Volume 64 — South Carolina Reports

Before Keugh, J., Greenville, September, 1901. Action by John H. Maxwell against Robert C. Foster, Mrs. Mary B. Foster and National Bank of Greenville. From Circuit decree overruling demurrers of R. C. Foster and National Bank of Greenville, these defendants appeal. cites: The doctrine of estoppel can be asserted by the transferee of a non-negotidble paper: 50 'S. C., 257; 57 S. C., 481; 46 N. Y., 325.

Befor Aldrich, J., Lexington, September, 1899. Held: on the motion for a new trial, that the verdict was against the clear preponderance of the testimony, there being no testimony whatever to establish negligence on the part of the defendant, and should have granted the motion for a new trial.” The latter cites: As to the question of nonsuit: 41 S. C., 20; 34 S. C., 292; 57 S. C., 243.…

Before Hudson, special Judge, Anderson, December, 1900. Foreclosure by Brown, Osborne & Co., in their own. right and as assignees of L. R. Watson, D. N. Greer, and Jos. Held: ‘The illegality of the contract can be considered, although not affirmatively pleaded.’ This defense is allowed not for the sake of the defendant but of the law itself.

Before Gage, J., Darlington, April, 1901. Action by S. P. McNair against Jno. W. Moo-re and Julia C. Moore. The Circuit decree is as follows: “This is an action to subject certain lands to the payment of a judgment recovered by plaintiff against the defendant, J. W. Moore. The legal title to the lands is held by the defendant, Julia C. Moore. The defendants are husband and wife. The testimony was taken by the master and he reported it without any finding.

Before Watts, J., Colleton, November, 1900. Action by Ben' Stewart, administrator of Lisbon Stewart, against Walterbo-ro and Western Railway Co. From order dismissing complaint, plaintiff appeals. cite: Consolidation of the two companies does not dissolve ■either: Rev. S.tat., 1615-1622; 4 Ency., 272, and note 2; 92 U. S., 670; 16 Ind., 172; 98 U. S., 359; 29 Ind., 465; 75 111., 624; 49 Ala., 582; 14 Pet., 46; 120 Mass., 397; 44 S. C., 526.

<p>1. Wnx. — A female over twelve years of age may during her minority make a will disposing of her personal property.</p> <p>2. Conversion. — Where lands of an infant are sold under order of Court, and the funds arising from the sale are directed when due to be paid into Court to await its further order, the property is not thereby converted into personalty. Rule of ascertaining if such funds are converted is one of intention to be gathered from the entire proceeding.</p> <p>Mr. Chief Justice McIver dissents.</p>

<p>1. Prescription — Ways—Harmless Error. — Although the jury were instructed as to the right to use a railway track as a walkway by prescription, which was raised neither by the pleadings nor evidence, still, as there are no reasonable grounds to suppose that the error effected the verdict, the judgment will hot be reversed.</p> <p>2. Pleadings — Negligence—Damages.—Under the act of 1898, 693, a plaintiff may allege without separate statement and prove acts of negligence and of wilful conduct, and recover on both.</p> <p>3. Negligence — Crossings—Signals.—Evidence of failure to give signals required by statute on approaching a crossing is admissible to prove negligence in action against a railroad for accident happening at a point beyond such crossing.</p> <p>4. Signals — Negligence.—Charge that if a railroad of ordinary care and prudence would give warnings at a particular place, then the defendant is required to give warnings, held to mean that defendant was required to give warnings if such was demanded in exercise of ordinary care.</p> <p>5. Railroads — Speed—Railroad Commissioners. — A Municipality has the right to regulate the rate of speed of trains within its limits, and railroad commissioners cannot nullify such ordinance, nor have they exclusive jurisdiction in such matters.</p> <p>6. Ibid. — Ibid.—Presumptions.—Charge as to right that one walking • on a railway track has to act upon the supposition that railroad will not violate ordinance as to rate of speed within the municipality, held to be correct when taken with whole charge. •</p> <p>7. Rícense — Trespasser.—A Railroad owes a greater duty to one on its track by its consent or permission, than to a trespasser.</p>

Before Gary, J., Richland, September, 1901. Action by Charles H. Manson, E. W. Robertson et al. against South Bound R. R. Co. and city of Columbia. The following is the Circuit decree: “This case came before me for hearing on the pleadings, report of the master, with the testimony taken by him and exceptions thereto by the attorney for the South Bound Railroad 'Co., defendant. The land described in the complaint as Sidney Park was acquired by the city of Columbia in 1835.

<p>Proceedings for injunction in the original jurisdiction of this Court by J: R. Young, H. J. Watson and J. T. Wood, on behalf of themselves and other taxpayers of Fountain Inn Graded School, against Dr. H. D. Shaw, J. J. Hitch and J. P. Kellett, as trustees of Fountain Inn Graded School.</p>

Before Gary, J., Abbeville, October, 1899. Action by W. A. Calvert, administrator of D. C. Calvert, against Southern Ry. Co. From Circuit order refusing to sustain removal to 'Circuit Court of the United States, defendant appeals. cited: On question of removal: 53 S. C., 246; 161 U. S., 545; 176 U. S., 659; 170 U. S., 100, 552; Rev. Stat. U. S., secs. 639 et seq.; Con. U. S., art. III., sec. 3; 49 s. c„ 539.

Before Buci-ianan, J., Fairfield, September, 1899. Action by John Wilson, administrator of Noah Y. Wilson, for negligent killing, against Southern Ry. Co. A motion was made in this case to dismiss appeal because appellant had not served tifie “Case” and exceptions in the time prescribed by the rules of Court. Notice of intention to appeal was served on 9th October, 1899, and case containing exceptions not until December 5, 1899.

Before Watts, J., Kershaw, September, 1901. Action by Sami. M. Bass against R. H. Bell. From judgment dismissing complaint, plaintiff appeals. cite: Conveyance zvas tantamount to a mortgage: 55 S. C., 51. Defendant should be held liable for rents of lands and 'damages in cutting timber: 57 S. C., 267; 16 S. C., 469. cites: The rule as to declaring a deed a mortgage: 52 S. C., 54; 54 S. C., 184; 55 S. C., 51; 39 S. E. R., 757.

Before Townsend, J., Spartanburg, January, 1901. Action by Leander C. Bishop et al. against J. R. Tinsley.

