Volume 114 — South Carolina Reports

Before Townsend, J., Sumter, Spring term, 1919. Action by W. D. Coggeshall against J. A. McKenney, trading as Twin City Lumber Company. Judgment for defendant, and plaintiff appeals. Plaintiff’s exceptions referred to in opinion are as follows : ■Because it is respectfully submitted that his Honor, the presiding Judge, erred in holding that there was no evidence to gO‘ to the jury, and in directing a verdict in favor of the defendant for the lumber in dispute.

Before Gary, J., Bee, Fall term, 1918. Action by B. D. Welch against the Atlantic Coast Bine Railroad Company.

Before SeasE, J., Richland, Spring term, 1919. Action by B. M. Jones against the Carolina National Bank. From a judgment for plaintiff, both parties appeal. cites: As to pleadings — issues: 96 S. C. 242; 58 S. C. 59; 105' S. C. 276. Nature of drafts and bill of lading: XXVIII Statutes, p. 668 (Negotiable Instrument Act) ; 4th Eng. Enc. 548-9; 93 S. C. 41; 25 S. C. 222-3; 115 Mass. 224; 72 S. C. 453; 91 S. C. 378-9.

<p>Before Townsend, J., Richland, Summer term, 1919.</p> <p>Action by R. C. Howell against the Southern Railway Company and another. From a judgment for plaintiff, the first named defendant Appeals.</p> <p>submits: Testimony as to acts of negligence not alleged in the complaint was improper: 33 S. C. 198; 45 S. C. 278; 57 S. C. 435; 82 S. C. 347; 59 R. R. A. 209. It was improper for counsel to go out of the record in his argument and by so doing he prejudiced appellant’s case, and a new trial should have been granted: 77 S. C. 404; 26 S, C. 118; 2d Ene. P. & P. 752; 80 S. C. 352; 138 U. S. 361; 88 S. C. 229; 92 S. C. 236. As to whether or not the Judge correctly charged the law on the assumption of risk, and whether or not the verdict should have been directed or nonsuit granted on the grounds that all the evidence showed that plaintiff had assumed the risk of the dangers of which he complained: 223 U. S. 492; 100 S. C. 153; 232 U. S. 94, 102; 58 R. Ed. 521, 524; 34 Sup. Ct. Rep. 229; 95 C. C. A. 55; 169 Fed. 557; 25 L. R. A. (N. S.) 335; 96 S. C. 228; 100 S. E. 146. The Judge misdirected the jury when he told them they could find against one or both defendants; whereas, the jury could not have found against Southern Railway without finding against J. M. Williams, its agent: 106 S. C. 20; 104 S. C. 266. The presiding Judge erred in submitting to the jury the special issue as to whether or not the work was interstate or intrastate — there being no conflict of testimony, he should have charged the jury whether it zi¡as interstate or intrastate and which law zvould apply: 238 U. S. 260; 239 U. S. 50. It zvas error to refuse to charge that the violation of a rule made for the safety of an employee would debar him from recovery, if the observance of that rule would have saved him from injury: 96 S. C. 228.</p> <p>cite: As to negligence of defendant, master: 97 S. E. 845; — S. C. ■ — ; 43 S. C. 379. As against a nonsuit or direction of verdict: 108 S. C. 400-1; 1.05 S. C. 410; 101 S. C. 256; 98 S. C. 52; 95 S. C. 306; 96 S. E. 353; 110 S. C. 374; 109 S. C. 476; 170 U. S. 670-4; 42 R. Ed. 1190-2; (Ga.) 96 S. E. 17; 107 S. C. 392; 95 S. C. 24; 96 S. E. 553; 107 S. C. 523; 95 S. C. -244, and cases. As to negligence of plaintiff: Sec. 3, Fed. Emp. Liability Act, of April 14, 1916; sec. 2, XXIX Stat, p. 970; 107 S. C. 523; 96 S. E. 553; 110 S. C. 374; 95 S. C. 306; 61 S. C. 474-79; S. C. Const./art. IX, sec. 15; 61 S. C. 471-80; 97 S- E. 701-2; 170 U. S. 673, 674; 42 L. Ed. 1192; 228 U. S. 322; 57 E. Ed. 855; 191 U. S. 68-9; 48 L. Ed. 100-1; 232 U. S. 102; 58 b- Ed. 524; Fed. Emp. Liability, Richey (2d Ed.), sec. 72, p. 179; 170 U. S. 672; 42 L. Ed. 1191; 248 Fed. 388; 160 C. C. A. 401; 218 Fed. 367; 134 C. C. A. 175; 210 Fed. 122; 126 C. C. A. 632; L. R. A. 1915c, 9. As to extraordinary risks: 345 U. S. 445, and cases cited; 241 U. S. 215; 60 L. Ed. 1020; 232 U. S. 102; 58 L. Ed. 524; 89 S. C. 506; 90 S. C. 49; 235 U. S. 402; 90 L. Ed. 287; 107 S. C. 523; 95 S. C. 306; 235 U. S. 380; 59 L. Ed. 279; Fed. Emp. Liability, Richey (2d Ed.), supra; 218 Fed. 367; 134 C. C. A. 176; 221 Fed. 901; 137 C. C. A. 474; 214 Fed. 952; 131 C. C. A. 252; 109 S. C. 476. As to the submission by the Court of an issue to the jury as to whether or not the plaintiff was engaged in interstate or intrastate commerce at the time of the accident: Code, vol. II, part I, sec. 321; 88 S. C. 196-7; 104 S. C. 83; 99 S. C. 197; 110 S. C. 390; 101 S. C. 108; 239 U. S. 354; 60 L. Ed. 326; 96 S. E. 682; 110 S. C. 522; 109 S. C. 357; 96 S. E. 152; 109 S. C. 400; 229 U. S. 161; 57 L. Ed. 1134; 202 U. S. 543, 559; 50 L. Ed. 1142, 1147; 26 Sup. Ct. Rep. 722; 196 U. S. 1, 21; 49 L. Ed. 263, 371; 25 Sup. Ct. Rep. 158. As to amount of damages: 98 Si E. 333; — S. C. —; 233 U. S. 37; 58 L. Ed. 863; 109 S. C. 493; 72 U. S. 90; 18 L. Ed. 595. Ast to verdict against master and not against servant: 98 S. E. 332; — S. C. —. As to counsel's right to argue as to witness being present and not going on stand: 104 S. C. 32; 18 S. C. L- (14 Rich.) 245. Charge must be taken as a whole: 88 S. C. 565; 95 S. C. 306; 98 S. C. 52-3; 232 U. S. 86; 58 L. Ed. 863.</p> <p>Plaintiff’s reply to appellant’s argument:</p> <p>As to appellant’s claim that testimony was received as to acts of negligence not alleged in the complaint: The acts of negligence testified to were alleged, and the cases cited relate to an entire absence of evidence as to all or any material fact or facts in the case necessary to be proved in order for the plaintiff to recover: 33 S. C. 201; 45 S. C. 280; 57 S. C. 435; 82 S. C. 347; 59 R. R. A. 209, and the note thereunder all relate merely to the general doctrine as to general and specific allegations of negligence and the sufficiency thereof. As to appellant’s claim that the Court should have directed a verdict on the grotmd that the plaintiff could have found a safe place to ride, an analysis of the cases cited by counsel will show that they have no application to the facts of the case at bar: 25 R. R. A. (N. S.) 335; 96 S. C. 228; 100 S. E. 146. As to the finding against the master and not against the servant: A reference to the cases cited by the counsel will show that they have no application to the case at bar: 106 S. C. 22; 104 S. C. 267. As to appellant’s complaint of error in submitting to the jury the issue as to whether the plaintiff was engaged in interstate commerce: 238 U. S. 260; 59 R. Ed. 1300; 239 U. S. 51-2; 60 R. Ed. 140. Plaintiff was not violating any rule made for his safety and does not come within bow-shot of the principle announced in Stone v. A. C. R., pó S. C. 228.</p>

Before Wi-iaeEy, County Judge, Richland, March term, 1918. Action by Herman D. Sunshine, Benjamin Sunshine and Joaquin Cartada, copartners in trade, doing business under the name of Sunshine Bros. & Co., against William F. Fur-tick.

Before Gary, J., Anderson, Summer term, 1919. Action by Laura Lark against the Cooper Furniture Company, begun in magistrate’s Court and appealed to the Circuit Court. From a judgment of the Circiut Court for defendant, plaintiff appeals. submits: The finding of the Circuit Judge that entry was made over 4he repeated protest of plaintiff-appellant is conclusive of the law of the case, and that it was error for him to dismiss the case after finding that she had been wronged.

Before Mauldin, J., Lexington, Spring term, 1919. Action by Bunyan Sharpe against L. Virginia Huggins. From an order which opened the judgment on the ground of excusable neglect, plaintiff appeals.

Before Gary, J., Dillon, Spring term, 1918. Action by W. F. Stackhouse and the Farmers & Merchants Bank against Mike Carmichael. From a judgment for defendant, plaintiffs appeal. Mr. Lide submits: The property in question was not a fix-hire: 15 S. C. 67; 19 Conn. 154; 2 Kent 343; 2 Bouv. Inst. 163; 1 Bail. 540; 2 Am. Lead. Cas. 747; 31 S. C. 267; 14 S. C. 366; 22 S. C. 585; Jones on Chattel Mortgages, p. 133; 51 S. C. 1; 95 S. C. 221.

