Volume 74 — South Carolina Reports

<p>Before Krugh, J., Abbeville, special May term, 1905.</p> <p>Action by .-Rufüs C. Wysong against Seaboard Air Line Railway. From judgment for plaintiff, defendant appeals.</p> <p>cites: Proof is that plaintiff was using an appliance known by him to be defective and under laws of Ga. he could not recover: 117 Ga., 47; 70 Ga., 566;; 88 Ga., 225; 68 Ga., 699; 42 & E., 737; Elliott on R. R., Sec. 1293; 29 S. W., 544. The trial Judge should have charged that the evidence did not warrant punitive damages: 69 S. C., 453; 60 S. C., 67; 72 S-. C., 411'. Servant cannot recover under Georgia lam for injuries from latent defect in appliances, if he had equal means with master of knowing same: 115 Ga., 624.</p> <p>cites: Trial Judge should have granted nonsuit as to the cause of action for punitive damages: 66 S. C., 256; 69 S. C., 529; 72 S-. C., 402. Under Georgia law, knowledge and voluntary use of defective appliance by servant defeats recovery: 115 Ga., 542, 934; 116 Ga., 441. Cartlege v. Mfg. Co., 120' Ga.; 58 Ga., 490; 55 Ga., 133; 50 Ga., 465.</p> <p>The former cites: It is duty of master to select and furnish proper appliances: 15 S. C., 443; 18 S. C., 262, 275; 61 S. C., 468. Evil intent may be inferred from doing an act recklessly and wantonly: 60' S. C., 67; 70 S. C., 1; 72 S. C.,1.</p> <p>cites: The rules of evidence to be applied in trial of a case are those of the lex fori: 22 Ency., 2 ed., 1383, 1384, 1385; 13 Pet., 378; 106 U. S., 124; 154 U. S.-, 190; 1 Rich. Eq., 187. Where the testimony is close to the dividing line it is error to charge there is no evidence; to support an issue: 65 S. C., 123, 440;’72 S. C., 256; 35 S. C., 493. Evidence-in surrebuttal properly ruled out: 25 S. C., 148; 2 McC., 161; 3 Wait. Prac., 124. Punitive damn ages are given to punish defendant and to deter others: 13 Cyc., 106; 51 S. €., 303; 52 S. C., 344; 35 S. C., 493; 34 S. C., 311.. - :</p>

<p>1. New Trial — Lease.—There being evidence to support the allegation that a lease was obtained by fraudulent representations, it was not error to refuse a new trial.</p> <p>S. Lease. — Evidence of Parol Contract for rent of land for several years is admissible to show that party in possession was holding under bona fide claim of right and not liable for punitive damages.</p> <p>3. Witness — Contradiction—Notice.—It is not reversible error to permit a witness impeached by contrary statement without notice, where the impeaching evidence had been taken before trial, but the rule of giving notice commended.</p> <p>4. Evidence — Parol—Lease—Fraud.—Statement of lessor that she had only executed one lease is not prejudicial, where both leases in question were in evidence, and there was no issue as to the execution of either, but the issue was as to the invalidity of one because obtained by fraudulent representations.</p>

Before DanTzlER, J., Oconee, Tall Term., 1903. Action by James Johns- Harbert, administrator, against Atlanta and Charlotte Air Line Railway Co.- From1 order refusing to strike out allegations of answer, plaintiff appeals; cites: Code 1902, 2024, 2139; 3 S. C., 580; 29 S. C., 381; 25 S. C., 216; 28 & C., 401-; 33 S. C., 427; 41 S. C., 415; 62.S. C., 250; 61 S. C., 212; 30 L R. A., 823; 43 S. C„ 197; 63 & C., 370; 17 Wall., 445; 65 S. C., 218; 95 U: S., 16.1; • cites: The…

Before J. P. Carey, special Judge, Richland, May, 1905. Action by Henry Strickland against Capital -City Mills. From judgment for plaintiff, defendant appeals. cites: As to duty of master as to obvious dangers in machinery: 55 S. C., 483; 72 S'. C., 346; 72 S. C., 411. Assignment of interest in judgment to secure fee is not privileged communication: 86 Am. Dec., 385; 12 Rick., 89; 14 Pick., 422; 3 Gilm., 308; 36 Cal., 490; 24 Ga., 463; 46 la., 140; 50 Am.. Cen.

Before Prince, J., Fairfield, September, 1905. Action by S. A. Wright against Southern Railway, in magistrate court. From order modifying magistrate judgment, plaintiff appeals. cite: Code of P’roc., 360', 110'; 12 S. C., 113; 19 S. C., 115; 51 S. C., 545. (oral argument).

Before Dantzlrr, J., Orangeburg, August, 1905. Action by Angie C. Wilson against Durham S..Wilson. From circuit decree, defendant appeals. cites: Deed conveyed land to two as joint tenants and should be equally divided: 46 Am. St. R., 883; 54 Am. St R., 188; Harp. Eq., 19; 2 Rich., 541; 22 Ency., 91-95, 98, 99, 100-100, 114, 115, 121-5, 127; 12 Rich., 75. No firm assets were fraudulently converted: 22 Ency., 196; 25 S. C., 517; 21 E. J. Ex., 154; 21 Hill Eq., 542.

