Volume 118 — South Carolina Reports

Writ of certiorari by J. E. Harris to review the findings of B. F. Sims and others as the State Board of Dental Examiners, revoking his license as a dentist. From order dismissing petition Harris, the petitioner, appeals. cite: Prosecution brought under 29 Stat. 218; Act in violation of 14th Amend., Const. U. S. and Art. I, Sec. 5, Const. S. C., 1895: 141 Pac., 132; 51 L. R. A. (N. S.) 958; 127 U S., 678; 32 E. Ed., 253; 49 L. R. A., 181; 1 Tied.

<p>Before Townsend, J., Richland, July, 1920.</p> <p>Action by Gulf Refining Co. against W. J. McCanless and Thos. J. Deathley. Verdict for defendants and plaintiff appeals.</p> <p>cite: Provisions of Sec. 3740, 1 Civ. Code 1912, do not apply to property rented for temporary use: 109 S. C. 312.</p>

Before Wi-ialKy, J., County .Court, Richland County, January, 1921. Action by W. F. Holman, as administrator of T. C. Holman, deceased, against -M. Eileen Farrell. Judgment for defendant and plaintiff appeals. cite: Admission against interest is admissible: 104 S. C., 217; Jones Evid., 317, 368; 1 R. C. L. 488, Sec. 26.

<p>Pleading—Order striking out answers as sham and frivolous held proper.</p>

Before MclvER, J., Abbeville, September, 1921. Hamp Williams indicted for the killing of Ben Patton and upon conviction of manslaughter appeals. cites: State must prove corpus delicti: 85 S. C. 265.

Before Whaley, J., County Court, Richland, April, 1921. Action by Gracie Lee and Willie Lee, her husband, against the Town of Eau Claire.

<p>Before MclvER, J., Marlboro, October, 1920.</p> <p>Rosa McCain indicted for the murder of Walter McCain and upon conviction appeals.</p> <p>cites: Not sufficient proof of venue to bring this case within the principle of 3 Hill 91; 6 S. C. 383; 61 S. C. 207; 35 S. C. 91.</p>

Before Mauldin, J., Bamberg, March, 1921. Proceedings on a claim of H. M. Brabham against Mrs. Lura Brabham, as executrix of Sue Turner, deceased, opposed by T. E. Turner, a brother of deceased, and a legatee under'her will. From an order of the Circuit Court sustaining the allowance of the claim by the Probate Judge, T. E. Turner appeals.

Before Townsend, J., Charleston, August, 1920. Proceeding by J. A. Guerin, as petitioner, against Reta Baring Hunt and Florence Goodrich Hunt to prove the will of A. Morton Hunt- in solemn form.

Before McIver, J., Union, March, 1921. Palmer Elders indicted for assault and battery with intent to kill, and upon conviction appeals. cite: Wide latitude allozved in cross-examination: 40 Cyc., 2492, 2480-81; 12 Rich., 654. Oral argument.

Before Moore, J., Berkeley,-, 1917. Action by S. Behrman against Atlantic Coast Line Railroad Company. From judgment for plaintiff the defendant appeals. cite: Carrier has right to adopt reasonable regulations: 4 R. C. L., Sec. 138. What constitutes delivery to carrier: Moore on Carriers (2nd Ed.), Vol. I, 174-5; 77 S. E., 994; 72 S. E. 463. cites: Carrier may accept goods even before bill of lading is issued: 38 111., 354; 87 Am. Dec., 301; 81 111., 511; 36 N. Y. Sup.

Before Bowman, J., Dorchester, July, 1921. Action by Shulie DeHay et al. against C. V. Smith et al. From order sustaining a demurrer to the complaint on the ground of defect of parties interposed by C. V. Smith, the plaintiffs appeal. cite: Question is rule of practice, not jurisdictional: 106 S. C., 494. If brought within a year after death of the owner action would have been premature: 18 S. C., 55; 49 S. C., 61; 106 S. C., 494; 1 Civ. Code 1912, Sec. 3962.

Before MemmingLr, J., Marion, spring term, 1921. Action by School District No. 19, of Marion County, against Marion County. Judgment. for plaintiff and defendant appeals.

Before Peurieoy, J., Bamberg, November, 1920. Action by Bamberg Banking Co. against Addie H. Matthews et al. Judgment for plaintiff and the defendants appeal. The portions of the circuit decree which construe the deeds to the land in controversy are as follows: This brings us to the eighth exception of the defendants, relating to the construction of certain deeds.

