Volume 57 — South Carolina Reports

Before Benet, J., Greenwood, April extra term, 1899. Foreclosure by W. E- Henderson against Eena Williams, R. R. Tolbert, Jr., and others. Tolbert appeals. Statute as to de bene testimony must be strictly construed: 29 S. C., 45; 15 S. E. R.,' 562; 17 S. E. R-, 849. Rule as to recovery of plaintiff in suit for possession of land: 15 S. C., 265. Substantial compliance with Rev. Stats. 2345 to 2347, is all required: 30 S. C., 133, 158; 54 S. C., 159.

<p>Before Gage, J., York, Chester, December, 1896.</p> <p>Action by Margaret A. McElwee against Elizabeth C. McGill, D. E. Einley, assignee of Kennedy Bros. & Barron, the firm and individual members thereof. Martha J. McGill, Mary B. Pressley, Exchange Bank, Joseph F. Wallace, surviving liquidator, and James R. Moss, Elizabeth C. McGill. D. E. Finley, assignee, and Kennedy Bros. & Barron, appeal.</p> <p>There being no fraud or mistake, Circuit decree is erroneous: 2 S. C., 113. Attorney must be employed: 16 D., 93 ; 22 D., 88. He may be required to produce evidence of the fact: 16 D., 93; 31 D., 7371 35 D-, 443- He cannot destroy client’s cause of action: 4 S. C., 10; 6 S. C., 406; 1 DeS., 469; 12 S. C., 509; 1 Hill, 185. Acceptance and release must be absolute — mere offer to do so not effectual: 43 S. C., 10.</p> <p>Releasing creditors entitled to preferences as against non-releasing: 29 S. C., 520; 35 S. C., 33; 38 S. C., 426; 43 S. C., 5. Acceptance and release cannot be executed after time fixed in deed: 35 S. C., 35; 39 S. C., 498. Attorney for creditors, not attorney in fact, cannot bind his clients: 39 S. C., 498; 6 S. C., 406; 4 S. C., 10. Piling acceptance and release is contract that cannot be opened zvithout consent of all: 1 Rich. Eq., 199; 19 s. E. R., 131.</p> <p>As to law of ■escrozv: 8 Rich. R., 328.</p>

<p>1. New Trial — Jurors—Public Policy. — Motions for new trials based on affidavit of jurors that they misapprehended the charge, will not be heard by this Court, because against public policy.</p> <p>2. Ibid. — After-Discovered Evidence. — New trial cannot be granted on after-discovered evidence, when the evidence is immaterial, and due diligence has not been shown.</p>

Before Townsend, J., Beaufort, September, 1899. Claim and delivery by Peter Jones against Barney Brown, in magistrate court. Prom order of Circuit Court, plaintiff appeals. Rev. Stat., 860, does not apply to actions in claim and delivery: 2 McC., 235; 1 S. C., 171; Code, 144, sub. 3; 5 S.E. R., 810. Magistrate’s jurisdiction in Beaufort Co. is limited and fixed: Acts, 1890, p. 813; acts, 1897, p. 472.

<p>Before Benet, jv Georgetown, June, 1899.</p> <p>Action by Julia B. Sparkman against Supreme Council American Legion of Honor. Defendant appeals.</p> <p>As to removal of the cause: 102 U. S-, 141; 104 U. S., 5, 14; 106 U. S., 122; 131 U. S., 240; 108 U. S., 212; 117 U. S., 430; 141 U. S., 589; 142 U. S., 459; 51 Fed- R-, 774; 77 Fed. R., 485; 148 U. 'S., 255; 129 U. S., 688; 119 U." S., 464. What is trial? Code, 273; 2 Mill. C. R., 155. As to irrelevant testimony: 42 S. C., 124; 29 Am. St. R., 603; 86 111., 479. The doctrines of zvaiver and estoppel as applied to old line insurance companies do not apply to such societies as defendant: 1 Allen, 294; 42 N. J. Ecp, 460; 12 C. E. Gr., 33; 6 Gray, 169; 26 Mo. App., 218; 78 Me., 541; 152 Mass., 272; 29 N. E. R., 1123; 153 Mass., 83; 50 111. App., 101; 50 M. A., 472; 4 Allen, 116; 14 Gray, 203; 3 Allen, 602, 360, 213; 144 Mass., 434; 146 Mass., 248; 152 Mass., 275; 29 S. C., 563; 96 U. S., 234, 572; 63 Md., 86. Otñcers of mutual insurance company cannot zvaive essential parts of contract unless expressly authorized: 4 S. C., 321; 93 U. S-, 24; 6 Gray, 173; 17 Mass., 29; 11 Cush., 265; 3 Gray, 589; 18 Mo. App., 189; 1 Allen, 294; 42 N. J. Eq., 460; 4 Allen, 116; 3 lb., 360, 602; 14 Gray, 203; 9 Allen, 329; 78 Me., 541; 144 Mass., 434; 152 lb., 275; 153 lb., 83; 28 At. R., 690; 22 Mo. App., 127; 32 lb., 312; 9 Allen, 329. The insured cannot rest upon a voluntary indulgence shown him at one time, or a number of times, as a ground for waiver of a condition of his certificate: 104 U. S., 252; 64 la., 134; 21 At. R., 80; 103 la., 643; 41 W. N. C., 291; 18 Ont. App., 335; 139 Pa., 546. , Collector of subordinate council cannot bind-supreme-council by-waiving prompt payment, and such acts are only binding on latter when notified by it: 117 U. S., 530; 29 N. E. R-, 1123; 153 Mass., 83; 22 Mo. App., 127; 27 S. C., 134; 39 S. C., 379; 37 S. C., 56; 47«-S. C., 147; 6 Rich., 508; 10 Rich., 337; 104 U. S., 258; 62 Md., 202; 53 Miss., 233; 29 S. C., 569; 29 S. E. R., 322; 40 S. W., 553; 72 N. W., 770; 40 Md., 572; 117 U. S., 519; 96 U. S., 240; 105 U. S., 355; 88 N. Y., 541; 95 Pa. St, 45; 58 lb., 443; 7 R. I, 429; 46 Wis., 671; 95 U. S., 427; 40 S. W. R., 557; 47 R- R-> 375; 28 N. Y., 177; 96 U. S., 572; 95 U. S., 326; 92 U. S., 380; 47 s. W., 533; 31 S. E. R., 902; 92 U. S., 380; 20 N. Y., 55; 2 Den., 75; 18 N. Y., 389; 33 N. J., 487; 8 Bosw., 597; 2 Daus, 480; 9 Cush., 473; 7 Cush., 175; 30 Pa., 314; 12 Gray, 265; 6 Gray, 173; 3 Gray, 589; 36 Md., 119; 13 Md., 329; 22 Mich., 467. As to ratification: 9 Pet., 607; 58 Pa., 452; 23 Conn., 244; 19 Barb., 440. As to imputed knowledge: 10 Rich., 293; 11 S. C., 408; 37 S. C., 100; 33 S. C., 473; 40 S. C., 151; 50 S. C., 259; 11 Wall., 367; 12 Cal., 377; 2 Hill, 451; 170 U. S., 156; 49 S. W. R., 644; 4 Paige, 127; 13 Da., 525; 24 Am. St. R., 227; 53 N. Y., 144. An agent may perform an act within the general scope of his agency, which is unauthorised because it violates his instructions in one or more particulars: 29 S. E. R., 322; 95 U. S., 427; 105 U. S., 355; 163 U. S., 288/ 117 U. S., 519; 96 U. S., 240; 41 Conn., 168; 66 N. Y., 274; 91 Pa., 387; 58 Ala., 476; 85 N. Y., 278; 35 N. E. R., 678. Knowledge of the agent here• cannot be imputed to the defendant: 170 U. S., 156; 49 S. W., 644; '95 U. S., 326. Judge should have charged all law applicable to the case: Con. 1895, art. V., sec. 26; 47 S. C., 488. Rule in North Carolina: N. C. Code, 413; 2 Dev., 452; 13 Ired.; 404; 65 N. C., 288; 78 lb., 523; 87 lb., 547; 93 lb., 523; 94 lb., 96; 104 lb., 800.</p> <p>Same rule as to waiver applies to mutual insurance companies as to old line companies: 55 S. C., 589. Modification of request as to agency applied only when agent zvas acting within scope of his authority: 93 Fed. R., 753. Propositions not specially requested cannot be excepted to for failure to charge: 54 S. C., 444; 32 S. C., 281; 15 S. C., 488.</p> <p>Motion as to removal of cause too late: 51 N. W., 310. Objecting party must state grounds: 51 S. C., 487. Party cannot object to testimony to which he refers in his examination: 53 S. C., 258. As to charge on waiver: 36 S. C., 216. Not error to refuse request on point already covered: 49 S. C., 304. Subordinate lodge and its officers are agents of supreme lodge: 39 S. W. R., 335; 44 Wis., 369, 376.</p>

Before Gags, J., Union, April, 1899. Action by Emslie Nicholson, administrator de bonis non of estate of F. G. Whitlock, against Mary Whitlock and his other heirs at law, and creditors. Rebecca E. Nicholson, as executrix, and Mary Whitlock, parties of record, and A. E. Hardin and W. E. Moorhead, creditors proving claims, appeal. The Circuit Judge says in reference to the bond held by Wm.

Before Gage, J., Greenville, August, 1899. Action by Susan Mitchell against R. D. Bates and J. P. Pool. Held: and erred in not so holding, that it is not the duty of the party making a motion for a new trial to give any notice to the adverse party; but that it is the duty of the magistrate, after the motion is made, to give notice to both parties of the time when and the place where he will hear argument on the motion.

<p>Before Gary, J., York, April, 1899.</p> <p>Actions by Lauraglenn Mills against A. T. Ruff; Same against A. Friedheim & Bro.; and Same against W. L. Roddy. The plaintiff appeals in all the cases.</p> <p>53 S. C., 584; 55 S. C., 98; 25 S. C., 356; 108 111., 362; no 111., 316; 42 Ga., 575; 43 Me., 404; 47 Me., 540; 105 111., 639; 8 Fed. R., 57; 32 Fed. R., 130; 13 Rich. Eq., 25; 22 S. C., 297.</p> <p>25 S. C., 348; 72 N. Y., ioo; 73 N. Y., 620; 18 N. Y., 199; 17 N. Y., 458; 90 N. Y., 353; 56 Ga., 563; 38 Fed. R., 807.</p>

Before Townsend, J., Pickens, April, 1899. Action by Hattie Bruce against Jefferson L. Moon.

Before Townsend, J., Barnwell, October, 1899. Motion by Earl S. Rountree, by his guardian ad litem, C. A. Best, to set aside attachment under lien warrant in W. W. Moore against Earl S. Rountree. Defendant, petitioner, appeals. Minor cannot make such contract: Rev. Stat., 2514; 3 S. C., 46; 20 S. C., 1; 34 S. C., 234; 62 N. W., 369; 32 Mich., 30; 42 N. E-, 647; 38 Am. R., 690. Minor could not be required to return advances, they being consumed: 56 Am. R., 38.

Before Watts, J., Laurens, October, 1899. Action to vacate a deed for fraud and for accounting by Joseph Pool against the members of the Sinking Fund Commission and W. A. Neal. From order overruling his demurrer, defendant, Neal, appeals. Mr. Tribble cites : Complaint does not state a cause of action against Neal alone: Rev. Stat., 351; 31 S. C., 547; 40 S. C., 1x4.

<p>1. Finding op Fact by Circuit Judge that lands were bought with money of estate, sustained.</p> <p>2. Evidence — Transactions with Decedent. — A husband cannot testify as to transactions with his dead wife.</p> <p>3. Finding op Fact — Cotenants—Writ in Partition. — Calculation of Circuit Judge as to shares of cotenants, and order dividing land in accordance therewith, sustained.</p> <p>4. Rents. — Cotenant not entitled to rents, under facts in this pase.</p> <p>5. Writ in Partition. — Circuit Judge is not required to direct in his order for issuance of writ in partition that commissioners be instructed in the alternative.</p>

Before -Townsend, J., Charleston, August, 1899. ’ Foreclosure by John E. Koster against Juanita P. Welch, James F. Redding, City Council of Charleston and John F. Ficken. Plaintiff appeals. Failure of consideration not being pleaded/should not have been considered: 40 S. C., 265; 47 S. C., 183; 53 S. C., 348. Reasoning of Circuit Judge is no part of his judgment: 52 S. C., 36; 54 S. C., 314.

<p>Before Benet, J., Barnwell, July, 1899.</p> <p>Action by M. M. Riley against The Bank of Allendale. Defendant appeals.</p>

Petition in the original jurisdiction of this Court for mandamus against Gaffney City, its officers, and Gaffney Manufacturing Company. Ordinance unconstitutional: 54 S. C., 449; 55 S. C., 551; 50 S. C., 337. Levies set tip in petition are valid: 50 S. C., 337; 55 S. C., 551; Con. 1895, art. X., sec. 13, acts 1896, p. 29. If not respondent cannot set up invalidity: 37 L. R. A., 371; 29 R. R. A., 526.

Before Townsend, J., Spartanburg, December, 1898. Foreclosure by The Mechanics Building and Doan Association against W. D. Fowler, his wife and daughter, and judgment creditors.

Before Brnrt, J., Oconee, June, 1899. Action by Edwin Marsh, survivor of Moore, Marsh & Co., against Andrew H. Ramsay, Alexander Ramsay, as executors of Alexander Ramsay, sr., and in their own right, and Geo. Julius Ramsay. Defendants appeal. Will converts realty to personalty: 46 S. C., 430; 5 Rich. Eq., 202. Plaintiff is not purchaser for value at time mortgage was executed, for it zvas only to secure old debt: 6 S. C., 159; 26 S. C., 512.

<p>1. School Tax — School District — Estoppel—Laurens.—A taxpayer of a school district being present and participating in a meeting to’ levy a school tax, is estopped from afterwards questioning the regularity of the proceedings.</p> <p>2. School Districts — Graded Schools — Constitution.'—Provisions of art. XI. of Con. of 1895 do not repeal the laws applying to the special school districts and graded schools in this State.</p> <p>3. Ibid. — Laurens—Constitution.—Acts (19 Stat., 1050, 20 Stat., 935, 1410), creating the’school district of Laurens, are not in contravention of arts. I. and XIV. of Con. of U. S. '</p> <p>4. Elections — Voting—Constitution—Viva Voce — School Tax.— Voting for a school tax in a special school district viva voce is not in violation of the constitutional provisions as to elections.</p>

<p>Before Krugi-i, J., Florence, September, 1899.</p> <p>Action by R. C. Saverance against W. J. Lockhart. Plaintiff appeals.</p> <p>Vendor must prepare and tender good conveyance: 6 Rich. Eq., 324. As to rights of vendee: 11 Rich. Eq., 225; 5 Rich. Eq., 370; 9 S. C., 265; 6 Rich. Eq., 284; 53 S. C., 572; 1 DeS-, 250. As to delay: 2 Hill Ch., 121.</p> <p>Plaintiff has never unconditionally offered to comply, and is guilty of laches: 53 s. c„ 563.</p>

<p>Before Keugh, J., Barnwell, July, 1899.</p> <p>Action by John S. Stoddard, executor, and Ellen M. Hardee, executrix of John E- Hardee, against Abel Aiken and the heirs at law of Liverpool Major. The plaintiffs are appellants.</p> <p>41 S, C., 16, 397; 14 S. W. R., 479; 27 S. C., 155; 8 S. C., no; 25 S. C., 314; 18 S. C., 585; 28 S. E. R., 312; 21 S. C., 623; 32 S. E. R., 1034.</p>

<p>Before Klugh, J., Charleston, April, 1899.</p> <p>Action by Sallie T. Marshall, administratrix of J. C. Marshall, against Charleston and Savannah Railway Co. Defendant is appellant.</p> <p>23 S. C., 226; 54 S. C., 95, 141; 36 S. C., 585.</p> <p>53 S. C., 215.</p>

Before Benet, J., Bamberg, April, 1899. .Action by C. Ehrhardt and Charles Copeland against J. S. Breeland. Defendant is appellant. Lack of qualification to sit as presiding magistrate renders judgment void: 19 Stat., 851; 34 S. C., 163. Certain prerequisites essential to issuance of any process in claim and delivery: Code, sec. 71, subsec. 11. Paramount and protected lien of landlord for rent: Gen. Stats., 1824; 36 S. C., 278.

<p>Before Klugh, J., Charleston, April, 1899.</p> <p>Action by I. M.- Mendelsohn against Banov and Volaski. Defendants are appellants.</p> <p>On main question: 41 Vt., 54; 3 S. C., 298; 33 S. C., 241; 28 S. C., 175. Oral demurrer will not lie to answer: Code, 174, 177; 16 S. C., 545; 29 S. C., 130; 30 s, C., 172.</p> <p>As to oral demurrer to answer: Code, 174; 16 S. C., 541. On main question: Rev. Stat., 2151; 5 Gray, 41; 2 M. & W., 248; 6 Exch., 130; 16 Conn., 246; 31 Ohio St. R., 586; 145 Mass., 361. As to the matter of defense: Code, 170, 171.</p>

<p>Before Klugh, J., Barnwell, July, 1899.</p> <p>Action by W. P. Wilcox against R. M. Bostick.</p> <p>78 Ala., 926.</p> <p>3 McC., 211; 16 N. H., 268; 1 Speer, 429; 37 S. C., 607; Code, 183; 51 How. Pr., 218.</p>

