Volume 39 — South Carolina Reports

<p>1. Pleadinss — Immaterial Objection. — Alleged error in charging that defendant could not object to a verdict against him individually, where the evidence showed that the debt was contracted by a partnership of which he was a member, he having raised no such objection by his pleading, is immaterial where it appears that defendant, before action brought, had dissolved the copartnership and individually assumed all of its liabilities.</p> <p>2. Tender — Condition.—There is no lawful tender where the tender is accompanied with a condition that the creditor shall receipt in full.</p> <p>3. Evidence. — It seems that the personal recollection by a merchant of a sale is as good evidence as his original book entries.</p> <p>4. Supreme Court — New Jury Trial. — This court cannot consider error in the refusal of the Circuit Judge to grant a new jury trial on the facts.</p>

Before Aldrich, J., Beaufort, May, 1892. This was a proceeding in prohibition before the Circuit Judge at his chambers in the name of the State ex relatione W. F. Bartless and A. F. Odell against the town council of Beaufort, commenced by petition aud rule to show cause on May 22,1892.

Before Wallace, J., Horry, June, 1892. This was an action by N. O. Harrelson against D. J. Sarvis and J. M. Sarvis, commenced January 10, 1891. It was an action for the recovery of a tract of land. As a part of plaintiff’s chain of title, he introduced deed from J. F. Moody to D. J. Blanton, conveying “to the said D. J. Blanton all that plantation,” &c., with no habendum clause.

Before Norton, J., Chester, October, 1892. Action by T. F. Clinton, as executor of S. M. McKeown, against S. A. McKeown and others, commenced February 22, 1892. The appeal was by S. A. McKeown and Moses J. Mc-Keown, the grand-sons of testator.

<p>1. Requests Withdrawn — Appeal.—This court will not consider alleged error in refusing requests which were formally withdrawn.</p> <p>2. Roads — How Acquired — .Obstruction.—A right to a neighborhood road may be established by proving twenty years’ use over that same place, and no one can then obstruct it without violating the criminal law of the State. A private way is not acquired by twenty years’ use unless there is, also, the assertion of an adverse right against the owner of the soil.</p> <p>3. Charge on Facts. — The trial judge could not charge that the facts in the case did not make out a presumptive right to the road on the part of the public, as the facts must be left to the jury.</p> <p>4. Obstructing Hoad — Sentence—Acquiescence.—Where one offends against the public by obstructing a neighborhood road, he violates the criminal law, and may be required by the court to remove such obstruction. Acquiescence by the owner of the soil does not excuse the act.</p> <p>5. General Exception — Facts.—An exception alleging that the verdict of the jury is against the law and the evidence, is too general to require consideration ; nor can this court review the evidence in a criminal trial.</p>

Before Aldrich, J., Lancaster, March, 1892. Action by Elias Magill and Mary, his wife, against the County of Lancaster, commenced in September, 1890. The judge charged the jury as follows: Gentlemen of the jury: This is an action brought by Mr. Magill and his wife against the County of Lancaster, to recover damage alleged to have been sustained or caused by a defect in the repair of a highway in Lancaster County.

Before Aldrich, J., Fairfield, February, 1892.- In this ease, William Marion and others, devisees of Mary Marion, claim to recover a tract of land, which they alleged had been conveyed by Mary Marion to Andrew McConnell, her brother, for and daring the term of her natural life, and which was nowin possession of defendants, purchasers under Andrew McConnell. Mary Marion died in 1886.

<p>1. Law Case — Facts—Appeal.—This court cannot review questions of- fact on an appeal in a law case.</p> <p>2. Master and Servant — Negligence—Non-Suit.—Where an employee of a cotton mill was injured by the slipping of a band from its pulley, but there was no evidence tending to show that this accident was caused by any negligence on the part of the mill proprietors, the employee, in his action against the mill company to recover damages, w.as properly non-suited.</p>

Before Aldrich, J., York, April, 1892. This was an action by W. C. Latimer and J. W. P. Hope & Co. against the Richmond and Danville Railroad Company, the Charlotte, Columbia and Augusta Railroad Company, and the Chester and Lenoir Harrow Gauge Railroad Company.

<p>1. Law Cases — Facts—Appeal.—In an action at law, instituted in a Trial Justice Court and carried by appeal to the Court of Common Pleas, this court cannot review findings of fact by the Circuit Judge.</p> <p>2. Common Carriers — Loss—Exemptions—Onus Probandi. — A common carrier is liable for the non-delivery of goods entrusted to his carriage, unless they have been lost by the act of God or the public enemies, or from some cause specially excepted in the contract of carriage, other than the carrier’s negligence, as to which the law does not allow a contractual exemption. And the burden of proof is upon him to show that the loss did result from some one of these legally recognized exceptions to the general rule of liability.</p> <p>3. Ibid. — Ibid.—Contractual Value.' — But where a shipper of goods agrees by special contract upon a value to be placed upon such goods in case of loss, and in consideration thereof obtains a reduced rate of transportation, he is bound by such stipulation, and is estopped from showing that the real value of the goods was greater than that specified in the contract.</p> <p>4. Ibid. — Ibid.—Ibid.'—Case Criticised. — This rule applies as well to special contracts, fixing a value upon all property of a given class, as to those which specify the value of particular articles. Hart v. Pennsylvania Railroad Company, 112 U. S., 331, stated.</p> <p>5. Ibid. — Special Contract — Acceptance.—There being no fraud or misrepresentation by the carrier or its agent, the shipper cannot repudiate the terms of a written contract with the carrier, which was signed by him without reading because not ready for signature until the time arrived for taking the train.</p> <p>B. Ibid. — Ibid.—Free Transportation. — A shipper cannot claim a violation by the carrier of the contract for carriage of stock by reason of the carrier's failure to give him free transportation on passenger trains, where the contract stipulated for his free transportation on “the train with said stock,” which transportation was never applied for or refused.</p> <p>Y. New Trial Nisi granted by the Supreme Court in a law case.</p>

<p>1. Assignment for-Creditors — Complaint-.—There, being no-allegation in the complaint that a grantee of an insolvent debtor .was his creditor, a complaint to set aside conveyances from this debtor to such grantee, as in violation of-the assignment law, was properly dismissed.</p> <p>2. New Trial — Amendments.—-The Circuit Court having apparently not considered the whole case, the cause was-remanded to.the lower court for a ne-w trial,.with leave to plaintiffs to apply for such amendments to their complaint as may be deemed proper. Mr. Chief Justice MiJIver,dissenting.</p>

Before Izlar, J., Bichland, April, 1892. This was an action by the Durham Fertilizer Company against J. N. Pagett, commenced in January, 1892. The judge charged the jury as follows: Mr. Foreman and gentlemen of the jury: The plaintiff, the Durham Fertilizer Company, brings this action against J. N. Pagett, the defendant, to recover the sum of $723.84 on a promissory note alleged to have been executed by the defendant.

