Volume 54 — South Carolina Reports

Proceeding in original jurisdiction for injunction by the following petition: The State of South Carolina, in the Supreme Court. April term, 1898. Held: and the result of said election was declared to be that the said proposed new county had failed to receive the requisite number of favorable votes in all of the three sections of the three counties, respectively, embraced within the said three old counties.

<p>Petition for Rehearing Refused, without prejudice to the right of Mrs. Bissell to join with plaintiff in contesting issues before the jury — because:</p> <p>a. No material proposition of law has been overlooked or disregarded.</p> <p>b. The question of title raised by the answer should be determined by the jury.</p> <p>c. Denominating Mrs. Bissell “a nominal party merely,” only means she is identified in interest with, and co-operates with, the plaintiff.</p> <p>d. There is no error in failure to serve Mrs. Bissell with answer of IT. E. Bissell.</p> <p>e. Order framing issues does not preclude Mrs. Bissell from taking part in trial.</p> <p>f. There was no necessity for plaintiff or Mrs. Bissell to plead over or reply.</p>

Petition in the original jurisdiction of this Court by Henry Cleveland v. Arch. B. Calvert and others, constituting the city council of Spartanburg, to enjoin respondents from issuing $50,000 of municipal bonds.

Before Buchanan, J., Pickens, October term, 1897. Action for possession of real estate by Edney Hatton, T. Herbert Flatton, and Polly Valentine v. R. Frank Lenhardt, From judgment for plaintiff defendant appeals. Respondent precluded by probate sale: 33 S. C., 512; 2 Wall., 237; 26 S. C, 178; 50 S. C., 185; 34 S. C., 189. Court having jurisdiction of subject matter and parties, appellant’s title is valid: 3 S. C., 323; 25 S. C., 280; 16 S. C., 282; 35 S. C., 400.

Before Aldrich, J., Spartanburg, December, 1897. Action in claim and delivery by Rosa Zimmerman v. Geo. B. Dean, sheriff. From judgment for plaintiff, defendant appeals. As to first and second exceptions: 25 S. C., 275. As to third exception: 27 S. C., 421; 35 S. C., 208; Con. 1868, art, 14, sec. 8. As to first and second exceptions: 40 S. C., 234; 49 S.'C., 303; 46 S. C., 219; 34 S. C., 343; 44 S. C., 547. As to fourth and fifth exceptions: 51 S. C., 549; 2 Strob., 232.

Before Townsend, J., Laurens, October term, 1898. Action on note by John F. Bolt, as clerk of court, administrator de bonis non, with will annexed, of Jane Fleming v. William L. Gray, on following complaint: I. That heretofore, to wit: on the 3d day of October, 1882, the defendant, William L. Gray, Robert Gray, Joseph H. Sullivan, and Albert Dial, made their joint and several promissory note, whereby they, or either of them, promised to pay, one day after the date thereof,…

Before Benet, J., Horry, August, 1897. Action for damages for overflow of land by Mary E. Privett v. the Wilmington, Chadbourn and Conway Railroad Company, the Wilmington and Conway Railroad Company and the Wilmington, Columbia and Augusta Railroad Company. The following are the paragraphs of the complaint brought in question: IV.

Before Gage, J., Lexington, July, 1898. Action for possession of land arid for rents and profits by Godfrey Harman, Margaret R. Nichols, and Fred Harman v. James Harman. The complaint is in the usual form. The following are such portions of the answer'as are brought in question: 3. For third defense to the alleged cause of action, the defendant further alleges: 1.

Before Klugi-i, J., Fairfield, March, 1898. Action by Rob’t. H. Jennings, as clerk of Court, v. Henry L. Parr. From order permitting defendant to amend his answer, after case had been remanded for further proceedings, plaintiff appeals. Amendment could not be permitted now: 17 S. C, 207; 37 S. C, 135; 50 S. C., 318. Issues sought to be reopened are res judicata: 6 Rich. Eq., 302; 17 S. C., 274; 16 S. C., 627; 17 S. C., 39, 189; 19 S. C., 159; 50 S. C., 318.

