Volume 50 — South Carolina Reports

Before WATTS, J., Darlington, May, 1896. Petition of A. A. Howlett v. J. S. Garner, In re A. A. Howlett v. The Central Carolina Rand and Improvement Company. The following is the Circuit decree: The preliminary facts, so far as necessary to state in this proceeding, are as follows: On March 16th, 1891, a judgment of foreclosure and sale in the usual form was granted in the action.

Before Aldrich, J., Darlington, December, 1896. Action in foreclosure by S. D. Harrell, administrator, with the will annexed, of .1. M. Harrell, against J. N. Parrott. The following is so much of the Circuit decree as is necessary to understand the issues: On December 1st, 1880, when the contract herein evidenced by the note and mortgage was made, the act of 1877 (16 Stat., 325,) was in force.

Before Watts, J., Fairfield, September, 1896. Action by John F. Paul against the Southern Railway Company in magistrate court. Judgment for plaintiff. Defendant appeals. New trial ordered. Defendant appeals. cites: Code, subd. 16, secs. 88 and 407; 43 S. C., 173; 25 S. C., 416; 29 S. C., 31; 28 S. C., 122; 23 S. C., 166 and 120. contra, cite: 28 S. C., 119; 43 S. C., 173; 27 S. C., 156.

Before Watts, J., York, November, 1896. Action by T. C. Beckham, J. F. Doby, and F. W. Culp against the Southern Railway Company, for damages. The following is so much of the charge as is necessary to understand the questions: Now, gentlemen, they further entered into an agreement that no more than fifty-six people should be carried in each passenger coach, and that the cars were to be run by the train hands of the defendant company — that is, by the railroad.

Before Townsend, J., Spartanburg, February, 1896. 'Action by N. P. McAbee against the administrator and heirs at law of James F. Harrison on the following complaint: I. That the plaintiff now is, and was at and during the times hereinafter mentioned, the owner of the following tract of land, to wit: eighty acres, more or less, situate and being in the county and State aforesaid, bounded by lands of S. N. Nesbitt, Wm. McAbee, Frank Floyd, estate of Jas.

<p>Before Gary, J., Union, February, 1896.</p> <p>Action by Grant F. Fong against the Southern Railway Company. Judgment for plaintiff. Defendant appeals.</p> <p>cite: Railroad killing stock, burden of proof: 20 S. C., 254. Contributory negligence: 20 Mo., 277; 22 Wis., 245; 57 Ind., 86; 17 Ind., 102; 58 la., 195; 42 S. C., 468.</p> <p>(oral argument).</p>

Before Watts, J., Chesterfield, January, 1897. Action by Caroline Smith against George W. Smith, on the following complaint: I. That on the 27th day of December, A. D. 1895, in the county and State aforesaid, she was duly and legally married to the defendant, George W. Smith. II. That at the time of such marriage, and at times hereinafter mentioned, both this plaintiff and the defendant were, and are now, domiciled in and actual inhabitants of Chesterfield County, S. C. III.

Before Earle, J., Anderson, February, 1896. Action in foreclosure by Alfred T. Newell against William A. Neal, J. Belton Watson, J. S. Fowler, Martha E. Watson, S. J. Watson, and J. Matt Cooley. The Circuit decree is as follows: This was an action on the part of the plaintiff to foreclose a mortgage which he alleges has been executed and delivered by the defendant, Wm.

Before Townsend, J., Barnwell, February, 1897. The following is the complaint in the first stated action: “W. C. Hale, president; H. P. Williams, secretary. The Southern Mutual Building and Toan Association. Home office, Atlanta, Ga. Atlanta, Ga., August 7, 1896. Statement. Withdrawal of stock held by W. W. Moore, Barn-well, S. C. Cert. 6293; series 35; shares 10. . Amount of dues paid to date, fifty months, $300.

Before Benet, J., Rexington, September, 1894. Petition by Mary M. Gable for proof of will of John V. Gable in solemn form, at instance of Raura A. Rauch, Mary Harman, and Thomas B. Gable. From a decree in probate court in favor of the will, contestants appeal. From judgment of Circuit Court in favor of will, contestants appeal on following exceptions: 1.

<p>Before Townsend, J., Pickens, July, 1897.</p> <p>Action by W. F. Thackston & Co. against Margaret E. Kennemore, in magistrate court. Judgment for plaintiffs. Defendant appeals. Complaint dismissed. Plaintiffs appeal.</p> <p>cites: Agent has no authority to employ an agent: 50 Ala., 347; 9 Heisk., 147; 56 la., 567; 4 DeS. Fq., 19; 3 Strob., 642; 14 S- E. R., 488. Circuit Judge could not dismiss complaint: Code, 368: 19 S. C.. 126.</p> <p>cites: Agent cannot delegate his aiithority: 1 McM., 453; 11 How., 209; 50 Atner. St. R., 110; 91 U. S., 308. Agent to sell cannot bind principal to pay commissions to another: 42 Am. Rep., 385; 11 How., 209; 21 N. Y. Supp., 952. Agent can only look to employer for compensation: 2 Johns Ch., 327; 8 Ohio St., 276; 25 S. W. R., 465; 3 Story, 646. Circtiit fudge could dismiss complaint: Code, 368; 35 S. C., 569.</p>

Before Watts, J., Florence, December, 1895. Proceeding by W. J. Bockhart against D. B. Smith to foreclose an agricultural lien for breach of conditions. Clerk issued warrant, and sheriff seized the crops. The defendant moved to vacate the attachment. Motion refused. He appeals. cite: 3 S. C., 46; Rev. Stat., 2514; 13 S. E. R., 132; 42 S. C., 348; 24 S. C., 196; 38 S. C., 484. made no argument.

Before Benet, J., Clarendon, October, 1896. Action by Prank M. Benbow, trustee, and Ann R. Ben-bow against David Levi, for possession of a tract of land. Judgment of nonsuit. Plaintiffs appeal. cites: Wife's right of action did not accrue until death of husband, trustee: 82 S. C., 72. Defendant stands in same position as trustee: Spear’s Bq., 303.

<p>Before Buchanan, J., Richland, October, 1896.</p> <p>Action by D. Hipp & Co. against Southern Railway Company, for value of three bales of cotton lost by it in transportation. Judgment for plaintiffs. Defendant appeals on the following exceptions:</p> <p>1. Because the presiding Judge erred in overruling defendant’s objection to the question propounded to the witness, D. Hipp: “For what purpose was it (the cotton) shipped to Columbia?”</p> <p>2. Because the presiding Judge erred in admitting the evidence of the witness, Wise, over the objection of defendant, as to what was the highest price of cotton from the 1st of January to the time of trial; when it is submitted that the plaintiff should have been restricted to the proof of the price of cotton when it should have been delivered upon demand, or when plaintiff was notified of its arrival and should have received it.</p> <p>3. Because the presiding Judge erred in admitting, over the objection of defendant, the testimony of the witness, Wise, as to whether Hipp & Co. stored other cotton with R. J. McCarley & Co. besides the 165 bales; and as to whether Hipp & Co. had other cotton in storage in McCarley & Co.’s warehouse at the time of the receipt of the 162 bales of cotton.</p> <p>4. Because the presiding Judge erred in admitting, over the objection of defendant, the testimony of the witness, Wise, as to what the witness did with the 162 bales of cotton received by him.</p> <p>5. Because the presiding Judge erred in admitting, over the defendant’s objection, the testimony of the witness, McCants, as to what was the price, average grade, of the 165 bales at the time the 162 bales were delivered to R. J. McCarley & Co.; also in permitting the same witness to testify as to what the average weight of a bale of cotton was.</p> <p>6. Because the presiding Judge erred in admitting, over the objection of defendánt, the testimony of the witness, Hipp, as to what was the highest market price between the times when the cotton (162 bales) .was delivered and the present time.</p> <p>7. Because the presiding Judge erred in overruling the defendant’s motion for a nonsuit, which was based upon the following grounds: (1) Because the evidence showed that a warehouse receipt for the whole of the cotton was made out by McCarley & Co., warehousemen, by the instructions or directions of D. Hipp & Co., and delivered to the Roan and Exchange Bank, who were at the time of the alleged loss and are now in possession of and hold the said warehouse receipt; that, under'the law, such warehouse receipt is made negotiable paper and transferable, and carries title to the property represented therein; consequently, the title to the 165 bales of cotton, supposed to be stored in said warehouse, is in the Roan and Exchange Bank, and plaintiff has no right or title thereto. (2) Because the plaintiff, upon receipt of the bill of lading for the 165 bales of cotton from the defendant company, indorsed the same in blank and delivered it to the Roan and Exchange Bank for value, which said bank, or some other person, is in possession of said bill of lading, and the plaintiff is not in such possession; that, therefore, the title to'said bill of lading and to the cotton represented therein is in the said Roan and Exchange Bank, or in the legal owner and holder of said bill of lading, and not in the plaintiff. The plaintiff, therefore, has shown no right to recover. (3) That the evidence disclosed that the cotton arrived at its point of destination, and the plaintiff paid the freight thereon and became aware of its arrival, but failed or refused to accept the same from the defendant company, who thereafter retained and held the same until such time as it should be called for by the person entitled to receive same; that the liability of the defendant, therefore, shifted from that of common carrier to that of warehouseman, and that as there is no negligence alleged in the complaint, and none shown in the evidence, the defendant is hot liable as common carrier. (4) That by the clause in the contract, “All articles of freight on arrival at place of destination are at the risk and expense of the owner” — such stipulation being valid— on arrival of the goods in Columbia, the same were held and retained by the railroad company at the risk and expense of the owner; and that as no negligence was shown in the retention and holding of said goods by the evidence, said clause became operative, and the plaintiff, in the absence of any proof of negligence, cannot recover.</p> <p>8. Because the presiding Judge erred in refusing to direct a verdict in favor of defendant at the close of all the evidence for defendant; because it is submitted that the facts in evidence being undisputed, it showed that the liability of the defendant, if any, was that of a warehouseman, in which capacity it had not been sued, the action having been brought against it as a common carrier.</p> <p>9. Because the presiding Judge erred in charging the jury, as to the law of common carrier, that “a delivery means actual delivery, as ordinarily used, and a common carrier’s liability terminates when the goods have been delivered to the place of destination and are placed in a properly constructed warehouse, subject to the demand of the consignee.”</p> <p>10. Because the presiding Judge erred, as matter of law, in charging the jury that, before the liability of warehouseman can exist, or a person assume the character of a warehouseman, there must be shown, to wit: There must be a warehouse, “there must be a delivery to that warehouse, and the termination of the common carrier must have ended;” whereas, it is submitted that the liability of a common carrier and that of a warehouseman may be changed, although there may actually exist no warehouse, or delivery to any warehouse, provided the goods are retained and kept by the railroad company or common carrier at a place and in a manner sanctioned by its usage and practice, and known to and acquiesced in by the shipper and the public.</p> <p>11. Because the presiding Judge erred in refusing to charge defendant’s requests numbers 1 and 2, which were as follows: (1) That if they believe from the testimony that upon the arrival of the cotton at Columbia, on December 23, 1895, R. J. McCarley & Co. were informed of such arrival, and were requested to take away and receive the same, and failed and neglected to receive it, then the liability of the defendant changed from that of a common carrier to that of a warehouseman, and there being no allegation and proof of a lack of ordinary care after such time, the plaintiff cannot recover. (2) That if they believe from the testimony that upon the arrival of the cotton at Columbia, on December 23, 1895, R. J. McCarley & Co. were informed of such arrival, and were requested to receive and take away the same, and they would not do so, but allowed it to remain in the yard of defendant until January 17, 1896, then, if they believe that such time was more than a reasonable time to remove the same, they must find for defendant, as the liability of defendant was that of a warehouseman, and as it was not sued in that capacity, there can be no recovery against it.</p> <p>cites: Meas^lre of damages for the cotton: Rev. Stat., 1655; 7 Rich., 190; 26 S. C., 269; 5 Rich., 462. Plaintiffs could not maintain suit because title not in them: Rev. Stat., 1441. Termination of liability as carrier: 147 111., 550; 43 Ind., 423; 11 S. C., 158; 28 R. R. A., 80. Judge should have directed a verdict: Code, 287; 42 S. C., 30. Jury must Jind fact admitted or not controverted: 26 Mich., 89; 57 111., 589; 91 111., 142; 120 111., 169. Form of requests: 82 111., 322.</p> <p>cites: Exceptions too general: 44 S. C., 373; 42 S. C., 272; 43 S. C., 99;. 30 S. C., 167. Evidence wholly irrelevant not prejudicial: 40 S. C., 536. Judge may cu-re errors in admitting testimony in his charge: 37 S. C., 145; 9 S. E. R., 13 93; 11 S. E. R., 778; 6 S. E. R., 200; 36 S. C., 49. Measure of damages: 5 Rich., 462; 40 S. C., 99; 18 S. E. R., 366; 8 S. E. R., 341; 30 S. C., 172, 615. Nonsuü: 26 S. C., 264; 29 S. C., 100; 23 S. C., 188. Warehouse: 11 S. C., 158. When J^ldge may direct verdict: 13 S. C., 376; 42 S. C., 28; 16 S. C., 104,634; 38 S. C., 86; 26 S. C., 264. Exceptions bad form: 42 S. C., 122; 40 S. C., 533. Charge: 16 S. E. R., 845; 23 S. C., 210; 17 S. C., 71, 162; 16 S. C., 591, 632.</p>