<p>1. Administrator — Infants—Agreement.—An administrator, the husband of a distributee who was entitled to one-thi.rd of intestate’s estate, made an agreement in his own name, individually, with an insolvent debtor of the estate, in order to secure priority of lien, whereby, in consideration of a preferred judgment, he bound himself to assign to said debtor “that portion of the money that may be collected on said notes, over and above two-thirds thereof, that will be coming to myself and said wife.” Held, that the agreement called for an assignment of only the wife’s interest in intestate’s estate, and did not, and could not, affect the interests of the other distributees, who were infants, in the moneys recovered under such judgment.</p> <p>2. Ibid. — 'Ibid.—Payment.—An administrator cannot discharge himself of liability to infant distributees by executing a note for the amount in hand payable to his own wife, the guardian of these distributees, in her individual capacity.</p> <p>3. Ibid. — Ibid.—Disbursements.—Exceptions alleging error in not giving an administrator credit on his account for disbursements for infant distributees, out of the corpus of the estate, for tuition, horse, cow, piano, and cash, not sustained.</p> <p>4. Ibid. — Ibid.—Equitable Set-One. — Where an insolvent administrator has in hand a fund improperly received by him belonging to infant distributees, he will not be allowed credit on his accounting for the board bill of these distributees, due to himself, amounting to less than the fund so in his hands.</p> <p>5. Ibid. — Disavowal on Trust. — The statute of limitations does not run in favor of an administrator against the distributees, when his last return did not purport to be final, and he received money for the estate thereafter. In such case, there was not a disavowal of trust.</p> <p>6. Errors not Appealed Prom — Commissions cannot be allowed an administrator on payments not authorized bylaw; andan omission of commissions inadvertently overlooked and discovered after appeal taken cannot be corrected on appeal.</p>

Before Fraser, J., Abbeville, June, 1892. This was an indictment against Singleton A. McIntosh for the murder of Edward N. Newby on December 24, 1891.

Before Izlar, J., York, July, 1892. This was an action by L. C. Younger against Henry Massey, Frank H. Brown, and Joseph F. Wallace,… Held: that insolvency of the vendor of personal property, pending of suits against him, the sale of his property, and retention of the goods sold to all appearances as owner, constitute such strong evidence of fraud, that they will be regarded as conclusive unless explained by the most satisfactory testimony, but are not presumptions of…

Before Izlar, J., Fairfield, June, 1892. This action was commenced on April 25, 1891. Held: that whether the improving claimant supposed or believed he had a good title, is a question of fact, and that in determining this question, his knowledge of facts, which in law would render title defective, is only a circumstance to be considered, but does not in itself show that he did not suppose his title to be a good title in fee.

<p>1. Evidence — Admissions—Third Parties. — Where a mortgagor is on the witness stand subject to cross-examination, his testimony, taken under supplementary proceedings, to which the present plaintiff was not a party, is competent'evidence for defendant only to the extent of impeaching his credibility as a witness.</p> <p>2. Attorney as Witness. — An attorney who signs his name as a witness to the execution of a mortgage prepared by himself, may be called upon to testify as to what occurred at the time of such execution.</p> <p>3. Decree- — Separate Findings. — The Circuit Judge should state his findings of fact and conclusions of law separately, but his omission to do so is not ground for reversal, where appellant has not been prejudiced.</p> <p>4. Findings op Fact — Mortgage—Fraud.—This court sustained the finding of fact by the Circuit Judge from written testimony, that a mortgage was not void for fraud under the Statute of Elizabeth, where it appears that the mortgagees were absent and innocent, the mortgage based upon a valuable consideration, and that an offer had been made by the mortgagor to non-accepting creditors to include them in this mortgage.</p> <p>5. Ibid. — Ibid.—Assignments.—A mortgage, if substantially an assignment by an insolvent debtor, would be void under the assignment law by reason of its preference, but where it did not include the whole of the debtor’s property, and secured debts payable in futuro, this court sustained the finding of the court below, that the mortgage was not tantamount to an assignment.</p>

Before Aldrich, J., Newberry, July, 1892. Indictment against Amanda Workman for the murder of Nora Simpson on November 12,1891.

<p>1. Negligence — Damages—Evidence.—In action by plaintiff to recover damages for injuries received through defendant’s negligence, it was not error to permit plaintiff to testify as to his family, their number, ages, and sex, the inquiry not being further pressed, and the law of punitive damages being charged.</p> <p>2. Exception taken after adjournment of court to a ruling on trial, overruling objection to testimony, considered, though not excepted to at the time.</p> <p>3. Evidence — Injury—Like Defects. — The engineer who built the trestle at which the injury complained of occurred, may testify as to the time and manner of its construction, and give a description of it, and of surrounding structures and topography. Mr. Chief Justice McIver dissenting.</p> <p>4. Railroads — Negligence—Stations—Passengers.—-A person desirous of taking a railroad train walked towards the depot in the night time by a proper approach, just before the schedule hour, sending his servant in advance to buya ticket, and the way being unlighted, he stepped between the ties of a trestle, where it commenced on the railroad property, and he was injured. In action brought to recover damages for this injury, the trial judge did not err in charging the jury that the railroad company was held to the exercise of extraordinary care towards those who had made a contract of carriage, and, also, in providing safe approaches for those who came to their depot to take carriage as passengers. Mr. Justice Pope concurred under the facts of this case, and Mr. Chief Justice McIver dissented.</p>

