Volume 117 — South Carolina Reports

<p>Before Townsend, J., York, April, 1920.</p> <p>Action by Jessie H. Massey against Walker D. Hines, Director General of Railroads. Verdict for Plaintiff and defendant appeals.</p> <p>cite: Governmental control of railroads: 112 S. C., 407; 113 S. C., 236; 113 S. C., 179. Punitive damages: 65 S. C., 39. Suits against Director General are suits against Government: 263 Fed., 211; 259 Fed., 261; 3 Wheat., 546. Suit will not lie for willfulness: 114 S. C., 331; 103 S. C., 545; 114 S. C., 236; 103 S. E„ 548. In reply: Growth of punitive damage idea: 3 Wils., 18; 2 Bay, 417; 14 E. E'd., (U. S.) 362; 55 So., 42; 34 E. R. A., (N. S.), 740; 76 S. C., 109; 11 Rich. R. 283; 11 Rich. E. 469; 13 S. C., 546; 76 S. C., 193; 103 S. E., 545.</p> <p>cites: Government control of railroads: 40 Stat, 456; U. S. Comp. 1918, Sec. 3115^-J. Punitive .damages neither fine nor penalty : 35 S. C., 486; 34 S. C., 324; 60 S. C., 73; 69 S. C., 160; 8 R. C. E., 132, note 7; 69 S. C., 115; 76 S. C„ 283; 13 How., 371; 129 U. S., 26; 127 U. S., 205; 116 U. S., 562; 91 U. S., 492; 13 A. & E. Ene. R., 53; 188 Fed., 735; 94 S. W., 962; 163 Fed., 129; 97 S. W., 724; 11 Ga. App., 564; 92 S. W., 191; 21 R. C. R., 3. Congress cannot delegate legislative power to President or Director General: 220 U. 'S., 519; 143. U. S., 649; 95 U. S., 587; 115 C. C. A., 469; 10 R. R. A., (N. S.), 254. No person was to be deprived of an existing legal right of action: 253 Fed., 459. Judicial question not for Director General to decide: 172 N. W., 841.</p> <p>cites: Punitive damages: 3 S. C., 583 25 S. C., 222; 28 S. C., 405; 29 S. C., 386; 33 S. C.,-435; 65 S. C., 39; 60 S. C., 73. Distinction between fines, penalties and forfeitures: 18 Ann. Cas., 883; -15 Rich. R., •17; 6 Words & Ph., 5273; 40 S. C., 165. Supreme Court of U. S. follows State Courts in construction and interpretation of common and statute law: 2 Foster Fed. Prac. (4th Ed.), Sec. 375, p. 1294; 107 U. S., 20.</p>

Before Sease, J., Charleston, October, 1920. Action by Margaret T. Donald, as Administratrix of Michael J. Murphy, deceased, against Atlantic Coast Dine Railroad Co. Judgment for plaintiff and defendant appeals. cite: Verdict should have been directed: 94 S'. C., 145; 72 S. C., 389; 76 S. C., 368; 78 S. C„ 379; 81 S. C„ 193; 106 S. C., 123; 106 S. C., 317.

<p>Before Memminger, J., McCormick, October, 1920.</p> <p>Action by J. E. Britt against McCormick County Commission et al. Erom -an order allowing attorneys’ fees to defendants’ attorneys for procuring the dissolution of a temporary restraining order the plaintiff appeals.</p> <p>cite: Attorneys’ fees: 1 Civ. Code 1912, Sec. 4208, 4239; 27 S. E. 471; 34 S. E. 56 (Va.). Action defined: Code Proc, 1912, Sec. 2.- "Special proceeding and cost therein:” Sec. 3, Id.; 4 S. C. 402; 19 S. C. 230; 87 N. W. 1014; 88 Pac. 95; 72 Pac. 613; 11 N. Y. Supp. 780; 46 N. Y. Supp. 1070; 115 N. Y. Supp. 495. Injunction sought was ancillary to main proceedings 70 N. W. 629; 21 S. E. 317 Speculative damages: 39 S. C. 465.</p> <p>cites: Pees for dissolution of an injunction: High on Injüncs. p. 1061, Secs. 1685, 1686; 43 S. C. 392; 93 S. C. 43; 19 S. C. 223; 19 S. C. 230; 39 S. C. 427. Allowance of costs discretionary in equity matters: 82 S. C. 109; 100 S. C. 324; 39 S. C. 427</p>

Before Moore, J., Richland, November, 1919. Action by W. D. Clark as Admr. of W. W. Clark, against Columbia Railway, Gas & Electric Co. Verdict for defendant and plaintiff appeals. cite: Duty of defendant to minimize damage due to its wilfulness: 111 S. C. 413. Mental suffering of beneficiaries element of damages: 74 S. C. 306; 65 S. C. 260; 60 S. C. 237; 59 S. C. ,87; 47 S. C. 375.

<p>Before De VorE, J-, Greenville, November, 1920.</p> <p>Action by Mattie Guest Turner against H. T. Guest et al. Decree for plaintiff and defendants appeal.</p> <p>cite: Rule in Shelley s case: 29 L. R. A. (N. S.) '1000. Not applicable: 23 S. C. 46; 24 S. C., 204; 9 D. R. A. 165; 16 S. C. 220. Right of co-tenant to recover for improvements: 24 S. C. 264; 81 S. C. 288.</p> <p>cite: Every requirement of Rule in Shelley’s case is present: 3 Hill 193; 83 S. C. 266; 76 S. C. 36; 67 S. C. 120; (5 Rich. Eq.) 26 S. C. Eq. 356; 95 S. C. 32; 103 S. C. 202; 86 S. C. 237; 104 S. C. 426. Vested remainder: 87 S. C. 57; 1 Hill Ch. 357; 44 S. C. 503; 104 S. C. 426; 1 Strob. Eq. 43; Dudley Eq. 201; 9 Rich. Eq. 459; 12 Rich. Eq. 114. Posthumous child takes portion of parent’s estate: 18 S. C. 55; 1 Civ. Code 1912, Sec. 3553; 1 McC. 456. Construction of will: 59 S. C. 148; 9 S. C. 229. Co-tenant makes improvements at his peril: 28 S. C. 562; 58 S. C. 547.</p>

Before DlVorB, J., Greenville, November, 1920. Action by Thomas G. Crymes against Gaul and Allen, partners as Gaul Construction Co., and Massachusetts Bonding & Insurance Co.' From order overruling demurrer to the answer on behalf of the Bonding Company said Company appeals. cites: Rule where contract is to remodel old house, and it is destroyed by fire during progress of work: 6 R. C. R. 1007; 12 R. R. A. 571; 3 S. W. 726 ; 35 S. E: 1003; 65 L. R. A. Ill; R. R. A. 1917-D,…

<p>Before PeuriEoy, J., Barnwell, December, 1920.</p> <p>Action by Elizabeth Myer against Rosa G. Matthews et al. From decree the defendant named appeals.</p> <p>cite: Estate in remainder vested at death of testator: 2 Strob. Eq., 61; 87 S. C., 55; 106 S. C., 401; 107 S. C, 265; 109 S. C„ 228; 113 S. C., 533.</p> <p>cites: Remainder to a class, only those answering the .description who are in being at the time the contingency happens, can take: 21 C. J, 987; 4 Kent, 257.</p>

Before PruriFoy, J., Greenville, December, 1919. Action by Dora Cox Watson et al. against Samuel M. Cox et al. From decree the plaintiffs appeal from the allowance of the dower claim of Mrs. Annie Cox.

Befor'e Bowman, J., Allendale, February, 1920. Action by Isaac Templeton against Charleston & Western Carolina Railway Co. Judgment for plaintiff and defendant appeals. cite: Statements of Bing were not part of res gestae and not zvithin scope of his agency and were incompetent: 53 S. C., 448 ; 27 S. C., 64; 62 S. C., 129. Error in admission of testimony not properly cured by Judge: 108 S. C., 195; 180 U. S., 552; 172 U. S., 534; 156 U. S., 361; 120 U. S., 438.

Before Moore, J., Cherokee, January, 1920. Action in Magistrate’s Court by Joe Blackwell against W. T. Faucett. Judgment for plaintiff affirmed by Circuit Court and defendant appeals. cite: Parol testimony inadmissible to vary terms of a written contract: 46 S. C., 411; 77 S. C, 191; 83 S. C., 204; 90 S. C., 541; 27 S. C„ 376; 69 S. C., 93; 84 S. C., 181; 104 S. C., 461; 109 S. C., 29; 111 S. C., 287; 113 S. C., 223.

Before Sease, J., Abbeville, April, 1920. Kenneth Gossett indicted for rape and upon conviction appeals. cite: Change of venue where justice cannot he had'. 61 S. C„ 251; 8 Iowa, 329; 11 Ala., 206; 11 Tex., 207; 11 Miss., 234. Special session called under Sec. 3841 Civ. Code 1912, which is entirely different from Sec. 3840, Id. Sec. 3841 gives Governor right to call special term on request of the Solicitor: 79 S. C., 229.

Before DeVorE, J., Beaufort, March., 1921. Action by Seacoast Packing Co. against D. Schein. From order striking out certain defenses in the answer, the defendant appeals. cite: Defense that subscription not payable until all stock is subscribed is a good one :■ 72 Atl. 399 (Md.); 16 Ann. Cas. 1247; 52 Atl. 975 (Md.) ; 93 Am. St. Rep. 339; 7 R. C. R. Sec. 20.3; 6 S. W. 134 (Tex.); 15 S. W. 674 (Tex.).

Habeas corpus proceeding by John C. Swygert, who,, pending proceedings against him in the county in which he wounded a man, was proceeded against in the county in which the man died. Proceedings in second county annulled.

