Volume 61 — South Carolina Reports

<p>Before Gary, J., November, 1900.</p> <p>Action for injunction by Charles Pringle Alston and Susan Pringle Alston against J. F. Limehouse, Jonas Happy, Sim Leonard, Abner Leonard, and A. M. Hills. From order refusing to transfer case to calendar I, on motion of defendants, they appeal.</p> <p>The former cite their argument in the other cause of like name.</p> <p>cite: It is discretionary with Circuit Judge whether he orders equitable or legal issues iirst tried: 52 S. C., 451.</p>

Before Gary, J., Oconee, November, 1899. Action by 'Charles McAlister against W. O. Hamilton. From order dismissing complaint, plaintiff appeals. cite: Requisites of plea of res judicata: 17 S. C., 40. , cite: Questions raised here zvere or might have been raised in former action, and are res judicata: 49 S. C., 230; 16 S. C., 621; 17 S. C., 189; 26 S. C., 178; 21 Ency., 193.

Action for perpetual injunction against trespass by Sydney T. Donaldson against Mitchell Nesbit et al., heard1 on Circuit with preceding case of Alston v. Dimehouse. From order of Judge Gary, made November 19, 1900, therein set out, defendants appeal. refer to arguments used in preceding case. cite: Defendants are not entitled to trial by jury: Code, 274; 53 S. C., 130; 54 S. C., 430; S3 S. C., 139; 29 S. C., 447; 28 S. C, 530; 31 S. C., 262; 44 S. C., 364.

<p>Before Benet, J., Spartanburg, October, 1900.</p> <p>Indictment against Bloom Green for selling liquors, and maintaining a nuisance by keeping whiskey for sale'. From verdict of guilty and sentence thereon, defendant appeals on following exceptions, alleging that the Court erred':</p> <p>“I. In allowing the witness, Henry Wilson, 'to testify, over defendant’s objection, that he purchased whiskey from the defendant on other days than the one named in the indictment, to wit: 8th day of April.</p> <p>“II. In refusing to strike out the testimony of the witness, Henry Wilson, that he bought whiskey of the defendant, and admitted that he did not know when it was, for the reason that it might have been after the finding of the indictment in this case.</p> <p>“III. In allowing the witness, R. M. Floyd, to testify, over defendant’s objection, that he found whiskey in an adjoining room to the one occupied! by the defendant.</p> <p>“IV. In allowing the witness, R. M. Floyd, to testify, over defendant’s objection, that he thought he found a bottle of whiskey in the bureau drawer where he first saw the defendant.</p> <p>“V. In sustaining the objection of the solicitor in the following testimony of witness, R. M. Floyd, upon the cross-examination, to wit: Q. You don’t know who occupied that room? A. No, I only know what Mr. Green told him right there. At this point the solicitor objected, and the Judge sustained1 the objection, saying that any statement made by defendant that makes for his benefit is not admitted.</p> <p>“VI. In allowing the witness, Dave Alverson, to testify, over defendant’s objection, when the said Dave Alverson’s name did not appear in the indictment.</p> <p>“VII. In allowing witness, Alverson, to testify that he paid Mr. Green, the defendant, to allow his furniture to stay in the room in which it was kept, over defendant’s objection.</p> <p>“VIII. In allowing the witness, Walter Perry, to testify, over defendant’s objection, that he had bought whiskey on several occasions, over defendant’s objection, that the said witness’ name did not appear in the indictment, and that at the times he testified to having bought whiskey from defendant, were other than the times mentioned in the indictment.</p> <p>“IX. In allowing the witness, A. D. Foster, to testify, over defendant’s objection, that he had bought whiskey from the defendant at other times than the time mentioned in the indictment, and for the further reasons that the said witness’ name did not appear in the indictment.”</p> <p>No argument.</p> <p>cites: Evidence of a sale before the finding of bill is competent: 59 S. C., 271.</p>

Before , J., Anderson, February, 1900. Indictment against John Marchbanks for maintaining a nuisance.

Before BenET, J., Laurens, October, 1900. Prosecution by town council of Cross Hill against Dr. J. M. Owens and J. F. Spearman for selling intoxicating liquors contrary to town ordinance. From Circuit order dismissing appeals to that Court, defendants appeal to this Court. cites: Town did not have jurisdiction to try defendants: Art. I., sec. 18, Con. Defendants not fully informed of alleged crime: 24 S. C., 224.

Before Buchanan, J., Orangeburg, September, 1900. Indictment for obstructing public road against William W. Wolfe. From order remanding case to magistrate court because Court of General Sessions was without jurisdiction, State appeals. cites: Sec. 365, Crim. Code, applies to highways and not public roads: 2 Strob., 16, 60; 11 S. C., 360; 2 Hill, 387; 1 McM., 47; 2oRich., 619; 7 Rich., 392.

Before Townsend, J., Saluda, December, 1900. Petition by E. U. Kreps and N. H. Watson, at instance of Ellen Watson, to have will of M. B. Watson proved in due form of law.

<p>Before Gary, J., Aiken, September, 1900.</p> <p>Action to set aside deed by J. G. Toole, Hettie M. Toole and E. G. Toole against Eavinia Johnson. From judgment for plaintiffs, defendant appeals.</p> <p>cite: In case like this statute runs against minor: 26 S. 0., 241; 29 S. C., 247; 33 S. C., 35; 38 S. 'C., 500; 47 S. C., 133. It is not public policy to set aside a public sale more than twenty years after made: 4 Strob. Eq., 155; 6 Rich. Eq., 283. Exception that statute runs against fraud only from date of knowledge of, does not apply to a public sale: Code, 114; 13 S. C., 383.; 30 F. R., 537; 1 Hill, 298; 21 Wall., 347. If a minor have knowledge of facts sufficient to put him upon inquiry, which if followed would have led to knowledge, then in this sort of case he must bring his action in one year after attaining his majority: 6 Rich. Eq., 101, 140; 25 S. C., 413; 101 U. S., 138; 4 Strob. Eq., 196; 4 Rich. Eq., 101.</p> <p>cite: If competition at judicial sale be stiffed, it will be set aside: 8 Ency., 832; 3 Rich. Eq., 424; 31 S. C., 73; 38 S. C., 358. Statute of limitations is not set in motion until discovery of fraud: 18 S. C., 528; 4 S. C., 249; 34 S. C., 153.</p>

Petition for injunction in the original jurisdiction of this Court by Joseph H. Hunter, J. A. Simpson, D. I. Shealy, J. P. Bowers, R. R. Ruther, B. S. Dominick, and Oliver P. Harris against Jacob… Held: the managers cotinted the votes and certified the result to the town council of Prosperity, whch declared that the territory was annexed to the town.

Before Watts, J., Orangeburg. Indictment in magistrate court against Easter Easterlin for violation of verbal farm labor contract, firom judgment of Sessions Court affirming that of magistrate court, the defendant appeals. cites: Where there are separate magisterial districts, cases must be tried where offense committed: Con., art. V., sec. 23, 22 Stat., 473. Orangeburg County is divided into such districts: 22 Stat., 474, 480; Rev. Stat., p. 291.

