Volume 116 — South Carolina Reports

Before Rice, J., Bamberg, March, 1920. Action by Rheta Baring Hunt as administratrix D. B. N. of the estate of N. A. Hunt, deceased, against Florence Goodrich Hunt, J. A. Guerin and John F. Folk.

Before Bowman, J., Allendale, February term, 1920. Action by J. R. Bradley and others against Belle Bradley Calhoun. From a directed verdict for defendant the plaintiffs appeal. cite: Purchaser at Judicial Sale must make inquiry as to jurisdiction of Court and whether parties zvere before it: 16 S. C. 281, 282; 37 S. C. 77. And is charged with notice of all records in the Court, and all defects that appeared in those records: 14 S* C. 312; 12 S. C. 142.

Before Rice, J-, Sumter, April term, 1920. Action by the City of Sumter against United States Fidelity & Guaranty Co. and Geo. W. Waring on a surety bond.

Before McIver, J., Marlboro, May, 1920. Action by Mrs. Elizabeth Newton, Mrs. Katherine Teague and Mrs. Nora Jane Peele against Julian G. Mc-Laurin, as Administrator C. T. A. of Mary Gibson, deceased. From judgment for plaintiffs the defendant appeals. Mary Gibson died many years ago, leaving certain real estate, and sons and daughters, some, of whom are parties hereto. She also left a will, which is copied in the case.

Before Sease, J., Greenwood, July, 1920. Action by E. L. Pinson against M. G. Bowles and Mrs. M. E. Bowles on a promissory note. From judgment for plaintiff the defendants appeal. cite: Defendants were entitled to open and reply: 35 S. C. 165; 50 S. C. 25; 63 S. C. 291; 92 S. C. 122.

Before PfuriFoy, J., Florence, April term, 1919.' Action by McCown-Clarke Company against A. W. Muldrow. From judgment for plaintiff the defendant appeals. cite: Rule for estimating damages caused by breach of contract: Ann- Cas. 1917 B. 1192. Sutherland on Damages, Vol. 2, 2339, 2348; .56 Am. Rep. 52 (Ala.;) 37 Am. St. Rep. 611 (N. C.;) 159 N. C. 439; 27 Am. Rep. 13 (N. Y.;) 13 Am. Rep. 438; 20 Am. Rep. 425; 40 Am. Rep. 280 (Texas;) 42 Am. St. Rep. 125 (Cal.;) 92 Am.

Before Bowman, J., Allendale, February term, 1920. Action by the Savannah Guano Company against T. O. Sanders and Annie D. Sanders. Judgment for plaintiff. From an order sustaining the exceptions of the hummus Cotton Gin Company to proceedings to set off defendants’ homestead, defendants appeal. cites: Sec. 3711, 1 Civ. Code 1912, requires return of appraisers to be filed with the Sheriff, and Sec. 3712 gives debtor the right to have it recorded.

Before Rice, J., Aiken, June term, 1920. Separate actions by L. M. C. Oliveros, Louis D. Oliveros and William Terwilliger against C. K. Henderson. From an order sustaining a demurrer to the complaint in each action the several plaintiffs appeal. The decree of the trial Judge, FI. F. Rice, was as follows : The above-stated causes are actions for slander and libel, instituted by the plaintiff against the defendant Flenderson.

Before MemmingER, ]., Anderson, April term, 1920. Action for specific performance by A. R. Martin against J. B. RaBoon. Prom judgment for defendant the plaintiff appeals. cite: Contract sufficiently definite under Statute of Frauds: 6 R. R. A. (N. S.) 956; 22 Wend. 148; 45 N. C. 65; 31 S. C. 606; 33 S. C. 376; 1 Brev. 546; 21 S C. 481; 25 R. C. R. 651; R. R. A. 1917-A 564.

<p>1. Deeds — Conveyance to Grantor's Niece and Heirs of Her Body, With Life Estate to Grantor, Held a Fee Conditional. — Where a landowner conveyed to his niece and the heirs of her body, reserving a life estate to himself, and the deed provided that if she should die without heirs of her body then the property shoul go to another niece, the estate conveyed to the first niece was a fee conditional.</p> <p>2. Reversions — Fee Conditional Held to Revert to Grantor's Estate Upon Noncompliance op Condition. — Where a landowner conveyed to his niece and heirs of her body, reserving a life estate to himself, on the death of the niece, the condition not having been complied with, the land reverted to the estate of the grantor, and, he dying without widow or issue, it was divisible among his next of kin.</p> <p>3. Descent and Distribution — Next op Kin at Time op Death of Owner of Fee Conditional Reverting to Grantor Held Entitled to Take. — -Where a landowner conveyed to his niece and the heirs of her body, reserving a life estate to himself, and upon the death of the niece and noncompliance with the condition the land reverted to the grantor’s estate, he having died without widow or issue, those took who were the next of kin at the time of the death of the niece.</p> <p>4. Descent and Distribution — Grandnieces and Nephews Held to Take to Exclusion of Great-Grandnephews Under Statute.— On partition of an estate divisible among intestate’s next of kin, where there were grandnieces and nephews and great-grandnephews, a verdict was properly directed in favor of the grandnieces and nephews to the exclusion of the great-grandnephews; there being no representation admitted among collaterals after brothers’ and sisters’ children under the statute.</p>

