Volume 67 — South Carolina Reports

<p>Before Watts, J., Marlboro, January, 1901.</p> <p>Proceeding under lien law by R. L. and T. M. Newton against Sarius M. Odom. From Circuit order dismissing the proceedings, the petitioners appeal. The following is a copy of the will of Younger S. Newton in question here:</p> <p>“The State of South Carolina, County of Marlboro.</p> <p>“I, Younger S. Newton, being of sound and disposing mind and memory, do make, ordain, publish and declare this to be my last will and testament, in manner and form following, hereby revoking all former wills made by me:</p> <p>“Item First. — It is my will and desire that all my just debts and funeral expenses, including a suitable monument to my grave, be paid from my personal estate, as hereinafter more particularly named.</p> <p>“Item Second. — I give, bequeath, and devise to my beloved wife, Sarah, all my landed estate for and during the term of her natural life, subject, however, to the provision hereinafter made out of the same for my children. I also bequeath to her all my personal estate, including money left by me, subject also to the terms of Item Sixth, hereinafter contained.</p> <p>“Item Third. — I give, bequeath, and devise the interest in remainder after the termination of said life-estate in my said lands to my children, Lucy Ellen Odom, Mary Frances Terry, Robert L. Newton, and Thomas M. Newton, and they are each to have the portion laid off to him and her without rent during the life of my said wife, and after death such portion laid off to each is to belong to him and her, and then the remainder of the lands is to be sold and the proceeds equally divided among my said children, share and share alike.</p> <p>“Item Fourth. — The land which I devise in third clause above to my daughters, Mary Frances and Lucy Ellen, I give to them on the condition that should they, or either of them, die leaving no issue of their bodies, them or either of them surviving, that the same revert to my estate and go under the terms of this Will to my said sons, share and share alike; the child or children of either of said sons dying to take his share; but if either of my said daughters leaves issue her surviving, such issue is to take the portion given to the mother represented by them.</p> <p>s “Item Fifth. — It is my will and desire, and I so direct, that my executors, hereinafter named, do sell all my lands in the State of North Carolina, including about one hundred and fifty acres, near Old Mark’s Creek church, in Richmond County, and the Eli Smith tract, of about one hundred and eighty acres, and that the proceeds of such sale be divided among my said children, share and share alike, the child or children of any dying, to take its or their parent’s part.</p> <p>“Item Sixth. — It is my will and desire that mj^ executors, hereinafter named, do make sale of all my personal property, except such as my said wife may elect to keep, and out of the proceeds pay the obligations, and so forth, named in Item First hereof, and also the expenses of executing this will, and that they divide the remainder among my said children, share and share alike, the children of any dying to take the portion of their parent. .</p> <p>“Item Seventh. — The proceeds of sale of the home place to be divided as stated in Item Third above, are not to be subject to the limitations of Item Fourth, as regards the shares of my said daughters.</p> <p>“Item Bighth. — I hereby appoint my trusted friend, Daniel J. Odom, and my sons, Robert and Thomas, executors of this last will, and I empower them to make titles under the sales hereinbefore provided for to the purchasers; and in case one or more of them should die before making such titles, or any one should not qualify, I empower the remaining executor or executors to carry out the provisions hereof and make such titles. And they are to act in all respects under the counsel of my trusted friend and kinsman, H. H. Newton, as their attorney.</p> <p>“In testimony whereof I have hereunto set my hand and affixed my seal the 21st day of October, A. D. 1899.</p> <p>his</p> <p>“Younger X Newton. (Seal.)”</p> <p>mark.</p> <p>cite: Plaintiffs are entitled to remedy sought: Code, 1902, 3062, 3057, 3060; 18 S. C., 182. Sec. 1927, Rev. Stat., fixed relation of landlord and tenant: 2 McC., 756; 1 Bail., 497; 1 Strob., 134.</p> <p>cites: Under the will each child held a license coupled with an interest: 18 Ency., 1147; 23'S. C., 17; 2 Hill, 534; 11 Rich., 621; 12 Rich., 314. If Mrs. Odom had only life estate, crops go to personal representative: Code, 1902, 2539-40; 1 Bay, 503; 2 McCh., 84: 1. Hill Ch., 193; 1 Strob. Eq., 370; 3 Strob., 21. If petitioners entitled to double rent, they cannot invoke this remedy: Code, 1902, 2411; 5 Rich., 598; 14 S. C., 35; 15 S. C., 552; 20 S. C., 216; Code of Proc., 2; 13 S. -C., 406; 33 S. C., 235; Code, 1902, 3057, 3062; 14 S. C., 479; 20 S. C., 4; 24 S. C., 122: 21 S. C., 155.</p>

<p>Before Watts, J., Anderson, October, 1902.</p> <p>Proceeding to enforce a mechanic’s lien by Geo. A. Tenney against Anderson Wrater, Light and Power Co., State Trust Co., and Morton Trust Co. Prom Circuit order, plaintiff appeals.</p> <p>cite: Code, 1902, 3015, 3017, 3021, 3019; 20 S. C., 500; Code, 1902, 3008, 3012, 3014, 3015, 3028; 63 Fed. R., 726; 36 U. S. C. C. A,, 627; 21 How., 572; 93 111., 455; 54 S. C., 400; 15 S- C., 561; 30 S. C., 167; 45 S. C., Ill; 14 S. C., 35; 15 S. C., 476, 550; 20 S. C., 522; 17 S. C.„ 153; 30 S. C., 262; 22 S. C., 524; 19 S. C., 8; 14 How., 434.</p> <p>Mr. Tribble cites: Code, 1902, 3008, 3012, 3014, 3015, 3017; Boiset on Mech. Liens, secs. 507, 511; 20 S. C., 500; 22 S. C., 534; Code, 1902, 3021; 19 S. C., 1; 2 Pet., 264; 7 S. C., 263; 54 S. C., 385; Code, sec. 171, sub-div. 1; 19 Ency. P. & P., 730; 30 S. C., 126; 13 Ency. P. & P., 997; 20 Ency., 2 ed., 455; 1 Ed., Smith (N. Y.), 691; 4 Hill, 193; 20 N. Y., 651; 34 St. R., 630; 2 Jones on Liens, 1599; 54 111., 460; 2 Bail., 295; 5 Strob., 115; 10 Rich., 318; Pom. on Rem., 817, 835; 11 S. C., 337; 1 Pom. Eq., sec. 183; 13 S. C., 87; 13 S. C., 433; 16 S. C., 143; 27 S. C., 239; 8 Rich. Eq., 46; 10 S. C, 476; 23 S. C., 145; 15 S. C., 548.</p> <p>cite: 13 Ency. P. & P., 127; 58 Eed. R., 708; Code, sec. 89; 22 S. C., 539; 15 Ency., 1 ed., 173; Philips on Mech. Liens, secs. 423, 426; 47 S. C., 324; Boiset on Mech. Liens, sec. 589; 58 Hun., 608; 14 How., 425; 20 Ency., 2 ed:, 455; 13 Lea., 440.</p>

