Volume 36 — South Carolina Reports

Before Kershaw, J., Anderson, November, 1891. This was an action by Martha M. Cobb against O. H. P. Fant, trustee, Anna Y. Scudday, and others.

Before FítASER, J., Chesterfield, February, 1891. This was'an action by M. R. Knight against M. F. Jackson, commenced in January, 1889. The referee’s findings were as follows: I find as matter of fact: I. That on the 11th January, 1881, Stephen Jackson, acting as agent for his son, M. F. Jackson, loaned to M: R. Knight, the plaintiff, five hundred and ninety-three 44-100 dollars, and took his bond and mortgage to secure the same. II.

<p>Before HudsoN, J., Lexington, February, 1891.</p> <p>The opinion sufficiently states the case.</p>

Before Fraser, J., Marion, April, 1891. This was an action by Sarah Iseman against W. C. McMillan and others, and continued after the death of said McMillan against his representative and heirs. The judgment of the Circuit Court-was as follows: The words of this deed to Gewood Berry do not create a fee conditional. The rule in Shelly’s Case for convenience will be found in Porter v. Poly, 2 Rich. Eq., 49, and 1 Co., 104.

Before Aldbjch, J., Colleton, October, 1890. This was an action by C. L. Lott, O. P. Crosby, and L. W. Crosby against W. 0.

Before Wallace, J., Hampton, October, 1891. This was an action by N. W. Ellis and others against The American Mortgage Company of Scotland, Limited, for the cancellation of a mortgage.

Before Aldrich, J., Sumter, March, 1891. This was an action by David E. DuRant, trustee, against Isabella M. DuRant, for the recovery of a tract of land. Plaintiff claimed under a voluntary deed executed by Mary Carter, on September 22, 1866.

<p>Before Hudson, J., Chesterfield, September, 1890.</p> <p>Action by Mary A. Dixon against G. W. Hockady and others (probably his tenants), for recovery of land, damages for trespass, and other relief. The defendant claimed under the following deed:</p> <p>Know all men by these presents, that the Commissioners of - ■the Sinking Fund, by virtue of the authority conferred - by the acts of the general assembly of the said State, in consideration of the sum of seventy-two dollars and fifty cents, being the full amount of the accumulated taxes, costs, and penalties due and unpaid upon the land hereinafter described, forfeited in the name of M. A. Dixon, paid by G. W. Hockady, in the State aforesaid, have granted, bargained, sold, and released, and by these presents do grant, bargain, sell, and release, unto the said G. W.' Hockady, as redeemed lands,- all the right, title, and .interest and estate of the State of South Carolina in and to the following lands, to wit: Eighteen hundred acres in Cheraw township, of Chesterfield County, and State aforesaid, together with all and singular the rights, members, hereditaments, and appurtenances to the said premises belonging, or in anywise incident or appertaining. to have and to hold all and singular the premises before mentioned unto the said G. W. Hockady, his heirs and assigns forever, as lands redeemed as aforesaid. Witness the hands and seals of the Commissioners of the Sinking Fund the I8th day of January, &c.</p>

Before Wallace, J., Hampton, October, 1891. Action of claim and delivery by Frick & Co. against R. R. Wilson. The judge charged the jury as follows: It appears that the defendant sent to Frick & Co., through their agent here, an order for an engine; the order containing the description of such engine as he desired, the price for which was also specified, I suppose, in the order. The engine, or two engines, in response to that order, was sent to this county to the defendant.

<p>Before Izlae, J., Marlboro, October, 1891.</p> <p>Action by Peter T. Smith, as administrator of Stephen Quick, against Wyatt Evans, for recovery of personal property, commenced before S. W. G. Shipp, Esq., trial justice, who reported as follows:</p> <p>This is an action of claim and delivery brought by the plaintiff for the recovery of two bales of cotton of the alleged value of $75, from the defendant. . The plaintiff' alleges that this cotton is wrongfully withheld from him by the defendant, and that he is the owner of the same and entitled to the possession thereof. The defendant answers: 1. By general denial. 2. By plea of the statute of frauds.</p> <p>It appears to my satisfaction from the evidence, and I find the facts as proven in the case are as follows: That the plaintiff, Peter T. Smith, is the duly qualified administrator of the estate of Stephen Quick, deceased, and was such administrator on January 27th, 1891. That the defendant was indebted to the estate of Stephen Quick on the date mentioned, to the extent of $>146.92; on account for supplies, the account being $317.43, subject to a credit of $170.46, the defendant being a farmer, and trading at Quick’s store. On the date mentioned above, the plaintiff, in company with Knox Livingston, Esq., his attorney, went to the defendant’s house in this county, distant from Quick’s store about five miles, for the purpose of collecting the amount due the estate, or as much of it as possible, by taking cotton or money on the account. On reaching defendant's house, they saw defendant near his barn, and engaged in negotiations with him. Three bales of cotton were lying some distance off' — some 50 to 75 yards. Defendant was asked to whom the cotton belonged. He replied that he owned two of the bales and his wife owned one. Mr. Livingston then, after mentioning the fact of defendant’s indebtedness to the Quick estate, took the ledger which was kept in Quick’s store, and which the attorney had with him on this trip, and told defendant the amount of his account. Defendant was asked if he was not going to do something more for the Quick estate. He replied, Yes; but he wanted to get the highest market price for his cotton. The administrator offered him 9 cents per pound for his cotton. He declined to take it. Finally, upon being asked what he would take for the cotton, he replied that, he was willing to take ten cents per pound for it.</p> <p>After some consultation between the administrator and his attorney, the administrator said he would give it. Defendant then mentioned the fact that he had not' paid his rent to Mr. Odom. He said he thought he owed $20 or $21 for rent, which he wanted to pay out of this cotton. Upon his being urged to pay his rent out of some other produce he had, he replied, No; that if he sold the cotton without paying his rent, he might get into trouble. Defendant was then asked, “If Mr. Odom is provided for, will you let Mr. Smith have the cotton ?” His reply was that he would. Mr. Smith then told defendant that he could give Mr. Odom an order on him ■ (Smith) for the amount of the rent, or he could have him (Odom) at Quick’s store en a day certain, and that he would pay the money to Odom. He was then asked if he had any means there of weighing the cotton, and if he had any one to help weigh it. He replied, No. The attorney for plaintiff then turned to defendant and said, “This is a trade, then, and this cotton is Mr. Smith’s?” He replied it was, and all he wanted paid out of it was his rent. The counsel then got a memorandum book which the administrator had in his pocket, and in which he kept memoranda in the estate matters, and then and there made this memorandum in writing: “2 B||c. Wyatt Evans, @ 10c., Bo’t Jan. 27th, 1891.” This was not signed by any one. Defendant agreed to haul the cotton to Quick’s store by the following Saturday, when it was to be weighed, the amount due Odom for rent by the defendant was to be taken out,- and the balance credited to defendant’s account with the estate of Quick.</p> <p>On the following Saturday, when the administrator, plaintiff, in company with his attorney, went up to Quick’s store, the cotton was not there, the defendant refusing to haul and deliver it. The plaintiff then sent his wagon to defendant’s house for the cotton, but defendant refused to deliver it to him. Some further negotiations were had then about the cotton, the defendant offering to give up the cotton if Mr. Smith would give him a clear receipt showing full payment o,f his account with the Quick estate. This was refused ; but the proposition was made him that his account would be reduced by $10, if he would settle without further trouble. He refused. He was then told that the law must decide as to the ownership of the cotton. Suit was begun on February 2nd, and the cotton in dispute was seized. The value of the cotton was $75 or thereabout, by estimation. It has not been weighed.</p> <p>This being a contract for the sale of personal property above the value of fifty dollars, in order for plaintiff to recover he must show either that he accepted part of the cotton sold and actually received the same, or that he gave something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the bargain, signed by the party to be charged, •or his agent, was made. It is not contended that anything was given in earnest, nor that part payment was made, or that a sufficient memorandum was made and signed. Plaintiff claims, however, that this caséis taken out of the statute of frauds; contending that the plaintiff did accept, and actually receive, the cotton. In other words, he contends that the cotton was delivered on January 27th, at defendant’s house, when defendant said that it was a trade, and the cotton was Smith’s, and that defendant’s agreement to haul the cotton to Quick’s store on the following Saturday was the agreement of a bailee, and that his possession after January 27th was the possession simply of a bailee.</p> <p>Upon the question of delivery, it is a principle that runs through all of the cases to which I have been referred by counsel for defendant, and that I have been able to find, that in the sale of personal property, where anything remains to be done, as between vendor and vendee, for the purpose of ascertaining either the quantity, value, or quality, as weighing, &c., there is no -delivery. Vide SKindler v. Houston, 1 N. Y., 261, and authorities there cited. In the case at bar the cotton had not been weighed, and the plaintiff and defendant, although it was settled as to the price per pound, could not have known what amount was to be paid defendant or credited on his account until the weight of the cotton was ascertained by weighing. I think the defendant still had an interest in the cotton until it was actually weighed; and there was not such acceptance and actual receipt of the cotton by the plaintiff as would take the case out of the statute of frauds.</p> <p>It does not appear from the evidence that the plaintiff ever exercised any control over the cotton, or that the two bales were pointed out to plaintiff, but the testimony shows that three bales were lying side by side, some distance from plaintiff. Had the plaintiff offered a price for the two bales of defendant’s cotton in bulk, as, for example, if he had offered $75 for the cotton, so that nothing was to be done to the cotton to ascertain what was to be paid to defendant, and he (defendant) had accepted the offer, under these circumstances the plaintiff’s title might be sustained under the authority of the case above cited : but I regard the present case as settled by the decision cited in the case of SMndler v. Houston. Benj. Sales, § 319 at sag. In all the cases and authorities cited both by counsel for plaintiff and counsel for defendant it is stated as a settled principle that if anything remains to be done to ascertain the price, quantity, quality, or weight, &c., especially if the price depends op .weight, there is no sale until this is done. In this case the cotton had to be weighed, and hence the sale was void under the statute.</p> <p>Holding this to be the law, I must hold that there was no sale in this case, and the plaintiff is not entitled to recover, and, It is therefore ordered, that the defendant have judgment against the plaintiff for the return of the property described in the affidavit in this case, and in case a return cannot be had, then for $75, its value, and for costs of suit.</p> <p>The decree of the trial justice was affirmed by the Circuit Court, and plaintiff appealed ori the single ground stated in the opinion.</p>

Before Norton, J., Charleston, March, 1891. Controversy without action between Albert Bischoff and G. M. Trenholm,. assignee of J. H. E. Stelling.

<p>Before Aldrich, J., Florence, February, 1891.</p> <p>This was an action by James S. McCall against L. A. McCall, 'T. W. K. Head, and Mattie E. Head, commenced in November, 1889. The opinion states the case. ■ •</p>

Before Hudson, J., Richland, April, 1891. The opinion states the case. .

Before Wallace, J., Union, October, 1890. Held: and it has been followed ever since, that when any property was injured by the agents or employees of a railroad company, it was sulficient to prove the injury, and that would prima, facie entitle the plaintiff to recover, urdess the defendant showed that the injury was not negligently done.

Before Witherspoon, J., Chesterfield, February, 1890. This was an action by John T. McNair against Laura S. Craig and others for partition.

Before AldRICH, J., Barnwell, November, 1890. This was an action by T. S. Dunbar against The Port Royal & Augusta Railway Company, commenced in February, 1890, the plaintiff claiming damages from defendant for a loss resulting from its failure to forward watermelons with reasonable dispatch as agreed.

Before Fraser, J., Sumter, November, 1890. The decree of the Circuit Court was as follows: For the purposes of the hearing, and for this purpose only, the allegations in the complaint and answers were admitted to be true, with the additional fact, that upon the trial of the case therein referred to, William A. James was acquitted by the jury.

This was an original application by Daniel H. Bacot to this court for a writ of certiorari. The opinion states the case.

