civil Procedure 1912, section 66; Constitution 1895, article V, section 15. On appeal from the probate Court-to the Court of Common Pleas, neither party, as a matter of right, is entitled to a trial by jury: 102 S. C. 156. The practice, as we understand it', under which a party on appeal from the probate Court to the Court of Common Pleas may have an issue submitted to a jury is to ■ serve on the opposite party within ten days after the service of appeal the notice of motion to refer the particular issues to the jury: Circuit Rule 28; 35 S. C. 420; 14 S. E. 931; 5 S. C. 411; 16 S. C. 40; 17 S. C. 32; 33 S. C. 442; 12 S. E. 5; 4 S. C. 37; 67 S. C. 55. It is discretionary with the trial Court to send issues to a jury, but, in order to get before the Court at all the moving party must serve notice within the time required by Circuit Court rule 28: 93 S. C. 271.</p> <p>submit: That if ten days’ notice is necessary the ten days run from issue joined under the. direction of the Circuit Court. It has always recognized that the real trial in cases of will or no will is on Circuit, where a jury can be had and this method of trial is encouraged and followed: 12 Rich. Eq. (33 S. C. Eq.) 203; 16 S. C. 40; 67 S. C. 55. The procedure to .secure submission of issues as a matter of right is under Circuit Court rule 28. The ten days cannot commence to run from issue joined in the Circuit Court: 67 S. C. 55. It would seem that if any proper written notice is given issues should be submitted: 35 S. C. 417; 67 S. C. 55, and cases cited therein. If the ten days’ notice from date of issue joined required under rule 28 governs in cases of this nature, then it is clear that issue is not joined save under the direction of the Circuit Court, and that the time does not start to run under the rule until the date it is so joined: Vol. II of the Code, sec. 66. In Stewart v. Blease, 4 S. C. 37, no application was made for an issue to be joined on any question of fact. The parties are at liberty to' raise new questions never made before the probate Court: 16 S. C. 40. T'his Court has never decided that the ten days contemplated >y the rule ran from the date of the service of the notice of ippeal from the probate Court: 67 S. C. 55. The order was vithin the discretion of the Court: Code of Procedure, sec. J12 (276, Code of 1870); sec. 313 (277, Code of 1870); 5 S. C. 411; 17 s. C. 332; 35 S. C. 417; 93 S. C. 268.</p>

<p>Suit for partition by Selina E. Wilson and others against Magnonia E. Moseley and others. Erom a judgment of nonsuit, plaintiffs appeal.</p> <p>submits: That “ancient public records like ancient deeds when shown to have come from the proper custody, are, in the absence of anything to impeach their verity, admissible in evidence without further proof of their authenticity, it being presumed that after thirty years that the official who made the record is dead; the rule has been applied to the public record deeds, even though 'rregularly made, provided facts requisite for the admission of the deeds themselves as ancient documents exist:” 17 Cyc. 446; 7 Rich. 509; 22 S. C. 332, cited and differentiated from case at bar.</p> <p>submit: There was no error in withdrawing the deed: 47 S. C. 498; 2 Bailey 296; 92 S. C. 105; 2 Bailey 297. There was no error in refusing a continuance: 99 S. C. 231; 48 S. C. 5; 78 S. C. 266; 56 S. C. 378; 47 S. C. 298. The record copy of the deed was not an ancient document: 22 S. C. 332.</p>

Action by C. F. Middleton and others, copartners trading as Middleton & Co., against J. A. Cockfield and the Home Fertilizer & Chemical Company and the Farmers & Merchants National Bank of Lake City. From a judgment for plaintiffs, the last named defendants appeal. cite: As to competency of testimony: 92 S. C. 501; 71 S. C. 250. As to payment of mortgage: 27 Cyc. 1885; 35 S. C. 398. As to effect of assignment: 103 S. C. 227; 27 Cyc. 1436; 20 S. C. 381; 7 Rich. 400, 406.

