Volume 60 — South Carolina Reports

Before Gary, J., Charleston, May, 1900. Action by Vesta Mills against City Council of Charleston for perpetual injunction against collection of city taxes. Prom Circuit decree granting injunction, defendant appeals. cite: Court had no jurisdiction to grant the injunction, after city ordinance forbidding injunctions of this class: Acts 1894, 1104; Rev. Stat., 339; 23 S. C., 70; 11 S. C., 291; 53 S. C., 201; 12 S. C., 29.

<p>Before Klugh, J., Richland, July term, 1900.</p> <p>Action for damages for personal injuries by John B. Youngblood against South Carolina and Georgia Railroad Co. From verdict for plaintiff, defendant appeals.</p> <p>The latter cites: Plaintiff, at close of his testimony, having admitted and proved the defense which, if true, defeated the action, should have been nonsuited: 23 S. C., 289; 26 S. C., 491; 29 S. C., 100; 44 S. C., 318; 48 S. €., 384; 51 S. C., 237; 55 S. C., 302; 51 S. C., 301; 52 S. C., 443; 53 S. C., 363; 160 Mass., 554; 65 N. W. R., 550; art IX., sec. 15, Con.; 72 Miss., 878; 14 A. & E. R. Cas. (N. S.), 732; 1 McM. L., 400; 140 Mass., 245; 135 Mass., 398; 120 N. Y., 124; 22 S. C., 557. Error to permit plaintiff to testify hozv many children he had and that family had no means of support except his labor: 102 U. S., 460; 85 Tenta., 468; 74 Ill., 343; 65 Ill., 160; 4 A. R. R. & C. R., 239; 81 Fed. R., 807; 39 S. C., 162; 53 S. C., 246. Party alleging specific negligence cannot thereunder introduce evidence as to any kind of negligence: 45 S. C., 282; 37 S. C., 189. Only duty of defendant as to “foreign cars” is that of ordinary inspection: 135 Mass., 201. Plaintiff being azvare of defect in covipler, should use ordinary care in using it, and this is question for jury: 14 A. & E. R. Cas. (N. S.), 727! 72 Miss., 878.</p> <p>cite: Evidence as to plaintiff’s children and their means of support, competent: 39 Mo., 468; 8 Pa., 479; 86 Ky., 579; 7 Bush., 238. As to relevancy of testimony much is left to discretion of Circuit Judge: 54 S. C., 314; 52 S. C., 377; 50 S. C., 129; 48 S. C., 143; 35 S. C., 537; 33 S. C., 577; •30 S. C., 176; 24 S. C., 340; 16 S. C., 102; 14 S. C., 553. Also evidence as to plaintiff’s general health since injury: 41 E. R. A., 287; 5 Ency. P. & P., 747; 36 Minn., 147; 70 Tex., 73; 115 Ind., 443. Error in ruling out evidence is cured by its reception afterwards: 17 S. C., 178; 35 S. C., 537; 36 S. C., 368; 40 S. €., 92; 41 S. C, 415; 53 S. C., 451. Whether servant has zvaived his right to exact perfect appliances, or is guilty of negligence in using defective ones is question for jury: 33 S. 'C., 101: 34 S. C., 338: 32 S. C., 438; 51 S. C., 232; 48 S. C„ 384; 18 S. C., 281; 8 Allen, 441; 5 L. R. A., 439, 750; 55 S. C., 102; 58 R. A., 751; 21 S. C., 541. Knowledge of such defect by employee is no defense by employer: Con., art. IX., sec. 15. Railroad company must keep “foreign cars” used in making up its trains in same repair as its own: 26 S. C., 263; 5 E. R. A., 751; 95 N. Y., 546: 3 Hun., 338; 14 Ency., 883, 884. Defendant’s third request did not correctly state the doctrine of contributory negligence, and zvas hence properly refused: 7 Ency., 2d ed., 371; 56 S. C., 95; 55 S. €., 395; 46 S. C., 203; 45 S. C., 146. As to assumption by servant of risks of his employment: 6 L. R. A., 246.</p>

Before Buchanan, J., Greenville, September, 1900. Foreclosure by D. A. Carpenter, as receiver of the Southern Building and Loan Association, against Samuel C. Lewis. From judgment for plaintiff, defendant appeals. cites: Is this a South Carolina contract? 18 S. E. R., 965; 55 S. C., 123; 51 S. C., 428. The laws of a foreign State are presumed to be same as ours, until contrary is clearly shown: 85 Tenn., 616; 4 la., 464; 2 Hill, 319; 25 S. C., 34.

Before Klugh, J., York, November, 1900. Action for injunction by George P. Holler, B. A. Pope, T. P. Roddey, T. B. Williams, Samuel O. Williams and Ja'mes M. Williams, against Rock Hill School District, the trustees of said school, and the county treasurer.

Action by W. B. Rowell, as a taxpayer and as guardian ad litem of Herbert M. Rowell, Ann E. Rowell and Emma G. Rowell, on behalf of himself and his wards and all others of like interest, against J. O. McLendon, as treasurer of Florence County, and W. H. Malloy, E. P. Covington, P. A. Wilcox, John L. Barringer and V. M. Hanner, as commissioners of the Florence Graded School, for injunction. Heard by Judge Gary, September, 1900, and complaint dismissed.

Before Gary, J., Charleston, April, 1900. Action for damages for personal injuries by Mary K. Appleby and Peter R., her husband, against South Carolina and Georgia Railroad Co. Prom judgment on verdict for plaintiffs, defendant appeals. cite: Under the decisions in South Carolina, compensatory and punitive damages constitute separate causes of action: 35 S. €., 47s; 37 S. C., 194; 57 S. C., 425..

Before Townsend, J., March, 1898. Taxation of costs in Eldred S. Addison against R. C. Sujette.

Before Gage, J., Barnwell, April, 1900. Action for damages for personal injuries by George W. Watts, jr., against South Bound Railroad Co. From judgment on verdict for plaintiff, defendant appeals. cites: Error to rule out conversation between physicians while examining plaintiff: 57 S. C., 467. Error for Judge to instruct jury that they might give plaintiff punitive damages to punish defendant for wrong done the public: 22 Stat., 693; Code, 2, 4, 5, 6, 17, 18, 19.