<p>Before Maurdin, J., Florence,-term,-.</p> <p>Action by Eola A. Prosser against James B. Prosser. From judgment dismissing the complaint on demurrer, plaintiff appeals.</p> <p>Messrs. Willcox & Willcox cite: As to the status of married women at common law: 13 R. C. L. 983. As tí, the general growth of remedial legislation: 13 R. C. L. 984; 15 S. C. 588. As to the changes in the law of South Carolina: Const, of 1868, art. XIV, sec. 8; Act of 1870, 14 Stat. at Large, p. 325; 7 S. C. 101; 12 S. C. 592; 14 S. C. 556; 15 S. C. 581; 16 S. C. 981; Act of 1882, limiting the capacity of a wife to contract by adding the words “as to her separate estate.-” 26 S. C. 516; 27 S. C. 532; 24 S. C. 273; 27 S. C. 428; 35 S. C. 298; Stats, at Large, vol. XIX, p. 811; Stats, at Large, vol. XX, p. 112; Const, of 1895, art. XVII, sec. 9; 13 R. C. L. —; 82 S. C. 359. Modern judicial opinion in other jurisdictions upon this subject: 13 R. C. L-1396, 97; 88 Conn. 42; 52 L. R. A. 185; 42 Okla. 124; 52 L. R. A. 189. This Court has held that a “wife may maintain an action for the malicious alienation of her Jmsband’s affection and that she need not join her husband as a party with her:” 82 S. C. 359; A". & E. Enc. Law, 1st Ed., vol. Til, p. 235; 4 Dean (N. Y.).80; 12 N. Y.622; 6 L. R. A. 553; 6 A. & E. Enc. Law, 2d Ed., p. 4 (cases cited in note).</p>

Before Townsend, J., Richland, Summer term, 1919. Action by E. C. McGregor, doing business as McGregor’s Drug Store, against the State Company and the Irogen Chemical Company. From an order sustaining a demurrer to the complaint, plaintiff appeals.

Before Moore, J., Richland, Fall term, 1919. Petition by b. E. White, as Supervisor of Sumter County, and others, for writ of mandamus against A. K. Sanders, individually and as Superintendent of the South Carolina Penitentiary. After hearing on rule to show cause, the petition was dismissed, and petitioners appeal. submits: The pozver being conceded, the wisdom or policy of legislation is for the legislature alone: 111 S. C. 205.

Before DjíVorE, J., Clarendon, Spring term, 1916. Suit by Sarah F. Sprott and others against Thomas Z. Sprott and others. Judgment for defendants, and plaintiffs appeal. The following is a copy of the statutes referred to in the opinion: Act December 24, 1887 (19 St. at Large, p. 862) : An act in relation to forfeited lands, delinquent lands and collection of taxes. Section 1.

Before Mauldin, J., Spartanburg, Spring term, 1917. Suit by A. J. Thomas and another against the Spartan-burg Railway, Gas and Electric Company and another. Judgment for plaintiffs, and defendants appeal. cite: As to the proper construction of the franchise of May 2, i8pp: 12th R. C. E. 194, 195; 104 S. C. 345; 97 S. C. 218; 56 S. C. 180. As to the right of the city to maintain this action: 2d Dill, on Mun.

<p>1. Master and Servant — Negligence in Kicking Car Into Sidetrack Held for Jury. — In an action under the Federal Employers’ Liability Act (U. S. Comp. St., secs. 8657-8665) for death of railroad employee working under a car on sidetrack, whether railroad employees were negligent in kicking a car into such track in violation of the company’s rule, though there was no flag indicating deceased’s presence as required by another rule, held a question for the jury.</p> <p>2. Master and Servant — Assumption of Risk of Working Under Car Without Flag Held for Jury. — In an action under Federal Employers’ Liability Act (U. S. Comp. St., secs. 8657-8665) for death of a railroad employee working under car on a sidetrack into which a car was kicked, whether deceased assumed the risk of working under car without a flag indicating his presence as required by company’s rules, where the duty of placing the flag was upon the employee under whom deceased worked, held a question for the jury.</p> <p>3. Master and Servant — Contributory Negligence in Working Under Car Without Flag Held for Jury. — In an action under the Federal Employers’ Liability Act (U. S. Comp. St., secs. 8657-8665) for death of a railroad employee working under a car on a sidetrack into which a car was kicked, whether deceased was contributorily negligent in working under car without a flag indicating his presence, as required by company’s rules, held a question for jury.</p> <p>4. Appeal and Error — Failure to Instruct Against Award for Adult Children op Deceased Not Dependent Held Harmless. — In admisistrator’s action under the Federal Employers’ Liability Act (U. S. Comp. St., secs. 8657-8665) for death of employee, where the Court instructed that the administrator could recover only the pecuniary loss to the widow and children caused by the death, the failure to specifically charge the jury not to include anything for the adult children not dependent on deceased held harmless.</p> <p>5. Trial — Failure to Request Held Waiver op Right to Instruction. — In- an action for death, where the Court told defendant’s counsel that he would instruct the jury not to include in their verdict anything for the adult children not dependent on deceased, defendant’s counsel’s failure to call Court’s attention to inadvertent omission to give such instruction, or to make request therefor, was a waiver of the right to have such instruction given.</p>

Before Rice, J-, Colleton, Spring term, 1919. Action by Edward Grant against the Director General of Railroads, substituted for the Atlantic Coast Dine Railroad Company, and another. From a judgment for plaintiff, the defendánt, Henry Eliott, appeals.

Before Townsend, J., Sumter, Spring term, 1919. Action by W. T. Lesesne against the Atlantic Coast Line Railroad Company and another. Judgment for plaintiff, and the named defendant appeals. Mr. McLemore submits: That the Atlantic Coast Line Railroad Company did not handle the cotton in question as a common carrier: 6 Cyc. 365; 6 Cyc. 375; 9 S. C. 61; Hutchison on Carriers, 2d Edition, sec. 157; 81 Ga. 522; 7 S. E. 916.

Before Mfmmingfr, J., Richland, Spring term, 1918. Action by Samuel B. McMaster against the Ford Motor Company and others.

<p>1. Sheriffs and Constables — Writ of Assistance—Execution.—A writ of assistance will not justify an officer in putting out of possession- a person who was neither a party to the suit nor named in the writ.</p> <p>2. Sheriffs and Constables—Abuse—Liability of Officer.—An officer who abuses the process under which he assumes to act by committing an act not warranted thereby ceases to act under and by virtue of the process, and becomes a trespasses ab initio and liable as such.</p> <p>3. Sheriffs and Constables—Abuse—Liability of Officers.—It was the duty of the sheriff in executing a writ of assistance in an action to foreclose a mortgage given by a tenant in common to place the purchaser in possession of every part of the land jointly with the other tenants, but he could not remove the other tenants holding under a title independent of the mortgagor, and, where he did so, he was liable as a trespasser.</p> <p>4. Process—Actions for Abuse of Process—-Instructions.—In an action for ejecting tenants in common from land under a writ of assistance in an action to'foreclose a mortgage given by another of the tenants, instructions that if a trespass was committed in the name of another or professedly in his interest, and he subsequently ratified it by claiming a benefit thereunder, he would be bound by the act to the same extent as if he had expressly authorized it, and that if an officer, in executing a writ of assistance, wrongfully seized the property of a stranger to the writ, and the person at whose instance it was issued after knowledge of the facts did not disavow the act, but permitted the property seized to remain under seizure for his benefit, he was liable as a cotrespasser with the officer, were not erroneous as misleading the jury to believe that the purchaser was liable as a trespasser, even if the sheriff followed the direction of the writ, and merely placed him in possession jointly with the other tenants.</p> <p>.5. Process — Abuse op Process — Persons Liable. — The purchaser at a foreclosure sale was liable jointly with the sheriff for the wrongful ejection of the mortgagor’s cotenants under a writ of assistance where he was present, claimed and received the exclusive possession of the whole property as if he were the sole owner thereof, his acts showing that he was acting in concert with the sheriff, and confirming, ratifying and approving them.</p>

Before MoorL, J., Spartanburg, Spring term, 1920. Action by John F. Floyd and others against Arch B, Calvert and others to enjoin the holding of an election. Judgment for defendants, and plaintiffs appeal. cite: Act of 1920 (31 Stat. 1649) is unconstitutional: Art. VIII, sec. 1; art. Ill, sec. 34, Const. 1895. Classes of municipal corporations and the laws governing the same: Chap. XL VIII, 1 Civil Code. Commission form for cities: Art. VIII, chap. XLVIII.

Before Townsend, J., Clarendon, Summer term, 1919. Action by J. M. Barrow against S. M. Gowdy for specific performance. From an order denying a motion for change of venue, defendant appeals. cite: Place of trial of civil actions: Secs. 172-174 Code. Residence of defendant proper place of trial unless case is one where jury trial can be demanded as of right, in which case trial must be had in county zvhere land is situated: 40 Cyc. 57, 58, 59, 63.; 61 S. C. 512.

Before Wilson J., Barnwell, Fall term, 1919. Action by Georgiana Best, admx. of the estate of AValter Best, deceased, against the County of Barnwell for damages for the lynching of Walter Best. Judgment for plaintiff, and defendant appeals. cite: Allendale county a proper party defendant: Act 1919 (31 Stat. 5). Board of county commissioners had jurisdiction: Sec. 999, I Civ. Code 1912. Claim for lynching under sec. 6, art. VT, Const., 1895, and sec■ 3947> I Civ.

