Volume 58 — South Carolina Reports

Before Klugh, J., York, (1) Actions by J. B. Ross against Jones, Blanton & Co.; (2) G. C. Ormond, as survivor of Ormond & Goforth, against same, and (3) Miller and Dunnovant against same. All plaintiffs appeal.

<p>Motion by plaintiffs, respondents, in this Court, in South Bound Railroad Co. and Florida Central and Peninsular Railroad Co. against American Telephone and Telegraph Co. of South Carolina, to dismiss appeal by defendant from order restraining defendants from prosecuting condemnation proceedings in Circuit Court, under statute, of right of way for erection of poles and wires along plaintiffs’ right of way. The appellants had commenced condemnation action under the act of 1899 in the Circuit Court for Orangeburg County for such condemnation, and respondents had brought an action in equity to perpetually enjoin them -from prosecuting the suit, and taking possession of respondents’ right of way. A temporary restraining order was granted by Circuit Court, Judge Townsend, September 13, 1899. And from that order the defendants appeal.</p>

Before Gary, J., Union, Action in probate court by William J. Tucker, as administrator de bonis non of James A. Tucker, with the will annexed, against J. Berry Richards, as administrator of J. C. Richards, deceased, Bessie O. Richards and William Munro. Upon appeal, Circuit Judge made following order: “This is an -appeal from the court of probate.

Before Benet, J., Bamberg, Action by Rosa L. Henderson and others against Abe Bennett and others. From verdict for plaintiffs and judgment thereon, defendants appeal. cite: On first question: 153 N. Y., 428; 105 Cal'., 680; 98 Cal., 644; Code, 146; 17 W. Va., 1; 31 W. Va., 142; 26 S. C., 480. On the second question: 38 S. C., 529; 2 Bail., 104; 3 McC., 66; 2 Rich., 401; 38 S. W. R., 133. cite: On Hrst question: Code, 144; 16 S. C., 276; 22 S. C., 276; 25 S. C., 385.

<p>Appeal — Service op Notice. — Motion to dismiss appeal because notice of intention to appeal was served within ten days after filing of order granting new trial nisi and not within ten days after adjournment of Court sine die, refused. {Divided Court.)</p>

Before Buchanan, J., York, Indictment against William Jaggers for' murder of George Burris. From verdict of guilty and sentence thereon, defendant appeals. The latter cites: As to admissibility of statement by deceased: 15 Rich., 342; 9 S. C., 211; 13 S. C., 463; 26 S. C., 152; 34 S. C., 139. Threats offered by State, not in reply: 5 Strob., 36.

<p>Before Gary, J., Abbeville,</p> <p>Indictment against Judge Chiles for assault and battery of a high and aggravated nature. From verdict and sentence, defendant appeals.</p> <p>cites: 49 S. C., 480; 47 S. C., 488; 28 S. C., 572.</p>

<p>i. Magistrate — Jurisdiction— Attachment— Constitution.— Under Constitution of 1895, magistrate has jurisdiction to give judgment in rcm against non-resident after attachment of property within jurisdiction, and when defendant appears and defends on merits, he may give judgment in personam.</p>

Before Gary, J., Anderson, Exceptions to commissioner’s return as to homestead to* defendant in Bleckley & Eretwell v. W. M. Shirley. From, order dismissing exceptions, defendant appeals. cites: As to trial of exceptions:’22 Stat., 191; 15 S. C., 539. Docketing is notice of trial: Code, 276. cites: Rehirn of two appraisers not sufficient: Rev. Stat., 2126; 22 Stat., 191; Rev. Stat., 1950. As to notice of trial: 22 Stat., 191; Code,' 276.

Before Watts, J., Greenwood, Action by Gem Chemical Co. v. Youngblood & Cothran on account stated. From judgment for plaintiff, defendants appeal. cite: Error to hold that plaintiff had established an account stated between the parties: 23 Mich., 389; 3 Miss., 786; 4 Daly, 216. Error to exclude evidence that account stated was obtained by misrepresentation and fraud: 1 McM. Eq., 84; 2 S. C., 108; 2 Strob. Eq., 148; 67 Hun., 388; 23 Am. Dec., 364; 30 S. C, 616; 1 McC.

Before Buchanan, J., Laurens, Action by A. W. Bramlett v. 'City of Laurens for damages to adjoining lot occasioned by changing street. From order sustaining demurrer, plaintiff appeals. cite: 20 Stat., 930; 54 S. C., 199; 53 S. C., 82, 575; 38 Am. Dec., 173. cite: 99 U. S., 635; 53 S. C., 575; 20 S. C., 118; 19 S. C., 412; 48 S. C., 553; 20 Stat., 925; Rev. Stat., 1171; 11 Rich., 245; 5 Rich., 597.

<p>Costs — Partition—Titee—Equity.—Under facts here upon waiver of jury trial and submission to Judge of all issues of title and partition, the case becomes one in equity before Judge ordering partition, and the order of the succeeding Judge as to costs is final.</p>

Before Gary, J., Greenville, Action for negligent killing of Clara Belle Mason, by Robert Mason, administrator, against Southern Railway. From judgment for plaintiff, defendant appeals. cites: General duty of a railroad to a trespasser: 23 S. C., 531534 S. C., 299; 34 Am. St. R., 545 72 N. W., 2835 23 S. E., 775; 74 Fed., 350; 67 Fed., 5255 66 Fed., 1155 52 Fed., 362; 76 Fed., 201.

Before Gary, J., Greenville, Action by David W. Ebaugh against Eastern Building and Doan Association of Syracuse, N. Y., to recover the alleged maturity value of certain stock in defendant company. The Circuit decree is as follows : “The defendant is a corporation organized under the laws, of New York, with its principal place of business in the city of Syracuse.

Before Aldrich, J., Aiken, Action by T. DeL. Burckhalter against J. B. Jones. From Circuit order setting aside judgment by default under writ of certiorari, plaintiff appeals. cite: Magistrate has jurisdiction to issue attachment against property of non-resident: Code, 71, 248; 95 U. S., 714.

<p>Magistrate. — Under the Constitution, it is the duty of the magistrate to instruct the jury as to the law applicable to the case tried.</p>

Before Keugh, J., Orangeburg, Indictment for murder against Warby Wine and Major Green. From verdict of guilty and sentence, defendants appeal. cite: As to conviction on circumstantial evidence: 20 S. C., 581; 25 S. C., 15. Judge must charge all law applicable to case: 54 S. C., 192. Court will pass on all errors in record in such case, whether excepted to or not: 12 S. C., 89. cites: As to when malice is implied: 2 Rich., 179; 34 S. C., 120; 36 S. C., 487; 55 S. C., 240.

Before Buchanan, J., Cherokee, Action in claim and delivery by Southern Railway Co. against I. G. Sarratt and Robert F. Gibson. From judgment for defendants, plaintiff appeals. cite: Claim and delivery proper remedy: Code, 255a; Rev. Stat., 2522. Mrs. Huskey had prior lien: Rev. Stat., 2518. Can magistrate issue lien warrant for rentf Rév. Stat., 2518. cites : Remedy is giving bond in original proceeding: 55 S. C., 499; Rev. Stat., 2522a; -22 Stat, 197.

<p>1. Juror — Poll Tax. — Burden op Proop of disqualification of juror is on party challenging. No satisfactory proof here that juror had not paid poll tax.</p> <p>2. Ibid. — Ibid.—Is non-payment of poll tax disqualification for jury duty?</p> <p>3. Ibid. — Waiver.—A party objecting to juror for cause, and then consenting to have him drawn as of a new panel without prejudice to his objection for cause, thereby waives his right to appeal from rulings as to objections for cause.</p> <p>4. Ibid.' — Exceptions as to refusal to receive the book of registration as evidence of non-registration of juror, were taken under misapprehension of Judge’s ruling.</p>

Before Buchanan, J., Newberry, Indictment against DeVillius B. Baker. From verdict and sentence, defendant appeals. cites: Defendant not having been zvarned, confession was inadmissible: State v. Branham, 13 S. C., 58, 765; 36 S. C., 524. Sentence improper: Con., sec. 11, p. 21; sec. 19, p. 8.