<p>Before Gary, J., Union, June, 1899.'</p> <p>Proceeding for dower in probate court by A. M. Pruitt against Juliett Pruitt. Decree of probate court is as follows :</p> <p>“Plaintiff commenced this action on December 1 ith, ‘ 1897, to recover for her own life, as her dower therein, one-third of the tract of land in county and State aforesaid, containing 113 acres, more or less, and the rental value thereof. The defendant pleads 'another action pending in bar.’ This plea is overruled, it not being made to appear in any way that another action is pending in any court between the same parties, or for the same matters, which could possibly in any way affect defendant. During the progress of the trial defendant offers in evidence an affidavit of W. Prank Pruitt, the husband of plaintiff (marked ‘Ex. C’), to show that he never owned the land in which plaintiff claimed dower; this affidavit was made in a suit to which plaintiff was not a party, after her inchoate right of dower had attached, after he had deeded the land to defendant for valuable consideration, and in an effort to set aside his own deed in- his own interest. I hold that the affidavit is not admissible, under Tibbetts v. Langley, 12 S. C., 465.</p> <p>“Plaintiff, in reply, offered in evidence verified answer and affidavit of defendant in the case of W. F. Pruitt v. Henry Smith and Juliett Pruitt, concerning this same land (‘Ex. D and F’). Defendant objected. This was record evidence, of the weightiest character, in direct reply to defendant’s testimony, though cumulative. I hold this to be good evidence, and admit it.' While admitting it, I do not consider it essential to support the findings and judgment hereinafter announced, as in my view they are abundantly supported by other evidence in the case. It appears that Thomas Gist deeded the land described in the complaint to W. Frank Pruitt, the then husband of the plaintiff, in fee simple, in January, 1869, who went into possession and Used the same for many years, living on it and cultivating it and improving it. In 1873, W. Frank Pruitt deeded said land to the defendant in fee simple for valuable consideration; no dower has been renounced by plaintiff, and on the 8th of April, 1892, W. Frank Pruitt died. This would certainly entitle plaintiff to her dower. To avoid this conclusion, however, defendant interposes two defenses: 1st. That she paid for the land when the deed was made to W. Frank Pruitt by Thomas Gist. She totally fails to make out this defense, and it would make no difference in the plaintiff’s rights if the father of W. Frank Pruitt had paid the money for the lands; the law says it was a gift to a son, an only child — 4 Rich. Eq., 322; 6 Rich., 282; 8 A. & E. Enc. Raw, 1334. And the undisputed testimony is that the father subsequently admitted ‘that the land was Frank’s.’ 2d. That the land was deeded to W. Frank Pruitt under an express agreement ‘That he was to convey it to defendant whenever she required him so to do.’ The testimony on this point was taken subject to plaintiff’s objection; it was entirely parol, and such an agreement with reference to land cannot be proved by parol; therefore, no competent evidence of this defense is before the Court; but even if such evidence was competent, it would not establish this defense; the great weight of the .evidence is the other way, the two deeds, the declaration of the deceased father, not considering her own affidavit, her own testimony contradicted by her own witnesses on material matters, as by witnesses for plaintiff. These two as well as all other defenses are overruled, and I hold that the plaintiff is entitled to her dower in the land, but not to rents or rental values, for the reason that she has slept upon her rights, in that she has delayed to bring this action, when there was nothing to prevent it, since the death of her husband in 1892.</p> <p>“It is, therefore, ordered, adjudged and decreed, that plaintiff is entitled to her dower in said land, and to have one-third thereof in value for life or one-sixth thereof in fee admeasured and set off to her for her said dower. And it is further adjudged, that a writ for the admeasurement of said dower do issue in accordance with law out of this Court, directed to five commissioners — two to be appointed by plaintiff, two by the defendant, and one by this Court — requiring them to admeasure and set off plaintiff’s said dower according to law; and if said dower cannot be done without injustice in said land, then a sum of money be assessed to be paid plaintiff in lieu of her dower interest. It is further adjudged, that the plaintiff have judgment for costs of this action. Jason M. Greer, Probate Judge. (Seal.) May 20th, 1898.”</p> <p>From said judgment the defendant appealed to the Circuit Court on the following grounds, and also served notice of motion for jury trial in said Court, which follows:</p> <p>“The probate judge erred: I. In overruling defendant’s plea of another action pending, and in holding that it had not been made to appear in any way that another action is pending in any court between the same parties, or for the same matters, or which could possibly in any way affect defendant. 2. In ruling that ‘Ex. C’ — an affidavit made by W. F. Pruitt and found in the record of W. F. Pruitt v. Henry Smith and Juliett Pruitt, to the effect that he held the title to the land in which plaintiff claims dower, not in his own right or beneficially, but as trustee- — -was not competent or admissible evidence, and in not considering same. 3. In not holding that said affidavit was admissible in reply to the plaintiff’s testimony that her husband’s father advised and consented to her husband’s purchasing the land from Gist, and that he paid for it; and also to the alleged declarations of W. F. Pruitt and of his father, proved by the witness, Lee; and in not holding that it was competent in any event. 4. In admitting in evidence and in basing his judgment upon the alleged declaration of C. P. Pruitt, testified to by the witness, Lee, that ‘it was Franklin’s land.’ 5. I11 admitting in evidence the affidavit and verified answer of defendant in the record in the case of W. F. Pruitt v. Henry Smith and Juliett Pruitt (‘Exs. D and F’), after he had ruled that the affidavit of W. Frank Pruitt, offered by defendant from the same record, was not admissible- — the said affidavit and answer of defendant not being in reply to the defendant’s evidence, and the defendant not having been interrogated about the same or the statements therein made while on the stand. 6. In holding that Thomas Gist deeded the land described in the complaint to W. Frank Pruitt in fee simple, in January, 1869; that he went into possession and used the same for many years, living on it, cultivating it, and improving it. 7. In holding that, in 1873, the said W. Frank Pruitt deeded said land to the defendant for valuable consideration. 8. In holding that the testimony offered by the defendant to the effect that the conveyance from Gist to W. Prank Pruitt was made under the express agreement that he (W. Prank Pruitt) .should convey said land to defendant whenever she required him to do so, was taken subject to plaintiff’s objections, that it was entirely parol, and that such an agreement with reference to land cannot be proved by parol. 9. In holding that no competent evidence was before the Court to sustain the defense that W. Frank Pruitt’s holding of the title to said land was not beneficially for himself, but as trustee to convey to defendant. 10. In not considering said testimony after admitting it. 11. In holding that even if the evidence introduced to establish that defense was competent, it would not establish said defense, and in holding that the great weight of the evidence is the other way. 12. In holding and adjudging that plaintiff is entitled to her dower in the land described in the complaint, and to have one-third thereof in value for life or one-sixth thereof in fee admeasured and set off to her for her said dower. 13. In not finding'that the purchase money for the land was paid by the defendant and her husband, and that deed was made to W. P. Pruitt by consent of defendant and her husband, and under express agreement that he should convey same to defendant, when required to do so by her. 14. In not holding that plaintiff is not dowable in said land because the beneficial interest therein never vested in W. P. Pruitt. 15. In holding that defendant interposed the defense that she paid for the land, when the deed was made to W. Prank Pruitt by Thomas Gist. 16. In ordering that the writ in dower be issued. 17. In giving plaintiff judgment for the cost of the action. 18. In not admitting and considering the testimony of W. A. Lancaster as to the conversation between said witness and W. F. Pruitt, in which W. P. Pruitt told him that his (W. P. Pruitt’s) father had paid for the land, and that he (W. P. Pruitt) held the title as trustee to convey to his mother — same being- competent in reply to alleged declarations of W. P. Pruitt and of his father, proved by plaintiff’s witness, M. B. Lee, -and in reply to plaintiff’s own testimony that her husband bought the land and paid for it, and that his father advised and consented for him to do so, and being competent also to show that W. F. Pruitt held titles to said land as trustee and not beneficially. You will please take notice further that upon the hearing of this appeal in the Circuit Court, we will ask that the issue of defendant’s title to said land, and of plaintiff’s right to dower therein, be referred to and tried by a jury.”</p> <p>Defendant appeals from Circuit decree.</p> <p>Testimony was competent to show that demandant’s husband was never seised of a dowable estate: 2 Bail., 318; 5 Rich., 525 ; 22 S. C., 451; 25 S. C., 337; 12 Rich. Eq., 214; 112 Pa. St., 168. As to resulting trust: 2 Hill Ch., 204; 23 S. C., 257; 1 Bail, 77. Defendant had right to have issues mentioned in her notice tried by jury: Con., art. I., sec. 25; Code, 60; 4 S. C., 37; 41 S. C., 195. Demandant not entitled to have one-sixth admeasured and set off to her as dower: Rev. Stat., I91/; 33 S. C., 268; 24 S. C., 355.</p> <p>Affidavit incompetent: 12 S. C., 465. An express trust cannot be proved by parol: 52 S. C., 393; nor deed varied by: 54 S. C., 344; 24 S. C., 124; 41 S. C., 162. As to rent: 16 S. C., 470. As to presumption of being rebuttable: 17 S. C., 489.</p>

<p>Petition for injunction and mandamus in the original jurisdiction of this Court by Robert A. Gilmer against James M. Hunnicutt, county supervisor, and F. W. Peiper and J. J. Haley, county commissioners of Oconee County.</p>

<p>Before Klugi-i, J., Orangeburg, 1899.</p> <p>Action by William Chavis against Wm. J. Chavis, Luther M. Chavis, Maria E. Gardner and Joshua O. Ulmer.</p> <p>The following is so much of the Circuit decree as pertains to' the construction of the deed:</p> <p>It appears that Rachel Patterson, the mother of Sarah Chavis, conveyed to her said daughter the lands which are the subject of this litigation by a deed dated August 2, 1864. This deed was recorded on July 10, 1869, by the register of mesne conveyance for Orangeburg County. The decision of this controversy depends upon the construction of the said deed. (-See opinion for deed.) It is manifest from an analysis of this deed that, first of all, a life estate by implication or construction of law is granted to Sarah Chavis. The language of the grantor is: “I do grant, bargain, sell and release unto my daughter, Sarah Chavis, three tracts of land.” At common law, a conveyance to a grantee without a limitation to his heirs, creates a life estate. 2 Minor Inst. (2d ed.), 89. And this is the well established doctrine in South Carolina. McMichael v. McMichael, 51 S. C., 557, and cases cited. In the second place, the deed (in the “condition”) expressly bestows upon Sarah Chavis a life estate: “I give the said tracts of land to my said daughter, Sarah Chavis, upon the following conditions, that my said daughter shall hold and enjoy said lands during her lifetime.” This is the exact quantum of the estate already bestowed upon her by the granting clause. The deed, in the third place (in the same “condition”), gives to the children of Sarah Chavis an estate in the following language: “And after her (Sarah’s) death, to go to all her children.” This is also a life estate by implication, there being no word of inheritance to indicate an intention in the grantor to confer a greater estate. The language here used cannot be construed to create a fee conditional in Sarah Chavis. The words “all her children” are co-extensive with the primary signification of the words “heirs of her body,” and might be so construed if it were necessary to do so in order to effectuate the intention of the grantor. Archer v. Ellison, 28 S. C., 242. But no such necessity exists, and such a construction is forbidden by the terms of the deed. The intention as expressed by the language of the grantor is that the children of Sarah Chavis shall take a life estate in succession to and not in conjunction with her. The case falls within the third resolution in Wild’s case, 6 Coke, 17. Reader v. Spearman, 6 Rich. Eq., 92. If the deed had stopped here, there would have been a reversion, by implication, after the termination of the two life estates, to the grantor or her heirs. But the deed goes on, after setting forth the condition prohibiting control of the husband, and the further condition for the grantor’s support, which last constitutes the valuable consideration for the deed, to confer upon the grantee the largest possible enjoyment of the estate so granted, as if the grant were of the fee, “together with all and singular the rights, members, hereditaments and appurtenances to the said premises belonging or in anywise incident.” Then comes the habendum, “To have and to hold all the premises heretofore mentioned, unto the said Sarah Chavis, her heirs and assigns forever,” completely sweeping away any idea of revision in the grantor; and as if to make the intention more certain and absolute, she binds herself and her heirs against all persons lawfully claiming or to claim the same, or any part thereof, a warranty imperfectly expressed but effectual to estop herself and her heirs from asserting any manner of claim to the premises. The effect of this habendum is to enlarge the estate'conveyed by the granting clause in the premises into a fee simple, in accordance with the third principle deduced by the Chief Justice and laid down in his dissenting opinion in the case of McLeod v. Tarrant, 39 S. C., 280, which is approved in the case of McMichael v. McMichael, 51 S. C., 558: “Where there are no words of inheritance in the premises, in which case the grantee would take only a life estate by implication, then resort may be had to the terms of the habendum to ascertain the quantity of the estate intended to be conveyed, and those terms may, if sufficient, rebut such-implication.” The deed then vests a fee simple estate in Sarah Chavis. Apparently the grantor attempted by way of a condition to exclude the husband from any interest in the land, by declaring that the daughter should enjoy said lands for her lifetime, and after her death they should go to all her children, and should be in no wise subject to the debts, contracts or engagements of her present or any future husband; but she also had in mind the intention, and it was her uppermost thought — the very purpose for which the deed was made— to convejr away from herself the fee simple and to vest it in her daughter. This is manifest from the terms used, construing all parts of the deed together, and from the circumstances surrounding the parties — a mother desirous to confer a benefit upon her daughter, and at the same time to make provision for being herself supported and cared for in her old age by that daughter. The attempt to exclude the husband, therefore, only resulted in creating a separate estate in the wife over which the husband had no control during her lifetime. Franklin v. Creyón, Harp. Eq., 250. It did not limit the fee nor prevent its descent, according to the established rules of law. The purpose expressed by the condition is secondaiy to the main intention of the grantor, which is to be gathered from the entire deed; and so far as the condition is inconsistent with or repugnant to such intention, it must be disregarded. Moore v. Sanders, 15 S. C., 440. This is true, no matter in what portion of the deed the condition occurs. If the condition in this deed be transposed to its orderly place among the parts of the deed, after the habendum, it becomes apparent how irreconcilable it is with the main purpose of the grantor. Such transposition is permissible in searching for the intention of the grantor. McCozvn v. King, 23 S. C., 235. With such change the deed reads as follows : “I do grant, &c., unto my daughter, Sarah Chavis, three tracts of land * * * together with all and singular the rights, members, hereditaments and appurtenances to the said premises belonding or in any wise incident * * * to have and to hold all the premises heretofore mentioned unto the said Sarah Chavis, her heirs and assigns forever. I give the said tracts of land to my said daughter, Sarah Chavis, upon the following conditions, that my said daughter shall hold and enjoy said lands during her lifetime, and after her death to go to all her children. The same to be in no wise subject to the debts, contracts or engagements of her present husband, or any husband she may hereafter marry,” &c.</p> <p>With respect to the condition for the grantor’s support, it is sufficient to say that it was a condition subsequent, and no question arises upon it. So far as appears to the contrary, it was faithfully performed by the grantee. At all events, the qualifications annexed by it to the estate of the grantee and any right of forfeiture to the grantor upon condition broken, died with the grantor. Returning to the first “condition,” it is evident that, so far as it can be said to be a condition at all, it, too, is a condition subsequent. “A condition is a qualification annexed to an estate, whereby it is to arise (in which case it is called a condition precedent, that is, precedent to the arising of the estate,) or is to be defeated (when it is styled a condition subsequent, that is, subsequent to the arising of the estate,)” 2 Minor Inst., 224; see, also, Hammond v. Railroad, 15 S. C., 32. Certainly, this condition cannot be said to precede the arising of the estate of Sarah Chavis; in other words, the arising or creation of her estate is not dependent on the performance of anything required by this condition. The intention of the grantor was to give to Sarah Chavis an estate in fee simple, and this intention is expressed in direct and absolute terms. The condition is an effort to set limitations upon the fee simple, by which it is to be cut down to a life estate in the grantee, followed by a life estate after her death in her children. This exceeds the powers of the grantor with reference to the estate granted. “An estate in fee simple is the entire and absolute property of the subject, and, therefore, when one grants such an estate, he can make no further disposition of the property, for he has already granted the whole and entire interest that is possible for him to have.” 2 Minor Inst., 72. So when the grantor attempts to carve out of a fee simple already granted a life estate to arise upon the death of the grantee, and to invest the same in another, she attempts to do that which she has herself put it beyond her power to do. The condition is inconsistent with the estate granted-, and is void. If we consider the clause in question along with that which immediately follows it, prohibiting the control of the husband, it might be taken to be a condition subsequent— equivalent to the grantor’s saying that the estate given to her daughter was to be in no wise subject to the debts, contracts or engagements of the present or any future husband, and if such control by him were at any time permitted or attempted, then the estate should go to the children. If that construction were adopted, then it is not claimed that such condition was ever broken by Sarah Chavis or her husband; therefore, the title remained in her till her death, when it descended in accordance with law. Forfeitures are abhorred, and all conditions working forfeitures are construed strictly. Hammond v. R. R. Co., supra. Therefore, the Court will construe this deed so as to preserve the estate in the grantee, unless it is absolutely necessary in carrying out the plain intention of the grantor to give it a contrary construction. Even if we reject the habendum entirely, as being inconsistent with the condition, and as indicating less plainly than the condition the true intention of the grantor, then we will have an estate for life in the grantee, with remainder for life in her children, and the reversion of the fee in the grantor, which descended at her death to her heirs. So far as appears, her daughter, Sarah Chavis, was her only heir, and the fee thus became vested in her by descent, tier life estate could not merge in the fee, for the life estate in her children was an intermediate estate; but there was nothing to prevent the fee from descending to her heirs; and so, in this view, William Chavis is entitled to one-third of the fee, subject to the life estate of his children. It may be that his right to partition, if this construction is adopted, would be postponed, because of the lack of unity of possession with his children, who are now in possession as life tenants. Cannon v. Lomax, 29 S. C., 369. But this would be to deny also to the children the right of partition which they have already attempted to exercise. And besides, the life tenants have not only excluded him from the possession; which, in the view now under consideration, they have the right to do, but they absolutely deny that he has any rights in the premises, and have taken steps, by a partition between themselves of the fee and the conveyance of a part of the premises to strangers, etc., to destroy his interest. He, therefore, has the right to have this Court interpose its powers to protect and secure his interests, and to afford him such relief as will give him a present enjoyment of his property, which otherwise must be postponed to a period when, in all probability, he will be beyond the enjoyment of earthly endownments. The inconvenience of such a construction is apparent. It is less reasonable also, and embodies less perfectly the intention of the grantor, than that which preserves the habendum at the expense of a part of the condition. If there be any doubt as to the intention to grant to Sarah Chavis a fee simpie, there can certainly be no doubt of the grantor’s intention to provide for herself maintenance, support, clothing and nursing during her lifetime. The condition which she annexes to the grant for this purpose accomplishes it perfectly, if the deed gave to Sarah Chavis a fee simple; for it is a condition subsequent which accompanies the fee during the lifetime of the grantor, and if broken at any time by the grantee or her heirs, operated a forfeiture, and gave to grantor the right to re-enter and take back the estate to her self. If, however, the grant to Sarah Chavis was of a life estate merely, subject to this condition for the grantor’s support, and followed by a life estate to the children of Sarah Chavis, without such condition annexed to it, then the grantor’s provision for her own support was precarious, and dependent on her daughter surviving her. She could not claim a forfeiture of the children’s life estate, once they came into possession of it, for the condition extended not to them. The-contention that this is a trust deed, or that it is a covenant to stand seized to uses, cannot be sustained. There is no element of either character to be found in the deed. It is a conveyance of a fee simple, qualified by conditions, the first of which was inconsistent with the estate granted, and, therefore, void, and the others have been discharged by the deaths of the grantor and grantee.</p> <p>Defendants appeal.</p> <p>20 S. C., 428; 17 S. C., 536; Strob. Eq., 102; 28 S. C., 129; 35 S. C., 314; 4 McC. Ch., 498; Harp., 492; 47 S. C., 293; 51 S. C., 555; 1 Hill Ch., 265; 15 S. C., 442; 19 S. C., 531; 23 S. C., 235; 28 S. C., 242; 3 Rich. Eq., 277; 21 S. C., 368; 13 S. C., 119; Bail. Eq., 227; 11 S. C., 306.</p> <p>Harp. Eq., 350; 45 N. Y., 703; 39 S. C., 273; 32 S. C., 223; 51 S. C., 558; 20 L. R. A., 847; 23 S. C., 235; 34 Am. St. R., 163; 3 Burr., 1533; 5 T. R., 13, 292; 25 S. C., 289; 3 Hill, 194; 28 S. C., 242; 20 S. C., 428; 2 Strob. Eq., 102.</p>

Before Klugi-i, J., Greenwood, September, 1898. Action by E. M. Lipscomb & Co. against Rufus Goode, Jackson Goode, Frederick Goode, Geo. H. Taylor, and Thomas Waller. The Circuit decree is as follows: This is an action for foreclosure of a mortgage of real estate. It was referred to the master to take the testimony and report it to the Court.

<p>Before Klugi-i, J., Charleston, March Term, 1899.</p> <p>Action by Fritz Horres, sr., against The Berkeley Chemical Company. The defendant appeals.</p> <p>Measure of damages to grozmng crops: 3 Tex. App., 461; 82 N. C., 292; 10 S. W. R., 575; 11 lb., 123. Speculative damages are not recoverable: 1 McC., 584; 2 Speer, 550; Dud., 185; 10 Rich. Ecp, 232; 25 S. C., 68; 38 S. C., 284; 51 S. C., 480.</p> <p>Rule■ of evidence in actions in tort: 38 S. C., 288; 25 S. C., 70; 54 S. C., 503; 19 S. C., 70; 17 S. C., 73; 15 S. C., 31; 2 McC., 277; 53 S. C., 410. As to zuaiver of objections to testimony by introducing testimony of the same kind: 51 S. C., 229; 52 S. C., 1. As to the measure of damages to grozving crops: 13 Am. R., 438; 34 N. Y., 634; 25 Am. R., 140; 27 Am. R., 19; 61 Am. Dec., 758.</p>

<p>Before Aedrici-i, J., Horry, June, 1899.</p> <p>Motion by defendants in case of Solomon G. Lewis and Wm. H. Small against Quincy Hinson, John Williamson, W. W. Jordan, Melvin White, Curtis Williamson, B. H. Hinson, and M. D. Elliot and wife. Movants appeal.</p> <p>On main question: Code, 98, sub. 2; 42 S. C., 488; 47 S. C., 117.</p> <p>The former cite: Whether costs paid is question of fact submitted to Judge by consent, and this Court cannot review: 3 S. C., 591; 5 S. C., 201; 22 S. C., 313; 42 S. C., 138; 44 S. C., 300; 40 S. C., 115; 39 S. C., 39, 175; 37 S. C., 419. ■</p>

<p>Before Klugi-i, J., Charleston, March, 1899.</p> <p>Action by W. S. Whaley against W. Wallace Lawton. The first defense is as follows:</p> <p>“I. That the plaintiff herein, on or about the day of May, A. D. 1897, commenced an action in this honorable Court, by the service of a summons and complaint on this defendant, wherein and whereby he sought damages from this defendant on five separate and distinct causes of action; the first two of which, actions for damages for false arrest and imprisonment, were identical with the causes of action set out and contained in the complaint now served upon him, and to which he is now answering; the remaining three being for damages for malicious prosecution. II. That by an order of this honorable Court, filed the 19th day of July, 1897, sustaining a demurrer to the said complaint, on the ground that several causes of action were improperly united, it was ordered, ‘that the plaintiff elect, within twenty days from the service of notice of this order, and so advise the defendant, upon which of the several causes of action set out in his complaint he elects to go to trial.’ III. That in pursuance of said order, the plaintiff did, on or about the 6th day of August, 1897, elect to go to trial one the III., IV. and V. causes of action contained in his said complaint, and so advised this defendant, and amended his complaint by. striking out therefrom the said causes of action numbered I. and II. causes of action for false arrest and imprisonment, which he now attempts to sue upon in a separate and distinct action. All of which will more fully appear by reference to the record of the cause, entitled W. S. Whaley v. W. Wallace Lawton, on file in the office of the clerk of this honorable Court. IV. That under the said order of July 19th, 1897, the plaintiff is barred and estopped from bringing the said action.”</p> <p>The order appealed from is: “In this case, the first defense contained in the defendant’s answer, viz: That the plaintiff is barred and estopped from bringing the said action. After full argument, I cannot find this to be the effect of Judge Gary’s order, filed in the previous case between the same parties, now also pending in this Court, and filed 19th July, 1897. I, consequently, overrule this defense, and overrule the motion to dismiss the complaint filed the 10th February, 1899.”</p> <p>The defendant excepts on the following grounds:</p> <p>“Because his Honor erred in not holding that the order of Judge Ernest Gary, dated the 19th day of July, 1897, requiring the plaintiff to elect upon which cause of action he would go to trial, was a bar to his bringing the action for false imprisonment. 2. Because his Honor erred in not holding that the identical statement of facts being alleged as the basis for the action for malicious prosecution, and the action for false imprisonment, as appears by the allegations of the several complaints, original and amended, served upon the defendant by the plaintiff herein, such identical statement of facts cannot sustain both actions; and the action for malici-. ous prosecution, brought under the order of his Honor, Judge Gary, of July 19th, 1897, founded on such statement of facts, pending, the plaintiff is barred and estopped from bringing this action for false imprisonment.”</p> <p>As to the order of Judge Gary being a bar to this action: Code, 193. As to the pendency of the action for malicious prosecution being a bar to this action: 2 McM., 273; 29 S. C., 186; 39 N. Y. Sup., 830.</p> <p>Pendency of suit in United States Court is not bar to same suit in State Court, and vice versa: 93 U. S., 548; 3 Wall., 345. Prom one wrong may spring different rights of action: 14 Q. B. D., 141; 10 Barb., 656; 8 Allen, 454; 8 Gray, 397; 2 Bail., 2x4. As to actions for malicious prosecution and false imprisonment: 97 Mo., 390; 70 N. W., 935; 14 Pa. St., 496. Order of Jiidge Gary not a bar to this suit: 24 S. C., 476;54 S. C., 181.</p>