Before Moors, J, Laurens, November, 1920. Action by J. J. Adams against S. M. Wilkes et al, partners as S. M. & E. H. Wilkes & Co. Verdict for defendants and plaintiff appeals. cite: Bxpert witness may give opinion from known facts: 57 S. C„ 448; 59 S. C., 318; 65 S. C, 26. Attorneys should have been allowed to accompany jury to the locus: 38 Cyc, 1314; 98 Fed, 830; 39 C. C. A, 318.

<p>Before Gary, J., Greenwood, June term, 1920.</p> <p>cite: Prosecution under Sec. 44J Crim. Code ipi2; taking property into, another State does not constitute a disposition of it within the Act: 43 S. C. 200; 74 S. C. 450.</p>

Before Bowman, J., Orangeburg, June, 1921. Action by Flenrietta Frederick et al. against W. C. Culler. Held: together with the testimony taken. cite: Child of Dolly not entitled to inherit: 93 S. C., 427. Common law marriage of George and Bettie consented in by Master and followed by cohabitation, is lawful: 26 Cyc., 837. Marriage after 1865 with the first common law wife was valid: 26 Cyc., 877. Issue of bigamous marriage is spurious: Rich.

Before Mauldin,’J., Berkeley, December, 1920. Action by J. Russell Williams and C. P. Ballentine against American Railway Express Co. et al. Defendants de-. faulted and on motion Judge Bowman allowed them ten' days to answer.

Before Mauldin, J., Allendale, February, 1921. G. B. Poe convicted of drawing draft without sufficient funds to meet same and appeals. Oral argument. cites: Act does not amount to imprisonment for debt: Crim. Code 1912, Sec. 208; 28 Stat., 489; 64 S. C., 206. Intent: 36 S. C., 506.

Before Peurieoy, J., Aiken, —=-, 1920. Á. J. Randall indicted for the murder of Minnie Keenan (a man) and upon conviction of manslaughter appeals. The exceptions follow: ■ First. The defendant excepts to the charge of his Honor, the presiding Judge, in that: .

Before Prince, J., Laurens, March, 1919. W. Robert Burdette indicted for the murder of D. D. Stoddard. Upon conviction of manslaughter defendant appeals. Defendant must have been free from fault in bringing on the difficulty to avail himself of plea of self-defense: 141 Ala., 32; 24 S. C., 283; 43 S. C., 132. Legal duty of brother to protect sister: 13 R. C. L., 836; 78 S. C., 253.

Before Peurieoy, J., Hampton, June, 1921. W. A. Mason indicted for failure, as County Treasurer,' to turn over funds of office to his successor, and upon conviction appeals. The testimony, charge, and exceptions follow: Testimony R. E. Jones, sworn: I am an accountant from the office of the Comptroller General. I made an audit of the books of W. A. Mason, Treasurer of Hampton County, in November and Decem- ' ber, 1920.

Before Rice, J-, Darlington, Fall term, 1920. Albert Thompson convicted of manslaughter and appeals. cites: Declaration, if not part of res gestae, may be admissible, to contradict witness: 7 Ene. Ev. 76; 37 S. C., 417; 34 S. C., 16. Statement of' deceased favorable to defendant admissible: 4 Rich. D. 146. i

Before Wieson, J., Richland, December, 1920. Action by W. J. Griner against Columbia Creamery Co. From directed verdict for defendant the plaintiff appeals. cite: Principal is liable for acts of agent within apparent scope of his authority. 37-S. C., 377; 58 S. C., 143; 65 S. C., 75; 67 S. C., 395.; 69 S. C., 413; 76 S. C„ 211; 77 S..C., 246; 3 S. C., 1; 94 S. E., 490.

Before Rice, J, Barnwell, August, 1921. Action by Lawrence Bradley against Life & Casualty Insurance Co. of Tennessee. From order affirming judgment of Magistrate for the plaintiff, the defendant appeals. cite: Circuit Judge should arrive at his own conclusion on appeal from Magistrate: Code Proc.

Before Memminger, J., Abbeville, September, 1919. Toseph Johnson, convicted of larceny of live stock and appeals. cites: Where there is no evidence to support verdict it is error to refuse new trial: 67 S. E. 129.

Before Wilson, J., Williamsburg, June, 1921. Tom Poston indicted for the murder of J. H. Miller and upon conviction, with recommendation to mercy, appeals. cite: Accused should have copy of indictment three days before arraignment: Crim. Code 1912, Sec. 66.

Before DlVorE, J., Colleton, March, 1921. Action by Nettie Kinsey as administratrix of Grady Kinsey against Colleton Cypress Co. From judgment for plaintiff defendant appeals. cite: No duty to warn servants where danger is obvious: 26 Cyc. 1169, 1196, 1202, 1204, 1241; 85 S. C., 372; 44 R. Rl A. 34; 85 S. E., 152; 72 S. C., 237; 93 S. C., 193; 55 S. C., 483; 48 S. C., 190; 70 S. C., 476; 84 S. C., 283; 27 S. C., 75; 102 S. C., 281; 111 S. C., 372; 102 S. C., 409.