<p>1. Criminal Law — Constable’s Advice in Answer to Request Held not to Invalidate Admissions. — Admissions by a prisoner tending to show guilt are not rendered incompetent as having been induced by the hope of benefit by the fact that the constable, in'whose custody the prisoner was, advised the prisoner it was ’best to tell the truth, where such advice was given in response to the prisoner’s request for advice.</p> <p>2. ■ Criminal Law — Admissions Induced by Promise are Competent in Connection With Evidence Secured Thereby. — Statements made by a prisoner relative to the location of the stolen property, even if induced by advice of the constable, are admissible in connection with evidence of the finding of the property referred to in the statements.</p> <p>3. Criminal Law — Court Has Discretion to Instruct Jury to Disregard Confession if not Voluntary. — Though the question whether a confession was voluntarily made so as to be admissible is ordinarily to be decided by the trial court before the confession is admitted, the court has discretion, where the evidence as to circumstances surrounding the confession is conflicting, to admit the confession and instruct the jury to disregard it if they find that it was not voluntarily made.</p> <p>4. Criminal Law — Charge Alibi is Said to be a Rogue’s Defense is Eerroneous. — In a prosecution for burglary, where the defense was</p> <p>NOTE — For report of this case with note on “instructions Disparaging Defense of Alibi,” see 14 A. L. R. 1420. alibi, a charge that an alibi has been said to be a rogue’s defense is erroneous as impliedly assigning defendant to a class to which he is presumed not to belong until he is convicted, and as disparaging a perfectly legal defense.</p> <p>5. Criminal Law — Explanation op Erroneous Charge on Alibi Held not to Cure Error. — Error in a charge which stated that an alibi had been said to be a rogue’s defense is not cured by an explanation that the reason was because it was a good defense and possibly the best defense that could be put up, since that explanation aggravated rather than mitigated the effect of the error, as implying that a guilty man fabricating a defense would naturally select the most effective one.</p>

<p>Before Peurifoy, J., Orangeburg.</p> <p>Action by D. W. Avinger et al. against Charles Avinger et al. for partition of real estate. From Judgment for defendants, Ethel V. Sheider et al., the plaintiffs and 'the defendants, Charles Avinger et al., appeal.</p> <p>cite: The will created a vested remainder; the contingency never having become effective: 102 S. C. 240.</p> <p>cites: Remainder did not become vested at testator’s death as it was impossible to determine those of the heirs who ivould take at the falling in of the life estate: 10 S. C. 387; 113 S. C. 378; 102 S. E: 643'; 101 S. E. 738 (N. C.)</p>

Before Whaley, J., County Court, Richland. Action by Calvin Johnson against Atlantic Coast Line Railroad Company. From directed verdict for defendant the plaintiff appeals. For former appeal see 112 S. C. 47; 99 S. E. 755. Plaintiff was injured while cutting a rail in repairing a track used by interstate and other trains. The reasons given by the trial Judge for directing, a verdict, mentioned in the dissenting opinion, were as follows.

Before Mauedin, J., Dorchester, October term, 1920. Action by Frank Cusack against Southern Railway Co. et al. From order of dismissal plaintiff appeals. cites: Case should not have been dismissed: 21 S. C. 143; 35 S. C. 421. Brickman Way.

Before Townsend, J., Dillon, October term, 1919. Action by the Peoples Hardware Co. against Raleigh & Charleston Ry Co. for damage to freight. From directed verdict for defendant the plaintiff appeals.

<p>1. Criminal Law — Reuuested Charge That Circumstantial Evidence Must Exclude Guilt of Another Properly Refused. — A requested charge that, where the State relies on circumstantial evidence, the jury must acquit if the alleged crime could have been committed at that time and place by any one else or in any other way, was properly refused as requiring the State to prove conclusively the guilt of accused.</p> <p>2. Criminal Law' — Charge on Effect of Footprints Held Favorable to Accused. — In a prosecution for housebreaking, a charge that, if there was no evidence in the case but the tracks into which defendant’s feet fitted, the Court would not submit the case to the jury, was favorable to accused, so that a conviction will not be reversed for such charge on the exception that it was a charge on the facts.</p>

Before Bowman, J., Orangeburg, May term, 1919. Ed. Shuler and Thomas M. Shuler indicted for the murder of George Shuler. Ed. Shuler was convicted of manslaughter and appeals. Thomas M. Shuler was accpiitted. cites: Court should charge the law under all testimony adduced, leaving it to the jury to say what testimony they ¡would believe >ot not: 56 S. C. 135. Court erred in charge on self-defense: 103 S. C. 316; 113 S. C. 154; 114 S. C. 241; 103 S.- E. 524. Oral argument.

Before TownsRnd, J., Kershaw, July term, 1920. Action in Claim and Delivery by R. Adeimy against J. S. Dleykan et al. From an order dismissing a rule to show cause the defendant appeals. cites: Plaintiff in claim and delivery must have a cause of action before he- commences his action: 47 S. C. 343. Demand not necessary where it would have been futile: 104 S. C. 376.

Before Whaley, J., County Court, Richland, 1920. Action in claim and delivery by Charles A. Woods against T. E. Thrower, trading as Thrower Automobile Company. From judgment for plaintiff, the defendant appeals. cite: Error to admit testimony as to reputation of witness for truth and veracity when it had not been attacked: 12 Rich.

Before Whaeey, J., County Court, Richland, 1920. Action by M. C. Johnson Motor Co. against Jno. Barton Payne, Director General of Railroads, for damages in transit to shipment of automobiles'. From judgment for plaintiff the defendant appeals. cite:' Acts of the shipper is one of the recognized exceptions to liability of carrier of goods: 4 R. B. C. 702 et seq; Id. 732. In cases where goods are shipped in sealed cars: 4 R. C. B. 733: 99 S. C., 198; 39 Stat. B. 541, Fed. Stat.

Before Wharey, J., County Court, Richland, August, 1920. Action by Hal. H. E-. Rhea against Dora Maxwell, Administratrix of the Estate of Samuel W. Rhea, deceased. From the judgment both parties appeal. Hal H. E- Rhea, cites: A loss by one. party to a mutual contract is sufficient consideration to support the same:-70 S- C. 516; 87 S. C. 395; 80 S. C. 34. Agreement to contribute to education of niece-was an original undertaking: 85 S. C. 94.

