Volume 63 — South Carolina Reports

Before Townsend, J., Richland, February, 1901. Action by C. Pickens Huffman against T. Bachman Huffman, Samuel J. Huffman and Jos. S. Huffman, as partners under firm name of T. B. Huffman & Bros. From Circuit decree, defendants appeal. cite: Is case one at law or in equity: 57 S. C., 289, 405; 55 S. C., 198; 54 S. C., 408; 58 S. C., 7.

<p>Before Townsend, J., March, 1901.</p> <p>Indictment against B. H. Holcomb for trespass. From order of Circuit Court affirming judgment of magistrate court against defendant, he appeals.</p>

Before Gage, J., Kershaw, May, 1901. Action by Allison A. McDowell against Wm. P. Russell, Elizabeth Young el al. From Circuit decree in favor of plaintiff, defendant appeals.

Before Townsend, J., Cherokee, September, 1901. Action by W. Sam. Lipscomb against Newton G. Little-john. From order referring issues, defendant excepts. cite: Issue of damages should be tried by jury: 17 S. C., 416; 24 S. C., 9; 42 S. C., 95; 61 S. C., 5; 52 S. C., 451. If title to land is involved it is error to refer it: 60 S. C., 559; 61 S. C., 1. The'question of nuisance is for jury: 17 S. C., 416; 42 S. €., 95; 24 S. C., 44; 10 Ency., 799; 1 High on Inj., 570.

Before Klugi-i, J., Greenville, August, 1901. Action by John Burns against Southern Railway. Held: that the complaint alleges that the plaintiff was ordered by the conductor and engineer to go into the cab and there.remain until they had finished eating, when buckets and dishes would be delivered to him, and while there waiting, the said material train was backed upon the bridge at a point about sixty feet from the ground and…

Before Klugh, J., April, 1900. Indictment against J. W. Napier, under the following act of 1898: “An act to prohibit emigrant agents from plying their vocation within this State without first obtaining a license therefor, and for other purposes. “Section i. Be it enacted by the General Assembly of the State of South Carolina, That from and after the approval of this act, no person shall carry on the business of an emigrant agent in this State without having first obtained a…

Petition for mandamus within the original jurisdiction of the Court as follows: “The petition of ‘The Protestant Episcopal Church of the Parish of St. Philip, in Charleston, in the State of South Carolina/ respectfully showeth: “I. That your petitioner, ‘The Protestant Episcopal Church of the Parish of St. Philip, in Charleston, in the State of South Carolina,’ is a body politic and corporate, by virtue of and under an act of the General Assembly of the said State of South…

<p>Before Gage, J., Florence, June, 1900.</p> <p>Action by W. J. Lockhart against R. C. Severance. From Circuit order enforcing judgment of Supreme Court, defendant appeals.</p>

Before Benet, J., Greenville, April, 1901. Action by P. D. Gilreath against Greenville County. Prom judgment for plaintiff, defendant appeals. cite: Rev. Stat., 2561; 22 Stat, 226; 59 S. C., no. cites: 59 S. C., no; 22 Stat., 226, 494, 739; art. III., sec. 34, sub-div. XII., Con.; 60 S.' C., 501; 28 S. E-.R., 15.

Before Benet, J., Laurens, August 13, 1901. Action by Eugene S. Hunter, Sami. M. Hunter et al. against Nannie W. Hunter, A. Y. Thompson et al. The following is the Circuit decree: “In pursuance of the order of the Supreme Court, all of the defendants, except Nannie W. Hunter, amended their answer so as to set up the claim that they were entitled to be subrogated to the rights of such creditors of S. M. Hunter as were paid out of the proceeds.

Before Gary, J., Richland, summer term, 1901. Action by Green B. Bush against Southern Railway Co. From judgment of nonsuit, plaintiff appeals. cite: Possession of an engine is prima facie proof of ownership: 19 Fney., 53; 1 Green. Ev., par. 34; Abbott’s Trial Ev., p. 623; 1 Smith’s Reading Cases, 473; 35 Maine, 150; 16 Am. Dec., 727; 46 Am. Dec., 323; 65 Am. Dec., 699; 4 Rich., 239.

<p>Before Aldrich, J., Pickens, November, 1900.</p> <p>Indictment by Easley Town- Council against William Pegg and Isabella Pegg. From order of Circuit Couit affirming judgment of conviction of William Pegg, he appeals.</p> <p>cite: As to interpretation of statutes: 49 S. C., 336.</p> <p>(oral argument).</p>

<p>Before Benet, J., Charleston, May, 1901.</p> <p>Action by Amelia J. Emanuel against Richard B. Ferris, Edward H. Sparkman and Henry S. Holmes, as executors of the last will and testament of James S. Gibbes, sr., deceased; Henry S. Holmes, as administrator of the goods, chattels and credits of James Gibbes Haile, deceased; Henry S. Holmes, as trustee, under the marriage settlement between James S. Gibbes, sr., George E. Gibbes, Amelia S. Gibbes and John Haile; W. Gibbes Whaley, as administrator of the goods, chattels and credits of Henry P. Gibbes, deceased; Screven Dozier and John Chesnut, as executors of the last will and testament of John Haile, deceased; Charles Hartridge Gibbes, Arthur B. M. Gibbes, H. Stuart Gibbes, Thomas M. Gibbes, Virginia P. Gibbes, James S. Wilson, J. Adger Smyth, Charles H. Simonton, the Farmers Loan and Trust Company, a corporation organized under the laws of and doing business in the State of New York, also doing business in the State of South Carolina, and Henry S. Holmes and Charles H. Simonton, as trustees for Mary Evans Gibbes. From order setting aside service of summons upon certain non-resident defendants, plaintiff appéals.</p> <p>cite: Service can be made on non-resident, where contract was made and breached in this State: Code, 156; 40 S. C., 154. Trustee is amenable to Court here and should be made to account here: Bail. Eq., 360; McM. Eq., 190; 1 Strob. Eq., 416; 17 S. C., 312; 31 S. C., 13; Rev. Stats., 2088-2099; 3 Brev., *47; 1 S. C., 180; 2 McC. Ch., *265; 1 Rich. Eq. Ca., 3; Perry on Trusts, sec. 282. Order allowing trustee to take away fund without giving bond here, is error: 1 Rich. Eq., 26; 9 Rich. Eq., 423; Bail. Eq., 395, 489'; 2 Strob. Eq., 89; 20 S. C., 237; 18 S. C., 590; Cheves Eq., 43. The trusts declared in this will gives the. Court of Mquity jurisdiction to construe the will and administer the estate here: 25 S. C., 1; 39 S. C., 24; 41 S. C., 385; 20 N. J. Eq., 243; 3 Met, 109; 2 Allen, 101; 9 Wall., 740; 92 U. S., 21; 17 S. C., 98; 2 Hill Ch., 152; Dud. Eq.,.24; 9 Rich., 404. This plaintiff has the right to Me this complaint as a supplemental pleading in the other cause: 17 S. C., 127.</p> <p>cite: State Court cannot determine validity of any claim against a non-resident beyond what may be satisñed by his property within the State: 95 U. S., 714; 101 U. S., 417) 103 U. S., 168; 137 U. S., 287; 119 U. S., 185; 144 U. S., 41; 106 U. S., 350.</p>

Before Aldrich, J., Charleston, March, 1901. Action by August C. Hutmacher against Charleston Consolidated Railway, Gas and Electric Co. From order refusing motion for new trial, defendant appeals. cite: Such contradictory evidence is incompetent: 44 111.

Before Aedricit, J., Pickens, January, 1901. Action by Mary Moon against Hattie Bruce. From judgment for defendant, plaintiff appeals. cite: As to construction of instrument in bar of dower: 34 S. C., 85; 20 S. €., 560. (oral argument).

Before Gary, J., Lexington:, June, 1901. Petition for administration with will annexed in probate court by Elizabeth P. Wessinger on the estate of W. B. Seay.

<p>Before Gage, J., Barnwell, May, 1900.</p> <p>Action by Kittie I. Shuck against Interstate Building and Loan Association. From judgment for plaintiff, both sides appeal.</p> <p>cites: By-laws given a member are all he is charged with notice of: 18 A., 905; 41 S. C., 300; 54 S. C., 221. But bond prevails against bylaws: 56 S. C., 280. Payment of an illegal demand involuntarily zvill not be sustained: 10 How., 242; 95 U. S., 212; 1 N. & McC., 45; 13 Rich. L-, 42; 25 S. E. R., 981; 12 S. C., 570; 10 S. E. R., 221.</p> <p>cites : Voluntary payment of money under claim of right cannot be recovered: 2 Rich., 317; 18 Ency., 214-229.</p>

Before Buchanan, J., Bamberg, May, 1901. Controversy without action between J. B. Hunter, as sheriff of Bamberg County, and Bamberg County. From Circuit order, county appeals.. cites: Sheriff is not entitled to fees for summoning civil jurors: 22 Stat., 584. Ambiguozis statute should be so construed as to avoid inconvenient results: 28 S. C., 521. A point may be first raised in this Court zvhen it supports or tends to support the judgment below: 26 S. C., 1, 283.