<p>Husband and Wife—Evidence of Failure to Support Wife and Child Held Insufficient to Go to Jury.—In a prosecution for failure to support wife and child, evidence held insufficient to warrant submission to the jury.</p>

Before Rice, J., Williamsburg, 1921. Suit by Middleton & Co. against H. W. Cockfield and others, in which the named defendant filed a petition claiming to be subrogated against the plaintiff as to the proceeds of a sale of land under foreclosure. From an order dismissing the petition such defendant appeals. Affirmed.

Before SEASE, J., Anderson, March, 1921. Action by Mrs. Cora E: Dacus against Williamston Mills. Judgment for plaintiff and defendant appeals cite: Liens for rents: 1 Civ. Code 1912, Sec. 4162. And for advances: Id. Sec. 4165. Landlord’s lien should he recorded: 96 S. C., 313. cites: Court charged the law of 96 S. C,. 313.

Before Moore, J., Spartanburg, August, 1921. John Smith and Tom Howard indicted for larceny of live stock and upon conviction appeal. cites: Not an dement of the crime being proven a verdict should have been directed: 19 S. E., 106; 94 S C., 871. Where facts are equally subject to two constructions—one of guilt-and one of innocence —the latter shoúld be adopted: 78 S. E., 866. Oral argument.

<p>Before Mauudin, J., Greenville, June, 1921.</p> <p>Action by Arch Jamison against J. E. Thackston. Erom order of nonsuit plaintiff appeals-.</p> <p>cites: Grantor is liable for deficiency in acreage: 2 McC. 440; 3 Strob. Eq. 199; 1 Bay 256; 1 Bay 278; 2 Bay 11; 2 Bay 558; 2 N. & McC. 186; 1 McC. 121; 1 McC. 466; Harp. 441; 1 Bail. 128; 2 Hill 657; 2 Speer 68; 1 Rich. L. 417; 23 S.'C., 205; 41 S. C„ 198 ; 98 S. C., 286; 112 S. C., 349; 115 S. C., 439. Covenants of warranty. 9 Rich. E. 374; 12 S. C., 56; 5 Stat. 225; 1-Civ. Code 1912, Sec. 3453.</p> <p>Where sale of land is in gross there can be no recovery for deficiency in acreage: 98 S. C., 286; 115 S. C., 439; 23 S. C., 205; 41 S. C.,198; 8 R. C. L. 136; 20 A. & E. Ene. L. 873-75; 29 Id. 625-29; 28 A. E. R. 631; 4 E. R. A. 527; 30 Cyc. 1586; 106 S. E., 596; 54 S. E., 506; 107 S. E., 437; 112 S. C., 349; Harp. 290.</p>

Before Wi-ialEy, J., County Court, Richland, May, 1921.* Action by Mrs. E. P. Wilson against Mrs. W. B. Dove. . From judgment for plaintiff the defendant appeals. cites: Grantee in tax. deed not precluded by recitals in it and their incorrectness may be shown: 24 A. & E. Ene. E. (2nd Ed.) 59; 4 Enc. Ev. 185; 12 Id. 550, 555, 557; 113 Am. St. R. 290; 26 R. C. L. 422-424; 165 C. C. A. 606; 254 Fed. 379; 2 Hill 396; 2 N. & McC. 349; 109 S. C., 31.

Before FeathErstonE, J., County Court, Greenwood, June, 1921. Action by J. E. Pinson against South Atlantic Realty Co., and S. F. Perry. Verdict directed for defendant Perry. Judgment for plaintiff and defendant Realty Co. appeals. No citations. Pailure to call Court’s attention to error in charge will not be considered first on appeal: 41 S. C., 177; 96 S. E., 490; 27 S. C., 613; 34 S. C., 235; 35 S. C., 27; 35 S. C., 459; 40 S. C., 537; 42 S. C., 474.

Before SeasE, J., Greenwood. Action by Seymour & Co. against S. F. Perry. Judgment . for plaintiff and defendant appeals. cite: Action is within Statute of Prauds: 1 Civ. Code 1912, Sec. 3738; 72 S. C., 35; 106 S.'C., 7; 30 S. C., L. 100; Verdict was capricious on its face: 92 S. C., 425; 78 S. C., 458. cite: Statute of Prauds has no application: 3 Hill L. 41; 1 Brev. 8; 69 S. C., 478; 68 S. C., 376.