<p>Before Townsend, J., Richland, November, 1900.</p> <p>Claim by Kershaw County against Richland County for costs and expenses of trial of W. R. Crawford, charged with murder. Venue changed to Kershaw County from Rich-land County. From decree of Circuit Court reversing order of county board of commissioners of Richland County, disallowing the claim, Richland County appeals.</p> <p>cite: Costs and fees are purely statutory: 8 Ency., 955 ; 56 S. C., 506, 411; 54 S. C., 538. And such statutes are strictly construed: 10 S. C., 43; 40 S. C., 445. No statute in this State providing for payment by Richland County of this claim: Art. VI., sec. 2; 22 Stat., 12; 14 Stat., 84, 339. In absence of such statute, Richland, County is not liable for the costs of trial in Kershaw County: 7 Ency., 955, 956; 81 Mo., 72; 6 Ala., 72; 10 Neb., 304. Bach county in which a case is tried is liable for the fees of (1) jurors and constables: Rev. Stat., 676, 691, 677; 52 S. C., 91. (2) Porters and ticket boy: Rev. Stat., 645. (3) Meals furnished jurors and constables: Rev. Stat., 2414. Provision in lynching cases: 'Con., art. VI., sec. 6, 22, 213. There is no liability oh the ground of implied contract: 14 S. C., 403.</p> <p>cite: Only points that can be considered here are those made in the grounds of appeal: 27 S. C., 12. Binding of facts by Circuit Judge on appeal from county commissioners cannot be reviewed here: 40 S. C., 281. Are the expenditures made by Kershaw County and its sheriff in the trial of this case charges against Richland Co.? 52 S. C., 590; Rev. Stat., 645; 21 Stat., 481; Con., art. VII., sec. 9; art. V., sec. 18; art. VI., sec. 2; 22 Stat, 12; 4 Kan., 314; 4 Ark., 473.</p>

Before Townsend, J., Richland, November, 1900. Claim by R. B. Williams, sheriff of Kershaw County, against Richland County. From order in Circuit Court reversing judgment of county board of commissioners disallowing the claim, Richland County appeals.

Before Buchanan, J., Spartanburg, March, 1900. Petition by J. B. Gwynn for mandamus against Citizens Telephone Co., requiring it to place a telephone in his store and in-his residence.- From order refusing the writ, petitioner appeals. cites: Telephones are common carriers (a) under the common law: 52 Am. R., 404; 8 Am. & Eng. Corp. Ca., 1; 48 Am.

Before BenET, J., Abbeville, February, 1901. Prosecution by the city council of Abbeville against J. D. Leopard for carrying weapon concealed on 'his person within municipal limits. From order of Sessions Court sustaining defendant’s appeal and reversing judgment of city council, the city council appeals. cites: Powers granted city of Abbeville: 21 Stat., 1134; 22 'Stat., 70, 464. Under these powers it could pass the ordinance: 58 S. C., 427.

Before Benet, J., Spartanburg, October, 1900. Indictment against W. H. Robison for selling liquors, maintaining a nuisance and keeping and storing liquors for unlawful use. From sentence on verdict of guilty, defendant appeals. No argument. cites: As to the law providing tags on stored whiskey: 59 S. C., 271.

<p>Before BeneT J-> Greenwood, November, 1900.</p> <p>Action by Joseph H. Milford against David1 Aiken for damages for conversion of personal property. Prom order affirming judgment of magistrate, plaintiff appeals.</p> <p>cite: 20 Ency., 1st ed., 553; Rev. Stat., 818, 820; 27 S. C., 264; 22 S. C., 332; 23 S. C., 383.</p> <p>cite: Rev. Stat., 818, 820; 17 Stat., 1053; 27 S. C., 265; 30 S. C., 269; Rev. Stat., 2516; 55 S. C., 315; 14 S. C., 42.</p>

Before Ardrich, J., Greenville, November, 1900. Action for damages for conversion of personal property by J. A. and W. C. Baker against W. H. Irvine. From Circuit order reversing judgment of magistrate, the plaintiffs appeal. 1 This appeal was dismissed1 on motion, on April 30, 1901, for failure to file points and authorities three days before peremptory call of case.

Before Ardrich, J., Greenville, November, 1900. Action for damages for conversion of personal property by J. A. Baker against W. H. Irvine. From order of Circuit Court reversing magistrate’s judgment, plaintiff appeals.

Before Aldrich, J., Greenville, November, 1900. Action for damages for conversion of personal property by W. G. Baker against W. H. Irvine. From Circuit order reversing judgment of magistrate, plaintiff appeals.

Before Hudson, special J., ’Cherokee, January, 1901. Action on two promissory notes by D. J. andl C. C. Hopper, as administrators of W. Junius Hopper, against Samuel L. Hopper. The Judge charged the jury as follows :' “This action is brought by the administrators of the estate' of W. Junius Hopper against Samuel Hopper upon two notes. The notes reading as follows: ‘$500.00. One day after date, I -promise to pay W. J. Hopper $500 borrowed money. January ist, 1884.

Before Townsend, J., Clarendon, February, 1900. Indictment against John P. Brock for libel. From sentence on verdict of guilty, defendant appeals. cites: The con~ stitutional provisions as to libel are: 1868, art. I., sec. 8; 1895, art. I., sec. 21. As to its construction: Cool, on Con. Him., 55~57; 1 Story on Con., sec. 400; 3 Green. Ev., sec. 177; 12 Wheat., 332; 16 S. C., 47; 59 S. C., 571. State must show falsity of defamatory words: 59 Ark., 431.

Before Buchanan, J., Lancaster, October, 1899. Action for possession of land by J. Wylie Vaughan et al. against John J. Bridges. From verdict for plaintiffs, defendant appeals. cites: In construing wills, words cannot be supplied to satisfy a conjectural intent: 1 Brev., 414; 1 N. & McC., 321; 29 S. C., 466; 27 S. C., 298; 10 Wheat., 204; 19 S. C., 300; 28 S. C., 125; 30 S. C., 84.

Before Buchanan, J., Spartanburg, March, 1900. Action on contract by Virginia-Carolina Chemical Co. against Moore & Hughes. From judgment for plaintiff, defendants appeal. cite: Parol testimony of defendants did not seek to vary or contradict the terms of plaintiff’s written contract, and was competent: 3 S. C., 332; 4 Strob., 98; 7 Ency., 91, and note.

Before BenET, J., Greenwood, November, 1900. Action by John M. Proctor against Southern Railway Co. on the following complaint: “John M. Proctor, the plaintiff above named, by Graydon & Giles, his attorneys, complaining of the Southern Railway Company, the defendant aforesaid, alleges : “I. Phat the said defendant, th'e Southern Railway Company, is a corporation, duly chartered under and by virtue of the laws of the State of Virginia, and owns and operates a certain railroad…

Before Klugh, J., York, November, 1900. Action on account and for damages by J. Edgar Poag against Charlotte Oil and Fertilizer Co. From judgment for plaintiff, defendant appeals. Mr. C. E. Spencer cites: 59 A. D., 401; 2 McC., 214; 35 A. D., 343; i Allen, 208; 6 Mete., 527; 2 Mete., 374; 2 East., 446; 25 A. D., 214. Mr. J. S. Brice cites: 2 N. & McC., 538; 27 S. €., 376; 17 E. R. A., 545; 12 S. C., 590; 37 L. R. A., 799; 6 E; R. A., 149; 5 Ency., 320, 321; 11 E. R. A., 681.

