Volume 66 — South Carolina Reports

Action by W. W. Bruce, as intendant, and Wm. K. Thomas and J. A. Hancock, as wardens of the town of Carlisle, against J. G. Rice, W. B. May, K. D. Bailey, J. D. Fleming and W. F. Bates. From Circuit orders all defendants, except Bates, appeal. cites: Complaint does not state facts to warrant injunction: Code Proc., 240; 27 S. C., 408; 34 S. C., 62; 1 High on Inj., sec. 491; 35 S. C., 307; 51 S. C., 387; Code Proc., 424-443.

<p>1. Jury — Railroads—Passenger—Licenses.—It is a question for the jury whether one standing sixteen feet from the baggage car at waiting room was injured by negligence of railroad in handling trunks, and it is immaterial whether such one were at the time a licensee or passenger, and if that were the issue, it is also a question of fact.</p> <p>2. Railroads — Station House — Passenger —Trespasser—NegliGENCE. — ^Duty of railroad to person in its station house or on its premises intending to become a passenger, or on its premises where he had no right to be, properly stated.</p>

<p>Action by J. H. Lynch against Spartan Mills. From an order requiring, plaintiff to amend his complaint, he appeals.</p> <p>cite: 22 Stat, 693; 61 S. C., 170;’63 S. C., 363; 64 S. C., 495.</p> <p>cites: Code..Proc., 11; 42 S. C., 547; 52 S. C., 587.</p>

<p>Action by Geo. S. Holmes, agent, against W. S. Weinheimer. From judgment for defendant, plaintiff appeals.</p> <p>cite: As to validity of tax deeds: 31 S. C., 553; 2 Bay., 219; 10 S. C., 125; 50 S. C., 159; Black on Tax Titles, 535; 2 Curtis C. C., 139; 15 111., 7; 25 Ency., 1 ed., 717; Rev. Stat., 220; 2 Bail., 600; 20 Stat., 1261; Dwarris St., 178; 23 Ency., 1 ed., 297. Proceedings of Mount Pleasant are void: 20 St., 126; 19 St., 863; Gen. St., 283; 31 S. C., 567; 15 S. C., 158.- If charter of Mount Pleasant makes its taxes first lien, it is unconstitutional: Con., art. III., sec. 32; 51 S. C., 5; 59 S. C., 110; 60 S. C., 503; 61 S. C., 211; 62 S. C., 250; 51 S. C., 126.</p> <p>cite: The charter of Mount Pleasant is not unconstitutional: Con., art. III., sec. 32; art. VIII., sec. 1. As to the pozver of the town of Mount Pleasant to sell the property and the lien of its taxes: 16 S. C., 53; Con., art. X., sec. 2; art. VIII., sec. 6; 20 Stat., 1263-1; 37 S. C., 100; 3 Pet., 109; 2 Hill, 575.</p>

Indictment against Tom Johnson for murder. From verdict of guilty and sentence, defendant appeals on the following exceptions: “1. Because his Honor, the presiding Judge, erred in not arresting the judgment and granting a new trial to the defendant when it appeared that the defendant was convicted by a jury not drawn according to law. 1.

<p>Action by Standard Oil Co. against city of Spartanburg. From judgment for defendant, plaintiff appealed.</p> <p>cite: Ordinance is discriminative in its classification: 21 Ency., 784, 80S, 804. There is no valid reason for the classification: 59 S. C., 396. As to estoppel: 42 S. C., 351; 184 U. S., 450; 94 U. S-, 267. '</p> <p>cite: As to the classification: 59 S. C., 396. As to estoppel of plaintiff: Big. on Estp., 652; 51 Ala., 507; 29 Mich., 289; 77' 111., 296; 41 S. C., 80; 19 S. C., 208; 42 S. C., 348; 57 S. C., 108.</p>

Action by Mose Watson, administrator of Eugene Watson, against Southern Railway. From judgment for defendant, plaintiff appeals. The former cites: Whether one is a trespasser_, is a mixed question: 29 S. C., 583; 96 U. S., 234; 55 S. C., 589; 46 S. C., 92; 37 S. C., 433; 63 S. C., 197. As to lookout by defendant: 39 S. E., 758. Duty to child on its track: 36 S. E., 440, 5 S. E., 573. Duty of engineer to lookout: 59 S. C., 758; 36 S. E., 444, 151; 15 Wall., 401; 5 S. E., 573.

<p>Action by Jacob Cohen & Son against W. E. Harter and Julia E. Harter. From order sustaining demurrer, plaintiffs appealed.</p>

<p>Action by I. Epstein against W. E. Harter and Julia E. Harter. From order sustaining demurrer, plaintiff appeals.</p>

Two actions, (1) by Pope and Fleming against W. E. and Julia E. Harter, and (2) by Joseph Rosenheim & Sons against same defendants. From order sustaining demurrer, plaintiffs appeal. cite: 3 Strob., 544; 1 Ency., 2 ed., 1124; 12 Ves.

<p>Action by C. W. Garris, executor of Wiley Smoak, against C. W. H. Thomas. From circuit decree, plaintiff appeals.</p> <p>cite: Has the executor the right to raise the question of usury ? Acts 1877-8, 325; 27 S. C., 115.</p> <p>cite. Executor cannot raise this question: 62 S. C., 165; 58 S. C., 240; 63 S. C., 540.</p>

<p>Action by Jas. A. Colvin against McCormick Cotton Oil Co. From judgment for defendant, plaintiff appeals.</p> <p>The latter cite: The rule for recovery of damages in breach of contracts: Wood’s Mayne on Dam., 20, 41; Hale on Dam., 62, 63; 100 Ind., 237; 41 la., 674; 137 Mass., 55; 74 Ga., 233; 42 Am. Dec., 38; 17 S. C., 73; Hale on Dam., 61. Incompetent to offer evidence of damages outside, of written contracts: Hale on Dam., secs. 46-7; 42 S. C., 1; 24 S. C., 124; 27 S. C., 379; 13 S. C., 332; 1 Green. Ev., sec. 439; 61 S. C., 166. Damages for breach of contract are such as naturally result therefrom: 67 Conn., 480; 8 Ency., 2 ed., 578; 2 Waits Act. and Def., 441; 62 S. C., 15. Claimant must take reasonable precautions to reduce damages: Hale on Dam., 64-5-8; 17 Pick., 284; 2 Mete., 615; 26 U. S., 1120; 26 B. R. A., 167; Sedgw. on Dam., 8 ed., 741; 6 Wall., 94. This rule is akin to contributory negligence: 61 S. C., 566; 26 R. R. A., 160; 11 B. R. A., 364; 6 Am. St. R., 360; 41 Am. St. R., 37; Wood’s Mayne on Dam., sec 65; 26 Am. St. R., 104. In counter-claim or setoff defendant must state facts that make up defense: 37 S. C., 16; 100 Ind., 237'; 41 la., 674; Admission of promise to pay is allegation of ownership: 1 Or., 147. Plaintiff can recover without being holder of claim: 30 Barb., 72; 16 N. Y., 582. Averment of ownership is allegation of legal conclusion: 9 How. Prac., 216; 11 Id., 217; 12 Id., 460; 35 Cal., 118. Production of contract was sufficient to show ownership: 108 R. R. A.. 302; 1 Green. Ev., sec. 34. No evidence to support the verdict- 57 S. C., 289. It is proper to shove jury made a mistake: Harp. Eq., 83.</p> <p>The latter cites: As to the right to allege and prove special contract and agreement: 61 S. C., 166; 57 S. C., 60. Rule for measuring damages: 25 S. C., 71. Evidence in response to allegations allowed to remain in pleading is competent: 57 S. C., 60, 506. Ground of objection not stated below cannot be made here: 59 S. C., 243; 53 S- C., 80. As to consequential losses from breach of contract: 25 S. C., 71. Disqualification of jurors must be moved on before beginning of case: 56 S. C., 380; 55 S. C., 95. No error to refuse new trial: 53 S. C., 215.</p>

<p>Action by Jose Griffin against Southern Railway. From judgment for plaintiff, defendant appeals.</p> <p>cite: Judge should have heard equity issue: 33 S. C., 77; 13 S. C., 98; 17 S. C., 544; 18 S. C., 333; 31 S. C., 403; 13 S. C., 54; 54 S. C., 155; 104 Fed. R., 754; 94 U. S., 307; 83 Fed. R., 437; 186 Penn. St., 145; 38 S. C., 199; 56 S. C., 514. No proof of death of husband, and nonsuit should have been granted: 43 S. C., 499. No evidence tending to show ptmitive damages, nonsiiit should have been granted as to that: 65 S- C., 133; 19 Kan., 83. If testimony of plaintiff would not support a verdict, nonsuit should be granted: 36 S. C., 490. Judge should have charged that there was no evidence as to punitive damages: 26 S. C., 168; 47 S. C., 517.</p> <p>cite: Issue of fraud in obtaining release properly sent to jury: 42 S. C., 92; 38 S. C., 211; 8 Ency., 651, 656; 26 Am. & E. R. R. C., 203; 3 Tex. Civ. App.,.266; 33 S.- C., 36; 38 N. J. R., 118; 4 Dem., 50; 3 S. C., 577; 25 E. R. A., 514; 60 U. S., 211; 70 Mo., 175; 127 Mass., 86; 145 Mass., 461; 112'Mass., 517; 148 Mass., 560; 63 Mich., 690; 68 Md., 377; 135 N. Y., 182; 36 R. R. A., 447. Even if husband was alive, he was not a necessary party: Code of Proc., 135; 12 S. C., 592; 5 Ency., 140; 2 Ency., 177. Complaint alleges both negligence and recklessness, both issues must go to the jury: 22 St., 693; 57 S. C., 28; 60 S. C., 48; 65 S. C., 489; 60 S. C., 74; 62 S. C., 331; 54 S. C., 509. Whether a rate of speed is negligence is for jury: 57 S. C., 205; Kirby v. R. R.} 63 S. C.</p>