<p>Before Klugh, J., Colleton, March, 1902.</p> <p>Action for partition by Eleanor L. Glover against Mabel Yonge Gasque et al. From judgment for defendants other than heirs of Mary E. Grace, the plaintiff and the heirs of Mary E. Grace appeal, the plaintiff on the following exceptions :</p> <p>“1. Because, while the title to the land in dispute depended entirely on written documents, he left it to the jury to construe such written documents, to wit: a. He should have charged that the will in evidence and not disputed was Dr. Joseph Glover’s will, probated in 1840, and construed it, stating its terms and their meaning, and not left it to the jury to say whether there was such a will or not, nor what the terms thereof were. b. He should have charged that the deed from Francis Y. Glover, Jr., to Mary E. Grace, dated the day of 18 in evidence and not disputed, was the deed from Francis Y. Glover, Jr., to Ma'ry E. Grace, and conveyed to her the property purported to be conveyed from him to her in such deed, and not left it to the jury to say whether there was such a deed or not. Whether the deed was properly executed or not, was a question of law for the Judge to decide and not a question for the jury, and his Honor erred in leaving the question whether there was such a deed executed by Francis Y. Glover, Jr., to the jury.</p> <p>“2. Because his-Honor charged the jury that the ‘deed from Miss Glover to Mrs. Grace purports to convey to Mrs. Grace a moiety of the West Bank plantation;’ whereas, he should have charged that the saicLdeed purported to convey and did convey one-half of that part of West Bank plantation south of the Charleston and Savannah Railroad property, and no more. The purport of the deed as expressed in the deed being on Miss Glover’s part to convey all her right to ‘all that tract of land (in Colleton County) bounded on the north by. the Savannah and Charleston Railroad, separating it from the Bonham tract, containing 2,809 acres more or less, and particularly described on a copy of a compiled plat of the West Bank plantation made by Mr. Wilson, said copy, &c.,’ and the addition of the words at the close of the description, ‘being a moiety of the West Bank plantation, formerly the property of Dr. Joseph Glover,’ cannot affect the description that went before. ‘Nor does a recital conclude because it is not a direct affirmation.’ a. Because, if there rvere a conflict between the two parts of the deed, the rule is that ‘when there are two clauses in a deed of which the latter is contradictory of the former, the former shall stand,’ and the Judge should haA*e so charged the jury. b. Because, in deeds as in other contracts, ‘the intent of the parties govern,’ and his Honor should have interpreted the deed as the parties do now and always have done, viz: that they are tenants in common of all that part of- West Bank plantation which does not lie south of the Savannah and Charleston Railroad property, as it existed at the date of those deeds, 10th September, 1880, and that the circumstances rendered it impossible to reach any other conclusion, as to the intent of the parties, for the partition and taking possession of the property in 1880 could have been made only with the assent of the life tenant, and it is impossible to conceive that he would have permitted his daughter and his near relative, standing in the place of his son, to disturb a title that he had given for his lifetime and which was good only for his lifetime, for thirteen years after the interchange of the deeds, c. Because the deeds in -evidence, which the Court should have construed, show that when Francis Y. Glover, Jr., conveyed to Mrs. Grace the moiety of West Bank plantation,' its northern boundaries are not the Charleston and Savannah Road, but ‘lands of Prentiss and Hyott and others,’ which are, as the plat shows, to the north of the Charleston and Savannah Railroad, and West Bank plantation is described as containing 5,785 acres and 2,809x2 is 5,618, and the words north by the Charleston and Savannah Railroad, ‘separating it from a part of the Bonham tract,’ showing conclusively that the part of the Bonham tract to the north of the Charleston and Savannah Railroad, and the sole subject of the litigation, was not included in the deed from Miss Glover to Mrs. Grace. That by the above errors it is submitted the jury was misled.</p> <p>“3. Because the Judge left it to the jury to decide whether or not Miss Glover had by her deed conveyed to- Mrs. Grace the part of West Bank plantation to the north of the Charleston and Savannah Railroad; his duty being to construe all the written documents, deeds as well as plats, and say whether by the correct interpretation of these deeds she had done so.</p> <p>“4. a. Because he charged, ‘If you should conclude that by the partition between Miss Glover and Mrs. Grace they did malee a complete partition of the entire West Bank plantation, then you can stop rignt there and find verdict for the defendants,’ meaning the defendants other than the heirs of Mrs. Grace, as is shown by the charge a few' lines below; whereas, his Honor should have charged, if at all correct in leaving the question to the jury, that even if Miss Glover had no rights in the case, the jury should still decide between the Graces and the other defendants, b. Because in making this charge his Honor charged upon the facts of the case.</p> <p>“5. Because his Honor charged, ‘If you conclude that the title has passed out of them, or either of them, to these other defendants or anybody else, if the evidence establishes that, your verdict will be in favor of the defendants, other than the heirs of Mrs. Grace;’ whereas, the Court should have construed the deeds, &c., itself, and decided whether or not ‘the title had passed out of them,’ viz: the plaintiff and the Grace heirs.</p> <p>“6. Because he refused the plaintiff’s seventh request to charge, viz: that if the jury found the land in dispute to be a part of the West Bank plantation, and Miss Glover to be the daughter of Francis Y. Glover, she is entitled to one undivided half of such land, and left it to the jury to determine whether the partition made by the deeds from Mrs. Grace to Miss Glover and Miss Glover to Mrs. Grace was a partition of the whole of West Bank plantation, or of only all of it to the south of the property of the Charleston and Savannah Railroad, as it existed in 1880.</p> <p>“7. Because he refused the motion for a new trial, the verdict having no evidence whatsoever to support it; the testimony showing: 1st. That the will of Dr. Joseph Glover, probated in 1840, giving to his son, Dr. Francis Y. Glover, the West Bank plantation for life, and after his death to his (Francis Y. Glover’s) children, who attained the age of twenty-one years. 2d. That Dr. Francis Y. Glover died 6th of October, 1896, leaving surviving him his two children, Eleanor D. Glover and Francis Y. Glover, Jr., both of whom attained the age of twenty-one years, and that Miss Eleanor L. Glover is still alive. 3. That Francis Y. Glover, Jr., after attaining the age of twenty-one years, conveyed to Mary E. Grace, by deed dated January, 1874, and duly recorded 16th January, 1874, ‘All my right, title and interest whether the same be present or in the future to be acquired by gift, grant, demise, operation of law, or by contract of parties or otherwise, of, in, or to that certain piece, parcel, or tract of land situate in Colleton County and State aforesaid, described as follows: bounded on the north by land of Prentiss and Hiott and others, east by Edisto River, south by lands of C. R. Clifford and Morris, and on the west by Deer Greek, said to contain 5,785 acres.’ 4th. That Mrs. Mary E. Grace and Miss Eleanor R. Glover executed and delivered to each other on 10th September, 1880, interchangeable deeds. That from Miss Glover to Mrs. Grace conveys, ‘All my right, title and interest to all that tract of land situate'in the county of Colleton and State of South Carolina, and bounded on the'north by the 'Savannah and Charleston Railroad, separating it from a part of the Bonham tract, on the south by lands conveyed to me, the said Eleanor R. Glover, by the said Mary E. Grace, of date September 10, 1880, on the east by the Pon Pon River, and bn the west by lands of the estate of Elliott and Deer Creek, containing 2,809 acres, more or less, and particularly described on a copy of a compiled plat of the West Bank plantation by Mr. Wilson, said copy made on the 10th October, 1876, by A. C. Griffith, surveyor, and indicated on said plat by letters, A. B. Z. D. E. R. G. H. X. W. to A. Being a moiety of the West Bank plantation, formerly the property of Dr. Joseph Glover.’ The deed from Mrs. Grace to Miss Glover conveys the southern part of West Bank plantation bounding north on lands of Mary E. Grace,' containing 2,800 acres, and designated by certain letters on the plats mentioned in Miss Glover’s deed to Mrs. Grace. 5th. That by the plats and the uncontradicted testimony, the Bonham tract formed a part of the West Bank plantation, lying partly to the north and partly to the south of the Charleston and Savannah Railroad. 6th. That by the deed from Dr. Erancis Y. Glover, dated 15th October, 1883, and recorded 24th October, 1883, Dr. Glover recites that in 1859 he had conveyed to the Charleston and Savannah Railroad Company the right of way and in addition four acres, being á part of the town of Jacksonboro, both being a part'of the West Bank plantation. 7th. That this action is only for the said four acres and that part of the West Bank plantation lying to the north of the. railroad. 8th. All the defendants other than the heirs of Mary E. Grace are in possession of the parts of this land (Bonham tract, consisting- of acres and forming a part of West Bank plantation), and trace their titles back to Dr. Erancis Y. Glover or to Mary E. Grace and no other person.</p> <p>“8. None of these facts were disputed, and his Honor, therefore, erred in refusing the motion for the new trial.</p> <p>“9. His Honor erred in his understanding of the facts in the case. a. That nothing ‘south of the railroad track was involved in this contention.’ It is the misfortune of counsel that his Honor failed to comprehend their contention in this case; for both in the statement of their contention and argument they endeavored to contend exactly the reverse. In 1859, confirmed by the deed of 1883, Dr. Erancis Y. Glover had conveyed to the railroad company, not. only the right of way but also the four acres forming a part of Jacksonboro,' two acres being to the south of the right of way. The northern boundary in the deeds between Miss Glover and Mrs. Grace is not the railroad’s right of way (no one contended that it was narrowed to the mere track) but railroad. The deeds Glover to Grace and Grace to Glover were delivered in September, 1880. Dr. E. Y. Glover died in 1896, October, sixteen years later. So at the time of the partition between Miss Glover and Mrs. Grace, the two lots were the property of the railroad (for the life of Dr. E. Y. Glover, it is true, but still its property), and the contention was that when the word ‘railroad’ was used, it meant the property of the railroad, 'and that to impute any other meaning to the words was the reductio ad absurdum, for then it could mean only the land contained between the railroad track, which was absurd, and it is the misfortune of counsel that his Honor misunderstood them so entirely as to say, ‘their (plaintiff and the Grace heirs) whole theory was that the Savannah and Charleston Road simply meant the railroad track.5 b. ‘Well, then, the land that lies north of the railroad track is the land that was in contention between them and these other adverse defendants, and the jury was confined to that by the pleadings.5 The complaint describes the land as follows: ‘South by lands formerly of Mary E. Grace, now of the defendants, her children (none was then dead), and C. M. Grace and land of John Boyd * * * having such shape, marks, courses and distances as are particularly set out'on a plat of the same made by A. J. Lemacks, surveyor, on the 22d of April, 1897, and in the possession of the plaintiff’s solicitors ready to be produced whenever required.5 This plat was produced and proved at the trial, and shows most distinctly that the two lots to the south of the railroad’s right of way were claimed. His Honor, it is most respectfully submitted, erred in the above respect in regard to this part of the case, which he terms as one of ‘confusing and distracting circumstances’ — ‘one of the most mixed up I have ever heard.5</p> <p>“10. Because he abused his discretion in refusing a new trial, and relying on a second action to rectify a wrong; whereas, the records showed that there had been a discontinuance in this action, and whether it barred a second action or not, it should not have influenced his Honor without hearing argument upon it.</p> <p>“11. Because in charging, ‘you may conclude, if the evidence leading you to the'conclusion is a satisfactory conclusion to you, you may conclude that the deed did convey the whole of the northern tract of land (i. e., land north of the Charleston and Savannah Railroad). If you are not satisfied by the preponderance of the evidence that that is the true conclusion of the deed or the true state of facts as established,5 his Honor erred, a. In charging on the facts, clearly intimating his opinion that that part of the Bonham tract to the north of the Charleston and Savannah Railroad property did pass under the deed from Miss Glover to Mrs. Grace, b. In leaving the construction of the deed to the jury.</p> <p>“12. Because in charging, ‘So we come to the contention of the heirs of Mrs. Grace, who contend, first of all, that there was a complete partition made at that time, and that subsequently Mrs. Grace, either herself or other people who claimed under her, to whom she had parted with her right to the land, made conveyances to them, i. e., tO' all the defendants who are in possession and claiming parts of the land/ his Honor erred in ignoring the fact that many of the ‘defendants who are in possession and claiming parts of the land’ are in such possession and claim such parts by deeds from Dr. Francis Y. Glover, the life tenant, and not from Mrs. Grace, directly or indirectly.</p> <p>“13. In charging, ‘You will have to write a long verdict if you conclude to award damages against each one. If you conclude that Miss Glover and the heirs of Mrs. Grace are not entitled to recover the land for any reason', then your verdict will be: “we find for the defendants other than the heirs of Mrs. Grace,’ ” his Honor thereby influenced the jury to find a short verdict and not a troublesome one to frame.</p> <p>“14. Because his Honor erred in rejecting all testimony relative to the transactions between the plaintiff through her agent and attorney in regard to the four lots comprising the part of Jacksonboro with the railroad company, the testimony being that some of the defendants other than the heirs of Mrs. Grace held said lots by leases from the railroad company, and it is submitted that as a tenant cannot deny his landlord’s title, any evidence which would have shown that the railroad company surrendered these lots to such agent and attorney, was not only competent and relevant but also material.”</p> <p>The defendants, the heirs of Mary E. Grace, on the following exceptions:</p> <p>“ (1). Because his Honor erred in not construing the deed of conveyance of Eleanor L. Glover to Mary E. Grace as only a release ’of her interest in that part of the West Bank plantation lying south of the property of the Charleston and Savannah Railway Company, leaving undivided between them all of the lands of the said West Bank plantation lying north of the lands or property of the said railway company, and that the word moiety used in said deed referred only to the lands divided of the said West Bank plantation lying south of the lands of the said railway company, and also erred in leaving the construction of said deed to the jury.</p> <p>“(2). Because his Honor erred in charging the jury as follows: ‘If Miss Glover has parted in the deed to Mrs. Grace with all of the West Bank plantation except what Mrs. Grace conveyed to Miss Glover, that is the southern part of it,'then she has no further interest in the suit here. You understand that if Miss Glover by this deed to Mrs. Grace intended to convey the whole of the northern half or moiety of the West Bank plantation, then she parted with her entire interest in it, and has no further claim to it. She is stopped by estoppel and stopped by her deed of conveyance, that is the point which you must first determine in this ■ case. If you should conclude that by the partition between Miss Glover and Mrs. Grace they did malee a complete partition of the entire West Bank plantation, then you may stop right there and find a verdict for the defendants, because there could be no claim for partition here if that should be the case between Miss Glover and the heirs of Mrs. Grace. That is a point for you to determine, and it is only an incident to the action you and I are now seeking to; settle — that is, the right of the plaintiff and these other people to recover possession from these parties in possession and have it partitioned. If there is no rightful partition, of course, the balance of the case will fall to the ground. In the determination of the question, then, as to whether or not there was a complete partition made, you, of course, will be governed by the terms of the deed, especially this deed from Eleanor R. Glover to Mary E. Grace, which describes the land ás being bounded on the north by the Charleston and Savannah Road, also states that the railroad separates the land from a part of’thé Bonham tract;’ whereas, he should have charged 'the jury that the construction of the deed of conveyance from Miss Glover to Mrs. Grace belonged exclusively to the Court, and that the jury were bound to take the Court’s interpretation of the said deed; that the intention of the grantor, as gathered from the whole instrument and all the surrounding circumstances, was only to release to the said Mary E Grace that portion of the West Bank plantation lying south of the land of the Charleston and Savannah Railway Company’s land, and not to make a complete and entire division of the whole of the West Bank plantation, but only of that portion lying to the south of the said railway company’s lands, leaving the portion of the said plantation to the north of the said railway company’s lands undivided, the same being a part of the Bonham tract, which tract formerly composed a part of the entire West Bank plantation; that such being the construction of the deed by the Court, and there being no contest as to said deed, the verdict of the jury would have to be in favor of the plaintiff and the heirs of Mar}'- E- Grace, for all lands of the West Bank plantation lying north of the land of the Charleston and Savannah Railway Company’s land, and that under the construction of the said deed by the Court, Miss Glover and the heirs of Mary E. Grace woulcfbe entitled to partition of said land among them.</p> <p>“(3) Because his Honor erred in leaving the construction and interpretation of the deed of Miss Glover to Mary E. Grace to the jury, it being left by the Court to the jury to say what was the intention of the grantor in making such deed and to say from its terms whether or not the division between them was intended to be a complete division of the entire West Bank plantation, a question that could only be answered by a construction of the language used and the terms employed as gathered from the whole instrument and all the surrounding circumstances — an answer to be given exclusively by the Court and not by the jury.</p> <p>“(4). Because his Honor erred in his charge in leaving it to the jury to say whether or not that portion of the West Bank plantation lying north of the Charleston and Savannah Railroad was included in the partition between Miss Glover and Mrs. Grace — a question that could only be determined by a construction of the deed from Miss Glover to Mrs. Grace from1 the language used and the terms employed in the instrument itself.</p> <p>“(5). Because his Honor erred in charging the jury, ‘that in case their verdict should be in favor of the plaintiff, it should be not only for the land but for the rental value as against each party in possession for the particular part that defendant holds/ as the issue of title alone could be determined by the jury, exclusive of the question of damages for the withholding of said lands. While no1 damages were found, it is not improbable that this charge had its influence upon the jury and in shaping their verdict.</p> <p>“(6). Because his 'Honor erred in directing the verdict of the jury, ‘we find for the defendants/ to be reformed so as to read, ‘we find for the defendants other than the heirs of Mary E. Grace/ thus giving the whole,of the lands north of the Charleston and Savannah Railroad to the defendants other than the heirs of Mary E. Grace, regardless of the fact whether or not the said Mary E. Grace, or any authorized person for her, had ever parted with the title to' the whole of these lands; especially when it was in evidence and known to the Court that the whole of the land on the north of the said railroad had never been conveyed away by the said Mary E-Grace, or by any one authorized to convey the same absolutely and forever.</p> <p>“(7). Because his Honor erred in refusing the motion of the plaintiff and the heirs of Mary E. Grace for a new trial from the finding of the jury on the issue of title raised by the answer of certain of the defendants and submitted to them; and in dismissing the complaint of the plaintiff without any hearing of the said cause on the equity side of the Court, and simply on the finding of the jury on the issue of title raised by the defendants other than the heirs of Mary E. Grace by their answers to plaintiff’s complaint for partition.”</p> <p>cite: As to construction of boundaries: 17 Ency., 2 ed., 8; 1 Brev., 301; 4 Green. Ev., 265. Where refusal of new trial is denial of justice, it should be reversed: 16 S. C., 124; 45 'S. C., 490; 58 S. C., 222; 54 S. C., 605.</p> <p>cites: Intention of parties to deed is essence of construction: 15 S. C., 32; 35 S. C., 314; 42 S. C., 312; 23 S. C., 235; 42 S. C., 58. As to damages against defendants: 23 S. C., 391. Court should not change a verdict: 41 S. C., 138; 37 S. C., 159; 13 S. C., 5.</p> <p>cite: As to construction of description: 1 Rich., 140; 4 Ency., 2 ed., 797. Misstatement of facts is not error of law: 42 S. C., 474.</p>