<p>Refore Gary, J., Aiken, July, 1900.</p> <p>Action for damages by Frank H. Hankinson against Luther H. Hankinson. The following is the Circuit decree:</p> <p>“The amended complaint upon which this case was heard by me was omitted from the record furnished me by the attorneys in the cause; as a consequence I have some difficulty in stating the issues made by the pleadings.</p> <p>“The action is for damages, alleged to have been sustained by the plaintiff, under the following circumstances: On the ioth day of February, 1897, Preston Tutson rented a certain farm from the plaintiff, Frank H. Hankinson, for which he agreed to pay as rent, $100. At this time, it appears that Tutson was indebted to the plaintiff in the sum of $166.06, purchase money of a mule sold by plaintiff to Tutson, and also for supplies advanced. As evidence of the debt, Tutson executed his note to Hankinson for the amount of $266.06, bearing date ioth of February, 1897, and to secure the payment of said note, Tutson at the same time executed a mortgage to Hankinson of two mules, and his crop of every kind grown during the year 1897, on,the tract of land rented from plaintiff. This mortgage was recorded on the 18th day of February, 1897. It appears that in November of that year, Tutson had harvested said cotton, amounting to three bales, and stored it in a barn on said premises, separate and apart to itself, and delivered it to the plaintiff, Hankinson, as part payment for the rent and mortgage debt due him. Shortly thereafter, and before Hankinson had removed-said cotton, the defendant, Luther IT. Hankinso'n, had the same seized under a warrant, foreclosing a lien which Tutson had given him, of date 12th March, 1897, and recorded 8th of April, 1897, for the sum of $40. While the* cotton was still in the possession of -the plaintiff, in said barn, the defendant, Luther Hankinson, sent his wagon, with his agent or servant, and had the barn broken open, the cotton carried away, and ginned and marketed, in Augusta, Ga., and with the proceeds he paid the amount of his said lien and the costs. The overplus he turned over to Tutson, the tenant of plaintiff. At the same time the cotton was levied upon and seized, the constable making the levy, under the same process, levied upon the cotton, corn, potatoes and cane remaining in the field, and forbade Tutson from gathering the same. No effort was made on the part of the defendant, nor of the constable who levied upon the same, to gather said crop or any part thereof, and the same was destroyed in the field as a result.</p> <p>“The defendant, while practically conceding these facts, insists that he is not liable, for the reason that the plaintiff has estopped himself by conduct from asserting his alleged claim of damages, under the following facts: In the spring of the year 1897, the firm of Nixon & Danforth, of Augusta, advanced to Tutson certain supplies, on the agreement of the plaintiff, that Tutson would pay them out of the first cotton that was made in the premises. In accordance with this agreement, Tutson shipped eight bales of cotton, grown on the place, and covered by the plaintiff’s lien, to said Nixon & Danforth, with the knowledge and consent of plaintiff. This cotton was sold by Nixon & Danforth, and after satisfying their claim, there was a balance, which was credited on the plaintiff’s mortgage. The mule sold by Hankinson had also been returned, and a credit of $85 allowed Tutson, that being the original price agreed upon. After these credits, there was still a balance due Hankinson of $131. As already noted, the defendant’s contention is the proceeds of this cotton should have been applied to this debt, and that the plaintiff, having consented for it to be applied to the debt of Nixon & Danforth, is now estopped from claiming damages from this defendant, by reason of the seizure of the three bales of cotton, or by reason of the levy of the •crops in the field, that were not gathered and were wasted. I fail to see where the principle of estoppel should be invoked. Hankinson simply released his lien on a part of his security, knowing possibly that he was amply secured; why, then, should this act on his part make his lien on that property which had not been released, junior in rank to the lien of the defendant? There was no privity between the plain■tiff and the defendant, no obligation on the plaintiff to aid the defendant, whose lien was junior to that of the plaintiff. Suppose, on the other hand, the plaintiff had failed to agree to- release his lien on said cotton, but had sold it and applied enough of the proceeds to the payment of his debt, and turned the overplus over to Tutson, and Tutson had paid it on the account of Nixon & Danforth, would it be contended that defendant could call upon plaintiff, to reimburse him the amount so paid ? I think not.</p> <p>“It is, therefore, ordered, that the plea of estoppel be overruled.</p> <p>“The next question, then, is, to what extent has the plaintiff been damaged by the acts of -the defendant? Certainly to the value of three bales of cotton illegally appropriated by the defendant, which he sold at a net profit of $68.32, as shown by statement of sales; and to the value of the crop in the field to the extent that hi’s lien of the same has been impaired or destroyed. The evidence establishes the fact that the crop destroyed in the field was worth at least $75.</p> <p>“I conclude, therefore, as propositions of law, that the plaintiff’s mortgage and his landlord’s lien is superior to the lien of the defendant. That the mortgage was a lien on the crop grown on the premises that year, and was sufficient to pledge the same as a security to pay the debt of the plaintiff. That the plaintiff has been damaged to the extent of the debt remaining unpaid, to wit: $129.57. A statement of which is as follows: Principal on note and mortgage, $266.06; interest from 10 February, 1897, to 2 March, 1898, $22.53 — $288.59. Credits — By mule returned, $85.00; by proceeds of cotton, $74.02 — $159.02. Amount due March 2, 1898, $129.57.</p> <p>“It is, therefore, adjudged, that the plaintiff have judgment against the defendant for the sum of $129.57.”</p> <p>From this decree the defendant appeals.</p> <p>cite: Agricultural lien need only be indexed and filed: Rev. Stat., 2516, 818, 2514, 2463. No such delivery of cotton to plaintiff as would amount to a transfer of title: Story on Sales, secs. 296'b, 298a, 298b. Defendant not liable for crops zvhich he never received: 53 S. C., 137; 45 S. C., 642.</p> <p>cite: This is a law case, and findings by Judge are final: 41 S. C., 363; 42 S. C., 138. Landlord has preferred lien to all others: 19 Stat., 146; 36 S. C., 274, 497; 18 S. C., 179. After plaintiff had taken the cotton under his mortgage, there zvas no title left in tenant for defendant to acquire by seizure under his lien: 10 S. C., 452; 14 S. 'C., 112; 18 S. 'C., 157; 20 S. E. R., 759; 26 S. C., no, 331; 28 S. C., 101. Can commissioner of deeds of Georgia probate South Carolina lien? 22 S. €., 332; 21 S. C., 268; 33 S. C., 436; 39 S. C., 84. Senior mortgagee is not liable to junior mortgagee for waste of goods by mortgagor: 37 S. C., 568. As to damages for impairment of value of lien: 45 S. C., 648; 53 S. C., 137.</p>

<p>Proceeding in the original jurisdiction of this Court by the Carolina Grocery Co. against Barnwell R. Burnet, County Treasurer of Charleston County, for mandamus requiring defendant to pay county warrant held by plaintiff.</p>

Before Benet, J., Greenwood, November, 1900. Claim and delivery by D. H. Rykard against M. S. Davenport. The following evidence was Introduced by plaintiff: “Plaintiff D. H. Rykard, sworn, says: That I live in Greenwood County, at Salak. I know defendant, he lives in Greenwood, S. C. I came to Greenwood Saturday, September 22d, about 8 o’clock A. M., and thought probably I’d spend the day and night, perhaps part of day Sunday.