<p>Before Izlar, J., Bichland, April, 1892.</p> <p>This was an action by the Loan and Exchange Bank of Columbia against Jasper Miller, Noah J. Miller, Charles W. Miller and George Miller, as Miller Brothers, Mrs. Catherine McCarter, and the Atlanta and Charlotte Air Line Bailway Company, commenced July 10, 1891. The case came up to this court on the following exceptions:</p> <p>1. Because the presiding judge erred in finding as a matter of fact in his decree that the bonds and stocks mentioned in the sixth paragraph of the complaint were pledged by the defendants, Miller Brothers, as collateral security for the indebtedness to the plaintiff bank, and as matter of law in ordering and adjudging that said bonds and stocks should be sold by the said plaintiff after due advertisement of hot less than fifteen days at public auction for cash, and the proceeds arising therefrom be applied to the indebtedness found by the presiding judge in his decree to be due by the defendants, Miller Brothers, to the said plaintiff.</p> <p>2. Because the presiding judge erred in finding as a matter of fact that Miller Brothers have not applied to their indebtedness to the plaintiff bank thé proceeds arising from the sale of cotton, as required by the terms of their chattel mortgage to the plaintiff bank..</p> <p>3. Because the presiding judge erred in his decree in sustaining the exception of the plaintiff to the master’s report, wherein error was alleged in the master’s refusal to allow the plaintiff interest at seven per cent, on all overdrafts after June 9th, 1890, and the resulting error therefrom of three hundred and eleven and 25 100 dollars too little jn the balance found due by the defendants to the plaintiff on the overdraft account.</p> <p>4. Because the presiding j udge erred in his decree in holding that the question of usury could not be raised and considered in this case unless the same was pleaded; whereas the answer sufficiently put in issue any illegal charge.</p> <p>. 5. Because the presiding judge erred, after holding that usul'3' could not be set up in this case because the same was not pleaded, and although the master had found as a matter of fact that the usury had been charged, in not allowing or giving an opportunity to said defendants to amend their answer so as to plead usury, and in so doing he deprived the defendants of a substantial right, and of which they were not cognizant until said usurious charges were brought to light in accounting-before the master.</p> <p>6. Because the presiding judge erred in his decree in overruling the 1st exception of the defendants to the master’s report, which was as follows: “That the master erred in holding that the items claimed by the bank on the reconcilement sheet under the head of ‘We charge’ were proved by competent and sufficient evidence; and in holding that the evidence of Mr. Walker, cashier, and Mr. Cronenberg, bookkeeper, was sufficient evidence to prove the said items without the introduction into evidence of the books of the bank.</p> <p>7. Because the presiding judge erred in overruling the 2d exception of the defendants to the master’s report, which was as follows: “That the master erred in not holding that the evidence of the said cashier and said bookkeeper amounted to a mere identification of the said items on the books of the said bank, from which the said cashier and the said bookkeeper read, and did not constitute proof of the said item.”</p> <p>8. Because the presiding judge erred in his decree in overruling the 3d exception of the defendants to the master’s report, which was as follows: “That the master erred in finding that interest on interest upon overdrafts was not charged by the said bank, and that the charges of interest upon overdrafts were not compounded monthly or at shorter periods by the said bank.”</p> <p>9. Because the presiding judge overruled the defendants’ 4th exception to the master’s report, which was as follows: “That the master erred in not holding that the said interest, on overdrafts at the rate of eight and ten per cent, per annum and compounded monthly, as aforesaid, was usurious and void.”</p> <p>10. Because the presiding judge erred in overruling the 5th exception of defendants to the master’s report, which was as follows: “That the master erred in finding that the balance claimed by the said bank in September, 1889, and in June, 1890, respectively, embraced the said charges of interest on overdraft.”</p> <p>11. Because the presiding judge erred in overruling the defendants’ 6th exception to the master’s- report, which was as follows: “That the master erred in finding that, the defendants acknowledged and ratified in writing the alleged agreement to pay the rates of interest in excess of seven per centum per annum by the giving of promissory notes, notwithstanding the fact that the said notes, alleged to. have been, given for the purpose of stating and settling thS said account on the 9th of June, 1890, are not in evidence, and there is no evidence that the said notes bore upon their face an agreement to pay more thau the legal rate of interest.”</p> <p>12. Because the presiding judge erred in overruling the defendants’ 8th exception, to the master’s report, which was as follows: “That the master erred in finding that the amount of interest charged on overdraft by the plaintiff has not been received or paid as interest by the said plaintiff.”</p> <p>13. Because the presiding judge erred in overruling the defendants’ 9th exception to the master's report, which was as follows: “That the master erred in his conclusion that, as matter of law, the defendants are not entitled to double the amount of excess of interest on overdrafts above the legal rate.”</p> <p>14. Because the presiding judge erred in overruling the defendants’ 10th exception to the master’s report, which was as follows: “That the master erred in holding that the charges of interest on overdrafts which appear on. Exhibit ‘Q,’ and embraced in the first charge, under the head of ‘We charge,’ on ‘Reconcilement Sheet,’ of $6,760.36, amounting to the sum of $4,645.16, should be allowed; whereas the said charges of interest on overdrafts are usurious, in that the amounts of interest on overdraft were charged by the plaintiff at the rate of eight and ten per centum per annum without a written agreement, and were compounded monthly.”</p> <p>15. Because the presiding judge erred in overruling the defendants’ 11th exception to the master’s report, which was as follows: “That the master erred in finding that the various small items objected to upon the statement marked Exhibit ‘Q’ are established by the proof.”</p> <p>16. Because the presiding judge erred in overruling the defendants’ 12th exception to the master’s report, which was as follows: “That the master erred in finding that the following items on said Exhibit ‘Q’ should be allowed the plaintiff, that is to say:” * *</p> <p>17. Because the presiding judge erred in overruling defendants’ 13th exception to the master’s report, which was as follows: “That the master erred in finding that the following items of accouut on the reconcilement sheet, under the head of ‘We charge,’ were sufficiently proved, and in holding that they were proper charges made by the plaintiff against the defendants, that is to say:” * *</p> <p>18. Because the presiding judge erred in overruling defendants’ 16th exception to the master’s report, which was as follows: “That the master erred in holding that the note of the defendants for ten thousand dollars, due and payable on the 9th day of November, 1890, was not paid on the 19th day of September, 1890, by the.plain tiff charging the said note to the defendants on the books of the said bank.”</p> <p>19. Because the presiding judge erred in overruling defendants’ 17th exception to the master’s report, which was as follows: “That if the said note set forth in the 16th exception herein was charged to defendants’ account on the 9th day of November, as is found by the master, the master erred in not holding that there was a double charge of the said note made by the said plaintiff against the defendants, and in holding that the charge of the said note on the said 19th day of December, 1890, although erroneous, did not affect the balance of the account.”</p> <p>20. Because the presiding judge erred in not finding as a matter of fact that, as set out in the auswer and reported by the master, after the service of the summons and complaint in this case, the defendants moved for a bill of particulars of the transactions involved in the whole period of time the account covered, and that the plaintiff conceded that the defendants were entitled to a bill of particulars from the 31st May, 1890, and that the plaintiff declined to furnish a bill of particulars for the period anterior to that date, upon the ground that the accouut had been stated aud settled by notes on the 9th of June, 1890, and that the defendants contended that they were entitled to a bill of particulars covering the entire period, beginning in November, 1887;. and that at this juncture counsel for plaintiff and counsel for defendant entered into an. agreement that a statement of the account, taken from the books of the firm, should be compared with the account on the books of the plaintiff; and that all items of difference on the books, of the parties should he reconciled amicably, if possible, and that if such adjustment could not be made, then the items of difference should be submitted to the court for litigation, together with all other issues joined under the pleadings, and that the account should be stated between the parties under the order and direction of the court; and that if he had so found, he should have further found that the parties thereto were bound by said agreement, and that the accounting, proof and evidence should have been confined by the master to the items transferred to the reconcilement, sheet, and to such other facts'in issue as were made by the pleadings, outside of the accounting.</p> <p>21. Because the presiding judge erred in. overruling defendants’ 21st exception, which was as follows: “That in stating the account between the plaintiff and the defendants, the master erred in disregarding the agreement entered into between the parties as to the manner of ascertaining the account, and in refusing to consider the statement ‘A O,’ together with the ‘Reconcilement Sheet,’ as constituting the only basis of the accounting; whereas the alleged alterations of the statement ‘AO,’ if material, should have been corrected, andtheaccountingshould have been had in accordance with the understanding and agreement of the parties adhered to throughout the case, and in the absence of which the proof is wholly insufficient to authorize a fair and just accounting between the parties.”</p> <p>22. Because the presiding judge erred in not recommitting the report to the master to make an accounting upon the basis of the agreement between the parties.</p> <p>23. Because the presiding judge erred in overruling defendants’ 7th exception and in sustaining the finding of the master that the account of the said bank against the defendants was-stated and settled on the 9th day of June, 1890, by the giving-of two promissory notes for $10,000 and $6,000 respectively; whereas he should have found as a matter of fact that said notes were not given in settlement, but as mere memoranda of the account of the defendants on the books of the plaintiff.</p> <p>24. That the presiding judge ei red in overruling defendants’ 18th exception, which was as follows: “That the master erred in finding that the three notes given by defend ants-to the plaintiff for ten thousand dollars each, one on the 15th day of September, 1890, and two on the 28th day of October, 1890, were given for a bona fide consideration, and in admission, acknowledgment and in part settlement of the balance claimed by the bank to be due; in that the master exceeded the power given him under the order of the referee, which was to state the account between the parties, and take and report all the testimony to the court.”</p> <p>25. That the presiding judge erred in overruling defendants’ 19th exception, which was as follows: “That the master exceeded the scope and order of reference in finding and reporting that the amount due plaintiff by defendants on the three notes sued on for principal and interest to date of his report is thirty-two thousand six hundred and thirty-three 30-100 dollars; and if it be held that in this respect the scope of the order of reference has not been exceeded, then the master erred in finding any amount whatever to be actually due and payable to the plaintiff.”</p> <p>26. That the presiding judge erred in overruling defendants’ 20th exception, which was as follows: “That the master erred in finding that there is due by the defendants to the plaintiff, by way of overdraft, the sum of two thousand and fourteen 47-100 dollars, in that having refused to take into consideration the statement checked off with the books of the plaintiff and the reconcilement sheet as the basis of stating the account, there is no evidence tending to show that the amount reported by him as the balance due on overdraft is the true amount, or that any amount is due upon such an account.”</p> <p>27. Because the presiding judge erred in disregarding the agreement of the parties as to the matters in dispute upon which the testimony should be taken aud the account stated, and in not determining from such agreement aud the evidence what was the indebtedness, if any, of the defendants to the plaintiff.</p> <p>28. Because the presiding judge erred in overruling defendants’ 14th exception, which was as follows: “That the master erred in holding that the statement marked ‘A. O,’ taken from the books of the defendants and checked with the books of the plaintiff under the agreement set forth in the answer herein, is unreliable; and that he further erred in not taking into consideration the said statement in stating the account between the parties to this action.”</p> <p>29. Because the presiding- judge erred in overruling defendants’ 15th exception, which was as follows: “That the master erred in not accepting and acting upon the proposition made by the defendants, who offered to produce their books and vouchers, and restore the said statement to the same condition as when checked in August, 1891, with the books of the plaintiff; especially wheu it was clearly apparent from the evidence that the few changes in the items of the said statement were made by the expert employed by the defendants to facilitate the arrival at a just balance of the account between the parlies, and made by the said expert under a misunderstanding of his duties.”</p> <p>30. Because the presiding judge erred in finding that any amount whatsoever was due by defendants to plaintiff.</p>