Before Witherspoon, Kershaw, Norton, and Wallace, JJ., February and June, 1888, and April and June, 1890. This case is fully stated in the opinion of this court. It was argued in this court at the November term, 1890, and being ordered for re-argument, was again heard in December, 1891.

Before Witheespoon, J., Charleston, December, 1891. This was a controversy between Henrietta Bredenburg, surviv--•ing executrix of Luder Bredenburg, and Isaac Y. Bardin, submitted without action. The opinion fully states the case.

Before HudsoN, J., Fairfield, June, 1891. This was an action by J. W. Summers against Calvin Brice, to foreclose a mortgage given to plaintiff by John Vinson on February 20, 1889. This mortgage was not recorded until May 19, 1890, but defendant received notice of its existence through a letter mailed at Sherman, Texas, on January 10, 1890.

<p>Before Fraser, Aldrich, and Wallace, JJ., October, 1889, March, 1890, and March, 1891.</p> <p>These were ten separate actions, as stated in the title and in the opinion of this court. First in order of time was the order of Judge Fraser refusing to direct a consolidation where there were two cases against the same defendant. The cases were not all heard together on Circuit, as will hereinafter appear. The two cases first stated were heard on appeal at the November term of 1890. A reargument having been ordered, they were again heard, together with the other eight, at November term, 1891.</p> <p>In the case against The Sun Fire Office of London, Judge Al-drich charged the jury as follows :</p> <p>Mr. Foreman and Gentlemen of the Jury: This action involves two issues — .one equitable and the other legal; the former to be determined by the court, the latter to be passed upon by the jury, under the instructions of the court.</p> <p>I will state my conclusions upon the equitable issues. The evidence shows that Cely & Bro. agreed, for a valuable consideration, to receive certain cotton of the plaintiffs, to be kept and stored, as warehousemen, in their warehouse described in the policy and in the pleadings; and also agreed with plaintiffs to indemnify and hold harmless thé plaintiffs from any loss or damage to the said cotton by-fire from any cause. I hold that Cely & Bro. had an insurable interest in the cotton of the plaintiffs, received and held'by them as warehousemen; also, that their contract to indemnify and hold harmless the plaintiffs from any loss or damage to the said cotton by fire from any cause, gave Cely & Bro. an insurable interest in said cotton.</p> <p>Cely & Bro. having an insurable interest in said cotton, did insure said cotton, the defendant accepting the insurance, and issued to Cely & Bro. a policy covering the cotton in question, which recites, inter alia, that the defendant, in consideration of $ 12.00 paid by Cely & Bro., did insure Cely & Bro. to the amount of $'J,000 “on cotton in bales stored in their warehouse, West Greenville,” against destruction or damage by fire or by lightning, from January 16th, 1889, to March 17th, 1889. Defendants contend that the terms of the policy restrict the loss to cotton belonging absolutely to Cely & Bro.; and did not, and does not, cover cotton held by Cely & Bro. as warehousemen, or cotton of the plaintiff held by Cely & Bro. under the contract proved between Cely & Bro- and the plaintiffs. I hold, and so decree, that the terms of the policy do cover the cotton of plaintiff, held'by Cely & Bro. under the aforestated contract, in their warehouse, and destroyed by fire during the currency of the insurance policy; and that Cely & Bro. could maintain this action.</p> <p>Cely & Bro. having assigned the policy to plaintiff', I hold that .the plaintiffs have the right to maintain and prosecute this action to the same extent that Cely & Bro.. could have done. The -conclusion of the court on these issues renders unnecessary any consideration of the question of reformation of the policy ; consequently the court will not consider the question' of reformation.</p> <p>Gentlemen of the'Jury; A good deal has been said about corporations, insurance companies, &c. Both parties to this action are corporations; just as an individual has the right to come into this court and ask its judgment upon any matter the subject of litigation. They • are bound by the laws of the State, and are protected by the laws of the State, just as fully and carefully as any two citizens of your county would be entitled to.</p> <p>You have heard the complaint and the answer read. The complaint contains the allegations of the plaintiff, and upon those allegations he demands a judgment for $2,000 and interest against •the defendant. The defendants put in their answer, and state the facts which they rely upon, as showing that they do not owe the plaintiffs anything. These are'the issues which you must -determine by. your verdict, upon the evidence submitted in open court, in your presence, and the law as given to you by the court.</p> <p>I charge you that the policy contains the terms of the contract. It is the duty of the court to construe a written contract, and I charge you that Cely & Bro. had the right to insure cotton held in their warehouse, which they held either as owners, warehousemen, or as warehousemen and insurers, for pay. If nothing disproving this state of facts appear in evidence, and you find that the cotton was destroyed by fire during the currency of the policy, according to the terms of the policy the plain-stiffs would be entitled to recover the- amount of the loss not exceeding the amount for which the cotton was insured. Did Cely •& Bro. insure the cotton described in the complaint? Was it destroyed by fire, and what was the amount of the loss ? Have Cely & Bro. assigned their policy to plaintiff? are, with the other questions of fact raised in this case, questions which you must determine.</p> <p>. Defendants allege that the policy of insurance issued by them is void, because Cely & Bro. did omit to make known to defendants a fact material to the .risk, to'wit: the fact, that .the ware- ' house stood upon land leased by Cely & Bro. from the Columbia • and Greenville Railroad Company for valuable consideration, and upon certain terms and conditions, among which was the following: “That during the continuance of.said lease the said Columbia and Greenville Railroad Company, its successors and assigns, shall not be in any wise responsible for any loss or damage to the said building (warehouse), or the contents thereof from fire communicated by the locomotive engines of said company, its successors or assigns, and all such loss or damage shall be borne by the said Cely & Bro.” That the fact of the existence of said lease and release not only pertained to said risk, and was very ■material thereto, but was unusual and unknown to defendant when said policy was issued and delivered.</p> <p>The policy, according to the allegations of the answer, was to “become void” in the event of “any omission to make known any fact material to the risk.” So that a mere omission to make known a fact is not sufficient to avoid the policy; it must go ;further, it must be the omission of ap fact material to the risk. That raises a question or questions qf, fact: Was the release of the railroad company by Cely & Bro, from any responsibility or loss caused by fire from the locomotives of the railroad company to the warehouse, or the contents thereof, a “fact material to the risk ?” Did Cely & Bro. omit to make ]cnown to defendants, or their agent, the facts in regard to the lease ? Did defendants, or their agent, know of this lease and its terms ? If defendants, ór their agent, did know of this lease and its terms, they cannot •complain of such omission by Cely & Bro.; because if they, the 'defendant company, had knowledge of these facts, then the omission of Cely & Bro. was not material.</p> <p>■' This question of a “fact material to the risk” is a question for you. What is a “fact material to the risk” ? ■ A fact material to the risk is one which in any way influences, or might influence, the insurer either in accepting or rejecting such risk, or in estimating the degree and character of the same; or which in any way affects the rate of premium at which the risk is assumed; :or which, if known to the insurer, would have prevented his accepting or continuing the risk.</p> <p>I further charge you that the right of subrogation is a legal right. That is, when a party insures property with an insurance company, and that property is destroyed by the carelessness, negligence, or unlawful act of another, then the insurance company, upon the payment of the lo<s, is subrogated to the right of the oivner of the property, and is entitled to go against the party or parties who, by their carelessness, negligence, or unlawful conduct, have caused the loss of the property insured. That is a right which they have. They have it under the law, and they have a right also to stipulate this right of subrogation. Is the right of subrogation a fact material to the risk ? — risk which the insurer takes to insure the. property against destruction by fire. Is the further fact that after a loss occurs by fire that the insurer has the right to go against the party who caused the loss a fact material to the risk ? This I submit to you as a question of fact which you must determine according to the evidence in this case.</p> <p>Now, then, we come to a second defence, so to speak, or a question which arises in this case, to wit, that the right of subrogation, as they, allege, was a material question as the defendants contend — was a material question — and that Cely & Bro., having by their lease and release, freed the railroad company from liability from loss caused by their engines, that that voided the policy. When a party goes to an insurance company, the ordinary and usual custom is, that he makes application for so much insurance upon certain property, and either by writing or orally, he makes certain representations to the company from whom he seeks insurance. That is, in common language, called the application for the insurance. In that application it is the duty of the party seeking the insurance to state all facts material to the risk ; but if the insurance company or their agents have knowledge of the facts upon which they issue a policy of insurance, no matter whether that knowledge was derived from the party seeking the insurance or how, then, knowing the facts upon which they issue the policy, and if knowing them, they still issue the policy, then, in law, they have waived their rights.</p> <p>In coming to the consideration of this cause, did Cely k Bro., in applying for this policy of insurance, make any statements material to the risk which were not true; or did Cely & Bro. omit to make any statement • material to the risk which they should have made, because it was material to the risk ? The insurance company, after the application has been made, issues what has been called a policy of insurance. That is the written paper. Now, then, the former, the application, is the tender, the proposal to make this contract of insurance, and the latter is the acceptance by the insurance company of this proposition from the party to insure his property. The insurance company undoubtedly has the right to accept or make insurance upon property with the right of subrogation reserved to them. They also have the right to insure property where the right of subrogation is taken away from them. I have explained to you the question of materiality. As a question of fact, did they know of this release of the right of subrogation in favor of the railway company; and if they knew it, did they waive it? Waiver is a question of fact for the jury.</p> <p>Before I take up the requests to charge, I will state that if the jury concludes that the plaintiff is entitled to a verdict, you cannot give them an amount greater than $2,000, with interest thereon from 60 days after the proof of the loss. He is entitled to recover the amount of the loss, whatever that loss was, and that is a question of fact for you. And your verdict would be, if you find for the plaintiff: “We find for the plaintiff so many dollars,” adding interest thereon from 60 days after the loss. Or, if you conclude that the plaintiff has not made out its case, your verdict will be: “We find for- the defendant.” You will then write your name as Foreman. .</p> <p>Mr. Smythe: May it please your, honor, we are satisfied with your honor’s charge, and we withdraw our requests to charge.</p> <p>Court: The defendants request, the court to charge: First. “That the Pelzer Manufacturing Company is the assignee of Cely & Bro., having only the rights of Cely & Bro., and cannot recover in this action, unless Cely & Bro. could- hhve recovered if they had brought the action in. their own names.” That I charge you as being good law, and have already so instructed you.</p> <p>Second. “That the recording of the lease from the Columbia and Greenville Railroad Company to- Cely & Bro; did not constitute notice to the insurance companies of the contents of the lease, and unless the jury find that the insurance company had actual notice of the contents of the lease when the policies were issued, . they cannot be held to have known of the existence of the same, . or of its contents.” I so charge, you. Recording is done in pur-/ suance of an act of the legislature, and it is done for the purpose of giving notice to subsequent purchasers and creditors, and that alone.</p> <p>Third. “That if the jury find that Cely & Bro. omitted to: state to the insurance agent when the policy was issued any fact..material to the risk, whether the application-for. insurance was verbal or written, then the policy is vo.id, and the plaintiff cannot recover” (unless the insurance company waived their right).. That I. charge you — with this limitation or addition : Unless the • insurance company waived their right.</p> <p>..Fourth. “That any fact, which if known to the insurance companies might have influenced them in.accepting or rejecting the . risk, or in fixing a,'higher rate of premium therefor, is material” (and if the insured knew this, or had any reason to know it),. “should have been stated when the application for insurance was, made, and if not. stated the policy is void.” That I charge you; that is the law, with this modification: If the insured knew this, • or had any reason to know it.</p> <p>Fifth. “That it-makes no. difference whether Cely & Bro. believed the existence of the lease to be material or not.” (Provided . Cely & Bro. knew, or had reason to know, or there were any' facts or circumstances to put. them on notice that it was material,. or that it was or had been so regarded by the defendant insurance company.) “And if the jury find that the existence of the lease was material to the risk, and was not made known to the insurance agent when the policy was issued, then the policy is void, whether the failure on the part of Cely & Bro. to make it known - was the- result of fraud, or ignorance, or accident, or inadver-ténce, or mistakes.” (Provided Cely & Bro. knew, or had reason to know, or there were any facts or circumstances to put them on notice that it was material, or that it was or had been so regard-, ed by the defendant insurance company.) Charged, with above modifications so inserted.