<p>Constitutional Law—Highways—Due Process Clause Not Violated by Statute Giving Lien on Stolen Auto eor Injury From Its Negligent Operation.—Acts 1912, p. 737, giving a lien on a motor vehicle for damages caused by its being operated in violation of law or negligently, excepting only one which has been stolen from under secure lock, does not deprive one of property without process where the car had been stolen under other conditions; it being considered the offender.</p>

Before McIver, J., Richland, March, 1920. Action by Maggie Grice, administratrix of the estate of James A. Grice, deceased, against Harry F. Hann and Grant Collins. From order of nonsuit as to the defendant Hann, the plaintiff appeals.

<p>Before Prince, J., Greenville, February, 1921.</p> <p>Action by T. L. Leopard against Beaver Duck Mills. From directed verdict for defendant the plaintiff appeals.</p> <p>cite: Plaintiff entitled to benefit of testimony of defendant's witnesses: 110 S. C., 565. Test of who was representative of the master: 107 S. C., 16; 18 S. C., 270; 18 R. C. L., 735, 744; 89 S. C., 507; 95 S. C., 149; 96 S. C., 154; 66 S. C., 485; 55 S. C., 102; 102 S. C., 223. Servant is aw appliance: 63 S. C., 559; 70 S. C., 315; 114 S. C., 349. No- assumption of risk without knowledge: 72 S. C., 420 ; 80 S. C.,. 248; 84 S.C., 283; 99 S. C., 396; 107 S. C., 16. Sufficient inference of negligence to be submitted to the jury: 76 S. C„ 63; 71S. C., 159; 86 S. C.,- 304; 98 S. C., 129; 86 S. C., 231; 74 S. C„ 90; 83 S. C„ 274; 110 S. C„ 566; 69 S. C„ 107; 75 S. C., 156; 94 S. C., 412. Fellow servant mixed question of law and fact: 51 S. C., 96;s 18 R. C. L., 719 Where jury fails to agree: 1 Civ. Code 1912, Sec. 4050;. 54 S. C., 236 .</p> <p>cite: Rulings on motions are not charges on facts: 103-S. C., 210; 91 S. C., 161; 82 S. C., 321; 50 S. C., 299; 101 S. C., 360. Fellow servant: 71 S. C., 53; 72 S. C., 237; 76 S. C., 539; 77 S. C, 3-28; 78 S. C., 413; 80 S. C., 232; 87 S. C., 449; 89 S. C., 502. Denial of right of argument must be express, and not acquiesced in to furnish basis of error: 38 Cyc., 1471; 25 Ga., 85; 66 Ga„ 115; 82 Ga„ 156; 8 S. E., 424; 9 So., 311, (Ala.).</p>

<p>Before Mauldin, J., Greenville, October, 1920.</p> <p>Action by Ferdinand Sullivan against Peter and Sara Calhoun. Judgment for plaintiff and defendants appeal.</p> <p>cite: No punitive damages recoverable for breach of contract in absence of fraud: 77 S. C. 188; 91 S. C. 417; 96 S. C. 240; 112 S. C. 499.</p> <p>cite: Fraud: 12 R. C. L,. 229. Sufficient plea of fraud: 112 S. C. 71.</p>

<p>Before Bowman, J., Barnwell, April term, 1920. Affirmed in part.</p> <p>Action by J. O. Patterson, Jr., against Orangeburg Fertilizer Co., Planters Bank and T. S. Cave. From directed verdict for the defendants the plaintiff appeals.</p> <p>cite: Damages to crops a proper counterclaim to action on notes given for the fertiliser: 97 S.- C. 389. Sale was not on analysis only as in 104 S. C. 125; and the charge here is of an added poison, not on a shortage in guaranteed analysis: 111 S. C. 469. Latent defect excuses delay in bringing suit: 102 S. C. 295. Condition of crops competent evidence to show the effects of fertiliser: 77 S. C. 500. Where fertiliser is ordered by naane there is warranty as to kind purchased: 40 S. C. 31. Manufacturer must test product for latent dangers: 24 R. C. L. Sec. 802. Manner of negotiation of notes presented question for jury: 115 S. C. 102, 104 S. E. 312. Only necessary to allege facts, not conclusions: 112 S. C. 77, 99 S. E. Ill: Judge may set aside verdict and grant a new trial because verdict is against weight of the evidence: 104 S. C 197. But verdict cannot be directed unless there is only one inference from evidence: 10'7 S. C. 367. And credibility of witnesses is for jury: 101 S. C. 125. Verdict cannot be sustained on additional grounds: 110 S. C. 270.</p> <p>cite: Manufacture and sale of commercial fertilisers regulated: 1 Civ. Code 1912, Secs. 2315-2330. And is exclusive in its application as to purchase, sale, and use of fertiliser betzveen buyer and seller: 40 S. C. 31, 97 S. C. 361. Where statute furnishes a new remedy, it is exclusive: 15 S. C. 548. In actions for breach of contract, the motive or intent of defendant zvill not, in general, be considered: 7 A. & E- Ene. Eaw, (2nd Ed.) -639. And rule of damage is same whatever be the reason for non-performance: 8 A. & E. Ene. Eaw (2nd Ed.) 639, note 5. Evidence of damage to crops should be excluded: 111 S. C. 469; 104 S. C. 125. Mven if allegation to that effect will not be stricken out: 97 S. C. 389; 97 S. C. 395; 97 S. C. 396; 71 S. C. 1, 4 Ann. Cas. 68. "Public policy” as affecting contract: 19 S. C. 170. Judgment will be sustained if right although based on faulty reasoning: 107 S. C. 216. Directed verdict: 19 S. C. 23 99 S. C. 417.</p>

<p>Before MrmmingEr, J., Newberry, Fall term, 1919.</p> <p>Action by Frederick Werber, the younger, against Waldemar Werber, Erwin W. Case, Arabella Moran, Louise Van Deventer, Minnie I. Moses, C. Alice Moses, Katie Bryant, Claremont Moses and Grace Virginia Clark, for the construction of the will of Frederick Werber, deed. From decree, the plaintiff, Frederick Werber, the younger, and the defendants Waldemar Werber and Erwin W. Case appeal.</p> <p>cites: Will and codicile must be construed as one instrument: 30 A. & E. Enc. Law ,665; 72 S. C. 179; 71 S. C. 175; 61 S. C. 155; 172 U. S. 363; 8 Port (Ala.) 380; 135 Ala. 585; 141 Cal. 485; 165 111. 637; 172 111. 323; 99 Ill.'Ápp. 555, affirmed 198 111. 621.; 98 Iowa 175; 99 Ky. 273; 3’Md. Ch. 42; 88 Md. 642 ; 5 Allen (Mass.) 198; 164 Mass. 270; 181.Mass. 236; 173 Mass. 483; 68 N. H. 582; 56 N. J. Eq. 642, affirmed 43 Atl. Rep. 1098; 57. N. J. Eq. 26; N. Y. 194. Court will reconcile as far as possible inconsistent provisions of will and codicil endeavoring to disturb the first as little as possible to give effect to the second: 30 A. & E. Enc. Law. 685. Clear gift in the■ will will not be cut down except by an equally clear subsequent provision: lb. 687-88. Where quantity of estate is devised definitely and specifically, only a- life estate coupled with power of disposal passes: Id. 737; 48 S. C. 444; 107 Cal. 587; 13-Ga. 277; 94 111. 206; 164 111. 227; 107 111. 443; 169 111. 365; 172 ill. 18; 209 111. 350, affirming 111.111. App. 183 197 111. 144; 94 Ind. 228'; 113 Ind. 323; 136 Ind. 647; 143 Ind. 373; 146 Ind. 476; 147 Ind. 388; 118 Iowa 264; 57 S. .W. Rep. 240. Legacy will be held to be vested unless contrary intention appears: 30 A. &. E. Enc. Law 764. And when once vested will not. be divested except by clear expression: Id. 786.</p> <p>cite: Will must be read as a whole to give eff ect if possible to its every clause: 104 S. C. 441. Intention must be given effect if possible: 105 S. C. 432. Interpretation which gives force and effect to all provisions of an instrument is preferable to one which ■will .destroy one or more of its provisions'. 104-S. 'C. 178; 1T0 S. C. 130; 113 S. C. 416. Where an estate is once given by words of clear and ascertained legal significance, it will neither be enlarged or cut down by subsequent words unless they raise cm irresistible inference that such was the testator’s intention: 109 S. C. 416.</p> <p>Waldemar Werber and Erwin W. Case, cites: Revocation by implication: 2 Jarman Wills, (4th Eng. Ed.) 840; Schouler Wills, -(5th Ed.) Sec. 487; Underhill. Wills, Sec. 251; 2 Alexander Wills, Sec. 977. To cut down estate already granted intention must be clearly expressed: Id. Sec. 934; 126 Fed. 701; 154 N. Y. 283; 213 Pa. 14; 62 Atl. 175; 110 Am. St. Rep. 515; 50 So. 81 (Ala.)</p> <p>c-ite: No words of limitation necessary to create a fee under a will: Sec. 3571, 1 Civ. Code 1912. An estate may be enlarged, controlled and even destroyed by implication, but not in contradiction to and denial of an express estate: 102 S. C. 7; 6 Wall. 458; 116 Ala. 265; 109 Ind. 540. 5 Mass. 537; 89 Me. 128; 25 Wend. (N, Y.) 143; 10 Tex. 572. The last of two inconsistent provisions must prevail: 109 S. C. 531; 4 McC. 151. Courts lean to vested rather than contingent, interests: 24 A. & E. Enc. Eaw, 392; 1 Strob. Eq. 43; 2 Jarman Wills, 406.</p> <p>cite: No words of limitations necessary to create a fee simple in a will: Sec. 3571, 1 Civ. Code 1912. Courts favor estates of inheritance: . Redfield Wills, 420, 421: All. papers, will and codicil, are ' to be taken together. Id. 435, 436. In order to cut down or alter an estate previously created language must be clear: 29*S. C. 470; 7 S. E., R. 817; 93 S. C. 215. At least as clear as those creating the estate: 87 S. C. 60, 93 S. C. 216, 77 S. C. 458; 2 McMull. 472. Example of change of an estate by a codicil: 1 N. & McC. 321; 71 S. C. 199; 1 McMull. Eq. 201: Courts will construe an estate as vested rather than contingent: Strob. Eq. 223. Intention must be reached by consideration of words used and not by conjecture: 35 S. C.; Strob. Eq. 327.</p> <p>cites : Children of testator took fee simple to be ascertained by division:- 2 Bail. E. 231. In' case of doubt Court will presume vested interest: 3 Strob. Eq. 211. Codicil was merely a continuation of the will, not a revocation, in 110 S. C. 130; and in 61 S. C.. 155, codicil related to after acqtdred lands and was a republication of the will. .</p> <p>cite: A gift or devise to persons who shall be surviving at some- particular time not clearly specified in will, the Court will infer that estate vests in those living at. testator’s death: Schouler Wills, Sec. 562; 40 Cyc. 1675; 59 S. C. 4; 70 S. C. 33; 21 S. C. 513; 87 S. C. 55. Mary L. Werber .took vested interest at death of testator, uncertain as to quantity or quality only: 15 S. C. 168; 11 Rich. Eq.. 527; 1 Hill Ch. 357. Power of sale and direction of sale, does not make interest contingent: 4 Rich. Eq. 475; 2 Hill Eq. 430:. Codicil will not revoke more than is necessary: Schouler Wills, Sec.. 437. And no interest under will will be divested by conjecture: Id. Sec. 479.</p>