<p>Before Ardrich, J., Saluda,</p> <p>Proceeding in probate court for Saluda County by A. J. Gregory to adjudge a lunatic, Henrietta Buffington. Prom Circuit order refusing writ of certiorari, petitioner appeals.</p> <p>cite: 17 S. C., 313; Con. 1895, art. V., secs. 15, 19; 10 S. C., 82.</p>

Before Gage, J., Cherokee, Supplementary proceedings by plaintiff, in James E. deLoach and Elizabeth deLoach against A. A. Sarratt, against E. G. Stacey, trustee, and S. G. and W. J. Sarratt, as administrators of A. A. Sarratt.

<p>Before Buchanan, J., Cherokee,</p> <p>Three petitions by Polly Lavender in probate court of Cherokee County for dower against (1) C. J. Daniel and W. Edward Harmon; (2) D. R. Lavender and W. J. Daniel; (3) W. T. Plumphries. From decree of Circuit Court reversing decree of probate court, the defendants appeal.</p> <p>cite: Parol evidence not competent to show that deed was conditional: 53 S. C., 483; 15 S. C., 34; 18 S. C., 606. The renunciation here Pars her right of dower: 49 S. C., 437; 51 S. C., 451.</p> <p>cites: As to admission of parol evidence in regard to deeds: 26 S. C., 304; 12 S. C., 139; 2 Hill. Ch., 335; 2 Hill., 404; 35 S, C., 537; 24 S. C., 597. Failure of son to perform conditions of conveyance of land works forfeiture of his estate therein: 55 Pac., 629; 41 Wis., 219; 24 Ore., 251; 47 N. W., 768; 46 Wis., 385; 3 T. M. Mon., 329; 13 Ohio St., 49; 4 Port., 628. Renunciation on son's deed only runs with it: 55 Md., 42; 17 Johns., 167; 3 Mete., 40; Rice Fq., 158; 11 111., 384; 2 Hill. Ch., 250; 30 Mete., 182.</p>

Before Hudson, special J., Barnwell, Action on appeal bond by George W. Tiedeman & Bro. against Mayer & Fightsey and John W. Deer. From order of Circuit Court holding questions raised by answer to be res judicata, and directing verdict, defendants appeal.

<p>Before Buchanan, J., Spartanburg,</p> <p>Action by Nancy Skipper against Clifton Manufacturing Co. From order sustaining demurrer, plaintiff appeals.</p> <p>cite: 37 S. C., 199, 380; 13 S. C., 18.</p> <p>cite: 4 Rich., 335; 5 Rich., 18; 3 S. C., 8, 581; 29 S. C., 386; Spellman v. R. R., 35 S. C.; Cobb v. Ry., 37 S. C.</p>

Before Townsfnd, J., Aiken, Action by Mary Rush and Nathaniel Rush against Aiken Manufacturing Co. and William Birmingham. Prom judgment on verdict for plaintiff, defendants appeal on following exceptions: ist.

Before Gage, J., Hampton, Action by M. K. Long against John FI. Hunter, Win. K. Pearce and F. C. Ba-ttey, copartners under name of Hunter, Pearce & Battey. From judgment on verdict for plaintiff, defendants appeal. cites: Special damages must be pleaded: 9 S. E. R., 733; 3 Strob., 373. The former cites: Questions raised by second demurrer res judicata: 51 S. C., 33.

Before Buchanan, J., Cherokee, Foreclosure by John T. Darwin and Ida I. Kennedy, as heirs at law of R. R. Darwin, against Mary M. Moore. The facts as to the verification of the answer are as follows. The name of the defendant appears signed to verification by cross mark. Defendant testified that she had not authorized any one to put her name there, but she testified to the facts stated therein, and that she employed Mr. Hardin to act as her attorney.

Before Gary, J., Greenville, Action to set aside certain devises by Lewis J. Cooley et al. against Stacey Cooley et al. From judgment for defendants, plaintiffs appeal on following exceptions: His Honor erred in reversing the report of the master upon the ground that the master erred in rejecting altogether the testimony of parties to the case and in relying upon the evidence of disinterested witnesses, and in holding in this connection that “Section 400 is express authority…

Before Aldrich, J., Lexington, Foreclosure by U. X. Gunter against D. U. Addy, Dundee Mortgage and Trust Investment Company et al. From Circuit decree, defendant, Dundee Mortgage and Trust Investment Co., appeals. cites: The plaintiff’s mortgage does not locate the land with sufficient certainty to Warrant a decree of foreclosure: 40 N. E., 1057; 42 N. E., 1008; 55 P., 552; 79 E., 826; 33 S. E., 34; 34 N. W., 871.

Before Buchanan, J., Lancaster, Action on insurance policy by H. H. Shute against The Manchester Fire Assurance Co. and The American Freehold Land Mortgage Co. of London, Limited. From order of nonsuit, plaintiff appeals. cite: Where defendant sets up forfeiture, plaintiff should be permitted to reply in evidence: 42 S. C., 14; 43 S. C., 26; 28 S. C., 431; 92 Ü. S., 377.

<p>1. Jurisdiction — Waiver—Docketing.—Failure to object at trial of case that it had not been docketed in time, is waiver of right to after-wards make, the objection. Simms v. Philips, 46 S. C., 149, distinguished from this.</p> <p>2. Pleadings — Amendment—Discretion.—No abuse of discretion here in ordering complaint to be amended in final decree so as to conform to facts proved.</p>

Before Watts, J., Union, Action on insurance policy by Emma Going against The Mutual Benefit Rife Insurance Co. From verdict and judgment for plaintiff, defendant appeals. cite; As to the motion for nonsuit: 28 S. E. R., 398; 83 Eed., 638; 35 N. E. R., 194; 21 Minn., 217. As to excluding the printed rules: 18 Minn., 449; 38 S. C., 209; 35 S. C., 475. As to conditions of delivery: 92 U. S., 377. New trial should have been ordered: 16 S. C., 1; 19 S. C., 489.

Before Buchanan, J., Spartanburg, Prosecution in magistrate court for trespass after notice against G. O. Tenny and Earle Sanders. From sentence of guilty, defendants appeal. cite: As to the condemnation proceedings: 17 Stat., 439; 18 Stat., 781; sec. 20, art. IX., Con. 1895.

<p>Before Gary, J., Abbeville,</p> <p>Indictment against Thomas Foote for murder. From verdict of manslaughter and sentence, defendant appeals.</p> <p>The former cites: As to expert evidence: 20 S. C., 452; 38 S. C., 188.</p>

Before Gary, J., Pickens, Action for damages for personal injury by G. W. Bowen against Southern Railway Co. Prom Circuit judgment, defendant appeals. cites: Gross negligence of plaintiff- need not he the proximate cause of the injury: 47 S. C., 115. .cite: As to method of construing charge: 41 S. C., 454; 54 S. C., 91. As to using “and” for “or” in charge: 53 S. C., 124; 54 S. C., 499; 57 S. C., 325.

Before Gags, J., Greenville, Action in equity by the City National Bank of Greenville, S. C., against Abner Cobb and S. M. H. Cobb. From Circuit decree, plaintiff appeals. cite: An insolvent cannot make a gift: 5 Strob., 206; 27 S. C., 525; 35 S. C., 521.

