Volume 115 — South Carolina Reports

<p>1. Trespass — Evidence op Rental Value Admissible. — In an action for damages for withholding possession of realty, evidence of rental value is admissible, although the action could not be maintained, as one for rents and profits.</p> <p>2. Trespass — Instruction Held Not to Eliminate Defense op Grant- or's Title. — In an action for damages for withholding possession, where the jury were instructed that if defendant’s grantor was a purchaser for value without notice, etc., and he acquired such title, verdict must he for defendant, unless plaintiff afterwards acquired title by adverse possession, a further instruction that, if at the time defendant acquired his grantor’s title he had notice of circumstances relating to plaintiff’s claim sufficient to put him on inquiry, he shall be chargeable with such knowledge as reasonable diligent inquiry would have disclosed, was not improper, as depriving the defendant of the right to stand on the validity of his grantor’s title.</p> <p>8. Vendor and Purchaser — Defense of Bona Eide Purchase Is Legal Defense. — As it arises under the recording act, the defense of bona fide purchase without notice is a legal defense, in an action for withholding possession of land.</p> <p>4. Appeal and Error— Defendant, Having Presented Defense as Legal, Cannot Assert Ti-iat It Was EauiTABLE. — Defendant having preferred a request with respect to the bona fide purchase without notice cannot assert that it was an equitable defense, not proper to be submitted to jury.</p> <p>5. Vendor and Purchaser — Evidence Held to Warrant Finding Plaintiff’s Possession Was Not Surrendered and That Defendant Vendee Had Notice. — In an action for withholding possession of lands, evidence that plaintiff locked the building, but left hooks therein, held sufficient to warrant finding that plaintiff’s possession was not surrendered, and that defendant had notice sufficient to put him on inquiry,</p> <p>6.Vendor and Purchaser — Defense of Bona Fide Purchase Not Available, Where There Is Evidence of Notice. — -Where a purchaser had notice of facts sufficient to put him on inquiry, he is chargeable with knowledge of all facts which a reasonably diligent inquiry would have elicited, and cannot rely on bona fide purchase.</p> <p>Note. — On the general rule as to effect of possession of land as notice of title, see note in 13 L. R. A. (N. S.) 61.</p>

Before Memminger, J., Greenwood, October term, 1919. Indictment of T. T. Cromer for obstructing a highway. Upon conviction, defendant apppeals. cites:. Question of user was for jury and Judge should have charged law applicable to the case: 1-09 S. C. 245. And his charge discredited defense: -73 S. C. 379; 5 S. C. 67. Side drains not part of highway: 1 Civ. Code 1912, sec. 1933; Crim. Code, sec. 628. Variance in indictment and proof fatal: 5 S. C. 65; 3 S. C. 230; 5 S. C. 378.

Before Sease, J., Fairfield, September, 1919. Action by Thomas A. Fairey against C. E. and Louise Strange, on contract to sell real estate. From directed verdict for defendants,' the plaintiff appeals. cite: Where vendor contracts to sell land in which he knows at the time that he has no title, he is bound to make good to the vendee his loss by way of damages: 40 N. Y. 59; 100 Am. Dec. 463; 66 Am. Dec. 107; 6 Wheat. 109; 19 U. S. 109; 5 L. Ed. 218; 4 Am.

Before Shipp, J., Florence, August, 1919. Action by Robert Martin et al. against Mary G. Palmer et al. for the specific performance of a contract to convey certain real estate. From judgment for defendants, the plaintiffs appeal. cite. Time is not of the essence of a contract unless it appears from the intention of the parties: 30 Cyc. 713. Mere delay insufficient to bar right; there must be some blameworthy or inexcusable neglect: 18 A. & F- Enc. Law C2d Ed.) 97, 101.

Before Moore, J., Cherokee, March, 1920. Action by John Mullinax, as Administrator of the Estate of Charles Mullinax, Deceased, against J. B. Hambright et al., Constituting the Cherokee County Highway Commission. From order sustaining a demurrer to the complaint, the plaintiff appeals. The complaint was as follows : “The plaintiff shows to the Court: “First. That Chas.

Before Moore, J., Richland, Fall term, 1919. Action by W. F. Haithcock, Jr., by his guardian ad litem, W. F. Haithcock, Sr., against City of Columbia, for personal injuries. From order of nonsuit, the plaintiff appeals. cite: Not necessary to establish'negligence of defendant by positive testimony: 95 S. C. 347; 98 S. C. 382; 105 S. C. 235; 14 Rich. 237.

<p>Before Shipp, J., Greenville, February, 1920.</p> <p>Action by Alex. Cagle and Lillie O. Cagle against G. FL Schaefer et al. for specific performance. From judgment for plaintiff against the defendant, Schaefer, said defendant appeals.</p>

•Before DEVorE, J., Anderson, Pall term, 1919. . Action by Commercial Security Co. against Donald Drug Co. on four alleged promissory notes. . Prom judgment for defendant, the plaintiff appeals. cites: Alteration, if there was one, was not for illegal or fraudulent purposes: Negotiable Instruments Act (1914), 28-Staf. 668, sec. 12, art. I. Plaintiff is holder in due course: Id., sec. 52, art. .IV.

Before Wilson, J., Horry, November, 1917. Action by R. V. Ward against Pacific Fire Insurance Company on a policy of fire insurance. From judgment for plaintiff, the defendant appeals. cite: Letters written by agent to company and company’s reply seen by assured long after time for filing proofs of loss had expired could not operate as waiver by company of requirement that proofs of loss be filed: 90 U. S. 326; 24 L. Ed. 387; 56 Am. St. Rep. 481; 112 Am.

Before Moore, J., Marlboro, Spring term, 1919. Action by John B. McLaurin, as Administrator of the lístate of Sue S. McLeod, against Mutual Life Insurance Company of New York, on policy of life insurance. Erom judgment for plaintiff, the defendant appeals. cite: In this case no conscious fraud is charged and no breach of warranty alleged, differing from. 88 S. C. 31.