<p>Before Aldrich, J., Kershaw, fall term, 1899.</p> <p>Action by D. R. Fletcher against South Carolina and Georgia Extension Railroad Company. Defendant appeals.</p> <p>The latter cites: The doctrine of comparative negligence has never been recognised in this State: 4 Am. St. R., 379; 56 S. C., 95; 32 Am. St. R., 18. The R. R. is not held to a stricter account than persons crossing its tracks: 56 SC., 95; 56 Am. R., 242. Plaintiff cannot maintain this action after condition broken of bill of sale executed by him: 48 S. C., 406; 45 Am. Dec., 446; 13 N. Y., 565.</p> <p>Judge cannot say what facts constitute negligence: 19 S. C., 39; 51 S. C., 296, 453; 52 S. C., 438, 778, 498; 55 S. C., 180; 41 S. C., 1; 25 S. C., 25; 29 S. C., 303; 35 S. C., 493; 30 S. C., 219. Whole charge must be construed together: 37 S. C., 335; 41 S. C., 440; 43 S. C., 132; 46 S. C., 541; 50 S. C., 405; 45 S. C., 156; 22 S. C., 159; 19 S. C., 575; 22 S. C., 191. As to contributory negligence: 55 S. C., 397, 150, 189; 51 S. C., 238. Charging request in substance is sufficient: 28 S. C., 29; 38 S. C., 199. As to the bill of sale: 43 S. C., 202; 20 S. C., 17, 514; 15 S. C., 88; 26 S. C., no, 331; 23 S. C., 292; 32 S. C., 365; 48 S. C., 405; 28 S. C., 459; 42 S. C., 121; 63 la., 206; 13 Kan., 438; 36 Am. Dec., 586; 2 B. Mon., 19.</p>

<p>Before Benet, J., Charleston, January, 1899.</p> <p>Action by Henry Baker against M. Hornick and S. Rittenburg. So much of the charge of the Circuit Judge as pertains to the cpiestions raised is as follows:</p> <p>In an action of this character, gentlemen, malice is the principal element. The ground of the complaint is an alleged malicious prosecution, and such an action may be brought to recover damages sustained by the plaintiff by reason of his having beeen prosecuted for some crime or offense by a defendant, or at the instance of the defendant, from malicious motives, and without probable cause. There are three essentials which must concur before a malicious prosecution can be successfully maintained, and I ask your close attention to these three, that you may apply them as tests to the evidence in this case and decide whether or not the plaintiff has made out his case. And upon all three the burden of proof is upon the plaintiff to establish each of the three, and all three by the preponderance of the evidence, by the greater weight of the testimony, so that the jury will be satisfied that each of the three has been proved. First, it must be affirmatively shown that the plaintiff was prosecuted through malicious motives. Second, that the prosecution was without probable cause; and third, that the prosecution had ended, either by an acquittal or a judgment in the plaintiff’s favor, before the commencement of the action for damages, or that the prosecution had been abandoned and the cause dismissed before the commencement of the action for damages. You will bear in mind that the burden of proof is upon the plaintiff to establish these three requisites as facts. Not merely to establish one of them, or two of them, but all three; and should he fail to satisfy the jury as to one of them, he could not and should not get a verdict, and the defendants would prevail. It is important, therefore, that the jury should clearly understand what is meant by malice, in what is called a malicious prosecution; and also to know what is meant by want of probable cause, and to have a clear idea of what is meant in law as a termination of the prosecution, or an abandonment of the prosecution, and I shall endeavor to make these three essential requisites clear to you. First, then, as to malice. As technically used in legal definitions, malice is by no means the same as malice spoken of in common conversation, which usually means simply ill-will, hatred, animosity, or some similar feeling. A man may prosecute another with the bitterest animosity, the fiercest hatred, a most violent ill-will, and yet be entirely free from the malice without which there can be no malicious prosecution; because malice in law is not simply a rancor of the mind; envy, hatred and malice are separate and distinct passions, and the worst of these is malice, because — and now mark my words — it is a deliberate purpose to do an injury to some person without just cause or excuse. I repeat it: malice in law is the deliberate purpose to injure another without just cause or excuse; it means the willing act of an evil mind, the intention to wrong another unjustly; it implies the making -up of the mind to do evil to some one. Therefore, any indirect motive or wrong is a malicious motive. For example, if one sets the criminal law in motion against another, not for the purpose of bringing that other to justice for the violation of some law, but for the purpose, for instance, of aiding the prosecutor to collect a debt, a jury might well consider that that was evidence of a malicious motive, because the criminal law was not designed to aid creditors in the enforcement of payment of debts, and he who sets the criminal law in motion for such a purpose should smart for it, and in a proper case would be made to smart for it. I trust you clearly understand now what is meant by the malice which must be present as the motive in a malicious prosecution. That malice, or malicious motive, must be proved to the satisfaction of the jury by the greater weight of the testimony. It is not necessary that malice be expressly shown — for instance, by proof of threats or the like. Malice may be implied, it may be inferred from circumstances — for example, malice may be inferred in a prosecution, if the prosecution is one without probable cause. If a jury are satisfied from the testimony that the prosecution was wholly without cause, or without probable cause, they may infer, and justly infer, that it was prompted by malice. That would be a presumption or inference; being merely a presumption, may be removed and made to disappear from the case by sufficient and competent testimony showing that - even without probable cause there was no evil intention, no deliberate purpose to do wrong, no malice; it may have been on misinformation. But nothing else appearing, the want of probable cause would justify an inference of malicious intent, malicious motive. It is, of course, impossible to formulate and lay down an}*- general rule, any rigid test by which the question of what constitutes malice in a prosecutor may be determined. The question arises in each case, and must be decided by the circumstances in each individual case; and you alone can determine from the testimony in this case whether there was malice in the alleged prosecution, and you must determine that according to the testimony in the case. You alone can decide whether there was or was not malice in the alleged prosecution. But it is safe to say, and I so charge you, that the facts from which malice is found, the evidence by which malice is proved, must be such as to satisfy any reasonable man that the prosecutor had no ground for the prosecution, except his evil desire to injure the accused.</p> <p>So much, then, for malice. We now come to the second requisite in a malicious prosecution — that is want of probable cause. And I charge you that probable cause is such a state of facts and circumstances present in the mind of the prosecutor at the time of issuing warrant, as to lead a man of ordinary intelligence and caution and prudence, acting conscientiously, fairly and without prej'udice upon the facts as he believes them, or as he believes he knows them, to believe the person accused to be guilty. Probable cause, therefore, is something more than merely ground for suspicion, or even reasonable ground for suspicion. In addition to that, there must be such an appearance of facts and circumstances as would warrant and justify a man of ordinary intelligence and caution and prudence in believing that the person accused was guilty of the offense or crime charged. Probable cause, I would say by way of illustration, is the measure of proof which justifies a grand jury in finding a true bill. That is to say, the existence, or the seeming existence, of such facts and circumstances as, nothing else appearing, would warrant a reasonable man and a prudent man in believing that the person accused was guilty and should be tried. The State is bound to furnish a grand jury with probable cause, before that jury can find a true bill against a man. It does not mean that they try the man and find him guilty; but they simply say if this evidence be true — and only one side is heard, the State’s side — if this evidence be true, this man should be tried; upon these facts he must be guilty, if they be true. That furnishes probable cause. I have already said that the want of probable cause is an essential element in a malicious prosecution, and the plaintiff, therefore, is bound to prove that there was no probable cause for the prosecution. That looks like requiring him to prove a negative, which is supposed to be in logic a very difficult thing to do. It is almost equivalent to asking a plaintiff to prove that he was innocent of the charge, and the law does not usually require a man to prove his innocence ; but on the civil side of the Court, when he alleges that he has been prosecuted from malicious motives and that there was no ground for the prosecution, he must prove that there was a want of probable cause, that the prosecution was without probable cause. It must be borne in mind, gentlemen, that proof of malice, no matter how strong or complete or convincing, cannot take the place of proof of want of probable cause. Clear and satisfactory proof of malice will not supply the lack of proof of want of probable cause. And note this also, gentlemen, want of probable cause must not be inferred or implied from proof of malice, although, as I have already charged you, malice may be inferred from the want of probable cause. One who accuses another of crime may act upon appearances; and if the facts, or what seems to him to be the facts, are such that a man of ordinary intelligence and caution and prudence, acting conscientiously and without prejudice, would under the circumstances be led to believe, or be warranted in believing, that the person accused was guilty, the accuser or prosecutor will be justified in such prosecution, even though the appearances had misled him, although they were, in fact, no just ground for prosecution; because one may be deceived or misled by appearances. But if he has acted only under the effect of such misleading or deception, and even though the accused was innocent, the accuser in such a case could not be justly held liable for damages for malicious prosecution, having acted upon appearances, and honestly acted upon appearances. But a prosecution based upon mere conjecture or suspicion, or groundless suspicion, would justly render a prosecutor liable for damages; because there must be reasonable ground for the suspicion, and it must be strengthened by circumstances and facts, or what seemed to be facts, sufficiently strong to lead a man of ordinary prudence and intelligence to believe in the guilt of the accused. And this is right. No man should with impunity set the criminal law in motion against another and deprive him of his liberty, even for a brief period, upon slight suspicion or mere conjecture that he has committed thé offense charged. Nor is it sufficient that the prosecutor should believe in the guilt of the accused; mere belief is not sufficient to justify a criminal prosecution, because there must be reasonable or probable grounds for that belief. If there be probable cause, it is immaterial what were the motives of the prosecution' — whether it was a desire to sub-serve the interests of public justice, or to gratify private spleen or personal revenge, or any other improper motive. Clear proof of probable cause, of the existence of probable cause, makes it unnecessary to inquire further into the motives of a prosecution; and where probable cause exists, there can be no ground for a malicious prosecution. It is manifest, therefore, gentlemen, from all I have said, that this question of probable cause is a mixed question of law and fact. It is the duty of the Court to define, as I have endeavored to do, probable cause; it is the duty of the jury to apply the law to the facts in evidence and determine the question, was there a want of probable cause? or did the probable cause exist ? The third requisite, which must concur with the other two as a basis to maintain an action for damages for malicious prosecution, is the termination of the prosecution or charge, or the abandonment of the charge or prosecution. As to this, it is enough for the purposes of this case to charge you, in view of the evidence submitted, that if the accused has been arrested and committed, or held to bail for his appearance at Court, and is discharged by the prosecuting attorney or solicitor, without any true bill, or any bill or any action by the grand jury whatever, that is a sufficient termination to meet the acquirements of a complaint like this. This complaint alleges that the said charge, complaint and prosecution, and each of them, are wholly ended and determined in favor of the plaintiff. It is not necessary, as I have just said, that the grand jury should have acted, or that they should have found a no bill, or, if they had found a true bill, that the plaintiff should have been tried and acquitted. That would be a termination; but a verdict and judgment on the merits of the charge are not necessary. It is enough, if the case has been dismissed by the Court, or abandoned by the prosecution, or if the case has been formally discharged by the solicitor, or the case formally dismissed by the order of the Court, that is a sufficient termination of the case to comply with the requirements of pleading in a complaint of this character.</p> <p>The action is one for damages, and in a case of this nature, if the jury decide to find for the plaintiff — in other words, if they decide that he has made out his case, that he has been a victim of malicious prosecution — then they are not limited in estimating the damages to the actual damages proved or sustained, but they are at liberty, in their sound discretion, if the facts proved justify it, to award exemplary or punitive damages, as I have explained — not, as I said, to enrich the plaintiff, but to a certain extent to punish the defendant. The jury, therefore, are at liberty, in estimating damages, to allow for injury to reputation as well as to person, and injury to credit in a business man, to compensate for wrong and indignity suffered by a plaintiff, and to indemnify for wrong done to a plaintiff’s feelings; and as to the amount of damages, the jury is the sole and proper judge, limited only by the amount claimed. In this case, if you come to the conclusión that the plaintiff is entitled to damages, no matter if the plaintiff may satisfy the jury that he should be paid more, or that a larger sum than the amount claimed should be awarded, you cannot go beyond the amount claimed; that amount, or any amount less, is wholly within the province of the jury to determine.</p> <p>My charge thus far has shown what is required to be proved by the plaintiff in a case like this, and I have attempted to explain the theory of damages applicable to a case like this. I shall now add a few words as to the defense proper in an action of this character. It is a good defense in an action of this character that there was probable cause. If the evidence shows that there was probable cause, that ends the matter; the investigation may stop there, and the verdict should be for the defendants. So, also, the defense is complete if the action of the prosecutor of the defendant was not the result of malice; if he was not actuated by malice, and the question of probable cause does not depend on whether the accused is guilty or innocent, but upon the belief of the prosecutor and upon the grounds of that belief. It is quite conceivable that an innocent man may be prosecuted, and prosecuted vigorously. It is also conceivable that the prosecutor may have acted towards that innocent man with hatred and ill-will; but if the prosecutor, acting upon appearances, and believing honestly that the facts and circumstances justified him in considering the innocent person guilty, in that case he could not be liable for damages for malicious prosecution, because he would not be actuated by malicious motives. I have already said more than once that a prosecutor is entitled to act upon appearances; and if the appearances be such that they would lead a man of ordinary intelligence and discretion to believe that the accused had committed the crime or offense charged, in that case the prosecutor would not be liable in damages, even though the accused were wholly innocent. If, therefore, there be an honest belief in guilt, and if there be reasonable grounds for such belief, the prosecutor will be justified, and not liable in damages. But mere belief in guilt, standing alone, is no justification — there must be reasonable or probable grounds for the belief; and I charge you, if there was probable cause for the prosecution, the defendants cannot be held liable in damages, even though they were actuated by improper and malicious motives, if there was probable cause. A defendant may defeat an action of this chatacter by proving the existence of probable cause, or by proving that the prosecution was free from malice. It is obvious, therefore, that if probable cause is shown, the absence of malice need not be shown; but where there is a failure to prove probable cause, then proof of malice would be indispensable.</p> <p>A good deal was said in your hearing about the advice of counsel, in a case of this character, in advising the prosecutor. I charge you that a defendant in a case like this may endeavor to rebut the presumption of malice by proof that he acted under the advice of counsel. He is allowed to show that he communicated to his counsel, his lawyer, all the facts, or what seemed to him to be the facts, bearing upon the guilt or innocence of the accused, which were known to him, or which he might reasonably have information of, and to show also that, acting upon his lawyer’s advice, he brought the prosecution, and that he acted solely on the advice of his counsel, and from no improper motives. That would be a complete defense, and would justify the finding for the defendant in a proper case. You are to say whether this is such a case or not. The testimony is before you, and you are to say what weight it deserves. The'whole advice of counsel is evidence intended to rebut the presumption or imputation of malice; but where malice is expressly proved, the advice of one’s lawyer will not free a defendant from liability — that is, where malice is expressly proved.</p> <p>Now, gentlemen, shall I take up your requests to charge?</p> <p>For the defense, your Honor, they seem to have all been covered, except the 12th, which we will ask you to take up.</p> <p>Anything from counsel for the plaintiff ?</p> <p>Only on the question as to lawyer’s advice, sir.</p> <p>Continuing, his Honor said: I have said that a defendant is allowed to show that he acted on the advice of counsel, allowed to tell what he said to counsel as to facts, or appearanee of facts, that induced him to bring the prosecution, and to show that, acting on his lawyer’s advice, he brought the prosecution, and that he acted solely upon the advice of counsel, and from no improper or evil motives. Not the mere fact that he acted on the advice of counsel — that is not sufficient. It must be also shown that he acted on no improper motives. Advice of counsel is to go to the jury with all other evidence.</p> <p>Counsel for the plaintiff withdraw their requests to charge.</p> <p>Plaintiff appeals on following exceptions:</p> <p>1. Because his Honor erred in instructing and charging the jury as follows: “So, also, the defense is complete if the action of the prosecutor of the defendant was not the result of malice, if he was not actuated by malice; and the question of probable cause does not depend on whether the accused is guilty or innocent, but upon the belief of the prosecutor, and upon the grounds of that belief.”</p> <p>2. Because his Honor erred in charging the jury as follows : “He is allowed to show that he communicated to his counsel, his lawyer, all the facts, or what seemed to him to be the facts, bearing upon the guilt or innocence of the accused, which were known to him, or which he might reasonably have information of, and to show also that, acting upon his lawyer’s advice, he brought the prosecution, and that he acted solely on the advice of his counsel, and from no improper motives. That would be a complete defense, and would justify the finding for the defendants in a proper case. You are to say whether this is such a case or not. The testimony is before you, and you are to say what weight it deserves. The whole advice of counsel is evidence intended to rebut the presumption or imputation of malice; but where malice is expressly proved, the advice of one’s lawyer will not free a defendant from liability — that is, where malice is expressly proved.”</p> <p>3. Because his Honor erred in defining probable cause as follows: “The State is bound to furnish a grand jury with probable cause before that jury can find a true bill against a man. It does not mean that they try the man and find him guilty; but they simply say that if this evidence be true— and only one side is heard, the State’s side — -if this evidence be true, this man should be tried, upon these facts he must be guilty, if they be true. That furnishes probable cause.”</p> <p>4. Because his Honor erred in charging the jury as follows : “There are three essentials which must concur before a malicious prosecution can- be successfully maintained; and I ask your close attention to these three, that you may apply them as tests to the evidence in this case and decide whether or not the plaintiff has made out his case. And upon all three the burden of proof is upon the plaintiff to establish each of the three, and all three by the preponderance of the evidence, by the greater weight of the testimony, so that the jury will be satisfied that each of the three has been proved. First, it must be affirmatively shown that the plaintiff was prosecuted through malicious motives. Second, that the prosecution was without probable cause; and third, that the prosecution had ended, either by an acquittal or a judgment in the plaintiff’s favor before the commencement of the action for damages, or that the prosecution had been abandoned and the cause dismissed before the commencement of the action for damages. You will bear in mind that the burden of proof is upon the plaintiff to establish these three requisites as facts.”</p> <p>As to probable cause: 64 Tex., 320. As to advice of counsel: 15 S. C., 401.</p> <p>Plaintiff must shozv malice or improper motive: 98 U. S., 192; 1 N. & McC., 168; 16 S. C., 398. As to want of probable cause: 98 U. S., 194; 1 N. & McC., 278; 5 S. C., 476; 29 S. C., 400, 187; 36 S. C., 375; 22 S. C., 5; 32 S. C., 328; 31 S. C., 343. What is probable cause: 3 Strob. L-, 581. As to advice of counsel: 44 S. C., 165; 16 S. C., 398.</p>

<p>Before Townsend, J., Colleton, September, 1899.</p> <p>Action by Catherine C. P. Glover against Charleston and Savannah Ry. Co. Defendant appeals.</p> <p>As to what evidence will support punitive damages: 34 S. C., 324; 35 S. G, 486.</p> <p>The latter cites: Appellant cannot complain of charge, because it is too favorable to it: 50 S. G, 52. This Court cannot consider an appeal from an order refusing a new trial: 53 S. G, 210; 25 S. G, 174. As to what testimony will support vindictive damages: 52 S. G, 323; 29 S. G, 388; 33 S. G, 427; 35 S. G, 488, 504.</p>

<p>Before Klugh, J., Beaufort, May, 1899.</p> <p>Action by A. H. Heyward against C. A. Williams and Amelia Williams, H. M. Comer & Co., Wulburn & Co., M. Hornick & Co., Phillips & Meyers, Lowenburg, Pincus & Co., and John'K. Garnet. C. A. Williams and Amelia Williams are appellants.</p> <p>As to what is cause of action: 40 Ala., 148; 28 Barb., 330; 4 Bing., 704; 26 How. Pr., 507; 83 N. Y., 160; 102 111., 272. Oral demurrer proper pleading here: 24 S. C., 39; 10 S. C., 101; 9 S. E. R., 802; 14 S. C., 573.</p> <p>The alleged defect is not failure to state q cause of action, but want of legal capacity: 14 S. C., 583; Eederal Cases No. 13682'; 3 Crouch., 319; 18 S. C., 588; 32 N. Y., 43. Want of legal capacity must be objected to by answer or demurrer, and, if not, waived: Code, 165, 169; 3 Brev., 59; 2 N. & McC., 64; 4 McC., 344; 31 S. C., 164; 14 S. C., 583; 11 Mass., 256; 1 Pick., 81; 2 Met., 114; 51 S. C., 165. Assignee of foreign executor can sue here: 2 Pet., 239-</p>