</p> <p>Sixth. “That the insurance company is not bound to prove fraud on the part of Cely & Bro., but any failure on the part of. Cely & Bro. to state any fact material to the risk, is sufficient to . prevent a recovery upon the policy, no matter whether such failure was the result of ignorance, accident, negligence, or any other cause.” (Provided Cely & Bro. knew, or had reason to • know, or. there were any facts or circumstances to put them on notice that such fact was material, or that it was or had been ; regarded by the defendant insurance company as material, and. the defendant company had not waived such disclosure.)</p> <p>Seventh. “That ordinarily where insured property is destroyed ' by the wrongful act or negligence of a railroad company, or its., agents, the insurance company has the right, upon payment of the loss, to be placed in the position of the owner of the property, and to recover from the railroad company the amount so paid. This is called the right of subrogation, and inures to the insur-. anee company through the contract of insurance.” That I charge you as good law.</p> <p>Eighth. “That by the execution of the lease from the C. & Gr, R. R. Co., Cely & Bro. deprived themselves of the right to recover from the railroad company, any loss sustained by them by means of fire originating from sparks from a locomotive engine of the railroad company, or by fire originating upon the right of way of the railroad company; and having so deprived themselves of this right, they, at the same time, deprived the insurance company of any right of subrogation against the railroad company,. which the insurance company would otherwise have had.” That I charge you as requested.</p> <p>Ninth. “That if the building in which the cotton was stored was held under lease, or stood upon leased land,, and either of-these facts was not stated to the insurance agent when the policy was taken out, or was not expressed in the policy, then the policy is void, this being one of the conditions upon which the policy’ was issued, and the plaintiff cannot recover.” That request I refuse.</p> <p>Tenth. “That.in every case it is the duty of the applicant for. insurance to state to the insurance agent any unusual circumstances pertaining to the risk, and should he fail to do so, the. policy is void. And if the jury find that there was any unusual circumstance pertaining to the risk in this case, and that such,circumstance was not disclosed to the agent of the insurance company (John Ferguson), by the party applying for the insurance, then this policy is void, and the plaintiff cannot recover.” I charge you that proposition.</p> <p>[Mr. Heyward withdraws requests numbers 11 and 12. They were used in case of same plaintiff v. German American Insurance Company.]</p> <p>I am further requested to charge you: “That Cely & Bro., having released the railroad company from liability on account of loss by fire, and thereby deprived the insurance company of its right of subrogation, and having, with full knowledge of that fact, contracted with the insurance company that it should have the right of subrogation in case of said loss by fire, they cannot now recover upon the policy, and it follows that their assignee, this plaintiff, cannot recover.” I charge with the following modification: Unless the jury find from the evidence that the defendant insurance company, or its agent, had knowledge or notice of the release given to the railroad company prior to the issuing of said policy of insurance ; or unless the jury find from the evidence that the defendant company has in any way waived such stipulation in the policy.</p> <p>Here are three others: First. “That the policy embodies the contract, and Cely & Bro., having accepted said policy, aré bound by its terms, whether they read it or not; and the plaintiff in this action is equally bound.” That I charge you.</p> <p>Second. “The policy in this case among conditions has one that where the society shall claim that the fire was caused by any act or omission of any person, town, or corporation, which created a cause of action, the party to whom the loss is payable under this policy, shall on receiving payment assign to the society such cause of action. Now, if the railroad company carelessly burned the cotton insured, a cause of action arose against the railroad company, and if the insurance company paid, it would have the right to the use of that cause of action for reimbursement. But if Cely & Bro. had, before it took said policy, rendered themselves (by contract with the railroad company) unable to transfer such right against the railroad company, Cely & Bro., or their assignees, cannot require such payment.” That I charge you, with the modification that the same be considered as limited by the charge in chief.</p> <p>Third. “The local agent cannot, without special authority, waive said condition, nor is it waived by his knowledge of the contract relieving the railroad company.” That I decline to charge you.</p> <p>. The jury found for the plaintiff $2,120.55, and judgment was entered accordingly.</p> <p>Defendant appealed on the following grounds:</p> <p>I. Because, it is respectfully submitted, that his honor, the Circuit Judge, erred in refusing to separate, and to try separately, the equitable and the legal issues involved in the pleadings.</p> <p>II. That his honor erred in excluding the testimony of the witnesses, Livingston Mims, Clarence Knowles, and William N. Hawks, taken, after notice, before a notary public in Atlanta, Gra-</p> <p>III. That his honor erred in admitting in evidence the letter of E. A. Smythe, president, offering to assign to the defendant insurance company the right of action of the Pelzer company against the railroad company, and the refusal of said offer.</p> <p>IV. That his honor erred in admitting in evidence the declarations of John Ferguson (the local agent), made after the issuance of the policy, and after the loss.</p> <p>. V. That his honor erred in holding that the local agent could, by his conduct or otherwise, waive the conditions of the policy, although by the terms of the policy such waiver is especially forbidden.</p> <p>VI. That his honor erred in holding that the policy, as written, was sufficient to cover the cotton of the Pelzer Manufacturing Company, whereas the evidence showed that the minds of the parties never met, and there never was a valid contract of insurance between the parties.</p> <p>VII. That the witnesses, E. M. Bollin and others, were allowed to testify as to their conduct, and the amount of insurance they had written on the cotton in question, as also as to the conduct of other insurance companies since the fire.</p> <p>VIII. That his honor erred in allowing the plaintiff to prove by general reputation thé business of Cely & Bro,, for the purpose of charging the defendant with knowledge.</p> <p>IX. That his honor erred in refusing to charge the jury, as requested by the defendant, as follows: “That if the jury find that Cely & Bro. concealed from the insurance agent, or failed to state to the insurance agent, when the policy was issued, any fact material to the risk, whether the application for insurance was verbal or written, then the policy is void, and the plaintiff cannot recover.”</p> <p>X. That his honor erred in refusing to charge the jury, as requested by defendant, as follows: “That any fact which, if known to the insurance companies, might have influenced them in accepting or rejecting the risk, or in fixing a higher rate of premium therefor is material, and should have been stated when the application for insurance was made, and if not stated, the policy is void.”</p> <p>XI. That his honor erred in refusing to charge the jury, as requested by defendant, as follows: “Thatit makes no difference whether Cely & Bro. believed the existence of the lease to be material or not; and if the jury find that the existence of the lease was material to the risk, and was not made known to the insurance agent when the policy was issued, then the policy is void, whether the failure on the part of' Cely & Bro. to make it known was the result of fraud, or ignorance, or accident, or inadvertence, or mistake.”</p> <p>XII. That his honor erred in refusing to charge the jury, as requested by defendant, as follows: “That the insurance company is not bound to prove fraud on the part of Cely & Bro., but any failure on the part of Cely & Bro. to state any fact material to the risk, is sufficient to prevent a recovery upon the policy, no matter whether such failure was the result of ignorance, accident, negligence, or any other cause.”</p> <p>XIII. That his honor erred in refusing to charge the jury, as requested by defendant, as follows: “That if the building in which the cotton was stored, was held under lease, or stood upon leased land, and either of these facts was not stated to the insurance agent when the policy was taken out, or was not expressed in the policy, then the policy is void, this being one of the conditions upon which the policy was issued, and the plaintiff’ cannot recover.” ■ . •</p> <p>XIV. That his honor erred in refusing to charge the jury, as requested by defendant, as follows: ‘‘That Cely & Bro. having released the railroad company from liability on account of loss by fire, and thereby deprived the insurance company of its right of subrogation, and having, with full knowledge of that fact, contracted with the insurance company that it should have the right of subrogation in case of said loss by fire, they cannot nowr recover upon the policy, and it follows that their assignee, this plaintiff, cannot recover.”</p> <p>XV. That his honor erred in refusing to charge the jury, as requested by defendant, as follows: “The local agent cannot, without special authority, waive said condition, nor is it waived by his knowledge of the contract relieving the railroad company.”</p> <p>XVI. That his honor erred in charging the jury, that to constitute concealment, there must be an intention to conceal, or an intended failure to speak.</p> <p>XVII. That his honor erred in refusing to charge the jury, that the defendant was bound to pay only its proportion of the loss as adjusted under the average clause, and no more.</p> <p>At the same term of court, before the same judge (Aldrich), the case against The German American Insurance Company of New York, was tried. The charge to the jury in this case was as follows:</p> <p>Mr. Foreman and Gentlemen of the Jury: This action involves two issues. One an equitable issue, addressed to the chancery side of the court; the other, the legal issue, to be passed upon by the jury under the instructions by the court of law' applicable thereto. I can simply state my judgment — conclusions of the equitable issues — without going into .a detailed and lengthy statement of the evidence, because, in the first place, the court could not from memory state the testimony as accurately as it would like to do; and in the second place, because, should the court state its recollection of the facts and its conclusions thereupon, they would be expressed within the hearing of the jury, and might to some extent influence the jury in reaching their conclusions upon the issues of law. After all, the reasoning of the court is no part of tbe decree, but it is the conclusion of the court'which is really effectual.</p> <p>■ With these preliminary remarks, I will take up the equitable ■issue which involves the decision of two questions. Does the, policy, as stated upon its face, cover and protect the property lost, the title of which was, as the evidence has shown it, to wit, to be the actual property of the Pelzer Manufacturing Company, stored in the warehouse of Cely & Bro. under a special contract, including storage and insurance? Undoubtedly a warehouseman has an interest in the property entrusted to his keeping. You may term it qualified or special, or limited or specific, interest, whichever name in all respects would be applicable to it, but that interest, whatever it may be termed, is an insurable interest, because he is responsible in this case in event of loss by fire under this contract, and he had the right by contract to insure this cotton against loss to save himself harmless. His liability to the Pelzer Manufacturing Company was fixed, and certainly by contract. He had the right to protect himself against the consequences of that contract by insuring the property while it remained in his possession under the contract. That is the usual, and probably the best,-test of an insurable interest in property.</p> <p>. The question next arises: Having an insurable interest, did he insure it by the policy which he took from the defendant insurance company ? That insurance policy states upon its face that the company does insure Cely & Bro. to the amount of fifteen hundred dollars on cotton in bales, stored in their warehouse, against fire. In the first place, the canon, the rule of construction, is, that, inasmuch as the policy was written by the insurance company, what in fair and legitimate construction can be placed upon the terms of that policy, can be attributed to it, and that the policy must be construed most favorably in favor of Cely & Bro., and most against the insured company. Now, what does the language mean which I have just recited? It means, I apprehend, just what it says — insure Cely & Bro. against loss by fire. What loss ? The terms of the insurance company does not restrict the loss. I hold that it means any loss limited to the view 1 am taking of this case, loss sustained by Cely & Bro. by the burning of their own individual “cotton in bales” in the warehouse in question, or by the burning of “cotton in bales” in the warehouse in question, for which they are liable should the same be destroyed by fire.</p> <p>• Now, they were certainly liable for that fire, and it being a loss, and Cely & Bro. were insured against loss, it is fair that the insurance company insured them against that loss as well as any other. And just in this particular it may be just as well that the contract under which Cely & Bro. held this cotton for the Pelzer Manufacturing Company went a step beyond and added something more to their liability than warehousemen ordinarily, for they contracted to insure the property to protect it, not only to safely keep it and protect it from an ordinary loss, but to the additional loss by fire, and in addition to the rights of a warehouseman, to insure goods in his warehouse against loss and with additional right to protect themselves against loss by fire severally and specifically contracted. ¡></p> <p>I further hold, that being the terms of the policy,in question, that it was not necessary for.the company — for the insured — to have obtained a policy stating or narrating or describing the title which was held in that property. That which I have indicated, the obligation of the insurance company was to protect him against any loss that he might sustain, and while the words are not here, as in that case decided in the United States Supreme Court, “any wise,” the words “any less” is as broad as in that' case cited. Having held that there is no necessity for the court to take up the second question on the equity side of the court, to wit, the reformation of the contract, that disposes of the equity feature of the case.