<p>1. Rehearing ordered.</p> <p>2. Wills — Limitations of Estates — Merger—Notice—Issues.—Devise to A. for life and in case A. die leaving issue of the body, then to such issue in fee, but in default of issue, to B. in fee vests fee after life estate in B. with the contigent remainders limited thereon, and if B. acquires the life estate, the contingent remainders are thereby merged into the fee, but merger will not take place if contrary to the intention of the parties, and this rule applies both in equity and at law. Cases considered. If a grantee of A. had acquired title without notice of intention against merger, would merger be held to have taken place as to him? The act of 1883, Code 1902, 2465, would not include a case of this kind.</p> <p>3. Evidence — Writings.—A letter written seventy years ago is an ancient document and requires no proof, but its genuineness may be proved by a comparison with writings of the author known to be genuine.</p> <p>4. Probate of Deed sworn before George Bruce, U. Q., is valid, as at its date, 1820, clerks of Court were ex officio Justices of the Quorum, the letters U. Q. signifying Umim Quonim, George Bruce being at that time clerk of the Court, but omission of official title of officer taking probate does not affect it.</p> <p>5. Real Property — Nonsuit.—Letters of defendant grantee in connection with the several deeds; parol evidence of the successive possessions and admissions of those who held successively, were evidence sufficient to justify the Court in not granting nonsuit, on ground of total failure of proof of locus in quo.</p> <p>6. Ibid. — New Trial as to both defendants was properly refused, because the evidence establishing title against the one presumptively showed title out of the other, although he claimed from a different source.</p>

Before Memminger, J., Charleston, July, 190'5. Action by R. J. Murray against Western Union Telegraph Company. Prom judgment for plaintiff, defendant appeals. The latter cite: The plaintiff suffered no damage for which defendant is liable: 72 S. C., 356; 69 S. C, 550; 67 S'. C., 293; 72 S- C., 290. There is no evidence of wilful or wanton conduct: 72 S-. C., 256'; 69 S. C, 444, 445; 68 S, C., 98; 72 S. C., 343.

Before Klugh, J., Abbeville. Action by Sallie' McGrath against Piedmont Mutual Insurance Company. Prom1 judgment for defendant, plaintiff appeals. cite: Appellant can be sued only in county where its principal office is: 65 S. C., 336; 47 S. C., 388; 3 Rich., 513; 1 Strob., 72; 1.51 U. S., 496; 35 S. C'., 385; 38 S. C., 313.

<p>Notes — Notice.—A Bank which has purchased a negotiable promissory-note before maturity for value is not charged with notice that such note has been renewed and paid to the first payee, by the fact that the renewals and payment passed through the bank, it being the bank in which payee kept an account.</p>

Petition’to this 'Court in its original jurisdiction for writ of mandamus' against the Atlantic Coast Line Railroad Co. requiring it to obey the order of the Railroad Commissioners. The opinion herein was filed February 26, 1906, but on petition for rehearing the remittitur was held up. STATEMENT OF FACTS.

Before Purdy, J., Sumter, July Term, 1905'. Action by Alexander L. Cain against Atlantic Coast Line Railroad Co. From judgment for plaintiff, defendant appeals. cites: Declarations of agent only bind the principal when descriptive of the particular point as to which he was acting: 56 S. C., 136; 53 S. C., 448; 58 S. C., 70. Witness may give opinion after stating the facts: 19 S. C., 70. Proof must correspond voith allegations: Cheves, 9; 1 N. & McC., 589; 4 Rich., 296; Pom.

Before Klugi-i, J., Abbeville, special May Term, 1905.' Action by W. F. Nickles, administrator, against Seaboard-Air Line Railway, oil the following complaint: “The plaintiff above named, by his attorney, Wm, N. Graydon, complaining of the above named defendant,. aL leges: “I. That the plaintiff is a resident and citizen of this county and State. “II.

Before Klugi-i, J., Oconee, March Term, 1904. Action by Myra M. Brucke et al. against Milton Reese Hubbard. Held: and the judgment against the defendant was erroneous in that respect.” cites: Transactions between plaintiff and grantor are excluded under sec. 400 of Code: 47 S. C.,. 488. Delivery of deed must be shown to make it effective: 2 Strob., 306; 1 Strob. Eq., 349; 9 Ency., 150.

Before Klugh, J., Laurens, August, 1905. Two actions by Charleston and Western Carolina-Railroad Co. against -Cally Garlington and Annie C. Davis. From judgment for plaintiff, defendants appeal. cites: Appellants have right to damages for taking right of way: Wash, on Bas., sec. 32-; 67 S. C., 515; 25 Sup. Ct. R., 522; 33 S. C., 477.- cite: It requires twenty years to ripen prescriptive right of way: 53 S. C., 503; 63 S'. C., 439, 494; 67 S. C., 507.

