Volume 70 — South Carolina Reports

Before Purdy, J., Barnwell, April, 1904. Action by Lillian Williams et al. against T. S. Weeks and the sureties on his official bond, and administrator and heirs of a deceased surety. From Circuit decree, defendants, Weeks and administrator and heirs at law of deceased surety, appeal. cite: Allegations of complaint are not sufficient to make it creditor’s bill: Story Eq. Plead., 99-152; 2 S. C., 140; 27 S. C., 318.

<p>Before F. B. Gary, special Judge, Lexington, November, 1903.</p> <p>Action by Thomas L. Martin against Seaboard Air Line Ry. From judgment for plaintiff, defendant appeals.</p> <p>cite: Testimony not tending to- make out a cause of action should be excluded: Code of Proc., 181; 61 S. C., 336; 60 S. C., 65. Court may direct verdict: 60 S. C., 401; SO S. C, 270; 42 S. C., 30; 81'S. E. R., 797; 6 Ency. P. & P., 675. As to measure of damages for breach of contract: 66 S. C., 75; 25 S. C., 70; 60 S. C., 254; 3 McC., 503; 2 N. & McC., 518; 8 Ency., 2 ed., 609, 612, 617, 619. Refusal of nevo trial on erroneous view of the law is appealable: 23 S. C., 231; 21 S. C., 559.</p> <p>cite: Evidence in support of allegations in pleadings is competent: 47 S. E., 140; 43 S. C., 221; 25 S. E., 59. As to proof of damages: 9 S. E., 734; 1 Suth. on Dam., 763; 5 Ency., 8, 49; 4 S. Ct., 85; 9 Fed., 222, 43 S. E-, 388. There being evidence to sustain verdict, new trial properly refused: 1 S. E., 414; 35 S. C., 572; 37 S. C., 102; 41 S. C., 153, 388; 32 S. E., 567; 23 S. E., 515; 44 S. C., 484; 31 S. E., 224; 8 S. C., 173. New trial should not be granted if there be two verdicts same way: 2 N. & McC., *184; 2 Bay, 133.</p>

Before Aldrich, J., Greenwood, March, 1903. Action by R. M. Hays & Bro-. against Western Union Telegraph Co. From judgment for plaintiffs, defendant appeals. cite: Actual loss based upon changes in market is rule of damages: 41 la., 458; 44 N. Y., 263; Joyce on Dam., sec. 1411. And for error in. transmission the measure is increase of loss: 25 Ency., 1 ed., S50; 67 la., 631; 124 U. S., 444.

<p>Banks — Interest—Deposits.—Suspension of payment by a bank is notice to depositors that it will not pay their checks on demand, and the bank is liable to general depositors for interest at seven per cent, from date of suspension without formal presentation of checks and refusal to pay. The fact that deposits made under special contract draw a lower rate, does not affect it.</p>

<p>Wills — Limitations of Actions. — A devise of all the real property of testator to his wife, “to her sole use and enjoyment during her natural life * * * And I will that the lands hereinafter devised to my children in remainder shall be governed by the same rule of transmission, that is to say, that if any child of mine shall die before me or before my said wife, his or her child or children shall have in remainder after the termination of wife’s estate or life, the share of land which . the deceased parent of such child or children would have taken under this will had such parent survived me and my wife,” vests in a son of testator at his death a transmissible interest in remainder, and upon son’s dying during life of life tenant, at falling in of life estate, this fee passes to the heirs at law of the son.</p>

<p>1. Limitation oe Actions — -Trustee.—Accounting.—If the assignee of a bond and mortgage in trust to raise funds for mortgagee, account to mortgagee for money so raised and proceeds of bond collected, and by his acts indicates the relation ended, he thereby declares the trust relation at an end, and the statute of limitations begins then to run in his favor.</p> <p>2. Peeadings — Accounting—Principae and Agent. — Under allegations of settlement and accounting with a party, accounting with agent may be shown.</p>

Before Gary, J., Marlboro, fall term., 1903. Two indictments, (1) against J. G. Moody, (2) against Henry Charles. From verdict and sentence, defendants appeal. cite: Error to refuse to quash second count: Criminal Code, 584; Clark’s Grim. Proc., 493; 1 Rich. R., 260; 32 S. E. R., 408; 39 S. E. R., 897; 30 S. C., 399; 33 S. E. R., 366; sec. 3449, R. S. of U. S. There being no evidence -to support the verdict, it should have been set aside: 68 S. C., 53.

<p>Constitution — Stock Law. — A Statute enacted before the Constitution of 1895 and constitutional when enacted, does not conflict with the provisions of that Constitution, as they are prospective; hence the acts 18 Stat., 238, 513, 867, exempting parts of Williamsburg County from general stock law, are not violative of Constitution of 1895 in providing for taxation of stock to build and repair line fences.</p>

Before Watts, J., Williamsburg, January, 1904. Action by Derry McGill against P. B. Thorne. Held: were to come back to him. All questions as to how' much was due on the mortgage were left open, the amount of the indebtedness to be ascertained in the future; the mortgage which the defendant then held was not cancelled; the plaintiff was left in possession of the land and paid no rent for two years thereafter; treating the land as…

<p>Before Townsend, J., Richland, July, 1903.</p> <p>Action by Martin Percival against W. J. Bailey and The Columbia Real Estate and Trust Co, From order overruling demurrer to complaint, defendants appeal.</p> <p>cite: Motives of defendants are immaterial: 29 S. C., 192; 62 S. C., 104. City court had jurisdiction of offense charged: 14 Stat., 569; Code, 1902, 2003; Crim. Code, 199; 16 S. C., 493. If arrest be legal, there is no false imprisonment: 63 S. C., 101; 34 N. Y. Sup., 462; 81 Wis., 578; 58 Wis., 276; 64 Wis,, 321; 50 Wis,, 335; 86 Cal., 533.</p> <p>cite: When may officer of city of Columbia lawfully arrest without warrant for offense less than felony: 2 N. & McC., 475; 16 S. C., 486; 17 S. C., 58; 36 S. C., 493; 64 S. C., 321; 44 L. R. A., 673; 8 E. R. A.,‘ 529; 2 Ency., 2 ed., 870, *878; 19 E. R. A., 449; 12 R. R. A., 382; 13 R. R. A., 163; 7 E. R. A., 507; 41 Mich., 304; 1 Hill, *327, *339; 53 S. C., 153; 12. Ency., 2 ed., 724; 54 A. D., 250, 253; 39 Ind., 323; 81 Mich., 511; 99 Pa. St., 70. Arrest of innocent person on mere suspicion is unjustifiable: 44 R. R. A., 673; 2 Ency., 2 ed., 880; 7 L. R. A., 507; 118 Ind., 45. Authorising or giving a person into cm officer’s custody is unlawful: 12 Ency., 2 ed., 757; and act of officer, is also¡ unlawful: 103 Ala., 346.</p>

<p>1. Insurance — -Nonsuit—Practice.—Even if evidence in insurance case shows that insured had not complied with conditions, nonsuit at close of plaintiff’s case would be improper, as plaintiff might show ■ waiver in reply. In such cases motion for nonsuit should be made at close of all evidence.</p> <p>2. Exceptions — New Triad. — This Court will not consider exceptions to refusal of new trial on grounds not stated in record to have been urged on Circuit.</p> <p>3. Charge. — Stating affirmatively in charge issuable fact is not prejudicial error, where the inadvertence is manifest, and the issue is after-wards properly submitted under request of party complaining.</p> <p>4. Ibid. — Request.—In submitting to the j ury at the request of a party the questions of ownership and actual knowledge of ownership as isues for their decision, the Court should instruct them in considering the issue of actual knowledge to consider also the issue of knowledge of facts sufficient to put on inquiry as to true ownership.</p> <p>5. Ibid. — Ibid.—It is not proper for Judge on request to select isolated fact and to state its effect.</p> <p>6. Insurance — Principad and Agent. — Where the principal is absent and the facts are within the knowledge of the agent, proofs of loss made and sworn to by agent fulfils a stipulation in a fire insurance policy that proofs of loss shall be made by the insured.</p> <p>7. Insurance. — Insured cannot relieve himself of the covenant in an insurance policy, that he would submit himself to examination at instance of insurer as to his loss, by saying that he had fled the country to avoid arrest.</p> <p>8. Ibid. — Waiver.-—If before the fire, during the currency of a policy of insurance, the insured violates its terms and conditions in a material particular, without the knowledge of the insurer, a failure to return the premium after the fire is no evidence of waiver. Schroeder v. Ins. Co., 51 S. C., 180, distinguished.</p>

<p>Before Aldrich, J., Charleston, December, 1903.</p> <p>Action by J. E. Hellams against Western Union Telegraph Co-. From judgment for plaintiff, defendant appeals.</p> <p>cite: There is no common lam requirement that telegraph company shall deliver messages outside of limits: Hutch. Car., sec. 171; 25 Ency., 1 ed., 280; 74 S. W., 1098; 27 S. W., 958; 55 S. W., 427; 54 S. W., 417; 22 S. W., 532; 19 S. W., 285; 21 S. E., 166; 7 Sa, 419; 24 Fed., 119. As to express contracts with individuals: 25 S. W., 440; 69 S. W., 122; 65 S. C., 94; 68 S. W., 730; 67 S. W-, 515. Telegraph company is not insurer except by express agreement: Joyce Elec. Law, sec. 17; 25 Ency., 1 ed., 248; 60 S. W., 687; 43 S. W., 1033; 74 S. W., 922. Punitive damages are not recoverable in action for breach of contract: 12 Ency., 2 ed., 20; 20’ S. C., 520. Plaintiff has elected to bring his action ex contractu: Cooley on Torts, 106; Pom. R. & R. R., secs. 568, 572, 573, 567; 88 N. Y., 638; 47 N. Y. S., 1057; I-Iutch. on Car., 2 ed., sec. 744; 23 So., 139; 34 N. Y. S., 144; 40 S. C., 393. Not duty of appellant to transmit message by telephone: 44 S. E., 209; 124 U. S., 444. Plaintiff assented to appellant’s construction of tlve contract: 17 Ency., 23; 5 S. C., 370. Vmance between contract alleged and that proved is fatal: Hutch, on Car., secs. 447, 751; 89 Ind., 457; 90 Ind., 459. Punitive damages are not recoverable: 57 S. C., 325; 53 S'. C., 448; 8 Ency., 2 ed., 661: 60 S. C., 67.</p> <p>cite: Nonsuit should not be granted when there is any evidence tending to establish the allegations of the complaint: 61 S. C., 473. If in whole charge lazv is correctly stated, it is not error to refuse particular mode of stating a proposition: 54 S. C., 599, 90; 65 S. C., 101. As to damages under mental anguish act: 23 Stat, 748; 65 S. C., 93, 430; 53 S. C., 210.</p>

Before R. IT. Welch, special Judge, Saluda, December, 1903. Action by Kentucky Refining Co. against Saluda Oil Mill Co. The third, fourth and fifth defenses are as follows: “3.