<p>Before Gary, J., Anderson -1921.</p> <p>Action by A. C. Hall against Clarence E. Locke. Judgment for plaintiff and defendant appeals.</p> <p>cite: Machine only liable: 106 S. C., 367. Lien is superior to a mortgage and to homestead claim'. 112 S. C., 259.</p>

<p>Before PsuriRoy, J., Dorchester, March, 1920.</p> <p>J. A. Green indicted for murder and upon conviction of manslaughter appeals.</p> <p>The appellant was indicted for the murder of one J. W. Mizzell, through the instrumentality of a trap or spring gun. The jury found him guilty of manslaughter, and he was sentenced to two years’ imprisonment, whereupon he appealed to this Court.</p> <p>W. B. Mizzell, a brother of the deceased, testified that he and his brother, the deceased, had been on a visit to a neighbor’s house on Sunday afternoon, the 4th of January, 1920, which house was located some distance from the old residence owned by J. A. Green, and that, upon leaving the home of the friend whom they were visiting, they went out of the road some 500 feet to the residence of J. A. Green, the defendant, and, upon getting to the residence, admittance to which from the road was gained by way of a broken place in the wire fence, found the gate leading to the residence locked; the date of the homicide being January 4, 1920, Sunday evening. They reached the residence, and J. W. Mizzell, the deceased, looked over the premises somewhat, and said it was going to rack, and started to go into the house, forcing an entrance by breaking a lock at the bottom of the stairway leading to the upper story. Witness told his brother, the deceased, J. W. Mizzell, that it had been reported that the house had been dynamited, and that, if deceased did not want to get hurt or killed, he had better not go in the house, and that witness refused at the request or suggestion of the deceased to go in the house. After .forcing open the door at the bottom of the stairway on the first floor, the deceased went upstairs, leaving the witness on the ground near the building. Witness heard a crash upstairs and the report of a gun, and heard his brother, the deceased, cry out, “Oh, Lord; I am shot with a dynamite.”</p> <p>Witness was called by deceased, and, running to him, found him scuffling downstairs. Witness picked him up, and assisted him onto the porch and then out into the back yard, where he laid him down. Witness gave the alarm for assistance, and while the alarm was being made his brother died.</p> <p>Witness stated that, according to his recollection, the house had been vacant for four to, six years, with periodical visits to the same by defendant, accompanied by defendant’s wife, when they stayed in the house from one to several days at each visit at intervals.</p> <p>On cross-examination, the witness, Mizzell, stated that his brother, the deceased, J. W. Mizzell,.had said before going upstairs that he (the deceased) had had a dream a few nights before that old man Green (Cummings), the grandfather of the defendant, had buried gold under the fireplace upstairs, and he was going to see if it was true.</p> <p>The only witness for the defense was the defendant, J. A. Green himself, who testified that he had inherited this plantation from his grandfather some years before; that he had lived on .the place for some years with his wife, farming the lands; .that he concluded to move to Charleston, but continued to own the place, renting out a part of it and share-cropping the other; that he had been living in Charleston for several years last past; that about once every two weeks he would come up from Charleston to his place, which is about 30 miles from Charleston, near Ridgéville, to overlook his farm and the tenants; that often Mrs. Green, who is an invalid, accompanied him, and that they would spend from one to two or three days in the house, cooking and sleeping therein; that he planted a garden and carried vegetables back to Charleston with him; that he kept a part of the house furnished so that he could live in it when he came up from Charleston; that he had beds and furniture upstairs and cooking stove, tables, and cooking utensils downstairs; that in the particular room where the trap gun was set upstairs he had some old family furniture of mahogany, walnut, etc., which he prized very highly; that a number of depredations upon his property and thefts had been committed, which seemed to grow worse; that some of his furniture had been mutilated, and the locks to the doors broken, and the mantels torn down; that he built a strong wire fence along the public road about 500 feet from the residence, and locked the gate; that he locked, on his last visit before the death of Mizzell, the door at the bottom of the stairs on the first floor, and put two locks to the door of the room where the trap gun was set.</p> <p>On his last visit there preceding the homicide there had been so many depredations and thefts of his property that he thought he was warranted in taking some steps to protect the property in his absence. So he set the trap gun in a dry goods box and fixed it so it would shoot if a person broke open the door, which was locked with two locks. After fixing the trap gun he went out of a window and came down. The bottom door was locked also, and he put a strong lock on the gate to the fence protecting the house. His purpose in putting the trap gun there was to protect his property, and if the locks were broken and a person forced his way in the gun would shoot him. He endeavored to protect any innocent person by locking the yard fence gate, locking the door at the bottom of the stairs on the first floor, and by putting two locks on the door of the room containing the trap gun, which, he thought, would protect or warn any person except a desperate thief. Of course, if any one broke open the locks and the door the gun would shoot, because that was what he had put it there for, to protect his property. If he had any one in mind, any malice towards any one, or. had desired to ■ kill anybody, he would have used larger shot, not small shot. The defendant knew Mizzell well; rented land to him; but he did not live on the place nearby. Defendant is 50 years old, and married for years.