Before Gary, J., Sumter, March, 1898. Action for partition by Henry N. Barnes v. Francis S. Rodgers. Defendant having claimed in her answer the land in fee, the issue of title was submitted to the jury, whom the Judge charged as follows: This is a suit in equity, brought on the equity side of the Court. The defendant’s answer denies that the plaintiff had title.

Before Witherspoon, J., Sumter, October term, 1897. Action for partition bjr the heirs at law of Thomas Garrett v. Rosa Weinberg and William Osteen. From judgment on verdict for plaintiff, and reversal of motion for new trial, defendants appeal, on following exceptions: ■First.

Before Gary, J., Greenville, spring term, 1897. Indictment against W. W. Robertson for murder. Defendant convicted of manslaughter and appeals. Malice cannot be presumed from the fact that the encounter arose out of the misconduct of the defendant: 57 Am. St. R., 337; 30 L. R. A., 407; 46 Am. St. R., 259; 60 lb., 17; 28 lb., 944; 28 Tex., 584; 134 111., no. Motion for new trial on ground of disqualiñed juror not too late: 1 Bay, 373; 36 Am. Dec., 527; 21 Am.

<p>Before Townsend, J., fall term, 1897.</p> <p>Foreclosure by J. W. Flolliday v. C. A. Hughes, F. D. Hughes, and W. H. Howell. From judgment for defendant Howell, plaintiff appeals.</p> <p>No citations on point ruled.</p> <p>No citations on point ruled.</p>

<p>1. Criminad Law — -Rape.—An unmarried girl cannot consent to sexual intercourse. Criminal Code, secs. 114 and 115, construed.</p> <p>2. Peeadings — Indictment.—When a defendant fails to require the solicitor to elect under which section of the Criminal Code he prosecutes, a general verdict of guilty will be sustained on an indictment with some allegations applicable to one section and some to another, when a portion of the charge is applicable only to one section.</p>

<p>Criminae Taw — Rape.—A boy between seven and fourteen years of age may be convicted of tbe statutory crime of tbe carnal knowledge of an unmarried woman under fourteen years of age (Crim. Code, sec. 115), if physical capacity to commit tbe crime be shown.</p>

Before Klugh, J., Lancaster, March, 1898. Petition by Benjamin Graham in the case of Pleasant M. Plyler v. Barbara Robertson et al., to enjoin sale of land by sheriff under execution. On 7th March, 1887, Samuel Robertson, being owner in fee of 500 acres of land, confessed judgment on a note to Pleasant M. Plyler, for $271, with interest at ten per cent, per annum.

<p>1. Costs — Words and Phrases. — -“Expenses of the action” means such items of costs and disbursements as are allowed by statute, and does not include traveling expenses.</p> <p>2. Ibid. — Ibid.—“Necessary Disbursements” does not include traveling expenses of plaintiff.</p>

Before Aldrich, J., Beaufort, September, 1898. Indictment against Walter Taylor and Isaac Taylor for obstructing railroad track. As to confessions, the jury were instructed in these words: “Now, as to confessions. It is for the Court to pass upon the admissibility of testimony, but it is for the jury to pass upon that confession, if it is true or correct.

Before Townsend, J., Lexington, February, 1898. Indictment against John Sheppard, Monroe Seay and Hampton Rawl. From verdict and sentence, defendants, Seay and Rawl, appeal. Indictment should have been quashed: 2 McC., 257. Indictment charging three different and distinct offenses, at different and distinct places, solicitor, should have been required to elect 24 S. C., 142. Cruel or unusual punishment shall not be indicted: Art. 1, sec. 19, and sec. 5 of Con.

Before Gary, J., Sumter, April, 1898. xA.ction by Martha E. Shiver vs. Wm. L. Arthur, Caroline W. Arthur, and Lander Porter. Held: that the burden of proof of showing that a new and independent transaction subsequent to the execution of the mortgage rests upon the grantee in such cases. Mr. Justice McGowan, who wrote the

Before Watts, J., Hampton, January, 1898. Indictment against C. G. Kendall for obstructing highway. From judgment on verdict of guilty, defendant appeals.