<p>Before Aldrich, J., Aiken, August, 1900.</p> <p>Petition by W. H. Franklin against T. P. Raborn, J. C. Courtney and A. J. McElmurray, as county commissioners for Aiken County, and Richard McNamee & Co., for writ in prohibiton. The following is the Circuit decree:</p> <p>“On June 9th,-1900, upon the verified petition of W. H. Franklin, jr., a freeholder and taxpayer of the county of Aiken, and the relator herein, and certain affidavits, I made an order requiring the county commissioners of Aiken County and Richard McNamee & Co., the respondents, as stated in the caption herein, to show cause before me at my chambers, at Aiken, S. C., on June 16th, 1900, why a writ of prohibition should not issue to restrain the said board of county commissioners, and the said Richard McNamee & Co., their agents, servants and employees, from changing and altering the long established route of the public highway, in said county, known as the Pine Log Road, at or near Kaolin, in said county, from discontinuing the use of said public highway at the point above mentioned as proposed; from mining the said highway at said point for kaolin, or from suffering or permitting the same to be done; from digging up, obstructing, abandoning and destroying the said public highway at said point, and from doing any act or thing whereby the free and unobstructed use and travel of the public, over and along said public highway, as it now stands, at said point, may be hindered, interrupted or prevented, and why the relator should not have such other and further relief as to the Court may seem just. The order contained a provision that the respondents until the further order of the Court, 'be enjoined and restrained from permitting or committing any of the acts above stated, and that the relator should execute the usual injunction bond.</p> <p>“On June 16th, 1900, the respondents made their return to the rule herein. The r.elator desired to submit affidavits in reply to said return, which was allowed, and respondents also asked for further time in which to submit additional affidavits. As I was then on the eve of holding the Courts of the 7th Circuit, I signed an order, agreed to by counsel, which, inter alia, directed that ‘The questions herein be continued,' to be heard before me at my chambers in Spartan-burg, S. €., on the 12th July, 1900, at 8 o’clock p. m., or as soon thereafter as counsel can be heard.’</p> <p>“On July 12th, 1900, at Spartanburg, S. C., all of the papers were read and submitted, and the issues ably and elaborately argued. Owing to the press of business, having to hold Court daily, I have not heretofore had the time to consider the issues herein with that care and consideration I desired to give to them.</p> <p>“The pleadings herein are quite long, and a great number of affidavits have been submitted. I shall set out so much of the pleadings, exhibits, etc., as I deem necessary, and refer to others. This proceeding may be divided into two parts, viz: matters of record, and matters not of record. The record begins with the following petition, the caption omitted:</p> <p>“ ‘To the honorable board of county commissioners in and for the county aforesaid: The humble petition of Richard McNamee and James Gres'ham Gardner, copartners as R. McNamee & Co., respectfully shows to your honorable board: That they are the owners in fee simple and in possession of a large body of land in the county aforesaid, on both sides of the Pine Log Road, one of the highways of the county, which said road runs through their land at and near Kaolin, in said county; and that as the owners of the land on both sides of said road, they own all of the land over which the public travel just at the place occupied by their manager, Mr. F. E. Plenderson, and for a good many hundred yards in both directions, east and west, from said place (except at the church), and that they are desirous of using the land over which the said Pine Log Road runs at said place, and wish to obtain the permission of your honorable board to deviate the public road along the line, and in the way, as indicated -by the plat of John N. Hankinson, Esq., C. E. & S., which said plat is made a part and parcel of this petition. And these petitioners are willing, and do' hereby offer to your honorable board at said deviation of said public road, to make as good a roadbed, and place it in as good condition as the original road now is, so that the public can use it without let or hindrance or inconvenience, all at the expense of petitioners, without costing the county a cent. Wherefore, your petitioners pray your honorable body to take the matter into consideration and to grant them such relief as in the premises is in accordance with justice and the law in such cases made and provided.’</p> <p>“This petition was presented to the said board of county commissioners at their regular monthly meeting on April 2d, 1900. The following is taken from the minutes of said board at said meeting in reference to said petition: 'On motion, the rules were suspended to hear a petition of R. McNamee & Co. to change the location of the Pine Log Road, at or near their kaolin mines. After hearing the petition read, and the statement of parties interested, it was agreed that before final action in the matter that the board of county commissioners do meet all parties concerned in said change on Thursday, April 6th, at the place where said change is desired.’</p> <p>“The record of the next meeting is as follows: ‘Aiken, South Carolina, April 13, 1900. The board met in extra meeting at 11 o’clock a. m. Present, T. P. Raborn, chairman, and 'Commissioner J. C. Courtney. The chairman stated that the meeting was for the purpose of final action on the petition of R. McNamee & Co., to change the location of the Pine Log Road, at or near his kaolin mines. The board of commissioners, after visiting the place where the said change is desired, as set forth in the resolution at the last meeting of this 'board, granted the following order:</p> <p>“ ‘After due consideration of the petition of petitioners herein, and the plat of J. N. Hankinson, Esq., it is ordered, that the prayer of said petitioners be granted, and in accordance therewith, the petitioners be permitted .to change the Pine Log Road in the manner indicated upon said plat, and that when the change is completed by the petitioners, and accepted by the county commissioners, then the original road deviated from be abandoned, and the new road be accepted as a part of the Pine Log Road, one of the highways of this county. All expenses of said change to be borne by the petitioners, without cost to the county. It is further ordered, that the petition and the plat accompanying the same and this order, be spread upon the minutes of the board of county commissioners, the recording to be paid by petitioners, as a part of the expense. It is further ordered, that after such change has been made, said McNamee & Co. shall, at their cost, keep in repair said changed road- to the extent of the deviation for the period of five years. The changed road shall be thirty feet wide, and have such fills and grades as will make the roadway of easy grade as required by law, and that the county shall be saved from all expense of making such change, and the maintainance for the period above named. It is further ordered, that the said McNamee &-Co., before making the change in said road, do enter into a bond to the county of Aiken, in the sum of $1,000, binding them to perform the terms and comply in all respects with the conditions upon which said change is granted. These resolutions were passed after the county commissioners had visited the present roadbed, and they became convinced that the old road is already dangerous, and is gradually becoming more so, and in their judgment, a change in the said road, as above indicated, will be safer, and if made with proper grades, will best serve the interests of the public, and also save the expense of maintaining the same for the period aforesaid, and this is another reason which induced the action of the board in the premises. The changed road, when finished, shall be acceptable to the county commissioners. It is further understood that in laying out and locating said change, the county commissioners reserve the right to make such deviations in its location as they may think best from the plat which accompanies the petition, to be changed or altered, so as to conform to the -direction of the commissioners. T. P. Raborn, county supervisor. Attest: J. C. Courtney. A. W. Sanders, clerk of county commissioners.’</p> <p>“The bond required in -the foregoing resolution was duly executed and delivered. It is not necessary to set that out. The relator submitted that the meeting of the board of county commissioners, held on April 13th, 1900, at which the resolution last cited was passed, was an extra meeting; that such meeting was without authority of law; and, therefore, the action of the board was illegal. By an act of the General Assembly, approved March 23, 1896, entitled ‘An act to amend an act entitled “An act to provide a system of county government for the several counties of this State, so far as it relates to the working and maintaining of the roads and highways in this State,” ’ 22 'Stat. at Large, p. 227, it is provided, inter alia, in ‘Sec. 1: The township board of commissioners and the county board of commissioners, as hereafter set forth in this chapter, shall have full power and authority to order the laying out and repairing of public roads when necessary, to appoint where bridges or ferries and fords shall be made, to 'discontinue such roads, bridges and ferries as shall be found useless, and to alter roads so as to make them more useful.’ Sec. 31 of said act provides that ‘All acts or parts of acts inconsistent with this act be, and are’hereby, repealed.’ The act of the General Assembly, approved February 19th, 1900, 23 Stat. at Large, p. 286, entitled ‘An act to amend sections 3 and 4 of an act entitled “An aot to provide a system of county government of the several counties of this State, so far as it relates to the maintaining and working- of the roads and highways in this State,” approved 23d of March, 1896,’ amends section 3 so as to read, inter alia, ‘The county board of commissioners of the several counties of this State are hereby'authorized and empowered, in.their discretion, to discontinue any public road, bridge or ferry. They may also open new public roads and widen or change the location of old public roads where, in their judgment, such change would be for the material interests of the traveling public.’ The position of counsel for relator, that the ‘board could not ‘change’ the road at an extra meeting, is, as I understand the argument, based upon sec. 2 of an act, entitled ‘An act to amend an ac-t entitled “An -act to provide for the county government of the various counties of this State,” ’ approved March 6th, 1899, 23 Stat., p. 113. Said section reads: ‘Sec. 2. That said board shall meet at the county seat, at stated times, once in each month, for the transaction of business, and a majority shall constitute a quorum. The county supervisor shall be chairman of said board.’ The same act, sec. 3, provides ‘That said board of commissioners shall, in their several and respective counties, have and exercise all the jurisdiction, powers and duties heretofore devolved by law upon the county supervisor, the county board of commissioners, and the township board of commissioners, under the provision of the laws heretofore existing, providing for a system of county government for the various counties in this State.’ Sec. n of said act repeals all acts inconsistent with the provisions. Sec. 2 of said act, above set out, is mandatory in its terms -to the extent of requiring the board to meet ‘once in each month’ ‘at the county seat’ and ‘at stated times,’ for the transaction of business. This is not only proper, but also necessary, as the board has to dispose of public business, and it is necessary that the public should know the time and place of 'the meeting of the board. This affords every person who has a right to appear before the board an opportunity to do so. But it does not follow that the 'board has no legal right to meet in extra session or meeting. The counsel for relator, in argument said, that an extra meeting might be legal under extraordinary circumstances, such as the burning of the court house or jail, or the washing away of bridges by stream, etc. If this be so, then the board has a right to meet in extra meetings and to transact public business, because the right to meet in extra meetings involves a question of power, jurisdiction, and not of expediency. But I do not think that this is an open issue, for in the 21 Stat., p. 481, we find the act referred to in the acts of 1896, 1899 and 1900, supra, entitled ‘An act to provide a system of county government for the several counties of this State,’ which provides in sec. 9, p. 483, * * * ‘And the county board of commissioners shall meet thereafter on the first Monday in January, April, July and October of each year at the county court house, for the transaction of business, and a majority of said board shall constitute a quorum.’ Provided, that the chairman of said board may call an extra meeting at any time, and shall be required to- do' so upon the written request of three members of the board.’ The sécond section of the act of 1899, supra, amended said sec. 9 of the act of 1893, by requiring monthly instead of quarterly meetings; ’but it did not repeal the provision for extra meetings, and the authority, power to meet in extra session is, by sec. 3, of the act of 1899, given to the board. The petition of McNamee & Co. was filed at a regular or ‘stated’ meeting of the board, and was considered and acted upon at the extra meeting. There is, and can be, no doubt as to the authority of the board to accept, for consideration, said petition, at a stated meeting, and, as we have seen, the board had the authority to meet in extra session, and dispose of 'business. I do not think that the position of relator is tenable. In further support of this conclusion, I cite ‘An act to provide a system of county government for the county of Aiken,’ approved February 19th, 1898, 22 Stat., p. 862. Sec. 2 provides that each of the commissioners ‘shall receive the sum of $3 per day for each day actually in service, not to exceed twenty-five days in each year.’ This necessarily implies that the board may meet more than ‘once in each month.’ Sec. 3 of the act says ‘* * * the board * * * shall meet at the county seat at least once a month for the transaction of business.’ From this it follows that the board may meet more than once a month. This act is not inconsistent with the provisions of the act of 1899, or of 1900, supra, and is not repealed. The petition alleges that at said extra meeting only two of the board, to wit: T. P. Raborn, chairman, and J. C. Courtney, commissioner, were present. The other commissioner, A. J. McElmurray, though summoned to attend, was not present, but he concurs in the action of the board. The board consists of three members, ‘and a majority shall constitute a quorum.’ Sec. 2, act of 1900, Stat. at Large, vol. 23, p. 114. In the absence of such a statute, a majority of the board could act. Bank v. Bvans, 28 S. C., 521. The leading counsel for the relator characterized t’he act of 1900, giving such large powers to the board of commissioners, as pernicious, vicious and unwise. Argument' along this line might, with propriety, be addressed to the General Assembly, whose duty it is to make, repeal and modify.laws, but it has, and can have, no force or effect upon the Court; because it is in the duty of the Court to declare, not make, the law. It is not the province of the Court to determine whether a law is wise or unwise.</p> <p>“The petition alleges that ‘the citizens of said neighborhood, who were accustomed to use and travel over said public highway, as they had a right and privilege to do, had no notice of the action of the board until said action was taken by the board.’ The law does not require that the board should give ‘notice’ of its intention to Change the route of an old highway, to citizens who use and travel the old road, unless such change necessitates the use of a citizen’s land, and then only such citizens are entitled to notice. Chap. XXX., art. 2, vol. 1, of the Rev. Stat. of 1893, entitled ‘Right of way and lands for highways, roads and streets — manner of obtaining,’ viz: secs. 1171, 1172 and 1173,are taken from the act of 1883, entitled ‘An act to authorize count)'- commissioners to open and establish public highways,’ 18 Stat., p. 631, and acts amendatory thereof. Sec. 1171 directs the manner in which boards of county commissioners may open or Change the location of highways, viz: upon the petition of twenty freeholders, etc. Sec. 1172 provides that written notices be posted in the townships through which the road passes, and twenty days notice be given, and that ‘all persons interested shall be permitted to offer his testimony for or against the change of location, etc.’ These sections are repealed. Sec. 642 of Rev. Stat. of 1893, and the act of 1893, 21 Stat., p. 481, sec. 1, is as follows: ‘that from and after the first day of January, 1895, all acts, parts of acts, or sections of the General Statutes relating to the election, duties, powers and rights of county commissioners, be, and the same are hereby, repealed, except such special acts, parts of acts or sections of the Gen. Stat. as have heretofore conferred special powers and privileges upon the county commissioners of any county, which said duties are devolved upon the county supervisor and county board of road commissioners as hereinafter provided.’ It will not be contended that the act of 1883, and the acts amendatory thereof, appearing as secs. 1171 and 1172 of the Rev. Stat., are ‘special acts,’ or which ‘conferred special powers and privileges upon the county commissioners of any county.’ They are general provisions, and as such are repealed by the act of 1893. There is nothing in the fact that the act of 1883, and its amendments, appear in the Rev. Stat. of 1893. That work is merely a compilation, and not an act of the General Assembly. Armstrong v. Brant, 44 S. C., 181, and Keller v. Pagan, 58 S. C., 260. The legislature must 'have had in view the provisions of the act of 1883, requiring notices to be given to persons interested, when the location of an old road is to be changed, and intentionally repealed those provisions. The case of Hill v. Laurens County, 34 S. C., 145, construed the act of 1883, and held that said act must be followed by the commissioners in changing an old road. Previous to the act of 1883, the commissioners had thepower, in their discretion, to alter a public road- without giving notice. Commissioners v. Murray? 1 Rich., 336. In vievr of the legislative and judicial history of this State, upon the subject of changing the location of an old road, and the repealing clause contained in sec. 1 of the act of 1893, we must give full force and effect to the later acts. In the act of 1896, the commissioners are given ‘full power and authority’ to ‘alter roads so as to make them more useful.’ — Sec. 1. Again, in sec. 3 it is enacted: ‘The county board of commissioners of the several counties of the State are hereby authorized and empowered to change the location of any of the public roads in any of the counties of this State, where in their judgment, steep hills and rough places in said roads can be avoided by so doing, and where such change would be to the material interest of the traveling public.’ Nothing here as to giving notices to persons using the road; but the matter is left to the ‘judgment’ of the board. The General Assembly, by the act of 1900, supra, repealed this provision, and enacted the present law, under which the board of county commissioners ‘May * * * widen or change the location of old public roads where, in their judgment, such change would be for the material interests of the traveling public.’ Under the law, the relator ‘and other citizens of said county and State, who are in similar plight as himself,’ were not legally entitled to notice of any change in the location of the Pine L,og Road. The law left the matter to the ‘discretion’ of the board. The only person to whom a notice is required to be given is the owner of land, whose land is to be condemned for a right of way upon which the road is to be located. Under the terms of the act of 1900, sec. 3, the board ‘may obtain the right o'f way by gift.’ McNamee & Co. owned all the land upon which the ‘change’ of the road would pass; they instituted the matter of the change; proposed to ‘give’ the right of way, and, therefore, the board had full jurisdiction of the subject matter, and of the parties necessary to the determination of the same. 'Counsel for the relator asks, what is the jurisdiction of the boar'd of county commissioners over highways, and the power of the said board in regard to changing and altering the same? The latter clause of this question is the one we are considering, and to some extent has been discussed. The answer to the query is found in the act of 1900, supra, and is, the board may ‘widen and change the location of old public roads where, in their judgment, such change would be for the material interests of the traveling public.’ The words ‘in their judgment,’ like the words ‘in their discretion,’ means that the board must exercise their judgment with judicial discretion, and in a manner that is legal. The ‘material interests of the traveling public’ is the object to be kept in view, and the ‘judgment’ of the board must be used to subserve and advance that interest. The board cannot ‘change the location of old public roads,’ to subserve the private interests of an individual or individuals. In every ‘change’ of an old road some individual is apt to be injured, while other individuals may be 'benefited. Such are, or may be, the necessary results of such changes. If such results follow a ‘change’ of an old road, ‘when such change would be for the material interests of the traveling public,’ it is a mere incident, and, as we shall see, does not affect or impair the action of the board.</p> <p>“In the case of the State v. Commissioners of Roads, n Rich., 487, the Court of Appeals, by Glover, J., say: ‘The complaint of the relator is, that the change was made for the accommodation of an individual against the wishes of those interested in t'he use of the way, and that the change is not slight, but, in effect, the opening of a new road. If no inconvenience results to the public from a mere change which promotes the interest of the freeholder, a continuance of the old line, because it accommodates an individual, would be perverse and unreasonable exercise of power. The deviation in this case is more than one mile, and that, it is agreed, is neither slight nor for a short distance, and we are referred to lexicographers for a definition of the terms employed. We prefer the authority of the case of the Commissioners of Roads v. Murray, 1 Rich., 335, where the alteration was greater, and the language of the Court is, “The power of the board to make alterations in a road cannot well be doubted. It is not making a new road, it is only the making of such alterations and deviations in a road already existing, as, in their judgment, the public interest may require. This must be done in good faith, and not under the pretense of alteration to make a new road.” Changes made in an extended line of road may be inconsiderable, which in one of limited extent would be important. But the expediency and extent of the change must be submitted to the decision of the board of commissioners, in whom the authority is vested to make alterations, and we will not presume that the defendants intended, under the pretense of a change in the road, to evade the law. We rather presume that they complied with what the law required, and decided after a full and impartial consideration, and the evidence authorized this presumption. It is probable that a majority of the traveling public believe the alterations improper, but we are of the opinion that it is generally safer, in such questions, to rely on the judgment of those tribunals charged with the decision of them, than on democratic majorities.’ It is to be noted that the act o'f 1900 is broader in its terms than the law was when the above case was decided; for the act does not restrict a ‘change’ to such changes as are ‘slight,’ nor ‘for a short distance.’ In the case last cited, the Court says: ‘It is necessary that such power should be conferred on those charged with .the duty of superintending and keeping in repair the highways of the county. If no deviation be allowed from the original roadbed, serious inconvenience to the people would result from obstacles, injudicious locations, which admit of an easy remedy by short deflections from the main track; on the other hand, such alterations are proper where they are made at the request of the owner over whose land the road runs, provided the public receive no detriment from the change. The public good is paramount, but private interest should not be sacrificed to it without manifest necessity; and so far as one or the other is involved in the highways, no fear of their invasion can be reasonably indulged from the abuse of the guarded powers vested in the commissioners of roads.’ As we have seen, the record of the board in the case at bar, shows that the proposed change is for the material interests of the traveling public. No intimation is there given that the change is for the benefit of McNamee & Co.</p> <p>“The second question of counsel for relator is, ‘Has the said board power to grant to an individual the right to change the route of an old public road on his lands, merely for the purpose of enabling such individual to plant or mine the old roadbed for his own advantage and profit?’ The answer to this question, as stated, would be no; but the preliminary question is, has this question relevancy in this case ? Do the facts warrant it? A highway or public road does not vest the title or fee in the land over which it passes in the public. ‘By the common law' the fee of the soil remains in the original owner, with the use of the road in the public. If vacated by the public, ‘he resumes exclusive possession, of the ground used as a highway, he is entitled to the timber and grass upon the surface, and to all minerals below it.’ Anderson’s Law Die., p. 909, citing Ritchie v. Franklin County, 22 Wall, 75. . ‘Right of owner. He has a right to sell the land subject to the easement. He may mine under it, cany pipes beneath it, or run a drain under it. He may also have an action of trespass against any one cutting trees or ■digging up the soil.’ 9 Am. & Eng. of L., p. 375. ‘Abandonment. Upon the abandonment of the public easement the whole property reverts to the owner of the fee.’ Ib. ‘Adjacent owners. Where the same person owns lands bounding both sides of a highway he is presumed to own the fee of the roadbed. Owners on opposite sides own ad medium Mum viae. A conveyance bounded by a highway •carries with it the fee to the middle of the road.’ Ib. It is unnecessary to cite other authorities. R. McNamee & Co. •own the land on both sides of the old Pine Log Road as now located, and also, where it will bé located, if changed as proposed by the board of county- commissioners. McNamee & Co. own the land over which the old road passes, and own, also, all of the kaolin beneath the surface of the old road. If the road is abandoned, the right to the possession and use of the land, including the right to dig and mine kaolin, belongs to McNamee & Co., because the law is to that effect. The action of the board cannot, under those circumstances, be construed as conveying the fee in the roadbed, or the right to dig and mine kaolin in the abandoned roadbed to McNa-mee & Co., for, as we have seen, neither the-board of county commissioners nor the public ever owned the fee in said roadbed, or the kaolin beneath its surface. ■ If the board of county commissioners should attempt to have the kaolin beneath the surface of -said old roadbed dug and mined, McNamee & Co. could maintain an action against said board for such acts, and have the board enjoined from digging or mining said kaolin. When McNamee & Co. presented their petition in this matter to the board of county commissioners they stated, openly and frankly, that they ‘are desirous of using the land over which said Pine Log Road runs at said place.’ That is what they desired, and what they are attempting to get, and as an inducement, they offer to construct a new road upon their lands. No matter what may 'be the purpose of McNamee & Co., the question is, what lias the board done? No one supposes that McNamee & Co., or the average citizen, will voluntarily give a right of way over his land, and construct a road, simply to advance the material interests of the traveling public. That is not ordinary human nature. But are not McNamee & Co. doing what citizens have done in the past, and will continue to do in the future, viz: give the right of way and construct a road, for the purpose of having an old one changed ? That is the cause, or may be the cause, of many changes in the location of an old road which advances the material interests of the traveling public. It is the duty of the board of commissioners to make such changes when the change does advance the material interests of the traveling public. Suppose that the board had had under consideration the change proposed herein, but were deterred from so doing because of the expense of condemning and paying for the new right of way, and the construction of the road, could they be censured for accepting McNamee & ’Co.’s offer, and changing the road, if by so doing the material interests of the traveling public,were advanced? The question answers itself. The act of legislature provides for gifts of rights of way, and I can see no reason why a right of way, with a road constructed upon it, should not be accepted as a gift of the board.</p> <p>“I am still considering this case upon the record herein; that is, the minutes of the board. In considering that record, certainly in so far as the board is concerned, i't would be manifestly unjust and improper to consider the record disjointedly; but we should consider that record as an entirety, ascertain therefrom, according to its terms, construed as an entire record, what the board haá done, and propose to do. The board of county commissioners are public officials vested with judicial powers, resting in their judgment. The presumption of law is, that the boárd has acted legally, had heard the petition herein, and acted thereon as provided by law, and that their minutes are true. We turn to said minutes, and after reading their action in the premises, we find in their order, made on April 13th, the day o-f the extra meeting, and during said meeting, these words : ‘These resolutions were passed after the county commissioners had visited the present, roadbed, and they became convinced that .the old road is already dangerous, and is gradually 'becoming more so, and in their judgment, a change in the said road as above indicated, will be safer, and if made with proper grades, will 'best serve the interest of the public, and also save the expense of maintaining the same for the period aforesaid. And this is another reason which induced the action of this board in the premises.’ This other ‘reason’ just cited evidently refers to the clause, ‘and also save the ■expense of maintaining the same for the period aforesaid,’ which, by reading the entire order, heretofore set out, is ■easily understood. Said order makes ample provisions requiring the changed road to be ‘made with proper grades.’ It is clear from the terms of the record, that the board had jurisdiction of the subject matter, also of the persons legally interested, and that the change in the location of the old Pine Log Road is to be made, ‘in their judgment’ for ‘the material interests of the traveling public.’ This action was taken after much consideration, involving not only the examination of witnesses, but also personal inspection and examination by the board of the location of the old and changed roads.</p> <p>“I hardly consider it necessary after what has been said, to consider the allegations of the petition, alleging that the action of the board is a fraud upon the vested rights of the relator and other citizens of said vicinity ‘in like plight with himself/ or that the board is ‘conniving and confederating’ with McNamee & Co. to discontinue the old road, to the end that McNamee & 'Co. ‘may mine the land now covered by the said public highway for their own individual profit and benefit.’ I have discussed these matters. Nor do I think that the position that it is the duty of the board to change the location of the old road, and that the allowing of MoNamee & Co. to construct the proposed changed road is illegal, can 'be sustained. The road, as it is stipulated that it shall be, has not been completed, nor has it 'been accepted by the board. The change is being made by McNamee & Co. on their own land, and at their own expense, and said change has not been accepted. There is nothing illegal in. this. I know of no law which prohibits the board from permitting a citizen to repair in a proper manner, at their own expense, an old highway. The law allows the board to open and repair, etc., roads in various ways, and the action of the board in this case is within the power conferred upon said board.</p> <p>“Passing now from the record, as contained in the minutes of the board, and considering the verified allegations of the petition herein, and the allegations of the verified return of the 'board to the rule to show cause, also the numerous affidavits submitted by the relator and the board, I can see no reason why the petition should not be dismissed. As to the railroad of McNamee & Co. The board of county commissioners do not charter railroads, nor can the board order them to be built, or not to be built, in certain places. The board cannot prevent the crossing of a public highway by a railroad, either in one place or a number of places. A great many highways cross and recross railroads. The board can require a railroad 'to maintain safe crossings when a highway crosses its track, and to require other acts, for the safety and convenience of the traveling public; and it would be assuming great power by this Court to hold that the board could not change the road in question because the road, as changed, would cross the roadbed of a railroad twice, instead of once, as the old road stands. This is a matter to be disposed of under the law, by the 'board ‘in their judgment.’</p> <p>“Returning now to the allegations of fraud, confederating, combining, etc., as above stated. As I understand the pleadings, and the arguments of the counsel, neither the board nor the members thereof are charged with actual fraud. There is no suggestion of corruption in the sense that the board is guilty of turpitude or of corruption. The fraud, as charged, is legal fraud, and consists in the charge that the board’s action was to favor McNamee & Co., and not for the material interest of the traveling public. We will first take up the return of the board which counsel for the relator argued, admitted all the material allegations of the relator’s petition, save the allegation as to fraud upon the public, and as to collusion with McNamee & Co., and that with these exceptions the return is simply a confession and avoidance. Stress is laid upon the allegation, of the board as found in the third paragraph of its return, to the effect ‘that the material interest of the traveling public would not 'be detrimented or injured by the said change.’ It is argued that such change, to be legal, must be for the material interest of the traveling public, and that a change which is simply not detrimental or injurious to' the public is not legal, and, therefore, the change is for the individual benefit of McNamee & Co. The return is, to a great extent, an answer to the allegations of the petition, and as the said petition, in various paragraphs, especially the 9th, charges that the destruction of the old road will injure, damage and prejudice the relator and other citizens, we must construe said allegation in the return as a denial of said charges in the petition. That this is the meaning of the return, is evident by the return itself, read as an entirety; and especially when the entire clause is read, as follows : ‘the material interest of the traveling public would not be detrimented or injured, but rather aided and improved by the changes, etc.’ -Counsel also lay stress upon the allegation in the return, that ‘the board determined not to finally act upon the petition that day, but to visit the road in question, and to inspect the proposed change of road and to look into the entire matter, taking in view the claims of R. McNamee & Co., and also of the public and all citizens.’ 'Taking into view the claims of R. McNamee & Co.’ is regarded as a confession. I do not think so, especially when read in connection with the last section of paragraph three of the return, and what the Court of Appeals said in State v. Commissioners, already cited, as to the 'interests’ of individuals.</p> <p>“A number oí affidavits have been submitted by the relator tending to show that the proposed change in the road is not for the material interest of the traveling public, and the board has submitted a number of counter-affidavits that it is. - The parties making these affidavits are men of the higliest character, those on the side of the relator as also those on the side of the board. That is the very question which the board, 'in their judgment,’ is to determine, and I shall follow the law as settled by the Court of Appeals in the case of the State v. Commissioners, i Rich., 488, stated in these words: ‘It is probable that a majority of the traveling public believe the alteration improper, but we are of opinion that it is generally safer, in such questions, to rely on the judgment of those tribunals charged with the decision of them, than on democratic majorities.’</p> <p>“The other issues raised are either disposed of in what has been said or fall within the principle discussed. The burden of proof was upon the relator, and the board has denied every material allegation in the petition.</p> <p>“The relator has not applied to the board of county commissioners for ’the relief he contends for here. ‘The writ of prohibition may be defined as an extraordinary judicial writ, issues out of a. Court of superior jurisdiction and directed to an inferior court, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. It is an original remedial writ, and is the remedy afforded by the common law against the encroachments of jurisdiction by inferior courts, and is used to keep such courts -within the limits and bounds prescribed for them by law.’ High on Ex. Rem., sec. 762. ‘Being an extraordinary remedy, however, it issues only in cases of extreme necessity, and before it can be granted it must appear that the party 'aggrieved applied in vain to the inferior tribunal for relief.’ High on Ex. Rem., sec. 765. The writ of prohibition cannot act as an appeal, which proceeds upon the ground of error in the exercise of a jurisdiction which is conceded. Ib., sec. 772. Tt must be remembered that the object of this writ is to restrain the respondents within their appropriate jurisdiction. Of course, this can be done only whgn respondents are outside their jurisdiction. This writ has no application to any error.of law or fact committed within their jurisdiction by this county board of control. We can well see that errors both of law and fact may be committed by such a board when acting upon matters within its jurisdiction, just as frequently happens in other inferior tribunals. But the writ of prohibition does not lie in such a case. In just such cases the writ of certiorari is applicable.’ Gibbs v. Kirkland, 41 S. C., 36. If the inferior court has jurisdiction, and is acting within, and under, its jurisdiction, the writ of prohibition will not lie to correct error of law or of fact. High on Ex. Rem., sec. 762 to 772; State v. Ry. Co., 1 S. C., 54; Gibbs v. Kirkland, 41 S. C., 35.</p> <p>“Without citing further authority, or prolonging this decree, my conclusions are:</p> <p>“1st — That the board of county commissioners have jurisdiction over the subject matter 'herein.</p> <p>“2d — -That said board had jurisdiction of all parties necessary to a determination of the issues herein.</p> <p>“3d — That the question as to whether or not the change in the location of the Pine Log Road is for the material interest of the 'traveling public, is for said board to determine, and that errors committed by said board, if any have been committed, cannot be corrected by the writ of prohibition.</p> <p>“4th — That said board is not guilty of any fraud, collusion, combination or confederation with R. McNamee & Co.</p> <p>“5th — That R. McNamee & 'Co. are entitled to their discharge from the rule to show cause herein.</p> <p>“Wherefore, it is ordered and adjudged, that the rule to show cause, issued by me on June 9th, 1900, and the order made 'by me on June 16th, 1900, 'be, and hereby are, discharged.</p> <p>“That the petition of the relator herein be, and hereby is, dismissed.</p> <p>“That the restraining order herein granted be, and hereby is, rescinded and discharged.”</p> <p>From this decree petitioner appeals.</p> <p>The former cite: What is the jurisdiction, duties end powers of county commissioners? 21 Stat., 481 ;22.Stat., 227; 22 Stat., 862; 23 Stat., 1, 286; Rev. Stat., 1167. Has county commissioners power to grant to an individual the right to change an established highway on his lands for his own benefit? 9 Ency., 2d ed., 473. Prohibition will lie to protect interest of public when commissioners have exceeded their jurisdiction: Harp., 381; 1 Spear., 329, 268; 20 N. Y., 531; 41 S. C., 35; 79 N. Y., 592. There is now no appeal from such act of commissioners, and relator is without a remedy: Con., art. IV., sec. 9; Con. 1895; Code, 358; 32 S. C., 1 ¡ 1 Bail., 209; 3 Strob., 573; 4 Rich., 291; 14 Rich., 7. Injunction will not lie: 5 R. I., 472; 4 Am. R., 598. Nor will certiorari: 4 Ency. P. & P., 83, 100. As to office of writ of prohibition: 3 Rich., 113; 2 N. & McC., 419, 410; 1 N. ’& McC., 501; 4 Rich., 513; 1 S. C., 261; 2 Bail., 225; 2 N. & McC., 174; 1 Bay, 273; Dud., 101; 2 Spear, 761; 3 Hill, 314; 2 McC., 400; Harp., 336; 1 Mill., 55; 14 S. C., 427; 3 Brev., 268.</p> <p>The latter cite: As to jurisdiction of commissioners: 40 S. C., 283; 16 S. C., 247; 22 Stat., 228; 23 Stat, 286; 21 Stat, 481; Rev. Stat, 1171, et seq.; Rev. Stat., 642, et seq. As to repealing clause: 57 S. C., 166. If commissioners have erroneously decided the facts, it cannot be corrected in this zvay: 19 Ency., 1st ed., 271; 1 McC, 505; 4 Rich., 515 ; 41 S. C., 36. Commissioners may make such change if public is beneñtted, although some one individual may be thereby specially beneñtted: 15 Ency., 2d ed., 355; 5 Grat., 265; 11 Rich., 481; 4 McC., 4. Notice to public is not required when mere alterations or changes are contemplated: 1 Rich., 336; 23 Stat., 286; 15 Ency., 2d ed., 393.</p>