Action by John L. Shaw against A. D. Fisher. From a judgment for plaintiff, defendant appeals. submits: The servant had terminated the contract on his own volition, without any enticement or persuasion on the part of appellant, and there can he no liability on the part of the person hirina such laborer: 105 S. C. 38; Constitution of the United States, Amendment 13, sec. 1; U. S. Revised Stats., secctions 1990 and 5526, known as the Peonage Acts; 79 S. C. 22.

Action by Marie M. Jakar against Isaac Jakar to set aside a marriage. From a judgment denying relief, plaintiff appeals. The report of the master and decree of the trial Judge are as follows: Report of Master: This cause was referred to me by order of his Honor, Thomas Sease, presiding Judge, dated January 13, 1919, to take the evidence upon all the issues herein and make report thereof with my findings and conclusions of law and fact.

Proceedings by the Wateree Power Company against Holbrook Rion and Mrs. Helen Rion for the condemnation of lands, together with proceedings by the same petitioner against Mrs. Helen Rion.

M. E. Awtrey, as executor under an alleged will of John W. Wood, deceased, offered the will for probate, and Sallie E. Wood requested that the executor be required to petition for probate in solemn form.

Action by W. H. Súber against the Parr Shoals Power Company. Judgment for defendants, and plaintiff appeal's. submit: It was competent for plaintiff to shoiv by disinterested witnesses other instances of fraud, growing out of the same matter, perpetrated in the same way, similar in point of time and circumstances with his own: 14th vol., 2d Ed. A. & E. Law, under the head of “General Scheme or Purpose to Defraud;” 14 A. & E. Law, 2d Ed., pp. 187-198; Cyc., vol.

Action by Ann Freeman against Dallas Chavis. From judgment for plaintiff, defendant appeals. submits: That the land in question being within the area of Camp Jackson and seized by the Federal government, for war purposes, Richland County Cotirt had no jurisdiction, exclusive jurisdiction being in the Federal government: U. S. Compiled Statutes 1918, sec. 6911a.

<p>1. Sufficiency of Evidence. — There was plenty of evidence to sustain a concurrent finding of fact by the magistrate and the Circuit Judge that Stallings was held out to the public by defendant as its agent.</p> <p>2. There was ample testimony to sustain the concurrent finding of the magistrate and Circuit Judge that plaintiff’s actual damages was the amount allowed.</p>

Action 'by the National City Bank against the Huey & Martin Drug Company and the Calhoun Drug Company, based on indebtedness of the Huey & Martin Company to plaintiff and sale by that company to the Calhoun Company without compliance with the Bulk Sales Daw. Verdict for plaintiff for $689.12 was directed against both defendants, and from a judgment entered thereon the defendants appeal.

Action by C. H. Allen against J. L. Orr. Judgment for plaintiff, and defendant appeals. submit: It was the duty and province of the Circuit Judge to construe the written contract: 81 S. C. 226; 66 S. C. 22. (no citations).

W. H. Johnson was convicted of a violation of the liquor law, and he appeals. submit:. That there being no evidence that defendant was selling alcoholic liquors or selling extracts or medicines as a beverage a directed verdict should have been granted: Vol. I, Code of Laws of S. C., sec. 1643; Acts of S. C. of 1917, page 73, par. 19; Code of Laws of S. C., vol. I, sections 2393, 2390; Acts of 1917, page 73, par. 20; Crim.

Action by the Capital City Garage and Tire Company against the Electric Storage Battery Company. Judgment for defendant, and plaintiff appeals. submit: The trial Judge was in error in submitting question of contract or no contract to the jury: 105 S. C. 478; 92 S. C. 95.

Action by W. B. Dial, as administrator, against the Southern Railway Company. From an order of nonsuit, the plaintiff appeals. submit: Where public safety requires a flagman, gate, or other device at a public crossing, the omission of such precautions is negligence, and is a question of fact for a jury, whether the circumstances exist which create such a duty: 111 U. S. 228; 129 Mass. 364.