<p>Before Sease, J., Spartanburg, March, 1919.</p> <p>Action by Enoch Lawrence et al. against E. C. Clark et al. for partition. From judgment for plaintiffs, the defendants appeal.</p> <p>The following is the master’s report on issues involving the Simeon Gowan home place:</p> <p>On June 3, 1878, William Gowan conveyed to his son, Simeon Gowan, in consideration of love and affection and $5, a 12j2-acre tract of land at Inman. The usual general warranty claluse is incorporated in the deed, but words of inheritance are entirely wanting, in both the granting clause and the habendum. This deed is recorded in Book 00, at page 635, R. M. G. office for Spartanburg county.</p> <p>By his last will and testament, which bears date February 12, 1900, and was admitted to probate August 27, 1900, and which will be found in Record Book 84, package 29, probate Court, Simeon Gowan attempts to dispose of a portion of the 12j4-acre lot in the following manner: “Third. I give, devise and bequeath unto my beloved wife, Sarah Gowan, a two-acre lot of land, more or less, in the town of Inman, on which my dwelling house is situated and where I now live. Said land is bounded by Jas. H. Ballenger, Simeon Gowan and Jno. D. Humphrey and is known as my homestead, and that my beloved wife, Sarah, shall have the said lot of land forever and dispose of said lot as she wants to do and desires to dispose of it.”</p> <p>Sarah Gowan’s will bears date July 14, 1916, was probated August 8, 1916, and contains the following clause: “In consideration of services rendered me during my lifetime, I will, devise and bequeath all the rest and residue of my property, of whatsoever nature and wheresoever found, both real and personal, to E. C. Clark and his wife, Florence Clark.” •</p> <p>This will- is filed in Record Book 96, package 70, probate Court. E. C. Clark and Florence Clark are not related in any way to Sarah Gowan, nor to Simeon Gowan.</p> <p>This suit was brought for the partition among the heirs of William Gowan of certain real estate which William Gowan had conveyed and devised to his son, Simeon Gowan, for life, and his daughter-in-law, Sarah Gowan, for life, after the death of both of them. The main issues of the case have already been adjudicated. This report concerns only the 2j4-acre lot in the town of Inman, known as Simeon Gowan’s home place. The rest of the 12J4 acres was sold off to various purchasers by Simeon Gowan during his lifetime. Since that time these purchasers have made valuable improvements on the lots so purchased, and the principal business buildings in the town of Inman are situated upon the 10 acres, including the Bank of Inma$, the Inman Hotel, the storehouse adjoining the bank, the R. G. Landrum property, the Baggott property, etc. Simeon Gowan retained the northeast corner of the 12j4-acre boundary until his death, containing 2 or 2 acres, and this is the property now in dispute.</p> <p>Plaintiffs and defendants (except E. C. Clark and Florence Clark) claim that the property reverted to the estate of William Gowan upon the death of Simeon Gowan, and that it should now be partitioned amongst the heirs at law of William. The Clarks contend that the deed from William Gowan to Simeon Gowan was not intended to convey only a life estate, but that the grantor intended to convey to his son, Simeon, an estate in fee simple, and that by the mistake of the scrivener the words of inheritance were omitted, which words of inheritance, they allege, should be supplied by a Court of equity in order to make the instrument conform to the intention of the parties thereto. They therefore ask that the deed be reformed so as to include the magic word “heirs,” which was omitted from the habendum clause of the.deed by G. H. Camp, Esq., notary public, surveyor and neighborhood adviser in and about the town of Inman. The heirs of William Gowan, replying to the answer of the defendants, Clark, allege that the deed from William Gowan to Simeon Gowan should not be reformed in a Court of equity at the instance of E. C. Clark and wife, for lack of consideration; that-they are volunteers, and that the deed was without consideration as to them.</p> <p>The question of law involved herein has given me no little concern, more particularly because of the fact that there are practically no decisions in point' by our own Court. Before proceeding to discuss the question as to whether or not a Court of equity will reform a deed, at the suit of those who are pure volunteers, where the consideration expressed is “love and affection and five dollars,” I desire first to state my findings of fact, as follows:</p> <p>It-was the intention of William Gowan to convey the fee in the 12E2-acre tract to his son, Simeon Gowan. Whether there was an agreement between father and son on this point, or whether the conveyance was executed by AVilliam Gowan without any consultation with his son, we have no way of knowing. Whether the $5 expressed as a part of the consideration in the deed was paid or not', we have no way of knowing' — to my mind, it makes absolutely no difference. It seems to me that any grantor who acknowledges the receipt of a purely nominal consideration by his deed, thus attempting to support his conveyance, should be estopped from denying the receipt of the consideration so expressed in his deed. It was clearly the intention of William, however, to give such an estate to Simeon as would enable him to sell and dispose of the property as he saw fit. So he called in Squire Camp and had the survey of the 12J4 acres made by him, and signed the deed which is recorded in Book 00, at page 635, and Simeon went into possession of the land and proceeded to sell parts of it, from time to time, to prospective settlers in the town of Inman. After selling off all of the land contained within the 12j4-acre boundary except the northeast corner, whereon he continued to live, he died about 10 years ago. His widow continued in possession of the property until her death, about 6 years later. It is clear that neither the defendant, E. C. Clark, nor his wife, Florence Clark, is in any way related either to Simeon Gowan or to his wife, Sarah Gowan.</p> <p>It may be stated in the outset that the law is well settled in this State that, where two parties have had an understanding, agreement, or contract, and in the effort to reduce this understanding to writing a mutual mistake was made, by which mistake the intention of the parties with regard to the subject-matter was not carried into effect, a Court of equity will enforce a reformation of the instrument. It will not alter or change the contract or agreement between the parties, but will alter the written instrument so as to make it conform to the original contract which the parties agreed upon. And it is required that the evidence in such cases shall be very clear and convincing. 3 L. R. A. 190; 5 L. R. A. 159. '</p> <p>In proceeding to review all the authorities which I have been able to find upon the question-of the reformation of voluntary deeds, I forbear to discuss section 588 of Pomeroy’s Equity Jurisprudence, which concerns meritorious, or imperfect considerations, and which has been cited by several of the Courts in the cases to be mentioned, sometimes as authority for the reformation of a deed, and sometime? for the refusal to reform.</p> <p>The first case in our own reports is that of Horry v. Horry, 2 DeSaus. 115. William and Elizabeth Branford • cnveyed their property to two trustees, for the use of the grantors or the survivors of them during life, and in case I heir two children, Elizabeth and Ann, should be living at < he death of the surviving parent, to them jointly, or to the survivor of them if either should die before the death of the surviving parent. One of the two daughters died prior to (he death of the parents, and upon the death of the surviving parent the two children of the predeceased daughter, Elizabeth, brought suit against Ann, the surviving daughter, I'or partition, contending that they could not, by any equitable construction, be deprived of the share due to their mother had she been living. It was insisted by counsel for complainants that the intention of the grantors was to provide for both of their children, and that the two words “with-mt issue” should be inserted by the Court, so as to carry their intention into effect. The Court of ch'ancery had no hesitation in deciding that the entire estate belonged to the defendants (Ann and her husband), and that complainants had no interest therein, saying: “It is only necessary to read the clause of the deed to determine the question; and nothing but the ingenuity of counsel could have raised a doubt.” They further say that it cannot be regarded as a marriage settlement, but is a voluntary settlement made by the parents some years after marriage of a small portion of the mother's estate.</p> <p>In Dennis v. Dennis, 4 Rich. Eq. 307, the Court refused to reform a deed of giftof negroes, executed 30 years before the suit, saying: “The plaintiffs are mere volunteers, who seek to reform a deed after the lapse of 30 years, in the progress of which the donors, donees, and scrivener have all died,” etc.</p> <p>The Dennis case, however, is worth very little to the Court in the present inquiry, since the opinion in that case states that the suggestion of fraud is unsustained by proof, and that the allegation of mistake is. equally unsustained by the evidence.</p> <p>In the case of Brock v. O’Dell, 44 S. C. 22, 21 S. E. 976, Stephen Clayton conveyed 400 acres to his son, Alfred T. Clayton, in consideration of love and affection, in 1854, by a deed which did not contain the words of inheritance necessary to pass the feé. Stephen Clayton died in 1879, and Alfred T. Clayton conveyed the property by fee simple deed to O’Dell in 1882, and died in 1884. The heirs of Stephen Clayton brought suit to recover the property from O’Dell and to obtain partition amongst themselves, and the case was heard in 1893. The defendant alleged that it was the intention of both Stephen and Alfred Clayton that the word “heirs” should be inserted in 'the deed of 1854, and that its omission was the mistake of the scrivener. The suit resulted in a verdict for the defendant, which ripened into a judgment, from which the heirs of Stephen Clayton appealed. The judgment of the Circuit Court was affirmed. Mr. Chief Justice Mclver filed a dissenting opinion, which he based upon two princpal grounds, the first of which was that the deed sought to be reformed was a purely voluntary conveyance, But the opinion of the Court, delivered by Mr. Justice Pope, contains this statement: “So far as the effort of the appellant is concerned where they seek to inject the question as to this being a voluntary deed, and, therefore, not reformable, we have looked in vain in the ‘case’ to find any place where these appellants raised such a question before the Circuit Judge, and it- is too late to ask that this question be considered by this Court.” So the case of Brock v. O’Dell is not authority for the reformation of a voluntary deed, although a voluntary deed was actually reformed by the Court in that case, but the only direct •expression of opinion as to the question of whether or not such a deed could be reformed is to be found in the dissenting opinion of the Chief Justice.</p> <p>It will readily be seen that not much assistance is afforded by the decisions of our own State. It does not seem that the precise question concerned in the present inquiry has ever been squarely before our own Court. I shall, therefore, examine a few of the decisions of other Courts, selecting a few upon each side of the question. And first of cases where reformation was allowed:</p> <p>In the case of Crawley v. Crafton, 193 Mo. 421, 91 S. W. 1027, a man who was about to engage in an unfamiliar business venture conveyed his real estate to his wife; suit was afterwards brought to reform the deed so as to correct the description of the land intended to be conveyed. “Such a deed,” said the Court, “had not a valuable, but it has a meritorious consideration, as between them and their heirs (italics mine), which brings it within the cognizance of a Court of equity, and there is no good reason why an admitted mistake in the description of the property' therein conveyed should not be corrected.” For other Missouri cases, see Hutsell v. Crews, 138 Mo. 1, 39 S. W. 449; Mudd v. Dillon, 166 Mo. 110, 65 S. W. 973. In the case of Hutsell v. Crews, 138 Mo. 1, 39 S. W. 449, cited in the Crawley case, it was held that a deed making provision for a minor child has a meritorious consideration, and that the description therein contained could be corrected in a Court of equity.</p> <p>In Dynn v. Lynn, 135 111. 18, 25 N. E. 634, William Lynn, Sr., made his will in 1872, wherein he devised a certain tract 'to his son, George. In 1873, he attempted to convey this same tract to a trustee for the support of the grantor’s imbecile daughter during her life, and after her death to be divided among certain others. The land was incorrectly described in the deed. No money was paid, of course, and the trustee went into possession. About 1890, the administratrix of George Lynn brought a proceeding to-sell the property for the payment of debts. The probate Court ordered the sale, which was affirmed by the appellate Court, but the Supreme Court of Illinois reversed the lower Courts, while admitting the correctness of the principle that an executory agreement will not be enforced in a Court of equity upon the application of a yolunteer. After stating the facts surrounding the conveyance and the transfer of possession to the trustee, the opinion concludes: “Under such circumstances, we are constrained to hold that the transaction was an executed trust, and, although there was a chance mistake in the description of the premises contained in the deed, a Court of -equity may, under the authorities, uphold and sustain the deed, although it was not based on a money consideration.”</p> <p>In Baker v. Pyatt, 108 Ind. 61, 9 N. E. 112, it is held that while a Court of equity will not intervene to reform a purely voluntary deed, yet if there is any valuable consideration, however so small, supplemented by love and affection, a mistake in the deed may be reformed. Here, also, the mistake was one of description, the grantor having furnished an erroneous description to the scrivener by mistake, so that the deed actually described land which the grantor did not even own. Reformation was accordingly directed. This case involved a deed where the consideration expressed’ was “love and affection and certain services” which had been rendered by the appellee to the grantor. This case cites as authority the case of Mason v. Moulden, 58 Ind. 1, where the consideration was love and affection and $1 and where reformation was allowed.</p> <p>The contrary view is taken by the Supreme Court of Illinois, as announced in the case of Henry v. Henry, 215 ni. 205, 74 N. E. 126. Emily Henry attempted to convey to her son, William Henry, a 30-acre tract and a 15-acre tract, in consideration of love and affection. The 30-acre tract was correctly described, but the scrivener failed to describe the 15-acre tract which was intended to be conveyed, inserting instead the description of a tract which the grantor did not own. The Court holds that the defendant-appellant (William Henry) was the owner of the 30-acre tract, reversing the trial Court on this question, but says that the deed was a voluntary conveyance, without any consideration other than the mother’s love and affection, and her desire to do something for the grantee in recognition of his kind treatment of her. The opinion cites the case of Strayer 7’. Dickerson, 205 111. 257, 68 N. E. 767, in which authorities are examined at length, and which clearly fixes the law of Illinois, and concludes: “As to the question raised by the cross-bill in reference to the correction of the deed in so far as it misdescribes the 15 acres sought to be conveyed, we are of the opinion the Court properly refused to grant the relief prayed for. As was said in the beginning of this opinion, this is clearly a voluntary conveyance. In such a case a Court of equity will not decree the correction of a mistake in the deed.”</p> <p>In the comparatively recent case of Willey v. Hodge, 104 Wis. 81, 80 N. W. 75, 76 Am. St. Rep. 852, a Court of equity refused to reform a deed which a father made to his son, in consideration of love and affection, where the deed failed to describe the land which the father had intended to convey, as against the other children and heirs of the grantor, assigning reasons which might equally well apply to the case at bar: “It is suggested that as the deed .in question is.based upon what is called in the books ‘meritorious consideration,’ the right to a reformation ought to be upheld. All the cases I have been able to find in which such a consideration has been upheld as warranting the intervention of a Court of equity rest upon the fact of the defective execution of a power, or upon some matter of contract, such as an agreement for a family settlement, or the result of negotiation and agreement. These elements are entirely wanting in this case. The grantee in the deed knew nothing of its execution until after his father’s death. The son was an adult person, in no way dependent upon the bounty of the parent. He has no claim upon his father at all, superior to his sisters, against whom he seeks relief.”</p> <p>The same doctrine is upheld in the case of Richardson v. Adams, 171 Mass. 447, 50 N. E. 941. In that case, the grantor made a deed of trust to the children-of one of his creditors, for the reason that he desired to pay an outlawed debt. He overlooked one of the creditor’s heirs — a grandson, whose father was dead; he was the only heir excluded. Proof showed that the grántor did not know that this child was living. The Court refused to reform the trust, saying: “Whether he would have included the plaintiff among the beneficiaries if he had known that he was alive, and what his relation to Alfred Richardson was, can be only a matter of conjecture. The plaintiff had no legal claim upon him, and even if he had known about the plaintiff, it is possible that he still might have chosen to limit his bounty to the living children of Alfred Richardson, and their children and issue, as he has done.”</p> <p>A similar case is that of Smith v. Smith, 80 Ark. 458, 97 S. W. 439, 10 Ann. Cas. 522, where reformation of a voluntary conveyance to grantor’s wife was refused. This was a suit defended by the widow against the grantor’s children, after his death. The Court said that the deed was voluntary, in consideration of love and affection, and that no previous consultation or agreement was shown. See, also, Bnos v. Stewart, 138 Cal. 112, 70 Pac. 1005; Pinch v. Green, 225 111. 304, 80 N. E. 318.</p> <p>The case of Bise v. Kennedy, 67 Iowa, 376, 25 N. W. 290, lays down the same principle, but I do not consider it a very strong authority here, for the reason that a reading of the case convinces me that the circumstances under which the voluntary deed was obtained by the grantee and the methods employed to obtain it, did not commend themselves to the approbation of the Court, although the decision' appears to be based by the Court upon the ground that the deed was voluntary, and that the grantor Was under no natural or moral obligation to make any greater provision for the grantee than for her other children. The Court refused to reform the description in the deed.</p> <p>The case most nearly in point is that of Powell v. Morisey, 98 N. C. 426, 4 S. E. 185, 2 Am. St. Rep. 343, where a grandfather had conveyed to his grandson a tract of land, and where it appeared that, through the inadvertance of the draftsman, the word “heirs” had been omitted from the deed. Reformation of the deed was sought on the ground that it had been the grantor’s intention to convey the fee to his grandson. The reformation of the deed was refused, on the ground that it was a voluntary deed. This case is cited by Mr. Chief Justice Mclver in the dissenting opinion in Brock v. O’Dell, 44 S. C. 42, 21 S. E. 976. Let us keep in mind the fact that while this strong authority is cited in the dissenting opinion of our Court, the opinion of the majority did not consider the question involved in this authority, but seems to indicate that voluntary deeds are not reformable.</p> <p>The case of Byrd v. O’Neal, 106 S. C. 346, 91 S. E. 293, cited by counsel for the Clarks, is not authority for the reformation of a voluntary deed. There the statement is made: “O’Neal bought a tract of land near him and sold a part to his son-in-law, Byrd.” This would indicate that full value was paid.</p> <p>After studying the testimony, and giving consideration to such authorities as I have been, able to find upon making diligent search, I am convinced that the weight of authority is in favor of a continued adherence to the old equitable doctrine that a deed will not be reformed at the instance of a pure volunteer. I feel impelled to hold, therefore, that the relief sought' for by the defendants, E. ‘ C. Clark and wife, must be denied, and that the Court should, therefore, direct the s.ale of the 2j^-acre lot of land in question for partition and division among those who are now the heirs at law of William Gowan.</p> <p>There are other reasons why the relief must be denied in the present instance; there is no proof that there was any antecedent agreement of consultation between William Gowan and his son, Simeon, and the element of mutuality is, therefore, entirely wanting, so far as the evidence discloses the facts. I cannot criticize the evidence as being lacking in clearness, nor do I entertain any doubt as to its truth; it is remarkably clear, vivid, and impressive, as far as it goes; but it does not supply all the elements of proof that are necessary to make out a case where reformation could be granted, under the rule of law that is applicable.</p> <p>I, therefore, recommend that the lot of land in cjuestion, which is described in item 3 of Simeon Gowan’s will (page 1 of this report), and which is the northeast portion of the 12-acre tract described in the deed from William Gowan to Simeon Gowan, be ordered to be sold by the master, after due advertisement according to law and the custom of this Court, for partition and division among the heirs at law of Simeon Gowan, and that the proceeds of such sale, after the payment of costs, disbursements, and taxes, be distributed among the said heirs at law, according to their respective interests, as set forth in the master’s report' herein, of date January 27, 1917.</p> <p>cite: Deed was not voluntary: 34 Cyc. 929. ' Slightest value will give rise to consideration: 23 R. C. L.' 345; 10 Ann. Cas. 523. Effort of Courts of equity should he to effectuate intention of parties: 23 R. C. T. 326.</p>