</p> <p>Dr. J. W. Ackerman testified as follows: Was called upon by Magistrate Vaughn, acting coroner, to make a post mortem examination of the dead body of J. W. Mizzell. He was lying on his back. Upon turning him over found upon examination a hole in his back caused from small shot from a shotgun, the shot entering his back about middleway of his left side, slightly ranging upward; the majority of the shot entered a space of about 2 1-2 or 3 inches to a radius of about 4 inches, and that this wound was sufficient to cause death.</p> <p>The record contains the following statement:</p> <p>The presiding Judge delivered a general charge to the jury in which he defined murder and manslaughter. He also charged the jury that'a person would have a right to protect his home or dwelling against one who was committing or attempting to commit a felony in respect thereto. He further charged the jury that, if a person ,set a trap gun in such a place and in such a manner as to evince a reckless disregard for human life, and a human being was killed, such a homicide would be murder. He further charged the jury that, if a person was negligent and careless in setting any trap' gun or dangerous instrumentality in such manner that a human being was killed, such killing would be manslaughter, if the element of malice was lacking. He further charged the jury that a person has the legal right to set qut a trap gun or any dangerous instrumentality, likely, to, cause injury to any human being, only when he has exercised, under all the circumstances, due care, prudence-, precaution, and regard for the safety and protection of'human life. He further charged the jury to give the defendant the benefit of every reasonable doubt arising out of 'any or all of the testimony. He explained to the jury the several forms of verdict which they might find in the case, to wit: Murder, which would mean death in the electric chair; murder with a recommendation to the mercy of the Court, which would mean life imprisonment; manslaughter, which would mean 2 to 30 years, imprisonment in the discretion of the Court; or not guilty.</p> <p>The defendant submitted several written requests to the Court, which were charged or refused, as follows:</p> <p>(1) That the question was one of intent, and that this was a question of fact largely for the jury to determine. (Charged subject to the limitations in the general charge.)</p> <p>(2) That a dwelling house is where a man lives; and a man may have more than one dwelling. (Charged).</p> <p>(3) That a man has the right to defend his hibitation against one who manifestly intends to commit a felony in respect thereto. (Charged).</p> <p>(4) That, if a person break and enter a dwelling house with intent to commit a felony therein, this constitutes a felony which the owner may repel, using such force as is reasonably necessary. (Charged).</p> <p>(5) That such a case as this is tested by the law of self-defense, the trap gun representing the owner of the dwelling; that if the owner of the dwelling would have the right to shoot, if present in person, then he would have had the right to set a trap gun to defend his dwelling house in his absence; and that, if present in person he would have a right to act upon appearances in repelling a threatened felony, so it would not be unlawful to set a trap gun in a bedroom in a dwelling, locking the door, so that such a trap gun would fire if any person attempted to break or force the door, purposing to commit a felony therein; the trap gun, so to speak, acting upon appearances also. (This request was refused).</p> <p>The defendant appealed upon three exceptions, but the second was withdrawn. The first and third exceptions are as follows:</p> <p>. “(1) The verdict and the judgment of the Circuit Court is wholly without testimony to support the same, in that the undisputed testimony shows that (1) the deceased, when shot, was breaking into the dwelling house, upstairs; (2) that the trap gun was set in a room upstairs in the dwelling, both doors, downstairs and upstairs, being locked to warn the casual or curious not to enter; that (3) the deceased broke the lock and forced the door downstairs, and was in the act of, and actually did, break the lock and force the door upstairs when he was shot; that (4) the deceased was, at the time shot, committing,1 or apparently attempting to commit, a felony in the dwelling house of the defendant; and (5) that the deceased was warned by his own brother, who was present, and with him at the time and place he was shot, not to enter or attempt to enter .the dwelling in question, as it was reported by the owner to be dynamited.’ ”</p> <p>“(3) The Circuit'Judge erred in refusing to charge the jury that a case such as this is to be tested by the law of self-defense, the trap gun representing the owner of the dwelling; that if the jury believed the owner, if present, would have had the right to shoot the deceased under the circumstances, then he had a right to set the trap gun; and that, as the owner if present would have had the right to act upon appearances, so he had the right to set a trap gun which would fire if a person attempted to break and force an entry into the room in the dwelling, intending to commit a felony therein; the trap gun would be, under such circumstances, so to speak, acting upon appearances also.”</p> <p>cite: A person may dwell in tzvo or more places: 10 A. & E. Ene. E. ('2nd Ed.) 353. Place of residence is a question of intent: 107 S. C., 213. Breaking and entering a dwelling house is a felony and may be repelled by such force as is necessary: 85 S. C., 277.</p> <p>cite: No motion for a directed verdict, which prevents consideration of question of correctness of verdict: Rule 77, Circuit Court; 83 S. C., 309; 105 S. C., 42; 110 S. C., 315. Question of criminal negligence was for jury: 29 L. R. A., 154; 15 Ann. Cas., 584 (Wash.) ; 14 L. R. A. (N. S.) 346. Mere breaking and entering without criminal intent is not a felony: 85 S. Cv 273.. Accused could not do in his absence zvhat would have been unlawful if present: 31 Am. Rep. 1, 59 Ala. 1. Use of trap 'gun was criminal homicide: Whart. Cr. L., Secs. 418, 553.</p>