<p>Petition in the original jurisdiction of this Court by R. F. McCaslan, sheriff of Greenwood County, for writ of mandamus against Joseph M. Major, county supervisor of Greenwood County.</p>

<p>Before Aldrich, J., Richland, November, 1901.</p> <p>Action by J. W. Powell against T. G. Patrick. From Circuit decree, plaintiff appeals.</p> <p>cites: Purchase of land at tax sale extinguishes mortgage debt: 20 S. C., 555; 55 S. C., 74.</p> <p>cite: Assignment of chattel mortgage does not carry debt: 10 S. C., 224; 27 S. C., 324; 15 Ency., 1 ed., 849; 4 Johns., 42; 47 S. C., 253. Rule of merger where only part of mortgaged property is purchased: 17 S. C., 499.</p>

<p>1. Jurors — Constitution.—The Act, 23 Stat., 320, providing for drawing jurors in counties containing 40,000 inhabitants or more, is an independent act and not in contravention of art. III., sec. 34, Con. 1895.</p> <p>2. Ibid. — Grand Jury — Indictments—Alien.—A true bill found by a grand jury on which there was an alien, no objection being made before pleading to indictment, and fact not being then known to prisoner, is a good indictment, especially when appellant does not show that there were on the panel only twelve jurors.</p>

Before Buchanan, J., Lexington, March, 1902. Action by Eudocia J. Mitchell against John J. Barrs. From order granting motion to dismiss complaint for failure to pay all costs of first action, plaintiff appeals. cite: 24 S. C., 457; 16 S. C., 58; Code, 326. The former cite: Rev. Stat., 2547 to 2570; Code, 324; Rev. Stat., 2327; 2 McC., 244; 1 Hill, 398; Cheves, 26; 2 Bail., 272; 16 S. C., 62; 24 S. C., 459, 539; 22 Fney. P. & P., 1355-

Before Gage, J., Greenwood, 1901. Ex parte J. G. Hilton and Emma H. Moore,’ in re estate of Sarah C. Hilton. Prom Circuit - order affirming order of probate court, Emma H. Moore' appeals. cite: As to commissions: Rev. Stat., 2071. As to the question of disqualification of probate judge: Art. V., sec. 6, Rev. Stat., 2296; 24 Ency., 1 ed., 995, note; 51 S. C., 171; 43 S. C., 57; 2 Hesman on Estop, and Res Judicata, 954; 11 S. C., 319-

Before Buchanan, J., Edgefield, March term, 1902. Indictment against Jas. E. Barden for selling cotton due Josephine Horne for rent under rent contract and raised on her lands. Erom order overruling demurrer to indictment, and refusal of trial Judge to permit defendant to plead to indictment and to be tried by jury, and passing sentence on him, he appeals. cite: As to the constitutionality of sec. 277, Crim.

Before Townsend, J., Spartanburg, May, 1900. Action by C. C. Chase against Spartanburg Ry., Gas and Electric Co. From judgment for defendant, plaintiff appeals. The opinion in this case was filed April 21, 1902, but remittitur stayed on petition for rehearing until

<p>Before BenET, J., Bamberg, February, 1902.</p> <p>Action by F. P. Sease, M. A. Copeland, E. R- Kirkland, B. H. Sease, W. D. Sease, G. P. Seasé and B. E- Jones against E. C. Sease, W. E. Sease and J. M. Dannelly, as assignee of F. M. Bamberg. From Circuit decree, plaintiffs and two first named defendants appeal.</p> <p>cites: As to the construction of the deed: 2 Strob., 102; 1 Read. Cases, R. P., 54; 32 S. C., 223; 17 S. C., 551; 5 Rich. Eq., 44i; 47 S. C., 297; Harp. B., 92; 15 Pick., 104; 25 S. C., 292; 28 S. C., 238; 5 Ency., 1082; 6 Co., 16; McM. Eq., 321; Doug., 321; 6 Rich. Eq., 93; 138 Mass., 205; S Rich. Eq., 426; 36 S. C., 38; x DeS., 353; 2 DeS., 115. Habendum never abridges estate, but may vary, alter and enlarge it: 2 Hill R. P., secs. 44, 112; 39 S. C., 273; 51 S. G, 558; 2 Dev. on Deeds, 836; 35 S. G, 314; 42 S. G, 342. Only children in esse at delivery of deed can take: Freem. on Coten., sec. 110; 2 McC. Ch., 440; 3 Strob. Eq., 74; 27 S. G, 574. Deed takes effect from date of its execution: 8 Eng. Rui. Ca., 577. No estoppel here: 42 S. G, 348; 11 Ency., 424, 4391 13 S. G, 25.</p> <p>cites: Intention is rule of construction: 1 Rich., 161; 39 S. G, 273; 42 .S. G, 343. All parts must be considered: 39 S. G, 161; 18 S. C, 606; 42 S. G, 343. Words should be given their ordinary natural meaning: 42 S. G, 342; 59 S. G, 137; 6 Rich. Eq., 401; Bail. Eq., 7; 1 Strob. Eq., 84; 37 Pa., 9. Office of the premises: 2 Black., 289; 39 S. G, 373; 47 S. G, 296. Office of habendum: 2 Black., 241; 39 S. G, 273; 32 S. G, 223; 51 S. G, 558. Office of warranty: 2 Black., 300; 51 S. G, 558. Fstate granted by premises shall not be taken away by other parts: 4.McC. Ch., 198; 5 Ency., 1 ed., 457. Children used in ordinary sense and its perversion violates all rules of construetion, 6 Coke, 16; 2 Atk., 222; 3 Rich. Eq., 555; 16 S. C., 227; 25 S. C., 362; 36 S. C., 367; Bail. Eq., 7; i Strob. Eq., 84; 6 Rich. Eq., 401; 59 S. C., 137; 28 S. C., 131; 10 S. C., 414; 11 S. C., 346; 16 S. C., 220; 56 S. C., 7; 37 Pa., 9; 59 S. C., 137. Children in esse take with mother: 6 Coke, 16; 28 S. C., 131; 27 S. C., 515. "Her” before "heirs and assigns,” should be construed "their:” 1 DeS., 353; 5 Rich., Eq., 426; 23 S. C., 455; 2 DeS., 115; 138 Mass., 105; 3 Strob., 66; 4 DeS., 209. There is no fee conditional: 3 Strob., 66; 25 S. C., 289; 42 S. C., 342; 5 IncL, 283; 56 Ga., 9; 13 S. E. R., 189; 6 Coke, 16; 37 Pa., 9. As to estoppel: 13 S. €., 29; 42 S. C., 351; 11 Ency., 2 ed., 434; 1 Story Eq. Jur., par. 391; 3 Rand., 563; Big. on Est., 480; 51 Wis., 232; 51 Mo., 449; 18 Wall., 271; 14 Cal., 368; 10 Bair, 531; 29 Me., 539; 6Hill, 616; 109 Mass., 53; 24 Ala., 446; 25 Ver., 273; 8 Conn., 554; 3 Watts, 238; 17 Serg. & R., 383-</p> <p>cites: As to construction of deed: 2 Jarman on1 Wills, 258; 4 Paige, 297; 2 Vernon, 345; 1 Doug., 324; 2 Atk., 220; 3 Strob. Eq., 66; 3 Rich. Eq., 158; 13 Rich. Eq., 42; 1 Rich. Eq., 401. Habendum may explain or abridge grant, but not otherwise: Mart, on Con., 103, 102; 70 Pa. St. R., 237. Deed based on valuable consideration will be upheld in equity: 34 S. C., 401; 32 S. C., 77; Story Eq. Jur., secs. 783, 790. No fee conditional can be cofPstrued to arise from the terms here used: 2 Black., no; 3 Rich. Eq., 280; McM. Eq., 232; Pres. Estates, 440; 4 Kent, 496; 6 S. C., 484; 13 Rich. Eq., 48; Story Eq. Jur., 783, 790; 1 Hill Ch., 282; 2 Hill Ch., 197; 33 S. C., 404; 35 S. C., 33°: 5 R'ich. Eq., 448.</p> <p>cites: To create estate in fee there must be limitation to grantee and his heirs: 61 S. C., 557. This deed within the rule that "children” should be construed "heirs of the body:” 57 S. C., 174; 47 S. C., 294.</p> <p>cites: Intention is rule of construction: 48 S. C., 341; 47 S. C., 288; 51 S. C., 555. Children may be construed a word of limitation: 59 S. C., 161; 9 Rich. Eq., 67. Grant of fee passed whole estate, and he could in habendum pass no other limitations: 57 S. C., 173; Bx parte Yon, 17 S. C.; McAllister v. Tate, 11 Rich. Eq.; Glenn v. Jamison, 48 S. C. As to estoppel: 56 S. C., 476; 48 S. C., 267; 33 S. C., 206; 18 S. €., 493.</p>