Before Witherspoon, J., Greenville, December, 1896. Petition by Kenmore Shoe Co., In re Merchants’ Coffee Co. against J. A. Poster & Co. et al. The following is the Circuit decree: The facts of the case, as gathered from the report of the referee and the evidence in the case, are as follows: The defendant, W. S. Good, was, during the fall of the year 1895, engaged in the business of a merchant, doing business in his own name at Marietta, county and State aforesaid, and also…

Before Buchanan, J., Fairfield, February, 1897. Petition by Fred. T. Lockhart, solicitor general pro tem. of Richmond County, State of Georgia, praying that R. H. Jennings, clerk of court', be ordered to deliver to him, to be carried to State of Georgia, a certain mortgage, a part of a foreclosure judgment in the Circuit Court of Fairfield County, to be used by him as evidence in a criminal cause. Prayer refused.

Before Benet, J., Abbeville, October, 1895. Action for partition by J. P. Burnett against the devisees of John Gaulden. Judgment for defendants. Plaintiff appeals. cite: Presumptions: 48 S. C., 28. Charge: 47 S. C., 488. cite: Proof of title by rumor or opinion: 48 S. C.,472. Parol partition: 26 S. C., 251; 32 S. C., 160. Ouster of cotenant by prestimption: 2 Hill Ch., 511; 1 Hill Ch., 378; Cheves Eq., 60; 48 S. C., 282; 48 S. C., 472; 48 S. C., 28; 40 S. C., 168.

Before Witherspoon, J., Spartanburg, September, 1896. Action by T. J. Campbell against R. E. Linder, M. L. Linder and M. V. Smith, executor and executrix of Lee Linder, and Edna Littlejohn, to have deed declared mortgage. Judgment for plaintiff. Defendant, Edna Littlejohn, appeals. cite: Laches: 7 Rich. Eq., 260; 4 Rich. Eq., 366; 5 Rich. Eq., 370. Usury: 45 S. C., 611. cite: Once a mortgage always a mortgage: McM. Eq., 13.

<p>Before Townsend, J., Berkeley, October, 1896.</p> <p>Action b}>- William H. Brassell, Lawrence Brassell, R. Hamilton Locklier, and Mary J. Jarnigan against A. Gertrude Silva, James Brown, Otley Locklier, Theodore Locklier, John W. Locklier, and Hamilton Brown, for partition and accounting. From judgment of Circuit Court, decreeing that guardian account had been paid by presumption, plaintiffs appeal.</p> <p>cite: On first point: Code, 94; 9 S. C., 376; 16 S. C., 378; 22 S. C., 584; 29 S. C., 254; 33 S. C., 303.</p> <p>filed no printed argument.</p>

<p>Before Townsend, J., Barnwell, March, 1897.</p> <p>Action by G. K. Ryan against The Southern Building and Loan Association and J. Allen Tobin, receiver, for usurious interest collected in judgment. Judgment for plaintiff. Defendant, Tobin, appeals.</p> <p>cite: Rev. Stat., 1391.</p> <p>cite: On first point: 27 S. C., 110; 3 S. E. R., 52; 30 S. C., 391; 9 S. E. R., 344; 31 S. C., 382; 9 S. C., 958. Usury not res judicata: 17 S- C., 35; 19 S. C., 254; 21 S. E. R., 617; 46 N. E. R., 654; Rev. Stat., 1390, 1391; 20 S. E. R., 993; 27 S. C., 110; 17 S. E. R., 600; 26 S. E. R., 696; 18 S. E. R., 232.</p>

Before Buchanan, J., Edgefield, October, 1896. Action by Eldred S. Addison against R. C. Sujette, on the following complaint: For a first cause of action: 1. That the plaintiff is a citizen of the county of Edgefield, S. C., having resided in said county and State most of his life. That he is a man of family, having a wife and children. 2.

Before Witherspoon, J., Chester, May, 1897. Controversy, without action, by Sarah G-. Nicholson against John G. Cousar. The following is the Circuit decree: This a controversy without action,. submitted by consent of parties, under section 374 of the Code.

<p>Before Earle, J., Union, , 189 .</p> <p>Action by Paul H. Jeter against Southern Railway Company, in trial justice court, for damages for killing a mule. Judgment for plaintiff. Defendant appeals. Judgment reversed. Plaintiff appeals. The Circuit decree is as follows:</p> <p>This is an action to recover damages for negligently killing a mule belonging to the plaintiff by the engine and cars on railroad of the defendant. The trial justice gave judgment in favor of the plaintiff in the sum of $90 and costs, and from this judgment the defendant appeals to this Court. The exceptions, in various forms, all impute error to the trial justice in adjudging the railroad company liable under the facts and circumstances of this case. If the killing of the mule was the result of negligence on the part of the defendant’s agent, then judgment appealed from must be sustained; otherwise, it must be reversed. Now, if the mule was killed on the railroad track of the defendant, by its engine and cars, and nothing more appeared in proof, negligence would attach to the defendant as a presumption of law. Danner’s Case, 4 Rich., 330. And under this well recognized rule, the defendant would be liable, unless this presumption were rebutted or overthrown by the other facts and circumstances of the case. Murray v. Railroad Company, 10 Rich., 232. It is true, that in those sections of the country where the “stock law” is in force, the defend-^ ant would not be required to exercise that degree of carfe that it would be bound to observe in those sections of the country where cattle are allowed to run at large. Simkins v. Railroad Company, 20 S. C., 265;' Molair v. Railroad Company, 29 S. C., 160. But, at the same time, such care must always be observed as the occasion required; such a degree of care as under all the circumstances of the case a proper regard for the rights of other persons would have suggested. If, therefore, the mule had been killed on the railroad track by the defendant’s engine, the defendant would be liable, nothwishstanding the existence of the “stock law,” for even if the mule had been a trespasser on the defendant’s right of way, still this would not have relieved the defendant of liability, if the killing could have been avoided by the exercise of that degree of care which, under all the circumstances, was “due care.” But the uncontradicted testimony is that the engine passed the mule, and it was killed by colliding against the baggage car. This could not have been prevented by the engineer, even if he had exercised the greatest degree of care. He was bound to keep his engine under control, so as to prevent its running over or against the mule, but he could not prevent the mule from running against the baggage car. The movement of a mule is something which cannot generally be foreseen or provided against, and in this case it appears to conform to the legal definition of an accident; for such an accident the defendant is not liable for the damages which, unfortunately, resulted to the plaintiff. Zeigler v. Railroad Company, 5 S. C., 221. It is, therefore, ordered and adjudged, that the judgment of the trial justice be, and the same is hereby, reversed and the complaint dismissed.</p> <p>Prom this judgment defendant appeals on the following exceptions:</p> <p>1. In holding that the uncontradicted testimony is that the engine passed the mule, and that it was killed by colliding against the baggage car. 2. In holding that the alleged colliding of the mule against the baggage car could not have been prevented even if the greatest care had been exercised. 3. In holding that the killing of the mule was accidental. 4. In not holding that the mule was killed by the negligence of the defendant or defendant’s servants. 5. In reversing the judgment of the magistrate. 6. In not sustaining the judgment of the magistrate.</p> <p>cite: 35 S. C., 569; 20 S. C., 264; 42 Mo., 196.</p> <p>cite: 43 S. C., 3, 172; 44 S. C., 300; 23 S. C., 604; 35 S. C., 569; 45 S. C., 494; 42 S. C., 142.</p>

Before Gary, J., Union, , 189 . Action by J. G. Long, as sheriff of Union County, against E. P. McKissick, as administrator of I. G. McKissick, for the amount of a bid by I. G. McKissick for a tract of land.