<p>Before Klugh, J., Greenville, July term, 1901.</p> <p>Action by B. F. New against Sherman Killer and Joe Coville. From judgment for plaintiff, defendants appeal on following exceptions:</p> <p>“1. Error in charging, ‘So that if a tenant holds land under a lease and dies, and his heirs come and have the Court, by its officer, to convey the land in fee simple to- somebody else after due proceedings, for the purpose of partition or for any other purpose, according to the usual practice, and under judgment of the Court, the officer who makes the conveyance acts as the agent of these parties who are tenants, and acts for the heirs of the deceased tenant, and that amounts to a disclaimer of the landlord just the same as if the tenant himself had done it.’ It being respectfully submitted that the officer under such circumstances acts as the agent of the parties, who are tenants, only in conveying such interest as they might have in the premises.</p> <p>“2. Error in charging, ‘If you find by the preponderance of the evidence that the plaintiff entered into possession of this land by reason of a conveyance of the interest of that man, Andrew Odam, and that purported to be a conveyance of the fee simple title; and if you find, further, that it was known to the trustees of the Wadsworthville Poor School that the land was sold in that way, and that he did take a deed in' fee simple of the interest of Andrew Odam, then you would be bound to conclude, under the instructions I have already given you, as to these supposed cases, that there was a forfeiture of the lease of Andrew Odam.’ It being respectfully submitted that the Court itself should have construed the deed referred to and not leave its construction to the jury.</p> <p>“3. Error in charging, Tf you find that there was a conveyance of this land by the ordinary, who was Mr. McKay, if you find a conveyance in fee simple by Mr. McKay, the Court instructs you that that would be a conveyance by the agent of the tenant, the same as a conveyance by the tenant himself; and that would operate as a forfeiture of the lease, and it would be forfeited and expire.’ In that: (1) The Court was bound to construe the deed of McKay to the plaintiff, and should not have left its construction to the jury. (2) The Court should have construed the said deed as conveying to the plaintiff only such interest as the said Andrew Odam had in the said premises.</p> <p>“4. Error in charging the jury, Tf he (plaintiff) took possession and held against the title of the trustees, it makes no difference whether he knew of the lease or not.’ It being respectfully submitted that if plaintiff knew of the lease, he would have the more clearly to show when and how the relationship of landlord and tenant terminated.</p> <p>“5. Error in charging the jury that they could infer notice to the trustees from facts and circumstances; whereas, he should have charged that if the relation of landlord and tenant once existed, that relationship could not be terminated except by the tenant proving clearly a disclaimer or forfeiture and actual notice of that fact brought home to* the landlord.</p> <p>“6. He erred in not granting defendants’ motion for a nonsuit upon the grounds : (1) That there was no evidence tending to show notice of an adverse holding by the plaintiff as against the defendants and their grantors. (2) Under the uncontradicted testimony in the Case the defendants were entitled to a verdict. (3) There was no evidence whatever of any damages as alleged in plaintiff’s complaint.</p> <p>“7. He erred in overruling defendants’ motion that the Court instruct a verdict, because: (1) There were no issues of fact for the jury to pass upon. The uncontradicted testimony showing that the plaintiff had no legal title to the premises in dispute nor right of possession. (2) There being no proof of any damages.</p> <p>“8. He erred in not setting aside the verdict of the jury and granting a new trial, for the reasons: (1) There was no testimony to sustain the verdict. (2) There was no evidence from which the jury could have legitimately inferred that the W’adswotthville Poor School trustees had notice more than twenty years prior to the institution of this action of the adverse holding on the part of the plaintiff herein of the real estate in question in said action.</p> <p>“9. Error in not holding that, under the evidence, the plaintiff was only a tenant of the trustees of the Wadsworthville Poor School; that that relationship had never legally terminated, and that he was, therefore, estopped from disputing their title, which title the defendants claimed under.”</p> <p>Mr. McSzvain cites: Can the deed of the ordinary in partition be regarded as a disclaimer of the lease under Odam, and was it sufficient to initiate an adverse holding in plaintiffs: 13 S. C., 209; 40 S. C., 175. Court should construe deed: 59 S. C., 311; 42 S. C., 67; 38 'S. C., 421; 15 S. C., 32; 26 S. C., 160; 32 S. C., 123; 11 Ency. P. & P., 73, et seq. Can the public sale of lands under a lease in partition proceedings be held as a disclaimer of the tenancy? 17 En'cy., 688, et seq.; 2 Strob. Eq., 145; 9 Rich., 515; 28 Barb., 336; 41 Mo., 447; 69 Mo., 129; 40 S. C., 176; 3 Pet., 50; 4 N. Y. App. Div., 378; 61 Ga., 559; 1 Ency., 1062; 18 Ency., 2 ed., 417; 1 Ency., 2 ed., 811; 7 Rich., 353; 38 S. C., 188; 41 S. C., 408; 12 Rich., 579; 9 Rich., 35; 4 McC., 434; 9 Ency., 107; 12 Rich., 679; 41 S. C., 508; 16 S. C., 798, et seq.; 37 S. C., 73; 16 S. C., 282. Law in this State governing the relation of landlord and tenant: 2 Strob., 141; 2 Con. R., 420; 2 Rich., 19; 2 Hill, 492; 40 S. C., 180. How may a tenant terminate his tenancy? 1 Ency., 2 ed., 911; 1 Ency. Raw and Prac., 1032, 1033, 1058, 1060, 1062; 7 Rich., 181; 6 Rich., 353; 2 R. R. A., 629; 9 N. Y., 1; 5 Cow., 129; 53 N. Y., 293. Cases holding certain facts insufficient to supply place of actual knozvledge of adverse holding: 69 Mo., 129; 108 Mo., 41; 81 Pa, St., 194; 75 Am. Dec., 655; 73 Am. Dec., 739; 67 Am. Dec.', 489; 92 Via., 182; 35 Conn., 345; 38 Pac., 308; 99 Ala., 526. Rule as to adverse possession in this State: 3 Strob., 502; 2 Hill, 488, 492; 48 S. C., 28; 61 S. C., 276. As to doctrine of presumptive notice: 4 How., 295; 41 Am. Dec., 250; 61 S. C., 276; Tyler on Ejectment, 874, 875, 828; Newell on Ejectment, 435; 9 Wheat., 241; 1 Speer, 225 ; 54 B. C., 405; 3 Pet., 45.</p> <p>cite: There being evidence of damage, nonsuit properly refused on that ground: 21 S. C., 556. Record of plaintiff’s deed and other facts proved, are sufficient to sustain notice of adverse holding to lessor: 40 S. C., 168; 9 Rich. Eq., 496; 1 Ency., 1 ed., 264, note 1; 47 A. D., 463; 61 S. C., 289; 48 S. C., 28; 3 Pet., 52; 76 Ala., 115; 26 S. C., no, 237.</p>

■ Before Krugh, J., Greenville, August, 1901. Foreclosure by M. E- Groce against Julia Ponder, wife, and other heirs at law of James Ponder. From Circuit decree denying the claim of Julia Ponder for dower, defendants appeal.

Before Aldrich, J., Beaufort, June, 1901. Action by H. H. Porter against Charleston and Savannah Railway Co. Prom Circuit decree sustaining judgment of magistrate for plaintiff, defendant appeals. Circuit decree upon questions involved on appeal is as follows: “This action comes before this Court upon an. appeal, brought by defendant, from the judgment of Magistrate H. D. Burnet, rendered herein.

Before Aldrich, J., Barnwell, July, 1901. Action by Wm. E. Holmes & Co-, against W. W. Moore. From judgment for plaintiffs, defendant appeals. cite: On question decided: Code, 178. cites: On question decided: Code, 178; 15 S. W., 1080; 3 Head., 498; Pitman’s Trial Pro-, 537-

<p>Before Aldrich, J., Barnwell, July, 1901.</p> <p>Two cases by Thos. Wilson, trading under the name and style of the Carolina Grocery Co., against W. W. Moore. From judgment for plaintiff, defendant appeals.</p> <p>cite: As to verification: Code, 177, 178; 28 S. C., 181; 53 S. C., 15. Plaintiff waived his-right to ask for judgment by default: Code, 276; Cir. Ct. Rules, 26; 55 S. C., 381; 48 B. C., 362; 46 S. C., 502; 42 S. C., 93; 34 S. C., 270; 23 S. C., 392.</p> <p>cites: As to verification: Code, 178; 28 S. C., 181; 13 Abb., 106; 14 Abb., 441; 11 How., 442; 7 How. Pr., 4; 15 How. Pr., 25352 Wait Pr., 338; Fitman’s Trial Pro., sec. 443; 3 Duer., 613; 13 Abb. P., 326; 24 How. Pr., 49; 13 How., 225. Default cases may be docketed at any time: 13 S. C., 479; Cir. Ct. Rule, 26. Party is not prejudiced by docketing a case: 44 S. C., 536. Defendant should have moved to strike case from calendar 3: 3 Ency. P. & P., 809; 23 S. C., 392; 42 S. C., 92; 44 S. C., 119.</p>

<p>Before Buchanan, J., Beaufort, April, 1901.</p> <p>Proceeding for writ in mandamus by W. H. Eockwood against H. Q. Adams, county treasurer. From Circuit order requiring relator to take initiative in proving issue sent down by this Court, relator appeals.</p> <p>cite: 35 S. C., 171; 51 S. C., 431; 41 S. C., 305; 35 S. €., 372; 34 S. C., 466; 28 S. C., 545; 10 S. C., 468; 42 S. C., 32; 40 S. C., 276; 35 S. C., 569; 17 s. C., 565; 16 s. C., 244; 24 s. c., 558; Edwards on Ref., 4076 Utah, 18; 19 How. Pr. R., 530.</p> <p>(no citation).</p>

Before Aldrich, J., Charleston, February term, 1901. Action by Annie M. Hollings against The Bankers Union of the World, *011 the following complaint: “The plaintiff above named, complaining of the defendant above named, herein alleges: “1st. That at the times hereinafter mentioned, the defendant above named was and now is a corporation created by and under the laws of the State of Nebraska, organized for the purpose of associating together a number of individuals, as…

Before Aldrich, J., Orangeburg, May, 1901. Two actions' — -one by South Carolina and Georgia R. R. Co. and Southern Ry. Co. against American Telephone and Telegraph Co., the other by South Bound R. R. Co. and Florida Central and Peninsular R. R. Co. against same.