<p>1. Limitation of Actions — In a Suit Brought After Period of Limitation, It Must Be Alleged and Proved the Fraud Was Not Discovered Until a Time Within the Period. — Under Code Civ. Prra\ 1912, sec. 137, subd. 6, fixing a six-year limitation for actions for fraud, but declaring that in equitable cases the cause of action is not deemed to have accrued until discovery of the fraud, it is essential, in action for equitable relief on the ground of fraud, brought more than six years after the occurrence, to állege that fraud was not discovered until within the six-year period, and the burden is on defendant to show that plaintiff had knowledge of the fraud, or of such facts as would have led to knowledge if pursued with reasonable diligence</p> <p>2. Fraud— Insurer Complaining of Exchange of Policies Held Improperly Nonsuited for Delay in Action. — In an action for damages for fraud in inducing plaintiff to exchange life policies where there is evidence that the exchange was secured by misrepresentations, a nonsuit should not be entered because of plaintiff’s failure for nine years to discover that the substituted policy did not contain the represented stipulations, but the question whether plaintiff was grossly negligent should be left to the jury; for, while gross negligence will estop party from avoiding the contract, yet action induced by misrepresentations is not binding.</p>

Before Bowman, J., Orangeburg, June term, 1919. Action by Palmetto Guano Corporation against J. I). McCormick on a note given for the purchase price of commercial fertilizer. From refusal to sustain demurrer as to certain defenses, plaintiff appeals. From a directed verdict for plaintiff, defendant appeals. cite: Sections 23x5-2330 I Civil Code do not make analysis by Clemson College chemist exclusive proof. Contents must be shown by analysis: 104 S. C. 125; 185 Ark. 433.

Before Wilson, J., at chambers, January, 1920. Action by Seaborn Rose against Southern Railway Company and Walker D. Hines, Director General-of Railroads. Motion by Southern Railway Company to set aside the summons as to it, and upon refusal of motion, the railway company appealed. cite: Operation of railroads by the government in their own names did not confer on operating officials a dual capacity: 112 S. C. 407; 99 S. E. 846; 101 S. E. 926.

<p>Before Townsend, J., Lee county, Spring term^ 1919.</p> <p>The State against B. C. Watkins. Indictment for buying and receiving stolen goods. Upon conviction, Watkins appeals.</p> <p>cite: Motion to dismiss did not come too late in magistrate1 s Court: 81 S. C. 154. Offense should be described so that defendant may know how to answer it, the Court know how to pronounce judgment; and conviction or acquittal .may be pleaded in bar: 20 S. C.'392. Warrant must slate time, place and describe goods by alleging ownership: 14 Rich. 203. In warrant for breach of trust or embezzlement ownership must be alleged with particularity as in larceny: 20 S. C. 392; 17 Enc. PI. & Pr. 889; and description givens 4 Strob. 300; 2 Strob. 229; 2 Bishop Criminal Evid., pars. 982-983. Rule as to sufficiency of description same in receiving stolen goods as in larceny: 17 R. C. L. 89; 2 Strob. 220; 3 Hill 194, cited in 100 Ill. 382; 4 Strob. 300. Acquittal on insufficient indictment or warrant no bar to second prosecution on same offense: 1 Rice 1; 20 S- C.- 35; 33 S. C. 151. Proof of ownership where not alleged does not cure defect: 2 Will 135; 22 Cyc. 296.</p> <p>cite: Under section 28, Criminal Code, offense should be set forth so that accused could understand the nature of it and prepare to meet it; and no more is required: 29 S. C. 180; 7 S. E. 76; 81 $. C. 134; 61 S. E. 1106; 32 S. C. 555; 11 S. E. 383. Prosecution under section 20.j, Crimi Code, and warrant sufficient: 4 S. E. 792; 29 Eed. Rep. 268; 12 N. E. 610; 39 S. C. 343. Sufficient although name of owner not alleged: 162 Pac. 356 (Wash.). The buying and receiving of goods known to be stolen completes the crime: 83 S. C. 253; 65 S. E. 243;'39 S. C. 743; 17 S. E. 799; 1 Mill. 274; 73 S. C. 34; 64 S- E. 607; 80 S. C. 369; 61 S. C. 1073.</p>

<p>Before Rice, J., Aiken, Summer term, 1919.</p> <p>Separate actions by Mrs. Lillian Moss and W. C. Lassiter against Aiken County. From an order overruling a demurrer to complaint striking out the defense of res adjudicata in the answer, the defendant appeals.</p> <p>cites: The liability is fixed by statute: 1 Code 1912, sec. 1972,, for counties; sec. 3053 for cities. Instances of defects in highway: 89 S. C.. 519; 71 S. C. 170; 95 S. C. 187. Rich bility of city broader than county: 104 S. C. 372; 106 S. C. 255; 111 S. C. 421; 107 S. C. 508. County not liable for torts of its officers or agents unless made so by statute: 2 Hill 572; 14 S. C. 290; 70 S. C. 137; 38 S. C. 282; 100 S. C. 304; 27 S. C. 419; 111 S. C. 13; 87 S. C. 522. Res adjudicata. When general demurrer is sustained judgment thereon is final: 6 Fnc. P. & P. 352; 4 Rich. 22; 5 Rich. 356; 18 S. C. 316; 93 S. C. 365; 71 S. C. 95; 83 Ga. 441; 90 S. C. 231. If new trial granted testimony will be introduced to show statute was considered in Georgia hearing: 34 S. C. 285-289; 34 S. C. 191..</p> <p>cite: On liability of county: 71 S. C. 137; 89 S. C. 520; 106 S. C. 259; 104 S. C.,372; 104 S. C. 508; 43 S. C. 401; 96 S. C. 675. Question for jury: 108 S. C. 291: Res adjudicata: 71 S. C. 102; Wells on Res Adjudicata: Secs. 446, 216, 226, 227; 90 S. C. 229.</p>

Before MclvER, J., Sumter, Ball term, 1919. Joseph Wells, convicted of murder, with recommendation to mercy, appeals. cite: State had no right to exercise a peremptory challege after juror had been accepted by defendant: 36 S. C. 504; 43 S. C. 127. cite: Circuit Judge held that juror had not been presented to the prisoner at time of the State’s objection, whereas, in Haines’ case, relied on by appellant (gó S. C. 504), it was otherwise.

Before MclvER, J., Marlboro, Summer term, 1919. Action by J. C. Parker against Marlboro Cotton Mills for personal injury. From order of nonsuit, plaintiff appeals. The 3d and 4th paragraphs of the complaint were as follows: 3.

Before Townsend, J., Richland, Summer term, 1919. Action by F. W. Wagner, Julius D. Koster and F. W. Wagner, Jr., copartners, as F. W.- Wagner & Co., against D. N. Smith, surviving partner of Smith Bros., on checks given by Smith Bros., in 1909, 1910 and 1911, but noRpresented for payment until December 6, 1917. From a directed verdict for defendant, plaintiff appeals. cite: Statute of limitations: Sec. 119; Sec. 135, Code, vol. II.

Before Townsend, J., Richland, Summer term, 1919. Action by Amanda Davis, and her husband, H. J. Davis, against Jones Transfer Company and Southern Railway Company for damage to trunk and property loss therefrom. From judgment of magistrate in favor of the transfer company and against the railway company, the railway appealed to the Circuit Court and the judgment of the magistrate was reversed. From this judgment the plaintiff appeals.

<p>1. Courts — Venue—Jurisdiction of Person, But Not of Subject Matter, Can Be Waived. — Jurisdiction of subject matter cannot be waived even by consent, but jurisdiction of the person may be waived, and an objection that an action was brought in the wrong county pertains to the remedy, a failure to comply with which was a mere irregularity.</p> <p>2. Appear and Error — Refusal to Correct Irregularity Not Reversible Error, Unless Prejudicial. — A refusal to correct a mere irregularity is not reversible error, unless the party interposing the objection can satisfy the Court that it was prejudicial to his rights, under Code Civ. Proc. 1912, sec. 407.</p> <p>3. Appeal and Error — Overruling Objection That Action Was Brought in Wrong County Harmless Error. — Under Code Civ. Proc. 1912, sec. 407, defendant cannot complain that action was tried in wrong county; the place of trial being more convenient to defendant than the county where plaintiff resided, and plaintiff having waived the right to have the trial in the county of his residence.</p> <p>4. Constitutional Law — Court Will Not Pass on Constitutional Question Unless Necessary. — A Court will not, as a general rule, pass upon a constitutional question and decide a statute to be invalid, unless a decision upon that very point becomes necessary to the determination of the cause.</p>

Before Gary, J., Cherokee, Fall term, 1919. Action by A. L. Hallman against Emma G. Lipscomb for commissions as agent on a sale of real estate.

Before DeVore, J., Anderson, September term, 1919. Action by John T. Cooley against Anderson County for damages caused by a defect in a highway. From verdict for plaintiff, defendant appeals. Mr. Acker cites: County not liable unless defect was occasioned by its neglect or mismanagement: 1 Civ. Code 1912, sec. 1972. Nonsuit should be granted when evidence is not sufficient to warrant a reasonable jury in basing a verdict upon it: 99 S. C. 421.

<p>1. WILLS — WILL DEVISING LAND TO DAUGHTER AND “BODILY HEIRS” Held to Create a Life Estate and Not Fee Conditional. — Will devising land to testator’s children, providing that the land should not be sold and that the property “after their death goes to their bodily heirs,” held not to give daughter a fee conditional, but merely a life estate with remainder to her children, words “bodily.heirs” having, in view of other provisions of will, been used as synonymous with the word “children.”</p> <p>2. Estates — Right to Sell on Birth of Issue Necessary to Fee Conditional. — One of the incidents of a fee conditional is the right of a tenant to sell the land upon the birth of issue.</p>

Before Whaeey, J., Richland, November, 1919. Action on a note by J. W. McKee, Jr., against J. R. McGhee and Rily P. Boyle, as Admix, of W. R. Boyle, Deceased.

Before Wilson, J., Clarendon, December 27, 1917. Action by the Summerton Live Stock Co. against the Cleveland Manufacturing Co. and W. M. Early. Erom judgment for plaintiff, both plaintiff and defendant appeal. For former appeal see 111 S. C. 154. cites: Early having no interest in property attached could not move to dissolve attachment: 98 S. C. 1. Nor is previous decision of this Court on this point res judicata: 102 S. C. 510.