<p>1. Carriers — On Transfer of Bill of Lading Running to Shipper’s Own Order Title Passes to Transferee. — Where a bill of lading is taken by the shipper making the goods deliverable to his own order, with instructions to notify another on arrival at destination and nothing appears to the contrary, the title to the goods remains in the shipper while they are in transit, and passes from him to his transferee of the bill of lading.</p> <p>2. Carriers — Owner op Goods Mat Divert Them in Transit. — The owner of goods in transit having the right to take actual possession of them at any intermediate point on the route may divert them at any such point while in transit, and it is the duty of the carrier to deliver them to him or divert them according to his orders on presenting evidence of ownership and paying the proper charges.</p> <p>3. Evidence — Parol Evidence Admissible to Explain Diversion Not Indorsed on Bill op Lading. — Where a shipper of two carloads of hay consigned them to his own order with directions to notify a third person, and then indorsed the bills to plaintiff’s assignor, who ordered a diversion of the goods, which diversion was made but not indorsed on the bills of lading which were returned to him and subsequently assigned to plaintiff, and it appeared that the party to be notified refused to accept the goods which were subsequently sold for charges, it was error to exclude parol evidence in an action against the terminal carrier as for conversion, where there was no showing that such carrier was a party to the original contract.</p> <p>4. Carriers — Delict Must Appear as Cause op Injury Before Damages Recoverable. — Before damages can be recoverad as for a conversion of property by a carrier, there must be some evidence from which an inference may be drawn that a delict is the cause of the injury.</p> <p>5. Carriers — Assignee op Bill op Lading Held Under Duty to Take Charge of Shipment Refused. — Where diversion of a shipment of hay was ordered, but not indorsed on the bill of lading, and the hay was not delivered, but sold for charges, the title of the assignee of the bill of lading became absolute on notice that the person to be • notified as indicated on the bill refused to pay a draft and take the hay, and it was its duty to pay the freight charges and take the hay, especially if the diversion was not the cause of tne refusal, and the carrier was not responsible therefor.</p> <p>6. Carriers — Carrier Need Not Give Notice to Assignee of Refusal to Take Goods Where Assignee Had Actual Notice. — The assignee of a bill of lading suing for conversion of a shipment of hay diverted according to orders from the assignor of the bill, without indorsement thereon, could not complain that defendant carrier did not give it notice of refusal of the person to be notified to accept the hay where it had notice of that fact from its own agent.</p> <p>Note. — On right of shipper to demand a redelivery of, or to divert the property at an intermediate point, see notes in 15 L. R. A. (N. S.) 756, and L. R. A. 1918b, 79.</p>

<p>Before McIver, ]., Darlington, Summer term, 1918.</p> <p>Action by John D. Tedder et al. against William Tedder, Jr., et al. From judgment for plaintiffs, the defendants appeal.</p> <p>cite :. Order of reference of Judge Spain having been set aside by this Court, it was error to hear the case on the testimony taken under such order of reference: 109 S. C. 457. Claims of homestead are superior and paramount to claim of rents and profits set up against such claims by the plaintiffs as tenants in common: 77 S. C. 112; 107 S. C. 364. Equitable interest in lands subject to ■right of homestead: 64 S. C. 82. Rents and profits due by one cotenant to another do not constitute a lien: 81 S. C. 282.</p> <p>cites: Circuit Judge within his discretion to recommit report of master for further testimony: 67 S. C. 151. Appellants cannot claim homestead exemption because they cannot carve such an estate out of respondents’ property: 14 S. C. 19. Distributee cannot claim homestead in his share against amount found due by him to the estate: 77 S. C. 112; 107 S. C. 364. A cotenant cannot carve an estate of exemption out of the rights of his cotenant: Ann. Cas. 1914b, 855; Ann. Cas. 1914b, 852; 33 Am. St. Rep. 228; 63 Am. Dec. 125. And are now precluded from setting tip a claim of homestead because they did not plead any such right: 70 S. C. 403. Where cotenants are well known and easy of access, and improvements are made by one without consultation with the others, they are made at the risk of the improving tenant: 24 S. C. 264. One cannot claim betterments when they would work inequity against another: 26 S. C. 39. In accounting for rents and profits, occupying tenant may be allowed as a set-off, not the cost of the improvements, but the increased value resulting from such improvements: 53 S. C. 353; 24 S. C. 265 ;■ 71 S. C. 127. Improvements must have been made tinder an honest belief that he had fee simple title: 21 S. C. 592. Where parties make improvements after action against them for possession for land, they have no right to the value of the improvements so erected: 18 S. C. 604. Within discretion of Circuit Judge to dispense with writ of partition: 1 Civ. Code 1912, sec. 3525.</p>

Before Moore, J., Marlboro, Spring term, 1919. Action by Marlboro Cotton Mills against B. E. Moore. Erom judgment for plaintiff, the defendant appeals. cite: Testimony as to speculator’s means competent for purpose of showing whether he intended to gamble on contracts: 8 A. & E. Enc. R. 1010, note 3; 97 Pa. St. 202; 89 Pa. St. 20; 3 S. W. Rep. 152; 7 Biss. (C. C.) 338. Facts that goods were sold “short” some evidence of intent: 8 A. & E. Enc. Raw 1011.

<p>Before PeuriEoy, J., Beaufort, October, 1919.</p> <p>Action by Walter E. Richardson against J. A. Cooler et al.; and four actions by W. R. Cooler et al. against Walter • E. Richardson. From order overruling a demurrer to the complaint in the first named action, and from orders sustaining demurrers to the complaints in the other four actions, the Coolers appeal, — the five cases being heard together.</p> <p>Mr. Heyward cites: Action brought under act of ipió (sp Stat. p28). Right to land implies right to profits accruing therefrom: 20 S. C. Eq. 354; 16 R. C. E. 665. And payment of renewals under lease to original lessor, who had parted zvith title, did not extend lease: 108 S. C. 325.</p> <p>cites: Lessee not prejudiced in absence of notice of conveyance by paying rent to lessor: 1 Civ. Code 1912, sec. 3512. Right to cut timber was a lease: 108 S. C. 324. Notice must be personal unless otherwise provided by law: 90 S. C. 549; 20 R. C. E. 343. Pendency of one suit between parties will not abate one subsequently brought unless there be substantial identity of parties: 1 Enc. PI. & Pr. 757, 758; 1 R. C. R. 13; 80 S. C. 64; 30 S. C. 501.</p>

<p>Before Moore, J., Richland, Fall term, 1919.</p> <p>Action by the State against the City of Columbia to recover taxes on certain property belonging to the city. From judgment for plaintiff, the defendant appeals.</p> <p>cite: Municipal property is not subject to taxation as there is no lazv taxing same: 30 N. J. Eq. 667; 84 Va. 906; 63 S. C. 70; 20 S. C. 118; 117 U. S. 152; 29 L. Ed. 845; 13 Rich. Eq. 56; Cooley Taxation (3d Ed.) 262-263-, 546; Const. 1895, art. X, sec. 3; art. X, sec. 5; art. VIII, sec. 6; 108 S. C. 244; 89 S. C. 511; 1 Civ. Code 1912, secs. 287,-293, 288, 295, 340; Dillon Mun. Corp. (5th Ed.), sec. 1396; 148 N. Y. 310; 80 S. E. 689; 81 S. E. 69; 62 S. C. 38. Property exempt as it is being used for public purposes: 12 S. C. 370; Dillon Mun. Corp. (5th Ed.), sec. 1397; 44 S. C. 319; 77 Me. 530; 81 S. E. 69; 80 S. E.-589; 43 S. C. 547; 73 S. C. 83; 89 S.-C. 511; Const. 1895, art. X, sec. 4; 1 Civ. Code 1912, secs. 294-473.</p> <p>cite: Provisions governing taxation: 1 Civ. Code 1912, secs. 287, 294; Const. 1895, art. X, sec. 4. Property of municipality not exempt as such, but only where used for public purposes and not for revenue: Cooley Taxation, 266-267, Use here was not for public purposes exclusively: 69 Tenn. 253; 14 S. W. 802; 124 Ill. 636; 17 N. E. 56; 47 S. W. 865; 50 N. E. 201; 113 N. Y. 645; 26 N. E. 431.; 81 Vt. 153; 69 Atl. 667. Use of theater by public was by permission, of lessee and not such public use as would exempt it from taxation: 68 N. Y. 552.</p>

<p>1. Judgment — Judgment Denying Recovery for Death Not Res Judicata in Action Under Survival Statute. — Judgment for defendant in an action by the administrator of one killed on a railroad’s track, brought in behalf of the beneficiaries under Lord Campbell’s Act, is not res judicata in a second action by the administrator under the survival statute for the injury to decedent, after which he lived some two hours.</p> <p>2. Death — Evidence of Suffering Sufficient to Take Question of Recovery Under Survival Act to the Jury. — In an action under the survival act for the suffering of one fatally injured on a .railroad track, evidence that deceased suffered after his injury prior to his death held sufficient to take the question to the jury.</p> <p>3. Death — Evidence of Negligence and Wilfulness Sufficient for Jury. — In an action under the survival act for suffering following fatal injury on a railroad track, evidence of defendant railroad’s negligence and wilfulness in operating train without signal and warning held sufficient to justify submission of those questions to the jury as grounds for recovery of actual and punitive damages.</p> <p>4. Railroads — Contributory Negligence of Pedestrian Entitled to Rely on Statutory Warning from; Train Held Question for Jury. —In an action involving the issue of contributory negligence of a pedestrian fatally injured at an obstructed crossing, whether the statutory warning from the construction train which struck decedent was given held a question for the jury.</p> <p>5. Railroads — Failure to Give Signals Presumed Cause of Injury.— Where the statutory signals are not given by a train, and one is struck on the railroad’s track, there is a presumption that the failure to give the signals was the proximate cause of the injury.</p>

Before McIvER, J., Barnwell, October, 1919. Action by Arabella Morris et al. against Rebecca M. Morris. From judgment for plaintiffs, the defendant appeals. cite: Complaint must distinctly aver every necessary fact, and if an express trust is alleged, it must be proved as alleged: 22 Enc.. PI. & Pr. 125, and footnote. Id. 128. Intention of person paying the consideration at the time of transfer governs: 15 A. & E. Enc. Raw 1137.