Before Benet, J., Charleston, May, 1901. Petition by John Johnson, administrator cum testamento annexo of James Cox, in re B. H. Rutledge, administrator de bonis non cum testamento annexo of Adam Tunno, against M. R. Tunno and United States of America, to be permitted to intervene in said cause. Prom order refusing the petition, petitioner appeals. cites: Order is appealable: Code, 143, 11; 11 Ency.

Before Watts, J., Beaufort, September, 1900. Action by Diana Polite et al. against C. Bero and Chas. Chin Sang. From judgment for plaintiff, defendants appeal. cites: Surety is favorite of the lazo: 17 S. C., 1; 22 S. C., 288. Provisions in other States: 43 Vt., 45; 28 Me., 241; 48 Mich., 616; 7 Dana, 333. Replevin bonds are strictly construed: 13 R. I., 146, 626; 31 S. C., 269, 375; 38 S. C., 235; Wells on Rep., sec. 382; 4 Bush., 303.

Before Townsend, J., York, April, 1901. In re exceptions of W. Brown Wylie, clerk of Court, to assignment of homestead to defendant in judgment of R. T. Horne against V. Brown McFadden. From order dismissing exceptions, Wylie appeals. The latter cite: Con., art. III., sec. 28; Rev. Stat., 2127, 2126, 2134. Mr. Brice oral argument.

<p>Before Gage, J., Richland, April term, 1901.</p> <p>Action by Marie I. Rloyd and James H. Root against Frances E. Rawl et al., executors of Simeon Rawl. From judgment for plaintiff, defendants appeal.</p> <p>cites: As to the repeal of the enabling acts, and their non-applicability to this case: Suth. on Stat. Con., secs. 137, 138; 54 S. C., 255; 56 S. C., 173, 400; 61 S. C., 411,• 15 Stat., 183; 33 S. C., 81. As to holding the land adversely to the concubine while both are living on the land: 1 Ency., 820. As to the motion for new trial because of condition of one juror: Thompson and Merriam on Juries, sec. 428; 55 S. C., 90; 22 W. Va., 44; 70 Wis., 562; 79 N. W., 337; 13 S. C., 461; 26 S. C., 128; 1 N. Y. Raw. Rec., 157; 48 N. E., 238; 36 Ga., 459; 13 Conn., 459; 15 Nev., 163; 139 Mass., 43; 61 Minn., 467; 12 Neb., 5; 17 N. W., 881; 12 Kan., 539; 12 Ency. P. & P., 628. As to adverse possession and statutes governing the same: 53 S. C., 126; 50 S. C., 297; 48 S. C., 45.</p> <p>Messrs. Brantley and Lyles cite: As to the right of an illegitimate colored child, born prior to December, 1865, to inherit from its mother or grand-mother: 15 Stat., 183; xo S. C., 337; 61 S. C., 4iR32 S. C., 67; 41 S. G., 461. He zvho pleads the statute of limitations must show possession for full period: 59 S. G, 449; 35 S. G, 610; 39 S. G, 19; 45 S. G, 316; 50 S. G, 297, 457. The possession must be adverse and notorious: 61 S. G, 288; 23 S. G, 351; 121 N. C., 268; 2 Bail., 605; 167 U. S., 529; 168 U. S., 66) 35 S. C., 610; 4 How., 295; 26 S. C., 247; Code, 101. Stating the claims of a party, is not charging on the facts: 55 S. C., 32. As to the refusal of new trial because of the condition of a juror: 9 Rich., 480; 6 S. C., 177, 344; Thompson and Merriam on Juries, sec. 428; 55 S. C., 90; 32 W. Va., 44; 70 Wis., 462; 79 N. W., 337; 1 N. Y. Law Rec., 157; 48 N. E., 238; 36 Ga., 345; 13 Conn., 459; 15 Nev., 163; 139 Mass., 43; 34 Conn., 294.</p>

<p>Before Buchanan, J., September term, 1898.</p> <p>Action by L. B. Turner against J. Harbard Poston, J. Heelen Poston and A. E. Poston. From judgment for defendants, plaintiffs appeals.</p> <p>cites: Title is not involved here, and defense thereof should have been stricken-out: 13 Ency., 2 ed., 753; 1 Wis., 650. Tort cannot be set up as defense to tort: 20 S. C., 258. Foreign deed does not comply with our statutes and inadmissible as evidence: Rev. Stat., 2360.</p> <p>cite: In such action defendant can defeat recovery by plaintiff by shozving title in himself: 59 S. C., 131; 1 N. & McC., 357; 1 Bail., 306; Rice, 64; 1 Strob., 313. Defendant’s foreign deed was admissible in mitigation of damages: 2 Bail., 104.</p>

Before Gage, J., Union, September term, 1901. Action by J. A. Lowe against Seaboard Air Line Ry. Co. Prom judgment of nonsuit, plaintiff appeals. cite: Act not a burden on interstate commerce: 56 S. C., 137; 169 U. S., 163; 17 Ency., 2 ed., 95, 102; 14 L. R. A., 596; 34 L. R. A., 105. cite: The act is a burden on interstate commerce: 17 Ency., 74, 75, 93, 105; 9 Wheat., 1; 118 U. S., 244; 173 U. S., 285; 22 S. C., 220.

Before Buchanan, J., Marlboro, November, 1901. Two actions: (1) Roberts & Hoge v. Pipkin & McCallum, Marlboro Wholesale Grocery, Bank of McCoIl and Bank of Marlboro. Held: and should have dismissed the ‘Rule to Show Cause’ in the second action named above. “IV.

Before Klugi-i, J., Greenwood, April, 1901. Action by Southern Railway against M. A. Beaudrot. From order of nonsuit in trial of issues and equity order dismissing complaint, plaintiff appeals. cites: This was an equity cause, and the nonsuit was improper: 6 L. R. A., 262; ioFncy., 2 ed., 431; 57 S. C., 293; 17 S. C., 417; 54 S. C., 123; 60 S. €., 559; 47 S. C., 446; 54 S. C., 115. Plaintiff is entitled to relief prayed for: 60 S. C., 389; Lewis Em. Dom., sec. 586; 6 Am.

Before Townslnd, J., Fairfield, February term, 1901. Action by Derry P. Edwards, administrator of Jacob G. S. Edwards, against Southern Ry. Co. From judgment for defendant, plaintiff appeals. cite: As to the construction of sec. ióp2 of Rev. Stat. and degrees of negligence: 30 S. C., 228; 1 N. & McC., 420; 4 McC., 220; 1 McC., 510; Endlich Sts., sec. 75, 357; 50 L. R- A., 722; 65 N. W., 870; 24 L. R. A., 223; 58 S. C., 228. As to the stop, look and listen rule: 19 Am. & Eng.