<p>Parent and Child — Father Not Criminally Liable eor Support op Children Taken prom Home by Mother. — Where wife left family home and took the children with her and forbade their return to their father’s house, the father was not criminally liable for failure to provide for them.</p>

Before Moore, J., Chesterfield, April, 1919. Action to foreclose a mortgage by D. J. McEaurin against J. R. Eddins. From decree of foreclosure, plaintiff appeals. The decree of. the trial Court was as follows: This was an action to foreclose a real estate mortgage' given by defendant to plaintiff for $437.60, dated February 15, 1913, and due December 1, 1913, with interest after maturity at 6 per cent, per annum.

Before Memminger, J., Eaurens, November, 1919. Action by John A. Franks against W. G. Ross. From order taxing costs against the defendant on the former appeal of this case (112 S. C. 163), the defendant appeals. cites: Costs are recoverable as the action may terminate: 1 Civ. Code, sec. 4204; 61 S. C. 75.

Before Shipp, J., Union, May term, 1919. Action by R. H. Nesbitt Auto Co. against J. E. Kirby, doing business under the name of Union Plumbing & Elec. Co. Erom directed judgment for. plaintiff, defendant appeals. cites: Relief demanded in complaint cannot be exceeded zvhen no anszver is made: Code, sec. 336; 18 S. C. 600; 19 S. C. 445; 62 S. C. 506; 88 S. C. 144; 83 S. C. 491.

<p>Before Whaeey, J., County Court, Richland.</p> <p>Action by Anna C. Brown against Life Insurance Company of Virginia. From directed verdict for plaintiff, defendant appeals.</p> <p>cite: Where policy contains provisions that nonpayment of premium note will forfeit policy such provision will be sustained: 187 U. S. 335; 23 Sup. Ct. 126; 75 S. W. (Tenn.) 735. Nor will extension in time of payment of note be considered waiver of forfeiture provision: 77 S. W. (Ky.) 384; 11 N. E. 507 (N. Y.) ; 28 S. W. 1176 (Tex.) ; 77 N. W. 295 (Minn.); 192 Fed. 411; 71 N. E. 716 (Ohio). Insured having reserved right to change beneficiary the beneficiary could have no rights thereunder until insured had paid premiums: 77 S. W. 384 (Ky.). Retention of note by company after its maturity no waiver of forfeiture provision: 187 U..S. 335; 23 Sup. Ct. 126; 80 N. Y. 32; 49 S. W. 425 (Ky.).</p> <p>cite: Beneficiary named in insurance policy has a vested interest therein: 77 S. C. 299; 57 S. E. 853; 87 S. C. 395; 60 S. E. 886; 90 S. E. 30 (N. C.). Where provision for forfeiture on nonpayment of premium note is embodied in policy, the beneficiary cannot recover where premium note is not paid: 95 S. C. 1; 78 S. E. 440. But no such provision is'in either policy or note, and nonpayment of note will not ■work a forfeiture: 37 S. C.417; 16 S.E. 134; 3 Ga. App. 685; 60 S.E.471. Vestedright of beneficiary could not be affected by subsequent agreement between insurer and insured: 128 Ga. 402; 57 S. E. 782. Forfeiture provision in note where none appears in policy is nugatory: May Insurance, sec. 345e; Joyce on Ins., sec. 1212; 111 Ind. 462; 11 N. E. 620; 60 Am. Rep. 703; 37 Kas. 674; 16 Pac. 92. Right to change beneficiary will not defeat vested interest until exercised: 77 S. C. 299; 57 S. E. 853; 128 U. S. 206; 32 S. Ed. 370; 49 E. R. A. 737, and note. Where forfeiture is claimed note must he surrendered: May Ins., sec. 345e; 101 Mass. 558.</p>

Before Maukdin, J., Greenville, July, 19Í8. For the former appeals in this case see 103 S. C., 55, and 108, S. C. 163. Action by the Mack Manufacturing Company against the Massachusetts Bonding & Insurance Company, the Carolina National Bank, and others. Judgment for defendants, and plaintiffs and the last named defendant appeal. Reversed and remanded. The documents and agreements mentioned in the opinion were as follows: (1) Specifications. Responsibility. — 16.

Before Bowman, J., Hampton, -, 1919. Action by Mrs. Verdi H. Ginn and her husband, W. R. Ginn against United States Railroad Administration, and Walker D. Hines, Director General of Railroads. From judgment for plaintiffs, defendants appeal. cite: Carrier is required only tot maintain two good rooms of reasonable sise with comfortable seats for passengers: Code, vol. I, sec. 3266; Hutch. Carriers (3d Ed.), vol. II, sec. 992; 10 Corp. Jur. 645; 38 Am. St. Rep. 557; 97 Am.

Before Peurifoy, J., Greenville, August, 1919. James Abercrombie indicted for murder and upon conviction, appeals. cite: As a general rule, to justify a homicide as in self-defense, defendant must have embraced all reasonable or probable means of escape or retreat within his power and consistent with his safety to avoid danger and avert the necessity of killing: 21 Cyc. 820; 55 S. C. 36; 40 S. C. 331; 40 S. C. 349; 43 S. C; 205; 110 S. C. 286; 103 S. C. 316.

Before -DeVorE, J., ■ Oconee, November term, 1919. Action by W. D. Schmid against Geo. B. Whitten for specific performance. From judgment for plaintiff, defendant appeals. cites: To be valid tender must be unconditional and must be of a definite and certain chcu'acter: 1 N. & McC. 194; 15 Rich. 318; 116 Ga. 53; 115 Ga. 691; 103 Ga. 651; 7 Utah 519. And of sufficient amount: 28 Ency. 17. Tender must be kept good: 88 S. C. 533; 28 Enc. 41; 38 Cyc. 171.

Before DeVorE, J., Anderson, September term, 1919. Action by Alex. E. Smith against Anderson County for damages. From a directed verdict for plaintiff, the defendant appeals. Defendant’s exceptions were as follows : First.

Before' Peurifoy, J., Greenville, August term, 1919. Henry Leaks indicted for murder. From verdict of guilty, defendant appeals. cite: An intentional killing may be committed without technical malice, and it is then voluntary manslaughter and not murder: 72 S. C. 74; 21 Cyc. 736; 65 S. C. 213.

Before Whaley, J., County Court, Richland, February, 1920. Action by W. S. Prescott against Walker D. Hines, as Director General of Railroads, for personal injury from collision with a train, standing across a street, of an automobile, belonging to and driven by another, in which plaintiff was riding. Judgment for plaintiff, and defendant appeals. cite: No reasonable inference can be drawn from facts of this case; but that defendant was guilty of no actionable negligence: L,.

Before PeuriFoy, J., Greenville, November, 1919. C. Zaglin was indicted for transporting whiskey under the quart a month law. Upon conviction, defendant appeals. . cite: A private carrier has the same right to bring into the State for another not -more than one quart per month for medicinal use: 107 S. C. 449; 107 S. C. 487. Oral argument.

Before McIver, J., Marlboro, Summer term, 1919. Action by Samuel DuPre et al. against Tilghman Lumber Company for damages to real property. Prom order of nonsuit, plaintiffs appeal. cite: Action for forcible entry and detainer was brought under sections 4064-4072, 1 Civil Code. Man cannot advance his legal claim by entry, but ought to bring his action.

Before Whaley, J., County Court, Richland, November, 1919. Action by Hal. H. E. Rhea against Dora Maxwell, as Admrx. of Samuel W. Rhea, deceased. From order refusing injunction and sustaining demurrer to the complaint, the plaintiff appeals. cites: Demurrer improper,-remedy zvas by motion to have separate causes of action stated separately: 44 S. C. 143; 68 S. C. 257; 82 S. C. 562. Or motion to strike out irrelevant matter: 80 S. C. 498.

<p>Before Wilson, J., Barnwell, December term, 1919.</p> <p>Action by Dula E. Anderson in the probate Court to prove in solemn form the will of Sallie I. Hair. Upon the will being admitted to probate, M. O. Wall et al. appealed to the Circuit Court and a trial de novo on framed issues was had, which resulted in a verdict in favor of plaintiff: Defendants appeal.</p> <p>cite: Jury must decide if testatrix knew contents of will from preponderance of testimony: 107 S. C. 57. Execution of will naming stranger as beneficiary puts burden of proving validity thereof on stick beneficiary: 106 S. C. 81; 106 S. C. 328; 86 S. C. 472; 91 S. C. 487; 68 S. E. 924. Also, where testatrix had no independent advice: 89 S. C. 364; 107 S. C. 470. Declaration of testatrix 'admissible to show mental condition: -7 Ann. Cas. 892, 596. Where testatrix makes will contrary to previously expressed intention, in favor of those in a confidential' relation, presumption of undue influence is raised: 19 S. E. 113; 82 Va. 238.</p> <p>cite: Statements by testatrix subsequent to execution of will properly excluded: 49 S. C. 159; 2 Johns 31; Schouler on Wills, sec. 243; 2 Wharton Ev. 1010. Also declarations prior to execution: 180 U. S. 553. Issues were unquestioned, although defendants had right to have new issues framed: 110 S. C. 357. Objection comes too' late: 76 S. C. 507. Test of undue influence: 1 Rich. Raw 80; 5 Strob. 156; 3 Strob. R. 552; 68 S. E. 1049; Cheves R. 37; Williams Exors. 33. Charge should be considered in entirety, and if correct rule stated, inconsistency will not warrant reversal: 103 S. E. 343; 95 S. C. 302. Where no motion for directed verdict or nonsuit, and new trial is refused, facts are not reviewable on appeal: 83 S. C. 200. If testatrix lives long time after execution of zvill, in possession of faculties, presumption of validity and against undue influence is strengthened: 4 Strob. 44.</p>

Before Gary, J., Cherokee, Fall term, 1919. W. P. Hardin indicted for murder. From verdict of guilty of manslaughter, defendant appeals. The Court’s charge, defendant’s requests to charge, and the exceptions, referred to in opinion, follow: • Judge’s Charge. Mr. Foreman and Gentlemen of the Jury: In the trial of a case, as we are now, the law imposes certain duties on you, and imposes certain duties on me.