<p>Action by E. McKay Miller against George Goodwin and others to foreclose a mortgage. From an order confirming master’s report of sale, the named defendant appeals.</p> <p>cites: As to the confirmation of sale being appealable: 23 S. C. 106. As to tender: 88 S. C. 525. As to judicial sales and rights of purchasers — and stay pending appeal: Bank v. Farmington, —; 99 S. C. 475, 115; 87 S. C.’351.</p> <p>submits: A stay of sale, pending appeal from decree of foreclosure, is not permitted unless the appellant has executed the written undertaking required: 19 S. C. 201; 30 S. C. 348. It is the policy of the law to support judicial sales: 25 S. C. 175; 83 S. C. 172; 16 S. C. 281; 18 S. C. 126; 23 S. C. 514. A sale was complied with after the time fixed in order of sale for a resale, held no ground for vacating the sale and can-celling deed: 16 S. C. 503. Plaintiff’s attorney may purchase at judicial sale: 19 S. C. 559. As to the effect of time in regard to the specific performance of agreements: 5 Rich. Eq. 370; 5 S. C. 462; 5 S. C. 450. Under the law of this State “if a proper tender be made to the mortgagee, the mortgage lien is discharged: 26 S. C. 337; 16 S. C. 427. But there was no proper tender here. Since the act of if pi there has been no equity of redemption in favor of the real estate mortgagor in this State: Code, vol. I, see-. 3460; 2 Brevard 211. A purchaser at a master’s sale is entitled to have the title examined: 35 S- C. 326; 1 DeS. 382; Adams’ Equity 217; 51 S. C. 559. A valid and binding contract of sale is made as soon as the property is struck off to the successful bidder, there being either an expressed or implied acceptance of his bid. • Therefore he cannot retract or withdraw his bid. He may transfer it to another person: 27 Cyc. 1701; 32 Ill. 331; 43 Mich. 322; 2' Disn. (Ohio) 213. If purchaser does not comply with his purchase, and no resale is had, he is liable for the damages resulting from his default: 24 Cyc. 56. Purchaser at master’s sale is entitled to have his title reported upon: 35 S. C. 314. Sale of land under a judgment by probate Court for sale of land in aid of assets, cannot be impeached by proof of payment or tender of part of the indebtedness of the estate, and where no notice of tender was given at the sale, purchaser takes title unaffected by the tender: 71 S. C, 31; 20 S. C. 514. Tender must be for full amount in order to be effective: 39 S. C. 1; 2 Bail. 274.'</p>

<p>Action on agreed statement of facts by-J. Boyce Burriss and another, as executors of the estate of William Burriss, deceased, against Mrs. Carrie Earle Burriss and others, as executors of the estate of R. M. Burriss, deceased. From the.judgment, plaintiffs appeal.</p> <p>submits: That plaintiffs were entitled to interest on the sum of twenty-one hundred and seventeen dollars admitted to he due on May ¡i, 1913: 49 S. C. 449.</p> <p>submit: That in such a case of accounting where plaintiff’s demand is unascertained and unliquidated the balance found to be due on the account bears interest only from when the balance is ascertained or agreed to: 100 S. C. 100. The statute declares zvhdt sums of money shall draw interest and this case does not come within its terms: Civil Code, vol. I, sec. 2516; 30 S. C. 305; 47 S. C. 176-186; 32 S. C. 57.</p>

Action by W. L. Oates against E. W. Eoutain, Treasurer of Darlington County, to recover back taxes paid. Judgment for defendant, and plaintiff appeals.

Action by the Home Bank of Lexington against Alfred J. Fox, in which Ella V. Fox and others intervened.

Action by Edwin Malloy against D. A. Douglass. From a judgment for plaintiff for the part of the claim admitted by the answer, he appeals. submit: That the order of Judge Bowman for judgment admitted to he due in the answer was not a final adjudication of the issues in the cause, and was granted under the statute allowing judgment for an amount admitted to be and necessarily by implication reserving unto defendant, the right to litigate the balance of his claim: Code of…

Action by Mrs. Helen Nott Sloan against W. S. Glenn. Judgment for plaintiff, and defendant appeals. (no. citations). submit: There was abundant testimony to take the case to the jury on the issue of ptmitive damages: 100 S. C. 335; 38 Cyc: 1042 (notes) ; 11 Rich. 35; 11 Rich. 24; 37 S. C. 578; 14 Rich. 243; 101 S. C. 64; 90 S. C. 361.