Before DeVorE, J., Greenville, November, 19'20. Action by Henry Fleming against J. Pickens Chappell. Judgment for defendant and plaintiff appeals. cites : Jurisdiction of infant to order sale of land: 12 R. C. R., 1139; 39 S. E., 755; 88 S. C., 189; 26 S. E., 189; 10 S. E., 262. Infant received no money from sale and never ratified it': 7 S. E., 811; 75 S. E., 545; 25 S. E., 198; 68 S. C., 331; 27 S. C., 303; 76 S. C., 570.

Before Peurieoy, J., Williamsburg, Spring term, 1921. Action by Bagnal-Rankin Motor Co. v. NesmithFlowers Co. From directed verdict for plaintiff the defendant appeals. Plaintiff sold defendant an automobile truck and took a chattel mortgage to secure payment of the purchase price, providing that on defendant’s failure to make payments the plaintiff should have the right to take possession of the truck.

Before MclvpR, J., York, December, 1920. Action by Aline McFaddin by Guardian ad Litem against Anderson Motor Co. From order of nonsuit plaintiff appeals. The reasons assigned by the trial Court for granting a nonsuit are stated in the “Case and Exceptions,” as follows : “A nonsuit is never granted, if there is any evidence at all to sustain the allegation—specifications of negligence’ set out in the complaint.

Before SeasE, J., Union, May, 1921. Action by Bishop C. Perkins, doing business as Bishop C. Perkins Co., against T. C., Duncan. Verdict for plaintiff and defendant appeals. cite: Vendor promised shipment at certain time and was bound to a performance at the time stated: 9 Cyc., 604, 628; 25 Conn., 530. If time is of the essence of contract only an act of God will excuse failure-of performance: 31 Pa., St. 218.

Before Prince, J., Oconee, July, 1921. Matthew Sheriff, convicted of housebreaking and larceny, appeals. cite: Distinction between principal and accessory: 2 Brev. 338; 12 Cyc. 183; 18 S. C. 177; Crim. Code 1912, Sec. 919, 920. Person proven to be principal cannot be convicted on indictment as accessory: 14 N. Y., 123; 26 S. C., 205; Crim. Code 1912, Sec. 178; 85 S. C., 277. Accessory before the fact: 2 Bail. 31; 12 Cyc. 185; 8 R. C. R. 66.

<p>Chattel Mortgages—Mortgagee Cannot Before Division Recover Possession op Mortgaged Cotton Grown on Shares in Claim and Delivery.—Where chattel mortgage covered, in addition to mortgagor’s mules, wagon, etc., cotton to be grown by mortgagor on third party’s land under agreement entitling mortgagor to a share of the crop, the mortgagee, on mortgagor's default and transfer to mortgagee of the mortgaged goods other than the cotton, could not recover possession of specified amount of cotton in action in claim and delivery against mortgagor and third party before the crop had been divided; his remedy being in equity.</p>

Before Memminger, J., Lexington, September, 1920. American Agricultural Chemical Co., indicted for causing a substance poisonous to fish to flow into a stream, and upon conviction appeals. cite: Indictment under Sec. 722 Crim. Code 1912. Derived from Act of 1726 (3 Stat. 270) Act of 1871 (14 Stat. 661); Rev. Stat. 1873, p. 400; Gen. Stats. 1881-2 p. 492. Sec. 1671; Crim.' Code 1902, S53. 519: Intentional discharge only prohibited: 34 L. R. A. (N. S.) 286; 16 Am.