Before Watts, J., Greenville, November, 1903. Action by J. J. Cowart against- City Council of Greenville. From judgment for appellant, plaintiff appeals. cites: Payment need not be under protest: 4-6 Am. R., 4; 24 Am. R., 633; 18 Ency., 1 eel., 318; 63 Am. R., MS; 4 E. R. A., 300; 3 Strob., 357. cites: Defendant had the right to classify: Con., art. VIII., sec. 6; 59 S. C., 4:37. But it must not be arbitrary: 165 U. S., 155; 63 S. C., 430.

<p>Before Klugh, J., Darlington, , 1902.</p> <p>Action by W. R. and C. V. Galloway, executors of Winnie A. Galloway, against Addison S. Galloway et al. From order overruling demurrer, defendant, D. W. Gilbert, appeals.</p> <p>No arguments furnished Reporter.</p>

Before Buchanan, J, Barnwell, December, 1903. Action by D. G. Richardson et al. against D. S. Riley, ei al. From judgment for plaintiff, defendants appeal. cite: On question decided: Code Proc, sec. 98, sub. 3; 33 N. Y, 347; Strob. L, 145; Bail D, 480. The former cite: On point decided: Code Proc, sec. 356; 56 S. C, 55; 57 S. C, 441; 36 S. C, 597; 1 Ency. P. & P, 597; 71 Cal, 453; 53 How. Pr, 336; 44 S. W, 741; 79 Mich, 174; Code Proc, 136, 165.

Before-J., Chesterfield, April, 1903. Proceeding in probate court to prove will in solemn form by Ex parte M. E. Jackson in re. will of Emily Huntley against Mary Allie Hursey et al. . From Circuit order, petitioner appeals. cite: 16 S. C., 45; 11 Stat., 47; 33 S. C., 447; 35 S. C., 421; 4 S. C., 44; 132 Mass., 356; 17 S. C., 33. The former cites: Code of 1902, 2493; 12 Rich.

Before Gage, J., Aiken, January, 1903. Action by Bennett Shealey against South Carolina and Georgia Railway Co. From judgment for defendant, plaintiff appeals. cite: As to proof of customs: Green on Ev., secs. 99, 137, 138, 149, 252. Duty of conductor to passengers alighting: Hutch, on Car., 726; 13 L. R. A., 97. As to charge on contributory negligence: 61 S. C., 353; 55 S. C., 397.

<p>Bankrupt — Fraud—Debtor and Creditor — Equity.—The remedy at law being adequate, it was not necessary for trustee in bankruptcy to resort to aid of court of equity to determine whether vendee of .bankrupt had reasonable cause to believe that bankrupt transferred the stock of goods to him intending to give him a preference over all his other creditors, and this Court cannot review the findings of fact of the Circuit Court.</p>

Before DanTzlEr, J., Charleston, January, 1903. Petition of Duncan J. Baker, as receiver of the Assistance Building and Loan Association, in re Buist, receiver, against Melchers. From Circuit decree, petitioner appeals. cites: On question of laches: 22 S. C., 589. Defendants should have brought in necessary parties: 6 S. C., 22. cite: As to control of receivers: High on Rec., secs. 202, 205. As to laches: 3 Rich. Eq., 368; 44 S. C., 46.