<p>A Will devising and bequeathing “to my wife M. of * * * all my real estate and personal property * * * and I constitute and appoint my wife M. executrix * * * but if she gets married again then her authority must seize and all my real and personal property must be sold and I make the following bequests * * * and after my wife’s death or if she gets married again then I appoint * * * Rev. Q. or his successor executor * * * giving him full power and authority to sell or any part of my real estate, personal or mixed, and at such times and on such terms and for such purposes as he may deem well,” carries to the wife a life estate and the bequests and residue were to become operative upon her remarriage or death and then to be administered by Rev. Q. or his successor.</p>

<p>■'.’Before Purdy, J., Clarendon,'May, 1905.</p> <p>Action by John T. Wilder against D. W. Alderman & Sons Co. From order refusing to dissolve temporary injunction, defendant appeals. •</p> <p>cite: 27 S. C., 415; 51 S. C., 387; 62 S. C., 196; 54 S. C., 473; 51 S. C., 435; 42 S. C., 101; 69 S. C., 156; 60 S. C., 559; 63 S. C., 45; 62 S. C., 473; 42 S. C., 95; 24 S. C., 44; 17 S. C„ 417; 67 S. C., 84; 63 S. C., 199, 348 ; 38 S. C., 308 ; 59 S. C., 371; 62 S. C., 56; 69 S. C., 554; 4 S. C., 402; 34 S. C„ 13; 60 S. C., 391; 54 S. C., 430.</p> <p>cite: 69 S. C., 160.</p>

<p>1. Notes and Bins — Drafts.—The Presumption that drawer knows the sighature of drawee of draft is conclusive only where the party receiving money has contributed in no way to the success of the fraud or the mistake of fact upon which payment was made.</p> <p>2. Ibid. — Ibid.—Presentation and unrestricted indorsement tends to mislead drawee into belief that signature to draft was genuine.</p>

Before Purdy, J., Richland, Fall Term, 1904. Action by Blanche O. Torick against Palmetto Bank and Trust Co; From1 judgment for defendant; plaintiff appeals. cites : Damages for malice may be given without claiming punitive damages: 5 Ency., 2 ed., 061; 114 Mass., 519; 32 Mich., 77; Bald. (U. S.), 138. Qualified refusal is equivalent to refusal: 5 Ency., 2 ed., 1059; 12 Rich., 518. Plaintiff is entitled to damages: 14 C. B., 595; 5 Ency., 2 eel., 1060; 2 Add.

<p>Probate Court — Appeal.-—Probate op Will in probate court is a law case, and findings by Circuit Judge on appeal from probate court in such case are not reviewable here.</p>

Before Purdy, J., February 14, 1905, and J. P. Carey, special Judge, August, 1905, Richland. Bx parte Eliza J. Powell, in re G. W. Fetner, against J. W. Powell, T. G. Patrick ct al. From Circuit decrees, petitioner and defendant Patrick appeal.

<p>Before Gary, J., Abbeville, February, 1905.</p> <p>Action by W. M. Ellison & Co. against J. T. Johnson & Co. From, judgment for plaintiff, defendant appeals.</p> <p>cites: 2 Rich., 48; 24 Ency., 1157; 58 Am. St. R„ 313; 32 S. E. R., G83, 718; 78 S. C., 18; 139 U. S., 199.</p> <p>cites: 43 S. C., 257; 37 S. C., 8, 110-.</p>

Before Klugh, J., Williamsburg, June, 1905. Action by Dexter A. Brown against S. J. Tharpe in magistrate court. From Circuit order affirming judgment of magistrate, defendant appeals. No argument furnished Reporter. cite: Cool. Con. Lim., 5 ed., 218, 219; 68 S'. C., 357; 8 Cyc., 802, 804; 14 Ga., 438; 45 Ga., 370; 8 Cyc., 737; Code 1902, 1505, 1506, 1507, 1510, 1513; 24 Stat., 393; 7 Daw R. & R., sec. 3833; Cool. Con.

<p>Banks. — A Check on a bank operates as an assignment pro tanto of the drawer’s deposit account, and the bank cannot refuse payment of a check in hands of bona fide indorsee and holder because the drawer has notified bank that the check was obtained by fraud, and there was a failure of consideration. Bank has no right to deposit money in Court and demand that drawer he made party defendant and required to litigate with holder the bona fides of the check. The remedy of drawer is to take action to prevent payment of check, and bank should be allowed reasonable time after notice to await action of drawer and to decide if it would risk suit by holder or drawer.</p>

<p>Before Watts, J., Spartanburg, February, 1905.</p> <p>Action by R. D. Blowers against Southern Railway Co. From judgment for plaintiff, defendant appeals.</p> <p>cites: It is not a common law. or statutory duty of railroad company to ■ carry mails: U. S. Rev. S-tat., 3999, et seq.; 19 S-tat, 72-82; 25 Ct. of Cl., 30; 142 U. S., 615; 164 U. S., 190; Bald. Am. R. R. F., 399; 76 Ala., 357; 12 Stat., 508; 11 Stat., 348. Scape of authority of agent must be shown: 1 Elliott on R. R., sec. 211; 35 S'. C., 521; Meach., sec. 276; 3 Cook on Cor., 4 ed., sec. 720. Declarations after transaction by agent are not res gestae: 1 Elliott on- R. R., sec. 218; 27 S. C., 63 ; 53 S. C., 450-; 70- S. C., 22. The messenger thought he was being paid by government for transferring, he cannot now recover of defendant: 22 Ency., 530; 45 Am. St. R., 875; 62 S. C., 15. An agent having only delegated' authority, can not delegate it: Mech. on Ag., secs. 191, 184, 185.</p> <p>cite: Railway company is presumed to know the agency by vehich it performed the work: 70' S-. C., 380. Acts of station agent bind the company: 72 S. C., 120', 259.</p>

