Volume 69 — South Carolina Reports

Before DanTzlER, J., Newberry, July, 1903. Action by Robert Bedenbaugh against Southern Railway Co. and W. F. Outlaw. From judgment for plaintiff against defendant railway, it appeals. cites: As to habit of plaintiff of excessive use of liquors: 1 L. R. A., 708; 13 Q. B., 292; 78 Ga., 288; 47 L. R. A., 480. As to requisites of a street: 2 Bay., 282; 80 la., 68; 17 Pick., 284; 11 Rich., 440. As to right to use track in street longitudinally: 176 U. S., 241.

Before Aldrich, J.¡ Greenville, August, 1903. Action by Samuel A. Townes, trustee of the bankrupt estate of Alexander against M. L. Alexander and Roxie A. Alexander. Held: and for the reasons stated, that M. L. Alexander, as established by the evidence, came within subdivisions 1, 2 and 4 of the law, as construed in Sirrine, Trustee. v. Stover, Marshall & Co., 64 S. C., 457; but that the evidence does not establish the 3d'element.

Before J. E. McDonald, special J., Barnwell, August, 1903. Creditor’s bill by P. M. Anderson, administrator of N. D. Anderson, against P. M. A. Baughman et al. From judgment for plaintiff, defendants appeal. cite: As to payments: 28 S. C., 285. cites: As to presumption of payment: 25 S. C., 214; 32 S. C., 140; 45 S. C., 337. As to homestead exemption: 21 S. C., 375; 37 S. C., 376; 41 S. C., 109 ; 45 S. C., 65; 47 S. C., 446.

<p>Before DantzlER, J., Lancaster, April, 1903.</p> <p>Ex parte E. A. Small, in re estate Samuel E. Usher. From Circuit decree, petitioner appeals.</p> <p>cite: As to finding of fact by probate court on appeal: 13 S. C., 37. As to discretion of probate court in refusing administration to party first entitled tmder statute: Rice, 287; 2 Strob., 335. Circuit Court Ms no jurisdiction to revoke letters of administration: 4 S. C., 44; 22 S. C., 42; 33 S. C., 442 ; 2 Strob., 335. Second citation sMuld Mve been publisMd: SchouleEs Exors. and Admr., 137; 11 Ency., 2 ed., 769.</p> <p>cite: Binding by Circuit Court will not be disturbed: 31 S. C., 206, 605; 37 S. C., 285, 603, 89, 489. Statutory provision as to administration is mandatory: 17 S. C., 32; 2 Strob., 335; Rice, 287.</p>

<p>Before DantzlER, J., Laurens, September, 1903.</p> <p>Action by L. H. Davidson against E. W. Copeland. Prom order of reference, defendant appeals.</p> <p>cite: Code of Proc., 292; 43 S. E., 311.</p> <p>cites: 34 S. C., 175; 58 S. C., 463; 25 S. C., 119; 65 S. C., 573.</p>

Before Purdy, J., Florence, August, 1903. Action by Hewett P. Jordan against Thomas Wilson. From order refusing to set aside temporary restraining order, defendant appeals. cite: As to dissolving a temporary injunction: Code of Proc., 335, 336, 246: Spell. Ex. Relief, secs. 1054, 28; Dan. Ch. PI. & Pr., 5 ed., 1599, 1600, 1602, 1603, 1604; Beach’s Mod, Eq. Prac., vol. 2, 780, 783, 791; 33 S. C., 410; 7 S. C., 486; 64 S. C., 405.

<p>Before Townsend, J., Richland, July, 1903.</p> <p>Action by Robert Little against George B. Christie et al., doing business as Christie, Lowe & Hey worth. From order declaring service of summons by publication void, plaintiff appeals.</p> <p>Mr. Sloan cites: Code of Proc., 148, 155, 156, 158, 160; 17 S. C., 406; 32 S. C., 343; 95 U. S., 714; Code of Proc., 248, 249; 28 S. C., 521; 119 U. S-, 185; 79 Pa. St., 354; 15 Ohio, 33; 39 Neb., 679; 5 Rich., 63; 2 Speer, 640; 35 S. C., 94; 19 S. C., 526; 32 S. C., 319; 39 S. C., 484.</p> <p>cite: 95 U. S., 714; 39 S. C., 84; 11 How., 437; 32 S. C., 319.</p>

Before Buchanan, J., Union, October term, 1902. Action by T. H. White and M. S. Lewis against I. S. Harris, W. C. Nelson and R. N. Harris. From judgment for plaintiffs, defendants appeal on the following exceptions: “1.

Before Purdy, J., Abbeville, February term, 1903. Indictment against Glover Middleton. From sentence on verdict, defendant appeals. cites: No evidence of previous guilt except confessions: 18 Ency., 489; 4 Strob., 311. As to acts and statements under duress: 18 Ency., 523, 4, 5 ; 35 S. C., 197; Con., art. I., sec. 17; 142 U. S., 547; 168 U. S., 542; 116 U. S., 616; 15 E. R. A., 678; 5 Bart., 619; 63 Ga., 669; 45 How. Pr., 216; 47 Am. St. R., 177; 59 E. R. A., 438.

<p>Before Izlar, special J., Kershaw, December, 1902.</p> <p>Action by Jesse Kilgore et al. against Frank P. Kirkland et al. From Circuit decree and judgment, defendants appeal.</p> <p>cite: As to refusal of nonsuit and new trial: 14 Fncy., 2 ed., 1042; Sedg. & Wait. T. Title to Land, sec. 729; 64 S. C., 485; 14 S. C., 189; 16 S. C., 132; 50 S. C., 167; 1 Ency., 2 ed., 843. As to notice of recorded will: 20 Ency., 1 ed., 800; 24 Ency., 2 ed., 149, 150, 146; 20 S. C., 23; 2 Pom. Eq. Jur., 100; 2 Pom. Eq. Jur., 223. Grantor may be estopped, and grantee not: 23 Ency., 2 ed., 478. Expired possession gives no notice: 16 Ency., 1 ed., 801; 23 Ency., 2 ed., 506.</p> <p>cites: As to zvl'mi statute begins to run in favor of administrator: 16 S. C., 184, 228; 42 S. C., 63; 36 S. C., 322. As to defense of purchaser for value: 23 Ency., 482. ' As to declarations of party in possession: 1 Green., 109; 3 McC., 261; 4 McC., 267; 16 S. C., 142. Decrees of probate court are conclusive: Big. on Est.,-159; 1 Story Eq., 440; 23 Ency., 132; 26 S. C., 237; 3 Strob. Eq., 42; 4 Rich. Eq., 101.' As to facts inciting inquiry: 23 Ency., 480; 4 Rich. Eq., 105; 32 S. C., 480; 28 . S. C., 58; 14 S. C., 90; 7 Pet, 271; 17 S. C., 558.</p>

Before DanTzler, J., Marlboro, August, 1902. Action by Cape Fear Lumber Co. against Alexander J. Matheson. From Circuit decree, defendant appeals. cites: As to. when equity interferes in cases of written instruments: 1 Story Eq., sec. 155; 2 Pom. Eq. Jur., secs. 839, 860, 868; Wat. on Spec. Per., sec. 160; Ery on Spec. Per., sec. 476; 12 L. R. A., 273; 4 Rich. Eq., 313.