<p>Before Watts, J., Charleston, April, 1903.</p> <p>Action by Ann Riley and John F. Riley against Charleston Union Station Co., on the following complaint:</p> <p>“That plaintiffs above named, complaining of the defendant above named, allege:</p> <p>“1. That the plaintiffs, Ann Riley and John F. Riley, are each of them citizens of the State of South Carolina and of the United States, and residents of the city of Charleston, State of South Carolina.</p> <p>“2. That the defendant, Charleston Union Station Co., claims to be a corporation created by and under an act of the General Assembly of the State of South Carolina, approved 20th February, 1902, set forth in full at pages 1168, 1169 and 1170 of the 23d volume of the Statutes at Large of the State of South Carolina, reference to which is prayed in full as often as may be necessary.</p> <p>“3. That the plaintiff, Ann Riley, widow, is the owner in fee simple of all that piece or parcel of land, with residences and buildings thereon, situate, lying and being on the south side of Reid street, in the city of Charleston, State of South Carolina, measuring and containing in front on Reid street 165 feet, same on South street, by 200 feet in depth on the east and west lines, butting and bounding to the north on Reid street, to the south on South street, to the east on Bay. street, and to the west on land of M. Quinlivan. That the said plaintiff, Ann Riley, widow, has her home and residence on that part of the said lot, being the northeast corner of Reid and Bay streets, where she has lived for over twenty years, and now as widow occupies as her home, and that she has leased a portion of the said lot, being at the southeast corner of Bay street and South street, to plaintiff, John F. Riley, on which he has erected large machine shops, iron foundry and boiler works, from which she has received and is receiving large rental, said lot being most favorably situated for such business by reason of its advantageous central location.</p> <p>“4. That the plaintiff, John F. Riley, is lessee of a portion of said lot on the southeast corner of Bay and South streets, whereon he has erected large machine shops and boiler works and iron foundry, and wherein he has established and for many years conducted, and now conducts, business as a machinist, boiler maker and iron foundryman, and same has been, and now is, in full and active operation, employing a large force of skilled workmen, and being one of the largest iron works in the city of Charleston.</p> <p>“5. And that the said John F. Riley had also located and established large and extensive iron works and plants and machinery permanently in said shops, and has been, and is now, in large manufacturing operations, and filling large business orders, and said lease, and said machine shops, iron foundry and boiler works are of great value, because of the central business stand and location, and by reason of the long establishment of over nineteen years of the said works at such place, and also because of the advantageous location in terminal facilities for such business, and the same is absolutely necessary to the said plaintiff, John F. Riley, for the future successful conduct of his trade and business and industries. '</p> <p>“6. That the 'defendant, the Charleston Union Station Co., claiming to be incorporated by and under authority of the said act of the General Assembly of the State of South Carolina, approved 20th February, 1902, proceeding under and by authority of the said act, caused to be served upon each of the plaintiffs, on the 12th day of February, 1903, a notice in condemnation on the said property, copy of which is hereto annexed, marked ‘Exhibit A,’ reference to which is prayed, and in and by which notice said defendant claims that it ‘is authorized to acquire by condemnation land or easements therein for the purposes of its incorporation and for the construction of the tracks necessary and incident thereto,’ and for the purpose of said defendant a right of way over the said land of plaintiff, situated in the city of Charleston, is required, and the right of way so required is delineated on the plat of the same, annexed to the notice as part thereof, marked ‘Exhibit A,’ which shews twelve tracks and turntables upon said lot of land, and four tracks passing through the residence and home of the plaintiff, Ann Riley, and four tracks and turntables passing through the machine shops, boiler works and iron foundry of plaintiff, John F. Riley, to the complete destruction of said house, machine shops, boiler works and iron foundry.</p> <p>“7. That in and by said notice, said defendant has further notified said plaintiffs ‘that unless within thirty days of the service thereof upon you,'you shall in writing duly signify your refusal, the said Charleston Union Station Co. will presume that your consent has been given, and shall enter upon and take and hold said right of way, according to the provision of the said statutes aforesaid. In case of your refusing or remaining silent, the said Charleston Union Station Co. will proceed to have a jury empanelled to ascertain the amount which shall be paid you as just compensation for the right of way recpiired as aforesaid.’</p> <p>“8. Plaintiffs further allege that on the 12th day of March, 1903, previous to the commencement of this action, these plaintiffs have served on the defendant a notice of their refusal of consent of entry upon, or condemnation of, said lands or right of way thereon by said defendant company, a copy of which notice is hereto annexed as ‘Exhibit B.’</p> <p>“9. And plaintiffs further allege that the said defendant, claiming to act under the said act of the General Assembly as aforesaid, intends to proceed to condemn the said rights of way in said land, and to enter upon and occupy the same without the consent and against the will of the plaintiffs, the owner and lessee thereof, now in possession and use of the same, and to prevent the plaintiff, Ann Riley, widow, from further use and occupation of her home, with its associations for many years, in great violence to her feelings, and to the destruction of the-established and prosperous trade and industry and business aforesaid of John E. Riley, lessee, to the great, grievous and irreparable wrong and injury of the said plaintiffs.</p> <p>“10. The plaintiffs further allege that in and by the said act of the General Assembly of South Carolina, the defendant company is authorized to acquire, by purchase or condemnation, only such property as may be necessary for the purposes of its incorporation and operation as set forth in said act, more particularly reference to which is prayed.</p> <p>“11. Plaintiffs further allege that the right of way claimed and required by the defendant over said land of the plaintiff heretofore particularly described is not necessary for the purposes of its incorporation and operation as particularly set forth in said act.</p> <p>“12.' And plaintiffs further allege that the Southern Railway Co. and the Atlantic Coast Line Railroad Co. are the only two railroad systems entering the city of Chareston and having their termini in the city of Charleston; that officers of the said two railroad systems are the corporators and officers of the said defendant company, and all the stock of said defendant company was subscribed and now owned by the said Southern Railway Co. and Atlantic Coast Line Railroad Co., and that under and by the terms-of the said act of the General Assembly the said union station can now be leased or used only by the said Southern Railway Co. and the Atlantic Coast Line Railroad Co., both and each of which said railroad systems already have as railroad corporations, and the successors of railroad corpcTations, land heretofore already condemned for public use by and under power of emident domain, situated in the city of Charleston, suitable and sufficient and advantageously located for such union station for use of such railroads and all other railroads, and it is not necessary, but oppressive, to further exercise the power of eminent domain of the State of South Carolina by and through the said defendant company to condemn and take from the plaintiffs forcibly their lands and home and destroy their business for the benefit of the said Southern Railway Co. and the Atlantic Coast Line Railroad Co., in addition' to the lands now already owned by the said railroad systems, and each of them capable of serving the same public purpose and use.</p> <p>“13. Plaintiffs further allege that the said act of the legislature of South Carolina of incorporation of the defendant, the Charleston Union Station Co., is on its face and under the facts herein alleged unconstitutional, null and void on the following grounds, to wit: in that the same is repugnant to and in violation of the fifth and fourteenth amendments to the Constitution of the United States, prohibiting the depriving of any person of his property without due process of law, taking of private property for public use without just compensation, and denying to any person the equal protection of the law.</p> <p>“14. And plaintiffs further allege that the said act of incorporation of the Charleston Union Station Co., is on its face and under the facts herein alleged in this complaint, is also unconstitutional, null and void on each of the following grounds, to wit: in that the same is repugnant to, and in violation of, (a) Article I., section 5, of the Constitution of the State of South Carolina, in that it deprives plaintiffs of their property without due process of law and denies to plaintiff the equal protection of the laws, (b) Article L, section 17, of the Constitution of South Carolina, in that'it takes private porperty for private use and in that it'takes private property for alleged public use without just compensation being first made therefor, (c) Article III.., section 17, of the Constitution of the State of South Carolina, in that it relates to more than the one subject expressed in its title, (d) Article III., section 34, of the Constitution of the State of South Carolina, in that it being a case where for the establishment and incorporation of union stations in the State of South Carolina, a general law can be made applicable, a special law (to wit: said act) has been enacted, (e) Article IX.; section 2, of the Constitution of the State of South Carolina, in that the same, not being a genéral law, but a special law, amends the existing charter of the railroad companies now entering Charleston, to wit: The Southern Railway Co. and the Atlantic Coast Line Railroad Co., b}r conferring the right upon such railroad companies to guarantee the principal and interest of the bonds of said Charleston Union Station Co. and to guarantee the performance of any other contract whatsoever, that such Union Station Co. may make in regard to its corporate interest, and also in that it confers upon such railroad companies the right to subscribe to and hold stock in, or bonds of, the said Charleston Union Station Co. (f) Article IX., section 20, of the Constitution of the State of South Carolina, providing that no right of way shall be appropriated to the use of any corporation until full compensation therefor shall first be made to the owner or secured by a deposit of money, irrespective of any benefit from any improvement proposed by such corporation, (g) Article VIII., section 4, of the Constitution of South Carolina, in that the said act of incorporation granting the right to lay and to operate railroad track or tracks along the streets of Charleston and on the said streets abutting the said premises of plaintiff, as claimed, set forth and delineated in such plan attached to ‘Exhibit A,’ filed in this Court, was passed by the General Assembly without first obtaining the consent of the city council of Charleston, in control of the streets proposed to be occupied by defendant for such purpose.</p> <p>“15. The plaintiffs further allege for the reasons herein-before specifically set forth, the said proceedings of condemnation begun and threatened on the part of the defendant under the alleged act of incorporation, are and would be without authority of law and without due process of law.</p> <p>“16. That plaintiffs further allege that the said defendant claims and insists that the said alleged proceedings in condemnation under said act of its incorporation are statutory proceedings to be strictly followed and enforced, and the plaintiffs are deprived therein and thereby of any and all opportunity to raise any of the questions aforesaid, or to protect their right of property and use and occupation of the same; and if defendant is permitted to proceed under the said alleged act, the plaintiffs will suffer irreparable injury and, against their consent and will, be deprived of their property and the use and occupation of the same, and suffer the destruction of the great industrial works and ruin of plaintiff’s trade and business now being conducted thereon, as aforesaid, to their great damage, and the said property will be taken by the said defendant without an opportunity having been afforded to these plaintiffs to assert and maintain and defend their rights of property before this Court.</p> <p>“17. That plaintiffs have no adequate remedy at law, and can be relieved and protected only by the interposition of a court of equity, where matters of this nature are cognizable, and by an injunction of this honorable Court.</p> <p>“Wherefore, plaintiffs pray judgment as follows:</p> <p>“1. That the defendant, the Charleston Union Station Co., and all persons acting under it, and also all of its servants, agents, officers, employees and attorneys, be perpetualy enjoined and restrained from proceeding, or attempting to proceed, under its said act of incorporation to condemn the land or right of way over the land and premises of the plaintiffs, hereinbefore particularly described, and from entering, or attempting to enter, upon the land and premises of the said plaintiffs, or either of them, or from taking possession of or appropriating to its use the lands or right of way over the same as aforesaid.</p> <p>“2. That in the meantime and until the final hearing of this cause, this Court do issue a temporary injunction enjoining and restraining the said defendants from doing, or attempting to do, the acts hereinbefore set forth and as hereinbefore prayed.</p> <p>“3. For such other and further relief as may be just and equitable.”</p> <p>From Circuit order dissolving temporary injunction, plaintiffs appeal.</p> <p>cite: On question decided: 2 Lewis on Em. Dom., 892, 894-5; 9 Rich., 228; 10 Ency., 1050-1,1054, 1057, 1068, 1069; 38 S. C., 318; 63 S. C., 348, 199; 58 S. C., 21.</p> <p> No citations on point decided. </p>

<p>Mortgage — Merger—Partnership.—A mortgage assigned to a member of a firm, paid for by firm, held by firm for some years, during which time the firm held the fee simple title to t'he mortgaged lands, payment of the mortgage being a part of the consideration for the land, is merged into the legal title, and assignee cannot enforce same.</p>

<p>Before Buchanan, J., Barnwell, December, 1902.</p> <p>Petition of C. M. Hiers and of T. Gertrude All, in re Jones H. C. All, against C. M. Hiers. Prom Circuit decree, petitioner, T. Gertrude All, and plaintiff, Jones H. C. All, appeal.</p> <p>cites: This proceeding is in equity, and Court may review facts: 9 S. E. R., 1059. The action is assignable: 1 Ency., 1 eel., 831, 827, 835; 6 S. E. R., 290; 28 S. E. R., 151; 24 S. C., 39. Assignment shozdd be sustained under homestead: 7'S. E. R., 75; 3 S. E. R., 795. Assignment is not champertous: 25 S. C., 599; 4 Ency. P. & P., 370; 26 S. E. R., 557; 2 McC. Ch., 388, 562; 40 S. E. R., 783; 5 Ency., 2 ed., 820; 3 Ency., 1 ed., 77. Set off shozdd not be allowed, because judgment was bought for that purpose: 9 S. E. R., 1059.</p> <p>cite: Exceptions are argumentative and shozdd not be considered: 19 S. C., 543; 37 S. C., 124; 45 S. C., 33. Findings of fact cannot be reviezued here: 2 McC., 203, 318. Mrs. All has not excepted to Circuit order and is not properly in this Cozirt: 42 S. C., 166; 45 Cal., 97; 53 Cal., 742. And Jones All now having no interest, his appeal shozdd be dismissed: 11 Paige, 147; 7 Paige, 18; 10 Mass., 64; 14 Mich., 88.</p>

<p>Before Klugh, J., Sumter, June, 1902.</p> <p>Action by Richard Bertrand Kennedy and Leonidas Kennedy, by their guardian ad litem, against E. Bertrand Colclougli. From Circuit decree, the plaintiffs appeal on the following exceptions:</p> <p>“I.' Because his Honor erred in applying the rule in Shelley’s case to the deed of Landgrave T. Smith, and in holding that the plaintiffs had ik> interest in the land in dispute.</p> <p>“II. Because the terms of said deed show, and his Honor erred in not holding, that it was the manifest intention of the grantor to create only a life estate in Martha C. Wright, with remainder to her heirs at law forever, and the terms are'not such as to bring the conveyance within the rule in Shelley’scase so as to permit the overrulingof such intention, in that, (a) The order of Court recited in the deed bound the grantor to create only a life estate in Martha C. Wright, with remainder to‘ her heirs at law forever, and to apply the rule in Shelley’s case would supersede the plain order of the Court, (b) The superadded word ‘forever’ in the clause, ‘and from and after the death of the said Martha C., then to and for the use of the heirs at law of the said Martha C. forever,’ shows the heirs at law are to take as a new stock of inheritance and not as an indefinite line of descent, which prevents the application of the rule. * * *</p> <p>“IV. Because all persons being presumed to contract under and with respect to existing laws, the laws then existing prior to the Constitution of 1868, considered in connection with the deed, also shows that it was the intention of the grantor to create a life estate in trust for Mrs. Martha' C. Wright and an absolute estate in fee simple in her heirs at law as remaindermen, and his Honor erred in not so holding, and erred in applying the rule in Shelley’s case.”</p> <p>cites: 16 S. C., 290; 21 S. C., 313; 42 S. C., 342.</p> <p>The former cite: 52 S. C., 556; 3 Hill, 193; 11 S. C., 71; 17 S. C., 545; 22 Ency., 510; 60 Pa. St., 492; 70 Pa. St., 385; 27 Ency., 132; 41 L. J., 296; 60 Pa., 69; 62 Md., 14. .</p> <p>The latter cite: 46 S. C., 537; 42 S. C., 347.</p>

Before Watts, J., Greenville, November, 1902. Action by Joseph Austin against Piedmont Manufacturing Co. Erom judgment of nonsuit, plaintiff appeals. cite: There being evidence .to sustain the allegations of the complaint, nonsuit was error: 53 S. C., 159; 20 Ency., 55; 60 S. C., 168; 61 S. C., 487; 51 S. C., 234; 55 S. C., 424; 62 S. C., 136; 25 S. C., 128; 42 S. C., 470; 18 S. C., 280; 51 S. C., 222; 53 S. C., 363.