Before Bowman, J., Clarendon, Fall term, 1920. Action by A. Nimmer against Northwestern Railroad Co. of South Carolina. From a verdict for defendant the plaintiff appeals. cites: Presumption of damage by terminal carrier: 78 S. C. 81; 79 S. C. 341; 84 & C. 249; 90 S. C. 185; 91 S. C. 270; 101 S. C. 430. Where freight is concealed, receipt under Sec. 3276, 1 Civ. Code 1912, may be explained: 66 S. C. 478. And verdict for plaintiff should be now directed: 92 S. C. 362.

Before Whaley, J., County Court, Richland, August, 1920. Action by D. W. Robinson against the City of Columbia. From judgment for defendant the plaintiff appeals. cites: Act in question: 31 Stats. 273. Purpose was as a substitute for Sec. 2937, 1 Civ. Code 1912. Act shall relate to one subject, and that shall be expressed in the title: Const. 1895, Art. Ill, Sec. 17; 16 S. C. 56; 80 S. C. 130; 51 S. C. 249; 68 S. C. 149.

<p>1. Criminal Law' — Motion ipRi Directed Verdict Should be Made at Close of Trial. — The rules of Court require that a motion be 'made at the close of defendant’s case for directed verdict in order to have the question of sufficiency of evidence to warrant a conviction considered on appeal, but the appellate Court may nevertheless consider such question when such rule is not complied with.</p> <p>2. Fines — Fines Go to County and Not to Prosecutor. — All fines imposed go to the county, and the Court erred, in a prosecution for obtaining money by false pretenses, in incorporating in the sentence the requirement that defendant pay to the prosecutor a certain amount of money, and such part of the sentence was a nullity, as contrary to public policy.</p>

Before Rice, J., Bamberg, July, 1920. Petition for writ of Plabeas Corpus by Edward Manigo against Sam Tyler.

Before PeuriEoy, J., Bamberg, - 1920. Action in Magistrate’s Court by A. Rice against C. E. Medlin and W. I. Rice. From judgment for plaintiff against both defendants, which was' sustained by the Circuit Courtt, the defendants appeal. cites: Respondent’s action based on verbal promise of appellant Rice and no note or memorandum signed by appellant contrary to 1 Civ. Code, 191.2, Sec. 3737.

Before Townsend, J., Richland, June, 1920. Action by Paul DeLaunay against The Union National Bank. From judgment for plaintiff the defendant appeals. cite: Doctrine of the Lorick (74 S. C., 185) cmd Wilson (113 S. C., 508) cases not applicable where check was drawn as Treasurer and not individually. No presumption that there would have been a prosecution for misappropriation of trust funds: Cheves Eq. 99, 123. Oral argument.

Writ of certiorari in the original jurisdiction to review the action of the State Board of Education of South Carolina in overruling a contest of a special election held in Gold Mine School District No. 90 of Spartanburg County. John B. Quinn, petitioner, and R. A. Cooper, et al., as State Board of Education, respondents. cites: Election should have been conducted as is a general election: 1 Civ. Code, 1912, Sec. 1742.

Before Townsend, J., Spartanburg, October, 1920. Action by International Agricultural Corporation against C. L. Hammett. From a directed verdict for paintiff the defendant appeals. cites: Right to continuance : 8 S. E., 817 (Va.) ; 9 Cyc., 79, 81, 93, 94, 96, 105. cite: Rule 2*¡ was not complied with: 107 S. C., 411. Continuance largely in discretion of Court: 11S. C., 259; 80 S. C, 557; 90 S. C., 283; 113 S. C., 92.

Before Memminger, J., Charleston, July, 1920. Action by Charles S. Dwight, Jr., against C. W. Par-ham and E. Boykin Clement, as Admr. of Moultrie J. Clement, for specific performance. Prom judgment for plaintiff the defendants appeal. Mr. Graydon cites: Specific performance rests in sound judicial'discretion: 53 S. C., 573; 84 S. C., 256. Plaintiff must make out clear contract and offer to comply: 110 S. C., 426; 77 S. C., 511.

Before Moore, J., Charleston. Action by American Fruit Growers, Inc., against S. B. King, individually and as Executor, etc., and others. From- an order overruling demurrer to the complaint by S. B. King and allowing plaintiff leave to amend, the defendant King appeals. cite: Action ex delicto will lie even though act complained of would also he ground for an action ex contractu-. 26 R. C. L-, 758.

Before Gary, ]., Newberry, June, 1920. Action by the Bank of Prosperity, S. C., against Louisa Dominick et al. From decree for defendants the plaintiff appeals. The agreed statement of facts referred to in the opinion was as follows: The question raised by the return in this action is what effect would the deeds made by Henry P. Dominick to Louisa Dominick, dated March 18, 1889, have, and what kind of title they conveyed to the said Louisa Dominick?

Before DeVore, J., Greenville, November, 1920. Action for partition by Margaret Carroll and others against Thomas Burns as Administrator and others and Mrs. Willie Wood. From a judgment denying the right of the defendant, Mrs. Willie Wood, to share, said defendant appeals. cite: Heir may transmit through heritable blood to his heirs, property which he would have inherited if alive-: 99 S. C. 276. Illegitimate child can inherit'share of her predeceased mother: 1 Civ.

Before Mauedin, J., Berkeley, December, 1920. Action by Reuben G. Harmon against J. J. Driggers et al, individually and as trustees School District No. 24, Berkeley County. From order overruling' a demurrer to the complaint, the defendants appeal. cite: Plaintiff is suing for himself and others of a class on a cause of action personal to himself: Pom. Rem. & Rem. Res. 439; 3 Strob. Eq. 335; 4 S. C. 514; 17 S. C. 204; 64 S. C. 224.