<p>Before Keugh, J., Spartanburg, March term, 1901.</p> <p>Action by Jessie M. Thompson against Security Trust and Life Insurance Co. of Philadelphia. From judgment for plaintiff, defendant appeals.</p> <p>The former cites: Defendant entitled to open and reply: 35, S. C., 165, 178; 50 S. C., 36; 39 S. C., 165; 43 S. C., 26. Affidavit as to state of health should have been admitted: 35 R. R. A., 272; 69 N. Y., 256; 50 E. R. A., 777; 8 Wall, 397; 31 Am. R., 631; 3 Ency., 2 ed., 10-18-20. Error to qualify, modify or restrict the express terms of the contract: Bishop-on Con., sec. 379; 42 R. R. A., 273; 35 R. R. A., 643; 54 S. C., 371; 2 Cromp. & J., 244; 136 U. S., 287. As to satisfaction of: 26 S. C., 91; 36 Fed. R., 417; Beach on Mod. Con., sec. 105.</p> <p>cite: Defendant not entitled to open and reply: 35 S. C., 172; 50 S. C., 36; 4 Ency. P. & P., 628; 11 Id., 411-13; 43 S. C., 26, 14; 96 U. S., 89; 51 S. C., 543; 28 S. C., 438; 29 S. C., 579; Code, 183. Affidavit properly excluded: 29 S. C., 580; 50 L. R. A., 777; 8 Wall., 404; 31 Am. R., 631; Bliss on Life Ins., 631-4. No error in construing contract to mean that the evidence furnished by the parties should be such as in reason, justice and common sense would be acceptable: 2 Bosw., 381; 76 N. Y., 119; 47 N. Y., 475; 54 Am. R., 709; 22 Am. St. R., 839; 49 Vt., 348; 43 Vt., 528; 50 Mich., 570; 65 Md., 198; 149 Mass., 284; 101 E. C. L., 782; 15 Am. R., 398; 14 Id., 422; 3 Ency., 2 ed., '123; 16 Ency., 870.</p>

Before Watts, J., Florence, March, 1901. Action by P. I. Bostick, as survivor of P. I. Bostick & Co., against B. T. Ammons. Held: 1st. That this being a law case and subrogation being of equitable origin, that the same could not be interposed. 2d. That it being a material plea must have been pleaded, and as it was not, could not be considered. 3d. That under the law a stranger who pays the debts of another is not subrogated to any of the rights of the original…

Before Watts, J., March, 1900, and Benet, J., March, 1901, Anderson. Action by Abe McDaniel against Monroe Bros. From judgment for plaintiff, defendants appeal. cite: As to motion to dismiss amended complaint: 21 S. C., 221, 226; 19 S. C., 560; 24 S. C., 165; 29 S. C., 124.

Before Gary, J., Sumter, February, 1901. Action by Telephone Manufacturing Co. of Sumter, S. C., against The Sumter Telephone Manufacturing Co. From Circuit decree, defendant appeals on following exceptions : “1. Because he did not sustain plaintiff’s fourth exception to the master’s report and overrule the master’s tenth finding of fact, as follows, to wit: ‘That the defendants, Chas.