Before Wilson, J., Clarendon, Summer term, 1919. Affirmed as to defendant’s liability to plaintiff. Action by L,. S. Barwick against Northwestern Railroad Company of South Carolina and Atlantic Coast Cine Railroad Company, for loss of goods. Prom judgment for plaintiff against the defendants equally, the defendants appeal. cite: A. C. L. R. R. Co. furnishing terminal conveniences is not connecting carrier: 50 S. C. 130; 72 S. C. 44.

Before Whaeey, J., County Court, Richland, October term, 1919. Action by Mrs. Mattie Caldwell Livingston against the Union Central Life Insurance.Company £>f Cincinnati, Ohio. From judgment for defendant, the plaintiff appeals. The exceptions follow: 1. Because his Honor erred in charging the jury as follows : “Now, I have ruled that no fraud was in this case. There is no testimony of fraud in this case. It is a question of false misrepresentation.

Before Wilson, J., Bamberg, October, 1919. Action by Joel W. Wyman against Atlantic Coast Line Railroad Company, Walker D. Hines, Director General et al., for personal injuries. Prom judgment for plaintiff, the defendants appeal. O The exceptions directed to be printed follow: 1.

<p>1. Wn.iiS — Right to Remainder Vested at Death of Testator. — The remainder of a devise “to my husband, H., for the term of his natural life,” certain property “ * * * unless he marries again, when it is to become, without division, the property of J.,” vested in J. at the death of the testatrix the right to the remainder; possession alone being postponed.</p> <p>2. Wills — Personalty Dm Not Pass Under Devise op Property; “Tracts.” — Personal property did not pass under a devise of “the property on Ashley River called Middleton place, and the adjoining tracts;” tracts referring only to land, and not to personalty situated thereon.</p> <p>3. Perpetuities — Donations in Perpetuity Void Except to Charity.— Donations by will' of property in perpetuity, except for charitable uses, are void, as against public policy.</p> <p>4. PERPETUITIES' — -BEQUEST FOR UPKEEP OP PRIVATE CEMETERY Not FOR Charity.' — A bequest of property for the upkeep in perpetuity of an estate was not a bequest to charity, although there was a private cemetery on the place.</p> <p>6. Wills — Bequest Too Vague to Create a Trust. — A bequest, “whatever money or bonds remain after my legacies have been deducted, I desire that the funds shall be divided into two parts, one-Balf to keep up M. place, house and garden,” etc., held too vague and indefinite to be enforced as a private trust.</p> <p>6. Ci-iarities —■ Bequest Passed to Asylum for Blind Out op City Under Bequest to Asylum in City. — Under a bequest of property “to the asylum for the blind in Spartanburg,” the legacy went to an asylum for the deaf, dumb, and blind outside of, but near, the city; there being no asylum for the blind in the city.</p> <p>7. Wills — Diamond-Studded Watch Passed Under Bequest of “Jewelry,” and Not Under Bequest of “Diamonds.” — Under a will bequeathing the diamonds of the mother of testatrix to one person and testatrix’s jewelry to another, a watch studded with diamonds held to pass as “jewelry” and not as “diamonds.”</p> <p>8. Wills — Annuity Given by Way op Legacy. — An annuity may be given by way of legacy.</p> <p>9. Wills- — -Annuity Takes Precedence Over Residuary Legacy. — A simple bequest of an annuity will ordinarily take precedence over a residuary legacy.</p> <p>:0. Wills — Residuum op Money, Bonds, and Mortgages in Bequest Includes Property Added in Administration. — A residuum of “money, bonds or mortgages” in a bequest held to include, not only property of that kind on hand at the death of testatrix, but such as was on hand at that time, plus such as might be added thereto in the course of administration.</p> <p>XI. Wills — Intention to Die Entirely Testate Cannot Vary Construction. — The fact that testatrix did not intend to die intestate as to any of her property cannot vary the construction of the will, and cannot supply the place of an actual disposition expressed or reasonably to be implied.</p> <p>12. Wills — Intention Must Be Found in Wokds in Will. — The intention to which effect may be given in construing wills must be found in the words used by the testator, as otherwise the statute which declares that wills must be in writing would be violated, and previous declarations of testatrix of her intentions are incompetent to show intention.</p> <p>13. Executors and Administrators — Trusts—Dissension Among Execu tors or Trustees Not Ground eor Removal. — The mere fact that executors or trustees do not or cannot agree as to the administration of their trust is not sufficient ground for the removal of one or all • of them and putting the estate into the hands of a receiver, unless the dissension is carried to the extent of causing injury or loss to the estate, actually or reasonably to be apprehended.</p> <p>14. Executors and Administrators- — Coexecutor Entitled to Retain Custody of Securities in Possession. — Where there are coexecutors, each has the right to the custody and control of the securities, and, since more than one cannot have the actual manual custody thereof at the same time, the one who has that custody is entitled to retain it.</p> <p>15. Executors and Administrators — Innocent Coexecutors'Not Liarle' for Default.- — One executor will not be held liable for the default of another, unless he contributes to it in some way by some such negligent act or omission as will warrant the inference that he countenanced, connived at, or acquiesced in it, or negligently failed to take steps to prevent it after knowledge of the danger of it.</p>

Before SeasE, J., Richland, March term, 1919. Action by J. O’Neal Sandel, as Administrator of the Estate of Minnie and Thelma Sandel, Deceased, against the State of South Carolina. From judgment for defendant, the plaintiff appeals. Mr. Graydon cites: Deceased children under five years of age. conclusively presumed to be incapable of contributory negligence: 29 Cyc. 537; 11 S. C. 77.

Before Bowman, J., Dorchester, July term, 1920. Action by the Commissioners oF Public Works of the town of Summerville against Bank of Dorchester, for specific performance of a contract to purchase municipal bonds.

'Before Bowman, J., Hampton, October term, 1919. Action for partition by Lula Youmans et al. against B. B. Youmans et al. From directed verdict for defendants, the plaintiff appeals. cites: Conveyance to trustees for his daughter “during her natural life and after her death to the heirs of her body forever” created a life estate in her, the fee vesting in her children at their birth: 36 S. C. 38; 15 S. E. 278; 67 S. C. 130; 45 S. E. 137; 36 S. C. 354; 15 S. E. 339; 42 S. C.…

Before Moore, J., Richland, November, 1919. Action by D. Sam Cox against Enterprise Bank el al. From judgment in favor of the defendant, bank, the plaintiff and other defendants appeal. cite: Paper as security for a debt is a mortgage even though in form a deed: 1 Jones Mort. (3d Ed.), sec. 244; McMull. Eq. 1. Cox was a mortgagor and as such deemed the owner of the land: Sec. 3460, 1 Civ. Code 1912. In both iy S- C. 329, and 33 S. C. 511, the grantor was out of possession.

Before Si-iipp, J., Florence, June term, 1920. . G. W. Wagstaff and A. C. Hargrove, indicted for simple assault, and, upon conviction, appeal. cite: Distinction between an assault and a trespass on personal property: 31 S. C. L. (1 Strob.) 91. Verdict should be directed where determination of issues can only be by speculation: 72 S. C. 404. Mr. Gasque cites: Intent was for‘jury: 38 S. C. 348. Definition of assault: 1 Hill 46; 32 S. C. 27.

<p>Before Prince, J., Anderson, May term, 1920.</p> <p>Ira Dollis indicted for car-breaking and larceny and on conviction, appeals,</p> <p>cites: The crime and not the punishment, renders a man infamous: 15 S. C. 235</p>

<p>'\i>i>eal and Error- — Orjection That Trial Judge Misstated Issue Not Considered, Record Not Showing Orjection Below. — When the trial Judge misstates the issues, it is the duty of litigants to call his attention to that fact, and, if they do not, the error is not-reversible, so that- an exception to instructions because they submitted an issue-established by undisputed evidence cannot be sustained, where the record does not show that the attention of the Judge was called to the objection.</p>

Before Whaeey, J., County Court, Richland, August, 1920. Action by Daniel Gadsden against Sands & Co. Judgment for plaintiff, and defendant appeals. cite: Right to open and close in argument is material, and if improperly exercise'd, is reversible error: 5 S. C. 267; 35 S. C. 167; 2 Bay. 451; Rule 59 Circuit Courts. Rule applicable in all cases: 17 S. C. 484; 43 S. C. 547; 5 S. C. 418.

Before McIver, J., Aiken, Spring term, 1919. Action by Mrs. Theodocia Clark against H. H. Howard, as Sheriff, to recover possession- of certain chattels seized by defendant on attachment against plaintiff’s husband. On judgment for defendant, the plaintiff appeals. cites:, Acts and declarations of husband, without the presence of the wife, not in possession of the specific property levied on, are inadmissible to bind the -wife: 38 A. S. R. 44.

Before Rich, J., Williamsburg, Spring term, 1920. Action by Eleida V. Fulmore et al. against Troy P. Fulmore et al. From order overruling demurrer to the complaint, the defendants appeal. cite: Adverse possession by one cotenant against another cotenant for more than twenty years will raise presumption of ouster, and deed from other cotenant: 80 S- C. 110; 2 Hill Ch. 513; 91 S. C. 303; 50 S. C. 168; 26 S. C. 185; 48 S. C. 489; 48 S. C. 28; 40 S. C. 179.

Before Shipp, J., Florence, June term, 1920. George Mason indicted for murder and on conviction, appeals. No citations. cite: Magistrate must hold preliminary only when he has issued warrant: Crim. Code 1912, sec. 33. Coroner issued warrant under sec. 1317 Id'.; and carried out other requirements: Sec. 1018; sec. 1010; 1 Civ. Code 1912, sec. 1288. Defendant had time to prepare defense: 80 S. C. 332. Continuance discretionary: 93 S. C. 412.

Before Townsend, J., York, April term, 1920. Action by Beatrice Sadler against William Sadler for alimony. From order allowing temporary alimony and suit money, the defendant appeals. cite: Temporary alimony should not be allowed unless wife will probably succeed in her main case: 14 Cyc. 753. Grounds on which alimony will be allowed: 60 S. C. 447; 68 S. C. 124.