<p>Before Watts, J., Greenwood,</p> <p>Petition by Parmelia G. Bullock for homestead out of lands devised by husband. Devisee, D. M. Bullock, testified that the debts were only $200. or $250, and that the crop would pay them, and if not he would do it. From order sustaining master in allowing petitioner homestead, D. M. Bullock, devisee, appeals.</p> <p>cite: 56 S. C., 173; 54 S. C., 208; 20 S. C., 248.</p> <p>cites: On main question: 54 S. C., 208; 20 S. C., 246; 25 S. C., 1, 309.</p>

<p>1. Usury — Limitation or Actions — Counter-claim.—Claim for statutory penalty for accepting usurious interest as a counter-claim, is not barred in three years.</p> <p>2. The Counter-claim provided by Rev. Stat., 1391, to an action on contract for usurious interest, does not survive and cannot be set iip by debtor’s personal representative and heirs against suit on his contract.</p> <p>3. Appeal. — -Party appealing from finding of fact must show that preponderance of evidence is against such finding.</p>

Before Watts, J., Newberry, Action by Robert R. Millam against Southern Railway Co. Prom judgment for plaintiff, defendant appeals. The latter cite: Defendant not liable for damages done by a connecting line: 43 S. C., 470; 107 U. S., 192; 104 U. S., 157; 23 Am. St. R., 551; 25 Am. St. R., 59. In absence of proof presumption is that damages were done by last carrier: 30 Am. St. R., 577; 18 Am. St. R., 386.

<p>Before Watts, J., Abbeville,</p> <p>Intervention for possession of liquors in this State by Neal Loan and Banking Co. in re Wm. Lanahan & Son v. Bailey Liquor Co. .From judgment in favor of intervenor, Lanahan & Son appeal.</p> <p>cite: Bill of sale in Georgia passed no title to liquors in South Carolina: 18 Sup. Ct. R., 674; 44 S. C., 254; 2 Pet., 539; 20 S. C., 437. Intervenor is bound by laws here: 29 S. C., 460; 56 S. C., 547. Bill of sale is void under laws here: 29 S. C., 460; 56 S. C., 44; Rev. Stat., 2146; 32 S. C., 171.</p> <p>cites : Sale of personal property is tested by law of place of contract: 29 S. C., 460. Lanaham & Son cannot raise question of title in respondent: 44 S. C., 308. Sale of portion of property is not violation of insolvent law: 52 S. C., 129.</p>

Before Watts, J., Laurens, Claim by John R. Finley against County of Faurens for $400, for assessing. From Circuit order sustaining county commissioners in refusing that sum, claimant appeals. cite: 14 Stat., 136, 623; 15 Stat., 731; 16 Stat., 193; 17 Stat., 1017; 18 Stat., 582, 774; 19 Stat., 999; 20 Stat., 519; 21 Stat., 674. cite: Act’1874, p. 776; act 1883, p. 581; Rev. Stat., 537.

Before BENET J., Barnwell, Petition by J. A. Murdaugh in re S. G. Mayfield against N. P. Murdaugh, to require master to pay to him funds wrongly paid another. From order dismissing petition, petitioner appeals. cite: Rev. Stat., 766; 19 S. C., 508; 13 S. C., 376. cites: Gen. Stat., 786; 16 S. C., 278; 1 Hill, 145.

Before Buchanan, J., York, Action for possession of life insurance policy by John I. Barron, individually and as administrator of the estate of Mary L. Barron, deceased, against George W. Williams, administrator of the estate of Walter T. Barron, deceased; D. E. Einley, as assignee of Kennedy Brothers & Barron, and Walter T. Barron; The Equitable Life Assurance Society of the United States; Elizabeth E. Barron, Benjamin P. Barron, Walter T. Barron, Archibald A. Barron and…

Before Gage, J., Spartanburg, Foreclosure by T. R. Trimmier, administrator cum testamento annexo of estate of F. M. Trimmier, against J. B. Liles and Henry Liles. From Circuit decree, plaintiff and defendant, J. B. Liles, appeal. cite: Parol testimony incompetent to vary note: 16 S. C., 75; 2 Strob., 122; 13 S. C., 332; 27 S. C., 380; 46 S. C., 411; 2 Bail., 342; 52 S. C., 57.

Before Watts, J., Laurens, Action in claim and delivery by L. C. Elmore against J. T. Elmore, executor of George Elmore. From order of Circuit Court sustaining magistrate in dismissing proceeding, plaintiff appeals. cites: 58 Ind., 278; I Bay, 58; 12 Rich., 284; 20 S. C., 477. cites: Code, 71; 46 S. C., 568; 12 Rich., 284; 20 S. C., 477.

<p>Before Bfnft, J.} Aiken,</p> <p>Action to set aside award by Rounds & Hagler against Aiken Manufacturing Co. From decree dismissing complaint, plaintiffs appeal.</p> <p>cite: Arbitrators had no power to reassess all the work: 34 Vt., I2i; 2 Hays, 94. Parties should have notice of callingin of umpire: 1 Brev., 208; 11 Allen, 377; 15 A. R., 522; 35 A. D., 591; 4 Dali, 271, 232; 8 Pet., 178. No waiver of such right by afterward appearing: 57 N. Y., 479. Rule for reversing findings of fact: 54 S. C., 202. Error to have agent of respondent with arbitrators in absence of other side: 6 Ves., Jr., 70; 86 Ga., 337. As to when awards will be set aside: 2 Bay, 372; 2 Story Eq., 675; 4 Pick., 192; 6 Id., 269 ; 4 Mass., 41; 5 Id., 435; 15 Id., 365; 5 Cow., 106; 13 N. H., 72; 2 Col., 74; 1 McC., 483.</p> <p>cite: Not necessary for umpire to call in zvitnesses: 12 Ves., 412; 2 Bail., 113; 1 Brev., 208.</p> <p>cites: It is proper for arbitrators to delegate ministerial work: 119 U. S., 1. And objection comes too late after award: 91 Ga., 348; 86 Ga., 337.</p>