<p>Before Gage, J., Greenville, July, 1899.</p> <p>Action by E. A. Smalley, administrator of Oscar Smalley, against Southern Railway Company. In granting the motion of nonsuit, the trial Judge said:</p> <p>“In its last analysis it is is left for me to say whether or not there is any proof of negligence in this case. It is a motion for a nonsuit; and if there is any evidence in my mind going to show the want of ordinary care, it is my duty to submit it to the jury. But if in my mind there is no evidence of ordinary care, it is my duty to decide it now. In its last analysis it is a matter of opinion resulting from ascertained facts. -One man may be of the opinion from ascertained and admitted facts that they led to one conclusion; another man may be of the opinion that they led to another conclusion. Now, in my mind, my honest judgment, the testimony does not show a lack of ordinary care on the part of the defendant, and it is my duty to say so here and now, and that is my honest judgment. A railroad is held to a certain degree of care, ordinary care, but it has got the right of way; and if another man asserts that right and takes the road, and the railroad sees him, the railroad must stop; but that is not the charge. The charge is that being in 800 feet of the party on a straight track, and the engineer on his box, that the engineer ought to have seen the man, where he had no right to be — at least, he did not have the same right there as the railroad had; and I am asked to assume that a railroad running on its own track, 800 feet from the man, I am asked to assume that the engineer on his box ought to see the man. I do not think so. I know that the engineer has something else to do, too, than to watch the track, and the fireman has to feed the box. It is practically to make him an insurer of the right of way of which he has the right to. Now, that is the law in the case. If I was not satisfied of my position, 1 would be less slow to take this view, if I thought it had less justice in it; but I must take this view, and if I held otherwise, I would be subjecting my honest judgment to a pretext. Those being my views, the motion for nonsuit is granted.”</p> <p>The plaintiff appeals on following exceptions :</p> <p>“I. His Honor erred in striking out that portion of the testimony of J. H. Southern to the effect that there was ‘a good deal of travel’ along the foot planks of the defendant’s trestle; it being submitted that this testimony was competent as tending to affect the amount of care which should have been exercised by the defendant’s agents in crossing said trestle.</p> <p>“II. He erred in holding that the evidence does not show a lack of ordinary care, and in granting a nonsuit on that ground; it being submitted that he should have held that the question was not whether the evidence showed a lack of ordinary care, but whether it tended to show a lack of ordinary care; and he erred in not holding that the evidence tended to show a lack of ordinary care, and in not refusing the nonsuit on that ground.</p> <p>“III. He erred in holding that he was asked to assume that the engineer ought to have seen Oscar Smalley upon the track; whereas, he should have held that this was a question for the jury, and that there was evidence tending to show that the engineer or defendant’s other agents did see Oscar Smalley upon the track, and that this evidence tended to show that the}'- saw that he was in a dangerous position; he erred in not leaving these questions to the jury, and in not refusing a nonsuit.</p> <p>“IV. It is submitted that the plaintiff’s testimony tended to show that the train came to a stand at a railroad junction about 800 feet from the place where Oscar Smalley was lying in an apparently helpless condition, that the track was straight, and the view unobstructed, and that said Oscar Smalley was in plain and open view of the engineer and fireman on defendant’s train, and the engineer was in his usual place where he could see the track; it is submitted that the Judge should have left it to the jury to say whether these facts tended to show that Oscar Smalley was seen by the defendant’s agents, and that his condition was known to them, and whether the failure to make any effort to stop the train till too late was not negligence on the part of the defendants. He, therefore, erred in not so holding, and in not refusing the nonsuit on this ground.</p> <p>“V. It is submitted that the evidence tended to show that the defendant’s agents saw Oscar Smalley before the collision in time to have stopped the train by the exercise of reasonable precautions, and that they saw that he was in a dangerous position, from which he might not be able to extricate himself, or that he was insensible to his danger; and the Judge should have left it to the jury to say whether this was true, and whether the defendant’s agents were guilty of negligence in not endeavoring to stop said train in time to avoid a collision; therefore, he erred in not so holding, and in not refusing the ponsuit.</p> <p>“VI. The Judge erred in holding that ‘the engineer has. something else to do than to watch the track, and the fireman has to feed his box,’ meaning thereby that neither was under any obligation to keep a lookout along its track; whereas, he should have held that it is the duty of those in charge of a train to keep a lookout along its track for human beings who, -from youth, or misfortune, or other cause, are unable to take care of themselves, or are insensible to their danger; and there being evidence tending to show that.the defendant’s agents neglected this duty, the nonsuit should have been refused.</p> <p>“VII. It is submitted that if an engineer in charge of a train discovers, or by reasonable watchfulness may discover, a person upon the track apparently helpless, or infirm, it is his duty to use all ordinary means to avoid a collision without imperiling the lives of his passengers, and to stop the train in time to avoid such collision. It should have been left to the jury to say whether the defendant’s agents were not negligent in this respect; and the Judge erred in not so holding, and in not refusing a nonsuit.”</p> <p>The testimony tended to show that Smalley’s position ivas known to the employees of the defendant: 53 S. C., 208; 20 R. R. A., 581; 52 S. C., 323. It is the duty of a railway companp to keep a lookout for helpless human beings on the track: 10 Rich., 231; 20 S. C., 266; 30 R. R. A., 260; 36 R. R- A., 575; 14 S. E. R., 42; 60 Am. R., 145; 33 Md., 542; 54 Tex., 615; 27 Conn., 393; 20 S. C., 249, 261.</p> <p>As to proximate-cause: 55 S. C., 192; 23 S. E. R.,. 267.</p> <p>As to notice to engineer of deceased's presence on track: 76 Fed., 205. As to duty of railzvay companies to trespassers: 19 S. C., 20; 23 S. C., 531; 34 S. C., 292; 49 S. C., 17; 51 S. C., 150; 30 Am. St. R., 50; 22 S. R., 900; 113 Ala., 640; 9 111. App., 605; 95 Ind., 286; 112 Ind,. 250, 385; 22 Fed., 609; 26 Minn., 357; 129 Mass., 440; 72 N. W., 783; 19" Ky. L., 612; 36 R. R. A., 213; 19 S. E- R-, 863; 37 At., 1013; 90 Tex., 26; 23 S. E. R-, 7731 74 Eed., 350; 67 lb., 525; 66 lb., 115; 52 lb., 362; 76 lb., 201; 52 lb., 369.</p>

<p>Before Klugh, J., Charleston, March, 1897.</p> <p>Action by W. S. Whaley against W. Wallace Lawton. Defendant appeals.</p> <p>No crime is charged: 9 S. C., 309; 24 S. C., 189 ~ and cause of action must he dismissed: 2 Hill. L., 469; 16 S. C., 388; 2 Blacks., 259; 32 Pa. St., 168. As to authority of ministerial magistrate of Charleston: Rev. Stat., 862; 22 Stat., 472; 32 S. C., 56. No sufficient allegation of final termination of prosecution: 1 N. & McC., 36; 3 McC., 461; 34 S. C., 328; 4 McC., 356; 3 Strob., 581; 2 Selwyn, 1060; 2 Dunf. and E., 225; 2 Code R., 51; 16 Ala., 64; 4 Rich., 374. As to issuing of warrant: 58 la., 447. As to the amendment allowed by the Court: 31 S. C., 343; 125 Mass., 97; 21 Pac., 440; 2 N. & McC., 143; 16 Ala., 64; 4 Rich., 374; 21 S. C., 241; 28 S. C., 449; 32 S. C., 56; 49 S. C., 518.</p> <p>As to pozver of magistrates under common law: 8 Hen. VI., C. 9; Tr. Con. R., 328; 2 Stat., 482; Con. 1895, art. V., sec. 21; 22 Stat., 475; Gen. Stat., sec. 862; 11 Stat., 22; Rev. Stat., 1872, secs. 23, 741; Gen. Stat., 741; Crim. Code, 27. As to allegation of termination of prosecution: Crim. Code, 19; 14 Stat., 403; 9 S. C., 315; Code, 161; 6 S. C., 130; 4 Met., 421; 38 Vt., 755; 46 N. E., 707; 11 Kan., 554; 3 McC., 461; 4 McC., 355; 1 Bail., 65; 3 Hill, 195. As to no crime being alleged: 22 S. C., 372; 54 S. C., 313; Code, 276, 277; 2 N. & McC., 511. Defendant cannot set this up: 73 Mo., 25; 21 Wend., 284; 12 Conn., 219; 7 B. Mon., 545; 30 Mich., 406; 4 McC., 345; 70 N. W., 935; 14 Pa. St., 496. As to amendment permitted by the Court: 10 S. C., 101; 13 S. C., 21; 48 S. C., 564; 30 S. C., 574; 37 S. C., 341; 39 S. C-, 336; 49 S. C., 613; 50 S. C., 398; 51 S. C., 315; and such order is not appealable: 18 S. C., 315; 3 S. C., 606; 9 S. C., 334; 13 S. C., 20; 26 S. C., 416. Defendant has waived his right to appeal: 50 S. C., 400; 51 S. C., 311; 39 S. C., 335; 56 S. C., 49; 55 S. C., 450; 56 S. C., 82; 53 S. C., 583; 95 Fed. R., 948.</p>

<p>Before Ardrich, J., Greenville, April, 1898.</p> <p>Action by Joseph Latimer against Peter C. Marchbanks and J. B. Kirkendoll. The order appealed from is as follows :</p> <p>“It appearing that his Honor, O. W. Buchanan, the Judge who presided at the last preceding term of this Court, passed an order herein, filed on the 12th day of January, 1898, providing that a survey be made of the premises in dispute herein, showing the portion of land on plat A, and twenty acres of land represented on plat B; and that in pursuance of said order, the plaintiff herein nominated J. M.,Cureton, surveyor on his behalf, and the defendant, P. C. Marchbanks, nominated E. M. Hunt, surveyor on his behalf, and that said surveyors have made the survey directed by said order, and made a plat thereof, and filed the same with the clerk of this Court, showing the portion of said land on plat A, and showing that the same contains twenty acres, and showing twenty acres on plat B, which includes the double log cabin and all the cleared land on said plat B, the twenty acres shown by them on plat B being designated by them on the said plat made and filed by them as plat B, and the land shown by them on plat A being designated by them on said plat filed by them as plat A; and said plats A and B on said plat filed by said surveyors showing forty acres, designated by metes and bounds and courses and distances.</p> <p>“It is adjudged, that the land included in plats A and B on said plat made and filed by said surveyors, include and represent the land sold by said Peter C. Marchbanks to B. E. Perry, and which was bought by the plaintiff at foreclosure sale.</p> <p>' “It is further ordered and adjudged, that D. P. Verner, Esq., master in and for said county of Greenville, prepare a good and sufficient fee simple deed of conveyance from said Peter C. Marchbanks to the plaintiff herein of the land included ifi -said plats A and B on the said plat, made and filed by said surveyors, showing the courses and distances and metes and bounds thereof appearing on said plat, and including both said A and B, to wit: beginning at * * * * that said master prepare said deed within ten days from the rising of this Court, and hold it in his office for execution by the said Peter C. Marchbanks, and that the said Peter C. March-banks within fifteen days from the rising of this Court execute the same in the presence of two subscribing witnesses, and deliver the same after its execution to said master, to be delivered by him to the plaintiff herein; and that the said Peter C. Marchbanks and J. B. Kirkendoll, immediately upon the execution and delivery of the said deed as aforesaid, deliver to the plaintiff the possession of all the land covered by said deed.</p> <p>“It is further ordered, that the defendants, Peter C. Marchbanks and J. B. Kirkendoll, pay the costs and disbursements of the plaintiff in this action; also, that they pay the plaintiff the sum of $75, the amount of damages found against them by the master in his report herein, and the plaintiff is hereby given leave to enter up judgment against said defendants for said costs, disbursements and damages, and issue execution against them therefor.”</p> <p>The defendants except on the following grounds:</p> <p>“1. Because his Honor erred in holding that the former order of his Plonor, O. W. Buchanan, filed in this cause on the 13th day of January, 1898, was conclusive of the whole matter, except as to the location of the twenty acres of land on plat ‘B,’ and that as the survey had been filed in accordance with Judge Buchanan’s order, he was bound to sign the decree; whereas, it is respectfully submitted that he should have examined into the correctness of said survey. 2. Because the survey cut off about thirteen acres of land claimed in the complaint, and this was the very land which plaintiff alleged, and the proof showed, had been' damaged; his Honor, therefore, erred in refusing to allow defendants to introduce evidence along this line to reduce the amount of damages. 3. Because the said Circuit Judge, without hearing one word of evidence, and against defendants’ protest, adjudged that the land included in plats A and B on said plat, made and filed by said surveyors, include and represent the land sold by said Peter C. Marchbanks to B. F. Perry, and which was bought by plaintiff at foreclosure sale. 4. Because the said Judge erred in ordering the master, D. P. Verner, Esq., to make a deed to the land in said order described, for the following reasons: (a) Because the complaint was to compel the defendant, Marchbanks, to specifically perform a contract to conve}? to plaintiff a certain tract of land described therein by metes and bounds; the evidence, report of the master and Judge Buchanan’s order, all show that the defendants never agreed to convey the land described in said complaint, but did agree to convey the land described in defendants’ answer and included within certain well defined boundaries, (b) Because in no event could such a decree be made in this action without previously amending the complaint, and no such amendment was ever asked for or allowed. 5. Because the damages were fixed by the master under the impression that the whole of the land described in the complaint belonged to the plaintiff, the resurvey cut off about thirteen acres to defendants; defendants should, therefore, have been allowed to introduce evidence showing that this was the very portion of the land described in the complaint upon which the alleged damage was committed.”</p> <p>Contract not clearly proven: 70 Am. Dec., 458; 1 McC. Ch., 38; 2 Hill Ch., 426; 7 Rich. Eq., 385; 13 Rich. Eq., 250; 16 S. C., 192; 48 S. C., 307; 53 S. C., 363; 29 S. C., 598; Rice Eq., 55. Respondent could not enforce without amending complaint: 48 S. C.,'307.</p> <p>Mr. Shuman cites: No error for Judge Aldrich to refuse to modify the order of Judge Buchanan: 3 S. C., 438. Ño fatal variance, therefore, no amendment necessary: Code, 190; 33 S. C., 562; 6 S. C., 130; 17 S. C., 589. Court may disregard immaterial variances: 3 S. C., 401; 9 S. C., 330. Contract sufficiently proven: 139 Pa. St., 378; 3 la., 452; Rice Eq., 55.</p>

Before Gage, J-, Greenwood, April extra term. Action' by S. G. McGhee and Jesse Thompson against P. J. Wells. Plaintiffs appeal. Mr. W. N. Graydon, cites: As to 1 charge on facts: 50 S. C., 161; 49 Sr C., 481; 33 S. E. R., 353. Statement of Wells at time he took the deed inadmissible: 4 Rich., 422; 9 Rich., 50; 4 McC., 262; 3 McC., 262; 18 S. C., 494; also intentions of Wells in taking the deed: Rich. Eq. Ca., 410; 21 S. C., 270.

Before Gage, J., Greenville, September, 1899. Action by Martha B. Gilreath against Mary G. D. Fur-man. Plaintiff appeals. No valid denial of title in plaintiff: Code, 170; 17 S. C., 89; 20 S. C., 210. Error to refuse to allow counsel to argue title by com-, mon source: 5 Rich., 541; 22 S. C., 137; 53 S. C., 216; 17 S. C., 89; 20 S. C., 210; 24 S. C., 285; 44 S. C., 548; 52 s. c., 583.

<p>Before BenET, J., Bamberg, April term, 1899.</p> <p>Action by William L,. McFail against Barnwell County. The following is so much of the charge of the Circuit Judge as refers to the questions here made :</p> <p>“The action is brought under a statute which I read to you in the opening of the case, and shall read again. Section 1169 of the Revised Statutes says: * * * The terms of that statute place upon a plaintiff bringing an action under it the burden of proving, first — as in this case, proving by the preponderance of the evidence, first — that there was injury to the person, that is to say, that he sustained bodily injury, if he alleges it in this case. Also, if he alleges injury to property, he must prove, second, that there was a defect in the bridge, or a want of repair in the bridge, rendering it unsafe. Third, he must prove to your satisfection by the greater weight of the testimony that the defect or want of repair was due to the negligence of the count}'-. By that is meant the negligence of the officials charged with the keeping up of the bridge, because their negligence is the negligence of the county. , The statute speaks of negligence or mismanagement ; he must, therefore, show that the defect was due to the negligence or mismanagement of the county; must show that he did not in any way bring about the injury complained of, either by his own act or by his contributory negligence. The Act also requires him to show that the load he was carrying in the vehicle did not exceed the ordinary load. It is admitted in this case that question should not arise; it is admitted that in a buggy carrying one or two men the question of weight need not arise. And sixth, as he claims damages, he must satisfy the jury, by actual proof, of the amount of damages,' because he is seeking for actual damages, he must, therefore, prove them; give you such facts as will enable you to know how much he has been damaged. He asks $2,200— $2,000 for bodily injuries, and $200 injury to property. You are to say how much he has proved, either or both.</p> <p>The basis of this action is negligence on the part of the county; so it is well for the jury to know what is meant by negligence. There is nothing mysterious about negligence; it simply means want of due care under the circumstances. When a county charged with a duty performs that duty with proper care and attention, it has done all the law requires; if he fails, if he does not give that care and attention which common sense and reason would dictate and causes us to expect of him, then he is guilty of negligence, and if, because of that negligence, some person is injured and suffers damages, then the county is liable in damages for the amount proved. That negligence may be shown by evidence as to what was done by such an officer, or it may be shown by evidence of what was left undone; because, when a man does not do that which a prudent and careful person should or would have done under the circumstances, he is guilty of negligence, just as much as if he does that which a prudent and careful person would not have done under the circumstances. That care and diligence which the law requires, the absence of which is negligence, does not mean absolute, unceasing carefulness or sleepless watching; but, as I said before, as common sense would lead us to expect should or would be exercised under the circumstances by a prudent and careful person. The statute mentions the word mismanagement, negligence or mismanagement. It is another form of negligence of doing a thing in the wrong way. The statute also speaks of contributory negligence, in the expression where such person has not in any way brought about such injury or damage by his own act, or negligently contributed thereto. Usually that matter of contributory negligence has to be pleaded in the answer and proved by the defendant, but the statute requires that he shall not be guilty of contributory negligence, and requires him to allege in his complaint that he was not guilty of such. In his complaint McFail says he was not guilty of contributory negligence. He says the act was not due to any act of his or negligence on his part; therefore, he is required to prove that he has not been guilty of negligence, that the act was not due to any act on his part or to his contributory negligence. That does not mean he must show he was entirely free from negligence; because a plaintiff, in a case like this, may have been to some extent careless; but though careless, if he shows the injuries he complains of were due primarily and immediately to the negligence of the defendant — in other words, if he shows that the negligence of the defendant was the proximate and immediate cause of the injury, the defendant will be liable in damage. A man may be guilty of negligence or carelessness to a certain extent himself, and may be injured by the carelessness or negligence at the same time of another, and if the carelessness of the other was the immediate cause of the damage done, then the carelessness of the plaintiff canot be called contributory negligence, although he may have been to some extent negligent. It must be contributory to the injury' — that is to say, that the injury would not have been inflicted but for his negligence. If, therefore, the injury would have been inflicted in spite of any negligence on the part of the plaintiff, if the evidence shows that the plaintiff’s negligence would not prevent him recovering in damages — that is to say, if the defendant’s negligence was the proximate cause of the injury notwithstanding the plaintiff’s negligence, then the county would be liable. And so, also, it is not sufficient for the plaintiff to establish his right to a verdict to prove the county was negligent or careless, but he must prove that negligence or carelessness of the county was the proximate cause of the injury complained of. Because it is conceivable that the county may have been negligent and careless in this matter of the bridge, but it is also conceivable that the plaintiff’s own negligence njay have been the proximate cause of the injury. And if the jury are satisfied, in a case like this, that the injury would not have occurred but for the negligence of the plaintiff, in that case the plaintiff cannot recover. You will, therefore, bear in mind that if it be shown that the county was guilty of negligence or mismanagement, if it be shown that the county failed to keep the bridge in good repair, but if it also be shown that the injury would not have occurred but for the plaintiff’s own negligence, in that case the county would not be liable. This is the doctrine which was read to you yesterday by the counsel for the defendant from a case in our own Supreme Court, and is good law and 'applies to both sides. You will inquire whose negligence caused the injury, and if you are satisfied that the plaintiff’s negligence was the proximate cause of the injury, then the defendant must not be held liable, even though to a certain extent negligent. So, if you are satisfied that the injury resulted immediately from the defendant’s negligence, then the defendant would be held liable in damage, even though to a certain degree the plaintiff has been negligent. In defining negligence as being the want of due care, it is proper to add that the measure of care is for the jury to decide under the circumstances in each case, because that measure of care would vary. You will ask 'the question: What degree of care and attention should have been exercised by the county officials charged with the keeping up of that bridge across that river ? If, in your opinion, the officials fell short of that measure of care that ought to have been exercised, then you will find them guilty of negligence, and you are to find from the testimony whether that is the case or not. Of course, it is the duty of the county by its officers to keep the roads and bridges in good repair; that does not mean that they must provide bridges of solid masonry or iron bridges, but they must provide such bridges as will be safe and passable, safe for the citizens of the county and safe for the ordinary traffic of the country. Failure to perform this duty makes a lack of due diligence.”</p> <p>The jury retired and rendered a verdict in favor of the plaintiff for $500 damages. Judgment was duly entered thereon, and from this judgment the defendant appeals on the following grounds and exceptions :</p> <p>1. That his Honor, the presiding Judge, erred in charging the jury, that if, in an action under section 1169 of the Revised Statutes, the negligence on the part of the plaintiff was the proximate cause of his injury or damage, he could not recover; but that, nothwithstanding the plaintiff may have been in some degree negligent, yet, if the defendant’s negligence was the proximate cause of the injury, the plaintiff would be entitled to recover; whereas, he should have charged the jury that the action being one under section 1169 of the Revised Statutes, the question as to proximate or remote cause was eliminated, and that if they were satisfied by the evidence that the plaintiff “in any way brought about such injury or damage, or negligently contributed thereto,” he could not recover.</p> <p>2. That his Honor, the presiding Judge, erred in holding that the doctrine as to contributory negligence, as laid down in Parley v. The Charleston Basket and Veneer Co., 51 S. C., 222, is applicable to an action under section 1169 of the Revised Statutes, and in consequence thereof, charging the jury as follows : “You will enquire whose negligence caused the injury, and if you are satisfied that the plaintiff’s negligence was the proximate cause of the injury, then the defendant must not be held liable, even though to a certain extent negligent. So if you are satisfied that the injury resulted immediately from the defendant’s negligence, then the defendant would be held liable in damages, even though to a certain degree the plaintiff has been negligent.”</p> <p>3. That his Honor, the presiding Judge, erred in charging the jury, in effect, that contributory negligence in an action, under section 1169 of the Revised Statutes (this action being under said section), on the part of the plaintiff, if not of such degree as to be the proximate cause of the injury complained of, would not free the defendant from liability, if the defendant’s negligence was the proximate and immediate cause of the injury; whereas, he should have charged the jury that if the plaintiff “in any way brought about such injury of damage, or negligently contributed thereto,” he could not recover, notwithstanding the defendant may to some extent have been negligent.</p> <p>4. That his Honor, the presiding Judge, erred in charging the jury in reference to the negligence on the part of a plaintiff, which would bar a recovery by him in an action for damages against the county, under section 1169 of the Revised Statutes, as follows: “It must be contributory to the injury — that is to say, that the injury would not have been inflicted but for his negligence.” And again: “You will, therefore, bear in mind that if it be shown that the county was guilty of negligence or mismanagement, if it be shown that the county failed to keep the bridge in good repair, but if it be also shown that the injury" would not have occurred but for the plaintiff’s own negligence, in that case the county would not be liable.” Inasmuch as said charge requires the plaintiff’s negligence in order to bar a recovery to be an efficient cause of his injury, instead of merely contributory thereto.</p> <p>5. That his Honor, the presiding Judge, erred in charging the jury in an action under said section 1169 of the Revised Statutes, that the negligence on the part of a plaintiff in order to bar his recovery must be the proximate cause of the injuries complained of.</p> <p>6. That his Honor, the presiding Judge, erred in charging the jury under the provision as to contributory negiigence in section 1169 of the Revised Statutes as follows: “A man may be guilty of negligence or carelessness to a certain extent himself, and may be injured by the carelessness or negligence at the same time of another, and if the carelessness of the other was the immediate cause of the damage done, then the carelessness of the plaintiff cannot be called contributory negligence, although he may have been to some extent negligent in that said charge excludes the finding of contributory negligence on the part of a plaintiff wherever the defendant’s negligence is a proximate or immediate cause of the injury or damage.</p> <p>7. That his Honor, the presiding Judge, erred in charging the jury, under said section 1169 of the Revised Statutes, that “if the defendant’s negligence was the proximate cause of the injury, notwithstanding the plaintiff’s negligence, then the county would be liable.”</p> <p>8. That his Honor, the presiding Judge, erred in charging the jury in this action to recover damages, under section 1169 of the Revised Statutes, as follows: “You will inquire whose negligence caused the injury, and if you are satisfied that the plaintiff’s negligence was the proximate cause of the injury, then the defendant must not be held liable, even though to a certain extent negligent. So if you are satisfied that the injury resulted immediately from the defendant’s negligence, then the defendant would be held liable in damages, even though to a certain degree the plaintiff had been negligent.” Inasmuch as this charge limited the inquiry of the jury as to whose negligence was the proximate cause of the injury, and placed on the defendant by implication the burden of satisfying the jury that the plaintiff’s negligence was the proximate cause of the injury; whereas, the statute requires the plaintiff to prove that he did not negligently “contribute” to the injury.</p>