<p>Before Gage, J., Richland, April, 1901.</p> <p>Thirty actions by the South Bound Railroad Company against the following defendants respectively: (1) Eliza Burton et al., (2)Dora Casson et al., (3) Alice C. Casson, (4) Charles Logan, (5) Charles H. Manson, (6) J. H. Van Metre, (7) R. C. Myers et al., (8) Mrs. E. L. Ehrlich, (9) Jno. R. Nowell, (10) The Capital City Building and Loan Association, (11) Martha Holmes, (12) Robert Nelson, (13) Aaron Greax, (14) Jno. T. Sloan and Jno. T. Seibels, (15) Mary Jones Johnson, (16) Jacob J. Durham, (17) J. Quitman Marshall, (18) Mary J. Clark, (19) H. A. Harth, (20) Sam’l L. Sweeney, (21) Mary Smith, (22) Humphrey Jones, (23) Mary E. Higbee, (24) Jno. N. Finley, (25) Emma L. Pierce, (26) Maria L. Taylor, (27) Carrie Paul, (28) Jno. W. Wood, (29) Katie M. Jones, (30) Margaret Day, on complaints of which the following in the action against Martha Holmes is substantially a copy :</p> <p>“The plaintiff, complaining of the above named defendant, alleges:</p> <p>“1. That the plaintiff is, and was at the times hereinafter named, a corporation duly created by, and organized under, the laws of the State of South Carolina.</p> <p>“2. That by an act of the legislature of the State of South Carolina, approved the 9th day of February, 1882, found in 17 Stat., at page 949, plaintiff corporation was authorized to build a railroad from a point within or near the city of Columbia, in the State of South Carolina, to the city of Savannah, in the State of Georgia, and was, by an act of the legislature, approved the 24th day of December, 1890, found in 20 Statutes, at page 763, authorized to build a line of railroad from a point within or near the city of Columbia to the North Carolina line, in the direction of Monroe, in the State of North Carolina.</p> <p>“3. That by an act of the General Assembly of the State of South Carolina, entitled ‘An act to appoint commissioners to purchase land for the purpose of building a town and for removing the seat of government thereto,’ approved the 22d day of March, 1786, found in 4 Statutes, at page 751, it was enacted: ‘That the commissioners hereinafter directed to be appointed, shall be, and they are hereby, authorized and required to lay off a tract of land two miles square, near Friday’s Ferry, on the Congaree River, including the plain of the hill where Thomas and James Taylor, Esquires, reside, into lots of one-half acre each; and the streets shall be of such dimensions, not less than sixty feet wide, as they shall think convenient and necessary, with two principal streets running through the centre of the town at right angles, of one hundred and fifty feet wide; which land shall be, and the same is hereby declared to be, vested in the said commissioners, and their lawful successors, for the use of this State.’</p> <p>“4. That under the provisions of said act the said body of land was purchased from the owners thereof, by the commissioners appointed thereunder, and it became vested in tfie State of South Carolina in fee simple; and it was enacted that the territory so laid off into streets and lots should be called and known by the name of Columbia; and power was conferred upon the commissioners therein named, and, by subsequent acts, upon the successors of said commissioners, to sell certain of the lots so laid off, as provided in said act.</p> <p>“5. That the State of South Carolina still retains the interest in fee simple in the streets of said town so laid off as aforesaid.</p> <p>“6. That by subsequent acts of the General Assembly of the State of South Carolina, the mayor and aldermen of the town of Columbia, subsequently of the city of Columbia, were vested with authority, from time h> time, under their common seal, to make all such ordinances, rules and regulations relative to the streets and markets of said town as they might think proper and necessary.</p> <p>“7. That amongst other streets so laid off by the commissioners aforesaid, was Lincoln street, which was laid off 100 feet wide, running north and south from Elmwood avenue, the northern boundary of the city of Columbia, to Lower street, the southern boundary thereof, which crossed, at a point near. Taylor street, in said city, a body of land which subsequently became known as Sidney Park, belonging to the citjr of Columbia, and, up to a recent date, used by it for the purposes of the water works of the city.</p> <p>“8. That this plaintiff corporation, after building the line of its railroad from the city of Savannah, in the State of Georgia, to Cayce, a point in the county of Lexington, in ■the State of South Carolina, on the west side of the Congaree River, and nearly opposite to the city of Columbia, being desirous of extending its line from said point to and through the city of Columbia and on towards a point on the North Carolina line in the direction of Monroe, in said State, and being authorized by its act of incorporation and acts amendatory thereof, so to do, made application to1 the mayor and aldermen of the city of' Columbia for permission to build the line of its road through and along said Lincoln street, from the southern boundary of the city to Sidney Park and to the point where Blanding street would have intersected with said Lincoln street if projected through Sidney Park; whereupon, the said mayor and aldermen of the city of Columbia, in council assembled, did, by an ordinance duly ratified the 26th day of September, 1899, grant a right of way to this plaintiff ‘along the line of Lincoln street, from the southern boundary of the city to Sidney Park to the point where Blanding street would intersect with Lincoln street if projected through Sidney Park; thence west along the line of Blanding street to a point at or near its intersection with Wayne street; thence north along or near the line of Wayne street to the northern limits of the city of Columbia;’ and was authorized to lay down and construct its line of railway along said right of way, and also with the privilege of crossing Elmwood avenue and other streets along said line at street grade or twenty feet below grade, upon certain terms and conditions.</p> <p>“g. That by section 2 of said ordinance, it was further provided: ‘Whenever the track of said company shall cross or pass along a street of said city in a cut, the width of such cut shall not be more than twenty-five feet across the top, and maintained by the said company at such width, and all cuts where not directed to be bridged shall be fenced on both sides along the entire length, with a substantial fence not less than four and one-half feet high, and the outer faces of said fence not to be more than twenty-six feet apart, subject to the approval of the committee on streets.’ And it was further provided in sections 3, 4, 5, 6 and 7: ‘Sec. 3. Whenever the track of said railroad company crosses a street in a cut, said cut shall be covered by a substantial bridge, as aforesaid, the planking of which shall not be less than three inches thick, erected and maintained by said company at its own expense, the entire width of the street, inclusive of the pavements. A bridge twenty-five feet wide shall be provided and maintained by said railroad company across the cut opposite the county jail, and suitable bridges shall be erected and maintained by said company at such other points as may be decided by council or its committee. The sides of all bridges to be protected with a close railing four and one-half feet high. Sec. 4. Whenever said track crosses a street in a cut, where existing drains, sewers, culverts or other waterways are disturbed, suitable waterways across said cuts must be provided, built and maintained at the expense of the company. Sec. 5. City water pipes across said cut are to be supported by bridges and the pipes boxed up' under the direction of the committee on water works at the expense of said company for building and maintenance. Whenever it becomes necessary in the judgment of council or its committee on water works to extend, remove or change the location of any water pipes by reason of the construction of said railroad track, said extension, removal or change of location shall be under supervision of the committee on water works and at the expense of said company. Sec. 6. Where trestles are used by said company on Lincoln or other streets on their line, no bench shall be placed over any water gate or valve; and shall be so placed as to allow free access to said valve and gates by the employees of said city. And no benches in intersecting streets shall be nearer together than forty feet: Provided, That when directed by city council, the railroad company shall construct iron bridges across the full width of the street. If trestling is allowed on Lincoln street where it is crossed by the waterway between Pendleton and College streets, roadways on both sides of said trestle shall be provided, erected and maintained at the expense of said company. No mudsills of a greater length than twenty-five feet shall be used under any trestle unless placed below the surface of the ground, nor shall the outside or foot of any buffer post extend further than twelve and one-half feet from the centre line of said trestle. Sec. 7. Whenever said railroad track crosses any street at grade, said company must adhere strictly to existing grades; or if the grade of any street be permitted to be changed, said company must at its own expense cause the approaches to the track on either side and between the rails, to be graded and paved to correspond with said grades; said grades not to exceed one foot vertical to thirty feet horizontal, as directed by council or its committee on streets.’</p> <p>“10. That, in pursuance to said privilege so granted, this plaintiff proceeded to construct the line of its road over and along said Lincoln street, from the southern boundary of the city of Columbia to said Sidney Park, laying its track along said street as nearly as possible at grade and proceeding in all respects to comply with the provisions of said ordinance as to' the width and depth of its cuts and as to the protection thereof by substantial fences; but that, owing to the necessity of having to' build retaining walls of great height and thickness in the cut along certain portions of said street, has not yet completed said work, but intends to complete the same as rapidly as it can be done, in good faith and in full compliance with the terms of said ordinance.</p> <p>“n. That the defendant, who claims to be the owner of a lot of land abutting on said Lincoln street fifty-two feet, situate on the east side thereof, between Plain and Washington streets, and bounded on the north by lot of Robert Nelson, east by lot now or late of Wilder, south by lot of Alice Pye, and west by Lincoln street, has filed in the office of the clerk of the Court of Common Pleas for Rich-land County, State aforesaid, a petition setting out that the said defendant is entitled to an easement of access over and across the said Lincoln street to said lot, and that this plaintiff had taken and impaired the same; whereupon, an order was made by Hon. George W. Gage, presiding Circuit Judge of the Fifth Judicial Circuit of the State of South Carolina, directing the cleric of the Court of Common Pleas for said county and State to empanel a jury to ascertain the compensation to be paid by this plaintiff for ‘the taking, alteration and impairment by it of the easement and property of the said defendant above described,’ in the constructing of plaintiff’s railway in said Lincoln street, and plaintiff has been notified that the said defendant and the said clerk of the Court of Common Pleas for Richland County are about to proceed to empanel a jury for the assessment of the •alleged damages to the defendant’s alleged property.</p> <p>“12. That this plaintiff denies knowledge or information ■sufficient to form a belief as to the ownership by the defendant of the lot of land above described, but does deny that said defendant has any easement or property in the said Lincoln street other than her right of access to said lot if .■she is the owner thereof; and this plaintiff further alleges that it has not, in any manner, taken or impaired the easement of access to said lot.</p> <p>“13. That its line of railway along said Lincoln street, at a point opposite to the said lot claimed by the said defendant, is laid about thirty feet below grade, and there is convenient and ample way of access to the said lot over and along the said Lincoln street for twenty-five feet in width north to Plain street and south to Washington street.</p> <p>“14. That this plaintiff has not taken any property of the defendant, either by or against her consent, and the said defendant has no right to proceed under the statutes of the State of South Carolina for the assessment of the value of any such easement or property, or for any damages done by the plaintiff in the construction of its line of railroad over and along said Lincoln street.</p> <p>“Wherefore, the plaintiff demands judgment:</p> <p>“1. That the defendant be enjoined and restrained from further prosecuting proceedings for the assessment of the value of said property, or of the damages alleged to1 have been done thereto by the construction of plaintiff’s line aforesaid.</p> <p>“2. For such other and further relief as to the Court may seem just, and for the costs of this action.”</p> <p>The several defendants thereafter filed their return to a rule to show cause, all being in the following form, to wit: except that the said John R. Nowell, Mary Jones Johnson and others and Katie M. Jones set up their respective ownership in fee simple of lots abutting on Gadsden street, and their respective easement of access over and along said street • instead of Lincoln street.</p> <p>“By way of return to' the rule to1 show cause heretofore made herein, the defendant above named respectfully shows t</p> <p>“I. As to the allegations of paragraph 5 of the complaint herein, this defendant denies the same.</p> <p>“II. As to paragraph 10 of the complaint herein, this defendant says that she has no knowledge or information sufficient to form a belief as to the truth of the allegations therein contained, arid therefore denies the same.</p> <p>“III. As to paragraph 7 of the complaint herein, this defendant admits so much thereof as relates to the laying off of Lincoln street and the crossing of Sidney Park by the same; but denies that said Lincoln street is now of the uniform width of 100 feet, and alleges that subsequent to its being' laid off as aforesaid, the width of said street has been altered and lessened, and it is not now and has not been for many years past more than eighty or eighty-five feet wide along a great part of its length, and is now only about ninety-four feet wide along and in front of this defendant’s lot referred to in the complaint herein. This defendant further denies that said Sidney Park was heretofore used by the city of Columbia only for the purposes of the water works of said city.</p> <p>“IV. As tO' the allegations of paragraph 12 of the complaint herein, this defendant denies the same, and upon information and belief alleges that the tract of land embracing the streets and lots within the original limits of the city of Columbia having passed to and become vested in the commissioners of the town of Columbia, in fee for the use of the State of South Carolina, thereafter said tract of land was subdivided into streets and lots, which said lots were sold and conveyed from time to time by said commissioners, or their lawful successors, subject and with reference to said subdivision and as abutting and bounding upon said streets; that this defendant owns the fee simple title to the lots referred to in said paragraph, having derived said title through, under and by virtue of certain deeds of conveyance to her and to her privies in estate, running back, as shown by the records for said Richland County, to the time of the war, and prior thereto, as she has been informed and believes, to a conveyance from the commissioner or commissioners of the town of Columbia; and that through, under arid by virtue of said deeds of conveyance, this defendant owns property, namely, an interest in real estate, in and to said Lincoln street, which the plaintiff herein has taken without this defendant’s consent, and for which said plaintiff has refused and still refuses to make compensation, notwithstanding she duly gave notice, of her claim thereto.</p> <p>“V. As to the allegations of paragraph 13 of the complaint herein, this defendant denies the same.</p> <p>“VI. As to the allegations of paragraph 14 of the complaint herein, this defendant denies the same, and alleges</p> <p>“1. That this defendant owns the fee of said Lincoln street in front of her said lot up to the middle of said street, subject only to the public easement therein to use the same as a public highway; that the plaintiff herein, by the construction and operation of its railway over and along said street, has imposed thereupon an additional burden and has taken and appropriated this defendant’s interests and property in and to the fee of said street.</p> <p>“2. That entirely independent of the ownership of the fee in said Lincoln street, this defendant, as proprietor of'said lot abutting upon said Lincoln street, owns and is entitled to certain rights and easements therein, as appurtenant to said lot, namely, certain rights of ingress and egress over and along said street to and from said lot, of access and passage over and across said street, of free entrance and circulation of light and air from and over said street, the right to make reasonable use of said street in connection with said lot for purposes of building, repairing and improving, the right that said street shall not be subjected to any unreasonable use so as to cause injury to said defendant’s abutting premises, and the right that said street shall be kept open and unobstructed in its entire width as a public highway; that by the construction and operation of the said plaintiff’s railway over and along said Lincoln street, more than one-fourth of the bed of said street has been taken and appropriated to the exclusive use of said plaintiff, and wholly diverted from its use as a public highway, this defendant’s right of ingress and egress to and from her said lot has been taken and materially impaired, her right of access and passage over and across said street has been taken -and destroyed, the free entrance and circulation of light and air over and across said street has been obstructed, this defendant’s right to make reasonable and necessary use of said street in connection with her said premises has been abridged, said street has been permanently obstructed in front of said defendant’s lot and subjected to an unreasonable use wholly inconsistent with the purpose of its dedication as a public highway, and this defendant’s premises and buildings have been and continue to be shaken, damaged and injured by the frequent passage of heavy trains, and have been and continue to be invaded, polluted and injuriously affected by noxious gases and smoke, by the deposit thereon of cinders, soot and ashes, and are subjected to increased risks from fire by sparks being cast thereon; all of which to this defendant’s great loss and damage.</p> <p>“VII. This defendant, making further return to said rule to show cause, denies that the plaintiff is entitled to the relief demanded in the complaint herein, or to' any judgment whatsoever against this defendant.”</p> <p>From order refusing to enjoin the condemnation statutory proceedings, the plaintiff appeals.</p> <p>cite: Condemnation by statute applies only where right to compensation is conceded or has been determined: 38 S. C., 313, 34; 59 S. C., 376. Error to dissolve a temporary injunction on motion in action solely for injunction, if facts stated in complaint entitle plaintiff to injunction: 51 S. C., 436; 54 S. C., 473. As to plaintiff’s right to use the streets: 4 Stat., 751; 5 Stat., 505; 14 Stat., 569; 6 Stat., 53, 189, 214, 599; 12 Stat., 116; Rev. Stat., 1800; 22 Stat., 367. As to the fee of the streets: 2 Dev. on Deeds, sec. 848; 4 Ency., 801, 813, 814; 22 How., 130; 34 Barb., 515; 4 L. R. A., 623; 5 Rich., 595. Right of abutting property owners to compensation: 99 U. S., 635; 53 S. C., 580; 5 Rich., 599; 4 McC., 541; 53 S. C., 89; 48 S. C., 562; Sed. on Dam. (8 ed.), 1182; 10 N. J. Eq., 358; 47 E. R. A., 759; 50 E. R. A., 813; 48 E. R. A., 710; 4 L. R. A., 626; 125 U. S., 161; 136 U. S., 21; 132 U. S., 75; 18 Pa., 187; 54 S. C., 202; 21 111., 516; 29 111., 279; 35 Cal., 331; 6 Whart., 456; 121 N. Y., 505; 50 N. Y., 206; 6 Barb., 508; 91 N. Y., 149; 39 N. Y., 404; 90 N. Y., 122; 106 N. Y., 157; 59 S. C., 362; 17 Stat., 949; 33 S. C., 482; 5 Rich., 596; 36 S. C., 135; 96 U. S., 315; 24 la., 480; 38 S. C., 37; 28 S. C., 399; 21 S. C.,' 431; 17 Ency., 299; 33 S. C., 477; 147 U. S., 253; 18 E. R. A., 341; 25 E. R. A., 655; 34 Md., 463; 43 L. R. A.’, 557; 4 E. R. A., 623; 94 U. S., 324; 25 E. R. A., 656; 59 S. C., 571; 47 E. R. A., 759; 50 L. R. A., 813; 37 S. C„ 328; 45 S. C., 276; 9 R. R. A., 94.</p> <p>Messrs. P. H. Nelson and Melton & Belser cite: Order here is ordinarily not appealable: 16 Ency., 2 ed., 345; High on Inj., 345; 25 S. C., 42; 27 S. C., 408; 34 S. C., 354; 48 S. C., 315; 60 S. C., 559. The exception is zvhere Judge •commits error of law: 36 S. C., 562; 34 S. C., 352; 27 S. C., 415. On showing as to defendant’s ownership in lots, injunction properly refused: 59 S. C., 371; 62 S. C., 52; 38'-S. C., 308; High on Inj., 34, secs. 10, 11, 5. If defendants own lots, property has been “taken” in sense of Constitution: Con., art. I., sec. 17; Rewis on Em. Dom., sec. 54; Elliott on Roads and Streets, sec. 722; 22 R. R. A., 628; 4 Ency., 809; 7 R. R. A., 550; 14 R. R. A., 370; 104 N. Y., 291; Rewis on Em. Dom., 171, 185, 186, 175, 179, 237, 240, 233, 195-6, 236; 1 Ency.,” 2 ed., 225, 228, 234; 15 N. Y. Eq. 481; 53 S. C., 89, 575; 58 S. C., 60; 48 S. C., 563; 22 R. R. A., 627; 66 Miss., 279. Owners’ rights extend to full zvidth of street: 7 R. R. A., 550. Condemnation zmder statute is exclusive: 33 S. C., 483; 47 S. C., 483; 17 S. C., 579-</p> <p>Mr. R. W. Shand cites : Courts do not usually grant interlocutory injunctions on information and belief, or on mere denials of defendants’ right: 2 Wait. Pr., 82, 83; 10 Ency., 1 ed., 787, 927; 41 S. C., 519. Plaintiff can only acquire right of way: Con., art. IX., secs. 20, 21; art. I., sec. 17; art. VIII., sec. 4; Rev. Stat., secs. 1743-1755; 17 Stat., 951. Any right attached to land is property and included in “lands” in stahite: 33 S. C., 483; 122 N. Y., 1; 66 Miss., 279; 2 Dill. Mun. Corp., sec. 587b; 19 N. J. Eq., 393; Dew. on Em. Dom., secs. 56, 142; 55 N. Y., 661; 14 Allen, 444; 3 Elliott on R. R., sec. 1085; Elliott on Streets, 526, 86; 19 Pac. Rep., 610; 135 U. S., 4331 136 U. S., 129; 132 U. S., 75; 18 D. R. A., 166; 22 L. R. A., 627, 668; 19 Ency., 284; 17 S. C., 579; 5 Rich., 428; 6 Rich., 47; 33 S. C., 482; 54 S. C., 199; 59 S. C., 371.</p>