<p>Before Benet, J., Darlington,</p> <p>Indictment against Maxcy C. Dee for murder. The record contains the following in reference to the motions for continuance :</p> <p>When the defendant was arraigned and asked if he was ready to go to trial, his counsel moved a continuance of the case to the next term of Court, basing the motion upon the ground that the tragedy had but recently occurred, the defendant had not had sufficient time under the circumstances to prepare for his trial, the homicide having occurred on the 5th day of October, 1899, and upon the following physician’s certificate: “Darlington, S. C., October 25th, 1899. This is to certify that I have several times lately examined Dr. Maxcy G. Dee and find his physical condition fair, but he is by no means a well man. I also find that his nervous system is very bad. He is extremely nervous and has not yet recovered from the shock incident to the cause of his incarceration. He has had two hemorrhages, which may be due to his confinement. In my opinion, for him to go to trial now would jeopardize his health. A. T. Baird, M. D., County Physician.” Plis Plonor, without deciding the motion, desired a further certificate from the physician as to the nature of the defendant’s hemorrhages. Accordingly on the next day, to wit: the 26th day of October, the following certificate was presented to the Court, and the motion for continuance renewed: “Darlington, S. C., October 26th, 1899. The hemorrhages mentioned in my former certificate were, as I have been told by Dr. Lee, from his lungs. I was not present when they occurred, one of which took place on the night of the 24th, but my examination of his lungs revealed a condition that always follows such hemorrhages. I think that he is not in a condition to go to trial at this time. A. T. Baird.” Without deciding the motion, his Honor fixed the 6th day of November for the trial of the case, stating that the defendant might then be prepared to go to trial, and in fit physical condition to do so. On that day the case was again called up for trial, the defendant’s motion for continuance was again renewed upon the same grounds, as well as 'upon the following physician’s certificate: “Darlington, S. C., November 6th, 1899. This is to certify.that we have examined and visited Dr. Maxcy G. Lee several times within the past few days. We find his nervous system very much disturbed and disordered. His physical condition is very bad; we do not think he is in a fit condition to go to trial at this time. A. T. Baird, M. D., Jas. M. Earle, M. D.” His Honor ordered the case to go to trial.</p> <p>Addendum by trial Judge: It is proper to add that when I fixed the 6th November for the trial, I also deferred the consideration of the motion for continuance until that day, and stated that the defendant might renew his motion on that day. Accordingly, on 6th November, the motion was again made, and an additional medical certificate submitted. I was impressed with the unsatisfactory, vague and unsubstantial nature of the grounds for the motion, the more so since the defendant’s own appearance and manner, and manifest physical condition, seemed to contradict the certificates. And the result showed conclusively that he was strong enough and well enough to stand the ordeal of the trial. I am still of the opinion, as I then was, that the grounds for continuance were very far from being sufficient.</p> <p>From sentence of life imprisonment in the penitentiary, the defendant appeals.</p> <p>cite: So-called dying declarations, inadmissible: 26 S. C., 153; 35 S. C., 295; 118 Mo., 491; 12 Bush., 271; 80 la., 37; 105 Ind., 469. Same rules apply to preliminary as to final charge: 55 S. C., 249. As to charge on facts: Art. V., sec. 26, Con. 1895; 49 S. C., 294, 550; 48 S. C., 147. Brror to leave what was care and what was criminal negligence to jury: 42 S. C., 408. As to Judge intimating opinion on facts during trial: 50 S. C., 293; 36 S. C., 544; 15 S. C., 392; 19 S. C., 581; 28 S. C., 577.</p> <p>cite: Rules as to admission of dying declarations: 40 Am. St. R., 410; 34 S. C., 139; 26 S. C., 155; 13 Rich. L., 348; 13 S. C., 463; 50 Mo., 375. So much of the declaration as stated the opinion of the deceased, was incompetent: 19 S. C., 525; 19 S. C., 70; 65 Am. St. R., 345.' Brror for Judge to intimate his opinion of zveight of dying declarations, that is for jury: 15 Rich. L., 350; 35 S. C., 296; 36 S. C., 544; 50 S. C., 300; 28 S. C., 577.</p>

<p>■ 1. Nuisance. — A Lessee is only liable for continuance of a private nuisance where he has increased it, or after he has been notified thereof, and demand made for its removal. Hammond v. R. R. Co., 16 S. C., 574, distinguished from this.</p> <p>2. Practice — Amendment ob PeBadings. — Where a defendant demurs and complaint is dismissed as to him, trial proceeding against other defendant, such judgment not being appealed from, this Court will not remand case for amendment of complaint, as against dismissed defendant.</p>

Before Watts, J., Spartanburg, Action by Fred. Rinake against Victor Manufacturing Co. for personal injuries received from defective gangway. From judgment for plaintiff, defendant appeals. cite: Charge on the facts: 14 S. C., 510; 56 S. C., 524; 47 S. C., 517; 49 S. C., 285. Not defendant’s duty to instruct plaintiff that plank was not its approach. cite: Master cannot escape liability by saying appliance was put there by independent contractor: 5 Am.

Before Watts, J., Greenwood, Action for negligent killing by James W. Dorn, as administrator of Grover C. Dorn, against Georgia, Carolina and Northern Railway Co. From order sustaining demurrer to complaint, plaintiff appeals. cite: 21 S. C., 433; 2 S. E. R-, 816; 12 S. C., 6; 11 Am. & Eng. Ry.

<p>Before Benet, J., Sumter,</p> <p>Indictment for larceny against Robert Council. From order overruling plea of former jeopardy, defendant appeals.</p> <p>cites: 47 S. C., 166; 9 Yerg., 333.</p>

Before Gagf, J., Barnwell, Action in claim and delivery by Jim Williams against J. O. Griffin and J. E. Breeland. From Circuit rulings, both sides appeal. cite: Bvidence attacking bill of sale as defendant’s title is competent: 33 S. C., 28.

Before Klugh, J., Charleston, Action for damages for breach of contract by Edward N. Jenkins against Charleston Street Railway Co. From judgment for plaintiff, defendant appeals. cite: Profits from building contract on which no work has been done, cannot be considered as element of damages: 40 S. C., 398; 25 S. C., 72; 39 S. C., 427; 51 S. C., 144. Brror to refuse nonsuit: 25 At.

<p>1. Wills. — No power conferred by will in question on executrix to sell real estate.</p> <p>2. Ibid. — Trusts.—A devise of “all the rest and residue of my estate, both real and personal, to my wife, * * * for and during her lifetime, to support herself and my children, and to educate my children,” construed to give the wife a trust estate for life for benefit of the children, but no power to sell her life estate.</p> <p>3. Judgment. — Where there is no final judgment in a record, the Court cannot infer such judgment from presence in record of few preliminary steps. Land here sold not under probate court proceedings, but by executrix.</p> <p>4. Wiees — Cause oe Action. — Remaindermen have cause of action against trustee for life, and purchasers to whom she has sold trust lands during life of trustee, to preserve their rights in the trust estate.</p> <p>5. PeEadings. — Subrogation need not be specifically pleaded, where facts set up in the answer sustain such plea, and where testimony showing it was admitted without objection; but where such point has not been made below, case will be remanded, with leave to defendants to so amend their answer as to set it up.</p> <p>6. Subrogation. — Where executor sells lands in excess of power conferred by will to pay debts of testator, the purchaser will be subro-. gated to rights of creditor, and can hold possession of land as security for so much of purchase money as was paid on such debts.</p>

Before Watts, J., Daurens, Action to set aside and cancel deeds, two cases: (1) E. Olivia Johnson against Charles E. Franklin; (2) R. E. McGill against same. From Circuit decree, plaintiffs in both actions appeal. cites: In order to set them aside, ■it must appear that deeds were obtained by coercion: 4 Moak Eng. R., 694; 5 Strob., 192.

Before Buchanan, J., Raurens, Action by M. Ferst’s Sons &Co. and J. J. & J. F. Maddox against John H. Powers and John W. Fowler, on following verified complaint: “The plaintiffs above named, by Irby & Babb and Graydon & Giles, their attorneys, complaining of John H. Powers and John W. Fowler, the defendants aforesaid, allege: “I. That the said plaintiffs, Joseph Ferst, Aaron Ferst, and Peon Ferst, are and were at the times hereinafter set .forth partners doing business under…

<p>Before -Buchanan, J., Laurens,</p> <p>Two cases — suits on account by (1) M. Ferst’s Sons & Co. against John H. Powers, and (2) J. J. & J. E. Maddox against same. Erom order dissolving attachment, plaintiffs in both cases appeal.</p> <p>cite: Bail. Eq., 293.</p> <p>cite: 40 S. C., 2; 31 S. C., 360; 32 S. C., 320; 20 S. C., 503; 33 S. C., 28.</p>

Before Buchanan, J., Laurens, Action by William O. Barksdale, by his guardian ad litem, Downs C. Barksdale, against city of Laurens, for personal injuries from mismanagement of steam roller at work on the streets. From order of nonsuit, plaintiff appeals. ' cites: As to duty of city: 37 S. C., 77; 43 S. C., 399. cite: As to nonsuit: 23 S. C., 531; 21 S. C.', 466, 541; 40 S. C., 343.

Before Watts, J., Abbeville, Foreclosure by S. J. Duckworth against Jane E. McKinney. The master, to whom the case was referred, filed the following report: “Pursuant to the order of the Court, I held a reference in this case and took testimony, a copy of which is appended hereto. This is a suit brought by the plaintiff to foreclose-a note arid mortgage. The allegations usual in a case of this kind are found in the complaint.