<p>Action by Sarah Ellen Miller against Thomas J. Price. From decree in favor of plaintiff, defendant appeals.</p> <p>cites: 19 S. E., 307; 29 S. E., 408; 32 S. E., 310; 64 S. C., 177.</p> <p>cites: As to finding of facts on appeal: 40.S. E., 895; 31 S. C., 276.</p>

<p>Action by J. C. Rosemand against Southern Ry. From order of nonsuit, plaintiff appeals.</p> <p>cite: Courts will presume that common law prevails in.sister State: 6 Ency., 284. At common law, workman on a bridge gang is not a fellow-servant with servants on a train: 2 Kent, 633; 1 McM., 385; 39 S. C., 507; 51 S. C., 79. Different department rule: 18 L. R. A., 798, 811; 12 Ency., 972, 978; Con. 1895. Defendant cannot claim beneñt of fellow-servant exemption here: 51 S. C., 96, 222; 53 S. C., 363; 55 S. C., 103; 61 S. C., 478; 52 S. C., 443; 20 Ency., 132, 134; 48 L. R. A., 745; Thomp. on Neg., 975; 49 Neb., 475. Only facts shoud be'alleged, and they show negligence of foreman, and should have gone to jziry: Code of Proc., 163, 180; Pom. Code Rem., 73, 453, 517; 12. Ency. P. & P., 905, 1024; 14 Ency. P. & P., 37; 8 S. C., 104; 27 S. C., 323, 528.</p> <p>cites: Engineer zvas not negligent: 57 S. C., 250. Plaintiff must stand on law of place of injury: 15 N. E., 230; 61 la., 441; 45 Md., 40; 117 Mass., 109; 143 Mass., 301; 98 N. Y., 377; 23 N. Y., 465; 77 N. Y., 546; 18 E. R. A.,-433; 48 Oh. St., 623; 89 Tenn., 235; 41 E. R. A., 614; 39 Kan., 56; 1 How., 28; 146 U. S., 657; Story Conf. E., sec. 609. Common law is prestmied to be of force in sister State: 62 N. E., 488; 44 E. R. A., 450; 27 S- C., 462; 26 S. C., 415; 45 S. C., 369; Wat. on Per. Inj., secs. 564, 565; 39 L. R. A., 535; 6 Ency., 2 ed., 282; 24 R. R. A., 548. P-laintilf and engineer are fellow-servants at common law: 154 U. S., 349; 162 U. S., 359; 14 A. & E. R. Ca. (N. S.), 575; 3 Wood. R. R., 1775; 39 S. C., 507; 51 S. C., 96; 25 S. C., 135; 40 S. C., 106. If evidence shows plaintiff cannot recover, nonsuit is proper: 23 S. C., 289 ; 29 S. C., 100; 55 S. C., 483.</p>

<p>Action by J. S. Klugh and other minority stockholders of Coronaca Milling Co. against Coronaca Milling Company, and Percy Uumley, as president and manager. The following is the Circuit decree:</p> <p>“This was a motion to dismiss the complaint upon the ground that it -fails to state facts sufficient to constitute -a cause of action. As will appear from an inspection of the complaint, it is an action brought by certain stockholders in the Coronaca Milling Company against the said company, and Percey Tumley, as president, for the appointment of a receiver; for an accounting by the said Percey Tumley, and for the liquidation of the affairs of the said corporation.</p> <p>“In order to sustain a complaint of this character it is necessary that it should charge on the part of the board of directors, or a majority stockholders: (1) Fraudulent acts. (2) Ultra vires acts. (3) Negligence of corporate directors. (4) That the corporation has been requested to correct the alleged wrongs and refused to do so, or facts which would excuse such application. See Cook on Stock and Stockholders and Corporation Law, secs. 644 and 646; Latimer v. Railroad Company, 39 S. C., 52; Wenzel v. Brewing Company, 48 S. C., 83; Stahn v. Catawba Mills, 53 S. C., 519; Matthews v. Bank, 60 S. C., 183.</p> <p>. “Does this complaint, then, allege such facts? The complaint alleges, among other things, that the defendant, Percey Tumley, has for the past three years been the president and manager of the said corporation; that the said mill has been run at a loss of from $2,500 to $3,000 in the past twelve months; that said loss was caused mainly by the gross neglect and mismanagement of the said Percey Tumley, as president and manager of the same — in that he has not given it his time and attention, as he was in duty bound to do, but, on the contrary, has been absent almost the whole time for more than a year, having accepted a position in the service of the Southern Railway Company at Salisbury, N. C.; that he has not called the directors of the said corporation together in meeting since September, 1900; that he has failed to pay any attention to the suggestions and recommendations made by the directors, but, on the contrary, has carried on the business in his own way, without regard to the wishes of the directors and the interests of the stockholders; that by his conduct in the ginning department of said corporation he has driven off about one-half of its old customers. The .complaint further alleges that the said Percey Lumley has shown partiality in the management of the affairs of the said corporation, in that at the close of the season of 1899 and 1900 he declared a dividend of fifteen per cent, on the capital stock of the same, which amount he paid to himself and other stockholders represented by. him, and paid to the minority of the stockholders only ten per cent, on their stock. Paragraph IX. alleges that at the meeting of the stockholders held on the 33d day of July, 1903, the said Percey Lumley represented in person and by proxy 'a clear majority of the said stock, and in spite of the earnest protests of the plaintiffs, who put the meeting in full possession of the facts above stated, the said Percey Lumley proceeded to re-elect himself as president and manager and director of the said corportation, and thereafter proceeded to elect a board of directors named by himself, of which board of directors two are non-residents and one is a brother-in-law and another a mother-in-law of the said Percey Lumley. It is further alleged that the plaintiffs have not applied to the board of directors, or the said majority of stockholders, who, from the allegations of the complaint, in person and by proxy is none other than the said Percey Lumley himself, for a redress of their wrongs, because, as charged in the complaint, the said stockholders and directors are the wrongdoers, and have full control of the said corporation, and such an application would be useless and unavailing.</p> <p>“Now, if these allegations be true, and they must be so taken for the purposes of this motion, to say the least of it, they charge gross negligence on the part of the corporate directors, as well as a majority of the stockholders, in that they continue in office a man who had been giving no attention to the affairs of the concern, but, on the contrary, has accepted another position outside of the State, and whose neglect and mismanagement is wrecking the affairs of the corporation to the injury of the plaintiffs; a man, also, who has shown partiality and a disposition to oppress the minority stockholders, in that' he has paid to himself and a majority of the stockholders represented by him fifteen per cent. dividend at the close of the seasons 1899 and 1900, and has withheld from the plaintiffs and minority stockholders a part of what is justly due them. If the allegations of the complaint be true, it will be useless for the plaintiffs to apply to the board of directors, or a majority of the stockholders, since the said board of directors was selected, as charged in the complaint, by the said Percey Burnley alone for his purposes, and are under his domination and ‘control.’ If tho allegations of the complaint be true, I am of the opinion that it was gross negligence on the part of the board of directors to permit the said Percey Burnley, under these circumstances, to continue in charge of the affairs of the corporation, and this is one ground for equitable interference. It was not argued on the Circuit, and I have not had time to thoroughly investigate the question, but I have grave doubts as to whether or not the said Percey Burnley, representing a majority of the stockholders, had the right to elect the officers of this corporation. The law, as I understand it, requires the board of directors to elect the officers of a corporation. But be this as it may, the board of directors are certainly chargeable with the management of the affairs of the corporation and if they knowingly permit an incompetent man to remain in office, or one guilty of acts of negligence and mismanagement charged in the complaint to Percey Burnley, with full knowledge of the facts, as alleged in the complaint, in my opinion, they themselves thereby participate in the wrong, and should be held equally responsible with the wrongdoer. I think, under the allegations of the complaint, that it may be inferred that the application to the board of directors, elected by the said Percey Burnley, under his control and also wrongdoers with him, for a redress of these wrongs, would be entirely futile.</p> <p>“These being my views, under the authorities .above quoted, and especially the case of Mathews v. Bank, supra, I overrule the demurrer.”</p> <p>From this decree the defendants appeal on the following exceptions:</p> <p>“First: Because his Honor erred in not holding that the decree or order rendered by his Honor, Judge Townsend, in this case, not appealed from, is the law of this case on all questions therein passed upon.</p> <p>“Second: By his decree in this case, Judge Townsend declared that the complaint did not show that the defendant, Coronaca Milling Company, was insolvent, but clearly showed that the same was entirely solvent; his Honor, Judge McCullough, therefore, erred in not holding that this finding was final and binding upon him in the determination of that question.</p> <p>“Third: By his decree in this case, Judge Townsend in effect declared that the complaint does not state facts sufficient to constitute a cause of action, in that the acts complained of are not fraudulent, ultra vires, oppressive or illegal, and the plaintiffs have not endeavored to obtain redress within the corporation; his Honor, Judge McCullough, therefore, erred in not holding that this finding was final, and binding upon him in the determination of these questions.</p> <p>“Fourth: It was error in his Honor to hold that the complaint states facts sufficient to constitute a cause of action, (a) Because it shows on its face that the Coronaca Milling Company is entirely solvent, (b) It fails to allege that the directors or managing board have done or threatened to do any act ultra vires, or any act of fraud, illegality or oppression injurious to the corporation, or in violation of the rights of its stockholders, (c) It fails to allege that the plaintiffs have endeavored to obtain relief of their alleged grievances within the corporation, (d) It fails to allege any facts which would justify the conclusion that an effort to obtain redress within the corporation would be unavailing, (e) It fails to allege that the board of directors or majority stockholders upon demand have refused to apply for the relief asked by the plaintiffs. (f) All the acts complained of are intra vires of the corporation.</p> <p>“Fifth: It was error for his Honor to hold that a stockholder can maintain an action for ‘negligence of corporate directors;’ for the reason that the action cannot be maintained unless the negligence is such that the majority stockholders does not nor cannot condone.</p> <p>“Sixth: It was error for his Honor to hold that the complaint states such facts as would justify a Court in concluding that an application to the board of directors or majority stockholders for the relief demanded would be unavailing, (a) Because the complaint shows on its face that the board of directors had only been elected a few days prior to the commencement of this suit, (b) It shows that two of the' plaintiffs were elected members of said board, and without an effort to obtain relief from the board of which they were members, resigned their positions upon said board, (c) There is no allegation of facts to justify the conclusion that the other members of the board would uphold the president and managers of the corporation in the commission of fraudulent acts, ultra vires acts, or illegal or oppressive acts, (d) There is no allegation of facts to justify the conclusion that the directors would uphold the president and managers in the neglect of the affairs of the corporation, (e) There is no allegation of facts to show that after the election of the present board of directors they have ever been asked or had an opportunity to remedy the acts complained of; on the other hand, the complaint shows that the present board of directors, of which two of the plaintiffs were elected members, had no opportunity prior .to the commencement of this action, had they desired to have done so, to remedy the acts of which the plaintiffs complain.</p> <p>“Seventh: His Honor erred in not holding that all of the acts of which the plaintiffs complain are such as should be laid before the board of directors, and their action thereon, in the absence of fraud, would be binding upon the corporation.</p> <p>“Eighth: The acts complained of are, at most, only matters of internal management of the corporation, of which the board of directors are the final arbiters, and his Honor was in error in not so holding, and dismissing the complaint.”</p> <p>cite: Findings of Circuit Judge on hearing for appointment of receiver is binding on successor: 14 S. C., 334. Courts are careful not to interfere in workings of corporations: 4 Ency., 194; 33 St., 1036; 104 U. S., 460. Pacts necessary to be pleaded: 3 Cook on Corp., sec. 644, 646, 740; 53 S. C., 539; 39 S. C., 49 ; 48 S. -C., 80.</p> <p>cites: Complaint states a good and sufficient cause of action: 104 U. S., 463; 39 S. C., 44; 48 S. C., 80; 53 S. C., 519; 60 S. C., 437; 8 S. E., 576; 3 Cook on Corp., sec. 741, and note 3, p. 1617, and note 1, p. 1619; 30 Ency. P. & P., 781, 786, 788, 767, 783, and note 3; 3 Cook on Corp., secs. 644, 701, 703, 734.</p>

