Volume 73 — South Carolina Reports

<p>1. Demurrer. — That a Circuit Judge tries a case on the merits is sufficient to show that he overruled a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and a succeeding Circuit Judge on a second trial of the case cannot consider the demurrer.</p> <p>2. Appeal. — If defendant permit allegations to remain in complaint, he cannot complain if evidence be received in support of it.</p> <p>3. Common Carrier — Evidence—Parol.—In action by manufacturer against carrier for damages for failure to furnish cars to ship special orders for lumber it is not error to permit witness to testify as to verbal orders which were subsequenty submitted in writing, as the verbal orders probably influenced the conduct of the business.</p> <p>4. Evidence — Opinion—Damages.—In such case plaintiff should not state estimate of amount of damages in lump sums, but should state' items of damages.</p> <p>5. Carrier — Damages—Punitive.—Where failure to furnish cars to shipper is due alone to unprecedented rush of business, there is no ground for punitive damages, and failure to answer letters or telegrams is not evidence of wilful disregard of plaintiff’s rights.</p> <p>6. Ibid. — Ibid.—Freight.—^A. shipper is not entitled to damages for failure to carry his freight caused by a sudden and unusual press of business which could not reasonably have been anticipated by the carrier, in absence of special contract. /</p>

<p>Magistrate — Venue.—An affidavit on motion to remove a case from one magistrate to the next nearest, stating as the reasons therefor opinions of affiant based on appealable rulings of magistrate at a former trial, does not state reasons for removal.</p>

<p>Before Purdy, J., Beaufort, January, 1904.</p> <p>Application by Laura M. Lockwood, in Lockwood v. Lockwood, for order requiring master toi pay balance proceeds of sale to her. From order continuing- motion, movant appeals.</p> <p>cites:. Costs due master: Code of 1902, 3097, 3113; 16 S. C., 362; 53 S. C., 387.</p> <p>cites : No appeal lies from order of continuance: 42 S. C., 205; 33 S. C., 333.</p>

Before DanTzlER J., Florence, January, 1905. Action by M. Eliza Alexander against Charles W. DuBose. From- order striking out certain allegations of the complaint and refusing to strike out others, both parties appeal. Messrs. Gailetly & Ragsdale cite: 50 S. C., 64; 60: S. C., 370. cite: Code of Proe., 181; Pom. Code Rem., sec. 551; 50 S. C., 54; 18 S. C., 473; 60 S. C., 353.

<p>Pleadings. — Cause of Action. — A Complaint seeking partition of two tracts of land, alleging tenancy in common between plaintiffs and one defendant in one tract of land, and between plaintiffs and the other defendant in the other tract of land, and title from common source in both tracts, states only one cause of action.</p> <p>Albergottie v. Chaplin, 10 Rich. Eq., 429, distinguished from this.</p>

<p>1. Pleadings — Penal Statutes — Railroads.—A Complaint under Code 1902, 2092, 2093, to recover a penalty for failure of railroad company to post schedule of rates, must allege that each and every act required of the Railroad Commission had been done by it, to state a cause of action for failure to post.</p> <p>2. Railroad Commission — Railroads.—Court holds that under sec. 2093, thirty days is a reasonable notice by railroad commission to railroad companies of schedules of rates made.</p> <p>3. Railroads — Penalties—Evidence—Defense.—One railroad company cannot interpose as a defense to an action for penalty for failure to post rates made by railroad commission, that the commission has not prepared , and published such schedule of rates for all the railroads organized under the laws of the State; the provision in sec. 2093, of Code of 1902, as to making schedules for all the roads, applies to the reception of the schedule as evidence.</p> <p>4. Constitution — Words and Phrases — Indictments—Penalties.—The word “prosecutions,” in sec. 31, art. V., applies to indictments for crime, and not to suits under penal statutes, .which may be brought by any one named in the statute and not by State.</p> <p>5. Ibid. — Appeal.—A constitutional question not covered by grounds of demurrer will not be considered on appeal from order sustaining the demurrer.</p>

Before Gary, J., Union, October term, 1904. Action by Revolution Cotton Mills against Union Cotton Mills. From judgment for plaintiff, it appeals. cite: Evidence made case for plaintiff: 65 S. C., 197; 69 S. C., 434; 66 S. C., 61. Failure of jury to' give interest as directed is error: 16 S. C., 14; 68 S. C., 527. cite: New trial properly refused: 69 S. C., 102; 58 S. C., 222; 57 S. C., 289; 52 S. C., 382; 47 S. C., 57; 20 S. C., 150; 49 S. C., 460.

Before Watts, J., Lancaster, October term', 1904. Action by Robert Buist Co-, against Lancaster Mercantile Co1. From' judgment in favor of plaintiff, it appeals. cite: As to proof of agency by declarations and acts of agent: 1 Bail., 201; 17 S. C., 139; 39 S. C., 525. Newt trial should have been granted as there was no• evidence t0‘ support the verdict: 65 S. C., 203.

Before Gary, J., Greenville, January, 1905. Indictment against John Waldrop. From sentence on verdict, the defendant appeals on the following exceptions : “I. Error in allowing the State to introduce in evidence the contract between D. E. Donald and S. D. Maddox, the said contract not having been proved in the manner required by law. “II.

<p>Before Watts, J., Chesterfield, May, 1904.</p> <p>Action by Seeg-ers Bros, against Seaboard Air Line Railway. From judgment of Circuit Court reversing judgment of Magistrate S. H. Reid, plaintiffs appeal.</p> <p>cites: 31 S. E., 330; 41 S. E., 522, 108; 165 U. S., 150'; 38 S, C., 116; 165 U. S., 1, 258; 115 U. S-, 112.</p> <p>Mr. Mclver cites: 165 U. S., 150'; 63' S. C., 180; 65 Ala., 193; 60 Miss,, 641; 70' Mich., 382; 49 Ark., 492; 6 Neb., 37; 141 111., 171; 147 111., 66; 28 Wis., 464; 69 S. C., 322.</p>

Proceeding for injunction in the original jurisdiction of this Court by R. L. Luther, J. B. Simpson, W. A. Moseley, J. P. Bowers, T. A. Dominick and J. D. Quattlebaum, vs. J. S. Wheeler, as intendant, and S. S. Birge, A. H. Hawkins, R. C. Counts and D. W. Boland, as wardens of the town of Prosperity, and Bank of Prosperity. cite: Taxpayer may enjoin municipal contract: 162 Ind., 173; 99 N. W., 611; 95 N. W., 135.

Before Aldrich, J., Darlington, December, 1904. Action by James Pooler et~al. against Phyllis Smith. From judgment for defendant, plaintiffs appeal on following exceptions: “1.

Before Jos. A. McCullough, special Judge, Richland, December, 1903. Action in probate court by Fannie C. Wallace against E. Barton Wallace, Mrs. Margaret Caldwell, Andrew Wallace, Bruce Wallace and Wm. Wallace. From Circuit decree affirming probate court, petitioner appeals. cite: As to effect of delivery: American Digest, Cen. ed., vol. 16, 35, 146, 150, 138, 139, 142, 143; 1 Strob, Eq., 349; 1 Mill., 191; 2 Strob., 309; 10 Rich. Eq., 359; 9 Rich.

<p>1. Party — Claim: and Delivery. — In action in claim and delivery for ■ mules and wagon seized by State constable in hauling liquors, the State is not a necessary party.</p> <p>2. Evidence — Memorandum.—A bill made out by a wholesale liquor dealer purporting to show that it was bought for personal use, is admissible for what it is worth in such action.</p> <p>3. Interstate Commerce — Dispensary Law. — Liquor bought in another State for another and transported by a private party from a point without the State to be delivered to a party within the State with the knowledge that the purchaser or consignee will use it for illicit traffic, may be seized by State constable while in transit in possession of party carrying it.</p>

Before Purdy, J., Colleton, February, 1904. Action by Julia Williams and J. H. Williams against J. R. Halford et al. From Circuit decree, defendants appeal. cite: Judge should pass on all objections to evidence: 43 S. C., 338. Deed could have been attacked before death of husband: Rich. Eq., 65; 1 Rich. Eq., 465. Natural father is not entitled to services of his child: 2 Hill Ch., 624; 2 Bail. R., 302. cite: Finding of Judge on issue of title is final: 58 S. C., 1.

Before Townsend, J., Spartanburg, September, 1905. Action by Lillie Thomason against Claude Thomason. From order modifying order of injunction restraining defendant from receiving certain funds, plaintiff appeals. Messrs. Sanders & DePass cite: Brror to dissolve injunction necessary to plaintiff’s rights on ex parte affidavits: 69 S. C., 52; 42 S. C., 101; 51 S. C., 434; 54 S. C., 457; 62 S. C., 196; 67 S. C., 84.