Before Watts, J., Greenville, Indictment by city of Greenville against Roy Kemmis for permitting gambling in his private room. From order in general Sessions Court dismissing appeal from judgment of mayor, the defendant appeals on the following exceptions: “1.

Before Watts, J., Greenville, Three cases for damages for wrongful conversion of several chattels by J. A. and W. C. Baker against W. H. Irvine. Defendant appeals in all three cases from Circuit order dismissing appeals, and from one refusing to reverse judgments below for lack of jurisdiction. cite: Written admission is equivalent to personal service: 2 N. & McC., 548; Code, 155, 360, 159, sub. 4; 28 S. C., 119; 54 S. C., 543; 42 S. C., III.

<p>Before Watts, J., Spartanburg.</p> <p>Indictment against Joseph Ross for violation of dispensary law. From judgment on verdict of guilty, defendant appeals.</p>

Before Buchanan, J., Saluda, • Action for partition 'by Lula Griffith, W. T. Cromley, H. J. Cromley, and Fannie Cromley, by William Griffith, guardian ad litem, against A. B. Cromley and Hardy Griffith. From Circuit decree, defendant, A. B. Cromley, appeals. cite: Finding of fact not supported by evidence will be reviewed: 42 S. C., 162; 32 S. E. R-, 503. Question raised by answer is before this Court: 32 S. C., 308.

Before Gage, J., Charleston, Foreclosure by Joseph W. Barnwell, trustee, against Sophia Francis Shepherd Marion.

<p>Before TownsLnd, J., Barnwell,</p> <p>Action for damages by fire by Jennie Brown against Carolina Midland Railway Co. Prom order granting plaintiff leave to amend, defendant appeals.</p> <p>cite: 49 S. C., 513.</p>

Before Gage, J., Charleston, Petition by both J. Burkhim and J. S. Pinkhussohn to Charleston probate court for letters of administration upon estate of William Neubert. Prom Circuit order confirming probate decree granting the administration to Pinkhussohn, Burkhim appeals on the following exceptions: “ist.

Before Townsend, J., Greenville, Application by H. J. Haynsworth for abatement of bid on account of defective acreage, in The Peoples Bank of Greenville against W. A. Bramlett and others. From Circuit order granting abatement, Ella M. Townes, mortgagee, appeals. cite: As to notice: 15 S. C., 127; 32 S. C., 481; 28 S. C.,. 47; 9 Rich. Eq., 19; 45 S. C., 393; 53 S. C., 315.

<p>1. Appeae — Res Judicata. — Where a point decided on Circuit is affirmed on appeal by division of the Justices of this Court, such judgment becomes'the law of that case.</p> <p>2. Contract — Raieroads.—Failure to make tender of all payments due by the Relief Hospital Department of the Plant System of Railroads, after acceptance by employee of portion of such payments, does not permit him to escape the contract, but he has his action on the contract against the association to compel full performance.</p>

<p>Before Townsend, J., Hampton,</p> <p>Action for personal injuries by G. H. Jarrell against Charleston and Western Carolina Ry. From order dismissing complaint on demurrer, plaintiff appeals.</p> <p>cites: If plaintiff is entitled to any relief, error to dismiss complaint: 21 S. C., 229; 55 S. C., 295; 22 Stat., 694. Remedy of defendant is by motion to make complaint more definite: 31 S. E. R., 214; 47 S. C., 30. Judge cannot decide if fact constitute negligence, except where there is only one inference: 29 S. E. R., 235; 30 S. E. R., 479. Injury by railroad is prima facie evidence of negligence: 33 S. E. R., 509. Defendant being negligent cannot shift responsibility: 26 S. E. R., 969; 1 Strob., 535. Anszver does not put in issue contributory negligence: 34 S. E. R., 16.</p> <p>cites : Complaint states no negligence of defendant as proximate cause of injury: 23 S. E. R., 758; 20 S. C., 219. Presumption of negligence arising from injury may be rebutted: 55 S. C., 389. No cause of action being set out, it was proper to refuse motion to amend: 27 S. E. R., 873; 33 S. E. R-, 352.</p>

Before Gary, J., Oconee. Action for partition by N. A. Hendrix and the other children of Naomi Holden, against William Holden, administrator, John D. Verner and others in possession of lands of which she died seized and possessed, under sale by sheriff under execution, and parties holding liens on interest of Wm. Holden in said lands. So much of the case as refers to the Oconee County lands was referred to master of that county to decide all issues.