<p>Before J. E. McDonald, special Judge, Aiken.</p> <p>Action by T. E. Fitzgerald against Langley Manufacturing Co'. From> judgment for defendant plaintiff appeals.</p> <p>cite: Effect of what other well regulated companies dr: Lob. on M. & S., secs. 53, 113; 107 U. S., 454; 12 L. R. A , 232; 63 U. S., 157; 60 S. C., 153. As to admissibility of expert evidence: 12 Ency., 2 ed., 428, 439; Law. on Ex. Ev., 73; 10 How. P1. R., 289; 69 S. C., Í04; Lob. on M & S., 2286, 2288; 63 N. Y. Supp'., 44; 34 N. E., 84; 55 S. C., 339; 56 Fed. R., 994; 12 Ency., 2 ed., 426, 427 ; 59 S. C., 315; 48 A. S. R., 114.</p> <p>cite: As to assumption of risk by servant from defective machinery: .21 S. C., 541; 20 Ency., 2 ed., 124; 61 S. C., 478; 66 S. C., 208. What is contributory negligence: 56 S. C., 91; 68 S. C., 222; 59 S. C., 322. What is subject of expert evidence? 59 S. 0., 314; 117 Mass., 122; 12 Ency.', 461; 1 Elliott on Ev., sec. 6'72; 97 N. Y., 507; 60' S. C., 70. Refusal to- permit expert evidence is reversible only in abuse of discretion: Elliott on Ev., 1036, 1037; 72 S. C„ 421; 60' S, C., 153; 70 S. C., 478.</p>

<p>Before Gage, J., Richland, September, 1905.</p> <p>Action by John Alexander Pickett, by guardian, against Southern Railway — (Carolina Division. From order permitting amendments to complaint, defendant appeals.</p> <p>cites: As to construction of sec. 194: 21 S. C., 226; 80 S. C., 564; 10 S. C., 101; 72 & C., 137. Binding of Judge on second trial that defendant was guilty of conrtributory negligence warrants dismissal of complaint: 56 S. C., 95; 47 S. C., 517; 25 S. C., 173; 19 S. C., 94; 5 S, C., 70; 14 S. C., 61, 431; 17 S. C., 137.</p> <p>cite: Amendment by striking out is permissible: 40 S. C., 525; 37 S. C., 335; 9 S. C., 330; 21 S. C., 242; 32 S. C., 142; 64 S. C., 92; 30 S. C., 475; 37 S. C„ 335; 53 S. C., 315; 54 S. C., 114; 63 S. C, 307; 68 S. C., 506; 1 Ency. P. & P., 562, 516, 590; 1 Greene, 147; 9 S. C., 334; 10 S. C., 101. Motion before final judgment is motion before trial: 30' S. C., 564. Discretion as to amendments will not be disturbed except for abuse: 28 S. C., 386; 13 S. C., 491; 18 S. C., 315; 701 S. C., 344. Cause of action may be stricken out: 70 S. C., 243; 1 Ency. P. & P., 618; 30 S. C., 574; 54 S. C., 113. Change of amount of damages demanded: 1 Ency. P. & P., 586, 590'; 601 S. C., 495. Amendments do not make entirely new action: 32 S- C., 142; 30 S. C., 575; 63 S. C., 307; 54 S. C., 113; 68 S. C., 506. Bindings at one trial are not binding on second: 14 Ency. P. & P., 992 ; 64 S. C., 242.</p>

Before Townsend, J., Bamberg, April, 1905. Action by T. W. Pearlstine, as. trustee for S. W. Pearlstine, and S. W. Parlstine, against Phoenix Insurance Co. From' judgment for defendant, plaintiffs appeal. cite: The contract of insurance in question here is binding on defendant: Wood on Fire Ins., 2 ed., 1208, 560, 207, 1161, 1121, 1163, 646-7; May on Ins., 606-7; 13 Ency., 2 ed., 222, 229 ; 5 Wall., 509; 49 Mo., 578; 7 L. R. A., 572; 21 W. Va., 366; 31 W. Va., 651; 93 111.,…

<p>1. Evidence given as of witnesses’ knowledge, with nothing to indicate the contrary, is competent, although it refer to written accounts and admissions of their correctness by defendant by indorsements, as to which he had testified and about which there was no serious contest.</p> <p>2. Evidence that debtor refused to take out insurance and refused to cancel doubtful policies was relevant here as tending to rebut charge of lack of diligence on part of creditor in failing to keep up the insurance.</p> <p>3. Evidence under facts of this case to the effect that there was no agreement that the notes and contract were to be null and void in case the business was moved to another place, tended to deny the existence of any special agreement of that import.</p> <p>4. Insurance — Surety.—Where the right to insure a stock of goods is absolutely in control of the debtor owner, he nor the surety has any right to require creditor to accept certain policies, nor was the debtor under any obligation to cancel policies on advice of creditor.</p> <p>5. Ibid. — Ibid.—Negligence.—If creditor assumes responsibility of advising debtor as to insurance of stock of goods and provides policies with acquiescence of debtor he becomes trustee of insured charged with exercise of reasonable diligence, but his responsibility to the surety ends as soon as he gives the debtor the information he has as to solvency of insurer and offers to follow his instructions.</p> <p>6. Contracts. — The Surety to contract for sale of goods to “J. B. King, of Bishopville,” is not relieved because of removal of business to another town, because those words are mere descrvptio personae.</p>

Before Klugh, J., Williamsburg, July, 1905. Action by A. H. Williams, assignee in ’bankruptcy of A. H. Brown, against Ella F. Jones, Evelyn M. Brown and B. Wallace Jones.