Before MclvER, J., Richland, February, 1920. Petition by James Scurry, father, for custody of children. Upon decree awarding the custody to the mother, Mattie Scurry, James Scurry appeals. cite: In suit for custody of child it must be clearly shown that the proper care cannot be expected of the father; or else the father is entitled to custody: 73 S. C. 296; R. C. E., p. 1216, note 13.

<p>Before Gary, J., Charleston, January term, 1920.</p> <p>Action by Jno. M. Hopkinson, as Admr. of the Estate of Leonard A. Hopkinson, Deceased, against Mason & Hanger Contracting Company. From verdict for plaintiff, the defendant appeals.</p> <p>cite: The measure of duty to a trespasser is not to injure him wantonly or recklessly: 57 S. C. 243; 67 S. C. 391. Where one took dangerous place contrary to rule of company, but with consent of engineer, there can be no recovery: 23 S. C. 531; 58 S. C. 143. Use of prohibited bridge: 86 S. C. 106. Child responsible for contributory negligence where testimony shows him of sufficient degree of intelligence: 25 SC. 24; 66 S. C. 47; 76 S. C. 539. Boy was volunteer and cannot recover for ordinary negligence: 109 S. C. 67; 13 ER. A. 561; 29 E. R. A. 663; 61 S. C. 491. Duty to direct verdict where testimony susceptible of but one reasonable inference; where only issues of law are involved: 42 S. C. 48; 68 S. C. 134; 66 S. C. 285; 91 S. C. 17; 104 S. C. 29. “Scintilla” defined: 99 S. C. 417.</p> <p>cite: Supreme Court will not reverse a case because against the manifest weight of the evidence; this being for Circuit Judge on motion for new trial: 94 S. C. 311; 95 S. C. 199.</p>

Before Gary, J., at chambers, Abbeville, December 8, 1919. Petition by Thos. W. Shaw to recover possession of his two infant children from their mother, Mrs. Bessie D. Shaw. Upon discharge of the writ of habeas corpus issued, the plaintiff appeals. cites: Ordinarily a father is entitled to custody of minor children: 73 S. C. 296; 75 S. C. 220; 54 S. C. 392; 19 S. C. (Reed).

Before Shipp, J., Florence, January, 1920. Action by Mary McKnight Ouzts against W. B. McKnight. Judgment for defendant and plaintiff appeals. cite: No true partition was had, between the parties as a mistake arose in applying the terms to the subject matter, and such a mistake will be corrected: 50 S. C. 1; 2 Pom. Eq. Jur., sec. 853. No question of adverse possession arises as there has never been an actual ouster: 71 S. C. 518.

Before PrueiRoy, J., Greenville,-, 1920. Action by Mrs. E. A. Taff against Mildred .C. Smith. From verdict for plaintiff, defendant appeals. cite: Unless right to change beneficiary is reserved it cannot be done: 25 Cyc. 892; 77 S. C. 302; 49 L. R. A. (Ohio) 737, and note; 87 S. C. 395. cite: As a general rule right of beneficiary is a vested right: 77 S. C. 299; 87 S. C. 395.

<p>Before MclvER, J., Chesterfield, July, 1919.-</p> <p>Action by Nancy A. Parker et al. against C. C. Plorton et al. From judgment for defendant, the plaintiffs appeal.</p> <p>Following are the decree and the exceptions, referred to in opinion:</p> <p>Decree. This is an action for partition. The defendant, J. R. Horton, however, in his answer claims fee simple title to the land in question, as sole owner thereof, by virtue of a purchase by him of the said land at a tax sale and a sheriff’s deed resulting therefrom. Manifestly, if the contention of the defendant, J. R. Horton, be correct, the alleged interests of the other parties to the action are excluded, there can be no partition, and the complaint must fail. The case came on to be heard before me at chambers, by consent of counsel, upon an agreed statement of fact, which has been reduced to writing and filed in the record of the case.</p> <p>It appears that the land which is the subject matter of this action was originally owned by Isaac Hough, who died a number of years ago, and who left the land in question, under his will, to his wife, Nancy Hough, for life, with remainder to his nine living children and one granddaughter. The wife, Nancy Hough, resided on the premises during her life, and-during that time the taxes were paid on the land, which was returned in the name of Nancy Plough. She died about 1909 or 1910, and for several years after her death the taxes were paid on the land, though it does not appear by whom they'were paid. However, after the death of Nancy Hough, the land appeared upon the tax books as the land of the Nancy Hough estate; the contention between the parties being, on behalf of those other than the defendant, J. R. Horton, that the said Horton took no title by virtue of the sheriff’s deed, because the land was in the name of Nancy Hough estate on the tax books; whereas, they should have 'been in the name of the Isaac Hough estate, Nancy Hough being simply a life tenant; and J. R. Horton’s contention being that the other parties to this action could not possibly have been misled by the fact that the lands were in the name of the Nancy Hough estate, she being their mother, and that the sale should be sustained, especially inasmuch as the parties in interest had notice of the sale to him before the time expired to redeem the premises, and they failed to do so.</p> <p>As was stated in the case of Dickson v. Burckmyer, 67 S. C. 533, 46 S. E. 345 : “To hold tax sales invalid for slight and technical irregularities would, therefore, be to unreasonably embarrass the State in the collection of its revenues. The sound view is that all requirements of the law leading up to tax sales, which are intended for the protection of the taxpayer against surprise or the sacrifice of his property, are to be regarded mandatory and are to be strictly enforced.”</p> <p>Also, in the case of Koth v. Pallachucola Club, 79 S. C. 517, 61 S. E. 78: “But the statute contemplates only such accuracy in giving the names as will so designate the owners as to protect them against surprise or a sacrifice of their property.”</p> <p>And in this case (Koth v. Pallachucola Club, stipra) they held that the assessment was good, saying: “The true principle and real meaning of the statute that the taxpayer has the right to insist on such naming or the owner, or owners, as will give him notice that land in which he has an interest is on the tax books delinquent and to be sold for taxes.”</p> <p>And, again, at page 517 of 79 S. C., at page 78 of 61 S. E.: “It would be unreasonable to require tax officers to unravel complicated inheritances and state on the tax list the Christian and family names of all the heirs of persons deceased.”</p> <p>“It is true, unquestionably, that, technically, the legal ownership of the property was in the estate of Isaac Hough, but it is also true that the plaintiffs and the defendants in this action, who are endeavoring to destroy the tax title of the defendant, J. R. Horton, take their interests under the will of Isaac Hough, after the termination of the life estate of their mother, Nancy Hough; they knowing perfectly well that Nancy Hough was only a life tenant, and knowing perfectly well that Nancy Hough was living on the premises, and that when she died it was their property. By the exercise of the slightest degree of diligence they would have seen that the property was in the name of Nancy Hough erroneously, but they would have instantly recognized it as their property had they so seen it, and a failure to see it, on their part, indicates an absence of a desire to maintain the payment of the taxes.</p> <p>I see in this case no evidence or indication that these parties have been misled, or surprised, or that their property has been sacrificed, and unless such can be inferred from the testimony, I take it that it is the province and duty of the Court to sustain the bona fide tax title for which the money has been paid, and especially where, as appears in this case, the interested parties had not manifested a sufficient interest in their property and their rights thereto to redeem within the statutory period, by the payment of the principal and interest, as provided by the statute, though they had knowledge that an adverse tax title was claimed as against them. The entry on the tax books, while technically incorrect, was not deceptive or surprising; and the purchaser, under such circumstances as above narrated, has acquired such legal rights as I feel myself bound to respect.</p> <p>It is, therefore, ordered, adjudged and decreed that the complaint herein be dismissed with costs.</p> <p>Exceptions. Please take notice that the plaintiff herein, having given due notice of intention to appeal to Supreme Court from the decree of his Honor, Judge Edward Mclver, dated 5th day of July, 1919; does appeal upon the following grounds:</p> <p>(1) For error in his Honor in holding and deciding that J. R. Horton had acquired a legal title to the land in question under his tax title; whereas, he should have found that J. R. Horton took no title to the said lands by virtue of the sheriff’s deed, said lands assessed in the name of the Nancy Hough estate on the tax books; the said lands not belonging to the said Nancy Hough estate, but belonging to the estate of Isaac Hough.</p> <p>(2) For error in his Honor in holding and deciding that the said J.' R. Horton took a good title to the property described in the complaint by virtue of the sheriff’s tax title to the said property, same having been purchased by him as property of, the Nancy Hough estate, the said lands belonging to the estate of Isaac Hough, deceased, and the said estate of Isaac Hough, deceased, being administered upon by the executor of the will of the said Isaac Hough.</p> <p>(3) For error in his Honor in not holding and deciding that the sale of this land under the tax execution, issued on assessment and execution against another than the owner, is void.</p> <p>(4) For error in his Honor in holding and deciding that the lands belonging to the estate of Isaac Hough were subject to the execution and sale for taxes for Nancy Hough estate, the life tenant herein, for the reason the property of those alone whose name appear on the tax lists is subject to sale for nonpayment of taxes; the evidence being that the property of the estate of Isaac Hough was not on the tax lists, and it, therefore, was not subject to sale for nonpayment of taxes of Nancy Hough estate.</p> <p>(5) For error in his Honor in holding and deciding that the property of the remaindermen, although not listed for taxation, was subject to execution, levy, and sale, under assessment made in the name of the life tenant, Nancy Hough.</p> <p>(6) For error in his Honor after holding and deciding, "It is true, unquestionably, that technically legal ownership of the property was in the estate of Isaac Hough,” that the same was subject to sale for nonpayment of the taxes assessed in the name of Nancy Hough estate.</p> <p>(7) For error in his Honor in holding and deciding that there is no evidence or indication that the parties hereto have been misled or surprised.</p> <p>(8) For error in his Honor in holding and deciding that the interested parties had not manifested a sufficient interest in the property and their rights thereto to redeem within the statutory period by the payment of the principal and interest as provided by the statutes, the error being in construing the said statutes referred to as applying to the heirs at law of Isaac Hough; whereas, the said statutes referred to by his Honor apply solely to the Nancy Hough estate property, parties not assessed for taxation not being included in the statute so construed by his Honor, Judge Edward Mclver.</p> <p>(9) For error in his Honor in holding and deciding that there is no evidence or indication that the parties hereto have been misled or surprised, and that the said interested parties had not manifested a sufficient interest in the property and in their rights thereto to redeem within the statutory period; no such evidence or statement appearing in the said agreed case.</p> <p>(10) For error in his Honor in holding and deciding that the parties interested herein, by the exercise of the slightest degree, would have seen that the property was in the name of Nancy Hough erroneously; whereas, there was no statement in the agreed case showing that they did not exercise diligence in the said matter.</p> <p>(11) For error in his Honor not holding and deciding that the said J. R. Horton purchased the said property at the said tax sale, and knew at the time that he purchased the same that the said property did not belong to the Nancy Hough estate, but to the estate of Isaac Hough, it being stated in the agreed case that J. R. Horton knew of the said will at the time he purchased the said land and the contents of the same; he is thereby stopped from denying plaintiff’s title to the said lands.</p> <p>cites: Sale of lands for taxes under tax execution issued in name of wrong¡ party is void; and placing void titles on the record will draw to them no vitality: 79 S. C. 517; 80 S. C. 29; 84 S. C. 1; 95 S. C. 301; 34 S. C. 364.</p> <p>cites: Tax sale should be sustained if assessment was in- such name or with such description as to give notice to owners, even if it not be technically correct: 67 S. C. 535; 79 S. C. 517; 3 Rich. 27; Cooley Taxation 471; 80 U. S. 510; Black Tax Titles 110.</p>