<p>' T'he same attorneys represented the plaintiff and defendants herein respectively as in the preceding case.</p>

Before Gage, J., Spartanburg, January, 1900. Action for accounting by T. R. Trimmier, administrator de bonis non, with the will annexed of F. M. Trimmier, against Belle Darden, administratrix de bonis non, of M. B. Trimmier. The following is the Circuit -decree: “This is a suit for an accounting. The cause comes before me on exceptions, by both sides, to the master’s report.

<p>Before Gary, J., Florence.</p> <p>Indictment by city of Florence against W. H. Berry and R. J. Rollins, in separate cases, for violating city ordinances. From affirmance in Circuit Court of judgment against defendants in mayor’s court, defendants appeal on the following exceptions:</p> <p>“I. Because the Circuit Judge erred in holding that the mayor had jurisdiction to try defendant, although it appeared upon the face of the proceedings that the prosecution against defendant was not based upon an oath or affidavit, as required by law.</p> <p>“II. Because the Circuit Judge erred in holding that while the city clerk was without authority to administer an oath, and that although the prosecution in this case was based upon a statement purporting to have been sworn to before said clerk, yet that by appearing, the defendant waived the jurisdictional defect, and that the same was cured by verdict or sentence.</p> <p>“III. Because the Circuit Judge erred in holding that defendant, having voluntarily appeared before the mayor and having gone to trial without making objection to the warrant or the affirmation on which it was based, was then in the position after verdict as though he had voluntarily submitted himself to the jurisdiction of the Court, and that in such case it would not be necessary for suc'h clerk to be authorized to take the affirmation.</p> <p>“IV. Because in the case of the city of Florence against W. H. Berry, there being no proof as to the sale of whiskey to James N. Purvis, his Honor erred in not holding that there was no venue proven as to the sale of whiskey to J. S. Dale, the sale to J. S. Dale being the only count in the warrant upon which there was any proof as to the sale of whiskey.</p> <p>“V. Because in the case of the city of Florence against W. H. Berry, while the defendant was charged with selling to J. S. Dale on the 15th day of July, 1900, one-half pint of rye whiskey of the value of twenty-five cents, the proof was that the defendant sold to Dale two drinks of whiskey for fifteen cents, and 'his Honor erred in not holding that there was a total variance between the charge and proof, thereby placing the defendant in the position to be charged with one offense and convicted by proof of a different offense, and thereby placing defendant in a position to be indicted for the same offense as proven in which indictment he could not plead former conviction.</p> <p>“VI. Because in the case of the city of Florence against R. J. Rollins, while the defendant was charged with selling to Zehee one half pint of corn whiskey on February 6th, 1900, and one-half pint of rye whiskey on February nth, 1900, the proof was that the defendant sold to Zehee one-half pint of rye whiskey on February 6th, 1900, and one-'half pint of corn whiskey on February nth, 1900, thereby placing the defendant in the position to be charged with one offense and convicted by proof of a different offense, and thereby placing defendant in a position to be indicted for the same offense as proven in which indictment he could not plead former conviction.”</p> <p>cite: City clerk having no authority to administer oaths, cannot swear affiant to warrant:'Crim. Code, 19, 56; 9 S. C., 309. Plea to the jurisdiction may be raised at any time: 25 S. C., 285; 28 S. C., Z*3> 373; 3° S. C., 391; 39 S. C., 369. If convicted on proof here and again indicted for same offense, defendant could not plead former jeopardy: 58 S. C., 368. Defendant cannot be convicted on proof of a separate and distinct fact from that charged in indictment: 54 S. C., 196, 286.</p> <p>cites: Defendant cannot raise question of want of jurisdiction here after having gone into trial below: 50 S. C., 520; 24 S. C., 193; Crim. Code, 56. City clerk had power to administer the oath: 22 Stat., 820. Venue need not be affirmatively proved: 19 S. C., 96; 6 S. C., 383-</p>

Before Klugh, J., Greenwood, April, 1901. Rule to show cause against C. A. C. Waller and W. E. Durst in Reynolds et al. v. Reynolds et al. From Circuit order making rule absolute respondents appeal. cite: In construing deeds, Court must ascertain intention of testator: 35 S. C., 326; 22 S. C., 233; 42 S. C., 346. Rule in Shelley’s case does not apply: 8 Rich. Eq., 9; 17 S. 'C., 550; 39 S. C., 144; 2 Rich. Eq., 49; 42 S. C., 346.

Before Buchanan, J., Charleston, January, 1901. Action for damages by Annie B. Carroll against Charles-, ton and Seashore Railroad Co. The following affidavits were submitted on the motion for change of venue: “Personally appeared before me, Annie B. Carroll, and being duly sworn, says that she is the plaintiff in the above named action; and “First.

Petition for mandamus in the original jurisdiction of this Court by J. Frost Walker, as clerk of the court of the county of Richland, to require J. P. Derham, comptroller general, to draw his warrant in 'his favor for pensions for citizens of Richland County entitled thereto, on basis of $150,000 appropriated for the whole State. cites: History of pension legislation: Acts 1887, pp. 826, 448; acts 1888, p. 26; acts 1894, pp. 714, 825; acts 1896, p. 185; acts 1897,-p. 495 1…

Before Gage, J., Florence, July, 1900. Foreclosure 'by John Kuker against J. Howard Jarrott, John B. Jarrott, Helen A. Jarrott, Mary M. Jarrott, Pierce B. Jarrott, Theodore E. Jarrott, Chas. E. Jarrott, and J. F. St-ackley. From ‘Circuit decree, all defendants appeal except the two latter. cite: A past due consideration or precedent debt will not support a plea of bona tide purchaser without notice: Casy v. White, 52 N. Y. No citations.

Before Aldrich, J., Greenville, November, 1900. Action in partition by S. Davis Sudduth, Mary C. Cunningham and Cora B. Terry against Louisa Sumeral.

Before Hudson, special J., Cherokee, November, 1900. Action for trespass by Elizabeth Perry against Samuel Jeffries. Held: and charged the jury that she could recover only so much damages as her interest would entitle her to.’ “27.

Before Gage, J., March, 1900. Action on account by Co-operative Publishing Co. against W. E. Walker and J. P. Walker. From judgment for defendants on counter-claim, plaintiff appeals. cites: Code, 170, sub. 1, 171; 15 S. C., 458; 10 S. C., 122, 185. cites: Code, 170; 2 Abbott Forms, 848; Pom. Rem., sec. 748; 29 S. C., 130.