</p> <p>Now, gentlemen, I have discharged, according to my best judgment, the duties imposed upon the court. I have assumed those responsibilities, and it is now your duty to take the legal question and decide that question,' or questions, according to the evidence you have heard that has been submitted to you in this case under the instructions that the court will give you. And one word in advance. A good deal has been said about insurance companies— their wealth and their greed, etc. Now, I charge you that this is a court of justice. An insurance company has the right to come into this court and in the manner provided by law to ask the judgment of this court as to whether or not it shall pay a claim, or a demand, brought against it. An insurance company has no more right than an ordinary individual, one of your fellow citizens* who comes into this court and asks to have his rights adjudicated. He has no more privileges and he has no more advantage. An insurance company, like a man, stands in this court as any other suitor would. He must sustain his rights if they have been invaded; the court must protect his rights if others seem to invade them, by just the same rules and the same law which governs the individual. Nothing more, nothing less.</p> <p>The plaintiff, the Pelzer Manufacturing Company, comes into court, and by its complaint alleges, among other things — you have heard .the whole complaint read — that it is now the owner of a policy of insurance, issued by the defendant herein, for fifteen hundred dollars; and it further alleges that Cely & Bro. took out this policy of insurance upon certain cotton stored in the general or open warehouse of Cely & Bro-; and that that cotton was destroyed by fire at the time, stated in the complaint, and that the defendant company has not paid the loss, but refuses to pay it. Cely & Bro. took out the policy of insurance, and the defendant company was liable in the first instance, upon the destruction of the cotton by fire, to Cely & Bro. for the loss according to the complaint. Well, Cely & Bro. assigned, transferred, this policy to the Pelzer Manufacturing Company, and that assignment carried to the Pelzer Manufacturing Company all the right and interest which Cely & Bro. had in that policy of insurance to the Pelzer Manufacturing Company. And the Pelzer Manufacturing Company, assignee of Cely & Bro., has all the right to enforce that contract now that Cely & Bro. would have had if they, Cely & Bro., were the plaintiffs in this case.</p> <p>The insurance company, by its answer which you have heard read — and I state generally, you have heard the pleadings read— comes in and denies that it is indebted to the Pelzer Manufacturing Company for any loss sustained by that fire. Its defence, among other defences, is that the warehouse of Cely & Bro. stood upon the right of way of the railway company — was leased from the railway company, and that in the lease of the railway company to Cely & Bro. they had agreed with the railway company to exempt them from any liability from loss which might be occasioned by the burning of that warehouse, or the contents stored in it, by fire escaping from the railroad, or escaping from one of its engines. That is substantially one of its allegations. And they say further, that that was a material fact, which it wTas the duty of Cely & Bro. to have made known to the insurance company, and that inasmuch as they had failed to make known this fact to the insurance company, that that failure made the policy void — that is, no account.</p> <p>Now, there is a difference between the terms, “concealment of a fact” and “failure to make known a fact.” Concealment has the additional element of intention. It is a failure, but it is an intentional failure. That is the difference between concealment and failure. One is a failure to state the facts, and the other is an intentional failure to state them. Now, what is a material fact ? Whenever the facts are such that, if known to the insurer, they wmuld have, or might have, a real influence upon him, either in accepting or rejecting the risk, or in determining the rate of premium to be charged therefor, it is deemed a concealment of material facts, if a higher rate would have been charged if such facts had been known. If those were the facts, I hold thém to be material. And it is also material if a fact'is concealed from the company which, if known to them and known by the party concealing it, would have called for a higher rate of insurance than the party got by concealing the facts. That would be material.</p> <p>The rule of evidence in the civil court is, that whoever asserts a proposition, whoever makes an allegation, states a fact, and the burden of proof is upon him to prove it. If the plaintiff makes an allegation of fact, then the plaintiff assumes the burden of proof to prove it: if the defendant makes an allegation of facts, the burden of proof is upon him. The rule is, that he who alleges must prove, and you must carry this rule into all of your considerations. And the rule is, that he must prove his allegations by a preponderance of evidence. If the party who alleges a fact introduces evidence to support it, and if the party who denies it introduces evidence to deny it, and if the evidence in your judgment is equal, then that allegation would fall, because the rule says that whoever alleges a fact must prove it by a preponderance of evidence. Evidence means not only the facts testified to by the mouths of witnesses upon this stand, but it also means the papers that have been read in your presence. And it includes facts and circumstances which have been testified to here, and those facts and those circumstances are in evidence before you, either as in themselves showing or convincing you as to certain matters, or as aiding you in reaching your conclusions in weighing the evidence. It is not for the court to say what part of the evidence you will consider or not consider of the greater importance or the lesser importance, but the whole evidence is for the jury. Therefore, going back, he who alleges must prove by a preponderance of the evidence, the truth of the statement he charges or alleges.</p> <p>I further charge you this, that if the insurance company, or, what is the same thing, their agent, knew of the existence of facts which may be material facts, and the plaintiffs,-Cely & Bro., failed to state to the insurance company those facts in making the application to the insurance company, still, if the insurance company, or their agents, knew of those facts, it was not a failure to speak, or a concealment in the eye of the law, because the very purpose, the very object, was accomplished which the insurance company had in view', to wit, being in possession of the facts upon which they were asked to grant a policy of insurance. Then the question arises, did this defendant insurance company know of the facts connected with the Cely & Bro. warehouse, or did Mr. Ferguson, their agent, know of the facts connected with the Cely & Bro. warehouse ? Did he know that it stood upon leased ground and upon the right of way of the railway company ? Did he know of the release ? These are questions of fact which you are to decide. And, as I have charged you, if Mr. Ferguson, the agent of the company, knew of these facts, then the company cannot say the facts have been concealed from them, because they had knowledge of them.</p> <p>Mr. Srnythe: The answ’er says, “omitted to make known.”</p> <p>Court: Yes, sir; those are the words.</p> <p>Well, gentlemen, as I have told you, you are to decide this case according to the complaint and answer, not according to what I say. I have explained to you what a material matter is. The next question is, did Cely & Bro. omit to explain to Mr. Ferguson any material matter pertaining to this policy ? Did they omit to state it ? The court caftnot help you on that question. I have told you what a material fact is ; now, did Cely & Bro. omit to state any material fact to the insurance company ?</p> <p>Another view may be taken : An insurance company may be due certain rights, and it may exact those rights, or the insurance company may waive their right to demand compliance on the part of the party seeking insurance. That is, the waiver means to lay aside the original demand. These are questions for you, and I am not stating the evidence. Did the insurance company, either by their language, as used by the company or their agent, or did they by their acts, waive the right or waive the duty of Cely & Bro. to state facts to them which they say Cely & Bro. omitted to state as a material question ? If their right to demand of Cely & Bro. a statement as to these facts which are material, or which the defendant company says they omitted to make, were waived, then the waiver cured the want or the necessity or the right or the duty upon Cely & Bro. to state it, and the defendant insurance company would not have a right to insist upon their performance if they once waived it.</p> <p>Now, in regard to risk and salvage: you have heard a good deal stated about those two questions. A risk in a policy against fire is the risk that that cotton runs from being destroyed by fire, and insurance is based primarily upon that peril to cotton, and to save the owner of the cotton from the loss which he would sustain if the cotton was burnt and he had no insurance on it. That is the risk to protect the property against fire. The risk begins at one end of the transaction, it starts at the beginning, on this side of the fire, and salvage comes out the other end, on the opposite side of the fire. They are separate and distinct questions. Salvage means that after the fire has caught and burned a portion of the property and injured it, there is a certain portion of the property which is rescued from the fire in a damaged condition,; that is what the law calls salvage, and belongs to the insurance company.</p> <p>Subrogation means just wliat the term defined in any dictionary says. It means to be put in the right that once belonged to another. When an insurance company insures Mr. Smith against fire, and the fire does occur, then the insurance company is sub-rogated to the rights of Mr. Smith, and among other rights acquired by Mr. Smith would be the right to sue. It is not a right growing necessarily out of stipulations in a contract, because it is a legal right growing out of a contract as a consequence of the contract. It is a right which the law gives you.</p> <p>I think I need not take up your time further, except these requests to charge, and I will state that I have done what is not ordinarily my duty. As I understand the law, I am not bound to modify a request; I can charge it or refuse it as a whole. There are some of these requests that I have modified.</p> <p>These are the plaintiffs’ requests: First. “The jury are instructed,' that if they find from the evidence that Cely & Bro. were carrying on the business of warehousemen in the city of Greenville, and that as such they had received from the plaintiff, the Pelzer Manufacturing Company, the cotton in question, and had made themselves responsible to the said Pelzer Manufacturing Company, plaintiff herein, for the safety of the same, that then Cely & Bro. had a sufficient interest in such cotton to enable them to obtain insurance upon it.” That I charge you.</p> <p>Second. “And the jury are further instructed, that Cely & Bro. had the right, in order to protect themselves against their own responsibility, as well as to secure any lien for charges, to cause the cotton in question so stored with them by the plaintiff, and in their custody as warehousemen, to be insured to its full value, and the policy need not specify the nature of their interest. And in case of loss by fire, the said Cely & Bro. were entitled to recover the full amount of insurance for their own claim first, if any, and hold the residue for the owner, the plaintiff herein, unless the said Cely & Bro. have violated any of the conditions of the insurance agreement on their part.” That I charge you.</p> <p>Third. “The jury are further instructed, that when goods are totally destroyed, actually or constructively, by perils insured against, the insurer, upon payment of the loss, becomes subro-gated to all the assured’s rights of action against third persons who have caused, or are responsible for, the loss, and that no express stipulation in the policy of insurance is necessary to perfect the title of the insurer. But that the insurer stands in no relation of contract or of priority with such persons, and the right of subrogation against such other person is only that which the assured has by law or contract against such person. And if the assured’s right of action is limited or restricted by lawful contract between him and the person sought to be made responsible for the loss, any suit by the insurer in right of the insured is subject to like limitations and restrictions.” I so charge you.</p> <p>Fourth. The jury are further instructed, that if they find from the testimony that either before or after the preliminary proofs of loss were rendered to the defendant by Cely & Bro , the defendant denied any and all liability for the loss under the policy, or refused to pay the same, that such action on the part of the defendant is a waiver of the condition in the policy requiring such proof to be made, and the preliminary proofs, if made, cannot be objected to, or defects therein relied on as a defence in this action.” I so charge you. '</p> <p>Just here, I would state that the contract of insurance requires the party, when his property has been destroyed, to make proof of his loss within a limited time, as the policy shows; and ordinarily, before a party who has lost property covered by a policy of insurance can recover, he must prove the loss, and that he made known the loss to the insuring company. But if the insuring company denies its liability, assumes to say, “I won’t pay the loss.” then the law does not require the party insured to do a useless act, to present the proof of loss when the insurance company has already told him, “I won’t pay your loss.” You have heard the evidence here, the proof of loss ; and the notice to the company, and so on, of proof of loss, and the papers, etc., are in evidence, and you have heard the papers read, so that it is a question of fact for you to pass upon, whether the loss has been proven, and the proof of loss submitted to the company, or whether the company has denied its liability for the loss — it has denied its liability to Cely & Bro. for the loss. Then the cause can go on, for there is no use to do an act which the company themselves have instructed is useless.