Volume 68 — South Carolina Reports

Before Jas. P. Carey, special Judge, Laurens, December 1, 1902. Action by Providence Machine Co. against J. S. Blalock, L. W. -C. Blalock and M. E. Browning. From order of nonsuit, plaintiff appeals. cite: Inferences may be drawn from written instruments without producing them: 52 S. C, 82; 2 Rich, 140; 2 Bail, 324.

Before J. P. Carly, Special Judge, Laurens, December, 1902. Action by- Fa'les and Jenks Machine C01. against J. S. Blalock, L- W. C. Blalock and M. E. Browning. From judgment for plaintiff, defendant, Browning, appeals.

Proceeding in the original jurisdiction of this Court by petition by J. H. Milster and A. J. Abbott against city of Spartanburg and Spartan Mills for mandamus. cite: As to powers of the city council: Con., art. IX., sec. 8; art. VIII., sec. 8; 23 S. C., 62; 60 Mo., 124; 20 Wall., 655; 106 U. S., 487; 16 Wall., 678; Dill, on Mun. Corp,, sec. 105b; 21 S. C., 560 ; 16 S. C., 32. As to estoppel — acquiescence—ratification — laches: 23 S. C., 69; Bish. on Con., 369; 9 A. & E. Cor.

<p>Before Gary, J., Barnwell, March term-, 1903.</p> <p>Indictment against Lavinia Still and J. M. Lewis for adultery. From sentence, defendants appeal.</p> <p>cite: 15 Ency., 2 ed., 309; 1 Green, on Ev., 139.</p>

<p>1. Appeal — Rules Supreme Court. — Motion to reinstate appeal on ground that appellant’s motion for further time to perfect appeal was dismissed on default on account of illness of movant’s counsel, refused because of unexplained delay of more than a year in making the motion. Rule XX. does not apply in such case.</p> <p>2. Ibid. — Motion to reinstate appeal from refusal to enjoin sale, after sale made, refused because of no practical effect.</p>

Before Gary, J., Dorchester, November, 1902. Foreclosure by Harriet E. Muckenfuss against Helen M. Fishburne and Sophia F. S. Marion. Defendants appeal from order refusing to set aside judgment of foreclosure. cites: Code, 195; 34 S. C., 246; 2 Dan. on Neg. Inst, sec. 1338; 21 S. C., 375. cite: 58 'S. C., 453.

Before Aldrich, J., Darlington, March, 1902. Action by the Darlington Oil Co. against Pee Dee Oil and Ice Co. From order granting new trial, after verdict, defendant appeals on the following exceptions : “I. There was error on the part of his Honor, the presiding Judge, in sustaining, as he did, the plaintiff’s fifth ground of motion for a new trial, which was, as given in his Honor’s order: ‘Because 'your Honor omitted in submitting to the jury the question as to…

<p>Before Purdy, J., Hampton, fall term, 1902.</p> <p>Indictment against Henry Jackson. From sentence, defendant appeals.</p> <p>cite: 3 Green. Ev., sec. 137; 1 Id., sec. 13a; 19 Id., 235; 6 'S. C., 187; 15 S. C., 158; 7 S. C., 63; 3 S. C., 396.</p>

Before Watts, J., Greenville, November term, 1902. Action by J. L. Carson against Southern Railway, J. C. Arwood and J. D. Miller. From judgment for plaintiff, against defendant, Southern Railway Co-., it appeals. cites: As to refusal of nonsuit: 58 S. C., 493; 2 Wood on R. R., 1435; 94 U. S., 469; Buswell’s Per. Inj., 160. As to construction of act of Congress as to couplers: 117 Fed. R., 462; 84 Fed. R., 785.

Before Izuar, special Judge, October, 1902. Four actions tried together: (1) Thomas H. Reeves against Southern Ry ; (2) James T. Attaway against same; (3) M. P. Williams against same, and (4) Willie Connelly against same: Prom judgments for plaintiffs, defendant appeals. cites: On issue of wilful tort it is competent to show servant was prudent: 1 Green. Ev., sec. 53; 20 A. & E. R. C., 551; 19 Id., 59; 12 Id., 397; 19 Id., 320, 68.

<p>Before Gage, J., Sumter. May, 1903.</p> <p>Action by Wesley Bossard against Edward Vaughn. Erom judgment of Circuit Court sustaining judgment of magistrate Court, defendant appeals.</p> <p>cites: 18 Ency. P. & P., 568; 78 Cal., 573; 49 Ind., 104; 4 Black!., 19; 20 Or., 46; Gen. Stat., pp. 640, 497; 32 S. C., 183; 30 S. C., 328.</p> <p>cite: Code, sec. 77; 42 S. C., 122; 28 Ency., 1 ed., 294, 354, 355, 356, 357, 404; 10 S. C., 493; 30 S. C., 328; 19 S. C., 489; 32 S. C., 171; 42 S. C., 127; 66 S. C., 424; 50 111., 199; 20 Ency., 1 ed., 405.</p>