Before Townsend, J., Laurens, January, 1904. Action by S. G. McDaniel against Charleston and Western Carolina Railroad Co. From order of nonsuit, plaintiff appeals. cites: Testimony zvas relevant to facts in dispute: SI S. C., 93; and it zvas for jury to zveigh truth and sufficiency: SI S. C., 101; S5 S. C., 18S; 55 S. C., 180; Brodie v. R. R., 61 S. C.; Rutherford v. R. R.; Boyd v. R. R.; Carson v. R. R.; Scott v. R. R. Non-suit not proper unless there is failure of…

<p>Before Ardrich, J., Beaufort, January term, 1904.</p> <p>Action by J. R. Lassiter et al. vs. Okeetee Chib and J. B. Bostick. From judgment for plaintiff, defendants appeal.</p> <p>cites-: Deed of marshal insufficient: 14 S. C., 480. All claims must be pleaded: Code of Proc., 1902, 188.</p> <p>cite: Nonsuit is not proper unless there be a total failure of testimony to establish plaintiff’s claim: 66 S-. C., 520; 33 S. C.,. 238; 31 S. C., 125; 26 S. C., 244. Twenty years possession under color of title will presume a grant: 40 S. C., 179; 2 Mill Con. R., 425; 14 S. C., 552; 2 Strob. L., 141. Ten years adverse possession gives title against persons not under disability: 50 S. C., 293; 39 S. C., 14; 45 S. C., 312. One not party to action is not affected by judgment: 17 S. C., 35. Damages necessarily follow from unlawful withholding possession of land from rightful owner, and was sufficient to ask for it in prayer: 23 S. C., 285; 42 S. C., 81; 63 S. C., 162; 66 S. C., 384; 65 S. C., 284; 2 Bail. L-, 215.</p>

<p>Before Aedrich, J., Anderson, July, 1903.</p> <p>Action by J. Wdborn against J. W. Dixon. Prom Circuit decree, defendant appeals.</p> <p>cite: In contract for sale of land, if description be indefinite, parol cannot be resorted to to make it certain: 7 Rich. Eq., 378; 13 Rich. Eq., 257; 21 S. C., 491; 25 S. C., 506. Sattute of frauds is not satisfied by reference to another writing: 13 Rich. Eq., 257; 28 S. E., 383; 33 S. C., 367. No action for damages can be had on void contract: 60 S. C., 373. As to measure of damages: 1 Bay, 357; 1 McM., 116; 51 S. C., 143; 52 B. R. A., 242; 5 la., 352; 35 Neb., 429; 65 Me., 67; 21 Mich., 351; 91 Hun., 542; 40 N. Y., 60; 58 Mo., 40; 7 Utah, 113; 21 Ont. R., 89; 1 McM., 57; 6 Wheat, 108; 2 Spear, 616. Punitive damages cannot be recovered here: 20 S. C., 519; 35 S. C., 493; 8 Ency., 2 ed., 633, 639; 12 Ency., 2 ed., 20; 26 L. R. A., 169; 66 S. C., 66; Weaks Underhill on Torts, 102. ,</p> <p> Statement of Pacts. </p> <p>November 10, 1904. This is an appeal from an order overruling a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The complaint contains two causes of action, the first of which is thus alleged:</p> <p>“1. That prior to the day of March, 1902, plaintiff was the sole owner in fee simple of a tract of land in county and State aforesaid, containing twenty-seven acres, more or less, just outside the town of Pelzer, conveyed to him by Sarah M. Allen by deed of September 10th, 1897, recorded in the office of R. M. C. for said State and county, in book QQQ, at page twenty, which is here referred to for full description of said land.</p> <p>“2. That on March 15th, 1902, the plaintiff having borrowed money of defendant, and purposing to secure the payment of the debt, executed to. him a deed to said land, and both together, executed, at the time of the execution of the said deed, a written contract, a copy of which is as follows: ‘State of South Carolina, County of Anderson. Articles of agreement entered into this 15th day of March, 1902, between J. W. Dixon and J. W. Welborn, witnesseth: That provided J. W. Welborn shall pay to J. W. Dixon on or before November 1st, 1902, the sum of three hundred and eighty-five dollars, the said J. W. Dixon agrees to deed back to J. W. Welborn said piece of land, containing 27 acres, more or less, and to pay him ten per cent, interest on said amounts, and all costs. Signed, J. W. Dixon, D. S., J. W. Welborn, D. S. Witnesses: Signed, A. G. Pinckney, T. B. Roberts.’ Said deed was an ordinary fee simple warranty title like in all respects to- the usual form of such titles.</p> <p>“3. That the amount of the plaintiff’s debt to defendant, together with principal, interest and all charges, never exceeded the sum of three hundred and eighty-five and 00-100 dollars ($385.0.0), and the purpose and understanding of the parties to the agreement was that the papers hereinabove referred to should constitute a mortgage upon said land to secure the payment of said debt.</p> <p>“4. That some months before November 1st, 1902, defendant, in utter disregard of his contract to reconvey to plaintiff, in wilful fraud of his said agreement, and in flagrant, deliberate and wanton violation of plaintiff’s rights in the premises, sold and transferred and conveyed said land to a third party, thus putting it out of his power to carry out his contract aforesaid.</p> <p>“5. That a few days prior to November 1st, 1902, plaintiff by his attorney made defendant a legal tender of the sum of three hundred and eighty-five and 00-100' dollars ($385.00), to secure a reconveyance from him of said land, but defendant, as plaintiff is informed and believes, refused said tender, stated that he had sold said land to Mr. J. W. Williams, and that he could not and would not reconvey it to plaintiff, and declared, as he had done repeatedly, that he would spend a thousand dollars on the matter rather than let defendant have anything out of it. And he has subsequently refused and still refuses to carry out said contract, in violation both of the spirit and letter thereof. All to plaintiff’s damage two thousand dollars.”</p> <p>The second cause of action contains substantially the same allegations as the first, except tire following, instead of paragraphs 4 and 5 of the first cause of action, to wit:</p> <p>“9. On information and belief, plaintiff says, as follows: Some months prior to November 1st, 1902, defendant, in wilful fraud of the rights of plaintiff, and with the deliberate, wanton and wilful purpose of defrauding him, of violating the trust that arose under the facts of the case, and of fraudulently converting to his own use the whole proceeds of his sale of said land, in fraud of plaintiff’s rights therein, did sell, transfer and convey said land to Mr. J. W. Williams for the sum of six hundred dollars (in cash and chattels), and did collect and appropriate to his own use all of said cash and chattels, refusing to account to plaintiff for any part thereof, and declaring that he would spend one thousand dollars in this matter before defendant should have one cent. Plaintiff was prepared before November 1st, 1902, to pay to defendant the said sum of three hundred and eighty-five dollars ($385.00), and a few days before that time he got the money and made (through his attorney) a lawful tender of the full amount due defendant, but he refused, has since refused, and still refuses, to accept the same, and account to plaintiff for the proceeds of his unauthorized dealing with said land or any part thereof, all to plaintiff’s damage two thousand dollars.</p> <p>“Wherefore, plaintiff prays judgment against the defendant for two thousand dollars, and the costs of this action.”</p> <p>The grounds of demurrer to the first cause of action are as follows:</p> <p>“1. Because the contract set out in paragraph 11, the refusal of performance of which is made the basis for the first cause of action, is void under the statute of frauds, in that it appears on the face thereof that said agreement for the sale of the land is too indefinite, in that the agreement set out does not so describe the property as to be identified by the Court, and it is submitted that an action for damages does not arise from the breach of a void agreement.</p> <p>“2. Because it appears upon the face of said complaint that said cause of action alleged therein is not founded upon a tort, where some right of person or property is invaded maliciously, violently, wantonly or with reckless disregard of social or civil obligations; that whatever rights plaintiff has in the premises arises solely ex contractu, by a breach, recision or refusal of defendant to perform the alleged executory civil agreement for the sale of land, and no facts are alleged and no damages are shown as arising from the natural results of a breach of said agreement, and defendant submits that an action for exemplary damages does not lie for the breach of an executory agreement for the sale of land.</p> <p>“3. Because it appears upon the face of the complaint that the defendant has rescinded or refused to perform the alleged agreement for the sale of land, set out in paragraph 11 of said complaint, and since such refusal or recision is not a tort in law sounding in punitive damages, and no facts appearing in the complaint that plaintiff has been damaged from the natural results of the alleged refusal to perform said agreement, it is submitted that plaintiff cannot maintain said cause of action.”</p> <p>The grounds of demurrer to the second cause of action are substantially the same as the foregoing.</p>

<p>Wiles — Fee Conditional — Trust Deed.. — A will devising land to A for life, after her death to B, “for and during her natural life, and in case of death without issue,” then over, under the act of 1853, cánnot he construed to convey a fee conditional to B by implication, and B cannot convey a fee simple to herself by executing a deed to C, in trust for herself and her heirs, she then having a son alive, who has since died.</p>

Before Aldrich, J., Orangeburg, November 3, 1903. Held: ‘We regard it settled in this State, that a municipal corporation, instituted for the purpose of assisting the State in the conduct of local civil government, is not liable to be sued in an action of tort for nonfeasance or misfeasance of its officers in regard to their public duties, unless expressly made so liable by statute.’…

Before DanTzeER, J., Cherokee, March, 1903. Action by D. S. Ramseur against J. V. Whelchel, in magistrate court. From order of Circuit Court affirming magistrate’s judgment, defendant appeals. cite: Error of lam in Circuit Judge on appeal may be corrected: 41 S. C., 166. Presumption is that public agent does not intend to bind himself: 59 S. C., 438.