<p>Before Aldrich, J., Lexington,</p> <p>Action by complaint set out in opinion by L. C. Rankin against Sievern and Knoxville R. R. Co. and Carolina Midland R. R. Co. The decree appealed from is as follows:</p> <p>“This case comes before the Court upon a motion, in the nature of a demurrer, to dismiss the complaint herein upon the grounds that said complaint does not state facts sufficient to constitute a cause of action in said complaint, and the notice of the motion to dismiss the same must be read at this point as a part of this decree. A demurrer admits all the facts properly pleaded in the complaint. Therefore, all of the facts stated in the complaint in this action must be regarded as true for the purposes of this motion. This rule does not refer to; or include, statements of conclusions of law. What are the facts stated in the complaint: Paragraphs 2 and 3 specifically state that both of the defendants are railroad corporations, ‘duly organized and existing’ under the laws of this State. As such they are common carriers, and authorized to enter upon and acquire rights of way. Paragraph I alleges that the plaintiff was at the time stated in the complaint, and still is, the owner in fee of a certain tract of land ‘through which the line of the Sievern and Knoxville Railroad has since been constructed, and that she was at- that time and still is residing on said tract of land.’ Paragraph 4 states that on or about the third day of May, 1898, ‘the defendants had in their employ’ a certain gang of hands ‘then engaged in finishing and grading and laying the track and putting up telegraph poles along the line of the said Sievern and Knoxville Railroad Company, the sáid gang being jointly employed by the Carolina Midland Railroad Company and the Sievern and Knoxville Railroad Company, under some arrangement or agreement, the terms of which are unknown to the plaintiff.’ Paragraph 5. ‘That the said gang of hands, under one Rutledge, as foreman, was employed by both of the said defendants, and in the course of their engagement as such were proceeding along the line of the proposed track of the Sievern and Knoxville Railroad Company, and without having acquired a right of way through the lands of this plaintiff, and were in the act of cutting down two large oak trees of great beauty and value which stood near the residence of this plaintiff, when she approached them and requested them not to do so, whereupon the said Rutledge, foreman of said gang of hands, qttrsed this plaintiff and ordered her to get away from there or he would put her in the penitentiary, and threatened to strike her, and greatly frightened and intimidated her, she being an old woman, and otherwise maltreated and abused her to. her great damage.’ It is also alleged that said Rutledge and hands, ‘with great violence and loud cursing,’ followed Hiram Rankin, the son of plaintiff, who came up at the time, towards plaintiff’s house. Hiram Rankin is not a party to this action. The complaint, after stating these facts, adds, ‘and thereupon,’ the said Rutledge and hands ‘proceeded to lop off several of the most beautiful branches of said oak trees, but did not cut them down.’ It-is possible to read this complaint in various ways. The cause of action may be either: ist. The lopping off of ‘several of the most beautiful branches’ of ‘two large oak trees of great beauty and value which stood near the residence’ of plaintiff; 2d, trespass upon the realty, or 3d, trespass upon the person of plaintiff. As the question is, does the-complaint state facts sufficient to constitute any cause of action? and not, does it state facts sufficient to-constitute a certain cause of action? We must answer the first query: As the lopping off of the branches of the oak trees was -an injury to the realty, and 'may be included in the second cause of action above stated, we will divide the alleged trespasses into two classes: first, what is alleged as--a trespass upon the realty, and, second, what is alleged as-a trespass upon the person of plaintiff.</p> <p>2 “The complaint- does- not state facts sufficient to constitute an action of trespass upon the realty. The complaint states that defendants, railroad corporations, had entered and taken possession of the land, the strip on which Vhe hands were ‘then engaged in finishing and gradina and laying the track, and putting up telegraph poles adong the</p> <p>line of the said Sievern and Knoxville Railroad Company.’ This allegation and. the complaint, read as a whole, clearly state that the defendants had-not-only entered upon the strip of land, but were also actually and actively engaged in the construction of their railroad thereon. It was argued that the allegations in paragraph 1, that the plaintiff was arid is the owner of the land ‘through which the line-of the rail-i road has since been constructed,’- negatives the idea that the \ defendants were in the possession of the-land, and constructing a railroad thereon, the argument being that, ‘if the railroad has been constructed “since” the date of the alleged trespass, it was not constructed at said date.’ Sec. 1752, R. S. of 1893, reads: ‘Nothing herein contained shall be construed to prevent entry upon any lands for purposes of survey and location; and if in any case the owner of any lands shall permit the person or corporation requiring the right of way over the same to enter upon the construction of the highway without previous compensation, the said owner shall have the right, after the highway shall have been constructed, to demand compensation, and to petition for an assessment of the same in the manner hereinbefore directed: Provided, such petition shatl be filed within twelve months after the highway shall have been Completed through his or her lands.’ Under this' act, if a railroad corporation is permitted by the owner of any land ‘to enter upon',’ begin ‘the construction of the highway,’ then the entry, possession and subsequent construction, as we shall see hereafter, is lawful, and in no wise a trespass. If the owner of the lands permit the corporation ‘tó enter úpon the construction of the highway,’ he has the right, ‘after the highway shall have been constructed;’ completed, to demand compensation, as provided in said act. The words used in paragraph 1 of the complaint, above stated, when read in connection with the other allegations of the complaint; mean that the ‘line’ of the railroad, the ‘highway,’ as termed in the statute, was then located, the defendants were' in possession and had entered upon the construction of said highway under the law; ánd under this state of facts the defendants were lawfully in possession of the land, ánd with the permission of plaintiff; counsel for plaintiff argue that the allegations in paragraph '4 of the complaint: that the hands were ‘then engaged in finishing, grading and laying the track, and putting up telegraph poles along the line' of the road,’ is consistent with the idea that said hands were at work on the part of the line which did not traverse the land in question; therefore, that paragraph does not amount to an allegation that defendants were in possession of theland'in question. This construction of the language of the complaint cannot be sustained. 'It is the duty of plaintiff to state her case. On May 3d, 1898, at the very time of the trespass, the allegation is that ‘the gang of hands’ were ‘then’ engaged in ‘grading, etc.,’ the ‘line;’ that ‘in the course of their engagement’ they were ‘proceeding along the line,’ and were ‘in the act’ of cutting the oak trees ‘near the residence’ of plaintiff, when she ‘approached them,’ etc. No one would, ‘under these allegations,’ suppose that the ‘foreman’ and ‘gang of hands’ were upon the premises of the plaintiff merely ‘for the purposes of survey and location,’ R. S., sec. 1752; but the natural inference is, that they had entered upon, begun ‘the construction of the highway.’ The allegation in paragraph 5, that defendants had not ‘acquired a right of way through the lands of this plaintiff’ were insufficient. Tompkins v. R. R. Co., 33 S. C., 218. Plaintiff contends that the complaint alleges that the defendants had not acquired, in any way, a right of way across plaintiff’s lands; therefore, they had no right of entry except for the purpose of survey and location, which does not allow defendants to cut down valuable trees or to make any alteration of the premises. That the foreman and hands were committing ‘a trespass in the name of the defendants,’ and that ‘the line of authorities in South Carolina, which hold that the land once taken possession of by a railroad company under the exercise of the right of eminent domain, cannot be recovered in an action, is entirely inapplicable to the case;’ and, in support of this position, cites Tompkins v. R. R. Co., 27 S. C., 387, as conclusive upon the point: ‘I have at some length analyzed the complaint, and held that it does allege that the defendant companies had entered upon the land in question, and were engaged in the construction of their road or highway; and a comparison of the complaint in this action with that in Tompkins v. R. R. Co., sxipra, will show that there is little in common between the two.’ There is no allegation in the complaint herein that the entry of the defendant companies upon the land was without the consent of plaintiff, which, under the Tompkins case, is essential. There are no allegations in the complaint that defendants entered upon the land after notice from the owner refusing consent, or of like matters ; 'but all that is said is, in substance, that the defendants, by their servants, were proceeding along the ‘line’ which was ‘then’ being graded, etc.', ‘without having acquired a right of way through the lands of this • plaintiff,’ which allegation amounts to nothing; for the statute expressly provides the mode of enforcing the right to obtain compensation after a railroad company has entered upon the construction' of its road, and the sole question here is, whether or not defendants had entered upon the construction of their road, under the right of eminent domain, which frees defendants from the charge of being trespassers. As the Tompkins case is relied upon by plaintiff, I will refer to it again; at page 383, the allegations in the complaint are substantially stated. Then the plaintiff distinctly and affirmatively alleges that when the railroad company went upon the premises, said company did not notify plaintiff that the right of way would be required; and, also, that the plaintiffs, as soon as they ascertained that the railroad would probably extend or run through the premises, gave notice to the railroad company that they objected to the same, and required that the company should proceed according to law. It was alleged that this notice was ‘formally’ given, and because the allegation did not state that the notice was ‘in writing,’ the complaint was demurrable. In the complaint under consideration there is not the slightest allegation that any notice was ever given by the plaintiff, nor that she did not consent to the use of the land by the railroad; and there is a statement that the line’ was ‘then’ being ‘constructed;’ under the law, as we shall see, it must be presumed that she permitted defendants to ‘enter’ upon her land. ‘It is true that there is an allegation in the complaint that the defendants never notified the plaintiffs that the right of way over their lands was required for the purpose of constructing the railroad; but, as held in Verdier v. R. R. Co., 15 S. C., 476, such notice was necessary when, as is alleged in this complaint, the plaintiffs had knowledge of the intended entry, and failed to signify in writing their refusal of consent, from which failure the statute expressly says it shall be presumed that consent was given.’ Tompkins v. R. R. Co., 37 S. C., 386. • There is no allegation in the complaint in this action, that any objection was made to the entry of defendants, or that any notice was given to the railroad company. It follows, therefore, under the statute, that plaintiff permitted, consented' to the laying of the track, etc. Under the statute law of this State and the adjudication thereunder, the plaintiff cannot maintain an action against the defendants herein, railroad corporations, for trespass upon her lands; and all special damages connected with the entry upon the land and the construction of the railroad thereon, such as the cutting down of shade trees, must be recovered in the special and exclusive mode laid down and provided in the statute, viz: by the' method of condemnation; ■ Without discussing, I will cite as authority for this ruling a few of the authorities: Tutt'v. Ry. Co., 28 S. C., 397; McLaughlin v.'R. R. Co., '5 Rich., 598; Puller v. Bddings, 11 Rich., 247; Sams v. R. R. Co., 15 S. C., 487; Verdier v. R. Rh 15 S. C., 481; Ganeaux v. Greenville, 53 S. C., 575; Bozven v. R. R., 17 S."C., 574; Leilssey v. Water Pozver Co., 47 S. C., 484; and authorities then cited. Under these authorities, and our statutes, R. S., sec. 1743 to 1755* no cause of action lies at common law, as stated, for the trespass upon the realty in question.</p> <p>3 “I will next consider the other' branch' of the case, the alleged trespass hpon the nerson'of the plaintiff, while the allegations of the complaint that Rutledge, the ‘foreman’ of the hands, ‘cürsed’ the plaintiff, ‘an old woman,’ ordered her ‘to get away from there Or he would put her in'the penitentiary;’ ‘threatened’ to strike her; frightened and intimidated her, and ‘otherwise maltreated and abused her,’place said Rutledge in an unenviable and contemptible position in said complaint, they do' not 'in any way, allege an actionable act or assault against plaintiff, or injury of any kind to her person or her character which is actionable? Suppose the complaint charged that Rutledge had assaulted plaintiff, which it does not, would that give to the plaintiff a cause of action against these defendants, or either of them ? I think not, for the reason that the language and conduct complained'of were outside of the scope and employment of Rutledge, and the defendants are not responsible for any voluntary assault or trespass which Rutledge may have committed.' Williams v. Pullman Car Co., 8 Am. State Rep., 538; Rounds v. Delaware R. R. Co., 21 Am. Rep., 602; and Rucker v. Smoke, 37 S. C., 381. If defendants were persons and not corporations, and had spoken and acted' as the complaint charges against Rutledge, as their agent, plaintiff could not 'maintain an' action against them similar to the present action, for the reason that curses and threats, while immoral, are not actionable in law. If a principal would not be liable for personally committing a certain act, he would not be liable for that act if it was committed by an agent. In Rucker v. Smoke, 37 S. C., 381, the Supreme Court quotes, with approval, the rule as stated in 1 Am. and Eng. Enc. of E., at page 410,-which is as follows : ‘A principal is liable to third p'arties for whatever the agent does or says; whatever contracts, representations or admissions he makes; whatever'negligence he is guilty of, and whatever fraud or wrong he commits; provided, 'the agent act within the scope of his apparent authority; and, provided, a- liability would attach to the principal if he was in the place of the agent.’ "The last clause cited is full and clear, and sustains the proposition stated. ' The doctrine is then stated in Wood’s Master and Servant, sec. 322: ‘The master can never be held chargeable for an act of the servant unless he' would have been liable if he had done the act himself; therefore, unless an injury results from a negligent c r unlawful act,'no liability attaches.’ If Rutledge had been the agent of a common carrier- of passengers, and plaintiff had been a passenger under the' contractual relations of carrier and passenger to safely carry her, etc., and while being'transported as a passenger, Rutledge, as the agent of defendants, had addressed her as stated in the complaint herein, his curses, threats, etc., would have created a cause of action against the railroad company. The complaint does not allege the existence of any contractual relations between plaintiff and defendant. Defendants’ agents were where they had a right to be, engaged in lawful duties,- when the plaintiff ‘approached’ them, and ‘requested’ them not to do that which they had a legal right to do. She was ah outsider. Rutledge, for the language, curses, etc., addressed to plaintiff, might be held criminally, by binding him over to keep the peace, or perhaps, for a breach of the peace, but no liability would result therefrom to the defendants. ‘To constitute a tort, two things must concur — actual or legal damage to the plaintiff, and wrongful act committed by the defendant.’ i Addison on Torts, sec. i: ‘There may be a wrong done to' another, but if it has not caused what the law terms actual legal damage to- the plaintiff, there is no tort in respect of which an action is maintainable.’ Ib., sec. 8: ‘An act or omission may be wrong in morals, or it may be wrong in law. It is scarcely necessary to say that the two things are not interchangeable. No government has undertaken to give redress whenever an act was found to be wrong, judges of the standard of strict morality, nor is it likely that any government ever will.'’ Cooley on Torts, p. 3: ‘A threat to commit an injury is also sometimes made a criminal offense, but it is not actionable private wrong. Many reasons may be assigned for distinguishing between this case and that of an assault — one of them being that the threat only promises a future injury, and usually gives ample opportunity to provide against it; while an assault must be resisted on the instant. But the principal reason, perhaps, is found in the reluctance of the law to give a cause of action for mere words; words never constitute an assault, is a time-honored maxim. Words may be thoughtlessly spoken; they may be misunderstood; they may have indicated to the person threatened nothing but momentary spleen or anger, though when afterwards reported by witnesses they seem to express deliberate malice and purpose to injury — even when defamation is complained of, the law is very careful to require something more than expressions of anger, reproach or contempt, before it will interfere. Justly considering that it is safer to allow too much liberty than to interpose too much restraint. And comparing assaults and threats, another important difference is to be noted. In the case of threats, as has been stated, preventive remedies are available; but against an assault there are usually none beyond what the party assaulted has in his own power of physical resistance.’ Cooley on Torts, p. 29.</p> <p>“To recapitulate, I hold that any claim that plaintiff may have against the defendants for the entry upon her land by the defendant companies, either by way of compensation or special damages, must be sought and obtained by the special proceeding provided in the statute; that said special proceeding or remedy is not cumulative; 'but it is exclusive, and precludes and bars plaintiff of the remedy she here seeks, which is a suit for a trespass vi et armis.</p> <p>“Further, the other elements of damage alleged by plaintiff in her complaint, in the nature of threats and abuse on the part of Rutledge, as thfe agent of defendants, are not actionable, for the reason that they were not within the scope of his employment, even had they been assaults and batteries, and other personal enormities; but they were threats and abuse which, while immoral, are not actionable in law.</p> <p>“Wherefore, it is ordered, adjudged and decreed, that the complaint herein does not state facts sufficient to constitute a cause of action, and that the said complaint be, and hereby is, dismissed, and that the plaintiff do pay the costs of this action.”</p> <p>From this decree, plaintiff appeals.</p> <p>cites: As to the rights of the landowner: 37 S. C., 381, 387; Rev. Stat., 1743, 1752; 13 S. C., 18.</p> <p>cite: Complaint fatal in not alleging that the entry was without consent: 37 S. C., 385; 15 S. C., 476; Rev. Stat., 1752.</p>