<p>Action by Diana Dingle against Frances Major. Erom a judgment for plaintiff, defendant appeals.</p> <p>submit: That there is no evidence as to fraud, neither, is there a specific finding of fraud by the referee, and that as the deed zvas under seal, it was error to hold that same zvas without consideration: 44 S. C. 378; 59 S. C. 560; 64 S. C. 233. Where a deed is sought to be cancelled on the ground of fraud, evidence which shows only an honest mistake or innocent misrepresentation is not sufficient to cancel same: 6 Cyc. 335. Where complaint demands cancellation on the ground of fraud, same cannot be decreed to -be cancelled on proof of some other grounds which would have made out a case under some other distinct head of equity: 6 Cyc. 333. A grantor cannot impeach his deed on the sole ground that it is without consideration. If no consideration is expressed in the deed, the sale will be sufficient: 44 S. C. 378.</p> <p>(no citations)'.</p>

Action by the Merchants and Planters National Bank of Union, S. C., against James E. Hunter and others.

<p>1. MtASTER AHD SERVANT — ASSUMPTION OE RlSIC OE INJURY FROM CONTACT With Hidden Barbed Wire. Heed eor Jury. — Where the testimony tended to show that it was necessary for railroad bridge hands engaged in tearing down a bridge to run to the place where plaintiff was injured in order to prevent the cap of a bent from falling on them, and that danger arising from a barbed wire was hidden, it was a question for the jury whether plaintiff assumed the risk.</p> <p>2. Master and Servant — Master’s Lack oe Knowdedge op Hidden Danger a Matter oe Defense. — The fact that employer may not have had notice of the hidden danger arising from a concealed barbed wire is a matter of defense, and no part of injured employee’s cause of action.</p> <p>3. Master and Servant — Fellow Servant Doctrine Inapplicable in Case Under Federal Act. — The fellow servant doctrine has no appli cation to a case arising under the Federal Employers’ Liability A-' (U. S. Cómp. St., secs. 8657-8663).</p> <p>4. Negligence — Contributory Negligence Available Only in Mitigation op Damages Under Federal Act. — In a case arising under the Federal Employers’ Liability Act (U. S. Comp. St., secs. 8657-8665), the defense of contributory negligence is not available, except in mitigation of damages.</p> <p>5. Release — Return op Consideration Held Not Necessary to Avoidance. — A defendant in a personal injury suit, who pleads a release as a defense, has right to make motion requiring plaintiff to file a reply stating whether consideration was returned; but, where defend ant does not make such motion, plaintiff has the right to offer evi dence in avoidance of release, and cannot be nonsuited for failure to return the consideration.</p>

Action by C. B. Stone against the City Council of the City of Greenville. From an order denying temporary injunction, plaintiff appeals. submit: Plaintiff has a prima facie case: Constitution of 1895, article VIII, sec. 7; 60 S. C. 532; 103 S. C. 11, 20 and 21; 73 S. C. 83; L. R. A. (N. S.) 736; 60 S. C. 532, 556-558; 90 S. C. 352; 103 S. C. 172.

Action by Jane E. Ellison against W. E. Mattison, individually and as administrator de bonis non cum testamento annexo of Peter Johnson, deceased, and J. D. Stone. From the judgment, defendant,- Stone, appeals. -cites: As to the allowance of interest to W. B. Mattison: A. & E. Ene. E., 2d Ed., p. 990; 4 Rich. Equity 92; 90 S. C. 148. cite: As to allowance of interest to W. B. Mattison: 2 McCord Eq. 15 R.' C. E, p. 40; 90 S. C. 149.

Action by E. H. Dent and others against Samuel H. Dent and others. From the judgment, defendants, Helen A. Covington Quarterman and others, appeal. submit: The gift to Ben T. Dent lapsed and must be divided among the heirs at law and distributees of testator: Vol. I, Code 1912, sec. 3574; 56 S. C. 11; 26 S. C. 450; 17 S. C. 428; 13 Rich. Eq. 104.