<p>Before Townsend, J., Clarendon, December, 1902.</p> <p>Action in partition by R. W. Duckett against William Moses Butler, Lila Y.'Butler, Minnie M. Thames, Martha A. Carter, Belle Butler, Lizzie C. Butler, Pressley Butler and Abe Butler. Prom Crcuit decree, plaintiff appeals.</p> <p>cite: Rule in Shelley's case is rule of lazw: 8 Rich. Eq., 9; 52 S. C., 554; 3 Hill, 193. Statute executed the use: 10 S. C., 389; 2 McC., 252; 1 Speer, 356; 4 Strob. Eq., 66; 11 S. C., 71; 12 S. C.., 711; 18 S. C., 186; 15 S. C., 135; 53 S. C„ 6; 20 S. E., 161. As to construction of the deed: 4 McC., 198; 15 S. C., 441; 17 S. C., 552; 2 Strob. Eq., 101; 6 Rich., 54; 1 Hill Ch., 54; 43 S. C., 443; 57 S. C., 174; 2 Strob. Eq., 101; 48 S. C., 316; 56 S. C., 10; 19 S. C., 350; 1 Strob. Eq., 283; 1 Hill Ch., 311; 2 McC., 256, 444; 47 S. C., 297; 48 S. C., 349; 4 Jones Eq., 277; 65 S. C., 345, 390; 4 Rich. Eq., 307.</p> <p>cite: Application of rule in Shelley's case: 22 Ency., 512; Eearnes’s Contgt. Rem., 197; 2 Wash. R. P., 653; 2 John., 384. As to construction: 3 Rich. Eq., 158; 23 S. C., 238; 13 Pet., 89; 16 Pet., 528; 16 S. C., 290, 318; 38 S. C., 417; 11 Ency., 513; 10 S. C., 365; Bail. Eq., 527; 36 S. C., 38; 42 S. C., 342; 25 S. C., 289; 3 Strob. .-Eq., 66; 16 S. C., 18; 4 DeS., 459; 23 S. C., 238; 64 S. C., 180, 216.</p>

Before Krugh, J., Lexington, February term, 1903. Action by Donie E. Scott, as administratrix of James Daniel Scott, against Seaboard Air Line Railway Co. From judgment for plaintiff, defendant appeals. The former firms cite: As to the motion for nonsuit: 65 S. C., 299; 25 Am. & Eng. R. R. Cas., 592; 3 Am. Neg. Cas., 75. As to assumption of risks: 65 S. C., 194; 63 S. C., 559. As to plea of contributory negligence■: Code of Proc., 170, 171, 180, 181, 197.

Before Carey, special Judge, Laurens, December, 1903. Action by Martha Halk against Laura H. Stoddard. From Circuit decree, plaintiff appeals on the following exceptions : “I. Because his Honor, D. A. Townsend, erred in overruling the motion of plaintiff for leave to amend her complaint by his order, dated June 1st, 1901, when the grounds set forth in the notice of said motion were germane to the issues involved, and did not change the nature of the action or defense. “II.

Petition in the original jurisdiction of this Court by T. R. McGahan and others, as members of the sanitary and drainage committee of Charleston County, against R. J. Morris et al., as the auditing committee of the board of county commissioners of that county.

<p>Before Keugh, J., Marlboro, November, 1902.</p> <p>Action by Lizzie Rogers, Minnie Rogers and Annie Rogers against Minnie B. Rogers, executrix of P. B. Rogers, and Hattie Rogers and P. B. Rogers. Prom Circuit decree, plaintiffs appeal.</p> <p>cites: Legacy is pecuniary and demonstrative: 2 Leading Cas. in Eq., 506; Speer Eq., 48. If specific it was not adeemed: 13 S. C., 513. As to declarations of testator: 1 Roper on Legacies, 346-409; 5 Am. R., 498; 2 Am. St. R., 462; 8 S. E. R-, 73; 2 Leading' Cas. in Eq., 501.</p> <p>Mr. Johnson cites: As to specific legacy: 7 E. R. A., 390; 3 DeS., 47.</p> <p>Mr. Bouchier cites: Legacy is specific and doctrine of ademption applies to it: 1 Ency., 623, 624; 28 S. C., 317; 3 Vem., 688; 2 Williams on Exors., 849; 2 Strob. Eq., 9; 3 Strob. Eq., 2; Bail. Eq., 397; 13 Ency., 10. Parol evidence not admissible to show intent of testator: Speer. Eq., 84; 13 Ency., 1 ed., 16, 17, 18.</p>

Before Krugh, J., Darlington, December, 1903. Foreclosure by Charles Kiddell, executor, and Martha A. Ryan and Caroline Ryan Nash, executrixes of W. K. Ryan, against Cherry Bristow and other heirs at law of Belford Bristow and Nelson Scott. From Circuit decree, defendants, Cherry Bristow, Peter Bristow, Isaac Bristow, Joseph Bristow, Louisa Jackson and Maria Dukes, appeal. cites: As to objection to jurisdiction: 11 S. C., 409; 13 S. C., 130; 60 S. C., 380; 61 S. C., 569.

Before Izlar., special Judge, Kershaw, December, 1903. Action by Wiley L. Jones, Oliver P. Jones and Jno. J. Jones against Seaboard Air Line Railway. From judgment for plaintiff, defendant appeals on the foilwing exceptions: “1.

Before Hudson, special J., Richland, March, 1903. Action by State against J. M. Quattlebaum on recognizance. Prom Circuit order, plantiff appeals. cite: Is recognisance void by reason of failure of principal to sign? Crim. Code, 1902, 81; End. on Int. of Stat., sec. 527; 2 Bail., 362; 3 Ency., 2 ed., 618; 29 Kan., 152; 10 Kan., 630; 1 Blackf., 236 ; 32 Mo. App., 522; 2 Mill., 123.

Before Watts, J., Abbeville, October, 1902. Action by South Carolina Mutual Insurance Co. against T. J. Price. Prom Circuit order, plaintiff appeals. Respondent asked that decree be sustained on the following additional grounds: “I. Because the presiding Judge should have sustained the following exception to the master’s report, viz: 1.

Before Gage, J., Greenville, May, 1902. Action by Bay lis A. Butler, executor, against Wm. J. Butler, B. A. Butler, B. M. McGee et al. From Circuit decree, plaintiff and defendants, Wm. J. and B. A. Butler, appeal. cite: Error to hear McGee: Code of Proc., secs. 290 to 294. Estoppel must be pleaded: 8 Ency. P. & P., 9; 29 Am. St. R., 344.

<p>Before Watts, J., Abbeville, October, 1902.</p> <p>Action by South Carolina Mutual Insurance Co. against Mrs. M. J. Tolbert. From Circuit order, plaintiff appeals.</p>

Before DanTzder, J., Kershaw, September, 1902. Action by Wm. E. Boyd- against Seaboard Air Line Ry. Erom judgment for plaintiff, defendant appeals. Mr. Lyles cites: In absence of proof, railroad will be presumed to have complied with Code, 1902, 212J: 26 S. C., 49.

Before Ki,ugi-t, ]., Florence, September, 1899. Action by Josephine B. Norwood, J. Maxcy Timmons and Jno. M. Timmons against Wm. M. Gregg and A. J. Howard. From judgment for defendants, plaintiffs appeal. cite: Mistake did not affect the purchaser’s rights: 1 Green, on Ev., 404; 53 S. C., 91.

<p>1. Corporation — Misnomer—¡Jurisdiction—Pleadings—Amendments. ■ — Where a corporation defendant is incorrectly styled in summons and complaint, but answers to t'he merits in addition to plea of misnomer, the Court acquires jurisdiction of the corporation, and may order pleadings amended by inserting correct corporate name, and the fact that such amendment is granted after the cause of action sued on would be barred, does not affect it. Lilly v. R. R. Co., 32 S. C., 142, distinguished from this.</p> <p>2. Pleadings — Amendment.—Notice of motion to amend construed to be intended to correct misnomer of defendant wherever it appeared, but Court having jurisdiction of defendant could make such order of its own motion in furtherance of justice.</p>

<p>Before Buchanan, J., Greenwood, November, 1902.</p> <p>Action by Mrs. J. D. Payne against W. D. Melton, Sarah D. Melton, Tallulah Melton and Joseph Hughey. From order sustaining demurrer, plaintiff appeals.</p> <p>Mr. Grier cites: Is this action prematurely brought? 3 Ency., 1 ed., 104; 2 E. & B., 678; 2 Par. on Con., 8 ed., 780, 781; 29 L. E. U. S., 984; 21 Id., 107; 6 C. & B., 325; 7 Waits Act. & Def., 430.</p> <p>No printed argument.</p>

Before Townsend, J., Union, August, 1902. Action by W. W. Bruce, as intendant of town of Carlisle, et al., against J. G. Rice, acting intendant of said town, et al. From Circuit order, defendants appeal. cites: Associate Justice has authority to restrain operation of Circuit order: 8 S. C., 344 ; 49 S. C., 324, 325; 2 S. C., 451.

<p>Before DantzeER, J., Lexington, September, 1902.</p> <p>Action by Elizabeth.P. Wessinger against Mary Jane 'Roberts, as administratrix of estate of Harriet Seay, on the following complaint:</p> <p>“1. That Harriet Seay died on the 24th day of February, 1901, leaving a paper in form a will, which was adjudged by the probate court to be null and void as a will, and thereupon the said court granted letters of administration upon the estate of the said Harriet Seay to Mary Jane Roberts, who qualified as such administratrix, and is now such administratrix.</p> <p>“2. That this plaintiff is a daughter of the said Harriet Seay, who lived not far from this plaintiff with her bachelor son, W. B. Seay, who1 died on or about the 30th day of Au'gu-st, 1898; and the said Harriet Seay for many years before her death suffered of a severe and malignant sore on her back, called by the doctors a cancer.</p> <p>“3. That after the death of her said son, she was left alone at her home, with the exception of probably some servants on the place.</p> <p>“4. That from the 1st of September, 1898, until about the 7th of January, 1899, this plaintiff went constantly backward and forward between her home and that of her mother, and gave her such care and attention as she could, the said cancer all the time needing dressing.</p> <p>“5. That on the 7th of January, 1899, after her mother had requested her to move her to plaintiff's home, and after her mother had made such disposition as she liked of her household goods, the plaintiff moved her mother to her home and kept her there until her death. That during all this time the cancer on her back continued to grow and become more malignant and offensive, suppurating all the time profusely, requiring dressing every day once and often twice per day, which consisted in removing the cloths on the sore, and washing it out well and putting new cloths on the sore. This work was exceedingly offensive, so much so- that plaintiff could hardly bear to go through with it, and could not obtain at any price any one else in that section of country to do it for her. Under the advice of the doctors, the floor on which the dressing was done was washed up after each dressing, the water from this and from cleansing the sore and the cloths used in saturating the pus, had to be carried out and buried or burned, as she was advised by the physicians that it was dangerous to have them undestroyed, on account of the contagious character of the disease. That vast quantities of carbolic acid had to be constantly used about the house, and yet the offensive odor was distinctly noticeable to visitors, and this odor permeated the house at all times. All of this service this plaintiff personally rendered to her mother until up to1 her death, at which time she found herself nearly broken down physically.</p> <p>“6. That the services so rendered her said mother are richly worth $2,000.</p> <p>“Wherefore, the plaintiff demands judgment against the defendant for the sum of $2,000 and for the costs of this action.”</p> <p>From order of nonsuit, plaintiff appeals.</p> <p>The former cite: What is implied contract and how proved? 3 Strob. Eq., 324; 15 Ency., 2 ed., 1078; 53 S. C., 282. Where the parties live in separate families, the usual presumption does not arise: 2 S. E. R., 453; 6 S. E. R., 685; 34 S. C., 255; 37 S. C., 161; 38 S. C., 158; 53 S. C., 382; 30 S. E., 750.</p> <p>cite: No express contract being alleged, evidence tending to support it properly excluded: 53 S. C., 382; 3 Strob., 321. Excluded evidence would not show implied contract: 34 S. C., 258; 53 S. C., 385. As to presumption of gratuity: 37 S. C., 169; 38 S. C., 167; 35 S. C., 551; 2 Bay, 101.</p>

<p>1. Change of Venue — Magistrate.—An affidavit made and served in magistrate court to obtain change of venue must state the reasons why affiant' believes he cannot get a fair trial before the magistrate, and he cannot amend such affidavit at the hearing.</p> <p>3. Subpoena — Continuance.—An unsworn statement that an individual left a subpoena ticket for a witness with one J., without stating what connection existed between J. and the witness, is not proof of legal service, and refusal of continuance for absence of such witness is not error.</p> <p>Mr. Justice Gary dissents-.</p>

<p>Before J., Greenwood, 1902.</p> <p>Action by Greenwood Loan and Guarantee Association against Rhoda Childs. From Circuit order appointing receiver, defendant appeals.</p> <p>No arguments furnished.</p>

Before BENET, J., Barnwell, January; 1902. Action by J. T. Duncan against Southern Railway Co. Rrom judgment for defendant, plaintiff appeals. Argued before Court en banc January 27, 1903. cite: Cha/rge of “excess fare” was unlawful: 61 S. C., 212; 13 Am. & Eng. R. R. Cas., 31, 37. Reasonableness of carrier’s rule is a question of law: 26 S. C., 91; 2 Am. & Eng. R. R. Cas. (N. C.), 1; 17 Ibid., 650; 158 Pa. St, 302; 81 Mich., 361; 31 Am. & Eng.