<p>Before Gary, J., Barnwell, January, 1899.</p> <p>Action by A. B. Connor against Mary M. Ashley, H. Irene Ashley, and Wm. A. Holman, executor of Wm. Ashley. The Circuit decree is as follows :</p> <p>“The facts of this case will appear from a statement of the records in the cause. On the 12th day of July, 1889, Judge Witherspoon granted an order in the case of Mary M. Ashley et al. vs. W. A. Holman, as executor of the last will and testament of William Ashley, deceased, in the following words: It appearing to the satisfaction of the Court that A. B. Connor is entitled to a fee for professional services rendered the plaintiffs in the above entitled action. On motion of said A. B. Connor, Esq., it is ordered, that it be referred to G. Duncan Bellinger, Esq., master, to hear and determine what would be a reasonable fee for said A. B. Connor for said services. On the 15th day of July, 1889, master filed his report as follows: ‘Pursuant to the above order, I have taken the testimony of two respectable attorneys of the bar as to what would be a reasonable fee for A. B. Connor, Esq., for professional services, and find that the sum of $500 would be such reasonable fee.’</p> <p>“On July 15th, 1889, the presiding Judge granted another order confirming said report in the following form: ‘Upon reading and filing the report of the master herein, and on motion of Mr. Connor, it is ordered, that the same be and is hereby confirmed.’ On the same day, Judge Witherspoon granted another order, confirming a report of the master recommending that it be decreed ‘that said defendant pay to said plaintiff, Mary Myrtle Ashley, who is now of age, $1,000; to the guardian of Harriet Irene Ashley, minor, $x,ooo; and that the land held by them as aforesaid be vested in them, free of all liability to account for same and that the defendant pay the costs of these proceedings.’ The order confirming this report is as follows: ‘Ordered and decreed, that said report be and hereby is confirmed, and made the order of this Court. Further ordered, that said defendant pay over said funds and the costs herein to the master within ninety (90) days from notice of the filing of this order. It is further ordered, that the parties hereto have leave to apply tp „the Court for any further order that may be necessary in the premises, and that out of said funds the master pay A. B. Connor, Esq., the fee for his services as reported by said master.’ Subsequent to this order the executor, W. A. Holman, satisfied the claims of Mary M. Ashley and Irene Ashley by a compromise agreed upon between the said executor and the devisees, and had their claim satisfied.</p> <p>“Upon this state of facts the plaintiff brings this action. When the cause was called for a hearing in the Circuit Court for Barnwell County, the defendants, M. M. Ashley, Irene Ashley and W. A. Holman, demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The presiding Judge sustained the demurrer as to the defendant, Flolman,' and dismissed the plaintiff’s complaint as to him, but overruled the demurrer as to his codefendants. Both parties appealed to Supreme Court from this order. (See case, Connor v. Ashley, 49 S. C., 478.) The Supreme Court reversed the order of the Circuit Court, sustaining the demurrer as to the defendant, W. A. Holman, and sustained so much of the order as overruled the demurrer as to his codefendants. In this case the Court says: ‘While the facts alleged in the complaint do not show that he is entitled to such judgment, they nevertheless show that he is entitled to relief. The complaint charges the defendants with bringing about satisfaction of the’judgment therein mentioned through collusion, in order to prevent the payment of his fee. This allegation of fraud gave the Court jurisdiction to exercise its equitable powers, and if the facts are true as alleged (upon which this Court, of course, does not express its opinion), then the satisfaction of the judgment should be declared! a nullity, and the plaintiff should be allowed to enforce his rights under said judgment.’ From the decision of the Supreme Court it will be seen that the question left open for the Circuit Court is the question of fraud. As I construe the decision of the Supreme Court, the allegation of fraud is all that gives this Court jurisdiction, and that jurisdiction arises out of its equitable prerogative.</p> <p>“In order, then, to determine this question, it will be necessary to inquire if the plaintiff has such a judgment as would give him a lien, or such an equitable or legal status that he could assert or set it up as the foundation of his claim or contention. It seems to me that the case of Hubbard v. Camperdown Mills, 25 S. C., 499, is directly in point. In the case just cited, two orders were granted by Judge Wallace, referring it to the master to inquire and report what would be a suitable fee to be paid Messrs, Wells & Orr, attorneys for the plaintiffs, for their services in this action, and also what would be a suitable fee for Messrs. T. Q. and A. H. Donaldson, attorneys for the Camperdown Mills and Hamlin Beattie as receiver. In pursuance of each of these orders, just as in the case now being tried, the master reported that he had held a reference, and from the evidence adduced he found that $2,500 would be a reasonable and proper fee for Messrs. Wells & Orr as attorneys for the plaintiff, and that $2,000 would be a reasonable and proper fee for Messrs. T. Q. and A. H. Donaldson as attorneys for the Camperdown Mills and Hamlin Beattie, receiver. Upon hearing these reports, Judge Wallace granted orders confirming the same, and directing the receiver to pay these gentlemen the amount reported as proper fees for them out of the funds "in his hands as such receiver. From these orders an appeal was taken to the Supreme Court, and that Court reversed the said orders; the learned Justice who delivered the opinion of the 'Court, after citing authority for the position taken, availed the opportunity to say: ‘But while this may be sufficient to distinguish this case from Nimmons v. Stezmrt, 13 S. C., 445, we desire to take this occasion to express our dissatisfaction with so much of that case as gives countenance to the idea that a reference to ascertain the amount of a fee to be charged on a fund under the control of the Court should ever be ex parte. The parties interested in the fund have a right to be heard both by evidence and argument, if they so desire, before the property or the fund to which they are entitled is subrogated to á charge of any kind, and hence notice of such a reference is always necessary. The case of Nimmons v. Stewart was very imperfectly presented to the Court, and, therefore, the point as to the character of the reference may not have^een given to it.’ The counsel for the plaintiff recites and relies upon the case of Nimmons v. Stewart, above referred to. But from this criticism of the principle decided in that case, I cannot feel warranted in putting much stress upon it — in fact, it seems to me that it is practically overruled by the case of Hubbard v. The Camperdown Mills, just quoted.</p> <p>“The plaintiff, however, contends that the order in this case not having been appealed from, that the question is now res adjudicata, and it is now too late to raise any objection to the orders above set forth. The case of Bx parte Port, 36 S. C., settles the law to the contrary. In that case, the Supreme Court, in passing upon the effect of a similar order, uses this language: Tt is not necessary to appeal from an order fixing attorney’s fees to raise the question of jurisdiction, and under the question of jurisdiction included the power of the Circuit Judge to make an order not contemplated by the action to which she was a party, without notice to her of such order.’ The order of reference obtained by the plaintiff was purely ex parte. The defendants were not notified as to the holding of such reference, and the report of the master does not give the testimony upon which he based his conclusion nor the names of the witnesses who were before him.</p> <p>“I, therefore, conclude that the plaintiff did not have such a judgment that would prevent the executor from making the settlement complained of with Mary M. Ashley and H. Irene Ashley. And I further conclude that in making said settlement there was no fraud either in law or in morals. It is, therefore, ordered, that the complaint be dismissed.”</p> <p>The plaintiff excepts to this decree on the following grounds:</p> <p>“I. That the Circuit Judge committed error of law in his conclusions, that the defendants, Mary M. Ashley and H. Irene Ashley, were entitled to notice of the reference held in this case under the order of Judge Witherspoon, of the date 12th day of July, 1889, directed to G. Duncan Bellinger, Esq., master, to hear and determine what would be a reasonable fee for the plaintiff in the said cause. That he should have concluded as a matter of law that Judge Witherspoon, by whom the said case was tried, and by whom all the orders herein, including the order of reference to the master and the order confirming the report of the master, had the right to fix the amount of the fee without a reference, or to refer the same to enlighten his own conscience in regard to the amount of the said fee, and that the said defendants were not entitled to notice of reference in such a case.</p> <p>“II. That the Circuit Judge erred in finding as matter of fact that the defendants above named had no notice of the reference herein to ascertain the fee of the plaintiff. That he should have found that the defendants, M. M. Ashley and H. Irene Ashley, were represented at the said reference by the plaintiff, their own attorney in the said action.</p> <p>“III. That the Circuit Judge committed error of law in his conclusions that the order of Judge Witherspoon, confirming the report of the master, recommending a fee to the plaintiff, from which order no appeal was taken, was not res ad judicata.</p> <p>“IV. That the Circuit Judge committed error in his conclusions of law that Judge Witherspoon was without jurisdiction to make the final order confirming the master’s report, fixing the attorney’s fees, on the ground that the defendants, M. M. Ashley and H. I. Ashley, had no notice of the said reference, and that such order was not contemplated by the action to which they were parties. That he should have found that both of the said defendants being minors at the time of the commencement of the said action and one of them being still a minor at the date of the said reference, the order to fix attorney’s fees was necessarily contemplated by and incident to the equitable jurisdiction of this Court, and could not be agreed on by the contract of the parties, who were not sui juris.</p> <p>“V. That the Circuit Judge erred in his conclusions of law that the case of Nimmons v. Stewart had been practically overruled by the subsequent decisions of this Court, and should have concluded and found that the principles announced in that case are still the law of this State, and that the Circuit Judge having the whole case before him, had the right to fix the fee with or without a reference, under the equitable powers of this Court.</p> <p>“VI. That the Circuit Judge erred in his conclusion that the plaintiff did not have such a judgment that would prevent the executor from making the settlement complained of with M. M. Ashley and H. I. Ashley, and that said settlement did not operate as a legal fraud upon the rights of the plaintiff; whereas, he should have found that the order of Judge Witherspoon directing the fee of the plaintiff to be paid out of the said fund, directly affected the said fund, and creatéd an equitable lien upon the same; and the settlement referred to was a direct invasion of and operated as a legal fraud upon the rights of this plaintiff, and that the question of moral fraud was not pertinent to or raised by the issues in this action.”</p> <p>Decree stands until set aside by direct proceedings: 24 S. C., 398; 34 S. C., 452.</p> <p>This case is to be tried under issues of fraud and collusion: 49 S. C., 478.</p> <p>Attorney’s fees are matter of contract with parties sui juris: 6 Rich., 329; 13 Rea., 36; 25 S. C., 499; 36 S. C., 19; 32 N. J. Eq., 74; Wright v. Herlong, 16 S. C. Judgment void for want of notice: 50 S. C., 501; 12 Rich., 620. Notice to attorney for party will not do here: 46 S. C., 24.</p>

<p>Before Benlt, J., Bamberg, April, 1899.</p> <p>Proceeding for condemnation of right of way by Atlantic Coast Bine R. R. Co. against South Bound R. R. Co. The Circuit order appealed from is as follows :</p> <p>“This proceeding came before me on a motion made by the South Bound Railroad Co. to be allowed an appeal to this Court from the verdict rendered by the jury which sat in the condemnation proceeding on the 5th day of January, 1899, as provided by section 1730 of the Revised Statutes. The jury rendered a verdict for $50 and the South Bound Railroad Co. moves to be allowed an appeal therefrom, and that an issue be framed and heard in this Court, in accordance with the provisions of the said section of the Revised Statutes, on the grounds that the verdict was too small and inadequate under the testimony; that the jury being uninstructed by a Judge, failed to consider the evidence introduced to show special damages. The motion was based upon all of the proceedings had in the condemnation proceedings.</p> <p>“After examination of the proceedings and hearing E. T. Izlar, Esq., for the motion and Robert Aldrich, Esq., contra, the Court is satisfied of the reasonable sufficiency of the grounds for appeal. It is, therefore, ordered, that an issue be submitted to a jury in open Court to pass upon the question of compensation, in which the appellant shall be the actor. Further ordered, that the cause shall be entered by the clerk of the Court of Common Pleas for the county of Bamberg on Calendar No. i, and that the form of the issue to be submitted to the jury shall be prepared in open Court when the case is, called for trial, unless the same be agreed upon by counsel and filed with the said clerk prior to the calling of the case for trial.”</p> <p>No appeal from verdict of jury in ürst instance except upon exceptions: n S. C., 396; 14 S. C., 178; 16 S. C., 105, 1C4, 619; 17 S. C., 288, 338; 20 S. C., 62; 22 S. C., 200; 18 S. C., 104. As to what damages are allowable in such proceedings: 27 Vt., 140; 13 J. O., 548; 15 Id., 141; 69 Id., 80; 91 Id., 256; 68 Id., 390. At crossings: 44 Fed. R., 470; 45 Kan., 716; 14 Gray., 155; 90 Mich., 385; 102 Mo., 633. For interfering with business: 115 111., 376; 100 111., 21. Too remote: 105 111., 389, no; 30 Ohio St, 604.</p> <p>Order is not appealable: Code, 11, sub. 1; 8 S. C., 12, 62; 11 S. C., 122; 3 S. C., 417, 606; 25 S. C., 41; 29 S. C., 1. Motion was addressed to discretion of Judge, and hence not appealable: Rev. Stat., 1730; 16 S. C., 72, 116, 450, 634; 17 S. C., 453-</p>

<p>Before Townsend, J., Greenville, March term, 1899.</p> <p>Action by R. E. Lewis against Western Union Telegraph Co. Plaintiff appeals.</p> <p>As to malice: 4 Russ., 89; 54 S. C., 498. Gross carelessness not required to be shozvn: 23 S. C., 105; 18 S. E. R., 687; 24 S. C., 503; 54 S. G., 498; 34 S. C., 311; 14 S. E. R., 945; 11 S. E. R., 1044; 21 lb., 429; 23 lb., 457; 31 lb., 224, 493.</p> <p>No damages for mental anguish without physicial injury: 47 Eed. R-> 544; 44 Fed-, 554; 59 Fed., 433; 63 Eed., 396; 55 Eed., 603; 37 Pac., 1087; 6 U. S. C. C. A., 432; 54 Fed., 634; 52 Fed., 264; 96 Fed., 81; 43 S. W. R., 965; 84 Cal., 515; 95 Col., 510; 19 N. W. R., 438; 14 S. R., 138; 15 S. E. R., 901; 71 111. App., 63; 47 N. E. R., 473i 17 P- R-> 8o7; 27 Kan., 544; 71 Me., 227; 59 N. W. R., 1078; 9 S. R., 823; 22 S. W. R., 345, 691; 54 Mo. App., 434; 38 At. R., 684; 42 N. Y., 1109; 50 P. R., 438; 6 Nev., 224; 41 N. E. R., 689; 147 Pa. St., 40; 57 N. W. R., 973; 32 S. E. R., 1026; 131 U. S., 22; 9 H. L, 598; 2 Car. & P., 291; L. R., 13 App. Ca., 222; 32 S. C., 592. As to error in charge complained of: 53 S. C-, 123.</p> <p>Additional upon question of damages for mental anguish: i H. & M., 411; 5 H. & M., 534; 10 O. B. L. R., ni; 13 App. Ca. (L. R.), 222; 27 Kan., 544; 133 111., 148; 70 Mo., 230; 147 Pa. St., 40; 1 Cush., 452; 6 Nev., 230; 74 Mo., 147; 30 N. J. S., 210; 42 Wis., 32; 36 Minn., 290; 3 Dale, 215; 45 la., 569; io La. Ann., 38; 135 Mass., 153; 16 Mich., 447; 17 N. Y., 54; 53 Vt, 190; 52 Fed., 264; 3 Brev., 523; Dud., 180; 2 Spear., 536; 1 McM., 37; 14 S. C., 20; 25 S. C., 68; 27 S. C., 456; 32 S. C., 592; 53 S. C., 410; 52 S. C., 323. Cases the other zvay: 55 Tex., 38, 308; 59 Tex., 563; 66 lb., 580; 75 lb., 26, 531; 76 lb., 217; 71 lb., 723; 76 lb., 66. Cases regarding innovation: 68 Miss., 748; 86 Tenn., 695; 15 S. E. R-, 901; 57 Fed., 471; 22 S. W., 345; 59 N. W. R., 1078.</p>