Before Gags, J., Williamsburg, May, 1900. Action in claim and delivery 'by J. W. Holliday against S. Poston & Son. From judgment on Circuit reversing magistrate judgment, defendants appeal. cite: As to property acquired after execution of mortgage: 14 S. C., 112; 18 S. C., 157; 10 S. €., 452; 43 S. C., 47; 45 S. C., 145; 2 Strob., 309; Spear Eq., 417; 65 N. Y., 459; 10 H. L. Cas., 191; 45 S. C., 145; 10 S. C., 542; 15 Ency., 749; 35 Ark., 305.

Before Townsend, J., Lexington, September, 1900. Action for damages for personal injuries by Georgiana Wilson and John Wilson against. Southern Railway Co. Prom order refusing motion of defendant to require plaintiff to submit to physical examination, defendant appeals. submit their argument in Easier v. this defendant, post. cite: Is the order now appealable: 35 S. E. R., 797', 32 S. E. R-, 417; 30 S. E. R., 614.

<p>Before Townsend, J., Lexington, September, 1900.</p> <p>Action for damages for personal injuries by R. T. Easier, by his guardian ad litem, J. P. Easier, against Southern Railway Co. From order refusing motion requiring plaintiff to submit to physical examination by physician chosen by defendant, defendant appeals.</p> <p>cite: The power of the Court to order a physical examination of the plaintiff before trial, has been the subject of adjudication by the Courts of last resort in a number of States: 46 L. R. A., 153; 47 la., 375; 29 Kan., 466; 52 How. Pr., 334i 37 Ohio St., 104; 61 Wis., 536; 90 Ala., 71; 88 Ala., 147; 93 Ala., 514; 46 Ark., 275 ; 60 Ark., 486; 82 Ga., 719; 99 Ga., 255; 122 Ill., 461; 22 Ill., 114; 138 Ill.,-465; 29 Kan., 466; 95 Mich., 266; 107 Mich., 496; 93 Mo., 400; 95 Mo., 169; 85 Mo., 629; 35 Mo., 97; 17 Neb., 211; 16 Id., 578; 33 Minn., 130; 37 Ohio St., 104; 7 Pa. Co. Ct., 565; 2 Pa. Dist., 825; 26 W. N. C. (Pa.), 231; 64 Tex'., 463; 72 Tex., 95; 44 S. W., 89; 61 Wis., 536; 46 L. R. A., 153. The States having statutes authorising the Court to make such an order: New Jersey — P. L,., 1896, chap. 202; New York — Chap. 721, Raws 1893, Code, 32 N. Y. Supp., 177; 16 Ency., 2d, 812. Rule in U. S. Supreme Court: 141 U. S., 250, 177, 172. As to the time for applying for the order: 16 Ency., 2 ed., 814.</p>

Before Keugit, J., York. Action by A. H. White against Commercial and Farmers’ Bank of Rock Hill, S. C., et al., and John Rugheimer, claimant. From order refusing claimant, Rugheimer, a special lien on assets of bank for amount of draft collected by it, he appeals. The latter cites: 59 Am. S. R., 573; 37 Am. S. R., 265; 46 Am. R., 91; 26 S. C., 386; 56 S. C., 213; 53 Am. R., 574; 20 Id., 443, 263; L. R., 13 Ch. Div., 696; 21 Am.

Before Buchanan, J., Spartanburg, March term, 1899. Action on indemnity 'bond ’by Clifton Manufacturing Co. against United States Fidelity and Guaranty Co. From judgment of nonsuit, plaintiff appeals. cite: Error to rule out declarations of indemnitee: 9 S. 'C., 152; 2 Hill, 313; 3 McC., 225, 412. Defendant cannot nozo deny its contract: 52 S. C., 228.

<p>Pleadings — Supplemental Answer — Circuit Judge — Discretion.— Whether a supplemental pleading should be allowed, is within the discretion of the Circuit Judge, and this Court will only look into the evidence to see if his acts are based upon his conclusions from the evidence, or if they are capricious, or if they are supported by evidence, and here his refusal of motion to set up in supplemental answer a deed, and his conclusions that the deed is a forgery and never delivered, not disturbed. Mr. Chief Justice McIver dissents.</p>

Before Klugh, J., Chesterfield, April term, 1900. Action in claim and delivery by J. W. Gregory against T. S. Gregory.