Before Witherspoon, J., Sumter, May, 1892. Action by J. Ryttenberg & Sons against Charles R. Keels and others.

Before Wallace, J., Sumter, March, 1892. Action by Thomas E. Richardson against Robert M. Wallace, agent of the shareholders of the Sumter National Bank. The second defence of the answer was as follows: 2.

<p>1. Action- — Agreed Statement — Binding Force. — In action for recovery of land, the scope of the action was enlarged at the trial by an agreed statement of facts signed and verified by counsel, the parties to the record not objecting. Held, that the statement not having been agreed to by the parties themselves, could not be considered, so far as it enlarged the scope of the action as made by the pleadings.</p> <p>2. Homestead — Mortgage—Sheriff’s Sale — Rents.—Levy was made under execution on a tract of land of 325 acres, on which rested two older mortgages. No claim for homestead was made, and the land was sold by the sheriff under this execution, the debtor not objecting. The purchaser paid his bid and received title, took possession and bought the two mortgages as a protection to his title, and the former owner rented the land from him. Afterwards, this land being levied upon under a junior judgment, this debtor claimed homestead, and 125 acres was assigned to him as such homestead, who then brought action against the purchaser to recover this 125 acres. Held, that the sheriff’s sale was not void, nor is the purchaser liable for rents and profits during all the time of his possession.</p> <p>3. Sheriff’s Sale — Mortgages.—A purchaser at sheriff’s sale of land covered by the lien of senior mortgages, takes'title subject to the mortgages, which must be paid by the purchaser in order to disencumber his title.</p> <p>4. Homestead — Mortgages—Sheriff’s Sale. — A homestead is not an estate, but only an exemption, and the same law which directs a sheriff to lay off a homestead in lands levied, also declares that no homestead right exists as against a mortgage. Therefore, where tlie sheriff levies on land in which a homestead has never been located, and which cannot be located because of mortgage liens, and is worth more than $1,000, and no homestead is demanded, the sheriff commits no trespass, the sale is not void and the purchaser is not liable for rents and profits of all this land for all the time of his possession.</p> <p>5. Ibid. — Ibid.—Ibid.—Oases Criticised. — This case distinguished from former decisions of this court as to sale by sheriff of lands of a debtor worth less than $1,000, where the homestead had been ascertained by assignment, or by what was equivalent thereto.</p> <p>6. Ibid. — Ibid.—Ibid.—-Bents.—-The purchaser at the sheriff’s sale must yield to the debtor the homestead afterwards assigned to such debtor out of the land acquired at such sale, and also account for the rents and profits of such homestead from the date of its assignment; but if the remaining land is not ascertained in this action to be worth as much as the mortgage debt, the purchaser may enforce payment of these mortgages, now owned by him, out of the homestead tract.</p>

Before Wallace, J., Newberry, May, 1892. In this case, the Hon. James Aldrich, judge of the Second Judicial Circuit, sat in the place of Mr. Justice Pope, who had been of counsel. Action by Lambert J. Jones, as administrator of Benson M. Jones, deceased, against Lillie W. Jones and others, commenced December 29, 1880.