Before Klugh, J., Laurens, February, 1901. Action by M. Ferst’s Sons & Co. and J. J. & J. E. Maddox against John H. Powers and John W. Fowler. From order dismissing complaint on demurrer, plaintiffs appeal. cites: Transfer admitted by demurrer to have been made, is equivalent to an assignment: 22 S. C., 108; 23 S. C., 393; 29 S. C., 491; 30 S. C., 192. Assignment may be attacked by any creditor or creditors of assignor: Rev. Stat., 2148.

Before Klugh, J., Laurens, February term, 1901. Action by C. Wil'lis Burton against Laurens Cotton Mill's in magistrate court. From Circuit order affirming judgment of magistrate, defendant appeals. cites: Demand affects merit of the action and evidence thereon is not admissible on appeal: Code, 368. cite: Testimony shozvs demand was made before action: 5 Ency., 280; 27 S. C., 244. Demand not necessary: 5 Ency., 528j, 528k; 5 Wait’s Acts. & Defs., 481; 27 S. C., 243.

Before Benet, J., Hampton, February, 1899. Action by W. M. Peeples against Cordry Mims, and after his death continued by order against his heirs at law. From Circuit order vacating order ¡at previous term, requiring administrator of deceased mortgagor to' be made party defendant, defendants appeal. cite: Order unappealed from is binding: 15 S. C., 535; 11 Rich. Eq., 48.

Before Benet, J., Hampton, October, 1901. Action by H. R. Kittles against J. S. Williams and J. P. Williams & Co. From order overruling demurrer, defendant, J. S. Williams, appeals. cite: Allegations of complaint do not make such cloud as equity will remove: 3 Pom. Eq. Jur., sec. 1399; McM. Eq., 3451 4 S. C., 369; 32 S. C., 503; 41 S. C., 517; 28 S. C., 540; 2 McC. Ch., 23. Question of title is one of law and not equity: 6 Ency., 1 ed., 710; 14 Rich. Eq., 155.

<p>i. Practice — Issues—Supreme Court — Deed—Cloud on Title— Fraud. — The Court having remanded this case to have certain issues tried by jury, and their findings having been certified to this Court, it approves the same, and finds the deed in question to have been given for valuable consideration, properly delivered, intended by grantor to operate as deed, and that grantor was not imposed upon.</p>

<p>Before Gags, J., Greenville, April, 1902.</p> <p>Action by Thomas G. Glenn against George Gerald and other heirs at law of Lucy T. Gerald, and M. G. Conyers. Prom Circuit decree, Warren, Charles, Shuman and Ella Gerald appeal.</p> <p>cites: Services originally rendered gratuitously cannot be afterwards charged for: 1 Bay, 101; 2 Bail., 309. There can be no implied contract of this kind: 3 Strob., 321; 2 Bail., 309; 35 S. C., 551; 34 S. C., 255. Permitting a relative to reside in a family as a friend, cannot afterwards be charged for: Bail. Eq., 334; 37 S. C., 161; 38 S. C., 158. As to liability of estate of deceased for medical claims: 15 Ency., 877; 27 S. C., 500, 525; Con., art. XVII., sec. 9; 15 L. R. A., 717; 7 Ohio N. P., 378; 25 Am. R., 598; 32 Id., 243; 24 Am. St. R., 664.</p> <p>cites: Acceptance of services by deceased requires compensation: 57 S. €., 60, 572; 34 S. C., 256; 17 Ency., 1 ed., 340.</p> <p>cite: Contract being admitted, estate of wife is liable for physicians’ fees: 15 Ency., 1081; note 4; Con. 1895, art XVII., sec. 9; 44 Ohio St., 184; 146 Mass., 281; 15 R. L, 438; 14 R. L, 41.</p>

<p>Before Gary, J., Newberry, February term, 1902.</p> <p>Action- by Wm. Kibler against Southern Railway. From judgment for plaintiff, defendant appeals.</p> <p>cites: Complaint does not allege facts warranting punitive damages, and no proof of actual damages: 5 Enicy. P. & P., 723; 10 S. E. R., 200; io A. E. Ry. Ca., 174; 34 S. C., 67; 3 Thom. Neg., sec. 3291. In action for punitive damages, damages from ordinary negligence are not recoverable: 61 S. C., 170. Twenty-five cents excess fare is not a charge, but a valid regulation: 62 S. C., 251; 3 Thom. Neg., sec. 2608; 25 En'cy., 1 ed., 1104; 5 Ency., 2 ed., 595; 1 Elliott, sec. 200; Hutch, on Carr., sec. 571; 3 Wood, sec. 360; 5 R. R. A., 817; 17 Am. St. R., 818.</p>

<p>Pleadings — Amendments—Cause oe Action — Limitation oe Actions — -Slander.—Amendments permitted to complaint for slander, held to be more definite statement of a cause of -action already stated, and not a statement of a new cause of action after bar by statute.</p>

<p>Before Gage, J., Laurens, February term, 1901.</p> <p>Indictment against Manning F. Garrett. From sentence on verdict, defendant appeals.</p>

<p>Before Klugh, J., Laurens, February, 1901.</p> <p>Action by J. W. Copeland against David T. Copeland. From judgment for defendant, plaintiff appeals.</p>

Before Watts, J., Richland, November, 1901. Action by Levi Metz against B. L. Abney, Jno. P. Thomas and J. S. Verner. Prom order of nonsuit, plaintiff appeals. cites: Nonsuit should not have been granted on failure to prove demand and refusal, (a) because they were alleged and admitted: 16 S. C., 585; (b) defendants denied plaintiff’s right to funds: 9 Ency., 209; and this dispensed with necessity of such proof: 4 Ency. P. & P., 648.

Before Gary, JL, Chester, December, 1901. Action by Susannah Revels against Jefferson- D. Revels and J. R. Abell. The following is the report of the special referee, Mr. J. H. Marion: “This -is an action for the cancellation of certain deeds of conveyance executed by the plaintiff herein to the defendant, Jefferson D. Revels.