<p>1. Guarantor — Jury.—An absolute guarantor of the payment of a debt for which notes were to be given and indorsed by guarantor^ and delivered to creditor, upon performance by him of certain things, is not released from liability as guarantor by failure of debtor to execute notes within reasonable time after performance by creditor; nor is such guarantor relieved of liability by reason of the fact that time of payment is extended by such notes, unless it was the intention of the parties to postpone the maturity of the original debt to the time named in the notes, or to accept the notes in settlement of the debt; which are questions for jury.</p> <p>3. Principal and Agent. — A Book-keeper who has authority to make and alter contracts, may state an account so as to be binding on his principal.</p> <p>3. Evidence — Partnership.—Declarations of another that one is a member of a partnership, are not proper evidence.</p> <p>4. Ibid. — De Bene Esse — Admission.—Testimony of a party taken de bene esse on his own motion and used at a former trial, may be introduced by the adverse party at a second trial; but the fact that such evidence was afterwards admitted as a declaration of the party against interest, cures the error of ruling it out in first instance.</p> <p>5. Exception not stating grounds of error will not be considered.</p> <p>6. Exception rested on the assumption of a fact in dispute cannot be sustained.</p> <p>7. Charge. — It is not error to fail to instruct jury upon particular view of the law in absence of a request.</p>

Before TownsFnd, J., Lexington, July, 1903. Action by Fanners and Mechanics Mer. and Mfg. Co. against S. R. Smith. From order granting defendant leave to file answer, plaintiff appeals. cite: Defendant does not show excusable neglect: 36 S. C., 581. Showing does not disclose a valid defense: 15 Ency., 288; 1 Ency. P. & P., 352, 360, 363; 23 Hun., 406; 1 How. Pr., 45.

Before Gary/J., December, 1901, and Klugh, J., September, 1903, Lancaster. Action by W. B. Cauthen, as administrator of Jno. Mi Cauthen et al., against Emma Cauthen et al., heirs at law of Jno. M. Cauthen. From Circuit decree, plaintiffs appeal. cite: Order of Judge Gary may be appealed from after final decree: Code Proc., 11, sub 1; 59 S. C., 49;'20 S. C., 547; 19 S. C., 607; 17 S. C., 150. Claim of committee not barred,.

<p>1. Corporations — Director—Treasurer—Quantum Meruit. — When a director of a corporation is elected treasurer, as provided in its bylaws, is paid a salary for his first year’s service, and upon his election for the second year informs the directors that he cannot serve for same salary as last year, upon his performing the services, in absence of proof that action was taken on salary by directors, he may recover the value of his services.</p> <p>2. Appear — Magistrate.—This Court cannot review findings of fact by Circuit Co'urt on appeal from magistrate court.</p>

Before special Judge, Joseph A. McCurrough, Edge-field, November, 1903. Action by Rena A. Sentell, as administratrix of James C. Sentell, against Southern Railway. From judgment for plaintiff, defendant appeals. cites: Deceased zvas trespasser: 57 S. C., 243; 64 S. C., 7; 34 S. C., 292; 67 S. C., 499. Duty of railroad to trespasser: 57 S. C., 243; 64 S. C., 7; 61 S. C., 560; 34 S. C., 292.

Before Gage, J., Sumter, July, 1903. Action for partition by Nettie F. Parrott et al. against George McD. Barrett ct al. The Circuit decree is as follows : “This is an action for partition. The subject matter thereof is a parcel of land containing 889 acres, and referred to in the muniments of title as the ‘Green tract.’ The testimony shows the land to be of unusually fertile character and the market value high.

<p>1. Pleadings — Contributory Negligence. — When defendant does not plead contributory negligence, he is not entitled to a verdict even though the plaintiff was guilty of contributory negligence.</p> <p>2. Exception too general.</p> <p>3. Burden op Prooe. — Where an answer sets up no affirmative defense, it is error to instruct j ury that defendant must establish his defense by the preponderance of the evidence.</p> <p>4. New Trial. — It is not error of law to refuse a new trial when there is any evidence to support the verdict.</p>

Before Gary, J., Sumter, July, 1903. Action in magistrate court by Swinton, P. Jones against Atlantic Coast Line Railroad.

Before Purdy, J., Aiken, December, 1903. Action by Benjamin Kimbrell et al. v. Ophelia Page el al. Prom Circuit order dismissing complaint, plaintiff and defendants, P. C. Cummings and Robert Kimbrell, appeal. cites: Equitable issues must be heard by Court: Code of Proc., 274; 44 S. C., 116; 12 S. C., 108, 411. Judge should have framed issues: 20 Stat., 696. cite: Issue of title in parti-, tion must be tried by jury: 12 S. C., 97; 36 S. C., 559; 41 S. C., 195; 67 S. C., 276.

<p>Pleadings — Subrogation.—A complaint seeking to subrogate a purchaser at a void sale under power in a mortgage to the rights of the mortgagee, should allege that the purchaser bought under the belief that he was obtaining the legal title by the sale, and should allege the amount of the purchase price. Exceptions to this general rule stated.</p>

<p>Before Watts, J., Florence, January, 1904.</p> <p>Action by Jno. F. Divine against Charles D. Miller and Louisa Miller, as administrators of estate' of E. Miller, and other heirs at law of E. Miller. From Circuit decree, defendants appeal.</p> <p>cite: The letters of administrator are not sufficient to remove the bar of the statute, and the promise of the administrator cannot bind the realty: 28 S. C, 301; 47 S. C., 441; 63 S. C., 90; 13 Ency., 1 ed., 708; 44 S. E. R., 472. Does the payment by foreclosure of collateral assigned at the day the debt was contracted, operate as a payment to arrest the statute: 28 S. C., 300; 19 Ency., 2 ed., 328; 130 Mass., 199; 71 Neb., 77; 65 N. H., 175; 66 N. Y., 352; 48 Neb., 403.</p> <p>cite: As to the effect of the acknowledgment and promise of the administrator: Dud., 118; 2 DeS., 577; 16 S. C., 198; 3 McC., 340; 15 Rich., 373; 9 S. C., 450; 63 S. C., 78. The testimony of Mr. Barron is not obnoxious to sec. 400 of Code: 3 S. C., 423; 9 S. C., 392; 25 S. C., 228; 26 S. C., 160; 33 S. C., 225; 40 S. C., 142; 6 S. C., 92; 7 S. C., 153; 11 S. C., 122; 16 S. C., 631. Payments made by reason of foreclosure of collateral arrest the statute: 1 Col. App.,,468; 20 Me., 345; 132 Mass., 130; 37 Mo. App., 234; 14 Neb., 193; 70 Conn., 429; 161 Mass., 525; 96 N. C., 118; 97 Mass., 476; 61 S. C., 124.</p>

<p>1. Trustee. — Deed by trustee under power of sale for reinvestment without payment to trustee of purchase money is voidable, but not void.</p> <p>2. Ibid. — Notice—Attorneys.—Knowledge on part of an attorney that a trustee is selling to his own wife, is notice to his client.</p> <p>3. Ibid. — Deed—Cestui que Trust.- — Sale by husband, trustee, to wife of trust property, is voidable at option of cestui que trust.</p>

<p>Before James P. Carey, special Judge, Cherokee, December, 1903.</p> <p>Action by George Nicholls Morrow, by guardian ad litem, against Gaffney Manufacturing Co. From judgment for plaintiff, defendant appeals.</p> <p>cite: Testimony of father as to his financial condition and to number and ages of his children, improperly admitted: 14 B. R. A., 677; 102 U. S., 451; 62 Tex., 602; 49 F. R„ 706; 18 F. R., 238; 37 Mich., 205; Wood Railway Daw, 1243; Thomp. on Neg., 1263; Shear. & Red. on Neg., 664; 50 Barb., 628; 6 Hill, 292; 8 Gray, 45; 55 Tex., 323. Where proof shows that servant knew of the danger of his position, master is not liable for injury therefrom: 55 S. C., 483; 157 Mass., 418; 131 N. Y., 631. Under facts here defendant had right to presume that plaintiff had sufficient mental capacity to be guilty of contributory negligence, and it zvas error to submit that question to jury: 32-Am. R., 415; 58 Md., 347. There being no evidence as to defective machinery, that question was improperly sent to jury: 157 Mass., 418.</p> <p>cite: The amendment zvas properly allowed: 63 S. C., 311; 30 S. C., 564; 66 S. C., 12, 124; 65 S. C., 222, 308, 332; 64 S. C., 491. Objection that evidence is irrelevant or incompetent, not considered: 53 S. C., 253. Evidence as to condition of father’s family is competent to shozv that boy zvas deprived of ability to perform his legal and moral duties: 39 S. C., 162; 60 S. C., 9.</p>