Before ■ Witherspoon, J., Greenville, December, 1896. Action by the bondsmen of P. W. B. Freeman, as judge of probate for Greenville County, against John C. Bailey, probate judge of said county, and public guardian, The American Bank, and Daura G. Bailey, et a!., of whom The American Bank and Daura G. Bailey are appellants and John C. Bailey, judge of probate, respondent. cites: Note not nonnegotiable after maturity, but transferee takes it subject to inherent infirmities:…

<p>Beforo BeneT, J., Charleston, May, 1896.</p> <p>Action by Jacob Knobelock, trustee, against Germania Savings Bank, Jacob Knobelock, administrator of William Knobelock, sr., and as executor of John Knobelock,. and individually; Fredericka Ostendorf, administratrix of Susan Knobelock; Eliza G. Knobelock, executrix of Wm. Knobelock, jr., and Geo. A. Wagner, administrator of Jacob Small. So much of the charge as bears upon the main issues is as follows:</p> <p>We come now to the second question: Did the said bank at the time the said money was drawn out have notice that the said Jacob Small was drawing the same with the intent and for the purpose of misappropriating and converting the same to his own use? I may say here that if you find no, in answer to the first question, which would mean .that the plaintiff had failed to show or prove the fraudulent intent of Small, there would then be no need to consider the second question; but if your finding on the first question of fact should be yes, meaning thereby that the plaintiff had satisfied you by the greater weight of the testimony of Small’s fraudulent intent, then you will proceed to consider and decide the second question; as the burden of the first question was the intent and purpose, so the burden of the second question is the notice to the bank, notice of the fraudulent intent and purpose of Small. In other words, did the bank know or have reasonable ground for knowing that.Small intended and purposed to misappropriate and convert the money to his own use? If it did not actually or constructively know that such was his intent and purpose, was the act of Small committed under such circumstances as should reasonably have put the bank on inquiry, and would such inquiry, if pursued, have reasonably led to such information as would have made it the duty of the bank to have prevented :lie drawing out of the money by Small? You have heard a great deal of interesting and instructive discussion about the law of notice, and about the law of principal and agent, showing how and to what extent the knowledge of an agent is to be imputed to his principal so as to affect him with notice. This was iutended to show how and to what extent the knowledge of Jacob Small, as an officer of the bank, its president and director, was to be imputed to his principal,4;he corporation, the bank of which he was president and director, the Germania Savings Bank of Charleston, S. C., and thus to ascertain how far, if at all, the bank was to be held liable for the acts of Jacob Small, its officer. I shall endeavor to outline now as plainly and in as few words as possible the law on this issue, which law you will apply to the testimony you have heard. A bank is a corporation, and as such it is an intangible body, and can act and be acted upon only by means of agents or officers. Whatever its agent or officer does within the scope of his agency or official duty is the act of the bank, and the bank is bound by it and is responsible for the consequences of that act. You will remark, however, that the act, the overt act, of an officer or agent will bind the bank, but only such an act as is within his province as agent, and within the lines of his duty as such officer. If.it is the duty of an officer of the bank to cash checks or discount bills, any cashing or discounting of a bill by such officer when acting for the bank, or ostensibly acting for the bank, will bind the bank without any special authorization, because such act would be within the scope of his agency or official duty. But if such officer should dabble in land or cotton speculation, even though ostensibly acting for the bank, the bank would not be bound by such act of his unless the bank had given him special authority so to act, because such business is not within the scope of his official duty or of his agency. Under the law of notice, not only is the bank bound by and held liable for the acts of its agent done in the line of his duty as such, but the bank is held chargeable with the knowledge of its agent or officer when he is acting for the bank and representing the bank in any transaction. This is only an application of the maxim of the law, and is grounded on the presumption that an agent or officer will communicate to his principal or to the corporation any knowledge he may possess which may affect the transaction in which he is representing his principal or the corporation. It is his duty so to do, and the law presumes that he will do his duty, and this is the law, no matter whether the knowledge is obtained in the course of his official duties or as a private individual, if he be acting for the corporation officially or as its agent in a matter of business for the corporation. But to this rule of law, as to all rules, there are some exceptions. Thus, where an agent or officer could not communicate his knowledge without a breach of official confidence — as, for instance, should that agent be an attorney at law, and as such had obtained from his client confidential communications. It is not to be presumed that he would communicate such information. Under the law he cannot. So, also, where an agent or officer is about to commit a fraud, it .is not to be presumed that he will divulge the guilty fact to his principal or to his colleagues. In such cases of fraud the general presumption that the agent will communicate his knowledge to his principal is displaced by the stronger special presumption that he will not do what would effectually defeat his purpose; but this counter-presumption will not avail where an agent or officer acting, or ostensibly acting, in behalf of his principal or corporation commits a fraud upon a third person,.and not upon his principal or corporation; in such a case-the principal or corporation will be held chargeable with the guilty knowledge of the agent or officer, that is to say, if he is acting in behalf of the corporation and representing it in the transaction. For example: Should a bank president, acting officially and representing the bank in the transaction, commit a breach of trust or perpetrate a fraud upon a third person, the knowledge of that officer that his act is fraudulent, and his purpose is fraudulent and a breach of trust, will be imputed to the bank, and the bank would be properly considered a party to the fraud, and held liable to the injured person for his loss. But the rule is different when the agent or officer is dealing with the bank or corporation in the particular transaction in his own behalf and not as such agent or officer. When acting independently on his own behalf, even though an officer of the bank, his position is hostile to the bank or corporation, he stands in the attitude of a stranger who is dealing at arms’ length with the bank or corporation. Hence this other exception to the general rule, that when an agent or officer is acting for himself and not for his bank or corporation in transacting business with the bank or corporation in the same way that any other person might do, the law will not impute to the bank or corporation any knowledge of his relation to the matter in hand. In such case the agent’s interest is opposed to the bank or corporation, and the presumption will be, not that he will communicate his knowledge, but that he will conceal it.</p> <p>I shall now take up the requests to charge submitted by the plaintiff and defendant, and before I get through with them, either affirming or modifying or rejecting the requests, I shall have given you, I trust, enough law to guide you in discussing the questions of fact before you. The following are the plaintiff’s requests to charge:</p> <p>1. “The question of imputing to a bank a fraud committed by its agent in the discharge of his duty as an officer of the bank is to be passed upon by the jury.” That is the law. It is a question for the jury, but the jury ought to decide the question upon the testimony in the case, and under such principles of law as it is the duty of the Court to lay down for their guidance.</p> <p>2. “The duty of a president of a bank of general supervision is more general than that of any other member of the board of directors.” This is a statement of what is generally the case, and as a general statement it is the law.</p> <p>3. “If a party dealing with an executor has at the time reasonable ground for believing that he intends misapplying the money, or is in the very transaction applying it to his own private use, the party so dealing is responsible to the person injured.” That is the law. For example: If an executor having in trust as part of the assets of his testator’s estate certain certificates of stock or securities, and he hypothecates and pledges such certificates of stock for the purpose of raising money for his own private use, or money which there is reasonable ground for believing that he intends misappropriating or misapplying, should the cestui que trust in that case suffer loss through such a transaction, the party through whom the executor thus dealt would beheld liable. Such is the law, and you will apply it to the facts in this case if the facts be such that you can apply it. There can be no doubt that if Jacob Small had taken some of those securities and pledged them to the bank, and raised on them money for his own vprivate use, and if by that transaction the estate to which those securities belong suffered loss, the bank would be responsible to the amount of that loss, because in dealing with an executor one has to be very careful, and if he has reasonable grounds for believing that the executor intends to misapply the money thus being raised and applying it to his own use, then the loss would fall upon . the person thus dealing with him. But that law was laid down not as a general proposition, but in connection with the facts of a particular case, in which an officer who was also executor had so dealt with certain certificates of corporate stock as to put the party, the bank with whom he was dealing, properly on inquiry.</p> <p>4. “A deposit in a savings bank is a bank matter, a part of its business, and all dealings of the bank concerning such deposit are concerning the business of the bank.” Certainly, to that extent it is true, and I so charge you.</p> <p>5. “Knowledge brought home to the agent of a corporation possessing authority to act, and acting in the matter to which the notice relates, is the strongest case for charging a corporation with notice of matter known to its agent.” I so charge you.