<p>Before Hon. J. E. McDonald, special Judge, Barnwell, May, 1903.</p> <p>Action by J. R. Aaron against Southern Railway. Plaintiff appeals from order of nonsuit.</p> <p>cite: Not an action for punitive damages alone: 56 S. C., 35; Code, 180, 190. As to rights of passenger and as to expeditious passage: 60 S. C., 58; 53 S. C., 213; 64 S. C., 424; 13 Am. R., 100; 31 N. Y., 661; 17 N. Y., 369; 47 Mich., 281; 32 R. R. A., 543. Bvidence shows plaintiff entitled to punitive damages for wilful tort: Woods Mayne on Dam., 59; 34 S. C., 324; 35 S. C., 475, 493; 62 S. C., 325. Also entitled for mental suffering and humiliation: 52 5. C., 323; 15 S. W., 48; 60 N. E., 174; 59 Miss., 463.</p> <p>cites: Wrongfully and ■unlawfully are merely epithets: 28 S. C., 388. Discomfort not ground for recovery of compensatory damages: 32 S. C. 592. Only punitive damages can be recovered for mental suffering: 57 S. C., 325; 60 S. C., 237. No evidence of punitive damages and no recovery: 64 S. C., 423.</p>

<p>Merger — -Mortgages—Paroe.—A contract against merger and satisfaction -of a mortgage upon conveyance by mortgagor to mortgagee need not necessarily be inserted in the conveyance, but may rest in parol.</p>

<p>l. Real Property — Equity—Defense—Deed—Cancellation of Instruments. — In an action for possession of land, it is a proper defense to set up a right to the cancellation of a conveyance on the ground of fraud, so as to defeat the action.</p> <p>3. Ibid. — Deed—Fraud—Parol.—When facts alleged as to obtaining a deed amount to fraud, parol evidence is admissible to contradict, vary, or explain the conveyance.</p> <p>3. Ibid. — Ibid.—Parol.—The true consideration of a deed and manner in which it was to be paid may be shown by parol.</p>

<p>1. Jurisdiction — Dee County. — Under the act creating Dee County the Counts of the counties out of whose territory Dee County is formed have jurisdiction of causes relating to lands in the territory of the new county pending at the time of its creation until the officers of Dee County have qualified and demanded the records of the old counties, and this rule applies in a case which was argued and opinion announced three days before officers of Dee County qualified, hut decree filed six days after.</p> <p>2. Ibid. — Words and Phrases. — In this act the words, “Jurisdiction and power in and over the people of the territory,” construed to mean jurisdiction over personal and real property in the territory.</p> <p>3. Usury. — Plea of usury not stustained by evidence in this case. Collection of excess of interest by mistake, or other error against the intent of the party, will not support a charge of usury.</p> <p>4. Jurisdiction — New Counties. — Where an order of sale of land in a new county has properly been made in an old county and the officers of the new county have qualified before sale is made, it is proper to order sale made in new county.</p>

Before Dantzler, J., Fairfield, April, 1903. Action by First National Bank of Charlotte against T. B. Lee, Jr., and Wm. FI. Lyles.

<p>Before Buchanan, J., Greenwood, December, 1903.</p> <p>Indictment against Lige Wideman. From sentence, defendant appeals.</p> <p>cite: Declarations of defendant as to another burning the wood and as to■ compromise, incompetent: 45 S. C., 185; 56 S. C., 104; 57 S. C., 360. As to refreshing memory of merchant by looking at order: 46 S. C., 108; 54 S. C., 337. Witness could not state whose tracks those were: 40 S. C., 329; Green Ev., sec. 440; 32 S. C., 400. As to refusal of new trial: 45 S. C., 483.</p>

<p>Aeimony. — Rules governing the granting of alimony stated. Under the facts in this case, the Court concludes that the husband’s acts of cruelty justified his wife in separating from him; that while her behaviour has not been faultless, her fault had such excuse as to make it insufficient to deprive her of support for herself and her child; that her claim is not barred by condonation; and that she had sufficient reason to decline her husband’s invitation to go to his home as his wife.</p>

Before Aedrich, J., Greenville, July, 1903. Indictment against Isadore Thompson. From sentence, defendant appeals. The charge as to self-defense is as follows : “Self-defense is the next grade I will call your attention to. Self-defense is based upon, predicated and built upon the theory of necessity. It is allowed to a man when it is necessary for him to strike to save his life, or to protect his person from serious bodily harm.

<p>1. Continuance — Discretion.—It is not an abuse of discretion for Judge to refuse motion of continuance on ground that defendant was not ready for trial, because solicitor told defendant’s attorney that he would not give out a bill during that term of Court, but on request of grand jury a bill was handed out next day and trial ordered on following day, in absence of showing that defendant’s witnesses were without the county.</p> <p>2. Sentence within the limit of the law, not disturbed.</p>

Before Buchanan, J., Spartanburg, 1903. Indictment against Alfred Elmore. From sentence, defendant appeals. The contract on which the indictment was based is as follows': “State of South Carolina, county of Spartanburg.

<p>Acts — Constitution—Abortion.—So much of an act entitled “An act to amend the criminal law by providing for the punishment of abortion,” as makes it an offense to advise committing abortion, is unconstitutional.</p>

Before Aldrich, J., Newberry, March, 1903. Action by Bailey & Son against Mary Frances Wells. From Circuit decree, defendant appeals. cite: As to res judicata — estoppel: 5.2 S. C., 166 ; 17 S. C., 35 ; 19 S. C., 150; 58 S. C., 142; 57 S. C., 551. As to rights of assignee— set off: 1 Bay, 247; 2 Tr. Co-n. R., 498; 5 Strob., 144; 11 Rich.., 383; 28 S. C., 217; 56 S. C., 316; 24 Am. St. R., 189. cite: As to privies: 17 S. C., 40. As to estoppel: 24 Am. St. R., 189.