Before Wilson, J., Marlboro, Spring term, 1920. Action by Jnd. K. Mclver against Fannie M. Thompson, Corrie Malone, Elise Stewart, and Lucy M. Thompson, and Scott Lumber Co., for partition. From 'judgment for plaintiff the defendants, other than Scott Lumber Co., appeal.

Before MemmingEr, J., Charleston, August, 1920. Held: when it was obvious from the accounts themselves, showing remittance of income to Cyril Hawksford in England, that Cyril Hawksford was not in a position to exercise with Mordecai joint custody and control of such funds and securities.

Before Moore) J. Laurens,' November, 1920. . Action by W. H. Workman and Workman Co, against J. W. Copeland, Sr., and D. E. Tribble Co. Judgment for • defendants and plaintiffs appeal. Report oe ReeerEE The above stated case was referred to me as Special Master and the reference was held at Raurens, South Carolina, September 9, 1920, at which was taken the testimony herewith reported.

Before (Whaley, J., County Court, Richland, September, 1920. Action by Mildred Lee, by Guardian, against McCrory Stores Corporation. Judgment for plaintiff and defendant appeals. cites: Judge erred in intimating to jury that damages should be heavy: 85 S. C. 536. Amount is for the jury. Newell Libel and Slander (3rd. Ed.), Sec. 995; 25- Cyc., 530; 13 Cyc.,-242.

Before Whaley, J., County Court. Actions by J. H. Faust and Ben E. Kelly against Rich-land County. From an order overruling demurrer to the complaints the defendant appeals.

Before Moore, J., Marlboro. Action by J. J. and G. D. Matheson against Jas. H. Caribo and Julian McLaurin as administrator of M. J. Hood, deceased. From directed verdict in favor of the defendant McLaurin, as administrator, the plaintiffs appeal. cites: Directed verdict improper where there is any evidence: 98 S. C. 282; Necessary proof of signature: 11 S. C. 444; 62 S..C. 244, Not necessary to prove a mark by subscribing witness: 20 S. C. 570; 11 Enc.

Before Memminger, J., .Charleston, August, 1920. Action by Margaret Ellen Bart and Stephen E. Welch as trustees under Post Nuptial Settlement of Charles E. Bart against H. Sribnik. Decree for plaintiffs and defendiant appeals. cites: Instrument with one witness invalid to pass title- of real property : Cheves 272. Certainly not in fee: 51 S. C. 555. Pee can be conveyed- where all contingent remaindermen in esse are made parties: 24 S. C. Eq.

Before WhalEy, J.,'County Court, Richland, September, 1920. Action by -J. W. Babcock against Postal Telegraph-Cable Co. Judgment for plaintiff and defendant appeals. cite: No special damages recoverable in absence of notice: 79 S. C., 157. Judge stated act to be unlawful, which was charge on- facts: 99 S. C., 227. cites: Former decision is law of the case : 114 S. C., 321. Even if erroneous: 100 S. C„ 338; 92 S. C., 360; 65 S. C., 418.

Before McIver, J., Darlington, September, 1920. Action by Adella Gilbert, petitioner, against Catherine M. Smith, respondent, involving custody of Jennie Belah Gilbert. From order giving the custody to petitioner the defendant appeals. cite: Parol gift of child by parent effective: 73 S. C., 302; 27 L. R. A., 60; 82 Am. Dec., 223; 40 L. R. A., 623; 37 Am.. Rep., 801; 6 Rich., 344; 19 S. C., 605. cite: 'Action at law and finding of Circuit Judge not reviewable-: 84 S. C., 476.

Before Rice, J., Allendale, June, 1920. Action by Moylin M. Sams against D. Sams, Emma R. Sams and R. O. Sams. Petition of Pauline O. Sams, Emmie C. Sams and Annie Rou Sams to be made parties defendant. From decree for plaintiff and order refusing to make the petitioners parties to said action the defendants and petitioners appeal. cite: Alimony pendente lite is dependent upon a prima facie showing for permanent alimony: 91 S. C. 345; 100 S. C. 298; 1 McC.

Before MemmingEr, J., Edgefield, October, 1920. Action by J. G. Alford against W. P. Yonce. Judgment for plaintiff [and defendant appeals. cites: Statement of employee of defendant to plaintiff incompetent: 53 S. C, 448. Instruction inapplicable to facts of case is erroneous: 66 S. C. 18. Error to charge the jury through the argument of counsel: 14 R. C. R. 773. Must charge the law applicable to a reasonable view of the evidence: 102 S. C. 463.

Before Townsend, J., Cherokee,- Tall term, 1920. Action by Nessy Coffey against J. T. Jenkins. Judgment for plaintiff and defendant appeals.

Before SpasE, J., Florence, November, 1920. Action by J. F. Falls against Palmetto Power & Light Co. Judgment for plaintiff and defendant appeals. cite: Lawful arrest: Crim. Code 1912, Sec. 1. Must be made on dependable information: 74 S- C. 412. Test is what reasonable man would do under the same circumstances: 19 Cyc. 352. Must act promptly for public welfare: 19 Cyc. 352. Rule of liability of principal for act of agent in making arrest: Ann.

Before MclvER, J., Lancaster, October, 1920. Action by W. C. Hinson and Mary Hinson, his wife, against Lancaster Mercantile Co. Judgment for defendant and plaintiffs appeal.

Before Shipp, J., Orangeburg, January, 1921. Carlos Corbitt indicted for the murder of Bryan Salley, Julian Cooper and Hugh Fanning. After acquittal 'on the indictment for the murder of Bryan Salley, the indictment for the murder of Julian Cooper was called. The defendant interposed a plea of autrefois acquit or former jeopardy, to which the State demurred. From order sustaining the plea of the defendant the State appeals.

<p>Before Bowman, J., Barnwell, 1920.</p> <p>Action by The Murray Co. against E. D. Peacock. From judgment for plaintiff the defendant appeals.</p> <p>cite: Aside from the express warranty in the contract is the implied warranty of a sound price and a sound commodity: 3 Strob., 64; 1 McC., 421; 12 S. C., 586; 102 S. C., 295. Affirmation 'of quality by the seller is a warranty: 80 S. C., 279. Seller by his acts may waive notice of defects: 35 Cyc., E. & Proc., 427.</p> <p>cites: Warranty not void as against public policy: 9 Cyc., 483; 62 S. C., 145; 71 S. C., 508; 85 S. C., 405. Ten-day notice of defects required was reasonable provision: 105 S. C., 520; 108 S. C., 411. No waiver by work done after the ten-day period: 105 S. C., 524.</p> <p>cite: Exceptions improperly drawn: 114 S. C., 332. Parol testimony not competent to vary written instrument: 24 S. C., 128; 1 Greenl. Ev., 227; 103-S. C., 494. Contract not against public policy: 6 R. C. E., 707; 35 A. E. R., 793; 103 S. C., 494; 108 S. C., 131. Parties presumed to know effect of contract: 103 S. C., 494. And cannot plead false representation as to legal effect: 101 S. C., 235. No waiver: 40 Cyc., 258; 55 Á. E. R., 837; 105 S. C„ 520; 65 S.’ E., 30; 62 S. E., 160. Evidence as to the machine after breach of the contract properly excluded: 69 S. C., 100. Notice of defects not given within ten days, there can be no recovery on the breach of warranty. 18 A. E. R., 348; 72 S. E., 40.</p>

Before Moore, J., Greenwood, October, 1920.’ Action by The Murray Co. against J. L. Ouzts. From directed verdict for plaintiff the defendant appeals. cite: Construction of contracts for a penalty or liquidated damages: 2 Elliott Conts., Sec. 1559; 3 Id., Sec. 2126; 8 R. C. L., 564, Sec. 114; 17 C. J, 956; 1 McM., 77; 3 Hill, 270; 94 S. C., 187; 108 Am. St. Rep., 42; 9 S. C., 374; Ann. Cas., 1912C, 1019.