Before Jas. F. Izlar, special Judge, Newberry, October, 1902. Action by Samuel C. Fulmer, by guardian ad litem, against Southern Railway Co. From judgment for defendant, plaintiff appeals. Argued before Court en baaic, January 27, 1903. No arguments furnished.

<p>Before Jas. P. Carey, special Judge, Laurens, December, 1902.</p> <p>Action by J. C. Hutchison against Mamie E. Fuller and V. L. Nelson and children of S. T. Fuller and Bessie C. Hutchison. From Circuit decree, plaintiff and defendant, Bessie C. Hutchison, appeal.</p> <p>cite -..There was no merger: 17 S. C., 499; 57 S. C., 185. If vendor cannot convey, he holds as bailee: 22 Fncy., 924; 27 Fncy., 6;'Perry on Trusts, sec. 1292. They should be required to permit them foreclosed: 88 N. C., 287; 22 Fncy., 945; 2 Rich., 361; 22 Pick., 485. Mistake of law is relievable: 2 Bail., 623; 2 McC. Ch., 463; 1 Hill Ch., 250. As to subrogation: 18 S. C., 132; 63 S. C., 93; 40 S. C., 417, 457; 162 U. S., 411, 415; 24 Fncy., 202.</p> <p>cite: When vendor cannot convey, equity will not compel him: Dud. Eq., 139. Distinction between ignorance and mistake of law: 20 S. C., 332; 1 Hill Ch., 251; 35 S. C., 213. Plaintiff zvas culpably careless and not entitled to relief: 21 S. C., 235; 1 Rich. Eq., 351; 26 S. C., 196; 17 S. C., 128;J20 S. C., 317; 20 Ency., 820, 821; 7 Paige, 137. Plaintiff must surrender benefits derived: 18 Ency., 829, 83.0; 21 S. C., 210; Rice Eq., 8i.</p>

<p>Before Purdy, J., Anderson, February, 1908.</p> <p>Indictment in magistrate court against Frank Rhody for employing a minor under contract made by his father. From order of General Sessions reversing order of magistrate overruling demurrer to1 indictment, State appeals.</p> <p>cites: 55 S. C., 374; 63 S. C., 458; 54 S. C., 314; 16 S. C, 187; 17'Ency., 1 ed., 347; 27 L. R. A., 56; 54 S. C., 388; 1 N. & McC., 263; 5 Strob., 106; Civil Code, 1902, 2706, 2707, 2689.</p>

<p>1. Railroads — Presumptions — Negligence — Employees—Constitution. — Art. IX., sec. 15, of Constitution, does not confer on employees the right of presumption of negligence from fact of killing by railroad.</p> <p>2. Railroads — Nonsuit.—Where the allegations are that defendant was negligent in handling and overloading a freight train, in making connections, &c., and the proof supports the allegations and shows that the flagman was killed by a train running in the opposite direction from the one he was sent to flag, no negligence being,alleged as to this train, nonsuit' was properly granted.</p>

<p>Before Gary, J., Charleston, October, 1902.</p> <p>Action by Equitable Fire Insurance Co. against S. H. M. Fishburne. From Circuit order refusing to settle “Case”, for appeal, defendant appeals.</p>

Before Jas. F. Izlar, special J., December, 1902. Action by Julia Williams and J. H. Williams against J. R. Halford et al. From Circuit decree, defendants appeal. cite: Notice to take evidence de bene esse was not sufficient: 43 S. C., 173; Code, 88, sub. 16. The'only question being that of title, evidence on other issues before jury zms improper: 3 Rich. Eq., 80; 2 Strob.'Eq., 184. Father is not entitled to earnings of illegitimate children: 2 Hill Ch., 624.

<p>Limitation op Estates — Fee Conditional. — A conveyance to my son J., “during his life and after his death to the lawful begotten issues of his body,.and should the said John die without leaving such issues as above or should his issues as above die without leaving lawful issues then the said lands to return to my children or their lawful issues,” carries a fee conditional to John.</p>

<p>Before Watts, J., Charleston, March, 1903.</p> <p>Action by W. R. Pinckney against James Green in magistrate court. Prom Circuit judgment affirming magistrate, defendant appeals.</p> <p>cites: Con., art. I., sec. 25; 7 S. E. R., 528; Code, 1902, 794, sub. 6, 796, 805, 806, 987, 994, 996, 1002, 1012, sub. E., 5th; 1012, sub. I., sub. m, sub. n, 2637, 2864, 2938, 2953, 3100, 3117, 3121; Code Proc., 1902, 373; 56 S. C., 506; 25 S. C., 584.</p> <p>cites: Code, 1902, 1012, subs, a-c; 57 S. C., 256; Code, 1902, 3121, 2938, 3100; 16 S. C., 62; 24 S. C„ 459; 109 U. S., 74; Rev. Stats., 2637; 17 Ency., 2 ed., 1107, 1097.</p>

<p>Partnerships — Construction oe Statutes.. — The act, Code, 1902, 1705, providing that “every mercantile partnership, in addition to a proper sign-board or place containing the name and style of the firm, shall post up and keep posted up in some conspicuous place .at the business stand or stands of the firm the names and surnames of each member of the firm,” on pain of paying 50 dollars for each month in default at suit of any citizen, applies only to limited partnerships. Rules of construction of statutes stated.</p>

Before Gage, J., Pickens, March, 1902. Indictment against Hamp White, Robert E. LaBoon, Jay McMahan and Hampton LaBoon, for assault with intent to kill. From sentence on verdict of guilty, these defendants appeal. Mr. Carey cites: 36 S. C., 524; 4 Ency., 620; 49 S. C., 550. Oral argument by the latter.

<p>Petition for injunction in the original jurisdiction of this Court by H. A. M. Smith, receiver of the president, directors and company of the State Bank, against R. H. Jennings, State treasurer.</p> <p>cite: The resolution impairs the obligation of contract: 3 Ency., 1 ed., 748; 15 Ency., 2 ed., 1033, 1040, 1047-8, 1050; Cool. Con. Lim., 6 ed., 329-30; 4 S. C., 430; 12 S. C., 200; 4 Pet., 514; 96 U. S., 432; 102 U. S., 672; 12 Rich. Eq., 498; 15 How., 304; 1 S. C., 63; 15 How., 304; 15 Rich. R., 84; 21 S. C., 414; 2 Pet., 627; 4 Wheat., 122; 6 Plow., 301; 96 U. S-, 595; 135 U. S., 662; 12 Wheat., 213. As to the enacting words: 10 Nev., 250; 73 Minn., 203. It ivas not passed by requisite vote: Con. 1895, art. IV., sec. 23; Con. 1868, sec. 7, art. IX., art. XVI.; 4 S. C., 430; 12 S. C., 200; Con. 1895, sec. 11, art. III.</p> <p>cites: Requisites of joint resolution: Art. III., sec. 18; art. IV., secs. 17, 23. As to compliance with constitutional requirements: 23 Ency., 163; End. on Int. of Statutes, secs. 536, 234; Suth. on Stat. Con., secs. 60-65; 40 Miss., 293; 16 Ind., 49; 52 Mo., 426; 86 N. W., 956. The two-thirds of the House necessary to pass resolution over veto means two-thirds of quorum: Art. IIP, sec. 2; art. XV., sec. 1; art. XVI., sec. 1; 4 S. C., 431; 12 S. C., 200.</p>

<p>Before Gary, J., Charleston, February, 1903.</p> <p>Action by Morris Street Baptist Church against John L. Dart. From Circuit decree, defendant appeals.</p> <p>Mr. Capers cites: Civil Courts will not review acts of spiritual courts: 3 B. Mun., 253; 54 Mo., 353; 62 la., 26; 5 Del. Ch., 573; 80 U. S., 679; 1 Strob. Eq., 387; 137 U. S., 147.</p>

Before Gary, J., Spartanburg, March term, 1903. Action by Fleeta Gosa against Southern Railway Co. From judgment for plaintiff, defendant appeals. cites: As to mental anguish of mother from sufferings of child: Bus. on Per. Inj., secs. 8 and 9; 8 Ency., 664; 2 Kent Com., 195; 17 Wall., 553; 2 ed. Cool, on Torts, 269; 77 Am. Dec., 72; Wat. on Dam. for Per. Inj., 512. Error to exclude declarations of bystander after accident: 34 P. R., 856; 78 Pa.

Before Watts, J., Greenville, 1902. Action by John H. Maxwell against Robt.

<p>1. Burden op Proop. — Upon consideration of the charge with reference to the issues raised by the pleadings, so much thereof as instructs the jury that the burden of proving an allegation of ownership of plaintiff, denied by defendant, coupled with allegation of ownership in a third person is on defendant, is not prejudicial error.</p> <p>2. Charge as to want of necessity to reform contract in equity not on facts.</p> <p>3. Insurance — Evidence—Acts—Conduct.—Consent by insured to removal of insured property may be shown by acts and conduct after loss.</p> <p>4. Ibid. — Ibid.—Ibid.—Ibid.-—Waiver—Bar.—If through mistake of agent property of wife is insured in name of husband, who did not claim the property, but upon loss and information of agent that it was so insured, he made out proofs of loss and brought suit in his own name and afterwards discontinued it, that would not be a bar to suit by wife, and declarations and acts of insurer’s agents to him with reference to the property would be binding on insurer for benefit of wife.</p> <p>5. Ibid. — Waiver—Charge.—Under the facts in this case that property insured was not in location in which insured a-t time of insurance, and that it was removed to another location and there destroyed, it was not error to charge that the removal of the property from the location it was in when insured would not violate the contract of insurance, as defendant had not alleged such removal as a defense.</p> <p>.6.- Rehearing refused.</p>

Before Dantzrer, J., Williamsburg, December, 1903. Action by P. E. Severance and E. J. Wilkes against Board of Control of Williamsburg County.

Before Izear, special J., Newberry, October, 1902. Action by Euther A. Riser against Southern Railway Company and Marion Rich. From judgment for plaintiff, defendants appeal on following exceptions, leaving out those stated in the opinion: “I. Motion to require election. 1.