<p>1. Appeal will not be dismissed for inadvertent failure to incorporate in “Case” fact of entry of judgment.</p> <p>3. Charge. — Judge should not charge upon request as the law statute law declared by this Court unconstitutional.</p> <p>3. Ibid. — Statement in charge of alleged facts in issue is charge on facts, and whether or not jury would have found a verdict as they did without such charge, it is error.</p> <p>4. Waters — Sureace Water — Flood Waters. — Lower riparian owner cannot fight off flood waters of a stream after it has left its natural channel as he can surface water.</p> <p>5. Charge. — An instruction that the jury should find for defendant, unless they find a certain obstruction caused the damage complained of, without reference to other obstructions alleged by plaintiff to also be 'the cause of the damage, is error.</p>

Before Gage, J., Aiken, February, 1903. Two actions: (1) John Matheny against City of Aiken, (3) J. G. Harrigal against same. From order sustaining demurrer, plaintiffs appeal. cite: As to due process of law: 13 N. Y., 309; 4 Wheat., 336; Cool, on Con. Rim., secs. 256-7, 564; Williams on Mun. Riab. for Torts, 268, 269.

<p>Before Gary, J., Barnwell, spring term, 1903.</p> <p>Action by Eugenia M. Rice against E. M. Bamberg. Erom judgment for plaintiff, defendant appeals.</p> <p>cites: Defendant and plaintiff were tenants in common through admr.: 1 Hill Ch., 357; 11 Rich. Eq., 527; 12 Rich. Eq., 454. Sale of land in question should be referred to power under will: 2 Hill Ch., 51; 1 Hill Ch., 356; 23 S. C., 514.</p> <p>cite: As to estate of plaintiff: Chev. Eq., 87; 2 Bail., 445; Code, 1902, 2464, 2483; 2 Jar., 465; Wash.. Real Prop., 234. As to referring sale to power under will: 22 S. C., 533; 24 S. C., 491; 40 S. C., 77; 18 Ency., 968. As to proof of alleged lost record: 20 Ency., 472; Black, on Jud., sec. 273; Ereem. on Jud., sec. 125; 18 Wall., 350; 34 Cal., 39; 59 S. C., 498; Green, on Ev., 509-558; 2 Rich. L., 144; 5 Rich. L., 372; 35 S. C., 587; 17 S. C., 58; 2 Speer, 600. Question as to service of minors are res judicata: 59 S. C., 499; 12 S. C., 422; 65 S. C., 400; 21 S. C., 591; 54 S. C., 109; 65 S. C., 418.</p>

<p>1. Practice — Continuance—Discretion.—It. is not abuse of discretion to refuse to continue a case called for trial next day after true bill found, because the solicitor on the day before handing out the bill stated to defendant’s attorney that he would not hand out a bill at that term of Court, but on following day, at request of grand jury, handed out the bill, there being no showing that defendant had made any effort to get her witnesses.</p> <p>2. Criminae Daw — Municipaeity.—A party may be convicted of the same offense, by both a municipal Court and a Court of General Sessions.</p> <p>3. An exception stating remarks of Judge not set out in “Case,” with their connections, will not be considered.</p> <p>4. Discretion. — Sentence within limits of law is within discretion of Judge.</p>

Before Klugh, J., Richland, April, 1903. Action in magistrate court by The Spool Cotton Co. against King and Tiller. From judgment for plaintiff, reversing magistrate, defendants appeal. cites: Answer does not admit partnership: 32 S. C., 245; 27 S. C., 166; 17 S. C., 465; 1 Ency. P. & P., 804; 22 S. C., 557; 14 S. C., 321; 22 Ency., 2 ed., 60, 61, 64; Smith’s Mer. L., 73; 4 Johns. R., 251; 76 N. C., 139; 19 Ency., 337.

<p>Corporations. — Under the statutes providing for formation of private corporations and increase of their capital stock, the same fees are required for increasing capital stock as for an original charter, the fees to be based on the increase of stock.</p>

Before Townsend, J., York, October, 1903. Action by John B. Moore against Catawba Power Co. for damages for personal injuries caused, as he alleges, as follows : “5.

<p>Estoppel — Res Judicata — Official Bonds — Sureties.—Where the State sues the sureties on' a certain official bond for specific breach, enters judgment for that but not for penalty, and that amount is paid, it cannot afterwards sue same sureties on previous bonds for breaches overlooked when first suit was brought.</p>

Before W. C. Benet, special Judge, Laurens, October, 1903. Action by James B. Park against city of Laurens on following complaint: “The complaint of the above named plaintiff respectfully shows unto the Court: “1st. That the plaintiff herein is now, and was at the times hereinafter named, an attorney at law, residing at Greenwood, in the county of Greenwood, in the State of South Carolina. “2d. That the defendant herein is now, and was at the times hereinafter named, a…

Before Watts, J., Charleston, April, 1903. Action by Calvary Baptist Church and its trustees against J. D. Dart. All issues were referred to Master Sass, who filed the following report, omitting the statement of facts in part: “So far there is no dispute as to the facts. But with the sale to Dart the contention begins.