Action by Minnie Dillingham and others against National Council, Junior Order of United American Mechanics. Judgment for plaintiffs, and defendant appeals. submit: That appellant was not estopped by the acts of Sandifer, the local financial agent, who had collected Dillingham’s dues in advance up to a period beyond the date of his death: Code of Daws, sec. 2770; sec.'.2755; 31 Cyc. 229; 102 S. C. 413; 107 S. C. 291; 95 S. C. 61, and 102 S. C. 286, distinguished.

Suit by Sarah F. T. Blackmon against .George W. Wib Hams and others.

Action by D. J. Cline against' the Southern Railway Company and another. From a judgment for defendants, plaintiff appeals. submits: The evidence presents a jury issue: 96 S. E. Rep. 532; 89 S. C. 286; 106 S. C. 200; 96 S. E. 432; 78 S. C. 323. Was there any consideration for the settlement: 109 S. C. 29; 5 E. R. A. (N. S.) 1194 (Va.); Minor’s Institutes, vol. Ill, 139; (N. C.) 97 S. E. Rep. 655; 44 S. C. 378; 71 S. C. 577; 115 Am. St. Rep. 880.

<p>Action by Elizabeth Parke Walker, as administratrix of Walter H. Walker, deceased, against the Atlantic Coast Line Railroad Company and another, to recover damages for the death of plaintiff’s intestate in a collision between defendant’s train and the automobile in which he was riding. From an order striking out portions of the answer, defendants appeal.</p> <p>Circular No. 4, mentioned in the opinion, was as follows:</p> <p>United States Railroad Administration, Division of Daw. Washington, October 25, 1918. Circular No. 4. Attention is directed to the act of Congress entitled “An act to amend an act entitled ‘An act to authorize the establishment of a Bureau of War Risk Insurance in the Treasury Department,’ ” approved September 2, 1914, and for other purposes, approved October 6, 1917, Public Document No. 90, Sixty-fifth Congress (H. R. 5723).</p> <p>This act establishes a system for compensating officers and enlisted men and women nurses of the Army and Navy Corps, when employed in active service under the War and Navy Departments of the government.</p> <p>In case of railroad accidents, in order to avoid confusion and to effectuate a proper and uniform handling of the compensation claims of such injured and disabled persons who are entitled to receive compensation under the War Risk Act, upon the happening of any accident causing death, disablement, or of injury to any officer, enlisted man, or member of the Army or Navy Nurse Corps (female), occurring on any line of railroad under Federal control, the General Solicitor will immediately notify J. H. Howard, Manager Claims and Property Section, Division of Daw, Southern Railroad Building, Washington, D. C., giving the name and emergency address of the dead or injured person, his or her number, rank, and routing, and in the case of injured persons, his or her present address.</p> <p>Such injured officers and enlisted men and members of the Army and Navy Nurse Corps (female) will be remitted to their claim for compensation through the War Risk Bureau, and will not receive any payment through the Railroad Administration.</p> <p>No claims for damages for injuries occasioning death or disablement of such persons should be recognized or entertained. The circumstances surrounding accidents should be investigated as heretofore and report filed.</p> <p>The General Solicitor will notify general claim agents of this circular, who will in turn notify all claim agents. John Barton Payne, General Counsel. Approved: W. G. McAdoo, -Director General of Railroads.</p> <p>submit: This action cannot he maintained- against the Atlantic Coast Line Railroad Company because the railroad was under Ped-eral control and operation, and it was error to strike out this defense: 99 S. E. 846. It was error to strike out paragraph f and Circular No. 4. of the United States Railroad-Administration, as the same constituted a complete defense to this action. It is submitted that the representative of an officer of the army killed while on duty by a railroad operated by the United States in time of war can recover no greater compensation than the representative f any other officer killed in war cmd is limited to the compensation provided by the act of Congress through the War Risk Bureau. This precise question has recently been decided in the cases of Bryson, Admr., v. A. C. L. R. R. Co. et al., and Pmma C. Swann, Admx., v. A. C. L. R. R. Co. et al., by the United States District of North Carolina. The opinion of the Court in the Castle case (pp S. U. R. 846) is conclusive of the question. We refer briefly to a few decisions upon the question of the powers of the President under the acts of Congress: 250 Eed. 42; Northern P. R. R. Co. v. North Dakota, ex rel. Langer (Advance Opinions) U. S. Supreme Court, June 2, 1919, p. 533); 143 U. S. 649 ; 56 E. Ed. 294; 192 U. S. 470; 48 E. Ed. 525; 254 U. S. 476; 58 E. Ed. 1408, and the authorities therein cited; 244 U. S. 416; 61 L. Ed. 1233; 245 U. S. 366; 253 Eed. 549; 206 S. W. (Tex.) 114. •Administrative or executive functions may be delegated, although the execution of the power delegated may involve exercise of discretion: 103 Tenn., p. 500; 1 Ohio St. 88; 70 Ga. 694; 72 Pa. St. 498. The right to sue at all comes only from consent of the government: 20 How. 527; 15 R. Ed. 991; 101 U. S. 337; 134 IP S. 1; 238 U. S. 34.; Advance Sheets, December 15, 1918, p. 19. It is not a vested right, but a mere matter of grace and may be withdrawn at pleasure: 20 How. 527; 15 E. Ed. 991; 101' U. S. 345; 25 E. Ed. 960; 8 Cyc., p. 910; 206 U. S. 370; 51 E. Ed. 1098; 101 U. S. 382; 25 L. Ed. 973; 52 Ala. 231; 23 A. Rep. 567.* The beneficiaries of the officer for whose death this action is brought never had any vested right which could not be taken away, and never had any contract subject to exemption from impairment: 8 Cyc. 1018, and cases cited.</p> <p>concede: That exceptions one, two and three must be sustained (pp S'. B. Reporter 846), but contend that plaintiff was not remitted under Circular No. 4, exclusively to the Bureau of War Risk Insurance for compensation, and she can claim compensation from railroad defendant. Por this Court to sustain the position contended for by appellant would be to hold that the Director General could deprive Mrs. Walker of property without due process of law and to deny her the equal protection of the law in violation of the Fourteenth Amendment to the Constitution of the United States. The Director General could not discriminate against men in uniform: Cooley’s Principles of Constitution Raw 240; 6 R. C. R., sec. 390/p. 395; 75 S. C., p. 62. The Director General cannot make an order which Congress itself could not make as a law, and as Congress cannot deny a citizen the right of access to the Courts for the purpose of bringing and maintaining actions (6 R. C. L-, sec. 2p2, pp. 285-286, and cases cited), then certainly the Director General would not have this right. “Among the privileges and immunities are included the right of access to Courts for the purpose of bringing ■and maintaining actions, and this includes the right to employ the usual remedies for the enforcement of personal rights and actions of every hind — a right winch cannot be abrogated or even suspended:1’ 6 R. C. L., sec. 272, title Congressional Law, pp. 285-286, and cases cited.</p>