</p> <p>Fifth. “The jury are further instructed, that it is the general duty of the assured when effecting insurance to disclose all material facts known to him and not to the insurers, or, at all events, facts which they are not bound to know. Before, however, the duty of disclosure arises, the fact mrist be material to the risk. But the burden is on the defendant, the insurance company, to establish to the satisfaction of the jury, who are the judges thereof, whether such facts are or are not material, and whether or not they were concealed,” or omitted. (“Or omitted” was added on motion of Mr. Smythe.) I so charge you.</p> <p>Sixth. “The jury are further instructed, that if they find from the testimony that the policy sued on in this action was issued upon a verbal application, and without any representations in reference thereto, that then all information relative to the risk, except such as is unusual and extraordinary, is waived, and' the defendant cannot charge the plaintiff', or its assignor, Cely & Bro., with laches induced by its own conduct.” I so charge you.</p> <p>The next requests are those of the defendant, the insurance company.</p> <p>[The requests and the charge on them were the same as in the preceding case of the Sun Fire Office of London, except that requests numbered 5 and 6 charged in the other case with modifications, were refused in this, and request 10 was charged as follows : “I charge you that with this limitation : That if the unusual circumstance must be one pertaining to 'the risk,- and it need be one affecting the risk, it must be one not only pertaining to the risk, but affecting the risk.” The three additional requests in the other case, were not asked in this, but the two following, numbered 11 and 12, do not appear in the other case.] •</p> <p>Eleventh. “That inasmuch as the policy provides that ‘if the assured, in a written or verbal application, makes any erroneous representation, or omits to make known any fact pertaining to the risk, this policy shall be void,’ the question of materiality has been waived in this case, and if the jury find that the party applying for the insurance omitted to make known any fact pertaining to the risk, whether such fact be material or not, the plaintiff cannot recover.” That I refuse to charge, because a question of waiver is a question of fact for the jury.</p> <p>■ Twelfth. “That if, after making the oral contract to be responsible to the Pelzer Company in case of the destruction of the cotton by fire, Cely & Bro. delivered to the Pelzer Company receipts for the cotton containing a condition that they (Cely & Bro.) would not be responsible for such loss,- this annulled the original contract.” That I refuse, because if the parties made a continuing contract, one party could not terminate it without the consent of the other. That is a question of fact among others.</p> <p>Now, I have gone over these requests to charge. You will take this case, and if you conclude to find in favor of the plaintiff, your verdict would be for the amount due upon that policy, together with interest at the rate of seven per cent, from — for the amount of the loss, the damage sustained by this fire, from sixty days after the proof of loss was made.</p> <p>Mr. Heyward : I ask the court to charge as to the $1,492.00'. Court: That is a question of fact for the jury. You cannot go Over the amount of the policy, but you will have to find the actual loss with interest on it from sixty days after the proof of loss.</p> <p>If your verdict is for the plaintiff, you will say, “We find for the plaintiff so many dollars,” aggregating it, and writing it out in dollars and cents, not in figures, but in words. If you find for the defendant, you will simply say, “W7e find for the defendant.” You cannot find more than fifteen hundred dollars. If you find in favor of the plaintiff, you find what was the actual loss by that fire, and interest on the amount you find, computing it after the proof of loss.</p> <p>The jury found for the plaintiff $1,589.54, and judgment was entered accordingly.</p> <p>- The defendant appealed on the same grounds as in the preceding casé, except the one numbered 14 and with three additions, as follows:</p> <p>■ a. That his honor erred in admitting in evidence a conversation had after the fire between E. A. Smyth, president of the Pelzer Manufacturing Company, and John W. Murray, relative to the terms of the policy.</p> <p>b. That his honor erred in charging the jury, that “to constitute ‘concealment,’ there must be an intention to conceal or an intended failure to speak.”</p> <p>c. That his honor erred in refusing to charge the jury, that the ' defendant was bound to pay only its proportion of the loss as adjusted under the “average clause,” and no more.</p> <p>The remaining eight cases were tried before Judge Wallace and a jury at the March term of 1891, as follows: the two cases against The Hibernia Insurance Company were tried together; the two cases against The Hamburg-Bremen Fire Insurance Company, and the two cases against The Southern Insurance Company of New Orleans, four in all, were tried together; and the two cases against The American Fire Insurance Company of Philadelphia were tried together.</p> <p>In the two cases against The Hibernia Insurance Company, tried together, the judge charged the jury as follows :</p> <p>Gentlemen: This has been to me an interesting case, and I hope it has been equally interesting to you. I will try to state to you in a very short compass what I wish to say. You have heard a great deal about subrogation. That is a technical word, familiar to the gentlemen of the bar, but unknown to laymen. Now, suppose that a railroad company here, by way of illustration, by reason of some accident loses goods that have been shipped upon it from Charleston to Greenville. Common carriers are insurers unless they are prevented from delivering by the act of God or the public enemy. Upon an assumption that they do not deliver goods received for shipment, and such failure is caused by their own negligence, the consignee has a right of action against the carrier. Suppose the consignee has insured the goods and they are destroyed. The consignee goes to the insurance company and collects the loss, and then he assigns his right against the railroad to the insurance company; then the insurance company sues the railroad company. The assignment of the rights of the consignee to the insurance company is subrogation ; that subrogates, as we call it, the insurance company to the rights of the consignee, and that is called his right of subrogation. That is an illustration'that perhaps makes it plainer to you than if I would undertake to define it in legal terms. In this case the insurance company puts in its policy that any person that insures cotton, and loses the cotton by reason of the negligence of the railroad company, and collects the value of the cotton on this policy, shall assign their right against the railroad company to the insurance company ; that is called the right of subrogation. That is what it means. It is a great big long word, but its significance is in a limited compass.</p> <p>Now, what is a material fact ? When that term is used in connection with an application for an insurance policy, it is a fact which, if known, would have a positive influence on the insurance company in refusing or granting the application. That is a material fact. I don’t know that there are any other terms that I should define to you.</p> <p>It appears that Cely & Bro. bought 1,000 bales of cotton for the Pelzer Manufacturing Company, and put it in their warehouse here in Greenville. It caught fire and was burnt up, the Cely Bros, in the meantime having effected insurance upon it with the Hibernia Insurance Company of New Orleans, and when that cotton was burnt up, they assigned that policy to the Pelzer Manufacturing Company and the Pelzer Manufacturing Company brings this action. The right of the Pelzer Manufacturing Company to bring this action is not questioned by the defence. They say that they have all of the rights that Cely & Bro. would have. There are two cases you are trying, one upon a policy which insured cotton for $3,500, and the other for $500. The insurance company, after some preliminary interviews between their agents and Cely & Bro., here decline to pay the policy, and the action is brought upon these two policies. The plaintiff's come in and prove their loss of the cotton by fire, and submit certain proof as to the transactions which took place between the agents here in this city and Cely & Bro. in further support of their right to recover in the two actions.</p> <p>The defendants set up two defences which they allege are sufficient to defeat the right of recovery upon either of these policies. First, they say that at the time Cely & Bro. applied to the agents here for an insurance policy, they concealed certain material facts from the agent of the company here, and that he stipulated subsequently in this contract that if he had at that time concealed a material fact, that this policy should be void. You will remember that it was in evidence here that what is called a Southeastern Tariff Association had fixed certain rates of insurance upon this building that was in existence at the time Cely applied for the insurance. One of the Celys went to the agent of the company here and asked to have a certain amount of cotton insured. No representations were made or asked for one way or the other. The agent of the company had lived in this city for many years. He had lived at a point not remote from the warehouse consumed by fire. He had frequently been to that warehouse when goods and cotton had been stored in. it. Under that state of facts, Cely applied to this company for insurance for $8,500 at one time and $500 at another time. No questions were asked, no representations were made; no proof of any whatever.</p> <p>Under that state of circumstances, what has Mr. Cely got to do under the law ? Well, the law always and under all circumstances requires honesty and fair dealing. Mr. Cely, if he knew of any fact that was material to the risk, and withheld it from the knowledge of the agent, that would not be honest and fair dealing. If he knew any fact that honesty and fair dealing required him to disclose to that agent, and he withheld it, that would not be honesty and fair dealing. That would be concealment. Now, the insurance agent representing the company has got no right to sit there like a sphinx and require that Mr. Cely shall state to him every fact that that agent or this company shall subsequently conceive to be material. It is stipulated in this policy that it shall be entirely void if the insurer has concealed at some time prior to its issuance any material facts. You see it is in the past tense, and this stipulation relates to what took place at the time of the contract and not after that time.</p> <p>• As I have already said, an insurance company has no right to require the insured to state everything that an agent who represented the company may then or subsequently think to be a material fact on pain of forfeiting all rights under the policy to be subsequently issued. The agent can ask anything that he sees fit, and if he does not ask, he has no right to require that what is in his mind and what he may subsequently think shall be met unless that condition is disclosed to the applicant. The agent at that time, unless he sees fit to tell what may be a material fact, is bound by what the applicant honestly thinks is material. Mr. Cely was not bound by what was in this policy, that was subsequently signed in New Orleans and forwarded to him here, that was not disclosed to him at the time of the contract. Everything in this policy which required subsequent conduct on the part of Mr. Cely, subsequent to its delivery to him, he is bound to conform to according to the terms of the policy. I don’t know that I need state anything more. As I have said to you, the insurance company had the right to ask him anything they pleased in regard to the subject-matter of the applications, and anything that they ask him he is bound to answer them truthfully, and anything that he conceals or misrepresents, that is a concealment of a material fact; but when the company leaves it to Mr. Cely to state material facts, then the company is bound by Mr. Cely’s estimate of what is material and what is not material.</p> <p>There is another ground of defence which arises out of the policy. This policy is a contract; it is not signed by Mr. Cely. It is signed by the proper officers in the city of New Orleans, is delivered to Mr. Cely, and he accepts it, and it is a contract between them, and that clause is as follows: “If this company shall claim that the fire was caused by the act or neglect of any person or corporation, private or municipal, this company shall, on payment of the loss, be subrogated to the extent of such payment to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to this company by the insured on receiving such payment.” Well, the word “subrogation” is in there, and the word “assignment” is in there, and the defendants claim that Mr. Cely lost cotton' that was insured by this contract, and it was lost, as the insurance company might claim, through the negligence of the railroad company. Mr. Cely might have a cause of action-against the railroad company; he may assign that to the insurance company.</p> <p>At the time that this contract was entered into there wras a lease in existence under which Mr. Cely leased from the Columbia & Greenville Railroad Company a piece of land upon which was built the warehouse, and released the railroad company from liability for loss by its negligence. That lease was in existence at the time this policy wás executed. If the insurance company knew that lease was in existence, it would be no defence to this action. They say that they did not know it; that the release of the railroad company was a material fact which was concealed from them, and that they are thereby.released from all obligations under the policy. Whether that was a material fact or not is a question of fact for the jury. You have heard the testimony, you have heard what all of the witnesses said, and you are to say from the evidence whether it was a fact which, if known to the company, would have had a positive influence on the company in granting the poliey. If you find that it was a material fact, and that it was concealed from this company, it vitiates the policy; if not, it does not.</p> <p>I have been requested to charge you as follows for the plaintiff : (Read 6th and 7th requests and charged same.)