Before Whaley, J., County Court, Richland, October, 1919. Action by J. W. Babcock against the Postal Telegraph-Cable Co. From verdict for defendant, the plaintiff appeals. cites: Defendant had only an-easement to use only so much of plaintiff’s land as was necessary: 72 S. C. 235; 60 S. C. 389; 63 S. C. 269. Defendant liable for negligence or wilfulness in construction of line or in use of easement: 93 S. C. 126.

<p>Before Wilson, J., Barnwell,-.</p> <p>Action by John Nolf et al. against John Patton et al. From judgment for defendants, the plaintiffs appeal.</p> <p>Following are the exceptions referred to in opinion:</p> <p>Exceptions: (1) That his Honor erred in charging the jury that the burden was on plaintiffs to prove that Ralph Nolf was the survivor, the error being that if plaintiffs proved either that Ralph Nolf was the survivor or that Ralph Nolf and his wife died at the same time, in which event she could not inherit from him the plaintiffs would be entitled to recover.</p> <p>(2) That his Honor erred in charging the defendants’ first and fourth requests of charge, without having charged the jury: “And in the absence of such proof the rights of property as by succession, etc., are to be settled on the theory that all died at the same time.”</p> <p>(3) That his Honor erred in charging the defendants’ sixth and ninth requests of charge, the error being in requiring the plaintiffs to establish survivorship; the law being that in the absence of proof as to survivorship the rights of property as by succession are to be settled on the theory that all died at the same time, and in such event the wife could not inherit from the husband, nor the husband from the wife.</p> <p>(4) That his Honor erred in the outset in his charge to the jury: “This is a case of where the whole family was wiped out — husband, wife, and child. Both sides claim that the house was burned down and that the bodies were burned. I don’t know whether it was the act of some criminal, or what; I don’t know; but anyway this is certainly a very sad case to try” — thereby intimating to the jury that the burning of the Nolf home might have been the act of some criminal, which was prejudicial to the plaintiffs upon the theory that if a criminal committed the act the husband would in all likelihood have been first assaulted, and leaving the jury to infer from such intimation that the wife survived; whereas, in truth and fact there is not a particle of evidence in the case to sustain such theory, and his Honor erred in so stating to the jury, which was never corrected in his charge as a whole.</p> <p>(5) That his Honor erred in charging the first, second, third, fourth, fifth, and sixth requests of charge submitted by defendants’ counsel, and that by so doing his Honor intimated and so charged the jury that the plaintiffs must prove their case by the preponderance of the evidence, and that he who asserts survivorship must establish that fact by .the greater weight of the evidence; the law being that in a common disaster to which there were no eyewitnesses the jury was to arrive at the question of survivorship from the facts and circumstances surrounding the same, and to render a verdict from such, circumstances surrounding the death of the persons as- are in evidence, and that a finding or verdict that one of the persons survived the other may thereby be warranted as a question of fact, though there is no direct or positive evidence upon the question.</p> <p>(6) That his Honor, in charging the plaintiffs’ first' request as follows, “Where the circumstances surrounding the death of the person are in evidence, a finding or verdict that one of the persons survived the other may thereby be warranted as a question of fact, though there is no direct or positive evidence upon the question,” charged the law applicable to the case; and by charging the defendants’ first, second, third, fourth, fifth, and sixth requests of charge, which was not the law applicable to the case, he thereby destroyed the plaintiffs’ first request of charge, which had the effect of reversing, annulling, and bringing to naught plaintiffs’ first request of charge.</p> <p>(7) That his Honor erred in charging the defendants’ seventh, eighth, and tenth requests of charge; whereas, his Honor should have charged the jury that, under the conditions of the policy, “if any beneficiary die before the insured, the interest of such beneficiary shall vest in the insured, unless otherwise provided herein.”</p> <p>(8) His Plonor erred in instructing the jury as follows: “Now, here is the form of your verdict. If you find for the plaintiffs, that is, if you find that the husband was the last to die, and survived the wife, your verdict will be on this, ‘We, the jury, find for the plaintiffs’that they are the heirs' and distributees at law of George Ralph Nolf, who was the last survivor in the common disaster.’ If that is your verdict, sign your name, Mr. Foreman. If you find that that is not the case," but that the wife survived, say, ‘We, the jury, find for the defendants that they are the heirs and distributees at law of Getty Patton Nolf, who was the last survivor in the common disaster’ ” — in that said instructions prohibited the jury from finding for plaintiffs in case they should find both parties died at the same time in the common disaster, in which event neither should inherit from the other.</p> <p>(9) That his Honor erred in not granting plaintiffs’ motion for new trial,- for the reason that there was no evidence in the case from which an inference could be drawn that the disaster was committed by a criminal, or that Ralph Nolf was murdered, or that his wife survived him.</p> <p>(10) That his Honor erred in not granting plaintiffs’ motion for a new trial, for the reason that there was not sufficient evidence adduced on the part of the defendants from which it could be inferred that Getty Patton Nolf survived Ralph Nolf.</p> <p>(11) That his Honor erred in not granting plaintiffs’ motion for a new trial, for the reason that there was not sufficient evidence to warrant a finding in favor of the defendants.</p> <p>(12) That his Honor erred in not granting a new trial, for the reason that the verdict of the jury was not responsive to the ruling of law by his Honor, in that the jury, in order to find that Getty Patton Nolf survived Ralph Nolf, had to presume that the said Ralph Nolf was murdered; whereas, under the well settled principles of law, murder cannot be presumed.</p> <p>cites: If two persons perish in a common disaster, the question of survivor-ship, in absence of evidence, is assumed to be unascertainable, and property rights are disposed of as if death occurred at the same moment: 78 Am. St. Rep. 842 - 41 Am. Dec. 424; 10 D. R. A. 550. Bui if there is any evidence, even but a shadow, it must govern: Cheves 99. No evidence to support a verdict it is error of law to refuse to set it aside: 66 S. C. 61. Where jury has been erroneously instructed new trial should be granted without inquiry as to other grounds they may have based their verdict on: 62 S. C. 1. Self-destruction will not be presumed. Nor from the mere fact of death will murder be presumed: 127 U. S. 666.</p> <p>cite: Charge should be considered in its entirety: 95 S. C. 302; 103 S. C. 343; 111 S. C. 364. Burden of proof on legal representatives to prove death of beneficiettry named before the insured: 92 Am. St. Rep. 614; 10 D. R. A. 550. In common disaster survivorship must be proved by party asserting it: 198 111. 590; 6 Am. St. Rep. 162; 75 N. Y. 78; 41 Am. Dec. 518; 8 H. S. Cas. 183; 1 Taylor Evidence (9th Ed.) 183; Greenleaf Ev. (16th Ed.) 126. Failing in this the property remains vested as it was before the calamity: Dawson’s Presump. Ev. 259 (Rule 54). Circumstances warrant finding as to survivorship even where there is no direct or positive evidence: 22 A. & E. Enc. Daw 1252. Rules apply whether common disaster was from accident or murder: 39 Ann. Cas. 674; 51 D. R. A. 871; 26 Ann. Cas, 871; 58 D. R. A. 441.</p>

Before Townsend, J., Richland, Summer term, 1919. Action for specific performance by Robt. M. Cooper against John McLaughlin et al. From judgment for plaintiff, the defendant, T. J. McLaughlin, appeals. cite: 'Grantor may describe lands by general terms and except therefrom particular parts: 85 S. C. 182. And such excepted portions do not pass: 13 Cyc. 678.

