Volume 72 — South Carolina Reports

Before W. C. BenET, special Judge, Spartanburg, September term, 1903. Action by Claude Thomasson against Southern Railway. From judgment for plaintiff, defendant appeals. cites: Evidence., of acls of third parties inadmissible: 7 Ency., 1 ed., 58; 16 Ency., 1 ed., 462; 25 S'. C., 30. 'Unreasonable ordinances are vent: McQuetin on Ord., sec. 276; 21 Ency., 985; 28 Am. St. R., 609; 41 Id., 230; 48 Id., 419; 47 Id., 114; 46 Id., 390; 66 S. C., 194.

Petition in the original jurisdiction of this Court by William M. Davidge, of the city of Brooklyn, N. Y., for delivery to him by writ of habeas corpus, his children, Alicia Hayne Davidge and Robert Stewart Davidge, then in possession of their grand-father, Theodore B. Hayne, of this State.

<p>Appeal — Dismissal—Discretion.—A Circuit Judge has power to dismiss an appeal for want of pi'osecution and in so doing there is no abuse of discretion.</p>

<p>Before Townsend, J., Barnwell, March, 1905.</p> <p>Action by Frank H. Creech against B. R. Long, on the following complaint:</p> <p>“The complaint of the above named plaintiff respectfully shows to the Court:</p> <p>“1st. That the defendant above named, a farmer being engaged in the cultivation of the soil for his means of support and livelihood, as well as for that of his family, applied to the plaintiff above named, on or about the 23d day of February, A. D. 1904, for advances in fertilizers to assist him in the making of said crops in his business as a farmer, in said State and county, and agreed then and there that said crops, so grown by him during the current year and whereon he proposed and did use the fertilizers hereinafter set forth and described, should be a security or pledge for said advances in favor of said plaintiff, and to this end defendant agreed to execute to the plaintiff such security upon said crops, together with the chattel mortgage on certain and sundry live stock hereinafter set forth and described.</p> <p>“2d. That the plaintiff, relying upon said agreement on said defendant’s part to execute and deliver security as aforesaid upon said crops to be grown as aforesaid, agreed to advance to the defendant standard fertilizers and acids to the extent of one hundred ninety and 65-100 dollars, to be used by the defendant as aforesaid in the production of his crops for the then current year, grown and to be grown upon all that tract of land, upon which the defendant resides in said county, known as the Holman place, near the town of Barnwell, which was secured to be paid to the plaintiff on or before the 15th day of October, A. D. 1904, by an agricultural or other lien or security upon said crops to be planted upon said place as aforesaid, together with a chattel mortgage or bill of sale of the defendant’s stock described as follows: One white horse mule, named Jack, about twelve years old; one white mare mule, named Beck, about ten years old; and one sorrel mare, named Julia, about seven years old.</p> <p>“3d. That when the time came to haul away the fertilizers to the said place, defendant received the fertilizers and hauled the same away to the extent of one hundred and sixty-one and 00-100 dollars, upon the further promise that as soon as he had finished hauling, that he would forthwith execute the said security upon the said crops and upon the said live stock aforesaid; but plaintiff alleges that the defendant, in derogation of his said promise and agreement and with intent to defraud this plaintiff, thereafter failed and refused, and still fails and refuses, to execute the said security upon said crops and said live stock as aforesaid, in spite of the fact that defendant used the said fertilizers in the cultivation and making of said crops as aforesaid, enjoying the benefit of said fertilizers and the credit extended as aforesaid by the plaintiff, to plaintiff’s damage as aforesaid in the sum of $161, the balance of said amount agreed to be advanced not having been taken up by the said defendant.</p> <p>“4th. That the defendant has disposed of most of his crops, and has failed and refused to pay the plaintiff any part of said advance made upon the strength of his promise and agreement as aforesaid; but defendant has still a large part of his crops in his possession, to wit: a good portion of his cotton crop, which is in merchantable bales of cotton, as well as corn, fodder and other provisions, which plaintiff is informed and believes defendant intends to dispose of for the purpose of defeating the rights of this plaintiff as above stated, unless plaintiff’s rights are safeguarded by the orders of this honorable Court.</p> <p>“5th. That defendant is totally insolvent and plaintiff remediless at law, and unless the courts of equity will interfere to protect plaintiff’s rights, plaintiff is without remedy, and said advances will be a total loss to this plaintiff.</p> <p>“Wherefore, plaintiff prays that the contract above stated be declared by this Court to be an equitable lien by way of mortgage upon said crops and live stock aforesaid; that the defendant be restrained and enjoined from disposing of said crops by sale or otherwise, until the rights of the plaintiff may be ascertained in this suit; that the said property be seized by the Court and sold by the master, and the proceeds applied to the costs of this suit and the payment of this indebtedness, and for such other and further relief as to the Court may seem meet and proper.” Verified.</p> <p>Prom Circuit order refusing motion of defendant, he appeals.</p> <p>cites: Two causes of action being blended together, motion is remedy to have them stated separately: 70 S. C., 108; 43 S. C., 221; 68 SC., 207. Court canuwt decree specific performance of agricultural lien: 3 S. C., 46.</p> <p>cite: Injunction bond not required for restraining order pending return to rule: Code of Proc., 240, 241, 244; 27 S. C., 408; 5 S. C., 159; 51 S. C., 379. Complaint states only one cause of action: Code of Proc., 188; 15 S. C., 10; 3o’S. C., Ill; 49 S. C., 95; 48 S. C., 173; Acts 1901, 623. Not necessary to allege that agreement was in writing: 5 Rich., 90; 5 Rich. Eq., 180. Whether the alleged agreement created an equitable lien zvill be determined on the merits: 27 S. C., 415-; 45 S. C., 388; 47 S. C., 307; 49 S. C., 478; 48 S. C., 175; 26 S. C., 136; 26 Ency., 2 ed., 29; 28 Ency., 94, 95, and notes.</p>

<p>Jurisdiction- — Magistrates—Claim and Delivery. — An action for the possession of chattels of the value of $100, and for $75 damages, or in case the chattels can not he returned for their value, $100, and $75 damages, is not within jurisdiction of magistrate.</p>

<p>Before Purdy, J., Saluda, October term, 1904.</p> <p>Action by C. G. Barr against James A. Satcher. Prom order granting nonsuit, plaintiff appeals.</p> <p>cites: 68 S. C., 363; 27 S. C., 364.</p>

Before Gagr, J., Fairfield, February term, 1904. Action by Thos. E. Delleney et cl. against The Winnsboro Granite Co. From order granting nonsuit, plaintiffs appeal. Mr. Hartaban cites: Nonsuit improper: 44 S. C., 45; 45 S. C., 45, 46; 48 S. C., 421; 67 S. C., 243. Ten years adverse possession confers title: 50 S. C., 457; 39 S. C., 18; 63 S. C., 423; 62 S. C., 193; 60 S. C., 401.

<p>Motion in this Court by plaintiff to set aside taxation of costs by clerk of this Court.</p>

<p>1. New Trial. — There being evidence which, if accepted by the jury, would support a verdict, it is not legal error to refuse to set it aside.</p> <p>2. Common Carrier — Freight.—Charge that it is the duty of a common carrier of freight to deliver goods to consignee is corrected by a subsequent instruction that in 1899 it was duty of common carrier to unload freight in its warehouse and give the consignee a reasonable time to remove it, and if then destroyed without fault of carrier, no liability attaches.</p>

Before Aldrich, J., Chesterfield, January, 1905. Action by Carrie E. Pollock, W. P. Pollock, M. H. Stacey and E. E. Stacey against James W. Pegues.

<p>Before Gary, J., Spartanburg, September, 1904.</p> <p>Indictment against Harry Dean for murder. From sentence, defendant appeals on the following exceptions:</p> <p>“1. That his Honor erred in permitting the witness," J. W. Smith, while testifying, to read his testimony given at the former trial, the Court holding that he had a right to do so for the purpose of refreshing his recollection as to the correctness of what he was testifying to in this trial. The error being, that the witness had no right to be allowed access to that testimony while on the stand, the State thereby improperly and illegally getting to the jury the testimony of their witness given at the former trial, which was more to its liking, and thereby also, in effect, contradicting their own witness, in violation of the rules of evidence.</p> <p>“2. That his Honor erred in not permitting the witness, Lewis McMillan, to testify as to the declaration made to him by the defendant as he was leaving home that day upon the trip which ended in the homicide. The error being, that such declaration was permissible as being explanatory of the defendant’s conduct, made contemporaneously with his departure from home.</p> <p>“3. That his Honor erred in excluding the following from the statement of what Mrs. McMillan would testify if present, to wit: ‘that the defendant stated, upon leaving home about half an hour before the shooting of Miller McKinney, that he was going to Sam Nesbitt’s to get some watermelons, and that then he was going to help his father on the farm.’ The testimony being properly admissible as being the expression of the defendant, indicating the purpose of his movement about one-half hour before homicide, ■indicating a peaceable purpose.</p> <p>“4. That his Honor erred in not permitting the witness, Martha Dean, to testify to acts of violence committed upon her by the deceased a few months before the homicide, notwithstanding the defendant knew of those acts of violence before and at the time of the homicide; his Honor holding that the rule is that only the general character for violence of the deceased can be proven, and not any specific acts of violence, even if the defendant knew of them. Such ruling is directly opposed to the decisions of courts of appeal in this State, beginning with the case of the State v. Smith, 12 Richardson.</p> <p>“5. That his Honor erred in not allowing the defendant to testify as to the particulars of the difficulty which he had heard prior to the homicide had taken place between the deceased and Martha Dean; his Honor erroneously ruling that it was not competent to go into the particulars of any previous difficulty which the deceased had had with any one, even if such particulars were known to the defendant prior to the homicide, thereby overruling the decisions of the Court of Appeals and the Supreme Court of this State.</p> <p>“6. That his Honor erred in making the same ruling in reference to the difficulty between the deceased and C. S. Jones, and in not permitting the defendant or said C. S. Jones to testify in reference to it, notwithstanding the fact that said defendant was informed of the particulars of said difficulty prior to the homicide, and which difficulty was a recent occurrence. The error being the same as in the last exception.</p> <p>“7. That his Honor erred in making the same ruling in reference to the difficulty between the deceased and W. I„. Clyde and in not permitting the defendant or said W. L. Clyde to testify in reference to it, notwithstanding the fact that said defendant was informed of the particulars of said difficulty prior to the homicide, and which difficulty was a recent occurrence. The error being the same as in the last exception.</p> <p>“8. That his Honor erred in excluding the following portion of A. J. Sutiles’ testimony: ‘Was present at Sloan’s store when the difficulty arose between Clyde and the deceased. Clyde and McKinney had been engaged in playing crackaloo. McKinney was sitting on a box. He and Clyde were cursing each other. McKinney suddenly drew his pistol from his pocket and tried to shoot Clyde, but was prevented by witness and others from shooting him. Clyde was unarmed and drunk.’ The error being that the same was admissible under ‘State v. Smith/ the defendant having testified that he had heard of that difficulty, and the same having been a recent occurrence.</p> <p>“9. His Honor erred in not charging defendant’s fifth request, to wit: ‘A man is not bound, if his life is in danger or peril, to wait until he has received a fatal wound, or has some great bodily injury inflicted upon him, before he can take the life of his assailant,’ and by adding thereto this modification: ‘The law would not require a man, before he could act in self-defense, to wait until he was shot down, wait until he was hit.’ The error being, that the modification indicated to the jury that the defendant would have to wait until just a moment before being himself shot or hit before he himself could shoot; such modification being a serious abridgement of the right of self-defense of one in imminent danger.</p> <p>“10. That he erred in refusing to charge defendant’s sixth request, to wit: ‘The right of self-defense is founded on the law of nature and is not superseded by the laws of society. It is a right which every one brings into society, except so far as the laws of society have curtailed it. Every man has a right to defend himself from an attack threatening him with death or serious bodily harm.’ The error being, that said request was not objectionable and a declaration of the law approved by this Court and applicable to this case.</p> <p>“11. That he erred in not charging defendant’s nineteenth request, to wit: ‘The right of self-defense is recognized by the law; a man’s duty is to defend himself, and he is not bound to endanger himself by retreating, but if there is any reasonably safe way of escape, the law says he ought to do that and not take the life of his fellow-man. I don’t mean by that, he has got to go away from the place because his adversary is there — he is not bound to turn out of his way; but, after the immediate conflict is commenced, it is his duty to retreat from it, avoid taking a man’s life, to retire if he can do so safely, but not bound to do so otherwise, because he has the right to defend himself.’ The error being, that such request was a correct statement of the law defined by this Court and applicable to the facts of this case.</p> <p>“IS. That he erred in not charging defendant’s twentieth request, to wit: ‘The mere fact that A seeks B, whom he kills, is not of itself sufficient to deprive him of his right of self-defense. His intention in seeking such person may have been perfectly lawful. If A seeks B and finds him, with no felonious intent, or malice, or premeditated purpose to injure, and a difficulty results by a quarrel brought on by B, then A is not deprived of his right of self-defense. By the words “aggressor,” “being in fault,” or “provoking the difficulty,” the law means that there should be an intent to bring on the difficulty.’ The error being, that it is a cor rect statement of the law, applicable to the facts of this case and vitally important to the defendant.</p> <p>“13. That he erred in not charging defendant’s twenty-first request, to wit: ‘No matter what the purpose of A may be in seeking B, if when he meets him he does nothing to provoke the difficulty, and the deceased, B, assaults him, so as to endanger his life or threaten him with serious bodily harm, A’s right of self-defense is protected. Nor is this rule changed even if A has a dangerous weapon and uses it.’ The error being, that it is a correct statement of the law, applicable to the facts of this case and vitally important to the defendant.</p> <p>“11. That he erred in not charging defendant’s twenty-second request, to wit: ‘If A, in order to meet B, for no unlawful purpose, waits for him at any point, and if when he sees him coming goes out to meet him for such lawful purpose, that does not deprive him of the right of self-defense, as above charged.’ The error being, that it is a correct statement of the law, applicable to the facts of this case and vitally important to the defendant.</p> <p>“15. That he erred in charging the jury as follows: ‘Self-defense is based upon necessity; that is the basis of self-defense, and it means that it was necessary to kill him to keep him from killing you or doing you some serious bodily harm. Then ask yourselves this question: Was it necessary for the defendant to have shot the deceased as he described to have prevented the deceased from killing the defendant or doing the defendant some serious bodily harm? If it was not, then you should find him guilty.’ The error being, that he thereby reduced the defense to one of actual necessity instead of apparent necessity, and thereby also excluding a verdict of manslaughter.</p> <p>“16. That he erred in charging, as to manslaughter, as follows : ‘To illustrate: if two people are walking along the street, and suddenly meet and enter into a conversation and get into words, and from words into blows, and one, without intending to kill the other, strikes him and from the effects of that, while he is mad, strikes him and death results, the law would not call that murder; because there was no malice aforethought. They got into a quarrel, they were in a dispute, they got into a fight, he didn’t intend to kill him, he hit the lick while he was mad that resulted in death; the law says you ought not to have killed him, you ought not to have had a fight, but you did it while you were angry and in hot blood, and the law throws that veil of charity around your action and does not hold you to strict accountability, and reduces the killing from murder to manslaughter.’ The error being, that in a sudden mutual combat, arising from a sudden quarrel, the defense is or may be manslaughter, even if the defendant did strike the blow intending to kill. By this charge, his Honor practically prevented the jury from finding the defendant guilty of manslaughter, if the jury believed that the defendant intended his shots to have fatal effect, even though they should be of the opinion that the shots were fired in hot blood, in mutual combat arising from a sudden quarrel.”</p> <p>Mr. Wilson cites: Declarations of defendant as to his purpose was admissible: 3 McC., 230; 2 N. & McC., 596; 13 S- C., 463; 1 Green. Ev., sec. 108; 2 Hill N. Y., 248; 1 Bish. Crim. Proc., sec. 1086; 2 Id., 625, 1 Wegrinom on Ev., secs. 102, 1732; 11 Cush., 213, 216; 145 U. S., 295; 40 N. J. L-, 495; 157 Mass., 185; 68 S. C., 421. Character of deceased for violence may be shown by proof of specific acts: 12 S. C., 430; 29 S. C., 42. Right of self-defense is a law of nature: 18 Ga., 704; 17 Ala., 578; 30 Miss., 619; 55 S. C., 36. Party bringing on a difficulty is only barred of plea of self-defense when he intended to bring it on or soúght deceased for a quarrel: 45 E. R. A.r 687; 51 S. W., 214.</p> <p>cites: To make out manslaughter it is not necessary that there be an absence of an intent to kill: 2 Hill, 619; 38 S. C., 346; 50 S. C., 422; 1 Spear., *389; 47 S. E. R., 676; 66 S. C., 421, 476; 34 S. C., 120; 21 Ency., 172; 48 Cal., 436; 4 D. & B., 491; 50 S. C., 423; 31 Ind., 511; 87 la., 144; 72 Am. Dec., 711; 35 Mich., 16; 12 Nev., 390; 29 Ohio St., 186; 1 Sneed, 409; 3 Bax., 463.</p> <p>cite: Witness’ attention may be called to previous statements differing from one he is now making: McKelvey on Ev., 329, 330. Self-serving declarations denoting intention are incompetent: 68 S. C., 424. Character must be shown by general reputation-: Whar. Crim. Law, &c., 641; 12 Rich., 430; McKelvey on Ev., 162; 1 N. & McC., 266; 48 $. C., 249; 68 S. C., 424.</p>