Before Klugh, J., Laurens, August, 1905. Action by Sudie M. Campbell against the Harris Lithia Springs Company, on the following complaint: “I. That the plaintiff is the widow of the late Rev. Thomas A. Campbell, who departed this life at Anderson, South Carolina, on the-■ day of February, 1905, at which time and for many years prior thereto she was his lawful wife. “II.

<p>Speciat, Damages. — Allegations that a party took his trunk to the baggage room of a carrier one evening, returned the next morning, bought a ticket to a certain point and asked that baggage be checked to that point; was informed that trunk had been sent by mistake to another point, but would be forwarded to passenger’s destination until he arrived; that it was never so delivered, are not sufficient to notify carrier that he would be subject to special damages in case of nondelivery, nor to put carrier on inquiry of special circumstances.</p>

<p>1. Appeal. — This Court will not reverse an order because it does not fully approve the reasons given by the Circuit Court for the exercise of its admitted power and discretion.</p> <p>2. Costs — Second Action. — Payment of costs of first action for possession of land is a condition precedent to bringing a second action and should be alleged in the complaint, but if not, it is proper to permit defendant to amend his answer on motion noticed during second term after second action commenced by alleging the fact of non-payment, and the motion does not come too late.</p> <p>Miller v. Grice, 2 Rich., 37; Daniels v. Moses, 12 S. C., 137, distinguished from this.</p>

Before Watts, J., York, November Term, 1904. Action by Dorothy H. Brickman, admx., against Southern Railway. From' judgment for plaintiff, defendants appeal on the following exceptions: “1. Because the presiding Judge erred in admitting, over the objection of defendants’ counsel, the testimony of Dr. Miles Walker, which said testimony was as follows;: ‘Q. Did you on that occasion (coroner’s incjuest) see the remains of Mr. Brickman? A. Yes, sir.

<p>1. Deeds — Damages—Rents—Railroads.—Upon the construction that a deed conveying to a railroad corporation certain lands “forever for railroad and depot purposes,” carries the fee and right of possession to the corporation, and that leasing parts of such lands as are not now used by the corporation to others, who erected thereon buildings and used them for other purposes, was a breach of the condition running with the land, the lessees are not liable to original grantors for rental value, but for such damages as naturally and proximately result from the breach, and the measure is ordinarily the amount which the adjacent lands of grantor would have been increased in value if contract had been complied with.</p> <p>2. Costs.- — In an action to declare breach of a covenant running with land and for injunction, holding by trial Judge that one defendant should pay costs, affirmed, except that the order is limited to costs accrued to its date and that it should not include costs thereafter accrued in litigation between other parties to the suit in which this defendant was not interested.</p>

Before Klugh, J., Greenville, March Term, 1904. Action by Suda L. Franklin and Howard H. Franklin against Atlanta and Charlotte Air Line Railway Co. From judgment for plaintiffs, defendant appeals. cites: Lessor railroad is not liable for injury to passengers by lessee road: 63 S. C., 570'; 60¡ S. C., 209, 390; 61 S. C., 335; 65 S. C., 97; 59 S. C., 544; 35 5.

Before Gary, J., Richland, July, 1905. Action by J. A. Faust against Southern Railway Co. From! Circuit order reversing magistrate judgment, plaintiff appeals. cites: General denial does not put in, issue corporate existence: 25 S. C., 309; 27 S. C., 164; 22 S. E., 789. Is defendant liable after notice to stop in transituf 23 S. C., 286; 26 Ency., 2 ed., 1116. As to proof of agency: 67 S. C., 395. cites: Evidence of defendant’s oivmei'ship of cars must be shown: 63 S. C., 96.

Before W-aTTS, J., Greenwood, May, 1905. John U. Wardlaw and W. H. Kennedy against Troy Oil Mill et al. From Circuit decree, Troy Oil Mill, G. P. Neel and J. C. Kennedy, receivers, and First National Bank of Greenwood, .appeal. cites: Order as to opening cause and prozAding for attorneys’ fee on claim of D. A. Tompkins Co. is wrong: Code of P'roc., 294, 290; 30 S. C., 329; 32 S. C., 58.