<p>Before McIver, J., Richland, February 1920.</p> <p>Action by T. M. Livingston v. Reid-Hart Parr Co. Judgment for defendant and plaintiff appeals.</p> <p>The exceptions were as follows :</p> <p>1. That his Honor erred in excluding the testimony of the witness G. W. Langford, offered for the purpose of showing that, as supervisor of Saluda County, he had purchased one or more of 'the New Hart-Parr tractors in 1917, and that they were unsuitable for and incapable of doing the work of pulling plows and road machinery, and that the county had made numerous complaints to the defendant prior to the sale of the tractor to the plaintiff, because the said testimony was relevant and competent for the purpose of showing knowledge on the part of the defendant, at the tinte of making the sale to plaintiff, that the tractors were not suitable for or capable of doing, the work represented by defendant, and for which it was purchased by the plaintiff.</p> <p>2. That his Plonor erred in excluding the testimony of the witness Thomas Taylor offered for the purpose of showing that he purchased a Hart-Parr tractor from the defendant in 1916, for use on his farm, to pull plows and farm machinery, and that it was not suitable for, or adapted to, such purposes, and was impracticable for such uses and purposes, and that he had made repeated complaints to the defendant prior to July, 1918, in regard thereto, because the said testimony was competent for the purpose of showing knowledge on the part of the defendant at the time it made the sale to plaintiff that the machine was not suitable for, capable of, or adapted to the purposes represented by the .defendant, and for which plaintiff made the purchase.</p> <p>3.. That his Honor erred in excluding the testimony of the witness R. O. Dunning, a mechanical engineer, offered for the purpose of showing that the Hart-Parr tractor was so constructed as to be impracticable, incapable of, and not adapted to the purposes of a farm tractor, because the said evidence was competent and relevant to show that said machine was not suitable for, or adapted to, the purposes for which it was bought by the plaintiff, and for which defendant represented iti to be suitable 'and adaptable, and that the defendant knew this at the time of the selling it to the plaintiff.</p> <p>4. That his Honor erred in charging the jury: “I charge you, however, that although a sound price demands a sound commodity, still, if one knows that he is not getting a sound commodity at the time he makes his purchase, then that principle of law would not apply. In other words, gentlemen, you know a man can buy a blind or crippled horse, if he wants to, and* pay what that horse is worth, and if he knows that the horse is blind or crippled, and still undertakes to buy him, then he would buy that horse, and he could not undertake to rescind the contract on account of the fact that the article purchased was not a sound commodity, if he bought it with his eyes open, knowing that it was in that condition at the time he bought it”—because:</p> <p>(a) There was no evidence that the plaintiff knew that the machinery was unsound or unfit for the purposes for which it was sold to him, and for which he bought it.</p> <p>(b) Defendant in its testimony claimed the tractor was new, sound, and first class.</p> <p>(c) The plaintiff, having paid full price for a new and sound machine, was entitled to such a machine.</p> <p>5. That his Plonor erred in charging the jury: “I charge you that the plaintiff agreed to receive that machinery, and to pay the freight on it from Charles City, Iowa, subject only to the warranty of the manufacturer, and which was adopted by the seller as his warranty in this particular case, because he says he accepts this contract and signs his name to it. I charge you that under this warranty, if this is the entire contract, the only warranty is that the New Hart-Parr tractor was well made and of good material and workmanship; that, if any of the machinery breaks within one year from the delivery of it, that they would replace-that part of the machinery, if it broke on account of faulty material or workmanship, and they do not warrant the batteries, spark plugs, or other electrical equipment connected with the machine”— because the said warranty only purported to be a warranty by and in behalf of the manufacturer. It did not affect or relate to the dealer, which is the defendant in this case, and it in no wise excluded or prevented a warranty from the defendant, as is alleged and claimed by the plaintiff in this case.</p> <p>6. That his Honor erred in charging the jury, at the request of the defendant:</p> <p>“(1) ‘Statements by the vendor’ (that is, the seller) ‘of property as to its condition, quality, character, capacity, or adaptability to certain uses, are generally regarded as mere expressions of opinion, and, when such is the case, do not constitute fraud.’ Yes, gentlemen, there is a narrow margin or line there that I will try to explain to you. That is the law. That is the law laid down by Blackstone, one of the earliest law-writers we have, and he illustrates in this way: That a mjerchant in selling his goods to a customer in his store praises up his goods and speaks of how suitable they are for the purpose the party wants them for, and unless there is an actual misrepresentation of fact, then that is merely regarded as the effort of the seller to dispose of his goods, showing them off tó advantage ; and where no fraud is intended, and where it is mere expression of opinion in the praise of his goods, it does not constitute fraud.”</p> <p>And in further charging the jury, at the request of the plaintiff:</p> <p>“(4) ‘In reference to the cause of action for breach of warranty, the jury are charged that any distinct affirmation as to the quality or condition of a thing sold by the owner, during the negotiations for the sale, which it may be supposed was intended to cause the sale, and was operative in producing it, and relied on by the purchaser, is an express warranty; and if it turns out to be untrue, the owner and seller would be liable to the purchaser, therefore.’ I have already charged you that”—because:</p> <p>(a) The charge is calculated to confuse the issues before the jury and the correct ruling of law.</p> <p>(b) Statements by a seller of machinery and dealer in machinery, as to its condition, quality, capacity, or adaptability, are in their nature warranties.</p> <p>7. That his Honor erred in charging the jury: “(8) T charge you that, with respect to the second cause of action, set forth in the amended complaint in this action, the rights of the parties must be determined according to their contract, and that the express written order which has been introduced in evidence is alone the evidence of what was intended by the contracting parties’. I charge you that, provided the written contract includes and covers the complete and entire agreement between the parties. I have already practically charged you that”—because: It is a charge on the facts.</p> <p>8. That his Honor erred in charging the jury: “(9) ‘If you find from the evidence that the plaintiff retained possession of the tractor involved in this suit for more than six days after the first day’s use of the tractor by the plaintiff, then I charge you that then and in that event such retention of possession by the plaintiff would be conclusive evidence that the warranty given by the seller had been fulfilled, except as to the defective parts, and the plaintiff could not recover on the second cause of action set forth in the complaint.’ I charge you that, unless, I add, the defendant by its acts waived that provision of the contract requiring notice to be given in six days, or the return of the property to be given in six; days. I charge you that, unless the defendant waived it, as I have previously in this 'charge explained to you. I have charged you that one could waive and relinquish and forego the enforcement of a right, and if he did that, then he could not after-wards hold the other party to that right, as I illustrated to you about the insurance policy”—because:</p> <p>(a) - The provision as to retaining possession for more than six days only applies to the warranty by the manufacturer, and has no application to the warranty or agreement between the dealer or seller and the plaintiff.</p> <p>9. That his Honor erred in refusing to give the plaintiff’s fifth request, to wit: “Raise warranty does not depend upon or require knowledge of its falsity at the time it is made. The seller is held bound by his statement”— because the same contains a correct proposition of law applicable to this case.</p> <p>10. That his Honor erred in refusing the plaintiff’s motion for a new trial, because:</p> <p>(a) His Honor had erred in excluding the testimony of the witnesses Langford, Dunning, and Thomas Taylor, tending to prove fraud and guilty knowledge on the part of the defendant at the time of making the contract of sale and representations to the plaintiff.</p> <p>(b) The evidence showed conclusively that, while plaintiff paid full price for a new machine, he did not receive a new machine, and there was no evidence upon which to base a verdict to the contrary.</p> <p>(c) The evidence showed that the machine sold to the plaintiff had worn and defective parts, and that defendant’s contract of guarantee was breached.</p> <p>(d) There was not sufficient evidence to support the verdict for the defendant.</p> <p>The reason of the Court for excluding testimony of the witness Langford, complained of in exception No. 1, was that it would open a limitless inquiry as to a number of sales made to other people, and that inquiry must be confined to the particular machine in question to show knowledge on the part of the defendant that the machine was not giving satisfaction.</p> <p>cites: Fraud: 111 S. C. 41. Wide latitude allowed in evidence as to fraud: 103 S. C. 395; 104 S. C. 227; 78 S. E. 645 (Va.) ; 102 S. E. 203 (N. C.). Positive statement of fact as to which he has no knowledge is as much a fraud as a wilful misstatement: 74 S. E. 668 (W. Va.) ; 79 S. E. 610 (N. C.). Burden on seller to show misstatements were not relied on: 76 S. E. 637. Fraudulent intent includes knowledge of falsity of statement: 61 S. C.-192; 14 A. & E. Ene. E. 86, 87, 88. Evidence of other transactions admissible to show guilty knowledge: 56 S. C. 501; 39 S. C. 350; 1 Bail L. 301; 13 A. & E. Ene. L. 1110; 97 S. C. 75. Parol, evidence to show fraud even if there be a written contract: 104 S. C. 227; 111 S. C. 42; Charge not relevant to evidence on issues calculated to mislead and confuse jury: 108 S. C. 201; 96 S. C. 80; 113 S. C. 499; Parol evidence competent in explanation of contract or its terms: 41 S. C. 160; 16 S. C. 357; 61 S. C. 169; 8 Rich. R. 36; 108 S. C. 114. Written contract fraudulently obtained is a nullity: 113 S. C.'317. Warranties in the sale of a chattel 11 S. C. 340; 87 S. C. 91; 122 U. S. 581; 30 R. Ed. 1174; 1 Parsons Conts. 580; 61 S. C. 192. Charge on facts: 96 S. C. 80, 47 S. C. 523; 91 S. C. 217; 110 S. C. 146.</p> <p>cite: Testimony as to other defective machines not competent: 37 S. C. 7; 251 Fed. 25; 17 S. C. 129: 90 S. C. 271; 79 S. C. 281; 81 S. C. 456; 108 S. C. 195; 84 S C. 190; 73 Iowa 509; 41 Iowa 45; 41 Pa. Sup. Ct. 572; 28 N. W. 841 (Mich) ; 42 N. W. 963 (Mich.) ; 130 N. W. 618 (Mich.); 23 Pac. 295-(Cal.); 97 N. E. 158 (Ind.); 58 Atl. 741 (Conn.) ; 59 N. E. 58 (Mass.) ; Jury was not .misled: 108 S. C. 411. Contract governs rights of the parties: 105 S. C. 520.</p>