<p>Sheriffs — Constables—Fees.—Under the salary act, Code 1902, sec. 1032, providing that the magistrate at Marion may appoint a constable at a salary of $150, or he may direct his papers to the sheriff, who shall receive the same compensation for serving them as the constable would be entitled to, where the magistrate appoints no constable, but has his papers served by the sheriff, the sheriff may collect the fees provided for constables by Code 1902, 3121.</p>

Before Watts, J., Lancaster, October term, 1904. Action by Jno. B. Mackorell against Lancaster and Chester Railroad Co. From order of nonsuit, plaintiff appeals. cites: As to construction of penal statutes: 16 S. C., 187. Nonsuit zvas error: 67 S. C., 91, 122; 16 S. C., 397; 19 S. C., 32. Item .of freight could not support a nonsuit: 16 S. C., 397, 16, 636; Buist v. Mer. Co., 67 S. C., 53 S. C., 156.

Before Watts, J., Greenwood, April, 1905. Action by S. J. Riley against Town of Greenwood, and its Town Council. From judgment overruling demurrer, defendants appeal. cites: Municipal corporation cannot be sued for damages except under some statute: 44 S. C., 173. Tozvn is not liable for tort of its officers: 44 S. C., 173; 58 S. C., 63; 1 Hillj 570; 43 S. C., 30. Plaintiff’s remedy is prohibition: 33 Ency., 3 ed., 196; 14 S. C., 437; 1 Mills Con.

Before Watts, J., Fairfield, September term, 1904. Action by J. C. Keys against The Winnsboro Granite Co. From judgment for plaintiff, defendant appeals on the following- exceptions: “I. Because his Honor erred in refusing defendant’s motion for a nonsuit on the ground that there was no evidence showing negligence on the part of the defendant company, causing or being the proximate cause of the injury complained of by plaintiff.

<p>Before Townsend, J., Greenville, May term, 1904.</p> <p>Indictment against Fletcher Byrd and Palmer Chriswell. From sentence on verdict of guilty, defendants appeal.</p> <p>cites: As to power of officers to arrest without warrant: 4 Black. Com., 392; 2 N. & McC., 475; 17 S. C., 58; 50 S. C., 405; 59 S. C., 297; 64 S. C., 321.</p> <p>cites: Indifference of juror is within discretion of Judge: State v. Hays, 70 S. C. As to right of officer to arrest: 36 S. C., 493; Crim. Code, secs. 3, 26, 590; 48 S. C., 249.</p> <p>cites: As to constitutionality of lazo authorizing arrests without zuam.nt: 101 Mich., 419; 75 N. Y., 362; 59 N. H., 589; 34 Minn., 1; 84 Am. St. R., 682, 688; 17 S. C., 60; 70 S. C., 72; 68 S. C., 312.</p>

Before Ellis G. Graydon, special Judge, Laurens, December, 1904. Action by Annie C. Davis against Charleston and Western Carolina Railway Co. From order of nonsuit, plaintiff appeals. (no argument for reporter). cite: No proof of negligence: 66 S. C., 25669 S. C., 529.

Before Townsend, J., Anderson, June,-1904. Action by Margaret E. Hollingsworth against Southern Railway. Prom order of nonsuit, plaintiff appeals. cite: There being evidence of negligence, nonsuit was improper: 25 S. C., 53; 41 S. C., 415, 440; 63 S. C., 130.

<p>Before Gage, J., Cherokee, March term, 1904.</p> <p>Action by Joanna Smith against Western Union Tel. Co. From judgment for plaintiff, defendant appeals.</p> <p>cite: Christianity is a part of the common law: 2 Strob., 524; 57 S. C., 52.</p>

<p>Before Watts, J., Fairfield, October, 1904.</p> <p>Action by Jno. K. Ragsdale against Southern Railway. From judgment on Circuit affirming magistrate judgment, defendant appeals.</p> <p>cites: As to refreshing memory of witness: 14 S. C., 450.</p> <p>cite: Declarations of agent within scope of authority admissible against principal: 1 Speer, 24; 27 S. C., 63; 28 S. C., 157; 39 S. C., 441; 45 S. C., 183; 53 S. C., 449; 56 S. C., 144. As to proof of loss of goods by carrier: Jones on Ev., sec. 180; 2 Bail., 157, 421; 2 Rich., 286; 9 Rich., 205; 26 S. C., 258; 39 S. C., 55; 2 Ralp. & Mack. Dig., 116, 125. As to refreshing memory of witness: 14 S. C., 144; Jones on Ev., sec. 880; 41 S. C., 149.</p>

Before F. B. Gary, special Judge, Cherokee, November, 1904. Action by Otis Fletcher Willis against Cherokee Falls Mfg. Co. From judgment for plaintiff, defendant appeals. cite: Master is not insurer of safety of place: 41 S. C., 391. As to instructions to 'jury: 11 Ency. P. & P., 145-9. Plaintiff must show that injury was caused by negligence of defendant: 69 S. C., 530; 39 S. C., 44; 179 U. S., 663. Negligence cannot be inferred from dangerous machinery: 113.

<p>Action by Mary F. Cannady against Anna L. Martin. From judgment for defendant, plaintiff appeals.</p>

<p>Before Watts, J., Saluda, August, 1904.</p> <p>Action by M. C. Wise against R. Lee Werts. Brom Circuit judgment reversing magistrate judgment, plaintiff appeals.</p>

<p>Before Townsend, J., Greenville.</p> <p>Action by E. L. McCarter against Greenville Traction Co. From judgment for plaintiff, defendant appeals.</p> <p>cites: Conductor was not bound to carry on this car any passengers except those for which it was chartered: 32 Am. St. R., 482; 1 Red. on Ry., 98; Thomp. on Car., 306.</p> <p>cite: If person is received on special car he becomes passenger: 5 Ency., 540; 115 N. C., 631; 63 S. C., 374; 28 S. C., 401; 3 L. R. A., 159; 2 L. R. A., 166. Passenger need not be ejected by physical force: 6 Cyc., 559; 86 Ga., 641; 23 R. R. A., 777; 9 Am. N. R., 476. Ground for punitive damages is well supported: 64 S. C., 519.</p>

<p>1. Negligence — Jury—Contributory Negligence. — Allegations that plaintiff, a man with only one arm, started from the station with the conductor, who then signalled the train ahead, and told plaintiff that he had better get on, that when he reached the train it was moving, that he caught hold and attempted to board it but was knocked off by a trunk standing near the track, state facts from which the jury may infer negligence; and if contributory negligence be inferable, that is for jury.</p> <p>2. Railroads — Ticket Agent. — There is no provision of law in this State requiring- a railroad company to have a ticket agent at its ticket office after the arrival of the train.</p> <p>3. Demurrer. — Judge should not draw natural inferences from allegations in a complaint when passing on a demurrer.</p> <p>4. Negligence — Jury.—Whether it was negligence in a man having only one arm to board a moving train, without assistance of the conductor, is for jury.</p>

Before Townsend, J., Abbeville, June term, 1904. Indictment by Town Council of Due West against Isaac Fuller. From order of Circuit Court sustaining judgment of municipal court, defendant appeals. cite: Section 2005, Code of 1902, is unconstitutional: Con., art. III., sec. 34; Code, 1902, 2003-4-5; 51 S. C., 51; 59 S. C., 110; 60 S. C., 501; 62 S. C, 247; 66 S. C., 201. (oral argument).

Before Gage, J., Fairfield, May, 1904. Motion in action by Thos. H. Ketchin, executor of Mary C. Rion, against Preston Rion and others. From Circuit order the defendants, M. H. Rion, administratrix, with will annexed of J. H. Rion, and individually, Lucy Rion Boozer, Hanna Rion Williams, Lucile Rion, Willie C. Rion and M. H. Rion, Jr., appeal. Mr. Hanahan cites: 21 S. C., 179; 60 S. C., 283; Bail. Eq., 461; 68 S. C., 269, 245; Code, 1902, 2550; 9 Rich.

Before Townsend, ]., Aiken, winter term, 1905. Action by B. C. Sharpton against Augusta and Aiken Railway Co. From judgment for plaintiff, defendant appeals.

Before Purdy, J., Sumter, January, 1905. Action by Francis C. White and others against Jno. J. Britton, Jr., and others. From order appointing a receiver, plaintiffs appeal. Messrs. Jennings & Manning cite: On point decided: Code of Proc., 265; subs. 1, 6, 8, 9 ; 27 S. C., 408; 19 S. C., 286, 486; 2 Wall., 521. cite: On point decided: Kerr, on Rec., 12; Beach on Rec., secs. 739, 740; 99 N. Y., 602; 69 S. C., 256; Code of Proc., 265, sub 6; 23 Ency., 2 eel., 1032, 1129; 3 Pom.

Before Watts, J., Chesterfield, April, 1904. Action by Jno. H. Brantley and others against J. Westley Bittle and others. From Circuit decree, defendants, J. Westley Bittle and Mary U. Liles, appeal. cite: As to construction of the will: 44 S. C., 522; 27 S. C., 479; 11 Rich. Eq., 207; 6 Rich. Eq., 37; 1 Hill Ch., 358; 37 S. C., 264. As to the revival of the judgment: 21 S. C., 74; 35 S. C., 387; 43 S. C., 255; 40 S. C., 762; 39 S. C., 263.

Before Gage, J., Greenville, November, 1904. Action by Anderson Forrest against S- T. McBee. From order of nonsuit, plaintiff appeals. cite: As an action for wrongful attachment, nonsuit should not have been granted: Drake on.At., 6 ed., 153-5; SO S. C., 520; 3 Ency., 245; 52 Mo. App., 1; 68 Tex., 640; 7 Ala., 622; 73 Am. Dec., 254; 96 Am. Dec., 380; 18 Fed. R., 312; 12 Fed. R., 266. Where a process is void all assisting in its service are liable as trespassers: 2 Rich.