</p> <p>6. “If the jury believe that Jacob Small was president of defendant bank, and that he knew that the deposit in said bank standing in the name of Jacob Small and William Knobelock, executors of estate of William Knobelock, sr., belonged to the cesüd que trust under the will of William Knobelock, sr., then when the said deposit was entered in the said bank and became subject to his general supervision as president of the -bank, whenever the bank acted through him or with his knowledge in any transaction concerning the deposit, where that knowledge was material and applicable, such knowledge of Small concerning the deposit is the knowledge of the bank.” That is the law which would govern in a transaction with regard to the deposit in which he, Jacob Small, may have acted as officer of the bank and as its ágent, but not if he acted concerning the deposit as any other depositor may have done. So you will decidé from the testimony in this case whether Jacob Small was acting as officer and agent of the bank in drawing out said deposit, or was acting as a depositor, such deposit being subject to his checks as such depositor. And here I charge you that if Jacob Small and his coexecutor originally placed the money on deposit in the defendant bank, and if he was at the time he drew the money out acting as sole surviving executor and authorized to act as such, then the bank was reasonably bound to pay the check of Jacob Small to the extent of the deposit, and for any loss which the cestui que trust may have suffered by the misappropriation of the money by Jacob Small, the bank will not be liable in law, unless the bank as a bank was guilty of a breach of trust towards this cestui qtie tmst under the will of William Knobelock, or acted in collusion with Jacob Small in a fraudulent plan and purpose to misappropriate the money on deposit, and that depends, of course, entirely upon the testimony, and is for you to decide.</p> <p>7. “If the jury believe that Jacob Small was president of defendant bank at the times mentioned in the complaint, and that he drew from said bank at the periods therein stated the said amounts alleged to be and which were the property of the cestuis que trustent under the will of William Knobelock, sr., without the knowledge of said cestuis que trustent, and that at the times said deposits were so drawn, he, the president of the bank, was in the bank acting as its president with the general supervision of its affairs, including this deposit, knowing that the transaction was concerning said deposit, and then intended to misappropriate said amounts so drawn, and did in fact misappropriate them, then his knowledge of the same as a matter of law became the knowledge of the bank, and his receipt as executor cannot discharge the bank, if such receipt formed a part of the fraud.” That is the law of this case. If the testimony satisfies you that Jacob Small in drawing the deposit was acting as president or officer or agent of the bank, representing-the bank and acting for it, and not acting as depositor or as executor with a right to draw on the deposit. The knowledge of Jacob Small as an executor is not to be imputed to the bank simply because he was president. It can be imputed to the bank and will bind the bank only with regard to transactions in which he acted as president or agent of the bank, acting in the business of the bank and in its behalf. To illustrate: Should the president of a bank who was also executor of an estate have on deposit in the bank a fund of money as executor, and should transfer that deposit from his account as executor to his own individual account, which he and the bank knew to be overdrawn, and should loss ensue to his cestui que trust, in such case the bank would be liable to the extent of the loss, because such a transaction would be acting, in part at least, as officer of the bank and in the business of the bank, and his knowledge would be chargeable to the bank, which would be held responsible to the extent to which it was benefited by the transaction, under the equitable doctrine that a principal cannot be allowed to reap the reward of the dishonesty of its agent. The law will not allow the principal to enjoy the fruit of its agent’s fraud. If the principal shares in its agent’s reward, it must also carry the burden of the agent’s guilty knowledge.</p> <p>8. “If Small never ostensibly in any of his transactions with the bank concerning this deposit held himself out to the bank as dealing with the deposit in any way as an individual, but on the contrary his professions and actions were that he was a fiduciary of the trust, and as such alone dealt with the bank, then as there was nothing to indicate to the bank that Small was dealing with it as an individual, the reason ceases for holding that when an officer of a corporation enters into a transaction with it for his individual benefit, he, in reference to that transaction, must be supposed to act at arms’ length with the corporation. For the protection of third persons it must rather be presumed that the principal has authorized the agent to act with notice of the fraud.-” I cannot charge you that.</p> <p>9. “If, on the lines heretofore charged, the jury believe that the bank, through Jacob Small, its president, knew that the fund in question was held by Jacob Small, surviving executor, for the cestuis que trustent, and that it was about to be misappropriated by Jacob Small, then it owed a high duty to the beneficiaries of the fund it held in its charge for them, and if this fund has been so misappropriated, the bank is liable.” I refuse to charge you that. That would be to make the bank executor of the estate, devolving upon the bank all of the duties of the executor. That would run counter to what the Supreme Court has said, that the executor in this very case, Jacob Small, had the right to draw checks on that deposit fund, and those checks would be honored by the bank so long as there was money there. The only ground on which the bank could be held liable would be for some breach of trust, as I have explained to you. I cannot charge that proposition in its form.</p> <p>10. (Insert plaintiff’s requests to charge.) I so charge you.</p> <p>11. (Insert plaintiff’s 11th request to charge.) I charge you that, with this addition: Provided, That the testimony satisfies you as a jury that Small was acting officially for the bank in the transaction, and not acting as a depositor drawing on his deposit.</p> <p>Defendant’s requests to charge are as follows:</p> <p>1. “That the jury cannot answer yes to the first question in the case unless they find that at the very time Small drew the money in question out of the bank, he had the intent and purpose to misappropriate and convert the same to his own use; the burden being on the plaintiff to establish this by evidence.” That is the law.</p> <p>2. “The burden is on plaintiff to show that the president had authority to pay deposits, if he claims such to be the case.” I so charge you.</p> <p>3. “That in drawing out the money in question, Small, even if president of the bank, was acting as a depositor, and any knowledge or intent he may have then had as to his disposition of the money was not notice to the bank, and could not affect it any more than similar intent or knowledge in the mind of any other depositor drawing money not communicated to the bank.” I so charge you.</p> <p>4. “That if Small was president of the bank when he drew the money in question out of the bank, and at that time had the intent to misappropriate and convert the money to his own use, the mere fact of his being such president would not be notice constructive or otherwise to the bank.” I so charge you.</p> <p>5. “That in drawing the money in question out of the bank, Small was acting adversely to the bank and not in its behalf, and if when drawing it he intended to misappropriate and convert it to his own use, notice of such his intent would not be imputed to the bank merely by reason of the fact that he was president of the bank at the time.” I so charge you.</p> <p>6. “That if at the time Small drew the money in question he had the intent to misappropriate and convert it to his own use, he was engaged in perpetrating an independent fraud on his own account, and the knowledge of his own intent could not be imputable or imputed to the bank, and would not be notice constnictive or otherwise to it, merely because he was its president.” I so charge you.</p> <p>7. “That in order to charge a bank with notice of the facts of which its president or other officer has knowledge in reference to a transaction, he must have acted in the transaction on behalf of the bank.” I so charge you, adding: “if he was acting either wholly or partially for the bank.”</p> <p>8. “That while the knowledge of an agent is ordinarily imputed and chai'ged to his principal, there is an exception to this rule, in cases of such conduct on the agent’s part as to raise a clear presumption that he would not communicate the fact in controversy; as when the agent acting nominally as such is in reality acting in his own or another’s interest, and adversely to that of his principal, or when the communication of such fact would ordinarily prevent a consummation of a fraudulent scheme which the agent was engaged in perpetrating.” I so charge you.</p> <p>9. “That knowledge of an agent of a corporation or other principal while engaged-in a fraud for his own benefit cannot be imputed to such corporation or other principal.” I add to that: “unless, also, the corporation or the principal is benefited by the fraud, in which case the corporation or other principal would be liable to the extent of its benefit received from the fraud.”</p> <p>(At this stage of Judge Benet’s charge, Mr. Simons, for the defense, said: “May it please your Honor, we will not trouble you to read any more of our requests to charge, as we think you have covered the ground already.”)</p> <p>(By the Court:) So, gentlemen of the jury, by the kindness of counsel, we have been saved going over numerous and very carefully prepared requests to charge, which have been already substantially given to you in my general charge and my comments on the requests of the plaintiff. The Supreme Court has already held in this case that as surviving executor Small had the right to draw checks on any deposit he had as executor, and it was an implied duty of the bank to pay such checks, and that, therefore, the mere fact of drawing the money was not of itself illegal or wrong. If it was fraudulent, the taint of fraud came from the intent of Small; but even if the intent were fraudulent, even if Small knew at the time he drew the money that he was going to misappropriate it and convert it to his own use, that knowledge of his could not be imputed to the bank unless he was in that very transaction acting for the bank and representing the bank officially, and not acting as a depositor. If he was acting simply as any other depositor, the law will not impute to the bank any knowledge of his relating to the transaction in hand. If his interest in this transaction was adverse to the bank, there is no presumption that he would communicate his knowledge, guilty or otherwise, to the bank, but the reverse is the presumption. But if, acting independently, he engaged in a fraudulent transaction for his own benefit and by which the bank was not benefited, and enjoyed none of the fruits of the fraud, the bank cannot be held liable nor can the knowledge of his guilty purpose be imputed to it. Once or twice in the course of this charge I have necessarily used the expression about the bank being put upon inquiry. The inquiry referred to there is the inquiry that grows out of a sense of duty and responsibility, and not from idle curiosity or impertinent inquisitiveness. That is to say, that if the act of drawing the money by Small, the executor and depositor, was surrounded by such circumstances of suspicion as made it the duty of the bank to investigate, and if that investigation would reasonably have led to the,disclosure of such facts or the obtaining of such information as would have made it the duty of the bank to have refused to pay the money out, in such case the bank would be held liable. But, as has been argued to you very properly, it is not the law that the bank should inquire into the purpose of a depositor in drawing out a fund, even though that depositor be an executor drawing out a trust fund. There must be other circumstances to make the inquiry to which the law refers necessary. If the facts in the evidence show you satisfactorily that in drawing the money out, Small was acting officially for the bank, as its president or other agent, actually representing it, then his knowledge is to be attributable, and if loss ensued to the estate of William Knobelock or the cestui que trust by such official act of Small, the bank would be liable for the loss. If he acted as any other person might have done with his deposit, drawing checks, which the bank was liable under the law to honor, then his knowledge could not be imputed to the bank, and if loss ensued to the estate of William Knobelock or the cestui que trust by such drawing out of the money, the bank cannot be held liable for such loss unless there is evidence that the bank profited by the fraud. In such case the bank would be held liable to the extent of the benefit, not simply under the law of notice, but because of the equitable doctrine that a principal cannot benefit by the fraud of its agent.