Action by Daniel L. McKenzie, as. administrator of the estate of Mrs. Belle Phillips, deceased, against the Southern Railway Company and others. Erom a judgment for plaintiff against the named defendant, it appeals. cite: As to the liability of joint tort-feasors: 1 Jaggard on Torts, pp. 213-212-213-215; 1 Cooley on Torts, pp.'223-4; 93 U. S. 302; 23 L. Ed. 863; 2 Cliff 196; 3 Wall. 1970 (U. S. XVIII 134; 2 Sum. 348; 38 N. Y. 261; 95 U. S. 347; 24 L. Ed. 596.

Action by Samuel A. Fair, as administrator, etc., against the Dorchester Dumber Company.

Action by R. H. Stevens against the Hartford Fire Insurance Company. From judgment for plaintiff, defendant appeals. submit: There was not sufficient evidence presented to the jury from which they were justified in finding that any contract whatever existed between the parties: Cooley’s Briefs on Insurance, vol.

Action by J. T. Blassingame against Greenville County. Judgment for defendant, and plaintiff appeals. submit: The presiding Judge abused his discretion in permitting defendant over the objection of plaintiff to amend his answer: 105 S. C. 323. It was error to refuse to allow plaintiff to show that the work in question was done with the knowledge and consent of defendant: 14 S. C. 406-407.

Action by the Military Art Novelty Company against L. Fayonsky.