Before Townsend, J., York, May, 1901. Action by Samuel Friedheim against Crescent Cotton Mill, W. B. Fewell, Richmond Trust and Safe Deposit Co., as trustee, and Saco & Pettie Machine Shops.

<p>Before Townsend, J., Greenville, September, 1901.</p> <p>Foreclosure by J. Tee Green' against Annie McCarter et al. From order granting reference of all issues on motion at chambers, defendants appeal.</p> <p>cite: Judge had no jurisdiction at chambers to pass the order: Rev. Stat., 2244, and citations. And such order was error: 25 S. C., 79; 34 S. C., 174; Code, 293. Action cannot be maintained against administrator within one year: Rev. Stat., 2322; 9 S. C., 430; 10 Rich. Eq., 494; 23 Stat., 350; 21 Stat, 816; 22 Stat., 195.</p> <p>cite: This Court can review order alone and not oral utterances made by Judge at time: 58 S. C., 170; 56 S. C., no; 55 S. C., 6. Judge had jurisdiction at chambers to hear and dispose of the motion: Rev. Stat, 2244; 46 S. C., 152. And order was within his discretion: 40 S. C., 531; 50 S. C., 514; 34 S. C., 169; 17 Ency. P. & P., 1,000; 32 S. C., 281; 24 S. C., 550; 27 S. C., 428; 33 S. C., 394; 20 S. C., 584. Action can be maintained against executor within one year, if no judgment for deficiency be asked for: 56 S. C., 43; 23 Stat., 349.</p>

Before Benet, J., Laurens, October, 1901. Foreclosure by Hellams & Gray against H. G. Prior. John W. Carlisle, as executor of Simpson Bobo, intervened by petition and was made a party defendant, and in his answer sets up an equitable mortgage against the lands in question, his testator being the assignee of E. M. Cooper, who sold the land originally to Prior, and who had given him bond for title.

Before Watts, J., Richland, fall term, 1901. Action by Duncan & Tompkins against D. M. Richardson on following complaint: “The plaintiffs, complaining of the defendant, allege: “First. That John T. Duncan and Frank G. Tompkins now are and were at the times hereinafter mentioned copartners doing business under the name of Duncan & Tompkins “Second. That heretofore the defendant executed and delivered to R. E. Burriss, a promissory note, a copy of which is as follows: ‘$475.

Before Klugh, J., Anderson, July, 1901. Action by J. S. Fowler, trustee for Annie H. Cunningham, against G. W. Harrison. The trial Judge instructed the jury as follows: “This case presents questions of fact for you to determine.

Before Benet, J., Barnwell, November, 1901. Action by Daniel Carter against Charleston and Western Carolina Ry. Co. Prom judgment of nonsuit, plaintiff appeals. cite: Failure to give statutory signals is evidence of negligence per se, and every citizen is entitled to their protection: 61 S. C., 404; 53 S. C., 124.

<p>Before Townsend, J., Anderson, October term, 1901.</p> <p>Action by James Hoggins against Southern Ry. From judgment for plaintiff, defendant appeals.</p> <p>cites: As to powers of conductors to make arrests: 22 Stat., 776; 2 N. & McC., 475 ; 17 S. C., 58; 16 S. C., 486; Crim. Code, 1718; Townsend’s Code, 2174.</p> <p>cite: Power of conductor to arrest without warrant is conüned to time during which breach of the peace is being committed: Rev. 'Stat, 1717, 1718; 2 Black (Cooley ed.), book 4, 292, 1 Id., 355.</p>

Before Gary, J., Fairfield, September term, 1901. Action by Addie J. Williford against Aetna Life Insurance Co. From judgment on verdict for plaintiff, defendant appeals. The former cite: Instructions should state the law correctly and harmoniously: 11 Fncy. P. & P., 145, 148. Courts commend clause against intemperance: 2 Fncy., 45, 47; as to its construction: 123 Ind., 384; 123 U. S., 739. Verdict against weight of evidence should be set aside: 14 Ency.

Before Benet, J., Barnwell, November, 1901. Action by F. W. Dunton against Emma H. Harper et al. From order permitting plaintiff to file security for costs after expiration of time fixed in order providing same, defendants appeal. The following is the security permitted filed: “ (Case stated.) We acknowledge ourselves liable for the costs of this case, and consent that if the plaintiff fail to recover, the defendant may have execution for his costs against us.

<p>Before Krugh, J., Beaufort, January term, 1902.</p> <p>Indictment against Sam Howard for burglary. From sentence on verdict of guilty, defendant appeals.</p> <p>cites: Defendant was joint occupant of dwelling with prosecutor, and could not he convicted of burglary: 1 Bish. Cr. E., sec. 577; 2 Id., sec. 97, note; 2 Hale P. C., 554; 5 Ency., 2 ed., 51, 67; 7 Rich., 129. Jury trying defendant was illegal: 62 S. C., 247, 251; and jurors not proper arbiters: 2 Speer, 216; 1 Rich., 188; 7 Rich., 338. If defect appear on record it is good ground in arrest of judgment: 36 S. C., 382; 2 Speer, 211; 1 Rich., 188; 15 Rich., 42, 471; 11 S. C., 321. Verdiet by jury illegally drawn cannot stand: 15 Rich., 47; 2 Rich., 534; 54 S. C., 146; 13 S. C., 366; 15 S. C., 42; Freem. on Judgts., sec. 120; 17 S. C., 370.</p>

Before • — •, J., Anderson, February term, 1902. Indictment against Walter Lark for murder. From sentence on verdict of manslaughter, defendant appeals. cites: As to the use of the disjunctive “or” in describing the weapon: Sec. 18, art. I., Con. 1895; 33 S. C., hi; 2 McC., 377; 1 Bail., 144; State v. O’Neal, 24 L. R. A., Clark’s Crim. Prac., 109, 170. cites: Remedy is by demurrer and not motion in arrest of judgment for defects apparent on face of indictment: Crim.

Before Townsend, J., Pickens, January, 1902. Action by Richard Lenhardt against Wm. J. Ponder, in his own right and as executor of Nancy E. Ponder and her children. The following is the Circuit decree: “This is an action -to set aside a deed made to Nancy E-Ponder by W. J. Ponder, on the 22d day of January, 1895, for a tract of land containing 370 acres, and for the sale of the said land to pay the debts of the said W. J. Ponder.

Before Hudson, special Judge, Barnwell, May, 1901. Action by Jennie Brown against Carolina Midland Ry. Co. From order granting nonsuit, plaintiff appeals. cite: The facts proved showing the probable cause of the ñre to be the defective stove pipe, &c., make up a case for jury: 56 S. C., 398; 12 Am. R., 659; 13 Am.