</p> <p>The following is so much of the opinion of the Circuit Judge as is necessary to understand the issues:</p> <p>In the decree filed by me in this case on 18th May, 1896, I said I would give my reasons at length hereafter. I now do so. On the motion of the plaintiff, as shown in the decree filed 18th May, 1896, the two issues in this case were referred to a jury, which has passed upon them. There has been no demand for a new trial, and, under the law, the finding of the jury, unless set aside, is conclusive. Code, sec. 274a; Constitution 1895, art. V., sec. 4. Upon the issues thus submitted to them, in response to the question, “2d. Did said bank, at the time said money was drawn out as aforesaid, have notice that said Jacob Small was drawing the same with the intent and for the the purpose of misappropriating the same to his own use?” the jury having found no, the case is disposed of as far as the defendant bank is concerned, and the complaint and action must be dismissed as to it. The Supreme Court, in the case of Jacob Knobelock,, admlr, &c., v. The Germania Savings Bank, &c., in 43 S. C., 233, speaking of these very transactions, say: “When the executors of the last will and testament of Wm. Knobelock, sr. (of whom Jacob-Small was one), placed on deposit as such executors in the defendant bank the sum of $7,728.48” (being the aggregate amounts of $2,000 and of $5,728.48, for which this and the other suit with the same title were tried at the late term of the Court for Charleston County), “under the decisions of the Court of last resort in this State (Fogartie & Stillman v. State Bank, 12 Rich., 518; Simmons &c. v. Bank of Greenwood, 41 S. C., 177), there arose an implied contract between the defendant bank and said executors, or the survivor of them, that such defendant bank would pay all checks drawn by such executors, in such amounts and to such persons as may be mentioned in such checks, as long as there remained to the credit of such executors on such account an amount sufficient to pay such checks. * * * If this proposition of law is sound, and under the authority of the two cases just cited we hold it to be sound law in this State, there could be no liability in law, as distinguished from equity, upon the defendant bank for paying the checks of the depositing executor. If the payment of such check by the defendant bank could create any liability, it must be for a breach of some trust owed by the bank to ceshds que trust under William Knobelock’s last will. It is this liability, arising from some breach of some such duty or trust alone, which the plaintiff here seeks to enforce.”</p> <p>Neither in the trial of this case before the jury or since has there been any testimony or proof whatever adduced to show that there was any duty or trust owed by the bank' to the ceshds qtie trust under William Knobelock’s will, except such as arose from the fact that the deposit was made in the name of the executors. The jury have found that Small at the time he drew this money out intended to misappropriate it. The only remaining question is, had the bank notice of this fraudulent intent? The jury have found that it did not have such notice, and their finding is conclusive. I think it proper to say, however, that I concur in their verdict. No attempt was made to show that the bank had actual knowledge of Small’s intention to convert this fund to his own use. Nor were there any circumstances connected with the withdrawal of the fund calculated to excite suspicion or provoke inquiry. The plaintiff’s case rested entirely upon the fact that at the time of the transaction Small was president of the bank. This, it was claimed, affected the bank with constructive notice of Small’s guilty intent, upon the ground that his knowledge was necessarily the knowledge of the bank.</p> <p>It is a well settled rule that a corporation is chargeable with the knowledge of its officer, when he is representing it in any transaction. In the case at bar, Small was not acting for the bank, but was acting for himself. Acting independently for himself in a fraudulent transaction for his own benefit, and from which the bank did not derive the slightest advantage, his guilty knowledge cannot be imputed to the corporation. In my charge to the jury, I left it to them to say whether the facts in evidence satisfied them that in drawing the money out, Small was acting officially for the bank as its president. They were told that if he represented the bank, his knowledge would be imputable to the bank, and that if loss ensued to the estate of William KLnobelock from what was done, the bank would be liable for the loss, but that if he acted for.himself,- then that his knowledge was not imputable to the bank, and it would not be liable for any loss sustained in consequence of the misappropriation of the fund. The result of the finding of the jury, which I think correct, was that it was not shown that Small was acting officially for the bank as its president, and it necessarily follows that the complaint should be dismissed. As I said to the jury in my charge on the trial of the issues in this case, under the law of notice, not only is the bank bound by and held liable for the acts of its agent, done in the line of his duty as such, but the bank is held chargeable with the knowledge of its agent or officer, when he is acting for the bank and representing the bank in any transaction. But to this rule of law, as with all rules, there are some exceptions. Thus, where an agent or officer could not communicate his knowledge without a breach of official confidence — as, for instance, should that agent be an attorney at law, and as such had obtained from his client confidential communications. It is not to be presumed that he would communicate such information;' under the law he cannot. So, also, where an agent or officer is about to commit a fraud, it is not to be presumed that he will divulge the guilty fact to his principal or to his colleagues. In such cases of fraud the general presumption that the agent will communicate. his knowledge to his principal is displaced by the stronger special presumption that he will not do what would effectually defeat his purpose; but this counter-presumption will not avail where an agent or officer acting, or ostensibly acting, in behalf of his principal or corporation, commits a fraud upon a third person and not upon his principal or corporation; in such case the principal or corporation will be held chargeable with the guilty knowledge of the agent or officer; that is to say, if he is acting in behalf of the corporation and representing it in the transaction. For example, should a bank president acting officially and representing the bank in the transaction commit a breach of trust or perpetrate a fraud upon a third person, the knowledge of that officer that his act is fraudulent, and his purpose is fraudulent and a breach of trust, will be imputed to the bank, and the bank would be properly considered a party to the fraud, and held liable to the injured person for his loss. But the rule is different when the agent or officer is dealing with the bank or corporation in the particular transaction in his own behalf and not as such agent or officer when acting independently on his own behalf, even though an officer of the bank, his position is hostile to the bank or corporation, he stands in the attitude of a stranger; he is dealing at arms’ length with the bank or corporation. Hence this other exception to the general rule, that when an agent or officer is acting for himself and not for his bank or corporation in transacting business with the bank or corporation in the same way that any other person might do, the law will not impute to the bank or corporation any knowledge of his relating to the matter in hand. In such case the agent’s interest is opposed to the bank or corporation, and the presumption will be not that he will communicate his knowledge, but that he will conceal it. These principles are abundantly sustained by a multitude of authorities, both in this country and England. Among others, see: Note 24, Am. Stat. Rep., p. 228; In re Marseilles Extns. Railway Co., R. R. Ch. App., 7, p. 161; Cave v. Cave, R. R. Ch. Div., 15, p. 639; Mayor & Aider-men of New York v. 10th Nat. Bk., Ill N. Y., 446; Com. Bank v. Cunningham, 41 Mass., 270; Washington Bank v. Lewis, 49 Mass., 24; Innerarity v. Bank, 139 Mass., 332; Barnes v. Trenton Gas Light Co., 27 N. J. Equity, 33; Frenkel v. Hudson, 52 Ala., 150; Wickersham v. Chicago Zinc Co., 18 Kans., 481; Davis Importing Co. v. Davis &c. Co., 20 Fed. Rep., 699; Thompson Houston Electric Co. v. Capital Electric Co., 56 Fed. Rep., 849, and 65 Fed. Rep., 541; Cook on Stock, See., 3 Edn., note to sec. 727, p. 1115; Eng. & Am. Enc. of Raw, 1 vol., “Agency,” p. 423; Distilled Spirits, 11 Wall., 356; Akers v. Rowan, 33 S. C., 461; Raply v. Klugh, 40 S. C., 134.</p> <p>The plaintiff appeals on the following exceptions:</p> <p>1. That his Honor erred in adjudging that the complaint herein be dismissed as against the defendant, the Germania Savings Bank of Charleston, S. C.; whereas his Honor should have held that the complaint herein stated a good and equitable cause of action against the defendant, the Germania Savings Bank, and that the evidence supported the same.</p> <p>2. That his Honor erred in the opinion filed by him stating his reasons for making his judgment aforesaid, in finding that there had been no testimony or proof whatsoever adduced to show that there was any duty or trust owed by the defendant bank to the cestuis que trustent under William Knobelock’s will, except such as arose from the fact that the deposit was made in the name of the executors. Whereas his Honor should have held that there was evidence to show that the bank, at the time it paid the checks drawn by Jacob Small, the proceeds of which he intended to misappropriate, knew or was aware of such circumstances as should have made it know that Small so intended to misappropriate the proceeds of said checks; and at that moment the bank was so put on notice as that a disregard of the same constituted a participation by it in the breach of trust intended by Jacob Small.</p> <p>3. That his Honor erred in the said opinion in finding that the plaintiff’s case rested entirely upon the fact that at the time of the transaction Jacob Small was president of the defendant bank; whereas his Honor should have held and found that the plaintiff’s case rested upon the facts that at the time of the transaction not only was Small president of the bank, but in connection with his presidency there were other circumstances known to Small and to the other officers of the bank which were sufficient to notify the bank as well through Small as through its other officers, that Small intended to misappropriate the proceeds of the said checks.