Volume 53 — South Carolina Reports

<p>1. Married Women — Constitution—Inheritance—Read Estate. An alienation of an inheritance by a married woman before the repeal of the act of 1795, and after the adoption of the Constitution of 1868, must be made according to the provisions of that act.</p> <p>2. Statutory Powers. — Equity cannot aid the defective execution of a statutorj' power.</p> <p>3. Estopped — Read Estate. — A Married Woman who in 1869 joined her husband in a deed of conveyance, and thereon executed an invalid release of inheritance and received the purchase money therefor, is thereby estopped from bringing an action for the possession of tjie land after the death of her husband.</p> <p>4. Married Women — Read Estate. — Equity will not compel a married woman to return the purchase money of land conveyed by invalid release of inheritance, as a condition precedent to bringing an action for its recovery.</p>

<p>1. Winns — Limitation op Estates. — A devise to A, “in trust for tbe issue of his body, * * * to have and to hold in trust for the issue of his body,” passes the fee to the issue.</p> <p>2. The Trust being a dry and passive one, and trustee having nothing to do, the statute executes the use.</p>

Before Benet, J., York, November, 1897. Action by T. S. R. Ward v. Ohio River and Charleston Railway Company, for medical services rendered an injured employee of the road at its request. From judgment for plaintiff, defendant appeals. The former cites: Nonsuit should have been granted, because agent cannot employ physician: 40 S. C., 450; 27 S. C., 134; 10 Rich., 332; 54 Mo., 177; 98 Ind., 358; 3 Exch., 268; 47 Ill., 188; 53 Ark., 377; 49 Am.

Before Gary, J., Lexington, January, 1898. Action by the Bray Clothing Co. v. R. B. Shealy, Lee & Both well, Amanda and Jane Shealy, on account and to set aside certain mortgages. From order dissolving warrant of attachment, plaintiff appeals. cite: Judge Gary had no power to review order of Judge Klugh: 14 S. C., 226, 330; 16 S. C., 364.

Before Klugh, J., Lexington, January, 1898. Action by Mrs. M. A. Lewie and other heirs at law of J. H. Lewie v. D. J. Hallman, for possession of tract of land. The Circuit decree upon the contested questions is as follows: The first witness whose testimony is sought to be excluded under Code, section 400, is J. F. Leaphart.

Before Witherspoon, J., Clarendon, October, 1895. Action for possession of real estate by Moses Levi v. John J. Gardner et al. From judgment for defendant, plaintiff appeals. The latter cite: Purchase at sheriff's sale without taking deed gives equitable title: 3 Strob. L-, 190. As to recording: Act of 1785; 2 N. & McC., 105, 578.

<p>1. Fraud. — There is no fraud or deceit in a contract between parties capable of contracting, where no fiduciary relation exists, when no facts are concealed.</p> <p>2. Remedies — Failure oe Consideration — Mortgages.—A mortgagor in possession of land cannot set up as a defense to mortgage for purchase money, failure of consideration, in that the title to the mortgaged lands is defective.</p> <p>3. USURY. — Interest on interest after due is not usury when incorporated in the note, nor when interest is calculated on principal and included in the principal of the note.</p> <p>4. Evidence — Prima Facie — Mortgages.—The execution and delivery to a party of a note and mortgage and his possession of them, are prima facie evidence of ownership.</p>

Before Watts, J., Pickens, July, 1897. Action in partition by Alonzo Lesley et al. v. W. A. Lesley et al. From the Circuit decree the defendant, W. A. Lesley, alone, appeals. cites: Tenant in common only chargeable with rent for so much land as he uses in excess of his share: 14 S. C., 309. Claim not barred: Code, 123; 30 S. C., 345; 33 S. C., 312. cite: When testimony is left out of'■'■Case,” this Court cannot review finding of fact: 36 S. C., 567.