<p>1. The B. & R. Contract here held to be a Virginia contract, and to be construed according to the laws of ¡that State.</p> <p>Mortgage Co. v. Bates, 58 S. C., 552, distinguished from this.</p> <p>2. Pleadings — Foreign Raws. — Usury being an affirmative defense, a defendant should reply to it by pleading the laws of another State, if he relies on them to show ¡that his contract is not usurious.</p> <p>3. Usury — Common Raw. — The presumption is that the common law prevails in Virginia, and under that law there is no legal limitations to the rate of interest.</p> <p>4. Gambling — Usury—Foreign Raws. — The presumption applied to the laws against gambling, &c., in foreign statutes are not applicable ■ in usury.</p> <p>5. Rehearing refused.</p> <p>6. B. & R. Assn.. — Contracts.—When a contract is found to have been made with reference to the laws of a foreign State, and the common law to be of force there, under it a building and loan contract will be construed according to its terms.</p> <p>Association v. Holland, 65 S. C., 178, and Bird v. Kendall, 62 S. C., 178, distinguished from this.</p> <p>7. Attorney’s Fees. — Contract found not to be usurious, attorney’s fees properly allowed as provided by contract.</p>

<p>Motion in this Court by attorneys for petitioners in J. H. Milster and H. G. Abbott, petitioners, against City Council of Spartanburg and Spartan Mills.</p>

<p>1. The assignee of a sealed note takes it subject to all the defenses which the maker had against the original payee.</p> <p>2. Evidence — Letter—Harmless Error. — Admission of a letter from payee of note to assignee asking for discount of assigned note in cash, was harmless error, 'if at all, under the facts in this case.</p>

<p>Before J. E. McDonald, special Judge, Barnwell, September, 1903.</p> <p>Action by Julia B. Fairey et al. against W. H. Kennedy et al. From Circuit decree, defendants, W. H. Kennedy and A. M. Kennedy, appeal.</p> <p>cites: Parties should be left as Court found them: 43 S. C., 320; 25 S. C., 405; 9 Am. R., 531; 6 Rich. Eq., 347. As to amendment after trial: Code of Proc., 194; 18 S. C., 305; 21 S. C., 221; 30 S. C., 564; 19 S. C., 567; 64 S. C., 493.</p> <p>cites: Acts of Kennedys, tend to defraud the owners: 1 DeS. Eq., 300; Rice Eq., 32; l'Rich. Eq., 91; 3 Rich. Eq., 429; 2 Rich. Eq., 296, 177; 13 S. C., 158; Rich. Eq. Cas., 122. Agreement among parties in interest to chill bidding is not illegal: 83 N. Y. R., 83 ; 3 Met., 384; Chitty on Con., 673; 103 Penn., 266; 68 Ga., 25; 4 Den., 287; 1 At., 719; 2 Rich. Eq., 355; 5 S. C., 136; 2 Rich. Eq., 355. As to parties being pari delicto: Brown’s Legal Maxims, *518, 579, 571; 18 Am, St. R., 422; 5 S. C., 136; 4 Johns. Chan., 254.</p>

<p>Demurrer. — A complaint stating several causes of action blended in one, is not subject to demurrer on that ground.</p>

<p>An appeai, by defendant in criminal case, from order setting aside a verdict on motion of State, will no:t lie except from sentence.</p>

<p>Before Keugi-i, J., Fairfield, September, 1903.</p> <p>Action by Thomas H. Ketchin, as executor of the will of Mary C. Rion, against Preston Rion et al. From Circuit decree, Margaret H. Rion, Floride C. Barron, Plolbrook Rion, Lucy Rion Boozer, Hanna Rion Williams, Willie C. Rion, Margaret H. Rion, Jr., Lucille Rion, Charles H. Barron, Floride C. Barron, Jr., Jacob T. Barron, Jr., Elizabeth K. Barron and Jane Fisher Barron, appeal.</p> <p>cite: As to intestacy: 31 S. C., 413. Bstate must be distributed under will cmd codicil: 13 S. C., 531; 3 Rich. Eq., 543; 1 Rich. Eq., 141.</p> <p>cites: Upon failure to appoint under power remainder vests under will: 4 Rich. Eq., 475; 14 S. C., 528; 33 S. C., 424; 1 Strob. Eq., 43; 56 S. C., 7.</p>

Before Aldrich, J., Spartanburg. January term, 1903. Indictment for assault and battery against Thomas Lindsey and Asberry Lindsey. From sentence, defendants appeal. cite: As to res gestae: 13 S. C., 469.

<p>Before Dantzeer, J., Greenwood, August, 1903.</p> <p>Action by Julia V. Kinard against Susan Proctor and J. A. Proctor. From Circuit decree, defendants appeal.</p> <p>cites: As to return of consideration by minor: 16 Ency., 293.</p>

Before Watts, J., Oconee, November, 1902. Action by J. A. Bond against W. B. F. Corbin and J. T. McKinney. From order dismissing case for failure of plaintiff to attend and prosecute, plaintiff appeals. Mr. Earle cites: 65 S. C., 496; 50 S. C., 403. cite: 2 Bay, 440; 60 S. C., 293; 1 Bail., 544; 4 Strob., 62; 2 Bail., 576; 11 Rich., 153; 33 S. C., 106, 275; 42 S. C., 209; 48 S. C., 5; 51 S. C., 136; 65 S. C., 496.

Before Purdy, J., Greenville, March, 1903. Action by Richard Lenhardt and W. R. Perry, as admrs. of A. J. French, against Jesse L. French.