</p> <p>4. That his Honor should have held that in the case at bar, as a conclusion of fact, Small was acting not for himself alone but was also acting for the bank, and that in such case his guilty knowledge was imputable to the bank.</p> <p>5. That his Honor should have held, as a conclusion of law, that where the participation of a corporation itself in a transaction arises from the circumstance that the officer participating in the transaction is its president, and that that officer is at that time engaged in a fraudulent transaction, which he is enabled to perpetrate by means of his position in the corporation, then and in that case his guilty knowledge is imputable to the corporation.</p> <p>6. That his Honor should have held that he had erred in his charge to the jury on the trial of the issues, inasmuch as his Honor erred in charging the jury that if Jacob Small and his coexecutor originally placed the money on deposit in the defendant bank, and if he was at the time he drew the money out acting as sole surviving executor, and authorized to act as such, then the bank was reasonably bound to pay the check of Jacob Small to the extent of the deposit, and for any loss which the cestuis que trustent may have suffered by the misappropriation of the money by Jacob Small, the bank will not be liable in law, unless the bank, as a bank, was guilty of a breach of trust towards this cestui que trust under the will of William Knobelock, or acted in collusion with Jacob Small in a fraudulent plan and purpose to misappropriate the money on deposit. Whereas his Honor should have charged, as requested by the plaintiff in his request to charge numbered 6, and not having modified the same as hereinbefore set forth; and in such modification his Honor erred in so charging, without additionally charging the jury that the bank was liable in law, if, at the time it paid the check of Jacob Small, it had such notice as was sufficient to put a reasonable man upon an inquiry if Small intended, when drawing out the money so on deposit, to misappropriate and convert the same to his own use, and that the knowledge on the part of the- bank of such intention was sufficient to convert it into a trustee for the parties beneficially entitled to such deposit and to render it guilty of a breach of trust towards the same in permitting Small to receive such deposit.</p> <p>7. That his Honor should further have held that he was in error in his charge to the jury upon the trial of the issues, inasmuch as his Honor erred in refusing to charge, as requested by the complainant, that if Small never ostensibly in any of his transactions with the bank concerning this deposit, held himself out to the bank as dealing with the deposit in any way as an individual, but, on the contrary, his professions and actions were that he was a fiduciary of the trust, and as such alone dealt with the bank; then, as there was nothing to indicate to the bank that Small was dealing with it as an individual, the reason ceased for holding that when an officer of a corporation enters into a transaction with it for his individual benefit, he, in reference to that transaction, must be supposed to act at arms’ length with the corporation. For the protection of third persons it must rather be presumed that the principal has authorized the agent to act with notice of the fraud.</p> <p>8. That his Honor should further have held that he was in error in his charge to the jury, in that his Honor in refusing to charge the 9th request to charge on behalf of the plaintiff, to wit: “If, on the lines heretofore charged, the jury believe that the bank, through Jacob Small, its president, knew that the fund in question was held by Jacob Small, surviving executor for the cestuis qtie trustent, and that it was about to be misappropriated by Jacob Small, then it owed a high duty to the beneficiaries of the fund it held in its charge for them, and if this fund has been so misappropriated, the bank was liable.”</p> <p>9. That his Honor should have held that he was in error in charging the jury in modifying the 11th request to charge of the plaintiff, to wit: “That the question of notice to the bank of the intention of Jacob Small to misappropriate the money drawn out by him, is a conclusion to be arrived fit by the jury, from all the circumstances detailed in the testimony. That they are not limited alone to the knowledge of Jacob Small obtained by him as executor, but the jury are to consider the testimony as a whole, the knowledge of the other officers of the bank, circumstances occurring within their knowledge; and if they find from all the circumstances of the case that the other officers knew or/had such grounds as would have been sufficient to a reasonable man for knowing that Jacob Small intended to use this fund so drawn by him for that purpose, then that was sufficient to give notice to the bank of such knowledge,” by adding thereto, “Provided, that the testimony satisfies you as a jury that Small was acting officially for the bank in the transaction, and not acting as a depositor drawing on his deposit.” Whereas his Honor should have charged such 11th request as hereinbefore given, without any such modification; and his Honor erred in modifying the same to the effect that Small must have acted officially for the bank in the transaction, because if from the circumstances surrounding the transaction the bank was made aware of the fact and put upon notice that Small intended to misappropriate and to convert the money so drawn by him to his own use, the bank was then responsible and liable at law to the beneficiaries entitled to the funds, whether or no Small was acting officially for the bank in the transaction.</p> <p>10. That his Honor should have held that he was in error in his charge to the jury upon the trial of the issues, inasmuch as his Honor erred in charging the jury that the knowledge of an agent of a corporation or other principal, while engaged in a fraud for his own benefit, cannot be imputed to such corporation or other principal, unless also the corporation or principal is benefited by the fraud, in which case the corporation or other principal would be liable to the extent of his benefit received from the fraud. Whereas his Honor should have charged the jury that the knowledge of an agent of a fiduciary character of a corporation, while engaged in fraud for his own benefit, which fraud he is enabled ■to perpetrate by reason of the position which he holds as agent of such corporation, is imputed to such corporation or other principal, irrespective of the fact whether or no the corporation is benefited directly by the fraud so perpetrated.</p> <p>11. That his Honor should have held that having so erred in his charge to the jury, the verdict of the jury was not conclusive, but a new trial would have to be had, and that in such case no judgment could be rendered in the present cause.</p> <p>12. That his Honor erred in rendering any judgment, inasmuch as it appeared that his Honor erred in his charge to the jury, and that, therefore, the conclusions of the jury were erroneous, under his Honor’s charge; and that there should either be a new trial or that his Honor should find, as a conclusion of fact, that the defendant bank, at the time the money was drawn out by Jacob Small under the said checks, had notice that the said Small was drawing the same with the intent and for the purpose of misappropriating the same to his own use.</p> <p>13. That his Honor should have held, as a conclusion of law, that in the transaction in the case at bar that Small, at the time he directed the payment of the said checks, intending at such time to misappropriate the proceeds thereof, was acting on behalf of the defendant bank, and using his position therein to commit a fraud upon third persons, and that, therefore, his guilty knowledge was imputable to the defendant bank, and it was liable therefor.</p> <p>14. That his Honor erred in finding, as a conclusion of law, in his said opinion, that the rule is different when the agent or officer, in dealing with the bank or corporation in a particular transaction in his own behalf, and not as such agent or officer, when acting independently on his own behalf, even though an officer of the bank, his position is hostile to the bank or corporation, he stands in the attitude of a stranger; he is dealing at arms’ length with the corporation. Whereas his Honor should have held that such rule is not different when the officer so dealing is secretly in a hostile attitude to the bank or corporation; but his Honor should have held that where the action of an officer of a corporation becomes possible only by reason of his position in such corporation, and that his hostile position to such bank or corporation is a secret or unavowed one, by 'reason of his secret fraudulent intent, in such case, so far as the third persons are concerned, he is not dealing- at arms’ length with the bank or corporation, but must be held to be acting by virtue of his position therein, and that the corporation having put it in his power to so act by appointing him in such position, is chargeable with his fraudulent intent, and liable for his action.</p> <p>cite: fiidge must respond to every request to charge: 25 S. C., 180; 34 S. C., 40. Guilty knowledge of officer of the bank imputable to the bank: 43 S. C., 233; 15 Wall., 165; 15 Fed. R., 1040; 26 S. C., 550; 19 Vt., 410; 10 N. Y. S., 278; 17 S. C., 340; 7 S. C., 88; 147 Mass., 281; 5 S. C., 390; 100 U. S., 699; 20 Wall., 64; 72 N. Y., 293; 139 N. Y., 313; 17 Vesey, 168; 7 Johns. Ch., 160; 31Beav., 42; 36 Am. Dec., 188; 11 S. C., 407. The mile that where an officer of a corporation enters into a transaction with it for his individual benefit as to notice to the corporation, does not apply where he so acts in fiduciary capacity: 41 Mass., 270; 139 Id., 232; 27 N. J. Eq., 23; 82 Ala., 158; 18 Kan., 481; 20 Fed., 699; 111 N. Y.,.446; 56 Fed. R., 341; 33 S. C., 472; 40S.C.,150; 11 Wall., 356; 28 Am. St., 231; 36 Am. Dec., 193; 6 S. C., 821; 35 N. E. R., 282; 60 Fed., 78; 8 Fed. R., 8; 74 Id., 1000; 15 S. E. R., 888; 39 Am. Rep., 329. The bank is bound by any kind of notice: 14 S. C., 321.</p> <p>cite: Bank properly dismissed: Code, 274a; Con. 1895, art. v., sec. 4; 43 S. C., 242. fudge was right in stating bank had no notice: 26 S. C., 374; 40 S. C., 276; 47 S. C., 344; 41 S. C., 440; 11 S. C., 195; 44 S. C., 344; 43 S. C., 223. fudge not bound to use exact words of request in charging: 42 S. C., 473; 45 S. C., 146. The president of the bank acted for his own benefit in drawing out the money: 39 S. C., 295. If the president was acting adversely to the bank and in his own interest, or intended to misappropriate the fund, his knowledge cannot be imputed to the bank: 8 Fed. Rep., 10; 5 R. R. Ch. App., 358; 7 R. R. Ch. App., 161; 15 R. R. Ch. Div., 639; 53 N. Y., 144; 111 N. Y., 446; 2 Hill, 451; 37 N. Y., 320; 72 N. Y., 291; 82 N. Y., 291; 99 N. Y., 131; 9 Penn. St., 27; 22 Pic., 24; 25 Conn., 444; 41 Mass., 270; 39 Mass., 24; 124 Mass., 506; 139 Mass., 332; 121 Mass., 490; 7 R. R. Ch., 170; 22 Pick., 24; 27 N. J. Eq., 33; 82 Ala., 150; 27 N. W., 954; 47 N. W., 913; 18 Kan., 481; 33 S. C., 472; 11 Wall., 356; 8 Fed. Rep., 1; 20 Fed. Rep., 699; '57 Fed. Rep., 20; 63 Fed. Rep., 647; 66 Fed. Rep., 216; 65 Fed. Rep., 341; 21 S. E. R., 20; 33 S. C., 451; 40 S. C., 134; 23 S. E. R., 939, 942. Small's knowledge no notice to bank: 19 How., 385; 39 S. C., 295. Complaint does not state a good cause of action: 25 Fed. R., 255; 8 Ch. D., 444; 104 U. S., 54; 4 Mad., 332; 37 Bar., 129. Request not in proper form may be refused: 45 S. C., 146. Reqtiest assuming fact should be refused: 18 Wall., 436.</p>