<p>Before Townsend, J., Spartanburg, March, 1904.</p> <p>Action by Bank of Spartanburg against Chickasaw Soap Co. et al. From order refusing motion of plaintiff for reference, plaintiff appeals.</p> <p>cite: Issues are not triable by jury: Code of Proc., 274, 275; 63 S. C., 44; 43 S. C., 187; 37 S. C., 169. Defendant should have moved to submit issues under Rule 28: 5 S. C., 411; 35 S. C., 421.</p> <p>cites: Issues of fact for recovery of money should be tried by jury: Code of Proc., 288; 63 S. C., 38. •</p>

<p>Before Gage, J., Florence, March, 1903.</p> <p>Action by Cornelia A. Dennis, adtnx. of Frank McGowan, against Atlantic Coast Dine Railroad Co. From judgment sustaining demurrer to complaint, plaintiff appeals.</p> <p>cites: The Act of N. C. is independent of the Lord Campbell’s Act: 124 N. C., 222; 127 U. S., 205.</p> <p>cite; Poreign statute must be pleaded: 27 S. C., 458; 66 S. C., 91; 103 U. S., 11; 33 Am. R., 666; 38 Am. R., 493; 56 Am. R., 200; 22 Am. St. R., 804; 54 Am. R., 39; 54 Am. R., 105; 13 Ency. P & P., 277, et seq; 4 R. R. R., 504; 50 Am. R., 683. The limitation in the Lord Campbell’s Act of North Carolina is not a statute of limitation: 94 N. C., 525 ; 10'6 N. C., 205. The Act of North Carolina, of iSpp, is only an enlargement of the Lord Campbell’s Act: 122 N. C., 961; 123 N. C., 280; 124 N. C., 222; 126 N. C., 458; 128 N. C., 534; 129 N. C., 407; 131 N. C., 234, 476.</p>

<p>Copartnership — Peeadings.—In suit against individual members of a copartnership, for goods sold and delivered to the partnership business, served on only one member, it is not necessary to allege that at time of sale plaintiff seller knew that such defendant was a member of the partnership.</p>

Before Townsend, J., York, November, 1903. Action by A. P. Sutton against Catawba Power Co. Prom order permitting complaint amended, defendant appeals. cite: These amendments set up one or more new causes of action: Bryant on Code Plead., 282. cites: The amendments do not state amezn cause .of action-, but only make at zjaell rounded one: 64 S. C., 249; 21 S. C., 558; 56 S. C., 35; 53 S. C., 340; 26 S. C., 422; 16 S. C., 23l; 54 S. C., 114.

<p>Before Townsend, J., Chester, December 22, 1903.</p> <p>Action by W. N. Walker against W. W. Cassels and J. E. Saunders. From Circuit decree, defendant, Cassels, appeals.</p> <p>The special referee made the following finding and conclusions, among others:</p> <p>“Third. AVhat damages has the plaintiff proven against the defendant, Cassels, on account of his attempted seizure and sale of the lumber under his supposed sawyer’s lien? Under the contract for sawing, the defendants were bailees of the logs and lumber, and by the common law, I think, had a claim or lien on the logs and lumber committed to them for their bill for sawing, so long as they retained actual possession; but if they surrendered possession to> the plaintiff or other party, this special claim or lien was waived and g'one. Edwards on Bailments, secs. 420-424.</p> <p>“No stress was laid by either side on the point as to who was in possession on the 26th of October, 1901, when Cassels put up his notices and advertised the lumber for sale. But the tendency of the testimony is to> show, that plaintiff was in possession. The sawing had been completed and the sawyers, so far as I gather from the evidence, had left the ground, and no claim is made that they left any agent in charge. Plaintiff had stacked the lumber, used some of it and sold a considerable portion of it, and it was on his own ground. So* I must conclude he was in possession, and any lien the defendants may have once been entitled h>, was waived.”</p> <p>cite: Referee confused "burden of proof” with preponderance of testimony:” 2 Ency., 1 eel., 655. Sawyer has a lien upon lumber: 19 Ency., 2 ed., 531. As to• surrender of possession of lumber by sawyer: 12 L. R. A., 621; 2 Ency., 1 ed., 654; 104 Ind., 118; 19 Ency., 2 eel., 28. Burden is on plaintiff to show payment on note: 19 Ency., 2 ed., 332, 333, note 2; 82 Va., 518.</p> <p>cite: This Court, in a law case, has no power to review -finding of fact by Circuit Court on report of referee: 50 S. C., 511; 55 S. C., 372. If bailee voluntarily parts with possession of goods,- his lien is lost: 3 Ency., 2 ed., 760; 26 Wend., 467; 22 Vt, 474.</p>

<p>Pleadings — Construction—Agricultural Lien. — Under the rules of construction of pleadings, that when a fact is pleaded, all inferences of law or fact arising therefrom are regarded as embodied therein, and that pleadings should be liberally construed, the complaint here held -to allege that defendant either had possession of the cotton soon after its purchase, or had converted it into some manufactured product, in either of which cases liability in damages would attach for failure to deliver cotton to lienee after notice of lien.</p>

<p>Action por Wrongful Death — Abating—Negligence.'—An action brought by administrator of a son for damages for his wrongful death for the benefit, as alleged, of his father and brother and sisters, should not abate upon death of father, because he was sole beneficiary under statute at time action was commenced.</p>

Before J. H. Hudson, special Judge, Richland, March, 1903. Action by McCreery Land and Investment Co-, against Jeremiah Myers et al. From, order refusing- reference and transferring case to- calendar 1 for trial of legal issues, plaintiff appeals. cite: As to trial of legal •and equitable issues: 11 Fncy.

Before Dantzeer, J., Spartanburg, 1903. Action by Annie Moore against George R. Dean, in magistrate court. From judgment for defendant in Circuit Court sustaining judgment of magistrate, plaintiff appeals. cite: Mortgagee has right to redeem mortgaged property: Code, 1902, 3006. Payment of mortgage debt discharges lien: 60' S. C., 153; 51 S. C., 433. Contract mens one for rent and not a laborer’s contract: Code, 1902, 2715; 18 S. C., 512; 35 S. C., 213; 54 S. C., 288.

Before Watts, J., Darlington, February, 1904. Proceedings in mandamus on relation of J. K. Kirven against R. J. Scarborough. From Circuit order, respondent, Scarborough, appeals. cite: To compel an officer to obey a writ of mandamus, it must be shown that he has the ability to comply, and it is his clear legal duty: 15 S. C., 322; 7 S. C., 275; 1 S. C., 23; 18 S- C., 250; 33 S. C., 278; 7 Rich., 322; 6 Col., 526; 13 Ency. P. & P., 494.

Before Townsend, J., Raurens, February term, 1904. Action by R. T. Madden & Co-, against Phoenix Assurance Co. From judgment for defendant upon verdict directed, plaintiffs appealed. cite: As to when Circuit Judge may direct a verdict: Con., Art. V., sec. 26; 15 S. C., 92; 42- S. C., 28. When defendant claims that policy is void, he waives right to require proofs of loss: 29 S. C., 579; 36 S. C., 265; 37 S. C., 70'; 51 S. C., 547.

Befóle Klugh, J., Kershaw; February, 1903. Action by Mary R. Jones et al. against Burrell H. Boykin. From order sustaining demurrer to complaint, plaintiffs appeal. cites: Limitaton in tax statute does n-ot begin until sheriff puts purchaser in possession: 62 S. C’., 505.

Before Jos. A. McCuleough, special J, Richland, October term, 1903. Action by Philip H. Hyland against Southern Bell Telephone and Telegraph: Co. From judgment for plaintiff, defendant appeals. cite: As to the first three exceptions: 59 S’. C, 311. Evidence as to custom is not sufficient to establish a rule of conduct: 91 U. S-, 469; 81 Am. Dec, 748; 28 S’.

<p>Return. — This Court on proper showing will order a return amended.</p>

Before Dantzuur, J., Laurens, July term, 1903. Action by P. C. Battle against Columbia, Newberry and Laurens R. R. From judgment for plaintiff defendant appeals. cite: Carrier ■is not liable for loss of property not usually carried as baggage, without notice to carrier: '60 L. R. A., 846. cite: Jewelry and money as baggage: 3 Fncy., 535, 537. As to delivery of trunk: 3 Ency., 2 ed., 661, note, 362, 563, 561. Action by husband for property of wife lies: 12 S. C., 180.