Before J. P. Carey, special Judge, Richland, July, 1905. Action by H. E. Brookshire on behalf of himself and others against Farmers Alliance Exchange of South Carolina, Limited, et al. The following is the Circuit decree: “At a meeting of the trustee stockholders of the Farmers’ Alliance Exchange, held on the 29th day of October, 1902, a resolution was duly passed: ‘That the State Exchange is hereby dissolved, and the directors are instructed to pay out the funds to the…

<p>1. Common Carrier — Evidence—Bile of Lading — Written Instrument. — Where a carrier set up a special contract limiting its liability for damage to freight, consignee may show that the contract was not binding on him, that it was not signed by shipper until after injury, and then with the understanding that it would not be prejudicial to rights of consignee.</p> <p>2. Ibid. — Pleadings—Foreign Laws. — In action in tort to recover damages for breach of carrier’s duty in transporting freight from a foreign State into this, when carrier sets up special contract, consignee may prove laws of foreign State to show invalidity or legal effect of special contract without pleading them.</p> <p>3. Charge. — Foreign Laws. — Judge should construe the laws of a foreign State.</p> <p>4. Common Carrier — Foreign Laws — Bill of Lading — Freight—Ratification. — Stock.—A contract between shipper of stock and carrier to transport it from one State into another, upon suit by consignee in the latter State for damages arising from its breach must be construed according to the laws of the State in which executed, and in this case the contract, executed in Georgia but not signed by shipper, under the laws of that State, so much as limits the value of the stock in case of loss is not valid, and mere acceptance of bill of lading by shipper or payment of reduced freight by consignee does not show ratification.</p> <p>5. Ibid. — Freight—Constitution.—Act 23 February, 1903, 24 Stat., 81, imposing penalty on carrier for failure to adjust and pay, or to refuse to pay, claims for loss or damage to freight in specified time, is constitutional.</p> <p>O. Ibid. — Ibid.—Stock—Charge.—Reouest assuming existence of a contract in dispute and not framed to submit the question that carrier was not liable for damages if caused alone by consignee’s negligence in unloading animal, evidence being that the injury occurred while consignee and carrier’s agent was unloading, properly refused..'</p> <p>7. Ibid. — Ibid.—Ibid.—Ibid.—Reuuest eliminating question of carrier’s negligence in furnishing safe place to unload a horse and in use of appliances, properly refused when those acts of negligence are alleged, and reference to negligence in general terms in charge must be construed to refer to acts of negligence alleged.</p> <p>8. Ibid. — Ibid.—Ibid.—Negligence.—It is duty of carrier to furnish suitable appliances for unloading stock and to use them with due care, but even under a special contract making it the duty of shipper to unload, if agent of carrier is present and assisting in unloading in unsafe way, it is negligence in carrier.</p> <p>9. Ibid. — Ratification.—Request to the effect that shipper ratified contract limiting its liability by accepting reduced rate of freight, properly refused, because it assumed the existence of the special contract, which was denied.</p>

Petition for writ of mandamus in the original jurisdiction of this- Court by George W. Dick, as mayor, R. T. Haynswo-rth et al., as aldermen, constituting the city council of the city of Sumter, against R. Dee Scarborough, chairman, et al., commissioners of public works of city of Sumter.

Before J. E. McDonald, special Judge, Abbeville. Action by M. Harvey AVilson, in'his own right, and as administrator of Jane D. Gordon et al. against Evans Gordon, Georgia C. Miller et al. From Circuit decree, the plaintiff and certain defendants appeal. Mr. Graydon. cites: Proof to support specific performance: 27 S-. C., 348; 22 S-. C., 367; 50 N. E., 1117. This case is zmthdn statute of frauds: 30 S. C., 613; 31 S’.

<p>Petition for writ of mandamus in the original jurisdiction of this Court by J. T. Hay, J. F. Lyon and Neils' Christensen, Jr.,.against Jas. S. Farnum'.</p> <p>cite: A concurrent resolution need not have eiwcting words: 67 S. C., 324. Title expresses contents of resolution: 18 S. C., 466; 23 Ency., 1 ed., 235, 239. Office of concurrent resolutions: 2 Strob. E., 250'. Constitutional inhibition against searches does not apply to Legislature: 25 Ency., 2 ed., 149; 166 U. S., 661. Tlmt provision in Federal Constitution applies only to Federal government: 25 Ency., 2 ed., 145: 40 S. C., 363.</p> <p>cite: The resolution is not constitutional: Con. 1895, art. III., secs, 6, 17, 18; art. IV., sec. 24; 1 Wash. T, 115; 67 S, C, 324. The acf of the committee is an unlawful search: Con. 1895, art. I., sec. 16; Cool. Con. Eim1., 4 ed., 357, 367; 5 Coke, 91; 1 Smith Leading' Cas., 183; 2. Wils., 151, 275; Broom Con. Law, 613; Burr, 1742; 15 Hansard’s Debates, 1393-1418; 16 Ibid., 6, 209; De Solme on English Con. C., 18; Story on Con., secs. 1901, 1902; 10' Johns, 263; 11 Johns, 500'; 29 L. R. A., 819; 6 Biss., 379; 116 U. S., 616; 108 U. S,, 168; 166 U. S., 661.</p>

Before Purdy, J., Lexington, September, 1904. Action by Mary E. Able, as administratrix of Oliver C. Able, against Southern Railway and James Alexander. From order refusing petition to remove cause to1 U. S. Circuit Court, defendants appeal. Messrs. Abney & Thomson cite: What petition for removal should set forth: 116 Fed. R., 896; 117 U. S'., 432; 122 Fed. R., 709. The petition is as full as the law requires: 98 Fed.

<p>Before Purdy, J., Sumter, August, 1904.</p> <p>Motion to vacate attachment in case of J. E. Coker & Co. against D. J. Barfield. From order vacating attachment, plaintiffs appeal.</p> <p>Messrs. T■ B. Fraser and Woods & Macfarlan cite: The Court had jurisdiction: 46 S'. C., 517. Defendant had elected another remedy and mas bound by it: 31 S. C., 336; 7 Ency. P. & P., 363; 13 S. C., 40'8. Notice zms insufficient: Rule 57, C. C., 47 S. C., 15.</p> <p>(oral argument).</p>

Before DantzlER, J., Lee, September, 1904. Action by D. J. Barfield against J. L. Coker & Co. From judgment for plaintiff, defendants appeal. Messrs. T. B. Fraser and Woods & Macfarlcm, cite: Wrongftil seizure of person and property gives rise to two causes of action: 29 S. C., 187'; 1 Bail., 441; 31 S. C., 342. No actionable damage in cause of action for seizure of crops: 8 Ency., 551; 52 Sv C., 323; 28 S. C., 397; 68 S. C., 100.

<p>Contempt. — If the return to rule to show cause why party should not be attached for contempt is verified, and no evidence is offered to the effect that it is false, the return will be accepted as true and rule discharged.</p>

Before DanTzeEr, J., Oconee, October, 1905. Application for writ of mandamus by W. J. Schroder, as county treasurer of Oconee County, against C. R. D. Burns, as clerk of Court. From order refusing writ, relator appeals. Mr. Jaynes cites : Sec. 34, art. III., Con. 1895; 6 Ency., 935; 15 Pet., 445; 59 S. C., 110'; 60 S. C., 503. Mr. Herndon cites: Sec. 34, art. III., Con. 1895; 63 S. C-, S50; 59 S. C.,’ 504; 66 S. C., 333; 60 S. C., 504; 64 S. C., 194; 61 S, €., 311; 51 S¡.

<p>Reference — Appeal.—An order of reference in an equity case may be made on call of calendar without special notice, is purely administrative, within discretion of Judge, and not appealable.</p>

<p>Before Prince, J., Saluda, March, 1905.</p> <p>Indictment against John C. Perry. Prom order quashing indictment, State appeals.</p> <p>cite: 34 S. C., 34; 31 S. C., 257; 5 S. G, 429; Code, 1902, 2944; 12 Ency., 1 ed., 357, 346.</p> <p>(oral argument).</p>

Before Prince, J., Saluda, April, 1905. Indictment against Wm. L. Henderson, Alfred Free and Wm. Culbreath. From order quashing panel of-petit, jurors, State appeals. The Solicitor and Mr. Thurmond cite: 34 S. C., 34; 31 S. C., 257; 5 S, C., 429; Code of 1902, 2944. Mr. Ramage (oral argument).

<p>Before Watts, J., Greenwood, March term, 1905.</p> <p>Action by Carrie V. Dixon against Theresa Floyd, John Floyd, Fula Floyd, J. Peter Philips and Farmers’ Bank of Abbeville. From orders refusing to set aside judgment, and requiring defendant, Theresa Floyd, to surrender possession of land, she and the plaintiff appeal on following exceptions:</p> <p>“I. Because the presiding Judge erred in not finding and holding that the evidence clearly shows the appellants had no notice of the holding of the reference on February 27, 1904, and had no opportunity to attend the same, and offer evidence to sustain the allegations of the complaint.</p> <p>“II. Because the presiding Judge erred in not finding and holding that the undisputed evidence showed that the judgment was obtained against the appellants by or through their mistake, inadvertence, surprise and excusable neglect.</p> <p>“III. Because the evidence shows that the making of the agreement by the attorneys for the appellants was not Only unauthorized, but expressly forbidden by the appellants, and was not binding on them', and his Honor erred in not so holding.</p> <p>“IV. Because his Honor erred in not finding and holding that the said agreement made by the attorneys at the reference held February 27, 1904, was not authorized by the appellants, was forbidden by them', and was contrary to their rights and interests in the premises, and that they were excusable for not attending the said reference, there being no evidence to the contrary, but the evidence clearly showing that they did not know of the reference until after the agreement had been made.</p> <p>“V. Because,- as the evidence clearly shows that the said judgment was obtained against the appellants through their surprise, mistake, inadvertence and excusable neglect, his Honor erred in not vacating the same and allowing them to make proof of the facts alleged in the complaint.</p> <p>“The said Theresa Floyd also appeals from the said order on the additional ground that the said orders and decrees of the Court allow her only $50' for her dower interest in the said lands, while taking the expressed consideration of the said deeds as a basis, she was entitled to more than $150' for dower, and the Court should have vacated the said orders and judgments for the purpose of establishing her dower rights in said lands.</p> <p>“The said Theresa Floyd also appeals from' the said order to ej ect her from the said lands on the ground that the said decree or judgment of the Court does not direct the delivery of possession of said lands, and the presiding Judge erred in not holding that said case was- ended and that he had not jurisdiction to make the order to eject her from the said lands.”</p> <p>cite: Order should have been set aside: 51 S. C., 405; 3 Ency., 358; 1 DeS., 461.</p> <p>cite: No abuse of discretion being charged in refusal to set aside order, there is nothing ta consider here: 53 S. C., 231 ; 51 S. C., 405; 38 S, C., 556; 36 S. C., 578; 17 S, C., 451. Sec. ip5 of Code of Proc. does not apply: 7 S. C., 76; Steele v. R. R., 14 S. C. Agreements made by attorneys during trial are binding on clients: 47 S. C., 393; 133 Fed. R., 159; 101 U. S-, 239.</p>