<p>1. Written Instrument — Option.—Parol Evidence of a previous or contemporaneous stipulation between the parties is not admissible to enlarge, vary or contradict the terms of a written contract under seal for sale of timber, commonly called an “option.’</p> <p>2. Supreme Court — Subrogation.—All parties being before the Court, this Court will remand a case with leave to a defendant to take proceedings to have itself subrogated to equities of its codefendant.</p> <p>3. Rehearing refused.</p>

<p>1. Evidence — Diagram.—It is not essential to the admissibility of a diagram that it should have been made by the witness; it is sufficient, if it is a correct representation of the thing to be described.</p> <p>2. Discretion. — Leading .Questions are within discretion of trial Judge.</p> <p>3. Evidence — Expert Opinion. — It is competent for a foreman of bridge building, acquainted with pile drivers and their use, to give his opinion as to the. safety of an appliance used on the machine.</p> <p>4. Nonsuit — Jury—Appliances—Fellow-Servant.—There being some evidence by plaintiff that injury was the result of a -defective appliance, nonsuit was properly refused; and there being evidence by defendant showing that the appliance was selected by' a fellow-servant of the injured under instructions of the master, but without inspection by him, it was proper for the jury to determine whether the injury was caused by a! defective appliance negligently furnished by the master, or by the negligent use of a proper appliance by a fellow-servant.</p> <p>5. Master — Machinery—Appliances.—Jury were instructed that it was the duty of the master to furnish machines, tools and appliances that are reasonably safe to work with, and not that the master was liable, irrespective of whether he had exercised ordinary care and prudence in furnishing and repairing them.</p> <p>6. New Trial. — Refusal of new trial based on sufficiency of evidence is not reversible error, unless there is a total absence of evidence to sustain the verdict.</p>

Before Aedrich, J., Greenville, July term, 1903. Action by A. H. Dagnall against Southern Railway. From judgment for plaintiff, defendant appeals. cites: As to proving notice of limitations on ticket: 65 S. C., 533; 4 McC., 345; 3 Sp., 550; 36 'S. C., 610; 4 Ell. on R. R., sec. 1593; 8 Am. R., 545; 54 S. C., 507. As to reconsideration of Norman v. Ry.: 4 Ell. on R. R., secs. 1593, 1595; Hutch, on Car., 575-6; 46 N. H., 313; 71 Penn.

<p>1. Railroads — Passengers—Nonsuit.—Proof that a train was due to leave a station twenty minutes late, did so leave, but after moving about 100 yards returned to depot, and there remained ten hours without any information to passengers as to cause of delay or duration, prevents nonsuit in suit by passenger for failure to carry.</p> <p>2. Charge. — Under facts here request that defendant was not liable for punitive damages would have been a charge on the force of evidence.</p> <p>3. Exception referring to another for specifications of error not considered.</p> <p>4. Railroads — Passengers—Damages.—Charge as to duty of railroad company to run its trains on schedule time and liability to passenger for failure to do so, and as to actual, nominal and punitive damages in cases where no actual damages are shown and no special damages alleged, held correct.</p> <p>5. New Trial. — Refusal of trial Judge to grant new trial for insufficiency of evidence, will not be inquired into here.</p>

<p>Before Townsend, J., Edgefield, August, 1903.</p> <p>Proceeding in probate court to- fix fees of attorneys representing executrices in Ex parte Lewis D. Landrum et al., executors, &c., in re last will of Mrs. Emily G. Budwell. From Circuit decree modifying probate decree, Baptist Mission Boards of the Southern Baptist Convention, legatees, appeal.</p> <p>cite: As to when fees should be paid and the amount: 1 Ency., 967; Rice Eq., 51; 4 Rich. Eq., 39; 8 Rich. Eq., 87; 25 S. C., 501; 60 S. C., 272; 5 Martin, 397; 15 La., 395; 24 S. C., 483. Costs and fees should be prorated among parties in interest: 11 Rich. Eq., 553; 4 Ency., 1; 7 Ency., 411; 21 S. C., 178; 45 S. C., 319; 63 S. C., 489; 1 Strob., 393; 49 Conn., 519; 39 Ky., 104; Was. Am. L. of Ad., 1149; 33 Ala., 391; 4 Gill., 55; 9 Bush., 49-54; 100 Pa. St., 197; 10 Rich. Eq., 303.</p> <p>cites: Dee should not be paid out of residuary fund: 10 Rich. Eq., 305.</p> <p>cite: Amount to be paid attorneys is a question of fact: 16 S. C., 631; 13 S. C., 463; 44 S. C., 75, 437; 60 S. C., 383; 3 Ency., 3 ed., 419, 430, 431, 434; 33 Eed. R., 334; 55 Miss., 380; 10 Abb. N. Cas., N. Y. Sup, Ct„ 15; 33 Eed. R., 443; 93 U. S., 557; 1 Wall., Jr. (C. C.), 196. Out of what fund should the attorneys be paid? 7 Ency., 3 ed., 411, 1381; 19 Id., 1300; 1 Brev., 389; Chev. Eq., 139; Rich. Eq., 198; 3 Rich. Eq., 65 ; 13 Rich. Eq., 59; 10 Rich. Eq., 469 ; 1 DeS., 500;.39 S. C., 103; 33 S. C., 101; 14 Rich. Eq., 359; 3 Rich. Eq., 65; 38 S. C., 334.</p>