<p>Before Gary, J., Charleston, April, 1900.</p> <p>Action for damages for personal injuries by Thomas W. Towrimore against Palmer Manufacturing Co. The following is the Judge’s charge;</p> <p>“This is a suit on the part of the plaintiff to recover of the defendant — the plaintiff being Thomas M. Lowrimore against the Palmer Manufacturing Company — to recover of said company for damages, which he alleges he sustained under the following circumstances: The plaintiff contends that he was employed by the defendant company to operate a machine known as the round-header, for manufacturing barrel heads, which machine you have seen. His contention is, that while he was operating that machinery he received the injury complained of, and that the injury was caused by reason of the fact that the defendant company failed to furnish him with suitable and proper machinery. In other words, that the machinery they furnished him did not have a ‘dog’ on it, and by reason of that defect it was negligence on the part of the company in not having a ‘dog,’ and he sustained the injury complained of. That is the plaintiff’s contention. It is more tersely stated in his complaint, which complaint you will have, and you can see it for yourselves when you go to your jury room; but I desire to call your attention to that portion of it which shapes the issues to which I desire to attract your attention. The third allegation is as follows: ‘That heretofore, on the 1st day of June, 1898, while the plaintiff was in the employment of the defendant as aforesaid, and operating its said machine, the plaintiff had his left hand cut and lacerated by coming in contact with the saw used in connection with the said machine (the round-header, gentlemen, that machine you have seen), while said saw was in rapid motion; that it became necessary, in consequence thereof, to have the left hand of the plaintiff amputated; and the plaintiff further alleges that his entire left hand was amputated, with the exception of his thumb, by reason of the injuries so received as above mentioned.’ That, he alleges, is the injury he sustained ; that he lost his hand with the exception of his thumb.</p> <p>“Now the fourth allegation brings up the question of negligence, in these words: ‘That the aforesaid injury to the plaintiff was caused by reason of the negligence and carelessness of the defendant company in failing to provide^safe and suitable appliances on the said machine, known as the “head-rounder,” in that the defendant company did not provide a dog on the same to hold the machinery in proper positon, the dog being necessary for the safe operation of said machine, and that by reason of said defect plaintiff’s hand was thrown on and against said saw, thereby causing the injuries to the plaintiff before mentioned.’ Now you will see that the particular act of negligence was that the defendant company failed to furnish a machine — a round-header, I believe it was called there — with a dog on it. Now, the defendant company takes issue with him on that statement, that charge. The contention of the defendant company is that it was not necessary to put a dog on the machine — that that would not make it any safer to put a dog on it; but its contention is that the plaintiff, if injured at all, was injured through his own carelessness, and not through the carelessness of the defendant company. So the issue for you to try is, was there negligence or carelessness, and if so, was it on the part of the defendant company in failing to have a dog on that machine, or was it on the part of the plaintiff here in the careless manner in which he operated the machine that they furnished him ? Those are the issues.</p> <p>“The law is not very lengthy on this question, but it is this: that where a master employs a servant to operate certain machinery, he must use due and proper care in protecting him from danger, by using proper precautions by which he might not be endangered. By that is not meant that the master insures his safety, because, as the witness states here, the law recognizes the fact that all machinery is dangerous, but he is required to use proper precautions to save the servant from being injured. Now, it is a question for you to say in this case whether that machinery was such machinery as it was necessary for the master, the defendant company, to put a dog on it to save the plaintiff from dangers that might attend him in operating the machine. Now you have seen it work, and I know you know more about it than I do, because you have seen it and I have not. I never saw one in my life, and it would be useless for me to tell you whether a dog is necessary or not necessary; you have seen it and you have heard testified how the injury.occurred to him. Now, was it carelessness in the defendant company not having a dog on that machine? And if it was such carelessness that brought about such injury, that would not have occurred to the plaintiff if he had used proper caution himself if they had had a dog, then I charge you that the master, if you find such ■ was necessary, would have furnished improper machinery, and would be responsible for the injury. But, if it was not sudh a precaution as in your judgment you think was necessary for the defendant company to furnish to protect the servant from any danger that might happen, then I charge you there would be no action at law, because this suit is based upon negligence. You have got to place negligence somewhere, and in order to find the company guilt}'- you must put negligence on the company. Now, as I say, you have seen the machinery operated. Was it carelessness on the part of the company in not having a dog on that machine ? If you think from its operation that it should have provided a dog to insure the safety of its servant, this plaintiff, then it would be negligence on the part of the company in not furnishing a dog. But if, after having seen it operated, you think it was not negligence on the part of the company, then it would not be liable. That brings us back -to where we started.</p> <p>“The defendant has requested me to charge you the following propositions of law. That is a right a litigant has, to submit them to the Court and have them charged or rejected. Some I have allowed, others I have disallowed. Those I have allowed I will read to you. The first is in this language: Tn -this case no exemplary, punitive or vindictive damages can be recovered. Only actual damages for the injury sustained are allowable, and no damages at all can be recovered unless the injury sustained resulted from the negligence of defendant.’ That I charge you is the law. What is known by exemplary damages, or punitive damages, or vindictive damages, is this: that in order to grant such damages as this, you would have to conclude that the party wilfully failed to put a dog on its machine, rather to entrap him, entice, him, or maliciously do it. Under those circumstances, you can punish a party by vindictive damages, but there are no facts in this case to warrant you in concluding that there was any malice or vindictiveness in this case; therefore, you cannot give smart money or vindictive damages, but are confined to actual damages the party has sustained, if you conclude he is entitled to recover, and in estimating damages you cannot only consider the value of the fingers, or the portion of the hand which has been severed, but pain and anguish the party may have suffered by reason of that injury. That part of his damages, if he is entitled to recover damages, the pain and damages he has undergone, it is not putting so many dollars on one finger and so many on another; you will put the amount he has suffered by the loss of his hand, and then, in pain and suffering, put whatever damages you think would attend a loss of that kind.</p> <p>“ ‘2. If the jury believe that the injury received was the result of an accident without fault on the part of the defendant company, their verdict must be for the defendant.’ That I charge you to be the law; because, as I have already told you, this is a case based on negligence, and if you do not find that the defendant was negligent in failing to furnish a dog here, they are not liable, because, as I have said, they are not insurers to employees. But the law does require them to use proper precautions in putting proper safeguards around dangerous machinery, so that the operative may not be injured in the operation of such machinery.</p> <p>“ ‘3. Thomas M. Lowrimore, on entering the employment of the Palmer Manufacturing Company, assumed all the ordinary risks incident to his employment. If the injury received was within the ordinary risks of his employment, no recovery can be had against the company.’ That I charge you to be the law; because a party who undertakes to operate machinery assumes himself the ordinary risks that are incident to the operation of that machinery. To illustrate further to you, a motorman on an electrical' railway car assumes the ordinary risks that would attend the operation of a car. The law recognizes that it would not possibly be as safe for a man to operate a car as to sit at a desk in an office and keep books. Therefore, when a man goes into that emplojunent he assumes the ordinary risk of that employment; but the law charges the company, the employer, with the duty of furnishing him all proper appliances and safeguards to insure his safety. It is for you to say in this case whether it was necessary to put a dog on that machine to insure the safe operation of that machinery by this employee. That is the question for you.</p> <p>“ ‘4. If the jury believes that the injury received was the result, in whole or in part, of the imprudent, careless or negligent act of Thomas M. Lowrimore, their verdict should be for the defendant company.’ That I charge you to be the law. If the injury was through his own carelessness and imprudent act, why he could not blame the company for it; he would assume the risk under those circumstances himself.</p> <p>“ ‘5. The Palmer Manufacturing Company was only bound to exercise reasonable and ordinary care in furnishing machinery and appliances for the prosecution of its business. It was not bound to furnish the safest and best.’ That I charge you to be the law, and it is a question of fact whether they did use reasonable and ordinary care in furnishing safe appliances for the protection of its employees on that machine. That is the question. They are not bound to find out what is the latest and best patent; but it is a question of fact for the jury, did they use ordinary care in furnishing the machinery, and use ordinary care and precaution in putting around it such safeguards as would protect the party who operated it ? That is the question for you, whether this company did that. If they did not, it would be negligence, and they would be responsible for the consequences. If they did, it would not be negligence and they would not be liable.</p> <p>“ ‘6. If the jury believe that the Palmer Manufacturing Company exercised such care as other well regulated companies doing the like business ought to exercise, and as proper prudence demanded under the circumstances, nothing more can be required, and they are not responsible.’ I refuse that; we are not to discuss other well regulated companies, but this company.</p> <p>“ ‘7. If the jury believe that the injury resulted from defective machinery or appliances, the defendant company is not responsible, unless the proof goes further and shows that the cqmpany’s negligence in purchasing and overlooking its machinery was the cause of its having defective machinery in use.’ I cannot go to that extent; I refuse the seventh.</p> <p>“ T refuse the eighth, on the ground that that requires me to assume a question of fact. (The eighth request as presented reads as follows: ‘Many of the employments in which laborers are engaged each day are fraught with danger, and the management of machinéry of all kinds is always attended with more or less danger; therefore, the ground of liability of an employer to an employee for injury received while operating machinery is not danger but negligence, and the plaintiff in this case must show by at least a preponderance of the testimony that the injury was caused by the negligence alleged.’)</p> <p>“ ‘9. An injury that'could not have been foreseen or reasonably anticipated as the probable result of an act of negligence, is not actionable.’ That I charge you. If in the selection of this machinery an amount of ordinary prudence and foresight could not have foreseen that a party could be injured in operating it, then it would not be negligence on the part of the defendant company, and would not be actionable in this case.</p> <p>“ ‘10. An injury that is not the natural consequence of any act of negligence, and that would not have resulted from it but for the interposition of a new and independent cause, is not actionable.’ That I charge you to be the law.</p> <p>“The eleventh proposition I refuse as too restricted. (The eleventh proposition as presented reads as follows: ‘It is a well established rule of the law of negligence that contributory negligence to any extent will alwajrs defeat a recovery.’)</p> <p>“ ‘12. To recover damages in this action, the plaintiff must not only show by a preponderance of evidence that there was negligence on the part of the company, but plaintiff must also show by a preponderance of testimony that the injury complained of was the result of such negligence. Now the only injury complained of in this case is that defendant did not provide a dog on the machine, known as the “héad-rounder.” If, therefore, plaintiff has failed to show by a preponderance of testimony that defendant failed to provide a dog, as alleged, and that such failure was negligence, which negligence caused the injury, your verdict will be for defendant.’ That I charge you to be the law, because he has alleged in his complaint that it was negligence on the part of the company in this case in not furnishing a dog on that head-rounder, and that is the negligence complained of. If you should find from the proof that it was not negligence, there could be no recovery; but if it was negligence in failing to furnish the dog, they would be responsible for the consequences of that negligence.</p> <p>“ ‘13. Even if the jury believe that a failure to provide and use a dog was negligence, yet if the jury believe that the absence of the dog did not and could not have been the cause of the alleged injury, your verdict will be for defendant.’ That I charge you to be the law, because he has alleged it was negligence on the part of the company in failing to furnish a dog, and if you conclude from the evidence that the failure to furnish a dog did not cause the injury, they would not be liable. If, on the other hand, you find from the evidence that in the use of ordinary care they should have furnished a dog, and then failed to furnish it, and that that was the cause of his injury, then the defendant company would be liable.</p> <p>“So, gentlemen of the jury, after all, this is a case for the jury, the action being based on negligence. If it was negligence on the part of the defendant company in not furnishing a dog on that machinery, and from that failure to furnish a dog the plaintiff was injured, then the company would be liable. But if it was not necessary to the ordinary safety and protection of the plaintiff that a dog should be furnished, then they would not be liable.</p> <p>“Take the record and find a verdict. I will supplement that with this. You have heard so much about contributory negligence which we have been discussing here, and here is the latest definition of it by our Supreme Court, and I will give it in their words. ‘The best definition of contributory negligence we have seen is the following.’ That is what the Supreme Court says: ‘Contributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred.’ That is what our Supreme Court has laid down as contributory negligence.”</p> <p>From judgment on verdict for plaintiff, defendant appeals on following exceptions:</p> <p>“i. Because his Honor, the presiding Judge, erred in not holding that the act of the General Assembly of the State of South Carolina, entitled ‘An act to further amend chap. XCIV., art. i, of the Revised Statutes of 'South Carolina, vol. i, 1893, relating to jury commissioners, as now amended by law,’ approved 19th February, 1900, was and is in contravention of and violates subdivs. 11 and 12 of sec. 34, of art. III., of the Constitution of the State of South Carolina, which became effective on the 1st day of January, 1896, in that the said act of the General Assembly was and is in the nature of special legislation, the county of Charleston being the only county in the State of South Carolina containing a city with 40,000 inhabitants or over; and furthermore that the said act was and is in contravention of the constitutional requirements above referred to, requiring that all general laws shall be uniform in their operation, and because that the said jury so drawn under the provisions of the said act is illegal and void, for the reasons hereinbefore stated.</p> <p>“2. Because his Honor, the presiding Judge, erred in modifying defendant’s fifth request to charge as follows: ‘The Palmer Manufacturing Company was only bound to exercise reasonable and ordinary care in furnishing machinery and appliances for the prosecution of its business. It was not bound to furnish the safest and best.’ ‘That I charge you to be the law, and it is a question of fact whether they did use reasonable and ordinary care in furnishing safe appliances for the protection of its employees on that machine. That is the question. They are not bound to find out what is the latest and best patent, but it is a question of fact for the jury; did they use ordinary care in furnishing the machinery, and use ordinary care and precaution in putting around it such safeguards as would protect the party who operated it ? That is the question for you, whether this company did that; if they did not, it would be negligence, and they would be responsible for the consequences. If they did, it would not be negligence and they would not be liable.’ It is respectfully submitted, that by so charging and modifying defendant’s request, his Honor held defendant responsible if the jury found that defendant did not use ordinary care in furnishing the machinery, and use ordinary care in putting around it safeguards as would protect the party who operated it, without regard to the fact whether the negligence of plaintiff contributed directly as an additional proximate cause or not.</p> <p>“3. His Honor, the presiding Judge, erred when he refused to charge defendant’s sixth request, namely: ‘If the jury believe that the Palmer Manufacturing Company exercised such care as other well regulated companies doing the like business ought to exercise, and as proper prudence demanded under the circumstances, nothing more can be required and they are not responsible.’ It is respectfully submitted that defendant was bound only to use ordinary care, and said request should have been submitted to the jury, as they were to judge from all the testimony what this company ought to have done under the circumstances.</p> <p>“4. His Honor, the presiding Judge, erred when he refused to charge defendant’s seventh request, which was as follows: ‘If the jury believe that the injury resulted from defective machinery or appliances, the defendant company is not responsible, unless the proof goes further and shows that the company’s negligence in purchasing and overlooking its machinery, was the cause of its having defective machinery in use.’'</p> <p>“5. His Honor, the presiding Judge, erred when he refused to charge defendant’s eighth request, which was as follows: ‘8. Many of the employments in which laborers are engaged each day are fraught with danger, and the management of machinery of all kinds is always attended with more or less danger; therefore, the ground of liability of an employer to an employee for injury received while operating machinery is not danger but negligence; and the plaintiff in this case must show by at least a preponderance of the testimony that the injury was caused by the negligence alleged.’</p> <p>“6. His Honor, the presiding Judge, erred in refusing defendant’s eighth request above set out, 'on the ground that that requires me to assume a question of fact.’ It is respectfully submitted that his Honor had previously stated in his charge, 'the law recognizes the fact that all machinery is dangerous,’ and his Honor erred in stating that said request required him to assume a question of fact.</p> <p>“7. His Honor, the presiding Judge, erred when he refused to charge defendant’s eleventh request, which was as follows : '11. It is a well established rule of the law of negligence that contributory negligence to any extent will always defeat a recovery.’</p> <p>“8. His Honor, the presiding Judge, erred in stating to the jury the definition of contributory negligence as follows : ‘Contributory negligence is a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence and contributing to the injury as a proximite cause thereof, without which the injury would not have occurred,’ and in refusing to charge to the jury the effect of contributory negligence, as requested by plaintiff. It is respectfully submitted that if his Honor gave to the jury the definition of contributory negligence, the jury should not have been left without any instructions whatever as to the effect of such contributory negligence, but should have been instructed that 'contributory negligence to any extent would defeat a recovery,’ as requested by defendant in the eleventh request to charge.”</p> <p>cites: The act, 23 Stat. 320, providing for drawing jurors is unconstitutional: Rev. Stat., 2373, 2375; 22 Stat., 517; 23 Stat., 320; Con., art. III., sec. 34, sub. 11 and 12; 75 Mo., 354; 96 Penn. St., 425; 100 Id., 246-. What is' a local or special law? 43 N. Y., 21; 51 S. C., 51; 54 S. C., 254. Court will take judicial notice that Charleston is only city in State having 40,000 inhabitants: 84 Ill., 590; 75 Mo., 356; 89 Mo., 239; 42 N. J. R., 435; 44 Ohio St., 247; 21 Id., 11. This act does not classify but designates: 47 N. J. R., 446, 105; 37 Minn., 272; 80 F. R., 222. If jury is illegally drawn judgment will be arrested: 15 Rich., 42; 26 S. C., 1x4; Harp., 91. Laws similar to the one in consideration have been held void in other States: 43 N. Y., 10; 92 N. Y., 136; 155 N. Y., 420; 106 Penn. St, 377; no Id., 246; 113 Pa. St., 176; 145 Penn. St., 172; 84 Ill., 590; 136 Ill., 764; 55 Cal., 489; 55 Cal., 242; 118 Cal., 401; 80 F. R., 218; 82 F. R., 1; 60 N. J. L., 482; 38 A., 833; 42 N. J. R., 435; 75 Mo., 647; 6 Ency., 1079; 92 N.'Y., 136; 3 Del., 475. As to suitable machinery and appliances: 22 S. C., 563; 139 Pa. St., 261; 23 S. E. R., 718; 15 S. 'C.,'450. Error to refuse to charge that machinery of all kinds is dangerous: 44 S. C., 442'; 23 S. E. R., 718; 139 Pa. St., 261. Error to refuse to charge that contributory negligence to any extent will always defeat a recovery: 51 S. C., 95; 50 S. C., 53; 10 S. C., 436; 55 S. C., 397i 55 S. C., 192; 56 S. C., 95; 58 S. C., 228; 15 S. C., 443; 23 S. C., 542.</p> <p>cite: As to the constitutionality of the act in question: Art. III., sub. 11 and 12 of sec. 34 of Con.; 48 N. E. R., 1003; 28 S. E. R., 891; 41 S. W. R., 1094; E. Ency., 1 ed., 698. No error to refuse to charge that care required of defendant is that exercised by other zveil regidated companies: 25 S. C.,.24. Duty of master not only to provide safe and suitable machinery, but to keep same in repair: 52 S. C., 443. Request as to contributory negligence properly refused, because it ignored the proximate ca%ise: 55 S. 'C., 192; 51 S. 'C., 91.</p>