Action by Geo. M. Battey against-B. E. Knight, A. L. Ballentine, Wm. B. Knight and Jno. A. Ballentine. From Circuit decree plaintiff appeals on the following exceptions: “I. Because his Honor erred in not sustaining plaintiff’s fifth exception to the report of L. W. Simkins, special referee, which exception was as follows: ‘Because the referee erred in holding that the tender made by Geo.

Proceeding by petition and rule for mandamus by F. M. Farr et al., as board of commissioners of public works of Union, against Macbeth Young, as mayor, and the aldermen and clerk and treasurer of the town.

Action by Daniel C. DuPre against Southern Railway. Prom Circuit order on motion to make pleading more definite and certain, both parties appeal. cite: 57 S. C., 234; 60 S. C., 48; 61 S. C., 190; Code of Proc., 181; 2 Wait’s Prac., 478, 479; Pom. Rem., sec. 551; 50 S. C., 54. cites: 16 Ency., 392; 54 S. C., 505; 61 S. C., 188; 42 S. C., 114; 55 S. C., 90; 60 S. C., 73.

Action by W. C. Latimer against York Cotton Mills. From judgment for plaintiff, defendant appeals. cite: Mitigation of damages may be given under general denial: 25 Hun., 498; 5 Ency. P. & P., 776; 43 N. Y., 231; 61 N. Y., 370; 14 Ency., 795, 793; 16 Am. St. R., 403; 20 Id., 359; 22 L. R. A., 690. Earnings in meantime are in mitigation of damages: 4 McC., 246; 5 Rich. L-, 519. New trial should be granted where jury disregard instructions: 19 S. C., 489; 16 S. C., 14.

Proceeding for mandamus by J. H. Burgess and other trustees of school district against Samuel J. Bowman, county treasurer.

<p>Proceeding in re B. H. Rutledge, trustee, vs. S. H. M. Fishburne, to require F. Heinz to comply with his bid for property sold in this case. From Circuit order, purchaser, Heinz, appeals.</p> <p>cites; As to the bar by deed of life tenant: 10 S. C., 376; Rice, 459; 40 S. C., 472; 17 Stat., 430. Possible children of Mrs. Fishburne are executory devisees: 20 Fncy., 886, 962, 921, 922'; Feame on Rem., 118; 16 S. C., 325; Tiedeman oñ Real P., sec. 537. Nothing in merger of life estate to defeat possible children of remaindermen: 15 Ency., 313; 20 Ency., 588; 28 S. C., 198; 16 S- C., 330. 'Purchaser may be relieved by defectiveness of title:'31 S. E. R., 633; 9 S. C., 288; 15 S. C., 126; 30 S. C., 231; 35 S. C., 326; 93 U. S., 121; 8 How., 518; 63 N. Y., 268; 55 N. Y., 11; 53 N. Y., 298. Principles guiding the Court: 8 Rich Eq-, 217; 1 DeS., 382; 6 Rich. Eq., 222; 35 S. C., 317; Adams Eq.-, 212; 5 S. C., 150.</p> <p>cites: The remainderman having a title for the life interest, held a vested interest: Smith on R. & P. Prop., 228; 2 S. C., 68; 10 S. C., 371. Can this vested interest be defeated by death of remainder-man? 21 Ency., 835; 20 Ency., 922. Where purchaser knozvs of defects before buying, he cannot have relief: 2 Jones on Mortg., sec. 1616; 66 N. Y., 193; 63 N. Y., 268; 15 S. C., 121; 31 S. E., 630.</p>

<p>Action by Clara B. Matthews against Edward R. Hipp. From judgment of nonsuit, plaintiff appeals.</p> <p>cite: The evidence shows a tenancy from year to year: 22 Vt., 88; 39 Mich., 454; 8 Or., 405; 80 Md., 57; 48 Wis., 48; 17 Hun., 319; 2 Cow., 660; 8 Cow., 226; 2 E. D. Smith, 100; 21 Conn., 398; 2 Rich., 346; 8 T. R., 3; 44 S. C., 454, 532; 30 S. C., 213. Tenant holding over into a year is liable for rent for whole year: 159 N. Y., 28; 4 McC., *59; 2 Hill, *367; N. Y. App., 1 Div., 954; 99 111., 151; 10 111. App.,136; 16 Id,, 432; 69 Ala., 549; 36 Md., 73; 57 N. Y., 539; 51 N. Y’, 309; 2 Pa. St., 144; 60 Wis., 1; 102 Md., 457; 4 Waits’ Act. & Def., 218; 73 N. Y., 161; 75 N. Y., 210; 86 N. Y., 453; 97 N. Y., 389; 4 Fed., 291; 57 N. Y, 309; 159 N. Y., 28; 113 Mich., 158. Plaintiff can recover for use and occupation: Rev. Stat., 1933.</p> <p>cite: Effect of entry under parol lease and of possession after expiration: 60 S. C., 400; Rev. Stat., 1932, 2149, 2151; 36 S. C., 544; 44 S. C., 454; 33 S. C., 238; 12 Ency., 675-3, note 2; 18 Ency., 2 ed., 182, and note 2 — -(e) and note 4; 2 Rich. R., 346.</p>

Action by Greig & Jones against William Brooks Rice, J. B. Gillam, H. B. Grimes, A. J. Bennett, Fred Summers, and James N. Wood. From judgment for plaintiffs, defendants appeal. The latter cites: Issue as to legal title should have been first tried: Freeman on Ex., sec. 136; Wait Fraud. Con., secs. 59-69; 11 Rich., 101; 33 S. C., 28; 38 S. C., 196.