<p>1. EsToppEE — Fraud.—Positive acts on the part of the true owner of land which induce an innocent party to deal with it as if the title were in another, will estop him from setting up title in himself, even though he was ignorant of his title and no fraud was actually intended.</p> <p>3. Ibid. — Subrogation.—A Mortgagor can only recover possession of land sold under defective power of sale in mortgage upon payment of amount due on mortgage debt, but such mortgagor may be estopped by his actions from redeeming.</p> <p>3. Rehearing refused.</p>

Before Watts, J., Oconee, November term, 1902. Held: as matter of law. “3. Because all the evidence shows the offer to waive the forfeiture clause was conditioned upon 'the defendants completing the buildings they had contracted to erect for plaintiffs, and that the conditions were never performed by the defendants; and defendants cannot claim any benefit of any agreement made by…

<p>Before Dantzeer, J., Saluda, January, 1903.</p> <p>Action by Anna and W. B. Hadwin against Southern Railway. From Circuit order, plaintiffs appeal.</p> <p>The latter cites: 13 S. C., 466; 11 S. C., 133; 13 S. C., 130; 48 S. C., 494; 35 S. C„ 165; 16 S. C., 58; 30 S. C., 479; 43 S. C., 488; 4 S. C., 106.</p> <p>cite: Rule 60, Circuit Court; Code Proc., 1903, 333; Code, 1903, 3096, 3130; 3 Rich., 136.</p>

<p>Before Gage, J-, Charleston, Sqitember, 1902.</p> <p>•' Action by W. N. C. Willson, committee of Willson Griffith, against Imperial Fertilizer Co., Virginia-Carolina Chemical Co. and W. J. Smith. The contract out of which the action arises is as follows :</p> <p>“Charleston, S. C., June 26th, 1899.</p> <p>“Mr. Willson Griffith, lessee, Charleston, S. C.</p> <p>“Dear sir: We will the ensuing season make and deliver to your order to be sold for our account your brands of fertilizers and acid phosphates with and without potash, upon the following terms, prices and conditions in bulk, f. o. b. cars at our works, in not less than carload lots; we to furnish bags, branded as you may direct, at the cost of seven cents each, and to furnish the inspection tags, charging you the cost of same, according to the States into which the goods are shipped:</p> <p>Per ton.</p> <p>9-2-2 fertilizer..............;...............$12 25</p> <p>8-2J4-1 fertilizer............................ 12 25</p> <p>9-2-1 fertilizer.............................. 11 45</p> <p>10-1-1 fertilizer.............................. 9 50</p> <p>13 per cent, dissolved bone..................... 6 25</p> <p>13 per cent, dissolved bone (double milled)........ 6 40</p> <p>10-1 acid phosphate.......................... 6 50</p> <p>10-2 acid phosphate.......................... 6 85</p> <p>10-2 acid phosphate (for wheat)................. 7 05</p> <p>10-4 acid phosphate (for cotton)................ 8 75</p> <p>10-4 acid phosphate (for wheat)................. 9 05</p> <p>8-4 acid phosphate (for cotton)................ 8 05</p> <p>■ — all goods to be shipped in good mechanical condition. The 8-4 acid to be made, however, as per your request, entirely of kainit for the potash, you talcing- any risk that may accrue as to the mechanical condition of this grade.</p> <p>“The above prices are upon a basis of May 1st, 1900, any goods paid for prior to May 1st, a discount at the rate of 7 per cent, per annum will be allowed you from date of payment to May 1st; any goods closed by note payable in the fall of 1900, interest at the rate of 7 per cent, per annum to be added from May 1st, to date of maturity of the notes.</p> <p>“You agree herewith to guarantee all sales to the extent of your aggregate profit on each group, to wit: for all goods sold payable between this date and the 1st of January, 1900, to be considered as the first group; all goods payable May 1st, 1900, the second, and all goods closed by note payable in the fall of 1900, the third.</p> <p>“All settlements, whether in cash or by notes of the purchaser, are to be made direct with you, and you hereby agree that as such settlements are made, you will at once when cash is paid, turn over to us the gross amount received from purchasers, and when settlements are made by note, you will deliver to us the notes of said purchasers, payable to your order as lessee of the Etiwan Phosphate Works, duly endorsed by you, settlement to be made by us for your interest in said accounts in accordance with the following paragraphs.</p> <p>“All collaterals taken on time accounts to be delivered also to us, duly endorsed when necessary, and said collaterals to be returned to you in the fall to be sent out for collection in accordance with contracts. When all the sales that are due on or about January 1st, are paid in full, we agree to pay you the profits that have accrued to you on these sales; first deducting from said profits any losses that may have occurred on such sales, if there be any, from the amount of the profit due you on this group; the same method to be pursued in regard to the two remaining groups, maturing May 1st and in the fall of 1900.</p> <p>“We are to prepay freights when necessary to consummate sales of any of the goods, charging you interest on said freights from the dates paid until the maturity of the contracts, and all over prices named above freights and interest to be your profit on sales, subject to the above provisions agreed upon as to your guarantee on same.</p> <p>“The amount of goods to be furnished by us on this contract is to be 3,000 tons of the various grades of dissolved bone and acid phosphates, and 1,000 tons of the various grades of fertilizers, that is, 4,000 tons in the aggregate.</p> <p>“On January 1st, 1900, if the above amount of goods has not been placed by you, we are to have the option of cancelling the balance of the contract, if so desired by us, or adding to same if the above amount has then been placed.</p> <p>“All contracts to be taken on your forms, and when goods are sold on time, as far as possible with planters’ notes as collateral security to the notes of the purchasers, and said contracts are to be submitted to this company for approval, they having the right of rejecting any contracts not satisfactory to them, and not to be bound to fill any contracts so rejected.</p> <p>“You hereby agree to procure from the proprietor of the Etiwan Phosphate Works a lease of said plant for the ensuing season; that the question of the use of their brands by you may be legally established, should it become necessary. Imperial Fertilizer Company,</p> <p>By G. Walter Mclver, Treasurer.”</p> <p>“The above is accepted upon the terms and conditions stated therein. Willson Grieeiti-i, Lessee.”</p> <p>From Circuit decree, defendants appeal.</p> <p>cite: As to contracts for personal services: 24 Fed. R., 383; 20 Fncy., 2 ed., 27; 155 Mass., 253; 149 N. Y., 489; 7 Fncy., 2 ed., 147. Imperial Co. not estopped from setting up this defense by its conduct: 11 Fncy., 2 ed., 436-438; 149 U. S., 293; 57 S. C., 518; 48 S. C., 271; 41 S. C., 181; 28 S. C., 343; 26 S. C., 186; 13 S. C., 370; Big. on Est., 3d ed., 550; 60 N. Y., 413; 34 N. Y. Supp., 152. As to zuaiver of Imperial Co. to require Griffith to obtain right to use Etiwan brands: 28 Ency., 1 ed., 531; 54 S. C., 603; 30 N. Y., 164; 81 N. Y., 410. Contract being non-assignable, Smith received no interest thereunder, and hence no responsibility: 127 U. S., 387; 133 U. S., 489; 152 U. S., 651; 2 Ency., 2 ed., 1018. Conclusion by master confirmed by Judge and not excepted to, is final: 3 Brev., 389; 4 McC., 183; 45 S. C., 405; 46 S. C., 192. Bus. on Insanity, 277, 180. As to amplifying an exception: 20 S. C., 190; 60 S. C., 67.</p> <p>cite: Exception referring to exception to master's report is too general: 16 S. C., 164; 18 S. C., 230; 42 S. C., 447. Contract for personal services may be assigned by assent of parties: 133 U. S., 489; 152 U. S., 651. As to liability of defendant companies: Pom. Eq. Jur., secs. 1097, 1024, 1902; 35 S. C., 422; Story Eq. Jur., sec. 464. Contract of personal nature may be modified: 133 U. S., 488; 152 U. S., 651.</p>

Before Gagr, J., Barnwell, November term, 1902. Action by Jennie Brown against Carolina Midland Railway Co. From judgment for plaintiff, defendant appeals. The latter cite: Complaint slates no cause of action: 41 S. C., 86; 30 Mo. App., 472; 38 S. C., 103; 174 U. S., 96. A principle of law must be equally applied to persons and railroad corporations alike: 38 S. C., 121; 174 U. S., 98; 18 A. & E. R. R. Cas., 78.

<p>Before Watts, J., Greenville, November, 1902.</p> <p>Action by Calvin Smith against S. G. Lafar, chief State constable. From order dismissing the complaint, the plaintiff appeals.</p> <p>cite: Whiskey seized was in transit: 170 U. S., 438, 412; 55 S. C., 207. As to what are irrelevant allegations: 'Pom. Code Rem., sec. 551; 50 S. C., 54; 60 S. C., 381. Statutory remedy does not abrogate the old: 23 Ency., 1 ed., 393.</p>

<p>Before McCullough, special Judge, Greenwood, May, 1902.</p> <p>Action by C. P. Matthews, administrator of Jno. E. Part-low, against the Seaboard and Roanoke R. R. Co. and the Raleigh and Gaston R. R. Co., operating the system known as the Seaboard Air Line R. R., as lessees of Georgia, Carolina and Northern Ry.; Southern Ry.; Charleston and Western Carolina Ry. Co-, and town of Greenwood. All defendants appeal except the latter.</p> <p>The former cites: Licensee must take advantages with attendant disadvantages: L. R., 11 Q. B. D., 474; 9 Id., 80; 46 Md., 193; 1 McC., 438; 115 Ind., 399; 43 111. App., 93; 100 Ind., 231; 19 Blatc., 239; 142 Mass., 296; Cooley on Torts, 730; 25 Mich., 1; 32 N. W. R., 223; 90 Mo,, 384; 7 S. W. R., 756; 120 Mass., 306; 33 N. W. R., 744; 16 At. R., 701; Whitaker’s Smith ón Neg., 61; Thomp. on Neg., ed. 1901, sec. 946; 64 S. C., 7. Liability of land owner for excavations: 1 Thomp. on Neg., sec. 1228. Liability is not joint: 13 R. I., 159; 80 Mo., 529; 1 Ency. P. & P., 204; Pom. Rem., sec. 308; 14 Min., 133. Plaintiff guilty of contributory negligence: 1 Thomp. on. Neg., secs. 385, 352; 58 S. C., 491.</p> <p>The latter cites: Defendant owed no duty to deceased: 18 S. C., 417; 58 S. C., 367; 33 S. C., 213; 16 Ency., 411; 70 Ga., 207; 114 U. S., 340; 10 Ency., 24; 64 S. C., 104; 53 S. C., 514. What duty is due a trespasser: 16 Ency., 413; 57 S. C., 253; 18 Ency., 925, 937; 3 Ell. on R. R., sec. 1253; 57 S. C., 243. Permissive use: 87 Am. Dec., 644; 102 U. S., 235; 3 Ell. on R. R., secs. 1250, 1253, 1154; 50 Am. R., 783; Wood on R. R., 1463; 34 Penn. St., 465; 19 Ency., 935; 22 Am. R., 114; 54 L. R. A., 314; 20 L. R. A., 714; 55 L. R. A., 310; 32 L. R. A., 533; 58 Am. R., 512; 59 S. C., 462; 7 Am. Dec., 60. R. R. not required to bridge this excavation: Code 1902, 3149, 2136; 58 S. C., 491; 5 S. E., R., 371. Liability is not joint: Pom. Rem. & Rem. Rights, 2 ed., sec. 308; 195 Pa. St., 391.</p> <p>cites: Individuals cannot obtain right to use right of way by prescription: 21 A. & E. R. R. Cas., 667; 19 Id., 24; 4 Band Aid., 578; 18 Wend., 9; 1 Flip., 129; 29 Pa. St., 287; 75 Fed. R., 737; 70 Ga., 207; 41 D. C. A.; 406; 18 A. & E. R. R. C., 364; 8 E. R. A., 180; 33 L. R. A., 207; Jones on Eas., secs. 2, 81; 91 Cal., 631; 50 Cal., 265; 65 Cal., 435; 53 Cal., 530; 92 Cal., 414; 93 Cal., 51; 20 A. & E. R. R. Cas., 579; 21 Id., 665. Was intestate a licensee? 64 S. C., 7; 3 Ell. R. R., sec. 1250; 57 S. C., 332. As to duty of Southern Ry. to intestate: 23 Am. R., 751; 57 S. C., 339; 7 C. B. (N S.), 731; 51 Mich., 601; 118 N. Y., 575; 80 Hun., 364; 10 111. App., 477; 16 A. & E. R.'R. Cas. (N. S.), 690; 87 Am. D., 644; 72 N. Y. S., 1076; 114 Fed., 613; 14 R.R. A., 276; 21 N. E. R., 369; 9 E. R. A., 641; 115 N. Y., 55; 20 R. R. A., 714; 2 Thomp. on Neg:, sec* 1705.</p> <p>cites: Prescriptive right to %ise a railroad track cannot be acquired by use: 64 S. C., 104; 22 Ency., 1189; 41 S. C., 1. What duty does company ozve one on its premises not by invitation or inducement: 14 R. R. A., 276; 149 Mass., 268; 16 Am. & Eng. R. R., 690; 10 Allen, 372; 3 A. & E. R. R. Cas., 501; 57 Id., 308; 14 Neb., 295. There is no joint liability: 15 Ency. P. & P., 740; 22 S. E., 159; 15 Miinn., 133; 195 Pa. St. R., 396.</p> <p>Mr. Bilis G. Graydon cites. As to joinder of causes of action: Code of Proc., 188; 26 S. C., 480; 24 S. C., 39. As to duty of defendants and its breach: 89 Am. Dec., 720; 72 Am. Dec., 493; 56 Barb., 121; 8 Ency., 367, 369, 371, 373, 375; 38 Minn., 538; 14 R. R. A., 393; 18 N. Y., 79; 26 L. R. A., 686; 60 S. C., 67; 62 S- C./ 325; 152 U. S., 262; 102 U. S., 577; 55 Am. R., 88; Thomp. on Neg., secs. 969, 1012 to 1016; 78 Fed. R., 78; Wat. on Per Inj., 279, 288; 31 Am. Dec., 306; 44 Pac. R., 1051; 63 Fed. R., 945.</p>