Before Gage, J., Lexington, June,-1898. Indictment against Izlar Jeffcoat and Ben Jeffcoat for unlawfully selling liquors. From order quashing the firsc count in the indictment, the State appeals. Dispensary Act of i8p6, sec. 43, art I., sec. 18, Con. 1895; art. I., sec. 13, Con. 1868; 45 S. C., 509; 42 S. C., 231. Art. I., sec. 18, Con. 1895; art. I., sec. 13, Con. 1868; 45 S. C., 509; Crim. Code, chap.

Before Gage, J., Cherokee, Sept., 1898. Action by W. J. Wilkins and other citizens of Gaffney City owning lots on Johnson street v. Town Council and Ohio River and Charleston Railway Co. From Circuit decree refusing temporary injunction, plaintiffs appeal. Pozoer to control the streets does not enable authorization of construction of steam railway along a street: 21 Stat., 1002; 10 S. W. R., 644; 18 At. R., 586; 24 Fed. R., 306; 10 Wall., 52.

Before Gary, J., Lexington, October, 1898. Action for possession of real estate by Sue A. Shull v. Frances T. Caughman, since deceased, and J. A. Muller, as administrator, cum test, annex0. When plaintiff closed her case in chief, upon motion of nonsuit by defendant, and then to dismiss the complaint, the trial Judge made the following order: This cause came on to be heard before me at the September term, 1898, of the Court of Common Pleas for Lexington County.

<p>Before Gage, J., Horry, March, 1898.</p> <p>Petition by Emaline Worlejr for homested in estate of her husband, Coleman Worley. From Circuit decree, the petitioner appeals.</p> <p>Rev. Stat., 2129, 2134; 2 S. C., 216; 30 Vt., 759; 47 P- St., 230.</p> <p>Rev. Stat., 2129; 49 S. C., 41; 19 S. C., 239.</p>

Before Klugh, J., Edgefield, November, 1897. Action in foreclosure by Interstate Building and Loan Association v. J. P. Ouzts. The Circuit decree is as follows: In November, 1889, J. P. Ouzts became the owner, by subscription, of five shares of stock in the Interstate Building and Loan Association of Columbus. Georgia, in what is known as series No. 5.

Before Buchanan, J., Charleston, April, 1898. Foreclosure by Joseph W. Barnwell, trustee and individually, and as agent and guardian, and Ann Josepha Wilson and Ellen F. Hayne v. Sophia Francis Shepherd Marion. From order overruling demurrers, defendant appeals. No valid sale in foreclosure withottt judgment: 21 Stat., 816. Such judgment can only be entered by parties in interest, the minors: 9 Rich. Eq., 324.

Before Gage, J., Kershaw, June, 1898. Indictment against J. H. Stephenson for rape. True bill found, and cause tried at February, 1898, term of the Court of General Sessions for Kershaw County. The jury did not agree upon, a verdict, and his Honor, Judge Townsend, ordered a mistrial entered.

Before Klugh, J., Laurens, July, 1898. Indictment against Charley Mason for murder. From verdict of guilty and sentence, defendant appeals. Constitution requires indictment to end, “against the peace and dignity of the State:” Art. V., sec. 31. Cases reported: r McC, 285, and 27 S. C., 615, are wrong, and should be overruled. Motion to quash similar to demurrer: Code, 74. Oral notice of appeal from order refusing oral demurrer stays further hearing: 24 S. C, 81.

Before Watts, J., Aiken, March, 1898. Action by G. Jones Baltzeger v. Carolina Midland Railway Co. for damages and to abate a nuisance. From order sustaining demurrer and dismissing complaint, plaintiff appeals. Nuisances: 81 A. D., 588; 54 A. D., 347; 3 S. C, 438; 47 A. D., 255; 108 U. S., 317; 24 A. D., 161; 15 A. S. R., 840. That the defendant is the ozvner of the land upon which the nuisance is maintained, is no excuse: 108 U. S., 317.

Before Klugh, J., Anderson, October, 1898. Indictment against W. H. and J. B. Tucker. From judgment reversing magistrate, defendants appeal. Rev. Stat. 1273 is special legislation, and obnoxious to sec. 34, art. III., of Con.: 93 N. C., 600; 51 S. C., 52. Said section is also inconsistent with stib. 3, sec. 11, art. XVII., of Con.: 47 S. C., 172. Rev. Stat. 1273, 1274, and 1276 zvere repealed by the county government acts of 1894 and 1893. (oral argument by latter).