Proceeding for prohibition by Southern Railway Co. against F. S. Earle, mayor of the city of Columbia, and Owen Daly, chief of police of said city. From Circuit order overruling demurrer, refusing motion for reference, and decree on merits, petitioner appeals. cite: Petitioner had no right of appeal which was adeqijate: Code, 1902, 2003; 33 P. R., 880; 4 Rob., 48; 49 La. Ann., 1612; 127 Mass., 60; 19 Minn., 117; 5.Wash., 518; 8 Wash., 591; 45 Mo. App., 551; 20 Gratt., 522.

Action by Walter E. Barksdale against Charleston and Western Carolina Railway Co. From judgment for plaintiff, defendant appeals. The former cites: It ivas duty of conductor to throw out the car, and failing in this, he could not recover: 21 S. C., 547; 22 S. C., 563; 61 S. C., 494; 55 S. C., 488. In proper case nonsuit should be granted for contributory negligence:46 S. C., 216. Messrs.

Indictment against W. Q. Hammond for failure to remove a dam. From judgment of Sessions Court reversing judgment of magistrate dismissing prosecution, the State appeals. cite: On the question decided: 42 S. C., 230; 56 S. C., 516; 21 S. C., 420; 26 S. C., 348; 62 S. C., 28; 93 U. S., 23; 113 U. S., 27; 6 Ency., 2 ed., 967, 1020, 1021; 23 S. C., 56; 2 Black Con. Law, 294; 10 L. R. A., 178; 2 McC., 301; 53 S. C., 278; 109 Mass:, 319; 30 N. H., 279; Tiedeman Pol.

Claim by A. H. DeHay, county superintendent of education, ag-ainst County Commissioners of Berkeley County. The order of Circuit Court reversing action of commissioners is as follows: “By an act of the General Assembly, entitled ‘An act to amend section 1 of an act entitled an act to regulate the fees and duties of the county officers of Berkeley County,’ approved January 5, 1895, it was provided that ‘the county officers of.

Action by Mary A. Mercer, administratrix of James W. Mercer, against Southern Railway. Prom judgment for defendant, plaintiff appeals. The former cites: As to the charge: 63 S. C., 494; 47 S. C., 375; 41 S. C., 19; 29 S. C., 304. Failure to give signals is negligence per se: 53 S. C., 121; 58 S. C., 223; 47 S. C., 381; 63 S. C., 371. The latter cite: As to the form of charge: 83 Mo., 436; 39 S. E., 730; 40 S. E., 37; 33 S. E., 96.

<p>Action by M. O. Gentry, administrator of John Jackson, agent Southern Railway. From judgment of nonsuit, plaintiff appeals.</p> <p>cite: 25 S. C., 128; 26 S. G, 187; 61 S. C., 556; 16 Ency., 742; 22 S. G, 308; 2 Brev., 371; 51 S. G, 296.</p> <p>cites: 1 Bail. Per. Inj. Mas. & Ser., secs. 363, 406, 365, 1660; 2 Thom, on Neg., 1053; 1 Shear, and Red. on Neg., 5 ed., secs. 222-3; 15 S. G, 456; 29 Fed. R., 840; 36 Kan., 666; 25 N. Y., 562; 39 N. Y., 468; 59 Fed. R., 479; 76 N. Y., 125; 85 Va., 489; 104 N. Y., 491; 132 Pa., 341; 83 Ga., 70; 59 Fed. R., 990; 41 R. R. A., 150; 1 Thom, on Neg., 364; 25 S. C., 135; 45 S. C., 278; 57 S. C., 433.</p>