<p>Before Purdy, J., Anderson, April, 1903.</p> <p>Petition by J. Matt Cooley to set aside foreclosure sale in Brown, Osborne & G>. against A. T. Newell et al. The following is the decree on Circuit, omitting formal order of resale:</p> <p>“J. Matt Cooley files his petition in the above stated cause, for the purpose of setting aside a sale made to' Brown, Osborne & Co. under order of Court in said cause, on November salesday, 1902.</p> <p>“The tract of land is known as the ‘home tract’ of A. T. Newell, and is referred to also as tract No. 2, containing three hundred and twenty-three acres, more or less, lying and being in the county and State aforesaid, bounded by tracts No. 3 and No. 4, W. W. Thompson and others, more fully described by plat made by W. H. Shearer, surveyor, bearing date October 9th, 1902.</p> <p>“The petition, among other things, recites that by reason of the alleged misconduct of A. T. Newell, judgment debtor, of which Brown, Osborne & Co. had notice, and by reason of other facts and circumstances set out in the petition, the Court should refuse to confirm the sale.</p> <p>“It seems from the testimony that A. T. Newell, one of the parties in interest, owed large sums of money — about fourteen thousand eight hundred dollars being due to J. Matt Cooley, the petitioner, and about four thousand eight hundred dollars being due to- Brown, Osborne & Co. Mr. Cooley having, as to them, the superior lien. The lands of Mr. Newell had been cut up into five tracts for the purpose of effecting a sale, and under the advertisement, the home tract was to have been the second tract sold.</p> <p>“It further seems that up to within a few days of the time of sale, Mr. Newell had been making active preparations looking to the raising of money to prevent the sale, but all his arrangements had failed. In the meantime, however, he had spoken to the judge of probate, who was to make the sale, and had requested him to> sell the home tract last. Finally the' probate judge informed him that, if there was no objection, he would so make the sale, and when the time of sale arrived, having made the announcement, and no objection having been then offered, the order of sale was changed, and the home tract was offered for sale last, and was bid in by Brown, Osborne & Co. for three thousand one hundred and twenty dollars, which, under the testimony, is less than half its value. Brown, Osborne & Co. complied with their bid, but the petitioner refused to take the money, and filed his petition.</p> <p>“It further appears that at the sale, W. S. Newell, who was in the employment of Mr. A. T. Newell, bought two of the tracts of land, one at three thousand dollars and the other at three thousand six hundred and fifty dollars. Mr. A. T. Newell also', at said sale, bid off a tract of two hundred and' ninety-three acres at five thousand dollars. Neither one of the Newells complied with any of the bids. The small tract of forty-three and three-fourths acres was sold at said sale to W. N. Martin for one thousand and seventy dollars. The three tracts of land bid in by the Newells were afterwards resold at prices stated in the report of the special referee, and sold for three thousand six hundred dollars less, in the aggregate, than the Newells’ bids, although it seems that five thousand dollars was about a fair price for the two hundred and ninety-three acre tract. The matters arising under the petition and the returns thereto, were referred to' Walter H. Hunt, Esq., as special referee, and he filed his report on the 21st day of February, 1903, finding all the facts adversely to the petitioner, and recommending that the petition be dismissed and the sale confirmed, and from his findings an appeal was taken to this Court and was duly heard by me.</p> <p>• “The exceptions allege error as to almost every item of the report.</p> <p>“The referee, in concluding his report, says: While inadequacy of price will cause the Court to' closely scrutinize the sale and seize upon any circumstances indicating unfairness in the sale itself, or any improper conduct of the person reaping a benefit therefrom, tO‘ set it aside, and while the Court is jealous of the integrity of its sales and insists upon the utmost fairness, it will not set aside a sale made under its order to the highest bidder, solely upon the ground of inadequacy of price.’</p> <p>“This is so well established as a matter of law that it does not need any authority to support it. Taking this as a correct exposition of the law, what must be the conclusion from the testimony in the case ?</p> <p>“Able counsel are engaged in the cause and it has been most earnestly argued before me, and 'the report was made by a distinguished member of the bar, who took the testimony and saw the witnesses. I have great respect for their integrity and learning, but notwithstanding this, a very careful perusal of the testimony leads me to differ from the referee and the learned counsel in their conclusions.</p> <p>“Under the views entertained by hie, I do> not deem it necessary to do more than give a passing notice of the sixth exception, as the report of the referee must be reversed on the other exceptions raised.</p> <p>“I. Mr. Martin had authority to- bid up to certain figures on each tract of land, his instructions were, not to buy land if he could realize the debt without. He states emphatically that Mr. Cooley said that he did not wish to purchase the land. Authorizing Mr. Martin to bid to- certain figures and instructing him to- do so; are entirely different matters; he had no such instructions, but was instructed that these were to be his limits if necessary to collect the debt. The referee erred in construing the testimony to mean that Mr. Cooley had instructed Mr. Nance, the probate judge, not to permit the Newells to- comply with their bid. A careful perusal of the testimony will show that Mr. Cooley did not desire Mr. Nance to grant so much time that he would not have an opportunity of re-advertising the land for the next salesday. This was the cause of the complaint, and Mr. Cooley was not complaining because they desired to' comply and were not permitted to do- so-. The fact is, that he wanted his money and did not desire to be delayed longer in getting it, and the-record shows that he had just grounds for adopting such a course. Besides, the order of Court required the land to- be1 resold if the bids were not complied with within five days, and Mr. Cooley had no- right to change the order of Court by preventing the parties from complying before the expiration of the five days, or by allowing them to do so without the-further order of the Co-urt, after that time, and the testimony shows that he attempted to- do’ neither the one thing nor the other.</p> <p>“II. The testimony, I think, shows that tracts 1 and 4, referred to- in the exceptions, were bid off at the first sale at sums far beyond their real value at either public or private-sale. Just how one of the tracts reached the figure of three thousand six hundred and fifty dollars through any other agency tiran that of W. S. Newell has not been explained. There was but one bid that carried the other tract to three thousand dollars, and that was the bid of W. S. Newell. No one has ever been found who was then, or is now, willing to pay any such price for this land, and it was subsequently fairly sold at public auction at figures approximating its real value.</p> <p>“III. Exception three is well taken also, and is sustained by the testimony of Mr. A. T. Newell himself. He looked on the memorandum held by Mr. Martin, the agent of Mr. Cooley, and mistaking the instructions in reference to- this tract for the instructions given in reference to- the ‘home tract,’ and thinking Mr. Cooley had iñstructed Mr. Martin to bid five thousand eight hundred dollars on this tract, without any idea of becoming the owner of the land, made a bid of five thousand dollars. Mr. Martin’s instructions gave him a limit of something like five thousand three hundred dollars on this tract, and as a smaller tract had already been sold for between three and four hundred dollars more than the limit given by Mr. Cooley, he could very well afford, in the exercise of his judgment, to drop off, when the two hundred and ninety-three acre tract reached five thousand dollars, and he did so, much to the surprise and consternation of Mr. Newell, who- had not gone to the sale expecting to- bid on.this tract of land.</p> <p>“IV. Exception four is well taken. Mr. Martin had authority to make these lands bring a fair price, and was prevented from bidding by the conduct of W. S. Newell and A. T. Newell. W. S. Newell was but the ag'ent of A. T. Newell in these transactions, as the testimony abundantly shows. A. T. Newell says his brother told him he wanted a home; that he desired to bid on these two- small tracts; that he had some money, and yet, we find W. S. Newell never made any attempt whatsoever to comply with these bids, but, on the contrary, we find from- the testimony of Mr. A. T. Newell, that he said he had offered to sell these lands to- other parties, and named prices less than the sums bid by Mr. W. S. Newell. Taking- these facts and circumstances, the relationship of the parties and the 'fact that Mr. Newell had procured the ‘home tract’ to be sold last, how can we escape the conclusion that while Mr. W. S. Newell made the bids, such bids were made at the instance of Mr. A. T. Newell? Suppose the witnesses say that such was not the case; can it be said that there is no evidence to that effect, when these facts stand out as proof which cannot be contradicted ? They speak for themselves. Was it not the intention of Mr. A. T. Newell to have the bids entered for as large sums as possible for the tracts being sold prior to the ‘home tract,’ in order to chill and shut off bidding on the part of Mr. Cooley as to that tract ? Did he not accomplish his purpose ? Does not Mr. Martin expressly state what his instructions were, and that he was prevented from cárrying- out these instructions by the conduct of the Newells? It cannot be stated that he was negligent in the discharge of his duty, for he had a right to assume that no one would go to a public sale and trifle with the order of the Court by making- pretensive bids, as was done in this case, and having made sure that his client was protected in amount and believing that he was protected in fact — and he would have been protected had the bids not been pretensive, of which he had no- notice — he withdrew from the sale, and was prevented from going on by reason of such pretensive bids.</p> <p>“V. This exception can be sustained for the reason set forth in the fourth exception. Exceptions 6, 9, 10, 11, 12, 18, 14 and 15 are sustained, although I do not deem it necessary, in sustaining the tenth exception, to sustain specifications (h) and (i). Mr. A. T. Newell and Mr. Brown state that there was no understanding that Mr. Newell should have the home place if it was bid off by Mr. Brown, for Brown, Osborne & Co. While there may have been no direct understanding amounting to an agreement which could be enforced, the facts and circumstances inevitably point to the conclusion that Mr. Newell knew, from what had passed between himself and Brown, Osborne & Co., that if they purchased the place, such purchase would inure to his benefit, to' some extent, at least, and we find that he never removed from the premises, but, on the day. after the sale, entered into some agreement with Brown, Osborne & Co. by which he retained the possession of the place, it is said, as a tenant for the present year, with, the option to purchase in the fall, but the particulars of the agreement are not set forth in the testimony. Besides, we find Mr. Newell, in the beginning of the bidding, running up' the tract of two' hundred and ninety-three acres to five thousand dollars, and we find that his brother, W. S. Newell, made bids of three thousand dollars and three thousand six hundred and fifty dollars for lands which sold for just half of these amounts at a subsequent sale, fairly made, and yet, when the much sought after and much coveted ‘home place’ was bid off at less than half its value, A. T. Newell pretends, and would have us believe, that he did not know who was the purchaser — something so improbable, under all the circumstances, that I am unwilling to adopt this view.</p> <p>“Something has been said in the testimony about rumors circulated to the detriment of the title. The testimony shows that there were some rumors afloat concerning some proceedings that might be taken, but the testimony does not connect A. T. Newell with such rumors, but, on the contrary, all who enquired of him were advised by him that the title was good.</p> <p>“Setting aside this sale will probably work great hardship upon A. T. Newell, and will, no doubt, operate most disastrously to his interest, and will inure tO' the benefit of the petitioner. It will not, however, cause loss to Brown, Osborne & Co., who are entitled to have their money returned with interest. But the question as to who will suffer loss and who will be benefited in a case of this kind, and under the facts as they here exist, cannot control the Court in reaching its conclusion. The integrity of a judicial sale, made by the order of this Court, has been assailed, and the circumstances point to the fact that the Court has been imposed upon, and it is within its power to grant relief and to do justice between the parties by refusing to confirm the sale, and this must be done.”</p> <p>From this decree, Brown, Osborne & Co: and A. T. Newell appeal.</p> <p>cite: Debtor remaining in possession raises no presumption of secret agreement: 2 Strob. Eq., 286. As to inadequacy of consideration: Rice Eq., 3; 2 Rich. Eq., 371, 296, 311; 35 S. C., 416. On what ground sales will be set aside: 38 S. C., 360; 36 S. C., 36; 46 S. C., 280.</p> <p>cite: Inadequacy of price not ground for disturbing sale: 2 Strob., 285; Rice, 3; Harp., 50; 14 S. C., 148; 46 S. C., 274. Change of order of sale will not vitiate it: 35 S. C., 409; 38 S. C., 357.</p> <p>cite: As to- what will vitiate sale: 17 Ency., 999; 20 A. St. R., 507; 38 S. C., 360; Rich. Eq. Cas., 133; 61 S. C., 40; 13 S. C., 128; 12 Ency., 1 ed., 233; 50 S. C., 12; 2 Rich. Eq., 296, 355; 32 N. J. Eq., 41, 189; 2 N. J. Eq., 214; 32 Ark., 392; 5 Hous. Del. R., 435; 34 Ela.,- 302; 24 Ind., 264; 38 Md., 92; 43 Miss., 314; 17 Ency., 997-1003; 2 Jones on Mtgs., 5 ed., secs. 850, 858, 859; Rorer on Jud. Sales, secs. 1668, 1667,-1670a, 1672; 117 U. S., 108; 161 U. S., 334; 2 McC. Ch., 455; 16 N. J., 48.</p> <p>cites: As to important general principles regarding public sales: 17 Ency., 2 ed., 994, 995, 953; 25 S. C., 280; Rorer on Jud. Sales, 2 ed., secs-. 545, 850; 25 S. C., 280; 23 S. C., 514; 50 S. C., 12; 16 S. C., 281; 13 S. C., 143; 2 Der., 128; 61 S. C., 40. As to inadequacy of price, irregularities of conduct and appearanees of fraud: 3 'Green’s Ch., 266; Rorer on Jud. Sales, secs. 1095, 549; 32 N. J. Eq., 22; 12 Ency. P. & P., 93; 17 Ency., 2 ed., 1003; 28 Fed. R., 867; 39 N. Y. Sup. Ct., 523; 37 N. Y., 155; 84 Ken., 685; 42 Kan., 382; 60 S. W. R., 370; 161 U. S., 333; 53 N. J. Eq., 385. Legal fraud sufficient: 13 S. C., 148; 31 S. G., 64. Surprise sufficient: 17 Ency., 2 ed., 997-8; Story Eq. Jur., 120, N. 2; 16 Ves., 82. Not necessary to implicate purchaser: Ro-rer on Jud. Sales, 2 ed., 1133; 12 Ency., 1 ed., 233; 31 S. C., 64; 2 Rich. Eq., 177; Rich. Eq. Ca., 122; 8 Ves., 283; 78 N. Y., 387; 34 Ela., 302; 38 Am. Dec., 561; Freem. on Ex., 2 ed., 304g, 304h; 92 Eed. R., 252. Rumors as to had title: 17 Ency., 2 ed., 1003; 28 S. C., 484; Ro-rer on Jud. Sales, 2 ed., 549, 1133; 3 Rich. Eq., 427; 37 N. Y., 155.</p>