<p>Before Gage, J., Orangeburg, September term, 1899.</p> <p>Action by William V. Izlar against Manchester and Augusta R. R. Co. Defendant appeals.</p> <p>R. R. Co. is not liable for damages happening outside of its property, over which it has no control: 34 S. C., 451; 26 la., 24; 59 Me., 183; 22 Ore., 430; 68 Tex., 342; 69 Me., 640.</p> <p>No error to refzise request containing unsound propositions: 36 S. C., 371; 43 S. C., 146; 52 S. C., 224. Hozv misstatement of issues are to be corrected: 35 S. C.; 459. Plaintiff not a trespasser, but company zvas under obligation to him to keep its approaches in good condition: 69 Me., 340; 35 Am. and Eng. R. R. Ca., 476; 81 Mich., 156; 47 Am. R., 596; 53 lb., 756; 54 lb., 73; 9§ Am. D., 321; 96 lb., 323; 4 Am. St. R., 235; 7 R. R. A., 690; 39 S. C., 171; 20 R. R. A., 520. Must provide lights: 5 Am. St. R., 356; 4 lb., 235; 44 Am. R., 446; 39 S. C., 171; and this duty extends to persons seeing passengers on or off: 10 Am. St. R., 442; 13 Am. St. R., 399; 23 Am. R., 753; 20 R. R. A., 527; 21 Am. R., 377. As to negligence: 38 Md., 568; 2 Am. St. R., 198; 6 C. B. (N. S.), 923; 19 Am. St. R., 448.</p>

<p>Before Townsend, J., Greenville, April, 1899.</p> <p>Action by Wm. Mitchell against David T. Bailey. The master reported as follows :</p> <p>“On the 13th January, 1891, the defendant borrowed from the plaintiff $400, and then gave his note for the same, payable one day after date, with interest from date at ten per cent, per annum. A short time after the execution of the above described note, the plaintiff discovered that the rate of interest therein mentioned was unlawful. After this discovery, the defendant, David T. Bailey, procured J. A. Mooney, Esq., to prepare the note and mortgage of January 26th, 1891, for the sum of $408, with interest from date at eight per cent, per annum. This note fell due January 1st, 1892. This last named note, and the mortgage given to secure it, were subsequently turned over to the plaintiff, whereupon he surrendered to the defendant the note of January 13th, 1891. The purpose of this transaction was to purge the original contract of the quality of usury. It is admitted by both parties that the defendant only got from plaintiff $400, but the note calls for $408. The defendant claims that the $8 was put into the note in order to make up the difference between eight and ten per cent, on the amount borrowed. This he claims was a device to evade the law against usury, and this raises the only issue over which there is any controversy in this case. The plaintiff denies any effort on his part to avoid the usury law. He sajrs that he has never claimed, or intended to claim, more than the legal rate of interest on the money loaned the defendant. If the plaintiff did intend by the part he took in this transaction to evade the law, he has made a dismal failure. By reference to the note it appears that it only bears interest at eight per cent, till its maturity, just eleven months and five days, and after that time it bears seven per cent., the legal rate. The question is one of interest. The defendant alleges an intent to drive a corrupt bargain. The plaintiff denies it. The defendant pleads the usury, and the burden is on him to prove it. The case depends upon his testimony and that of his wife on the one side, and that of the plaintiff on the other. A plea of this kind should not be sustained except upon the clearest and most convincing proof.</p> <p>“It does not appear to my satisfaction that there was a purpose or intention on part of the plaintiff to procure more than the legal rate of interest, and I find, as a matter of fact, that he did not intend so to do. Hence the plea of usury should be- rejected, and the defendant required to pay the plaintiff the sum of $400, with interest at eight per cent, per annum till the ist of January, 1892, to wit: $429.77, together with the interest on this last named sum at seven per cent, per annum to this date, which now amounts to the sum of $207.15. This being added to the $429.77, makes the sum of $636.92 due to the plaintiff by the defendant, and the master so finds and concludes. The master respectfully recommends that the plaintiff have judgment against the defendant for the foreclosure of the mortgage above mentioned, and the sale of the mortgaged premises for the payment of the above named sum of $636.92, and the costs of this action.”</p> <p>Circuit Court confirmed report of master, and defendant appeals.</p> <p>As to usury: 30 S. C., 68; 1 Rich. Eq., 514i 2 McC., 369; 2 Spear., 86.</p> <p>Usury is question of intent: 5 Am. D., 424; 1 Am. D., 538. Parties could purge usurious contract by subsequent contract: Cases cited in note at p. 964, vol. 27, Am. & Eng. Ency. of R.; 18 S. E. R., 229; 10 Am. Dec., 204. Note not usurious: 22 S. C., 139; 2 S. C., 248; 10 S. C., 135; 14 S. C., 341; 16 S. C., 469; 20 S. C., 542; 19 S. C., 85.</p>

Before Benet, J., Barnwell, winter term, 1899. Action by W. M. Cave against Home Insurance Co. Defendant appeals on following exceptions: “I. That his Honor, the presiding Judge, erred, be it respectfully submitted, in ruling out of the evidence and in refusing to allow the defendant to introduce in evidence the record of the proceedings to set off the homestead of E. W. Vogel, under the circumstances under which said record was offered in evidence. “II.

<p>Before Gary, J., Abbeville; September term, 1899.</p> <p>Action by Julia E. Norris against Hartford Fire Insurance Company and Agnes E. Lawing. Defendant, Hartford Fire Insurance Company, appeals.</p> <p>As to pozvers of soliciting agent: 22 Mich., 467; 86 Ala., 424; 90 Ala., 386; 63 N. Y., 531; 25 la., 507; 9 Allen, 231; 98 la., 521; 30 Neb., 288. What notice to agent is notice to principal: 86 Ala., 424; 78 la., 216; 96 U. S., 572; 33 S. E- R-, 897. No element of estoppel in this case: 86 Ala., 424; 81 N. Y., 410. How notice must come to agent to bind principal: 80 Ala., 528; 86 Ala., 4311 53 Tex-> 611 56 Vt., 374; 33 S. E. R., 897; 78 la., 216. At close of whole case nonsuit should have been granted, plaintiff’s evidence showing forfeiture and no zvaiver being shozvn: 52 S. C., 224; 22 S. C., 557; 21 Wend., 109; 23 Wend., 480; 29 S. C., 96; 23 S. C., 286.</p> <p>Upon showing of forfeiture and no waiver thereof, nonsuit should have been granted: 52 S. C., 227; 54 S. C., 375; 87 Pa., 399; 51 S. C., 540; 55 S. C., 455. It is error of lazv to refuse a new trial where there is no testimony to support verdict: 54 S. C., 605.</p> <p>What notice to agent binds principal: 26 S. E. R., 334, 51 S. C., 544. There being testimony tending to shozv waiver, nonsuit properly refused: 25 S. C., 27; 42 S. C., 14; 43 S. C., 26; 46 S. C., 546, 93; 54 S. C., 601; 29 S. E. R., 9451 54 S. C., 599; 15 Am. St. R., 275; 46 Am. St. R., 796.</p>

Before Gary, J., York, April, 1899. Action by J. B. Johnson, Myron H. Sanders, and J. J. Hagins against City of Rock Hill, the Mayor and Aldermen thereof, and The Rock Hill Water, Bight and Power Co. The allegations upon which the action is rested are embraced in the 4th paragraph: “4.

Before Aldrich, J., Barnwell, November Term, 1898. Action by Robert B. McLemore against J. Wyatt Lancaster. Plaintiff is appellant. The mode of appointment does not enter into essentials of office: 7 Rich., 370. Defendant cannot take advantage of his own wrong: 3 Strob., 146; 12 S. & M., 653; 2 Hous., 123.

<p>Before Aldrich, J., Charleston, August, 1898.</p> <p>Action by David Nathans, Alexander B. Nathans, and Jacob N. Nathans, surviving executors of Nathan Nathans, against John H. Steinmeyer, Eliza R. Steinmeyer, Mrs. A. C. Burger, Miss J. E. Weyman, John Vollers, administrator, and the devisees of Matilda Steinmeyer. The Circuit Judge states the facts as follows:</p> <p>“This action, instituted on May 22d, 1895, is for the foreclosure of a mortgage of real estate in the city of Charleston, S. C. The mortgaged premises were sold and conveyed by the executors of Nathan Nathans to J. H. Steinmeyer, on March 29th, 1887, by said Steinmeyer to C. F. W. Ficken, on September 20th, 1893, and by said Ficken to Mrs. A. Matilda Steinmeyer, on August 1st, 1894. The mortgage, the subject of this action, was executed and delivered by the said J. H. Steinmeyer to the executors of N. Nathans, on March 29th, 1887, to secure the payment of $10,000 and interest, the credit portion of the purchase money of said mortgaged premises, evidenced by a bond of the same date. Mrs. Matilda Steinmeyer died testate, and the seven last named defendants are her children, and the devisees under her will of the said premises. The other defendants are alleged to have or claim some interest or lien upon said mortgaged premises, accrued since the execution of the said mortgage to said executors.</p> <p>“The answer of J. H. Steinmeyer, ‘admits the truth of the several allegations made in the said complaint.’ Second. For a further defense and counter-claim, after setting out the purchase of the premises, the execution of the bond and mortgage alleges: ‘III. This defendant further alleges that at the time of the execution and delivery to him as aforesaid by the said plaintiffs and their late coexecutor, of the said deed of conveyance, there then was and still is outstanding a valid paramount title to a large and valuable portion of the said premises. IV. That at the time of the execution and delivery as aforesaid of the said deed of conveyance, the said plaintiffs and the said Levy Nathans, as executors aforesaid, had no interest or estate in said portion of the said premises, and no power enabling them to convey the same in fee simple or for any lesser estate; and further, that they have not now, nor has either of them since then, acquired any interest or estate therein, or been vested with any power to convey the same; nor did their testator, the late Nathan Nathans, have any interest or estate therein.’</p> <p>“The answer of the heirs and devisees of Mrs. A. Matilda Steinmeyer, the wife of J. H. Steinmeyer, and of B. I. Simmons, as subsequent mortgagee, also set up the defense of a deficiency in the property sold by the aforesaid executors to said J. IT. Steinmeyer, by reason of an outstanding paramount title.</p> <p>“The case was referred to Master G. H. Sass by an order filed April 20th, 1896, to hear and determine the issues of law and fact involved in the pleadings, with leave to report any special matter. The master’s report, which is full and clear, was filed on May 17th, 1897. * * *</p> <p>“I shall refer to such of the leading facts as will present the issue, and discuss such of these facts in detail as may be necessary. On April 17th, 1675, the Lord Proprietors granted to John Comings 133 acres of land ‘upon the Oyster Point,’ and ‘bounding upon Ashley River to the west thereof, and Cooper River, also Itaan (?) River towards the east, as appears by a plat thereof hereto annexed.’ Said plat, dated June 15th, 1672, represents a body of land lying between two parallel' lines, beginning at Cooper River and extending towards the Ashley River. By the certificate of ‘Fenwick Bull, Register, July, 1767,’ upon record it appears 'that ‘the plat from which this is copied was so obliterated and damaged that no accurate copy could be made, and the above is done in the best manner possible.’ That is all that we know of the grant or plat, so far as we can gather from the copies of the same. The granted premises passed under the will of John Coming to Affra Coming, his wife, and under her will to John Harleston and Elias Ball, in 1698. The property remained in the Harleston family, or that of their descendants, until 1827, and subsequently, by various mesne conveyances, a portion of this property became vested in Nathan Nathans, including the portion his executors conveyed to J. H. Steinmeyer, and which constitute the mortgaged premises in litigation. The Harleston or Naylor plat, made in 1770, and annexed to the record of the partition proceedings, between Isaac Harleston and Win. Harleston et al., and the record of that cause, contained in pages 200 to 213, both inclusive, of Book A, Partition Court • of Common Pleas, Charleston County, are in evidence. The ‘outstanding’ valid paramount title to a large and valuable portion of the premises as asserted by defendants .in testimony and argument, is in the city of Charleston, S. C. That portion of the premises the title to which is in the city of Charleston, as asserted, consists of marsh lands, mud flats, or water lots, lying upon the bank of the Ashley River, and over which the tide ebb and flow. Under the grant to Comings and the plat annexed thereto, defendants contend that the lands granted by the Lords Proprietors to said Comings extended only to the line of ordinary high water upon the banks of the Ashley River; and that the lands lying between high and low water marks on the banks of said river were not granted to Comings, but remained the property of the State. State v.Pinckney, 22 S. C., 507; State v. Pacific Guano Company, lb., 50; The State v. Oak Point Mines, lb., appendix, 293.</p> <p>“Defendants next submit that said mud flats, under an act of the legislature, passed in 1836 (VII. Stat. at Large, p. 151), were vested in the city of Charleston for public purposes, and that thereafter no grant of the same could be presumed from the possession of private individuals. Upon this showing defendants submit that the title to the mud flats or water lots is in the city of Charleston. Plaintiffs, while denying the proposition advanced by defendants, contend that the Comings’ grant includes the water lots in question; that the plat annexed is mutilated, imperfect; that the Harleston or Naylor plat, made in the proceedings for partition in the case of Harleston v. Harleston, in 1770, and adopted by the Court, was a plat of a portion of the Comings’ grant, and that said plat carried or placed the boundary at low water mark on the Ashley River, and that said water lots, as represented by the plat and declared in the decree of the Court, were in the possession of the parties to that suit. Plaintiffs go further, and say that under the act of April, 1770, to lay out streets in that section of the city of Charleston and the ‘legislative plat’ annexed to that act, that the legislature recognized the fact that the original Comings’ grant extended to low water mark, that such legislative recognition and acquiescence was equivalent to a grant and to a legislative declaration that the lines of the Comings’ grant extended to the lines of the Naylor plat, which was the low water mark. It being admitted that the State could grant marsh land? — Heyward v. Farmers Co., 42 S. C., 156, and other cases — plaintiffs contended that the possession of Harlestons, as shown by the records of the Court in the partition case, plat, etc., came under the provision of the act of 1787. The section of the act cited appears as sec. 1878 of the Revised Statutes of S. C., and reads: ‘An actual, peaceable and quiet possession of lands five years previous to the fourth day of July, 1776, shall be deemed a good and sufficient title, and any grant obtained since that time, or which may be obtained for the said land, is hereby declared null and void.’ Under the contention of plaintiffs, the title to the water lots or mud flats was conveyed to J. H. Steinmeyer; that the State granted the title to John Comings; that the State, by the act and ‘legislative plat’ of 1770, recognized and acquiesced in, and admitted the title of the Harlestons, and that under the act of 1787 it perfected the title of the Harlestons, and estopped itself from claiming these water lots. This is the history of the facts brought out in this litigation. Neither the State of South Carolina nor the city of Charleston are parties to this action.”</p> <p>Defendants appeal.</p> <p>As to appointment of receiver: 34 S. C., 80; 32 S. C., 137; Code, 265; x Hill. Ch., 342; 1 Bail. Eq., 150; 17 Stat., 19; 15 S. C., 246; 117 Mass., 491; 5 Wall, 79; 2 McC. Ch., 137; 6 N. J. Eq., 4471 4 Md. Ch., 344; 4 H. & M., 424; 7 Ves., 307; 26 N. J. Eq., 452; 15 S. C., 184. As to the defense of failure of consideration before eviction: 1 Bay, 231, 257; 2 Bay, 558; 2 Brev., 100, 472; 2 N. & McC., 198, 186; 2 Mills, 159; i McC. L., 359; 3 McC. L.j 449; 1 Bail. E., 218. 250, 278, 261; 1 Hill E., 322; 3 Hill E-, 300; Cheves E., 115, 127; 2 Rich. Eq., 340; 1 Rich. Eq., 404; 2 Rich. Eq., 330; 41 S. C., 512; Rice Ch., 58; 12 Rich. L., 154. As to relief against misconception of law: 2 Bail., 648; x Hill Ch., 250; 2 McC. Ch., 462; 8 Wheat., 215; 44 S. C., 32; 13 S. C., 209.</p> <p>As to relief against misconception of law: Sexton, 232; 4 Ohio, 358; 7 Humph., 86; 6 Ohio, 169; E. R., 2; H. E., 149; 1 Head., 77; E. R., 6; E. H., 223; 64 Ind., 50; 99 N. C., 30; 1 N. J. Eq., 232; 5 Humph., 529; 14 Ore., 542; 3 Col., 551; 3 Gratt., 193; 2 Bail., 623; 117 Pa. St., 298; 2 McC. Eq., ’462; 2 Bail., 649; 1 Hill Ch., 251; 44 S. C., 34; 36 S. C., 260; 40 S. C., 92.</p> <p>cite: As to pleading deñciency of title affecting part of property, rule in Courts of law: 1 Bay, 256, 278, 326; 2 Bay, 558; 2 Brev.; 99; 3 Brev., 458; 1 N. & McC., 78; 2 N. & McC., 186, 193, 184; 1 McC., 121, 125, 584; 3 McC., 449; 4 McC., 434; Harp., 290, 441; 1 Hill, 317, 322; 2 Hill, 259; 3 Hill, 299; Chev., 115; 1 McMil., 37; 1 Spear., 119, 120; 2 Spear, 9; 1 Rich., 52; 6 Rich., 362; 2 Rich., 167; 9 Rich., 579. Rule in Equity: x Rich. Eq., 350; 2 Rich. Eq., 350. Rule since 1867: 9 S. C., 287; 13 S. C., 210; 22 S. C., 185; 27 S. C., 193; 35 S. C., 359; 4i S. C., 508; 53 S. C., 32. As to relief against mistake of law: 6 S. C., 485; 20 S. C., 337; 26 S. C., 47; 35 S. C„ 359; 36 S. C., 575; 40 S. C., 101; 44 S. C., 22. Receiver properly appointed: 31 S. C., 547; 40 S. C., 114; 50 S. C., 567; 32 S. C., 134; 34 S. C., 77; 51 Me., 434; 59 Mass., 289.</p>

Before Klugh, J., Sumter, October term, 1899. Action by A. Brooks Stuckey, administrator of Sarah P. Dixon, against The Atlantic Coast Dine Railroad Co. of South Carolina. Plaintiff appeals. As to right of this Court to review order granting new trial: 23 S. C., 231; 19 S. C., 580. As to power of Judge to change amount of verdict: 1 McC., 183; 1 Hill, 55; 2 Hill Ch., 12; 56 S. C., 80; 12 U. S. App., 574; 1 U. S. App., 267; 52 D. J. G. B., 479; 2 N. J. R., 24.

Before Watts, J., Darlington, January, 1899. Action by Lewis Jerkowski, Harry E. Moss, and Emanuel Blumensteil, executors of Samuel Jerkowski, against Manuel Marco, and judgment creditors and mortgagees of this defendant. Defendants, Manuel Marco and- J. H. Parker, appeal. As to deed of insane person: 4 Rich. Eq., 368; 15 Wall., 9; 94 U. S.,' 37*- As to reversing finding of fact: 51 S. C., 363, 420; 45 S. C., 508; 47 S. C., 347; 51 S. C., 505, 49; 49 S C., 62.

Before Klugh, J., Charleston, April, 1899. Action by Louisa Wille against Frederick C. Wille. The master’s report is as follows: “I find the following facts : The plaintiff is an aged, ignorant and illiterate woman, a German by birth and nationality. She can neither read nor write. In the year 1897 she owned the house on the south side of Line street, in the city of Charleston, described in the complaint in this action.

Before Townsend, J., Colleton, September, 1897. Action by Jones Brothers against C. M. Hiers. Defendant appeals. As to charge on the facts: 50 S. C., 168; 47 S. C., 488; 49 S. C., 4971 51 S. C., 461. As to prerequisites of recording mortgage so as to make it notice: 22 S. C., 332. As to kind of damages recoverable in actions of this kind: 39 S. C., 465.

<p>Before Klugh, J., Spartanburg, July, 1898.</p> <p>Action by M. M. Brown against Spartanburg, Union and Columbia R. R. Co. Plaintiff appeals from order of non-suit.</p> <p>94 U. S., 474; 42 Md., 136; 39 S. C., 514; 31 S. C., 396.</p> <p>21 S. C.; 470; 45 S. C., 282; 52 N. H., 552; 95 U. S., 130; 33 Md., 542; 6 Am. St. R., 521; 27 Am. St. R., 656; 2 Am. St. R., 606; 38 Am. St. R., 180; 30 Am. St. R.; 902; 6 Am. St. R., 528; 46 lb., 853; 55 lb., 730; 53 lb., 942; 52 S. C.,'336.</p>

Before Benet, J., Spartanburg, April, 1898. Action of Wm. J. Clement against Geo. B. Dean, as sheriff of Spartanburg Co., and Fielding Cantrell. From refusal to sign order dismissing complaint for waiver of right to amend granted by previous order, plaintiff appeals. 48 S. C., 433 i 39 S. C., 333; 11 S. C., 409.

Before Buchanan, J., Darlington, March term, 1899. Action by Virginia-Carolina Chemical Co. against J. P. Kirven under statute for amount due under agricultural lien. Defendant appeals. As to amount due having been adjudged by Judge Watts: 34 S. C., 354; 24 S. C., 481; 49 S. C., 512; 17 S. C., 35; 27 S. C., 364; 29 S. C.,'450. As to opinion evidence: 34 S. C., 140; 20 S. C., 452; 32 S. C., 400; 40 S. C., 330. As to the admission of the photograph of the weavil: 42 Am.