<p>Before Buchanan, J., Pickens, December, 1897.</p> <p>Claim by Elias'Day & Co. v. Pickens County. The county commissioners disallowed most of the claim. The appeal to the Circuit Court was dismissed by the following decree:</p> <p>On the 17th day of October, 1892, the plaintiffs filed a claim against the county of Pickens in the office of the county commissioners for said county in the sum of $3,346, for extra work done in building a new court house at Pick-ens, S. C. On the 30th day of January, 1893, the board of county commissioners approved said claim for $100, and rejected the balance thereof. No evidence was taken on said claim by said board, but, under orders of the Court on appeal, evidence was taken on said claim by a subsequent board of county commissioners on the 15th day of October, 1896. After hearing the evidence, the said board decided that the plaintiffs had already been paid for all the extra work according to previous arrangements and contracts, and disallowed said claim, except the $100 allowed by the previous board. From this decision the plaintiffs appealed to the Court of Common Pleas, and the cause was heard on said appeal by me at the October term of the Court for Pickens County. The claim is for extra work. It is admitted that the county commissioners advertised for bids to erect the court house, and that the bid of the plaintiffs was accepted for $9,000. After this bid was accepted, some changes in the building were made by the commissioners, and they agreed to pay the plaintiffs $10,000. This was the express contract between the plaintiffs and the county commissioners, and the said $10,000 has been paid by the county. Can the claim for extra work be sustained? I do not think so. In the case of Ostendorff v. Charleston, 14 S. C., 403, the powers of county commissioners in this State are fully discussed, and the conclusion reached that actions against the county must rest upon contract, either express or implied; that before a claim against the county can be sustained, the claimant must show that it rests on an express contract with the board of county commissioners, or that said board so assented to the work as to imply a contract to pay for the same. I am satisfied, from the testimony in this case, that the county commissioners set out to build the court house by and under express contract, and that they did not authorize or assent to any extra work, except that for which they have paid. Mr. Day says, in his own testimony, that “Mr. Hendricks nor the board ever agreed to pay me anything extra, but have paid the original bid, and that is all they agreed to pay. I was to build this court house, Ruttan system and all, for $10,000. There was no contract made for the extras whatever.” The testimony shows that the commissioners were very particular as to what extras they authorized. Mr. Day says he made a contract as to extras, and they paid him $30 for extra work on bar and seats, moving safe and making railings, $12. Mr. Hendricks, the chairman of the board, says that the boards paid for all extras that they authorized, and the other two members of the board indorsed this statement. He further testified that if “Day & Co. did any extra work not authorized or contracted with reference to by us, we did not know it. We were trying to go by contract.” “I thought they were doing the work by contract.” I do not see anything in the evidence to show that the county commissioners authorized the extra work to be done, except what they have paid for, or knew that the plaintiffs were doing extra work and expected pay therefor. I do not understand the testimony of the plaintiffs themselves to claim that the board of county commissioners ever authorized the extra work for which they now claim pay. Mr. Bowen said, in answer to the question, “By whose direction did you do this work?” “By the architect.” Mr. Day said, “It was under the instruction of D. C. Mitchem and Matthew Hendricks that I did this work.” “Mr. Hendricks referred me to Mr. Mitchem (the architect) in doing the work.” I do not think the architect had power to bind the county. The testimony clearly shows that the contract with the architect was that he was to get up the plans and specifications, and make three visits to inspect the building while it was going up, for $100. He had no power to bind the county to pay for extra work. It is doubtful if the county commissioners could have delegated their powers to him, but there was no attempt to do so. The reason that an architect cannot bind his principal to pay for extra work is doubly strong in this case, because that same architect was employed as foreman of the plaintiffs themselves in building the court house. For the powers of an architect, see 29 A. & E. Enc. of Law; 2 Am. & Eng. Enc. of Law, 2d ed., 821-815. 'I am, therefore, of the opinion that this claim cannot be sustained, except for the $100 allowed by the previous board, which is not to be affected by this'judgment.</p> <p>It is, therefore, ordered, adjudged, and decreed, that the grounds of appeal of the plaintiffs be overruled and the appeal dismissed.</p> <p>From this decree the claimants appeal.</p> <p>cite: Party accepting work must pay its value: 2 Sp., 701, 368; 20 Am. Rep., 347; 2 Bay, 404; 10 Wall., 676; 118 U. S., 256; 24 N. E. R., 115; 17 N. E. R., 593. Where contract is not necessarily beyond scope of power of corporation, it will be held valid: 96 U. S., 258; 22 Col., 620; 29 N. J. Eq., 542; 63 N. Y., 62; 21 N. Y., 495; 107 U. S., 356. Aiithority will be implied, where architect orders extra work with knowledge of employer: 3 F. & F., 307.</p> <p>cite: Coitrt will not review findings here by trial Judge: 40 S. C., 276. No liability on part of commissioners except by contract: 1 Sp., 81; 1 S. C., 407; 21 S. C., 416. Statute requires such work to be done ^mder contract: 14 Stat., 662; 20 Stat., 965; 3 How., 251. It must be shown that employer had full knowledge, and contractor authority to act: 1 McC., 22.</p>

Before Townsend, J., Chesterfield, December, 1897. Action by Joel M. Horne v. James A. McRae, as administrator of Thos. S. Myers, for personal attention to deceased. Judgment for plaintiff, defendant appeals. cite: Non-stdt should have been granted: 29 S. C., 100; 23 S. C., 289. New agreement was settlement of old claim: 1 McC. Ch., 455; 48 S. C., 470; 21 S. C., 239; 2 Rich., 606; 2 McM., 348; 21 S. C., 142; 42 S. C., 181; 22 S. C., 290.