</p> <p>6. The jury are further instructed, that it is the general duty of the assured, when effecting insurance, to disclose all material facts known to him and not to the insurers, or, at all events, facts which they are not bound to know. Before, however, the duty •of disclosure arises, the fact must be material to the risk. But the burden is on the defendant, the insurance company, to establish to the satisfaction of the jury, who are the judges thereof, whether such facts are or are not material, and whether or not they were concealed.</p> <p>7. The jury are further instructed, that if they find from the testimony that the policies sued on in this action were issued upon a verbal application, and without any representations in reference thereto, that then all information relative to the risk, except such as is unusual and extraordinary, is waived, and the defendant cannot charge the plaintiff, or its assignor, Cely & Bro., with ¡(aúhes induced by its own conduct.</p> <p>Now, gentlemen, for the defence all these requests, with one or two exceptions, are in conflict with what I have already charged.</p> <p>[The requests of defendant in these cases were the same as in the case against The Sun Fire Office, ante, p. 221, except as here stated:. No. 1 was charged; Nos. 2 to 6 inclusive were refused; No. 7 was as follows, and was charged :</p> <p>Seventh. “That where insured property is destroyed by the wrongful act or negligence of a railroad company, or its agents, the insurance company has the right, upon payment of the loss, to be placed in the position of the owner of the property, and to recover from the railroad company the amount so paid. This is called the right of subrogation, and inures to the insurance company through the contract of insurance and specially called for “by the policy.”</p> <p>Nos. 8, 9, and 10 were refused. The subsequent requests were as follows:]</p> <p>Eleventh. “That if, after making the oral contract to be responsible to the Pelzer Company in case of the destruction of the cotton by fire, Cely & Bro. delivered to the Pelzer Company receipts for the cotton, containing a condition that they (Cely & Bro.) would not be responsible for such loss, this annulled the original contract.” No.</p> <p>Twelfth. “That the policy embodies the contract, and Cely & Bro., having accepted said policy, are bound by its terms, whether they read it or not; and the plaintiff in this action is equally bound.” Yes.</p> <p>Thirteenth. “The policy in this case, among other conditions, has, if this company shall claim that the fire was caused by the act or neglect of any person or corporation, private or municipal, this company shall, on payment of the loss, be subrogated to the extent of such payment to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to this company by the insured on receiving such payment. Now, if the railroad company burned the cotton insured, a cause of action arose against the railroad company, and if the insurance company paid, it would have the right to the use of that cause of action for reimbursement. But if Cely & Bro. had, before they took said policy, rendered themselves (by contract with the railroad company) unable to transfer such right against the railroad company, Cely & Bro., or their assignees, cannot require such payment.” No.</p> <p>Fourteenth. “The local agent cannot, without special authority, waive said condition, nor is it waived by his knowledge of the contract relieving the railroad company.” No.</p> <p>Fifteenth. “That the policy requires that proofs of the loss shall be rendered the company within thirty days after the fire, and containing certain particulars specified in the policy, that the best proof of said proofs of loss is the paper itself, and unless the plaintiffs have shown to the satisfaction of the jury that said proofs of loss were duly rendered to the defendant within thirty days, and contained all the particulars required by the policy, they cannot recover.” Yes.</p> <p>Now, gentlemen of the jury, as was said to you in the argument, this is a contract just as any other contract; it is bigger than some other contracts, and has more in it than some other contracts, but it is the law between the parties as to this transaction, and so far as concerns w’hat occurred preliminary to entering into the contract I have given you my views about it. Whether or not there was a concealment of a material fact must be judged of in relation to the time that the application was made, and must not be judged of at the time this contract was received here .in Greenville after its execution in New Orleans.</p> <p>Mr. Hammond: Those papers are signed in blank in New Orleans and declared that it is not to be valid until countersigned by their local agent.</p> <p>Court: In the absence of proof, I am obliged to presume that the application preceded the paper, and was not made on this paper (policy).</p> <p>Mr. Heyward: That is a fact, but it is filled out in blank and s.ent here and countersigned by the local agent.</p> <p>Court: Well, I was misled by the grammar of the contract, which says that if the plaintiff “has concealed.” So, gentlemen, if you find for the plaintiff on this contract, you say, “We find for the plaintiff” the amount you think they are entitled to recover, with interest from the time it became due. If you do not think the plaintiff is entitled to recover, say, “We find for the defendant.” Take the record.</p> <p>The jury found for the plaintiff in the first case $3,953.04, and in the second case $564.72.</p> <p>Defendants appealed on the following grounds:</p> <p>I. That his honor, Judge Fraser, erred in refusing to consolidate and remove the causes to the United States Circuit Court upon the presentation of the petition and bond of the defendant.</p> <p>II. That he erred in holding that the causes could not be consolidated and removed.</p> <p>III. That he erred in holding that the defendant, having moved to consolidate, had thereby lost the right to remove either cause to the United States Court, and in requiring the defendant to answer in both causes, or submit to judgment in the State court.</p> <p>IV. That the defendant, having fully complied with the law in respect to the removal of causes from the State court to the United States Court, it is submitted that the State court thereupon lost all jurisdiction of the causes, and all proceedings in the. causes subsequent to that time were coram nonjudice, null and void.</p> <p>V. That his honor, Judge Wallace, erred in allowing the causes to proceed to trial and judgment in disregard of the protest of defendant against it.</p> <p>VI. That even if the State court had not been deprived of jurisdiction, it is submitted that his honor, Judge Wallace, erred in the following particulars, to wit:</p> <p>1st. In charging the jury as requested by the plaintiff, as follows : “Before, however, the duty of disclosure arises, the fact must be material to the risk. But the burden is on the defendant, the insurance company, to establish to the satisfaction of the jury, who are the judges thereof, whether such facts are or are not material, and whether or not they were concealed.”</p> <p>2nd. In refusing to charge, as requested by defendant, as follows: “That the recording of the lease from the Columbia and Greenville Railroad Company to Cely & Bro. did not constitute notices to the insurance companies of the contents of the lease, and unless the jury find that the insurance company had actual notice of the contents of the lease when the policies were issued, they cannot be held to have known of the existence of the same, or of its contents.</p> <p>3rd. In refusing to charge, as requested by defendant, as follows: “That if the jury find that Cely & Bro. omitted to state to the insurance agent, when the policy was issued, any fact ma-. terial to the risk, whether the application for insurance was verbal or written, then the policy is void, and the plaintiff cannot recover.”</p> <p>4th. In refusing to charge, as requested by defendant, as follows : “That any fact which, if known to the insurance companies, might have influenced them in accepting or rejecting the risk, or in fixing a higher rate of premium therefor, is material, and should have been stated when the application for insurance was made, and if not stated, the policy is void.”</p> <p>5th. In refusing to charge, as requested by defendant, as follows : “That it makes no difference whether Cely & Bro. believed the existence of the lease to be material or not; and if the jury find that the existence of the lease was material to the risk, and was not made known to the insurance agent when the policy was issued, then the policy is void, whether the failure on the part of Cely & Bro. to make it known was the result of fraud, or ignorance, or accident, or inadvertence, or mistake.”</p> <p>6th. In refusing to charge, as requested by defendant, as follows: “That the insurance company is not bound to prove fraud on the part of Cely & Bro., but any failure on the part of Cely & Bro. to state any fact material to the risk is sufficient to prevent a recovery upon the policy, no matter whether such failure was the result of ignorance, accident, negligence, or any other cause.”</p> <p>7th. In refusing to charge, as requested by defendant, as follows : “That by the execution of the lease from the C. & Gr. Railroad'Company, Cely & Bro. deprived themselves of the right to recover from the railroad company any loss sustained by them by means of fire originating from sparks from a locomotive engine of the railroad company ; or by fire originating on the right of way of the railroad company ; and having so deprived themselves of this right, they at the same time deprived the insurance company of any right of subrogation against the railroad company, which the insurance company otherwise would have had.”</p> <p>8th. In refusing to charge, as requested by defendant, as follows : “That if the building in which the cotton was stored was held under lease, or stood upon leased land, and either of these facts was not stated to the insurance agent when the policy was taken out, or was not expressed in the policy, then the policy is void, this being one of the conditions upon which the policy was issued, and the plaintiff cannot recover.”</p> <p>9th. In refusing to charge, as requested by defendant, as follows: “That in every case it is the duty of the applicant for insurance to state to the insurance agent any unusual circumstances pertaining to the risk; and should he fail to do so, the policy is void. And if the jury find that there was any unusual circumstance pertaining to the risk in this case, and that such was not disclosed to the agent of the insurance company (R. C. Goodlett) by the party applying for the insurance, then this policy is void, and the plaintiff cannot recover.”</p> <p>10th. In refusing to charge, as requested by defendant, as follows : “That if, after making the oral contract to be responsible to the Pelzer Company in case of the destruction of the cotton by fire, Cely & Bro. delivered to the Pelzer Company receipts for the cotton, containing a condition that they (Cely & Bro.) would not be responsible for such loss, this annulled the original contract.”</p> <p>11th. In refusing to charge, as requested by defendant, as follows: “The policy, in this case, among other conditions, has, ‘If this company shall claim that the fire was caused by the act or neglect of any person or corporation, private or municipal, this company shall, upon payment of the loss, be subrogated to the extent of such payment, to all right of recovery by the insured for the loss resulting therefrom, and such right shall be assigned to this company by the insured on receiving such payment.’ Now, if the railroad company burned the cotton insured, a cause of action arose against the railroad company, and if .the insurance company paid it, would have the right to the use of that cause of action for reimbursement. But if Cely & Bro. had, before they took said policy, rendered themselves (by contract with the railroad company) unable to transfer such right against" the railroad company, Cely & Bro., or their assignees, cannot require such payment.”</p> <p>12th. In refusing to charge,- as requested by defendant, as follows: “The local agent cannot, without special authority, waive said condition, nor is it waived by his knowledge of the contract relieving the railroad company.”</p> <p>13th. In charging the jury as follows : “Now, the insurance agent representing the company has got no right to sit there like a sphinx and require that Mr. Cely shall state to him every fact that that agent or this company shall subsequently conceive to be material;” and, “as I have already said, an insurance company has no right to require the insured to state everything that an agent who represented the company may then or subsequently think to be a material fact, on pain of forfeiting all rights under the policy to be subsequently issued.”</p> <p>14th. In charging the jury as follows: “The agent at that time” (when the application is made), “unless he sees fit to tell what may be a material fact, is bound by what the applicant honestly thinks is material. Mr. Cely was not bound by what was in this policy that was subsequently signed in New Orleans, and forwarded to him here, that was not disclosed to him at the time of the contract.- Now, everything in this policy which required subsequent conduct on the part of Mr. Cely, subsequent to its delivery to him, he is bound to conform to according to the terms of the policy.”</p> <p>15th.. In charging the jury as follows: “When the company leaves it to Mr. Cely to state material facts, then the company is bound by Mr. Cely’s estimate of what is material and what is not material.”</p> <p>VII. It is submitted that inasmuch as the policies require that “proofs of loss” shall be made out and furnished to the company, before the assured shall have the right to require payment, and the plaintiff having failed to prove that such “proofs of loss” were made out and furnished, they cannot now recover.</p> <p>VIII. That the verdict of the jury in each case was in excess of the amount called for by the terms of the policy.</p> <p>IX. That his honor erred in admitting in evidence the letter of E. A. Smyth, president, addressed to the defendant, dated July 5th, 1889, and the answer to said letter; also the letter of John C. Whitner to E. A. Smyth, dated July 13th, 1889.</p> <p>X. That his honor erred in admitting in evidence the oral statements of the witnesses Goodlett, Willis, Cely, and John Ferguson, as to the ownership of the land on which the warehouse stood.</p> <p>XI. That his honor erred in admitting in evidence the conduct of other insurance companies, in issuing policies upon the new warehouse, after the destruction of the cotton herein sued for.</p> <p>XII. That his honor erred in admitting oral testimony to show that “proofs of loss” had been made out, and delivered to the agent of the company.