Before Aldrich, J., Orangeburg, March, 1901. Action on insurance policy by James H. Pearson against the Mutual Insurance Co. of Greenville, S. C., and Mary A. Pearson. The order of the Circuit Court in passing on defendant’s demurrer is as follows: “This action comes before this Court upon a motion to dismiss the complaint herein upon the ground that said complaint ‘fails to allege facts sufficient to constitute a cause of action, in that:’ “ ‘1.

Before Townsend, J., Richland, fall term, 1900. Action for damages to land -by fire by Rebecca A. Dent, W. K. Dent, H. S. Dent, J. M. Dent and Jno.

Before Townsend, J., Kershaw, September, 1900. Action- on benefit certificate by Kate Drakeford, by guardian ad litem, against Supreme Conclave Knights of Damon. Prom judgment for plaintiff, defendant appeals. ci-te: The jury must follow the instructions of the trial Judge as to the law: 16 S. C., 14; 19 S. C., 489. Oral argument.

Before Benet, J., Newberry, November, 1900. Action for personal injuries by Monroe Cooper against Georgia, Carolina and Northern Ry. Co. From- judgment for plaintiff, defendant appeals. cites: There being no proof of negligence on part of defendant in stopping train, nonsuit should have been granted: 33 S. C., 201; 9 S. E. R., 129; 2 A. & E. R. Ca., 293; 56 S. C., 91.

<p>Before BenET, J., Abbeville, February, 1901.</p> <p>Action for damages by Abbeville Electric Eight and Power !Co. against Western Electrical Supply Co. Upon motion to set aside the service of summons, the following showing was made:</p> <p>The defendant offered the following affidavit in support of its motion, viz:</p> <p>“Now comes the Western Electrical Supply Company, defendant herein, and states that George E. Schminke, the person upon whom service of summons was had herein, at the time of said service was not an officer of this defendant, nor a director thereof; that he was simply and solely the traveling salesman for this defendant; that.his duties and powers with this defendant were simply and solely to take orders for the sale of merchandise, subject to the approval of this defendant, in such States as he might be directed by this defendant from time to time. That he had no other powers or duties than these. That he was a resident of the city of New Orleans, State of Louisiana. That this defendant has no office or place of business in the State of South Carolina. That said George F. Schminke was especially sent to the town of Abbeville at the time of said service to examine into the running of the machinery in controversy and report the facts to defendant, and that he was so sent at the request of plaintiff. That the contract 'between plaintiff and defendant out of which tire alleged cause of action arose, if plaintiff has any cause of action, was not made in the State of South Carolina. Western Electrical Supply Co., per R. Y. Scudder, Gen’l M'gr.</p> <p>“State of Missouri, city of St. Louis. R. V. Scudder, being duly sworn, on his oath, states that he is and was at the time hereinbefore mentioned general manager of the Western Electrical Supply Co., defendant herein, and that the statements contained in the foregoing are true. R. V. Scudder. Subscribed and sworn to before me, this 27th day of November, 1900, in the city of St. Louis, Mo. J. B. Carroll, Notary Public. (Official seal.)”</p> <p>The plaintiff offered the following affidavit and card and letters in rebuttal, viz:</p> <p>“Personally 'appeared before me, W. N. Thompson, who being duly sworn, says : That he is the president of the above named plaintiff. That the letters hereto attached were received from the defendant in due course of mail, and letters, copies of which are hereto attached, sent defendant. That the card hereto attached was handed deponent by Mr. George P. Scbminke when he came to Abbeville, representing 'the defendant in negotiations looking to the settlement of the differences between the plaintiff and the defendant, which resulted in the suit now pending in this Court. W. N. Thompson. Sworn and subscribed before me, this February 2 rst, 1901. J. L. Perrin, C. C. C. P.”</p> <p>The following is the card referred to in the above affidavit : “George F. Scbminke, Western Electrical Supply Company, Electrical Supplies, St. Louis.”</p> <p>The following are the letters and copies of letters in their regular order, referred 'to and attached to the affidavit of W. N. Thompson, viz:</p> <p>“St. Eouis, October 23d, 1900. Abbeville Electric Eight and Power Co., Abbeville, S. C. Gentlemen: Referring to your favor of October 6th, Which has been held for the writer’s return 'to the city, we notice fully what you have to say; and as there is such a marked difference between your report-and the factory’s report, and as we are put in the position of middleman, as sort of a bumper between you and the factory, you can readily appreciate our position, and we will defer writing you at any great length, excepting to say that if your position is correct, you shall certainly be treated right. We have written our Mr. George E. Schminke, who will be in Abbeville now in about ten days, and we will get a full report from him, and we have also written, the factory fully regarding the matter and enclosed them a copy of your letter, and we are satisfied 'that it will be news to^ them, and we will advise you as soon as we 'hear from them., and we have requested them to write us by return mail fully regarding the matter, and we assure you that i:f your position is correct in this matter and the machine is defective, that we will replace it with a machine that will perform in accordance with ffie contract. We trust you will bear with us until we can get a full and definite report from the factory and a reply to our letter to them to-day enclosing a copy of your letter under answer. (Signed by defendant.) ”</p> <p>The following is the letter, of plaintiff in reply to the above:</p> <p>“Abbeville, S. C., October 27th, 1900. Gentlemen: In reply to your favor of the 23d inst., we note what you say, and would say that we are taking steps to buy a new machine at once, for we cannot afford to be delayed any longer in this matter. Now, in consideration of what you say in your last about sending your Mr. Schminke to Abbeville by the 3d proximo, we will defer buying the machine above referred to until the 5th proximo, provided you write us at once that your authorized representative will be in Abbeville by the above date with power to act, so that we may be assured of a speedy, sttlement. (Signed by the plaintiff.) ”</p> <p>The letter in reply to letter of plaintiff follows:</p> <p>“St. Louis, October 29, 1900. Abbeville El. L't. and Power Co., Abbeville, S. C. Gentlemen: Your favor of the 27th inst. to hand, and this is simply to acknowledge receipt of your letter and to let you know that we are following the matter up. Before answering your letter we are waiting to have a reply to a telegram we have sent to our Mr. Geo. E. Schminke to-day, asking him to wire us when he would arrive in Abbeville, and also asking him to advise us by wire where a letter would reach hism, as we want to write him fully regarding the situation at Abbeville, and upon receipt of his reply advising us when he will 'be able to reach Abbe-ville we will answer your letter fully. We have no doubt, however, 'that he will be able to get into Abbeville not later than November 5th, and we think it will be very foolish of you to replace the Warren machine with a machine of another make, if you intend trying to operate 'the other machine under the same -conditions as 'the Warren, and we are very -sure that if you will improve the conditions under which you are trying to operate this Warren machine and have your Warren machine fixed up, that you will have no trouble with it. We are very sure that under the conditions you are trying to operate, you cannot get any machine to give you satisfaction, and we doubt if any machine would have stood the racket as long as the Warren machine has. Mr. Schminke is a very competent man and capable of passing on a thing of this kind, and can advise you in a very few moments whether or not the conditions under which you are operating are unfavorable, and we trust that you will defer action on this matter until you give us an opportunity to look over the ground for ourselves, which we will do when our Mr. Schminke arrives in Abbeville. We will defer writing further until hearing from Mr. Schminke and will notify you as soon as we have his telegram. (Signed 'by 'the defendant.) ”</p> <p>T'he next letter is dated St. Eouis, October 30, 1900, addressed to the plaintiff, and is as follows:</p> <p>“Gentlemen: Referring to your favor of October 4th, in which you enclosed your bill of October 1st against us, amounting to $32.60, we return you herewith the invoice, and will thank you to kindly hold this with the balance of the papers until final adjustment is made on the account in accordance with the agreement; and when final adjustment is made of the account, if you are entitled to credit for these items, you shall .certainly receive them, but we would prefer not dividing the thing up and making an entry now and another entry at the final adjustment, but will simply make one bite of the cherry. Please attach this letter and your bill to the other papers pertaining to this settlement, and keep all of the papers together so that we can have them at the proper time. This letter was in a basket on the writer’s desk during his absence in the East, and in cleaning up the basket to-day he found the letter, and he thinks this will be the best way to dispose of the matter temporarily. We have not yet received a telegram from our Mr. Sehminke in reply to- ours of yesterday asking him when he would reach Abbeville, but we have received a letter which indicates that he will be in Asheville, N. C., to-morrow, at which time we 'expect to receive an answer to our telegram, and we will then notify you just when you can expect Mr. Sehminke in Abbeville. (Signed by the defendant.) Postscript: We are sending Mr. Sehminke some letters in your care, which we will thank you to kindly deliver to him when he reaches Abbeville.” The next letter i:s dated St. Eouis, November 1, 1900, addressed to the plaintiff, and is as follows :</p> <p>“Gentlemen: Our Mr. G. E. Sehminke will be in Abbeville on the 5th inst., and we are writing him fully to-day regarding the situation there. ( Signed by the defendant.) ”</p> <p>Erom order granting the motion, the plaintiff appeals.</p> <p>cites: What is an agent? i Ency., ist ed., 333, 347. Where did cause of action arise? 39 S. C., 484. How can service of the summons be made here? Code, 423, 155; 23 Stat., 42; 48 S. C., 7'i5 32 S. €., 319; 53 S. C., 106; 22 Ency., 129, 136; 99 N. Y„ 679.</p> <p>cites: The agency of Schminke is a matter of fact, and this Court cannot review the finding of fact thereon by Circuit Judge: 48 S. C., 73. State Court can only acquire jurisdiction of non-resident by (1) voluntary appearance, or (2) personal service within limits of the State: 39 S. C., 496; 41 S. C., 22; 40 S. C., 520; 44 S. C., 211; 48 S. C., 493; 50 S. C., 113; 95 U. S., 714. Domicile of a corporation is where it is created, and service elsewhere only effects its property there located: 106 U. S., 224; 59 U. S., 452; 8 Wall., 181. Defendant has not become domesticated, as required in Rev. Stat., 14.66, for purposes of jurisdiction here: 49 U. S., 452. Service on Schminke cannot bind the defendant: 39 S. C., 484; 95 U. S., 714; 13 Ency., 893; 41 S. C., 27; 19 Ency. P. & P., 665, 676; 2 McArthur, 146; 16 P'hila., 112; 141 Pa., 462; 106 U. S., 350; 54 Eed. R., 420; 11 Fed. R., 529; 113 U. S., 727; 47 Fed. R., 593; 22 Am. St. R., 433; 9 Pa. Sup. St. Rep., 220.</p>