<p>Before Joseph A. McCueeough, special Judge, Oconee, November term, 1904.</p> <p>Indictment against Earle Rochester for murder of Walter Mills. From sentence, defendant appeals on following exceptions:</p> <p>“I. Because the presiding Judge erred in charging the jury as follows: ‘A great deal has been said and written as explanatory of malice and to illustrate malice, and men may have different conceptions of what that legal term means. After all, what is malice? It is the intentional taking of human life.’ It is respectfully submitted that the presiding Judge erred in giving this definition of malice, and that the same was calculated to mislead the jury, because, (a) proof of an actual intent to kill does not of itself show the existence of malice, for an intentional killing may be excusable, as where it is done in self-defense, or it may be only manslaughter, as where the killing is done in the heat of passion, caused by sufficient provocation; (b) intent to kill is only evidence of malice, and the existence of the intent to kill is material as bearing on the degree of the crime; (c) a killing with malice is where the act is done without legal excuse, extenuation or justification, for if there be any legal excuse, extenuation or justification, the act is not malicious and the homicide is not murder, though it be done with a settled purpose to kill, but it will be, according to circumstances, either manslaughter or justifiable or excusable homicide; (d) malice is the chief characteristic— the grand criterion — by which murder is to be distinguished from other species of homicide, and in no case does the intentional taking of human life constitute murder unless it is done with malice; that is, with a mind regardless of social duty and deliberately bent on mischief, with a wickedness, of disposition, hardness of heart, cruelty or recklessness of consequences.</p> <p>“II. Because the presiding Judge erred in charging the jury: ‘Now, Mr. Foreman and gentlemen of the jury, if you believe beyond a reasonable doubt that the defendant intentionally killed Walter Mills, that the purpose which actuated the act — that the purpose which actuated' the pulling of the trigger, was — I mean to kill him because I want to kill him — if that be the purpose, and that be the motive, it makes no difference what may have been the surrounding circumstances, that is murder.’ It is submitted that his Honor erred in thus charging, and the same was calculated to mislead the jury, because, (a) intent is thereby made identical with malice; (b) malice is a deliberate and well-formed purpose to take life without justification or excuse; (c) intent is not synonymous with malice, because if the intent be to kill in self-defense it is not unlawful; (d) motive or purpose were made equivalent to malice, whereas motive and purpose are evidence from which malice may be inferred, and the absence of evidence suggesting a motive or purpose may be considered in favor of the accused; (e) the right to take life intentionally in self-defense because the accused wants to protect himself, was ignored in the failure to state the important limitation or qualification to the effect that the intentional taking of life must be without justification or 'excuse; (f) it does make a difference as to what may be the surrounding circumstances of a killing, for if it be inferred from the surrounding circumstances that the accused took the life of his adversary to save his own life, or to save himself from serious bodily harm, the killing is excusable.</p> <p>“III. Because the charge of his Honor upon defendant’s ninth request to charge was erroneous and misleading to the jury. The request and charge are as follows: ‘A person in the rightful possession of lands may lawfully approach any person wrongfully upon the same, and may order the person trespassing to quit the land, and, in the event of refusal so to do, may use such force as may be necessary to eject such trespasser; and if the person in possession is resisted by force in the attempt to eject such trespasser, he may legally defend himself and repel force by force, using such force as the fierceness of the attack may render necessary to defend himself. When a person is on his own premises, he may stand his own ground. He is-not obliged to retreat, but may stand his own ground and repel force by force, and not retreat, but may pursue his adversary until he find himself out of danger; and if, in the conflict between them, it becomes necessary to kill his adversary, such killing is excusable, and the defendant should be acquitted. Well, with reference to the ninth request: I can’t tell you when, how or under what circumstances one should retreat in order to avoid taking human life. Of course, a man on his own premises has a greater right there than anybody else, but there might be circumstances which would require him to avail himself of every reasonable way of escape to avoid taking humañ life on his own premises. It is a question for you to say, from all the circumstances in the case, whether or not the defendant acted as a man of ordinary firmness and reason would have acted;’ whereas, his Honor should have charged the jury, (a) that when a man is attacked on\ his own premises he may stand his ground — he is not obliged to retreat — but may stand his ground and repel force / by force and not retreat, for the law recognizes this dif-jj ference between being attacked on one’s own premises and somewhere else, and the charge was erroneous in not recog-1 nizing this difference; (b) in charging that there might be'¡¡ circumstances which would require him to avail himself of every reasonable way of escape to avoid taking human life on his own premises, without laying down some rule or principle that would serve as a guide in determining what circumstances, if any, would require a man to retreat when attacked on his own premises; (c) leaving it for the jury to say what circumstances would require a man to retreat on his own premises, without giving the jury any rule or principle, thus limiting or qualifying the law of ‘the castle,’ and thereby leaving the jury to determine both the law and the facts constituting such exception or limitation, if any there be.</p> <p>“IV. Because his Honor erred in ruling that the witness, John Hoops, could not testify that on the'Sunday afternoon preceding the Thursday on which the killing occurred, that he, Hoops, warned defendant, Earle Rochester, not to go over there, meaning to Walter Mills’ house, witness having told about the meeting on that Sunday afternoon between Mills and Rochester at the latter’s residence, the way in which Mills approached and left the house, the manner of his leaving, and what was said, the seeing of Walter Mills and other men at his house and yard by Hoops and Rochester while in the latter’s garden a few minutes after Mills had left Rochester, to all of which the witness had testified; for the reason, (a) that the witness having testified as to part of conversation, it was competent and relevant for him to give the whole conversation; (b) it was competent and relevant as tending to show an apprehension of great danger on the part of the defendant, and, therefore, his good faith in acting as he did at the time of the fatal encounter, and to negative the idea of malice on the part of the defendant.</p> <p>“V. Because his Honor erred in excluding the answer of Mrs. Annie R. Rochester to the question, ‘When did you tell him to go up there?’ meaning to the west end of his field, where defendant was at work, when she testified she saw Walter Mills conje down the hill, cross the bridge, and come on through the bottom towards the end of the field where defendant was then working, Mills having thus returned in a short time after witness saw him leave Rochester in the bottom, and heard Mills say he would return in a short time and fix him (Rochester). It is respectfully submitted that the witness having testified without objection as follows, T told him (Rochester) to come to this end, on the upper side of the place, * * * because I didn’t want any trouble with him (Mills),’ it was competent and relevant for witness to answer said question; it was competent and relevant to show such substantially contemporaneous facts and circumstances as were calculated to explain or elucidate the entire transaction, also as tending to show the state of mind of defendant immediately before and at the time of the fatal encounter, time being a material element, and it being sought by said testimony to explain the entire transaction and the conduct of the parties immediately before and at the time of the fatal encounter.”</p> <p>Mr. Herndon cites: As io exception I.: 2 Bish. Cr. R., 3 ed., 613, etseq.; 21 Ency., 133, 172, 201; 50 S. C., 423; Cr. Code, 108, 120; 2 Rich. R., 182; 6 Ency., 282; 19 Ency., 623; 54 S. C., 241; 39 S. C., 109; 68 S. C., 304. As to exception III.: 33 S. C., 125; 25 Ency., 273, n. 6; 158 U. S., 550; Desty. Crim. R., sec. 31; 57 Ind., 80; 29 Ohio St., 186; 52 Miss., 23; 25 Ency., 275; 29 S. C., 201; 40 S. C., 349; 50 S. C., 405; 52 S. C., 452. As to exception IV.: 13 S. C., 466; Cr. Code, 108; 12 Rich. R., 430; 22 Ark., 354; 5 Ga., 48, 85.</p> <p>The latter cites: As to exceptions I. and II.: 43 S. C., 206; 1 Arch. Cr. P. & P., 8 ed., 746; 4 Bl. Com., 198, 199, 200; 1 East P. C., 215; 12 Ela., 127; 7 N. Y., 385; 34 S. C., 16. As to exception III.: 121 Pa. St. R., 172; 162 U. S., 473; 15 S. W., 51; 90 Ga., 701; 62 Ark., 310; 9 Hous., 415.</p>

<p>Negligence. — A Railroad company is not liable for damages to the inmates of a dwelling caused by bricks thrown at it by its servants from a moving freight train.</p>

<p>Before Watts, J., Chester, November, 1904.</p> <p>Action by Susan F. DuBose, in her own right and as administratrix of Susan C. Kell, against John A. Kell and others. The plaintiff complaining of the defendant alleges :</p> <p>“1. That heretofore, to wit: on or about the 24th day of December, 1902, Susan C. Kell, late of the county of Chester, and State of South Carolina, departed this life, seized in fee and possessed of the following described lands and tenements, to wit:</p> <p>“(1) All that certain tract, parcel or plantation of land, lying, being and situate in the county and State aforesaid, known as the ‘Old Kell Home Place,’ containing thirteen hundred acres, more or less, and bounded as follows: * * *</p> <p>“(2) All that certain parcel, tract or plantation of land, situate, lying and being in the county and State aforesaid, known as the Rocky Creek Place, and located * * *</p> <p>“(3) All that certain parcel, piece or tract of land, lying, being and situate in the county and State aforesaid, known as the Parish Place, containing 100 acres, more or less, and bounded * * * And leaving as her heirs at law, the plaintiff, Sarah F. DuBose, and the defendants, Susan A. Boylston and Eunice R. Cloud.</p> <p>“2. That the said Susan C. Kell was the wife of B. E. Kell, the elder, also late of said county and State, who predeceased his wife and departed this life on the 8th day of August, 1902, leaving of force his last will and testament, which was duly admitted to probate by the probate court for Chester County, on the 20th day of September, 1902, and by which will he devised all his property, real and personal, unto his wife, the said Susan C. Kell, for life, and after her death to his nephew, Dr. B. E. Kell, also late of said county and State, and appointed his said nephew, Dr. B. E. Kell, executor of his said will.</p> <p>“3. That at the time of the marriage of the said B. E. Kell and the said Susan, and up to the time of his death, the said B. E. Kell had no property of his own and no business or occupation which produced any income, but lived with his said wife and upon her property, devoting his entire time to the management and care thereof.</p> <p>“4. That at the time of her death, and for many years previous thereto, and also previous to and at the time of the death of her said husband, the said Susan C. Kell was in weak bodily health, had lost her mind, was blind and an imbecile, and was attended during this time by the said Dr. B. E. Kell, her said husband’s nephew, as her physician, and during the last few years of her life she was placed by the said Dr. B. E. Kell and her said husband under the control and in the care of relatives and friends, who kept her under restraint and away from her home, under the directions of her said husband and the said Dr. B. E. Kell.</p> <p>“5. That upon information and belief, plaintiff alleges that the said Susan C. Kell left her will of force, by which she devised the whole of her estate, both real and persqnal, to her husband, the said B. E. Kell, but that said will was never probated or put on record, and if the same exists, plaintiff avers it is inoperative and ineffectual to pass any estate or interest in the said lands hereinabove described to the said B. E. Kell, her husband, by reason of the fact that the said B. E. Kell predeceased the said Susan C. Kell, the testatrix, and the devises and legacies therein named lapsed.</p> <p>“6. That after the death of the said B. E. Kell, the said Dr. B. E. Kell, who was the nephew of the said B. E. Kell, the elder, and his executor, and had for a number of years and ever since he was a boy resided in the family of the said B. E. Kell, took possession of all of the property, real and personal, of the said Susan C. Kell, and managed and controlled it, ostensibly for her benefit and in her behalf.</p> <p>“t. That upon information and belief, plaintiff alleges that shortly after the death of his said uncle, and while the said Dr. B. E. Kell was in possession and control of all of the property, real and personal, of the said Susan C. Kell, and while the said Susan C. Kell was an imbecile and in weak bodily health and confined at the house of one W. C. Brown, away from her home and where she had been placed for that purpose by the said Dr. B. E. Kell and his said uncle, the said Dr. B. E. Kell, being at the time the physician of the said Susan C. Kell, and well knowing her to be incapable of attending to any business or understanding the same, fraudulently obtained from the said Susan C. Kell a .deed conveying to himself all the property, real and personal, which the said Susan C. Kell owned or was entitled to; which said alleged deed has never been put on record, but is referred to by the said Dr. B. E. Kell as dated October 27th, 1902; and if the same exists, this plaintiff alleges it to have been obtained while the grantor was under duress, while she was an imbecile and incapable of legally executing the same, and that the same is without consideration, fraudulent, null and void, and should be set aside.</p> <p>“8. That upon information and belief, plaintiff alleges that after the death of the said Susan C. Kell, the said Dr. B. E. Kell continued in possession of the said lands of the said Susan C. Kell, hereinbefore described, and that shortly before his death, to wit: on or about the 9th day of September, 1903, the said Dr. B. E. Kell purchased the interest of the said Susan A. Boylston and of the said Eunice R. Cloud, as heirs at law of the said Susan C. Kell, in and to the said lands hereinabove described, their said interests being one-third (1-3) undivided interest therein each, taking' conveyance of the said interest of Susan A. Boylston to himself, and of the interest of the said Eunice R. Cloud to his sister, the defendant, C. Cloud Kell, but that none of said deeds have been put on record.</p> <p>“9. Upon information and belief, plaintiff alleges that the said Dr. B. E. Kell died on October 30th, 1903, and that shortly before his death he executed a conveyance, upon the consideration of love and affection, by which he attempted to convey all of said lands to his brothers and sisters, the defendants, John A. Kell, W. R. Kell, S. H. Kell, D. H. Kell, T. G. Kell, C. Cloud Kell and Eunice Sarah Kell, which said deed was not recorded until November 20th, 1903, and which deed, if valid, is effectual to pass only the one-third interest in the said lands conveyed, as this plaintiff is informed, by the said Susan A. Boylston to the said Dr. B. E. Kell.</p> <p>“10. That plaintiff, in her own right, and the said defendants, John A. Kell, W. R. Kell, S. H. Kell, D. H. Kell, T. G. Kell, C. Cloud Kell and Eunice Sarah Kell, are tenants in common of the aforesaid premises, the shares of each therein being as follows: Plaintiff is entitled to one-third (1-3) undivided interest therein in fee, and the defendant, C. Cloud Kell, to eight-twenty-first (8-21) interest therein, and each of the following defendants to one twenty-first (1-21) undivided interest therein, to wit: John A. Kell, W. R. Kell, S. H. Kell, D. H. Kell, T. G. Kell and Eunice Sarah Kell.</p> <p>“11. That the plaintiff and the said defendants, John A. Kell, W. R. Kell, S. H. Kell, D. H. Kell, T. G. Kell, C. Cloud Kell and Eunice Sarah Kell, own no other lands in common in this State, so far as plaintiff is informed and believes and advised, but this plaintiff alleges that the said Susan C. Kell owned a life estate only in the following described lands and tenements, situate, lying and being in the said county and State, to wit: * * * which said lands plaintiff alleges, upon the death of the said Susan C. Kell, passed to this plaintiff and her sisters, the defendants, Susan A. Boylston and Eunice R. Cloud, as tenants in common, and as such they are each entitled to one-third (1-3) undivided interest thereof in fee, and that the plaintiff and the said Susan A. Boylston and Eunice R. Cloud own no other lands in common in this State, so far as plaintiff is informed or believes.</p> <p>“13. That on the 19th day of September, 1903, plaintiff was duly appointed administratrix of the estate of the said Susan C. Kell, and that all claims against the said estate that have been presented to this plaintiff have been paid, and there are now outstanding against the said estate no debts,' so far as this plaintiff is informed.</p> <p>“13. Upon information and belief, plaintiff alleges that shortly after the death of the said Susan C. Kell, the said Dr. B. E. Kell, being in possession and control of all of the said lands hereinabove described, and of the stock, farming utensils and implements, provender and stock of grain, etc., thereon, and belonging to the said estate, rented the said home place, together with the stock, provisions, farming implements and machinery thereon, to one Wm. A. Gladden, for the year 1903, at and for the rental of one-half of all the crops raised upon the said lands, and that the said Dr. B. E. Kell also rented out the remainder of the lands which the said Susan C. Kell owned, including the said Eishing Creek place, the rental upon which said Fishing Creek place amounted to, as this plaintiff is informed and believes, six bales of cotton; and that the defendants, the brothers and sisters of the said Dr. B. E. Kell, collected and received and appropriated to their own use the- entire rents from the said lands, and plaintiff avers that they should account and pay over to this plaintiff her proper share or proportion thereof.</p> <p>“14. Upon information and belief, plaintiff alleges that all of the defendants, the brothers and sisters of the said Dr. B. E. Kell, deceased, are non-residents of this State and all reside in the State of North Carolina, except the defendant, W. R. Kell, who resides in the State of Mississippi, and that the said defendants own no other property in this State other than their interest in the said estate of the said Susan C. Kell, and that despite the notice in writing given by this plaintiff to the tenants upon the said lands not to pay over the said rents for the year 1903 to the said defendants, the said defendants, or their agents, came down with their wagons from North Carolina, and seized and carried away all of the rents for the year 1903, and took them out of this State, and if permitted to make away with the rents for the present year, which are fast accruing, this plaintiff will suffer irreparable loss and injury.</p> <p>“15. Upon information and belief, plaintiff alleges that for a number of years there has not been upon the said Home Place of the said lands hereinabove described, more than enough wood-land and timber for the ordinary purposes and keeping of said plantation, and that despite this fact, the said defendants, the brothers and sisters of the said Dr. B. E. Kell, have suffered a tenant upon the said place to erect and run a saw mill and to cut and saw up a considerable quantity of the said timber and the same, or a large portion thereof, to sell and dispose of and to commit waste upon the said Home Place.</p> <p>“16. Upon information and belief, that a reasonable and fair rental value of the said Home Place is about thirty-five bales of cotton, weighing 500 pounds each, per annum, but that the said defendants, the brothers and sisters of the said Dr. B. E. Kell, now deceased, have rented the said Home Place to the said Wm. A. Gladden for the year 1904 for only twenty bales of cotton, and that the said lands are not being rented for their full value, whereby this plaintiff is suffering irreparable injury.</p> <p>“Wherefore plaintiff prays,</p> <p>“1. That a receiver be appointed to take charge of the said lands and to preserve and manage the same pending the final determination of this action, and to preserve the same from waste, to collect the rents accruing therefrom, pay the taxes thereon, to procure tenants for the same for the ensuing year, and that in the meantime the said Wm. A. Gladden and the other tenants upon the said lands be enjoined and restrained from committing any waste thereon, and from paying over the rents for the present year to the defendants or any of them, or to any person other than the said receiver, so to be appointed.</p> <p>“2. That the deed alleged to have been made by the said Susan C. Kell to the said Dr. B. E. Kell be declared null and void, and that the same be delivered up to be cancelled.</p> <p>“3. That the said defendants, John A. Kell, W. R. Kell, S. H. Kell, D. H. Kell, T. G. Kell, C. Cloud Kell and Eunice Sarah Kell, do account to this plaintiff, and pay over to her one-third of all of the rents arising from the said lands for the year 1903 and of such portion of the rents for 1904 as the said defendants may have received.</p> <p>“4. That the said lands be partitioned between the plaintiff in her own right and the several defendants in the proportions as hereinbefore alleged, or in case that should be found impracticable, that the said lands be sold under the order of this Court and the proceeds thereof be divided between the plaintiff and the several defendants as the interests of said parties shall be determined.</p> <p>“5. For such other and further relief as plaintiff may be entitled to, and for the costs of this action.”</p> <p>From order refusing motion to make complaint more definite and certain by stating causes of action separately, defendants appeal.</p> <p>Mr. Marion cites : Plaintiff seeks to vindicate two primary rights: Pom. R. & R., secs. 452, 459; 34 S. C., 273. If complaint states more than one cause of action, motion should have been allowed: 24 S. C., 39; 15 S. C., 10; 34 S. C., 270; 27 S. C., 623; 44 S. C, 143; 48 S. C, 179; 51 S. C., 495; 43 S. C., 22; 68 S. C., 257; 70 S. C., 113; Pom. R. & R., secs. 447, 451; Code of Proc., 181, 188.</p> <p>Mr. Green cites: What is a cause of action? 9 S. C., 452; Pom. R. & R., secs. 554-5; 17 S. C., 410; 50 S. C., 67; 13 S. C., 324; 49 S. C., 95; 48 S. C., 165; Pom. R. & R., sec. 453; 43 S. C., 267.</p>