<p>Action by Selina W. Wilson and others against E. R. Burress. Judgment for defendant, and plaintiff appeals.</p> <p>cites : An ancient record is just as much entitled to admission as primary evidence as is the ancient original: 17 Cyc. 446. Original ancient documents prove themselves: 14 S. C. 542; 2 N. & McC. 400; 6 Rich. Eq. 155.</p> <p>(no citations).</p>

Action by 'Sarah F. T. Blackmon and others against J. J. Blackmon, as executor of the will of M. A. Blackmon, deceased. Judgment for defendant, and plaintiffs appeal. The will of Minton A. Blackmon is as follows: State of South Carolina, County of Lancaster. I, Min-ton Amos Blackmon, being of sound mind and disposing memory, do make, ordain, publish and declare this to be my last will and testament; hereby revoking all others. Item 1.

Action in claim and delivery by H. S. Williams against R. C. Workman. From judgment for plaintiff, defendant appeals. cite: As to the question of jurisdiction: 79 S. C. 355; 61 S. E. 202; Acts 1917, p. 256, subd. 3; 72 S. C. 32; 51 S. C. 523; 34 Cyc., p. 1437; Code of Civil Procedure, sec. 321; 19 S. C. 485; 30 S. C. 328; 9 S. E. 510; 31 Cyc. 104; 12 Ene. P. & P. 177; 5 Rich.

Action by E. V. Holman against the City of Orangeburg. Judgment for defendant, and plaintiff appeals. submit: Under the evidence, we have proven that the street was obstructed and that it was in an unsafe condition; and zvhenever such evidence appears in a case of this kind, it is a question to be submitted to the jury: 88 S. E. 463 (S. C.) ; 78 S. E. 23 (S. C.); 89 S. C. 511; 72 S. E. 228; 36 E. R. A. (N. S.) .363; 71 S. C. 170; SO S. E. 776; 66 S. C. 42; 45 S. E. 8; 92 S.…

Action by J. J. Dallas against the Guardian Fire Insurance Company. From judgment for plaintiff, defendant appeals. submit: There zúas no valid contract of insurance. The policy if issued was cancelled: Joyce on Insurance (2d Ed.), sec. 641; 204 S. W. 367; 101 S. W. 903; 77 S. C. 226; 14 Am. St. Rep. 470; 63 N. E. 610; 36 Mich. 502; 51 E. R. A. (N. S.) 540; 38 R. R. A. (N. S.) 628; 49 L. R. A. (N. S.) 974; 14 R. C. D„ pp. 876 and 1011; 108 S. C. 137.

Action by Curtis C. Fanning against Jacob Stroman and another. Judgment for plaintiff, and defendants appeal. submit: Two of the necessary elements of a public road are lacking, it should have been used for public purposes, and it should have been used by the public generally: 39 S. C. 24; 2d Hill 387; 1st McC. 243. Both termini must be in a public highway or public place in order for the road to be a public road: 107 S. C. 132; 1 Strob. 110.

Action by Mrs. Lottie C. Sanders against the Barnwell' Lumber Company.

Action by J. W. Wilson against the Palmetto National Bank of Columbia. Prom judgment for plaintiff, defendant appeals. submit: That it was error to admit in evidence, over defendant’s objection, a certain letter written by plaintiff’s attorney to defendant, the error being that it was U mere self-serving declaration on the part of plaintiff: 97 S. E. 843.

Marion Brown was convicted of manslaughter, and appeals. submits: It zvas error to charge the jury the fourth prerequisite in that there must be no other means of escape. If there is any other means of escape the party must use that before shooting.

Two actions by the R. H. Nesbitt Auto Company against D. J. Whitlock and others, and D. A. Norris and others. Judgment for plaintiff in each action, and defendants appeal. submit: That a mechanic’s lien for repairs is superior to the purchase money mortgage, although the latter has been duly recorded: Sec. 2614, vol. I, Code of Laws 1912, as amended by act of 1912, p. 624; section 4115, vol. I, Code of Laws 1912, citing sections 4113 and 4114.