<p>1. Judgments — Lien—Revival.—Under the statute governing the lien of judgments obtained in 1880, a judgment had a lien for ten years, with the right to revive it at any lime within the ten years, or within three years thereafter, and if so revived, its former lien was continued for a further period of ten years, this renewed lien dating back to the day when the judgment was first entered, as between the parties and other judgment creditors.</p> <p>2. Ibid. — Ibid.—Ibid.—Purchaser.—But where a year intervened between the expiration of the first ten years and the revival of the judgment, and during that year a tract of land was bona fide conveyed by the judgment debtor for value, the purchaser took this land freed from the lien which was afterwards revived, and by its revival given force and effect as to other parties from the date of the former recovery.</p> <p>Mr. Chief Justice McIver and Mr. Justice Pope concurred in the result only.</p>

Before Wallace, J., Bichland, October, 1892. This was an action by W. H. Dial and M. A. Tozer, partners as the Dial Hardware Company, against J. C. C. Levy, as assignee of W. M. Maxwell and in his own right, commenced August 13, 1892. The opinion states the case.

Before Hudson, J., Greenville, April, 1892. This was an action for partition by the heirs at law of A. B. McGilvary, who died in 1863, against the devisees of Nancy McGilvary, who died in 1891. The Circuit decree was as follows: This cause came to trial before me upon exceptions to the master’s report.

<p>1. Certificate of Deposit — Parol Testimony. — A certificate acknowledging a deposit of money with “C. J. I., Manager,” promising repayment of the deposit with interest, and signed “C. J. I., Manager,” cannot, in action thereon against a bank of which C. J. I. was president, be shown by parol testimony to have been a deposit in such bank, there being no evidence that the president had any authority to receive deposits or had ever been designated as manager of the defendant bank, or had ever so signed himself.</p> <p>2. Ibid. — Ibid.—A certificate of deposit promising to repay the amount stated with interest on a day certain, is more like a promissory note than a receipt, and cannot be varied by parol testimony, as receipts may.</p> <p>3. Ibid. — Bank President — Cases Criticised. — -This case distinguished from other cases in which there was fraud of mistake, or in which the depositor had an account in the bank and paid his money over to the cashier or teller, or could not read.</p> <p>4. Ibid. — Cause op Action — Evidence.—While the complaint did not set out the certificate of deposit as plaintiff’s cause of action, yet it was the cause of action reduced to writing, and only this writing could be received as evidence of the contract of deposit.</p> <p>5. Production op Written Papers — Evidence.—If a written paper is in court, it may be called for without notice being previously given to produce ; and a witness may be asked as to payments of interest to her on a certificate of deposit not in suit, in contradiction of plaintiff’s testimony, that the defendant bank had never paid interest on certificates of deposit.</p> <p>6. Deposits — President op Bank. — -The defence being that plaintiff’s money when deposited went to the credit of the president of the bank, not as president, but as manager of another business, the judge, in charging the jury that the bank would be liable if the money went into the bank, should have added the words, “as the money of the plaintiff.”</p> <p>Y. Banks — Officers—Fraud.—This charge properly declared the law as to the liability of a bank for the fraud, &c., of its agents.</p> <p>8. An Exception based upon a misconception of the charge to the jury overruled.</p> <p>9. Chargin'® Juries. — Facts—The judge properly refused to charge, that if the jury believed that plaintiff’s money was placed by the president' of the defendant bank to his credit as manager of another business, it could not be said to have reached the bank as the money of the plaintiff, for such a charge would have trenched upon the province of the jury, and, also, have confined the issues within too narrow limits.</p> <p>10. Written Instruments. — The trial judge must construe written instruments ; and as there was nothing in this certificate of deposit to indicate any connection of the defendant bank therewith, the judge should have so charged as requested.</p> <p>11. Charge on Facts. — The trial judge cannot charge the jury as to the force and effect of the testimony.</p> <p>12. Bank Presidents — Deposits—Onus Probandi. — It would seem that the president of a bank has not, ordinarily, the right to receive deposits into his bank. And where a deposit was paid to the president, and the depositor sues the bank for its recovery, it is incumbent upon the plaintiff to show that the president had authority, express or implied, to receive the deposit, or that it was actually received by the bank as plaintiff's money.</p> <p>13. New Trial — Appeal.—The refusal of a motion for new trial on the facts is not reviewable on appeal.</p>

Before Wallace, J., Bichland, October, 1892. Action by Catharine Jumper against Commercial Bank of Columbia, S. O. For a proper understanding of this case, see Bickley v. Commercial Bank, next case ante. Yerdict was for plaintiff, and defendant appealed. In this case, as in Bickley’s case, Mr. Ernest Gary sat in the place of Mr. Justice McGowan.

This was an original application to this court by Edwin W. Robertson, bondholder of old debt and taxpayer, for a writ of injunction to restrain B. R. Tillman, governor, and W. T. C. Bates, state treasurer, from issuing new bonds under their contract with the purchasers. ' •

<p>1. Mandamus — Use op State’s Name. — Whether a relator, praying a writ of mandamus to compel a town council to issue a liquor license, under the law, can use the name of the State without the consent of the Attorney General, raised, but not determined.</p> <p>2. Ibid. — Discretion—Estoppel.—Whether a town council had the right to refuse a liquor license not considered; but the town council having placed their refusal on record upon the ground that they had no power to grant the license prayed for, they would seem to be estopped from now raising as an additional ground that they had the discretionary right of refusal.</p> <p>3. Statutes — Journals—Evidence—Cases Reversed. — Where an original bill and an act duly ratified and approved show on their face that the bill originated in the House of Representatives, received three readings in both houses and the act was duly signed by the president of the Senate and the speaker of the House of Representatives, and approved and signed by the Governor, and deposited with the Secretary of State, the court cannot look to the. journals of the two houses to show that the bill did not originate in the lower house, did not receive three readings in both houses and was not duly ratified, the true rule being that such an act is sufficient evidence that it passed the General Assembly, and it is not competent to impeach such an act by the journals of the houses, or any other evidence, other than evidence of such prerequisites as the organization of the houses, the presence of a quorum and the record of votes upon the journals when so required by the Constitution. State v. Platt, 2 S. C., 150, and State v. Hagood, 13 Id., 46, overruled.</p> <p>4. Ibid. — Title.—Under an act entitled “An act to prohibit the manufacture and sale of intoxicating liquors as a beverage within this State, except as herein provided,” a provision declaring that no liquor licenses shall be granted after a date therein named, is sufficiently included in the title.</p> <p>5. Ibid. — Constitutional Law — Liquob Licenses. — Forbidding licenses to private parties to sell intoxicating liquors is within the power of the General Assembly over the regulation of the liquor traffic; and where a party asks for a mandamus to compel the granting of such a license where a statute has forbidden it, the mandamus will be refused, and thereupon other alleged unconstitutional provisions in the same statute cannot be considered.</p>

Before Hudson, J., Sumter, March, 1893. This was a prosecution of Wash Weldon and Henry Prescott for housebreaking and larceny, charged to have been committed on the 20th December, 1892. The opinion states the case.

Before Aldrich, J., Greenville, November, 1892. This was an action by Alice C. Ferguson, as administratrix of L. B. Cline, against Mary A. Harris, commenced October 20, 1891, to recover the amount of a note given May 26, 1886, and due at one day.