<p>1. Evidence — Transactions with Decedent — Dost Papers.'— Where the existence of a receipt executed by a decedent and its contents are proved by party thereto without objection, upon objection afterwards made, the matter for which the receipt was given may be excluded, under section 400 of Code.</p> <p>2. Appeai, — Supreme Court. — This Court will only consider such objections to testimony as are urged before the trial Judge and embraced in exceptions.</p> <p>3. Findings oe Fact affirmed.</p>

Before Gary, J., Barnwell, November, 1897. Foreclosure by J. Allen Tobin, as receiver of the Southern Mutual Building and Loan Association, v. Sallie McNab. The Circuit decree states the facts as follows: This is an action for the foreclosure of a mortgage, and came on to be heard before me on the pleadings and evidence as taken and reported by the master for Barnwell County.

<p>1. Defect oe Parties — Answer—Demurrer—Waiver.—A defect of parties must be raised by demurrer or answer, and if not, is waived.</p> <p>2. Partnership — Firm Debts. — One partner of a firm may assume the firm debts, and a creditor may sue him alone.</p> <p>3. Appeal — Exception.—This Court will not consider an exception based on no special objection and ruling below.</p> <p>4. Evidence — Appeal.—This Court will not consider the competency of testimony not actually offered. Proper practice indicated.</p>

Before Aldrich, J., Greenville, April, 1898. Action by the Paris Mountain Water Company v. The City Council of Greenville, for damages sustained by change in grade of street. Complaint dismissed on demurrer. Plaintiff appeals. cite: Meaning of “alter” in sec. SO of charter: 18 N. Y. Eq., Í92; 33 N. E. R., 704; 49 N. E. R., 1013; 122 Mass., 116; 29 N. J. R., 353.

Before ArdriCh, J., Spaxtanbery, December, 1897. Action for damages, quare clausum fregit, by Harriet J. Connor v. Crede F. Johnson. Judgment for plaintiff, defendant appeals. cite: The boundary line of an adjacent land owner called for on the plat, controls courses and distances thereon: 1 McC., 232; 3 McC., 223; Harp., 454; 2 Brev., 442; Rice, 373; 14 S. C., 553. Marks and trees and corners control course and distance: 1 Brev., 545; 2 Bail., 81; 2 Bay, 515.

Before Watts, J., Charleston, December, 1897. Action by T. Moultrie Mordecai and James R. Pringle v. James M. Seignious, on the following complaint: First. That at the dates hereinafter named, the Royal Fertilizer Company was a body corporate under the laws of the State of South Carolina. Second.

Before Buchanan, J., Abbeville, October, 1897. Action by Mary B. Ford v. Benjamin P. Calhoun. From orders vacating attachment and setting aside service of summons, plaintiff appeals. cite: Attachment should not have been vacated as to defendant: Code, 255a. Personal service in this State proper: Code, 156,155.

Before Benet, J., Barnwell, October, 1897. Foreclosure by P. J. Zeigler v. Anna B. Maner, Mary A. Sams, V. M. Maner, and H. K. Maner. From judgment for plaintiff, the three last named defendants appeal. cites: Defendants could plead itsury: 47 S. C., 397. And counter-claim: Rev. Stat., 1391. cite: Defense of usury is personal to debtor: 29 S. C., 508; Rev. Stat., 1390; 47 S. C., 406.

<p>1. Constitution — Private Way. — Secs. 1175 to 1180, Rev. Stats., relating to condemnation of private way across lands of another to highway, are contrary to and repealed by Con. of 1895.</p> <p>2. Private Way. — To entitle a land owner to a right of way across the lands of his neighbor to the highway, under Rev. Stats. 1175 to 1180, he must be completely walled in.</p> <p>3. Jurisdiction — Judgment.—A Court without jurisdiction cannot render a valid judgment.</p>

Before Gary, J., Pickens, March, 1897. Action by Wm. S. Smith v. Southern Railway Company. The Judge charged the jury upon gross negligence as follows: If he was not wilfully and grossly negligent and careless, and contributed thereby to that damage, then I charge you that the law says that the railroad company is liable per se. (Court reads Rev. Stat., 1692.) Now, what is gross negligence?

Before Klugh, J., Edgefield, Action for possession of real estate by Amos W. Satcher, jr., et al. v. Eucretia Grice and Culbreath Grice. From judgment of nonsuit plaintiffs appeal. cite: No title in plaintiffs until will is probated, and statute cannot commence to run until right to sue acames: 18 S. C., 527; 146 Mass., 155; 1 Pick., 114; 12 Allen, 1; 106 Ind., 118; 94 N. Y., 243; 67 Ala., 173; 27 Id.-, 74.

Before Benet, J., Saluda, August, 1897. Action by the Farmers’ Mutual Insurance Association of Edgefield County, S. C., v. Mrs. Alice Berry, and all other defendants in like cases in said county. From order refusing reference to take the testimony the plaintiff appeals. cite: Case purely equitable and triable by Court: Code, 274; 23 S. C., 13; 47 S. C., 453.

Before Witherspoon, J., Charleston,' February, 1897. Action by Benjamin Graham against James M. Seignious. From judgment of nonsuit, plaintiff appeals. The former cite: The action is proper: 55 Ala., 432; 43 S. C., 459. Proof of contract for 1898 raises presumption of same for 189 f in connection with other testimony: 40 Vt, 615; 12 Minn., 54; 11 N. H., 91; 9 Wend., 351; 4 Id., 423, 672; 4 Wash. C. C. R., 38; 4 Camp., 275; 14 B. C. R. R.’, 432; 12 O. B., 806.