<p>1. Evidence. — Reputation of deceased for drinking is not competent in 'trial of murder case, on issue of deceased being treacherous and violent when drinking, defense being accidental killing.</p> <p>3. Ibid. — III Will. — To show whether deceased and defendant in a murder case were friendly, it is competent to bring out on cross-examination differences between town council and defendant about electing a marshal previous to employment of deceased as marshal.</p> <p>3. Ibid.- — Contradiction-—Reply.-—Where evidence of a contrary statement by a witness is offered by way of impeachment, it is incompetent in reply to admit evidence that the witness has on other occasions made statements similar to what he testified to at the trial, •except when it is charged 'there is a disposition to misstate in consequence of a change of relation to a party or to the cause, when it may be shown 'that he made similar statements before such relation existed.</p> <p>4. Ibid. — Reply.—Evidence that deceased had no powder burns on his hands, is competent in reply to evidence tending to show that deceased had hold of pistol when shot.</p> <p>5. Ibid.- — Res Gestae — Discretion.—Under the facts in this case, a statement of defendant to a third person, two or three minutes after the shooting and a short distance from it, held properly ruled out as not a part of the res gestae, 'the admission of which is largely within the discretion of the trial Judge.</p> <p>6. Murder — Malice.—The Charge, “in this case, if defendant intentionally, wrongfully, killed deceased without justification or excuse, 'then he killed him with malice, and that would constitute murder,” is not on the facts, and properly defines malice and murder.</p> <p>7. Charge complained of is not on the facts and had no tendency to impress the jury with the fact 'that defendant killed the deceased.</p> <p>8. Murder — Accidental Killing. — The defendant in a murder case is not required to establish the plea of accidental killing by preponderance of evidence, -but the State must overcome such plea beyond a reasonable doubt.</p>

Before Dantzer, J., Greenville, September, 1903. Indictment for murder against James Dennis Edwards. From sentence, defendant appeals. cite: As to indictment presented by illegal grand jury: 63 S. C., 347; 56 S. C., 383; 15 Rich., 43, 47; 11 S. C., 319; 3 Speer, 311; 30 Mo., 600; 53 Mo., 433; 33 Miss., 356; 1 Rich., 188; 3 Rich., 533. As to preventing felony: 35 Ency., 3 ed., 374; 135 U. S., 1; 1 Bis. Cr. D., sec. 877.

<p>Mortgage — Tax SaeE. — -Purchase at tax sale of one tract of land conveyed by mortgage, does not satisfy the mortgage debt as to other tracts conveyed thereby, but to the amount of the value of the tract so purchased.</p>

<p>Before J. E. McDonald, special Judge, Barnwell, April, 1903.</p> <p>Action by Irma E. Creighton against T. D. Creighton & Co. From order overruling demurrer, defendants appeal.</p> <p>cite: Code of Proc., 179; 2 Ency., 1 ed., 250, 251, 251; 3 Ency. P. & P., 543.</p>

Before Purdey, J., Beaufort, December, 1902. Action by Laura M. Lockwood, executrix of Wm. H. Lockwood, against Willie Hill Lockwood et al. From Circuit decree, defendants except H. -Q. Adams, treasurer of Beaufort County, and George Gage, treasurer of town of Beaufort, appeal. cite: As to the deposit by respondents being a debt due the public: 45 S. C., 567; 1 Strob. L., 42; 23 S. C., 118. As to proof of the debt: Strob., 145; 11 Rich., 278.

Before Townsend, J., Marion, May 1903. Action by Nichols and McGhee against W. J. Montgomery, W. H. Cross and E. C. Edmunds, trading under name of E. C. Edmunds. From Circuit order overruling demurrers, defendants appeal. cite: As to tests of partnership: 22 Ency., 2 ed., 19, 20, 21, 22, 23; 18 S. C., 223; 1 Add. on Con., 183; 11 E. R. A., 136; 36 L. R. A., 767; 2 McC., 421; 22 Wall., 116; 116 U. S., 461. As to liability of incoming partner: 1 Coll.

<p>Wills. — The provisions of a will after devjging lands to his children, “I wish to be distinctly understood that I will to each of my grandchildren, $20, to be paid to them by their parents when they become old enough to know the worth of money. Tips is a matter of trust and love for my grand-children, of course, the money to come out of my landed estate,” each child to “care for their own children,” carries a legacy to each grand-child living at the death of the testator, to be paid by the child, devisee, who can sell and make fee simple title to the lands devised before paying the legacies, in absence of intent to breach the trust.</p>

<p>1. Manufacturing Corporation — Employee — Checks. — A Money Judgment cannot be obtained on a “check” redeemable in merchandise issued by a manufacturing corporation to its employees as a credit, but not in payment of labor.</p> <p>2. Constitution. — Code 1902, secs. 2719 and 2720, are not violative of constitutional provisions as to equality of laws.</p>

<p>t. Corporations — Partnership—Ultra Vires. — While the stockholders or the State may object to the use of corporate'funds by its officers in a partnership with an individual as ultra vires, still such objection cannot be raised by way of defense against the purchase contract of goods owned by the corporation and sold by the partnership, and when the corporation acquires by assignment all rights of its copartner in such sale, it alone may collect the purchase money of the buyer.</p> <p>3. Contract — Damages.—The seller of goods by executory • contract to be delivered at time to be fixed by buyer, may maintain an action for damages for breach of the contract, and the measure of damages is the difference between the contract price and the market price at the time the buyer refuses to accept.</p> <p>3. Evidence — Letters—Statute oe Frauds. — Contract evidenced by a bill of goods and letter in response thereto, is not within the statute of frauds.</p> <p>4. Ibid. — Parol—Partnership—Letters.—It is proper to show by parol that a letter signed by an individual was written for a partnership of which the writer was a member.</p> <p>5. Ibid. — Partnership—Principal and Agent. — The fact that an individual was purchasing agent for others, is not competent on the question whether he acted in one instance for the firm of which he was a member, in absence of evidence tending to notify the seller that he was also purchasing agent for others.</p>