<p>Before Gage, J., York, September, 1905.</p> <p>Action by E. F. Bell against Western Union Telegraph Co., commenced by service of summons and complaint on agent of defendant on June 8, 1905. On 17th June, defendant’s attorneys wired plaintiff’s attorneys: “We have just been employed by defendants in Bell v. Tel. Co., and will file answer as soon as the records are received, and will ask you to extend time for few days, as we have two courts on next week. Answer.”</p> <p>The answer was: “Bell v. Tel. Co. served so' as to be tried in our July Court, which opens 12th. Can’t extend unless you will docket by consent for said term. If you docket by consent will extend time five days. Answer your consent to docket.” Defendant’s attorneys replied: “Will try and file answer in time' in Bell case.” On 26th June, defendant’s attorneys served notice of motion to strike out certain allegations in the complaint and “III. And for time and for leave to answer the complaint.” This motion was heard by Judge Gage on July 12, 1905, in open Court, and the latter part of his order is: “The plaintiff objected to the hearing of the motion on the ground that the same was too indefinite and uncertain, but I overruled the objection, and after hearing argument by counsel for both plaintiff and defendant, both as to the merits of the motion and as to leave to answer, it is ordered:</p> <p>“Ordered, that the language in the complaint noted be stricken out.</p> <p>“Ordered further, that the defendants are in default and have not shown any reason why they should be allowed to answer. They had due notice that plaintiff would stand on his rights and ignored the notice. But they may have a good excuse, and I do' not desire to cut them off from1 renewing the motion upon proper proof, if they so desire.</p> <p>“Ordered further, that the cause be continued.”</p> <p>A motion was then made before Judge Gage at chambers, on September 2, 1905, on affidavits for leave to serve and file an answer and to strike the cause from the calendar, as to which he made this order:</p> <p>“This is a motion by defendant for leave to answer. The complaint was served 8 June, 1905. On 2-6 June — eighteen days after service — defendant noticed a motion before me to strike out certain allegations of the complaint. Code, sec. 181, Rule 20.</p> <p>“In the same notice was a declaration that defendant would at the hearing of the motion ask further time to answer. The motion was heard T2 July, the day noticed. On that day, the time in which defendant was required to answer — twenty days — had expired.</p> <p>“At the hearing, defendant showed no1 cause why the answer had been so long delayed. I granted the motion to strike out, but refused the motion to answer, unless upon further showing. The motion to answer is now renewed, on an affidavit of defendant’s counsel.</p> <p>“The plaintiff resists the motion, because it is not made pursuant tO' the requirements of Rule 61 of the Circuit Court. I do not think that rule applies here, for the motion now, the second motion, is not made before any other Judge. Besides, the affidavit makes plain why the defendant’s attorney did not bring to a hearing the motion to answer within twenty days after service of the complaint. The attorneys had construed Rule 20 tO' mean, that in twenty days after service defendant must do one of two things, answer or notice a motion to strike out, etc.- The language of the rule is notice a motion, the words are ‘Motion to strike out * * * must be noticed * * * within twenty days from the service [of the complaint].’ The rule does not require that the motion must be heard, but that notice must be given. And until the motion has been heard, the defendant ought not to be prejudiced for having noticed it. I think that view is right, and the view I 'had heretofore maintained was wrong. The affidavit satisfies me that the defendant at least had reason to believe the time was yet full to move toi answer when the hearing of the motion to strike out should have been disposed of.</p> <p>“Ordered, therefore, that defendant have leave to answer, and that the answer be served within twenty days after the filing of this order.”</p> <p>From this order plaintiff appeals.</p> <p>Mr. Jennings cítese It is abuse of discretion to do a thing according to custom not sanctioned by law: 50' S. C., 403; 42 S'. C., 209; 48 S'. C., 5; 53 S. C., 580. Motion for leave to answer ' could not be renewed and Heard at chambers: 14 S'. C., 330; Code, 1902, 2736.</p> <p>Mr. Evans cites: Appeal is premature: Code of P'roc., 11; 42 S. C., 547; 52 S'. C., 587. This motion properly heard at chambers: Code of 1900, 2733; Code of Proc., 195, 198, 181; 11 S. C.,’ 15.</p>

Before Purdy, J., Kershaw, October, 1901. Action by Thos. A. Banks against Southern Express Co. From judgment for plaintiff, defendant appeals. cite: If Weeks vms an independent contractor, express company is not liable: 31 S. C., 385; W'ood Master and Servant, 573; 20 Ency., 2 ed., 180; 6 M. & W., 510 ; 8 Cal, 469; Shearman and Redfield Neg., sec. 77; 80 111., 186; 25 Fla., 456; 2 Barb., 424; 56 Pa., 159. cite: Agency• of Weeks and Rusk may be shown by acts and conduct of…

Before Gage, J., Edgefield, November, 1905. Action by Elizabeth J. Bussey ag'ainst Charleston and Western Carolina Railway Co. From order sustaining demurrer to. complaint, plaintiff appeals. cite: Foreign lam mil be enforced here: 13 E. R. A., 458; 15 E R. A., 583; 4 E. R. A., 263; 22 Bncy., 2 ed., 1379; 146 U. S., 1129; 56 E. R. A., 207; 103 U. S., 11; 70 S. C., 254.

Before DantzlER, J., Florence, December, 1904. Action by W. B. DuBose against Western Union Telegraph Co. From judgment for plaintiff, defendant appeals. The latter cite: As to foundation of mental anguish: 69 S. C., 531; 39 Fed. R., 181; 70 S'. C., 418, 522; 71 S. C., 29. cite: Delay in delivering telegram raise's presumption of negligence: 69 S. C., 531, 545; 70 S. C., 83, 116, 123, 423; 65 S. C., 93.

<p>1. Chattel Mortgage — Indexing.—Recording a chattel mortgage and agricultural lien for less than $100 by indexing in book for that purpose under the head of “character of the debt,” “L. & M.,” and under “amount,” “$25.00,” is a sufficient indexing of a chattel mortgage to the amount of $25.00. The fact that the mortgage contained a clause securing other indebtedness does not effect its lien for said amount.</p> <p>2. Rehearing refused.</p>

Before Aldrich, J., Florence, June, 1904. Action by M. N. Hall and wife against James B. McBride, supervisor, and J. G. Woodbury and D. H. T'raxler, county commissioners, and J. O. McLendon, country treasurer, of Florence County.

<p>Before Jos. A. MoCuiaough, special Judge, Oconee, November, 1904.</p> <p>Action by Lem A. B. Moss et al. against Fannie Smith et al. From judgment for defendants, plaintiffs appeal.</p> <p>Mr. Herndon cites: 47 S. C., 522; 49 S. C., 149, 413, 559; 56 S. C., 531; 11 Ency. P. & P., 97-104.</p> <p>Mr. Jaynes cites: 9 Ency., 153, 154; 41 la., 334; 28 Strob., 370; 47 S. C., 520; 70 S. C., 189; 53 S'. C., 93; 56 S. C., 377, 358; 58 S. C., 379.</p>

Before Kxugh, J., Colleton, November, 1904. Indictment against Sarah Simmons, Richard Washington and Sam. Washington. The defendants appeal from sentence. Solicitor Davis, contra, cites: Decision of Circuit Court on facts m motion for new trial is ñnal: 47 S. C., 40; 49 S. C., 249, 293; 51 S'. C., 549.

Before D. E. Hydrich, special Judge, Berkeley, Fall term, 1905. Indictment against Hampton Philips and John Heyward. From sentence, Hampton Philips appeals on the following exceptions: “1.

Before Gary, J., Richland, September, 1905. Action by Julia C. Marshall against Columbia and Eau Claire Electric Street Railway Co., Wylie Jones et al. The circuit decree is as follows: “This case was heard by me at the summer term of Common Pleas for Richland County, in 1905, on the pleadings and on evidence taken by the master for Richland County under an order for that purpose, and after hearing argument of counsel, I find the following facts: “That during* the year 1897…

<p>Highways — Counties—Damages.—Before a person injured in his person or property by reason of a defect in a highway or bridge can recover therefor, under section 1347 of Code of 1902, he must show that he was not guilty of any negligence which contributed to the injury as a proximate cause thereof.</p> <p>McFail v. Barnwell Co., 57 S. C., 294, overruled.</p>

<p>1. Evidence — Self-Defense.—General Reputation for violence cannot be shown by specific acts of violence unless such acts are so connected in point of time with the fatal rencontre as to produce reasonable apprehension of grievous bodily harm and to reduce the other party to the apparent necessity to slay in self-defense.</p> <p>2. Ibid.' — -That a party has been tried for a criminal offense must be shown by record and not by parol.</p> <p>3. Ibid. — Cross-Examination—Homicide.—On cross-examination in a homicide case, solicitor may ask defendant where the woman was that he and deceased were loving, to show motive.</p> <p>4. Mutual Combat — Request.—Statement of law of mutual combat held to be clear, and if more specific definition be desired it should have been requested.</p> <p>5. Homicide — Self-Defense—Burden of Proof. — That defendant had no other safe reasonable means of escape, is a part of the plea of self-defense, and defendant must establish it by the preponderance of the evidence.</p>

Before Watts, J., Sumter, fall term, 1905. Action by Anthony White ei ai., executors of Anthony White, and Mary A. White, administratrix of Bliz. White, against Elizabeth White et al. The proceeds realized from the insurance policies were not sufficient to- pay the legacies in full. From circuit decree, defendants appeal. cite: Legacies are demonstrative: 2 Williams on Eq.; 4 Am:, ed., secs. 1132, 995, 994, 996; Spears Eq., 475; 11 Am.

Before Aldrich, J., Hampton, October, 1905. Action by Guess & Glover against Southern Railway. From order striking out certain allegations of complaint as irrelevant, plaintiffs appeal. Mr. Bostick cites: Notice of motion not in proper forme Pearce v. Battey, 48 S. C.; 44 S. C., 143. Distinction between actions on contract and actions arising out of contract: 25 S. C., 71; 31 S. C., 52; 71 S’. C., 82, 811; Martin v. Ry., 70 S. C.; 5 Ency. P. & P., 740; 741, 756, 761, 762.