Before Watts, J., Dorchester, January, 1898. Action by H. D. Padgett against T. O. McAlhany, L. A. KLlauber, R. D. Farrell, D. E. Thrower, E. B. Fishburne, Geddings Ilderton, and Roach Platt, special commissioners for Dorchester County, for mandamus, requiring them to pay his account for transcribing records. From judgment for plaintiff, defendants appeal. cites: Mandamus cannot lie: Rev. Stat., 691; 15 S. C., 323; 30 S. C., 523; 32 Am. Rep., 612; 4 Wall., 475; 25 Am.

<p>1. Charge — Reasonable Doubt — Arrest.—When a Judge, in defining a reasonable doubt, says, “Under the facts and evidence as strong as that in this case, that would' be a reasonable doubt,” he expresses an opinion as to the weight of the testimony; and when he says, “In this case the question of the right to make an arrest cannot arise,” he gives an expression of his opinion as to the weight of the testimony.</p> <p>2. Charge — Manslaughter.-—-A Judge cannot instruct the jury that manslaughter from the accidental but negligent killing of a human being cannot arise in a case.</p> <p>3. Arrest — SELE-DEEENSE.—A person has the same right to resist an unlawful arrest as he has to resist a threatened injury to life or body.</p>

Before Aldrich, J., Laurens, October, 1897. Action by J. C. Walters and Mollie A. Walters v. Laurens Cotton Mills and W. F. Lucas, on the first cause of action, for possession of personal property and damages for detention; on the second cause of action, punitive damages for wrongful and malicious seizure. From judgment for plaintiff, defendants appeal. cites: Pending action bar to the second: 43 S. C., 381; 42 S. C., 489; 50 S. C., 120; 51 S. C., 134.

Before Klugh, J., Abbeville, March, 1898. Summary proceeding by James L. McMillan to obtain books, &c., of office of clerk of Court of Abbeville County, from W. R. Bullock, clerk elected. From order refusing the application, the plaintiff appeals. cite: Judicial determination of right to office not a condition precedent to such proceeding: Code, 434,- sub. 2, sec. 22; art. IV., Con. 1895; 32 S. C., 5; 11 How. Pr., 418.

<p>1. Pleading — Gambling—Cotton Futures. — To sustain an action under Rev. Stat. 1861, to recover money paid to an agent to be used by bim in gambling in cotton futures, it is not necessary to allege loss.</p> <p>2. Ibid. — Ibid.—Principal and Agent. — The Complaint states a good cause of action at common law against an agent for converting to his own use his principal’s money, even though delivered to him for an illegal purpose; also, that a principal may revoke the authority of an agent, and recover money given him for an illegal purpose, before the illegal contract is executed. Cases considered. Mr. Chiee Justice McIver dissents.</p>

<p>1. Pleadings — Amendments oe. — Complaint as amended substantially complies -with the order requiring plaintiffs to make it more definite and certain.</p> <p>2. Ibid. — Blending oe Causes oe Action. — Third paragraph of this complaint does not blend two causes of action.</p>

Before Buchanan, J., Pickens, March, 1898. Action by Ifidie Owings and Raymond O. Hunt, by his guardian ad litem, v. Amanda Hunt, Jesse E. Hunt, Uzee Hunt, H. M. Brock, E. H. Brock, and C. L. Hollingsworth. The plaintiffs and defendant, Hollingsworth, appeal from Circuit decree. cite: Defendants are liable to account for advancements: Bail. Eq., 234; McM. Eq., 234; 17 S. C., 550. Res judicata: 17 S. C., 35,163.

<p>1. Jurisdiction. — The Court of Common Pleas for the county of York has no jurisdiction to try a case against a resident of that portion of said county cut off to Cherokee County, although such action was commenced before formation of Cherokee County.</p> <p>2. Residence. — The residence of a person can only be changed by his own voluntary act. A party incarcerated in jail cannot be said to have changed his residence to place of incarceration.</p> <p>3. Jurisdiction once acquired may be divested by statute.</p> <p>4. Jurisdiction cannot be conferred by consent or waived by any act or omission of the parties.</p>

<p>1. Railroads — -Passenger—Negligence. —When a female passenger in feeble health, or encumbered -with baggage or other impediment, is not assisted by the railroad servants in boarding a train, any person may assist her, and the company is bound to give such person sufficient time to leave the train, if its servants have notice of his purpose of entry.</p> <p>2. Ibid. — Ibid.—Ibid.—If a conductor stands near enough to see a husband assist a wife to board a train, who is not offered help by the officers, and to hear conversation between them as to baggage, and does not stop train long enough to permit him to get off, such facts must go to the jury on the question of negligence.</p> <p>3. Pleadings — Damages—Charge.—An allegation in a complaint for damages against a railroad for injury to a person in alighting from the train by “negligently and carelessly starting a train” will sustain a charge that a railroad company is liable for injuries to persons lawfully on its cars, caused by a certain “jolting and jerking,” when there is proof of jerks and jolts.</p>

Before Townsend, J., Lexington, February, 1898. Action by R. B. Gillman v. The Florida Central and Penninsular Railroad Company upon the following complaint (omitting the formal paragraph as to corporation, etc.): 2.