Before Frank B. Gary, special Judge, Cherokee. Action by Buey Hagins against Aetna Bife Insurance Co. From judgment for defendant, plaintiff appeals. cites: Where an order is given in payment insured should be notified of non-payment: 1 W. R., 600; 114 Ill., 535; 53 Mich., 141; 54 A. R., 354; 10 B. R. A., 534; 2 Fncy., 289. Payment of note given for premium is not condition precedent to validity of contract: 93 Ind., 7; 101 Mass., 558; 45 N. J. R., 543; 42 Mich., 19.

Befoi-e James Y. Cuebreath., special Judge, Newberry, August term, 1904. Indictment against John Reeder for murd.er. From sentence, defendant appeals. cite: Proof required to establish plea of self-defense: 33 S. C., 132. To obtain verdict of manslaughter, defendant not required to show he was without fault: 9 Ency., 581, 583, 586; 7 S. W. R., 862; 90 Mo., 608; 17 Nev., 435; 17 Ga., 497; 33 S. C., 133.

<p>Before Watts, J., Richland, July, 1904.</p> <p>Action by Frederick Harman against Southern Railway. From, judgment for defendant, plaintiff appeals on following exceptions:</p> <p>“1. Because his Honor erred in charging the jury as follows : ‘Now, I charge you as a matter of law, that the defendant here, a corporation duly incorporated under the laws of this State, if it is the Greenville and Columbia Railroad, then under the act of the legislature of 1845, I believe it is, it gave to that railroad an easement, right of way, over the land of anybody it ran through for one hundred feet on each side from the center, for railroad purposes alone.’ Thereby giving the jury to understand that if the Greenville and Columbia Railroad Company, under which the defendant company claimed, built or ran its railroad through the tract of land described in the complaint, it thereby acquired under the act of 1845 (11 St., 348), a right of way over said land for one hundred feet on each side from the center of its road; whereas, he should have charged them that this would have been the case only in the absence of any written contract with the owner of the land. (Act of 1845, 11 St., p. 352, sec. 11.)</p> <p>“2. Because his Honor erred in charging the jury as iollow : ‘So> if you believe that the Greenville and Columbia, or Columbia and Greenville Railroad, ran through the land which Harman now claims that he is the owner of, and that they built that road under the charter of 1845, or if they got the easement or right of way from the owners of the land at that time. — Harman does not claim it was his then, as the deed he has introduced shows he got the land about 1880 or 1881; but if it is the same land, and if the owners of it in 1845 gave to the Greenville and Columbia Railroad the right of way over there, and the Southern absorbed the Greenville and Columbia Railroad and are now the owners of that railroad, and operating that railroad, I charge you as a matter of law, while the title to the land may be in Hannan,it is subject to the easement of the Southern Railroad, that is, the Southern has the right to one hundred feet from the center of the track for railroad purposes.’ Thereby giving the jury to understand that if the Greenville and Columbia Railroad Company acquired a right of way over said land by contract with the then owner, such right of way measured one hundred feet on each side of the road from the center thereof, without regard to the terms of the contract and without regard to whether it had been recorded, or whether the plaintiff, Harman, was chargeable with any knowledge or notice thereof; whereas, he should have charged them that in case of a written contract with the owner, the extent of the right of way would in the first instance be controlled by the terms of the contract, but that no such contract would be valid against a subsequent purchaser for value without notice unless recorded.</p> <p>“3. Because his Honor erred in charging defendant’s first request to charge, as follows: ‘Under the pleadings in this case, the plaintiff is required to show, that he has such title in tire land upon which the fence in question is located, and right to- the possession thereof, as would make the acts alleged in the complaint, a trespass thereon. To do so, he must show that he has title in fee or such an estate as would give him exclusive right to> the use thereof as ag'ainst any rightful claim or title of the defendant.’ Thereby giving- the jury to' understand that plaintiff could not recover unless his right to the use of the land on which the trespass was alleged to have been committed was exclusive of any right of the defendant to the concurrent use of the same; whereas., he should have charged the jury that even if the land on which the trespass was alleged to have been committed lay within the limits of the defendant’s right of way, yet the owner of such land was also entitled to' use it for any purpose not incompatible with defendant’s easement thereon, and that if the alleged trespass amounted to an interference with this right of the owner, it would, if established by the evidence, entitle him. to recover.</p> <p>“4. Because his Honor erred in charging defendant’s second request to charge, as follows: ‘Under the deed of conveyance of right of way from L. E. Folk to Greenville and Columbia Railroad Company, introduced in evidence, I charge you that said company, and its successor or successors, have the right to the use of one hundred feet on each side of the railroad track through the lands referred to in said deed of conveyance, free from any and all obstructions inconsistent with the use of same for railroad purposes, unless the same be put there with the consent of said railway company, or its successor or successors.’ Thereby giving the jury to understand that, under the said deed of conveyance from. L. E. Folk, the Greenville and Columbia Railroad Company, and its successor or successors, had a right of way measuring one hundred feet on either side of the railroad track, absolutely and without regard to. whether a lesser width might not have been sufficient, and also, without regard to whether the said deed had been recorded, or whether the plaintiff was chargeable with knowledge or notice thereof; whereas, he should have charged them that under said deed said company and its successor or successors had acquired a right of way of such width only, not exceeding- one hundred feet, as might be sufficient for the purposes therein stated, but that even then such deed would not be valid against the plaintiff if they believed from the evidence that he was a subsequent purchaser of the land for.value without knowledge or notice of such deed of conveyance.</p> <p>“5. For that his Honor erred in charging the jury defendant’s fourth request, as follows: ‘The theory upon which title by adverse possession rests, is that such possession for the required time affords a legal presumption that a title has been made, but has been lost; but where the party, against whom title is asserted by adverse possession, never had the power to make a title, there is no. room for such presumption. Now, as a railroad company has no power to sell or alien any part of its road-bed, track or right of way, it cannot be presumed that it had done what it never had the right to do. Therefore, title by adverse possession cannot 'be acquired to such road-bed, track or right of way, or part thereof.’ The error consisting in his Honor’s charging the jury, that title to any part of the defendant’s right of way could not be acquired by adverse possession.</p> <p>“6. Excepts because his Honor erred in charging defendant’s ninth request as follows: ‘The plaintiff cannot acquire title by adverse possession to the right of way actually covered by the track of the defendant, or to any land or lands necessary to the operation or maintenance of its railroad under its charter.’ The error consisting in charging' that title by adverse possession to any part of the right of war'- or land necessary to defendant’s railroad could not be acquired by plaintiff.”</p> <p>cite: Defendant was liable for tearing down any part of plaintiff’s fence outside of the right of way: 63 S. C., 269; 60 S. C., 389; 20 S. C., 263. Deeds to real estate must be recorded to- bind subsequent purchasers: 7 Stat., 232; Rev. Stat., 1872, 422; 15 Stat., 5; 16 Stat., 92; Gen. Stat., 1882, 1776; Rev. Stat., 1893, 1968; Code, 1902, 2456; 13 Stat., 384; 5 S. C., 146; 1 McC., *268. Owner of land has right to use it in any way not incompatible with use of railroad: 63 S. C., 266; 60 S. C., 389; 20 S. C., 263.</p>

<p>1. Pleadings. — The words, “danger thereof,” in a complaint alleging that the defendant “so carelessly and negligently interfered with, cut and dug in and upon said large pile of acid * * * and so negligently and carelessly failed to notify plaintiff of the danger thereof that same fell over,” &c., may be construed to refer to. the danger arising from the unsafe condition of the said pile.</p> <p>2. Nonsuit. — This Court will not consider grounds of nonsuit not relied on on Circuit, but if there be an entire failure of evidence tending to support the material allegations of the complaint this Court will affirm an order of nonsuit erroneously based in part on grounds made.</p> <p>3. Risks — Master and Servant. — The servant assumes any danger arising during the progress of the work, which is a consequence reasonably and naturally to be anticipated from the nature of the employment.</p> <p>4. Master and Servant. — The master is not liable for the failure of the “boss” to give notice to a servant engaged in moving a large pile of acid of the danger of its falling, where such danger is not hidden or unusual but known to the servant.</p>

Before Buchanan, J., Spartanburg, fall term, 1903. Action by W. L. Shores against Southern Railway Co. From judgment for plaintiff, defendant appeals. cites: Appellant is not liable for culvert built by lessor without demand to remove or unless it is too• small: 47 S'. C, 476; 52 S. C., 404; 54 S. C., 98; 58 S. C., 359. No liability for water doming in natural way in natural channel: 13 S. C., 99.

<p>1. Bill op Lading — Freight.—A Common Carrier has no right to deliver freight shipped “to order notify” upon payment by party to be notified of amount of draft attached to bill of lading without surrender or presentation to carrier of bill of lading, as carrier was not concerned about the contract of sale, but could only deliver the freight on production of the bill of lading properly indorsed to indorsee, and upon delivery otherwise is liable to shipper for full value of goods.</p> <p>2. Agency cannot be shown by the declarations of the agent alone.</p>

Before Gary, J., Laurens, October term', 1904. Action by J. S’. Machen against Western Union Telegraph Co. From judgment for plaintiff, defendant appeals. The former cite: Declaration of agent irrelevant: 70' S-. C., 16. Nonsuit should have been granted on whole case: 70' S. C., 422. There being no> evidence of intentional wrong, nonsuit should have been granted: 3 Wait. P'rac., 160; 64 S;. C., 492; 69 S. C., 550; 66 S. C., 542; 35 S. C., 486; 69 S'.

Before Watts, J., York, November, 1904. Action by Samuel Biggers against Catawba Power Co. From judgment for plaintiff, defendant appeals on the following exceptions: “I. Because his Honor erred in allowing the plaintiff’s witness, Cope Williamson, to testify against the objection of defendant as follows: ‘No, sir.