Before Townsend, J., Barnwell, April, 1905. Action by James Rountree against Atlantic Coast Line Railroad Co1. From1 judgment for plaintiff, defendant appeals. cites: Plaintiff not entitled to punitive damages: 72 S. C., 343. Statute as to stopping trains at stations does not apply to flag stations: 42 111. App., 387; 19 111. App., 141; 122 111.

Before Gage, J., Fail-field, June, 1905. Action by John D. H'awes against Southern Railway Co. in magistrate court. From judgment on circuit affirming judgment of magistrate, defendant appeals. cites: Construction of statute: 71 S. C., 273. As to surrender of bill of lading before payment of claim: 4 Ency., 2 ed., 525; 4 Elliott on R. R., secs. 1426-29; 9 Am, R., 605; 59 Am. R„ 537; 4 S. C., 387; 23 S. C., 341; 25 S. C., 216; 72 S. C„ 251; 23 Am. Dec., 613; 100 Am.

Before Purdy, J., Saluda. Indictment against Sion Miller and Russell McCormick, for murder of Richard Truesdale. From sentence on verdict of guilty of manslaughter, defendants appeal. cites : Evidence of acts of defendant preceding homicide me incompetent: 40 S. C., 484; Green, on Ev., secs. 51-52; 1 Whar. Crim. Ev., 2ed., secs. 29, 267; 13 S. C., 453; 47 S. C., 90'; 56 S. C., 360; 78 Va., 287; Taylor on Evidence, 304-5-6-7-10, 312, 522, 628 E. R. A., 193.

Before Watts, J., Sumter, October, 1905. Indictment against W. E. Ivey for hawking and peddling. From judgment of Court of General Sessions reversing judgment of magistrate, State appeals. Mr. Jennings cites: What is a hawker and peddler? 42 S. C., 211; 52 S. C., 508. cites: Defendant is not a hawker and peddler: 1 McM., 25; 52 S. C., 211, 508; 55 S. C., 560'. Defendant was engaged in interstate transaction: 153 U. a, 300; 100 U. S., 676; 91 U. S-, 275.

Before Townsend, J., Cherokee, July, 1905. Action by John M. Jenkins against Southern Railway. From judgment for plaintiff, defendant appeals. cites: Value limitation is valid: 39 S. C., 55; 19 S. C., 353; 62' S'.. C., 417 ;• Can v. Texas Pacific Ry. Co. cite: Findings below are conclusive here: 71 S. C., 339; 50' S. C., 110; 55 S'. C., 309; 69 S. C1., 520'.- As to contract limiting value.: 26 S. C., 268; 19 S. C., 367; 39 S'.

<p>1. On Appeal from judgment of Circuit Court on appeal from magistrate court, this Court will not consider alleged errors of Circuit Court in findings of fact or technical errors or defects which do not affect the merits.</p> <p>' 2. Jurisdiction — Waiver.—If a corporation answer a complaint and contest the case on the merits, it waives the right to insist that the court did not have jurisdiction of it.</p>

<p>Petition in the original1 jurisdiction' of this Court by James B. Reynolds for writ of habeas corpus to. obtain possession of his children.</p>

Before Gary, J., Richland. Action by J'. Johnstone Fowles against Seaboard Air Line Railway in magistrate court. From1 judgment affirming judgment of magistrate, defendant appeals. cite :■ Rule in Danner’s case does wot apply to dogs: 10 Rich., 52; 55 S. C., 334. Dog tradlmg near track is not entitled to crossing signals: 33 S. C., 147; 39 S. C., 514; 59 S. C., 247.

Before Watts, J., Richland, August, 1905. Action, by Ellery M. Brayton against Edward A. Beall. From judgment for plaintiff, defendant appeals. cite: Names under common lam: 39 Neb., 59; 21 Ency., 306; 74 Fed. R., 543; 10 Fed. R., 897; 21 111., 31; 42 N. Y. Sup. Ct., 570.

<p>Before Purdy, J., Saluda, 1905.</p> <p>Indictment against Clarence Thrailkill for killing Benjamin Burton. From sentence on verdict of manslaughter, defendant appeals.</p> <p>cite: Testimony as to affair with Lackey Burton inadimssible: 63 L. R. A., 143, and note; Taylor on Ev., 364, et seq., 313; 56 S. C., 360; 78 Va., 387; 40 S. C., 484; Green on Ev., sec. 51; 47 S'. C., 90'. Act done' from compulsion or necessity is not a crime: 3 Kent., 306; 1 Bish. Crim. E., sec. 346. •</p> <p>Oral argument by Mr. Thurmond.</p>

Before Ardrich, J., Barnwell, Summer Term, 1905. Indictment against D. A. Gillis for murder of Nellie Galphin. From sentence on verdict of manslaughter, defendant appeals. cites: 40 S. C., 362; 1 Bish. Cr. E., secs. 1004, 1056; Whart. Cr. PI. and Proc., sec. 465; 29 S. E., 527; 11 Eincy., 1 ed., 939, 940, and cases cited in notes. cites: 1 Bish. Cr. E., 5 ed., secs. 995, 805-6, 117, 996, 118; Walker’s Am.

Before Klugh, J., Aiken, October, 1904. Petition by Sallie Miley in case of H. E. Warneke against D. H. Kearse and Susan Badger Kearse.

<p>1. Conspiracy. — To define conspiracy as “an agreement by two or more persons to do an unlawful act or to do a lawful act, by unlawful means,” is not error, especially when construed in connection with other parts of the charge further defining and illustrating the crime.</p> <p>2. Indictment — Riot.—Conspiracy at common law in riot is of force in this State, and the words in an indictment, contra formarn statute, otherwise charging a conspiracy at common law, may be disregarded as surplusage without striking them out.</p> <p>3. Charge. — Judge did not as alleged describe the means of proof of conspiracy in its details.</p>

<p>1. New Trial.. — There being no evidence in this case tending to show that one of the defendants convicted of manslaughter was guilty either of murder or manslaughter, it was error of law for trial Judge to refuse new trial as to him.</p> <p>2. Charge — Manslaughter—Murder—Criminal Intent. — -Where a defendant is convicted of manslaughter for the killing of one in struggling over the possession of a pistol known by him to he loaded, without warning of that fact by him, the charge, “a criminal intent is attributed to a person who even does a grossly careless act,” construed in its connections, is not error. Would such charge be error if defendant had been convicted of murder?</p> <p>3. Burden of Proof — Accidental Killing. — Charge complained of did not instruct jury that burden of showing an accidental killing was on defendant, hut it especially placed the burden on the State of showing every element necessary to establish a criminal homicide.</p>

<p>Before Gage, J., York, June, 1905.</p> <p>Action by D. A. A. Watson against Henry L,. Hoke. The following is the Circuit decree':</p> <p>“This is an action to abate a nuisance, and to further enjoin its commission. The wrong complained of, is the erection by defendant of gates across a way owned by plaintiff over defendant’s lands. The referee found against the •plaintiff, and the case comes on to be heard upon two exceptions by the plaintiff.</p> <p>“The exceptions raise practically one issue, of mixed law and fact; and that is, did the defendant have the legal right to at all obstruct plaintiff’s way across defendant’s land. The land over which the way lies was conveyed by plaintiff to defendant on 8 December, 1892, and it lies betwixt plaintiff’s two tracts of land. When the deed was made, this clause was written into it: ‘With the reservation of the right of way over said tract of land which I am to have on both sides of Allison’s Creek down to my land which adjoins said tract of land.’ Thereafter the parties made definite that which the deed did not; they" located the way upon the ground, worked it and erected bridges along it. All the parties ever expressly agreed to about the way was written into the deed, and has been recited. There was no fence across the way when the deed was made, and none when the location was made; and, therefore, there were no bars or gates there. The way is a private one; and there is no pretense it is aught else. The case would not be altered if plaintiff had never owned the- servient estate, and defendant had granted to him an easement across the defendant’s land. In that event, would the law forever prohibit defendant to fence his land; for a gate implies a fence? For there was no agreement between the parties, and the law must determine that which they have left uncertain.</p> <p>“In my judgment, section 1338 of the Code of Laws has no reference to a case like this. It embodies the act of 1855. The object of that act was to confer on the owner of the servient estate, by direct grant of the legislature, a right the courts had held he might acquire by prescription. It had reference to neighborhood roads, because the penalty was by indictment. State vs. Pettis, 7 Rich., 390; State vs. Jeff coat, 11 Rich., 529. A ‘right of way’ means what those words imply; it does not mean a way always open; it does not mean a way without any obstruction; words have not been used to express that idea. The right reserved, is to pass and re-pass ; and in the absence of express language, that means to pass and repass’ in a reasonable manner.</p> <p>“The testimony does not show that the gates constitute an unreasonable obstruction; it should do so to establish the plaintiff’s case. The testimony leads me to believe this controversy arose out of a controversy about bridges on the way. Unfortunately for themselves, and for society, these neighbors got wrong with one another; so that acts which might have been regarded as lawful, came to be regarded as trespasses.</p> <p>“I can put my hand on no controlling authority in this State to sustain my view of defendant’s right to erect the gates. Mr. Washburn states the law thus: ‘As a general proposition the owner of a servient estate, over which there is a private way, may maintain gates or bars across the way, provided it do not materially interfere with the use of it; or the way, by the terms of the grant, is to be kept open.’ 2 Wash. Real Prop., 337, 4th ed. An Indiana case thus lays down the rule: ‘It is the rule established by the authorities, that where one grants a right of way across his land, he may shut the termini of the same by gates, unless an open way is expressly granted.’ Boyd vs. Bloom, 52 N. E. Rep., 751.</p> <p>“When the parties laid out the way over an unobstructed field, the inference is not exclusive, that they impliedly agreed that it should always remain an unenclosed field. The defendant had just purchased the land, and the inference might well be drawn that he intended to use it in the same way land owners do use their own lands, consistent also with the rights of others upon and over it. Each party ought to have the reasonable use of his own, in the absence of a plain agreement to the contrary.</p> <p>“In my judgment, the report of the referee should be affirmed; and it is so ordered.”</p> <p>From this decree, the plaintiff appeals.</p> <p>cites: Defendant had no right to. erect gates: 66 L. R. A., 745; 12 Johns, 223; 5 Pick., 485; 11 Gray, 427. Code of 1902, 1338, does not apply: 7 Ex., 369; 3 Yates, 421; 24 N. J. L., 486.</p> <p>Mr. Jennings cites: A gate is not an obstruction: 3 McC., 174; 7 Rich., 390; 6 Rich., 298; 1 McM., 174.</p>

Before Gary, J., Richland, July Term, 1905. Action by Louisa Pagan against Drake Furniture Company. From' judgment for plaintiff, defendant appeals. The former cites: Punitive damages ar.e only awarded for wantonness: 13 Fncy., 105, 107, 54 S. C., 507; 52 S. C., 344; 57 S. C., 228; 60 S. C., 74; 72 S. C., 15. If there is no evidence to sustain a» allegation, Judge shotdd so instnict the jury: 62 S. C., 562; 69 S. C., 453.