<p>1. ADVERSE Possession — Nonsuit.—-Testimony not sufficient to show adverse possession of lot in defendant for ten years, and nonsuit improperly 1 granted.</p> <p>2. Read Property — Common Source — Jury.—There is sufficient testimony here tending to show that both parties claim from a common source to carry the case to the jury. Methods of showing title indicated.</p>

Before Aldrich, J., December, 1897. Motion by defendant, Addison, for leave to answer after time, in action by Uucius McDaniel v. E. S. Addison, et al. From order refusing the motion, defendant, Addison, appeals. cite: 48 S. C., 565; 9 Rich. Eq., 462; 50 S. C., 403; 47 S. C., 205; 52 S. C., 134; 36 S. C., 538; Code, 195. n> 0 G cL n> “ I — 1 !£' P Q to to s? ^ GO W o §! 05 K CO ‘ O có Co i? O O Q, to S O Ol ^ ” Ox to OS -<r so so or ^ i-1 Or CO CO P P o so Ol i?

Before Watts, J., Spartanburg, Máy, 1897. Action by Elisha Bomar, William T. Russell, Jane Holtz-houser, as administratrix of Andrew Holtzhouser, and J. A. Lee & Son v. H. F. Means, Albert G. Means, sr., and his children, to set aside certain mortgages, &c., as frauds against creditors. From judgment for plaintiff, all defendants, except H. F. Means, appeal.

Before KLlugh, J., October, 1897. Action by F. R. Sandel v. The Atlanta Mutual Rife Insurance Company for statutory penalty. From judgment sustaining demurrer, plaintiff appeals. cite: Not necessary to allege contra formam statuti: N. Y. Ann. Code, 192; 21 Barb., 510; 3 N. Y., 190; 4 Denio, 469; 33 Ohio, 384; 15 Minn., 479. Error not to permit plaintiff to amend: 12 S. C., 1; 13 S. C., 441; Code, 194:, 197; 22 Cal., 127; 6 N. Y. Week.

<p>1. Corporations — Removal or Causes — Jurisdiction—Railroads. A foreign corporation operating a railroad in this and other States, which has complied with the requirements of the act of 1896 (22 Stat., 92), is under the Constitution of 1895 (art. 9, sec. 8), a domestic corporation, and cannot remove a case against it out of the Courts of this State to the United States Circuit Court, upon the ground of diverse ■citizenship.</p> <p>2. Practice — Appeal—Cross-Examination.—When a party on cross-examination brings out testimony to which he objected when brought out in chief, he cannot afterwards on appeal except to the admission of the testimony in chief.</p> <p>3. Appeal — Objection—Practice.—If on the trial testimony is objected to as cumulative, on appeal it cannot be excepted to as incompetent.</p>

Proceeding in the original jurisdiction of this Court by Diedrich Stehmeyer v. the City Council of the city of Charleston and the Charleston Night and Water Company, and the Cornelia Real Estate Company and the Queen Investment Company v. the Same, for perpetual injunction to restrain the city council from carrying out an executed contract with the Charleston Night and W’ater Company to establish a system of water works and a light plant to be purchased by the city.

Before Watts, J., Greenville, September, 1898. Action by W. L- Mauldin, for himself and other property owners in like plight, v. the City Council of Greenville, for injunction. From judgment for plaintiff, defendant appeals. cite: Power of legislature to pass the act: 3 S. C., 369; 4 S. C., 20; 102 U. S., 703. Constitution does not limit the legislature here: 15 S. C., 593; 4 S. C., 402; 27 S. C., 396; 6 S. C., 1; 21 S. C., 318; 7 S. E. R., 609.

<p>1. “Case” — Practice.'—This Court will accept as facts in a case only such facts as appear in the “Case,” and as are admitted on the record or in open Court.</p> <p>2. Custom — Usage.—Evidence of custom or usage is not admissible to prove an independent fact.</p> <p>8. Recording — Mortgages—Deeds.—The actual purchaser of a tract of land, before amendment of the registry acts in 1898, without actual notice of a mortgage thereon to master for balance of purchase money at judicial sale, which mortgage is not recorded within the forty days, takes the land freed from the mortgage whether his deed is recorded within forty days after delivery or-not. Mr. Justice Gary dissents. McNamee v. Hucabee, 20 S. C., 190, distinguished from this case.</p> <p>4. Limitation oe Actions — Adverse Possession — Charge.—An instruction that if one and his heirs had been in uninterrupted adverse possession of a tract of land for ten years that would give them title, is correct.</p>

Before Aldrich, J., Greenville, April, 1898. Action in foreclosure by Thos. B. Whitmire v. H. Y. Boyd, B. M. McGee, Frank Hammond, W. A. Fowler, J. B. Red-wine and W. A. Hudson, trustee. Held: if the defendant was liable on said note and mortgage at all, that such additional payment is not authorized by the terms of the said note; the testimony showing no facts which would entitle B. M. McGee to attorney’s fee. IV.