<p>1. Venue — Magistrate.—Where a party to a cause in a magistrate court files with him an affidavit stating the grounds why he thinks he cannot get a fair trial before him, under 22 Stat., 12, it is mandatory on magistrate to grant change of venue.</p> <p>2. Practice — Ibid.—Evidence.—The proper practice is for magistrate to take testimony of witnesses in writing and have it signed by them at trial; but failure to do so under all circumstances may not cause judgment to he set aside.</p>

Petition by J. D. Holstein and James E. Hart in original jurisdiction of this Court, for injunction against the County Board of Commissioners of Edgefield County, in the following words: “First.

<p>Before Watts, J., Colleton, November, 1900.</p> <p>Action by Walterboro and Western Railway Co. against Hampton and Branchville Railroad and Lumber Co. From order granting nonsuit plaintiff appeals.</p> <p>cite: Defendant waived assent to contract by voluntarily operating under it: 11 Ency., 2 ed., 446.</p> <p>cites: Refusal of permission to introduce further evidence after order of nonsuit is discretionary with trial Judge: 2 S. C., 247; 2 Bail., 175; 1 Hill, 404. Defendant may set up as many separate defenses as he desires, and pleading one cannot eliminate another: Code, 171; 5 S. C., 354.</p>

Before Gage, J., Abbeville, February, 1902. Action by Thomas Sloan against Seaboard and Roanoke Railway Co., Raleigh and Gaston Railway Co., as lessees of the Georgia, Carolina and Northern Railway Co., and the latter company. From order sustaining in part demurrer, both parties appeal. cites : Error to sustain demurrer to part of complaint: 44 S. C., 143; 57 S. C., 502.

Before Watts, J., Colleton, November, 1900. Action by Julia Williams and J. H. Williams against J. R., B. F., J. W. and J. W. Halford, Harriett Turner, Laura Abbott and John Block.

Before Krugh, J., Spartanburg, March, 1901. Petition by Jno. C. P. Jeter in case of Wm. T. Stokes, Jr., against Ludia C. and J. Coleman Jeter. From order dissolving temporary injunction, petitioner appeals. cite: Constitution of 1895 applies to homesteads set off prior to its adoption. Con. 1895, art. III., sec. 28; 15 Ency., 610, 611, 615, 528, 532; 41 S. C., 109; 21 S. C., 378; 57 S. C., 526; 22 Stat., 190; 21 S. C., 381.

Before Townsend, J., Greenwood, August term, 1901. Action by Janie Wideman, by her guardian ad litem, J. W. McCaslan, against George Patton. Prom judgment for plaintiff in magistrate court, defendant appeals, and from Circuit judgment, plaintiff appeals. cites : Court will take judicial notice of its own records: ij Ency., 2 ed., 925. Defendant cannot both answer and demur: Code, 164. Objection to capacity to sue must be by demurrer: 21 S. C., 27.

Before Watts, J., Charleston, September, 1900. Action by Ella G. Steinmeyer and George E. Steinmeyer against Carrie A. E. Steinmeyer and The Germania Eire Insurance Company. From Circuit decree, the plaintiffs and defendant company appeal. cite: Insured is quasi trustee for plaintiff, and public policy requires proceeds of policy to be applied, ex aequo et bono, to them: 23 S. C., 129; 31 S. C., 118; 50 S. C., 532; 52 S. C., 315; 56 S. C., 357; 50 S. C., 534.

<p>Before Buchanan, J., Lexington, February, 1902.</p> <p>Action by James C. Fort against Southern Railway. From judgment of nonsuit, plaintiff appeals.</p> <p>cite: 14 S. E. R., 943 5 3i S. E. R., 224; 35 S. E. R., 512529 S. E. R., 905; 40 S. E. R., 669.</p> <p>The latter cites: 16 Ency., 392-5; 54 S. C., 505; 7 Ency., 2 ed., 443; 61 S. C., 188; 62 S. C., 331; Hutch, on Car., sec. 603; 61 S. C., 1, 170; 62 S. C, 1; 32 L. R. A., 543.</p>

Before Gary, J., Richland, October, 1901. Motion by Mamet Murchison, executrix in same, against Minnie H. Miller, Robert N. Senn, Wm. H. Ryles and John 'S. Verner,. receiver, for writ of assistance against Minnie H. Miller and her husband, Jasper Miller. From order commanding writ to issue, Jasper Miller and wife appeal. cite: Judge at chambers has no jurisdiction of proceedings for contempt: 49- S. C., 226; Code, 304, 322; 47 S. C., 31; 4 Ency.

<p>Costs. — On Appeal of three cases at law on one “Case” entitled in the three actions, the prevailing party may tax appeal costs for “case and exceptions” and “argument” in each case.</p>

<p>Costs — New Promise — PeEadings.—A note executed in 1882, and renewed by payments at intervals up to 1892, is a liquidated contract, under terms of 21 Stat., 30, and on suit on such note, prevailing party has right to tax costs under fee bill of force prior to act of 1892, and allegation of new promise by payment since 1892, is only allegation of promise to pay contract made by payment in 1892. Allegation of payment is allegation of new promise.</p>

Before Keugh, J., Greenville, September, 1901. Action by Amy S. Ewbank against Herbert B. and Arthur L. Ewbank et al., and from Circuit decree Arthur E. Ewbank appeals, and Herbert B. Ewbank is respondent. cite: Proceeds of lien property must be applied to lien: 6 S. C., 74; 20 S. C., 542; 32 S. C., 280. As to removal of lien of mortgage by lapse of time: 10 Rich.

<p>1. Injunction— Streets— Damages — Greenville—Condemnation.— Complaint does not state facts sufficient to warrant enjoining a proceeding by arbitrators to assess damages to abutting lot owner for altering grade of street in city of Greenville, under 19 Stat, 306, and 20 St., 1372.</p> <p>2. Ibid. — Estoppel—Streets—Condemnation.—City appointing arbitrator to assess damages to lot owner for altering grade of street, under provisions of its charter, is estopped from bringing an action to enjoin such proceeding after award, although it denied liability and acted without waiver of its rights. If liability be denied, city must bring action to enjoin proceeding before submission to arbitrators.</p> <p>3. Ibid. — Reference—Damages.—Upon dissolution of injunction it is proper to refer the case to ascertain amount of damages recoverable under injunction bond.</p>