<p>1. Issues — Appeal.—In an action to set aside a deed where the defendant raises the issue of title in her, all issues referred to master by consent, on appeal from Circuit decree, this Court has no jurisdiction of findings of fact pertaining to issue of title.</p> <p>2. Tax Deed — Sinking Fund Commission. — Failure to proceed against personal property of defaulting taxpayer before offering his lands for sale as delinquent, is a fatal defect which renders null and void a deed executed by Sinking Fund Commission on such sale.</p> <p>3. ’Ibid. — Estoppel.—Where a husband bids off his own lands at tax sale for his wife, pays the bid with his own money, she knowing that he had personal property enough to pay the taxes, and by reason of auch sale not having changed her position in any way, nor made any expenditures, he is not estopped from attacking the deed.</p> <p>4. Ibid. — Ibid.—Feattd.—If the husband were instrumental in having the land offered for sale as delinquent, with intention of hindering the enforcement of a judgment against him, and the deed had been made in his lifetime, equity would have left the parties where it found them, with title in the wife; but if not made in his lifetime, the power conferred by him on officers to make it, was revoked and the title remains in him.</p>

<p>Before Purdy, J., Richland, January, 1905.</p> <p>Action by Bertha A. Rogers and J. E. Rogers against Western Union Telegraph Co. Brom order overruling demurrer, defendant appeals.</p> <p>cite: 53 S. W., 866; 23 S. W., 961; 13 S. W., 70; 54 S. W., 830, 853; 12 S. W., 954; 71 S. C., 29; 5 Ency. P. & P., 269; 6 Ency. P. & P., 600; 4 Ency. P. & P., 269-272; Joyce on Elec. E., secs. 800-7; 70 S- C., 539; 45 N. Y., 744; 46 N. E., 358; Thom. Elec. E, sec. 313; 7 S. C., 715; 22 S. W., 534; 28 S. W., 699; 26 S. W., 216; 54 N. E., 774; 53 S. W., 686; 22 S. W., 96; 13 S. W., 70; 12 S. W., 954; 16 Nev., 222; 98 Mass., 237; 28 S. W., 1107; 30 S. W., 1105; 35 S. E., 468; 37 S. E., 479; 41 S. E., 881; 46 N. E., 358; 54 N. E., 774; 73 S. W., 1043; 41 S. W., 469.</p> <p>cite: 62 S. C., 232; 6 L. R. A., 444; Hale on Dam., 266; 124 N. C., 464; Sedg. on Dam., 878; 109 N. C., 533; 5 S. C., 371; 73 la., 190; 21 Am. & Eng. Inc. Cas., 182; 132 N. C., 324; 135 N. C., 466; Pom. on Rem., 522; 12 S. C., 5; 35 S. C., 383; 70 S. C., 472.</p> <p>Statement oe Pacts.</p> <p>This is an appeal from an order overruling a demurrer to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. It will, therefore, be necessary to refer to the complaint, which alleges:</p> <p>“1. That the plaintiff, J. E. Rogers, is the husband of the plaintiff, Bertha A. Rogers, and is joined with her under section 135 of the Code of Procedure.</p> <p>“2. That the defendant is, and at the times hereinafter mentioned, was a telegraph company, duly incorporated by and under the laws of the State of New York, and doing business in South Carolina, having offices in the city of Columbia, S. C., and the town of Darlington, S. C., for the transmission of messages by wire between said points.</p> <p>“3. That on the 17th day of June, the plaintiff, Bertha A. Rogers, being in the city of Columbia, S. C., was taken sick in childbirth, and at 8 o’clock A. M. on the said day, her husband, J. E. Rogers, having had a prearrangement with her mother to. be with her at such time, as was her custom theretofore, presented to and filed with the defendant, at its office in Columbia,. S. C., the following message, to wit:</p> <p>“ ‘Columbia, S. C., June 17, 1904.</p> <p>“ ‘Mrs. L. M. P. Rogers, care of Hallie Blackwell, Darlington, S. C.</p> <p>“ ‘Mama. Come on first train. Answer message.</p> <p>“ ‘J. E. Rogers.’</p> <p>“4. That the defendant at said time and place received said message, agreeing to deliver the same promptly as directed, and in consideration therefor then and there was prepaid to the defendant its regular charges.</p> <p>“5. That at said time the plaintiff, Bertha A. Rogers, was grievously ill in bed and anxiously awaiting the arrival of her mother, and in immediate need of her help and attention.</p> <p>“6. That although Hallie Blackwell, in whose care the telegram was directed, was at his place of business not far from the office of the defendant, in the town of Darlington, S. C., the defendant wilfully, wantonly, recklessly and negligently failed and omitted to1 deliver said message as directed, but mailed the same to Mrs. E. M. P. Rogers, by Rural Free Delivery, Darlington, S. C., in consequence of which wilful, wanton, reckless and negligent conduct of the defendant, its agents and servants, said message was not received by the said Mrs. L. M. P. Rogers until some days after it was delivered to. said defendant for transmission as. aforesaid.</p> <p>“7. That by reason of the defendant’s said wilful, wanton, reckless and negligent failure to promptly deliver said message as directed, the plaintiff, Bertha A. Rogers, was deprived of the presence, aid, comfort and attention of her mother, and subjected to great mental anguish and suffering, to her damage $1,950.”</p> <p>The defendant demurred to the complaint on the following grounds:</p> <p>“1. Because the complaint fails to allege any duty owed by the defendant to the plaintiff, Bertha A. Rogers, the real party in interest, and for whose benefit this action is brought, for the breach of which it is liable in damages, nor does it show that,there was on behalf of said plaintiff any cause of action against the defendant.</p> <p>“2. Because it appears upon the face of the complaint that this action is brought solely upon the damages alleged to have been sustained by a stranger to the message, namely, Bertha A. Rogers, whose interest does not appear from the message itself, nor is it alleged in said complaint that it was otherwise disclosed to the defendant.</p> <p>“3. Because it appears upon the face of the complaint that the plaintiff, Bertha A. Rogers, is not entitled to recover for mental anguish, and that the action is brought for her benefit.” The demurrer was overruled and the defendant appealed.</p>

<p>Before Keugh, J., Anderson, May, 1904.</p> <p>Action by W. H. Tucker against J. B. Tucker, administrator of Jas. Brown, C. E. Irby and W. W. Smith. The following is the Circuit decree:</p> <p>“One James H. Brown, on 1st January, 1886, made his note for $50 in favor of Mrs. C. E. Irby, and executed a mortgage of twelve acres of land in Anderson County to secure the payment thereof. On 1st June, 1892, Mrs. Irby assigned the note and mortgage to W. W. Smith,.in the following terms, indorsed on the mortgage:</p> <p>“ ‘For value received I hereby assign, transfer and set over the within mortgage and the note — -it was given to secure to W. W. Smith.’</p> <p>“On May 1st, 1893, W. W. Smith assigned the same note and mortgage in identical terms to W. H. Tucker, The description of the land in the mortgage is as follows: ‘Twelve acres of land, more or less, situated in the county of Anderson and State aforesaid, on the public road leading from Anderson to Greenille C. H., bounded on the north by lands of James Martin, on the east by James Martin, on the south and west by lands of Mrs. C. E. Irby, more fully described in a deed from D. H. Hammond to James H. Brown.’ The deed from Hammond to Brown thus referred to is in evidence, and describes the lands as ‘a portion of the Wadsworth survey, bounded,’ etc. The date of this deed is November 12th, 1885, and it was duly recorded. Hammond derived his title to the land from Harvey Waldrop through a deed dated May 16th, 1879, and recorded January 22, 1881, which refers to ‘the old deeds made to said Waldrop by James Martin and Jeremiah Tims.’ ‘The old deeds’ thus referred to appear to be lost and there is no evidence that they were ever recorded, but it appears from the testimony of R. P. Martin and J. H. Elrod, the one a son and the other a grand-son of James Martin, who reside in the neighborhood of the said land, that James Martin conveyed twelve acres of this land to Jeremiah Tims more than forty years ago, before the Civil War, that Tims conveyed to Waldrop the ten acres, and that James Martin conveyed two more acres of the original tract to Waldrop about the year 1870. The interest of James Martin in the said land was derived through a deed dated March 18, 1836, and recorded September 2, 1839, from Benjamin F. Sloan and George Seaborn, executors of the will of Gen. John Baylis Earle, deceased, by which they leased to James Martin, his heirs and assigns, for the term of sixty-five years, a tract of 470 acres, ‘being land of the estate of Thomas Wadsworth, deceased, left for the benefit of his poor school.’ By the recitals of another deed in evidence, that of R. G. Wallace and others, as trustees to Mrs. Beulah C. Brown, it appears that this land was granted to Thomas Wadsworth on May 4, 1785, and that it was leased from the treasurer of the Wadsworth Poor School by Gen. Earle, on March 20, 1831.</p> <p>“The said twelve acres of land was mortgaged by James H. Brown, signing himself as J. H. Bryant, on August 8, 1891, to the Sylvester Bleckley Company, and this mortgage has been assigned to W. H. Tucker, the plaintiff herein. The Hammond deed is referred to also for the description and identification of land. The amount for which the said mortgage was given was $66, with interest at eight per cent., payable annually; and there was paid on it $11 on May 2, 1892. It appears that W. H. Tucker took possession of the land at the time the mortgage was assigned to- him and received the rents and profits therefrom for seven, years.</p> <p>“It should have been stated above that there were credits on the Irby mortgage debt of $5 paid on December 25, 1886, $5 on December 26, 1887, $20 on December 12, 1888, and $3.50 on April 15, 1889; and that said debt bore interest at ten per cent, per annum until paid in full.</p> <p>“In the year 1892, the trustees of the Wadsworth Poor School had the tract of land of which the twelve acres involved in this suit are a part, resurveyed, and by a deed bearing date January 9, 1893, conveyed the same to Mrs. Beulah C. Brown; and on August 23, 1890, Mrs. Brown conveyed the twelve acres in question to' Mrs. C. E. Irby, wbu is now in possession under, said conveyance.</p> <p>“This action is brought against the administrator of James H. Brown, who died in October, 1901, and Mrs. C. E. Irby and W. W. Smith. It is alleged that the said Irby and Smith each guaranteed the payment of the mortgage debt first above mentioned at the time the same was assigned by them, respectively. The plaintiff seeks a judgment for the amount of the two mortgage debts against the defendants, Irby and Smith, on their alleged guarantees of the first mentioned mortgage, and for foreclosure and sale of the mortgaged premises. It will be observed that the heirs of James H. Brown are not made parties, but no question is made upon that ground.</p> <p>“Only Mrs. Irby answered the complaint. She denies that either she or W. W. Smith guaranteed the payment of the mortgage assigned by them, alleges that Brown had only a leasehold of the mortgaged premises which the plaintiff well knew, that the same expired in the year 1900, and that the said mortgagees now have no lien on the land, that she now owns said land under the deed of Beulah C. Brown; for a second defense, she alleges that the plaintiff is guilty of laches, in that he held the said mortgage for more than six years and until it ceased to be a lien by reason of the expiration of the lease above mentioned, although he well knew that the said lease would expire in the year 1900, and failed and neglected to foreclose the same; for a third defense, that the action was not brought within six years from the time the note was due; and lastly, that the plaintiff had possession of the mortgaged land for eight years, and during that time he received the rents, which more than paid the mortgage debts.</p> <p>“The case was heard by me on the pleadings, the testimony taken by a referee and argument of counsel.</p> <p>“The evidence does not show- that there was any contract or guaranty independent of or separate from the written assignments- endorsed on the mortgage. No' guaranty is expressed in the assignments, nor can any be implied. Walker v. Scott, 2• N. & McC., 268; Tryon v. DeHay, 7 Rich., 12.</p> <p>“It is clear that the interest of Brown in the land mortgaged was only a leasehold. Of this fact the plaintiff had constructive notice through the registry of the antecedent deeds in the chain of title, and even if he, living as he did in the neighborhood of the mortgaged premises, had not actual notice, the references in the very mortgages which he took by assignment to the Hammond deed and the recital in that deed were sufficient to- put him- on inquiry leading- easily to the knowledge of the fact. The lease having expired, the land is no longer subject to the lien.</p> <p>“It is contended by the plaintiff that Mrs. Irby’s acquisition of the title to the mortgaged premises after her assignment of the mortgage, which contained a clause of general warranty, inured to the benefit of plaintiff; and that she is now estopped by the covenants contained in said warranty. But the said warranty was not her warranty. We have seen that she cannot be held even to have guaranteed the payment of the mortgage debt, still less the mortgagor’s title. Her assignment carried with it whatever right she had under the mortgage, and nothing more. The estate of the mortgagor was a leasehold which expired by the terms of the lease itself, and was no whit defeated or diminished by'her act in purchasing the fee simple estate left after the expiration of the lease. Not being a party to- the mortgagor’s warranty, and having done nothing to- impair the rights of the plaintiff as assignee of the mortgage, she is not estopped to- assert her title.</p> <p>“Since the defendant is not bound as guarantor of the debt or as warrantor of the title, the defense of laches can hardly arise or be sustained in her behalf. Nor, in my opinion, is the statute of limitation at bar. Under the view which I have taken of the liability of Mrs. Irby and Mr. Smith, the liability of the plaintiff to account for the rent of the mortgaged premises does not concern them. The administrator of Brown, the mortgagor, has not answered, and makes no question against the plaintiff’s claim. The plaintiff admits having received rent from the mortgaged land, but testifies that the same was used by Brown and that none of it was applied to the mortgage debt. There is no- evidence in rebuttal of this testimony. Under the evidence he is only liable for the rent actually received, not for rental value; and his account of the disposition of what was so- received must be taken as the fact. The amount due on the note set out in the first cause of action is $76.90', and that due on the note set out in the second cause of action $110.64.</p> <p>“It is ordered and adjudged, that as to1 Mrs. C. E. Irby and W. W. Smith, the complaint be dismissed with costs; and that the plaintiff have judgment against J. B. Tucker, as administrator of James H. Brown, deceased, for the sum of $187.54, with leave to issue execution therefor.</p> <p>“It is further adjudged, that the mortgages set forth in the complaint are no- longer liens on the real estate described therein.”</p> <p>The plaintiff appeals on the following exceptions:</p> <p>“I. Because the Circuit Judge erred in not sustaining the objections of plaintiff to the whole of the testimony of R. P. Martin and J. H. Elrod, and erred in predicating his decree upon any part thereof, because said testimony was incompetent and irrelevant, and had been objected to when offered, on the grounds: (a) That Mrs. Irby, having assigned in writing a mortgage deed which contained a clause of warranty of title in fee, she was estopped to- introduce any evidence to- show a leasehold estate in the mortgagor, (b) That this testimony was largely hearsay, (c.) That it was incompetent to prove by parol the existence and the termination of a lease, no foundation having been laid for the introduction of secondary evidence, and no notice to produce the lease being' given, and no evidence of its loss being offered, (d) That it was leading, (e) That it was incompetent to prove by parol evidence the contents of deeds describing the location, boundaries and amount of lands where the foundation had not been laid for the introduction of secondary evidence.</p> <p>“II. Because the Circuit Judg'e erred in finding as follows : Tt appears from testimony of R. P. Martin and J. H. Elrod, one a son and the other a grand-son of James Martin, who reside in the neighborhood of said land, that James Martin conveyed ten acres of this land to- Jeremiah Tims more than forty years ago-, before the Civil War; that Tims conveyed to Waldrop- the ten acres, and that James Martin conveyed two acres more of the original tract to Waldrop' about the year ’70.’ There being- no competent evidence to sustain such finding: (a).Mrs. Irby is estopped by her assignment of the mortgage from attacking the fee simple title of the mortgage, (b) Because no sufficient foundation was laid to' entitle defendant to offer evidence of the contents of the deeds from James Martin to1 Jeremiah Tims, and from Tims to Harvey Waldrop, and from James Martin to Harvey Waldrop, there being no sufficient foundation laid for the introduction of secondary evidence of the contents of such deeds, (c) Because such evidence was hearsay, and because the questions which elicited it were leading.</p> <p>“HI. Because the Circuit Judge erred in finding that: ‘The interest of James Martin in said land was derived through a deed dated March IS, 1836, and recorded September 2, 1839, from Benjamin Sloan and George Seaborn, executors of the will of Gen. Baylis Earle, deceased, by which they leased to James Martin, his heirs and assigns, for the term of sixty-five years, a tract of 470 acres, being land of the estate of Thomas Wadsworth, deceased, left for the benefit of his poor school; there being no competent evidence upon which to' predicate said finding, in that: (a) The deed from said Sloan and Seaborn, as executors to> Baylis Earle, was not put in evidence, (b) No- proof of its loss was offered, (c) No notice to produce this deed was given to plaintiff, along with notice as to other deeds, (d) No sufficient foundation was laid for the introduction of secondary evidence of the contents thereof, (e) No notice was given that a certified copy of said deed would be offered in evidence.</p> <p>“IV. Because the Circuit Judg-e erred in finding as follows: ‘By the recital of another deed in evidence, that of R. G. Wallace and others, as trustees, to Mrs. Beulah C. Brown, it appears that this land was granted to- Thomas Wadsworth on May 4, 1785, and that it was leased from the treasurer of the Wadsworth Poor School by General Earle on March 20, 1831,’ because: (a) No such deed is in evidence, (b) If such deed was offered in evidence, it was incompetent because Mrs. Irby was estopped to deny the title of the, mortgagor, (c) Because no foundation was laid for the introduction of a copy of that deed, and no- notice was given to- produce it. (d) Because, if it were permissible in evidence, it would be incompetent evidence to prove a grant by the State, (e) Because, even if the deed were in evidence, it would not be competent evidence to- prove a lease.</p> <p>“V. Because there is absolutely no- competent evidence that this land, covered by this mortgage, was ever a part of the Wadsworth lease, and there is no-.competent evidence that such a lease ever existed, or if it existed, that it has expired,.and the Circuit Judge erred in not so holding; and because the deed of R. G. Wallace and others, trustees to Mrs. Beulah Brown, is not competent evidence, for the reason that Mrs. Irby is estopped to- deny the validity of the title of the mortgagor, whose mortgage she assigned in writing, which mortgage contained a clause of warranty, and there is no evidence to identify this land as a part of that conveyed to Mrs. Beulah Brown.</p> <p>“VI. Because the Circuit Judge erred in holding' that ‘The.evidence does not sho-w that there was any contract of guaranty independent of the written assignment endorsed on the mortgage;’ the testimony of W. H. Tucker and the admission of Mrs. Irby, showing that there was such guaranty, and the evidence of W. W. Smith, showing that he assigned to- W. H. Tucker, with the same guaranty given to him by Mrs. Irby.</p> <p>“VII. Because the Circuit Judge erred in holding that no guaranty could be inferred from the written assignments; there being no saving clause in the assignments, such as ‘without recourse on me,’ or the like.</p> <p>“VIII. Because the Circuit Judge erred in holding, ‘It is clear that the interest of Brown in the land mortgaged was only leasehold;’ whereas, there is not a particle of competent evidence that this land was ever a part of the leased land, and it being' incompetent for Mrs. Irby to- introduce such evidence.</p> <p>“IX. Because the Circuit Judge erred in holding that ‘Plaintiff had constructive notice through the registry of antecedent deeds in the chain of titles;’ whereas, it is submitted, there is no competent evidence of any chain of title by which it appears that this lot of land was held on lease, nor is there anything whatever in the mortgage itself to suggest a doubt of the truth of the warranty therein contained.</p> <p>“X. Because the Circuit Judge erred in holding that ‘The lease having expired, the land is no' longer subject to the lien,’ for the reasons: (a) There is no competent evidence that this land was ever a part of the Wadsworth lease, (b) Even if it be held to be proved that it was covered by the Wadsworth lease, there is no' competent evidence as to the time of the beginning and the expiration of the Wadsworth lease.</p> <p>“XI. Because it being undisputed evidence that Mrs. Irby assigned in writing, without any clause of reservation, the mortgage sought to be foreclosed, which mortgage contains a clause of warranty of title, it was error in the Circuit Judge not to hold that Mrs. C. E. Irby was estopped to deny that the mortgagor’s estate was that of a fee simple, and is estopped to set up' a leasehold estate in the mortgagor.</p> <p>“XII. Because it being undisputed evidence that Mrs. Irby had, subsequent to the assignment by her, in writing, for valuable consideration of the mortgage sought to be foreclosed, acquired the title tO' the land covered by the mortgage, it was error on the part of the Circuit Judge to hold that such acquisition of title did not inure to the benefit of plaintiff, and render the land subject to the lien of the mortgage.</p> <p>“XIII. Because the Circuit Judge erred in holding that the warranty contained in the mortgage was not the warranty of Mrs. Irby, but should have held that it was her warranty.</p> <p>“XIV. Because the Circuit Judge erred in not holding that even if the warranty was not hers, Mrs. Irby, by assigning the mortgage in writing for valuable consideration, had estopped herself to deny the correctness of the warranty.</p> <p>“XV. Because the Circuit Judge erred in holding, ‘The estate of the mortgagor was a leasehold which expired by the terms of the lease itself, and was no1 whit defeated or diminished by her act in purchasing- the fee simple estate after the expiration of the lease;’ because: (a) There is no competent evidence that the mortgagor had only a leasehold, (b) There is no competent evidence that the lease, if it ever existed, had expired, (c) The mortgagee having assigned in writing- and for valuable consideration the mortgages sought to be set up, and having- concealed from her assignee that the estate was one of leasehold, has estopped herself to deny that the estate was, as appears upon the face of the paper, assigned and in the general clause of warranty, an estate in fee simple.</p> <p>“XVI. Because the Circuit Judge erred in holding that ‘Mrs. Irby, not being a party to- the mortgagor’s warranty, and having- done nothing to impair the rights of the plaintiff as assignee of the -mortgage, she is not estopped to assert her title;’ whereas, it is submitted: (a) That it appears from the evidence that she is a party to- the mortgagor’s warranty, (b) That by concealing- from her assignee that this was leasehold property, she misled him to his injury, and thereby impaired the rights of plaintiff as assignee, and is now estopped to- assert her title against him.</p> <p>“XVII. Because the Circuit Judge erred in ordering that the complaint be dismissed as to Mrs. Irby and W. W. Smith, but should have given judgment against them on the mortgage debt, which they had assigned in writing for value received, and guaranteed its payment, and which was never repaid to plaintiff.</p> <p>“XVIII. Because the Circuit Judge erred in finding that there was due on the mortgage of James H. Brown to Mrs. Irby, assigned to plaintiff, only the sum of $76.90; whereas, he should have found that there was due thereon the sum of $108.09, at the time of the filing of his decree; and in finding that the amount due on both mortgages was $187.54; whereas, he should have found that there was due on both mortgages the sum of $218.73.</p> <p>“XIX. Because the Circuit Judge erred in not giving judgment against Mrs. C. E. Irby and W. W. Smith for the amount due on the Brown mortgage, they having assigned the same in writing for valuable consideration, and having guaranteed its payment.</p> <p>“XX. Because the Circuit Judge erred in dismissing the complaint as to Mrs. C. E. Irby and W. W. Smith, because they having received valuable consideration for the assignment of the note and mortgage, and having guaranteed the payment thereof, and Mrs. Irby having concealed from her assignee, and he being ignorant that the mortgagor had only a leasehold interest in the land, and Mrs. Irby having acquired title to this land, it would be grossly inequitable to permit them to retain the consideration of the assignments; and to permit Mrs. Irby to hold the land absolved from the lien of the mortgage, without requiring them, to pay the mortgage debt.</p> <p>“XXI. Because the Circuit Judge erred in holding that the title of James H. Brown in the mortgaged premises was only that of a leasehold, since it appears by the evidence introduced by Mrs. Irby that this land was conveyed in fee simple to D. H. Hammond by Harvey .Waldrop1, by a deed dated November 19, 1879, and recorded in R. M. C. office January 22, 1881, and Hammond having conveyed the same land to J. H. Brown by deed dated November 12, 1885, recorded in R. M. C. office, November 15, 1885, and Brown having, in 1886, mortgaged the said land to Mrs. C. E. Irby, and in 1892, to1 Sylvester Bleckley Company, which mortgages were recorded, it is evident that J. H. Brown, the mortgagor, and those under whom he claimed, had continuous, open, notorious and adverse possession thereof, under claim of title in fee simple, for more than twenty years, and had acquired title by prescription.</p> <p>“XXII. Because the Circuit Judge erred in considering and predicating his decree upon the recitals contained in thé deed from' R. G. Wallace et al., trustees to' Mrs. Beulah C. Brown, for the reason that the deed was not properly before the Court; and that: (a) The original deed was not offered in evidence, (b) No notice to produce- was given, (c) No proof of its loss was offered, (d) No foundation was laid for the introduction of a copy, or of other secondary evidence of its contents, (e) It was not competent for Mrs. Irby to' offer such evidence designed to assail the mortgagor’s title.</p> <p>“XXIII. Because the Circuit Judge erred in holding that the reference in the mortgages assigned, to the Hammond deed and the recitals in that deed, were sufficient to put plaintiff on inquiry, and that they gave him constructive notice that this land was a part of the Wadsworth lease; because there was nothing in the recital of the mortgage to- suggest a doubt that the warranty of title therein contained was false, and plaintiff had right to rely upon that warranty, and to trust that the assignor would not assign to1 him a mortgage purporting to be on land held in fee simple, but which was only a leasehold estate, without giving' him notice thereof.”</p> <p>cite: As to estoppel: 67 S. C., Sil; 11 Ency., 421; 42 S. C., 351; 21 S. C., 209; 19 S. C., 216; 64 S. C., 310'; 2-7 S. C., 187; 10 S. C., 462; 2 Strob,, 309; 3 McC., 412; 17 S. C., 592; 59 E. R. A., 748. Twenty years possession wider claim of fee gives title to Wadsw-orth School lands: 40 S. C., 168; 69 S. C., 159. As to laches: 64 S. C., 296.</p> <p>cite: Effect of recitals in deed!: 20 Ency., 461, 463; 43 Am. Dec., 126; 25 $. C., 519; 26 S. C., 160. Guarantee of assignment cannot be implied: 2 N. & McC., 268; 7 Rich., 12; Jones on Mtgs., sec. 475; Hilliard on Mtgs., 363. As to laches: 43 S. C., 436; 62 S. C., 89; 67 S. C., 80. Mortgagor in possession must apply rents to payment of mortgage debt: Crabb’s Law of Real Est., sec. 2244; Jones on Mtg., secs. 1114, 1118, 1124.</p>