<p>Action by Jennie C. Hughes against School District No. 37, on the following complaint:</p> <p>“1. That the defendant is a body politic and corporate, duly organized under the laws of this State, under the corporate name of School District No. 37 of Lancaster County, State of South Carolina, and as such authorized and empowered to make the contract hereinafter set forth.</p> <p>“2. That on or about the day of March, 1900, the said defendant, by and through the trustees of said school district, thereunto duly authorized, contracted and agreed with this plaintiff to teach a certain free common school in said district, known as the Bruce School, for a term of five school months or for as many months as the public funds for said school would justify, commencing on the 22d day of October, 1900, and continuing thereafter, and contracted and agreed to pay the plaintiff for her services in teaching the said school $30 per month, to be due and payable at the expiration of each school month.</p> <p>“3. That said contract was such as the said defendant was authorized by law to make, and that there was and is in the hands of the treasurer of the said county a sum of money as a school fund for said district more than sufficient to satisfy and discharge the amount due under said contract as herein set forth.</p> <p>“4. That on or about the 22d day of October, 1900, this plaintiff entered upon the performance of the said contract in the said school building furnished by said defendant under said contract in the said school district in the said county, and continued in the performance of the said contract until prevented from continuing and concluding the performance of the said contract as herein set forth.</p> <p>“5. That at the expiration of about two months from the above stated date, after plaintiff had fully and faithfully performed her contract to teach the said school during such time of two months (being part of the said five months for which she contracted to teach as aforesaid), the said Bruce school building was, by consent and connivance of the trustees of the said school district, dismantled and rendered entirely unfit for use as a place for teaching the same under the contract aforesaid; that the plaintiff immediately reported the facts aforesaid to the school trustees of the said school district and demanded of them that said school building should forthwith be put in such condition as would enable her to complete the teaching of said school during the remainder of the term of her said contract; that said trustees failed and refused so to do, although the said school district had funds and property there available for said purpose; that this plaintiff intended and was ready and willing to complete the performance of her contract for the remainder of said term aforesaid, and did perform her part of the said contract to teach the said school during the said entire term, save only in so far as she was prevented by the acts and defaults of the defendant as aforesaid.</p> <p>“6. That the term for which plaintiff contracted to teach the said school as aforesaid has long since expired; that plaintiff has fully performed all the conditions of said contract on her part, and has demanded payment from said defendant for her said services under the said contract; but that defendant has failed and refused, and still fails and refuses to pay the said plaintiff any part of the said sum of $150 due to this plaintiff for her said services under the said contract, except only that said defendant has paid to plaintiff the sum of $30 in settlement for plaintiff’s services during the first month aforesaid, leaving still due by said defendant to this plaintiff upon the said contract a balance of $120, which said defendant has refused and still refuses to pay.</p> <p>“7. That there is now in the hands of the treasurer of the said county and properly applicable to the payment of the said amount due this plaintiff, a sum ,of money belonging to said school district more than sufficient to pay the said amount due to this plaintiff and the costs of this action.</p> <p>“8. That the trustees of said school district are Simon Cauthen, Preston Horton and Simon Bruce, and the said trustees have thrown every obstruction to the progress of the school, even dismantling the school room as aforesaid, and carrying off the furniture, and have utterly refused to give the plaintiff an order on the county treasurer for the payment of the money due her, and she is now without remedy, except by bringing this action in this Court, to enforce payment of her claim.</p> <p>“9. Wherefore, plaintiff prays judgment against the said defendant for the said sum of $120, and for the costs and disbursements of this action, and prays that a decree may be therefore made by this Court for the payment of the same out of the funds aforesaid; and that such other and further relief may be awarded to this plaintiff as may be just.”</p> <p>The Circuit Judge, after stating the allegations of the complaint in his charge, continues as follows:</p> <p>“The defendants come in and (Jeny the allegations of the complaint — that is, they deny she was employed by the trustees. They claim one employed her, the other had nothing to do with it, and the third trustee was not a trustee by reason of the fact that he didn’t live in that school district; and they allege that even if she was employed, that her contract was cancelled for due and sufficient consideration by the trustees of the school; and she took an appeal front that to the county board, and the county board affirmed the action of the school trustees in cancelling this agreement; and she then gave notice of appeal to the state board, and abandoned the appeal, and the trustees, defendants, contend that she was never employed; and secondly, if she was employed, the contract was cancelled, and cancelled legally, and that they are in no manner liable to pay for four months’ wages. They have put in a further defense, that these trustees couldn’t contract for any money coming into the school district except for that fiscal school year; and that there is another school in that district, and the trustees had the right to apportion the money between these two schools; and even if she is entitled to recover at all, she would be entitled to recover only the amount of money in the hands of the treasurer, appropriated and apportioned to this school. Those are substantially the issues in this case. You have heard the testimony in this case, and you are the judges of that — you are the sole judges. I charge you as matter of law, that the trustees of a school have to employ the teacher. That is part of their duty, and they can employ who they please and contract with them to teach as long as the school fund for that year holds out belonging to that school. The school trustees have a right to apportion to the different schools in their school district the public funds belonging to that school district during the fiscal year, the financial year, that they are trustees. They have a right to apportion to these schools within the district a certain amount of funds, and they have a right to employ the teacher to teach the school as long as the funds apportioned to one of those schools holds out. They are charged with the duty and power of employing a teacher; whoever the trustees appoint they have a right to enter into a contract with, and whoever they enter into a contract with has a right to teach school. Trustees have a right to discharge whoever they employ, for good and sufficient reasons. Now, I charge you that if there were three trustees in that school district, and one, Mr. Williams, wasn’t a resident, I charge you, that inasmuch as they allege that Williams was not a resident and taxpayer in that school district, it is incumbent upon them to show by the preponderance of the testimony or weight of the testimony that he was not a trustee, because, if you believe that the county board appointed him a trustee, and that he was a taxpayer and resident and qualified elector, he was a legal trustee. I charge you further, that even if Williams was not a resident and taxpayer of that district, if he was appointed by the county board and no complaint was made, and he was allowed to hold himself out and acted as such, and the patrons of that school district didn’t make any complaint and have him removed by the county board, to all intents and purposes, he was a trustee, to the extent of being allowed to make a contract along with the others. The board of trustees have a right to make a contract — they can call a meeting or they can get together and agree on it. It is not necessary, as I take it, that they should actually designate the time and place. They can discuss the matter on their farms, and if two agree and they elect a teacher, that is sufficient, as I take it, in the eye of the law. I charge you, as matter of law, if the majority, of these trustees employed the plaintiff in the case to teach the school for five months, she was entitled to teach that school; and if they cancelled that agreement, unless they did it on sufficient grounds, she would be entitled to-recover the wages or pay that they agreed to give her for her services for the five months, if she was willing and ready to carry out her part of the contract, and was prevented by the trustees from being allowed to do it upon any arbitrary or capricious grounds. If, however, there was not enough money for that fiscal year apportioned for that school to pay her five months’ wages, if you think she is entitled to recover, she is entitled to recover only to the extent of the fund apportioned for that fiscal year. I charge you as matter of law, that no trustees have a right to hire a teacher in advance and pledge the funds coming into school district for a future year. The law presumes that the money apportioned for a year is to be expended in that year, and the trustees have a right to contract for the services of teachers to the extent of the funds coming into their hands in that year. But they can’t create a debt and thereby make away with the funds coming in a future year. If you think this ’lady was employed to teach the school, and the school trustees arbitrarily and capriciously discharged her without any fault on her part, without any reason or anything of the sort, she would be entitled to recover, as I have told you. If, however, after they employed her, if the school trustees for any good and sufficient reasons removed her, I charge you that was a matter within their discretion. The government of the schools is left to them, and after he or she entered upon the discharge of their duties and if anything turns up, there is good and sufficient reason why they should not be allowed to teach the school, the school trustees have a right of removal; and if they remove her or him, her remedy or his remedy is by appeal to the county board, and if the county board sustains the action of the school trustees, the party aggrieved has a right to appeal to the state board of education, and if they sustain the county board, that ends it. Now, understand: where a party is employed by the trustees to teach a school, the school trustees have no right to arbitrarily and capriciously annul and cancel that contract; but they have a right to do it upon good and sufficient grounds, and if complaint is made to the school trustees that the school teacher is not doing her duty, and they investigate and find good and sufficient grounds to cancel the contract, they have a right to do it, and the remedy is by appeal to the county board, and from there to the state board, if they want to go that far. So, in this case, it is for you to determine whether there was a contract here, and if there was a contract, and the trustees removed this plaintiff without good and sufficient reasons, then she is entitled to recover. If there was a contract and they removed her for good and sufficient reasons, then I charge you as matter of law she has not a right to recover.</p> <p>“The plaintiff and defendant have both requested me to charge you propositions which I will read. Plaintiff’s propositions are as follows: * * *</p> <p>“ ‘7. That if the jury should find, on the evidence, that at the time plaintiff claims her contract to teach the school was made, Simon Bruce and John S. Williams had been recognized as trustees of said school district by the school board, and up to that time had been employing the teacher and as such managing the school of said district, then, as a matter of law, they must both be regarded as trustees until they resigned or were regularly removed by the school board.’ I charge you that.</p> <p>“The defendants request me to charge the following propositions of law:</p> <p>“ ‘1. That a legally constituted board of trustees for any public school district in this State, except special and graded districts created by special acts, must be chosen by the county board from the' qualified electors and taxpayers residing in said district; and that no contract made by' an acting board of school trustees, not so constituted, can bind said district.’ I refuse to charge you that, because I have already given you my idea of the law on that line. * * *</p> <p>“ ‘3. That individual school trustees in any such district have no authority to employ teachers — the whole board must be present to bind the district, unless such contract be fully approved and confirmed by a legally appointed board when legally in session.’ I refuse to charge you that in that language. I charge you that one member of a board could not employ a teacher, but a majority might agree on one and have a right to employ her. * * *</p> <p>“ ‘7. That if a teacher is discharged for good and sufficient reasons by a board of public school trustees, the district in which he contracted to teach is liable to such teacher only for his stipulated wages for the time taught therein.’ I refuse to charge you that. If they employ a person — if they employ a person for a certain number of months, and discharge them without any good and sufficient reason, the person that they employ is entitled to collect for the full time.</p> <p>“8. I refuse to charge you the eighth proposition.</p> <p>“Now, gentlemen, the form of your verdict will be, ‘We find for the plaintiff so many dollars;’ or, ‘We find for the defendant.’ Take the record.”</p> <p>The following is the defendant’s eighth request:</p> <p>“8th. That if a teacher is illegally discharged by a board of school trustees, the district in which his services were rendered is liable to him only for the wages he would have earned, if he had taught the full term allowed by law to the school assigned him, less the sum he did earn or could have earned in like employment during the balance of said term.”</p> <p>The defendant appealed on the following exceptions:</p> <p>“1. Because the Circuit Judge erred in overruling defendant’s oral demurrer to the jurisdiction of the Court; whereas, it is submitted, he should have held that the Court was without jurisdiction of the subject matter of the action — it not appearing from the complaint that the plaintiff had exhausted her right of appeal to the county and state boards of education, before the commencement of this action, as contemplated by the statute law of this State; and that, therefore, he should have dismissed the complaint.</p> <p>“2. Because the Circuit Judge erred in overruling defendant’s oral demurrer, and in holding the same sufficient; whereas, it is submitted, he should have held the complaint fatally defective in that it contained no allegations: (a) That the plaintiff had and held a certificate of qualification from the state board or county board of education, and was, therefore, duly qualified to teach in the public schools in the State; and (b) That plaintiff had exhausted her right of appeal to the county and state boards of education, before the commencement of this action; and (c) That plaintiff had made an effort to secure, or had failed to secure, other like employment during the balance of her alleged contract, and the amount of her earnings, if she obtained employment. And, therefore, his Honor should have dismissed the complaint.</p> <p>“3. Because his Honor erred in holding that it made no difference where plaintiff’s patronage came from — whether from the defendant district or from any other adjoining district; whereas, it is submitted that, under the school law of the State, the patronage from the district in which the teacher is employed, is alone to be considered by the trustees in the maintenance of the public schools; and, therefore, the Court erred in refusing to allow defendant to introduce testimony tending to show that the plaintiff’s patronage was almost entirely from other adjoining school districts.</p> <p>“é. Because his Honor erred in allowing the plaintiff, over the objection of the defendant, to testify in reply, that she had not been cruel to the daughter of the witness, Johnson, during the previous term; whereas, such testimony was not in reply — the Court having previously refused to allow the said Johnson to testify as to plaintiff’s treatment of his daughter during that previous term.</p> <p>“5. Because his Honor erred in refusing to 'allow the defendant to prove by the plaintiff in her cross-examination the amount of wages earned by plaintiff while teaching in Chesterfield County, and in holding that what she earned in Chesterfield had no bearing on the case at bar; whereas, it is submitted, he should have allowed this testimony' — since plaintiff’s measure of damages, if she was entitled to any, was the difference between what she would have earned, had she been allowed to teach out the term of her alleged contract, less what she earned or might have earned in like employment during the months of her discharge.</p> <p>“6. Because his Honor erred in not granting defendant’s motion for a nonsuit, and in holding that there had been some evidence adduced by plaintiff, that J. S. Williams was a legally appointed member of the board of trustees of the defendant district; whereas, it is submitted, he should have granted the motion, there being absolutely no testimony that the said J. S. Williams had ever been appointed a trustee of the defendant district by the county board of education, and it having been established by the cross-examination of plaintiff and her witnesses, that the said J. S. Williams was not a resident of the said district, as required by the Constitution and the school law of this State.</p> <p>“7. Because his Honor erred in refusing to allow the defendant to introduce any testimony tending to show the peculiarities of temperament, the unfairness and the cruelty of the plaintiff — -as shown in the management of the Bruce school during the previous term; whereas, it is submitted, such testimony would have been both relevant and competent — as tending to show a sufficient reason on the part of the parents in the district for not patronizing the plaintiff in the fall of 1900, in justification of the action of the board of trustees in discharging plaintiff; and in justification of the action of county board -in recommending her discharge.</p> <p>“8. Because his Honor, the presiding Judge, erred in refusing to charge the jury defendant’s first request to charge, as submitted.</p> <p>“9. Because his Honor, the presiding Judge, erred in refusing to charge the jury defendant’s third request to charge, as submitted.</p> <p>“10. Because his Honor, the presiding Judge, erred in refusing to charge the jury defendant’s seventh request to charge, as submitted.</p> <p>“11. Because his Honor, the presiding Judge, erred in refusing to charge the jury defendant’s eighth request to charge, as submitted.</p> <p>“12. Because the verdict of the jury was contrary to law and not warranted by the evidence adduced — there being no competent evidence that plaintiff had and held a certificate of qualification, as required by law, from either the county board or state board of education; and there being absolutely no evidence that J. S. Williams who, as plaintiff says, employed her to teach the Bruce school, was appointed a trustee of the defendant district by the county board; and it appearing, on the other hand from the testimony of all the witnesses, that the said J. S. Williams was not a ‘qualified elector residing’ in the defendant district.</p> <p>“13. Because his Honor, the presiding Judge, charged the jury, in speaking of the duties and powers of trustees, as follows : ‘They can employ who they please, and contract with them to teach as long as the school fund for that year holds out belonging to that school;’ whereas, it is submitted, such is not the school law of this State, for under the law trustees are prohibited from employing any teacher who does not hold and present to the board a certificate of qualification (in force) from the county or state board of education.</p> <p>“14. Because his Honor, the presiding Judge, charged the jury as follows: ‘Whoever the trustees appoint, they have a right to enter into a contract with, and whoever they enter into a contract with, has a right to teach school;’ whereas, it it submitted that' under the law of this State, a teacher who does not hold a certificate of qualification (in force) from the county board or state board of education, has no right to teach a public school, and a.contract made with her by a board of trustees cannot bind the district.</p> <p>“15. Because his Honor, the presiding Judge, charged the jury as follows : ‘And if they cancelled that agreement, unless they did it on sufficient grounds, she would be entitled to recover the wages or pay that they agreed to give her for her services for the five months;’ whereas, it is submitted, a plaintiff, could in no event recover more than the wages promised her, less the amount of wages she earned, or could have earned, in Chesterfield County or elsewhere, during the balance of the term of her alleged contract.</p> <p>“16. Bcause his Honor erred in charging the jury plaintiff’s seventh request to charge, as submitted; whereas, it is submitted, no recognition by the county board of the acts of persons, and no acts of persons themselves (who have never been regularly appointed trustees by the county board, and who are not ‘qualified electors residing in the district’), can give to such persons authority to make a contract like the one in question to bind the district, in opposition to the plain and positive provisions of the Constitution and the statute law of this State.”</p> <p>cite: As to want of jurisdiction in Circuit Court: Chap. 24, title 9, part I., Code, 1902; art. XI., Con.; 52 S. C., 201. Complaint should have alleged, that she had a certificate: Code, 1902, 1200; 21 Ency., 754. Measure of damages is salary less earnings: 21 Ency., 757; 15 Col., 367; 26 W. N. C., 495; 31 111. App., 537; 15 Mo. App., 352; 15 Ency., 793, 795; 14 Ency., 793-5; 5 Rich., 465; 4 McC., 246. Contract must be made with majority of board of trustees lawfully appointed: Con., art. -XI., sec. 6; Code, 1902, 1210, 1212; 8 At. R., 443; 107 Inch, 43; 21 Ency., 755; 126 Ind., 528; S Ind., 504; 22 Ohio St, 144; 47 Mich., 626.</p> <p>cite: As to the jurisdiction of the Court: 22 St., 150, 173; Code, 1902, 1205, 1241; 13 S. C., 441; 29 S. C., 325; 54 S. C., 265; Con., art. I., sec. 25; art. V., sec. 15. If error in admitting evidence, it was harmless error: 51 S. C., 480; 55 S. C., 480; 50 S. C., 129; 54 S. C., 288, 314. Proof that defendants were de facto trustees is sufficient: 35 S. C., 192; 14 ed. Green on Ev., secs. 83, 92; 64 S. C., 445; 59 P., 885. Exception not embodying request refused is too general: 61 S- C., 571; 46 S. C., 372; 51 S. C., 55; 48 S. C., 430; 12 Rich. D., 129. Presumption is that trustees employed a teacher having a certificate: 45 S. C., 136; 46 S. C., 43, 372. Contract by majority of trustees is good: 59 S. W., 959.</p>