<p>Before .Purdy, J., Florence, August, 1903.</p> <p>Action by D. W. Alderman & Sons Co. against Thomas - Wilson. From order granting temporary injunction, defendant appeals.</p> <p>cite: As to when the equity for an injunction attaches: Adam’s Eq., 497; 17 S. C., 411; Rice Ch., 80; High on Inj., secs. 4, 7, 9, 10, 13, 15; 1 Dill. C. C., 469. Complaint does not state a case warrant-' ing equitable interference: High on Inj., secs. 35, 37; Wood. L. & T., sec. 227; 17 S. C., 411; Hellams v. Szmtser, 24 S. C.; Threait v. Brewer Co42 S. C.; Alston v. Limehouse, 60 S. C.; Lipscomb v. Littlejohn, 63 S. C.</p> <p>cite: As to granting temporary injunction on case made by complaint: 54 S. C., 547; 62 S. C., 221; 65 S. C., 568; 51 S. C., 435; 42 S. C., 101. Can Judge grant injunction as to disputed right of zmy? 34 S. C., 345. What zms effect of act of ipoi as to ffnding of fact by Judge in such case? Code, 241; 27 S. C., 408 ; 10 Ency. P. & P., 983.</p>

Before J. A. McCullough, special Judge, Greenwood, May, 1903. Action by M. A. Beaudrot against Southern Railway Co. From judgment for plaintiff, defendant appeals. cites: As to denial of right of cross-examination: IS S. C., 89; 35 S. C., 197; 16 S. C., 556; 25 S. C., 319; 32 S. C., 410.

<p>Before J. H. Hudson, special Judge, Richland, March, 1903.</p> <p>Action by Chas. Broadway Rouss against J. B. King and R. B. King. From order of nonsuit, plaintiff appeals.</p> <p>cites: Respondent is surety: 14 Ency., 2 ed., 1128, 1130; 24 Ency., 716-7; Brandt on Sur., sec. 1; 32 Ind., 11; 4'Ind., 264; Stearns on Sur., sec. 6; 1 McM., 76. Contract does not limit credit to be extended: 22 S. C., 285; 24 Ill., 20; 62 Wis,, 526; 5 G. & J., 314; 6 Dak., 35; 14 Neb., 158; 19 South, 765; 18 Minn., 470; 51 N. Y. S., 205; 79 N. W, 120; Stearns Daw of Sur., secs. 59, 77; 145 Ill., 488; 86 Tex., 690; 16 Ohio Cir. Ct. R., 287; 18 N. Y., 502; 57 S. W, 903. Describing debtor as “of Bishopville ” is only descriptio personae: 85 Ill., 164; 37 S. C., 145; 100' Ill. App., 171. Creditor not required to accept additional security of debtor: Stearns Law of Sur., sec. 98; Brandt on Sur., secs. 370, 506; 'Jones on Pledges, sec. 514; 59 Ark., 92. As to- construction of the contract: Brandt on Sun, secs. 78, 79, 80; 63 N. Y., 383; 7 Pet., 122; 62 Neb., 888; 108 Ga., 14; 97 Ill. App., 283; 58 P., 164; 17 S. C., 1; 12 East., 227; 2 How., 449.</p> <p>cites: Any alteration or change of contract without assent of surety or guarantor discharges Mm: 21 L. R. A., 415; 51 S. C., 124; 23 S. C., 592; 5 Pet., 536; 9 Wheat., 703; Stearns on Sun, sec. 72; 22 S. C., 288; 17 S. C., 1; Brandt on Sun, 2 ed., sec. 93 ; 14 Ency., 2 ed., 1162; 4 L. R. A., 243. Surrender or loss of collateral inures to beneñt of surety: 14 Ency., 1167; Brandt on Sun, 428, 429, 440; 26 S. C., 612; 56 S. C., 575; Brandt on Sun, 2 ed., sec. 378; 51 S. C., 126; 10 S. C., 244. Credit in excess of guaranty discharges guarantor: 14 Ency., 1163; Brandt on Sun, sec. 771; 42 At., 840. Is defendant guarantor or surety? Brandt on Sur.; 2 ed., sec. 1; 14 Ency., 2 ed., 1130; Stearns on Sun, sec. 6; 4 D. & B., 144; Smith on Mer. Law, 562; 28aS. C., 510; 21 S. C., 401. As to construction of contract: Chitty on Con., sec. 84; 6-S. C., 355; 16 S. C., 270; 15 Mo, 202; 11 Wend, 66; Stearns on Sun, sec. 96; 27 S. E. R, 709; 31 Vt, 702.</p>

Before Townsend, J., Florence, December, 1902. Action for injunction by Thomas Wilson against D. W. Alderman & Sons Co. From order granting temporary injunction, defendant appeals. cite: Complaint does not state a cause of action for injunction: 10 Ency. P. & P., 944, 964, 945; Pom. Cod. Rem., sec. 534; 69 Md., 272; 1 DeS. Eq., 224; 19 N. Y., 371; 9 S. E-, 950.

Before Gage, J., Aiken, January, 1903. Action by Julia A. Pratt et at., doing business as Daniel Pratt Gin Co., against J. G. and R. H. Timmerman. The decree on Circuit is as follows: “This cause was remanded to this Court for a new trial, 62 S. C., 445. Thereafter Judge Aldrich, at chambers, made an order directing the master to take any further testimony offered, and to report the same to this Court.

Before Gary, J., Marlboro, May, 1901. Action by William A. Sparks against Jno>. B. Green and Jno. R. Townsend.

Before Townsend, J., Abbeville, October term, 1901. Action by L. A. and T. H. Brock against Hannah Kirkpatrick and Annie Taylor. From findings of jury on issue of title submitted, defendants appeal. cite: Devisees may set up adverse possession: 62 S. C., 306; 60 S. C., 322; 24 S. C., 90. And the ten years begins to run when they went into exclusive possession: 24 S. C., 90; 62 S. C., 311; 2 Hill Ch., 257; 10 Rich. Eq., 438; 35 L. R. A., 835; 4 1.