Before Townsend, J., Fairfield, June, 1898. Proceedings by S. Fannie Keller.?/. I. F. Pagan, to eject tenant holding over. From judgment of Circuit Court, reversing magistrate’s judgment, plaintiff appeals. Magistrate had jurisdiction: 26 S. C., 212; 48 S. C., 183; 22 Stat., 791; 4 Strob., 52. Failure to deny in answer allegation in complaint admits it. Answer is necessary in magistrate court: Code, 88; 15 S. C., 460.

Before Townsend, J., Richland, April, 1898. Action by Florida Central and Peninsular Railroad against city of Columbia and J. Frost Walker, city treasurer, on the following complaint: 1.

Before Gary, J., Saluda, May, 1898. Indictment against Abe Coleman. From verdict and sentence, defendant appeals. Held: Bail. Eq., 51.1; 8 S. C., 45; 9 S. C., 156, 259; 29 La , 824; 35 Ind., 111; 44 Ind., 401; art. II., sec. 2, Con. 1893. Disqualifying act vacates office of clerk: 53 S. C., 173. And judge of probate to take office: Rev. Stat., 775- Title to de facto office may be attacked collaterally: 27 S. C., 440; 6 East., 366; 122 Mass., 443.

<p>Pleading — Indictment—Dispensary Law — Constitution.—A defendant cannot be convicted of selling liquor to B., under an indictment charging a sale to A., “and to divers persons, &c.” Sec. 43, dispensary act of 1896, authorizing a conviction under the charge in an indictment of a sale to “divers persons, &c.,” is unconstitutional.</p>

Before Benet, J., Spartanburg, April, 1898. Action for damages by Caroline Rakestraw against A. G. Floyd. From judgment for plaintiff, defendant appeals. Action for punitive damages is separate and distinct from action for actual-damage: Spellman v. R. R., 35 S. C. If paper were intended as a lease, Floyd not Lee would have signed it: Richey v. Dupree, 20 S. C. Contract creates relation of landlord and tenant: Carpenter v. Strickland, 20 S. C.; 21 S. C., 53; 40 S. C., 515.

Before Watts, J., Aiken. Indictment against K. J. Tyler for obstrucing neighborhood road. From verdict and judgment, defendant appeals. Merely traveling over a road for twenty years will not give the public an easement: 6 Rich., 396; 1 Bail., 58, 342; 2 Hill, 389; 1 McM., 329; Cheves, 1; 1 Spear, 20; 3 Rich., 85; 11 Rich., 263; 2 Strob., 62; 41 S. G, 1; 58 la., 567; 35 Kan., 717; 11 111. App., 513; 73 Me., 53.

Before Benet, J., Abbeville, June, 1898. Indictment against W. R. Bullock for forgery. From order quashing indictment, State appeals. Affidavit is not necessary to prove witness fees: Gen. Stat., 623; 21 Stat., 736. Writing in question included in definition of forgery: Crim. Code, 295. Solicitor may send out indictment without commitment by magistrate: 43 S. C, 112. Claim of a witness for fees must be established by affidavit: Gen. Stat., 623, 622, 605; Rev. Stat., 791, 642.

Before Klugh, J., York, spring term, 1898. Action on contract by J. B. E. Sloan & Son against Francis J. Pelzer, Wm. A. Courtenay, John R. London, Thomas C. Robertson and Allen Jones. Judgment was only asked against defendant, Courtenay, who filed the following' answer: 1. That he denies that, under the decree mentioned in the second paragraph of the complaint, the plaintiffs had the lien therein alleged. 2.

<p>Appear — Magistrate.—A Circuit Judge is not compelled to dismiss an appeal from magistrate’s court at second or subsequent term, unless it appear that the case was called at that or a subsequent term for trial, and that neither party brought it on for hearing, or had it continued for cause. Code, 366, construed. Bell v. Pruitt, 51 S. C., 344, distinguished from this.</p>

Petition to this Court in original jurisdiction by Ellison Capers, jr., et al., as members of the county board of education for Richland County, v. John P. Derham, as comptroller general of the State, for mandamus requiring him to apportion among the counties of the State certain dispensary funds in the State treasury.