<p>Before Aleen J. Green, Special' J., Fail-field, January, 1904.</p> <p>Action by George Li DeHihns against George W. Free, Joseph W. Free, Nancy D. Smith, Louisa C. McDonald, Nathan Free, Medora Spotts and Cornelia A. Jacobs.</p> <p>The Circuit decree is as follows, omitting formal order of sale:</p> <p>“This action came on to be heard before me at special November term, 1903, of the Court of Common Pleas for Fairfield County. Issues out of the cause were docketed on calendar I. The case was reached late in the afternoon. Counsel for defendants then stated that the original order submitting the issues was not in Court, but a copy was, and they would use the copy for the present and bring in the original in the morning. There appearing no objection to this course, a jury was empanelled and the trial proceeded. Pending the introduction of plaintiff’s testimony, the Court adjourned for the night. Upon the opening of Court the next morning, counsel for the defendant stated that they had been unable to find the original order submitting the issues; that they could not say positively whether such order had been passed, but as there was noi objection to. it, proposed that I now sign the order. I suggested that plaintiff’s counsel attach their consent. To this plaintiff’s counsel demurred, saying that they did not desire to waive any rights they may have, and did not appear as consenting or resisting. Therupon I signed the order and the trial proceeded. Upon the introduction of parol testimony by the defendant to sustain the issues submitted to the jury, plaintiff objects upon the grounds hereinafter referred to.</p> <p>“The testimony was held incompetent, and I withdrew the case from the jury, and proceeded to try the same on the equity side of the Court, upon the pleadings and testimony taken before me in open Court.</p> <p>“The complaint alleges substantially:</p> <p>“1. That the lands described in the complaint were levied on and sold by the Sheriff under execution against Charles Free and bought by James B. McCants, .on November 2d, 1868.</p> <p>“2. That McCants sold and conveyed the lands to the plaintiff for $1,200 — -then paid by plaintiff on May 1st, 1869.</p> <p>“3. That plaintiff was the son-in-law of Charles Free and his wife, Flarriet, and being desirous of their retaining the lands during their lives, the parties executed a lease, dated May 15th, 1869, by which, in consideration of certain covenants therein mentioned to be performed by Harriet Free, plaintiff leased the lands to her for the term of her natural life, and a paper purporting to be the lease was recorded on January 14th, 1885, in the proper office.</p> <p>“4. That on January 4th, 1869, the plaintiff and Charles and Harriet Free entered into an agreement under their hands and seals by which plaintiff agreed that upon the termination of the lease by the death of Harriet, the lands should be equally divided among the heirs of the said Charles and Harriet, provided certain conditions therein expressed should be first complied with, among which was the payment to plaintiff of the sum he paid to secure said property, with legal interest at seven per cent, from May 1st, 1869, which sum: was $1,200. That this agreement, together with the deeds of the sheriff to McCants and of McCants to plaintiff, and plats relating to the land, were enclosed in an envelope which was sealed and given Mrs. Free, with the following endorsements on it: ‘To be opened after the expiration of the lease of Mrs. Harriet Free in the presence of the children, by George D. De Hihns, or if dead or otherwise unable to-be presnt, by the oldest living son of Mrs. Free.’ The plaintiff has been unable to find said envelope since the death of Mrs. Free, but is informed that it is in existence, and in the hands of defendant’s attorneys.</p> <p>“5. That no part of said $1,200 has been paid, and the said Harriet retained possession of the land under the lease until her death, on January 1st, 1902, the said Charles having predeceased her, leaving as heirs at law and the heirs at law of the said Charles, nine children, named as defendants, and paintiff under terms of lease has taken possession and rented same to a tenant for 1902.</p> <p>“6. That plaintiff has sought to have the agreement carried out without the aid of the Court, but that the defendants have failed and refused to comply with the conditions by the payment of said sum of money and interest, denying plaintiff’s legal rig'hts and interfering with and threatening' to interfere with his quiet possession and receipt of rents, so that he is compelled to ask the aid of the Court, and prays that the land be sold and the proceeds applied to the plaintiff’s claim, etc.</p> <p>•“Defendants answer, admitting first paragraph of complaint, and so much of paragraph 2 as alleges the conveyance to plaintiff, but deny that plaintiff paid any part of the consideration; they also deny that plaintiff and Charles and Harriet Free entered into the agreement of June 13th, 1869, and allege that they have no knowledge or information of the other allegations of the complaint. And for a second defense substantially allege: That the funds with which the lands were purchased were not the funds of the plaintiff, but were furnished by Charles Free to the plaintiff for the purpose of purchasing the lands and preserving the same for the benefit of himself, his wife and family, including plaintiff’s wife. That the funds so furnished were used by the plaintiff in the purchase of the land, and the deed taken in the name of plaintiff, and submit that a resulting trust thereby arose in favor of Charles, and they as his heirs at law are entitled to partition. That if the instrument set out in paragraph 4 of the complaint (the agreement) .was ever entered into, such agreement was merely to carry out the understanding and agreement by which plaintiff should nominally hold the title, without any beneficiary interest therein to himself, for the use of the said Charles and Harriet. Wherefore, they ask partition.</p> <p>“It appears from the testimony that in 1868, Charles Free • was heavily embarrassed, there being a large amount of judgments ag'ainst him, three of which were owned or controlled by J. B. McCants, Esq., that under executions based upon these judgments, his lands were sold by the sheriff and bought by Mr. McCants, and nulla bona returns made by the sheriff on other executions against Free. In this state of affairs, Free applied to' his son-in-law, the plaintiff, who had just come into possession of a legacy of about $3,500, our money, from his kindred in Germany. The plaintiff came from his home in Lexington to' Winnsboaro and arranged with Mr. McCants to purchase the property from him for the sum of $1,200'. This arrangement was consummated by the payment of the money and the delivery of the deed from McCants toi plaintiff, dated the 1st day of May, 1869, which deed was recorded on September 30th, 1869. On the 15th day of May, 1869, the plaintiff leased these premises to Harriet Free for the term of her life, as alleged in the complaint. This lease is executed under seal by the plaintiff, Charles Free and Harriet Free, witnessed by two witnesses, and was recorded Janaury 14, 1885. On June 12th, 1869, the paper called agreement, which is the basis of this action, was executed by the plaintiff and his wife, Lucinda, under seal, witnessed by William1 Summer, who is now dead. Upon this agreement appears the following:</p> <p>“ ‘We, the undersigned, do hereby sanction and approve the intention of George L DeHihns.</p> <p>“ ‘Done at our residence in Fairfield County, S. C., this 2d October, in the year of our Lord, 1869.</p> <p>“ ‘Charres Fr (r. s.)</p> <p>‘“Harriet Fr (r. s.)’</p> <p>“It is apparent from an inspection. of the paper that Charles and Harriet did not leave themselves room for their full names before the scrolls, hence the abbreviation of the ‘Free.- These three papers, together with the deed of the sheriff to McCants, and the envelope in which papers had been sealed, were produced by the defendants at the trial, upon notice from' the plaintiff. The envelope is mutilated, but some of the seals are intact, and show the impression of a ‘nickel’ which, under the glass, bears date ‘1869.’ The endorsements on the envelopes are as follows.: ‘Recorded deeds of real estate and personal property for division among the body heirs of Charles and Harriet Free, Fairfield County, So. Ca.’</p> <p>“ ‘The seals of those enclosed papers will be broken only in the presence of all the body heirs of Charles and Harriet Free or their body heirs or agents after the lease given of the above property by George L. DeHihns, of Lexington County, to Harriet Free and agency given to Charles Free expires — by the oldest living body son of Harriet and Charles Free.’</p> <p>“ ‘Sealed this 2 day of 'October in the year of our Lord one thousand eight hundred and sixty-nine, in presence of all three unto signed persons concerned.’</p> <p>“The signature to the three persons to this last endorsement has been erased with a knife or some sharp instrument and partially pasted over with another and different kind of paper. These endorsements on the envelope are in the handwriting of plaintiff and I have no doubt that the erasures was of the names of the plaintiff and Charles and Harriet Free.</p> <p>“At this stage of the case, the defendant proposed to prove by parol that the purchase money of the premises, which was the consideration of the deed from McCants to DeHihns-, was the property of and furnished by Charles Free. To this testimony, plaintiff objected on three grounds:</p> <p>“1. Because it would contradict the terms of the deed to McCants.</p> <p>“2. Because the defendants claiming as the heirs at law of Mr. and Mrs. Free were estopped by the lease and agreement from disputing the title and settlement made through them.</p> <p>“3. That such evidence would tend to show a secret agreement that would be a fraud upon the creditors- of Charles Free; and cited 1 Perry on Trusts, sec. 151; Nesbit v. Calendar, 30' S. C., 33; Brown v. M'pAtison, 3 Rich. Eq., 153-54; Broughton v. Broughton, 4 Rich. L., 491. I did not think the first ground well taken. The deed did not purport to say to whom: the $1,200 paid by p-laintiff belonged. But the other grounds I thought were well taken, and, in any view-, the testimony was inadmissible, because even conceding it to be true, as averred, that the money was furnished by Free for the purpose of preserving the property to himself and family, the writing signed by the parties at the time of the transaction was the best evidence of the terms on which the settlement was made, and this settlement would be sustained as a family settlement. Smith v. Tanner, 32 S. C., 263; Gardner v. Gardner, 49 S. C., 62.</p> <p>“This ruling practically struck out defendant’s second defense and eliminated the issues referred. The issues were, therefore, withdrawn from the jury, and the defendants thereafter confined to evidence impeaching the writings or showing performance of the conditions of the agreement. I do not understand the rule laid down in Ragsdale v. Railroad Company, 60 S. C., 329, to conflict with this view. In the first case, the Court pointed out the remedy provided under the Code for simplifying the issues and ridding pleadings of irrelevant or redundant matter, but based their decision not on the failure of the objecting party to' avail himself of that remedy, but upon the fact that the question had not been passed upon by the Court below, and, therefore, the objection could not be raised for the first time in' the Supreme Court. In the latter case, the exception was held bad on its merits’, and the remedy for pleadings stated in the first case approved and affirmed. None of the cases go to the extent of holding that failure of the party toi avail himself of the motion to strike out will render competent evidence that will overturn settled principles of law, such as permitting a tenant to those claiming' under him toi dispute the title of his landlord, or an heir at law the right of his. ancestor to1 dispose of his property in his lifetime, and cannot be carried to such extent without making' the right of litigants dependent upon the skill of the pleader rather than the law and equity of the cause1 — the evil the adoption of the Code was intended to obviate.</p> <p>“Some testimony was introduced tending to show that the signature of Mr. Free to> the agreement was not his writing, and the witness who purports to1 have probated the lease did not sign the probate; but Mrs. Spotts, one of the defendants, testified that she was present and heard the agreement read over by the plaintiff to her father and mother, and the same tog-ether with the other papers was sealed by plaintiff in the presence of all them and delivered to her mother. My conclusion is that the papers are all genuine, and were 'executed and delivered by the parties, placed in an envelope, which was sealed and delivered as alleged in the complaint. Charles Free died March or April, 1884; Harriet Free on January 1st, 1902. This action was commenced May, 1902.</p> <p>“It was urged that the action was in effect the foreclosure of a mortgage and the agreement an instrument in the nature of a mortgage, and it not having been recorded, and there having elapsed more than twenty years from the creation of its lien, under section 2449 of the Code of Daws, the action could not lie, and in this viewi leave to1 amend the answer so as to plead the statute in bar was asked at the close of the argument. I do not think the amendment material. In my view, the agreement creates no lien; it is but an agreement — a contract under seal based upon good consideration to convey the premises upon the performance of certain conditions precedent by the heirs of the bodies of Charles and Harriet Free. The defendants are not bound to perform these conditions, but they have the option of so doing, and if they do, then plaintiff is bound h> convey. The action is not one of foreclosure, but an action for the specific performance of a contract-vendor against vendee — and its office is to require defendants to perform or submit to a sale of the lands and application of the proceeds to the contract price. The title is held as security for the price. Vendee cannot compel conveyance until he pays the price, not even though the notes given are barred by the statute. Blackwell v. Ryan, 21 S. C., 121; Gregoris v. Bnlow, Rich. Fq. Cases, 245.</p> <p>“Upon the whole, I am of opinion that the action is well brought, and the plaintiff is entitled to the relief sought.”</p> <p>Defendants appeal on following exceptions:</p> <p>“1. Because his Honor erred in withdrawing the issues from the jury upon the ground that the testimony offered by defendants to sustain the allegations of their answer was incompetent; whereas, said testimony was competent, the plaintiff not having moved to strike out any part of the answer, and the issues should have been submitted to the jury on such testimony.</p> <p>“2. Because his Honor erred in holding that the testimony offered by defendants by several witnesses tending to show that Charles Free, deceased, had paid all, or a part, of the purchase money of the tract of land, as alleged in the answer, was incompetent, the error being that such testimony was competent for the following reason: (a) It was strictly in reply to' testimony offered by the plaintiff, (b) It was strictly competent to prove the allegations of the answer, which the plaintiff had failed to move to strike out. (c) It was competent because it tended to disprove the allegations of the complaint, (d) Because it was competent, by such testimony, for defendants to show the real consideration of the deed from James B. McCants to George L. De-Hihns, and that the same was not paid by the said George B. DeHihns, but by another party, in which event the plaintiff would not be entitled to be paid anything- on his alleged agreement.</p> <p>“3. Because his Honor erred in holding that the testimony offered by the defendant to sustain the allegations of their answer was incompetent; whereas, he should have held that the said testimony was competent, and should have admitted it to show that the purchase money of the premises described in the complaint was paid by Charles Free at the time of the execution of the deed of James B. McCants to George B. DeHihns, and that such purchase money was not paid by said George B. DeHihns.</p> <p>“4. Because his Honor erred in holding that the testimony offered by defendants to prove that Charles Free had paid all, or a part, of the purchase money mentioned in the deed from James B. McCants to George D. DeHihns, was incompetent, on the ground that it would have been a fraud-against the creditors of Charles Free; when his Honor should have held that such testimony was competent, no creditor of Charles Free being before the-Court; and even if such testimony tended to show a fraud as against the creditors of Charles Free, the defendant should have been allowed to show it, in order that the Court might grant no relief to either party, as the plaintiff would have been a participant to any such fraud, and in -pari delicto, even if it had been established.</p> <p>“5. Because his Honor erred in holding that the defendants, claiming as the heirs of Mr. and Mrs. Free, were estopped by the release and agreement from disputing the statements made therein, and in holding that parol testimony could not be admitted to show the true consideration of the deed; whereas, he should have held that it is always competent to show the real and true consideration of a deed, even by parol testimony, and he should have further held that the papers mentioned did not constitute a family settlement.</p> <p>“6. Because his Honor erred in holding that the writing signed by the parties at .the time of the transaction was the best evidence of the terms on which the settlement was made, and in holding that such writing constituted a family settlement; whereas, he should have held that the paper referred to was never agreed to by Charles Free and Mrs. Free, as appears from an inspection of said alleged agreement.</p> <p>“7. Because his Flonor erred in not holding, as contended by the defendants, that the deed from James B. McCants to George L. DeHihns, of date the 1st day of May, 1869, was a deed in the nature of a mortgage, and that, taken together with the other papers set forth in the complaint, practically constituted a mortgage; and that as more than twenty years had elapsed from the date of said deed at the time of the commencement of the action, and no acknowledgment of the debt secured thereby, or any note of any payment thereon having been recorded on the record of said .deed having the effect of a mortgage, that it had ceased to constitute any lien on the premises described in the complaint at the time of the commencement of this action.</p> <p>“8. Because his Honor erred in refusing to allow defendants to amend their answer pending the trial of this, cause, so as to set up by way of defense the failure of plaintiff to comply with the provisions of section 3449 of vol. 1 of the Code of Daws of 1903.</p> <p>“9. Because his Plonor erred in not holding that the provisions of section 3449 of vol. 1 of the Code of Daws of 1903 need not be specially pleaded.</p> <p>“10. Because his Honor erred in holding that the instrument of writing- set forth in the complaint was an agreement based upon a good consideration to convey the land described in the complaint to the defendants, upon the performance of certain conditions, and that this was an action for special performance of contract between vendor and vendee, when there was no evidence to sustain said findings on the part of his Honor.</p> <p>“11. Because his Honor erred in refusing to admit the testimony offered by the defendants to show that the purchase money in whole, or any part, had been paid by Chazdes Free; when, if such fact had been established by the testimony, a resulting trust would have arisen in favor of the said Charles Free, or his heirs at law.”</p> <p>Mr. McDonald cites: Bvidence offered in support of irrelevant allegations is admissible: Pom. R. R. R., sec. 553; 60 S. C., 301, 381; 61 S. C., 339; 63 S. C., 570; 65 S. C., 97, 334. If there was fraud in acquiring the title, the plaintiff was in pari delicto and Court will not aid Mm: 14 Ency., 3 ed., 373; 3 Hill D., 488; 1 N. & McC., 334; 10 Rich. D., 491; 3 Brev., 375; 11 Rich D-, 601; 98 Mass., 118; 38 Wis., 637; 3 Rich. Eq., 355; 35 S. C., 405; 31 S. C., 60; 38 S. C., 857; 43 S'. C., 323; 61 S. C., 401. Bquity zmll not decree specific performance in case of gratuity: 26 Ency.. 2 ed., 26.</p> <p>Mr. A. S. Douglass cites: Bease being established, tenant is estopped from disputing title of the landlord: 6 Rich., 350; 30 S. C., 42. Grantor cannot dispute fact recited in his deed: 10 Rich. Eq., 113; 1 McC., 85; 18 S. C, 493; 2 Hill Ch., 211. If the trust be declm'ed in zsM'iting, there can be no resulting trust: 1 Perry on Trusts-, sec. 140; 6 Paige Ch., 453; 5 Ibid., 117; 56 S. C., 83; and parol evidence to show resulting, trust is inadmissible: 42 S. C., 351; 27 S. C., 380; 56 S. C., 558. Agreement should be sustained as family arrangement: 32 SC., 263; 49 S. C., 62. Showing a resulting trust zwuld impeach plaintiff’s title: 4 Rich., 491; 32 S. C., 595; 53 S. C., 486; 3 Rich. Eq., 153; 14 S, C., 334; 56 S, C., 391. Failure tO‘ move to strike out irrelevant allegations in anszver would not make testimony in support competent: Po-m. R. & R., sec. 548, 597, 603; Bliss on Plead., secs. 420-4:24; Boone’s Code Plead., secs. 243, 244, 249; 2 Wait’s Pr., 437; 53 S, C., 485; 18 S¡. C., 313. If parol evidence properly ruled out, it zms not error to zmihdraw issues from jury: Code of Proc., 274a; 55 S. C., 276; 36 S. C., 303; 52 S. C., 472. This action is not for foreclosure of mortgage, but for specific performance of a contract: 4 Kent. Com., *125; 2 Wash, on Real Prop-., 4; 13 Ency., 1 ed., 775; Rice, 444. Such action is not subject to statute of limitations: 21 S. C., 121; Rich. Eq. Cas,, 245; 16 S. C., 76; McM. Eq., 14; 20 S. C., 33; 4 Rich. Eq., 190.</p>