Before SeasE, J., Greenwood, April term, 1920. Action by Atlanta Casket Co. against John E. OuzD. Erom judgment for plaintiff, the defendant appeals. cite: Sufficiency of writing to take it out of the statute of frauds: 27 S. C. 348; 2 S. C. Eq. (3 DeS.) 171; 14 S. C. E. (3 McC.) 457; 86 S. C. 80; 29 S. C. 533; 25 S. C. E. (Cheves) 68; 106 S. C. 7; 13 Rich. Eq. 250; 28 S. C. Eq. (7 Rich.) 378; 73 Ga. 400; 54 Am. Rep. 879; 100 Ga. 645; 62 Am ' St. Rep. 345; 43 Me. 158; 69 Am.

Before Bowman, J., Clarendon, October term, 1920. Action by .C. M. Davis Son & Co. against Northwestern Railroad Company of South Carolina. From directed verdict for plaintiff, the defendant appeals. cite: Question of delivery is a mixed question of law and fact: 38 SC. 365.

<p>Carriers' — Carrier’s Right to Notice of Claim for Damages Held Not Waived. — Railroad did not waive its right to notice of claim for damages for shipment provided for by bill of lading, where it denied liability for such damages, and did nothing to mislead the shipper to its detriment or prejudice.</p> <p>Note. — For authorities passing on the question of waiver or extension of time stipulated in carrier’s contract for claim or suit against carrier, see note in L. R. A. 1916d, 1049</p>

<p>Before Sitipp, J., Florence, November term, 1920.</p> <p>Action by B. IT. Maynard against W. A. Campbell. From judgment for defendant, the plaintiff appeals.</p> <p>cite: Entry under a parol lease shall after twelve months have the effect •of an estate at will only: 60 S. C. 400. If he remain after first twelve months under circumstances permitting inference of tenancy from year to year, such tenancy runs to end of calendar year: 66 S. C. 170. Mere fact of continuance in possession after termination of lease not sufficient to create tenancy from year to year: 113 S. C. 212; 102 S. F. 16. Where there is no agreement for a new tenancy, the tenant holds as a tenant at will: 16 R. C. D. 1161.</p>

Before Wilson, J., Aiken, November term, 1919. cite: Duty to passengers at stations: 1 Civ. Code 1912> sec. 3225; 65 S. C- 1; 67 S. C. 65. Conductor has right to assume that each passenger knows her destination and will make reasonable efforts to alight on arrival: 65 S. C. 33; 5 A. & E. Enc. Raw 571; 78 S. C. 70; 4 R. C. R. 538. Injury due to plaintiff’s negligence she cannot recover: 51 S. C. 296; 53 S. C. 203; 72 S. C. 336.

Before Gary, J., Charleston, February term, 1920. The Charleston Bridge Company was convicted for not keeping its bridge in proper condition, and appealed from such sentence. (113 S. C. 116.) The case was remanded to the Circuit Court for the resentence of the defendant.

Before PeuriPoy, J., Jasper, July, 1919. Charles Ferebee indicted for selling intoxicating liquoi and on conviction, appeals. cites: Witness may be discredited by shotting inconsistence in testimony at this and at former trial: 40 Cyc. 2708; 34 S. C. 16. Conviction supported only by testimony of accomplice may be set aside: 16 Corp. Juris 714; 11 S. C. 275. All present aiding or abetting are principals: 79 S. C. 73. Corpus delicti must be shown: 57 S. E. 956 (Ga.).

Before Wieson, J., Aiken, Fall term, 1919. Amos Holmes indicted for the murder of his wi'fe, Dome Holmes, in 1903, and, upon conviction, appeals. The following is the Judge’s charge, referred to in the opinion of Chief Justice Gary: Mr. Foreman and gentlemen of the jury: The defendant, Amos Holmes, is on trial before you-on the charge of murder. The indictment charges that the murder was committed on the 21st day of February, 1903. That is a good many years ago.

Before Rice, T-, Aiken, May term, 1920. Elbert Williams indicted for housebreaking and larceny, and, upon conviction, appeals. cites: Charge was in violation of art. V, section 26, Const. 1895: 67 S. C. 218. cites: Proof of value is question of fact for the jury: 3 Hill 421; 6 S. C. 384. And Supreme Court has no right to disturb a finding on such fact: 35 S. C. 176.

Before Townsend, J., Richland, June term, 1920. Albert Wilson, convicted of the murder of B. B. Butler, and sentenced to death, appeals. cite: Charge did not sufficiently define malice: 2 Rich. 179; 73 S. C. 277; 68 S. C. 304; 79 S. C. 230; 72 S. C. 102. Judges shall declare the law: Constitution 1895, art. V, sec. 26; 68 S. C. 304; 91 S. C. 243; 73 S. C. 341; 77 S. C. 388.

Before SeasE, J., Spartanburg, July, 1920. Action by Young & Germany Co. against' Wofford Price and B. T. Price. From an order striking out defendants’ answer and giving judgment for plaintiff, defendants appeal. cite: Brankruptcy Court had jurisdiction: Collier on Bankruptcy (1917 Ed.) 28; 213 Fed. 514; Collier 287, 288; 143 Ga. 734. ■ Whole answer must be clearly frivolous to be stricken out: 37 S.' C. 606; 2 S. C. 422; 128 Fed. 179.

Before Memminger, J., Charleston, July 24, 1920. Action by John ,R. Campbell against the First National Bank of Charleston, Janie R. Raisin and Mary Razaras. .From judgment for defendants, Janie R. Raisin and Mary Razaras, the plaintiff appeals. cite: Bailment of a chose in action is not required to be recorded under the terms of section 3740, 1 Civil Code 1912.

Before Shipp, J. McCormick, October term, 1919. Action by J. T. Dillishaw and his wife, Mrs. Effie Dillishaw, against Dr. D. A. J. Bell. From judgment for plaintiff, defendant appeals. cite: Standard of care, skill and diligence required of physicians and surgeons: 22 A. & E. Enc. of Eaw 798, 808; 51* Me. 594; 81 Am. Dec. 388; 27 N. H. 460; 59 Am. Dec. 388; 72 Wis. 591; 7 Am. St. Rep. 900; 155 N. Y. 201; 63 Am. St. Rep. 655; 48 Am. Dec. 478; 93 Am. St. Rep. 655; 38 Am.

Before Townsend, J., Richland, • — -—• term, 1920. Action by Duncan S. McRae against S. F. Bowser & Co. From judgment for plaintiff, the defendant appeals. cite: Amendment to answer to conform io proof should have been allowed: Code Proc. 1912, sec. 224. Oral argument.

<p>Before Gary, J., Charleston, January term, 1920.</p> <p>Action by North State Lumber Company against Charleston Consolidated Railroad and Lighting Company for damages. From verdict for defendant, the plaintiff appeals.</p> <p>cites: Charge will he considered with reference to the case made: 21 S. C. 393. Proper disposition of requests to charge: 67 S. C. 181. Construction and force of city ordinance: 85 S. C. 455. Duty of motorman at a crossing: 102 S. C. 468. Unconscious invasion of another's rights may' be reckless: 92 S. C. 72. Right of appeal from refusal to charge as requested: 2 S. C. 235; 19 S. C. 20. Brror to charge on issues not raised by pleadings: 21 S. C. 400; 113 S. C. 495. Charge predicated on mistake in facts is prejudicial: 102 S. C. 54. Charge on difference in ease of control of automobile and street car •was on the-facts: 102 S. C. 54; 19 S. C. 606. Charge as to position of traffic policeman was on facts: 90 S. C. 409; 102 S. C. 488; 108 S. C. 390; 90 S. C. 414. Attempting to cross in front of car is not necessarily contributory negligence: 55 S. E. 1016. Charge which assumes a disputed fact is error: 96 S. C. 74; 102 S. C. 488. Duty of railway: 85 S. C. 455. Question is whether moto'rman- was exercising due diligence: 97 S. C. 61.</p> <p>cite: Substitution of Judge's own language in a request to charge is not erroneous: 106 S. C. 41; 103 S. C. 354; 106 S. C. 282. Where evidence is offered and admitted without objection on an issue not pleaded, it is not error to submit that issue to the jury: 81 S. C. 46. At crossing the greater the danger the greater the care: 22 R. C. R., secs. 250, 1018; 67 S. C. 347. Record shows no- prejudicial error: 93 S. C. 295; 93 S. C. 420; 103 S. C. 493; 78 S. C. 73. Whole charge not prejudicial: 97 S. C. 153; 98 S. C. 272. Inconsistencies not reversible error unless jury might have been misled: 99 S. C. 364.</p>

Before SeasE, J., Charleston, October term, 1920. Held: 93 S. C. 182. Limitation on the death of the first taker without children means his death zvhenever it may occur: 8 Rich. Eq. 259; 10 Rich. Eq. 394; 42 S. C. 436; 1 Hill Eq. 154; Rich. Eq. Cases 357; 5 Rich. Eq. 214. Limitation over is not void for remoteness: 1 Civ. Code 1912, sec. 3551; 6 Rich.

<p>Chattel Mortgages — Statute Des-ouhcistg Sale op Mortgaged Property Applicable to Junior Mortgage. — Cr. Code 1902, sec. 337, prohibiting the sale of property subject to “any mortgage” or other lien without payment of mortgage debt within 10 days after sale or disposal, or deposit of amount thereof with clerk of Court,” held applicable to a junior mortgage as well as to a senior mortgage.</p>

<p>Highways — Statutory Lien on Automobile Causing Injury Can Be Enforced Against Innocent Purchaser. — Under the act of'the legislature giving one who is injured by an automobile a lien upon the automobile for the damages thereby caused, the automobile can be attached in an action for injuries, though it had been sold to one who had no knowledge of the accident.</p>

Before Gary, J., Charleston, May, 1920. Action by the Trustees of' the Protestant Episcopal Church in South Carolina against the Church of the Messiah, North Santee, and William Lowndes. From order requiring the defendant, William Lowndes, to transfer to the plaintiff all property of the defendant church, William Lowndes appeals.

<p>1. Appeal and Eeeoe — Bepusal to Change Place op Tblal Not Distuhbed Ip Sustained on Any Gboúnd. — On motion to change the place of trial on the two grounds that county in which the action was brought was not the proper county, and that the convenience of the witnesses and the ends of justice would be promoted by the change, the Court’s refusal of motion will be sustained on appeal, if it can be sustained on either ground.</p> <p>2. Venue — Bepusal op Change poe Convenience op Witnesses Discbetionaey With Couet. — Where change of venue would not promote tlie convenience of witnesses and the ends of justice, a denial of motion to change the place of trial on the grounds that the county in which the action was commenced was not the proper county, and that the convenience of the witnesses and the ends of justice would be promoted by the change, was within the Court’s discretion.</p>

Before Shipp, J., Lexington, November term, 1919. Action by L. S. Trotti against J. E. Neams. From an order sustaining a demurrer to the answer and giving judgment for the plaintiff, the defendant appeals. The Complaint: The plaintiff, complaining,of the defendant, alleges : 1. That both plaintiff and defendant are residents of the county of Lexington, State of South Carolina. 2.

<p>1. Deeds — Presumption op Undue Influence Arises prom Relation op Parent and Child. — In a mother’s action to set aside a deed to her son, a Court ruling that there was no presumption of undue influence arising from the relation of parent and child, and that the burden of proof rested upon the plaintiff, was reversible error.</p> <p>2. Deeds — Evidence Held to Show Undue Influence. — In a mother’s action to cancel a deed to her son, evidence held to show undue influence.</p> <p>Note: On presumption and burden of proof as to undue influence respecting gift inter vivos from parent to child, sée note in 35 L. R. A. <N. S) 944.</p>

Before Whaley, J., County Court, Richland, June, 1919. Action by J. H. Faulk against Seaboard Air Line Railway Co. From order of nonsuit, plaintiff appeals.