Before Gary, J., Florence, April, 1898. Action for partition and accounting, by Charlton W. Cain and Sallie J. Cain, by their guardian ad litem, v. Hattie C. Cain, administratrix of T. C. Cain, Furman, William, Ruth, and Fima Cain, and W. F. Rynch. From Circuit decree, the plaintiffs appeal. cite: Testimony as to rental value proper here: McM. Eq., 16; Id., 75. Occupying tenant must account for rental value: 52 Am. St. R., 911; 14 S. C., 292; 2 Strob. Eq., 160; Rich. Eq.

Before Klugh, J., Richland, November, 1897. Action by Jerome W. Powers v. Standard Oil Co., for damages for personal injury. From judgment for plaintiff, defendant appeals. cite: Non-suit should have been granted on account of admissions of plaintiff: 21 S. C., 542. cite: First exception too general: 30 S. C., 167; 43 S. C., 99; 48 S- C., 321, 431; 49 S. C., 357. Nonsuit will not be granted when there is any evidence tending to prove plaintiff'1 s case: 50 S. C., 556.

<p>1. Insolvency defined.</p> <p>2. Receiver. — The facts in this case did not warrant the appointment of a receiver.</p>

Before Gary, J., May, 1897. Action for partition by Warren V. Tyler, Theodosia A. Ott, L. Electra De Eoach, and John B. Tyler v. Braxton B. Williams and Morgan L. Gleaton. The Judge charged the jury as follows: As you have gathered from the arguments in this case, this is a case for the equity side of the Court.

Before Watts, J., Orangeburg, September^ 1897,; Action by Bailra V. Dash v. John H. Inabinet, administrator of John Inabinet, for nurse bill. From judgment of nonsuit, plaintiff appeals. cite: Nonsu,it improper where there is any testimony tending to establish material allegations of complaint: 16 S. C., 397; 22 S. C., 4: 38 S. C., 485: 41 S. C., 485; 44 S. C., 317; 43 S. C., 537; 29 S. C.-, 318; 35 S. C., 576.

Before Watts, J., Charleston, January, 1898. Action by John H. Devereux v. Edward McCrady and Thomas R. McGahan, executors of William McBurney, for accounting.

<p>COSTS. — Under the final judgment in this case, the costs are to be paid out of the proceeds of sale, and not by the defendant.</p>

Before Krugh, J., Lexington, February, 1898. Foreclosure by J. S. Verner, S. W. Melton, and Abney & Thomas v. Carroll Bookman, Walter S. Monteith, P. H. Haltiwanger, and Sallie A. Bookman. The Circuit decree is as follows: This cause, which is a suit for foreclosure, came on for hearing in this Court at fall term, 1897, upon the pleadings and testimony taken and reported by a referee.

Before Aldrich, J., Greenwood, December, 1897. Action by Samuel Wallingford & Son v. Western Union Telegraph Co., for damages for failure to deliver telegram. From judgment overruling demurrer, defendant appeals. cite: Loss alleged is not direct and proximate result of failure to deliver telegram: 9 Ech., 353; 94U.S.,469; Dud., 180; 2Sp.,550; 25 S. C., 70; 16 N. Y., 489; 41 N. Y., 544; 81 Ga., 285; 40 S. C., 524; 4 Am. St. R., 126; 31 Fed.

Before Aldrich, J., Greenville, March, 1898. Action by B. Berry Allen v. David K. Cooley and Thos. D. Cooley. The Circuit decree fully states the facts, as follows: After the argument of Mr. Cothran for the plaintiff, and Mr. Watkins for the defendant, T. D. Cooley, Mr. Graydon raised the objection for the first time that the notice of the application had not been personally served upon the defendant, D. K. Cooley, and that he could not be affected by the present proceeding.