<p>Before Klugh, J., Greenville, July term, 1901.</p> <p>Statutory proceeding for assessment of damages by W. E. Mauldin against City Council of Greenville. From judgment on trial of appeal from arbitrators’ assessment, defendant appeals on following exceptions:</p> <p>.“1. Error in ordering the said case to trial after the defendant had given notice of intention to appeal from the order of his Honor dissolving the temporary injunction in the case of City Council of Greenville v. W. E. Mauldin, being a case to enjoin the plaintiff from a further prosecution of this proceeding until its appeal in the case of City Council against Mauldin could be heard and determined.</p> <p>“2. Error in not sustaining defendant’s motion to dismiss plaintiff’s appeal upon the ground that it was too general and indefinite.</p> <p>“3. Error in allowing the witness, W. E. Mauldin, to testify that G. E. Norman was city engineer at the time the said witness alleges he obtained the grade of the sidewalk for the purpose of erecting the building at the corner of Main and Washington streets, and in allowing the said witness to testify that the said G. L. Norman fixed the grade for the plaintiff at that time. It being respectfully submitted that the records of the city council were the best evidence of this fact, and there was no testimony going to show that the said G. G. Norman had authority from the city council to establish grades.</p> <p>“4. Error in permitting plaintiff’s counsel to ask the witness, W. L. Mauldin, the following questions, over objection of the defendant: ‘What did it cost you to place your property in the same relative position to the street after the change of grade that it was before the grade was changed ?’ And allowing witness, over objection of defendant’s counsel, to answer the question. I't being respectfully submitted that the measure of damages in this case was not the expense which the plaintiff incurred in lowering the floors of his building, but the difference in the market value of the property before and after the change on the grade.</p> <p>“5. Error in allowing, over the objection of defendant’s counsel, plaintiff’s counsel to ask the said witness the following question: ‘Tell the jury what you have paid, actually, in lowering the floors that you have lowered?’ It being respectfully submitted that the city council is not responsible to the plaintiff for the money that he paid in actually lowering the floors, even though it be responsible in damages at all. The true test being the difference in the market value of the property before and after the alleged alteration.</p> <p>“6. Error in allowing the witness, W. E. Mauldin, to testify as to the contents of a written protest which he claims to have filed with the defendant, before the grade was changed. It being respectfully submitted that the instrument itself is the best evidence of its contents, and its absence was not satisfactorily accounted for. In this connection, error in not striking out the evidence of the witness as to the contents of said protest.</p> <p>“7. Error in allowing the witness, P. T. Hayne, over the objection of defendant’s counsel, to testify that ‘My idea is that the property was damaged in value just whatever it would cost to bring that property back on the grade.’ It being respectfully submitted that the defendant is not bound by the idea of the witness as to the measure of damages, although such idea be consistent with the rules of law, which was not the fact in this case.</p> <p>“8. Error in not striking out the testimony of the said witness, P. T. Hayne, as to the property of Mrs. E. M. Cleveland, and the effect of the alteration of the grade upon the said property. The same being mere hearsay and otherwise irrelevant.</p> <p>“9. Error in allowing the following question, over objection of defendant’s counsel, to be propounded to the witness, R. Mays Cleveland: ‘Suppose you had a tenant in there, and after the sidewalk had been lowered you lost the tenant, would it be easier to get a new tenant after it was cut down as before it was cut down, getting the same rent?’ Said question being entirely hypothetical, and otherwise incompetent. The true measure of damage being the difference in the market value of the property before and after the alteration.</p> <p>“10. Error in allowing the witness, J. H. Haynes, to testify as to what he charged the plaintiff for lowering the floors. It being respectfully submitted that the defendant cannot be held responsible for such charge.</p> <p>“11. Error in not ruling out the following question propounded to the witness, G. B. 'Carlisle, defendant’s attorneys having objected to the same: ‘Suppose that Gov. Mauldin had not made those new steps, but had left it just like it was, and if you had to get boxes to get up in there, would you have stayed there?’ The said testimony being entirely irrelevant, and its only effect being to confuse and mislead the jury.</p> <p>“12. Error in holding competent, over objection of defendant’s counsel, the following question, which was propounded the witness, G. B. Carlisle: ‘Would the rental value have been as high if it had not been fixed with the new steps ?’ It being respectfully submitted that the said quesfion was entirely incompetent and not responsive to the question of damages, as contemplated by the charter under which this proceeding was instituted.</p> <p>“13. Error in allowing the witness, Henry Briggs, to testify as to who was city engineer at a certain time in the 'history of the city. It being respectfully submitted that this was a matter of record, and the record should have been introduced or its absence satisfactorily explained.</p> <p>“14. Error in holding competent, after objection on the part of defendant’s counsel, the following question propounded to the witness, T. W. Barr: ‘Would it be an advantage for the city to give you a grade and you build your 'property according to that grade, and the city should decide to change the grade and come and cut it down two feet, would that be an'advantage or disadvantage?’ It being .respectfully submitted that the said question had no relevancy to the issue of damages contemplated by the charter, and was otherwise incompetent.</p> <p>“15. Error in ruling out proof of an ordinance of the city of Greenville defining the duties of the city engineer. The said ordinance having been ratified on the 7th day of December, 1893, and being the only ordinance vesting the city engineer with power to fix grades.</p> <p>“16. Error in ruling out an ordinance providing for a special assessment to pay for street improvements, ratified on the 7th day of February, 1893, being the ordinance under which the grade in front of plaintiff’s property was lowered. In this connection, error in ruling that whatever part of the ordinance had been declared unconstitutional could not go in evidence now, for the reasons: (a) At the time the grade of this street was lowered, the said act and ordinance had not been declared unconstitutional, but, on the contrary, had been declared constitutional, in so far as they affected sidewalks, (b) The fact that this decision was subsequently overruled by this Court, should not operate to the prejudice of the defendant or subject it to damage, when -at the time the said work was done it was acting in obedience to legislative authority, which declared it the duty of this defendant to grade the said sidewalk, and by virtue of a decision of this Court, which declared the said act constitutional, in so far as it affected sidewalks, and that the city council had the right to charge and collect as against the abutting property owners two-thirds of the costs of the said improvements.</p> <p>“17. Error in charging the jury that the charter of the city of Greenville provides ‘that where a person’s property is injured by lowering the grade about his property, he shall be compensated for it.’ It being respectfully submitted that there is no such provision in the said charter, and the work in question was not done under the charter but under act of 1891. I</p> <p>“18. Error in charging the jury, ‘If you think that the lowering of the grade from what it formerly was has left his property in such condition as to leave it less valuable than it was before, then he has been deprived of, either in the loss of tenants or diminution in the value of property, or the expense that he has been put to will be the amount of compensation which he will be entitled to have awarded him.’ (a) It appearing in this case that the work was done under legislative authority, in good faith and under direct sanction of a decision of this Court, which held that the city council had the right so to do, and which act not only made no provision as to damages, but allowed the defendant to assess two-thirds of the costs of the said improvements upon the abutting property owners, thereby recognizing especial benefit to the said property. He should have charged that the defendant could not be held responsible for damages by reason of the said work under these conditions, (b) Even if the defendant was liable in damages, it is respectfully submitted that the true measure of damages in such case is the difference in the market value of the property before and after the said alteration, (c) He should have submitted to the jury the question as to whether or not the alteration-and repairs of the street in question was of such a character as would entitle the property owner to compensation.</p> <p>“19. Error in not holding that this work was done under act of 1891 (see vol. 20, Statutes at Large, page 1372), and not under the charter, which act makes no provision for damages, and plaintiff, therefore, was not entitled to any in this proceeding.”</p> <p>The latter cite: Against motion to dismiss appeal: Code, 11; 4 S.C., 23; 13 S. C., 403; 2 Ency. P. & P., 78, 136; 136 N. Y., 500; 57 S. C., 317; 58 S. C., 560.</p> <p>cites: Power to fix grade of street is public power and cannot be delegated to city engineer: 1 Dill. Mun. Corp., secs. 96, 443, and notes to 779; 16 S. E. R., 867. It is incumbent on plaintiff to show that grade zvas given by authority of city council: 100 Ind., 545; 69 Ia., 541; 44 Coms., 24; 32 Mich., 164; 2 Dill. Mun. Corp., note to 990. As to measure of damages: 16 S. E. R., 895; 30 Am. St. R., 845. Plaintiff cannot complain as to the roadway, as he did not protest: 14 S. C., 290. Plaintiff must abide by law in force when grade was altered: 12 L. R. A., 856; 15 Ency., 1046; 21 S. C., 572; 25 S. C., 280. Notice of appeal from arbitrators should have stated grounds: 38 S. C., 308.</p> <p>cite: Appeal should be dismissed: 22 Stat., 7; 2 Ency. P. & P., 15, 16, 17, 19, 22; 6 Cranch, 314; 7 Wall., 506; 14 S. C., 571; 32 S. C., 1; 42 S. C., 431. Proper to refuse to continue case because of notice of appeal from order dissolving injunction: High on Inj., sec. 893; 7 Johns. Ch., 295; 132 U. S., 14. Plaintiff’s appeal from arbitrators was not too general: 43 S. C., 99. As to proof of authority of one acting as an officer: 1 Green. Ev., 392. As to measure of damages: Lewis Em. Dom., sec. 478. City is liable for damages resulting from change in grade of street: 53 S. C., 285, 575, 88. Judge was not in error in charging as to element of damages: Lewis on Em. Dom., 494; 10 Ency. P. & P., 1165; 5 L. R. A., 775; 125 U. S., 161. Plaintiff's right to recover did not depend on whether he had obtained the correct street grade: 32 S. C., 172; 34 S. C., 16; 42 S. C., 121. Objection not ruled is not ground for exception: 23 S. C., 75; 53 S. C., 126.</p>