Before Cijas. Carroll Simms, special Judge, Bamberg, April, 1920. R. O. Williamson indicted for the murder of W. H. Brabham. Upon conviction for manslaughter, the defendant appeals. cites: Continuance should have been granted on account of sickness of defendant’s wife, a material witness:113 S. C. 91; 50 S. C. 403; ...Comment of trial Judge on the facts improper: 47 S. C. 489; 50 S. C. 161; 49 S. C. 488; 51 S. C. 453.

Before Bowman, J., Calhoun, May term, 1919. Action by Lula Murph against Lincoln Reserve Life Insurance Company et al. From ■ directed verdict for defendants, the plaintiff appeals. cite: Liability of company on policy not actually delivered: 63 S. C. 198; 71 S, C. 360; 68 S. C. 391; 105 S. C. 305. Return of premium unavailing: 63 S. C. 198.

Before Townsend, J., Union, September term, 1920. John R. Wyatt indicted for violation of the prohibition law. From refusal of the presiding Judge to allow the plea of autrefois acquit, the defendant appeals. cite: Autrefois acquit: 1 Bail. R. 651. Ban on aleo-' holic liquors: Sec. 794 Crim. Code 1912. Procedure changed by XVIII Amend. Const.

<p>Husband-and Wife — Wife Held Not Blameless and Hence Not Entitled to Separate Maintenance. — A wife, to maintain action for alimony, must be blameless, must come with clean hands, and so may not recover though her husband struck her, when she in anger neglected to prepare supper, abused him, and showed willingness for' any sort of contest, when he sought peace, and, though he impugned her chastity, she intentionally making him suspicious, wher’eupon she left him; his treatment .of her as a whole being good and he from the first offering and continuing to offer to take her back.</p> <p>Note: On right of wife in fault for separation to separate maintenance, see note in 49 L. R. A. (N. S.), 86.</p>

<p>Sales — Whether Cancellation op Order Was Before Acceptance Question por Jury. — Whether letter of cancellation of an order for goods was received before the order was accepted held, under the evidence, a question for the jury.</p>

Before Witson, J., Bamberg, Fall term, 1919. W. I/. McPhail indicted for murder.. Upon conviction for manslaughter, the defendant appeals. The following are the exceptions which are directed to be reported: (1) Because his Honor erred in permitting the prosecuting witness, Mrs. Walker (now Msrs.

Before Rice, J., Aiken, May term, 1920. Mary Franklin and Ruby Collins indicted for. grand larceny, and, upon conviction, appeal.. cites: Indictment for grand larceny alleging ownership of stolen goods in a partnership without setting out names of partners is bad: 4 McCord 17; 3 S. C. 230; 77 S. C. 384; 17 R. C. b. 67; Wharton Crim. Proc., vol. II (Ed. 1918), sec. 862; 2 Hill 287. In 20 S. C. 392, indictment stated names of partners.

Before Bowman, J., Sumter, October, 1920. Action by Richard I. Manning against George D. Shore for specific performance of contract to purchase real estate. From decree for plaintiff, the defendant, appeals. The decree of the Circuit Judge was as follows : A tase agreed between the parties above named without action, dated the 29th day of April, 1920, and duly verified, has been submitted to this Court and the arguments of counsel thereon have been duly heard.

<p>Before Bowman, J., Barnwell, April term, 1920.</p> <p>Action by S. Poliakoff against American Railway Express Company. Erom judgment for plaintiff, the defendant appeals.</p> <p>The exceptions herein are as follows :</p> <p>(1) That his Honor erred, it' is respectfully submitted, in refusing defendant’s motion for a directed verdict for any. amount in excess of $50, on the ground that under the express receipt the liability of the defendant company, in case of loss, was limited to $50, and no more; the amount being based upon the rate charged and weight.</p> <p>(2) That his Honor erred, it is respectfully submitted, in failing to charge the jury at the request of the defendant as follows: “I charge you, gentlemen of the jury, that if the plaintiff is entitled to recover in this case, that he cannot recover an amount in excess of $50, for the reason that he agreed to this valuation at the time the shipment was turned over to the express company by failing to have the agent insert in the express receipt a greater value than $50, and in not paying an increased rate for a higher valuation.” In that the amount to be recovered was limited by the express receipt in case of loss and was the contract between the parties.</p> <p>(3) That his Honor erred, it is respectfully submitted, in allowing the witness, Poliakoff, to answer the following question over the objection of defendant’s attorney:</p> <p>“Q. At the time that you sent it back did you tell them what was in the package? Mr. Blatt: If the Court please, the express receipt is the best evidence. Witness: It was marked on the package to the Knickerbocker Clothing Company and that it meant it was clothing, of course. Mr. Blatt: We object to the witness stating all of that. The express receipt is the best evidence and we think the Court ought to make counsel produce it. We object to it. The Court: Go ahead, Mr. Ninestein, we will strike it out later if we find it is not proper.”</p> <p>” In that it attempted to allow the plaintiff to testify as to the valuation of the package, and allow the plaintiff to vary and contradict the terms of the express receipt, which was the only contract between the parties.</p> <p>(4) That his Honor erred, it is respectfully submitted, in allowing the witness, Poliakoff, to testify as to the value being placed on the package at the time it was delivered to a negro porter, employed by the agent as a driver, for shipment, in that it attempted to vary and contradict the terms of the express receipt and in attempting to place a value on the package other than that which was stated in the express receipt.</p> <p>(5) That his Honor erred, it is respectfully submitted, in charging the jury as follows : “The plaintiff must make out his case by the preponderance or greater weight of the testimony. It is on the express company to show that the agreement was made. That is the burden on them.” In that it misled .the jury and made them believe that under the law the express company, defendant in this case, would have to establish this agreement by the greater weight or preponderance of the testimony, when, as a matter of fact, the burden of proof was upon the plaintiff to establish by the greater weight or preponderance of the testimony that the valuation was the amount as alleged by them in their complaint.</p> <p>(6) That his Honor erred, it is respectfully submitted, in failing to direct a verdict for the defendant for ány amount in excess of $50, in that under the law and testimony as was had at the trial of the case, the defendant was entitled to a direction of a verdict for any amount other thap that covered by the contract between the parties, which in this case was the express receipt, and which limited the amount to be recovered in case of loss to $50.</p> <p>cite-: Presumed that rate is proper and lawful: 237 U. S. 94. Bill of lading and filed tariffs conclusive as to damages recoverable: 227 U. S. 639; 241 U. S. 319; 61 L. Ed. (U. S.) 990; 244 U. S. 58; 96 S. E. 712. Acceptance of receipt established a prima facie agreement to limit liability: 100 U. S. 24; 25 Am. St. Rep. 660. And became binding on plaintiffs 96 S. E. 713; 242 U. S. 148; 244 Ú. S. 58. Presumption that carrier is conducting business lawfully: 242 U.^ S. 148. Shipper should not be allowed the benefit of a lower rate and demand more than the limited, damages agreed upon: 244 U. S. 995.</p> <p>cites: Shipper must consent to limited liability: 86 S. E. 22, 23. Question of agency for jury: 101 S. E. 860. Burden on carrier to show assent of shipper to limited liability: 64 S. E. 385; 53 S. E. 480. Difference in the facts of pó S. U. fi2.</p>

Before Bowman, J., Barnwell, April, 1920. Action by S. Poliakoff against American Railway Express Company. Erom judgment for plaintiff, the defendant appeals. cite: Presumed that carrier is conducting its business lawfully: 241 U. S. 319; 342 U. S. 148; 244 U. S. 58. And that tariff is filed with I. C. C., and shipper is bound by its limitations: 233 U. S. 97. And that shipper knew the lawful rate: 237 U. S. 94; 226 U. S. 491.

Before MemminGER, J., Laurens, Spring term, 1920. Action by J. C. Harper and R. G. Harper, partners as Overland-Harper Co., against John Abercrombie. From judgment for defendant, the plaintiff appeals. cite: Testimony contradicting the face of the mortgage was incompetent: 97 S. C. 136. Deed absolute cannot be shown by parol to be upon a condition: 58 S. C. 125; 27 S. C. 348. Registration of mortgage as notice: 1 Civ.

Before Gary, J., Charleston, April, 1920. Action by Robt. B. Gilchrist against the City Council of Charleston for damages. From order overruling demurrer to the complaint, the defendant appeals. cites: Auto contest in 106 S. C. 255, was with knowledge and consent of coun* cil. If police officers undertake to suspend an ordinance they act outside the scope of their authority and the city is not liable: Dabatt Master and Servant, par. 2285; 72 S. C. 205; 37 S. C. 198; 47 Am.

<p>1. Habeas Corpus — Court Has Jurisdiction- to Give - Child’s Custody to Nonresident Guardian. — In habeas corpus proceeding, a contention that the Court had no jurisdiction to. award a minor child’s custody to one residing beyond the jurisdiction is untenable, and, although wards should not be carried beyond the jurisdiction without the Court’s consent, such consent is necessarily, implied where the Court knew that the guardian resided without the jurisdiction.</p> <p>2. Habeas Corpus — Matter Not Raised in Lower Court Need Not Be Considered on Appeal. — Upon appeal in a habeas corpus proceeding, whether the minor child’s guardian living outside the Court’s jurisdiction should have been required to give a bond for the child’s return on proper occasion and demand, does not arise where not asked of the lower Court,</p> <p>3. Habeas Corpus — Court May Permit Guardian to Take Minor Beyond State. — The power of the Court over a ward is paramount to that of the parents and includes power to send such minor child or permit him to be taken beyond the State by his guardian, and such does not constitute a banishment.</p> <p>4. Habeas Corpus — Giving Bond rm Child’s Return to Jurisdiction in Court’s Discretion. — Whether the Court awarding a child’s custody to a guardian living outside the State should require a bond for the child’s return on proper occasion and demand is a matter of discretion, since otherwise the Court might be prevented from doing what is best for the child, as the guardian, being a stranger, might be unable to furnish the bond.</p>

Before Sease, J., Laurens, April term, 1920. Action by Columbus Hughes against H. L,. Blakeley. This is an action on a share cropper’s contract, whereby plaintiff agreed to perform labor on defendant’s farm for a specified period in consideration for a- share of crops grown on such farm and gathered by plaintiff. Plaintiff alleged that' defendant breached the. contract and prayed for an accounting.

Before Memminger, J, Anderson, April term, 1920. Action by Mrs. A. A. Cabe, as Admx. of Marinda Bradley, deceased, against R. S. Ligón et al., partners as Ligón & Ledbetter, and the Petroleum Oil Co; From order overruling demurrer to the corpplaint, the defendants appeal. cite: Action was one ex contractor. 108 S. C. 72; 21 Ene. P. & P. 659; lb. 650; Bliss Code PI, sec. 153; 78 S. C. 163. Act makes distinction betzaeen illuminating and heating oils: 28 Stats. 204.

Before WhaeEy, J., County Court, Richland, December, 1919. Action by Enterprise Bank against Wm; H. Lyles. Erom judgment for plaintiff, the defendant appeals. The note dated July 6, 1914, on which suit was brought \vas as .follows: $1,250. Charleston, S. C., July 6, 1914.

Before Mauldin, J., Greenville, Summer term, 1919. Action by Ellison A. Smyth against Geo. W. Bruns'on, Jr., B. H. Peace and Thomas Harrison, for deficiency in frontage of a city lot. Prom decree for defendants the plaintiff appeals. The decree of the Circuit Judge was as follows: This case came before me for trial upon exceptions by the defendants to the report of the master, to whom all issues of law and fact were referred.