<p>Before Gage, J., Laurens, October, 1901.</p> <p>Action by J. S. Machen against Western Union Telegraph Co. Erom order on motion to make complaint more definite, both parties appeal.</p> <p>cite: Our appeal from this order is proper: 26 S. C., 423; 32 S. C., 102; 36 S. C., 559; 49 S. C., 327. Under '22 Stat., 693, it is not necessary to state facts separately relied on to support actual and punitive damages: 61 S. C., 170. Corporation under any other State or country may be sued here: Code, 423-</p> <p>"cite: Order not appealable until after ñnal judgment: Code, 11; 52 S. C., 584; 8 S. C., 112; 11 S. C., 122; 47 S. C., 28; 42 S. €., 547; 36 S. C., 174, 562. Por acts of omission punitive damages are not awarded: 18 A. & E. R. R. Ca. (N. S.), 231. It is a contradiction to say that an act was done both negligently and wilfully: 61 S. C., 170. The act of 1898 does not contemplate the commingling of inconsistent causes of action: 55 S. C., 90; 42 S. C., 114; Bliss Code PI., sec. 122; End. Int. Stat., 407; Rev. St. U. S., sec. 5538; 13 Pet., 496; 42 Eed. R., 23. Rule as to .alleging corporate existence is different in different States: 14 S. C., 53; 5 Ency. P. & P., 75.</p>

<p>Before Bucpianan, J., July, 1900, and Blnrt, J., March, 1901, Greenville.</p> <p>Action by Lula M. Davis, administratrix of Joseph D. Davis, against Atlanta and Charlotte Air Line Railway Co. From judgment for plaintiff, defendant appeals.</p> <p>Mr. T. P. Cothran cites: Before there ccm be negligence to claimant, there must be a breach of duty to him: Cooley on Torts, 660; 37 N. J. L., 5; 78 Ind., 323; 2 Elliott, sec. 467; 14 A. & ER. R. Ca. (N. S.), 803; 3 Elliott, 1956; 41 N. E. R., 1051. Pireman and engineer are fellow-servants: 1 McM., 385; 39 S. W. R., 358; 56 S. C., 446; 18 S. C., 270. Employees cannot take advantage of omission to give statutory signals: 2 Thomp. Com. Neg., sec. 1561. Error to exclude evidence that train was not operated by defendant: 59 S. C., 544; 35 S. C., 439; 41 S. C., 86. Signaling statute can only apply to corporation operating train: 47 S. C., 105, 376; 39 S. C., 517; 58 S. C., 222; 59 S. C., 254; 33 S. C.; 136; 61 S. C., 495i 39 S. C., 514; 55 Fed. R., 551; 34 S. C„, 451; 34 S. C., 292; 41 S. C., 287. The lessor railroad company is not liable for contractual obligations assumed by lessee company: 41 S. C., 91; 25 S. C., 222; 17 Wall., 450; 13 N. E. R., 68; 72 Fed. R., 752, 282; 57 Fed. R., 173; 40 N. E. R., 579; 63 Tex., 549; 3 L. R. A., 267; 13 Am. St., 806; 145 U. S., 418; 74 Fed., 282; 37 S. E. R., 992; 25 S. C., 216; 28 S. C., 401; 33 S. C., 427; 4i S. C., 415; 43 S. C., 197; 25 S. C., 216. Proof of negligence must be made beyond mere failure to give signals: 55 S. C., 389, 334; 10 Rich., 22; 8 Rich., 183; 9 Rich., 89; 39 S. C., 517; 2 Wood Ry., 1567; 40 Penn. St., 407; 2 Thom. Neg., sec. 1698; 3 Elliott R. R., 1747; 2 Wood R. R., 1514; 4 Ency.,.1 ed., 922; 8 Ency., 2 ed., 588; 7 E. R. A., 588; 6 A. & E. R. R. Ca. (N. S.), 349; 9 Ibid., 349; 2 Elliott R. R., sec. 1155; 40 S. C., 342; 19 S. C., 65; 32 S C., 144; 45 S. C., 365; 58 S. C., 413; 57 S. €., 302; 56 S. C., 539; 47 S. C., 105; 29 S. C., 318. Gross negligence does not imply absence of all care: 51 N. E. R., 522; 1 Thom. Com. Neg., secs. 23, 25; 16 Ency., 1 ed., 426; 15 S. C., 450; 19 S. C., 24; 20 S. C., 222, 264; 21 S. C., 102; 27 S. C., 270; 2 Thom. Com. Neg., sec. 1637. Nor is it equivalent to recklessness: 60 S. C., 67; 61 S. C., 189.</p> <p>cite: Charge as to meaning of gross negligence was not error: 52 S. C., 125; 58 S. C., 229; 30 S. C., 228; 3 Elliott Ry., sec. 1254; Bus. on Per. Inj., sec. 162; 136 N. Y., 650. Employee entitled to protection of signaling statutes: 61 S. C., 497; 39 S. C., 517; 33 S. C., 139; 34 S. C., 299; 59 N. E. R-, 1044; 157 111., 354; 65 la., 658; 161 111., 155; 170 111., 538; 32 Am. St. R., 615. Owner of railroad-is liable for injuries occasioned by operator’s failure to give statutory signals: 25 S. C., 22i; 17 Wall., 445; 28 S. C., 401; 15 Am. R., 678; 15 Wall., 90; 80 N. Y., 29; 57 Am. R., 25 ; 132 111., 654; 22 111., 646; 71 Tex., 614; 10 L. R. A., 794; 28 S. C., 440; 3 Elliott Rys., sec. 431; 2 Ibid., sec. 433; 58 A. St. R., 140; 19 Ency., 900; 37 E. R. A., 83; 26 S. C., 263. As to construction of signaling statutes: 33 S. C., 427. Evidence tending to shozv that another than defendant operated the road properly excluded: 35 S. C., 439.</p>

Before Hudson, special Judge, Barnwell, May, 1901. Four actions by A. M. Kennedy against (1) L,. T. Round-tree, (2) W. H. Eaves, (3) Lee Powell, and (4) Dora Baldwin. From judgment for defendants, plaintiff appeals. cite: As to merger and satisfaction of the mortgage: 3 McC., 302; 11 Rich. L-, 704; 6 S. C., 316; 10 S. C., 373; 6 Rich. Eq., 343; 9 Rich.