<p>1. Practice — Juries and Jury Trials — Real Property — Legal Issues — -Partition.—Where issues of title are raised in partition between one defendant and plaintiff, and also between codefendants, both should be submitted to jury on issues raised by the pleadings.</p> <p>2. Ibid. — Circuit Judge — Partition—Legal Issues — Juries; an» Jury Trials. — When one Circuit Judge orders an issue of title raised by pleadings between plaintiff and defendant in a partition case submitted to the jury at the next term, the succeeding Judge may disregard such order and submit to the jury both such issue and one of like nature raised between codefendants by answer.</p> <p>3. Ibid.- — Surprise.—One defendant cannot be taken by surprise as to issues raised by answer of codefendant, which has been served on him.</p> <p>4. Limitation of Estates — Usufruct.—Deed conveying land to A, as trustee, “for the term of twenty years from and after the date of my death, for the sole use and behoof of my said children, or those of them who may be alive at that time, or their children per stirpes,” with power to collect rents and distribute, and to make sale after the expiration of the twenty years, and divide proceeds, held to carry the fee to grantee in praesenti; or it might be construed to be in trust, with usufruct to grantor for life. Watson v. Watson, 24 S. C, 228; Chancellor v. Windham and Law, 1 Rich., 161; Kinsler v. Clark, 1 Rich., 170; Dinkins v. Samuel, 10 Rich., 68; distinguished from this.</p> <p>5. Appeal. — Can a respondent in a law case on appeal from judgment on verdict ask this Court to sustain the verdict on additional grounds ?</p>

<p>Notes and Bills — Drafts—Checks.—A party having funds in hands of another subject to his order, cannot countermand the payment of drafts drawn by him on the funds so held, in absence of fraud, want of value, or similar grounds.</p>

Before Buchanan, J., Barnwell, July, 1898. Actions by Win. L. McFail v. Barnwell Co., and John Neal against same, for damages resulting from defective bridge. . From order changing venue from Barnwell County to Bamberg County, defendant appeals. 11 S. C, 34; 20 N. Y., 354; 10 S. C., 469; 1 D. S. E., 937; 17 S. C, 141; 7 How. Pr., 248; 44 N. Y. S.,' 288; 19 Wend., 10; 6 Cow., 389; 1 How.

Before Gary, J., Sumter, March, 1898. Action by Lina E. Joye v. South Carolina Mutual Ins. Co. on policy of fire insurance to recover value of stock of goods. The fire occurred on March 13th, 1897. Immediately after the fire the agent of plaintiff obtained a money order for amount of assessments past due, dated March 12th, and forwarded same to company.

Before Benet, J., Laurens, April, 1899. Application by James R. Mosely for homestead against judgment obtained against him in case of Scott & Noble v. Mosely Bros. From order setting aside return of appraisers laying off homestead to him, James R. Mosely appeals. Order setting aside return of commissioners raises question of law, and is appealable: 32 S. C., 167.

Before Ben jit, J., Marion, August, 1898. Action for possession of land by Elizabeth G. Gregg and W. C. Gregg v. S. E. McMillan and M. I. McMillan, executors of W. C. McMillan. From order sustaining demurrer to answer, defendants appeal. On main question: 15 S. C, 337; 39 S. C., 21; 18 S. C., 94; 50 S. G, 95. On main question: Rev. Stat., 1993, 1988; 15 S. G, 354; 31 S. G, 412; 2 Stroh. Ecp, 272; 13 S. C., 527; 14 S. C., 474.

<p>Gambling — Grain Futures — Remedies.—A party in this State, gambling in grain futures in Chicago exchange by an agent, cannot be required, under our statutes against «rambling, to repay his agent advances made for his benefit, on the ground that such agent acted with the Chicago trader as a principal and both had the bona fide intention to deliver the grain at the specified future time.</p>

Before Townsend, J., Laurens, October, 1898. Petition by Sim Anderson, asking for writ of habeas corpus, v. John Young, for possession of his minor children. Writ refused. Petitioner appeals. Mr. W. R, Richey, for appellant, cites: unless signed by infant: Rev. Stat., 2206; 5 Strob., 104; 1 N. & McC., 263.