Before Ardrich, J-, Newberry, February, 1903. Action by William F. Ewart against Katie E. Bowman. From order dismissing complaint, plaintiff appeals. The citations of counsel on both sides are upon the construction of the trust deed and the effect of the statute of limitations, and as neither question is considered in the opinion, they are not given. The opinion in this case was filed on June 13, 1904, but remittitur held up until

<p>1. Reae Property — Action Surviving. — An action for damages for trespass by defendant on lands in possession of plaintiff in 1891, does not survive or continue against the heirs of the defendant upon his death during the pendency of the action.</p> <p>2. Ibid. — Action Continued — Summons—Ruee to Show Cause. — An action against ancestor for damages for trespass may be continued against the heir, after more than one year from death of ancestor, by service of supplemental complaint without summons, but with rule to show cause why the action should not be continued on the supplemental complaint.</p> <p>3. Res Judicata — Ruee to Show Cause. — In this case the Circuit Judge did not undertake to adjudge anything by the rule to show cause.</p>

<p>Evidence — Nonsuit—Quantum Meruit. — Incompetent evidence admitted without objection becomes competent, and on motion of nonsuit the sufficiency of such evidence is for jury. In this case the evidence introduced being susceptible of the inference that a mail messenger ignorantly performed the services of transfer clerk for the railway company, and that such services were accepted by the company, knowing that it was its duty to transfer mails, the case should have been sent to the jury to pass on liability of defendant for such services.</p>

<p>Before Watts, J., Marion, spring term, 1904.</p> <p>Indictment against Leonard Harding, H. E. Cunningham and Georg-e H. Waring, for house-breaking and larceny. From sentence, defendants appeal.</p>

Before Feroy F. Youmans, special Judge, Greenwood, August term, 1904. Indictment against John Johnson for assault and battery with intent to kill and carrying unlawful weapon. From sentence, defendant appeals.