Before DantzuJr, J., Orangeburg, May, 1904. Action by Bernard Corbett and James Corbett against Jno‘. W. Bogle, Orrie D. Tarrant and Dennis S. Fogle. From Circuit decree defendants appeal. cite: Fogle having bid off lantd, could sell before con*veyance made: Par. on Con., 790, 793, 1212. Sale is valid after conñrmation, and camnot be attacked collaterally: Ror. on Jud. Sales, secs. 340, 317, 320', 331, 438, 440', 349, 354, 362, 369.

<p>1. Rule — Contempt—Jurisdiction.—A Circuit Judge has jurisdiction to issue a rule in contempt proceedings at chambers in a county in which he is the resident Judge other than the residence of contemnor,. return to he made in county of contemnor.</p> <p>2. Contempt — Practice.—-In contempt proceedings failure to serve with rule a copy of order alleged to have been disobeyed is not prejudicial error, where such order is shown by the motion papers to have been served immediately after issuance.</p> <p>3. Ibid. — Civil contempt rule should not be discharged because return on its face is sufficient, but the truth of the statements in the return may be inquired into.</p> <p>4. Ibid. — Practice—Discretion.-—It is discretionary with trial Judge -in contempt proceedings to give relator further time to procure and file additional affidavits, and to reply to return, explaining and setting out facts more fully, if they do not set forth exclusively new matter.</p> <p>5. IbId. — Corporations.—Finding return of rule of agents of nonresident corporation to be sufficient and discharging rule as to them, is not prejudicial to corporation, and corporation may be adjudged in contempt without specifications as to time, place and agents through whom the order has been violated.</p> <p>6. Ibid. — Waiver.—Return to rule in contempt proceedings ordered to be heard in open Court, may be so heard without being placed on the Calendar. If this objection is not made at hearing is it not waived?</p>

<p>Before Gag$, J., Greenville, December, 1904.</p> <p>Action by Whitner Symmes against J. O. Cauble and T. E. Harris. From' Circuit decree, defendant, Cauble, appeals.</p> <p>cite: Distinction between guarantor and surety: 14 Ency., 1130-; Brandt on Sur., secs. 1, 260'; 16 P'. & P., 941; 10 Pick., 121; 83 Am. St. R., 305. Relation unchanged after judgment: 1 Black on Jud., sec. 8, et seq.; Brandt on Sur., 27; Code of 1902, 2839, 2840; Free on Jud., sec. 226; 2- Rand. Comp*. Pa., sec. 925; 1 Hill Ch., 351. Release of Gilreath discharged Cauble: 14 Ency., 1162; 27 Ency., 462.</p> <p>cites: Cause of action merges into judgment: Code of Proc., 141; Free on Jud., 3 ed., 216, 315, 217; 15 Ency., 1 ed., 336; 15 Ency., 1 ed., 338; 2 Rand. Com1. Pa., sec. 925.</p>

Before Purdy, J., Clarendon, June, 1904. Action by Robert Hunter against Atlantic Coast Line Railroad Co cite: Complaint must allege some duty owing plaintiff by defendant: 66 S. C., 535. Whether acts were negligent or wanton- is for jury: 68 S. C., 488. Care due to- plaintiff: 4 Ency., 54, 48. Judge should only define negligence: 19 S, C., 55; 21 S. C., 104; 41 S. C., 1, 440, 381; 25 & C., 24.

Before Purdy, J., Lee, March, 1905. Action by Eliza Frierson against Mary Jenkins, alias Frierson, Katie Jenkins, alias Frierson, and Nathan Barnett. From order striking' out portions of defendants’ answers, they appeal. cite: Statements in answers cure of material facts and should be allowed: 43 S. C., 17; 9 S>. C., 138; 27 S. C., 164.

Before Watts, J., Fairfield, fall term, 1904. Two actions : (1) Edgar Trapp against Southern Railway, and (3) E. Trapp' Brooks, against Southern Railway. From judgment for plaintiff in each case, defendant appeals. Mr. Sanders cites: No damages for mental suffering not accompanied with physical injury: 53 S. C., 597; 57 S. C., 330. Nonsuit as to wilfulness, should have been granted: 61 S. C., 170; 69 S. C., 434; 63 S. C., 370; 64 S. C., 433; 68 S. C., 144; 99 Fed.