Before Gary, J., Aiken, October, 1897. Actions for possession of real estate by Eva P. Rawls et al., v. C. H. Johns and Richard Newman. From judgments for plaintiffs, defendant in both cases appeals. The pozver of appointment in the trust deed was not executed as directed in the marriage settlement: 14 S. C., 539; 3 DeS., 417; 6 S. C., 198; 30 Am. Dec., 232; 39 Am. Dec., 63. Defendants may stand on as many titles as they set up: 1 Bay, 474; 7 S. C., 144.

Before Watts, J., Barnwell, April, 1898. Action in claim and delivery by V. C. Badham v. H. C. Brabham. From order, striking out answer, and giving judgment by default, defendant appeals. Answer is not frivolous: 2 S. C., 423; 4 How. Pr. R., 156; 15 Abbotts Prac. R., 346. There is no limited time in which motion for judgment on frivolous answer is to he made: 5 How. Pa., 247; 4 Wash., 369; 94 Cal., 665. Second exception too general: 51 S. C., 55.

Before Watts, J., Colleton, February, 1896. Action for partition by Sallie C. Fliers v. Paul W. Risher et al. From judgment directing partition, defendants appeal. Defendants having denied title in plaintiff, burden of proof was on her: 36 S. C„ 559. Holding by defendants is ouster of plaintiff: 2 Hill, 513; 3 Strob., 502; Rice Eq., 385. Issue of title set up by defendants must be determined before equitable issues: 36 S. C., 561; 12 S. C., 97; 28 S. C., 533.

Before Benet, J., Laurens, April, 1898. Foreclosure by People’s Loan and Exchange Bank of Laurens, S. C., v. John D. Garlington, John G. Williams et al. The Circuit decree is as follows, omitting- formal parts: This action was begun January 8th, 1895.

Before Gary, J., Charleston, August, 1897. Action for injunction by Lawrence P. McClellan v. George T. Taylor. The following is the agreement under which - defendant claimed the right of way: Articles of agreement for compromise of landing question at McClellanville, between George T. Taylor and the heirs of Archibald J. McClellan. First.

<p>1. Corporations — Voluntary Associations. — If an incorporated society permit its charter to expire, but keep up its organization and work, the individual members become the owners of its property and funds.</p> <p>2. Remedies — Ibid.—The right of,action for obligations due a voluntary association is in the members, or the officers as agents of the members.</p> <p>3. Ibid. — Ibid.—Official Bonds — Sureties.—Several members of a voluntary association may bring an action against' a defaulting treasurer and his sureties for benefit of all.</p> <p>4. Ibid. — Ibid.—Ibid.—Ibid.—The acceptance of the resignation of a treasurer of a voluntary association; and election of his successor without notice to his sureties, do not relieve them of liability for breach of his bond.</p> <p>5. Pleading — Practice—Answer.—When demurrer is overruled on Circuit, and no application is then made for leave to answer over, the judgment below may be affirmed, and leave granted to answer over.</p>

Petition in the original jurisdiction of this Court by J. H. Garrison v. the City of Laurens, the City Council, and Laurens Cotton Mills, as… Held: as is required by law, for the purpose of determining whether the citizens of the city of Laurens are in favor of the exemption of Laurens Cotton Mills from taxation, and the city council of Laurens has wrongfully gone beyond the powers conferred upon it by the Constitution and laws of this State, in passing the resolution and…

<p>1. Injunction — Practice.—When an action is brought for the sole purpose of obtaining a permanent injunction, and the facts as alleged in the complaint, if true, present a proper case for injunction, a temporary injunction should not be dissolved on motion on affidavits.</p> <p>2. Exceptions — Appeal—"Case."—In order to base an exception on the point that the Circuit Judge erred in dissolving a temporary injunction on motion, it is not necessary to show affirmatively in “Case” that such point was made before him.</p> <p>3. Railroad Bonds — Spartanburg.—Ordinance of Constitutional Convention relating to railroad bonds of Spartanburg only relieved the legislature of restraints put on it by that body, and did not purport to give it power to legislate facts into existence.</p> <p>4. Validating Act. — The Act of 1896 (22 Stat., 316), is not a validating act, nor was it passed in pursuance of the authority conferred by ordinance of Constitutional Convention. Validating act defined.</p>