Before Moore, J., Charleston, Spring Term, 1921. Action by Middleton & Co. against Atlantic Coast Line Railroad Co. From judgment for plaintiff the defendant appeals. cite: Action brought under Secs. 2568, 2569, 1 Civ. Code, 1912. Penal Statute that should be strictly construed: 91 S. C., 377. Common law rule as to damage for delay: 4 Elliott on R. R, Sec. 1482; 103 S. C, 457; 69 Fed., 683. Reasonable time is question for jury: 10 Rich., 42; 94 S- C., 184.

Before FeathErstone, J., County Court, Greenwood, May, 1921. Action by W. C. Lipford against General Road and-Drainage Construction Co. Judgment for plaintiff and defendant appeals.

Before Peuriboy, J., Orangeburg, March, 1920. Action by E. V. Plolmon against the city of Orangeburg. From judgment for plaintiff the defendant appeals. For the former appeal in this case see 113 S. C., 489.

Before Mauldin, J., Aiken, 1921. Action by J. B. Colt Co. against W. T. Brown. From judgment for defendant on his counterclaim, the plaintiff appeals. cite: Express warranty precludes implied warranty: 115 S. C.; 112 S. C., 422; 107 S. E., 903., Defendant is bound under his failure to promptly repudiate, and his acquiesence: 2 Pom. Eq. Jur., Sec. 897 ; 56 S. C., 514; 61 S. C., 456; 62 S. C„ 46; 67 E. R. A., 705; 34 S. C., 516; 67 S. E., 107; 78 S. C., 200.

Before Mauldin, J., Aiken, June, 1921. Action .by J. B. Colt Co. against Charlie Fox. Directed verdict for defendant and plaintiff appeals. The contract referred to was as follows: May 8, 1918. J. B. Colt Company (hereinafter referred to as the company) 42d St. Building, New York:_ Please furnish the following generator and appliances f. o. b. factory to the undersigned (hereinafter referred to as the purchaser).

Before Townsend, Richland, June, 1921. Action by J. H. Bonnette against Arthur F. Clow. Judgment holding defendant in arrest and bail for disposing of his property with the intention of defrauding creditors, and defendant appeals. On the issue of whether the defendant disposed of his property with the intention of defrauding plaintiff, the plaintiff testified that the defendant sold the mortgage within an hour after the dissolution of the attachment thereof.

• Before Rice, J., Kershaw, March, 1921. Action by Thomas J. White and wife against John Barton’ Payne, Director.

Before MemmingER, J., Anderson, February, 1920. Ralph Turner indicted for violation of the prohibition law and upon conviction' appeals. cite: Person has right to have in possession for personal use one quart: 30 Stat. 69, Sec. 2. Until passage of that Act it was not an offense- to transport whiskey for personal use: 96 S. C., 5. All material facts must be stated in the indictment: Joyce indictments, Sec. 246; 10 Ene. P. of P., 473; 32 S. C., 123; 22 Cyc., 343; Crim.

Before Gary, J., Anderson, November, 1920. Houston R. Herring indicted for the killing of Clarence E. Tolley. Upon conviction of manslaughter defendant appeals. cite: If a man’s reason be dethroned he is not criminally accountable: 39 S. C., 109; 100 S. C., 258. Plea of not guilty carries with it all defenses: 98 S. C., 519, Cross examination on irrelevant matters is reversible error: 98 SC., 114; 100 S. C., 250.

Before Mauudin, J., -Aiken, 1921. Action by C. M. Mitchum against J. L. Barksdale et al. Directed verdict for defendants and plaintiff appeals. cite: Courts may require notice to .defendant in garnishment in absence of statute: 12 R. C. L., 830. Prior garnishment in one State bar to subsequent garnishment in another State: 12 R. C. L., 830, 97 Mass., 107, 2 Mills. Const. Rep., 456. Georgia judgment subject to attack here : 44. S. C., 213.

Before Maudin, J., Aiken, 1921. Action by J. B. Colt Co. against E- C. Hallman. Verdict for defendant and plaintiff appeals. cite: Delivery to carrier, according to terms of contract, is delivery to buyer: 24 R. C. R., 40, 45; 46 S. C., 220; 59 S. C., 581; 115 S. C., 426. Plain contract between strangers and they are bound: 69 S. C., 100; 69 S. C., 90; 105 S. C., 520; 102 S. C., 139.

Before WhadEy, J., County Court, Richland, May, 192R Action by The Southern States Rife Insurance Company against P. A. Hodges. Verdict for plaintiff and defendant appeals. > Allegations of fact sufficient on which to base a charge of fraud: 96 S. C., 242; 110 S. C., 553; 111 S. C., 41. And sufficient evidence.to support the charges: 105 S. C., 123; 1 Bail., 539. And the requested instructions were proper: 92 S. C., 392; 106 S. C., 206; 107 S. C., 369; 111 S. C., 45.