<p>1. Amendment — Appeal.—Is an order permitting an amendment to the answer at once appealable ?</p> <p>2. Ibid. — Assuming that an amendment of the answer changing substantially the defence was permitted at the trial, it would seem that it should be determined by the rule that governs amendments before trial, when plaintiff, as in this case, was granted a continuance because of the amendment.</p> <p>3. Ibid. — Estoppel—Continuance.—Where defendant in action for partition denied plaintiff’s title, and asserted title in defendant, there was no substantial change of the defence in an amendment to the answer which permitted a special plea of estoppel in support of the title alleged in the original answer. In such case the plaintiff was properly given time to meet the new allegations alleged.</p> <p>4. Ibid. — Acceptance.—An amendment to the answer having been allowed on payment of twenty dollars to plaintiff, the acceptance by plaintiff of this sum of money operated as a consent by plaintiff to the amendment so ordered.</p> <p>5. Appeal. — An order not appealed from not considered on appeal from another order in the same cause.</p>

<p>Before Aldrich, J., Greenville, December, 1892.</p> <p>Action by Greene, Ilea & Co. against J. A. Tally.</p>

Before Kebshaw, J., Anderson, October, 1891. Indictment against Jerry Crawford for receiving stolen goods, knowing them to have been stolen. The case was submitted without argument.

<p>Before Aldrich, J., Greenville, November, 1892.</p> <p>This was an action by Niles Nesbitt against H. P. Moore and W. C. Moore, partners as H. P. Moore & Co., commenced in a trial justice’s court on June 28, 1892. W. C. Moore testified that he was not a partner of H. P. Moore, and that “H. P. Moore & Co. advanced to Henry Todd, in the spring of the year 1891, supplies to the amount of $20.40, it having been agreed between Moore & Co. and Nesbitt that we might advance an amount additional to the fifteen dollars first advanced upon the written order of Nesbitt, and that the mortgage of Henry Todd to Nesbitt was to be security to the full amount thus advanced. We took additional papers on Todd to cover it, holding the Nesbitt mortgage as collateral.”</p>

Before Witherspoon, J., Orangeburg, September, 1891. . This was an action by Rhoda Watts against Jacob F. Witt and Cornelia J. Witt for the recovery of a tract of land.

<p>1. Case Criticised. — James v. Smith, 2 S. 0., 183, recognized and followed.</p> <p>2. Court op Common Pleas — Rule—-Jurisdiction.—The duty imposed by statute upon a sheriff of putting a purchaser at tax sale into possession of the land purchased cannot be enforced by rule from the Court of Common Pleas, as that court has no jurisdiction to enforce by rule any duty imposed upon the sheriff by statute in a matter of which that court has not acquired jurisdiction in some recognized mode of proceeding, or by express statutory provision.</p> <p>3. Case Criticised. — This case distinguished from Scott ads. Carr, Riley, 193.</p> <p>4. The Question op Jurisdiction may be raised at any time, and it is properly raised by the court itself of its own motion.</p> <p>5. Change op Proceeding. — There was no legal error on the part of the Circuit Judge in refusing to convert a proceeding by rule into one for mandamus.</p> <p>6. Tax Sales — Purchaser—Comptroller General. — The statute which put the sheriffs of the State under the direction of the comptroller general in making tax levies and sales and paying over the proceeds, and which invested the comptroller general with the rights of plaintiffs in execution, does not confer any power upon that officer as to putting purchasers at tax sales into possession, and certainly confers no rights upon a purchaser at a tax sale.</p> <p>1. Statutes — Expressio Unius, &c. — The statutory provision, that a mortgagor may apply by rule to have satisfaction entered upon the record of his mortgage, does not authorize rules in other matters not enumerated.</p>

<p>1. Statement op Notes not an Open Account. — In action on a bond to recover the amount due by notes and drafts secured by such bond, a statement of the drafts and notes upon which plaintiffs base their claim is not an open account, and, therefore, not irrelevant under the pleadings nor inadmissible in evidence.</p> <p>2. Corporation — Agents—Written Paper. — Where a corporation by formal written action appointed, a business agent, it was for the court to define his relations to the corporation; and parol testimony upon this matter was incompetent. The corporation is bound by all acts of the agent within the scope of his agency, and no private limitations upon his powers could affect the rights of those who dealt with him in ignorance of such limitations.</p> <p>3. Nonsuit. — There being some testimony to support the claim of plaintiffs under their complaint, a nonsuit was properly refused.</p> <p>4. Corporation — Agent—Instructing Jury. — Where the undisputed testimony shows that a mercantile coi-poration appointed a business agent in writing, and a bond was given by the stockholders individually, which bond recited the purchase of goods from plaintiffs, and provided for their payment and the payment of subsequent purchases, and such agent acted during the time that notes for these purchases were executed and delivered to plaintiffs by this agent for the corporation, the trial judge did not err in charging the jury that this agent had authority to sign these notes, even though the resolution appointing him declared that he was to act under the supervision of the board of directors.</p> <p>5. Assignment por Creditors — Acceptance—Attorney.—The attendance of a creditor at a meeting of creditors of a debtor who has made a general assignment, and his participation in the selection of an agent to act with the assignee, and a letter by the attorney of such creditor to such agent, directing him as to the sale of the assigned goods, and bidding him to confer, if in doubt, with the writer, was not an acceptance of the terms of the assignment, and the trial judge properly so instructed the jury. If the attorney had accepted, it would not have bound the client.</p>

<p>Before Aldrich, J., York, April, 1892.</p> <p>Action by J. Rufus Bratton against M. B. Lowry and John F. Lowry, commenced September 29, 1890.</p>

<p>1. Leoal Defence — Jury Trial. — An action was instituted for the specific performance of an agreement for the purchase of land, or else for its sale in payment of the purchase money; and one, who was not a party to the agreement, was made a party to the action under the allegation, that he was in possession, claiming an interest. This defendant answered, asserting title in himself (1) by a parol partition and possession thereunder between himself and a cotenant under whom plaintiffs claim, and (2) by adverse possession. Held, that the issue raised by this answer should have been tried by a jury on the law side of the court.</p> <p>2. Intermediate Order. — -Exception—Appeal.—It seems that the failure to except to an order refusing- a trial by jury, at the time the order was rendered, does not preclude the party from raising the question by exceptions and appeal after final judgment; but the better practice is to except at the time the intermediate order is made.</p> <p>3. Leoal Defence — Jury Trial — Estoppel.—The fact that this defendant was a party to an action of foreclosure of mortgage under which the plaintiffs purchased the title of her whom this defendant alleges to have been his cotenant before the parol partition was made, does not affect his right to a jury trial of the legal issues raised by his answer.</p>

Original application to this court by John J. Hunter, a citizen and taxpayer of Yorkville, against Walter B. Moore, intendant, and the wardens of the town of Yorkville, praying a writ of prohibition to prevent the town council of Yorkville from issuing $16,000 of municipal bonds, to provide a water supply for the town of Yorkville. Buie to show cause was issued and return made.