Before Buchanan, J., Union, October term, 1902. Action by Rosa Williams, as administratrix of Wallace Williams, against Southern Railway Co. Rrom judgment for plaintiff, defendant appeals. cites: As to liability for wrongful death: Code, 1902, 2851; 141 Ind., 443; 25 Ohio St., 629; 87 Mo., 422; 3 Wood on R. R., 1826; Tiffany Death by Wrongful Act, sec. 32; Suth. on Stat. Con., sec. 371; 65 S. C., 234. As to the motion for a new trial: 13 Rich., 59; 19 S. C., 581.

Before DanTzlER, J., Cherokee, March, 1903. Action by J. A. Ellis & Co. against W. H. Carroll. From judgment for plaintiffs, defendant appeals. cite: As to whether the case comes within the letter of the statute: 29 S. C., 13; 32 S. C., 276; 51 S. C., 467; 4 S. C., 105. As to the debt being an original promise: 29 S- C., 13; 32 S. C., 276; 2 McC., 372; 3 Brev., 52.

<p>Insurance. — A Chattel Mortgage on a stock of goods given by a debtor merchant to one creditor after insurance, avoids a fire insurance policy on the same goods, which contains a clause providing that the policy should be void if the subject of insurance be personal property and be or becomes encumbered by a chattel mortgage, although the mortgage is afterwards set aside as a fraud upon the other creditors of the merchant debtor under the assignment statute.</p>

<p>Before Klugh, J., Saluda, May term-. 1903.</p> <p>Action by D. Luther Riley against Mutual Life Insurance Co. From order of Circuit Court remanding the cause to magistrate court, defendant appeals.</p> <p>cites: Summons served does not give Court jurisdiction of defendant: Rev. Stat., sec. 88, sub-div. 16; 26 S. E. R-, 985; 27 S. E. R., 526.</p>

Before DanTzeER, J., Laurens, July, 1903. Action by Alice A. Young against St. Paul Fire and Marine Insurance Co. From judgment for plaintiff, • defendant appeals. cites: As to the validity of the other insurance condition: 13 Ency., 2 ed., 300, 307; Ost. on Fire Ins., 2 ed., 553. As to waiver of other insurance conditions: 47 L. R. A., 450; 2 McM., 220.

Before J. H. Hudson, special Judge, Richland, March, 1903. Action by N. S. Turner against Wm. H. Lyles. From judgment for defendant, plaintiff appeals. cites: As to charge on facts: 47 S. C., 489; 56 S. C., 529. As to a promise to pay the debt of another: 29 S. C., 14; 3 Par. on Con., 24. As to trust in personal property by parol: 14 S. C., 211; 2 Hill Ch., 589.

Before DanTzlLR, J., York, February, 1903. Action by Eillian S. Adams, as administratrix of estate of Ernest E. Adams, against South Carolina and Georgia Extension Railroad Co. From order of nonsuit, plaintiff appeals. cites: No failure of proof: Code of Proc., 192.

<p>Before Townsend, J., Richland, July, 1903.</p> <p>Petition for mandamus by O. W. Buchanan against State Treasurer, R. H. Jennings, and Comptroller General, A. W. Jones. From Circuit order directing writ, respondents appeal.</p>

Before Gary, J., Colleton, March term, 1903. Indictment against W. B. Adams, Henry Hoff and R. .A. Adams for murder. From verdict and sentence, defendant, R. A. Adams, appeals. The former cite: As to definition of manslaughter: Crim. Code., 120. As to charging on facts: 28 S. C., 255; 47 S. C., 513; 56 S. C., 531; 51 S. C., 461.

<p>Before Purdy, J., Orangeburg, May, 1903.</p> <p>Action by B. F. King & Son against E. B. Kane and J. W. Smoak. From Circuit judgment plaintiffs appeal.</p> <p>cites : Verdict against defaulting defendant was error: 82 Cal., 184; 6 Ency. P. & P., 23; Code of Proc., 157, 296; 10 S. C., 295; 49 S. C., 7; SI Hun., 89. As to Court directing verdict: 13 S. C., 378; 42 S. C., 28; 26 S. C., 109; 31 S. C., 436; 14 S. C., 135. As to imperfect verdicts: Grab. & Wat. on New T., 1378, 1384; Brev., 113; 7 Halst., 852. Error for Judge to consider liability of defaulting defendant: Code of Proc., 189; 13 S. C., 479; Code of Proc., 269, 276, 279, 280, 282, 266, 267. As to effect of misdirection of jury: 45 Am. St. R., 859; 31 Id., 258; 18 Id., 550.</p> <p>cite: As to submission to jury of liability of defaulting defendant: Code of Proc., 267; 44 S. C., 533; 50 S. C., 491. No appeal lies from verdict: 14 S. C., 571; 5 S. C., 473; Code of Proc., 335-341. As to amending verdict: 22 Ency. P. & P., 961, 964, 972; 2 Ala., 274; 32 Ga., 596; 154 Pa. St., 223; Harp., 56; 2 Mill, 371; 1 Bay, 490; 21 Ore., 367; 5 Rich., 244; 9 Rich., 169; 7 Rich., 527; 13 S. C., 5; 24 S. C., 114; 14 S. C., 137. Verdict may be oral: 22 Ency., 897, 898; 2 Ala., 44; 111 111., 432; 100 Mass., 146; 20 Cal., 69; 34 Ind., 464; 6 la., 456; 20 la., 456; 1 Mo. App., 635.</p>