Before Shipp, J., Greenville, January,. 1920. Tully Babb, indicted for violation of the prohibition law, and upon conviction appeal's. cite: The offense of strongdefined: 63 S. C., 98; 41 S. E., 18; 96 S. E., 142; 105 S. C., 28; 89 S. E., 402; 89 S. C., 132; 71 S. E., 847: With a different penalty under each Count and verdict of guilty, Court cannot say how to impose penalty: 2 McC., 257; 1 Strob., 455. cites: Storing: 30 Stats., 72.

Before DeVore, J., Pickens, September, 1920. W. C. James indicted for murder and upon conviction manslaughter with recommendation to mercy appeals.

Before PpuriPoy, J., Newberry, April, 1917. Action in claim and delivery By Adams Davis against Beaufort Matthews Huff and W. P. Allen. From order setting aside seizure of property the plaintiff appeals. cite: was case should have been heard on its merits: Code Proc. 1912, Sec. 184. He being agent of the owner: Sec. 290 Id. Plaintiff had right to replevy within 5 days after distress: 1 Civ. Code, 1912, Sec. 3521; 46 S. C., 199.

Before DeVorE, J., Greenville, November, 1920. Action by R. E. Houston against the town of West Greenville, Southern Railway Co. et al. From order sustaining a demurrer to the complaint the plaintiff appeals. cite: City cannot sell right to private party to close street: 117 N. E., 81 (111.); 58 N. W., 369 (Mich.). Administrative ordinance may be attacked for fraud: Dillon Mun. Corp. (5th Ed.) Sec. 778, 780: McQuillin Mun.

Before Ríos, J., Orangeburg, September term;, 1919, and Mauldin, J., Orangeburg, September term;, 1920. James P. Browning was indicted for the murder of Baurie P. Fairey, and upon conviction appeals. Subsequently a motion for a new trial was made before Judge T. J. Mauldin and a new trial ordered.

<p>Petition in the original jurisdiction by Clarendon County against Sumter County to determine the proper line between said counties.</p> <p>cite: Altercation of County lines: Art VII, Sec. 7, Const. 1895; Sec 647, et seq. 1 Civ. Code 1912. Art. VII, Sec. 7 is only a limitation of power conferred by Art. Ill, Sec. 1; 52 S. C. 217; 106 S. C. 71. Governor has power to allow amendments as to boundary in petition: 78 S. C. 572. Same principle here as in 65 S. C. 80. Question submitted was as to annexation of an area, political rights only being considered: 9 Ann. Cas. 120, (Miss.); 95 S. E. 297, (Ga.).</p> <p>cite: Legislature had no power to change lines of portion voted on for annexation: 54 S. C. 1. Result of election, properly determined, is binding on Legislature: 65 S. C. 85. Bvery voter in proposed area must be given right to vote: 102 S. C. 258.</p>

Before Whaley, J., County Court, Richland, November, 1920. Action by J. W. Bailey against Free and Accepted Masons of South Carolina. From judgm,ent for defendant the plaintiff appeals. The letters referred to in the opinion are as follows: Bennettsville, S. C., Aug. 26, 1919. “J. W. Bailey, Columbia, S. C.' — My Dear Sir: Your letter of the 7th inst. was not overlooked, but, on the contrary, received the most careful consideration.

Before Memminger, J., Spartanburg, April term, 1919. Action by T. J. L. Williams, as administrator of the estate of Lizzie Harland, deceased, against Metropolitan Life Insurance Co. From judgment for defendant the plaintiff appeals. cite: Death certificate admitted under 1 Civ. Code 1912, Sec. 3996, which makes record admissible if competent. And under Sec. V. of 29 Stats. 29, but only as primes facie evidence of birth or death.

Before Sease, J., Spartanburg, July, 1920, and Mc-IvEr, J., Spartanburg, April, 1921. Dwynell Casey indicted for the murder of Guy Whitmore and upon conviction with recommendation to mercy appeals ; and also from order of Judge Mclver refusing a motion for new trial on after discovered evidence. cite: Requisities in motion for new trial on ground of after-discovered evidence: 20 R. C. L. 290. Oral argument.

Before Purifoy, J., Aiken, Fall term, 1920. Tom Herron indicted for the murder of Mike Corbett and upon conviction of manslaughter appeals. cites: Statement by acczised at coroner’s inquest not admissible against him: 32 S. C. 402; 105 S. C. 58. “Real evidence” should have been considered by jury: 1 Greenleaf (15th Ed.) 26; Circumstantial and positive evidence: 23 C. J. 49.

Before Prince, J., Greenville, January,’ 1921. Action by Robert T. Smith, as executor of the estate of Elizabeth M. Pleyward, deceased, against Julius H. Hey-ward, his co-executor, et al. From a decree carrying out a settlement of the estate the defendant, Henry Middleton, appeals. Mr. Visanska cites: Application for an order is a motion: Code Proc. 1912, Sec. 440. Four days notice necessary: Id. Sec. 441. Order made without notice should be set aside: 7 S. C. 235-40.

Before Wilson, J., and Prince, J., Abbeville, March, 1916, and March, 1919. Action by Sue A. Kellar, for whom Was substituted W. F. Nickles as executor of her estate, against E. T. Miller and Fannie E. Wilson, as executors of the estate of M. H. Wilson, deceased. From order of Judge Wilson referring the case to a Special Referee, and from the decree of Judge Price, the defendants appeal.

Before DeV ore, J., Hampton, February, 1921. Action by Mrs. Lizzie Till as administratrix of the estate of John D. Till, deceased, against Hamilton Ridge Lumber Corporation and R. G. Wiggins. From judgment for plaintiff against the Corporation it appeals. cite's: Obvious danger: 36 N. E. 789 (Mass.). Deceased adopted an unsafe way where there was a safe way and assumed the risk: 104 S. C. 451; 86 S. E. 69; 72 S. C. 346; 80 S. C. 232; 89 S. C. 505. No citations.