<p>Before Frank B. Gary, special Judge, Anderson, March, 1905.</p> <p>Action by George Galletley, receiver of the Commercial Building and Loan Association, against A. C. Strickland. From Circuit decree, defendant appeals.</p> <p>cite: Is this a S. C. or a Va. contract? 31 S. C., 125; 19 S. C., 589; 55 S. C, 123; 58 S. €., 551; 15 S. E. R., 812; 51 S. C., 591; 58 S. C., 85; 56 S. C., 295; 67 S, C., 270; 55 S. C., 119; 51 L. R. A., 537; 57 L. R. A., 802; 55 L. R. A., 933. If ai S. C. contract, it is usurious: 12 Rich. Fq., 124; 15 S. C., 163; 55 S'. C., 106; 63 S. C., 537. And znluat is basis of settlements? 65 S. C, 453; 63 S. C., 538; 65 S. C., 406; 14 S. C., 121; 55 S. C.-, 117; 12 Rich. Fq., 121; 62 S. C., 178; 27 S. E., 274; 62 S. C., 165; 29 S. E. R., 711; 51L. R. A., 541; 7 Thomp. on C'orp., sec. 8797. Failure to- comply zvith statutory provisions as to foreign building and loan associations renders this contract void: 20 S’. C., 130.</p> <p>cite: Is contract to- be construed by lazvs of S. C. or of Va.? 68 S. C., 236; 19 S’. C., 583. Is contract usuriotis under lams of Va-.? 129 U. S., 397; 12 Rich. Eq., 124.</p>

Before Gage, J., Horry, February, 1906. Motions in State against Commander Johnson, appellant. cites: Jziror must be impartial: 36 S. C., 504, 479; 39 S. C., 97. Juror must answer truly on voir dire: E. R., 37 Ch. Div., 541; 8 S. C., 239; 20 S. C., 449; 15 S. C., 155. Refusal to grant new trial here is error of law md reviewable: 54 S. C., 142, 148; 9 S. E., 861; 57 Miss., 434.

<p>Before DantzlER, J., Pickens, December, 1905.</p> <p>Action by Ella Hallums against Isaac Hallums et al. From circuit decree, plaintiff appeals.</p> <p>cite: Starkie on Ev., 938, 939; 26 S. C., 256; 4 McC., 256 ;2N.& McC., 11510' & C, 503: 3 Rich., 434; 19 Ency., 1209; 31 L. R. A., 414; 14 L. R. A., 540; 22 Am. R., 224 ; 69 Am. St. R., 649; 1 B'ish. M. & D., sec. 956; 12 Am. St. R., 453; 6 How., 550'.</p> <p>cites: 19 Ency., 1206; 19 Am. St R., 408; 71 N. Y., 423; 57 Am. R., 454; 20 Am. St. R., 316; 30 Am. R., 466; 4 N. Y„ 230; 19 Ency., 1208, 1209; 10 S'. C'., 502; 22 Am. D'ec., 160; 2 Am. St. R., 105.</p>

<p>Before Prince, J., Fairfield, September, 1905.</p> <p>Indictment against Sol Griffin for murder. From sentence on verdict of manslaughter, defendant appeals.</p> <p>cite: 2 Piales P. C., 78, 82, 83; 1 East. P. C., 67, 68, 69; Ros. Cr. L., 240; Voorhies on Ar., 112; 6 Bunn (Pa.), 316; 1 Hawks, 457; 1 Hill, 220; 50’ S. C., 426; 53 S. C., 150; 36 S. C., 496; 2 Sedd. Nisi Prius, 934; 44 Am. Dec., 293, note; 9 Am. Dec., 658; 1 Chitty Cr. L-, 17.</p> <p>cites: 1 Hill, 223; 2 Ency., 789; 72 S. C., 807; 13 Stat., 377.</p>

Before Prince, J., Anderson, May, 1905. Indictment against Dan, Hill for breaking and entering a dwelling and larceny. Defendant appeals from refusal to enter verdict by Court. cite: 17 Ency., 905; 33 Ency. P. 8c P., 844; 33 S. E., 433; 15 Ency. P. & P., 331; 31 S. €., 11; 33 S. C., 369; 41 S. C., 355; 17 S. C., 3; 4 Waits P'r., 594; 47 S. C., 166.

<p>Demurrer — Motion to Quash Indictment. — Objection that the date of the committal of an offense is laid in the indictment at a day subsequent to the finding of the bill and of day of trial must be taken by demurrer or motion to quash before jury is sworn.</p>

Before Krugh, J., Spartanburg, November, 1905. Action by Raul Dawkins against Keystone Granite Co. From judgment for plaintiff, defendant appeals on following exceptions: “1.

Before Purdy, J., Aiken, Fall Term, 1905. Indictment against R P. Tóale, Elijah Salley, Humphrey Chavous and Ben Chavous for obstructing neighborhood road. From' sentence on verdict, defendants appeal. cite: Adverse user for twenty years must be shown: 63 S>. C., 494; 54 S» C., 294. Deed improperly excluded: 63 S. C., 453.

Before Memminger, J., Greenwood, October, 190-5. Action by Charlie Shaver, by guardian, against Grendel Mills on following complaint: COMPLAINT-. “The plaintiff above named, complaining of the defendant, alleges: “1. That the defendant ‘The Grendel Mills’ is, and at the times mentioned in this complaint, was, a corporation created by and under the laws o-f the State of South Carolina, with Jegal capacity to sue and be sued. “2.