Before Gage, J., Aiken, Action for betterment by W. W. Hall against Daniel Boatwright et al. From order of nonsuit, plaintiff appeals. cite: In action for partition, where title is denied, it will not be decreed until title he settled by suit at, law: 1 Speer E.q., 20; 1 S. C., 4151 5 Rich- Eq., 327> 28 S. C., 533; 10 Rich. Eq., 428; 23 S. C., 392; 31 S. C., 266; 36 S. C., 561; 54 S. C., 359.

Before Townsend, J., Barnwell, Foreclosures by The British American Mortgage Co., Limited, against Jos. W. Bates; Same against S. L. Peacock ; Same against W. Riley All; Same against L. P. Knepton. From Circuit judgment, -defendant in each case appeals. cites: Laws of country where contract is made governs its construction: 1 N. C., 151; 28 N. H., 379; 6 V't., .162; 2 Mass., 88; 17 111., 328; 19 N. E. R-, 25.

Before Gage, J., Fairfield, Actions (two) for possession of land by Sallie E. McDonald and Mary H. Wilkin against Wm. B. Woodward; Same against John A. Stewart, executor of Robt. McCarley and Thos. D. McCarley. From Circuit decree, all defendants appeal. The latter cites : Interest governs in construing deed: 23 S. C., 235; 28 S. C., 129; 35 S. C., 327; 42 S. C., 345.

Before Krugh, J., Georgetown, Action for damages by S. M. Ward & Co. against Frederick W. Ford. From order dismissing demurrer, defendant appeals. cite: A demurrer only admits well pleaded issuable facts: 99 U. S., 35 ; 73 N. W. R., 57; 74 N. W. R., 354; 45 N. E. R., 622; 101 N. Y., 329; 47 S. C., 184; 54 S. C., 578. Requisite statement in a complaint: 18 S. C., 471; 35 S. C., 309.