Before Gage, J., Greenville, April, 1905. Action by Eugene Batson against Paris Mountain Water-Company. From order overruling demurrer and allowing plaintiff to amend his complaint, defendant appeals.

<p>Before Watts, J., Cherokee.</p> <p>Action by James A. Willis against Western Union Telegraph Company. From' judgment for plaintiff, defendant appeals.</p> <p>cite: State of mind of plaintiff is incompetent: 69 S. C., 598; Jones w Tel. Co., 71 S'. C.; Joyce on Dam., sec. 1014-; 58 S'. C., 210. Remarks of Judge charge on facts: 35 S'. E., 283. Intent with which act was done is admissible: 8 Ency., 693. Party injured should avert or minimise harmful consequences: 69 S. C., 537. No ground for punitive damages: 69 S. C., 445; 54 S-. C., 498; Joyce on Dam., sec. 119; 65 S. C., 4301</p> <p>cite: Plaintiff properly stated that he had suffered: 8 Ency., 2 ed., 658, et seq. Expressions of trial Judge are not charge on facts: 50 S. C., 293; 52 S. C., 537; 54 S'. C., 80; 55 S. C., 403; 41 S, C., 128; 38 S. C., 31; 39 S. C, 350; 40 S. C., 36; 47 S. C., 519. Objection too late after verdict: 100 N. C., 519; 8 Ency. P. & R, 272; 11 New, 149; 48 Wis., 643-; 165 Mas-s., 175. Statement of agent would be hearsay: 53 S. C., 448-; 56 S. C., 360. Proper foundation for contradiction not laid: 1 Green. Ew, sec. 449. What is a reasonable effort to avoid damages is for jury: 8 Ency., 2 ed., 605, 60'6. Unexplained delay m delivery of telegramt warrants punitive damages: 65 S'. C., 99. TIPs Court cctrmot grant new trial because verdict is excessive or unreasonable: 53' S'. ,C., 210; Duke vs. Tel. Co., 71 S. C.</p>

Before Purdy, J.,-Sumter, July, 1905. Indictment against Colclough Stukes for murder of D. E. Wells. Erom sentence on -verdict of' guilty,- defendant appeals.- • ■ ' • cites: A husband may slay a man to prevent a felony on his wife: 30 Miss., 619 ; 58 S'. C., 47. Witness cannot be impeached by evidence of bad character: SO1 S. W., 549. TJw true test of compulsion in making confession: 55 Ga., 136; 108 Mass., 285; 2 C. & D., 347; 5 C. & P., 539.

Before Gage, J., York, July, 1905. Petition of Savings Bank of Rock Hill in re A. H. White against Commercial and Farmers’ Bank of Rock Hill. From decree thereon, petitioner appeals. cites: The trust fund doctrine: Clark on Corp., 539-46; 2 Mor. on Corp., secs. 780, 784, 787; Thomp. on.Corp., secs. 265, 375, 1569, 6547, 4453; 26 Ency., 1007; 10 Cyc., 6536, 1249c, 1367d; 3 Mass., 308; 7 Wall., 409; 91 U. S., 56; 144 U. S., 104; 3 S. C., 160.

<p>1. Elections. — Mandamus will not lie to compel an officer to do an act which he cannot do under the law unless the Court set aside an election already held.</p> <p>2. Ibid. — Dispensary—De Facto Officers. — Under ' the act known as the Brice act, a special election on “dispensary” or “no dispensary” should be conducted by commissioners of election, but such election will not be declared invalid where the managers were appointed by the supervisor, in good faith, and they, in good faith, conducted the election openly and fairly, at instance of one who had notice of all these steps when taken and who does not move until result is declared.</p> <p>Dicta Mu. Justice Woods.</p>

<p>Partition. — Attorney for plaintiffs in partition suit is not erP'tled to fee out of common fund.</p>

<p>Before Townsend, J., Cherokee, July, 1905.</p> <p>Action by T. A. Green against Geo. D. Scruggs and M. J. Hicks. From^ circuit order reversing judgment of magistrate, plaintiff appeals.</p> <p>cite: 28 S. C., 258; 31 S. C., 168; 16 Misc., N. Y., 72; 37 N. Y. Supp., 663; 73 N. Y. St., 283; 5 Mich., 423; 2 Rowy. U. S., 231; 11 Fed. Cas., No. 5, 883; 7 Nat. Bank Reg., 61; 42 Mich., 119; 5 N. W., 291; 1 S. C., 129.</p> <p>cite: 31 S'. C., 168; 28 S. C., 258; 47 S'. C., 374; Code 1902, 3004.</p>

<p>Before Aldrich, J., Aiken, July, 1905.</p> <p>Action by B. D. Lamar, H. M. Dibble, W. E. Mealing, B. E. Holley, J. H. Getzen, R. S. Anderson and A. L; Barker against T. G. Croft, Jr., H. M. Cassels, Luther W. Reese and R. A. Cochran, commissioners. From order granting temporary injunction, Cassels and Reese appeal.</p> <p>cites: Plaintiffs house not sufficient interest to■ maintain suit: 15 Ency. P. & P., 472 (b), 473, note; 102' 111., 60. County only proper plaintiff: Con. 1895, art. VII., sec. 9; Code of P'roc., p. 85, 5 Ency. P. & P„ 800; 11 Cyc. XI., A., p. 607, 608; 9 S'. C., 1; 35 S. C., 508; 5 Ency. P. & P'., II., 2, p. 301; 72 Col., 520; 117 N: C'., 211. No' came of action stated: High on Inj., 31, 32; 2 Ibid., 1024, 1031; 7 Ency., 2 ed., 905; 117 N. C., 211; 54 S. C., 1; Black on Int. of L., 24; Cool. Con. Eirm., 67; Story Con., sec. 434; 6 Ency., 2 ed., 1010'; 103' Fed. R., 900; 177 U. S., 261; 7 Wall., 347; 30 Cola., 262; 19 111., 229. ’</p> <p>Messrs. Hendersons cite. Appeal is premature: Code of Proc., sec. 11; 58 S. C., 21. Plaintiffs have right to mainttain the action: High on Inj., sec. 795; 1 Pom. Eq. Jur., 227; Cool, on Tax., 764; 2 Dill on Mun. Corp., sec. 736; 33 S'. C., 1; 38 S'. C., 238 ; 39' S, C., 298; 44 S. C., 270; 54 S. C., 1. There is equity in the complaint and plaintiffs have no adequate remedy at law: 6 Hump., 428; High on Inj., secs. 796, 802; 11 Ency., 2 ed., 200. Temporary injunction proper: 65 S. C., 86; 1 Poro. Eq. Jur., secs. 245, 260'; Cbol. on Tax., 765; 67 S. C., 83; 54 S. C., 457; 69 S. C., 158; 62 S. C’., 2201; Code 1902, 573. As to construction of sec. 2, of art. VIL, Con.: 1 Story on Con., secs. 400, 402, 40'3; 25 S. C., 264; 42 S. C., 250.</p>

Before WATTS, J., Chesterfield, August, 1905. Action by E. T. Watson against Paschall & Co. From circuit order vacating attachment, plaintiff appeals. cite: As to order of publication: 19 S. C., 294; 42 S:. C., 166; 16 S. C., 499; 70 S. C., 501. As to indorsement on bond: Code of Proc., 251, 252; 31 S. C., 262; 72 S. C., 570; 43 S. C., 340 ; 4 Ency.

Before Memminger, J., Charleston, May, 1905. Action by Exchange Banking and Trust Co., as guardian and guardian ad litem of Minnie J. Finley, against Edward Finley et al. From circuit decree, defendant Edward Finley appeals. cite: Rule as to payments for necessaries: 35 S. C., 521; 31 S. C., 604; 6 Rich., 26; 15 Ency., 2 ed., 100 ; 1 & Ibid., 278. Relationship between parties: Harp. Fq., 179. Executor’s right of set off: 37 S-. C., 123; 44 S. C., 95.

<p>Before Townsend, J., Colleton, March, 1905.</p> <p>Motion in Circuit Court for new trial on after-discovered evidence, in State v. R. A. Adams. From order granting motion, State appeals.</p> <p>Solicitor Davis cites: Question of jurisdiction can be made here: 19 S. C'., 218. Circuit Court had no jurisdiction of motion: 14 S. C., 428; 39 S. C., 4201; 40 S. C., 294.</p> <p>Solicitor Jervey cites: Jurisdictional question can be made here: 19 S. C., 218; 25 S, C., 385; 27 S. C., 331; 28 S. C., 313; 70- S. C., 288. Court below, is without jurisdiction of motion: 39 S. C., 420'; 39 S-. C., 414; 40 S. C., 294; 41 S. C., 506, 522.</p> <p>cite: Remittitur carried jurisdiction to Circuit Court: 3 S. C., 337; 5 S. C., 262; 14 S. C., 584; 16 S. C., 300, 261; 17 S. C., 217, 264; Crim. Code, 72; 33 S. C., 403. No- objection having been urged below to jurisdiction, it is waived: 3 S. C., 335.</p>

Before Gary, J., Oconee, March, 1905. Two actions in claim and delivery (1) John M. Moody against J. T. McKinney, and (3) P'. P. McDaniel and John A. Morton against same. Prom judgment for plaintiff, defendants appeal. cite: 36 Fed. R., 84; 9 Ben., 539; 3 How., 333; 8 Otto; 395. Mr. Herndon cites: Grim'. Code, 594; 53 S'. C, 179; 39 Fed. R., 765; 37 Fed. R., 336; 13 Wheat., 486; 96 Fed. R., 479;-44 Fed. R., 796; 30 Fed. R., 79; 15 Fed. R., 383; 17 Blatchf., 335; 4 Div.