<p>Action by Isaac Edwards against Southern Railway. From order dismissing complaint on demurrer, plaintiff appeals.</p> <p>No arguments gurnished Reporter by either side.</p>

<p>Action by Samuel L. Moore against James Scott. From judgment for defendant, plaintiff appeals.</p> <p>cite: Is plaintiff bound by the judgment in Neal v. Sullivan? 19 S. C., 323; 22 S. C., 323; 39 S. C., 131; 164 U. S., 480; 20 S. C., 71. Trust cannot be executed until the happening of the contingency: 53 S. C., 9; 29 S. C., 138; 31 S. C., 14; 4 Rich. Eq., 385; 36 S. C., 354. Right of remainderman does not accrue until death of life tenant: Rice Eq., 361; 2 Rich. Eq., 259; 16 S. C., 220; 25 S. C., 34, 519; 54 S. C., 394; 23 S. C., 502. Court could not compel trustee to sell: 12 Rich. Eq., 254; 11 Rich. Eq., 199; 31 S. C., 198; 2 Perry on Trusts, 30; 1 Id., 31, and sec. 248; 55 S. C., 131; 1 Rich. Eq., 329; 97 N. C., 137; 29 S. C., 278. Deed by trustee is coram non judice: 11 Ency., 878, 879 ; 140 U. S., 254; 31 S. C., 113; 23 S. C., 514; 2 Perry on Trusts, 2 ed., 508, 575; 15 Ency. P. & P., 592, 648; 22 Ency. P. & P., 64; 13 Rich. E., 178; 43 S. W. R., 788. Deed recites that land was sold by and according to decree in chancery, and defendant cannot deny recitals of his deed: 18 Ency., 936; 2 Perry on Trusts, 2 ed., sec. 511; 18 Mich., 42; 17 Am. R., 709; 46 Am. R., 593; 34 Am. R., 143; 194 U. S., 366; 60 Am. R., 770; -6 Pet., 598; 134 U. S., 590; 59 S. C., 498; 25 S. C., 522; 62 S. C., 489. Neal v. Sullivan is neither res judicata nor stare decisis as to this case: 17 S. C., 85; 53 S. C., 289; 3 Rich. Eq., 1; 2 Rich. Eq., 321; 9 Rich. Eq., 225; 56 S. C., 423; 62 S. C., 299; 23 Ency., 19.</p> <p>The former cite: As to the construction of the trust deed: 35 S. C., 327; 25 S. C., 41; 29 S. C., 136; 32 S. C., 77; 61 S. C., 243; 2 Rich. Eq., 53. The life tenant is presumed to have consented to the sale: 30 S. C., 197.</p> <p>The latter cite: Where the trustee is authorized to sell, the only necessary parties in equity proceeding is himself and life tenant: Perry on Trusts, sec. 508; Hill on Trustees, 499 and 495; 1 P. Will., 702; 4 Rich. Eq., 491; 9 S. C., 155; Perry on Trusts, secs. 517, 519, 784, 787; 36 S. C., 202; 1 Dan. Ch. PL, 211; 60 S. C., 192. Such sale may be regarded as an exercise of the power: 22 S. C., 323; 38 S. C., 198; 23 S. C., 515. Decision in Neal v. Sullivan is a binding rule of properly as to this case: 3 S. C., 497; 4 Rich. Eq., 490; 21 S. C., 527; 1 Wall., 175; 18 S. C., 355; 10 S. C, 317; 12 L. R. A., 856; 15 Ency., 1046; Black on Int. of Laws, 377.</p>

Indictment against W. Q. Hammond for failure to clean out stream after notice. From Circuit order reversing judgment of magistrate, plaintiff appeals. (For citations see same case ante.) (For citations see same case ante.)

Action by Josiah W. Bodie against Charleston and Western Carolina Railway. From judgment for plaintiff, defendant appeals on the following exceptions: “1. Held: it was error of law for him to allow the jury to have any voice in determining this question. “4.

<p>Action by Robinson and Allen against Samuel Howell. From judgment for defendant, plaintiffs appeal.</p> <p>cites : Code, 1902, 2950; 31 S. C., 256; 79 111. App., 90; 12 Ency. P. & P., 428, 477, 505.</p>

Petition by R. M. Wasson et al., against W. L. Ferguson, et al., in the original jurisdiction of this Court, for order enjoining them from levying a tax on Sullivan Township of Laurens County to pay a judgment of United States Court for interest on railroad aid bonds.

Action by Abbeville Electric Light and Power Co. against Western Electrical Supply Co. From judgment for plaintiff, defendant appeals. cites: As to the service of the summons: 106 U. S., 356; 19 U. S., 552; State v. Napier, 63 S. C. cites: Question of jurisdiction is res judicata: 51 S. C., 33; 38 S. C., 216; 1 Hill Ch., 22. As to service of summons: 61 S. C., 361; 106 U. S., 350; Blake v. Clung, 172 U. S.

Petition in the original jurisdiction of this Court by J. H. Allen for injunction against the town council of Edgefield, to restrain them from issuing bonds for the erection of a school building. The amended petition is as follows: “First. That your petitioner is a citizen of the county of Edgefield, in the said State; and is a resident and taxpayer in the town of Edgefield, situate in said county and State. “Second.

Petition in the original jurisdiction of this Court by J. C. Milford, L. A. Brock and R. M. Shirley for injunction against M. I. Brock, L. M. Wilson, and B. D. Gassaway, trustees of School District No. 34, to restrain the sale of bonds for erecting a school building.