Before Benet, J., Newberry, October, 1900. Complaint to foreclose mechanic’s lien by Wilson and Mathews against J. Ed. Monts. From order overruling demurrer to complaint, defendant appeals. cite: Complaint must stand by its own allegations: 59 S. C., 258. Failure to allege that action was commenced within six months from ceasing to furnish material is a defect fatal on demurrer: Rev. Stat., 2471; Code, ill, 112; 13 Ency., 1 ed., 703, 688; 13 Ency.

Before Ardrich, J., Greenville, November, 1900. Petition in probate court for dower by Temperance Davenport against Robert L. Davenport. From order dismissing appeal from probate court by defendant, he appeals. cites: Testimony taken by stenographer in probate court is no part of record to be certified up: Code, 60, 274; 4 S. C., 37; 33 S. C., 442; 19 S. C., 286.

Before Buchanan, J., Newberry, February, 1900. Action for balance due on purchase money of land by Leila H. Súber against J. Berry Richards, administrator of Jno. -C. Richards. From judgment for plaintiff, defendant appeal-s. cite: No such performance as would take the case out of the statute: 27 S. C., 621, 363; 21 S. C., 492. Letter is insufficient to take it out of statute: 27 S. C:, 363, 621; 33 S. C., 382; 36 S. C., 549.

<p>Before Aldrich, J., Oconee.</p> <p>Action for damages for personal injury by reason of alleged negligence of defendant by W. L. Burns against Southern Railway 'Co. From judgment of nonsuit plaintiff appeals.</p> <p>cites: Plaintiff had the right to pass over defendant’s train if it blocked his passage: 49 S. C., 12; 11 S. E. R., 455. Public having been invited to travel this way to defendant’s depot, it was traveled place: 59 S. C., 429-</p> <p>cites : This Court will not consider reasons given by Circuit Judge in passing on motion for nonsuit: 58 S. C., 70. Depot yard is not a “traveled” place: 34 S. C., 292.</p>

Before Hudson, J., special Judge, Anderson, December, 1900. Action for partition by Amanda Roberson against Mary McCauley, William Edwards and John C. Osborne. R. Y. H. Nance, Esq., special referee, filed the following report, omitting formal parts: “IV.

Before Townsend, J., Orangeburg, August, 1899. Action for accounting by Minerva C. Phillips et al. against Benjamin A. Yon, guardian et al. From Circuit decree the plaintiffs and the defendant children of Paul D. Jeffcoat appeal. cite: As to the rule applicable to cases on appeal where special master and Circuit Judge differ as to findings of fact: 44 S. C., 437; 26 S. 0., 250; 42 S. C., 86; 26 S. C., 446; 6 S. C., 140; 12 S. C., 616, and cases cited in reporter’s notes; 55…

Before Watts, J., Dorchester, May term, 1900. Action on insurance policy by O. R. Riggs against the Home Mutual Fire Protection Association of South Carolina, on the following complaint: “The plaintiff above named, complaining of -the defendant, above named, alleges: “I. That the defendant at the times hereinafter mentioned was, and now is, a corporation duly created under and by virtue of the laws of the State of South Carolina, and as such can sue and be sued, plead and be…