<p>Before Ellis G. Graydon, special Judge, Laurens, November, 1904.</p> <p>Action by J. M. Wofford against Clinton Cotton Mills. Erom judgment for plaintiff, defendant appeals.</p> <p>cite: Plaintiff cannot recover because he knew the danger: 55 S. C., 488. Plaintiff waived liability of defendant by con^ tinuing in employment after knowledge of machine: 21 S. C., 541; Wood on M. & S., 335; 55 S. C, 488; 44 S. C., 442; 2 Thomp. Neg., 1008. Negligence is not want of due care, but want of ordinary care: 15 S. C., 456; 16 Ency., 389; 66 S. C., 524. Verdict contrary to charge should be set aside: 68 S. C., 50; 16 S. C., 14; 64 S. C., 485.</p> <p>cite: Duty of employer in furnishing machinery: 69 S. C., 101; 38 S. C., 195. Jury must say if servant ivas careless in handling machinery: 64 S. C., 215; 51 S. C., 233; 55 S. C., 90. Risks assumed by employee are only those incident to service: 67 S. C., 142; 34 S. C., 215; 20 Ency., 2 ed., 73.</p>

<p>Before Watts, J., Laurens, January, 1905.</p> <p>Action by Clarence Tinsley against Western Union Telegraph Co. From judgment for plaintiff, defendant appeals.</p> <p>The former cite; Plaintiff is not entitled to punitive damages: 62 S. C., 252; 2 Rich., 182; 14 Rich, 353; 15 S. C., 412; 12 Ency., 24; 64 S. C., 519; 65 S. C., 516; 1 Suth. on Dam.., 724; 68 S. C., 99.</p> <p>cite: Relevancy of testimony is within discretion of trial Judge: 60 S. C., 70, 208. Evidence as to amount of money sender had is competent: 63 S. C., 570; 53 S. C., 214; 65 S. C., 97, 437; 54 S. C., 498; 50 S. C., 129; 54 S. C., 814. Remarks by Judge during progress of trial are not a charge on the facts: 61 S. C., 21. Conscious failure to observe due care is wilfulness: 60 S. C., 74; 54 S. C., 505; 70 S. C., 424; 65 S. C., 41, 438.</p>

Before Townsend, J., Greenville, summer term, 1904. Action by S. A. Burns against J. W. Goddard. From judgment for defendant, plaintiff appeals. cites: Delivery to carrier is delivery to buyer: 24 Ency., 1071; Benj. on Sales, 4 Am. ed., secs. 1040, 1049, and notes 1, 23, 517, 578, 516, 489, 490. Charge that one fact tends to establish another is error: 63 S. C., 494; 59 S. W., 626, 887; Blash. on Inst to' Juries, secs. 108, 109; 40 Mo., 151.

<p>1. Evidence — Whitings.—Parol evidence is admissible to show the object or purpose with which parties execute an instrument and that which does not really contradict or vary a written instrument is admissible for purpose of showing- a contemporaneous, collateral, and independent agreement.</p> <p>2. Finding that the evidence supports an agreement to convey land to one in trust to be by him conveyed to others and upon payment by each for his share the mortgage given to secure the whole purchase money should be satisfied as to that part, sustained.</p> <p>3. Usury — Interest.—A Note due some years after date, “with interest thereon at the rate of ten per cent, annually from this date,” draws interest at ten per cent, until due, and at seven per cent, after due, and the collection of ten per cent, after maturity under honest belief of right is nevertheless usury.</p> <p>4 Ibid. — A Trustee becoming- a borrower or debtor on behalf of himself and his cestui qui trustent may plead the counter-claim allowed by the usury statute for benefit of himself and his cestui qui trustent.</p> <p>5. Limitation oe Actions — Usury.—The Counter-Claim for usury is not barred in three years, but runs with the contract.</p> <p>6. Usury. — The penalty provided by the act of 1882 attaches to collection of usurious interest after 1898 on a contract executed before that date.</p> <p>7. Ibid. — Costs.—The usury statute relieves the defendant of all costs on circuit, and it is proper for a court of equity to require the plaintiff to pay all costs on circuit which would usually be taxed in his favor.</p>

Before J. E. McDonald, special Judge, Abbeville, October term, 1904. Action by Walter Pratt & Co. against Frasier & Co. From judgment for defendants, plaintiffs appeal. cites: Contract being silent as to time of delivery, law implies a reasonable time: 2 Benj. on Sales, 4 ed., 891; 3 S. F. R., 779; 24 Fncy., 2 ed., 1073; 9 Cyc., 612; 17 S. F. R., 979; 21 S. F. R., 299.

<p>Before Gage, J., Greenville, November term, 1904.</p> <p>Action by Bertha, C. Bottom against Charleston and Western Carolina Railway Co. From judgment for plaintiff, defendant appeals.</p> <p>Mr. Simpson cites: After marking, plaintiff is estopped from claiming that box contained anything but glass: 6 Cyc., 401; and plaintiff can only recover for glass: 62 S. C., 414; 72 Am. R., 937; 158 U. S., 98; 37 Am. Dec., 531; 3 S. E. R., 417; 113 U. S., 731; 39 S. C., 60; Kent Com., *603; Hutch, on Car., secs. 313, 314, 315; 66 Ill., 471; 55 A. & E. Ry. Cas., 381; 45 Mich., 51; 5 S. E. R., 769; 5 Ency., 345.</p> <p>cites: Connecting carrier has no means of knozuing value of packages shipped except by marks and bill of lading: 45 Mich., 51; 5 Ency., 3d ed., 349; 35 S. E. R., 436; 94 Tenn., 665; Hutch, on Car., secs. 313, 314, 315; 15 Wall., 535; 5 S. E. R., 769.</p> <p>cites: Plaintiff is not bound by rules of carrier unless brought to her notice: Code, 1903, 1709; 16 Wall., 318; 39 S. C., 56; 113 U. S-, 331; 140 N. Y., 48.</p>

Before Klugh, J., Charleston, January, 1905. Action by Eleanor L. Glover against Charleston and Savannah Railway Co. et al. From order overruling demurrer to complaint, defendant railway company appeals. cite: Condemnation is exclusive: 63 S. C., 53; 38 S. C., 308; 59 S. C., 376; 38 S. C., 388. Right to claim compensation belonged to ozmer at time of -construction:'11 Rich. E., 91; 3 A. & E. R. R. Cas., 301; 36 Vt., 670; 3 Con.

<p>Before DantzeER, J., Bamberg, September, 1904.</p> <p>Action by Eugenia M. Rice against G. W. Beard. From Circuit decree, defendant appeals.</p>

<p>Before Dantzeer, J., Bamberg, September, 1904.</p> <p>Action by Eugenia M. Rice against F. M. Bamberg. From Circuit decree, defendant appeals.</p> <p>cites: On question of subrogation: 18 S. C., 123; 41 S. C., 337; 58 S. C., 382; 67 S. C., 454; 40 S. C., 417; 1 Strob. Eq., 51; 62 S. C., 304; 24 Fncy., 1 ed., 258, 261, 266, 267; 2 Am. St. R., 328; 29 Am. St. R., 800 ; 30 Am. Dec., 174; Sheldon on Sub., sec. 209. Oíñcers are presumed to hwe done their duty: 22 Fncy., 2 ed., 1267, et seq.; 1 Hill Eq., 369; 5 Rich. L., 534; 14 S. C., 454; 24 S. C., 503.</p> <p>cite: When doctrine of subrogation may be applied: 70' S. C., 224; 27 Fncy., 2 ed., 241; 29 Am. St. R., 800'; Free, on Void Judicial Sales, 53; 39 Miss., 796. Life tenant and remainderman must each contribute to debt: Sheldon on Sub., sec. 207; 1 Bro. Ch., 206; 53 S. C., 530'. Right to subrogation is barred: 24 Fncy., 322, 321, 322; Sheldon on Sub., sec. 237; Stearns on Suretyship; 508.</p>

<p>Before Dantzeer, J., Bamberg, September, 1904.</p> <p>Action by Eugenia M. Rice against J. C. Bishop. From Circuit decree, defendant appeals.</p>

Before Townsend, J., Beaufort, January, 1905. Proceeding in probate court to remove Peter Watson as guardian of Isaiah and Florence Chaplin. From order sustaining probate judgment, Watson appeals. cite: Code of Proc., 58, 340>; 61 S. C., 389. cites: Code of Proc., 57, 58, 59, 61, 62; 61 S. C., 392.

Before Keugh, J., Barnwell, November term, 1904. Action by Mary A. Bamberg and her husband, C. T. Bamberg, against Atlantic Coast Line Railroad Co. From judgment for plaintiff, defendant appeals. cite: Complaint showing contributory negligence, demurrer should have been sustained: 58 S. C., 495; 56 S. C., 95. Plaintiff should not recover because of voluntary exposure to unnecessary danger: 46 S. C., 547; 34 S. C., 300'.

<p>1. Chattel Mortgages — Payment.—Tender of amount due on a chattel mortgage coupled with demand of surrender of note and mortgage is not a conditional tender, but mortgagee should be allowed a reasonable time to produce them.</p> <p>2. Ibid. — Claim and Delivery — Damages.—In action in claim and delivery by mortgagee against mortgagor on past due debt secured by the mortgage, mortgagor cannot set up damages, not ordinarily arising out of the transaction, resulting from failure of mortgagee to perform the conditions of the mortgage so as to defeat the amount due unless he shows that mortgagee had notice of his peculiar conditions giving rise to the damages.</p>

<p>Before Gary, J., Greenville, March term, 1905.</p> <p>Action by T. A. J. Green against Southern Railway Co. From order of nonsuit, plaintiff appeals.</p> <p>cite: Pacts proved tend to show1- negligence on part of master: 35 S. C., 406; 63 S. C., 575; 70 S. C., 494; 71 S. C., 81; 69 S. C., 395; 68 S. C., 403.</p> <p>cites: Proof of improper action-in engine does not show negligence of master: 66 S. C., 356; 69 S. C., 539; 66 S. C., 530; 34 S. C., 316; 39 S. C., 39; 19 S. C., 493, 510; 59 L. R. A., 787; 66 S. C., 535; 15 Am. Neg. Cas., 373; 166 U. S., 617; 179 U. S-, 658.</p>

<p>B. & L. Associations — Mortgages—Recording Notice. — Where money is" advanced to a member of a building and loan association in a foreign State, and the bond executed as evidence of the debt is silent as to place of payment, but provides “this obligation is a Georgia contract and in all respects subject to and governed by the laws of Georgia,” must be construed as to application of payments in accordance with the laws of Georgia. Where the mortgage securing such bond simply refers to the bond for conditions, mortgage alone being recorded, it is no notice to a purchaser of the land of the conditions of the bond other than those appearing on the record of the mortgage, but in this case the purchaser held to have notice of these conditions of the bond by reason answering jointly with the mortgagor, paying in monthly instalments, and not setting up in answer want of notice of conditions of bond.</p>

Before special Judge R. H. Welch, Saluda, December, 1903. Action by Bettie A. Whitman against John A. Corley.

Before Purdy, J., Edgefield, November term, 1904. Action by A. H. Jennings against Edgefield Manufacturing Co. From judgment for plaintiff, defendant appeals on following exceptions: “1.

Before Purdy, J., Richland, December, 1904. Action by Felicita Rosetta Kay lor et al. against Louis Paul Hiller et al. From order permitting defendant to answer after default, plaintiffs appeal. cite; Judge Purdy did not have right to allow this answer to be Med after expiration, of time allowed by Judge Watts: 59 S. G, 478; 16 S. G, 115; 28 S. G, 570'. Order not administrative': 43 S. G, 190'; 66 S'.

Before DantzlER, J., Florence, December, 1904. Action by John S. Gamer et al. against Joseph F. Garner et al. From order of Circuit Court overruling order of master dismissing complaint, defendants, Arthur and Maggie Garner, appeal. Mr. Dargan cites: Complaint can be dismissed: Rule 30, C. C.; 6 Ency. P. & P., 831-2, 953-4. Wards camnot claim both land and proceeds: 20 S. C., 412. Messrs.

Before Jas. F. Izlar, special Judge, Lexington, February, 1905. Action by John A. Milhouse against Southern Railway. From judgment for plaintiff, defendant appeals on following exceptions-: “1. Excepts because his Honor erred in allowing the plaintiff to testify, over the objection of defendant, that his feelings were hurt and that he was subjected to> inconvenience; upon the ground that the same were not .elements of damage in this case. “2.

<p>1. Attachment — Jurisdiction.—The general rule that an attachment will not he dissolved on the ground that the defendant has no title to the property, or that it is the property of the plaintiff, does not apply where property of a non-resident is attached to acquire jurisdiction.</p> <p>2. Sale — Tender—Bill op Lading. — That a seller shipping goods to buyer on bill of lading providing for delivery to consignee with draft attached forwarded for collection before delivery of bill of. lading is prima facie evidence that he reserves the title and right to the possession of the goods until payment of the draft, and tender of amount less than called for by draft, claimed by buyer to be price of goods, does not entitle buyer to right of possession.</p> <p>Mirabita v. Imperial Ottoman Bank, 3 Ex. Div., 164, distinguished from this.</p>

<p>1. Sale — Conversion.—A Bank to which a draft with bill of lading attached for goods is sent for collection with instructions, if not paid to hold and notify, has no right to sell the goods to a third party without notice to owner.</p> <p>2. Ibid. — Ibid.—Claim and Delivery. — The pledgor of a chattel cannot ordinarily maintain an action in claim and delivery for the articles pledged without first paying or tendering the amount of debt secured and demand of return of property pledged, but where the pledgor had no notice of conversion and application of proceeds to his debt until after conversion, he may maintain action for damages for conversion without tender and demand.</p> <p>3. Damages — Conversion.—In some cases of conversion the measure of damages may be the highest market value of the goods up to the time of trial.</p>