<p>Before Gary, J., Anderson, December, 1920.</p> <p>Action by Pink Mattison against W. Keith Glenn. Judgment for plaintiff and defendant appeals.</p> <p>The decree of the Court below is as follows:</p> <p>This is a suit for accounting between the plaintiff and the defendant, W. Keith Glenn. The plaintiff claim's that as a share cropper the said defendant is still due him, practically all of the plaintiff’s share of the crop raised by him. The said defendant claims that he does not owe plaintiff anything. That the said defendant has furnished the plaintiff supplies to an amount greater than the plaintiff’s share of the crop, and that the plaintiff is really indebted to the said defendant in the sum of 90-odd dollars. It was referred to a special referee to take the testimony in the case and to state the account between the parties. The special referee has taken the testimony and made his report. Both sides except to the report. Their several exceptions may be found in the record. The case is now before me upon these exceptions.</p> <p>The testimony as to many of the facts in dispute is vague, indefinite, and unsatisfactory. Frequently it amounts to no more 'than an assertion on the part of the plaintiff and a denial oh the part of the defendant. It is difficult to determine with certainty where the truth is. I think the special referee has in the main reached just conclusons, except as to the nature of the final judgment rendered by him. I agree with the referee as to the terms of the contract between the parties, and that they were share croppers. The main questions, then, are: First. What crops were made by plaintiff ? Second. What supplies were furnished plaintiff by defendant? Third. What incidental items should'be credited to each?</p> <p>To answer these questions is simply to state the accounts between the parties. This we will proceed to • do. The plaintiff should, of course, be credited with one-half of the crops raised by him, the value thereof being ascertained by calculating what it will amount to if sold at the highest price at which said crop could be sold any time after the plaintiff demanded a settlement from the said defendant. This principle of settlement between share croppers is recognized-in the recent case of Rainwater et al. v. Mer. & Farmers1 Bank of Cheraw, S. C., 114 S. C. 358, 103 S. E. 587.</p> <p>The defendant claims to have an account against the plaintiff for supplies amounting- to $2,034.74. Some of the items going to make up this account should not be allowed. The item of $140.82 for interest was properly disallowed by the referee. The item of $8 for bolster should not be allowed. The item of $8 for three wagon tongues should not be allowed. The item of $2.50 for two hoes should hot be allowed. • If the remaining items are incorrect, the-testimony is too unsatisfactory and vaghe to warrant the Court in so holding.</p> <p>The account of the said defendant against the plaintiff would therefore stand as follows:</p> <p>The account as set forth..............., . . . $2,034 74</p> <p>Less items disallowed ..................... 159 32</p> <p>Balance ............................ $1,875 42</p> <p>The plaintiff’s account against the said defendant should stand as follows:</p> <p>For cotton seed .......................... $ 41 38</p> <p>For 12 bushels of bottom corn at $2.25 per bushel 27 00</p> <p>For cane seed............................. 6 00</p> <p>For one-half good cotton, to wit, 5,095 pounds, at 33 cents per pound...................... 1,681 35</p> <p>For one-half off-grade cotton, to wit, 2,019 pounds, at 30 cents per pound........... 605 70</p> <p>Total ...............'............... $2,361 43 . 1,875 42</p> <p>Balance due plaintiff .................. $ 486 01</p> <p>—-for which amount plaintiff should have judgment against the defendant, W. Keith Glenn.</p> <p>It is therefore hereby ordered, adjudged, and decreed that the special referee’s report herein' be and the same is amtended in the particulars indicated, and that the plaintiff, Mattison, have leave to enter up judgment against the defendant, W. Keith Glenn, for the sum of $486.01.</p> <p>cites: Defendant due to account only for market price at time of breach or demand, not for highest price that could have been obtained; 114 S. C. 358; 92 S. C. 119; 1 Bay 102; Harp. 112; 13 Cyc. 168; 101 S. E. 192 (Ga.); 61 S. W. 538. Oral agreement to pay interest on the account and advances and it should have been allowed: 92 S. C. 114; 1 Bail. 623; 1 Hill 400; 1 Riley L. 218; 8 Rich. 287; 10 Rich Eq. 53; 2 Nott & McC. E. 496; 17 S. C. 314; 47 S. C. 185; 92 S.C. 338; 22 Cyc. 1503, 1541. Damage by tenant properly deducted in settlement by landlord: 115 S. C. 374, 105 S. E. 737; 43 S. C. 63. Plaintiff can recover no more than he sued for: 47 S. C. 176; 86 S. C. 525;</p> <p>cite: Not an account stated-: 104 S. C. 280. Open running account does not bear interest: 1 Civ. Code 1912, Sec. 2516; 100 S. C. 100; 98 S.- C. 313; 2 Bay 233; 30 S. C 177; 20 S. C. 555. Settlement must be at price received not less than market price: 114 S. C. 358.</p>

Before Whaley J. County Court, Richland, October, 1920. Held: as pointed out by the defendant’s first exception to theMaster’s report, that inasmuch as Sterling Wright left of full force and effect his last will and testament, by which the testator devised his interest in the premises in question to the defendant, Anna Wright, one-third of the premises in question were vested in the defendant,…

Before Townsend, J., Union, -, 1921. Action by A. B. Brannon against G. B. Harris and U E. Garner. From directed verdict for plaintiff the defendant Garner appeals. cite: Creditor chargeable to debtor for loss aris-ing from his negligence in not collecting on collateral pledged for the debts: 37 S. C., 211. Damages recoverable for depreciation in securities: 53 S. C. 132; 91 S. C. 122; 91 S. C. 323; 3 A. & E. Ene. E. (2nd Ed.) 733; 22 Id. 899; 27 Id. 516; 22 Id. 902.

Before Mauldin, J., Chester, Fall term, 1916. Action by J. W. Boney against Mary Jane Cornwell et al. From judgment for plaintiff the defendants appeal. The paragraph of the charter referred to in the opinion follows: “XX.

<p>Before WharEy, J., County Court, Richland, July, 1920.</p> <p>Action by Elizabeth R. Sligh against Sovereign Camp Woodmen of the World. Judgment for plaintiff and defendant appeals.</p> <p>cite: Distinctions betzveen warranties and representations in application for insurance: 107 S. C. 21; Joyce Ins., Sec. 1882, 1949; 14 R. C. R. p. 1039, Sec. 210. Parties are bound by plain terms of the contract even though they seem hard:. 110 S. C. 339. Whether applicant has consulted a physician is of vital importance: 96 Pac. 62 (Kans.) ; and such statements are warranties: Joyce Ins., Sec. 2070; 83 S. C. 239; 10 R. R. A. 666; and should work a forfeiture: 25 Cyc. 810, 812, 816, 818; 14 R. C. R. (Ins.) Sec. 210; Joyce Ins., Sec. 2070.</p> <p>cite: Rule as to construction of Insurance policies against forfeitures: 46 S. C. 495; .78 S. C. 77; 94 S. C. 299, 96 S. C. 44. Fact that a statement is called a warranty is not conclusive: 111 U. S. 335, 28 D. Ed. 449; 101 S. C. 653. Insurance Company estopped: 102 S. C. 386. Where no ground of objection to testimony is stated exception will not be considered: 53 S. C.'80; 90 S. C. 504; 100 S. C. 105. Admission was harmless error, if any: 92 S. C. 354; 91 S. C. 477; 98 S. C. 289; 86 S. C. 114.- Whether insured answered in good faith is principal issue: 4 Chamb. Ev., Secs. 2683, 2562. Admissibility of collateral facts to show good faith: Jones Ev., Sec. 146; Wigmore Ev., Secs. 265, 255, 1725; 145 U. S. 285; L. R. A. 1918E. 267. Fourth exception faulty: Rule 5, Sec. 6, Supt. Ct; 99 S. C. 216; 100 S. C. 276. No motion for directed verdict and point cannot now be considered: 84 S. C. 477; 86 S. C. 539; 88 S. C, 87.</p>

Before Moore, J. Spartanburg, May, 1920. ' Action by Berry Wilson, father, against R. G. Wilson, son, to set aside a deed. Decree for plaintiff and defendant ■ appeals. The Report of S. T. Lanham, Master, was as follows: The plaintiff and the defendant are father and son. The plaintiff is an old m,an, eighty-two years of age, blind in one eye, partially deaf. He is the father of eight children, the defendant being his oldest son.

<p>Before Prince, J., Marion, October, 1920.</p> <p>Archie Turner, Mack Turner and Thomas E. Turner indicted for murder. The first two named upon conviction appeal.</p> <p>cite: Duty of Solicitor in the introduction of testimony: 104 S. C., 353. Mack Turner at most zvas an accessory after the fact: 73 S. C., 340. Where all facts proz>en may be true and still defendant may be innocent, there should be no conviction: 95 S. C., 389. Confession must be free and voluntary: 27 S. C., 26; 36 S. C., 532; 74 S. C., 477; 99 S. C., 504. Confession implicating another admissible only as to party making it: 36 S. C., 530; 48 S. C., 141; 49 S. C„ 410; 109 S.' C„ 144. Offer to compromise a criminal action is some evidence of guilt: 86 S. C., 66. Written confession should have excluded oral statements: 13 S. C., 389. Reference to testimony in the charge zvas prejudicial: 47 S. C., 488; 85 S. C., 277; 70 S. C„ 79; 87 S. C-, 193; 85 S. C., 283; 85 S. C., 56; 49 S. C., 413. Charge as to effect of presence at crime zvas prejudicial: 77 S C., 119.</p> <p>cite: Question of sufficiency of testimony was for the jury: 108 S. C., 356; 68 S. C., 53; 107 S. C., 139. Statement by defendant competent as to him: 99 S. C. 504. Reduction of statement to writing had no effect on its competency: 1 R. C. I/., 572. Rules relative to confessions have no application. to statements falling short of an admission of guilt: 18 R. R. A. (N. S.) 771; 36 S. C., 530. Expert testimony within discretion of the Judge: 92 S- C., 329 Remarks by Judge upon the admissibility of evidence do not constitute reversible error: 71 S. C. 142; 73 S. C., 379; 108 S. C., 387. Statement as to State relying on circumstantial evidence not charge on the facts: 111 S. C., 362. Judge can limit the effect of testimony: 88 S. C., 204. Charge as to accessory correct: 107 S. C., 139. Jury correctly charged to base verdict on testimony they believed to be true: 90 S. C., 290. To charge that a confession must be received “with great caution” would have been on the facts: 52 S. C., 454.</p>