<p>Petition in probate court by Mary C. Boykin against Leroy Springs and Charles J. Shannon, Jr., for dower. The Circuit decree reversing probate court is as follows:</p> <p>“This cause came before me at the June term, A. D. 1901, of the Court for Kershaw County, on an appeal from the probate court of'said county. It is a suit for dower brought by Mary C. Boykin, who is the widow of Edward M. Boy-kin, late of Kershaw County. The only point passed upon by the probate judge was as to the seizin of Edward M. Boykin, and as to that he announced the conclusion ‘that Edward M. Boykin was not at any time seized in fee of the lands described in the petition or any part thereof, and his widow is not entitled to dower in said lands or any part thereof.’ The grounds of appeal served by the plaintiff, demandant in dower, question in different forms the correctness of this ruling and decree. Upon the hearing of the appeal there was submitted to me some oral evidence, which had been taken down in writing by the probate judge, and is not denied or contradicted. An instrument entered into between W. W. Bang, Sarah Lang, Serena C. Lang, Mary E. Lang, Sally W. Lang, C. A. Boykin, K. L. Boykin and Edward M. Boykin, dated August 1st, 1846: A conveyance of real estate from C. A. Boykin, K. L. Boykin, J. A. Boykin and Edward M. Boykin to Thomas Lang, dated January 15, 1849; and the bill, reports of commissioner, orders of the chancellor in equity for Kershaw District to Thomas Lang, made in pursuance of such orders, in a proceeding instituted in the court of equity for Kershaw District by Wm. W. Lang and wife et al. v. C. A. Boykin et al., in the year 1850. These papers all concern the same real estate, which is that out of which the demandant claims dower. It may be said that the facts in this case are admitted, as they are not disputed, and the questions involved arise upon the proper legal construction of the written instruments offered in evidence. The land in which dower is claimed, originally belonged to Duncan McRae, and in the division of his estate, under his will, fell to his daughter, Mrs. Sarah Lang, wife of Wm. W. Lang. All the parties to this controversy hold and claim under this common source.</p> <p>“The question submitted to me, under this appeal from the judgment of the probate court, is, did Edward M. Boy-kin, the husband of demandant in dower, have such an estate or interest in fee, in the land mentioned in petition, as that his widow is entitled to dower therein? Mary C. Boykin, the plaintiff, demandant, was, on August 1st, 1846, the wife of Edward M. Boykin, and is now his widow. My construction of the instrument in writing, entered into between W. W. Bang, Sarah Bang, Serena C. Bang, Mary E. Bang, Sally W. Bang, C. A. Boykin, K. B. Boykin and Edward M. Boykin, on August 1st, 1846, is that it passed an estate in fee simple to the said C. A. Boykin, K. B- Boykin, Edward M. Boykin and John A. Boykin. Apt words are used to pass such an estate, and there is nothing in the instrument showing a contrary intention. The Boykins above named, on January 15, 1849, executed to Thomas Bang an absolute deed of conveyance in fee simple of same land, with full covenants of warranty, but there is no renunciation of dower by Mary C. Boykin, the wife of Edward M. Boykin. I should have remarked above that Edward M. Boykin went into possession of the land out of which dower is demanded, under the conveyance of August 1st, 1846, and cultivated the land, remaining in possession until the conveyance to Thomas Bang, in January, 1849. It would appear that the parties interested came to the conclusion that it was best to apply to the court of equity to confirm what had been done, and validate an exchange of property which had been made, and the bill of W. W. Bang and wife et al. v. C. A. Boykin, et al., above referred to, was filed.</p> <p>“The defendants in this action for dower contend that, because the commissioner in equity was directed to and did convey the land to Thomas Bang under these proceedings in equity, the conclusion follows that the Boykins were never seized in fee of the land, and that Thomas Bang, under whom Springs & Shannon claim, derived his title from the commissioner in equity and not from the. Boykins. But an examination and proper construction of these proceedings in equity will show that the lands were treated and considered therein as having been conveyed in fee bjr the Bangs to the Boykins. The status of Thomas Bang and his right to the lands is based upon the fact that he had derived title from the Boykins; this title of the Boykins is recognized by all parties, and the land is ordered to be conveyed to Thomas Lang as the property of the Boykins. But even if it had been attempted in these proceedings to put a different construction upon the dealings between the Langs and Boykins as to the land, Mary C. Boykin, then the wife of Edward M. Boykin, could not be affected thereby, as she was not a party to the bill in equity. Under the title derived by him froip the Boykins, Thomas Lang went into possession of the land in 1849, and he and those holding under him, including Springs & Shannon, the defendants in this proceeding in ■dower, have held the land ever since.</p> <p>“My conclusion, therefore, is that Edward M. Boykin, the husband of the plaintiff, demandant in dower, was seized of an estate in fee simple in an undivided interest of one-fourth ( ) in the lands described in the proceedings herein, during his coverture with the plaintiff, demandant, and that she is entitled to dower therein.”</p> <p>Erom this decree the defendants appeal.</p> <p>cites: 6 Rich. Eq., 72; 20 S. C., 550; 25 S. C., 337; 22 S. C., 446; 1 Scrib. on Dow., 359.</p> <p>cite: 25 S. C., 337; 22 S. C., 457; 5 Ency., 1 ed., 892; 9 Rich., 378; 12 S: C., 62.</p>

<p>Action by Mattie Moore against Ben W: Ewbanks. From Circuit decree sustaining judgment of magistrate, plaintiff appeals.</p> <p>No argument furnished Reporter.</p> <p>cites: Remedy provided by the act is exclusive: 4 Wend., 668;15 S. C., 487; 11 Rich., 245; 1 Wool., 103.</p>

<p>Action by The Computing Scales Co. against J. W. Long. From judgment of Circuit Court, defendant appeals.</p> <p>cites : Motion to strike out at trial comes too late: C. C. Rule XX.; 11 S. C., 409 ; 12 S. C., 130; 52 S. C., 205; 50 S. C., 514. As to the right of defendant to rescind: 37 S. C., 18; 2 Rich., 40; 27 S. C., 376; 30 S. C., 15; 19 Ency. P. & P., 38; 36 S. C., 66; 33 L. R. A., 103; Benj. on Sales, 6 Am. ed., 600, 603, 605; 66 Md., 391; 58 Md., 59; 21 Ency.,' 6, 49; 25 S. C., 136; 22 Ency., 270. As to infringement: 22 Ency., 459 ; 5 Pat. Off. Gaz., 491; 11 Fed. Cas., No. 242; 36 Fed. R., 186; 56 Fed. R., 589; 8 Fed. R., 269; 22 Ency., 2 ed., 272; 5 U. S. Stat., 543; 12 Id., 248, 333, 276; Rev. Stat. U. S., sec. 4929; 42 Fed. R., 410; 22 Ency., 2 ed., 467, 458; 87 Fed. R., 559. Bederal Courts have exclusive jurisdiction of suits as to infringement, &c.: 22 Ency., 2 ed., 479 ;'U. S. Rev. St., sec. 629, sub. 9,. sec -711, sub. 5. State Courts have jurisdiction where the patent right is a collateral issue: 16 Conn., 409; 17 111., 179; 57 N. C., 124; 47 N. Y., 662. The account does not bear interest: 30 S. C., 177; 2 Bail., 173; 5 Rich., 376; 29 S. C., 590.</p> <p>No printed argument.</p>

<p>Action for possession of land by H. B. Senterfeit et al. against Amanda Shealy et al. From order sustaining demurrer to complaint, plaintiffs appeal.</p> <p>Messrs. Bhrd & Dreher cite; 37 S. C., 50; 35 S. C., 310; 65 S. C., 384.</p> <p>No •argument furnished Reporter.</p>

Action by Robert H. Jennings as clerk vs. Flenry Parr et al. From Circuit order, defendant, Parr, appeals. Mr. Ragsdale cites: Rule as to partial payments: 2 McC. Ch., 1, 185, 207. But under the facts here the payments in iquestion are interest-bearing funds: 1 DeS., 366, 489; 3 DeS., 497; 4 DeS., 110; N. & McC., 45; 1 McC., 409; 2 McC., 125; 3 McC., 498; 4 McC., 392; 1 Bail., 201; 2 Bail., 274; Dud. Eq.,- 85; Chev., 61; 2 Speer, 594; 4 Strob.

Action by Morgan and Austin against J. A. Sammons. Defendant appeals from order of Judge Gary requiring •answer to be amended, and of Judge Watts striking out answer and giving judgment to plaintiffs. cite: Was original answer sufficient: 2 Bail., 416; 59 S. C., 256; Code Proc., 179, 180, 181, 170. Amended answer was sufficient: Code Proc., 170, 180, 181; 65 S. C., 409. cites: What answer '¡mist contain: Code Proc.,' 170, 181.

<p>Indictment for murder against John Hudson, Henry Hudson, Money Hudson, Jack Centell, Thomas Hudson and George Hudson. The three first were convicted of manslaughter and appeal.</p> <p>cite: As to lazv of circumstantial evidence: 35 S. C., 16; 49 S. C., 285. As to complicity in crime: 36 S. C., 524; 6 Ency., 2 ed., 871; 109 Ala., 11; 49 S. C., 550.</p>

Prosecution in magistrate court against Wade Long for failure to- perform contract to labor on farm after receiving advances. From Circuit order reversing magistrate, State appeals. cites: The lazu of labor contracts: Crim. Code, 1902, 355, 357. Hssentials of such contracts: 32 S. C., 123; Gen. Stat, secs. 2081, 2084; 56 S. C., 420.

Indictment for murder against H. G. Box. From verdict and sentence of manslaughter, defendant appeals because of refusal of trial Judge to grant motion of continuance.