Before Addrich, J., Barnwell, March, 1896. Action in ejectment by S. C. Cave against B. B- Anderson. Judgment for plaintiff. Defendant appeals on following exceptions: 1. Because his Honor, it is respectfully submitted, erred in refusing to grant the nonsuit asked for by the defendant at the close of plaintiff’s case. 2.

Before Buchanan, J., Edgefield, January, 1897. Two cases by the Equitable Building and Loan Association against Annie D. Hoffman, to foreclose two bonds and mortgages. The Circuit Judge states the facts as follows: Both of the above entitled actions were tried before me at Edgefield at the same time. They are both controlled by the same principles of law.

<p>Before Keugh, J., Sumter, March, 1897.</p> <p>Action by John A. Garrett, Harriet D. Singletary, John Norton, Davis Norton, George Norton, Mary Norton, Anna Norton, Charles Norton, and Louisa Rushing, by Jacob B. Rushing, her guardian ad litem, against Rosa Weinberg and William L. Osteen, for partition. Demurrer of defendants that complaint did not contain facts sufficient to constitute a cause of action, sustained by Circuit Judge, with permission to plaintiffs to amend. From this judgment both parties appeal. The plaintiffs upon the following exceptions:</p> <p>I. His Honor erred in considering and sustaining the demurrer as to partition, when the case is on Calendar 1, to try the issue of title to the land described in the complaint, as directed by the Supreme Court.</p> <p>II. His Honor erred in sustaining the demurrer, when all the legal issues raised thereby had already been adjudicated in the case against the defendants.</p> <p>III. In sustaining the demurrer, when the defendants had pleaded in their answer and submitted to trial the same issues raised thereby, and had waived the right now to interpose this demurrer, if such demurrer could ever have been interposed.</p> <p>IV. His Honor erred in holding that the law authorizes a demurrer upon the ground that the complaint does not state facts sufficient to constitute a cause of action for partition.</p> <p>V. His Honor erred in sustaining the demurrer interposed, that the complaint fails to state facts sufficient to constitute a cause of action for partition; whereas his Honor should have held that the Code does not authorize any such demurrer, and that a demurrer for want of sufficient facts can only be sustained when the facts stated in the complaint fail to disclose any cause of action whatever.</p> <p>VI. His Honor erred in sustaining the demurrer, when upon the face of the complaint it appears that it states facts sufficient to constitute a cause of action for partition.</p> <p>VII. His Honor erred in sustaining the demurrer, when upon the face of the complaint it appears that it states facts sufficient to constitute a canse of action for the recovery of the land described therein.</p> <p>VIII. Because even if the complaint did fail to state facts for partition, yet his Honor erred in holding that upon'this ground he could not proceed with the trial of the cause of action, which is set forth in the complaint.</p> <p>IX. His Honor erred in holding that a complaint in partition is fatal as a suit for partition which shows ouster of the plaintiffs by the defendants.</p> <p>X. His Honor erred in holding that a complaint in partition is demurrable which shows ouster of the plaintiffs by the defendants.</p> <p>XI. His Honor erred in holding that the complaint herein shows that the plaintiffs have been ousted of the possession of the premises described therein for more than twenty years before the commencement of this action; whereas he should have held that the period during which the ouster continued is not shown by the complaint.</p> <p>XII. The length of time during which ouster continued can not affect the question raised by this demurrer, and his Honor erred in not so holding.</p> <p>XIII. His Honor erred in holding that the allegation in a complaint which shows ouster of the plaintiffs by defendants rendered the complaint for partition fatal and demurrable; whereas he should have held that the fact of ouster can not defeat the title of the plaintiffs to their shares in the land, nor does it destroy their relation to the defendants as tenants in common, nor can it defeat plaintiff’s right to demand partition, unless it be pleaded by defendants that the same has continued long enough to quiet their title, and such plea be sustained by the proof.</p> <p>XIV. That if the presiding Judge erred in sustaining the ' demurrer, then he also erred in ordering the amendment to the complaint.</p> <p>Defendants’ exceptions are as follows:</p> <p>That his Honor, the presiding Judge, erred, it is respectfully submitted, in so much of his order as permitted the plaintiffs to amend their complaint pending the trial, in the following particular, to wit: by striking out in the seventh paragraph thereof the words, “purporting to be the entire interest or estate therein;” and by inserting after the word “own,” in the tenth paragraph thereof, the words, “and are seized and possessed of.”</p> <p>cite: Demurrer too late: 43 S. C., 36; 48 S. C., 28; 37 S. C., 145; 28 S. C., 445; 19 S. C., 384. Complaint stating any cause of action is not demurrable: 43 S. C., 36; 23 S. G, 388;' 35 S. C., 361; 10 Rich. Eq., 428; 34 S- C., 270. Fatilty statements may be cured by amendment: 35 S. C., 361; 32 S. G, 142.</p> <p>cite: Taking leave to amend waives right to appeal: 5 Col., 233; 89 Ind., 151; 62 la., 362; 4 Abb. Pr., 468; 15 Abb., 140; 9 Wend., 548; 45 N. Y., 207; 13 Stewart (N. J.), 520; 1 Cow. ,(N. Y.), 691; 60 la., 16; 62 la., 77; 87 Ind., 103; 1 N. Y., 126; 9 Wend., 548; 39 S. C., 334; 3 S. C., 606, 31; 2 S. C., 390, 388; 40 S. C., 465. Answering plaintiffs'11st exception: 18 S. C., 222; 48 S. C., 28. 2d exception: 43 S. C., 36; 48 S. C., 28. Sd exception: 29 S. C., 64; 17 S. C., 411; Code, 169. l^th exception: Code, 165, sub. 6. 5th exception: Code, 165; 18 S. C., 222. 6th exception: 84 Ind., 308; 1 Gill. & J., 503; 106 N. C., 242; 8 Iredell Eq., 29; 27 111., 119; 29 S. C., 369; 9 Pa. St., 461; 26 Col., 76; 3 Paige, 342; 2 Barb. Ch., 398; 25 N. Y. Weekly Dig., 68; 5 S. C., 8; 6 S. C., 68; 20 S. C., 500; 28 S. C., 388; 2 Duer, 673;' 4 Ed. Smith, 34; 10 How., 377; 16 Barb., -95; 6 Ad. & El., 482; 13 Barb., 209; 33 S. C., 216; 34 S. C., 62; Rev. Stat., 1948; 9 Cowan, 461; 3 Paige Ch., 245; Harper, 390; 28 Vt., 638; 94 N. C., 338; 1 W. & S., 184; 1 Pa. St., 324; 3 Grant, 177; 25 Am. Dec., 709; 38 Vt., 258; 7 Mass., 475; 13 Pick., 251; 24 Conn., 230; 19 Wend., 367; 5 Denio, 385; 2 Barb. Ch., 98; 36 Ntt, 326; 13 N. J., 271; 2 Lack. Leg. N., 37; 6 Rich. Eq., 426; 48 S. C., 28; Dudley, 20; 26 S. C., 247; 1 Johns Ch., 117; Iredell Eq., 131, 209; 59 N. Y., 426; 46 N. Y., 182. 7th exceptioii: 18 S. C., 222; 18 S. C., 530; 17 S. C., 410; 9 S. C., 453; 18 S. C., 470; 28 S. C., 396. 11th exception: 1 Pa. St., 324. ljf.th exception: 13 Stewart (N. J.), 520; 1 Cow. (N. Y.), 691; 39 S. C., 634; 40 S. C., 465. Amendments: 44 How. Pr., 560; 21 S. C., 240; 24 S. C., 165; 30 S. C., 574; Code, 194; 21 S. C., 26, 221; 30 S. C., 564; 31 S. C., 199; 19 S. C., 565; 24 S. C., 166; 21 S. C., 476; 30 S. C., 574; 31 S. C., 204; 32 S. C., 143; 35 S. C., 367; 43 S. C., 230.</p>

Before Aldrich, J., Lexington, February, 1897. Action by Robert L. Coleman against Broad River Township, in the county of Lexington, on the following complaint: 1.

Before Aldrich, J., Darlington, January, 1897. Action by The Germania Savings Bank of Charleston against the town of Darlington. The Circuit decree following fully states the facts: The plaintiff is a banking corporation and the defendant a municipal corporation; both were created by and now exist under the laws of the State of South Carolina.

Beforé Gary, J., Richland, May, 1896. Petition by Southern Railway Company for mandamus against T. T. Talley, as city assessor and auditor of the city of Columbia, and J. Frost Walker, as city clerk and treasurer, requiring them to accept as the assessment of petitioner’s property within the city limits the assessment placed on it by State board of assessors. Writ refused. Petitioner appeals. cite: On first point: Rev. Stat., 233, 234, 236; 113 U. S., 516.

Before Watts, J., Marlboro, December, 1896. Proceedings before clerk of court to foreclose an agricultural lien by John R. Townsend against William A. Sparks. Upon motion, Circuit Judge set aside warrant. Plaintiff appeals. cite: Point not presejited below not considered here: 31 S. C., 445. Statement of amount due in affidavit sufficient: 24 S. C., 122; 6 Ind., 309.

Before Aldrich, J., Sumter, July, 1896. Action by Albertus S. Brown against James H. Chandler on two promissory notes. The following Circuit decree fully states the facts: This action comes before this Court upon the pleadings and testimony taken by the master, his conclusions thereon, and the exceptions of defendant. Plaintiff instituted this action to recover judgment against defendant on two promissor}»- notes, set out in the complaint in two causes of action.

<p>Before Earle, J., Barnwell, November, 1896.</p> <p>Action by Theo. Ruberg against Simon Brown, for damages for falsely representing certain lands in Barnwell County to be of equal value to property in Chicago, exchanged by Ruberg with Brown for the Barnwell lands. Defendant demurred, because complaint did not state cause of action. Demurrer sustained, but plaintiff allowed to amend. Defendant appeals.</p> <p>cite: What misrepresentations actionable: 37 N. E., 819; 2 Allen, 212; 29 At. R., 367; 105 U. S., 553; 2 E. D. Smith, 424; 11 Mich., 68. Representations as to value not actionable: 102 Mass., 217; 114 Mass., 99; 11 Cush., 348; 58 Me., 49; 60 Me., 578; 93 Ind., 472; 80 Ind., 472; 77 Ind., 494; 70 Ind., 524; 31 Ind., 13; 3 Tenn., 51; 2 East, 92; 63 N. C., 305; 119 111., 567; 2 Ired., 32; 2 Day, 128; 20 Ga., 654; 50 Ala., 437; 56 N. Y., 83; 19 Ark., 522; 33 N. J. E., 513; 26 S. C., 275; 35 Mich., 351; 24 S. E. R., 319; 34 N. E. R., 627. Complaint not stating cattse of action cannot be amended: 32 S. C., 142; 21 S. C., 240.</p> <p>cites: Amendments: Code, 194; 18 S. C., 305; 26 S. C., 99; 31 ,,S. C., 338; 16 S. C., 231; 20 S. C., 465.</p>

Before Earee, J., Barnwell, November, 1896. Action by Stella Varn against T. A. Green,W. F. Patrick, Raymond Sandifer, W. S. Miley, Perry Bessinger, Joseph Smoak, D. J. Delk, and W. P. Thompson, for damages for the forcible, wrongful, and malicious taking of her household goods under a distress warrant for rent. Judgment for plaintiff. Defendants appeal, except Thompson, as to whom a new trial was granted unconditionally. cite: On qiiestion decided: 1 Bay, 32; 9 Rich.

Before Watts, J., Fairfield, September, 1896. Indictment against Henry Davis, for murder of James E. Súber. At the beginning of the argument for the defense, the counsel for defendant read sections 1 and 2 of Criminal Code, and requested the Court to charge the law as there laid down in regard to the right, power, and authority of private citizens to arrest without a warrant.

Before Benet, J., Sumter, November, 1896. Held: and taken full jurisdiction of the whole matter. 2. It appears from the very nature of the case that in any event, whether there was or was not a copartnership, the nature of the accounts are such that they could only be adjusted in equity. 3.

Before WATTS, J., Lancaster, October, 1896. Action by Matilda A. Duren against Permelia H. Kee, on following complaint: I. The plaintiff, Matilda A. Duren, brought, on or about the 17th day of August, 1879, against the defendant, Permela H. Kee, an action to recover the possession of that part of a tract of land of four or five hundred acres, of which the defendant had unlawful possession.

Before Benet, J., Florence, November, 1896. Action by the Interstate Building and Roan Association against N. A. Waters, W. C. Waters, J. G. Waters, J. R. Waters, and W. F. Clayton, to set aside tax deed and to foreclose mortgage, of whom N. A. Waters alone answered.

Before Benet, J., Charleston, July, 1896. Action by Charles D. Carr against Henrietta Bredenberg and the children and grand-children of John J. Bredenberg. The Circuit decree is as follows: The following are the facts of the case: 1.

Before Áldrich, J., Florence, May 29, 1896. Motion in the cáse by the defendants to set aside a judgment by default — Roberts & Hoge against B.. P. Hawley and S. A. Gregg, jr., copartners, doing business under the firm name of B. P. Hawley.

Before Aldrich, J., Chesterfield, September, 1896. Action by T. S. Gregory against E. Cohen & Sons. Held: was called in, and he and his salesman contradict this statement as to his order. It is abundantly proven that he was ready and anxious to get the goods and pay cash for them, and defendants were notified of that fact. This is one of the circumstances that weakens my faith in the testimony offered by defendants.

Before Buchanan, J., Richland, November, 1896. Held: as matter of public policy or law, to redound to the benefit of the remaindermen, the defendant, Lucy J. Green, must be reimbursed the insurance premiums and repairs made necessary by the casualties of war, the same having been paid out of her private funds, and the Judge erred in not so holding. 6.

Before Watts, J., Fairfield, September, 1896. Action by Riordan & Co., as assignees of Hanckel & Riordan, against William R. Doty, for moneys advanced by them to defendant in buying and selling cotton in New York Cotton Exchange. Judgment of nonsuit.