<p>1. Master and Servant — Excessive Speed op Train Held Not Proximate Cause op Servant’s Injury. — Where a yard conductor attempting to operate an engine with a leaky throttle stopped on a sidetrack, and by reason of the defect the engine moved into a passing trgin, the excessive speed of the train was not the proximate cause of his injury.</p> <p>2. Commerce — Yard Conductor Held Not Within Federal Act.— That a yard conductor had been operating an engine switching cars loaded with interstate freight and empties destined to points beyond the State, which movements had been completed before his injury in a collision, and his next movement would have been moving an empty for express people, was not enough to bring him within the Federal Employers’ Liability Act (U. S. Comp. St., secs. 8657-8665), even if such empty was to carry interstate freight.</p> <p>3. Master and Servant — Assumption op Risk by Yard Conductor Operating Defective Engine Held Question for Court. — In an action by a yard conductor injured while operating an engine with a leaky throttle, causing the engine to move after he stopped it in a sidetrack to let a train pass, evidence held insufficient to present a question for the jury as to whether he knew of the defect and appreciated the danger.</p> <p>4. Master and Servant — -Railroads—Yard Conductor’s Violation op Rule Held Available Depense. — A yard conductor, though injured as a result of the railroad’s violation of the Federal Boiler Inspection Act (U. S. Comp. St., secs. 8630-8639). as amended by Act March 4 1915 (U. S. Comp. St., secs. 8639a-8639d), in furnishing a defective engine which he attempted to operate in wilful violation of a rule forbidding his operation of engines, is not entitled to recover; his conduct in violating the rule being available as defense, whether it be called negligence or assumption of risk, referred to in Employers’ Liability Act, secs. 3, 4 (U. S. Comp. St., secs. 8659, 8660).</p>

Before Bowman, J., Aiken, Spring term, 1920. Action by T. L. Foreman against Augusta-Aiken Railway and Electric Corporation. From judgment for defendant, the plaintiff appeals. The exceptions directed to be reported were as follows: (3) The Court erred, it is respectfully submitted, in ruling out the question asked by appellant of the defendant’s superintendent of construction work, as follows: Q. You know that Elroy Smith is an engineer? A. Yes, sir.

Before Bowman, J., Orangeburg, May, 1917. George Sweet indicted for the murder of Robert Wallace. Upon conviction for manslaughter the defendant appeals. cites: Rule as to granting of new trial on ground of after discovered evidence : 33 S. C. 404; 74 S. C. 568; 106 S. C. 437. Oral argument.

Before McIver, J.,. Richland. April, 1920. Action by H. McKay Miller against George Goodwin. From order overruling mbtion to correct taxation of costs, the defendant appeals. cites: Reversal ■of order confirming sale involved setting aside entry of judgment with costs: 18 S. C. 555; 21 S. C. 340; 23 S. C. 120. Circuit Judge should have ordered taxation made: 73 S. C. 20. Taxation must await final judgment when circuit decree has been reversed): 35 S. C. 165.

Before McIver, J., Dillon, April, 1920. Action by Neill E. McQueen against Sovereign Camp W. O. W. on an insurance certificate. From judgment for plaintiff the defendant appeals'.

Before Whaley, J., County Court, Richland, November, 1919. Action by N. J. Frederick and others against T. W. Brown, Grand Chief of State Grand Lodge No. 4, Independent Order of Good Samaritans and Daughters of Samaria, for an injunctioin. From order refusing to grant the injunction and dissolving the temporary restraining order the plaintiffs appeal.

<p>Attachment — Insufficiency of Affidavit Waived by Reliance on Objection That Claim Not Just. — Insufficiency of affidavit for attachment was waived by defendant serving sheriff with notice and affidavit that the amount claimed by the plaintiff was not justly due.</p>

Before Mauldin, J., Beaufort, April, 1921. Action by F. W. Scheper, in his own right and as Executor of the Will of F. W. Scheper, Dec’d, et al. against Lee Marscher Scheper et al. From an order sustaining a demurrer to a part of the complaint interposed by W. R. Tindall, the plaintiffs and the other defendants appeal. cite. Complaint stated only , one cause of action and a demurrer to a part only thereof will not lie; 64 S. C. 389.

Before Sfasf, J., Baurens, May, 1920. Action by Oxweld Acetylene Co. against S. J. Davis. Prom a directed verdict for plaintiff the defendant appeals. cites: Duty of seller im breach of contract by buyer: 2 Benj. on Sales, Sec. 1165; 81 S. C. 10; 28 S. C. 230; 74 S. C. 206; 37 S. C. 7. Buyer never accepted goods: 85 S. C., 15 S. C. 123.

<p>Telegraphs and Telephones — Telegraph Company Liable Eor Messenger's Indecent Proposal.- — A telegraph company through which plaintiff’s husband sent money to plaintiff was liable for the act of its messenger, delivering the money, in making an indecent proposal to plaintiff.</p>

Before Shipp, J., Saluda, December term, 1919 Action by James P. Derrick against Sovereign Camp W. O. W. for damages for injuries sustained at an initiation ceremony. From judgment for plaintiff the defendant appeals. cite: Subordinate body cannot waive provision of laws and. Constitution of the Association: 1 Civ.

Before Mendel L. Smith, Special Judge, Sumter, April, 1920. Action by F. A: Wells against Dr. F.K. Holman. From order requiring the defendant to produce his books and papers, the defendant appeals.

Before SeasE, J., Spartanburg, May term, 1920. Action by Prances West against Sovereign Camp, Woodmen of the World. From a directed verdict for defendant the plaintiff appeals. ' cite: Local clerk was agent of Sovereign Camp : 1 Civ. Code 1912, Sec. 2770; 102 S. C. 393; 107 S. C. 291; 206 S. W. 971 (Tex.) Sovereign Camp estopped by conduct of its agent: 102 S. C. 393; 206 S. W. 973 (Tex.) cite: 95 S. C. 66; 102 S. C. 392 not applicable.

<p>Before Mauedin, J., Georgetown, November term, 1919.</p> <p>Action by W.- J. Jumper against Queen Mab Lumber Co. From judgment for defendant the plaintiff appeals.</p> <p>The decree of the Circuit Judge was as follows:</p> <p>This case was instituted in the Court of Common Pleas for Aiken county, but, on motion, Hon. H. F. Rice, by order dated August 19, 1919, changed the venue to Georgetown County, and the entire record therein was transferred to that county.</p> <p>The complaint alleged that the defendant; on October 17, 1917, agreed to sell in fee, for $5,000, to the plaintiff, a tract of land in Aiken county, containing 498.8 acres; that the contract was broken by the defendant; and that the plaintiff was entitled to the sum of $4,960, the difference in the alleged value of the land and the contract price. The defendant answered, admitting the formal execution of the alleged contract, but' alleging that the same was executed in error and mistake, both parties intending to contract only as to certain timber and timber rights on said land, this being the true agreement, and both parties well knowing that the defendant did not own the fee; that if the contract be reformed so as to express the true intention of the parties, and so as to cover the timber and the timber rights owned by the defendant on the said tract of land, that it was ready and willing to carry out the same on its part. There were other defenses, but the conclusion I have reached renders a consideration of them unnecessary.</p> <p>A consent order was passed by me at the Novémber, 1919, term of Court for Georgetown County, whereby a jury trial was waived, the cause transferred to Calendar No. 2, and referred to Arthur R. Young, Esq., of Charleston, S. C., as special referee, .to take testimony on all issues, legal and equitable, arising therein; and to report the testimony so taken to me as presiding Judge, and that if said report should not be filed in time for a hearing at said term, the cause should be marked “Heard” and argument should take place at such time and place as might be subsequently agreed upon. This order further provided that, by reason of the short period of time remaining under the timber deed within which to cut and remove the timber, that the said timber be sold at such price as might be agreed on by proceeds deposited at interest to await the final determination of the Court and its further orders — said sale to be without prejudice to the rights of either party to the cause, the proceeds of sale standing in lieu and stead of the timber and timber rights aforesaid.</p> <p>Subsequently, on petition of the defendant, I passed an order, dated April 17, 1920, authorizing the defendant to accept an offer of $5,000 cash, made by Earr-Barnes Lumber Company to it, and to convey the said timber and timber rights to the said Earr-Barnes Lumber Company and deposit the proceeds of sale at interest according to the provisions of said order, in the event that the plaintiff did not, within 10 days from the service of a copy of said order on his attorney, avail himself of certain options which I allowed him and which are fully set forth in said order.</p> <p>The defendant subsquently reported that a copy of the said order was duly served on the attorney for the plaintiff, that the options therein contained were not exercised by the plaintiff, and that pursuant to the requirements of the said order it conveyed the said timber and timber rights to the said Farr-Barnes Lumber Company and deposited the purchase price of $5,000 in the savings department of the Bank of Summerville, at interest, to the credit of this case, and subject to, and to await the final determination of the Court' and its further orders in this cause.</p> <p>- The report of the special referee not coming in before the adjournment of the Court as aforesaid, the case was marked “'Heard.” The special referee took all testimony offered on behalf of both parties, reported the same to me, and the cause has been fully argued before me.</p> <p>I have carefully considered the testimony and the authorities bearing on the questions involved. The testimony clearly and fully shows, and so as to leave no doubt in my mind, that the alleged contract involved in this case was executed in mutual mistake, neither party intending- that it should cover the fee, and that their minds have never met on such a proposition; but, on the contrary, that the parties intended only to contract as to the timber and timber rights on the said tract of land. The alleged contract should, therefore, be rescinded and set aside and the parties left in the same status they were in before the execution of the same.</p> <p>The defendant, however, offers to perform the contract, if it be reformed so as to cover the timber and timber rights only. While I am satisfied of my power to rescind the alleged contract for the reasons given, I am not so sure that the cases would support me in reforming the contract, and m requiring the plaintiff to perform the same as so reformed, nor if I had the power would I care to so exercise it in this case.</p> <p>The $50 paid to the defendant by the plaintiff when the alleged contract was executed should be returned by the defendant to the plaintiff, but as it has been fully established that the plaintiff prosecuted this case well knowing that the contract he relied on was not enforceable, he should be charged with thé costs.</p> <p>It is therefore ordered, adjudged and decreed that within 20 days from the date of this order the defendant do pay to the plaintiff the sum of $50.</p> <p>It is further ordered, adjudged and decreed that the Bank of Summerville, upon presentation to it of a certified copy. of this order, do pay over to the defendant, Queen Mab Lumber Company, the fund of $5,000, with any interest earned thereon, now held on deposit by it to the credit of this cause.</p> <p>It is further ordered, adjudged and decreed that the plaintiff do pay the costs and disbursements (i. e., costs paid) of this case.</p> <p>T. J. Mauedin, Circuit Judge.</p> <p>cites: Cancellation. of executed contract should not be decreed except in a clear case on strong and convincing evidence: 9 C. J. p. 1254, Sec. 195 ; 21 S. C. 231; 1 Hill Eq. 167; 9 S. C. 20; 46 S. C. 229; 2 Strob. Eq. 154; Bail. Eq. 494; 100 S. C. 161; 69 S. C. 91; 53 S. C. 36; 108 S. C. 417; 100 S. E. 573; 83 Fed. 437. Nor is bad bargain an excuse: 100 S. E. 541. Rescission of contract demands restoration of former status of parties: 56 S. C. 508; 13 C. J. 618, Sec. 678; Id. Secs. 674, 657, 258, 265, 263, 301; 6 R. C. L., Sec. 319.</p> <p>cites: Distinction between mutual and unilateral mistake. 2 Strob. Eq. (21 S. C. Eq.) 148; 21 S. C. 231. Relief 'will be granted where there is mutual mistake: 24 A. & E. Enc. Law! (2nd Ed.) 618, 648; 5 L. R. A. 152; 49 S. C. 230.. -To warrarü recission proof must be clear and convincing: 1 Rich. L. (30 S. C. L.) 101; 100 S. C. 157; 55 S. C. 32. This being law case decision of trial Court is final as to fads: 2 Bay (2 S. C. L.) 11; 2 Hill (21 S. C. L.) 657. If it be held that this was an equity cause evidence fully supports findings: 91 S. C. 437; 100 S. C. 157. Inadequacy of price a material fact: 24 A. & E. Enc. Law, 652; 1 Des. Ch. (1 S. C. Eq.) 250; 5 Peters 264; 8 L. Ed. 120.</p>

Before Moore and McIvEr, J-, Richland, fall term, 1919, and spring term, 1920. Action by G. Duncan Bellinger, Judge of Probate for Richland county, against United States Fidelity and Guaranty Co. on a surety bond. From order striking out certain allegations in the answer, and from judgment for plaintiff, the defendant appeals. cites : Duty of principal and surety: 21 R. C. D. 1000. Surety had right to be heard as to defaults of principal: 22 S. C. 428; 7 S. C. 209; 7 Rich.