Before DanTzlLR, J., York, May, 1903. Petition by James E. Reynolds, in re A. E. Hutchison, against Rock Hill Cotton Factory Co. el al. From Circuit decree, petitioner and certain creditors appeal. cites: Commissions could be assigned before earned: 2 Ency., 1026, 1031-2; 14 S. C., 112. Inequitable set-off of judgments not allozved: 25 Ency., 616; 43 S. C., 485; 2 McC., 203; 25 Ency., 618. As to rights of assignee by subrogation: Brandt on Sur., sec. 316.

Before Watts, J., Charleston, April, 1903. Action by C. O. Campbell, trustee, against Virginia-Carolina Chemical Co. et al. From Circuit decree, the Virginia-Carolina Chemical Co. appeals. cite: As to duty of purchaser of trustee to see to investment of funds: Lewin on Trusts, 429, et seq.; 2 DeS. Eq-, 375; Speer Eq., 134; 24 S. C., 179, 487; 29 S. C., 278. As to validity of contract under statute of frauds: 21 S. C., 119; 16 S. C., 624; 33 S. C., 279; 13 Rich.

Before Keugh, J., Richland, April, 1903. Action by Andrew J. Davis against Southern Ry. The charge of the presiding Judge is as follows: “The plaintiff, Andrew J. Davis, brings this suit against the Southern Railway Co. to recover damages which he alleges he has suffered by reason of the railroad having killed a mule of his, as he alleges, through negligence.

<p>Before Purdy, J., Greenville, April, 1903.</p> <p>Action by David P. Verner on behalf of himself and others and the Mutual Insurance Co*. of South Carolina, against Augusta A. Simpson et al. From Circuit decree, plaintiffs appeal.</p> <p>cites: As to res judicata: 53 S. C., 289; 24 Ency., 746, 777; 32 S. C., 343; 61 S. C., 11. Is this property subject to execution? 54 S. C., 371; 30 N. E., 114; 1 L. R. A., 146;'24 Fed. R., 689; 4 Joyce on Ins., sec. 3474.</p> <p>cite: As to res judicata: 13 S. C., 290; 26 Am. St. R., 942; 27 Am. Dec., 689; 39 Am. Dec., 750; 44 S. C., 21.</p>

<p>Before Buchanan, J., Laurens, October, 1902.</p> <p>Action by Jas. F. Nelson against Georgia, Carolina and Northern Ry. From judgment for defendant, plaintiff appeals.</p> <p>cite: As to declarations of conductor being a part of res gestae: 56 S. C., 136; 47 S. C., 13; 5 Col., 348; 28 Col., 23; 63 S. C., 560; 1 Green. Ev., secs. 113-4.</p> <p>The former cites: As to admissibility of declarations of conductor: 21 Ency., 106; 144 Mass., 148; 9 Gray, 245; 17 N. Y., 131; 26 Ga., 113; 92 Va., 327; 57 111., 265; 1 Ency., 552; 119 U. S., 551; 27 S. C., 63; 19 S. C., 373.</p>

<p>Before Purdy, J., Oconee, May, 1903.</p> <p>Action by James T. Reid against The Courtenay Manufacturing Co. From judgment for defendant, plaintiff appeals.</p> <p>cites: As to construction of deed: 17 Ency., 4; 14 S. C., 165; 33 S. C., 333; 38 S. C., 133; 35 S. C., 337; 43 S. C., 343; 3 Strob. E., 158;-17 Ency., 3 ed., 31, 18; 33 S. C., 545; 37 Ea. Ann., 343; Con. 1895, art E, sec. 17; 53 S. C., 130.</p> <p>also, cites: On same point: 47 S. C., 485.</p> <p>cite: Construction by Court zvas correct: 17 S. C., 139; 35 Mo., 367; 77 N. W., 217; Goulcl on Waters, sec. 307;’17 Me., 169; 14 Wend., 204; 7 Jones, 185; 63 Me., 447; 6 Ore., 459. As to right to overflow a certain tract carries damages to adjoining lands: 47 S. C., 485; 8 Ency., 2 ed., 695. As to tax returns as evidence: 65 S. C., 492.</p>

<p>Before DanzeER, J., Lancaster, March term, 1903.</p> <p>Action by Elizabeth Kennington et al. against Eddie Catoe et al. From judgment for defendant, Dell McManus, plaintiff, and other defendants appeal.</p> <p>cite: As to the opening and reply: Rule 59 C. C.; 35 S. C., 165; 50 S. C., 25; 63 S. C., 290.</p> <p>cites: As to the granting of new trials: 1 Rice L-, 271. Mcwriage of parties lawful: Code, 1902, 2664; 18 S. C., 514.</p>

Before Townsend, J., Darlington, April, 1903. Action by A. H. Windham et al. against George C. Howell et al. Prom judgment on verdict directed for defendants, plaintiffs appeal. The latter cites; As to right to life tenants in common to partition: Code, 1902, 2436; 32 S. C., 77; 36 S. C., 295; 29 S. C., 369; 2 Strob. Eq., 145;-26 S. C., 244; 24 S. C., 594; Code Proe., 297; 20 S. C., 105; 3 Wait’s Prac., 564, 607, 608; 3 Rich. Eq., 383.