This was a proceeding originally instituted in this court by John Wilson against the city council of Florence to enjoin the defendant from the issue of municipal bonds.

Before Izlar, J., Anderson, February, 1893. This was an appeal from an order directing the trial of J. Mims Sullivan to be had in Anderson County. The State moved to dismiss the appeal, upon which motion the following order was passed April 24, 1893, Per Curiam.

<p>1. Deposition — Seal of Officer. — The statute which requires the deposition of a witness taken by a notary public to “be by such officer sealed up” and forwarded to the court of trial, “and remain under his seal until opened in court” (18 Stat., 313), is not complied with by the mere sealing up of the deposition in au envelope, but the seal of the notary, or his name across the flap of the envelope, must appear, as an authentication of the package. Not so appearing in this case, the deposition was improperly received in evidence.</p>

<p>1. Motion after Remittitur Sent. — In a case involving human life, this court, after judgment of death on Circuit, approved on appeal and remittitur sent down, entertained a motion for leave to apply to the Circuit Court for a new trial on the ground of after discovered evidence.</p> <p>2. New Trial on New Evidence. — But the showing by affidavits not having made out a prima facie case for the granting of such new trial on Circuit, but only offered cumulative parol testimony as to matters brought out at the trial, and not material, the motion was refused. Mr. Chief Justice MoIver dissenting.</p>

<p>1. Motion for New Trial — Jurisdiction—Appeal.—Motions for new trial on the ground of after-discovered evidence must be made in the first instance in the Circuit Court, but if after the case has been brought by appeal to the Supreme Court, and not yet heard, this court must be applied to to suspend the appeal, with leave to make the motion on Circuit.</p> <p>2. Ibid. — Ibid.—Remittitur.—But after a defendant has been sentenced to death, his sentence affirmed on appeal and remittitur sent down, with instructions to assign a new day for the execution of the sentence, the Circuit Court cannot, without previous leave of the Supreme Court, entertain such a motion.</p>

Before Kershaw, J., Orangeburg, January, 1892. After judgment for the defendant in the case of Sarah A. Moorer el al. against J. H. Andrews at al., the defendant obtained an order from Judge Aldrich, after notice, referring it to the master to ascertain and report the damages sustained by defendants under an injunction bond given by plaintiffs when they obtained an interlocutory injunction on November 29, 1884, which was vacated on December 15, 1884.

<p>1. Case Criticised — Estoppel.—-The case of Lites v. Addison, 27 S. C., 226, . .recognized and followed; and where one purchased a due bill on the assurance from the maker that it would be soon paid, the maker is estopped from assailing it for want of consideration when afterwards sued by this purchaser.</p> <p>2. Partnership — Married Woman — -Plea.—A debtor cannot resist the action of a partnership, his creditor, on allegation and proof that one of the firm is a married woman. The plea of such disability is a personal privilege of the married woman.</p>

Before Norton, J., York, October, 1892. The complaint was as follows: The plaintiffs, complaining of the defendant herein, show to the court: 1st. That the plaintiffs, William A. Jackins, Allen B. Crosby and W. R. Lipscomb, are partners, doing business under the firm name of Jackins, Crosby & Company. 2d. That on the 22d day of October, 1889, the plaintiffs, partners as aforesaid, entered into an agreement and contract in writing with the defendant, P. P. Dickinson, to…

<p>1. Case Criticised — Election oe Cause oe Action. — The ruling in Jackins v. Dickinson, ante, 436, applied to a similar complaint in this case; and . there not being two causes of action, there was no error in refusing to require the plaintiff to elect between the alleged two:</p> <p>2. Letter — Best Evidence. — -Testimony as to declarations by an agent of defendant of admissions contained in a letter from defendant to this agent, was improperly received in evidence, there being no testimony to show that the letter was lost.</p> <p>3. Declarations of Agent.- — In action on a railroad construction contract, whereby defendant was to pay plaintiff, a sub-contractor, out of moneys received from A for construction, defendant's agent, in managing and carrying on the business and paying for the work done, was not shown to be an agent of defendant in collecting moneys from A, and, therefore, his declarations of what defendant said to him about receiving money from A was not admissible in evidence against defendant.</p> <p>4. Charging Jdries — Weight of Testimony. — In commenting upon Green-leaf's statement in his work on Evidence (cited by counsel), that verbal admissions must be received with caution, the trial judge did not err in instructing the jury that they were not bound by Mr. Greenleaf’s argument, but must determine for themselves the weight to be given to the evidence of alleged admissions.</p>

Before Wallace, J., York, April, 1893. The case was brought to this court by plaintiff on the following exceptions: I. Because his honor erred in holding that'the bill cannot be sustained in its present shape; and erred in dismissing the original and supplemental complaints, and vacating the order of injunction. II.

<p>1. Reference — -Acquiescence.—In an action for the specific performance of an agreement for the payment of money, the answer alleged fraud in the transaction and demanded an accounting, and the Circuit Judge, over defendant’s objection, referred the case to the master to hear and determine the issues of law and of fact, and make his report thereon, with leave to all parties to except. Held, that the defendants having failed to except to this order until after final judgment, having attended the references and participated in the hearings and trials, this court will not now declare error in the original order of reference.</p> <p>2. Ibid. — A Circuit Judge cannot set aside an order of reference made by his predecessor.</p> <p>3. Vendor and Vendee — Prior Frauds.- — Where plaintiffs purchased the stock of goods of defendant's husband, and then gave to him a half interest therein for his services, and afterwards sold their remaining half interest to defendant for value, defendant cannot be heard to resist payment for her purchase by showing fraud in the purchase by plaintiffs from her husband.</p> <p>4. Married Women — Purchase.-—-Parties owning a half interest in a stock of merchandise may lawfully sell such half interest to the wife of the owner of tlie other half interest; and she will be liable for the price of her purchase.</p>

Before Fraser, J., Aiken, April, 1893. This was an action by Joseph B. Murray against the Aiken Mining and Porcelain Manufacturing Company, the Fidelity and Casualty Company aud the Bank of New York Banking Association. See 37 S. C., 468, for the former appeal.

Before Izlar, J., Abbeville, January, 1893. Action by Leopold F. Loeb and others, partners as Loeb Bros. & Co., against W. D. Mann. J. S. Loeb, a witness for plaintiffs, was permitted to state that four packages of plaintiffs’ goods were found in defendant’s possession, and were recognized by him as such. Defendant objected to this testimony, insisting that the books of original entry, showing the consignment, were the best evidence, but the objection was overruled.