<p>Before Gary, J., Florence, June, 1903.</p> <p>Action by Hewitt P. Jordan against Thomas Wilson. From order dissolving temporary injunction, plaintiff appeals.</p> <p>cite: Code, 241, 242, 160; 19 S. C., 526 ;■ 64 S. C., 405 ; Code, 1902, 2733.</p>

Before Frank B. Gary, special J., Lexington, October, 1903. Action by A. A. Plarsey against D. B. Busby. The following is the Circuit decree: “This is an action to- foreclose a mortgage of certain real estate fully described in the complaint herein. The mortgage was executed to secure the payment of two notes, given on the 17th day of November, 1900, in the sum of $150 each. The notes are a part of the purchase price of a tract of land sold to the defendant by the plaintiff.

<p>Before J. E. McDonald, special Judge, York, November, 1903.</p> <p>Action by Ira B. Dunlap, as administrator of A. A.' Mc-Donough, against Savings Bank of Rock' Hill. Defendant appeals from judgment for plaintiff.</p> <p>cites: Power of special limited jurisdiction must appear on face of proceedings: 12 Ency. P. & P., 176; 60 S. C., 419; Coos, on Ex., 124; 33 Neb., 509. Pacts necessary to confer jurisdiction on probate court: 58 S. C., 526; 31 Barb., 661; 62 Barb., 430; 12 Ency. P. & P., 213.</p> <p>cite: What must appear on face of record: 60 S. C., 402; 58 S. C., 527; 41 S. C., 18. As to power of probate court: Code of Proc., sec. 39.</p>

<p>Pleadings — Negligence.—A Complaint Alleging, that plaintiff was injured by the negligence of defendant while cleaning its windows under orders, by its negligence and carelessness in allowing its window to get out of repair, so that it would not open and shut as it would have done, had it been kept in repair, and by allowing said window to remain in such defective condition and not giving notice to plaintiff thereof, states, in effect, that the window was defective.</p>

Before Gary, J., Darlington, January, 1904. Action by Edna E. Lide against American Guild, E. C. Lide and Elizabeth Martha Lide. From Circuit decree, plaintiff appeals. cites: The assignee of a life insurance policy takes subject to existing equities: 59 S. C., 467. Insured h'ad legal right to make gift by parol: 14 Ency., 2 ed., 1022, 1017, 1009.

<p>Before DanTzrEr, J., Greenville, February, 1904.</p> <p>Action by J. W. Garrett against Herring Furniture Co. From order of Circuit Court sustaining judgment of magistrate, defendant appeals.</p> <p>cite: 1 Ency. P. & P., 3; 2 Id., 624, 625, 628, 629, 631, 394, 645; 98 U. S., 476; 146 U. S., 202.</p> <p>cite: 24 S. C., 398; 43 S. €., 186, 384; 46 S. C., 11; 58 S. C., 50; 62 S. C., 299, 544.</p>

Before J. E. McDonald, special Judge, Barnwell, September, 1903. Action in foreclosure by H. W. Montague against G. C. Best.

<p>Before F. B. Gary, special Judge, Lexington, December, 1903.</p> <p>Action by Mary J. Roberts, admx., et al., against Elizabeth P.-Wessinger et al. From Circuit decree ordering sale of property, defendants, I. V. and Elizabeth P. Wessinger, appeal.</p> <p>The former cite: 35 S. C., 192; 7 S. C., 23; 27 S. C., 436; Thorp, on Pub. Of., 632, 639, 648; Mechem on Pub. Of., 319, 328, 329.</p> <p>filed no argument.</p>

<p>Before Gary, J., Marlboro, November, 1903.</p> <p>Action by Jno. A. Woodley, admr. of Mary A. Woodley, against Archibald L. Calhoun, sr., trustee, Legare S. Calhoun et al. From Circuit decree, Hattie Woodley appeals.</p> <p>cites: 18 S. C., 47; Dud. Eq., 201; 11 Rich. Eq., 527; 12 S. C., 172; 27 S. C., 479; 44 S. C., 503.</p> <p>cite: 67 S. C., 130; 23 S. C., 512; 10 S. C., 386; 26 S. C., 450; 12 Rich. Eq., 114; 22 S. E. R., 831; 1 Hill Eq., 311.</p>

<p>Deed — RueE in Sheeeey’s Case. — A conveyance in form fee simple, except that in the paragraph describing the property are the words, “The above named land to be held by Matilda Roberts during her natural life, then to be distributed equally between her remaining heirs,” is governed by rule in Shelley’s case, and carries fee simple to R.</p>

<p>Before DanTzeer, J., Oconee, November, 1903.</p> <p>Indictment against Hoyt Hayes for murder. From sentence on verdict of guilty, defendant appeals.</p> <p>cite: Formation of opinion is cause for exclusion: 17 Hncy., 1140,1143, 1144, 1138, 1130; 54 S. C., 151; Code, 1902, 2944; Thomp. and Mer. on Jur., 215-220. Judicial discretion must be regulated on legal-grounds: 47 S. C., 498; 18 S. C., 315. It is a right of defendant to have jury fully interrogated as to basis of his opinion: 31 S. C., 257; 26 S. C., 201; 25 S. C., 171; 65 S. C., 243; 54 S. C., 150; 34 S. C., 33; 16 S. C., 460.</p> <p>cites: Was it error in Judge, on motion for new trial, to refuse to review the evidence? Code, 1902, 2734; 21 S. C., 558; 32 S. C., 252; 14 S. C., 428; 16 S. C., 116; 14 Ency. P. & P., 841; 107 N. C., 798. Rules ' as to- circumstantial evidence: 66 S. C., 397; 49 S. C., 285.</p> <p>cites: Opinion based on rumors disqualiñes juror: 2 Am. D., 122; 36 Am. D., 515; 53 Am. D., 94; 79 Am. D., 307; 1 A. St. R., 501; 17 Ency., 1152. Defendant is entitled to examine into Ms competency: 17 Ency., 1189; 25 S. C., 171; 34 S. C., 33; 65 S. C., 242. Power to revieve the testimony - carries duty to do so: 14 Ency. P. & P., 841; 19 S. C., 582; 59 S. C., 270.</p> <p>cites: Defendant not having exhausted his challenges, cannot complain of action of trial Judge in examination of jurors: 5 S. C., 431; 10 Rich., 356; 14 S. C., 411; 11 S. C., 319; 16 S. C., 453. Juror swearing that he will be governed by evidence is impartial: 20 S. C., 446; 8 S. C., 239; 17 Hun., 410. Decision of Circuit Judge on question of fact on qualification of juror is final: 36 S. C., 507; 25 S. C., 171; 26 S. C., 198; 31 S. C., 257; 32 S. C., 45; 34 S. C., 33. Refusal of new trial on question of fact not disturbed here: 36 S. C., 507; 11 S. C., 195; 15 S. C., 407; 24 S. C., 593.</p>

Before DantzlER, J., Anderson, October, 1903. Action by D. J. Griffith, superintendent of State penitentiary, against A. T. Newell and E. N. Geer. From judgment for defendants, plaintiff appeals. Mr. Rucker cites: Defendant waived stipulation as to notice by making payments: 15 Ark., 444; 7 Ency., 123; 5 la., 336; 2 Pet;, 102. Alteration does not discharge surety: 2 Brandt of Sur. Guard., secs. 386-387; 6 Met., 186; 5 Gill v. John., 314; 5 Irish E. R., 124; Murphy on Of.

Before ’ J., Charleston, Action by Mary Parsons, administratrix of Geo. Parsons, against Charleston Consolidated Railway, Gas and Electric Co. and Gordon Telephone Co. From order overruling demurrer, Charleston Consolidated Railway, Gas and Electric Co. appeals. cite: As to liability of appellant: 31 E. .R. A., 572; 56 111. Ap., 378; 19 So. R., 695; 12 Am. Neg. R., 321; 179 Pa. St, 482; 25 S. E. R., 377; 30 Pac., 403; 7 Wall., 52; 50 Fed.