<p>Raieroads. — Nonsuit is improper where the proof tends to show that deceased, hard of hearing, walking on a part of the railroad track which pedestrians were accustomed to use, was struck by a freight train running without a headlight at night, and left on way by employees.</p> <p>Haltiwanger v. R. R., 64 S. C., 34, criticised.</p>

Intervention of H. C. McCall and S. T. Burch by petition in proceeding in this Court by Valcour Little against Presbyterian Church of Florence, to enjoin the church from removing the body of a deceased member of his family from the cemetery on the church lot.

Before J. E. McDonaed, special Judge, Barnwell, May, 1903. Action by Lizzie D. Rhodes, administratrix of George T. Rhodes, against Southern Railway Co; and P. I. Welles. From judgment for plaintiff, defendant appeals. cite: As. to refusing motion for continuance on account of sickness of one counsel: 42 S. C., 209; 48 S. C., 45;'50 S. C„ 403; 1 McL., 520. As to refusal to quash array of jurors: Act of 1731, vol. 3, sec. 29 ; 12 Ency.

Before Watts, J., September, 1902, and Purdy, J., March, 1903, Greenville. Action by Standard Sewing Machine Co. against Alexander. From judgment for plaintiff, defendant appeals.' cites: As to amendment changing cause of action: 64 S. C., 491; 16 Ency., 2 ed., 782; 2 McC., 167; 95 U. S., 704; 114 U. S., 555; 1 Behj. on Sales, 59'6, 601, 603; 23 S. C., 170; 21 S. C., 226; 24 S. C., 165; 32 S. C., 142; 64 S. C., 491.

<p>Before Purdy, J., Greenville, March term, 1903.</p> <p>Action by W. F. Hutchings against Mills Manufacturing Co. From judgment for plaintiff, defendant appeals.</p> <p>cite: No negligence shown, in defendant by reason of defective marchinery: 35 S. C., 405; 61 S. C., 492. Denial of defendant raised defense of contributory negligence here: 50 S. C., 53; 10 S. C., 436.</p> <p>cite: There being evidence to support all the allegations, nonsuit properly refused: 67 S. C., 129; 66 S. C., 96; 62 S. C., 136. Motion to amend so as to change defense, not allowed: 21 S. C., 225; 60 S. C., 485. As to duty of master in furnishing appliances: 18 S. C., 282; 52 S. C., 446. Contributory negligence must be pleaded: 51 S. C., 95, 159.</p>

Before Aldrich, J, Greenville, summer term, 1904. Action by Hattie K. League against C. D. Stradley. From Judgment for plaintiff, defendant appeals. cite: Merchant ozaes no duty to public to keep private places in store in safe condition: 5 L. R. A, 580; 1 Thomp. oh Neg, sec. 988; 33 N. E, 1028; 11 A. St. R„ 583; 21 A. R, 720; 41 Minn, 66; 120 Mass, 366; 67 N. Y, 366; 21 Ency, 472; 64 S. C, 7; 10 Allen, 385; 18 Ency, 1136; 22 A. R, 114; 97 E. C. L, 731; 98 Am.

<p>1. Jury — New Trial. — Where jury disregards instructions of Circuit Judge, new trial should be granted.</p> <p>2. Contract — Freight—Parol Evidence. — Where an order for goods is silent as to freight, parol evidence is admissible to show the agreement of the parties as to payment of freight.</p>

Before Purdy, J., Greenville, June, 1903. Petition of intervention by Wmi. Goldsmith, Jr., in re Fur-man University, against Mary C. Huff et al. From Circuit decree, petitioner, Goldsmith-, appeals. cite: Obligation is regcu'ded as contracted at date of bond: 5 S. C., 470; 15 Ency., 634. Question must be determined as homestead laws stood at execution of bond: 21 S. C., 378; 65 S. C., 237.

<p>Petition in the original jurisdiction of this Court by Pauline M. Guenther, C. O. Witte, A. M. Lee, Henry A. M. Smith, Henry E. Young and Paul Grant, for writ of mandamus against The Charleston Light and Water Co.</p>

<p>1. Words and Phrases. — “Heir” and “Distributee” mean the same thing, unless there is something to change the ordinary meaning of the word “heir.”</p> <p>2. Uord Campbell's Act — -Construction oe Statutes — 22 Stat., 788.— The word “of,” in act of 1898, as to action for wrongful death, construed to mean “or,” so that ¡the act shall read, “and if there be none of such, then for the benefit -of the heirs at law or (of) the distributees of -the person, &c.”</p> <p>3. Pleadings — Amendment—Complaint.—Under sec. 194 of Code of Proc., a complaint stating a cause of action may be amended before or after judgment.</p>

<p>Attorney's Fees — Receiver.—The Court of Equity is not bound by a previous agreement of parties or order of the Cotirt to the effect that a receiver should employ counsel to serve without compensation, and whenever in its judgment it is proper to compensate counsel for services in preserving a fund in Court, it may disregard such agreement and order and direct that a fee be paid receiver’s counsel out of the fund. But such agreement as to attorneys representing parties to the suit not charging fees, will not be molested.</p> <p>Mr. .Chief Justice Pope thinks, under the agreement, plaintiff should not be required to contribute to payment of fee of receiver’s attorney.</p>