<p>Before Aldrich, J., Beaufort, January, 1904.</p> <p>Indictment against Class Major, for privily stealing from the person. From sentence, defendant appeals.</p> <p>cites: Statements made to a defendant should not he admitted in evidence: 4 Rich. L,., 260; 12 Rich. L., 321; 1 Green. Fv., sec. 124; 34 S. C., 37; 13 S. C., 30.</p>

<p>Saeary — Fees—SheriEE.—The salary act of 1902 gives the sheriff of Greenville County a salary for all services performed for county, and he cannot collect fees of county for serving papers issued in criminal case issued by magistrate.</p>

<p>Before Keugi-i, J., Greenville, April, 1904.</p> <p>Action by R. F. Loveless against Simms Gilliam and P. T. Hayne. From Circuit order, affirming judgment of magistrate, defendants appeal.</p> <p>cites: Landlord is entitled to crop until division: 1 Hill, 364, 399; but division has already been made.</p> <p>cite: Plaintiff is owner of crop until division: 6 S. C., 297; 15 S. C., 87; 18 S. C., 310; and defendant has his remedy for division: Code, 1902, 2716, 3059.</p>

<p>Before Dantzeer, J., Hampton, June, 1904.</p> <p>Indictment against Wm. Sauls for fornication. From judgment of Sessions Court, defendant appeals.</p> <p>cite: Both parties must be indicted: Crim. Code, 393; 1 McC., 464; 31 Ency., 410'. On right of cross-examination: 61 S. C., 303 ; 30 S. C., 490; 39 S. C., 578; 35 S. C., 333.</p>

<p>Before Watts, J., Marion, spring term, 1904.</p> <p>Indictment against Leonard Harding, H. E. Cunningham and George H. Waring. From sentence, defendants appeal.</p>

<p>Before Klugh, J., Greenville, April, 1904.</p> <p>Two actions: (1) Hall and Pearsall against J. W. Sullivan; (2) Preston and Stauffer against same. Prom Circuit order setting aside judgment of magistrate, plaintiffs appeal. In one case the affidavit proving the account sued on states the account is due “by J. W. Sullivan, of Worthen, S. C.,” and in the other in the proof of service it appears that the summons and complaint were served on the defendant by leaving a copy with him “at his residence, in Dunklin Township, Greenville County.”</p> <p>cites: 62 S. C., 293; 59 S. C., 256; Code Pro-c., 88, sub. 5, 9; 51 S. C., 344; Code Proc., 149; 71 sub., 12; 5 Rich. E., 330; 4 McC., 79; 12 Ency. P. & P., 19'1; 20 Ibid., 1187; 6 Ency. P. & P., 122; 58 S. C., 89; 30 S'. E., 751; 3 Hill, 237.</p> <p>cite: Con., art. V., sec. 23; 12 Ency. P. & P., 842; 11 Ency. P. & P., 842 ; 26 S. C., 212; 28 S. C., 121; 13 S. C., 201; 17 S. C., 75; 59 S. C., 256.</p>

<p>1. New Trial. — There being evidence here tending to show that the obstructed road was a neighborhood road, refusal of new trial was not error of law.</p> <p>2. Sentence — Circuit Judge. — A succeeding Circuit Judge, presiding at a succeeding term of Court, may pass sentence on a defendant convicted by a jury at a previous term of the Court, which was adjourned without passing sentence.</p>

Before Gary, J., Lexington, April, 1904. Petition for mandamus by D. J. Hallman against Samuel B. George, as clerk of the Court.

<p>Before Jos. A. McCullough, special Judg'e, Richland, March, 1903.</p> <p>Proceedings in Court of! General Sessions to estreat appearance recognizance in lease of State against Edward Cornell. From Circuit orper, surety, J. M. Quattlebaum, appeals.</p> <p>cite: Bond can-not be enforced against surety after violation of condition of execution: 43 S. C., 504; 9 S. C., 234; 3 S. C., 331. Bond not good zvithout signature of principal: Crim. Code, 84; Brandt on Sur., sec. 151. In order tlrat recognisance be forfeited, accused should be regularly called and fail to appear: 3 Ency. P. & P., 237; 5 Cyc., 130.</p> <p>cite: Bond cannot be varied by parol: 26 S. C., 312; 13 S. C., 332; 24 S- C., 128; 57 S. C., 60. Obligation of surety is not affected by delay in estreating bond: Crim. Code, 85; End. on Int. of Stat, secs. 436, 437, 440- 57 S, C., 256; 1 N. & McC., 36.</p>

<p>Before M. F. Ansel, special Judge, Greenville, September, 1904.</p> <p>Indictment against Rush Gaylord and Doc. Gaylord, for murder. From sentence on verdict, defendants appeal.</p> <p>cite: When uncommwnicated threats are admissible: 43 S. C., 52; 33 S. C., 117; 12' Rich., 430'; and evidence of bad character: 29 S. C., 34; 12 Rich., 430. If there be prima facie evidence of a conspiracy, the acts and declarations of each are admissible in evidence against all the others: 11 S. C., 196; 34 S. C., 50.</p>

<p>Before Purdy, J., Greenville, April, 1903.</p> <p>Action by W. O. Arial against Western Union Telegraph Company. From judgment on Circuit, defendant appeals.</p> <p>cite: There can be no recovery for punitive damages if no actual damages: 60 S. C., 72, 41 S. E., 881; 44 S. W., 538; 12 S. W., 534; Crosw. Elec., sec. 649; Thomp. Elec., secs. 386, 387. There can be no recovery for continued anxiety, for failure to relieve suspense: 41 S. E., 882; 12 S. W., 534; 30 S. W., 1105, 1107; 42 S. W., 549; 56 S. W., 1127.</p> <p>cite: No error in refusal to strike out allegations: Code of Proc., 186; 63 S'. C., 363; 54 S. C., 503; 21 Ency., 487; 60 S. C., 14; 8 Ency., 581; 65 S. C, 436; 63 S. C., 428; 65 & C., 99, 516, 437, 407; 54 S. C., 504. Nomuit properly refused: 67 $. C., 129 ; 69 S. C., 534; 8 Ency., 542, 551-5; 12 Ency., 30; 57 S. C., 331; 60 S. C., 72; 64 S. C., 514, 99, 516.</p>

<p>Before Townsend, J., Union, April, 1904.</p> <p>Action by Medora Garner, as executrix of J. T. Garner, against M. L. Garner and F. H. Garner, administrators of J. G. Garner, et al. From Circuit decree, administrators and certain defendants appeal.</p>

<p>1. New Trial — Charge.—When a Judge charges the general law applicable to a case and party did not request charge of specific proposition of law, this Court cannot grant new trial for failure of Judge to charge such specific propositions.</p> <p>S. Malice. — In Actions por Malicious Prosecution, it is necessary to show express malice — that is, intent to injure the plaintiff.</p> <p>3. Pleadings — Evidence—Malicious Prosecution. — Under allegation in action for malicious prosecution of no probable cause, after evidence by plaintiff that articles for which he had been prosecuted for receiving as stolen property were bought by him of defendant’s agents, defendant, under denial, may show that such articles had been stolen from it.</p>

<p>1. Cross-Examination — Evidence.—Appellant cannot object to an answer in direct response to his question on cross-examination, even though it give an impression of the witness.</p> <p>2. Exception. — Where it does not appear from the record that a motion for a new trial was made on behalf of a defendant, and exception charging error in refusing the motion cannot be considered.</p> <p>3. Ibid. — Indictment.—An exception alleging that the Court erred in sustaining a verdict for the burning of A’s barn, while the indictment charged it was B’s barn, cannot be sustained, because no such point was made below, and the record did not disclose any allegation as to ownership made in the indictment.</p> <p>4. Alibi — Reasonable Doubt. — If there be a reasonable doubt that defendant’s plea of alibi is established by the preponderance of the evidence, it should be solved in favor of defendant.</p> <p>5. Charge — Request.—It is not error to charge a request subject to what has been charged, when the request does not differ from what had been previously charged.</p>

Before Gage, J., Chester, January, 1905. Controversy without action of Chester County against White Bros, and Winnsboro Bank.