Before Prince, J., Colleton, December, 1905. Action by Nixon and Danforth against Piedmont Mutual Insurance Cb. Prom order changing venue, plaintiff ap.peals. cites: As to jurisdiction of person: 46 S. C., 11; 53 S. C., 441. As to waiver: 51 S'. C., 171. As to jurisdiction of Court: Elliott on Ap. Pir., sec. 498. As to domestic corporations: 47 S. C., 387; 15 111., 437; 17 Ga., 323; 51 Mo., 308; & Rich., 512; 1 Strob., 70. cite: McGrath v. Piedmont Ins. Co., ante 69

Before Buchanan, J., Lancaster. October, 1904. Indictment in magistrate court against John C. Spray and James H. Massey. Prom order affirming judgment of magistrate, defendants' appeal. cites: As to> jurisdiction of magistrates: Art. V., sec. 21, Constitution; Criminal Code, sec. 11.

Before Memminger, J., Colleton, August, 1905. Indictment against Tobe Pinckney for selling property under lien. From order affirming judgment of magistrate, defendant appeals. cites: Question of jurisdiction may be raised at any time: 19 S. C., 218. And can not be waived: 53 S. C., 198. Magistrate had no> jurisdiction: Crim. Code, sec. 337. cites: Objection to jury after one sworn comes too> late: Code 1902, 2046.

<p>Constitution — Safe Crackers — Statutes.—The act entitled “An act to provide punishment for safe crackers,” 24 Stat., 396, is not violative of sec. 17, of art. III., of Constitution, in that the subject of the act is not expressed in the title. Who may be denominated “safe crackers,” under the act stated.</p>

<p>Before Aedrich, J., Anderson, Spring Term, 1906.</p> <p>Indictment against J. P. Haynes for selling property under lien. From sentence on verdict, defendant appeals.</p> <p>cite: There must be an intention to dispose of the property: 43 S. C., 203. To pawn is not to' dispose of: 22 Ency., 2 ed., 508; 2 Kent., 577; Jones on Pledges, sec. 1. Ambiguity of contract may be explained by parol: Green, on Ev., 16 ed., 275, 298; 48 S. C., 372; 1 Ency. Ev.,'827, 829, 831; 14 Rich. Eq., 150; 57 S. C., 60. Bart of contract may be shown by parol: 61 S. C., 166. Contract is not a mortgage: Herman on Chat. Mtg., 18; Jones on same, 4 ed., secs, 8, 12, 18, 102; 2 S. C., 48; 5 S. C., 283; 27 S. C„ 46; 40 S. C., 529; 1 Ency. of Ev., sec. 297.</p>

Before Prince, J., Laurens, January, 1906. Indictment against Walter Jones for assault and battery with intent to kill. From sentence on verdict, defendant appeals.

<p>Before Gage, J., Edgefield, October, 1905.</p> <p>Indictment against Jesse Langford for larceny. From' sentence on verdict, defendant appeals.</p> <p>cite: Witness may describe a track, but not give cm opinion as to mho made it: 401 S. C., 328. Statement of circumstances relied on by State is charge on facts: 68 S'. C., 153; 65 S. C., 176; 70 S. C., 75; 67 S. C., 431; 61 S. C., 556; 68 S. C., 392; 69 S. C., 451. Instruction unoi safe to convictf’ should have been “must acquit!’ 1 Green. Ev., sec. 13, and note; 35 S. C., 25; 66 S'. C., 34. Juror was not impartial: 1 Bish. Cr. L. & P., sec. 774; Con., art. I., sec. 18; 54 S. C., 147.</p> <p>The Solicitor cites: Statement of Judge as to circumstances relied on, not charge on facts: 40 S. C., 330; 54 S. C., 177; 69 S. C., 451; 40 S. C., 294; 47 S. C., 517. Juror complained of was constitutional one and objection comes too late: 54 S. C., 145.</p>

<p>Witness — Contempt—Legislature—Evidence.—A committee appointed under concurrent resaolution of the' Legislature and authorized by it and by subsequent act to investigate the affairs of the State Dispensary, to send for persons and papers and to require answer to any question the committee deems relevant to such investigation, has power to commit a witness for contempt for refusal to answer whether a party who had had dealings with the State Dispensary had said to him in fact or in effect that he had given rebates or graft or money in some improper way, or had improperly influenced the Board of Directors in the purchase of liquors. Such evidence is not hearsay as to the dealer with the Dispensary and cannot be withheld because it would violate the implied confidence of a private conversation.</p>

<p>Accounting — Pleadings—Banks.—In action by a stockholder against the president and directors of a bank for negligence in conducting the affairs of the bank, it is not necessary to allege what loss was occasioned by a special act of negligence of a particular officer, or who was on the managing board at the time of a special loss, or to allege all the losses complained of, as the object of the accounting is to ascertain what act each officer is chargeable with and the proportion in which each is liable.</p>

Before Keugh, J., Sumter, April, 1905. Indictment against John Henderson for murder. From sentence, defendant appeals. cite: As to admission of confessions: 6 Ency., 2 ed., 530-1; 14 S. C-, 628; 36 S. C., 524; 5 Cyc., 471. Malice is presumed only where killing is shown to Have been without cmose or excuse: 72 S. C., 194; 68 S. C., 304. (oral argument).