Before Purdy, J., Charleston, September, 1903. Action by Mary E. Lowndes against Julian Fishburne.

<p>Ruled by case of Lowndes v. Fishburne, ante.</p>

<p>Before Watts, J., Marion, March, 1904.</p> <p>Action by Mary C. Berry against E. E. Moore Company. Erom Circuit order refusing motion to strike out parts of the complaint, defendant appeals.</p> <p>Mr. Woods cites: Can a plaintiff in claim and delivery demand consequential and punitive damages? Code of Proc., 283; 68 S. C., 98; 170 U. S., 469; 1 Bay, 273; 1 N. & McC., 221, 237; 20 S. C., 512; 39 S. C., 470; 57 S. C., 432.</p> <p>The former cite: What is an irrelevant allegation? 67 S. C., 495; 18 S. C., 473; 50 S. C., 54. Special damages may be awarded in claim and delivery, and such only are claimed here: 65 S. C., 506; 39 S. C., 468; 18 Ency. P. & P., 543; 31 S. C., 49; 67 S. C., 491; 21 S. C., 599; 22 S. C., 484.</p>

Before Townsend, J., Fairfield, December, 1903. Action by W. J. Johnson against Southern Railway. From judgment of Circuit Court sustaining judgment of Magistrate Cathcart, defendant appeals. cites; Upon the question of the repeal of section jyn: 26 Fncy., 2 ed., 730, 731, 723; Black on Int. of Laws, 114-5; End. on Int. of Stat., secs. 195, 241, 200, 202; 2 S. C., 538; 13 S. C., 1, 394, 169; 14 S. C., 318.

<p>Before DanTzlER, J., Abbeville, October, .1903.</p> <p>Three actions by (1) J. H. Chiles, (2) T. C. Lites, (3) H. D. Pressly, against Southern Railway. From judgments for plaintiffs, defendant appeals.</p> <p>cites: Sale of ticket over one railroad good over another, does not make a joint contract: 21 S. C., 35; 38 S. C., 429; 25 Ency., 1085; 2 Redf. R. R., sec. 201; Hutch. Carr., sec. 580. Party knowing limitations of special agency is bound thereby: 27 S. C., 134; 10 Rich., 336; 3 Thomp. on Neg., sec. 2587; 53 Tex., 364; 8 Sup. Ct. R., 1324.</p> <p>cite: When secondary evidence of contents of tickets may be admitted: McKelvey on Ev., 247, 347; 10 Wall., 125; 38 S. E. R., 123. As to agency in sale of tickets: Tiff, on Ag., 46; 28 A. & E. R. R., 114; 18 Id., 345; 26 Id., 263; 35 L. R. A., 600; 2 Red. on Rys., sec. 201; 4 Am1. R., 588. Defendant is bound by the contract and not by erroneous limits on ticket: 39 S. E. R., 766; 46 L. R. A., 616; 26 A. & E. R. R., 264; 37 Id., 94; 64 S. C., 510; 65 S. C., 317. Master is liable for wilful tort of servant without authority: 68 S. C., 55, 89; 65 S. C., 342, 341. Party may testify that he performed acts as agent of another: 59 S. C., 135; 4 McC., 412.</p>

Before DanTzlER, J-, Abbeville, October term-, 1903. Action by Equitable Manufacturing Co. against Cooley and Speer.

Before Frank B. Gary, special J., Lexington, November, 1903. Action by Allen Mims against Seaboard Air Line Ry. From judgment for plaintiff, defendant appeals. cite: There being evidence to show that defendant had accepted another as pay for tickets for plaintiff, contract of carriage was made out: 40 S. E., 164; 1 Rich., 268; 8 Rich., 416; 9 Cyc., 316.

<p>1. Marriage Settlement. — The parties to a marriage trust deed may alter it before marriage by a subsequent instrument, and thereby change the property rights of children of the marriage fixed by the original deed, and the two instruments should be read together at time of marriage, and so read they here provide for debts of contracting husband in existence at date of trust deed.</p> <p>2. Equity — Nulla Bona. — A Creditor properly enforces his debt reduced to judgment with nulla bona return by application to court of equity for sale of property conveyed by trust deed executed after debt was contracted.</p>

<p>Tort — Partnership..—If a member of one firm with notice of plaintiff’s lien on tenant’s cotton induce the tenant to sell the cotton to another firm of which he was also a member, and to apply the purchase money to a debt due the first firm, it would be a participant in the tort and liable for the cotton.</p>

<p>1. Pleadings — Highways—Telephone Wires. — A cause of action for injury caused by negligence in repairing a telephone wire, and one for obstructing a highway, under the statute may be commingled in the same cause of action, and such complaint stating facts necessary to make out a cause of action for obstructing a highway, under the statute need not refer to the statute nor set out its terms.</p> <p>2. Highways — Judge.—Whether a person is required by statute to remove an obstruction from a highway, is a question of law for the Court.</p> <p>3. Ibid. — Negligence.-—A recovery for injury caused by obstructing a highway contrary to the statute does not depend upon negligence in obstructing, but for obstructions not forbidden by statute, negligence must be shown.</p> <p>4. Ibid. — Notice—Telephone Wires. — In an action for damages caused by negligence in permitting telephone wires to sag across a highway, the question of notice of defect is an important element.</p> <p>5. Ibid. — Request refused did not contain all the elements necessary to recover, under statute against obstructing a highway.</p>

Before Ardrich, J., Charleston, November, 1903. Action by T. S. Bowick against American Pipe Manufacturing Co*. Prom judgment for plaintiff, defendant appeals. cite: On cross-examination, it is competent to test witness’ accuracy of memory: 1 Green, on Ev., sec. 446. Jury should not be' instructed to decide a case according to the pleadings, b%it according to evidence also: 41 S. C., 440; 11 Ency. P. & P., 158; 4 Tex. App., 602; 22 S. E., 705; 30 S. E., 287.

Before Purdy, J., Charleston, August, 1903. Action by Sally F. Lewis et al. against Virginia-Carolina Chemical Co. From Circuit decree, defendant appeals. cite: The lease authorised the use of the timber: 5 Wall., 689; 107 U. S., 441. Bxtent of defendant’s liability: 3 Sand. Ch., 604. Doctrine of zvaste and not trespass applies: 22 S. C., 60; 28 Ency., 867, 868, 869, 941. cite: Measure of damages where trespass is committed under honest mistake: Sed. on Dam., 670-3; 36 Am.

Before J. P. Carey, special Judge, Greenwood, January, 1904. Action by J. D. Payne against W. D. Melton, Sarah D. Melton and Tallulah Melton. From Circuit decree, defendants appeal.

<p>Before DanTzuEr, J., Anderson, October, 1903.</p> <p>Action by John R. Callaham against Bank of Anderson. From Circuit order sustaining demurrer to defendant’s answer, defendant appeals.</p> <p>cite: Relation between bank and depositor is that of creditor and debtor, and bank may dedzict from depositor’s account amounts due it: 45 S. C., 5G3; Morse on Banks, 4 ed., 289, 324, 325, 329, 330, 337; 2 Ency., 1 ed., 93, 97; 3 Ency., 2 ed., 826, 835, 836; 32 E. R. A., 568; 84 N. Y., 149; 104 U. S., 54; 42 U. S., 235; 179 U. S., 591; 32 S. E., 887; 89 N. W., 1031; 42 N. W., 434; 35 Atl., 792; 66 S. W., 33; 4 Am. St. R., 202; 74 S. W., 699; 55 Am. St. R., 463; 5 Cyc., 550, 552, 553; 41 S. C., 178; 104 U. S-, 54; 22 S. E., 1001; 32 S. E., 837; 74 Atl., 699; 120 U. S., 506.</p> <p>The former cite: What is the doctrine governing banker’s lienf 104 U. S., 701; 3 Ency., 2 ed., 836; 35 N. Y., 338; 1 Morse on Banks, secs. 332, 326, 324; 2 Ency., 2 ed., 838; 2 Lawson’s R. & R., 920; 39’L. R. A., 157; 11 L. R. A., 528; 4 L. R. A., Ill; 56 L. R. A., 174; 123 U. S., 97.' It has never been held in this State that a bank had such lien or a right of set off: 7 Rich. L., 136; 12 Rich. L., 518; 41 S. C., 177.</p>