<p>Before Hudson, Special Judge, Barnwell, March, 1900.</p> <p>Action to set aside certain deeds by Julia M. Price et aL against S. Krasnoff et al. Prom judgment dismissing complaint, plaintiffs appeal.</p> <p>cite: The plaintiffs fully established by competent testimony their equitable title to the property: 4 DeS., 287; 3 Stro'b. Eq-, 134; 5 Rich. N. S., 90. Anszvers of defendant do not contain the requisite pleas for setting up defense of purchaser for value without notice: 7 Rich. Eq., 516; 5 S.- C., 96; 3 Strob., 135. Defendants had full notice of facts: 13 S. C., 167; 9 S. C., 26. The plaintiffs were necessary parties to foreclosure of trustee's mortgage: 22 S. G, 332; 9 Rich. Eq-, 325; Bail. Eq-, 3951 25 S. C., 275; 16 S. C-, 282.</p> <p>The latter cite: Defendants take good title, unless notice of alleged fraud outside of deed is brought to them: 23 S. C., 494; 6 Rich. Eq., 176; 63 Ala., 561; 51 HI-, 415; 79 IU-. 791 33 HI-, 259i 53 Miss., 307; 26 Neb., 33; 70 Ill., 46; 7 Johns Ch., 150; 38 N. E- R-, 38; 39 S. W. R., 345; 44 Ala., 117; 17 Ves., 822; 24 S. C., 487; 8 Wheat., 421; 2 DeS-, 375; 1 Speer Eq., 135; 2 Eed. R., 329; 70 Miss., 45. Sufficiency of statement of facts cannot be considered for first time on appeal: 30 S- C., 526. Allegations are sufficient to sustain plea of purchaser for value without notice: 8 S. C., 104; 12 S. C., 4521 S. C., 435; 25 S. C., 72; 27 S. C.,549. Cestui que trustent are not necessary parties to the foreclosure: 23 S. C., 313; 22 S. C., 332; 9 Rich. Eq., 332; 4 Rich. Eq., 49°i 93 U- S., 155; 124 U. S., 172; 166 U. S., 543; 4 Minn., 317; 8 Ohio, 500; 9 Hare App., 4053 Deg. M. & G., 119; 94 U. S., 34s; 182 Pa. St., 388; 90 Ga., 72; 50 S. C., 127; 16 S. C., 424; 4 Rich. Eq., 60; Code, 134; 20 App. Div. Sup. Ch. R. (Hem.), 87; 17 N. Y., 210; 23 S. C., 516.</p>

Before Gary, J., Barnwell, August, 1900. Action by Myrtis V. Matthews against Bank of Allendale, C. M. Hiers and W. V. Gill. From judgment dismissing complaint, plaintiff appeals. cite: Complaint does not improperly unite two causes of action: 53 S. 'C., 533. Does the complaint state facts sufficient to constitute a cause of action? 18 'S. C., 469; 56 S. €., 241; 39 S. C., 44; 48 S. C., 80; 53 S. €., 414; 22 Stat., 774. No citations. contra.

Before Buchanan, J., Greenwood, April, 1900. From judgment on verdict for plaintiffs, defendant appeals. cite: As to measure of damages: 53 S. C., 410. Negligence in delivery not the proximate cause: 9 Ech., 353; 94 U. S., 496; Dud., 180; Sp., 550; 25 S. C., 70; 16 N. Y., 489; 41 N. Y., 544; 64 Wis., 531; 81 Ga., 285; 40 S. C., 524. Error for attorneys not to sign notice to take testimony de bene esse: Rev. Stat., 2345; 18 Stat., 373; 29 S. C., 48; 6 Ency.