<p>Before Buchanan, J., Orangeburg, January, 1898.</p> <p>Action by Julia F. Garrick, as administratrix of Jacob Garrick, v. Florida Central and Peninsular Railroad Company. From judgment for plaintiff, defendant appeals.</p> <p>The former cites: Admissions of agent incompetent: 4 S. C., 153; 19 S. C., 373. Trespasser on railroad track must look out for danger: 22 C. C. of A. R., 121; 87 Wis., 195; 58 N. W., 79; 44 Cen. Raw J., 10. Contribtitory negligence is simply otie of the contributing causes of the accident: 4 Rich., 228; 20 S. C., 221. No punitive damages in case of this kind: Rev. Stats., 2315 to 2317; 29 S. C., 303; 5 Wah, 90; 47 S. C., 373; 12 Stat., 825.</p> <p>cite: Declarations of agent within scope of his authority admissible: 1 Speer, 23; 18 S. C., 270; 39 S. C., 512; 42 S. C., 154; 23 S. C-, 529; 25 S. C., 133; 22 S. C., 556; 57 Am. R., 157. fitdge should not declare what facts constitute negligence, but simply define it: 21 S. C., 549; 41 S. C., 441; 46 S. C., 203; 25 S. C., 30; 29 S. C., 322; 41 S. C., 19; 47 S. C., 382; 31 S. C., 34; 40 S. C., 313; 49 S. C., 285; 21 S. C., 393; 51 S. C., 222. Third exception specifies no error, and will not be considered: 44 S. C., 546; 42 S. C., 125; 22 S. C., 271; 24 S. C., 280, 597; 46 S.' C., 95, 541; 43 S. C., 92; 52 S. C., 75. Under English Statutes, giving actions for damages for death by fault of another, pecuniary loss is the rule: 12 Am. St. R., 375. In this State, jury may give such damages as they think proper: 29 S. C., 303; 47 S. C., 383. The rule elsewhere: 18 Ad. & Ell., 93; 57 Me., 202; 29 Gratt., 570.</p>

Before Klugh, J., Richland, December, 1897. Petition by Theo. N. Kibler, as administrator of Sarah A. Newton, in re Geo. W. Parker and Rizzie McCarter v. Sarah A. Newton, to set aside judgment. From Circuit decree refusing to vacate judgment, petitioner appeals. cite: Jitdgments against lunatics are not void but voidable by action in equity: 32 Am. Dec., 70; 33 Me., 114; 50 Md., 214; 1 Rice, 56; 5 Strob., 132; Bail. Fq., 116.

Before Ardrich, J., Greenville, April, 1898. Action for possession and partition of real estate by Martha I/. Gilreath v. Mary G. Furman. From order overruling plaintiff’s demurrer to defendant’s answer, the plaintiff appeals. cite: For purposes of this demurrer, all allegations of the complaint must be taken as true: Code, 170, 189; 29 S. C., 286; 16 S. C., 586; 35 S. C., 172; 44 S. C., 227. Demurrer admits only facts well pleaded: 28 S. C., 396; 47 S. C., 184.

Before Keugh, J., Kershaw, September, 1897. Action for possession of real estate by Baum Bros. v. A. H. Bowen and John Counts. From judgment of nonsuit, plaintiffs appeal. cites: On doctrine of conversion: 22 S. C., 274; 23 S. C., 513; 46 S. C., 230; 5 Rich. Eq., 202; 23 S. C., 232.' cites: On construction of will: 22 S. C., 274. One tenant m common cannot maintain this kind of action against his cotenant; 3 McC., 205.

Before Buchanan, J., Greenville, November, 1897. Action by James H. Latimer v. Joseph P. Latimer and John H. Latimer, executors of Hewlett Sullivan, for damages for breach of warranty in a deed.

Before Aldrich, J., Greenville, March, 1898. Action by Wm. Lanahan & Sons v. Emma E. Bailey, trading under the name of the Bailey Liquor Company. From an order refusing to dissolve an attachment, the defendant appeals. cites: 13 Allen, 449; 36 Me., 322; 117 Mass., 591; 16 R. I., 622; 11 A. R;, 298. cite: Code, 253, 256.

<p>Before Watts, J., Barnwell, March, 1898.</p> <p>Action for damages to freight by L. M. Cave v. Carolina Midland Railway Company. From order sustaining demurrer, plaintiff appeals.</p> <p>cite: 21 Stat., 822; Ga. Code, 2084, 2317, 'et seq.; 29 S. E. R., 21; 23 S. E. R., 416; 15 S. E. R., 358; 104 U. S., 157; 48 Ga., 533; 23 S. W. R., 801; 14 S. R., 114; 26 S. C., 258.</p> <p>cites: 21 Stat., 822; 76 Ga., 597.</p>

Before-Aldrich, J., Laurens, October, 1897. Action by Bailey & Son v. W. L. Gray, on the following complaint: I. That the plaintiffs, Mercer S. Bailey and William J. Bailey, are and were, Jannary 2d, 1893, partners in business, under the firm name of M. S. Bailey & Son. II.

Before Atdrich, J., Chester, July, 1897. Held: and because, though a director himself, he had no notice of the “irregular and infrequent” meetings held. Plaintiff could not force the board to meet, and they did not have regular meetings; therefore, he had no chance to seek redress at the hands of the board.