Before Townsend, J., York, April, 1901. Action by W. Brown Wylie, clerk, against Commercial and Farmers Bank, A. E. Smith, A. H. White, R. Lee Kerr, W. C. Hutchison and V. Brown McFadden. From judgment for plaintiff, defendants appeal. Messrs.. Finley & Brice and Hart, cite: Proof of presentation to receiver alone is not sufficient demand: 2 Dan. Neg. Inst., sec. 1596; 2 N. & McC., 433i 9 Wheat., 703; 51 S. C., 124.

<p>Before BENET, J., Anderson, March term, 1901.</p> <p>Action by A. F. Martin against Elizabeth Burgess. From order of nonsuit, plaintiff appeals.</p> <p>Mr. Martin cites: Other grounds for sustaining nonsuit cannot be considered: Cir. Ct. Rules V. and XVIII.; 20 S. C., 114; 53 S. C., 220; 53 S. C., 132; 54 S. C., 205. Nonsuit improper, there being some evidence of title by commoÁ source: 53 S. C., 220; 48 S. C., 243. Title by adverse possession: 50 S. C., 297-8, and cases cited there. Presumption of deed in this case from transaction proved: Abb. Tr. Ev., 898, and cases there cited. Plaintiff tortiously evicted by defendant; hence, ordinary rule as to recovery on strength of title does not apply: 17 A. & E. Ene. L. (1 ed.), 289; 15 S. C., 272-3. Not necessary to prove title here; possession sufficient: 15 S. C., 271-2; 60 S. C., 401.</p> <p>Mr. Tribble cites: To maintain trespass, claure clausum fregit, plaintiff must have actual or constructive possession of the land: 4 Rich., 104; 1 Dud., 340; 32 S. C., 291. As to admissions: 1 Ency. D. & Prac., 1033; 2 Speer, 291; 22 L. R. A., 297. When title is claimed, by adverse possession it must be clemdy proved: 53 S. C., 216; 2 MeC., 260. As to tort by another than defendant: 39 S. C. (Henderson v. Wendler).</p>

Before Klugh, J., 'Greenville, July term, 1901. Action by Maud Simmons and F. M. Simmons, her husband, against Western Union Telegraph Co. From judgment for plaintiff, defendant appeals. cite: Mental anguish act is unconstitutional: 32 S. C., 592; 57 S. C., 325; Cooley on Con. Uim., 484; 165 U. S., 150; 174 U. S., 96; 113 U. S-, 27; 19 S. W. R., 910. Act cannot come under police power: Tiedeman on Uim. of Pol.

<p>Before Buchanan, J., Orangeburg, October term, 1900.</p> <p>Action by John and J. B. McLaughlin against T. B. and D. Braddy. From judgment for plaintiff, defendants appeal.</p> <p>cite: A sealed note is not negotiable: Code, 133; 38 S. C., 147; Harp., 334; 4 Ency., 2 ed., 123, 256, 771; 2 Ency., 2 ed., 1080; 11 Rich., 432; 49 N. Y., 396; 18 S. C., 285; Bigelow’s Bills and Notes, 13, 89 Am. Dec., 230; 4 McC., 159; 29 Pa. St., 529. Is this a sealed note? 4 McC., 267; 1 McC., 313; 1 Strob., 495; 7 Rich., 11; 50 Am. R., 560; 11 L. R. A., 833. Is presumption of non-negotiability rebutted by terms of note, “negotiable and payable without defalcation:” 1 Dan. Neg. Inst., sec. 323; Pom. on Mer. Law., sec. 253. Can such note be transferred by indorsement in blank? 1 Dan. Neg. Inst., 28, 29; Pom. Mer. Law, sec. 284; Code, 132; 14 S. C., 621. Grounds not raised or considered below cannot be urged on appeal to sustain the verdict: 33 S. C., 505; 23 S. C., 105.</p> <p>cite: Whatever may be the effect of the law of sealed instruments as to T. B. Braddy, it can have no effect as to D. Braddy, zvho signed without a seal: 1 Strob., 445; 41 S. C., 83; 37 S. C., 446; 2 McM., 319; 5 Rich., 310; 9 Rich., 243; 10 Rich., 19; 12 Rich., 170-556; 59 Am. D., 292; 7 Mo., 440; 4 Strob., 15; 2 McC., 271. The note is negotiable if such intent can be fairly construed from its terms: 4 Ency., 2 ed., 134; 29 Pa. St., 529; 2 Hill (N. Y.), 59; 12 S. C., 351; 6 S. C., 46; 9 Wall., 274^3 S. C., 369, 375; 9 111., 417; 9 Cranch, io; 5 S. C., 178; 2 Par. on Con., 721; 1 Dan. Neg. Inst., 4 ed., sec. 32; 1 Harr. (N. J.), 324; 1 Ran. on Com. Pa., 80; 30 Am. D., 566; 15 Ga., 528; Bish. on Con., secs. 11, 52, 1046; 47 Ala., 470; 43 Md., 452, 466; 2 Pa. Dist. K., 273; 1 Strob., 404. An indorsement on a bond or sealed note operates as an assignment, whether under seal or not: 7 Rich., 12; 30 S.'C., 358; 13 S. C., 431; Voorhis Code, 93, note K; 27 S. C., 132; 8 S. C., 170; 26 Ency., 1 ed., 529; 1 Ala., 671; Code, 165, sub. 2, 169; 12 Rich., 137; 8 S. C., n; 25 S- C., 315; 6 S. C., 184; Code, 132. Non-performance of covenants of payee can be no defense to this note in hands of assignee: 1 Strob., 520; 8 Ency., 2 ed., 51; 6 Ibid., 785; 1 Bail., 217; 13 S. C., 183; 6 Tenn. .R. (D. & E-), 570; 4 Mass., 314; 49 N. Y., 396; 40 Am. St. R., 378; 1 Par. on Bills and Notes, 261. Recitals in note cannot have the effect of charging purchaser for value with equities between maker and payee: 4 Eed. R., 25; 2 Ld. Raym., 1545; 1 Swan., 295; 4 Sneed., 213; 4 Ency;, 89, and note 3, 190, and notes 1 and 2; 1 Dan. Neg. Inst., secs. 796-797; 17 N. Y., 230; 39 La. Ann., 865. If note is payable without defalcation, no set off is allowed: 9 S. & R., 193; 2 W. Blackstone, 1269; 1 Espin., 379; 9 Ency., 2 ed., 1166, and note 5; 4 Id., 135, and note 2; 3 Weiid., 420; 26 Pa. St., 288. Notice to affect bona fide holder must be of actual facts which invalidate note: 20 How., 343; 4 Eed. R., 25.</p>

Before Gage, J., Richland, spring term, 1901. Action by John J. Earle against C. J. Poat. From judgment for defendant, plaintiff appeals. cites : Error to rule out statement to Earle’s grantor as to use of way: Elliott on Roads and Streets, 2 ed., secs. 156, 165, 166. Public alley cannot be created without dedication, express or implied: 2 Strob., 66; Elliott on Roads and Streets, 2 ed., secs. 169, 167, 178.

Before Townsend, J., Greenwood, November, 1901. Indictment against Adam Aye in magistrate court. From Circuit order affirming magistrate judgment, defendant appeals. cites: 16 S. C., 187; 22 S. C., 301; 26 S. C., 258; 7 Ency., 104; 5 Wheat., 76; 2 Bail., 334. (oral argument).