<p>Before Dantzlür, J., Richland, January, 1903.</p> <p>Eight actions by South Bound Railroad Co. against Eliza Burton; against Maria E. Taylor; against Mary E. Higbee; against Margaret Day; against Emma L. Pierce; against John N. Einley, against Aaron Greer; against Martha Holmes. From Circuit decrees, plaintiff appeals.</p> <p>cite, in all the cases; On encroachments: 37 S. C., 334; 57 S. C., 516; 95 Ala., 116; 31 E. R. A., 63; 3 Dill on Mun. Corp., secs. 539-533; 49 W. Va., 369; 55 E. R. A., 904-906; 33 S. E. R., 339; 45 S. C., 376; 99 U. S., 635. Rights of abutting property owners in the streets of the city of Columbia: 5 Stat, 505; 13 Stat., 393; 14 Stat., 569; 6 Stat., 485. 53, 186, 314, 599; 13 Stat., 116; Gen. Stat., 1883, 1599; 33 Stat, 376; 33 Stat, 1154; 4 Pet, 385; 109 U. S., 673; f Cranch, 509; 166 Mass., 183; Ell. on R. R., 3 ed., sec. 733; 3 Dev. on Deeds, sec. 848; 134 Mass., 17; 87 N. Y., 387; 4 Ency., 2 ed., 813, 814; 22 How. Pr., 130; 87 Tenn., 522; 141 Ind., 604; 5 Rich., 595; 33 S. C., 478. Plaintiffs rights under charter: 17 Stat., 949; 20 Stat., 763; Con., art. ill.,sec. 31; art I., sec. 17; 33 S. C„ 482; 5 Rich., 596; 36 S. C., 135; 96 U. S., 315; 24 la., 480; 3 Porter, 425; 23 Pick., 360. As to eminent domain: 99 U. S-, 635; 53 S. C., 580; 5 Rich., 598; 4 McC., 541; 2 Dill. Mun. Corp., sec. 992, Is location of railroad in street a “taking” of private property? 53 S. C., 89, 577; 48 S. C., 562; 99 U. S., 625; 125 U. S., 161; 4 E. R. A., 628; 10 N. J. Eq., 358; 102 111., 64; 47 S. C., 482; 80 U. S., 166; 139 U. S., 21; 132 U. S., 75; 18 Pa., 187; 21 111., 516; 29 111., 297; 35 Cal., 331; 6 Whart, 456; 121 N. Y., 505; 50 N. Y., 206; 22 How. Pr., I3u; 3 Sed. on Dam., 8 ed., sec. 1184; 2 Dill, on Mun. Corp., 4 ed., sec. 702; 4 L. R. A., 623; 195 111., 456; 91 N. Y., 14.9; 39 N. Y„ 404; 90 N. Y., 122; 106 N. Y., 157; 121 N. Y., 505. As to condemnation statutes: Code, 1902, 2188, 2190; 38. S. C., 37; 28 S- C., 399; 21 S. C., 431; 17 Ency., 1 ed., 299, 300, 301; 59 S. C., 362. Compensation under common law: 147 U. S., 253; 18 D. R. A., 341; 25 L. R. A., 655; 34 Md., 463 ; 18 L. R. A., 341; 43 L. R. A., 557; 4 D. R. A., 623; 94 U. S., 324; 165 U. S., 372; 50 N. Y., 210. As to light and air: 53 S. C., 515; 5 Rich., 311. As to inconveniences: 47 L. R. A., 758; 50 D. R. A., 813; 59 S. C., 579; 64 S. C., 129; 48 S. C., 560; 30 S. C., 539; 46 S. C., 327; 54 S. C., 250; 34 D. R. A., 769; 195 111., 456; 5 Rich., 594; 47 D. R. A., 758. Dcumages to corner lots: 53 S. C., 577, 59; 4 L. R. A., 627; 61U. S., 135; 167 U. S., 100. In the Burton case: As to lots not abutting: 64 S. C., 129; 48 S. C., 560; 30 S. C., 539 ; 46 S. C., 327; 54 S. C., 250; 34 L. R. A., 769 ; 195 111., 456.</p> <p>and cite: Injuries to abutting property by commercial railroad is a "taking.” Property is rights over things: Lew. on Em. Dom., sec. 541; 116 Mo., 527; 136 N. Y., 577; 74 Mich., 558; 2 Pa. Dist. Ct., 604; 28 Ela., 558; 77 Wis., 288; 51 N. H., 504; Sed. on Con. Law, 2 ed., 462. Rights of abutter in streets: 14 L. R. A., 370; 104 N. Y., 291; Lew. on Em. Dom., 171; 1 Ency., 2 ed., 225, 228, 234, 185, 186, 175, 179; 15 N. Y. Eq., 481. State holds fee in street for street piirposes: 4 Stat., 751; 104 N. C., 431; 4 McC., 541; 5 Rich., 598. Interference with or abridgement of abutter’s rights is a "taking:” Lew. on Em. Dom., secs. 56, 57; 3 Wall., 166 ; 90 N. Y., 48; 14 Conn., 146; 14 L. R. A., 370; 9 Ind., 433; 57 Me., 481; 14 Gray, 115; 30 Mich., 308; 29 Minn., 288; 51 N. IL, 504; N. J. L., 335; 90 N. Y., 122; 22 L. R. A., 627; 26 Or., 242; 53 S. C., 89, 579; 2 Dill, on Mun. Corp., sec. 990; 1 Lew. on Em. Dom., sec. 91e; 1 Lew. on Dom., 240, 237. Commercial street railway is not legitimate use of street and is burden on fee: 2 Dill. Mun. Corp., 725; Mills on Em. Dom., sec. 204; Elliott on Roads and Streets, 528; Booth on Street Railways, sec. 78. When fee is in public, such railway is a taking of abutter’s rights and easements: 22 L. R. A., 627; 90 N. Y., 122; 104 N. Y., 268; 1 Hare Am. Const. L., 370, 375; Lew. on Em. Dom., secs. 114, 115; Booth Street Ry. L., sec. 81; 74 U. S., 272; 1 Rorer R. R., 524; 7 Ind., 38; 44 Ga., 546; 14 L. R. A., 378; 18 Or., 237; 66 Miss., 279; 85 Ky., 640; 36 La. An., 898; 39 Minn., 286; 113 N. C., 610; 38 W. Va., 438; 94 U. S., 324; 26 Or., 224; Lew. on Em. Dom., sec. 911; Cool, on Lim., 6 ed., 682; 2 Dill. Mun. Corp., secs. 704, 704a; Kearby on Electric Wires, 61-68; 1 Lew. on Em. Dom., 195-6, 233. Statute provides remedy for such case: 33 S. C., 483; 47 S. C., 483; 59 S. C., 571; 54 S. C., 199. As to estoppel of municipality: 57 S. C., 507; 45 S. C., 269; 37 S. C., 327. City cannot deprive abutter of right to compensation: 59 S. C., 371; 16 S. C., 365; 21 S. C., 420; 38 S. C., 34; 15 S. C., 476. As to- easements of light and air: 5 Rich., 311; 53 S. C., 516; 22 L. R. A., 536; 52 L. R. A., 409.</p>

Before Krugi-i, J., Beaufort, March, 1902. Two actions: (1) Eliza C. Dickson by J. M. Dickson, guardian ad litem, against Cornelius Burckmyer, H. G. Burckmyer and C. E. Paul, Jr. (2) Marion Rush Dickson, by J. M. Dickson, guardian ad litem, against same defendants. The plaintiffs allege that the tax deed in question was invalid for the following reasons: “1.

Before Buchanan, J., Greenwood, November term, 1902. Action by Thomas R. Blackwell against James R. Mc-Ninch. From Circuit decree, plaintiff appeals. cites: Usury is a penalty, and law having been repealed, penalty fails: 28 S. C., 1; 30 S. C., 105; 2 Rich., 428; End. on Int. of Stat., secs. 479, 480; 108 U. S., 143; 11 Am.

<p>Before Buchanan, J., Union, October term, 1902.</p> <p>Action by Ann E. Hill against Southern Railway. From judgment of nonsuit, plaintiff appeals.</p> <p>cites: As to construction of charter: 44 N. J. Ch., 398; 73 Miss., 330; 20 Or., 60; 22 S. C., 545; 23 Ency., 2 ed., 680b; 17 Ohio, 340; 8 Rich., 177. As to the presumption: 40 S. C., 182; 18 S. C., 141; 31 S. C., 1. As to adverse use: 22 S. C., 547; 31 S. C., 125. As to ruling out conversation: 18 S. C., 494; 1 Green. Ev., sec. 109; 46 S. C., 95.</p> <p>cites: As to interpretation of clmrter as to location: 1 Lew. on Em. Dom., secs. 255, 257; Pierce on R. R., 258; 5 Allan, 221; 9 Vroom, 548; 4 Stuart, 475; 5 Id., 755; 64 Pa. St., 137; 20 Ohio St., 190; 94 Am. Dec., 84; 28 S. C., 388; 38 S. C., 37; 41 S. C., 406; Pierce on R. R., 261; 13 Barb., 646; 11 Stat., 484. Question not raised belozu not considered: 62 S. C., 293; 6‘3 S. C., 153.</p>

Before Joseph A. McCollougi-i, special Judge, Greenwood, May, 1903. Foreclosure by Joseph H. Milford against John R. Milford. ■ From Circuit decree, plaintiff appeals on following exceptions charging error: “I. In overruling the sixth exception to the report of the master, which exception charged that the master erred in his findings, as follows, to wit: ‘VI.