Before Gage, J., York, April Term, 190-5. Action by Jos. H. Caldwell against Seaboard Air Line Railway. Tbe following is the Judge’s charge: “Gentlemen of the jury: Before I proceed toi charge you the law in this case as I see it, I will take up the requests to charge, and that means the law' as it is seen by the counsel for the parties. The plaintiff in the case, Mr. Caldwell, makes no written requests.

<p>1. Charge — Contributory Negligence. — An erroneous statement in a charge as to what defendant alleges as to the contributory negligence of plaintiff, when not stating the law of contributory negligence, is not error where the Judge subsequently, several times charges fully and accurately the law of contributory negligence.</p> <p>2. Negligence of plaintiff is not a good defense to wilful negligence of defendant.</p>

<p>Winns — Executory Devise.. — If no time be fixed in a will for vesting of devises, they vest at death of testator, and a devise to my sister A. and her own children and to my nephew B. and his own children as long as they may live to each share and share alike, vests the land at death of testator in A. and B. and such children as they then have living, equally for life, and a child born to B. after death "of testator, can take no interest as executory devisee or otherwise.</p>

<p>1. Contributory Negligence. — Definitions of contributory negligence given by Judge in different parts of his charge here complained of, are in substantial accord with the definitions thereof by this Court.</p> <p>2. Railroads — Conductors—Engineers.—Under rules giving conductor control of movement of trains, but giving engineer right to disregard his orders if contrary to rules or dangerous to person or property, engineer is not responsible for movements of train by order of conductor contrary to orders, where the conductor has been especially appointed pilot of the engineer for the trip, he not being acquainted with the road or the trains running thereon.</p> <p>3. Ibid.- — Ibid.—Negligence.—The conductor is the representative of the company in running a train, and if injury is caused by his negligence in performing his duties, the company is liable.</p> <p>4. Ibid. — Ibid.—Ibid.—Constitution.—Any implied agreement to release the company from liability to engineer for negligence of conductor by working under a rule providing that the engineer was jointly liable with conductor for the movements of the trains is null and void under section 15, article IX., of Constitution of 1895,</p> <p>5. Master and Servant — Contributory Negligence. — A servant is not generally guilty of contributory negligence by obeying the instructions of a representative of the master on the spot, although such obedience disregards a rule of the master, and in so obeying he has the assurance of the master that he may safely proceed to the work assigned him.</p>

Before Prince, J., Kershaw, April term, 1905. Action by W. C. Montgomery against Seaboard Air Line Railway. From judgment for plaintiff, defendant appeals. The former cite: Gerieral denial raises issue of corporate capacity : Eng. & Amer. Corp., 634; 21 S. C., 28; Bliss on Code Plead., secs. 248, 250, 260; 8 S. C., Ill; 25 S. C., 315; 31 S. C., 309; 43 S. C., 17.

<p>I. Evidence. — The Conduct, actions and general behavior of the accused in a homicide case immediately before the killing, are admissible to show he was armed and in a vicious manner.</p> <p>9.- Ibid. — Cuesing.—That the defendant in a homicide case was in the habit of cursing, could not affect the result of the case.</p> <p>3. Jurors. — Statutes prescribing time and manner of selecting jurors are usually regarded as directory, and assignment by jury commissioners of one person as drawn to the petit jury and another to the grand jury as the drawing proceeded, is only an irregularity, and under sec. 2947, Code 1902, which applies to both grand and petit jurors, there being no substantive evidence that appellants were injured by irregularity, objection to such method of assigning jurors to the different panels comes too late after verdict, it not appear-ing that the irregularity was not known to appellant before trial.</p>

Before Frank B. Gary, special Judge, Cherokee, November,' 1904. Action by Jennie Roberts against Western Union Telegraph Company. From judgment for plaintiff, defendant appeals. The latter cite: Judge should have submitted to jury, would an ordinary human being have suffered under like circmnstames: 69 S. C., 538; 62 Ala., 180; 56 Ala., 292. If plaintiff did not intend to attend the funeral, defendant is not liable for anguish arising from not attending: 27 Fncy., 1076.

Before MemmingER, J., Charleston, April, 1905. Motion by defendant in case of Edward K. Jenkins against Penn Bridge Company to set aside service of summons. From refusal, defendant appeals. Mr. Duncan cites: 39 Mich., 469; 19 Ency. P. & P., 665, note, sec. 15; 54 Eed. R., 420; 19 Ency. P. & P., 676; 81 Va., 568. Mr. Barnwell cites: Code of Proc., 155, sub. 1; 2 Fed. Cas., 850; 6 Tex., 391; 95 U. S., 714; 172 U. S., 602; 29 Eed. R., 17; 39 S. C., 493.

<p>1. Bab. — Jurisdiction.—Upon refusal of motion to transfer case from cal. 2 to cal. 1, Court may refer the case to the master although oral notice of intention to appeal had been given.</p> <p>2. Equity — Reference.—Issues raised by pleadings in a suit to have adjudged that defendants have forfeited all interest in real property under an agreement in writing, the answer admitting that defendant’s claim under the agreement, but denying forfeiture of all interest thereunder, are equitable and case properly referred to master to take and report evidence on all issues</p>

Befare Klugh, J., Laurens, August, 1905. Action by J. W. Abram® against Columbia, Newberry and Laurens Railroad Co. Prom Circuit order affirming magistrate judgment, defendant appeals. The latter cite: 24 Stait., 1, 2, contravenes 14th amendment of U. S- Con., and art L, sec. 5, Con. of S. C.: 63 S. C., 196; 165 U. S., 155. (oral argument).

<p>Before Purdy, J., Kershaw1, October term', 190'4.</p> <p>Action by Charleston Savings Institution against Farmers’ and Mechanics’ Bank. From' judgment for plaintiff, defendant appeals.</p> <p>cite: Case should have been sent to jury: 2 Fncy., 1 ed.. 351; 4 Ibid., 225; 3 Ibid., 2 ed., 800>; 7 Ibid., 788; 15 S. C., 92; 21 S. C., 557; 60 S. C., 293.</p> <p>cite: Rule as to introduction of books: 2 McM., 436 ; 1 Bay, 33; 4 McC., 76 ; 3 Rich., 354; 41 S. C., 152; State v. Collins, 15 S. C.; 63 S. C., 569; 72 Fed. R., 4791; 3 S. &.R., 2-9; 8 Am. Dec., 640; 36 N. H., 543; 13 N. J. Eq., 455; 45 N. H., 355; 38 I'll., 215. Refusal to admit check: 2-Hill, 350'; 1 Strob., 478; 3 S1. C., 214; 16 S. C, 514, 489; 75 N. Y., 124; 51 Vt., 559; 12 Gray, 216; 4 Bncy., 2 ed., 339; 12 Gray, 345; 1 Dan. on Neg. Inst., 164; 2 Dan. on Neg. Inst., 260; '21 Ency., 2 ed., 526, 527; 60 N. Y., 386. These notes are negotiable: 48 S. C., 310. Whpi rights has holder of such paper: 27 S. C., 132; 32 S. C., 545; 26 S'. C., 510. Defmdcmt’s right to discount: 1 Morse on Banks, sec 158; 51 S. C., 73. Accommodation indorser: 3 Ency., S ed., 801; 101 U. S., 181; 35 N. Y., 505; 16 N. Y., 138.</p>