<p>Before Gary, J., Greenwood, August, 1899.</p> <p>Action by Mary Hollingsworth, administratrix of P. C., Hollingsworth, against Southern Railway. From order sustaining demurrer to plea in abatement, defendant appeals.</p> <p>Code, 165, sub. 3, 168; 51 S. C., 137; 107 U. S., 20; 153 U. S., 671; 22 Am.' Dec., 677'; 25 Am. Dec., 197; 2 Fort., 21; 89 Fed., 66; 44 S. W. R., 660; 58 Am. Dec., 437; 84 Am. Dec., 451.</p> <p>24 Am. Dec., 195; 16 S. E. R., 106; 36 Mich., 157; 27 S. E. R., 572; 42 L. R. A., 486; 99 U. S., 169; 13 Wis., 84; 12 La., 159; 7 Fed. R., 520; 17 Fed. R., 627; 45 Mo., 294; 16 Ind., 327; 58 Am. Dec. 433; 22 Am. Dec., 677.</p>

Before Townsend, J., Greenville, April, 1899. Action by G. Lawrence Walker, as county treasurer of Greenville Co., against R. R. G. Holtzclaw and The American Banking and Trust Co. of Baltimore City, on the following complaint: “1.

<p>Before Krugh, J., Charleston, April, 1899.</p> <p>Action by Anna P. Westbury, administratrix of Wm. H. Rentz, against Benjamin I. Simmons. Prom" judgment on verdict for plaintiff, defendant appeals.</p> <p>As to admission of incompetent evidence: 2 McC., 160; 32 S. C., 547; 30 S. C., 149; 93 U. S., 382; 33 S. E. R., 388; 22 S. C., 198; 30 S. C., 150; 47 S. C., 493. As to charge on facts: 47 S. C., 488; 27 S. E. R., 485, 526, 648, 659; 29 S. E. R., 209; 31 S. E. R., 62. As to rights of assignor under assignment: Code, 133; 31 S. C., 389; 38 S. C., 139; 45 S. C., 86; 27 S. C., 227; 49 S. C., 477; 58 Penn., 214; 22 S. C., 550; 3 Strob., 267; 23 S. C., 501; 101 U. S., 575; 57 N. Y., 229; 47 Id., 421; 22 Id., 535; 46 Id., 325. As to purchase for value by defendant: 2 Rich., 113; 6 S. C., 168; 102 U. S., 46; L. R-, 10, Eq., Q. B., 92; 2 DeG. & J., 21; 55 N. Y., 41. As to effect of fraud on part of assignor: 1 Johns. Ch., 354; 19 S. C., 402; 26 S. C., 511; 2 Rich., 113; 102 U. S-, 45; 13 Rich., 330. As to who may receive life insurance policy as assignee: 85 Ñ. Y., 598; 138 Mass., 24; 94 U. S., 457; 117 U. S., 597i Si S. C., 105.</p> <p>As to transactions with decedent: 20 S. C., 572; 47 S. C., 488; 53 S. C., 22; 6 S. C., 82. As to declarations of holder of chose in action against assignee: 7 Rich., 4; 2 McC., 241; 2 Rich., 168753 S. C., 76. As to evidence to show purpose of assignment: 22 S. C., 39. Policy chose in action: 42 S. C., 121. As to rights of assignee under assignment: 38 S. C., 148; 45 S. C., 86; 22 S. C., 29; 49 S. C., 469. As to assignment of insurance policies: 51 S. C., no.</p>

Before Buchanan, J., Sumter, October, 1898. The State against George Preston Taylor, alias Tom Taylor. From verdict and sentence for rape, defendant appeals. As to evidence about reputation of prosemtrix’s home: 7 Hun., 17151 Cal., 371. . As to impeaching character of prosecutrix for chastity: 17 Tex. App., 525; 73 la., 532; 1 Abb. App., 418; 3 C. & P., 562; 5 Cox C. C., 146; 19 Wend., 192. As, to opinion evidence: 19 S. C., 525, 66; 117 Mass., 122.

Before Gary, J., Spartanburg, July term, 1899. Indictment against George Smith for robbery and assault and battery. Two cases. From verdict and sentence, defendant appeals. As to the point decided: 14. Rich., 172; 15 S. C„ 435; 54 S. C„ 181.

<p>Before Gary, J., Union, June term, 1899.</p> <p>Action by H. C. Lawson, Mattie Scaife, H. P. Grady and Jesse Jolly, against R. T. Gee, executor of M. G. Humphries, P. M. Farr and Wm. Munro. From order permitting defendant, Munro, to amend answer and overruling demurrer thereto, plaintiffs appeal.</p> <p>As to error in accounting being a defense: 49 S. C., 253; 2 Bail., 202; 2 Rich., 462; 5 Rich., 68. As to laches: 49 S. C., 7; 2 Brev., 3; 28 S. C., 105; Rich. Eq. Ca., 77; 3 Rich., 121; 2 DeS., 22674 DeS., 227; 11 S. C., 593.</p>

<p>Before BenET, J., Aiken, March, 1899.</p> <p>Action by Mrs. W. H. Chaffee against city of Aiken and B. L. Lambert. From judgment for defendants, plaintiff appeals.</p> <p>As to reasonable time for acceptance of a street: 44 Mich., 467; 67 Hun., 546; 97 la., 599; 14 Col., 647; 70 Id., 476; 31 Id., 388; 42 Id., 552; 64 Id.,' 502; 69 Tex., 449; 6 Vt., 355; 67 Tex., 345; 61 N. Y., 448; 48 Miss., 423; 32 Mich., 279; 124 111., 235; 88 Id., 208; 81 Col., 70. As to submitting to jury question upon zvhich there is no evidence: 60 A. D., 563; 26 A. D., 681; 24 A. D., 326; 66 A. D., 321, 599; 81 A. D., 521; 27 A. D., 297; 67 A. D., 658; 97 A. D., 478; 29 S. C., 161; 8 A. S. R., 242; 15 Id., 819, 778; 10 Id., 772; 92 A. D., 703; 57 Id., 580; 16 Id., 311; 15 S. C., 95; 16 S. C., 634147 S. C., 711 14 S. C., 5101 55 S. C., 418. Acceptance by town of some streets on its'plats does not operate as acceptance of all: 86 Col., 405; 48 Conn., 4161 107 111., 217; 141 111., 109; 68 la., 296; 65 Md., 5141 32 Mich., 279; 27 A. D., 554; 47 N. E. R., 191; 23 Minn., 5131 108 Mich., 629. The city is now estopped from claiming this street: 37 S. C., 327; 2 Bay, 282; 31 111. App., 285; 27 la., 599; and has lost the right by failure to accept plat: 49 Mo., 509; 27 A. D., 5541 83 A. D., 2671 15 A. S. R., 28; 79 A. D., 589; 6 Pet., 440; 5 Strob., 217. As to estoppel by conduct: 25 Ind., 458; 1 Wall., 274; 10 A. & E., 901 93 Ind., 570; 25 Id., 458.</p> <p>As to submitting to jury what map legislature contemplated: 7 Rich., 435- As to acceptance of street: 2 Hill, 389; 5 Strob., 218; 7 Rich., 435. No title by adversé possession of street: 37 S. C., 334. As to estoppel: 13 S. C., 29, 370; 42 S. C., 531; 10 Am. St. R., 309; 37 S. C., 335; 53 S. C., 5; 2 Wall., 32; 23 S. C., 69; 39 Pac. R., 812.</p>

Before Watts, J., Lexington, April, 1899. Action by Jacob A. H. Geiger and Henry F. Geiger, as executors of Abram W. Geiger, against his widow, his remaining children, grand-children and creditors. From Circuit decree, the children, M. Carrie Nunnamaker and Elizabeth R. Leaphart, and their children, appeal. The former cites: As to unconstitutionality of act allozmng zvidozv homestead: Rev. Stat., 2129; Con. 1868, sec. 32, art. II.; 21 S. C., 375; 19 S. C., 279.

Before Benet, J-, Cherokee, May, 1899. Action by Peyton B. Love against J. G. Love et al. Jno. T. Darwin and Ada I. Perry appeal. Rules of law applicable to titles to minerals, same as those applying to title to soil: 27 S. C., 3095 50 S. C., 161526 S. C., 608. No proof of title in respondents, because no proof of judgment, decree or sale: 25 Fla., 889; 14 S. C., 4805 18 S. C., 328. Rule where both claim from common source: 26 S. C., 160.

Before Gary, J., Chesterfield, August, 1898. Action by Elijah N. Redfearn, as administrator de bonis non, of Thos. E. Mulloy, against Thos. P: Craig, William D. Craig, Edward E. Mulloy, and judgment creditors of said Edward E. Mulloy. The plaintiff and the defendants, Thos. P. and W. D. Craig, appeal from the Circuit decree upon numerous exceptions, alleging error in specific findings, but they all together raise substantially the questions answered in the opinion.

<p>Before Buchanan, J., Lancaster, October, 1899.</p> <p>Action by Gertrude Foster, J. Cantzon Foster, and Carl A. Foster, Catherine Foster, R. K. Foster, and Josephine Foster, by their guardian ad litem, J. Cantzon Foster, against R. L. Crawford, and also ten other actions by same plaintiff against the ten other defendants named in caption. The Circuit Judge, after hearing the cases, announced from . the Bench the following reasons for signing the order thereto appended:</p> <p>“There is no dispute as to the facts in their case; the only question in the case submitted to the Court being a question of law. It is conceded that, if the decree for the sale of the land of the Foster estate, made in the case of Charlotte R. Foster v. Eloise Foster et al., was not void, then the defendant has legal title to the land here in question. But it is claimed by plaintiffs that said decree was and is, void as to plaintiffs in this action, the claim being that said plaintiffs here were never properly served with process in said former action in which they were named as defendants. The question is whether the record in said action of C. R. Foster v. Eloise Foster et al., shows that the infant defendants there, who are plaintiffs in this action, were served with the summons so as to give the Court jurisdiction of the persons and property of said infant defendants in said former action. The claim of the plaintiffs in this action is, that, in order to obtain jurisdiction 'over them as defendants in said former action, they being infants under fourteen years of age, it must appear from, the record that the officer serving the summons therein delivered the same to said infant defendants therein, and also to C. R. Foster, the mother of said infant defendants and the person with whom they resided, she being also the plaintiff in said action. The plaintiffs claim that no such service by formal delivery to the said C. R. Foster for the said infants was made, that her admission, acknowledgment and acceptance of service, as the mother of said infants and the person with whom they resided, which is indorsed upon the summons and signed by her, and which is also contained in her petition for appointment Of guardian ad litem, is not sufficient and does not show service. In the first place, the Court holds that the mother and only surviving parent of these infants, being the plaintiff in the cause and cognizant of the issuance of her own summons, it was not necessary that there should be any formal service whatever upon her, the object of service being to give notice, and she having notice already and acting upon that notice in procuring the appointment of a guardian ad litem for the infants. There being no general or testamentary guardian, and the plaintiff being the mother and the person with whom the infant defendants resided, it would be a vain and useless act to make a formal delivery to her of her own summons by the hands of an officer or other person to make such formal service. In point of fact, however, the record shows that the summons was served by delivery to the infant defendants, as appears by the proof of service indorsed on the summons, and also shows that it was served on C. R. Foster, the mother of said infants and the person with whom they resided, as appears by the written acknowledgment, signed by her, indorsed upon the summons. Besides, in her petition for the appointment of guardian ad litem for these same infants, there appears a clear acknowledgment and admission of service. The record, therefore, in the case of C. R. Foster v. Flo'ise Foster et al., shows affirmatively the infant plaintiffs here (all of .whom were defendants there) were served with the process in that action by the delivering not merely to the infants themselves, but also to their mother, C. R. Foster, with whom these infants resided. It shows that the said C. R. Foster thereupon applied for and procured the appointment of a guardian ad litem for said infants, who appeared and answered for and in the name of said infants. Thereafter, a decree for the sale of said lands was made, the sale had, under which defendant acquired title to the land here in question, and such sale and conveyance confirmed by the Court. It must be concluded that the title to the land in question passed by such sale, conveyance and confirmation of sale. Thereupon, the Judge signed the following order or decree in the case against R. R. Crawford: A jury trial of the legal issues as to the title to the land here in question having been duly waived by the parties, plaintiffs and defendant, and the said legal issue as to the title of the land here in question having been submitted for determination by the Court, the equitable issues raised by the allegations of the answer, and the counter-claim for betterments therein set up being reserved, after hearing the evidence, I find that the legal title to the land here in question is in the defendant, there being no jurisdictional defect in the case of Charlotte R. Foster v. E'loise Foster et al., the facts are not disputed, and the reasons for the conclusions that there is no jurisdictional defect in the record of the judgment in the case of Charlotte R. Foster v. Eloise Foster et al., have been orally stated and taken down by the stenographer. Hereupon, it is ordered and adjudged, that the complaint be dismissed with costs.”</p> <p>Also the following order:</p> <p>“The above is the order in the case against R. R. Crawford. In each of the other cases by same plaintiffs against the defendants severally named in the several cases stated in the title, it was conceded by plaintiffs in open Court that said decision of the question submitted to and decided by the Court by the decree in the above stated case against R. R. Crawford, was conclusive of the issue submitted in the said other cases, the facts in said other cases upon this particular issue being admitted by plaintiffs to be substantially the same as in the Crawford case, the defendants in said other cases holding under deeds executed by the clerk of the Court in pursuance of sales made as in the Crawford case; all other issues in said other cases being reserved. Accordingly the following decree in each of the other cases stated in the title was made: The issue as to the legal title in this action being the same as in the action by the same plaintiffs against R. R. Crawford, defendant, in which a decree was made at this term dismissing the complaint, and it being conceded by-plaintiffs that the decision in the case just mentioned is conclusive of the question of title raised by the pleadings in this case, and said issue as to legal title in this case having been herein submitted by agreement for determination by the Court, and it being conceded that the decision in this case depends upon the same facts as in the case against R. R. Crawford above mentioned. Hereupon, it is ordered and adjudged, for the reasons stated in the decree in the said case against R. R. Crawford above mentioned, that the complaint herein be dismissed with costs.”</p> <p>Plaintiffs appeal.</p> <p>Code, 155, sub. 2; 17 S. C., 435; 23 S. C., 154, 187; 24 S. C., 373; 25 S- C., 275; 31 S. C., 576; 80 Ala., 395; 64 Ala., 406 ; 109 lb., 430; 101 lb., 340; 1 lb., 379; 16 lb., 509; 47 lb., 195; 37 H)-, 595; 43 lb., 78; 63 Ib., 241; 57 Ib., 614; 84 N. Y., 626; 134 N. Y, 568.</p> <p>51 Col., 615; 45 Miss., 374; 31 S- W. R., 139; 86 Ky., 618; 14 S. W. R., 908; 49 S. W. R., 188; 31 S. C., 576; 35 S. C„ 394; 23 S. E. R., 516; 48 S. C., 568.</p> <p>51 Col., 615; 49 S. W. R., 188; 31 S. W. R., 142; 86 Ky., 618; 48 S. C., 568; 51 S. C., 393; 31 S. C., 579; 49 S. C., 136; 56 S. C., 96; 3 S. C., 308; 13 S. C., 91; 37 S. C., 345-</p> <p>56 S. C., 4; Code, 155; 17 S. C., 439; 23 S. C., 187; Code, 159; 25 S. C., 282; 35 S. C., 39R 48 S. C., 566; 32 S. C., 307; 31 S. C., 579; 35 S. C., 404; 45 Miss., 374; 31 S. W. R., 139; 16 Ala., 513; 45 Wis., 67.</p> <p>28 S. C., 119; 17 S. C., 75; 42 S. C-, 511; 48 S. C., 566; 23 S. C., 167; 56 S: C., 96; 51 Col., 615.</p>