<p>1. Partnership. — Under our statute as to limited partnerships, the amount contributed by each special partner must be specifically stated in the certificate.</p> <p>2. Ibid. — If the provisions of the statute as to limited partnerships are not strictly complied with, each special partner becomes liable as a general partner.</p> <p>3. Charge. — The construction of a paper by a Judge and instruction to the jury as to its legal effect, is not a charge upon the facts.</p> <p>4. Partnership — Limited Partnership. — Where there is a false statement made in the certificate under limited partnership act, the special partner becomes liable as a general partner, whether certificate in form complies with requirements of statute or not.</p> <p>5. Evidence — Partnership—-Limited Partnership. — Testimony as to partial payments out of partnership assets on partnership account admitted against a limited partner for individual liability.</p> <p>6. Discretion. — Leading Questions are within the discretion of the trial Judge.</p> <p>7. Partnership. — Act of Limited Partnership does not permit joint contributions by special partners.</p>

<p>1. Exceptions too general.</p> <p>2. Words and Phrases — Chatted Mortgages — Assignment.—The word “proceeds” in Circuit decree means the price actually paid by the mortgagees for the stock of goods, and that for which they must account, the mortgage being held to be an assignment.</p> <p>3. Accounting — Ibid.—Ibid.—Mortgagee taking possession of stock of goods under mortgage held to be an assignment, must account for accounts collected and interest thereon.</p> <p>4. Chatted Mortgages — Ríen—Assignment—Cdaims.—A mortgagee of a stock of goods, held to be an assignment can only prove claim against mortgagor for actual price paid for it, and a mortgage securing such claim is not lien on “proceeds” of goods.</p> <p>5. Assignment — Ríen—A Chatted Mortgage junior to one held to be an assignment is not a lien upon the property mortgaged in hands of mortgagee, who accounts only for “proceeds.”</p> <p>6. Remedies — Creditors—Assignment—Accounting.—The rights of creditors in a proceeding to declare a mortgage an assignment must be determined as they stood at date of decree calling them in, and not at date of mortgage.</p> <p>7. Ibid. — Rimitation op Actions. — A Creditor cannot plead the statute of limitations to a debt of his insolvent debtor, evidenced by a note given for a debt barred at date of execution of note.</p> <p>8. Homestead conceded an insolvent debtor out of assets in hands of chattel mortgagee, the mortgage having been held an assignment.</p> <p>9. Attorney’s Fees — Reference.—Order of reference to inquire and report counsel fee proper.</p>

Before Witherspoon, J., Charleston, November, 1897. Action by George W. Egan v. Henry Edward Bissell and Sarah H. Bissell. From order overruling demurrers and ordering issues to jury, plaintiff and Sarah H. Bissell, defendant, appeal. cite: Deed absolute cannot be varied except by agreement of both parties: 21 S. C., 400; 22 S. C., 10; 16 S. C., 352; 50 S. C., 171; 52 S. C., 54; 30 S. C., 144; 11 S. C., 56; 6 Rich. Eq., 48; 3 DeS., 149; 1 DeS., 333; 1 McC., 261.

Before Buchanan, J., Greenville, December, 1897. Action for specific performance of contract for sale of land by heirs of Irvine Davenport v. J. P. Datimer and Al- ' fred Johnson. cites: Complaint must allege compliance or offer to comply: 1 McC. Fq., 38; 3 S. C., 50; 21 S. C., 124. Incumbrance of which vendee had notice at time of purchase, no excuse for non-compliance: 1 DeS. Fq., 399. Vendee has waived defect of incumbrance: Rich. Fq., 432; 3 Strob. Fq., 16; 2 Rich.

Before Aldrich, J., Greenville, April, 1898. Action by Mrs. E. Garraux v. the City Council of Green-ville, for damages for changing grade of street abutting her lot. From judgment of nonsuit, plaintiff appeals. ci.te: Sec. SO, 19 Stat., 106, includes change of grade: 57 A. R., 4; 15 Ohio, 458; 54 Mo., 172; 8 Barb., 95; 29 N. J. L,., 353; 50 A. D., 709.

Before WATTS, J., Charleston, November, 1897. Action for damages for malicious prosecution by W. S. Whaley v. W. W. Lawton. From order refusing defendant’s motion to require plaintiff to make his amended complaint more definite and certain, defendant appeals. cite: Defendant did not waive the motion by answering: Code, 181; 34 S. C., 274; 11 S. C., 411; 12 S. C., 1; 22 S. C., 372.

Before Watts, J., Abbeville, January, 1898. Action in equity by Wm. H. Parker and other creditors of the Bank of Lowndesville, suing for themselves and other creditors, v. the stockholders of said bank, individually, and the assignee. Prom Circuit decree, all defendants, except assignee, appeal. cite: Corporate capacity of defendant savings bank was not alleged in complaint: 20 S. C., 463; 13 How. Pr., 227; 17 S. W. R., 134.

Before Hudson, J., Spartanburg. The order of nonsuit below is as follows: The railroad company is bound to discharge its duty faithfully and well to the traveling public, and is responsible for any damage inflicted by reason of negligence in this respect of its employees. If one be left by a train through the fault of those in charge of the train, the party thus left is entitled to an action for damages occurring directly and immediately from this neglect of duty.