<p>Before Gage, J., September, 1898.</p> <p>Action by Geo. R. Lombard, survivor of Lombard & Co., and M. B. Sturkey against F. M. Hendrix. Plaintiffs appeal from Circuit decree.</p>

<p>Dogs — Personal Property. — There is such a species of property in dogs as will support a civil action for their injury or loss. Wilson v. R. R., 10 Rich., 52, distinguished from this and explained.</p>

Before Klugh, J., Newberry, July, 1898. Action by Robert R. Millan against Southern Railway Co. From order permitting defendant to serve amended answer, plaintiff appeals. It is necessary to show merit in proposed amendment by affidavitf Code, 194; 21 S. C., 241; 2 Tenn. Ch., 344; 4 Johns. Ch., 375; 4 Jones Eq., 94; 1 Bland,, 150; 1 Md., 252; 10 Phil., 509; 13 Ga., 406; 83 111., 484; 33 Ark., 307; 32 Ark., 244; 5 Ind., 246; 17 N. J. Eq., 270; 5 N. J. Eq., 49; 5 Ga., 390.

Before Benet, J., Charleston, April, 1898. Action by Wm. C. Nohrden, as administrator of Harold Wm. Nohrden, against North Eastern Railroad Company. From verdict and judgment for plaintiff, defendant appeals. Error to charge that plaintiff could recover vindictive damages: 53 S. C., 448. Refusal to charge correct legal request error: 39 S. C, 108; 46 S. C., 203. Complaint must state beneficiaries deñnitely: Rev. Stat., 2316; 32 S. C, 142.

<p>1. Tort — Remedies—Railroads.—An action by a passenger against a railroad company for failure to carry her to her destination by reason of its negligence, is an action on tort and not one on contract.</p> <p>2. Damages — Negligence—Railroads.—Evidence as to damages resulting from exposure to a storm to which a passenger was subj ected by failure of railroad to carry her to her contract destination, is not too remote in action against it for such negligence. Mr. Justice Jones dissents.</p> <p>3. Ibid. — Evidence.—In an action for exemplary damages for intentional wrong, any testimony having even a remote causal connection between the wrongful act and the injury is competent.</p> <p>4. Torts. — General principles relating to torts stated. Quinn v. R. R., 29 S. C., 381, partly overruled.</p> <p>5. Negligence — Presumption—Jury and Jury Trials. — In action against a railroad for wilful negligence in failing to return a passenger on a round trip ticket, the jury may infer wilfulness from the fact that the railroad knew at time it sold the ticket that it could not return the passenger. Mr. Justice Jones dissents.</p> <p>6. Damages — Evidence.—In actions for exemplary damages, all testimony tending to show the information of defendant at time of act, is competent.</p> <p>7. Charge — Harmless Error. — Misstatement in charge of issues raised by the pleadings is harmless error.</p> <p>8. Negligence — Charge—Juries and Jury Trials. — When more than one inference may be drawn from testimony as to negligence, the question must go to the jury, and Judge cannot charge that certain facts constitute negligence.</p> <p>9. Negligence — Damages.—Charge upon negligence and damages excepted to, not objectionable.</p>

Before Watts, J., Greenville, September, 1897. Action by Samuel C. Gentry, suing for himself and other creditors of Charles H. Lanneau, against Charles H. Lanneau, Autorinetto Lanneau, and Charles H. Lanneau, jr., to set aside conveyance of land. From judgment dismissing complaint, plaintiff appeals. Deeds of gift by one largely indebted are fraudulent as to his creditors: 1 McC., 518; 1 Hill Ch., 304; 5 Strob. L., 205; 2 N. & McC.,54; 14 Rich. L., 100; 97 U. S., 307.