<p>Before Klugh, J., Hampton, October, 1904.</p> <p>Action by L. D. Ellis, administratrix of W. J. Ellis, against Southern Railway Co., on following complaint:</p> <p>“The complaint of the above named plaintiff, E. D. Ellis, as administratrix of estate of W. J. Ellis, and in her own behalf and in behalf of the children of the said W. J. Ellis> deceased, respectfully shows to this ■ Court:</p> <p>“I. That at the times hereinafter mentioned, the defendant, Southern Railway Company, was and is now a railway corporation, duly chartered and existing under and by the laws of the State of South Carolina, and as such is and was operating a railway from the town of Batesburg, in the county of Lexington, and through the counties of Aiken, Barnwell and Hampton, to the station of Hardeeville, in Hampton County, and elsewhere in this State, and as said railway corporation so operating was engaged in the hauling of freight and passengers for hire to> and from' said points and elsewhere in this State, and the defendant, P. I. Welles, was at the time hereinafter mentioned the agent and servant of the said codefendant, and as such was in exclusive charge of the operation and management of the said 'Southern Railway Company, and still is operating the said railway in behalf of his codefendant, the Southern Railway Company, and as such agent so- operating the said railway, was and still is- liable for acts and doings- of the railway company aforesaid.</p> <p>“II. That on or about the 3d day of March, 1902, at about 4 o-’clock o-f the morning of that day, W. J. Ellis went to- a station on the railway of defendant, the Southern Railway Company, known as Furman, in Hampton County, S. 0., where the said railway crosses one of the public highways o-f said county of Hampton, for the purpose of getting on one of the passenger cars owned and operated by the defendant, the Southern Railway Company, on its s-aid railway, and becoming a passenger -thereon, intending to- go- to his place of business- at Sum-merfield, Fla.; and that soon after getting tó said station the regular train of cars, then due to arrive at said station on defendant’s railway, appeared in sight with an exceedingly dim headlight on the locomotive attached to-said passenger cars of said defendant’s company; whereupon 'and immediately afterwards the said W. J. Ellis lighted with fire some combustible material, and gave across the railway track aforesaid the usual and customary signal for the train of cars aforesaid to stop; whereupon the agent and servants o-f defendant’s railway company aforesaid in charge of said passenger cars and locomotive on the railway track o-f defendant’s company aforesaid, gave with the whistle on the locomotive attached to the passenger cars aforesaid the usual and customary signal to stop; but instead of stopping the said passenger cars aforesaid, as they were in duty bound to do-,' the agents, servants and employees of the defendant’s company aforesaid, wilfully, maliciously, negligently, carelessly and wantonly ran, or caused the passenger cars and locomotive aforesaid to run, by the station aforesaid across the public highway aforesaid at an exceedingly high rate of speed, without first continuously for five hundred j^ards before 'reaching the public highway and station aforesaid ringing the bell or sounding the whistle on the locomotive and train of cars aforesaid on the railway track aforesaid, and wilfully, maliciously, negligently, carelessly and wantonly struck or caused to be struck the person of W. J. Ellis with some parts of the locomotive and train of cars aforesaid on the railway track of defendant’s company aforesaid, wounding and instantly killing the said W. J. Ellis.</p> <p>“That by reason of these wilful, careless, negligent, malicious and wanton acts of the defendant’s company, and the killing of the said W. J. Ellis as aforesaid, this (plaintiff and the heirs at law of the said W. J. Ellis) have been damaged in the sum of $50,000.</p> <p>“IV. The plaintiff is the duly qualified administratrix of the estate and effects of W. J. Ellis, deceased.</p> <p>“Wherefore, plaintiff demands judgment in her own behalf and in behalf of the heirs at law of the said W. J. Ellis in the sum of $50,000; with the cost of this action.”</p> <p>Defendant Welles appeals on the following exceptions:</p> <p>First. To the order permitting amendment:</p> <p>“1. Because it is respectfully submitted that his Honor, the presiding Judge, J. C. Klugh, erred in permitting the plaintiff to amend her complaint, inasmuch as the said complaint did not state the beneficiaries for whose benefit the action was brought, and, therefore, did not state any cause of action; and his Honor, therefore, was without authority to permit an amendment to said complaint, in order that it might state such a cause of action.”</p> <p>Second. To the order overruling the demurrer of the defendant, P. I. Welles:</p> <p>“1. Because it is respectfully submitted that his Honor, the presiding Judge, erred in not deciding that inasmuch as it appeared upon the face of the complaint that this appellant was an agent and servant of his codefendant, the Southern Railway Company, and that the wilful, malicious, negligent, careless and wanton conduct alleged to' have caused the death of plaintiff’s intestate, was not committed in the presence of this defendant, but through the wilful, malicious, negligent, careless and wanton conduct of the agents and servants of the said railway company, in charge of a passenger train of cars and locomotive engine upon said company’s road, at a station at which the said W. J. Ellis desired to take passage, and where it is not alleged that this defendant was present, then this defendant not being the master or employer of the persons in charge of said train, is not responsible for their actions, under the doctrine of respond-eat superior, and no cause of action is alleged against this defendant.</p> <p>“2. Because it appears upon the face of said complaint that the conduct of the persons in charge of said train was the cause of the injury to1 plaintiff’s intestate, and it is not alleged that the plaintiff was upon their said train, directing the movements and actions of the persons upon said train, and this defendant is not liable for their conduct, the same not being alleged to- have occurred through the misfeasance or positive wrong of this defendant.</p> <p>“3. Because the only charge against this defendant appearing in said complaint is a charge of negligence or conduct amounting to non-feasance or omission of duty in the course of his employment, and for such non-feasance or omission, this defendant, not being the master or employer of the persons in charge of said train, is not liable for the death of plaintiff’s intestate.</p> <p>“4. That under the laws of this State, an agent is not liable to< a third person for damages resulting to him in the non-performance, or neglect of the duty which the agent owes to his principal, and the only charge of negligence, or wilful, wanton or malicious conduct under the allegations of said complaint, if any there are, would make him responsible to his principal, his codefendant, the railway company, and not to the plaintiff.</p> <p>“5. Because, on the face of said complaint, the only allegations of negligence or misconduct on the part of this defendant, being in general words charging that this, defendant was in exclusive charge of the operation and management of the railroad company, his codefendant, and that as such agent, he operated the said railway company, and was liable for its acts and doings, and no specific act of negligence being charged against this defendant except as generally responsible for the negligence of the agents, servants and employees of the defendant company in charge of the passenger train and locomotive which struck plaintiff’s intestate, no cause of action is alleged against- this defendant, even if, under the laws of South Carolina, an employee may be held responsible for acts of non-feasance causing injury to third persons.”</p> <p>cite: As to liability of agents: Story on Ag., 9 ed., sec. 308; Mechem on Ag., sec. 569, p. 539; Kink. Com. on Torts, sec. 69; 34 La. An., 1133; 7 Ohio St., 331; 17 N. H., 330; 117 N. Y., 43; 133 Fed. R., 386; 135 Fed., 961; 30 Vt., 139. As to modification of doctrine: 104 Ala., 611.</p> <p>cite: Amendment properly allowed: 15 Rich., 301; 33 S. C., 143; 68 S. C., 554. Liability of agent for acts of non-feasance and misfeasance: Story on Ag. C., 13, sec. 308; Jaggard on Torts, 387, 389-91; 37 N. J. L., 46; Mecham’s Ag., 573; 16 So. Rep., 630; 130 Mass., 103; 38 L. R. A., 433; 76 Mich., 337; 1 Ency., 3 ed., 1133-3; 134 Fed. R., 983.</p>

Before Klugi-i, J., Hampton, October term, 1904. Action by J. E. Roundtree against Charleston and Western Carolina Railway Co: From judgment for plaintiff, defendant appeals. cites: The proof was foreign to the allegations: 3 S. C., 411; 1 Green. Ev., secs. 278, 280'; 8 Met., 576. Brror of failing to charge as to vindictive damages not remedied by remittur: 22 S. W. R., 958. As to opinion of witness as to amount of damages: 47 Ark., 497; 71 Ind., 276; 58 Ga., 107; 11 Ea.

Before Geo. E. Prince, special Judge, Barnwell, May, 1904. Action by C. A. Best against Seaboard Air Line Ry., in magistrate court. From Circuit order reversing magistrate judgment, plaintiff appeals. cite: As to the question of jurisdiction: Code of Proc., 423, 71, 156, 165; Code 1902, 1793. As to recovery of penalty: 24 Stat., 81. cites: As to the question of jurisdiction: Code of Proc., 423; 35 S. C., 378; 58 S. C., 89. As to the penalty: 24 Stat., 82.

Before J. E. McDonald, special Judge, Abbeville, February, 1904. Action by L. A. and T. H. Brock, partners, against Hannah Kirkpatrick and Annie Taylor. From Circuit decree, plaintiffs appeal. cites: Have plaintiffs been- guilty of laches: 60 S. C., 352; 69 S. C., 231; 26 S. C., 186; 28 S'. C., 101; 25 S, C., 204; 43 S. C., 436. Not necessary for plaintiffs to introduce the note: Brown. v. McMellin, 2 Hill’s Ch.; 61 S. C., 426; 71 S, C., 67; 1 McC., 495; 1 Green.

Before Purdy, J., Sumter, March, 1904:. Indictment against George W. Murray for forging and uttering a lease. From sentence on verdict of guilty, defendant appeals on following exceptions: “First. Because, it is respectfully submitted, his Honor erred in allowing the State, over the objections of the defendant, to challenge peremptorily more than two jurors; whereas, the law only allowed the State two challenges in the trial of said case. “Second.

Before Watts, J., Lancaster, October term, 1904. Action by W. Alonzo Hughes against the Western Union Telegraph Co. The 6th, 7th, 8th and 9th paragraphs of the complaint are as follows: “6.

Petition by Jno. C. Seegers against T. H. Gibbes, Mayor, Wm. D. Melton et al., as aldermen of the city of Columbia, in this Court, to' have the city authorities enjoined from issuing certain bonds. The following is so much of the petition as states the material facts: “3.

Before Gage, J., Greenville, December, 1904. Petition to City Council of Greenville by Mrs. Mary Evans for permit to build a house. Upon objection by Mrs. Maude Simmons, the permit was refused. Mrs. Evans appealed to Circuit Court, which reversed the action of the City Council.

Petition of Postal Telegraph Cable Co*, in this Court for writ of certioran'i requiring- the clerk of the Court of Spartan-burg County to certify to this Court the record in the condemnation proceedings of Mary T. Beacham against Postal Telegraph Cable Co.

<p>1. Evidence — Transactions with Decedent. — Conversations between the agent of plaintiff and the testator of defendant, executrix, are not incompetent under section 400 of the Code.</p> <p>2. Principal and Agent — Evidence-—Parol.—An agency to buy land may be shown by parol by agent.</p> <p>3. Ibid.- — Ibid.—In this case the written power of attorney authorizing the agent to make contracts and conduct milling operations for his principal tends to show the contract in question was not for benefit of the agent.</p> <p>4. Evidence — Timber.—Issue being value ot timber cut from a tract of land, a witness who owns an adjoining tract of land may give his opinion as to the value of timber on his own land after stating that his timber was about the same as that in question, and the price for which his was sold, and the other facts upon which his opinion was based.</p> <p>5. Ibid. — Transactions with Decedent. — Declarations of testator that if she made settlement with A. it would enure to benefit of B. is competent to support the allegation that B. was party in interest in the transaction.</p> <p>6. Mortgages. — If A. buys land of B. for C. and takes a deed from B., giving B. a mortgage for purchase money, puts C. in possession under agreement to convey on payment of purchase money, and upon payment refuses to convey, A. cannot be considered as sustaining to C. relation of mortgagee.</p> <p>7. Demand — Specific Performance. — Vendee of land need not demand title of executor after demand and refusal of testator .before commencing action against executor for money paid on contract.</p> <p>8. Nonsuit — Contract.—Here the allegations and evidence were sufficient to sustain a verdict for damages for breach of contract and nonsuit properly refused, even if facts did not warrant a verdict for the specific sums paid on the contract.</p> <p>9. Charge.- — Stating a legal conclusion which would result if the jury find certain facts is not a charge on the facts.</p> <p>10. Damages — Contracts—Real Property. — Where A. buys land for B. at his instance, under contract to convey upon payment of purchase money paid by A., and A. breaches the contract by refusal to convey without fraud, the measure of damages to B. is not the money paid for the land less the value B. had taken from it, but the actual value at the time of tender and refusal of title and interest from that date, less any depreciation subsequent thereto due to B.’s action.</p> <p>11. Contracts — Specific Performance. — That a vendee should return the consideration of a contract before demanding of vendor money paid thereon does not apply in strictness where vendee is not in a position without fault of his own to restore what he has received by the contract, but he may offer to allow credit for the value he cannot restore. Should this offer be made in all instances before suit?</p> <p>12. Ibid. — Money Had and Returned. — If in paying amount due on a purchase of land too much be paid, purchaser, on breach of contract, may recover such amount with interest, in addition to damages for breach of contract.</p>

<p>Before DantzeER, J., Charleston, September, 1904.</p> <p>Action, by Julian Fishburne against Harriott K.- Minott, Mary E. Eowndes, H. A. M. Smith, G. H. Sass, Master, and his sureties. From, order extending time of defendants to answer, plaintiff appeals.</p> <p>cites: As to notice: Code of Proc., 402, sub. 2. Should not be granted at chambers: Code of Proc., 405. Appearance of attorney is presumed to be for party: Sanders v. Price, 56 S. C.; Code of Proc., 160; 61 S'. C., 312; 46 S. C., 15. Judge at chambers cannot extend time toanswer except under Rule XIX.: Rennéker v. Warren, 20 S. C.</p> <p>cite: Notice of motion not necessary: Code of Proc., 195; 70 S. C., 160; 14 S. C., 228; 38 S. C., 556; 60 S. C., 463; 65 S. C., 409; 14 Ency., 123; 37 S. C., 120; 60 Fed. R., 993. Rule XIX. of Circuit Court is not imperative in all cases: 43 S. C., 329. Cause should be dismissed as frivolous and vexatious: 201 Ency. P. & P., 44; L. R., 1 Q. B., 185, 677; 15 Appeal Cas., 210; L. R., 2 Chan., 1; L. R., 2 Q. B., 189; 10 Appel Cas., 10; 11 Prob. Div., 59; 43 Chan. Div., 440; 14 Appeal Cas., 668. No action lies '.against officer for coming to certain conclusions: Mech. on Pub. Officers, secs. 619, 621, 622.</p>

<p>1. Injunction. — Motion to Change Venue being granted, a stay of proceedings in original Court follows as necessary result, and it is not necessary to incorporate that in notice of motion.</p> <p>2. Venue — Chambers—Waiver—Answer.—Motion to change venue because the action is brought in wrong county may be made before Judge at chambers on four days’ notice. The law does not fix the time when such a motion should be made, but it should be made without unnecessary delay and before doing anything that may amount to a waiver. It may be made before answer.</p> <p>3. Ibid. — Public Officer. — An action against a public officer for an act done by him in virtue of his office must be tried in the county in which the cause of action or some part thereof arose, subject to power of Court to change venue. The fact that some of the officer’s codefendants lived in a county other than the one in which the cause of action arose does not give the right to bring the action in such county.</p>

Before Townsend, J., Charleston, December, 1904. Action by Sophia S. Marion against City Council of Charleston. From order refusing to substitute party and to submit issue to jury, plaintiff appeals. cites: be gal action to which is an equitable defense may be transferred, to Cal. 2 for trial of defense by Court: 52 S. C., 461.

<p>Before Watts, J., Richland, July, 1904.</p> <p>Action by Peter C. Brunson against W. F. Furtick. From Circuit judgment sustaining judgment of magistrate court, defendant appeals.</p> <p>cite: Demurrer is proper remedy agpdnst indefinite pleadings in magistrate court: Code of Proc., sec. 88; 1 Abb., 344. Original complaint is superceded by amended complaint: 1 Ency. P. & P., 625; 7 W. Va., 54; 4 How. Pr., 174; 77 la., 676; Code of Proc., 167. Amount due on note could not be reduced so as to' give magistrate jurisdiction: 1 N. & McC., 192; 2 N. & McC:, 40 ; 22 S. E. R., 70', 213; 73 Ga„ 240; 25 S. E. R., 685; 28 S. E. R., 22; 42 S, C., 203.</p> <p>cite: As to forms of pleadings, in magistrate court: Code of Proc., 88; 30 S. C., 175. Plaintiff may reduce Ms demand so as to confer jurisdiction on magistrate court: Con., art. V., sec. '21; 42 S. C., 204; 2 McC., 296; 2 N. & McC., 438; 14 Ency. P. & P., 367; 1 Ency. P. & P., 156; 2 Bail., 380'; 1 McC., 531; 43 S. C., 69; 69 S. C., 520.</p>