</p> <p>The next four cases, two against The Hamburg-Bremen Fire Insurance Company and two against The Southern Insurance Company, were tried next day before the same jury, on the same evidence and charge, with such additions as were deemed proper.</p> <p>The requests to charge in these cases were the same as in the case of The Pelzer Manufacturing Company v. The Hibernia Insurance Company, with the following additions by defendants:</p> <p>That if the jury believe that the warehouse stood upon leased ground, and it was not stated in writing in the policies, then the plaintiff cannot recover, this being one of the conditions of the policies.</p> <p>Modify request to charge No. 11, by substituting from the policy, after the words, “thus the policy in this cause, among other coridi-. tions, has,” this: “And the assured shall, if required, assign to this company all his right to receive satisfaction for the loss from any other person or persons, town or corporation, with a power of attorney to sue for and recover the same at the expense of this company,” and conclude as requested in said 11, beginning, “Now, if the railroad,” &c., to end (ante, p. 247).</p> <p>These policies contain an average clause. You will therefore, if you find for the plaintiff, find respectively only the averages shown by the proofs of loss in evidence. ;</p> <p>Under the agreement, these cases went to the jury under the same charge as given by his honor, the Circuit Judge, in the case of The Pelzer Manufacturing Company v. The Hibernia Insurance Company, with the following additions and modifications made by the Circuit Judge :</p> <p>Gentlemen : I think I will have very little to say to you in addition.to what I thought proper to say to you yesterday even* ing. You understand there are six cases submitted to you together, on each of which you are to find a verdict on the testimony which you heard yesterday, with that that you have heard supplemented this morning. Counsel have given you to understand that they repeat the argument made yesterday, that is, they stand by the same arguments they made yesterday, and I do the same thing in regard to the matter of instructions as to the law, except as to one matter, and that is as to the recording of the lease, whether the simple recording of the lease was notice to the insurance company — was notice of the lease and notice of the terms of the lease. I charge you to-day that that was not actual or constructive notice to the insurance companies of its contents.</p> <p>It is understood that what you were charged yesterday is in effect repeated to-day, and I need not go over it. I said to you yesterday, if you will remember, that these policies are only a contract between the parties; the insurance company and the insured, the person who has the insurance, are the parties to the contract. It is technically called a policy ; each one is bound by it just as they would be bound by any other contract, any contract of purchase and sale. All of these stipulations bind each party to it.</p> <p>Now, I am requested by the defence to charge you : “That if the jury believe that the warehouse stood upon leased ground, and it was not stated in writing in the policies, then the plaintiff cannot recover, this being one of the conditions of the policies.” Well, I don’t like to charge you just as it is phrased there, but I prefer to charge you as I have stated to you: That in those policies where the warehouse is upon leased ground, that fact must be stated, or else the policy is void. Now, if there is anything stated in the contract, the non-existence or non-appearance of which would avoid the policy, that is the contract, and they are bound by it.</p> <p>You have heard that in each of these contracts there is an average clause. It seems that there was an understanding between Cely & Bro. and these insurance companies that no one company was to insure to the full amount the property insured, but that each company in case of loss was to pay its average proportion of the loss, reference being had to the amount of property insured by each and the proportion such amount bore to the whole loss. As I have said, that average clause is binding upon the parties, and no party is bound for more than his proportion of the whole amount of loss. This is the calculation made out here. .Mr. Cely testifies that that does not represent correctly the whole amount of his loss. The amount in' the policies is $42,500, and the amount claimed is $45,000. In making up your verdict, you must consider this testimony in regard to that clause in the policies which provide an average liability as to the whole amount of losses.</p> <p>(After being out about two hours, the jury was brought into cpurt.)</p> <p>Court: Mr. Foreman, you have not agreed on a verdict ?</p> <p>Foreman: No, sir.</p> <p>Court: The sheriff handed me this note: “We are not satisfied as to whether the record of lease was sufficient in law to notify the insurance company, thereby causing them to waive the clause as to ownership of realty on which the house was built.”</p> <p>Juror Ligón: Tour honor, I believe I am the only one stick-ling on the point of the recording of that lease. I am aware that the record of matters generally in the county and State have the effect to estop citizens in this country; then whether or not the recording of the lease which Mr. Cely had is sufficient to notify those-parties ?</p> <p>Court: I charged the jury before they went out, that the record of the lease was not notice to the insurance company, and whether they had notice or not is a matter of fact; but the mere record of the lease, if it should be standing by itself, is not notice of itself, but whether the insurance company had notice of the existence of the lease or not is for the jury to say.</p> <p>Juror Ligón : Assuming that to be the fact, wre would have the right to give judgment against them ?</p> <p>Court: I cannot tell you that, but the mere recording of a lease standing by itself would not be notice to an insurance com-, pany in an action like this. Whether the insurance company had knowledge of the existence of that lease is a question of fact, and in determining that question you are to consider all of the testimony given on that subject. The record of the lease standing alone is not sufficient notice in a matter of this sort.</p> <p>The jury found for the plaintiff in the first case, $6,216.48 ; in the second case, $2,260.54; in the third case, $1,695.40 ; and in the fourth case, $1,130.27.</p> <p>The defendants appealed on the grounds ante p. 245, omitting subd. 2 of ground VI. and ground VII.</p> <p>The two cases against The American Fire Insurance Company were, by agreement, next tried before the same jury, and submitted on the same evidence arid under the same charges as in the other six cases tried at this term. The jury found for the plaintiff in the first case, $5,651.35, and in the second case, $1,130.-27. The defendants appealed upon the grounds taken in the Hibernia Insurance Company cases, ante 245, except that ground VII. and subd. 2 of ground VI. are omitted, and subd. 10 of ground VI. here in the place of subd. 11 of the same ground there is as follows :</p> <p>10th. In refusing to charge, as requested by defendant, as follows : “The policy in this case among other conditions has this, ‘And the assured shall, if required, assign to this company all his right to receive satisfaction for the loss from any other person or persons, town or corporation, with a power of attorney to sue for and recover the same at the expense of this company.’ Now, if the railroad company burned the cotton insured, a cause, of action arose against the railroad company, and if the insurance company paid, it would have the right to the use of that cause of action for reimbursement. But if Cely & Bro. had, before they took said policy, rendered themselves (by contract with the railroad company) unable to transfer such right against the railroad company, Cely & Bro., or their assignees, cannot require such payment.”</p> <p>• The following additional subdivision was also added to ground VI. in this case : “In refusing to charge, as requested by defendant: ‘that if the jury believe that the warehouse stood upon leased ground, and it was not stated in writing in the policies,. then the plaintiff cannot recover, this being one of the conditions of the policies.’ ”</p> <p>I. That his honor, the presiding judge, erred in refusing to try and determine separately the equitable issues involved in the pleadings, and in holding that the policy, as written, was sufficient without reformation to cover the cotton of the Pelzer Manufacturing Company. 12 S. C., 108; 17 Id., 544; 22 Id., 320; 18 Id., 232; 23 Id., 392; 25 Id., 80 and 81; 3 Barn. & A., 478; 4 Hall, 94-112; 5 El. & Bl., 870; 1 Id., 652-63-64; 36 N. Y., 655; 112 Mass., 131; L. R. 5 Ch. Div., 569; 93 Ü. S., 527; 55 N. Y., 268 .et seq. ; 2 Johns. Ch., 632 et seq., and 17 Johns., 373; 64 N. Y., 453 etseq.; 33 Id., 680; 75 Id., 593; 1 Wood on Insurance, 19 et seq.; 2 Id., §§ 506-7-8, 69, 96; Adams’s Equity, 171; 21 S. C., 235.</p> <p>II. That the bonds and petitions for removal having been duly filed with the clerk of the Court of Common Pleas, that court was deprived of jurisdiction in the causes, and all proceedings subsequent to such filing were coram non judice, null and void. 25 U. S. Stats, at Large, 434 et seq.;. Dillon on Removal (5th edition) sec. 135 et seq.; 41 N- Y., 149; 16 Peters, 98; 15 How., 198; 19 Wall., 214; 100 U. S., 457; 102 Id., 135; 103 Id., 485; 106 Id., 118; 104 Id., 5; 111 Id., 134; 23 Fed. Rep., 515; 131 U. S., 240; 45 Fed. Rep., 804; 19 Id., 885; 10 Id., 401; Ibid., 401; Ibid., 204; 17 Id., 275; 18 Id., 619; 11 Id., 355; 19 Id., 51; 20 Id., 10; 13 Blatchf., 218; 4 Dill., 242; 67 N. Y., 544; 96 IT. S., 539; 140 Id., 137; 29 La. Ann., 372; 40 Fed. Rep., 185; 122 U. S., 513, and cases therein cited; 21 Fed. Rep., 1; 74 N. Y., 53; 81 Am. Dec., 769; 2 T. R., 639; 9 Wend., 450; 3 Id., 441; 2 Bail., 380; 4 Hill (N. Y.), 46; 24 S. C., 430; Code of Procedure, §§ 188, 406; 23 Fed. Rep., 1; 32 S. C., 145; 7 Johns., 306; 16 Abb., 188; 11 S. C., 133; 33 Id., 450; 4 Wait Prac., 580, 584; 6 How. Prac., 108; 4 Id., 95; 5 Sand., 657.</p> <p>III. That his honor erred in his rulings upon the questions of evidence, as follows : 1. In admitting in evidence the letters of E. A. Smyth, president, to the defendants, and the answers thereto. 2. In admitting the oral testimony of Goodlett, Willis, Cely, and Ferguson as to the title to the land on which the warehouse stood. 3. In admitting testimony as to the conduct of other insurance companies after the fire, and after a new and different warehouse had been built. 4. In admitting in the Hibernia cases oral testimony to show that “proofs of loss” had been made out and delivered to the agent of the company. Gould’s Pleadings, ch. 3., §§ 170, 171, 183, 184, 188, 189, 190; 1 Chit. PL, *228, *229; 24 Ga., 211; 29 Id., 461-69; 29 Id., 399-402; 26 Id., Ill, and citations; 26 Id., 332; 151 Id., 212; Pom. R. & R. R., §§ 578, 642, 657; 16 N. Y;, 297; 1 Greenl. Evid., § 192 and note; 13 Eng. Law & Eq. R., 140, 145 ; 62 N. Y., 61 et seq.; 20 Id., 56; 18 Id., 389 et seq. ; 1 Wood Ins., 409, note 2; 2 Ibid., 927 et seq.; 7 Gray, 370; 11 Id., 163.</p> <p>IY. That his honor erred in refusing to charge, as requested by the defendant’s counsel, upon the questions of “concealment” and “materiality,” and in charging the jury that “the burden is on the defendant, the insurance company, to establish to the satisfaction of the jury, who are the judges thereof, whether such facts are or are not material, and whether or not they were concealed.” 3 Burr., 1905; 1 Sm. Lead. Cas. (7th Am. edit.), 853 et seq.; 1 Pars. Ins., 495; L. R., 2 Q. B., 595, 605; 2 Pet., 48 et seq., and 10 Pet., 515 et seq.; 5 Hill (N. Y.), 188; 18 Fed. Rep., 473; 13 Wall., 367; 17 Wend., 366; 8 How., 245; Harper, 241-2; 1 Beav., 452 ; Condy Marsh. Ins., *465, *468, *371 ; 3 Kent Com. (5th edit.), 282-3, and cases cited, and 285.</p> <p>Y. That his honor erred in holding that the local agent could and did waive the conditions of the policies. 20 N. Y., 55 ; 18 Id., 389 ; 62 Id., 61 et seq.</p> <p>YI. That his honor erred in refusing to charge, as requested by the defendant (The Hibernia Insurance Co.), that the recording of the lease was not notice to the insurance company. Gen. Stats., §§ 1810, 1776; 6 Rich., 437; 23 S. C., 543; 9 Ga., 23; 51 Id., 296-97; also Judge Wallace’s charge in Pelzer Man. Co. v. Ilamburg-Bremen Co., in which he states that he was in error in his charge in the Hibernia case.</p> <p>VII. That the insurance companies have the right, upon payment of the loss, to be subrogated to all (he rights of the insured as against any person or corporation causing the loss; and in these cases the defendants would have the right of action against the railroad company, were they not cut off by the terms of the lease under which Cely & Bro. hold the warehouse and lot. 13 Mete., 105; 13 Wall. 570; 117 U. S., 321; Gen. Stat., § 1511; 24 S. C., 366; 51 N. Y., 166; 100 Mass., 507; 2 Cush., 87; 66 Barb., 284.</p> <p>VIII. That this right of subrogation exists in every case, and where the policy contains a clause distinctly requiring a preservation and transfer of said right unimpaired to the insurance company (as in the cases of the Hibernia Company and the American), and the insured makes a contract by which said right of action is impaired, the rule is absolute that no recovery can be had upon the policy. 18 Fed. Rep., 473; 129 U. S., 128; 117 Id., 312; 123 Pa. St., 516.</p> <p>IX. That his honor erred in charging the jury in the language set out in the 13th, 14th, and 15th exceptions of the defendant,' The Hibernia Company, and in the 12th, 13th, and 14th exceptions of the other defendants, as to “materiality” and “concealment.” 3 Kent Com. (5th ed.), 282-3, and cases cited ; Ibid., 285; 1 Sm. Lead. Cas. (7th Am. ed.), 853; 1 Phil. Ins. (5th ed.), §§ 537, 534, 531, 532, 571, 575, 592; 1 Wood Ins., §§ 214, 211,230.</p> <p>X. That the verdicts and judgments are in excess of the amounts allowed by the respective policies.</p> <p>XI. That his honor erred in refusing to charge the jury, as requested by the defendant, particularly with reference to the policy issued by the American Company on the warehouse, that “if the jury believe that the warehouse stood upon leased ground, and it was not so stated in writing in the policy, then the plaintiff cannot recover, this being one of the conditions of the policy.” 10 Fed. Rep., 232; 10 Pet. 507; 7 Gray, 370; 62 N. Y., 47; May Ins., §§ 285, 287 ; 11 Gray, 163.</p> <p>XII. That when Cely & Bro. took policies, each stipulation therein became part of their contracts with the insurance companies and binds them, whether they or their agents who accepted them read the policies or not. 112 Miss., 71; 17 Am. Rep., 69; 48 N. Y., 132; 8 Am. Rep., 526-531 ; 62 Pa., 83-87; 1 Am. llep., 389; 18 N. Y., 777; 2 N. Y. Supp., 365.</p>