<p>Before Gary, J., Darlington, spring term, 1901.</p> <p>Action by John C. Lampley against Atlantic Coast Line R. R. Co. From judgment in favor of plaintiff and order as to new tjial, both parties appeal.</p> <p>Messrs. Stevenson & Matheson cite: Overñow waters of a river are not surface water: 44 Ohio St., 282; 48 Ohio St., 63; 20 E. C. L. R., 498. If surface water or not, defendant is liable: Brandenberg v. Zeigler, and Cain v. Ry., 62 S. C., 22 Stat., 489. As to estimating damages to immature crops: Horres v. Chem. Co., 57 S. C.</p> <p>The first cites: Defendant can dam back surface water and not be liable: 54 S. C., 242. As to the value of an immature crop: 57 S. C., 189.</p> <p>Messrs. Woods & Macf arlan cite: Trial Judge cannot refer a general verdict to either of two causes of action: 2 Thom, on Trials, sec. 2640; 62 S. C., 17; 59 S. C., 270; 57 S. C., 289. What is a wrongful obstruction is a question of law and Judge should have instructed the jury: 42 S. C., 409; 60 S. C., 254; 59 S. C., 87. Evidence as to the average value of the oat crop should have been ruled out: 1 Green Ev., sec. 52; 11 Ency., 2 ed., 503; 57 S. C., 189. These overftozv waters are surface waters: 62 S. C., 18; 61 S. C., 548; 39 S. C., 472; 24 Ency., 2 ed., 897, 903; 31 Am. R., 114; 56 Id., 343; 53 Id., 581. This action cannot be maintained for damming up surface waters: 24 Ency., 950, 95i-</p>

<p>Before Aldrich, J., Beaufort, June, 1901.</p> <p>Action by A. H. Heyward against C. A. Williams, A. S. Williams, H. M. Comer & Co., Wulbern & Co., M. Hornick & Co., Phillips & Meyers, J. B. Eowenburg, Pincus & Co. and John K. Garnett. From judgment for plaintiff, defendants, C. A. and A. S. Williams, appeal.</p> <p>cite: There is no express agreement to pay ten per cent, interest before maturity of note: 18 Stat., 35; 26 S. C., 525; 34 S. C., 179; 30 S. C., 61. Counter-claim is not barred: 18 Stat., 36'; 49 S. C., 358; 58 S. C., 242; 30 S. C., 61. Application of payments in cases of usury: 141 U. S-, 384; 36 S. E. R-, 586; 31 S. C., 286; 29 S. E. R-, 225. Statute of limitations as to usury: 26 S. E. R., 990; 36 S. E. R-, 586. As to what is usury: 18 Stat., 35; 31 S. C., 286.</p> <p>cite: All the papers together make up the contract: 53 S. C., 32; 30 S. C., 67; 27 Ency., 990, 991. Rule as to payments: 15 Ency., 249; 2 Ency., 410; 1 Strob., 467.</p>

Before Krugh, J., Greenville, August, 1901. Action by Basil M. Shuman, executor of George Held-man, against Matthew Heldman, Emma Weise et al. From'Circuit decree, defendant, Emma Weise, appeals. cites: These are personal legacies, and no legatee has any interest except in the money: 8 Rich. Eq., 795 23 S. C., 387, 513; 25 S. C., 1495 8 Rich. Eq., 291. Same rule as to conditions precedent do not apply alike to real and personal estate: 2 Jar. on Wills,* 13; 1 Story Eq.

Before Townsend, J., Spartanburg, spring term, 1901. Action by Sarah Jane Kirby, as administratrix of Isom E. Kirby, against Southern Railway. Brom judgment for plaintiff, defendant appeals. cite: As to what is a “traveled place,” under the statute: Rev. Stat., 1685; 41 S. C., 20; 59 S. C., 433; 1 Bail., 58; 3 Rich., 85; Cheves, 1; 1 Spear, 22; 11 S. C., 360; 2 Strob., 60; 6 Rich., 400.

<p>Before Buchanan, J., Charleston, November, 1900.</p> <p>Action by Frank M. Smith against the Bradstreet Co. From order dismissing complaint on demurrer, plaintiff appeals.</p> <p>cite: Where it is alleged- that libel has been maliciously composed and published, not necessary to allege special damage: Cheves, 17; 4 McC., 318; Dud., 310; 116 N. Y., 223; 3 How., 267; 20 D. R. A., 138; 28 Mich., 366; 50 Mo., 439; 80 Mo., 563; 19 Mo., 227; Townsend on Slander and Libel, secs. 132, 179; 22 Fed. R., 771; 31 Minn., 235; 109 Mo., 131; 18 S. W. R., 1134; 18 Ency., 2 ed., 942; 1 N. & McC., 290; Newell on Defamation, &c., secs. 33, 35. Publications of this character are not privileged, and damages lie therefor: 49 N. J. D., 413; 46 N. Y., 188; 12 Fed. R., 526; 25 Fed. R., 137; 8 N. Y., 423; 15 Conn., 225, 267; 10 Pet., 81; 3 Wheat., 546; 5 Blathford, 499; 116 N. Y., 223; 9 B. R. A., 103; 9 West. R., 709; 2 Ca. & P., 252; 8 Phil., 617; 37 N. Y., 477; 2 B. R. A., 405; 77 Ga., 172; 12 Fed. R., 526; 26 Am. R. Reg., N. S., 681; 28 Ibid., 259; 23 S. C., 423.</p> <p>cite: What is admitted an oral demurrer? Code, 163, 165; 2 Duer., 6755 28 s. c., 396; 33 S. C., 217; 34 S. C., 62; 45 S. C., 392; 71 Fed. R., 21; 107 U. S., 591; 115 U. S., 237; 45 N. E. R., 623; 23 S. E. R., 675; 14 Pha. (Pa.), 124; 97 N. Y., 523; 45 Am. St. R., 42; Green. Ev., secs. 418, 428; 6 S. C., 174; 10 S. C., 499; 13 S. C., 478. As to the business of a mercantile agency: 83 N. Y., 34; Townsend on Slander and Libel, 4 ed., 446; 37 N. Y., 480; 116 N. Y., 220548 La. An., No. 12, 104. What words are libellous per se and what not? Townsend on. Libel and Slander, 4 ed., sec. 59; 2 Green, on Ev., 256. Are the zvords in question libellous per se? 21 S. C., 5895 57 Md., 38; 116 N. Y., 219; 4th Bing., 489; 20 S.-R., 7065 23 S. E. R-, 423; 48 N. Y., 561; 4 Hill, 31252 Barb., 632 5 65 Barb., 627; 3 Rich., 250. Special damages cannot be proved unless alleged: 1 N. & McC., 3445 2 Brev., 3095 11 Strob., 375; 31 S. C., 52; 40 S. C., 527; 4th Wind., 540; 57 N. Y., 125.</p>

Before Benet, J., Greenville, March term, 1901. Two cases: (1) J. W. Bishop, and (2) Mary J. and J. W. Bishop against Southern Railway. From judgment for plaintiff, defendant appeals. cites : Signaling statute must be strictly construed: 41 S. C., 86; 47 S. C., 105, 376; 39 S. C., 517:58 S. C., 222; 59 S. C., 254; 24 S. C., 366; 33 S. C., 136; 39 S. C., 514; 57 Fed.

<p>Before Gage, J., Chesterfield, October term, 1900.</p> <p>Action by Iredell Meares and P. B. Manning, receivers of Carolina Interstate Building and Loan Association, against Henry W. Finlayson. From Circuit decree in favor of plaintiffs, defendant appeals.</p> <p>Messrs. Stevenson & Matheson cite: As to applications of payments to insolvent building and loan association: 44 S. C., 128.</p> <p>cites: As to application of usurious interest collected: 2J S. C., m ; 30 S. C., 390; 62 S. C., 175; 58 S. C., 244; 62 S. C., 192. As to right of grantee of mortgaged' property to recover usurious interest paid by his grantor: 47 S. C., 398; 39 S. C., 192; 2 Pom. Eq. Jur., sec. 937; 27 Ency., 949; 29 S. €., 501; 58 S. C., 244; 62 S. C., 175, l65-</p>

Petition in original jurisdiction of this Court by John W. McCullough et al. against W. P. Hicks, county auditor, and H. J. Southern, county treasurer, et al. (oral argument) . (oral argument). party in interest, intervening by permission of the Court, cite: Can this Court enjoin the collection and assessment of a tax? Rev. Stats., secs. 339, 340, 341; 35 6. C., 213, 233, 245; 23 Stat., 81; 23 S. C., 70.

Before Benet, J., Greenville, February, 1901. Indictment against John Turner for murder. From sentence on verdict of guilty, defendant appeals. cite: There being no evidence as to mutual combat, it was error to charge jury as to it: 1 Strob., 479; 6 S. C., 185; 30 S. C., 609; 32 S. C., 201; 36 S. C., 479; 40 S. C., 221. As to manner of drawing jurors: 23 Stat., 317, 867, 319; 11 S. C., 319; 60 Me., 504; 26 Me., 151; 2 Speer, 211.

Before Buchanan, J., Sumter, July, 1901. Action by Joseph F. Baker ágainst Buford A. Hussey and Harry Ryttenberg. The following is the contract which the Court sets up — extracted from testimony of B. A. Hussey: “Q. Then did he tell you anything about any trouble he got into? A. No, sir; after he got better he quit staying at my house, and he said he wanted to go where he would be nearer his work in Sumter.

Before Buchanan, J., Newberry, February, 1900. Action by Coleman Hicks against Southern Railway Co. From judgment for plaintiff, defendant appeals. Held: that upon order for rehearing generally, the whole case is open for argument. cites : Whether an engineer and ñagman are fellow^servants while performing the duties ordinarily assigned them, is a question of law: 51 S. C., 96.