<p>Before Klugh, J., Kershaw, September, 1900.</p> <p>Action for injunction and to remove cloud on title by Howard C. and John A. Singleton against Esther Singleton, administratrix of Robert Singleton. The master filed the •following report:</p> <p>“This'is a suit brought by the plaintiffs, H. S. Singleton and J. A. Singleton, to have a mortgage, which is a cloud upon the title to a certain piece of real estate owned by them, declared null and void, and cancelled, the defendant asking that said mortgage be foreclosed. One A. E. Singleton, the mother of the plaintiffs, was at the time of her death on June 8th, 1893, the owner in fee simple of the real estate in question, a lot and store house in Camden, S. C. Said A. E. Singleton died intestate, leaving surviving her as her heirs at law and distributees her husband, Robt. Singleton, and her two sons, H. C. Singleton and J. A. Singleton, the plaintiffs, herein. On September 1, 1891, said A. E. Singleton executed and-delivered to one Woodward Holland her bond in the penal sum of $1,610, conditioned for the payment of the sum of $805, due and payable as follows : $420 September 1,1892, with interest after maturity at the rate of eight per cent, per annum, and $385, with interest at the same rate on September 1, 1893. And in order to secure the payment of said bond, executed a mortgage to said W. Holland on the real estate in question. On October 21, 1893, said mortgage was assigned by said W. Holland to R. Singleton upon the payment by said R. Singleton of $843.20. And on December 15, 1893, R. Singleton assigned said mortgage to said Esther Singleton, his second wife, the defendant herein. No consideration passed for said assignment, it being a deed of gift. It appears that after the second marriage of R. Singleton, he and his sons, the plaintiffs, became involved in a disagreeable dispute over the settlement of the estate of A. E. Singleton, deceased, of which dispute Esther Singleton was cognizant. R. Singleton and his sons finally settled their difference by the said' R. Singleton making to H. C. and J. A. Singleton a deed of his interest in said real estate, to take effect upon his death, plaintiffs in consideration of same making a deed to him for his life of their two-thirds interest in said real estate, said deeds bearing date January 5, 1894. The deed of R. Singleton to plaintiffs contained the usual general guaranty clause, and Esther Singleton renounced her dower to same. It is an undisputed fact from the evidence that at the time of the execution of said deeds the plaintiffs did not know of the assignment of bond and mortgage to Esther Singleton; and in fact the testimony is that before H. C. Singleton signed deed, R. Singleton was asked if the W. Holland mortgage- was paid, and R. Singleton replied that it was paid. There is no testimony as to whether or not R. Singleton was asked about assignment of mortgage to him by W. Holland. The mortgage was duly recorded on September 5th, 1891, but the two assignments were not recorded until May 30, 1898, after the commencement of this action. There does not appear, however, to have been any secrecy about the assignment of mortgage by Holland to R.- Singleton. The witness, E. C. Zemp, cashier of the Farmers and Mechanics Bank, testified that R. Singleton spoke to him about assignment the day before said assignment was executed, and the money was paid to Holland by a check on bank. Both W. Holland and R. Singleton died before the commencement of this suit.</p> <p>“The plaintiffs contend that this mortgage is null and void and should be cancelled for various reasons. The plaintiffs first attack the mortgage under the ‘married woman’s’ law. They claim that said mortgage was given to secure a loan made for the purpose of obtaining money to pay the debts of R. Singleton. There is nó question as to the fact that when A. E. Singleton executed bond and mortgage, she was married to R. Singleton. Although this mortgage was executed in 1891, it cannot be considered under the act of 1887, as the mortgage did not declare that it w-as the intention of mortgagor to bind her separate estate, and, therefore, this mortgage will have to.be considered under the act of 1882. This case is peculiar, in that the mortgagor, A. E. Singleton, her husband, R. Singleton, and the mortgagee, W. Holland, the parties to the transaction, are all dead, -and, therefore, it is impossible to get direct testimony on the material questions in issue. The mortgagor not having declared her intention of binding her separate estate, and the burden of such proof being in the first instance upon "the holder of the mortgage to show that the money was borrowed from Holland by A. E. Singleton, or through her husband as her agent, and the defendant having failed to make such proof, the mere fact of mortgagor having executed mortgage and the loan having been made, will not of itself be sufficient to make said money a part of the separate estate of A. E. Singleton, and the claim for same enforced against her regardless of the disposition of the money, and this case is for that reason to be distinguished from the case of Hibernia Savings Institution v. Luhn, 34 S. C., 175, and the case of Scottish Company v. Deas, 35 S. C., 43. We, therefore, have to fall back upon the doctrine laid down in Habenicht v. Rawls, 24 S. C., 461, and reaffirmed in numerous other cases not necessary -to be reviewed here, that it is not so much the intention of the married woman to bind her separate estate as it is her power to do so, whether or not the contract was for the benefit of her separate estate; if not, it could not be binding upon her separate estate. It has been decided in the case of Pelser v. Durham, 37 S. C., 354, that the party seeking to recover upon a married woman’s contract must show by evidence, direct or circumstantial, that the contract was made with reference to her separate estate. Now, has the defendant shown that the bond and mortgage executed by A. E. Singleton to Holland was for the benefit of her separate estate ? It has not been clearly so shown by direct evidence, but as direct evidence is impossible in this case, circumstantial evidence has to be relied on. The evi- • dence shows that the mortgage was executed September 1, 1891. That prior to that time R. Singleton had been conducting a bakery and grocery business in Camden, in the store on the mortgaged premises. That on October 23d, 1891, A. E. Singleton started business with Geo. W. Steffens’ Sons of Charleston, and continued to do business with them until March 1, 1894. That on September 25, 1891, John C. Weiters, of Charleston, a wholesale grocer, sold A. E. Singleton a bill of goods amounting to $308.29, of which $275 was paid on the same day and the balance still remaining unpaid. The testimony of the cashier of the Bank of Camden, and the books of the bank, show that in the fall and winter of 1891 and the winter and spring of 1892 numerous collections came to bank from business houses against A. E. Singleton. The city recorder and county auditor testify as to the tax returns of the Singletons, which shows that all property, real and personal, including merchandise, was returned in the name of A. E. Singleton for the years 1890, 1891 and 1892, and that the name of R. Singleton did not appear upon the tax books as a taxpayer for those years. So it seems very plain that the business was conducted by A. E. Singleton from about September, 1890. And under the circumstances I think the circumstantial evidence sufficient to prove the fact that the mortgage was executed and the money used, the greater part for the benefit of the separate estate of A. E. Singleton. It has been decided in the case of Brown Bros. v. Prevost, 28 S. C., 123, and other cases, that when a mortgage is given by a married woman, and it is proved that part of the money borrowed was for the benefit of her separate estate and part to pay the debts of her husband, that her separate estate can only be held liable for the amount used for the benefit of her separate estate. Was any of the money borrowed from Holland used to pay the debts of R. Singleton ? J. A. Singleton testifies that the money was borrowed to pay the debts of R. Singleton, but did not specify a single debt that was paid or a single debt that R. Singleton owed. Defendant objects to this testimony, under sec. 400 of the Code. But I hold that as the witness testified to a conversation not between himself and a deceased party, but between a party deceased and another party (A. E. Singleton and R. Singleton), that although witness is an interested party, he is competent to testify to such conversation. The 6th paragraph of the synopsis of the case of Moore v. Trimmier, 32 S. C., 512, is as follows: ‘A party to the action and having an interest in the subject thereof, derived from his deceased father, may testify to a conversation between such father and another person now deceased, as a witness against the representatives of such deceased person who is a party to the action.’ A case on all-fours with this one. The testimony de bene esse, taken in Charleston, and the testimony of C. H. Yates, shows that R. Singleton owed on September i, 1891, a balance to Geo. W. Steffins of $60.20, of which he paid on October 12th, 1891, $25, the balance still being due. That R. Singleton paid through Bank of Camden, on September 14, 1891, to Brux & Tully, $9.80; on September 4, 1891, $31.20 to Union Mills; on September 21, 1891, $17.70 to Key & Co., amounting to $83.70 — being the only debts shown by the testimony to have been paid by R. Singleton after execution of mortgage of A. E. Singleton to Holland. While there is no direct evidence that R. Singleton paid these debts out of the money borrowed from Holland, still taking this fact in connection with the testimony of J. A. Singleton and all the circumstances of the case, I think the proof sufficient to show that such debts were so paid. This amount would, therefore, have to be deducted from the original amount of the mortgage. And if this was the only contention in the case, the estate of A. E. Singleton would be liable for the sum of $1,128.60, with interest at eight per cent, per annum on $756, from January 1st, 1899. The judgment roll in the case of J. C. Claussen & Co. v. R. & A. E. Singleton, offered in evidence, does not seem to have any bearing on the point just discussed. The judgment was for $116.55, dated 13th February, 1890, and satisfied 1 May, 1890, before the Holland loan was made.</p> <p>“There are several other contentions of plaintiffs now to be considered. Plaintiffs contend that the assignment of mortgage by R. Singleton to A. E. Singleton was fraudulent, and must be set aside for that reason. There seems to be no necessity in this case to ascertain whether or not such assignment was fraudulent; for even if it was, taken by itself it could only operate at the most in setting aside the assignment of the mortgage to Esther Singleton and not the mortgage itself. Plaintiffs also contend that the bond and mort-</p> <p>gage being a chose in action, that Esther Singleton cannot claim the equities of an innocent purchaser for value without notice, and that she took the mortgage subject to any setoff or defense that they had against R. Singleton or Holland. Sec. 133 of the 'Code is as follows: ‘In the case of assignment of a thing in action, the action of the assignee shall be without prejudice to any set off or other defense existing at the time of or before notice of the assignment; but this section shall not apply to a negotiable promissory note or bill of exchange, transferred in good faith, and upon good consideration, before due.’ In the case of Patterson v. Robb, 38 S. C., 138, the doctrine of our Courts is reaffirmed, that bonds and mortgages are dioses in action, and the assignees thereof are not protected by the equity of purchaser for value without notice. The Court in this case, page 152, says: ‘The Circuit Judge is quite right in his decree when he says, “an innocent assignee has all his (mortgagee’s) rights.” ’ That is exactly the doctrine of our Courts. But he ought to have gone further, and said that, under our law, an innocent assignee of a chose in action under seal takes such chose in action subject to all the infirmities in and against-his assignor. In the case of Moffatt v. Hardin, 22 S. C., 30, the Court says in regard to sec. 133 : ‘Nothing could be plainer or more positive than this provision. As we understand it, the debtor, in executing such securities, gives no authority expressly or impliedly, in fact or. in law, that they may be sold at all; and if they are sold, the purchaser is notified by law that he takes them at his peril under the principle caveat emptorf In all the cases that have been decided constructing sec. 133, there seems to have been but one assignment of the mortgage, 'and the law is very plain that the assignee can rise no higher than the mortgagee. But in this case there have been several assignments of the mortgage. There appears to be no set off or other defense in this case by plaintiffs against Holland, other than the ‘married woman’s’ defense. Under the wording of sec. 133 and the decision in the cases above referred to, I think that the contention of plaintiffs is correct, and that A. E. Singleton stands in the shoes of R. Singleton, and that the mortgage is subject to any defense that plaintiffs have against R. Singleton. Furthermore, Esther Singleton could not protect 'herself as an innocent purchaser for value, as she acknowledges that she did not pay R. Singleton anything for bond and mortgage; nor is she without notice of the 'defense against R. Singleton, as will be shown later. The deed of R. Singleton to plaintiffs of the land that the mortgage in question is on, contained the usual general warranty clause (Esther Singleton renounced' 'her dower, and, therefore, is bound to have had notice of the deed and the warranty clause). Plaintiffs contend -that such warranty was a contract to pay off any encumbrance upon land, mortgage or otherwise. In the case of Evans v. Mcbucas, 12 S. C., 56, it is held that a covenant of warranty in a deed is itself a contract to pay any encumbrance on the land. And the Court says: Tt is settled in this State, beyond dispute, that the general covenant of warranty, since the act of 1795, must be construed as containing the various covenants in use prior to that time in conveyances of land.’ The question that arose in the case of Evans v. McEucas, as to whether the grantee could avail himself of the covenant of warranty against the grantor until the grantee actually suffered damage 'by the enforcement of the encumbrance against the grantee, cannot arise in this case, as the defendant is in this action asking for the enforcement of the encumbrance, the foreclosure of the mortgage. And I, therefore, hold that said mortgage is null' and void and should be cancelled. It may be true that the plaintiffs got the best of the bargain in the deal with their father, but as a valuable consideration passed for deed of R. Singleton to plaintiffs, we cannot inquire into the sufficiency of the consideration in this case.</p> <p>“The question of rperger raised by plaintiffs was not pushed much by them, and i't is hardly necessary to consider it now. At the most, merger could only operate to discharge the mortgage against R. Singleton’s one-third, interest in land.</p> <p>“To particularize, I find as matters of fact:</p> <p>“I. That the plaintiffs, H. C. Singleton and J. A. Singleton, are the owners in fee of the real estate described in the ■complaint.</p> <p>“II. That on the first day of September, 1891, one A. E. Singleton, the mother of the plaintiffs, and the wife of one Robert Singleton, deceased, was the owner in fee simple of the premises described in the complaint, and that she, the said A. E- Singleton, on said first day of September, 1891, made and delivered to one Woodward Holland her bond in writing and under seal, conditioned for the payment to the said W. Holland of the sum of $805, in one and two years from the date of said bond, the sum of $420 on the first day of September, 1892, with interest after maturity at the rate of eight per cent, per annum, and the sum of $385 on the first day of September, 1893, with interest after maturity at the rate of eight per cent, per annum, which said bond she secured by making and delivering to said W. Holland a mortgage of the same date and upon the premises described in the complaint, which said mortgage was duly recorded in the office of the register mesne conveyance for Kershaw County, in book Q. Q, page 470, on September 5th, 1891.</p> <p>“HI. That on the 8th day of June, 1893, the said A. E. 'Singleton died intestate, leaving surviving her as her heirs at law her two children, the plaintiffs herein, and her hus'band, R. Singleton.</p> <p>“IV. That on the 6th of January, 1894, the said R. Singleton made and delivered to plaintiffs a deed to his interest in the mortgaged premises herein, to take effect after his death. And that the plaintiffs at the same time made .and delivered to R. Singleton, for his lifetime, their interest in said mortgaged premises.</p> <p>“V. That the said deed of R. Singleton to plaintiffs contained the usual general warranty clause, and that Esther .‘Singleton renounced her dower on said deed.</p> <p>“VI. That on October 21st, 1893, the said mortgage of A. E. Singleton to Woodward Holland was assigned to Robt. Singleton by Woodward Holland, upon the payment to him by R. Singleton of $843.20.</p> <p>“VII. That on the day of , 1895, said Robert singleton intermarried with one Esther Burkett, and that on the day of ,1898, the said Robert Singleton</p> <p>died intestate, and his wife, Esther Singleton, was duly appointed his administratrix.</p> <p>“VIII. That on the 15th day of December, 1893, the said bond and mortgage were transferred by R. Singleton to Esther Singleton in writing, and that said transfer and assignment was a deed of gift.</p> <p>“IX. That on March 3, 1896, said Esther Singleton borrowed money from Farmers and Merchants Bank, and transferred and assigned to said bank said mortgage as collateral security. That upon the payment of said loan to said bank by Esther Singleton, bank transferred back to her said mortgage on November 5, 1896, and that said Esther Singleton then left mortgage with bank for safekeeping. That said two assignments were not recorded in clerk’s office.</p> <p>“X. That after the marriage of R. Singleton and Esther Singleton, and up to the time of the exchange of deeds between R. Singleton and plaintiffs, there was some unpleasantness between R. Singleton and plaintiffs over the settlement of the estate of A. E. Singleton, and that Esther Singleton knew of said unpleasantness.</p> <p>“XI. That the assignments of bond and mortgage by Holland to R. Singleton and the assignment by R. Singleton to Esther Singleton were not recorded in clerk’s office until May 30th, 1898, after the commencement of this suit.</p> <p>“XII. That Esther Singleton had actual notice of the deed of R. Singleton to plaintiffs.</p> <p>“XIII. That at the time, and just before the execution of deed by plaintiffs to R. Singleton, said R. Singleton told one B. B. Clarke, in the presence of H. C. Singleton, that the Woodward Holland mortgage was paid, but nothing was said as to the assignments, and that when plaintiff executed deed they knew nothing of said assignments.</p> <p>“XIV. That Esther Singleton told J. A. Singleton, shortly after the death of R. Singleton, that she knew nothing of the Holland mortgage and never had her hands on it.</p> <p>“XV. That when A. E. Singleton executed bond and mortgage to Woodward Holland, she was a married woman, the wife of R. Singleton.</p> <p>“XVI. That most of the money borrowed by A. E. Singleton from Woodward Holland1, to secure which mortgage was given, was used for the benefit of the separate estate of said A. E. Singleton.</p> <p>“XVII. That $83.70 of said loan was used by R. Singleton to pay his individual debts.</p> <p>“XVIII. That deducting this $83.70 from principal of mortgage, the amount of said bond and mortgage, with interest, would be $1,128.60, with interest on $756 from January 1st, 1899.</p> <p>“XIX. That for the years 1890, 1891 and 1892, R. Singleton’s name did not appear upon the tax books as a taxpayer, and' all the property, real and personal, including merchandise, was returned in the name of A. E. Singleton.</p> <p>“XX. That from the fall of 1891, A. E. Singleton conducted the bakery and grocery business in Camden, S. C., and that prior to the time the said business was conducted by R. Singleton.</p> <p>“I conclude as matters of law:</p> <p>“I. That the burden of- proof is upon the defendant, in the first instance, to prove that the bond and mortgage executed by A. E. Singleton to Woodward Holland was executed for the benefit of the separate estate of A. E. Singleton.</p> <p>“II. That the separate estate of A. E. Singleton, leaving out the other contentions in the case, is liable for the amount of said loan from Holland, which was used for the benefit of. her separate estate.</p> <p>“III. That the plea of merger will not operate in this case to the extent of cancelling said bond and mortgage.</p> <p>“IV. That the plea of plaintiffs that the assignment of bond and mortgage by R. Singleton to Esther Singleton was fraudulent, will not, of itself, be sufficient to set aside said bond and mortgage as null and void.</p> <p>, “V. That Esther Singleton took bond and mortgage subject to all setoffs or defenses that plaintiffs might have against R. Singleton or Woodward Holland, before or at the time of notice of said assignment.</p> <p>“VI. That the warranty clause in the deed of R. Singleton to plaintiffs was a warranty against any incumbrance on said real estate.</p> <p>“VII. That the said mortgage, which the defendant is now seeking to foreclose, is an incumbrance on said real estate and cannot be enforced against plaintiffs, the grantees of R. Singleton, and should be cancelled.”</p> <p>. From judgment of the Circuit Court adjudging the mortgage null and void and ordering its cancellation of record, the defendant appeals.</p> <p>cites: Statements by assignor after assignment camiot effect assignee: 15 S. C., 171. This must be looked at as a contest between the original parties: Code, 133; 22 S. C., 29.</p> <p>cite: Pirst exception is too indefinite: 53 S. C., 155; 52 S. C., 74, 405; 51 S. C., 38. Assignee takes chose subject to all defenses against assignor: 5 Stat., 530; 14 Stat., 450; Code, 133; 22 S. C., 30; 57 S. C., 467; 57 S. C., 147; 2 Speer, 163; 4 Rich. Eq., 116; 11 Rich., 432; 22 S. C., 9; 38 S. C., 148; 43 S. C., 287; 45 S. C., 83; 49 S: C., 496; 51 S. C., 467. Assignee of non-negotiable chose in action cannot claim equity of innocent purchaser for value without notice: 22 S. C., 9; 4 Rich. Eq., 116; 57 S. C., 467. Exception founded on misconception of holding below should be disregarded: 50 S. C., 218; 49 S. C., 7, 438; 55 S. C., 374. Duty of assignee to notify obligor of assignment: 1 Ency., 843, notes. Burden is on appellant to show that married woman had the pozuer to make this contract: 24 S. C., 461; 34 S. C., 175; 35 S. C., 43; 30 S. C., 238; 31 S. C., 436; 32 S. C., 455; 38 S. C., 519; 52 S. C., 497. This Court may reverse ñnding of fact below in equity case: 45 S. C., 503; 47 S. C., 347; 51 S. C., 362; 55 S. C., 198; 56 s. c., 154; 57 S. C., 405. As to construction of deeds: 23 S. C., 235; 24 S. C., 235; 35 S. C., 314; 42 S. C.; 312; 15 S. C., 33; 48 S. C., 281; 21 S. C., 70; 17 S. C., 670. As to effect of general zvarranty: 12 S. 'C., 56; 9 Rich., 374; 27 S. C., 193; 24 S. C., 451.</p>