Before Townsend, J., Greenwood. In the matter of the estate of Miss Mary Russell. Petition by E. PI. Russell and others for appointment of W. PI. Robinson as administrator, to which J. L. Russell and others filed objections. Judgment of Probate Court, granting petition, reversed by the Circuit Court, and the objectors appeal.

<p>Before Wharry, J., County Court, Richland, August, 1921.</p> <p>Action by J. W. Richardson against R. J. Blalock as Mayor and the Councilmen' of Columbia. From order denying injunction the plaintiff appeals.</p> <p>cites: Error to dismiss injunction proceeding on affidavits: 54 S. C., 457; 92 S. C., 348; 95 S. C., 251; 93 S. C., 253; 94 S. C., 207;. 90 S. C., 400. Procedure when title to office is involved: 78 S. C., 171; 66 S. C., 1; 58 S. C., 95; 101 S. C., 315; 7 SC., 21; Code Proc. 1912, Sec. 466; 95 S. C., 58; 80 S. C.r 69; 8 S. C., 406; 92 S. C., 409. Police Department of Columbia subject to 1 Civ. Code 1912, Secs. 3081, 3087. And City Council had only powers granted it by Legislature: 73 S. C., 83; 1 Dillon Mun. Corp., Sec. 89; 6 Rich., 404; 12 S. C, 76; 23 S. C., 517; 34 S. C., 242; 35 S. C., 1; 42 S. C., 293; 92 S. C., 393. Power must'be exercised in conformity with grant: 34 S. C., 242; 42 S. C., 293; 103 S. C., 87; 84 S. C., 487; 1 S. C., 461; 107 S. C., 191. Court cannot write anything into a Statute: 36 Cyc., 1106, 1113; . 1 Strob. Eq., 174. Ordinance invalid :1 Civ. Code 1912, Sec. 3079; 28 Cyc., 332; 334; 114 S. C., 428; 39 Cyc., 307.</p> <p>Quo warranto wuld have been proper: 94 S. C., 207; 90 S. C., 400; 78 S. C., 171. Term of Chief of Police: Rev. Ord. Cola. 1907, Sec. 28; Id., 1920, Sec. 63. Passage of ordinance not necessary to appoint Chief of Police: 84 S. C., 487; 64 A. S. R., 584.</p>

Before Mauldin, J., Aiken, March, 1921. Action by D. A. Jackson against W. F. Frier. From directed verdict for plaintiff the defendant appeals.

Before Featherstone, J., County Court, Greenwood, March, 1921. Action by W. A. Goode against Southern Railway Co. From verdict for plaintiff the defendant appeals. cite: Statutory signals not necessary except at crossing: 33 S. C., 139.

Before WharEy, J., County Court, Richland, April, 1921. Action by Mrs. M. E. Herndon against Southern Railway Co. Directed verdict for plaintiff and defendant appeals. cite: Refusal, of contimiance was abuse of discretion: 100 S. C., 375; 19 E. R. A. (N. S.), 409; 2 R. C. E., 219. Whether commerce is inter or intrastate must be determined by its essential character: 219 U. S., 498; 225 U. S., 101;'227 U. S., Ill; 229 U. S., 336; 233 U. S., 335; 241 U. S., 378.

Before DeVore, J., Hampton, April, 1921. Action by Johnston-Crews Co. against Richie B. Folk et al. Judgment for plaintiff and defendants appeal. The decree of Judge DeVore was as follows: This matter comes before me on report of the referee herein. This is an action to declare invalid a deed from J. G. Folk to Richie B. Folk, nee Choven, as it affects the rights of plaintiff and other creditors in like situation and circumstance.

Before Shipp, J., Jasper, November, 1920. Action by Eeonora C. Pinckney and Edward P. Huguenin against Elizabeth Knowles and Elliot L,. Cope for the recovery of real estate! Verdict for defendants and plaintiffs appeal. The plat directed to be reported, reduced in' size, is as shown: cite: Plain, unambiguous descriptions in deeds must govern: 81 S. C., 307. Lease corroborates construction of deed: 93 S. C., 385.

<p>Tmai,.—Where evidence in criminal action is insufficient to warrant submission to the jury a verdict should have been directed for the defendant.</p>

Proceeding by the State, on relation of Samuel W. Wolfe, Attorney General,, on complaint of C. C. King against J. Olin Sanders to determine title to the office of sheriff of Anderson County as between the parties. Judgment for plaintiff.