<p>Before Ki/ugh, J., Greenville, February, 1899.</p> <p>Action by Susan E. Turnipseed against George W. Sirrine, executor of A. Viola Neblett, Sarah Enodeus Neblett, and The Neblett Free Library Association. The Circuit decree is as follows:</p> <p>“This case was heard by me upon the pleadings, testimony taken in open Court and argument of counsel, in December, 1898. The object of the action is to established an agreement which the plaintiff claims was entered into by Mrs. A. Viola Neblett with the plaintiff, by which Mrs. Neblett promised to leave by will to the plaintiff the bulk of her property, and to enforce the performance of the agreement. The complaint alleges that the plaintiff and A. Viola Neblett were aunt and niece, and had no other near relatives by blood — the latter, however, being married to J. M. Neblett, and that they resided together as one family in the city of Greenville until the year 1892, when said J. M. Neblett died, and that thereafter plaintiff and Mrs. Neblett continued so to reside together until the year 1895. That many years ago, and prior to the aforesaid dates, they entered into an agreement by which each agreed to leave to the other the great bulk of her property, with the proviso that Mrs. Neblett’s husband, should he survive her, was to have her property for his life. That in the year 1892, after J. M. Neblett died, being sole next of kin to one another, and sole heirs presumptive of each other, the plaintiff and Mrs. Neblett reaffirmed their previous agreement, and again agreed that on the death of either her property should devolve upon the other through the means of provisions contained in mutual wills, which were to be executed at once and not revoked under any circumstances during their joint lives; that the will of plaintiff was to provide a specific legacy of $10,000 to A. Viola Neblett, to be paid before any other legacy; then, after certain other minor legacies, the entire residue of plaintiff’s estate was to be given to Mrs. Neblett; while the will of the said A. Viola Neblett, after a small specific pecuniary legacy to another person who was her namesake, was to give to plaintiff the entire residue of her estate. That in the year 1892, Mrs. Neblett, in pursuance of said agreement, for valuable consideration received of the plaintiff, made and duly executed her will containing the provisions above recited, said will being read over to plaintiff and approved by her; that at the same time, the plaintiff, in pursuance of said agreement, made and duly executed her will containing the provisions agreed upon in favor of Mrs. Neblett, as above recited, which will was submitted to and approved by Mrs. Neblett. That the plaintiff and Mrs. Neblett thereupon agreed that said wills should not, under any circumstances, be revoked, but should stand as a complete settlement or family arrangement of the property of which they should respectively die possessed; and that said property of each, except the specific legacies before mentioned as being given to others, should upon her death descend to the survivor, and neither of them should do anything to interfere with the succession of the other to such property as she might leave. That at the time of the execution of mutual wills as above set forth, owing to the difference of their respective conditions of health, the plaintiff’s health being bad and Mrs. Neblett’s apparently good, and in their ages, the plaintiff being far advanced, in years and Mrs. Neblett much younger, the life expectancy of Mrs. Neblett was considerably longer than that of the plaintiff. That plaintiff and Mrs. Neblett were each possessed of considerable property, consisting almost entirely of stocks, bonds, mortgages, notes and other personal property; and that the said wills were executed at the repeated suggestions and requests of Mrs. Neblett. That the last mentioned will of plaintiff remains unrevoked to the time of this action; that ever since the making of her first mentioned will and the agreement aforesaid, the plaintiff has conducted herself in the management of her property with reference to said arrangement, and ■made only such investments and changes in her property as were consonant therewith and with the view of carrying it into effect, and has refrained from disposing of or exercising power over her property that would in any way defeat the succession thereto of Mrs. Neblett, pursuant to said agreement ; that the plaintiff has all the time relied on the promises and assurances of Mrs. Neblett, and considered herself bound not to revoke her will; she supposed until after the death of Mrs. Neblett that her aforesaid will remained likewise unbroken. That the aforesaid arrangement between plaintiff and Mrs. Neblett was well known to George W. Sirrine and Mrs. S. E. Sirrine. That in the year 1896, Mrs. Neblett became very ill and up to the time of her death, which occurred April 27, 1897, was in great suffering, and it became necessary to administer to her great quantities of morphine and other opiates, and that for a long time before her death she had been under the influence of morphine, and by reason thereof and weakness from illness was not in full possession of her faculties. That while in such mental condition she was induced to execute a paper, on April 9, 1897, purporting to be a last will and testatment. That undue influence was exercised upon the mind of Mrs. Neblett to induce her to execute said instrument, and to violate the arrangement or contract and to revoke the will which she had previously made in behalf of plaintiff. That in order to effectuate said purposes, the Neblett Free Library Association was organized in the city of Greenville, the corporators of which were well aware of the arrangement between the plaintiff and Mrs. Neblett, and of Mrs. Neblett’s agreement to devise her property aforesaid to the plaintiff; and after the organization of the said corporation, Mrs. Neblett was induced, as aforesaid, to sign a paper purporting to be her last will and testament, by which she gave the great bulk of her property to the said Neblett Free Library Association, the amount of said gift being estimated to be at least $17,000, and consisting almost entirely of stocks, bonds and other personal property, and made such other disposition as appears by reference to said will. That the provisions contained in the last mentioned instrument are in violation of the agreement between plaintiff and Mrs. Neblett, and in fraud of the rights of plaintiff, and that'it was secretly executed and all knowledge thereof kept from plaintiff, who in ignorance of such attempted changes in the will of Mrs. Neblett, allowed her own to remain unrevoked until the death of Mrs. Neblett. That said paper, purporting to be the last will and testament of Mrs. Neblett, has been admitted to probate and letters testamentary issued to G. W. Sirrine, as executor. That plaintiff does not know the exact value of the estate of Mrs. Neblett; but believes it to be worth over $25,000; that it consists altogether of personal property. That said agreement between plaintiff and Mrs. Neblett was binding in law and equity, and thereby a trust was imposed upon the property of each in favor of the other, and that from this trust or equity arises the right in the survivor to have the property of the deceased turned over to her as her own, subject to the dispositions heretofore set forth, and that the property in the hands of G. W. Sirrine and all legatees under said will is subject to said trust. That plaintiff is willing that certain of the specific legacies mentioned in said will be turned over to the respective legatees. That Mrs. Neblett left no debts but one of $1,500 to plaintiff, and the funeral expenses and expenses of the last illness, amounting to not more than three or four hundred dollars, and that she left on hand enough cash to pay the same. . The will of Mrs. Turnipseed and also the last will and testament of Mrs. Neblett are attached to the complaint as exhibits.</p> <p>The answer of the executor, after putting in issue substantially all the facts alleged in the complaint out of which plaintiff’s cause of action arises, alleges that the estate of Mrs. Neblett consisted of both real and personal property; that the alleged agreement to make mutual or reciprocal wills was without consideration; and that said agreement was not in writing, and was within the provisions of the statute of frauds. The answers of Mrs. Sirrine and the Neblett Free Library Association raise the same issues as that of their co-defendant, the executor. The other defendants have not answered.</p> <p>When the case was called for trial, a motion was made by counsel for the plaintiff to refer certain issues to a jury. The issues'proposed involved substantially the questions: 1st. Did Mrs. Turnipseed and Mrs. Neblett agree to make wills in favor of each other? 2d. Was such agreement within any of the provisions of the statute of frauds? 3d. Was such agreement based upon a valuable consideration ? 4th. Were the wills executed, and, if so, was it agreed that they should be irrevocable? 5th. Was undue influence used to induce Mrs. Neblett to make the will of April, 1897, which became operative as her last will and testament? It seemed to me that upon the last of the issues, at least, the Court should have the assistance of a jury, and against the objection of counsel for the defendants, I ordered all the proposed issues to the jury. Thereupon, a great deal of testimony was offered, at the conclusion of which I deemed it established beyond question that the parties had agreed to make mutual wills; that such wills were accordingly executed and were understood by the parties to be irrevocable; and further, I was satisfied that the question of undue influence or the circumstances under which Mrs. Neblett made her will in April, 1897, was irrelevant to the main issue in the case — first, because no attack is made in this action upon the validity of that will; and secondly, because the plaintiff had proved by her own witnesses that Mrs. Neblett destroyed the will in favor of plaintiff, and made another will in 1896, thereby revoking the first mentioned will and annulling her agreement with Mrs. Turnipseed, so far as she was able to do so, and the will of 1897 only revoked that of 1896. The remaining issues before the jury involved nice questions of law in the determination of which the opinion of a jury can be of but little value; while the Court was confronted with the ■embarrassing fact that, under the provisions of our statute of 1890, regulating the submission of issues in a chancery case to a jury, the decision of the jury upon these questions of law would be conclusive of the case, the only escape from which decision, if unsatisfactory, would be to set aside the findings of the jury and put the parties to the expense and vexatious delays of a new trial. I, therefore, vacated the order submitting issues and discharged the jury.'</p> <p>The cause was very ably and exhaustively argued in its various aspects by counsel on both sides. The first question arising in the case is as to the existence of the agreement between Mrs. Neblett and Mrs. Turnipseed to make wills in favor of each other. As stated above, the testimony of witnesses who have no interest in the matter and whose veracity is unquestionable, as to the admissions of Mrs. Neblett, proves conclusively the existence of such agreement, and also that the wills were executed in accordance with the agreement. I think it equally as well established that Mrs. Neblett considered herself bound not to revoke her will thus made. Her language to Miss Austin was : “That will will stand, no matter how estranged we may become. We may not speak to each other, but those wills are binding and cannot be broken.” Having broken her agreement and revoked the will, the main issue now is whether the Court will enforce the specific performance of the contract. The equitable doctrine of specific performance applies to agreements to make wills as completely as to any other class of contracts. Rivers v. Rivet's, 3 DeS., 190; McKeegan v. O’Neal, 22 C. C., 454. And the Court proceeds in the application of the doctrine in such cases upon the same principles as in all other cases of specific performance. ' Fogle v. St. Michael’s Church, 48 S. C., 86. The first requisite to the exercise of this jurisdiction is that it shall be clearly proved that there was an agreement. In the case under consideration, the witness, Frances Whit-mire, testifies that Mrs. Neblett and Mrs. Turnipseed were talking about making their wills. “Mrs. Neblett said, ‘Aunt Sue, have you made up your mind to do what you said you were going to do ?’ and she said: ‘Yes, I have, but I was only waiting on you to say what you were going to do about it.’ Mrs. Neblett said: ‘Well, we had better come to an agreement.’ * * * Miss Viola says: ‘Now, Aunt Sue, I want you to be satisfied with what you do;’ and Miss Sue said: T am, Viola, and I want you to be satisfied, too.’ * * * Miss Viola says: ‘Aunt Sue, we have got our minds together, and we will send for Mr. Dill.’ ” The testimony of Mr. Lewis, Miss Austin, Miss Lewis, Mrs. Tucker and others, as to the subsequent admissions of Mrs. Neblett that there was such an agreement, fully corroborate Frances Whitmire, and clearly proves the fact. The agreement as proved must be definite and certain as to the parties, the subject matter and the consideration. There can be no question here as to the parties, either as to their identity or their competency to contract. The subject matter is equally as clearly ascertained, embracing the entire estate of each of the parties, with certain explicit exceptions! On the part of Mrs. Neblett it embraced all of her estate, real and personal, except a small pecuniary legacy to her namesake, Viola A. N. Doolittle; while on the part of Mrs. Turnipseed, it embraced a legacy of $10,000, and also the residue of her estate, real and personal, after pecuniary legacies amounting to $1,700 were paid and the gifts of certain articles of personal property were made to other parties. The subject matter of the agreement was thus definitely expressed, and certainly there is nothing better settled than that testamentary agreements with reference to one’s property are lawful and not against public policy.</p> <p>Was the agreement based upon adequate consideration? The immediate consideration in the contemplation of the parties at the time of entering into the agreement was the sure prospect which each thus secured of succeeding to the ownership of almost the whole of the other’s estate and the resulting family arrangement thus effected in reference to both estates. This was surely consideration. sufficient to support the agreement on both sides. “Consideration sufficient to support an executory contract,” says Judge O’Neal, “need not be an exact quid pro quo. Anything which is a benefit to the party promising and which he could not otherwise obtain, or which puts the other party to trouble, inconvenience or loss, will prevent the contract from being nudum pactum.” Gee v. Hicks, Rich. Eq. Ca., 15. In this view the expenses of having the papers prepared might be deemed adequate consideration in the absence of any other, but as we have seen, there was other and far greater consideration moving both parties in this case. The evidence establishes a complete contract — ‘a mutual agreement between competent parties for valuable consideration touching a lawful subject matter/ which, was neither unfair nor unreasonable.</p> <p>The defendants urge that the contract cannot be enforced because within the statute of frauds. This defense needs to be examined in its full scope. The allegations of all the answers are, substantially, that Mrs. Neblett’s estate at the time of her death consisted of both real and personal property ; that the alleged agreement was not in writing, and the defendants plead the statute of frauds. The objection that this is too general a plea to be considered, is untenable. It has been the established doctrine in this State almost from the creation of our courts, that the defendants may have the benefit of the statute without specifically pleading it when he pleads the general issue, and the answers in this case are, in effect, the general issue, with the addition of affirmative defenses. The plea of the statute in this case, while it might have been more fully expressed, is sufficient to give the plaintiff the fullest notice of the matters which would be relied on in support of the defense. There are three provisions of the statute of frauds invoked as a bar to this action, any one of which, if established, is sufficient to defeat it, to wit: the fourth and fifth clauses of section 4 and the fourth clause of section 17. With reference to the fifth clause of section 4, that the agreement was not to be performed within a year, it is sufficient to say that all agreements whose performance is contingent upon the happening of some event which may occur within a year are considered as, in the intention of the parties, to be performed within a year, and, therefore, not within the statute. Walker v. R. R. Co., 26 S. C., 88. An agreement to make a will involves such contingency. Izard v. Middleton, 1 DeS., 116. The fourth clause of section 4 declares that no action shall be brought upon any contract or sale of lands, unless the agreement be in writing, signed, etc.; while section 17 provides in its fourth clause that no contract for the sale of goods for the price of $50, or more, shall be allowed to be good, except that some note or memorandum in writing of the bargain be made and signed, etc. It is uncertain, from the evidence, whether Mrs. Neblett owned any land at the time of her death, of which time alone the agreement speaks, and I have not thought it necessary to send the case back for further testimony upon that point, but assume that she had no real estate at that time. If her estate did not comprise any realty, then the fourth clause of section 4 does not apply; if it did include realty, then said clause does apply, unless there was either a written and signed agreement or such part performance as would take the case out of the provision of the statute for the purpose of enforcing specific performance. There was no such part performance as the law contemplates. The making of the wills in pursuance of the agreement was in one sense complete performance of the agreement on both sides, but in its proper sense that act was but the first step towards the performance of an agreement which could not be complete till the death of one of the parties should render her will effective. It left the plaintiff in the exclusive possession, control and enjoyment of all her property, and did not change her situation in relation thereto to her injury. The great bulk, if not the whole, of Mrs. Neblett’s estate consists of personal property. It is, therefore, an important inquiry whether or not the provisions of section 17 of the statute of frauds applies. This will depend, first of all, upon the question whether or not agreement to make a will of personal property is a contract for the sale of such property. A sale is the transfer of the ownership of some article in consideration of a price in money. A contract to make a will of personal property in consideration of a sum of money paid or promised would be clearly a contract for the sale of such property. ‘A will is considered in the nature of a conveyance by way of appointment.’ Gould v. Mansñeld, 4 Am. Reps., 574, citing Hanveed v. Goodright, Comp., 87, 90. Tt doth as effectually give and transfer estates, and alter the property of lands and goods, as acts executed by deeds in the lifetime of the parties.’ 1 Shep. Touchst., 402. Hence, ‘a devisee comes within the legal definition of one who takes by purchase/ and it has been held in numerous cases that a contract to devise is within the statute of frauds. It would seem that a contract to make a will of personalty upon any valuable consideration would in like manner be deemed a contract for the sale of personalty. Chancellor Kent’s definition of a sale is ‘a contract for the transfer of property from one person to another for a valuable consideration.’ 2 Kent, 468. I am convinced that the statute, which is remedial and should receive a liberal construction, uses the term ‘sale’ in this larger sense rather than in its narrow technical meaning of a transfer for money alone. ‘When the title to property, either real or personal, is to be acquired by purchase, the statute of frauds will operate upon and affect the contract in precisely the same manner, whether the consideration for the purchase is to be paid in services, money or anything else.’ Wallace v. Long, 55 Am. Rep., 225. In that case the agreement was to make a will of both real and personal property, and it w'as held to be within the statute. The case of Gould v. Mansfield, cited above, is strikingly like the case under consideration in its facts. Two women named Gould (what the relationship was is not revealed by the report in the Am. Repts.), agreed to make wills in favor of each other of their, entire estate, both real and personal. The wills were accordingly executed, and each agreed not to revoke her will or to make any different disposition of her property. The plaintiff allowed her will to stand until the death of the other party, Nancy Gould, and, supposing that Nancy’s reciprocal will still existed, performed services and expended money for her. Nancy made another will which was admitted to probate, giving her property to others. The.two estates consisted mainly of realty, but the agreement related to both real and personal property. The.Court held the case to be within the statute of frauds as to the lands, but did not consider the statute as to the personal property, it being of little value, and the contract indivisible.</p> <p>The agreement in this case, then, assuming that it relates only to personal property, is within the 17th section of the statute of frauds, for the value of the property intended to be transferred is far in excess of $50. The argument that it was uncertain what estate either Mrs. Neblett or Mrs. Turnipseed would leave, and that the consideration thus might fall below $50, cannot avail, for the fact is that Mrs. Neblett’s estate is ascertained to be worth many times that amount. 8 Am. & Eng. Ency. of Law, 710, and note.</p> <p>The plaintiff’s counsel argued very ingeniously, in order to escape the provisions of the statute of frauds, that, the parties being sole heirs of each other, the agreement was in effect a contract to allow the estate of the one dying first to descend according to law — in other words, a contract to die intestate; and that it was thus not a contract for the sale of either land or personalty. The authority relied on mainly is the case of Seabrook v. Seabrook, 10 Rich. Eq., 496. The doctrine is thus stated by Chancellor Dargan in the Circuit decree, which was affirmed on appeal: ‘It is undoubted law, that where a testator gives by his will the same estate to the same persons who would be entitled to take that estate by operation of law in case of an intestacy, the devise or legacy will be void, and the right of the party or parties entitled will be referred to the law of distributions and descents. If there be any variation between the dispositions which the will and which the law makes in such a case, either in.regard to the persons who are to take or the quantity of the estate, the title will be referred to the will.’ Assuming that the doctrine applies to an heir presumptive, whose right to take by inheritance or distribution is liable to' be defeated by the coming of an heir apparent, or by other change in the condition or relations of the collateral ancestor, and assuming also that the doctrine extends to personal as well as real property, the title to which, under our law, passes not to the heir but to the personal representative — still the doctrine can, by its own terms, have no application under the facts of this case. The agreement was that a part of Mrs. Neblett’s property was to pass by her will to Viola A. N. Doolittle, a person not related to her, while a part of Mrs. Turnipseed’sproperty was to pass by her will to her deceased husband’s relatives, who could not inherit from her. This constitutes a variation certainly between the persons who would take under the will and under the law, and defeats the application of the doctrine. But even if this argument could be sustained, it would defeat its own object. For by the allegations of the complaint and by the evidence Mrs. Neblett’s estate consists wholly of personalty. If, now, she had died intestate, the title to all her property would have passed to her administrator, and no agreement or act of hers short of an actual transfer could prevent it. From the administrator, after the payment of administration expenses and debts, the residue would have passed by distribution under the law to those entitled. But by our statute, sec. 2073, Rev. Stats, of 1893, ‘no distribution of the goods of any person dying intestate shall be made till one year be fully expired after the intestate’s death.’ So that, in that view, the agreement could not by any possibility be held to be intended by the parties to be performed within a year, and plaintiff in escaping the Scylla of the 17th section would be engulfed in the Charybdis of section 4.</p> <p>The last inquiry is, was the agreement or any memorandum or note thereof in writing and signed by the parties ? I cannot find in the evidence sufficient proof that it was. Conceding that Mrs. Turnipseed could be allowed under section 400 of the Code, to testify that Mrs. Neblett signed a paper and that she signed the same paper, she was not allowed tosíate the contents of the paper nor its character, and we are left to mere speculation as to these vital matters. Frances Whitmire says they were talking about writing their wills, that they- were writing something, and that both had papers, etc., but she does not say what the papers contained nor whether they were signed. It is impossible for the Court to say from this testimony that the agreement or a memorandum of it- was reduced to writing and signed. The declarations of Mrs. Neblett that the agreement was very binding, as binding as it could be made, and that it could not be broken, afford only grounds for conjecture as to her conception of what was binding and what gave it its binding force. If any presumption that the agreement was in writing can arise from her declarations, it is met by the opposite presumption from the fact that the writing is not produced nor its absence accounted for. I am forced to conclude, as a matter of fact, that the agreement was not in writing. Such being the fact, the statute renders it void, and this Court has no power to enforce it.</p> <p>It is, therefore, adjudged and decreed, that the complaint be dismissed with costs.”</p> <p>Prom this decree, the plaintiff appeals.</p> <p>As to power of revocation after contract completed by execution of wills: Gary v. James, 4 DeS., 48 S. C., 86. A promise is ample consideration for a promise: 56 L. Tr., 426; 48 Vt., 230. As to defense of inadequacy of consideration: 2 Hill Ch., 121; 1 Cox. Ch., 38; Rich. Eq. Ca., 15. As to the legal presumption as applied to admissions: 18 S. C., 489; 26 S. C., 166; 8 Gray, 562; Bail. Eq., 136. Stat. of frauds do not apply: 34 S. C., 496; 10 Rich. Eq., 495; 49 A. S. T. R., 49; McM. Eq., 206, 87; 3 Strob. E-, 196; 5 Rich. D., 14; 2 McCh., 269. Parol testimony competent to prove any contract not within statute: 27 S. C., 1; 11 Rich. Eq., 574; Rich. Eq., 146; 37 S. C., 56; 5 Rich. Eq., 365; 2 DeS., 144; Harp. Eq., 258. Partly performed contract not within statute: 3 Rich. Eq., 429; 9 Rich., 215; 1 DeS., 201; 5 Rich., 14. As to effect of representations: 100 U. S., 578; 15 Eq. D. R., 121; E. R. Ch. D., 776; 12 Ct. & Pin., 62; 49 S. C., 74; Rich. Eq. Ca., 1. Trust in personalty may rest in parol: 14 S. C., 216; 14 S. C., 486; 55 S. C., 456; 4 DeS., 508. Family arrangements are upheld by Courts of Equity: 2 P. P. S., 370; 41 N. Y., 480; 2 Ch. App. E. R., 269; 6 Md., 449; 3 J. & L. T., 443. As to method of relief: 4 DeS., 185; 48 S. C., 86.</p> <p>As to effect of admissions: 18 S. C., 489; 26 S. C., 166; 8 Gray, 562; 6 Cush., 520; 15 At. R., 249; 49 S. C., 74; Rich. Eq. Ca., 1. Agreement is supported by sufficient consideration, and not opposed to public policy: Rich. Eq. Ca., 1; 41 N. Y., 450; 1 DeS., 116, 366; 3 DeS., 190, 514; 4 DeS., 185; 22 S. C., 454; 48 S. C., 86; 49 S. C., 78; 3 Mo., 389; 60 A. R., 273. Not a contract of sale, but equivalent to an agreement not to disinherit: 10 Rich. Eq., 495; 4 Rich. Eq., 474; 64 Hun., 600. And such agreement is not required by statute of frauds to be in writing: 1 Ver., 48; 1 DeS., 121; 49 At. R., 479; 45 N. E. R., 134. Statute does not apply to agreements creating trusts in personal property: 14 S. C., 216; 55 S. C., 614; McM. Eq., 87; 9 Rich., 103. Wills having been executed, it only remained that they should not be revoked — this not a contract of sale: 3 DeS., 195; 60 A. R., 273; 16 Inch, 125; 11 Mete., 411; 11 Gray, 168; 33 N. H., 239; 2 R. L, 330; 34 Vt., 589; 77 A. D., 558; 93 A. D., 84; Rich. Eq. Ca., 5; 34 S. C., 504. Case does not come within provision of statute prohibiting action on contract not to be performed in one year: 26 S. C., 88; 3 Strob., 196; 71 A. D., 196; 97 Mass., 212; 66 A. D., 720; 34 Vt., 589; 7 R. I., 330; 7 A. R., 100. In cases of like import equity will not permit one to revoke without notice to the other: 3 DeS., 194; 22 S. C., 467; 48 S. C., 86; 3 Rich. Eq., 255; 1 Rich. Eq., 63; 50 N. E- R., 265. As to remedy sought: 3 Rich. Eq., 424; 1 Rich. Eq., 95; 2 Rich. Eq., 477; I51 N. Y-> 323i 3 DeS., 190; 4 DeS., 185; 22 S. C., 454; 48 S. C., 86; 1 Rich. Eq., 184.</p> <p>A contract .to devise an interest in lands is within statute of frauds: 4 Am. R., 135; 55 lb., 222; 2 Sand. Ch., 19; 19 S. E. R., 739; 9 Am. St. R., 642. A parol agreement to make mutual zvills is within the statute of frauds: 53 Am. D., 538; 1 DeS., 122; 17 Am. St. R., 125; 50 N. E., 265; 19 S. E., 739; 4 Am. Rep., 573. There may be a promise which is not a valid, contract: 4 Am. D., 306; 17 Am. St. R., 129; 35 At. R-, 753; 66 N. Y-. 226; 3 Rich- %, 4315 53 Am- D-. 539; 22 S. C., 476. Contract to devise realty and personalty is indivisible: 38 Am. St. R., 378; 54 lb., 476. As to kind of contracts that will be enforced: 22 S. C., 468; 3 Ves., 402; 21 S. C., 119; 22 N. J. Eq.,' 62; 7 Rich. Eq., 382. Statute applies to an agreement to distribute an estate according to statute: 48 S. C., 91; 10 Rich. Eq., 504; 54 Am. St. R., 71. Such contract cannot be performed within one year: Rev. Stat., 2073; 10 Rich. Eq., 495. Alleged part performance must so change position of performing party, as that nothing will restore his former condition but specific performance: Hunter v. Mills, 29 S. C.; 2 McC. Ch., 269; 35 At. R., 753; 2 DeS., 170; 1 DeS., 120; 27 S. E. R., 580. How such performance must be proved: 1 John. Ch., 131; 7 Rich. Eq., 385; 9 S. E. R., 973; 28 Am. Dec., 49; 53 Am. Dec., 540; 19 S. E. R., 739. Parol evidence will not support an agreement void under the statute: 7 Rich. Eq., 378; 7 S. E. R., 489; 1 John. Ch., 273; 39 Pa. St., 135; 9 S. E. R., 971; 27 S. C., 363; 2 Strob. Eq., 75. Object of statute of frauds: 7 Rich. Eq., 384; 1 John Ch., 131; 34 Pa., 381. Speciñc performance not matter of right, rights of innocent parties will not be invaded: 21 S. C., 124; 1 DeS., 257; 2 DeS., 188; 7 Rich. Eq., 385.</p> <p>The opinion in this case was filed on April 16, 1900, but remittitur stayed by order on petition for rehearing until</p>