<p>1. Appeal and Error — Court Waives Keciuirement oe Written REauESTs by Considering Oral ÜEauESTS.- — -The trial Court, by considering oral requests to charge and giving or refusing them on their merits, waives the rule requiring requests to be in writing, and the giving or refusal of such request can be reviewed.</p> <p>2. Appeal and Error — REauESTS to Charge That Evidence Is Insufficient Is Request for a Directed Verdict. — A request to charge that the evidence is insufficient to warrant punitive damages is equivalent to a motion to direct a verdict for defendant on that issue, so that the sufficiency of 'the evidence to warrant punitive damages can be reviewed on appeal.</p> <p>3. Master and Servant — Punitive Damages Recoverable for Wilful or Reckless Acts of Servants. — A corporation may be held liable for punitive damages for wilful or reckless acts of Its employees in hauling away a car of plaintiff’s goods, though their action was contrary to the instructions of the manager.</p> <p>4i. Master and Servant — Manager Not Liable in Punitive Damages for Acts- Contrary to His Instructions. — The manager of a corporation is not liable in punitive damages for acts of employees of the corporation which were contrary to his instructions, though such acts might render the corporation liable, since a representative of the master is liable for the conduct of other servants only when he participates therein, actually or by directing their conduct.</p> <p>5. Appeal and Error — New Trial Must Be Ordered Where Verdict and Punitive Damages Is Erroneous as to One Defendant. — Where a verdict, awarding both actual and punitive damages against a corporation and its manager, was erroneous as to the manager, a new trial must be granted, since the jury might not have found so large a verdict for punitive damages against the master alone.</p>

A. S. Blackstone was convicted of violating the prohibition law, and appeals. submits: It was error to refuse the motion to quash the indictment on the ground of misnomer: Constitution 1895, árt. I, sec. 17. The defect in the indictment was fatal and beyond the reach of amendment: Constitution of 1895, art. I, sec. 17; 20 S. E. 800; 85 S. C. 284.

Suit by James T. Lemmon, as administrator of the estate of Sarah McElroy, deceased, against Janie Ferguson McElroy and others, for the construction of a will. From a decree construing the will unfavorably to her, defendant, Janie Ferguson McElroy, appeals.

Action by W. E. Beattie and another against the City Council of City of Greenville and the Board of Fire Commissioners of the City. Held: “An adjudication in one appeal of one constitutional objection to a statute does not preclude the same party from making another constitutional objection to the same statute on a subsequent appeal.” “A judgment on a different cause of action is not res judicata in a subsequent action where the issues involved in the second action…

Actions by R. B. Still and by Mrs. Ethel Still against the Atlantic Coast Tine Railroad Company. Judgments for plaintiffs, and defendant appeals. submit: The accident occurred November 8, 1917.

<p>Action for specific performance by Thomas J. Price, as executor of the estate of Julia Jughot against the Ouiga Realty Company. Judgment for plaintiff, and defendant appeals.</p> <p>submit: Thai while the tetstatrix in the opening clause of her will did declare her full intention of exercising the power of appointment given io her under the will of her uncle, yet, such power was not executed by the use of the following langicage: “All the rest and residue of my estate of which I may die seized and possessed of or which I may hereafter acquire, both real and personal, of every kind and description, whatsoever, whether in possession, remainder or expectancy, I give to my executor, in trust to build a memorial wing at the St. Prances Xavier Infirmary, to endow two rooms, said wing to be known as the Julia Jugnot Memorial, the wing to be built first and the balance remaining to be used for ■■endowing the tzvo rooms. Lastly, I nominate, constitute and appoint my friend, Thos. J. Price, executor of this my last will and testament, giving and granting him full power to sell any or all of my estate, both real and personal, and to execute any instrument in writing that may be necessary to carry out this my last will and testament and to confirm the sale of property left me under the zi'ill of my uncle, Etienne Poincignon: 14 S. C. 528.</p> <p>submit: A general power of appointment is deemed in equity a part of one’s estate: 112 U. S., at page 352. Even if this were not so, the property passes under the terms of testatrix’s will: 14 S. C. 528; Perry on Trusts, 3d Edition, vol. II, section 511; 98 Mass., p. 270. The whole question is one of intention: 16 S. C. 564; 36 S. C. 438.</p>