Action by Marshall Gunter against Seivern and Knoxville Railroad Company. From order dismissing complaint on demurrer, plaintiff appeals. The latter cite: As to the rule of title by delivery, statute: Code, 1902, 2655; Gen. Stat., 1882, 2022. The general law: 21 Ency., 1 ed., 633, 661, 567, 568, 570, 571; Ben. on Sales, 3d ed., secs. 358, 391, 444, 459. (Reporter furnished no argument. )

Petition of Katie E. Richardson in ex parte Thos. L. Enicks in re estate of Thos. L. Enicks. From Circuit decree, petitioner appeals. cite: Children of testator took 'a vested transmissible interest, upon their marriage or majority it vested and upon their death passed to their heirs: 1 Hill Ch., 259; 1 Strob. Eq., 44; 10 S. C., 386; 23 S. C., 512; Speer’s Eq., 412; 4 Rich. Eq., 481; 10 Rich. Eq., 405; 11 Rich.

<p>Indictment against Henry Gilliam for murder. From sentence to life imprisonment, defendant appeals.</p>

Action by C. G. Parish against S. S. Smith, A. L. Thomson and Louis Roth. From judgment for plaintiff, defendants appeal. cites: If bond was signed under belief that sheriff had all property described in the complaint, it zvas mistake, and should be relieved against: 2 Bail., 623; 20 S. C., 331; 44 S. C., 41. Verdict zmll not support entry of judgment for an amount of money: Code, 299; 18 S. C., 386; 30 S. C., 326 ; 19 S. C., 492; Code, 286; 19 S. C., 507.

Action by Jas. W. Boyd against The Winnsboro Granite Co. From order sustaining demurrer to complaint, plaintiff appeals. Mr. Hanahan cites: As to right of eminent domain: Mills on Em. Dom., 1; 22 Am. Dec., 695; 38 Am. Dec., 417; 138 N. Y., 408; Rand, on Em. Dom., sec. 56; 3 Bay, 56; 1 N. & McC., 391; 3 N. & McC., 538; 4 McC., 77; Rice, 397; Blacks Con. of Laws, 3 ed., 403; Sed.

Action by Philip H. Hutchison against town of Summerville. From judgment for plaintiff, defendant appeals. cite: Town is not responsible for error in judgment in repairing sidewalk: 91 N. Y., 737; 29 Am. St. R., 737; 38 S. C., 282. Liability does not apply to new way: 43 S. C., 400. As to deñnition of actual damages: 51 S. C., 480. cite: Liability of municipalities: Code, 1902, 2023; 43 S. C., 398. Deñnition of actual damages is correct: Suth. on Dam., 17.

<p>Indictment for murder against Pinckney W. Hutto and Stonewall J. Hutto. From sentence on verdict of manslaughter against Pinckney W. Hutto, he appeals.</p>

Action by Joseph R. Gregory, clerk, as administrator of Wylie R. Duren, against Mary E. Perry, H. J. Beckham and Jane Gooch, heirs at law of James R. Massey, and Beckham, as his administrator. From order on Circuit, defendant appeals. cite: Order of Judge Gage, erroneous and void: 36 S. C., 563; 19 S. C., 286; 27 S. C., 24. Order of Judge Aldrich is appealable: 43 S. C., 187.

<p>Action by Barbara A. Thompson against The Family Protective Union of Boston. From judgment for plaintiff, defendant appeals.</p> <p>cites: Declarations of a ■person as to a past act are not admissible in his favor: Abb. Tr. Ev., 45; 1 Green, on Ev., 15 ed., 99, note a, 124, 123; 84 Ga., 711. Application is binding on insured: 11 Ency., 2 ed., 866, 867, 872, 876. Construction of application: 11 Ency., 933; 10 Am. R., 166, 176, 180.</p> <p>cite: Remarks as to letter was not charge on facts: 36 S. C., 534; 61 S. C., 21; 40 S. C., 31. ■ Duty of Judge to construe letter: 38 S. C., 417; 39 S. C., 281, 375, 383; 42 S. C., 58; 46 S- C., 220; 59 S. C., 591.</p>

<p>Action by E. C. DeWitt & Co. against J. F. Culpepper. From order of Circuit Court reversing judgment of magistrate, plaintiff appeals.</p>

<p>Indictment against Julius Foster for murder. From sentence on verdict of guilty, with recommendation to mercy, defendant appeals.</p>

Action by Thomas Willett against Southern Railway Co. From Circuit order affirming magistrate judgment, defendant appeals. Messrs. Hendersons cite: Plaintiff must prove that defendant caused the doomage: Code, 1902, 2176; 58 S. C., 247; 26 S. ■ C., 258. Sec. 21†6, Code, 7902, places liability on first carrier: 33 S, C., 359; 43 S. C., 461.

<p>1. Jury — Nonsuit—Appliances—Negligence—Master and Servant-— Risks. — Where the evidence shows that the danger in place furnished employee to work is not apparent but latent, the question of negligence of master should go to the jury. Rule as to when question of negligence should go to the jury and doctrine of assumption of risks stated.</p> <p>2. A Nonsuit should not be granted where it is based on an assumption of facts in dispute, and in ascertaining this, this Court will consider all the testimony in a case.</p>

Actions by A. H. White against Commercial and Farmers’ Bank et al.; Blanche McElhaney, admx., against R. Lee Kerr et al., and Blackman,… Held: T find that he transferred his twelve shares of stock ho R. Lee Kerr on the 14th day of August, 1899, in good faith, for value received, and at the time of the transfer of said stock he instructed the said R. Lee Kerr to enter the transfer on the books of the bank ; but that Kerr failed to carry out his instructions', and the…

Motion to set aside order of nonsuit in action by Catherine J. Taylor against Lydia A. Dempsey. The following is the affidavit of F. E. Dreher used before Judge Dantzler: “Personally comes F. E. Dreher, who on oath says: That he is a member of the law firm of Efird & Dreher, plaintiff’s attorneys in the above stated case.

<p>Action by Ransom Sims against Southern Railway Co. From order of nonsuit, plaintiff appeals.</p> <p>cites: Duty of master in furnishing machinery: 20 Ency., 913 ; 15 S. C., 443; 18 S. C., 275; 40 S. C., 109; 34 S. C., 281. Liable for negligence of inspector: 12 Ency., 958, 962; 23 S. C., 531; 18 S. C., 268; 67 E. R., 569; 34 U. S., 1; 39 S. C., 750. Engineer controls fireman: 12 Ency., 986; 51 S. C., 447; 56 S. C., 446; 60 S. C., 10; 61 S. C., 468.</p> <p>cite: No appeal lies from order of nonsuit without entry of judgment thereon: 63 S. C., 123; 59 S. C., 557. Mere fact of injury to an employee does not raise presumption of negligence: 1 Bail. P. I. M. & S., secs. 1597, 1659; 179 U. S., 658; 166 U. S., 117; 48 S. C., 383. Master is not required to furnish absolutely safe appliances: 34 S. C., 214; 51 S. C,. 308; 15 S. C., 456; Black's Law and Pr. in Acc.. Cases, sec. 176. Injury must be proximate cause of negligence charged: 21 S. C., 470; 26 S. C., 490; 57 S. C., 435; 33 S. C., 198; 45 S. C., 278; 58 S. C., 493. Engineer and fireman are fellow-servants: 1 McM., 385; Con., art. IX., sec. 15; 56 S. C., 446.</p>

<p>Action by Frank H. Creech against Charleston and Western Carolina Railway Co. From order overruling demurrer to complaint, defendant appeals.</p> <p>cite: No negligence alleged: 25 S. C., 24; 35 S. C., 381. Statute requiring stopping at railroad crossings does not apply to passengers: 44 111. App., 5.6; 38 S. C., 136; 39 S. C., 514; 64 S- C., 316, 546. Violation of 'railroad regulations here is not negligence to plaintiff: 21 S. C., 466; 26 S. C., 490; 29 S. C., 96; 22 S. C., 557; 27 S. C., 71; 64 S. C., 553. As to negligence in getting on or off moving trains: 62 S. C., 130; 5 Ency., 2 ed., 655; 8 Col., 163; 48 Neb., 65; 40 La. Ann., 800; 163 Mass., 245; 67 Miss., 604; 128 Mo., 661; 91 Ala., 421; 108 N. C., 34.</p> <p>The former cite: To render complaint demurrable therefor, it should appear from facts stated conclusively that plaintiff zuas guilty of contributory negligence: 63 N. W., 1027; 91 Ala., 421; 99 Ala., 545; 75 Mo., 475; 69 N. Y., 196; 49 N. Y., 177; 56 N. Y., 302; 4 Robt., 377; 63 N. Y., 556.</p>

<p>Action by R. G. Saverance against W. J. Lockhart. From order as to taxation of costs, plaintiff appeals.</p> <p>cite: 23 Stat., 620; 2 Ency. P. & P., 237; Code of Proc., 345, 339, 340, 342, 346, 348, 349, 354, 355, 356.</p>

<p>Action by J. Blake Steedman against South Carolina and Georgia Extension Railroad Co. From judgment for defendant, plaintiff appeals;</p> <p>Mr. Smith cites: Do the allegations support actual and punitive damages? 61 S. C., 170; 57 S. C., 228; 60 S. C., 48.</p> <p>Mr. Trantham cites: On same point: 57 S. C., 228; 60 S. C., 48, 67; 62 S. C., 325; 61 S. C., 170; 65 S. C., 93; 65 S. C., 122, 222; 38 S. C., 485.</p> <p>No argument furnished Reporter.</p>