Before Gary, J., Aiken, January, 1898. Petition for homestead by defendant in G. K. Chaffee against G. T. Ransey. From order dismissing exceptions to appraisers’ return, because not filed in clerk’s office, plaintiff appeals. 22 Stat., 191; 20 S. C., 346. 17 S. C, 155; 20 S. C., 527; 37 S. C., 134; Rev. Stat, 2126; 14 S. C., 43; 20, S. C, 346; 15 S. C, 535; 7 S. G, 343.

Before Watts, J., Barnwell, April 27, 1898. Action by Julia R. Carroll against Charles B. Thomas, for possession of land. From judgment dismissing complaint, plaintiff appeals. Act of 1887 repeals the act of 1882: 13 S. C., 3; 14 Rich., 163; 11 Wall., 92; 2 B. Mon., 146; 33 At., 846; 55 Pa. St., 126; 3 How., 636; 2 Cir. Ct. R., 448; 16 S. C.,91; 49 S. C., 546; 17 S. E. R., 361.

Before Watts, J., Barnwell, April, 1898. Action for possession of land by heirs at law of M. A. Moody against F. H. Dickinson. From order sustaining demurrer to second defense, defendant appeals, and from order permitting defendant to- amend his notice of appeal, plaintiffs appeal.

Before Buchanan, J., Bamberg, July, 1898. Action by R. L. Hightower against Bamberg County for mileage for conveying prisoner to county jail. From order reversing magistrate’s decree,, plaintiff appeals. 20 Stat., 462; Rev. Stat., 859; 22 Stat., 474; 19 S. C, 158. (oral argument).

Before Benet, J., Orangeburg, September, 1898. Action in magistrate court by W. L. Whetstone against Leslie Livingston, on issue of amount due on agricultural lien. From order of Circuit Court dismissing appeal from magistrate court, defendant appeals. Motions for new trials must be made within five days from rendition of judgment: Code, 88, sub. 18; Code, 402. 19 S.C.,143,does not apply.

Before Gary, J., Sumter, April, 1898. Action for appointment of receiver for assets in this State of Bank of New Hanover, by Thomas Wilson for himself and other creditors, against Mary Keels, Bank of New Hanover, Junius Davis, receiver of said bank, and William H. Ingram, master of Sumter County.

<p>Application in original jurisdiction of this Court by J. C. Martin et al. for writ of certiorari directed to G. H. Moore et al., as county board of canvassers for Abbeville County.</p>

Before Gage, J., Chesterfield, April, 1898. Action by the State against the Cheraw and Darlington Railroad Company, on the following, complaint: The complaint of the plaintiff in this case shows : I. That the defendant is a corporation chartered by the General Assembly of this State, and running a railroad extending from the town of Florence, in Florence County, to the town of Cheraw, in Chesterfield County; that there are forty miles of said road, and valuing its roadbed,…

Before Townsend, J., Richland, May, 1898. Application by Mrs. Caroline S. Gibbes for homestead against judgment obtained against her in the Bank of Columbia v. J. Wilson Gibbes and Mrs. Caroline Gibbes. From order overruling exceptions to return of appraisers, plaintiff appeals. Art. III., sec. 28, Con.; 19 S. C., 243; 20 S. C., 249; 24 S. C., 36; 28 S. C., 521. 21 S. C., 381; 25 111., 610; 104 111., 104; Rev. Stat., 2126; art. III., sec. 28, Con.; 22 Stat., 190.

Before Gary, J., Darlington, April, 1898. Motion to dissolve an attachment in case of Bright Williamson v. Eastern Building and Loan Association of Syracuse, N. Y. The following is so much of the certificate as enters into the questions at issue: This certifies that Bright Williamson, county of Darling-ton, and State of South Carolina, is hereby constituted a shareholder of the Eastern Building and Loan Association of Syracuse, N. Y. Incorporated under the laws of the State…

Before Gary, J., Sumter, March, 1897. Action by Eva C. Kingman, trading as C. W. Kingman, agent, and Charles W. Kingman against Lancashire Ins. Co. From judgment for plaintiff, defendant appeals. Waiver cannot be shown unless alleged: 14 S. E. R., 731; 48 S. C, 388. Waiver must be intentional: 41 S. C., 183. Can zvaiver be relied on without pleading it: 43 S. C., 26; 46 S. C., 79.