Before Sease, J., Spartanburg, July, 1919. Will Kelly indicted for assault with intent to ravish. From conviction, defendant appeals. The’ testimony of the prosecuting witness follows: Q. Where do you live, Lucy? A. Cowpens. Q. Whose daughter, whose daughter are you? A. Mr. John -’s. Q. How far do you live from this church ? A. I don’t know, sir. Q. About how far ? A. I don’t know. Q. Is it pretty close? A. No, sir. Q. Had you been going down there where Kelly is ?

Before Bowman, J., Jasper, November term, 1919. Action by Sallie D. Rowell, as Admrx. of the Estate of James H. Rowell, Deceased, against Walker D. Hines, as Director General of Railroads, Mike Rivers and Homer Archer. From order sustaining a demurrer to the complaint, the plaintiff appeals. cite: Condition of platform, etc., in violation of sec. 3269, i Civil Code 1912. Plaintiff’s intestate was a licensee: ■ 57 S. C. 332; 35 S. E. 583.

Before Gary, J., Charleston, January, 1920. Action by Horatio C. Hughes, as substitute trustee under the deed of the late Mrs. Phoebe Hippins, and as executor of the last will and testament of Sarah Manley Smith, deceased, against Edith Callender Norton and others. Judgment for plaintiff, and defendants appeal. cite: Property involved is personalty, and under an executory trust, so that rule in Shelley’s case does not apply: 84 S. C. 470.

Before Moore, J., Richland, Ball term, 1919. Action by W. J. McMeekin against Walker Electric & Plumbing Co. for personal injuries.

<p>1. Replevin — Bond Limited to Subject, No Matter How Broad Language. — No matter how broad the language of a bond in claim and delivery may be, it is always limited to subject to which, it treats.</p> <p>2. Replevin — "Claim and Delivery” Defined. — Claim and delivery is an action to determine the right to possession of personal property.</p> <p>3. Chattel Mortgages — Right to Possession, Founded on Obligation to Secure Payment, Depends on Debt and Not Amount. — When the right to possession in a claim and delivery action is founded on an obligation to secure payment of a debt, such right depends on the existence of a debt and not its amount.</p> <p>4 Replevin — Surety on Defendant’s Bond Not Liable to Extent of Debt Secured by Property.- — Sureties on bond of defendant in a claim and delivery action, plaintiff’s right of possession being founded on an obligation to secure the payment of debt, were not liable to the plaintiff, where defendant returned the property to the sheriff, and property sold for less than the debt secured, there being no claim for damages for unlawful taking or withholding; liabilities of sureties not exceeding the'scope of the action and not extending to payment of the deficiency due to the property selling for less than the indebtedness secured..</p>

Before Moore, J., Marlboro, Spring term, 1919. Action by Morton Rainwater, Julius L. Johnson and Rufus Powe against Merchants & Farmers Bank, of Cheraw, S. C. From judgment for defendant, the plaintiffs appeal. For former appeal in this case, see 108 S. C. 206. cite: It is conceded that a share cropper has no title to a crop superior or equal to that of a holder of a mortgage given by the landlord:• Code, vol.

Before DeVorE, J., Anderson, Fall term, 1919. Action by Empire Mercantile Co. against M. C. Kiser Co. From directed verdict for defendant, the plaintiff appeals. cite: Grounds on which judgment of Georgia Court may be attacked: Bail. Eq. 146; Ibid. *1Í0; Ibid. *334. Entry of judgment after assurances of abandonment of further proceedings: 22 N. J. Eq. 115; 32 E. R. A. (N. S.) 929, and note.

Affirmed. Action by the Peoples Bank of Dillon against A. J. A. Perrit, as Adm’r of W. C. Bracy, Deceased, and against Deborah Bracey. Prom judgment for plaintiff for only partial relief, the plaintiff appeals. Parts of the decree and judgment of the Court below are as follows: This is an action for foreclosure of a mortgage securing payment of a promissory note for $650, dated February 19, 1909, due January 1, 1910, and the notes given in renewal thereof.

Before SeasE, J., Chester, Fall term, 1919.' Action by W. A. Stephenson against Baldwin Cotton Mills for false arrest and imprisonment. From judgment for plaintiff, the defendant appeals. cite: Appointment of peace officers for industrial corporations: 1 Civ. Code 1912, secs. 1149-1153. And such corporations not responsible for malfeasance in office: Ibid., sec. 1152. Jurisdiction to extend to territory within radius of one mile of main building: Ibid., sec. 1149.

Before Memminger, J., Spartanburg, April, 1919. Action by W. A. Autrey against J. W. Bell for commissions as a salesman. From judgment for plaintiff, the defendant appeals. Exceptions 1-3 and 5-7 are as follows: (1) The Court erred in instructing the jury with respect to plaintiff’s testimony: “That is superfluous.

<p>1. Boundaries- — -Plat of Surveyor Competent for Defendant, Whether or Not Plaintiff Had Notice of Survey. — A surveyor having testified to the correctness of his survey and plat of defendant’s land, it was competent and admissible for defendant, whether or not plaintiff had notice of his survey or not, despite rule 36 of the Circuit Court; the survey being private and not under the rule.</p> <p>2. Appeal and Error — Exclusion of Surveyor’s Plat Held Harmless to Appellant. — In an action of trespass, the boundaries between plaintiff and defendant being in dispute, exclusion of surveyor’s plat of defendant’s land was harmless to plaintiff, where under the instruction the jury- may not have considered the plat when they should have done so.</p> <p>3. Trespass — Plaintiff Alleging Possession and Title May Rely on Possession Alone. — -In an action for trespass, plaintiff, who alleged both possession and title, might have rested her case upon proof of her possession alone, and defendant’s invasion of it.</p> <p>4. Trespass — Defendant in Action of Trespass Quare Clausum Fregit May Put Title in Issue. — Even in an action which, tested by the allegations of the complaint, is strictly one of trespass quare clausum fregit, defendant may put the title in issue by pleading title in himself, or by justifying his entry as under license from the true owner.</p> <p>6.Trespass — Title of Boti-i Parties in Issue, Where Put in Issue by Either. — In an action of trespass, even of trespass quare clausum fregit, when the title.is put in issue by either party, the title of both parties is in issue, so that there is no error in submitting to the jury the question of who owns the land in dispute, where plaintiff alleged both possession and title, and defendant put the title in issue by pleading title in himself.</p> <p>6. Appeal and Error — Question Not Raised Below on Motion to Direct Verdict Cannot Be Made on Appeal. — Where the question whether there was no evidence to sustain a verdict for defendant, sued in trespass because there was no evidence of title in him, was not made by plaintiff on Circuit by motion to direct the verdict, it cannot be made by plaintiff on appeal in the Supreme Court, in view of rule 77 of the Circuit Court.</p> <p>7. Courts — Question Decided by Preliminary Finding on Motion for Injunction May Be Submitted to Jury on Final Hearing. — In an action of trespass, wherein the Court held on plaintiff’s interlocutory motion for injunction that she had possession, it did not err subsequently in submitting to the jury the question of plaintiff’s possession, the preliminary finding not being final or conclusive, and not binding the parties or the Court on the merits.</p> <p>8. Landlord and Tenant — Tenant Cannot Claim Adversely to.Landlord. — A tenant cannot claim adversely to his landlord until after termination of his tenancy, but can acquire title by adverse possession to land outside the record title of his landlord.</p>

Before Mauldin, J., Marion, ■-•. Action by School District No. 19, of Marion County, against the County of Marion, for damage to shade trees in repairing a public road. Defendant demurred to the complaint, and, upon such demurrer being sustained, the plaintiff appeals. cites: Por purpose of demurrer, facts as alleged are admitted: 111 S. C. 7.

Before Bowman, J., Hampton, October term, 1919. Action by Sherer-Gillett Co. against Moore-Barnes Co. on account. From order granting a new trial after verdict for plaintiff, the plaintiff appeals. cites: Motion for new trial did not come within provisions of section 324. Code Proc, and should not have been granted. cites: Instrument sued on was a chattel mortgage: 19 S. E. 132; 74 S. C. 450; 20 S. E. 759; 93 S. C. 99; 67 S. E. 488 (N. C.).

Before Peurieoy, J., Greenville, September, 1919. . Hugh T. Bramlett, indicted for the murder of Mrs. Eou C. McHugh. Upon conviction, defendant appeals. cite: Defendant has the right to be present at every stage of.,his trial and cross-examination of witness in his absence was error: 40 S. C. 368; 36 S. C. 511. ' Being a part of the trial, there is a distinction between this case and 29 S. C. 232.

Before Shipp, J., Greenville, January, 1920. Indictment of T. W. and J. R. McAlister for housebreaking and larceny. Upon conviction, defendants appeal. cites: Abuse of discretion to refuse separate trial: 7 Rich. R. 412. Error to let conviction stand where there is insufficient evidence to support it: 99 S. E. 562. Definition of “reasonable doubt” as “a strong, substantial doubt” was error: 49 S. C. 297.

Before SeasE, J., Richland, April term, 1919. Actions by Mrs. Bess Boyd Bost against the Volunteer State Rife Insurance Co. on two policies of life insurance tried together.

Before Rice, J., Greenville, Rail term, 1918. Action by H. M. Hester against Mary A Roberts for commissions on sale of real estate. Judgment for defendant, and a new trial granted; from which defendant appeals. The order granting a new trial was as follows: The above stated cause was tried before me at the Fall, 1918, term of Court for said county, and resulted in a verdict for the defendant. It comes before me now on a motion for a new trial.

Before Townsend, J., Richland, October, 1918. Action by L. T. Lester against Fox Film Corporation. From order vacating an attachment, plaintiff appeals. The trial Court’s order, on which affirmance is based, follows: Order Dissolving and Vacating Warrant of Attachment.