<p>Before Izlar, J., Barnwell, March, 1891.</p> <p>Action by J. F. F. Brewster against McNab & Walker.</p>

Before WITHERSPOON, J., Marion, April, 1890. This was an action by Henrietta C. McKibben against A. J. Salinas & Son, commenced December 21, 1889.

Before Fraser, J., Aiken, June, 1890. This is the second 'appeal in this case, the first being reported in 30 S. C., at page 305, where the facts are stated. This appeal was argued on January 22, 1891, before the two Associate Justices, then constituting the Supreme Court, and being ordered for reargument was heard by the full court on January 11, 1892. The last report of the referee was as follows : .

Before Kershaw, J., Aiken, November, 1889. This was an action by John Jordan against Idella L. Neece and John A. Neece, commenced July 10, 1888. The Circuit decree, omitting its statement of the facts, was as follows : As matter of law, I find that plaintiff has misconceived his interest under said deeds.

<p>Before Norton, J., June, 1891.</p> <p>The opinion fully states the case.</p>

Before Aldrich, J., Richland, October, 1891. This was a petition by George W. Waring to enforce a mechanic’s lien against the property of the Miller Batting and Manufacturing Company. A demurrer was interposed, and the Circuit Judge filed the following judgment thereon : The questions before the court are : a demurrer to a petition to enforce a mechanic’s lien, and a motion to amend the same.

Before IzLAR, J., Barnwell, March, 1891. This was an action by Mary A. Nobles against George M. Hogg. Held: or that said report had been filed, and judgment has been entered for the said principal sum so found, together with costs. The amount reported by the master to be due was $2,623.09, it being principal and interest, less commissions. This report was confirmed in open court.

Before Hudson, J., Marlboro, September, 1890. This was an action by George A. Norwood, who was the as-signee of Elizabeth S. Munnerlyn, against George A. Norwood & Co., E. H. Frost & Co., and others.

Before Wallace, J., Newberry, November, 1890. In this ease Hon. James Aldrich, judge of the Second Circuit, sat in the place of Mr. Justice Pope, who had been of counsel. It was an action by Ivy M. Súber and Lambert J. Jonds against Dolly L. Chandler and others, to set aside a deed made to defendants by the debtor of plaintiffs, dated September 2, 1869. The action was originally instituted October 2, 1879.

Before WitherspooN, J., Chesterfield, February, 1890. This was an action by Carrigan & Silcox against James F. Drake, as trustee, and his wife and children, for the foreclosure of a mortgage.

Before Wallace, J., Newberry, November, 1890. In this case Hon. James Aldrich, Judge of the Second Circuit, sat in the place of Mr.' Justice Pope, who had been of counsel in the cause. It was an action by J. W. Taylor against W. C. Dominick, for malicious prosecution, commenced December 14, 1889. The case is fully stated in the dissenting opinion of Mr. Justice Aldrich as follows: This was an action for a malicious criminal prosecution.

Before Hudson, J., Richland, April, 1891. This was an action by Sarah N. Reeves and others against Helen B. Brayton, for the recovery of real property, commenced February 24, 1890. The charge to the jury was as follows: The plaintiffs, to recover in this case, must rely upon the strength of their title. They can’t rely upon the weakness or any supposed defect in the title of defendant, but plaintiffs must show a perfect title to enable them to recover.

Before IzlaR, J., Aiken, March, 1891. These were sixteen separate actions brought by the plaintiff, Elizabeth Holley, against Stella A. Glover, and separately against fifteen other defendants. The sixteen cases were all heard together on the following agreed statement: It is agreed by counsel representing the parties in the sixteen actions above stated, that said actions be tried by the court in place of a jury upon the following statement of facts and the pleadings: 1.

<p>Before Keüshaw, J., Lancaster, March, 1891.</p> <p>The opinion states the case.</p>

<p>Before Izlar, J., Barnwell, March, 1891.</p> <p>This was an action by Weisiger and Tiffany against L. E. Wood, as administrator of Rebecca J. Wood, deceased, commenced in February, 1889.</p>

Before Cotiiran and Pressley, JJ., Sumter, June, 1886, and October, 1888. Action for partition by Henry T. Burkett against Emily E. Wiiittemore and otheis, commenced April 14, 1886. The Circuit decree of Judge Pressley, omitting its statement of facts, was as follows: After that time [June 15, 1867], said Penelope bought other parcels of land, without reserving to herself at time of purchase any power to dispose of these parcels by will.

Before Kershaw, J., Lexington, January, 1891. This was an action by James C. Fort, as administrator de bo-nis non of William Fort, against G. A. Goodwin and others, county commissioners of Lexington County. The opinion states the case.

Before Norton, J., Abbeville, October, 1890. Held: taken, reputed, and adjudged in law to be chattels personal, in the hands of their owners, * * * to all intents, constructions, and purposes whatsoever,” free negroes, mulattoes, etc., being excepted.

Before Izlar, J., Anderson, June, 1890. This was an action by Sarah C. Neal to have her mortgages of 1883 and 1885 to the defendants, Bleckley, Brown & Fret-well, and a sale of the land thereunder set aside, and for the recovery of the land. Other mortgages had been given by Sarah C. Neal and John B. Neal, her husband, to the defendants, one of them being dated February 13, 1882, but the terms of these several mortgages were substantially the .same.

Before Norton, J., Newberry, July, 1890. On the hearing of this appeal, Hon. I. D. Witherspoon, Judge of the Sixth Circuit, sat in the place of Mr. Justice Pope, who had been of counsel.in the court below. It was an indictment against Jason Summers for the murder of John Reeder in March, 1890. C. H. Cannon, after examination on his voir dire, and ruled to be competent, was challenged by defendant. It does not appear how many jurors were challenged.

Eefore Kershaw, J., Orangeburg, January, 1892. This was an indictment against Toby Jackson for the murder of Nelson Hook in December, 1890. The charge of the Circuit Judge, omitting legal definitions and instructions not excepted to, was as follows: I have described to you now the legal character 'of homicide, and you are to determine from the facts of this case what was the nature of that killing. What class of homicide does it fall under.

<p>Before HudsoN, J., Spartanburg, October, 1891.</p> <p>Indictment.against John Williams for the murder of J. A. Hen-neman, mayor of Spartanburg, on September 27, 1891. The opinion states the case.</p>

Before HUDSON, J., Oconee, March, 1892. Indictment against William Reeder for selling personal property covered by a lien.

<p>Before Aldrich, J., Richland, October, 1891.</p> <p>Indictment against Wade Haines for the murde^of, Florence Hornsby on November 1, 1890. The opinion states the case.</p>

■Before Aldeich, J., Edgefield, November, 1891. These were two cases heard together — indictments against Press Toland and Augustus Dearing for murder. The opinion states the case clearly, except the point involved in the fourteenth exception, which was as follows: The sheriff used a printed blank, tire schedule naming three classes, first, second, and third.

Before Kershaw, J., Orangeburg, January, 1892. Indictment against Eddie Carson and Henry Smith for murder. So much of the charge to the jury as has any bearing upon the points discussed in the opinion of the court was as follows: There is the statement made by these parties before the coroner.

<p>Before NORTON, J., Spartanburg, July, 1890.</p> <p>Indictment against George S. Turner for murder. The opinion states the case.</p>

Before Kershaw, J., York, April, 1891. ' Action bv M. L. Davis against A. H. Pollock for breach of contract of lease, commenced October 5, 1889. Plaintiff relied upon three letters written to him by defendant from Blacksburg, S. C., dated respectively December 26 and 31, 1888, and January 8, 1889. They were as follows: I. Dear Sir: I have seen the Dr. and have secured the House. Y’ou can make arrangements to come. I will let you know what day he will give up the House.

<p>Before Fkaser, J., York, November, 1891.</p> <p>Actions by W. M. Moss against R. A. Johnson, trustee, and D. D. Gaston against the same. The opinion states the cases.</p>

Before WALLACE, J., Barnwell, November, 1891. These are two cases, the first being an action of Alfred Sease against Joseph Dobson, Henry Dobson, and S. L. Knopf, and the second a special proceeding between the same parties, excepting Knopf.

<p>Before NORTON, J., Sumter, October, 1891.</p> <p>Action by Marion A. Capell against Altamont Moses. The opinion states the case.</p>

<p>Before FRASER and Aldrich, JJ., March and October, 1890.</p> <p>This was an action by W. M. Connor against Rosanna Edwards. The opinion states the case.</p>

Before Witherspoon, J., Abbeville, June, 1891. Action by Lula Dendy against W. F. Waite, F. A. Connor, and Mitchell Goggins. The main facts of the case are stated in the opinion of this court. The deed made by Connor to himself contained in its preamble the following address and recital: “To all to whom these presents shall come. I, F. A. Connor, mortgagee, send greeting.

Before HudsoN, J., Newberry, November, 1891. This was an appeal by Robert A. Taylor, the owner of the judgments in the two cases stated in the caption. The opinion states the case.

Before Hudson] J., Laurens, October, 1891. •In this case Mr. Justice Pope, having been of counsel, did not sit. It was an action by Hewlett Sullivan, continued in the name of J. P. and J. H. Latimer, as his executors, against Gr. W. Shell, as clerk of court. The opinion states the case.

Before Wallace, J., Colleton, November, 1891. Action by T. J. Folk against Clark Sanders.

<p>Before Izlar, J., Colleton, February, 1891.</p> <p>This was an action by Webber & Davis against John Ahrens, commenced December 26, 1889. The opinion states the case.</p>

Before Fkaser, J., Laurens, February, 1892. ■ This was an action by John H. Spoon, a creditor of Josiah Anderson, against James M. Smith, administrator of J. R. Smith, deceased (who had been first administrator of Josiah Anderson), and John H. Wharton, administrator de bonis non of Josiah Anderson, commenced October 26, 1891.

This was a motion to dismiss an appeal. The defendant was convicted of murder in June, 1890, and sentenced to be hanged. Held: upon said motion, that the judgment of the Supreme Court having been rendered on the 17th June, 1891, in open court, the court itself being illegal, any business done by said court was illegal, and the appeal of Levelle is, therefore, still pending in the Supreme Court.

In this action, the “Case” for the appeal was settled on December 28, 1891. Sometime afterwards the appellant’s attorney, residing in Barnwell, S. C., gave his “Case” and points and authorities to a representative of a Columbia printing house, with instructions to have the same printed by May 20, and to have the necessary copies filed.

This was a motion to have an appeal declared abandoned, the appellant having failed to file case with the clerk of the Circuit Court within ten days after the same had become settled.

This was an action by plaintiff against the assignee under an assignment for the benefit of creditors, to compel defendant to allow a claim presented by defendant and meantime to enjoin a distribution. Plaintiff contended that the assignor was indebted to him for the erection of a bake oven on a lot belonging to plaintiff’s, wife, under an agreement that the assignor would pay for its erection, he using it in connection with his business as a baker.