Before Whaley, ]., County Court, Richland, December, 1920. Action by D. A. Denny against John Doe and one Studebaker automobile, claimed by George Morgan. From judgment for plaintiff the defendant appeals. cite: Plaintiff should have put injured automobile in evidence in chief and defendant should have had opportunity to reply: 110 S. C. 116. Charge as to law of the road was on the facts, and erroneous statement of the law: 115 S. C. 547; 106 §.

Before Memminger, J., Baurens, November, 1919. Action by J. W. McKee against Mrs. ■ Dora Madden. From judgment for plaintiff the defendant appeals. cite. Question of fraud in execution of contract should have been - submitted to jury under proper instructions: 78 S. C. 423. The Judge “shall declare the law'1: 109 S. C. 109. Oral argument.

<p>Licenses — Railroad Entitled to Recover Amount Paid, In Absence op Evidence That Tax Was Levied on Gross Income and Capital Investment. — Railroad suing to recover license taxes imposed by ordinance enabled pursuant to Civ. Code 1912, § 2947, paid under protest, held entitled to the recovery of the taxes paid in the absence of evidence that the tax was levied' either upon the gross income or upon the amount of capital invested as required by such statute.</p>

<p>1. Negligence — Instruction on Duty to Licensee Proper. — Where defendant’s own requested charge conceded that plaintiff was a licensee, it was proper to modify that portion of the charge which stated that defendant’s only duty was not to willfully or wantonly injure him, and impose on defendant the duty of reasonable care.</p> <p>2. Damages — Denial of Nonsuit as to Punitive Damages Proper.— In an action by a customer, who fell into an open elevator shaft in defendant’s building, the denial of a nonsuit as to punitive damages was proper; there being evidence of defendant’s recklessness.</p> <p>3. Trial — Defects in Form of Verdict Must be Presented at Time of Publication.- — A defect in the form of a verdict must be presented at the time it is published, and failure to do so waives the right to raise that matter later.</p>