Before SeasE J., York, March, 1920. Action by J. D. and J. H. Smith against J. H. Bankhead, agent in claim and delivery. From judgment for defendant the plaintiff appeals. cite: Rent payable in crops, and no time specified, is due at end.of the rent period, or within a reasonable time after crops are harvested: 24 Cyc. 1170;' 16 R. C. T. 928-9.

Before Bowman, ]., Orangeburg. May term, 1919. Elijah Douglas and Otis Douglas indicted for the murder of Fuller Sanford. From a verdict of guilty with recommendation to mercy as to Elijah Douglas, and of manslaughter as to Otis Douglas, the defendants appeal. cite: Testimony as to conspiracy between deceased, apd others admissible: 5 R. C. F. 1087; 5 Ann. Cas. 976 and note.

Before Townsend, J., Sumter, Spring term, 1919. Affirmed as to actual damages. Action by J. A. Calhoun as Administrator of the estate of J. A. Calhoun, Jr., against Southern Railway Co. et al. Judgment for plaintiff and defendants appeal. cite: Suit brought under Sec. io, Act of Congress March 21, 1918, and before G. O. No. 50 of the Director General was issued. G. O. No. 50 has force and effect of a law:! 12 S. C. 407; 99 S. E. 846.

Before Whaley, J., County Court, Richland, 1920. Action by Albert Walker against Robert F. Fee and John Edwards for personal injuries. From judgment for plaintiff the defendants appeal. cite: Statutory regulation of traffic: Sec. 617 Crim. Code 1912; Sec. 2157, 1 Civil Code, 1912. Even if defendant is violating law of the road the plaintiff cannot recover if he could have avoided the collision by the exercise of due care: Thomp.

Before TownsEND, J., Berkeley, December, 1919. Action by Sam Mitchum against Seaboard Air Dine Railway for fire damage. Prom judgment for plaintiff the defendant appeals. cite: Action under Sec. 3226, 1 Civil Code: Testimony of sparks from a locomotive “not long” before the fire inadmissible : 87 S. C. 178.

<p>1. Jury — Held Not Error For Tile Court to Refuse to Ask Juror From What Part of the County He Came. — In a criminal prosecution, it was not error for the Court to refuse to ask each juror what part of the county he was from, because requested by defendant’s counsel to do so, on the ground that there was a prejudice against defendants’in certain parts of the county.</p> <p>2. Criminal Law — Witnesses—Defendant Must Move to Strike Out Objectionable Answer; Asking Defendant Witness About Former Conviction Held Proper to Test Credibility. — Under Cr. Code 1902, § 64, in a prosecution for burglary, it was proper to ask one of defendants, a witness, if he had been convicted for housebreaking prior to such time, and for the Court to rule such testimony admissible for testing the witness’ credibility; and if defendants’ counsel regarded the answer as inadmissible or not responsive to the ruling he should have moved to strike it.</p> <p>CRIMINAL Law — Confession Held Inadmissible Because Obtained by Threats and Violence. — In a prosecution for burglary, evidence held to show that defendant’s confession was extorted ..by threats and violence, so that the presiding Judge erred in ruling that the confession was voluntary. CO .</p> <p>Note: — As to the admissibility of confessions obtained by means oi threats, see notes in 18 L. R. A. (N. S) 833; 60 L. R. A. (N. S) 1077»</p>

Before Townsend, J., Richland. May term., 1919. Action by E. R. Roberts against Columbia Railway and Navigation Co. for personal injuries. From judgment for plaintiff the defendant appeals. cite: Plaintiff assumed the risk: 80 S. C. 232, 61 S. E. 391; 18 R. C. R. 676. Intervening cause: 101 S. C. 62-3. Plaintiff was not in such imminent peril as to warrant his leaving the drifting boat: 18 S- E- 748-52.

Before SeasE, J., Union. Appeal from an order allowing interest on attorney's fees of AVallace & Barron and Geo. S. Mower fixed by decree of the Probate Court. cites: Attorneys’ fees do not bear interest .until reduced to judgment: 55 S. C- 322. Judgment must be, enrolled: Code Proc. 1912. Sec. 73; 1 Civ. Code. 1912, Sec. 2516. No execution could be issued: Code Proc. 1912, Sec. 75; 30 S- C. 421..

Before Wfialey, J.; County Court, Richland. Action by Mrs. C. M. Lee against the City Transfer and Baggage Co. and Walter Wise for loss of baggage. Rrom judgment for plaintiff the first named defendant appeals cite: Estoppel of principal to deny agency can only arise after knowledge: 31 Cyc. 1242, 1237. Liability will be predicated upon a previous authorisation or a subsequent ratification: 20 Mo. App. 577.

<p>Before Wilson, J., Aiken, November, 1919.</p> <p>Action by S. Son against Western Union Telegraph Co. From judgment for plaintiff the defendant appeals.</p> <p>cite: Message was an interstate transaction: 110 S. C. 169; 96 S. E. 248; 18 Fed. 10; 9 Sawy. 2.53; 187 U. S. 617; 236 U. S. 568; 59 E. Ed. 721; 91 s’. E. (Va.) 157; 98 S. E. (Va.) 645; 204 S. W. (Kan.) 818. Contrary decision of N. C. Court (100 S- E. 351) now on appeal to U. S• Supreme Court. Being an interstate transaction there can be no recovery for actual or punitive dannages: 110 S. C. 169; 108 S. C. 502. Stipulation in contract limiting recovery to $go was binding: 112 S. C. 11; 99 S. E. 759; 233 U. S. 97; 241 U. S. 318; 156 Pac. 493: Charge was on facts: 85 S. C. 265. Verdict should have been directed on punitive damages: 84 S- C. 277. Company had no notice of private arrangement addressee had: 73 S- C. 218. Pears and apprehensions of plaintiff were not proximate result of defendant’s alleged default: 70 S. C. 418. Plaintiff suffered no mental anguish as defined in 81 S. C. 235.</p> <p>In reply': Dickerson Case (74 So. (Miss.) 799) nowon appeal to U■ S. Supreme Court. And that Court has reversed a similar decision of the Mississippi Court: 40 Sup. Ct. 69; which reaffirms 154 U. S- 1. The Boegll case (115 N. E. (Ind.) 773) has been reversed: 40 Sup. Ct. 167, as has the Speight case (100 S- E. (N. C.) 351;; 254 U. S. 17.</p> <p>cites; -Ample evidence to go to jury on punitive damagess 88 S. C. 14; 90 S. C. 308; 92 S. C. 76. On intrastate messages carrier not allowed to limit its liability from negligence: 71 S. C. 509; 75 S. C. 528. Jones Tel. & Tel, Sec. 376; 375 to 408; 201 S. W. (Ark.) 273; A. & E. Ann. Cas. 1912a-55. Limitation of liability for a reduced rate does not apply to Telegraph Company: Jones, Sec. 381; 218 U. S. 406. Many States have held that carrier did not have power to classify messages and) limit liability: 20 (S. W. (Ark.) 273; 74 So. (Miss.) 779; 75 So. (Ala.) 393; 191 S. W. (Tex.) 192; 71 S. O- (Ala.) 183; 115 N. E. (Ind.) 773; 196 S. W- (Tex.) 516. Cannot contract against willfulness: 105 S. C. 287; 203 Fed. 140. Message between two points in a State is intrastate message: 180 S- W. (Ark.) 504; 104 N. E. (Ind.) 771; 100 S- E. (N. C.) 351; 101 S. E. 81 (N. C.;) 93 S- E. (N. C.) 467; 31 Stats. 651: Rule as to freight was made because of the necessity of shipment through another State: 29 S. C. 510; 81 S. C-171; 81 S. C. 163; 92 S. C. 46.</p>

Before.Rice, J., Barnwell. May term, 1920. Bill Hartley indicted for manufacturing and having in his possession illicit liquor, and on conviction appeals.

Before W- C. Cothran, Special Judge, Allendale, special June term, 1920, and Rice, J-, Allendale, June term, 1920. Three cases tried together. Indictment against Cattie Dix, Lillie Stoney and Jim Harley, Capers Boynton and Ossie Gray for violation of the prohibition law.

Before Rice, J., Orangeburg, October term, 1919. Action by W C. Boyleston against Seaboard Air Tine Railway Co. and Joseph W. Cooper, its section foreman, for trespass in laying a side track. After verdict of a jury on issues submitted and decree thereon, the defendants appeal. cite: No abandonment by Railway of its right of way: 109 S. C. 444; 80 Va. 211; 17 S. E. 868 and 39 S. E. 701, and 90 Va. 211. In reply.' Case docketed on Cal. 1 under Sec. 310, Code Proc.

<p>1. Criminal Law- — -Exception to Argument oe Solicitor Held Not to Avail Dependant. — In a prosecution for murder resulting in a conviction of manslaughter, defendant’s exceptions based' on the solicitor’s argument to the jury that a report in the community, started by defendant, that deceased had been in defendant’s watermelon patch at some time prior to the immediate difficulty, operated to deprive defendant of the right of self-defense, held not availing to defendant, because assuming the fact that the accusation of deceased by defendant was without intention or expectation of provoking a difficulty; such issue was to be determined .by the jury, and not by the Court.</p> <p>2. Homicide — Instruction Giving Example of Manslaughter Not Misleading. — In a prosecution for murder resulting in a conviction of manslaughter, instruction giving the jury as an example of manslaughter a killing under provocation of an assault, held not erroneous, there being no reasonable supposition that the allegations in any manner misled the jury.</p> <p>3. Homicide — Instruction Thm Self-Defense Not Available to Person Who Provokes Difficulty by Opprobrious- Language Not Erroneous. — In a prosecution for murder resulting in a conviction of manslaughter, instruction that the true rule is that self-defense is not available to a person who uses language so opprobrious as to be calculated to bring on a difficulty, and which does actually contribute to the bringing on oí a physical encounter, etc., héld¡ not erroneous.</p>