Before Shipp, J., Florence, May, 1920. Action by R. M. Graham, a taxpayer, against A. L. Ervin, as County Supervisor, and the members of the Florence County Highway Commission, to test the validity of certain bonds. From decree for defendants, the plaintiff appeals The report of the master and the decree below were as follows: “Master’s Report.

Before Gary, J., Spartanburg, October term, 1919. Grover Butler indicted, for assault with intent to ravish, and, upon conviction, appeals. The following áre the exceptions referred to in opinion: Exception 1. — In that there was no testimony whatever that the defendant made an assault with intent to commit rape.

Before Memminger, ]., Charleston, Summer term, 1919. W. C. Stauss was indicted ancl convicted of a violation of the dispensary law in 1915 and sentenced, but a part of the sentence suspended on terms.

Before MclvER, J., Aiken, Spring term, 1919. Action by William Clary against C, C. and b. P. Bonnett, for trespass to try title. From judgment for plaintiff, the defendants appeal. cites: Copy plats improperly admitted: Sec. 3999, 1 Civ. Code 1912; Chamberlayne Evid., sec. 3487. Plaintiff must recover on strength of his own title: 59 S. C. 449; 71 S. C. 328. Defendant may produce deed to a third party to defeat plaintiff’s claim: 78 S. C. 155; 71 S. C. 328; 59 S. C. 449.

Before Moore, J., Marlboro, Spring term, 1919. Action by Marlboro Cotton Mills against J. R. O’Neal for delivery of cotton under contract. From order of non-suit, the plaintiff appeals. cite: Plaintiff was forced to submit to nonsuit under ruling of the presiding Judge, and it was not voluntary so as to deprive plaintiff of the right of appeal: 59 S. C. 218; 97 S. C. 360.

Before Mauldin, J., Pickens, July, 1919. Action by J. Sam Wilson et al., Taxpayers, against Chas. L. Cureton et al., Highway Commissioners, and P. J. Patton, . Engineer, for injunction. From order dismissing the petition, the plaintiffs appeal. cites: Conditions in act requiring surveys, and maps were mandatory, and not left to discretion of the commission: 30 Stats. 297. cites: Matter of determination necessity left to judgment and discretion of commissioners: 86 S. C. 407.

Before Shipp, J., McCormick, Fall term, 1919. Action by the Bank of McCormick, S. C., against McCormick County, J. H. Lyon, as Supervisor, and W. H. Parks, as Treasurer. From order sustaining a demurrer by McCormick county, and dismissing the complaint as to it, the plaintiff appeals.

Before Moore, J., Kershaw, December, 1919. Action for contribution on ten promissory notes by J. B. Lee, V. M. Montgomery, A. F. McKissick, Aug. W. Smith and Sigo Myers against L. W. Boykin. From judgment for plaintiffs, the defendant appeals. cite: Plaintiffs and defendants were endorsers of company’s notes: 16 L. R. A. 143 (N. J.) ; 45 S. C. 373; 23 S. C. 139. Distinction between corporation and its stockholders is clearly drawn: 96 S. C. 106.

Before Shipp, J., Union, July, 1919. Action by C. A. Dobbins against E. D. Humphries on a note and chattel mortgage. From judgment for plaintiff for a reduced amount, plaintiff appeals. cites: Right to rescind for fraud zvaived if party after discovery of fraud, avails himself of benefit of contract: 56 S. C. 513; 97 S. C. .34. Mortgagee liable for value of chattels taken without sale: 73 S. C. 403; 108 S. C. 431; 91 S. C. 121; sec. 4105, 1 Civil Code 1912.

Before Wharey, J., County Court, Richland, June, 1918. Action by Jas. W. Hopkins against Herbert C. Smathers for delivery of an automobile. Verdict for plaintiff, and defendant appeals. cites: Continuance within discretion of trial Judge, unless discretion is abused: 78 S. C. 264; 93 S. C. 412; 93 S. C. 460. Where sole counsel engaged in other and higher Court continuance improperly denied: 50 S. E. 1129 (Ga.).

Before Moore, J., Richland, October term, 1919. Action by Sarah F. Drennen et al. against Chas. O. Brown et al. From order directing the payment of a fund held in Court pending final adjudication of the case, and refusing a trial by jury, the plaintiffs appeal. For former appeal in this case, see 112 S. C. 340. cite: Action for recovery of real estate and jury trial proper: Sec. 312, Code Proc. 1912; 78 S. C. 191.

Before Moore, J., Dillon, Spring term, 1920. Action by Dillon County against S. V. Lane and Gulf & Atlantic Insurance Company on official bonds. From judgment for plaintiff, the defendants appeal. cite: No contract between Lane and Bruce: 113 S.- C. 352. Requirement as to collection of executions (sec. 476, 1 Civil Code 1912) should be construed in connection with secs. 1196, 1197, 1198, 1199, Id. Appointment of deputy sheriff: Secs. 1146-7-8, 1 Civ. Code 1912.

Before TownsBnd, J., Dillon, October term, 1919. Action by Tracy E. Fore against Marion County Lumber Company to declare a timber deed void, and to enjoin cutting.

Before Mauldin, J., Greenville, July, 1919. 'Proceeding in habeas corpus by Jesse M. Jennings against Mrs. Ora Anderson and.Nellie Shaw, alias Nellie Anderson, to obtain custody of a child. Prom an order delivering the child to the plaintiff, the defendant appeals. cite: Mother of illegitimate child 'had under common law, highest right to custody of child: 5 Cyc. 637.

<p>Before Moore, J., Richland, October term, 1919.</p> <p>Action by the State of South Carolina against Fidelity & Deposit Company of Maryand and American Surety Company of New York. From order sustaining a demurrer as to the defendant, American Surety Company, the plaintiff appeals.</p> <p>cite: Stale was proper plaintiff and, not Greemvood county: Secs. 652, 663, 664, 667, I Civ. Code 1912; sec. 162, Code Proc. 1912; 6 S. C. 119; 13 S. C. 430 ; 51 S. C. 134; 12 S. C. 130; 20 S. C. 528; 43 S. C. 66; 80 S. C. 466; 83 S. C. 530. Secs. p8g and 663 inconsistent, but both must be given all possible effect: 96 S- C. 313. Office of supervisor, by Act ip 16 (2p Stat. 742), was abolished in name, but duties divided and devolving duties on two men, and supervisor, being elected road supervisor under new act, was charged with accounting as supervisor to himself as road supervisor, and bondsmen liable for default: 98 S. E. 864; 86 S. C. 543; 92 S. C. 329; 45 Conn. 134. Personal representatives of deceased defaulting officer not necessary parties to suit on official bond: 22 R. C. B. 518, sec. 205; 29 Cyc. 1464; 12 S. C. 130.</p> <p>cites: -No allegation of loss by default of road supervisor in not collecting from supervisor funds in his hands, and hence no liability on béndsmen of road supervisor: 98 S. E. 865.</p>

Before Prince, J., Charleston, Fall term, 1919. Action by Jane Carter, as administratrix of Chas.

<p>1. Highways — Act Providing for Improvement of Highway Construed Not to Apply to Certain Route. — Acts 1919, p. 474, sec. 11, providing for improvement of “a road from Anderson to Pelzer via Williamston,” held not to fix which of two roads from Anderson to Williamston was to be improved, but to leave the matter open, and it was immaterial that one of the roads was known generally as the Williamston Road, and that the belief that such road was contemplated by the act was a determining force in carrying the election that authorized a bond issue for the purpose.</p> <p>2. Highways — Discretionary With Highway Commission as to Route to Be Improved. — Acts 1919, p. 474, providing for the permanent improvement of a road from Anderson to Pelzer via Williamston, being silent as to which of two routes should be improved, it was discretionary with the highway commission as to which road should be improved, and the Court cannot interfere with the exercise of such discretion, in the absence of abuse.</p> <p>3. Highways — Commission Did Not Abuse Discretion in Selecting Road to Be Improved. — Where a' statute providing for the permanent improvement of a road between two cities left open the question as to which of two roads should be improved, highway commission did not abuse its discretion in deciding to improve the road which was cheaper of construction, cheaper to maintain, and would serve more people.</p> <p>4. Highways — Public Highway to Be Improved May Use Part op Road Jointly With Another Road. — Under an act requiring the improvement of a road terminating in a certain city, the road in entering such city may use a roadbed jointly with another road, and it cannot be said that the road terminates where it meets such other road, and it is immaterial that minutes of the highway commission show that the road terminates at the intersection with such other road, being a mere matter of bookkeeping and subcontracts.</p> <p>5. Highways — Public Highway Must Extend prom One Public Place to Another. — In order for a road to be considered a public highway, it must extend from one public place to another public place and permit .public use all the way, and as soon as there is an obstruction, then the communication is cut off and the public character of its use is destroyed, but the mere fact that a road uses a roadbed jointly with another road a short piece does not constitute such an obstruction.</p>

<p>Damages — Loss of Revenue Caused by Failure to Get Particular Film May Be Recovered; “Rental Value.” — In an action for breach of contract to supply defendants’ motion picture films to plaintiff for exhibition, where it was shown that defendants’ films were popular, and that the income from their exhibition was reasonably ascertainable, plaintiff is entitled to more than nominal damages, though his witness could not state the rental value of the pictures; rental, value meaning only such damages as are recoverable in a particular case, and in this case would mean the revenue which the exhibition of the picture would bring.</p>

Before Moore, J., Spartanburg, Winter term, 1920. Action by Elizabeth S. Banter (formerly MacKendree) et al. against the Southern States Bife Insurance Company on two life insurance policies upon the life of S. M. MacKendree. From judgment for plaintiffs, the defendant appeals.