Before Townsend, J., Sumter, March term, 1900. Action for damages for personal injuries by A. Brooks Stuckey, as administrator of Sarah P. Dixon, against Atlantic Coast Line Railroad Co. The following is so much of the charge as is pertinent to the questions made: “The statute under which this suit is brought reads as follows : ‘Whenever the death of a person shall be caused by the wrongful act, neglect or default of another, and the act, neglect or default is such as would,…

Before Buchanan, J., Spartanburg, March term, 1901. Action for damages and for injunction by Thos. J., R. P. and A. L. White against Whitney Manufacturing Co. The Judge instructed the jury as follows, omitting formal parts: “Now, Mr. Foreman, I am requested to make the following charges to you, and I do so: ‘1. Every proprietor of lands on the banks of a stream has a right to use of the water in the stream as it was wont to flow without diminution or alteration.

Before Buchanan, J., Greenville, August, 1900. Accounting by executor in Susan E. Turnipseed against Geo. W. Sirrine, executor. From Circuit decree the executor appeals. cites: Court may provide compensation for executor: io N. J. Eq., 332. As to commissions to executors: 58 S. C., 22. cites: Expenses of litigation should have been allowed: 1 N. & McC., 326; 2 McC. Ch., 73; 2 Hill Ch., 113; Rice Eq., 51; 1 Strob. Eq., 394; 4 Rich. Eq., 41; 8 Rich. Eq., 87; 10 Rich.

Before Ki/ugh, J., Marion, spring term, 1900. Action on note by B. G. Worth and C. W. Worth, survivors, against James Norton on the following complaint: “I. That heretofore B. G. Worth and D. G. Worth were copartners in trade, doing business in the city of Wilmington, N. C., under the firm name of Worth & Worth. II.

Before Benet, J., York, July term, 1900. Action in nature of creditor's bill by First National Bank of Charlotte, N. 'C., against Iredell1 Land Company. The National Union Bank of Rock Hill was made party by service of summons and complaint and restraining order.

<p>Before Gage J., Charleston, February, 1900.</p> <p>Foreclosure by Joseph W. Barnwell, trustee, and individually and as ag-ent and guardian, and Ann Joseph Wilson and Ellen F. Hayne against Sophia Frances Shepherd Marion. From decree ordering foreclosure, defendant appeals.</p> <p>cite: As to tiling papers with clerk: 50 S. C., 380. Tender discharges mortgage: 26 S. C., 337. He who seeks equity must do equity: 1 Flow., 56; McM. Ecp, 157; 20 Wall., 14; 109 U. S., 522; 18 Wall., 375; 1 Flow., 166; 5 How., 192. Party failing to do equity should have doubts and difficulties solved against him: 9 Wall., 788. Right to redeem is a favorite of equity: 106 Ú. S., 47; 14 Wall:, 297; 97 U. S., 68; 12 Wall., 323; 135 U. S., 4571 128 U. S., 691; McM. Eq., 126; 131 U. S., 258. Tender releases debtor from subsequent accruing interest and extinguishes mortgage lien: 15 Eney., 873; 26 S. C., 345. As to payment: 18 Ency., 186.</p> <p>cite: As to custody of documents: Code,, 170, 174; Rev. Stat., 334. Evidence as to payment of taxes properly received: Gen Stat., 220. Testimony outside of mortgage as to understanding of conditions of mortgage inadmissible: 53 S. C., 547; 16 S. C., 357; 44 S. C., 538.</p>

Before Gage, J. Abbeville, June, 1899. Action by L. A. and T. H. Brock, in nature of creditor’s bill, against Hannah Kirkpatrick and Annie Taylor, as devisees of Mrs. Jane Taylor, on… Held: that ‘such judgment is at most only prima facie evidence of the validity of the claim,’ and that a devisee’s property cannot be taken until he has been heard. 2 Hill Ch., 259; 19 S. C., 168. The last seems the most approved doctrine. I have carefully read Lanier v. Griffin, 11 S. C., 566.

Before Buchanan, J., Abbeville, August, 1900. Action by B. Berry Allen against David K. Cooley, and Thomas D. Cooley on the following complaint: “1.

Before Buchanan, J., Greenville, July, 1900. Action on contract by E. Y. Hillhouse -against E. I. Jennings. From judgment-of nonsuit, plaintiff appeals on following exceptions: “I. His Honor erred in striking out all of plaintiff’s testimony. It being respectfully submitted that the same tended to establish the material allegations of his complaint, and entitled) plaintiff under 'the pleadings to some recovery, if believed by the jury. “II.

Before Aldrich, J., Fairfield, spring term, 1900. Action for damages and injunction by Edward B. and Glenn W. Ragsdale against Southern Railway 'Co., Rauren-ce M. Blair and James B. Frazier. From judgment for plaintiffs, the defendant railway company appeals. The latter cite: Under facts here, appellant not liable for rent: 69 Ind., 424; 45 N. Y., 234; 60 N. Y., 242; 13 Hun., 643; 94 N. €., 746; 15 S. C., 70; 19 Conn., 154; 1 Bail., 540; 2 Am. Lead. Ca., 747; 34 La.

Before Buchanan, J., Greenville, July term, 1900. Action by E. Y. Hillhouse against E. I. Jennings for damages for ejecting tenant. From judgment directing a verdict, plaintiff appeals.

Before Gage, J., Florence, July, 1900. Motion by the Northeastern Railroad Co. in the estate of James M. Mayo to revoke letters of administration granted to J. W. McCown, based on the following petition in the probate court: “The Northeastern Railroad Company, petitioner herein, respectfully shows to this Court: “I. That your petitioner is a railroad corporation, duly organized under the laws of the State of South Carolina, carrying on the business of a common carrier on its…

<p>Before Buchanan, J., Richland, October, 1899.</p> <p>Action for alimony by Harriet C. Wise, by her guardian ad litem, Levi Shroder, against Daniel Wise. From judgment on Circuit in favor of defendant, plaintiff appeals.</p> <p>Oral arguments.</p> <p>Oral arguments.</p>

Before Gary, J., Charleston, April, 1900. Action for damages by Empire Mining Co. against Propeller Towboat Co. of Savannah. The appeal herein is from the Circuit order setting aside the judgment in favor of the plaintiff, which is set out in the opinion of Mr. Justice Pope, by the plaintiff on the following exceptions: “First.

Before Klugh, J., Richland, July, 1900. Action by Carolina National Bank of Columbia against State of South 'Carolina, on the following complaint: “The plaintiff above named, complaining of the defendant herein, and bringing this action under and by virtue of a joint resolution of the General Assembly of the State of South Carolina, entitled ‘A joint resolution to authorize the Carolina National Bank of Columbia to sue the State of South Carolina for the recovery of money…

<p>Before , J., Hampton, February, igoi.</p> <p>Indictment against Jeff Godfrey for shooting into a train. From sentence on verdict of guilty, defendant appeals.</p>

Before Watts, J., Charleston, June, 1900. Indictment against John Gibbes for violating ordinances of city of Charleston. He was convicted before the recorder,- and appealed to the Court of General Sessions, which affirmed'the judgment below, and he now appeals to this Court. citing sec. 619, Revised Ordinances of Charleston, art. Ill, sec. 17, Constitution 1895; 13 Ency., 673; 10 Ency., 67411.; 1 Bay, 1. citing art. III., sec. 17, Con.; 4 Am.

Before BEnET, J., Anderson, March, 1901. Claim by R. Y. H. Nance against Anderson County for fees as probate judge in proceedings in lunacy. From order disallowing claim, he appeals to Circuit Court. From order reversing disallowance, county appeals. cite: Con., art. III., sec. 34, subs, io, n and 12; 59 S. C., 110; 1 Ency., 2 ed., 927. Mr. Tribble cites: 59 S. C., no; art. III., sec. 34, subs. 10, n and 12, Con.

Before Buchanan, J., Dorchester, November, 1900. Proceeding before magistrate by O. C. Sires to' eject Norman Moseley from his land as trespasser. From order of ejectment, defendant appeals. From Circuit order confirming this, defendant appeals to this Court. The former cite: Rev. Stats., 2432 to 2434; 43 S. C., 173. Oral argument.

Before Gary, J., Georgetown, November, 1900. Indictment against John Brownfield for murder of James C. Scurry. From verdict of guilty and sentence thereon, defendant appeals. cite: On the motion to quash: Crim. Code, 56; 33 S. C., 100; 177 U. S., 144; 109 U. S., 65; Crim. Code, 38; 162 U. 5., 592; 172 U. S., 213; 100 U. S., 303; 103 U. S., 370. As to resisting arrest: 2 Ency., 2 ed., 980. Oral argument.

Before Watts, J., Pickens, March, 1900. Indictment against Wesley Head for murder of Joseph Kelly.

Before Gage, J., Cherokee, February, 1901. Action by Ransom A. Hawkins against A. N. Wood. From order refusing motion to require plaintiff to make his complaint more definite and certain, defendant appeals. cite: Complaint containing matters appropriate to two or more causes of action, refusal of motion is appealable: 32 S. C, 102; 36 S. C., 559; 34 S. C., 353.

<p>Before Buchanan, J., Spartanburg. May, 1898.</p> <p>Indictment for bastardy against J. C. Meares. From sentence on verdict of guilty, defendant appeals.</p> <p>The latter cite: Defendant shoidd not be convicted of bastardy on tmcorroborated evidence of prosecutrix: 3 Ency., 2d ed., 886. The charge excepted-to in VIII. exception is on the facts: 56 S. C., 526; 57 S. C., 486.</p> <p>Oral argument.</p>

Petition by John Duncan and1 Catherine Mansfield, and one by John Fred. Peiper in the original jurisdiction of this Court, asking that the City Council of Charleston and the Charleston Light and Water Co. be perpetually enjoined from executing a proposed contract. cites: This contract creates a bonded indebtedness: 37 S. C., 5541 53 S. C., 274; and offends sec. 7, art. VIII., and se’c. 5, art. X., of Constitution.

Before Gage, J., Charleston, July, 1900, affirmed, and Gary, J., October, 1900, Action for perpetual injunction against trespass by Charles Pringle Alston and Susan Pringle Alston against J. P. Limehouse, Jonas Happy, Sim Leonard, Abner Leonard and A. M. Hills. Heard on Circuit with case of Donaldson v. Nesbit. From orders of Judges Gage and Gary, defendants appeal.

Action for perpetual injunction against trespass by Sydney T. Donaldson against Mitchell Nesbitt, Faith Johnson, Max Sind'ab, Cain Rutledge, James Greer. Saul Carr, Peter Carr, Sam Carr, and D. H. Smith, heard on Circuit with the preceding case of Alston v. Limehouse.