<p>1. Practice — New Triae — ReeerEE.—This Court has power to appoint a referee to take the evidence of a party who declines to make an affidavit to be used in a motion to suspend appeal in a criminal case and for leave to make motion for new trial on after-discovered evidence.</p> <p>2. New Triae.- — -Such motion will not be granted on evidence tending to show that a witness has been discovered to whom a witness for State had made a statement contradictory to his evidence.</p> <p>3. Witness — Contradiction.—The witness sought to be contradicted here was sufficiently apprized of the time, place and person to whom he is said to have made the statement.</p> <p>4. Evidence in a homicide case tending to show -the conduct of defendant, and that he intended to resist arrest, is competent.</p> <p>5. Ibid. — Conspiracy—New Triae. — That a defendant said to his co-defendant, after a homicide, not to run, and that he attempted to make his escape with him, is not sufficient to furnish a legal inference of a conspiracy between them, and new trial is granted as to that one.</p>

Before Townsend, J., Greenwood, March term, 1904. Action by Annie Buchanan and William C. White against J. Foster Anderson, administrator of Wesley C. Anderson, et'al. From Circuit decree, plaintiffs appeal. cite: There was an agreement to- make mutual wills: 1 DeS., 116; 1 Dick., 419; 1 Will, on Ex., 167. And Courts will not permit one party to break it: 48 $. C., 86; 57 S. C., 559; 8 B. Mon., 530. cites: Is this <a joint will? 38 D. R. A., 291; 82 Am.

<p>Before Klugh, J., Abbeville, February term, 1904.</p> <p>Action by F. B. Culbertson against Abbeville County. From judgment for defendant, plaintiff appeals.</p> <p>cites: Code of 1902, 1347; Crim. Code, 438; 6 Stat., 302; Gen. Stat., 1882, 1112; Rev. Stat, 1893, 1223; Code, 1902, 1418; 68 S. C., 148; 67 S. C., 312.</p> <p>cites: Crim. Code, 438, 437; 67 S. C., State v. McDaniel.</p>

<p>1. Partnership — Attachment—Non-resident Partner — Lien.—'The rule that service on a non-resident partner of attachment cannot bind partnership property where resident partner is served, does not apply here because the funds attached are not strictly partnership • assets.</p> <p>2. Lien — Mechanics.—Under mechanic’s lien statute material men have no lien on funds due contractor for houses into which -their material has gone, while such funds are in possession of the owner or of the sheriff under attachment from the owner.</p>

<p>1. Criminal Raw — Animals.—The owner may be convicted for cruelty to animals upon evidence from which it may be inferred that the animal was cruelly worked when unfit for labor, with his knowledge and permission.</p> <p>3. Jurisdiction Waiver. — Objection to the jurisdiction of the person in a criminal case is waived by contesting case on merits.</p> <p>3. Exception presenting a question not raised by appeal from magistrate and on which record does not show that Circuit Judge made-any ruling, will not be considered.</p>

Before Townsend, J., Anderson, June, 1904. Indictment against Adam Robinson. From Circuit order affirming magistrate judgment, defendant appeals. cite: Defendant cannot be punished under statute changing punishment: 12 Ency., 539, 530'; 14 Rich., 164.

Before Townsend, J., Anderson, July, 1904. Action by J. R. Charping against T'oxaway Mill. From judgment for defendant, plaintiff appeals. cite: Witness cannot be contradicted by direct testimony on collateral matter: 16 Ency., 1 ed., 461e; 2 Bail., 473; 33 S. C., 582; 49 S. C., 414; 60 S. C., 169. Instructions ignoring material evidence in case should not be given: 46 S. C., 79; 11 Ency. P. & P., 190, 191. As to pleading contributory negligence: 56 S. C., 95; 67 S. C., 146.

Before- Townsend, J., Greenville, August,- 1904. Action by Oscar Llodges, as trustee of Wm Fagan, bankrupt, against Peoples Bank of Greenville. From order of Circuit Court, defendant appeals. cites: Whether defendant had knowledge of facts to put on inquiry, is question of lazv: 16 Ency., 1 ed., 792; Wash, on Notice, sec. 40; 29 N. Y., 220; 14 S. C., 321; and this defense is an equitable one: 41 S. C., 304; 67 S; C., 389; 69 S. C., 38.

Before Purdy, J., Bamberg,' February, 1904. Action by Fred Padgett against Paul F. Carter.

<p>Agricultural Lien — Money Had and Received. — When a party takes the proceeds of cotton on which there is an agricultural lien, with knowledge of the lien or of such facts, which, pursued, would have disclosed the fact, the lessee may sue him for money had and received for his use and benefit.</p> <p>Steinberger v. McSwain, 14 S. C., 38; Kennedy v. Reaves, 15 S. C., 549; Nicholson v. All, 43 S. C., 459; Graham v. Seignious, 53 S. C., 13S; Youmans v. Moore, 69 S. C., 350, distinguished from this.</p>

<p>Before J. E. McDonald, special Judg'e, York, December, 1903.</p> <p>Action by Pinckney Anderson ag-ainst Southern Railway. From judgment for plaintiff, defendant appeals.</p>

Before Purdy, J., Marlboro, July, 1904. Action by Marlboro Wholesale Grocery Co. against Geo. W. Brooke.

<p>1. An Exhibit to a complaint stating a cause of action may be referred to to give the complaint the required definiteness and certainty, and a plaintiff cannot object to the consideration of this exhibit for that purpose.</p> <p>3. Wars. — Whether the will in question charges the bequest of an annuity on a particular lot of land, on account of the inartificial! character of the will, is left open to be determined when the facts as to the invironment of the testator and the condition of his estate are before the Court.</p>

Before DanTzeer, J., Colleton, August, 1904. Action by Savannah Grocery Co. against T. J. Rizer. Prom order dissolving attachment, plaintiff appeals. cites: This Court obtained jurisdiction of the person of defendant by reason of motion to vacate: 43 S. C., 376; 37 S. C., 231; 12 Pet., 330; 20 S. C., 104; 22 S. C., 540; 36 S, C., 378; 44 S. C., 177. Judgment of clerk on necessity for publication is conclusive: 41 S. C., 22; 31 S. C., 45, 366; 50 S. C., 192; 20' S. C., 506.

<p>Petition in original jurisdiction of this. Court for writ of prohibition against Board of Directors of State Dispensary by J. M. Weeks.</p>

Before Purdy, J., Florence, March term, 1904. Action by Annie E. and Julia E. Willoughby against T. C. Willoughby. Defendant appeals from judgment in favor of plaintiffs. cites: A promise to make a gift cannot be enforced: 14 Ency., 2 ed., 1008 to 1030. cites: The moral obligation ñxes the consideraticm: Cowp., 290; 42 Am. R., 325; 39 Am'. Dec., 634; -6 Md., 430; 2 Bail., 57; 14 S. C., 292; 20' B. R. A., 764; 4 Md., 476; 39 Am.

Before Krugh, J., Abbeville, February term, 1904. Action by D. R. Mitchiner against Western Union Telegraph Co. From; judgment for plaintiff, defendant appeals. Mr. Gary cites: Defense that injury was caused by negligence of plaintiff is not affirmative defense: 59 S. C., 535; 51 S. C., 79; 21 Fncy., 516; 17 Am. St. R., 598; 68 S. C., 318. cites: Improper transmission of telegram- raises presumption of negligence: 69 S. C., 545; 43 L. R. A., 214; 25 Fncy., 1 ed., 831.

<p>Trespass — Right oE Way — Telegraph Co. — Condemnation.—Where one tenant in common grants permission to a telegraph company to construct and maintain a telegraph line across the common property, another tenant cannot maintain an action against the company for trespass and damages by reason of such construction, unless the company has committed a trespass in doing something not properly incident to the exercise of the right granted, or in injuriously exercising the right in a negligent manner, but his remedy is by condemnation.</p>

Before Klugh, J., Greenville, April, 1904. Action by John H. Maxwell against National Bank of Greenville.

<p>Attachment — Bond.—An Undertaking in an attachment proceeding may be signed on behalf of plaintiff by an attorney of record on the authority of a telegram from an associate attorney to the effect that plaintiff authorized him to sign the undertaking in his behalf.</p>

Before Townsend, J., Union, May, 1904. Action by Wm. W. Jones against Western Union Telegraph Company. From order refusing' to strike out allega-' tions in complaint, defendant appeals. cite: What are irrelevant allegations: 50 S. C., 67; 60 S. C., 390; 65 S. C., 437; 66 S. C., 134.

Before Gary, J., Richland, April-, 1904. Action by Clerks’ Benevolent Union against Knights of Columbus, by the following complaint: “Plaintiffs above named, complaining on behalf of themselves and all other members and shareholders in the association conducted under the name of Clerks’ Benevolent Union, by way of affidavit and complaint, allege: “1.

<p>Before Townsend, J., Darlington, May, 1903.</p> <p>Action by S. P. McNair et -al. against J. W. Moore et al. From Circuit decree both parties appeal.</p>

<p>Before Gary, J., Sumter, July, 1903.</p> <p>Action by Walter James against Northwestern Railroad Co. From Circuit order reversing judgment of magistrate court, plaintiff appeals.</p>

Before Dantzler, J., Orangeburg, July, 1904. Action by Jane E. Snider, executrix, and Earle H. Snider, executor of the will of William J. Snider, against the legatees, devisees and heirs at law of William J. Snider.

Before Purdy, J., Lee, April 12, 1901. Proceedings in magistrate court by A. M. Lee to! eject as trespassers Caleb B. Chaplin, Patsy Chaplin, and Curtis Fields. Held: as contended by defendants on the appeal from the magistrate, that the magistrate was without jurisdiction; and he erred in not so holding. “First.

<p>1. Payments. — Finding that debtor did not direct application of payment reversed on the ground that debtor wrote and mailed to creditor, on day that money was expressed to him, a letter in which he directed application of the payment, which was not received by creditor; receipt of creditor applying payment otherwise than as directed in lost letter being promptly returned to creditor with a letter directing paying as directed in lost letter.</p> <p>2. Interest. — Open Account secured by mortgage which provides that in case of sale of mortgaged property, proceeds should be applied “to the discharge of said debt and interest and expenses,” should draw interest from date it is due.</p>

Before Gary, J., Richland, June, 1904. Action by Independent Steam Fire Engine Go. against!