<p>Intestate’s Estate — Contract—Commissions.—If a real estate broker contract with the administrator and heirs at law of an intestate to sell the real property of the deceased estate on commissions, he has no claim for commissions against the intestate’s estate, but his claim is against the administrator and contracting heirs at law in their individual capacity.</p> <p>Mr. Justice Woods dissents, and thinks adult heirs should pay their pro rata share of claim.</p>

Before DantzeER, J., Abbeville, October, 1903. Action by R. A. Richey against Southern Railway Co., Columbia and Greenville Railway Co. and Res Moore, From judgment for plaintiff, defendants appeal. cites: Failure of brakeman to properly set the switch, was the act of a fellow-servant, for which master is not responsible: 56 S. C., 456; 109 U. S., 483; 149 U. S., 368; 12 S. E. R., 124; 1 McM., 385; 25 S. C., 128; 51 S. C., 79; 39 S. C., 507; 44 N. Y. Supp., 277; 22 Id., 749…

Before Watts, J., Charleston, September, 1903. Action by B. H. Rutledge, administrator de bonis non of Adam Tunno, against M. R. Tunno et al. The following is the report of Master Sass, to whom all issues were referred : “The issues presented in this case are as follows: The plaintiff, B. H. Rutledge, is the stakeholder of a fund which is in his hands under the following circumstances: Letters of administration upon the estate of Adam Tunno- were granted to plaintiff by the…

<p>Before Townsend, J., York, November, 1903.</p> <p>Action by Samuel W. Mitchell against Joseph W. Leech, Dennis Whisonant, Samuel Leech, and Sovereign Camp of the Woodmen of the World. From judgment for plaintiff, defendants appeal.</p> <p>cite: Court must construe written instruments: 17 S. C., 479 ; 19 S. C., 124; 22 S. C., 279; 31 S. C., 378; 32 S. C., 123; 34 S. C., 217; 39 S. C., 389; 63 S. C., 422. Expert may be examined as to how far standard authors sustain or conflict with his opinion: 20 S. C., 451; McKelvey on Ev., 188. Sovereign Camp not responsible for acts of local camp: 7 On. R. Q. B. D., 377; 75 N. C., 134; 1 East., 106; 19 Wend., 343; 73 Miss., 161; 177 U. S., 263.</p> <p>The former cites: Party must request Court to construe written instrument',: 44 S. C., 402; 56 S: C., 135; 66 S. C., 22; 10 S. C., 439. As to examination of physician as to standard authors: 59 Am. D., 179; 51 Am. R., 679; 67 Am. St. R., 299; 41 Am. R., 60; 42 Am. R., 477; 15 Ency., 207; 50 Mich., 148; 20 S. C., 451; 12 Rich., 328; 58 S. C., 219; Code, 1902, 2902.</p>

Before Gary, J., Williamsburg, June, 1903. Action by James A. Hanna against Frances C. Cox and H. D. Williamson. From Circuit decree, Williamson appeals. cite: As to the law of married tvomen’s contracts: Rev. Stat., 1893, 2167; 52 S. C., 515; 55 S. G, 328. cites: As a parallel case: 43 S. C., 117.

Before Townsend, J., December, 1903. Action by S. W. Pryor against W. H. Newbold. • From Circuit decree in favor of defendant, plaintiff appeals. cite: Plaintiff is entitled in any view to the right of way: 3 McC. D., 139; 23 Ency., 2 ed., 13. As to the preponderance of evidence in cases of this kind: 14 Ency., 2 ed., 201, 120; 1 DeS., 289; 2 Rich., 154; 50 S. C., 397. cites: When relief may he had from mistake: 20 Ency., 2 ed., 813; 46 S. C., 220; 60 S. C., 486.

<p>1. Evidence — Letters—Freight.—In an action for shortage in freight, letters of a third party not shown to be the agent of the carrier are not competent to show shortage, and losses of other freight by other persons is not competent or relevant.</p> <p>2. Ibid. — Secondary.—Contents of bill of lading cannot be shown without proof of loss.</p>

<p>Before Dantzier, J., Anderson, October, 1903.</p> <p>Proceeding to> enforce mechanic’s lien by Geo. O. Tenney against Anderson Water, Light and Power Co. et al. From Circuit order allowing defendant to' amend its answer, the plaintiff appeals.</p> <p>cite: 19 Ency. P. & P., 719, 721; 67 S. C., 11.</p> <p>The latter cite: 20 Ency., 366; Boisot on Mech. Liens, sec. 589 ; Phil, on Mech. Liens, sec. 423; 1 Bay, 16; 13 Lea, 440; 108 Ala., 508; 20 Ency., 371; 29 Ency., 1 ed., 906; 61 S. C., 459; 14 Mass., 281; 2 Wall., 1; 22 Ency., 1 ed., 362; 88 Wis., 287; 67 N. H., 94; 167 111., 233; 41 Ohio St., 373; 100 Calif., 256; 59 Am. St. R., 277; 42 Mich., 100; 25 N. Y., 272; 3 Dutch., 513; 25 Ga., 24;- 25 Conn., 530; 57 Am. D., 571; 19 Pick., 275; 15 C. C. A., 89.</p>

Before Buci-ianan, J., Spartanburg, January, 1904. Action by J. B. Gwynn against Citizens’ Telephone Co. From judgment for plaintiff, defendant appeals. cite: Journal of constitutional convention may be referred to in construing Constitution: 8 Cyc., 7401; 52 S. C., 217; 4 Ell. on R. R., sec. 1616. What contracts are void as against public policy: 2 Pom. Eq. Jur., sec. 934; 30 S. C., 418; 139 U. S., 79.

<p>1. Tort — Railroads.—The Southern Ry. — Carolina Division — created by consolidating certain other railroad companies in this State, under act of 1902, page 1152, is liable for a tort committed by a constituent company before consolidation.</p> <p>2. Charge. — Statement in charge that “you have the testimony as to that,” is not a charge on the facts as used here, but an instruction to the j ury, that they must determine the question of fact on that point.</p> <p>3. Pleadings — Words and Phrases — 'Wilfulness—Punitive Damages. — An allegation characterizing an act as “reckless,” is equivalent to characterizing it as “wilful,” and under such allegation pleader may ask for punitive damages.</p> <p>4. Railroads — Passengers.—A railroad company owes no duty to hold its train for a belated passenger after it has stopped at a regular station long enough to take on and let off passengers.</p> <p>5. Ibid. — Wileíjlness.—Statement of ticket agent to passenger “to go and get on the train” as it was moving off, under the circumstances here, cannot be construed as an intentional wrong, and will not support a verdict for punitive damages.</p>

Before Dantzeer, J., Greenville, September, 19 03. Indictment against Sol Norton, Poinsett Gosnell et al. From sentence by Sessions Court, defendants, Norton and Poinsett, appeal. cite: Judgment should have been wrested because indictment did not contain count against carrying concealed zveapons at time of conviction: 68 S. C., 318; Cr. Code, 57, 131; 14 S. C., •350; 10 S. C., 191; Clark. Cr. F., 104; 10 Ency. P. & P., 563; 1 Bish. Cr. Proc., sec. 113.

Before DanTzwr, J., Spartanburg, June, 1903. Action by Mabel H. Davis against J. D. Collins. From Circuit judgment, defendant appeals. cite: Non-expert witness may give an opinion after stating facts: 19 S. C., 531; 1 McM., 56; 19 S. C., 66; 117 Mass., 133; 49 N. H., 399; 56 N. FL, 337.

Before DanTzeER, J., Greenville, February, 1904. Action by B. M. McGee against Harriet J. Cunningham. From Circuit decree, both parties appeal. cite: Married zitomcm may pay debt of her husband: 52 S. C., 513; 55 S. C., 380; 38 S. C., 519. Her contract is not a promise to pay the debt of another, but is her own debt: 3 Hill, 41; 1 Speer, 4; 2 McC., 208; 8 Ency., 1 eel, 677.

Before Gary, J., Sumter, July, 1903. Action by J. Witherspoon Cooper against Atlantic Coast Line Railroad Co. From Circuit order sustaining demurrer to complaint, plaintiff appeals. cite: Defendant did observe statutory requirements: Code, 1902, 2134; 64 S. C., 176; 53 S. C., 124; 61 S. C., 410; 58 S. C., 222; 47 S. C., 105 ;■ 58 S. C., 375. .