Before Benet, J., Kershaw, Condemnation by Chesterfield and Kershaw R. R. Co. against J. H. Johnson. From order submitting issue of amount of compensation to jury in Circuit* Court on appeal from assessment by jury drawn by clerk, plaintiff appeals. cites: Rev. Stat., 1744; 57 S. C., 317; 38 S. C., 316. cites: Rev. Stat., 1757; 42 S. C„ 431.

Before Gary, J., Indictment by town of Batesburg against L. M. and J. Walter Mitchell for violation of town ordinance. Upon appeal from judgment and sentence of town council to the Court of General Sessions, the following order was made: “This case was heard by me on appeal from the sentence of the town council of the town of Batesburg upon an agreed state of facts.

<p>Before Ardrich, J., Lexington,</p> <p>Action for possession of real estate by Sue A. Shull against Julia A. Bradford. The order .appealed from is as follows:</p> <p>“This is an action brought for the recovery of a certain lot of land by plaintiff against one Mrs. Frances T. Caughman. During the pendency of the’action and before trial, the defendant, Mrs. Frances T. Caughman, died, testate. At the September term of Court for 1898, his Honor, Judge Gary, first passed an order making the administrator cum testamento annex,o of Mrs. Frances T. Caughman, a party defendant. The plaintiff went to trial, and after plaintiff announced she rested her case, the defendant moved for a nonsuit, on the ground that the proof was not sufficient to sustain the action; this motion was refused; then a demurrer was interposed, on the ground that the complaint did not state facts sufficient to constitute a cause of action. ■ Judge Gary sustained the demurrer, with leave granted to the plaintiff to amend the order o'f substitution, making the devisee under the last will and testament of Mrs. Frances T. Caughman a party defendant, with the proviso that ‘said amendment be served upon defendant’s counsel within twenty days from the rising of the Court.’ It appears the defendant appealed to the Supreme Court from this order, and at the .last spring term thereof the order of Judge Gary was sustained. Within twenty days from the rising of the Court, the plaintiff, under the order of Judge Gary, served upon defendant’s counsel, Andrew Crawford, Esq., a copy of the amended complaint, in which Mrs. Julia A. Bradford, the alleged devisee of Mrs. Frances T. Caughman, deceased, had been substituted as the party defendant to said action. The plaintiff not only doing this, but taking the precaution to serve the said Mrs. Bradford with a copy of such amended complaint, and also a notice why she had been made a party, and at the same time notified her to come in and defend the action then pending.</p> <p>“Upon the serving of such amended copy of the complaint, Mr. Crawford served upon plaintiff’s attorney a notice that he would move to set aside the service of such paper for four reasons, to wit: T. That there is no authority of law for the issuing or serving of said paper, Mrs. Frances T. Caughman not having been dead for twelve months next preceding the serving of the same on the undersigned. 2. There is no evidence that Mrs. Julia A. Bradford is the devisee of Mrs. Frances T. Caughman, deceased, nor is there any authority for having served said paper on her in any capacity whatsoever. 3. The order of Judge Gary, under the terms of which said paper was served, did not contemplate or authorize the serving of an amended complaint. 4. There is no authority for serving said amended complaint on the undersigned.’</p> <p>“After a full hearing of the matter I am satisfied: 1st. Judge Gary having granted the plaintiff leave to amend said proceeding by making the devisee under the will of Mrs. Frances T. Caughman a party defendant, I have no authority to review the same, and especially when it has already been reviewed and affirmed by our Supreme Court. 2d. As to the first point raised by defendant’s counsel, under said notice of motion, section 142 of the Code is clearly against him. 3d. As to the second position taken by counsel for motion, I hold that, even if it was unnecessary to serve Mrs. Bradford, the alleged devisee, personally, with a copy of such amended complaint, such service could only be superfluous, and no ground to set the proceeding aside. 4th. As to the third point raised by the notice of motion, I hold that Judge Gary could not have intended anything else but that the complaint should be amended by making the devisee of Mrs. Caughman .the party defendant to said action, and when so amended a copy thereof to be served upon defendant’s attorney. 5th. As to the fourth position taken under the notice of motion, I have only to say, the order of substitution passed by Judge Gary is in contradiction thereof. It is, therefore, ordered, that said motion be overruled.”</p> <p>Defendant appeals on following grounds:</p> <p>“1. Because his Honor should have sustained the motion, of date 8th November, 1898, and heard at the call of the case for trial at the October term, 1899, of the Court of Common Pleas at Lexington, a. For the reason that there was no authority in law or practice for the issuing and serving of the paper styled ‘Amended Complaint,’ Mrs. Caughman, the original defendant, not 'having been dead for the twelve months next preceding the serving of the same. b. Because there was no evidence that Mrs. Julia A. Bradford was the devisee of said Mrs. Frances T. Caughman, nor was there authority for serving said paper on her in any capacity whatsoever. c.' Because the order of Judge Gary, under the terms of which said paper was served, did not contemplate or authorize the serving of an amended complaint, d. Because there-was no authority for serving said amended complaint on either said Mrs. Julia A. Bradford or her attorney.</p> <p>“2. Because there is no reason in law or practice authorizing his Honor to predicate his action in overruling the motion aforesaid upon the declaration that the plaintiff took ‘the precaution to serve the said Mrs. Bradford with a copy of such amended complaint, and also, a notice why she had been made a party, and at the same time notified her to come in and defend -the action then pending,’ when said precautionary course pursued by respondent has none of the elements of a summons, or a complaint, or an order amendatory of an order of substitution.</p> <p>“3. Because there is no way of bringing in a party to defend an action, or for any other purpose, where an original defendant dies, except by way of an order of substitution on motion, if the order be sought within twelve months; thereafter by supplemental complaint.</p> <p>“4. Because -the order of his Honor, Judge Gary, of date 5th October, 1898, granted leave to the plaintiff to amend the -order of substitution, making the devisee under the last will and testament of Mrs. Frances T. Caughman a party defendant, provided said amendment be served upon defendant’s counsel within twenty days from the rising of the Court, when said amendment thus provided for was never obtained; and, consequently, never served.</p> <p>“5. Because his Honor erred in deciding that, as Judge Gary granted the plaintiff leave to amend said proceeding, by making the devisee under said will a party, he, Judge Aldrich, had no authority to review the same, and especially when it had already been reviewed and affirmed by the Supreme Court.</p> <p>“6. Because his Honor erred in holding that ‘even if it was unnecessary to serve Mrs. Bradford, tfye alleged devisee, personally, with a copy of such amended complaint, such service could only be superfluous, and no ground to set the proceeding aside.’</p> <p>“7. Because his Honor erred in the position taken in said order, ‘that Judge Gary could not have intended anything else but that the complaint should be amended by making the devisee of Mrs. Caughman the party defendant to said action, and' when so amended a 'copy thereof to be served upon defendant’s attorney;’ whereas he should have held that an amended complaint’was not proper pleading; that the paper served could not take the place of an order of substitution, and that the amendment of the order of substitution could only be obtained after serving a proper notice on the devisee, under the last will and testament of Mrs. Frances T. Caughman.</p> <p>“8. Because his Honor erred in holding that the ‘fourth position taken under the notice of motion is contradicted by the order of substitution passed by Judge Gary,’ for the reason that there is no such contradiction therein.”</p> <p>cites: 55 S. C., 274; 16 Abb., 173; 22 Allen, 432; 42 S. C., 388; 16 S. C., 348; 14 S. C., 11; 13 S. C., 402.</p> <p>cites: 54 S. C., 203; 35 S. C., 391; 55'S. C., 254.</p>