<p>Before Shipp, J., Charleston, January, 1919.</p> <p>Action by Mary S. Dawson against Thomas Della Torre and Arthur Bynah’ as-executors, &c., under the will of John B. Dawson, deceased, and others. From order sustaining a demurrer to the complaint, the plaintiff appeals.</p> <p>The decree referred to follows:</p> <p>This is an action for recovery of dower in certain property now owned by thé several grantees and devisees of plaintiff’s deceased husband, from whom she has been granted a divorce a vincule matrimonii by a Court of general jurisdiction in the State of Maryland, where the plaintiff and her husband were married.</p> <p>The case is now before me on a demurrer to the complaint. It is admitted by counsel for plaintiff that the divorce granted by the Court in Maryland is valid and binding in that State, but it is claimed not to bind the defendant in this State, nor on plaintiff so far as her dower is concerned.</p> <p>The complaint alleges facts which would entitle the plaintiff to dower in the premises described in the complaint if she had been the wife of the deceased husband at the time of his- death or if she had not been legally divorced by the Maryland Court in July, 1906.</p> <p>The sole question, therefore, before me now is whether or not the judgment of absolute divorce granted by the Court in Maryland as aforesaid is binding on the plaintiff herein to the extent of depriving her of her dower interests in the property of her deceased husband situated in South Carolina, where the husband had his legal residence at the time of his marriage to plaintiff on December 24, 1890, in the city of Baltimore, Md., until the date of his death on February 23, 1917.</p> <p>The plaintiff alleges in her complaint, paragraph 8, “that said Dr. John L. Dawson, the defendant in said cause, having never had a domicile in Maryland and having been served only with process by appointment in a railroad station in Baltimore while passing through, was not subject to the jurisdiction of said Court in Maryland, and was not bound in South Carolina by said proceedings in Maryland, and this plaintiff alleges that she has never remarried.” This allegation is a mere conclusion of law. The fact that he was not a resident of Maryland and was served only while passing through, the jurisdiction is not sufficient allegation of fact to show that the service was not good. If he had been brought into the jurisdiction under legal process in another-action, he 'might not have been subject to process in that action wherein he was then served, but nothing appears here to show that he was not there of his own volition. Certainly there was no allegation tending to show a collusion, for that implies a fraud on the Court; so, if the defendant in that action, Dr. Dawson, had come within the jurisdiction of the Court for the purpose of placing himself within the jurisdiction or for the purpose of allowing himself to be legally served with process, it would have signified no collusion. , .</p> <p>If the plaintiff was the legal wife of Dr. John D. Dawson at the time of his death, she would now be entitled to all she claims in her complaint. But according to her own admissions in her complaint and through counsel, she was not the legal wife of Dr. Dawson at his death nor had she been his wife since the decree of the Court granting an absolute divorce in July, 1906.'</p> <p>Now then, since it has been established that these parties were divorced absolutely by a Court of general jurisdiction in another State of the Union, this State and its Courts are compelled to “give full faith and credit” to the judgment of such Court in a sister State, and the only remaining question that could enter into our inquiry would be whether such Court had jurisdiction of the cause and the parties.</p> <p>In the case of Thompson v. Whitman, 18 Wall., 457; 21 E. Ed., 897, cited as authority in McCreery v. Davis, 44 S. C., 195; 22 S. E., 178; 28 E. R. R., 655; 51 Am. St. Rep., 794, we find the following language, to-wit: “The record of a judgment rendered in another State may be contradicted as to the facts necessary to give the Court jurisdiction; and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding it may recite that they did exist. Want of jurisdiction may be shown either as to the subject-matter of the person, or, proceedings in rem, as to the thing.” In the same case it was held that the want of jurisdiction of the Court by which a judgment rendered in any State may be questioned in a collateral proceeding in another State, notwithstanding the provisions of the fourth article of the Constitution and the law of 1790, and notwithstanding the averments contained in the record of the judgment itself.” Again, in Hanley v. Donoghue, 116 U. S. 4, 6 Sup. Ct., 244; 29 E. Ed., 535, cited in the case of McCreery v. Davis, supra, we find this language, to-wit; “Judgments recovered in one State of the Union, when proved in the Courts of another, differ from judgments recovered in a foreign country in no other respect than that of not being re-examinable upon the merits, nor impeachable for fraud in obtaining them, if rendered by a Court having [competent] jurisdiction of the cause and of the parties.”</p> <p>That our State, aside from its duty under the Federal Constitution, recognizes divorces granted by Courts of other States, there can be no doubt. We find in our Criminal Code, § 381, relating to bigamy, the following, to-wit: “Whoever, being married, and whose husband or wife has not remained continually for seven years beyond the sea, or continually absented himself or herself, the one from the other, for the space of seven years together, the one of them not knowing the other to be living within that time, * * * or whose marriage has not been annulled by decree of a competent tribunal having jurisdiction both of the cause and the parties, shall marry another person,” etc. Again we find a provision very much similar in Section 3754 of our Civil Code, relating to1 bigamous marriages, providing that marriages of persons having a husband or wife living are void, adding a proviso as to “any person who shall be divorced.’ This statute was referred to in the case of McCreery v. Davis, supra, and the Supreme Court, in discussing it, said that, while there were no cases in our reports construing it, yet it was evidently meant to mean only “valid” divorces, and since neither the State of New York, where the marriage was performed, nor the State of South Carolina, where one of the parties lived (the defendant), recognized as a cause for divorce that for which that divorce was granted, the statute would not avail anything. This language would indicate clearly that, had that divorce been granted on grounds recognized in New York, where the marriage was performed, and the Court had had jurisdiction of the persons, this State would have recognized the judgment of the State granting this divorce. Now in the case at bar the marriage was performed in the State of Maryland, and the Court granting the divorce was a Court of the State of Maryland, and jurisdiction of the defendant had been acquired, for he was served in the State of Maryland.</p> <p>In the case of Haddock v. Haddock, 201 U. S.,. 567, 26 Sup. Ct., 527; 50 D. Ed., 868; 5 Ann. Cas., 1, Chief Justice White (then Associate Justice), in laying-down certain propositions of law which he says were “irrevocably concluded by previous decisions of this Court” goes on in his opinion, using this language, to-wit: “It has, moreover,</p> <p>been decided that where a bona fide domicile has been acquired in a State by either of the parties to a marriage, and a suit is brought' by the domiciled party in such State for divorce, the Courts of that State, if they acquire personal jurisdiction also of the other party, have authority tO' enter a decree of divorce, entitled to' be enforced in every State by the full-faith and credit clause. Cheever v. Wilson, 9 Wall, 108 [19 E. Ed. 604].”</p> <p>It seems, therefore] well settled that where a marriage has been contracted in a State, and afterwards in that State where one of the parties is domiciled, a suit for divorce is begun and the other party is personally served, the judgment of that Court is binding not only on the parties, but on every Court in every State of the Union where that judgment is properly pleaded or admitted by the adverse jparty to exist.</p> <p>The case at bar has all the essential elements which make the judgment of absolute divorce granted by the Maryland Court valid and binding on the parties, their privies, and the Courts of this State. Therefore I sustain the demurrer to the complaint in this action and dismiss the complaint, and it is so ordered.</p> <p>Mitchell & Smith cite: Matters affecting the title to real property are goverened by the law of the locus: 44 S. E., 643, (N. C.); 61 E. R. A., 898 ; 80 Pac., 556, (Wash.); 178 U. S., 186; 44 D. Ed., 1028; 247 U. S., 16; 245 U. S., 412, 416; 12 C. J., 456. Law of State where the land lies controls dower right: 111 S. C., 523; 30 N. E. 661, (N. Y.); 15 E. R. A. 542; 11 N. E. 118, (O.); 98 N. E. 488; 14 Cyc. 888; 34 S. C.E. 562; 7 S. C. 150, 152; 14 Cyc. 936. Matrimonial status is not a property right: 12 S. C. 29. Divorce decree in Maryland has no extraterritorial effect: 107 Md. 335-6. “Pull faith and credit” clause does not require this State to permit a divorce decree of a sister State to alter its own laws as to dower: 178 U. S. 186; 47 Atl. 376, (Del.); 114 111. App. 655; 36 S. C. 367, ' (W. Va.) ; 30 N. E. 661; Dec. Dig. “Judgments,” Sec. 822; 4 Cent. Dig., Sec. 1490. Dower law in S. C.: 1 Civ. Code, 1912, Secs. 3469-78, 3485-93. Dower attaches to any 'lands seised by husband during coverture: 34 S. C. E. (3 Strob.) 562. And is paramount to any person claiming under the husband by a subsequent act: 94 S. C. 492, 494. Elopement only method of divestment, other than voluntary renunciation: 44 S. C. 195, 226; 56 S. C. 173; 36 E. R. A. 517. Renunciation prior to vesting only thing that will estop wife: 16 S. C. 91; 52 S. C. 108; 53 S. C. 2; 63 S. C. 126; 87 S. C. 47; 89'S. C. 175; 96 S. C. 435; 44 S. C. 195; 41 S. C. 363; 18 S. C. Eq. 275; 18 S. C.' Eq. 222. Right attaches with marriage and seising: 88 S. C. 286; 94 S. C. 492; 28 S. C. 580; 31 S. C. 547; 34 S. C. E. 562. After vesting wife can convey or assign it by deed: 29 S. C. 501; 35 S. C. 88. Valid decree in sister State must be recognised here so far as it affects status of the parties: 21 S. C. Eq. (2 Strob.), 174; 80 S. C. 94; 75 S. C. 145. In reply : Power to grant a divorce is statutory: 19 C. J. 23, 462, 504, 506; 12 S. C. 30; 20 S. C. Eq. (1 Strob.), 387.</p> <p>Thos. Della Torre et al., as Executors, &c., and Joseph W. Barnwell for Charleston Library Society, cite: “Pull faith and credif’ 'clause construed and in what cases of divorce, a State is bound to recognise decree of mother State: 201 S. C. 567; 181 U. S. 155; 181 U. S. 175; 198 U. S. 317; 181 U. S. 183; 21 How. 582; 9 Wall. 123; 215 U. S. 909; 210 U. S. 231; 226 U. S. 551; 44 S. C. 195. Personal service of defendant in State where divorce is granted is essential4. 44 S. C. 195., Divorce bars dower: 4th Kent. 55; 4 Barb. 192; 1 Wash. Real Prop. 243; 14 Cyc. 943; 111 U. S. 526; 10 Mass. 260; 110 Mass. 463; 10 Ohio 396; 20 Ohio 454; 2 Bishop Mar. & Div., Sec 706, 712; 2 Strob. Eq. 175. Foreign divorces recognised here'. 76 S. C. 145; 80 S. C. 94; Crim. Code, 1912, Sec. 381; 1 Civ. Code, 1912, Sec. 3754.</p>