<p>Before Klugh, J., Greenville, August, 1901.</p> <p>Motion • for mandamus in W. C. Gibson against City Council of Greenville. Erom order granting motion, defendant appeals.</p> <p>cites: No sufficient ground was shown for the order: 13 Ency. P. & P., 674, 675, 676; 16 S. C., 533; 15 S. C., 330; 19 Ency., 2 ed., 725, and note on 727; 38 S. C., 308. Writ could only direct acts of official duty: 6 S. C., 126. Charter only provides for ascertaining amount of compensation: 33 S.. C., 483; Rev. Stat., 1550, 1551, 1743, 1744; 38 S. C., 308.</p> <p>cite: Liability of city has been established: 53 S. C., 575. Mandamus will lie here: 46 S. C., 289.</p>

<p>Bankruptcy- — Insolvency—Preferences.—The four elements that constitute an illegal preference, under- the bankrupt act of 1898, are: 1. The transfer must be made from an insolvent person to a creditor. 2.'The effect of such transfer must be to enable any one of his creditors, to obtain a greater percentage of his debt than any other of such creditors of the same class. 3. The person receiving it or to be benefited thereby, or his agent acting therein, must have had reasonable cause to believe that it was intended thereby to give a preference. 4. The transfer must have been made within four months before filing a petition in bankruptcy, or after filing the petition and before the adjudication. The evidence here establishes the first, second and fourth, but not the third, and payment held not a preference.</p>

Petition by D. W. Robinson, Esq., for disbarment of John T. Duncan, Esq., in the original jurisdiction of this Court: “D. W. Robinson, an attorney at law in State of South Carolina, would respectfully show to the honorable Supreme Court of the State of South Carolina, by way of information and petition: “1. That petitioner is an attorney at law duly licensed by this honorable Court, resident and practising in the State of South Carolina. “2.

<p>Before Aldrich, J., Sumter, November, 1901.</p> <p>Action by Mary A. Epperson against Charles W. Stansill. From judgment setting aside verdict in favor of defendant, defendant appeals.</p> <p>cite: Heir may tack his possession to that of ancestor: 26 S. C., 219; 29 S. C., 380. Request embodying an erroneous principle should not be read before the jury: 51 S. C., 312. As to construction of Judge’s charge: 45 S. C., 156; 22 S. C., 165, 191; 54 S. C., 90.</p> <p>cite: Misdirecting jury is good ground for new trial: 16 Ency., 1 ed., 503, 504, 505, 507. The fourth request of defendant is not applicable to this case: 48 S. C., 488. There can, be no adverse holding by one tenant in common until ouster: 26 S. C., 179, 244; 38 S. C., 394. .</p>

<p>Before Kdugh, J., Spartanburg, March, 1901.</p> <p>Action by Eliza Saunders et al. against Amanda Strobel et al. Prom Circuit decree, defendant, Amanda Strobel, appeals.</p> <p>cite: As to the homestead question: 2 S. C., 227, 229, 311; 13 S. C., 490; 29 S. C., 508; Rev. Stat., 2129; 22 S. C., 312; 45 S. C., 56.</p> <p>cite: Law before Constitution of 1895 same as now: 20 S. C., 249. The homestead is subject of partition: 20 S. C., 248; 54 S. C., 213; Rev. Stat., 1948, 2129.</p>

<p>Negligence — Tort—Pleading—Amendment.—A Complaint alleging a wilful tort cannot be so amended as to allege also a cause of action based on mere negligence. The act, 22 Stat., 693, construed and it's effect on rules of pleading stated.</p>

Before Benet, J., Hampton, October, 1901. Action by W. H. Peeples against T. E. Ulmer et al. From order setting aside judgment, plaintiff appeals. cites: Records of Court are notice to parties interested: 3 Strob. Eq., 42; 4 Rich. Eq., 60, 92; 9 Rich. Eq., 19; 10 Rich. Eq., 384; 11 Rich. Eq., 565; 14 Rich. Eq., 134; 15 S. C., 170; Plarp. Eq., 257.

<p>Before Dantzler, J., Florence, March, 1902.</p> <p>Action by P. A. Person against W. B. Fort, John Fort, Addison S. Fort, Matilda I. Parker and William Bryant. From Circuit decree, defendant, William Bryant, appeals.</p> <p>cite: Is defendant barred by laches or statute? 34 S.C., 259; 36 S. C., 322; 27 Ency., 100-105, and notes; Flinton Trusts, secs. 323, 164, 297; 17 S. C., 489; 2 Rich., Eq., 425. Trustee can only use property as directed: 27 Ency., 134. Parties in possession are liable for rental value: 53 S. C., 350. ‘ They cannot hold under statute of distributions: 2 Rich. Eq., 412.</p> <p>cite: Upon payment of debts deed became absolute: 11 S. C., 294; 4 Rich. Eq., 378; 3 Strob. Eq., 371; 52 S. C., 345; 2 Story Eq., 331; 1 Sug. on Powers, 183. Bryant has lost all rights, if he ever had any, by laches: 27 Ency., 104; 96 N. C., 122; Pom. Eq. Jur., sec. 418; Story Eq. Jur., 6 ed., sec. 529; 2 Rich. Eq., 259, 425; 62 S. C., 73. Different kinds of trusts: Perry on Trusts, secs. 24, 25, 30; 2 Rich. Eq., 259. Statute of limitations apply to implied trusts: 2 Rich. Eq., 259; 15 S. C., 169. Where there is apparent laches, reasons for delay must be alleged: 7 How., 819; 2 Wall., 95; 17 Wall., 78; 21 Wall., 178; 99 U. S., 201; 106 U. S., 391; 124 U. S., 183; 69 U. S., 87; 88 U. S., 178; 1 How., 161. Title by adverse holding will be quieted at instance of holder: 17 Ency. P. & P., 301; 50 S. C., 293; 59 S. C., 440.</p>