<p>Before Witherspoon, J., Aiken, April, 1892.</p> <p>This was an action by Elizabeth Edwards and her husband against the O., C. & A. R. R. Company, commenced February 20, 1891. Verdict was for defendant, and plaintiff appealed.</p> <p>cited 28 S. C., 163; 34 Id., 66; 37 Id., 343; 34 A. & E. R. R. Cas., 143; 71 Mo., 237; 131 Mass., 491; 11 Tenn., 382; 16 S. E. Rep., 181; Lewis Em. Dom., § 566; 13 S. C., 99.</p> <p>cited some of the cases stated in the opinion of this-court, and, also, the following: 33 Kan., 374; 20 A. & E. R. R. Cas., 117, 103; Dill. Mun. Corp., § 798, and notes; Ang. Waterc., § 108; Add. Torts, 105; Hill. Torts, 584; 64 Ind., 167; 67 Id., 201; 31 Am. Rep., 114; 3 Id., 50; 10 Allen, 106; 87 Am. Dec., 625; 25 Wisc., 223; 29 Id., 511; Cooley Torts, 574.</p>

Before Witherspoon, J., Chesterfield, September, 1892. This was a summons issued by W. L. T. Prince, as administrator, served April 8, 1892, on Mary A. Dickson, to renew judgment obtained by the plaintiff against the defendant on September 14, 1866. The case turned on the proper service of a summons, upon which an order of renewal was passed on September 10, 1875.

Before Hudson, J., Hampton, October, 1892. These were two actions heard together — W/' S. Tiliinghast against the Boston and Port Boyal Lumber Company and the S. C. Forsaith Machine Company, and James W. Moore against the S. C. Forsaith Machine Company. For former report, see 38 S. C., 319. The letter referred to in the opinion was as follows: Manchester, N. H., 5-5, 7 92. W. S. Tülinghast, JEsg., Hampton G. H, 8.

<p>Before Fraser and Aldrich, JJ., Greenville, August and December, 1892.</p> <p>This was au action by Armstrong, Cator & Co. and others against Hurst, Purnell & Co. and others. The opinion states the case.</p>

<p>1. Railroads — Fellow-Servants.—It is an established rule that a railroad company is not liable to one of their agents for an injury arising from the negligence of another competent agent.</p> <p>2. Ibid. — Ibid.—-The conductor of a preceding freight train and the assistant fireman of a following freight train are fellow-servants, to the extent that the fireman on train No. 2 cannot recover from the master for damages received by him in jumping from his engine to avoid a collision with cars on the track, detached from train No. 1, of whose presence proper signals by torpedoes or otherwise had not been given. Whether persons in the same employment are fellow-servants does not depend upon the respective rank, grade, or authority of the servants.</p> <p>3. Ibid. — Safe Track. — It is the duty of the railroad company as master to furnish a safe track and competent servants, but this duty is not violated where the track, safe in itself, is rendered dangerous for the time by the omission of one of its servants to give the necessary notice of the obstruction thereon to a fellow-servant on an approaching train.</p>

<p>1. Contributory Negligence — Non-suit.—In action to recover damages from a railroad company for injuries received by plaintiff in being thrown from his buggy at the time of the rapid passage of defendant’s train, the question, whether the injury was not caused by plaintiff’s contributory negligence in his own handling of the mule that drew the buggy, is a question of fact, which cannot be determined on motion for non-suit.</p> <p>2. Railroads — Injuries at Crossings — Collision.—The statute of this State gives a right of action for injuries to a person “by collision with the engine or cars of a railroad corporation at a crossing,” and makes the company liable only for damages “caused by the collision,” where the prescribed statutoiy signals were not given. Held, that a railr.oad company was not liable under this statute, where the signals were not given, but the injury resulted from the person, who was not then intending immediately to cross, being thrown from his buggy while endeavoring to drive his frightened animal away from the train.</p> <p>3. Ibid. — Ibid.—Nonsuit.—But as plaintiff is entitled to sue at common law where a less degree of negligence may defeat a recovery than is required under this statute, this court will not direct a non-suit¡ but only order a new trial.</p>

<p>1. Will Signed by Direction — Witnesses.—A person who signs the name of testatrix to her will by her express direction, is a competent witness to its execution, and may sign his name thereto as one of the three subscribing witnesses.</p> <p>2. Ibid. — Express Directions. — Under the statute of this State regulating the execution of wills, it must be signed by the devisor, “or by some other person in his presence, and by his express directions.” Held, that if the whole conversation between the testatrix and the person who signed her name to the will (as it occurred at the time the instructions as to the will were given, and a few hours afterwards at the time of execution) amounted to an express declaration, it should be construed as an express direction by testatrix to such person to sign her name to the paper.</p> <p>3. Ibid. — Signature.—Where S. S. K., the person who prepared the will, signed testatrix’s name in her absence, and then in her presence and in the presence of the witnesses added to testatrix’s name the words, “by S. S. K., by request,” the will was sufficiently signed for testatrix, and was valid.</p>

Before Izlar, J., Newberry, November, 1892; Action by James N. Martin against Texan na Súber. The judge charged the jury as follows: You are to deal with, and are the sole judges of, the facts. I cannot even intimate an opinion as to them. I can only give you the law applicable to the case, as I understand it, and leave you to find the facts and apply the law to the facts as you may find them from the evidence. In this case the execution of the note sued on is admitted.

Before Izlar, J., Edgefield, March, 1892. The appeal in this case was from the following decretal order: This is a motion, upon due notice by the defendants, to set aside a sale of certain real estate made by the master, under an order passed in the same cause on the 11th day of March, 1891, upon the following grounds: 1. That the order obtained at the March term, 1891, was passed without notice to the plaintiffs or defendants, or any of them. 2.

April Term, 1893. The appellants in this case gave their notice of appeal on December 23, 1892, and served their exceptions on January 21, 1893. Meantime the following agreement was signed by all the attorneys in the cause: “Charleston, S. 0., January 9, 1893.

April Term, 1893. The several motions made in this case are stated in the order of this court. cited Sullivan v. Thomas, 3 S. C., 548; Pregnall v. Miller, 26 S. C., 612; Gardner v. Mays, Ibid., 613; Dial v. Dial, 33 S. C., 607; Lombard v. Brown, Ibid., 598; Donaghue v. Enterprise R. R. Co., Ibid., 608; Bomar v. Means, 35 S. C., 591; Chisolm v. Providence Company, Ibid., 599.

<p>April Term, 1893. This was a motion by defendant to recall the remittitur and reinstate the appeal. On behalf of appellant, it was shown that counsel for appellant left the further preparation of the appeal record to the defendant himself (who was an attorney at law), and that the delay had resulted from defendant’s sickness. But affidavits contra fully fixed the date of this sickness as subsequent to defendant’s return from Florida after the middle of April.</p>

April Term, 1893. Plaintiff sued defendants, man and wife, for trespass in entering upon land of Mrs. Wendler, which had been leased for the year to plaintiff, and in plowing up this land after it had been planted by plaintiff. It appeared from the testimony, that Wendler plowed up the land, while his wife walked behind him with a gun in her hand.