<p>Before Mauldin, R, Greenville, October, 1920.</p> <p>Action by Henrietta E. Gaines, Gillian Rewis and Nellie Jenkins against Mary Virginia Sullivan et al. Decree for plaintiffs and defendants appeal.</p> <p>The decree ordered a sale of the property involved and payment of the net proceeds to a trustee and directed the trustee to invest $8,500 thereof in a house and lot to be conveyed to him in trust to permit Mrs. Gaines to use and occupy it free of rent, but charged with repairs, maintenance, insurance, taxes, and assessments during her natural lifetime, and to purchase or build other houses and lots to be conveyed to him in trust for each of the two daughters of Mrs. Gaines subject to the same charges. It also contains provisions as to the title .after the death of Mrs. Gaines.</p> <p>cite: Deeds were not covenants to stand seized, but if they were, the* statute would not execute the use, the trustee having duties to perform, and there being objects to be effected by the title remaining in the trustee: 24 S. C., 313; 78 S. C., 150. Fee remained in grantor: 102 S. C., 370. Where donor constitutes himself trustee such intention must clearly appear: Pom. Eq. Jur. Sec. 997, 998. Grantor here does not covenant to hold legal title in trust for grantee: 54 S. C., 353. In Watson case (24 S. C., 228) title was not to pass until death of grantor. Where deed conveys fee to grantee, reserving use to grantor for life, it negatives the idea of a covenant to stand seized: 16 S. C., 136; 59 S. C., 560; Mills Con. Rep., 48. In trust deeds if word “Heirs” is missing there must be words showing an intention to convey the fee: 51 S. C., 557; 35 S. C., 314; 46 S. C., 363; 15 S. C., 284; 106 S. C., 245; 82 S. C., 539; 106 S. ‘ C., 17. Courts will not change terms of a trust merely on the wish of the beneficiaries: 112 S. C., 6; 101 S. C., 1. Limitation of alienation is good: 59 S. C., 151; 15 S. C., 440.</p> <p>Oral argument.</p>