Before Buchanan, J., Darlington, November, 1901. Action by J. R. Watford against J. K. Windham & Co. From order striking out parts of defendants’ answer, they appeal. cites: Code, 143, does not take away general equity jurisdiction, but is only cumulative to it: 44 S. C., 451; 23 S. C., 515; 31 S. C., 299; 42 S. C., 35. Want of consideration may be pleaded: 58 S. C., 418. cite: Mere denial of ownership zvithout setting forth facts is legal conclusion: 20 Ency. P. & P., 40.

<p>Before Bsnet, J., Barnwell, November, 1901.</p> <p>Action by Essie Myers, by her guardian, T. S. Myers, against Southern Railway. Erom judgment for plaintiff, defendant appeals.</p> <p>cite: The law of exemplary damages — (i) Text Books: Sedg. on Meas, of Dam., 4 ed., 35; 60 S. C., 67; 1 Suth. on Dam., 716, 724; 12 Ency., 2 ed., 13. (2) Bnglish cases: 2 Wilson, 205, 244; 3 Wilson, 18; 5 Taunt, 442; 2 Stark, 317. (3) South Carolina cases: 1 Bay, 6; 2 Bay, 416; 4 Rich., 573; 8 Rich., 144; 9 Rich., 423; 11 Rich., 283, 649; 12 Rich., 254; Dud., 92; 14 Rich., 237; 3 S. C., 580; 52 S. C., 344; 60 S. C., 48, 67; 57 S. C., 228; 61 S. C., 170; 35 S. C., 475, 493; 37 s. C., 194. Pleading under Act of^ 1898: 57 S. C., 254; 60 S. C., 48; 61 S. C., 170. Question of punitive damages should not have been submitted to jury: 3 S. C., 580.</p> <p>cite: Question of technical ejection was properly submitted to the jury, and if act of conductor was wilful or wanton, they could find punitive damages: 86 Ga., 641.</p>

Before Hudson, special Judge, Sumter, December, 1901. Action by Geo. W. Murray against Northwestern Railroad Company. Held: as a conclusion of law, that the contract between plaintiff and defendant was such a contract as a court of equity cannot enforce.’ And his Honor should have overruled said exception and sustained the master’s report in that respect, for that said contract is one in perpetuity, requiring the constant supervision of the Court, is…

<p>The petition for rehearing in.this case was disposed of by the Court by the following order, filed</p>

<p>Municipal Bonds — Constitution—State Debt. — In estimating the fifteen per cent, limitation prescribed by the Constitution of 189s beyond which the indebtedness of a municipality or political division may not be incurred, the State debt is not to be included.</p>

Before Townsend, J., Lancaster, March term, 1901. Action by Mrs. Lottie C. Ringstaff, administratrix, against Lancaster and Chester Railway Company. Prom order of nonsuit, plaintiff appeals. cites: Nonsuit should not be granted if there be any evidence to support plaintiff's claim: 7 S. C., 142; 44 S. C., 315; 50 S. C., 25, 548; 1 Strob., 4; 46 S. C., 104. Negligence is for jury: 59 S. C. 429; 52 S. C., 323; 58 S. C., 70.

Before Hudson, special Judge, Barnwell. Action by' Susan T. Elkins, administratrix of Marion Varn, against South Carolina and Georgia Railroad Company. Erom judgment sustaining demurrer, plaintiff appeals. cite: Complaint showing contributory negligence on its face will be dismissed on demurrer: 58 S. C., 491; 42 S. C., 313. At age of fourteen a minor is capable of contributing to his own injury: 16 Ency., 2 ed., 267; 88 Penn.

<p>1. Physicians — Code 1902, Sec. 1112 — S. C. Medicae CoeeEge. — A student of the South Carolina Medical College who has a diploma on a three years’ course of study is not entitled, under the amendatory Act of 1901, Code of 1902, Sec. 1112, requiring State board of medical examiners to give certificate to practice to graduate of four years’ course, to receive of the board such certificate.</p> <p>2. Mandamus — Discretion.—This Court in its discretion will refuse writ of mandamus when the effect of granting it would be to violate the intention of an act of the Legislature.</p> <p>3. Statutes — Constitution.—A party invoking the provisions of an act cannot ask that it be declared unconstitutional.</p> <p>4. Rehearing refused.</p>

<p>Before Krugh, J., Sumter, June term, 1902.</p> <p>Indictment against Nelson J. Shaw for murder. From judgment on verdict.of guilty with recommendation to mercy, defendant appeals.</p> <p>cite; This Court has pozver to grant a nezv trial zvhen there is no evidence to support the verdict: 45 S. C., 483; 64 S. C., 344. Moderate chastisement is excusable homicide; immoderate and excessive chastisement is manslaughter: 2 Bish. Crim. R., secs. 685 and 690; 3 Green. Ev., 134; 2 Whar. Crim. Raw, sec. 1014; 1 Russell on Crimes, 670, 763; 2 Bish. Cr. R., secs. 683, 684, 685.</p>

<p>Before Gage, J., Horry, October term, 1900.</p> <p>Action by Solomon G. Lewis and William H. Smalls against Quincy Hinson et al. From judgment of nonsuit plaintiffs appeal.</p> <p>When this case was called for trial on December 1, 1902, respondents made a motion to dismiss the appeal, on the ground that a previous order of this Court required 1 the amended “Case” to be served in full time for hearing at the November term, beginning November 25th, when it was only served November 28th. Motion refused.</p> <p>cites: What are tenants in common? 1 Wash. Real. Prop., 685. As to improper joinder of plaintiffs: Code, 138, 139, 140; Pomeroy, secs. 196, 197, 198, 220; Wait Prac., 110, 114; 24 S. C., 39; 26 S. C., 478.</p> <p>cite: The one fee here cannot be merged into the other: 30 S. C., 302; 47 S. C., 305; 57 S. C., 187. And these plaintiffs cannot sue together, and this appears from the proof: Code, 165, 168; 18 S. C., 584; 1 Wait Prac., 119; Code, 144; 17 S. C., 163; 16 S. C., 220; 1 Black., 180. Nonsuit is proper in absence of all testimony on material issues: 25 S. C., 24; 5 Rich., 541; 8 S. C., 258; 48 S. C., 472; 2 Bay, 457; 48 S. C., 394.</p>