<p>Before Watts, J., Fairfield, September, 1896.</p> <p>Action by Wm. P. Harvey & Co. against Wm. R. Doty, for money advanced to defendant for purchase of grain in Chicago. At close of plaintiffs’ testimony, defendant’s counsel move for a nonsuit upon the following grounds, to wit:</p> <p>1st. That there is an absolute failure of proof, in that the plaintiffs set up in their complaint that they advanced money for William R. Doty, at his request and for his benefit, to the sum of • dollars, stated in the complaint. That there is a failure of any proof on the part of the plaintiffs that the plaintiffs have advanced any money for the defendant at his request. 2d. That the plaintiffs have failed to prove that at the time of the making of the said sales of corn — which were sales for future delivery — they have failed to prove that they were, at the time of the making of the said contract, the owners or assignees of the said corn, or authorized at the time of the making of the said-contract by the owners or assignees thereof. That they have failed to prove that Doty was the actual owner of any corn at the time of the alleged sale of these 40,000 bushels of corn. They have failed to prove that they themselves were the owners, or that anybody was the owner. They have failed to prove that it was the bona fide intention of the plaintiffs and defendant, at the time of the making of this contract, that the said corn so sold and transferred should be actually sold in kind by the plaintiffs and actually received in kind by the party contracting to receive the same at the time mentioned in the contract, bargain or agreement. They have failed to prove any purchase by the plaintiffs or any party who contemplated an actual delivery thereof. That they have failed to prove such a contract as entitles them to recover upon the sale of corn to be delivered in the future.</p> <p>The Court: Well, gentlemen, this case here is not without difficulty. There is no question in my mind at all that it was gambling in futures. The only trouble with me is, whether there is any testimony at all to go to the jury in this case. Now, as to the morality of the contract, I have nothing to do with that one way or the other, although I think one of these contracts, dealing in futures, is more pernicious and more hurtful than sitting down and playing poker; for people gambling at a table only hurt themselves, only hurt their own morals and the pockets of each other. But when people speculate in futures — and a great many good people do it and don’t seem to think there is any harm — it injures so many innocent people. But, as said before, I have got nothing to do with the morals of other people, and there are a great many of the best kind of people who don’t seem to think there is any harm in dealing in future contracts. The only question for me is, whether there is any relevant, competent testimony to go to the jury? If there is, then I can’t grant a nonsuit. As to the complaint itself: I understand the parties rely on a motion for a nonsuit, and in the event I don’t grant that, then they ask that I dismiss the complaint, on the grounds that it doesn’t state facts sufficient to constitute a cause of action. The complaint in itself doesn’t show any illegal contract. I see no objection to the complaint at all. There is nothing in the pleadings on the part of the plaintiffs to show an illegal contract, but the defendants come in and allege it was a gambling contract, and obnoxious to the statute of South Carolina, as construed by our Supreme Court. And you, Mr. McDonald, in making out your case, have attempted to anticipate the defense as set up by these defendants here, and you have brought out testimony, I think, which amply satisfies me that, according to the Supreme Court, in the case of Gist v. The Western Union Telegraph Company, that this was a contract obnoxious to the act of the legislature. The testimony here does not satisfy me, and I don’t think there is anything to go to the jury on that point, that Mr. Doty ever intended to deliver that corn at all. There is no testimony to show that he was engaged in the corn business, and there is no testimony to show that there was 40,000 bushels of corn in the neighborhood where he lived, or likely to be. That being the case, and relying strictly on that case, Gist v. The Western Union Telegraph Company, I don’t think that this is a contract that could be enforced according to the laws of this State. I think that it is clearly inhibited by the act of 1883, and I don’t think there is anything at all that I can submit to that jury to pass on. Admitting everything that has been testified here to be true, it is an illegal contract. I may have overlooked some testimony, and if there is any testimony at all, it ought to go to the jury; but I can’t remember any testimony at all that would warrant a jury in finding for the plaintiffs here.</p> <p>Mr. McDonald: I will state that in the testimony of the plaintiffs it is stated that at the time the contracts were made, it was understood that the corn was actually to be delivered.</p> <p>The Court: But you would have to go further, and show that when Mr. Doty wrote to them and asked them to make this contract, that it was his intention, and they understood it to be his intention, that he actually was the owner of the property at that time, or had it in possession as assignee, according to the act. The mere fact that he wrote them word to sell the corn, and they did so, thinking he would deliver it, wouldn’t bind him, because they would ' have to think themselves that he had it at the time, and that he intended to deliver it.</p> <p>Mr. McDonald: As I stated, there are some very nice questions, and I would like to have your Honor’s ruling on my position, that we are not suing on such a contract, but for money advanced at his request.</p> <p>The Court: As I said before, I don’t think there is any testimony here which would warrant a jury in finding a verdict for the plaintiffs. The testimony here satisfies me that it was in violation of the act of 1883, that it was an illegal contract. In other words, it was for the future delivery of corn, and that there was no proof to show that there was any intention on the part of the parties that there should be any actual delivery, or that Mr. Doty at that time owned the corn himself, or that he had an interest in that much corn, or that he was in possession of that much corn. I don’t think there is any doubt that it is as pure a gambling contract as was ever had, and the testimony in this case shows that they were particeps criminis. Now, if Mr. Doty had got into a future contract with somebody else, and had telegraphed his factors to pay that loss, and they paid out that much for losses, the factor could unquestionably have recovered. But they placed this contract themselves; knew there was no intent to deliver; nothing to show that he had the corn; nothing to show that he actually intended to ever deliver the corn; nothing to show that he had it in a warehouse up there, or intended to put it there. They placed this contract, and as long as the market went up, they let him stay in; as soon as it goes down, they write him for money; and when he refuses to be bled any further, then they advance the money and sue him for the debt. I think that it would be “whipping the devil around the stump” to hold that this would be a legal contract; and entertaining those views, and in view of the emphatic declarations of the Supreme Court, in Gist v. The Western Union Telegraph Company, I shall hold the same views until they reverse themselves in that. The motion for a nonsuit is granted.</p> <p>From this order plaintiff appeals on following exceptions:</p> <p>I. For that his Honor erred in granting a nonsuit in this case, when there was sufficient evidence adduced to go to the jury upon all of the issues involved in the action.</p> <p>II. For that his Honor erred in undertaking to decide upon the weight, effect and sufficiency of the testimony adduced in this case, and deciding the same himself, instead of submitting the same to the jury, upon whom alone was devolved by law the right and duty of deciding upon the facts established by the testimony.</p> <p>III. For that his Honor erred in holding that the testimony satisfied him that the transactions between the plaintiffs and the defendant were “gambling in futures,” and in granting a nonsuit on that ground, when, if such a question was properly involved in the case, that was a question of-fact that the jury alone had the right to determine.</p> <p>IV. For that his Honor erred in holding and granting a nonsuit upon the ground that the contract between the plaintiffs and the defendant was a gambling contract, obnoxious to the act of the legislature of 1883, relating to sales of property for future delivery, when he should have submitted that to the jury, if it was a question properly arising in the case upon the pleadings and the testimony.</p> <p>• V. For that his Honor erred in holding that it was incumbent upon the plaintiffs to show what was the intention of the defendant, when they executed his orders, as his brokers or commission merchants, in buying or selling grain for his account, when the action was brought by plaintiffs for money paid for the use of the defendant, at his request and for his benefit.</p> <p>VI. For that his Honor erred in holding, and granting a nonsuit upon the ground that the contract between the plaintiffs and the defendant was a “pure gambling contract,” and that the testimony showed that the plaintiffs were particeps criminis, when that was a question of fact for the jury, if it could be properly raised under the pleadings in the case; and the testimony showed that an actual delivery and receipt was contemplated and called for by the contracts.</p> <p>VII. For that his Honor erred in deciding from the testimony what was the intention of the parties, when such intention was one of fact, and he should have left it to the jury to say what such intention was, if that was a question properly arising in the case under the pleadings.</p> <p>VIII. For that his Honor erred in holding, and granting a nonsuit upon the ground, among others, that the case of Gist v. The Western Union Telegraph Company was applicable to the facts established and proven in this case.</p> <p>IX. For that his Honor erred in invading and usurping the province and functions of the jury when he held as follows: “As I stated,. I don’t think there is any testimony here which would warrant a jury in finding a verdict for the plaintiffs. The testimony here satisfies me that it was in violation of the act of 1883, that it was an illegal contract.” When he should have submitted the facts to the jury for their decision.</p> <p>X. For that his Honor erred in granting a nonsuit, when, if the act of 1883, relating to sales of property for future delivery, was applicable, there was sufficient testimony to go to the jury to show that, at the time of the sales made by the plaintiffs, it was the bona fide intention of the parties to the said contracts to actually deliver and receive the property at the maturity of the contracts.</p> <p>XI. For that his Honor erred in holding that the act of 1883, relating to sales of property for future delivery, was applicable to the facts proven in this case, when it appeared from the testimony that the plaintiffs were not parties to any such contracts, but were simply the brokers or commission merchants of the defendant, and made contracts with other parties upon the orders of the defendant, and for his account, and in granting a nonsuit upon that ground.</p> <p>XII. For that his Honor erred in not holding that the plaintiffs, having become the agents and brokers of the defendant, and bought and sold property for him, and at his request, were entitled to recover for all advances made or losses paid by them in the discharge of their duty as such agents and brokers, and in not refusing to grant a nonsuit upon that ground.</p> <p>XIII. For that his Honor erred in not holding, and refusing to grant a nonsuit upon the ground that if there had been any illegal contract, the plaintiffs were not suing to enforce the same; that if there had been such a contract, it was ended, executed, and terminated; and that if the plaintiffs, in such circumstances, advanced money at the request of the defendant, either express or implied, to pay losses of the defendant upon such contracts, they were entitled to recover the same from the defendant as money paid to his use and at his request.</p> <p>XIV. For that his Honor erred in not holding, and refusing to grant a nonsuit upon the ground that the only contract between the plaintiffs and the defendant was one of agency; and that the plaintiffs were entitled to recover for all advances made or losses paid by them for the account of the defendant in the execution of such agency.</p> <p>XV. For that his Honor erred in not holding, and refusing to grant a nonsuit upon the ground that the contract between the plaintiffs and defendant, being one of agency, entitled them to recover from the defendant for all advances made or losses paid by them for the account of the defendant in the execution of their agency, unless they had engaged in illegal transactions; and that, if so, the burden was upon the defendant to establish such illegal transactions.</p> <p>XVI. For that his Honor violated section 26, of article V., of the Constitution of the State, in undertaking to decide any question of fact, or to judge of the weight or sufficiency of the testimony in this case, when said section provides simply that he “shall declare the law.”</p> <p>XVII. For that his Honor violated section 25, of article I., of the Constitution of the State, by not submitting the facts in the case to the jury for their determination.</p> <p>(Arguments substantially same as in preceding case.)</p>

Before Gary, J., Newberry, November, 1896. Applications by Thos. J. RaMotte for writs of mandamus against James M. Smith, magistrate, requiring him to issue warrants against John C. Seegers and Charles Narey, charging them with keeping nuisances, in violation of the dispensary law, in selling beer in the city of Columbia.