<p>Before Watts, J., Orangeburg, May, 1900.</p> <p>Action, on insurance policy by B. D. Ulmer against the Phoenix Fire Insurance Co., of Brooklyn, N. Y., A. F. Horger, Alice E. Inabinet and W. S. Kemmerlin. From judgment for plaintiff, he appeals.</p> <p>cite: Amount of damages is a question for jury: Hale of Dam., 227; 18 S. C., 115; 29 S. C., 381. Plaintiff had an insurable interest in building and material: 19 la., 364; 35 U. R. A., 667, and notes; 25 N. Y., 272; 97 N. C., 350; 2 Jno. J., 350; 81 Ala., 320; 43 U. R. A., 667; 34 App. Div., 128; 10D. R. A., 684; 101 N. Y., 277; 149 Mass., 158; 135 Mass., 506; 19 N. Y., 401; 1 Hall, 84; 45 N. Y., 606. Court should consider verbal requests to charge made immediately at close of charge: ix Ency. P. & P., 241-2; 24 S. C., I4S J 27 S. C., 271; 38 S. C., 33.</p> <p>cite: Policy of ñre instirance as between the parties is purely a personal contract: 2 Am. St. R., 219. Contractor had insurable interest in building to extent of his interest: 13 Ency., 2 ed., 164; 4 L. R. A., 160. Policy is “open” policy: 13 Ency., 2 ed., 102-3, 323-Mrs. Inabinet not entitled to subrogation because she is ultimately liable for the debt: 33 S. C., 324.</p>

Before Benrt, J., Greenwood, November term, 1900. Action for damages foe personal injuries by Josiah W. Bodie against Charleston and Western Carolina Railway Co. From judgment for plaintiff, defendant appeals. cites: As to assumption of risks by plaintiff: 5 Am. St. R., 245; 55 la., 527. As to proximate cause: 52 S. C., 336; 57 S. C., 433; 54 S. C., 498; 1 Strob., 525.

<p>Before Aedrich, J., Anderson, October term, 1900.</p> <p>Action for damages for personal injuries from' falling through a bridge, by John Hagen, by guardian ad litem, against Anderson County. From refusal of motion of defendant to grant a new trial, defendant appeals.</p> <p>cites': In absence of statutory liability, there is none against county: 34 S. C., 145; 27 S. C., 419; 42 S. C., 19. If plaintiff brought about the injury by his own act or negligently contributed thereto, he cannot recover: 40 S. C., 344; 57 S. C., 294; 58 S. C., 417529 S. C., 140. There being evidence that plaintiff negligently contributed to the injury, there was no evidence to support the verdict and new trial should have been granted: 54 S. C., 141, 605.</p> <p>cite: Appellant can raise no other grounds in exceptions than those raised in motion: 41 S. C., 454. What exceptions this Court will not consider: 11 S. C., 195, 589; 23 S. C., 231; 53 S. C., 215; 57 S. C., 433. As to construction of stat. {Rev. Stat., 1169), in regard to plaintiff’s negligence: 55 S. C., 422; 38 S. E. R., 2; 58 S. C., 222.</p>

<p>Before Townsend, J., Kershaw, September, 1900.</p> <p>Action for damages for personal injuries by Starling W. Branham against The Camden Cotton Mill. From judgment sustaining demurrer of defendant, plaintiff appeals.</p> <p>cites: Whether defendant failed to furnish suitable machinery, or was negligent in not stopping the engine, are questions for the jury: 15 S. C., 449; 18 S. C., 270; 19 S. C., 20; 47 S. C., 382; 51 S. C., 296.</p> <p>The latter cite: Failure to furnish safe machinery was not a breach of duty of defendant to plaintiff: 15 S. C., 449. No negligence alleged in mending machinery in motion: 44 S. C., 442. The complaint shows contributory negligence on part of plaintiff and shoidd have been dismissed: 58 S. C., 491; 55 S. 'C., 488; 166 N. Y., 522. No causal relation alleged between negligence of defendant and injury to plaintiff: 58 S. C., 491.</p>

Before Gagl, J., Bamberg, April term, 1900. Action for damages for negligently killing Lucius Hutto, by Carrie Hutto, administratrix, against South Bound R. R. Co. From judgment of nonsuit, plaintiff appeals. cite: 25 S. C., 61; 52 S. C., 323; 58 S. C., 70, 222. The former cites-: 33 S. C., 138; 34 S. C., 299; 59 S. €., 87, 433.

Before Buchanan, J., Dorchester, 1900. Action by Jane O. Way against the Union Central Life Insurance Co. and the executor and children of Joseph A. Way, to set aside assignment of insurance policy. From judgment dismissing the complaint, plaintiff appeals. cite: Was there constructive fraud involved in the assignment of the policy? Stewart on Hus. & W., 133; 53 S. C., 35; 3 Bail. Eq., 329; 1 Story Eq. Jur., p. 217, et seq.; 8 Ency., 1 ed., 644-5; 4 DeS., 684; 1 McC.