<p>Before DeVorE, J., Pickens, September,' 1920.</p> <p>Action by Atlanta & Charlotte Air Line Railway Company et al. against the City of Easley et al. Judgment for plaintiffs and the defendants appeal.</p> <p>Following is the decree of the Court below:</p> <p>This is an action to enjoin the collection of assessments for street improvement in the city of Easley, S. C., levied against the property of the plaintiffs, Atlanta & Charlotte Air Line Railway Company and its lessee, Southern Railway Company. When the action was filed the Director General of Railroads was in possession and control of said railroads, and w'as made a party plaintiff. But the said railroads have been turned back to their owners and the Director General has no further interest in this suit. The real contest is between the plaintiffs, Atlanta & Charlotte Air Line Railway Company and Southern Railway Company, which will be for convenience hereinafter called the plaintiffs, and the city of Easley, which will be called the defendant. The validitv of the assessments is attacked on several grounds. The first contention of the plaintiffs is that said assessments were levied without authority, were unconstitutional when levied and that the curative or validating act of the Legislature passed thereafter could not and did not render them valid and binding, but that they are null and void, and cannot be enforced. The facts out of which this contention arises are as follows:</p> <p>The General Assembly, at the session of 1917, passed an Act ratifying a constitutional amendment to Article 10 of the Constitution of the State ,which provided that “The General Assembly may authorize the town of Clinton and the City of Easley to levy an assessment upon abutting property to pay for permanent improvements on streets and sidewalks immediately abutting said property.” Act 1917, p. 226. Without any Act being passed authorizing such levy, the City of Easley, on December 16, 1917, and thereafter, passed ordinances providing for the levy of said assessments and the collection thereof, and all proceedings relating thereto. The plaintiffs refused to pay the assessments levied against their right of way on the ground that said assessments were unauthorized and illegal and void. By an Act of the General Assembly, approved February 21, 1919, an attempt was made to validate, ratify, and confirm all acts and proceedings had and taken by the City of Easley in levying assessments on abutting property. Acts 1919, p. '585. By an Act of the Legislature, approved March 10, 1919, the City of Easley was authorized to levy such assessments as the constitutional amendment provided for. Acts 1919, p. 84. I do not see that the last named Act has anything to do with the questions involved, as it was passed long after the assessments were levied and after the validating act was passed. So that the real question here is: Did the rati fying act have the effect of validating the assessments? T do not think it did.</p> <p>It was held in the case of Mauldin v. City Council of Greenville, 53 S. C.. 285; 31 S. E., 252; 43 L. R. A., 101 ; 69 Am. St. Ren., 855, that such local assessments were unconstitutional and void. This was the law at the time the assessments in question w'ere levied, and consequently when the City of Easley passed its ordinances for the levy and collection of the same, such ordinances were unconstitutional and void. Does the amendment change the situation? It required legislative authority as a condition precedent to levying said assessments. It was not self-executing, but simply provided that the General Assembly may authorize said assessments. Until such authority was given, the City of Easley was without power, authority, or jurisdiction to pass any ordinance on the subject. Such ordinances were mere nullities. The plaintiffs had the right to regard them as absolutely void, and to ratify them as sought by the City of Easley would be such taking of property as would be a lack of due process of law. In no case can the Legislature authorize the violation of the Constitution or validate an unconstitutional act. Stale v. Whitesides, 30 S. C., 579; 9 S. E., 661; 3 L. R. A., 777; Hode v. School District, 80 S. C.,'518; 61 S. E., 1009. Curative acts can remedy irregularities in judicial proceedings, but cannot cure void proceedings. Black, Constitutional Prohibitions, 208, 209. The Legislature may cure judicial acts which are void through irregularity in procedure. But where the Court in which the proceedings were had possessed no jurisdiction, its acts cannot be validated. 12 Corpus Juris, 1093. I think the true rule on this subject is stated by the Supreme Court of this State in the case of Dove v. Kirkland, 92 S. C., 321; 75 S. E., 503, quoting from Cooley on Con. Lim. as follows:</p> <p>“A retrospective statute, curing defects in legal proceedings, where they are in their nature irregularities only, and do not extend to matters of jurisdiction, is not void on unconstitutional grounds, unless expressly forbidden. Of this class are the statutes to cure irregularities, in the assessment. of propert)'’ for taxation, and the levy of taxes thereon; irregularities in the votes or other action by municipal corporations, or the like, where a statutory power has failed of due and regular execution, through the carelessness of officers or other, cause, irregular proceedings in courts, etc. The rule applicable to cases of this description is substantially the following: If the thing wanting, or which failed to be done, and which constitutes the defect in the proceedings, is something the necessity for which the Legislature might have dispensed with, by prior statute, then it is not beyond the power of the Legislature to dispense with it by subsequent statute. And if the irregularity consist in doing some act, it is equally competent to make the same immaterial by a subsequent law.”</p> <p>I think the foregoing is the correct rule upon the subject rather than the position taken by the defendant that the Legislature can validate any act which it might originally have authorized. This rule is subject to the limitation that there must have been in effect at the time the acts were performed some valid law authorizing the proceedings and conferring jurisdiction to act. In this case it is certain that, at the time the defendant passed its ordinances levying the assessments and attempting to create liens on the property of the plaintiffs it was without even the color of jurisdiction or power to act. The plaintiffs 'and all other persons had the right to treat such proceedings as absolutely void. The Legislature had not authorized these proceedings, and might never do so. The plaintiffs were not bound to assume that an attempt to- validate them would ever be made. To give the ratifying act the effect of validating these assessments, no opportunity whatever being furnished the plaintiffs to contest them, would be depriving the plaintiffs of property without due process of law, which is inhibited by the Constitution of the United States and of the State of South Carolina. This would render the validating act itself unconstitutional. So that, even if the rule contended for by the defendant was the correct one, these assessments are invalid. The Legislature could not have originally authorized them without furnishing opportunities to be heard, for this would have been taking property without due process, and therefore the validating act, which attempts to do this, cannot have the effect of rendering these assessments valid. On this branch of the case my conclusion is that the assessments in question are illegal and void, for the two reasons that when they were levied the City of Easley was without even the color of jurisdiction or authority to do so, and to give the ratifying act the effect of validating them would be depriving the plaintiffs of property without due process of law, which can never be done by a curative or validating statute.</p> <p>The next question for consideration is: What title have the plaintiffs to their right of way through the City of Easley and the extent thereof? In'the year 1871 Benjamin Mauldin conveyed to the Atlanta & Richmond Air Line Railwa)^ Company, the predecessor in title of the plaintiffs, 100 feet on each side of the track or roadway, measuring from the center, for railroad purposes, in fee simple. This deed was recorded as required by law in the proper office on August 14, 1872, in Book B, p. 38. This right of way was over and through a certain tract of land which was conveyed to the said Benjamin Mauldin by William Couch on August 16, 1866, and the deed for which was recorded in the office of the Register of Mesne Conveyance for Pickens County on January 28, 1867, in Book L-l, p. 39. The same tract of land was conveyed in the form of a fee simple deed to the said William Couch by Mahala Mansell on October 29, 1859, and the deed for which Was duly recorded in the proper office on the 16th day of January, I860, in Book 1-1, p. 224. In the month of May, 1854, Joshua Mansell, the owner of this land, departed this life leaving a last will and testament, dated March 6, 1854, which was duly admitted to probate. Mahala Mansell died intestate in the year 1874. On May 25, 1875, Baylis W. Mansell, a son of Joshua Mansell, and the other heirs at law, filed an action in the Court of Common Pleas for Pickens County against James Boswell and others, claiming that the heirs at law of Joshua Mansell were entitled to the 100 acres of land mentioned in the will of Joshua Mansell* and praj^ed that the title to said land might be cleared and quieted.</p> <p>After certain proceedings in said case, on July 5, 1876, Baylis W. Mansell, acting for himself and as attorney for his co-plaintiffs, of the first part, and R. E. Bow:en, H. C. Briggs, and Thos. W. Russell, acting for themselves and for the other defendants, except the defendant Atlanta & Richmond Air Line Railway Company, of the second part, entered into an agreement by the terms of which the title to said land was to be executed under order of the Court to the parties of the second part, as agents or trustees of the defendants they represented. These proceedings were never recorded and seem to have been lost, except an order of the Court dated July 15, 1876, which is recorded in the common pleas journal for the j^ear 1876, page 750. The facts as to this case above stated are taken from the recitals in this order, and the deed made thereunder. This deed was made by J. J. Lewis, Clerk of the Court, to R. E. Bowen, H. C. Briggs, and T. W. Russell, trustees, on the 15th day of January, 1876, and recorded in the office of Register of Mesne Conveyance for Pickens County in Volume C-2, p. 372, on the 6th day of March, 1876. The order above referred to confirms said agreement and directs that the clerk make a deed in accordance with the terms thereof. In this order it is stated that the defendant. Atlanta & Richmond Air Line Railway Company, is excepted. The deed'provides for the sale of the 100 acres of land willed to Mahala Mansell by Joshua Mansell. Under this order and deed the said trustees cut up said lands into lots and sold the same to different parties. Many of the deeds made by the trustees were introduced as evidence. They show that the lots were laid off fronting the right of way and describing the lots as bounding on the right of way of the railroad company. The railroad was constructed in the years 1872 and 1873 through this land, and has been continuously used ever since. The plaintiffs claim that they own as their right of way 100 feet on each side of the track. The defendant claims that they own their roadbed which they have been in the actual use of. It insists that, under the will of Joshua Mansell, Mahala Man-sell took only a life estate, and that therefore the plaintiffs took only an estate for the life of Mahala Mansell in the said 100 feet, but have acquired by adverse possession its actual roadbed and the lands on which the depots stand. Which of these contentions is correct? I have reached the conclusion that the plaintiffs own as their right of way over the land in question 100 feet on each side of the track or roadbed measuring from the center. I have reached this conclusion for three reasons:</p> <p>(1) The testimony shows that the plaintiffs and their predecessors have been in open and adverse possession of the main track, side tracks, and depots on said right of way ever since the construction of the road in 1872 and 1873, claiming under color of title, duly recorded, the full 100 feet on each side of the track. It is a well-established principle that adverse possession of a part or parcel of land claimed under color of title extends to the whole boundary-described in the color of title. In addition to this the plaintiffs had the general use of the entire parcel which was open and being used by the public, but not in a way which was inconsistent with the right of the railroad to use' the entire strip of land for railroad purposes when it decided to do so.</p> <p>(2) The will of Joshua Mansell is not very clear as to whether the Mansell children stood as remaindermen thereunder, but, conceding that they did take as remainder-men, and that the widow, Mahala Mansell, took only a life estate in the 100 acres of land described in said will, such remaindermen, after the death of the life tenant, could not disturb the right of way which the railroad company obtained through and under the life tenant. Their only right would be to recover compensation after the death of the life tenant. There are a number of decisions in this State which hold that the word '‘owner,” as used in statutes authorizing condemnation for railroad purposes, does not necessarily mean the owner of the legal title, but refers to parties in possession. This doctrine is fully set out in the case of Cayce I,and Co. v. Southern Railway Co., Ill S. C, 115; 96 S. E., 725. The same doctrine has been held to be true where a trustee gives the right to the railroad company to build its line through property held as trustee. See the case of Tutt v. Railway• Co., 28 S. C., 388; 5 S. E. .831. This latter case sustains the contention of the railroad company to its right of way through the church property given by the trustees of said property by deed.</p> <p>(3) After the death of Mahala Mansell the children of Joshua Mansell filed an action in the Court and confirmed an agreement by the. terms of -which the 100 acres of land devised to Mahala Mansell for life was under order of Court deeded to trustees to sell said lands and distribute the proceeds. The railroad company was not a party to this agreement, and it was excepted from the order. These trustees .cut up the said 100 acres of land into a large number of town lots which bordered on the right of way of 200 feet as it now is and has been ever since the right of way was acquired. The deeds made to different parties by the trustees in many instances describe the lots as bounded by or fronting on the railroad right of way. I think by this agreement, order of Court, and the laying out of the lots bordering on the right of w*ay and the deeds of the trustees, the Mansell children and all persons claiming under them are estopped from claiming that the right of way of the plaintiffs is less than 100 feet on each side of the track. Especially is this true after the lapse of so many years.