Before MclvER, J., Spartanburg, February, 1921. Action by Enoch Lawrence et al. against Gertrude E. Burnett et al. From judgment for defendants the plaintiffs appeal. cite: Equitable assignment: 3 Pom. Eq. Jur., Sec. 1287. Actual valuable consideration necessary: Id. Sec. 1293, 1405; 55. S. C. 31; 6 S. C. 479; Pom. Conts., Sec. 54; 23 Am. Dec. 424. Burden to prove consideration where none expressed: 1 Elliott Conts., Sec. 247. Good consideration insufficient: Id. Sec. 246.

Before PeuriEoy, J., Pickens, September, 1919. Action by Elias Day against Atlanta & Charlotte Air Dine Railway Co. Fromi directed verdict for defendant the plaintiff appeals. ■ cite: Plaintiff ialleging title and possession is entitled to damage upon proof of possession: 85 S. C. 358; 110 S. C. 474. cite: Title was in issue: 104 S. C. 456; 114 S. C. 375. No adverse claim against railway for right of way unless enclosed: 109 S. C. 444.

<p>1. Insurance — Draftee is "Enlisted Man” Within Terms of Policy. —A draftee is an “enlisted man,” within the purview of a life policy which allowed the insured to join the army, but required notice and payment of extra premium.</p> <p>2. Insurance — Whether Insurer Waived Extra Premium Held for the Jury. — In an action on a life policy which allowed the insured to join the army and go out of the United States, but required an extra premium, the question whether the insurer, which was operating as a fraternal order, waived the extra premium held for jury, even though the officers of the local branch of the order could not waive anything, it not appearing that the general authorities of the order directed the local clerk, whose duty it was to collect all the funds, to collect the war risk premium.</p> <p>Note: On validity, construction and effect of provisions in life or accident policy in relation to military service, see notes in 4 A. L. R. 848 ; 7 A. L. R. 382.</p>

Before McIvER, J., York. --. Action by W. G. Hayes against J. Mason McGill. Judgment for plaintiff and defendant appeals. cites: Express warranty : 35 Cyc. 372-4: Implied warranty: 105 S. C. 273. Express warranty excludes implied warranty: 35 Cyc. 392; 112 S. C. 422. cites: Express warrant excludes implied warranty: 112 S. C. 422.

Before Shipp, J., Greenville, April, 1920. Action by Joseph P. Poole against Southern Railway Co. for damage to an automobile in a collision. From judgment for plaintiff the defendant appeals. cite: Under decisions of Supreme Court of the United States a master is not liable in punitive damages for the willful tort of his servant: 147 U. S. 108; 16 Rose’s Notes, 252; 48 L. R. A. (N. S.) 47.

<p>Before MclvER, J., Chester,- term, 1920.</p> <p>Action by S. A. Gough against Texas Company. From judgment for plaintiff the defendant appeals.</p> <p>cite: Waiver: 27 R. C. F„ 909, 910.</p> <p>cite: Waiver: 114 S. C., 185; 103 S. C., 284.</p>

Before SeasE, J., Richland, April, 1919. Action by Terry Packing Co. against Atlantic Coast Line Railroad Co. From directed 'verdict for plaintiff the defendant appeals. cite: Car of one company moving over tracks of another company under load, is taken by second company as a common carrier and it is liable as such for damage while in its possession: 29 Am. Rep. 348; 39 Barb. 488; 123 Ill. 594; 25 Fed. Rep. 317.

Before Prince, J., Greenville, February, 1921. Action by Solomon Bradley as administrator of Pickens Bradley, deceased, against O. P. Van Wyck, trading as Greenville Mattress &'Manufacturing Co. From an order of nonsuit plaintiff appeals. cite: Presumption that deceased acted in conformity with his duty: 9 Ene.

Before Bowman, J., Hampton. -. Action by Frederick Winthrop against Paul H. Allen. Judgment for plaintiff and defendant appeals. cite: Tort arising out of contract: Code Proc., 1912, Sec. 200; 11 S. C., 337. Plaintiff failing to make defendant elect waived objection: 43 S. C., 221; 20 S. E., 980; 68 S. C., 257. Allegations of answer appropriate to an action in tort: 26 A. & E. Enc. Law, Qst Ed.), 72; 70 S. C., 108.