<p>Before Watts, J., Dorchester, May, 1900.</p> <p>Petition and summons by W. F. Cone against Mary J. Cone, for appointment of trustee. The master filed the following report:</p> <p>“This case was referred to me by an order of his Honor, Judge George W. Gage, 'bearing date October 19, 1899, which order is as follows: ‘On hearing the petition of the said W. F. Cone, petitioner, and the answer thereto of Mary J. Cone, and after hearing Messrs. Izlar Bros. & Reed, attorneys for the petitioner, and Messrs. Griffin & Padgett, attorneys for Mary J. Cone, it is ordered, that it be referred to R. S. Weeks, Esq., master for Dorchester County aforesaid, to take testimony upon issues raised by the said petition and answer, and to report the same with all 'convenient speed. It is further ordered, that said master do also take testimony as to a fit and proper person to be appointed trustee in the place of J. H. Cone, deceased trustee, and to recommend in his report the name of a fit and proper person to be appointed such trustee; finally ordered, said master have leave to report any special matter brought to his attention 'by the counsel engaged in the case.’</p> <p>“In pursuance of said order, and after due notice, I held a reference and took such testimony as was offered 'by the counsel for the petitioner and the respondent, and herewith submit the same.</p> <p>“As to the fit and proper person for trustee, John D. Bivens was named by petitioner as such. The respondent names M. W. Cone, a son, or J. R. Tumbleston, a son-in-law. These last two 'being kin to the petitioner and respondent, namely, son and son-in-law, I would recommend the appointment of the said John D. Bivens. No special matter was brought in by counsel. All of which is respectfully submitted.”</p> <p>The following is the Circuit decree:</p> <p>“On hearing the report of R. S. Weeks, master of Dorchester County, bearing date May 9, 1900, in which he recommends the appointment of John D. Bivens as trustee in the place and stead of J. H. Cone, deceased trustee, and ■on motion of Izlar Bros. & Reed, attorneys for the petitioner, it is ordered, that the said report of the master be and the same is hereby confirmed and made the judgment of the Court. It is further ordered and adjudged, that the said John D. Bivens be and he hereby is substituted as trustee under the trust deed executed by the said W. F. Cone to the said J. H. Cone as trustee, and bearing date the 20th day of October, A. D. 1873, in '^e place and in stead of the said J. H. Cone, deceased trustee, with all the powers, duties, rights, privileges and liabilities of the said J. H. Cone, deceased trustee, under the original trust deed, a copy of which is attached to the petition of the petitioner herein as a part thereof. That the said John D. Bivens so appointed and substituted shall signify his acceptance of said trust in writing upon the margin of the record book in the office of the clerk of this Court in which said deed is recorded, in the presence of the said clerk; and that thereupon the said John D. Bivens shall be considered to all intents and purposes as vested completely and absolutely with all the estate, right, title, intent, powers, privileges and authority, and as liable to all the conditions, terms and restrictions as original trustee under said trust deed was vested with or liable to, in whose stead now and place he, the said John D. Bivens, is appointed and substituted. It is further ordered, that the said John D. Bivens, before entering upon the duties of his office, do enter into a bond to be approved by the master of Dorchester County in the sum of five hundred dollars, for the faithful performance of his trust in collecting and disbursing the rents from the trust real estate; and that in case of application for sale and reinvestment of any portion of the real property of said trust estate, that the said trustee, before making such sale, shall enter into bond to be approved by said master in the sum of five thousand dollars for the faithful performance of his trust in regard to the’proceeds of such sale.”</p> <p>From this decree the defendant appeals on following exceptions :</p> <p>“i. Because it is respectfully submitted that the Court of Common Pleas for Dorchester County did not have jurisdiction in personam, or over the person of the respondent, appellant, Mary Jane Cone, it being proven without contradiction that she was a resident of Colleton County, and raising such question of jurisdiction in the pleading herein.</p> <p>“2. Because the Court of Common Pleas for Dorchester County was without jurisdiction in rem, since the real property set out in exhibit to petition having been proven without contradiction to be in Colleton County, and exception to such jurisdiction being duly taken by respondent, appellant, in the pleadings herein.</p> <p>“3. That the domicile of the wife being alleged and proven without contradiction to be separate and distinct from the husband, they living apart, as alleged in petition, the presumption of the common law that the ‘domicile of the husband is that of the wife,’ does not apply, and her actual domicile is a matter of proof, and has been established as referred to in exception one.</p> <p>“4. That it was error in holding and deciding that there was a vacancy in the office of trustee created by the deed referred to in the petition and filed with the s'ame, it being • proven that the deceased trustee died leaving heirs at law, who are the trustees.,</p> <p>“5. That petitioner herein was, and is/ estopped from taking any plan to substitute a new trustee without first carrying out the provisions fixed in the trust deed for the appointment of a new trustee in the place of J. H. Cone, and it was error in not so holding.”</p> <p>cite: Court of Dorchester County had no jurisdiction of the person of the defendant: Code, 146; 11 S. C., Í23; 16 S. Ci, 276; 22 S. C., 276; 28 S. C, 313.</p> <p>cite: Law presumes domicile of husband'to be that' of wife: Jacobs on Dow.', secs. 209, 215. Where trustee dies, court of equity will appoint another: 27 Ency., 16; 10 Rich. Eq., 362; Perry on Trusts, secs. 280, 282; Rev. Stat., 2097; 10 S. C., 548; 24 S. C., 455. And may be done by petition: Bail. Eq., 491; 35 S. C., 428.</p>

Before Buchanan, J., Orangeburg, October, 1900. Agreed case without action by J. S. Felder, E. M. Vose and Alma Felder, in re Caroline Felder and Jacob S. Felder, as executors of Paul S. Felder, deceased, and in their own right, against Elizabeth M. Vose et al., and The Bank of Charleston, N. B. A., for construction of written agreement.

Before Benet, J., Greenwood, November, 1900. Action by Frederick Hawkins and Mamie Hawkins against W. A. Collins and John Collins. From judgment for plaintiffs against defendant, W. A. Collins, he appeals. cite: To avoid a release for fraud, party must return what he has received upon it: 56 S. C., 515; 1 Strob., 396; 7 Ency. PI. & Pr., 368 and 370, and notes. Verdict changes title to property: 1 Speer, 182; Rice, 62; 2 Mills Con. R., 228.

Before Townsend, J., Hampton, November, 1899. Action by W. H. Lawton against South Bound Railroad Co. on the following complaint, omitting the formal parts: “II. That the plaintiff herein, at the times hereinafter mentioned, was and is now a citizen and resident of Hampton County, S. C., and is the owner of a large tract of land situate, lying and being in the said county and State. “HI.

Before Aldrich, J., Anderson, October, 1900. Action for damages for killing Susan V. Jones, by her administrator, J. E. Jones, against Charleston and Western Carolina Railway Co. From judgment for plaintiff, defendant appeals. cite: As to contributory negligence: 56 S. C., 95; 58 S. C., 228; 59 S. C., 311; 51 S. C., 237; 55 S. C., 192; Beach on Con.

<p>Before Gage, J., Chesterfield, February, 1901.</p> <p>Action by Emily Huntley against Sebra Walsh, to cancel deed. From order dismissing complaint, plaintiff appeals.</p> <p>The former cites : As to undue influence: 24 Ency., 453, 455, 456. As to weak mind: Ibid., 457, 458. As to confidential relations: Ibid., 461, 477, 462, 463, 464; 1 Story Eq. Jur., secs. 221, 238; 24 S. C., &; 4 DeS., 697; 3 DeS., 273; 19 S. E. R., 206. As to sufficiency of' consideration: 21 S. C., 270; 9 S. E. R., 415; 19 S. C., 606; 35 S. E. R., 809. As to delivery: 9 Ency., 150, 153, 154, 155; 4 DeS., 617; 24 S. C., 596; 3 Rich. Eq., 435; 3 Strob. Eq., m; 2 Hill Ch., 412; 9 S. C., 249; 11 S. C., 69; 23 S. C., 91; 16 S. C., 632.</p> <p>cite: Presumptions are in favor of regularity of deeds: 44 S. C., 382; 10 S. C., 445; 10 Rich. Eq., 217; 16 S. C., 344; 5 Strob., 192. As to the contracts of weak-minded persons: 24 S. C., 12; 57 S. C., 427. As to inadequacy of consideration: 21 S. C., 271; 43 S. C., 79. Delivery of deed is a question of fact, and finding of fact thereon is legal issue which cannot be reviewed in this Court: 28 S. C., 530; 31 S. C-, 266; 36 S.. c., 559; 43 S. C., 266; 44 S. C., 370; 51 s. C., 568; 55 s. C., 372; 54 S. C., 406; 23 S. C., 89. As to delivery: 24 S. C-, 597; 9 Ency., 159.</p>

Before Townsend, J., Sumter, March term, 1900. Action in partition by brittle Dora Barrett by Penlope V. Freeman, her guardian ad litem, against Marion Moise, Henry D. Barrett et al. From judgment for defendants, plaintiff appeals. cites : As to service upon and obtaining jurisdiction of the minor: 17 S. C., 75; Code, 155, 159, 160; 17 S. C., 435; 23 S. C., 154, 187; 24 S. C., 373i 25 S. C., 275; 31 S. C., 576; 1 Black on Judgts., sec. 194; Code, 137. cite: Exceptions…

<p>1. Mortgage. — Deed and Lease under facts here, held not to constitute a mortgage. Requisites of proving deed to be a mortgage stated.</p> <p>2. Defenses — Titee—Rent.—A constable who has seized crops under rent lien attachment may set up title in landlord for whom he seized, in suit by third party against him for proceeds of crop, and under the deed and lease so introduced and facts, plaintiff not entitled to rent.</p>