Before Jos. A. McCullough, special Judge, Greenwood, June, 1903. Held: ‘that the provisions of the statute law of this State as to the right of way for railroads (Gen. Stat., secs. 1550-1561,) only govern the manner of claiming the right of way and the mode by which the amount of compensation is to be ascertained, where the right to compensation is conceded or 'has been already determined.

Before Jos. A. McCullough, special Judge, Richland, November, 1903. Action by R. H. Corley against M. A. Evans in magistrate court. Erom Circuit order affirming judgment of magistrate, defendant appeals. , cites: Magistrate should have entertained counter-claim: 43 S. C., 63; 3 Brev., 407; Code of Proc., 71.

Before Gage, J., Florence, March, 1903. Action by H. S. Rose against H. T. Harllee. From order granting new1 trial, plaintiff appeals. cite: As to conrstitutionality of the act: Con. U. S., art. XIV., sec. 1; Con. S. C., art. L, sec. 5; 98 N. Y., 98; 127 U. S., 678; Code 1902, 3002; 37 Am. St. R., 206; 165 U. S., 578; 83 Am. St. R., 116; 152 U. S., 133; Cool. Con. Lim., ch. 16; 12 Am. R., 150; 37 Am. L. Rev., 139; 16 Am.

<p>Presumption — Master and Servant — Nonsuit.—In action by servant against master for injuries caused by defective machinery, negligence cannot be presumed from the mere fact of the machinery breaking, but must be inferred from facts in evidence, and if there be no such facts in proof, nonsuit is proper.</p>

Before J. P. Carey, special Judge, Cherokee, June, 1903. Action by J. A. Willis against Western Union Telegraph Co. From’ judgment for plaintiff, defendant appeals. cite: Statute does not include cases of failure to relieve mental cnguish: 9 Tex., 206; 75 Tex., 26; 54 S. W., 825. Mental anguish is to be inferred, not proved, by plaintiff’s apprehensions or imagination: 7 Allen, 118; 75 Tex., 531; 22 S. W., 866; 7 Cush., 581; 70 Tex., 243.

Before W. C. BjínST, special Judge, Union, November, 1903. Foreclosure by J. C. Edwards against C. C. Sartor. From Circuit decree, defendant appeals.

<p>Before P. B. Gary, special Judge, Lexington, January, 1904.</p> <p>Action by Samuel E. Lowman, executor of Isaiah Low-man, against Wm. J. Lowman et al. Prom Circuit decree, plaintiff appeals.</p> <p>cite: As to interest on legacies: 18 Rich. Eq., 184; 1 McC. Eq., *151; 1 Bail. Eq., *274; Rich. Eq. Cas., 347; 2 Rich. Eq., 68; 7 Rich. Eq., 328; 2 Hill Ch., *146.</p> <p>cites: As to construction of term “convenient:” 6 Ves., 520'; 8 Ves., 547; 1 McC. Eq., 149, 405; 25 S. C., 23; 21 S. E., 195"; 3 S. E., 29. Executor should pay interest on legacies: 1 McC. Eq., *403; 2 DeS., 592; 3 DeS., 555; 3 S. E., 29. Interest should not commence to run at time he could heme borrowed the money: 1 McC. Eq., *149, *405.</p>

<p>Before Townsend, J., Cherokee, October, 1903.</p> <p>Action by Mamie Poulnot against Western Union Telegraph Co. Prom judgment for plaintiff, defendant appeals.</p> <p>cite: There must be wilfulness to warrant punitive damages: 62 S. C., 235; 57 S. C., 331; 65 S. C., 93. Whether plaintiff would have gone had telegram been delivered promptly, is not raised by the evidence: 78 S. E., 700. As to duty of master in selecting servants: 40 S. C., 104. Charge not responsive to issues or to evidence is prejudicial: 66 S. C., 28.</p> <p>cite: There was proof of wilfulness: 65 S. C., 125; and of negligence: 25 Ency., 1 e<±, 808, 831, n. 3. Question of negligence is for jury: 26 S. C., 490; 60 S. C., 52; 63 S. C., 494; 65 S. C., 430, 517. Defendant only required to use ordinary care in delivering messages: 25 Ency., 1 ed., 778. Charge as to duty in delivering message not on the facts: 66 S. C., 23; 65 S. C., 169; 60 S. C., 477. Question of punitive damages is for jury: 62 S. C., 331; 65 S. C., 516.</p>

<p>Before'Townsend, J., Spartanburg, January, 1904.</p> <p>Action by Rt. Rev. H. P. Northrop, Bishop of Charleston, against J. W. Simpson. From order dissolving interlocutory injunction, plaintiff appeals.</p> <p>cite: Temporary injunction should not be dissolved before answer: 2 High on Inj., 3 ed., par. 1467; 2 Spel. on Inj., sec. 1037. Mrror to dissolve on ex parte affidavits: 2 High on Inj., sec. 1509, 1512; 2 Spell, on Inj., par. 1019; 42 S. C., 101; 51 S. C., 435; 54 S. C., 457; 62 S. C., 196. Non user or non action of city council is not abandonment of street: 45 S. C., 269; 57 S. C., 507; 7 Rich., 450.</p> <p>cite: Injunction properly dissolved on facts: Cherry v. Rock Hill, 48 S. C.; and on motion: Code, 246; 34 S. C., 353; 33 S. C., 412; 27 S. C., 415; 3 Wait’s Ac. and Def., 682, 688; 2 High on Inj., 3 ed., 1467, 1468.</p>

Before Gary, J., Spartanburg, September, 1903. Action by Mary E. Childs against Nannie E. Bolton. From order dissolving attachment, plaintiff appeals. cite: Defendant cannot move to vacate attachment because property does not belong to her: 25 S. C., 467; 17 S. C., 116, 120. Defendant has an interest in money attached: Code 1902, 2852. Mr. McGhee cites: Attachment was improvidently issued: 31 S. C., 369. As to the disposition of the fund: Code 1902, 2852.

Before Watts, J., Sumter, September, 1903. Foreclosure by Samuel M. Pierson against Frances Green and J. S. Corbett. From Circuit decree, plaintiff appeals. cites: D%iress should be pleaded: 7 Fncy., 347, 348, 349, 350, 351. What constitutes duress: 10 Ency., 331, 333, 333, 334. Demurrer is proper if no duress is alleged: 14 P. R., 564; 10 Fncy., 3 ed., 337.

<p>Before Townsend, J., Kershaw, June, 1903.</p> <p>Contempt proceedings at instance of Eorick & Eowrance against William Motley. From Circuit decree, defendant, Motley, appeals.</p> <p>cites: Judge without jurisdiction: 49 S. C., 199; 64 S. C., 425; Code 1902, 2734; Code of Proc., 264. Penalty cannot be adjudged paid to aggrieved party: 7 Ency., 2 ed., 67, n. 3; or be imprisoned: 28 S. C., 353; Con. 1895, art. I., sec. 24; 1 Rich. Eq., 280.</p> <p>cite: This is a civil proceeding, and State not properly a party: 49 S. C., 204. Dam^ ages may be given instead of ñne for punishment: Rapalje on Contempt, 176, 180, 183, 185, 186; 2 High on Injunctions (3d ed.), paragraph 1457; 10 Am. Cent. Dig., 2623; 15 Fed. R.. 813; 19 Fed. R., 20; 27 Fed. R.. 795: 60 Mich.. 167; 52 Tenn., 100; 23 Hun., 332; 7 Ency. (2 ed.), 50, 68, 76, 72; 4 Ency. P. & P., 800; sec. 2734, Code. Imprisonment until payment of damiages: 5 S. C., 340; 4 Ency. P. & P., 802; 7 Ency. (2 ed.), 68, 69, 59 (note) ; Rapalje, paragraph 129; 49 S. C., 207; 44 Am. St. R., 809. Not imprisonment for debt: 28 S. C., 53; 4 Ency. P. & P., 803 (note).. Correction may be made after Ming, decree (certainly within ten days): 21 S. C., 16; 30 S. C., 335; 32 S. C., 64; 2 Dan. Ch. Pr., 1233.</p>