<p>Before Gary, J., Lexington, June, 1905.</p> <p>Seven actions by Columbia Water Power Company v. Arthur S. Nunamaker; v. E. F. Nunamaker; v. Eliza M. Nunamaker; v. Lizzie Bearden et al.; v. Susan G. Huffman; v. S. P. Younginer; v. Martha C. Nunamaker. From order requiring plaintiff to give in each case a temporary injunction bond, plaintiff appeals on the following exceptions:</p> <p>“Please take notice that the plaintiff in the above entitled seven cases excepts to so much of the order of Judge Ernest Gary, of date 28th June, 1905, which provides that the continuance of the restraining orders previously granted by him on June 12th, 190'5, in each of said seven cases, be conditioned upon the plaintiff in each of said cases filing a written undertaking with surety within ten days, to- the effect that plaintiff will pay to the defendants such damages, not exceeding two hundred dollars, as they may sustain by reason of the injunction, if the Court should finally decide that the plaintiff was not entitled thereto', and that it will ask that the order be reviewed upon any appeal now or hereafter taken from any order or final judgment therein, upon the following grounds:</p> <p>“1. Because the bringing and filing by the plaintiff of its several actions against the defendants above named, to have determined the question of the right of said defendants to condemnation, suspended the statutory proceedings for condemnation brought by the defendants until the trial and determination-of the issue as to' the right to condemnation and compensation; and the presiding Judge should, as requested by plaintiff, have passed an order simply directing that, as said actions had been commenced, all further steps should be and thereby were suspended until the determination of the question of the right of defendants to condemnation.</p> <p>“2. Because, upon the bringing and filing by the plaintiff of its several actions to determine the question of the right of defendants to condemnation, the presiding Judge, on 12th June, 1906, granted orders restraining the defendants from1 prosecuting their statutory proceedings for condemnation, and the plaintiff was entitled to a continuance of said orders without the condition that it give an undertaking to pay defendants damage in any amount, and the presiding Judge erred in his order of June 28, 1906, in making the continuance of his previous restraining orders conditioned upon the giving of an undertaking to' pay damages to defendants.</p> <p>“3. Because the undertaking referred to in Section 243 of the Code of Procedure does not apply to the actions brought by the plaintiff herein, with regard to> and concerning the special condemnation proceedings instituted by defendants, and neither under said action nor under any other law- can plaintiff be required to give an undertaking as a condition of having the question of right of defendants to condemnation determined, and the presiding Judge erred in making such requirement.</p> <p>“4. Because under the laws of South Carolina there is no method of testing, as between plaintiff and defendants, the question of the right of defendants to condemnation, except by the bringing of an action by the plaintiff, and to require the plaintiff to give an undertaking to pay damages to defendants as a condition of the exercise of its right to maintain such action and to test the question, and to' require no undertaking from defendants, is placing the plaintiff and defendants upon an unequal footing, and denies to the plaintiff the equal protection of the laws, and the presiding Judge erred in placing such burden upon the plaintiff.</p> <p>“5. Because there were no facts showing any damages whatsoever that defendants could in any event or in any amount suffer by a continuance of the restraining orders. and the presiding Judge, therefore, erred in requiring an undertaking from plaintiff to pay damages to the defendant in any event or in any amount.”</p> <p>Mr. Jno-. P. Thomas, Jr., cites-: Section 243 of Code of Proc. does not apply to this case: 38 S'. C., 318; Code of Proc., 240, 239, 449; 51 S. C., 379. This proceeding is ancillary to condemnation proceedings: 69 U. S., 633; 63 S. C., 544. Appellant pursued the only mode open to it to test its legal right: 67 S. C., 93; 1 S. C., 53. To require appellant to give injunction bond, and respondent none, denies to appellant the equal protection of the laws: 165 U. S., 150.</p> <p>Messrs. Shand & Shand cite: Appellant has right to bring action to test right to condemn and to injunction: Code of Proc., 241; 3 Dan. Chan. PI. & Pr., 1838. And he must give security for injunction: Code of P'roc., 243; 51 S. C., 379. Order here is not appealable: 42 S. C., 101; 51 S. C., 434; 54 S'. C., 457; 62 S. C., 196; 71 S. C., 45.</p>