Before Wilson, J., Richland, April, 1920. Action by C. A. Flanagan against Glencoe Cotton Mills. Judgment for plaintiff and defendant appeals. cite: Right of directors owning majority of stock to appropriate funds of corporation: 212 N. Y., 121; 105 N. E., 818; R. R. A., 1915 D., 632. Director has no right by his own vote to reap a benefit at the expense of the corporation: 10 A. & E. Enc. Raw, 790; 14-a C. J. 92, 142; 137 Fed., 790; 166 Fed., 261; 126 Am.

Before DeVore, J., Beaufort. Action by Seacoast Packing Co. against R. A. Bong. From order striking out certain defenses as sham, the defendant appeals. cites: Subscriber may give his subscription on condition that full amount be subscribed: 14 C. J., 538, et seq. Defense to be frivolous must be manifestly so: 2 S. C., 422. Answer set up proper defenses: 1 S. E., 255; 73 Ga., 437; 109 Md., 558; 130 Am. St. Rep.) 531; 16 Ann.

Before MclvER, J., Sumter,-, 1920. John McCoy - and Marion McCoy indicted for housebreaking and larency, and upon conviction appeal. cite: Where indictment charges joint ownership, proof of separate ownership will not sustain a conviction: 15 S. C. B. 16; 77 S. C. 383. Oral argument.

Before WhatEy, J., Richland County Court, November, 1920. Action by Hugh E. Simmons and O. W. Hartness, partners as Hartness-Simmons Co., against Roanoke City Mills. From judgment for defendant on its counterclaim the plaintiffs appeal. cite: Judge erred in charge on implied warranty: 15 A. & E. Ene. L. 1231, 1229; 35 Cyc. 397, 418; 12 S. C. 586; 40 S. C. 31; 80 S. C. 292; 100 S. C. 389; 105 S. C. 273; 112 S. C: 422.

Before Whaeey, J., County Court, Richland. May, 1920. Action by K. Nader against the American Insurance Co. From a directed verdict for defendant the plaintiff appeals. cite: Books were to be kept in iron safe only from date of inventory: 110 Va. 118, 65 S. E. 465; 139 N. C. 390, 51 S. E. 923; 143 N. C. 339, 55 S. E. 118; 51 R. R. A.-; 83 N. W. 81; 35 N. E. 720 (Ind.); 61 Mo. App. 352; 20 Ind. App. 33; 14 R. C. R. 1142, Sec. 324.

<p>Before Mauldin, J., Aiken, January, 1921.</p> <p>Bred Craig indicted for grand larceny and upon conviction appeals.</p> <p>cite: Doctrine of theft as applied to lost articles: 2 McM. 503-4. And where ozvner is not known: Bish. Crim. Law (6th Ed.) Sec. 5, 881, 882, 883, 759, 799, 800, 811, 823, 842. And no marks to identify oziMer12 Am. Dec. 176; 7 Am. Dec. 462; 37 Am. Dec. 297; 1 Hill 94. Intent: 17 R. C. L-36, 37; 37 L. R. A. 116; 17 Am. Rep. 140.</p> <p>cites: Law as to lost goods: Wharton Crimes, Sec. 1867; Bish. Crim. Law, Vol. 2, Sec. 878; R. C. L., Vol. 17, Sec. 40; 38 S. C. 352.</p>

Before Bowman, J., Hampton, -: — , 1920. Action by The Peoples National Bank of Charleston against W. D. Barnes, J. L. Folk and others.

Before Prince, J., Greenville, -, 1921. Action by Mrs. Margaret Thompson and A. R. Thompson against Greenville Traction Co. From order of non-suit plaintiffs appeal. cite: Defendant violated city ordinance which was■ negligence per se: 105 S. C. 129; 100 S. C. 114; 83 S. C. 354; 84 S. C. 536.

Before Townsend, J., Richland, June, 1920. Action for foreclosure begun by Clarence Richards, in which Sumter Trust Co. was substituted as plaintiff against Perry Moses, Jr., W. G. Moses, H. J. Harby, Lowry S. Covin and Lillie V. Padgett. Judgment for defendant, Lillie V. Padgett, and plaintiff and other defendants appeal.

Before Townsend, J., Cherokee, November, 1920. Action by John Mullinax, as Admr., against J. B. Ham-bright et al., as Cherokee Highway Commission. From order sustaining a demurrer to the complaint the plaintiff appeals. For former appeal in this case see 115 S. C., 22. cite: Master is liable for willful and malicious acts of his servants, done in the scope of his employment: 26 Cyc, 1528; 13 S. C, 19.

<p>Before DeVorE, J., Greenville, September, 1920.</p> <p>Action by E. G. King as guardian ad litem for James Hoyt King, against Casper Holliday and W. C. Walker. Judgment for plaintiff and defendants appeal.</p> <p>cite: Duty of driver of vehicle as to animals in road: 34 Arp. Dec., 278, (N. Y.) Interest of public in highway consists solely in right to passage over it: 27 S. C., 422 ; 70 Atl. 385, Court has power at the trial to order examination of injured party: 60 S. C., 117; 23 U R. A., (N. S.), 464; 3 Am. St. Rep., 554; 68 Am. St. Rep., 242; 17 Cyc, 295; 23 L. R. A., (N. S.), 465; 2 D. R. A., (N. S.), 368.</p>

Before Gary, J., Abbeville, .October, 1920. Action by W. S. Gordon and.J. R. Hagan against J. R. Bell et al., as trustees and teachers of Due West School District No. 38. From an order vacating a temporary injunction plaintiff appeals. Mr. Nickles cites: Acts regulating transfer of pupils between school districts: 1 Civ. Code, 1912, Sec. 1756; 27 Stat., 619; Act. 1919; 3 Stats., 63.

Before Mendel L: Smith, Special Judge, Sumter, Spring term 1920. Action by Loretta M. Ryan against New England Mutual Life Insurance Co. Judgment for plaintiff and defendant appeals.