</p> <p>It is claimed by the City of Easley that it acquired the 200 feet in question for streets by its long use thereof against the Mansell heirs, except the part actually used by the railroad for its roadbed and depot. The railroad was in possession and claiming this 200 feet three years before the City of Easley existed. It was incorporated March 17, 1874. Acts 1874, p. 706. It has therefore at all times had notice that the plaintiffs claimed this 200 feet under the deed from Benjamin Mauldin, and of the facts hereinbefore recited as to the proceedings taken by the heirs at law e. Joshua, Mansell, and the acts and deeds of the trustees appointed by the Court. Beck v. Railway Co., 105 S. C., p. 319; 89 S. E., 1081. In addition to this, under the decisions of the Supreme Court of this State, neither a town or the public can acquire by prescription the right to use as a street the right of way of a railroad company. Blume v. Southern Ry., 85 S. C., 440 ; 67 S. E., 546. A right of way of a railroad, having been acquired for a public purpose, cannot be lost by prescriptive use or adverse possession unless by the erection of. a permanent structure, accompanied by notice, to the railroad company of an intention to claim adversely to its right. Atlanta & Charlotte Air Line Ry. Co. v. Limestone & Co., 109 S. C., 444; 96 S. E., 188. Taking Joshua Mansell as the common source, my conclusion is that the plaintiffs own as a right of way for railroad purposes 100 feet on each side of the track, measuring from the center thereof through the tract of land described in the deed made by Benjamin Mauldin. If this be true', then the pavements in question are laid down upon the said right of way. The constitutional amendment provides for permanent improvements, and if the railroad company has the right to use for railroad purposes the whole of this 200 feet as established by the foregoing cases, then the improvements could be destroyed., I do- not think the amendment contemplates levying assessments against the right of way of a railroad company w'here such improvements are laid down on the right of way. Nor do I think the right of way such abutting property as the amendment contemplates where there is no legally established street, and a portion of the right of way is paved, and the remaining part thereof charged with assessments as abutting property.</p> <p>The foregoing are my conclusions as to the right of way which was obtained from Benjamin Mauldin. This covers most of the paved district, but there is a small part of the same where the title to the right of way was acquired in a different way. Joshua Mansell and Mahala Mansell, on August 9, 1848, conveyed by deed duly recorded to John Gilstrap, Benjamin Mauldin,- Bradwell Day, W. S. Birge, and Thomas Montgomery 5 1-4 acres of land as trustees of the Methodist Episcopal Church. The conveyance was in trust to build-1 a house of worship on said land for use of the members of the Methodist Episcopal Church, South, according to the rules and discipline which may from time to time be agreed upon and adopted by the ministers and preachers of said church and their General Conference. On March 11, 1878, by deed duly recorded, the trustees of said Methodist church conveyed to the plaintiff, Atlanta & Charlotte Air Line Railway Company, and its successors and assigns, a strip of 25 feet, beginning at a certain point in the center of the right of way, in width, by 640 feet in length, on the northern side of the railroad track, and 100 feet by 640 feet on the southern side of the railroad track. There is no pavement on the 25 feet, but they are laid on about 40 feet on the southern part of the 100 feet, for which, a part of the assessments in question, charge is made. I think the plaintiffs have good title to these two strips of land. The deed is in fee and the possession of the plaintiffs has been of the same character as their possession of the 200 feet claimed under the deed from Benjamin Mauldin, and most of what I have said in discussing plaintiff’s title to that 200 feet is applicable here. Besides, I do not see how the defendant can question this title. No one can do so except the Methodist church, which has never objected. Besides, from the long adverse possession of the plaintiffs and acquiescence of the said Church, it will be presumed that the trustees making the deed were authorized to do so by the proper authority. '</p> <p>The idea cannot be entertained that men of high character as trustees of a Christian church would make a deed without authority, especially when the valuable ’ consideration of $350 is stated in the deed. By this deed, by adverse possession and the statute of limitations, I think plaintiffs have acquired title to these two strips of land, and all I have said hereinbefore as to the pavement on the right of wa)»- of the plaintiffs for the 200 feet acquired through Benjamin Mauldin is applicable, and need not be repeated. If the plaintiffs had only their roadbed, as contended by the defendant, I do not think these assessments could be sustained. I do not think the constitutional amendment contemplates a mere easement of this kind, and such roadbed would not abut upon the pavement, there being an intervening strip of land of from 15 to 30 feet in width between the roadbed and the pavement. I do not see any merit in the contention of the defendant that there was an old .public road 15 or 20 feet wide which extended along the southern side of the strips of land conveyed to the plaintiffs or their predecessors. This could not prevent the said railroad from acquiring the right of way described in their deeds. Two easements over the same property may exist; the owner of each would have to so use it as not to destroy the easement of the other.</p> <p>The next question I shall consider is: Can assessments of the kind in question be levied on a right of way of a railroad company? On this question the authorities differ. I doubt if the amendment to the Constitution under consideration contemplates levying assessments against such property. But if it does, I am satisfied a railway roadbed or right of way is not subject to such assessments unless benefitted thereby*-. The rule is so stated in 25 Ruling Case Law, p. 117, where the authorities are collected. This benefit must be actual and real, and not conjectural. In the case of New York R. R. Co. v. Port Chester, 149 App. Div. 893; 144 N. Y. Supp. 883, affirmed in 210 N. Y. 600; 104 N. E., 1135, the New York Court, in considering this question, said: “It is difficult to see how such property can be benefited by the improvement of a village street passing under it. The only benefit that the learned corporation counsel specifically claims will inure to the railroad company from these improvements is an increase in its business following the increase in business and population resulting to the village from the improvement of its streets. This alleged benefit is too conjectural, fanciful, and remote for consideration.”</p> <p>The authorities on this subject are collected in Ann. Cas. 1916E, p. 581, and 3 Ann. Cas. p. 11. In a note to the last named case the writer reviews the federal decisions upon this subject,, and says they establish these important principles: “That State laws providing for assessing the cost of street improvements upon abutting property, which in practical operation do confiscate property, are obnoxious to the Fourteenth Amendment to the Constitution of the United 'States, and for that, reason it is the duty*- of the Courts to declare them to be void; that special assessments to pay for local improvements of public streets and highways do, in practical effect, deprive owners of their property without due process' of law, unless the property ‘ subject to assessment is benefited by the improvement correspondingly to the amount of the assessment; that owners of property have the right to appeal to the Courts for judicial protection against the unconstitutional invasion of their rights by municipal governments in enforcing State laws or local regulations for the collection of assessments which are in excess of the benefits to the property assessed, accruing or to accrue by reason of the • improvements to be paid for by such assessments.” In this State the doctrine that local assessments -of this kind benefit abutting property is repudiated. Mauldin v. City Council of Greenville, 42 S. C„ 293; 20 S. E., 842; 27 R. R. A., 284; 46 Am. St. Rep. 723. I do not think the testimony in this case .shows benefits to the plaintiffs’ right of way as justifies the levying of these assessments. The plaintiff’s, testimony is to the effect that there was no benefit, and the testimony of the defendant relates to general and speculative benefits. Besides, it appears from the testimony that the strip of land claimed as a right of way was, up to 19J.7, one wide space of 200 feet with the railroad tracks in the center thereof. But in the j^ear 1917 the city renamed its streets and denominated that portion of the 200 feet on the south side of the railroad track South Main Street, and that portion on the north side of said track North Main Street. The assessments in question are levied against the right of way on both sides of the track, which does not touch the pavement on either side of the track, while the business houses and private property abut on the paved area. Such a method of assessment, I think, is discriminatory and inequitable, and amounts to a taking of property which is contrary to both the State and Federal Constitutions, and renders the assessments void.</p> <p>The only remaining point in the case is the contention of the defendant that the plaintiffs are estopped to question the validity of these assessments. It claims that, 'when the double tracking of the main line w,as about to begin through the City of Easley in 1916, the Southern Railway Company applied to the City of Easley for permission to do the work, and to widen South Main Street; that plaintiffs did not object to the assessments when notice thereof was given under the ordinances to the depot agent and superintendent. I do not think this position can be sustained. The permission asked was done in the interest of the safety of the public during the construction work, and in no sense involved the question of plaintiff’s title. The public was using the right of way as a street, and could use it only in such a way as whs not inconsistent with its use by the railroad company. In the next place, when the notices in question were served, the Director General of Railroads of the United States was in possession and control of the railroads and persons upon whom these notices were served were the agents of the Director General, and not of plaintiffs. In the next place, the assessments being void for want of jurisdiction or authority to levy them, there is no estoppel here. Ann. Cas. 1915B, note, p. 753; 38 E. R. A. (N. S.) 584; O’Brien v. Wheelock, 184 U. S„ 450; 22 Sup. Ct, 354; 46 E. Ed., 636.</p> <p>I have endeavored to pass upon all the questions arising in this action, and have reached the conclusion that the assessments in question are invalid for the reasons herein-before given. It is therefore ordered, adjudged, and decreed that the assessments levied against the property of the plaintiffs described in the complaint are null and void; and that the plaintiffs are not liable for the same.</p> <p>It is further ordered, adjudged, and decreed that the temporary injunction heretofore granted in this action be made perpetual, and that the defendants, their agents and servants be, and they are hereby, enjoined from collecting or attempting to collect the said assessments by sale of the property heretofore levied upon by them or otherwise.</p> <p>Let all the record used before me at the hearing be filed with this decree.</p> <p>cite: Levy of paving assessments authorized: 29 Stat. 250; 30 Stat. 226; 31 Stat. 585. Easement may be lost by abandonment: 89 S. C., 395; 87 S. C, 74. Evidence shows abandonment: 93 S. C, 397; 89 S. C, 391. Company presumed to know its title: 67 S. C, 452. Encouraged use by others: 246 Eed. 386. Right of way subject to paving assessment: 12 L. R. A. (N. S.) 112; 12 L. R. A. (N. SR 121; 197 U. S, 430; 170 Pac, 216; 10 A L. R, 157; 144 S. W, 1086; 59 S. W, 248; 39 N. E, 1077; 46 N. E., 629; 48 Pac, 877; 49 N. E, 375; 45 N. E, 575; 46 N. E, 597; 77 N. E, 741; 47 Pac, 237. Railroad is benefited by paving: 251 U. S, 182. Not exempt even zvhen exempt from taxation:. 147 U. S, 190; 25 R. C. R„ 117; 25 A. & E. Ene. R. 1187-8; 28 Cyc, 119; R. R. A, 1915-A, 129; 76 S. W, 1097. Assessment by the front foot is valid zvhere none other is prescribed: 34 Pac., 969; 91 Pac, 470; 51 N. W, 566; 76 N. *Y. Supp, 49; 3 Mackey, 142; 47 Iowa, 222; 14 N .W, 78; 80 Mo, 379; 113 111, 65; 114 111, 217; 58 R. R. A, 372; 5 Am. St. Rep, 637; 70 Ga„ 817; 125 N. W„ 392; 40 N. E., 28; 78 Ky, 357; 28 R. R. A. (N. S.) 1161; 52 R. R. A. (N. SR 287; 161 S. W„ 1118; R. R, A. (N SR 1917-D, 372; 99 S. E, 188; 181 U. S., 389; 181 U. S„ 394; 125 U. S„ 345 ; 147 U. S, 190; 167 U. S, 589; 239 U. S, 207; 250 U. S, 454. Legislature can validate any act which il might originally have authorised: 9 Cyc., 1024; 25 A. & E. Ene. E., 1169, 1228; 12 C. J., 1096; 25 R. C. R., 94; 21 S. C„ 414; 80 S. C., 518; 30 S. C„ 579; 30 S. C„ 587; 92 S. C., 313. Legislature may validate a town ordinance which was originally void: 28 Cyc., 376; 1 N. & McC., 22.7; 14 Am. St. Rep., 308; 25 R. C. L., 795; 21 S. C.,' 414. Legislature may retrospectively impose an assessment for improvements already made: 235 U. S., 207; 245 U. S., 288; 248 U. S., 500; 239 U. S., 254; 41 Vt, 590; 29 Wis., 400; 177 Mass., 434. Otherwise it would be hard to justify reassessments: 172 U. S., 269; 122 U. S., 154; 43 Pac., 364; 43 Pac., 367; 47 Pac., 1102; Cooley Tax’ll. (3rd Ed.) 1280; 64 Pac., 791; 62 Pac., 444.</p> <p>cite: Assessments for local benefits unconstitutional prior to 1917: 53 S. C., 285 ; 25 R. C. E., 101. Curative statutes are only effective where a 'statutory power has failed of due and regular execution: 92 S- C., 321; 80 S. C., 518. But cannot validate an unconstitutional act: 30 S. C., 586; 21 S. C., 414; 54 S. C., 457. Ordinance beyond powers of municipality cannot be validated: 28 Cyc., 377; 76 Am. Dec., 529; Coolej'- Con. Eim. (7th Ed.) 528; McQuillan Mun. Corp., Sec. 707; Dillon Mun. Corp. (5th Ed.) Sec. 127; Wade Retroac. Laws, Sec. 266-9; Black Con. Law, Chap. 22. Office of proviso in statute: 15 Peters, 423; 25 R. C. L., 894; 10 Wheat, 1; 10 Peters, 449. Legislature presumed to know the law: 109 S. C., 301. Only remedy to remaindermen after life tenant has conveyed right of zvay is for compensation: 111 S. C., 115. Railroad chartered and in possession of right of zvay before Pasley existed: Acts 1874, p. 706. Pasley had full notice of 200 foot right of zvay claimed: 105 S. C., 319. Town cannot acquire by prescription right to use right of zvay as a street: 85 S. C., 440; 109 S. C., 444. Trustees had same right as life tenant to make deed: 28 S. C., 388. Railroad shall not obstruct highway. Ill S. C., 140. Right to assess right of way for paving must be based on benefit to railroad: 25 R. C. R., 117, 138. Not by front foot: 71 Am. St. Rep., 884; 68 Am. St. Rep., 714; 70 Am. St. Rep., 306; 25 R. C. R., 14-7. If benefit is in proportion to assessment it will be sustained even if made by the front foot: 172 U. S., 303; 181 U. S-, 399; 181 U. S., 394; 181 U. S., 389; 181 U.S., 404; 181 U. S., 33; 181 U. S., 371. Agents of government not agents of railroads: 114 S. C., 139; 113 S. C., 181. Rstoppel by condtict: 97 S. C., 116; 13 S. C., 370; 25 R. C. R„ 181; Ann. Cas. 1915B, 753; 107 S. C„ 39; 111 S. C., 57; 82 S. C., 36; 85 S. C., 134; 65 S. C., 267. Adverse possession of right of way: 67 S. C„ 499; 85 S. C., 440; 109 S. C., 44.</p>

Before Sease, J., Greenwood, April, 1920. Action by Jane Wideman as Administratrix of J. N. Wideman, deceased, against Walker D. Hines, Director General of Railroads. From judgment for plaintiff defendant appeals.

Before Rice, J., Beaufort, March, 1920. Action by Emily K. Turner et al. against Morton K. Moore and J. B. Turner. Judgment for defendants and plaintiffs appeal. cite: Habendum of deed to grantee in fee after the death of the grantee was insufficient to change the character of the instrument to a will: 37 S. E-, 378 (Va.) ; 10 ■Rich. Ecp, 217. Payments of a child for its parent presumed gratuitous: 132 Ala., 85; 31 S. C., 458.

Before McIvEr, J., Sumter, Fall term, 1919. Action by Frank Robinson against Atlantic Coast Line Railroad Co. Judgment for plaintiff and defendant appeals. Exceptions referred to in opinion follow: 1.