<p>Before Watts, J., York, November Term, 1904.</p> <p>Action by W. F. Jackson, Jr., against Southern- Railway —Carolina Division. From judgment for plaintiff, defendant appeals on the folloiwng exceptions:</p> <p>“2. For that his H-onor erred in allowing the plaintiff, against the objections- of the defendant, to- answer the following question: ‘How much have you been damaged in dollars and cents by reason of this injury?’ The error being that as the facts had already been testified to by the plaintiff, it was error to permit him to give his opinion as to the amount he had been damaged.</p> <p>“3. Because his Honor erred in not granting the defendant’s motion for a nonsuit on the ground©:</p> <p>“1. That there is no evidence tending to show any negligence on the part of the defendants, or either of them1.</p> <p>“2. Because the evidence shows- that the injury which came to the plaintiff was caused by the act of an employee of the defendant company who- was engaged in the s-amie kind of work as plaintiff was engaged in, to1 wit: pushing the cars away.</p> <p>“3. That the evidence shows that plaintiff was either a volunteer, or, at most, was only a servant in1 the employment of the defendant, and that any injuries which came to him came through the act of a fellowrserv-ant engaged in the same department of labor, and in the same kind of work, for which the defendants are not responsible, or else that it was an accident pure and simple.</p> <p>“The error© being, as it is respectfully submitted, that his Honor should have held:</p> <p>“1. That there was no negligence shown on the part of either of the defendants.</p> <p>“2. That any injuries which came to plaintiff were caused by „the act of one engaged in the same department of labor and the same kind of work, to wit: pushing the cars away, and was one of the risks assumed by the plaintiff, for which the defendants are not responsible, and if these injuries were occasioned by any negligence it was the negligence of a fellow-servant engaged in the same kind of work, and in the same department of labor. * * *</p> <p>“5. Because his Honor erred in charging as follows: T charge you further as matter of law that if the agent at Tirzah had authority to call upon bystanders to assist in pre-* serving the property of the railroad and getting it out of the way of the fire, and any one accepted that invitation and went in to assist him, then they had a right to assume— that is, the party who accepted the invitation to go in — had a right to assume that the appliances were reasonably suitable and safe, and that the servants of the company employed to remove those cars were reasonably competent and would do it in a reasonably safe manner. The law imposes the duty upon all railroad companies when, they have a man to do work to furnish him' with reasonably safe and suitable machinery and to' keep the same in reasonably safe and suitable repair, and also imposes upon them the duty of having reasonably safe and suitable persons to perform the duties of moving the trains and things of that character, and a party who goes into work of that sort has a right to assume that the railroad company has reasonably safe and suitable appliances to do the work, and they are to' be operated by reasonably safe and suitable persons. So- I charge you as matter of law, if the railroad agent at Tirzah acted within the scope of his uthority and called upon the plaintiff in this case to assist him in removing the cars, and he went in to assist 'him' and he was injured through the carelessness and negligence of the servants of the defendant company, and that was the direct and proximate cause of his injury, then he is entitled' to recover such damages as be sustained by reason of his injury, if he was injured through the negligence and carelessness of the employees of the defendant company, proportionate to the injury sustained by him.’</p> <p>“The error being, as it is respectfully submitted:</p> <p>“a. That by this charge his Honor led the jury tO' believe that if the servants of the company who were engaged in moving the cars were not reasonably competent to do this work in a reasonably safe manner- that the plaintiff could recover, whereas, it is respectfully submitted, there is no allegation in the complaint charging the defendants with negligence in the employment of incompetent servants, nor is there any evidence tending to prove, this fact, and it was error to submit these questions to the jury.</p> <p>“b. That by this charge his Honor led the jury to believe that the plaintiff could recover in this case if the appliances or machinery were not reasonably safe and were not in a reasonably safe condition.</p> <p>“The error being that there is no allegation in the complaint charging the defendants with negligence in not furnishing reasonably safe and suitable appliances, or with negligence in failing to keep the same in repair, nor is there any evidence tending to prove this fact; it was, therefore, error to submit the same to the jury.</p> <p>“c. That by this charge his Honor led the jury to believe that the plaintiff could recover in this case, if be was injured through the negligence and carelessness of a fellow-servant who- was engaged in assisting him in removing the cars; whereas, it is respectfully submitted, that if the injury to plaintiff was occasioned by the negligence and carelessness of a fellow-servant engaged with plaintiff in the same kind of work, to1 wit: the moving of the cars, it was the act of a fellow-servant in the same department of labor, for which the defendant is not responsible.</p> <p>“6. Because his Honor erred in charging the jury as follows: ‘But if he was injured through the carelessness and negligence of an employee or servant of the defendant railroad company, and their carelessness and negligence was the direct and proximate cause of his injury, then he is entitled to recover such damages as you think he has sustained proportionate to the injury sustained.’</p> <p>_ “The error being, as it is respectfully submitted, that by this charge his Honor instructed the jury and'led them to believe that if the injury to plaintiff was occasioned by the carelessness and negligence of an employee or servant of the defendant company, and if this carelessness and negligence was the direot and proximate cause of his injury, then he could recover ; whereas, it is respectfully submitted, that if plaintiff was engaged in this work either as a volunteer or as a servant of the company, and was injured through the negligence of one engaged in the same kind of work and in the same department of labor, it was one of the risks assumed by the plaintiff for which the defendant is not responsible.</p> <p>“7. Because his Honor erred in refusing to charge the defendánt’s second request, without modification, to wit: Tf one, who* is not in the employment of a railway company, is called upon in an emergency to assist the servants of the company to* perform necessary work, and is injured while doing such work, he has no cause of action against the company if he is injured through the negligence of others who may be assisting him in performing such work.’</p> <p>“The error being, as it is respectfully submitted, that this request was a sound proposition of law’ applicable to the pleadings and the testimony introduced by plaintiff, tending to show that the injuries about which he is complaining were caused by the act of a fellow-servant doing the same kind of work and engaged in the same department of labor, for which the defendant is not responsible, and it was error not to charge it without modification.</p> <p>“8. Because his Honor erred in modifying the defendant’s second request to* charge as follows: T charge you that with this addition: that wherever a man is called upon by a party having authority to* call upon him, to do* any work for a railroad company, he has a right to' assume that the machinery and appliances and things of that sort are safe and suitable, and he has a right to assume they are kept in safe and suitable repair. He has a right to* assume that the servants of the company are reasonably competent and safe, and suitable to do* the work which they are employed to do*.’</p> <p>“a. The error being, as it is respectfully submitted, that by this modification his Honor led the jury to* believe that the plaintiff could recover if the machinery and appliances were not suitable and safe, and if the servants were not reasonably competent, even though' .the complaint contains no* allegations touching the same, and even though there is no* evidence tending to prove them*.</p> <p>' “b. The error being, as it is respectfully submitted, there is no allegation in the complaint charging the defendant with negligence in these respects, nor is there any testimony tending to prove the same, and it was therefore error to- submit these matters to the jury.</p> <p>“9. Because his Honor erred in refusing to charge the defendant’s third- request, without modification, to wit: ‘If one, who is not in the employment of a railroad company, undertakes at the request of a servant of the company to- aid such servant in doing necessary work of the company, this gives him no higher rights than he would have if he had been regularly employed by the company, and if while doing such work he is injured through- the negligence or carelessness- of those aiding him in doing the same piece of work, he has no cause of action against the company on account of such injuries, and cannot recover damages- on account of the same.’</p> <p>“And in modifying the same in the following respects, to wit: T charge you that with this- addition: if the plaintiff here was called upon by the agent of'the defendant company there to come in and do the work, and he called on other bystanders, to come in and do the work, and he was injured through the negligence and carelessness of a bystander, who went in on llie same terms- as he did, he could not recover; but if he was injured through the negligence and carelessness of a regular employee of the railroad company, and his carelessness and negligence was the direct and proximate cause of his- injury, or if the appliances furnished him to- work with were not safe and suitable, or if the crew regularly employed were not reasonably safe, suitable and competent to do the work, then he could recover.’</p> <p>“The error being, as it is respectfully submitted:</p> <p>“a. That the request of the defendant was a sound proposition of law applicable to the pleadings- and testimony introduced in this case, and it was error to modify it.</p> <p>“b. Because by the modification of this request, his Honor led the jury to believe that if the plaintiff was injured through the negligence and carelessness of a regular employee of the railroad company engaged in the same kind of work and in the same department of labor, such- employee would not be a fellow-servant, and that if the plaintiff was injured through the negligence and carelessness of a regular employee, then that the plaintiff could recover; whereas, it is respectfully submitted, that the regular employee engaged in the same kind! of work and in the same department of labor with plaintiff, would at most be-only a fellow-servant, for whose negligence the defendant would not be responsible.</p> <p>“c. That by this modification, his Honor led the jury to believe that if the appliances furnished were not safe and suitable, or if the crew regularly employed were not reasonably competent, then that the- plaintiff could recover; whereas, it is respectfully submitted, there is no allegation in the complaint charging the defendants with negligence in these respects, nor was there any evidence introduced tending to show negligence on these two points, and it was error to submit the same to' the jury.</p> <p>“NX Because his Honor erred in not charging defendant’s sixth .request without modification, and in modifying said request as he had previously modified' defendant’s second and third requests: ‘Before the jury can render a verdict in this case in favor of the plaintiff, they must be satisfied by the preponderance of the proof that the plaintiff was injured by the negligence of some one; and if the jury find that there was negligence on the part of any one, and should find that this negligence was- the negligence of those engaged with the plaintiff in the same kind of work, then their verdict must be for the defendant.’ T charge you that in connection with what I have already said to you about if the agent called upon another bystander and he went in under the same terms as the plaintiff did.’</p> <p>“The errors being, as it is respectfully submitted:</p> <p>“a. That this- request contains a sound proposition of law applicable to the pleadings and evidence in this case, and it was error to modify the same.</p> <p>“b. That by modifying this request his Honor led the jury to' believe that the plaintiff could recover if the injury occurred through the negligence of a regular employee of the defendant, even though such person was engaged in the same kind of work and in the same department of labor with plaintiff at the time of the injury; and in submitting to' the jury the question of negligence on the part of the defendants in reference to the safety of the machinery and appliances , and in reference to the competency of the regular employees; whereas, it is respectfully submitted, there is no allegation in the complaint charging the defendants with negligence in these respects, nor wias there any evidence tending to show such negligence.</p> <p>“11. Because his Honor erred in connection with the defendant’s eighth request to charge in charging as follows : ‘I charge you that. He cannot recover in any event, he cannot recover unless he was injured through the carelessness and negligence of the servants of the defendant company, and their carelessness and negligence was the'direct and proximate cause of his injury.’</p> <p>“The error being, as it is respectfully submitted, that in so charging his Honor led the jury to believe that the plaintiff in this case could recover if he was injured through the carelessness and negligence of the servants of the defendant company; whereas, it is respectfully submitted, that if the injuries of the plaintiff were occasioned by the negligence of the servants of the defendant engaged in the same kind of work, and in the same department of labor, then these injuries being caused by the act of a fellow-servant the defendant is not responsible, and his Honor should have so charged.</p> <p>“IS. Because his Honor erred in not charging defendant’s twelfth request without modification and in modifying it as follows: 'Tills case is not governed by the law of an invited guest but by the law of fellow-servants, and if the plaintiff was injured through a mere accident,'or through the negligence of a bystander, your verdict must be for the defendant. Now, genleraen, I have charged you that in my own language. If I call upon you, Mr. Foreman, te» do a piece of work for me, we being no> kin, but strangers to' each other, then that raises an implied obligation on my part to pay you reasonable compensation for your services, and if I invite you to come and do a particular piece of work, a certain kind of work, you have a right to assume that I have safe and suitable appliances for doing that work, reasonably safe and suitable, and that I am to keep the same in reasonably safe and suitable repair; and if I employ you with others in a piece of work under my supervision and direction, then- you have a right to assume that the men I have employed to assist you are reasonably competent for the purpose of doing the particular work for which they have been employed; and if I am there bossing, and directing and supervising that work, and you are injured through any carelessness or negligence of any fellow-servant of yours acting under my direction and obeying my orders, if I km the boss, and their negligence and carelessness is the direct and proximate cause of the injury, then in that event the party injured would be entitled to recover, if the carelessness and negligence of the fellow-servant, acting under my direction or obeying the boss and having a right to direct at that time, and that negligence was the direct and proximate cause of the injury.’</p> <p>“The error being, as it is respectfully submitted:</p> <p>“a. That by this modification his Honor submitted toi the jury the question of whether the defendant had safe and suitable appliances, and whether the persons employed to assist him-, were reasonably competent; whereas, there are no allegations in the complaint charging the defendant with negligence in these respects, and no testimony was introduced tending to prove these facts, and it was error to submit the same to the jury.</p> <p>“b. That by this charge his Honor led the jury to believe that if the plaintiff was injured through the negligence and carelessness of a servant of the defendant company engaged in the same kind of work and in the same department of labor, then that he could recover; whereas, it is respectfully submitted, that if these injuries were occasioned by the act of a fellow-servant engaged in the same department of labor, the defendant is not responsible.</p> <p>“12. Because his Honor by his charge led the jury to believe that there would be a distinction between the injuries occasioned! plainitff caused by the negligence of one called in as plaintiff was called in under an emergency and by one having authority to do> so, than, if these injuries were occasioned by a regular employee of the company; whereas, it is respectfully submitted, that if plaintiff was acting in the capacity of a servant of the company, then he had no' higher or greater nights than any other servant, and if these injuries were occasioned by the negligence or carelessness of a regulár servant or employee of the company engaged in the same kind of work and in the same department of labor, it would be the act of a fellowi-servant, for which the defendant is not responsible.</p> <p>“13. Because his Honor in his charge taken as a whole erred, in that he led the jury to believe that if the injuries to plaintiff were inflicted through, the negligence of one who was called in toi help push away the cars as plaintiff was called in, that then plaintiff could not recover any damages for said injuries; but that if the injuries were inflicted through the negligence of a regular employee or servant of the company, then that the plaintiff could recover; thus drawing a distinction between the negligence of a servant employed under an emergency or for a temporary purpose and the negligence of a regular employee or servant ; whereas, it is respectfully submitted, there is no difference under the law, and it was error in his Honor so charging.”</p> <p>cites: Injury zms the result of an accident: 76 N. C'., 320; 3 Mo. App., 300'; 46 111. App'., 619; 1 LaBatt on Master and Servant, secs. 143, 145, 143; 30 Am. R., 399; 16 Am. R., 399; 119 N. C.. 387. The negligence was that of a fellow-servant: 2 LaBatt on M. & S., sec. 631, and cases cited in note, 679, 687, 688, 734; 39 S. C., 511; 51 S. C., 96; 71 S. C., 56; 70 S. C., 97; 93 Am1. St. R., 32 ; 3 Elliott on R. R., secs. 1253, 1353; 147 Mass., 573; 156 Mass., 293; Reno Emp'. Liab. Acts, sec. 59; Wallace & Rob. on Duty and Liab. of Emp., 255, 267; Dressers Emp. Liab., sec. 62; 171 Mass., 163; 5 Am. St. R., 564; 41 Am'. St. R., 32; 40' S'. C., 342; 57 S. C., 302; 56 S. C., 534; 41 S. C., 90. Duty of master in furnishing safe appliances and incompetency of servants are not relevant here: 62 S. C., 15; 65 S. C., 24; 19 S. C., 70'; 53 S. C., 216.</p> <p>cites: Party may give Ms estimate of his injury in money: 1 W'har. Ev. Par., 511; 19 S. C., 68; 65 S. C., 34; 57 S. C., 445. Respondent is not fellow-servant of station agent: 25 S. C., 128, 446; 63 S C., 559; 68 S. C., 505; Art. IX., sec. 15; 68 S'. C., 69; 52 S. C., 438; 51 S. C., 79; 61 S. C., 468. As to liabilities of railroad companies to the employees in furnisMng safe place and appliances: 68 S. C., 83; 18 S. C., 262, 275; 52 S. C., 438; 60 S. C, 9; 46 L. R. A., 58; 70' S. C., 492; 63 S. C., 575; 67 S. €., 136; 72 S, C., 444. Station agent was immediate representative of appellant: 68 S. C., 69, 505; 63 S'. €., 559; 25 S. C., 446, 123; 52 S'. C., 438; 51 S. C., 79; 61 S, C., 468; 23 S. W. R., 311; 70' & C., 492; 63 S. C., 575; 67 S. C., 136; 46 L. R. A., 58; 60 S. C., 9; 18 S. C., 275, 362.</p>

<p>Railroads — Principal and Agent. — A Corporation owning a railroad by virtue of powers conferred by charter and permitting another corporation to operate it must be considered to be stiE itself operating the railroad through the corporation to which it has turned over the property as its agent, and is liable for injury caused by statutory or other negligence of the corporation operating the road.</p> <p>Pennington v. R. R. Co., 35 S. C., 439, overruled.</p>

Before Watts, J., Richland, Summer Term, 1904. Action by Workingmen’s Building and Eoan Association against Philip Epstin, in his own right and as executor of Amelia Epstin, T. A. Wilbur and son et cel. Prom Circuit decree, defendants, T. A. Wilbur & Son, appeal.

<p>Judgment — Decbee.—A Circuit Judge, after closing the Courts in one circuit and while holding Court in another, cannot alter a decree previously filed by him by changing the order to sell the lands “described in the complaint” to an instruction to sell other lands than those described in the complaint, under the rule permitting Judges to correct clerical errors after adjourning Court in orders already filed.</p>