<p>Complaint for injunction in original jurisdiction by B. D. Cain against Owen Daly, J. P. Broom, Jas. W. Dunning, T. H. Gibbes, J. M. Graham, Henry T. Thompson, E. H. Cain, E. A. Allworden, Chas. C. Stanley, Robert Moorman and B. P. McMaster.</p> <p>(oral argument).</p> <p>(oral argument).</p>

<p>Before Gage, J., Kershaw, October, 1905.</p> <p>Action by Anderson A. Bowen against Sarah A. True and her children and the children of plaintiff. From- circuit decree, defendants Sarah A. True and her children appeal.</p> <p>cite: Appellants are entitled to interest on one-half value of land from death of life tenant: 53 S. C., 471.; 46 S. C, 181; 22 S. C., 101; 5 S'. C., 216; 10 Wheat., 229; 14 Rich. Eq., 245; 1 McC. Ch., 98, 148; 9 E. R. A., 248; 2 Redf., 494; 1 DeS., 489; 106 Mass., 586; 12 S. C., 457; 41 S'. C., 491. Appointment of appraisers irregular: 1 N. Y. Eq., 10q 2 Ency., 2 ed., 487; 1 McC. Ch., 482; 13 S'. C., 510; 62 S. C., 124. Court wlill retain cause for full settlement: 3 Cyc., 756; 30' S’. C., 305; 10’ Rich. Eq., 328.</p> <p>cites: Rents and proñts for ip04 belonged to life tenant: Code 1902, 2408.</p>

<p>1. Telegeaph Companies. — A message addressed to P., “Come at once. Your baby is dead,” signed S., does not give notice to the company that the wife of P. has any beneficial interest in the message. That the carrier’s agent after sending this message had a conversation with S. when sending another message to P., from which he learned that the wife of P. had an interest in the message, does not give it such notice at time of transmitting first message.</p> <p>3. Ibid. — Tort—Mental Anguish. — A telegraph company is not liable in tort to every one suffering by failure to deliver a message, but only to those for whom or in whose behalf or interest it has undertaken to transmit it.</p> <p>3. Ibid. — Mental Anguish. — That a telegram was promptly carried to home of addressee on Sunday, who was away; that messenger left no notice, went out of city after returning message to office; that addressee was notified of attempt to deliver by his neighbors and immediately sought the messenger, and upon going to home of superintendent, he went with him to office and delivered the message after office hours; that no notice was given to sender of failure to deliver, there being no evidence that sender could have communicated with addressee in time in any other ways; do not show that suffering caused to wife' by not having her husband with her in strange city at time of preparation of body of their dead infant for carriage home was caused by wanton and wilful failure of carrier to deliver message.</p>

Before Gary, J., Greenville, January, 1905. Indictment against Reuben Sudduth and William1 Putnam for murder. From1 verdict on sentence for manslaughter, Sudduth appeals. Mr. T. P. Cothran cites: Charge indicated convictions of Judge: 47 S. C'., 488. Bvidence as to defendant’s silence incompetent: 1 Green. Bv., sec. 197; 32 S. C., 401; 18 S. Cl, 30 ; State v. Phillips, 73 S. C. ; (Reporter furnished no' argument.)

Before Dantzeer, J., Marlboro, July, 1905. Action by Wm. M. Smith, as administrator of Peter T. Smith, and Mary Smith, against Jacob A-llmon. From 'Cir-cu-irt decree, defendant appeals. cites-: Signature obtained under abuse of conñdence and misapprehension is not binding: 32 S-.

Before Klugh, J., Abbeville, June Term, 1905. Action by J. W. McKee, Jr., against Henry Linton and Asa Bowie. From judgment on Circuit reversing judgment of magistrate, plaintiff appeals. cites: Under the exceptions here Court could not consider issues of fact: 34 S. C., 160; Code of P’roc., 358, 368.

Before Gage, J„ Chester, February, 1906. Motion for change of venue in case of W. T. Castles, administrator of estate of John T. Morrison, against Lancaster Comity.

<p>Townships — Constitution—Bonded Debt — Taxation—Municipal Corporation.- — The power of the State to alter or destroy subordinate municipal corporations can not be so exercised as to impair the obligation of existing contracts. The amendment of 1903 to art. VII., sec 11, of Constitution of 1896, providing that the corporation of certain townships should be abolished, is void as against bonded debts previously created by them, and the Legislature may treat such debts as valid upon said territory and provide for its payment by taxation, and designate the proper officers and agents to carry out such purpose.</p> <p>Floyd v. Perrin, 30 S. C., 1, disregarded because it is duty of this Court to give full faith and credit to contrary opinion of U. 8. Court.</p>

Before Watts, J., Spartanburg, March, 1905. Action by H. B. Carlisle, administrator of Thos. Cheek, against Abner T. Farrow, administrator of Martha P. Cheek. The following is the report of J. J. Burnett, the master: “This action was begun September 10; 1895. An order of reference was obtained August 19, 1895, referring it to R. R. Hill, the then master, to take testimony and hear and decide all the issues. It was about nine years thereafter before any reference was held.

Before Gage, J., Lexington, February, 1906. - Action by Sallie A. Gibson against L. W. Fuller and Louisa R. Fuller. The circuit decree is as follows: “Action to recover 656 acres of .land. Trial by jury waived by written consent of the parties, and the cause referred to Samuel B. George, Esq., as special referee. “The report' is in favor of the plaintiff, and the defendants except on six grounds.

<p>Petition for injunction in the original jurisdiction of this Court by H. T. Kendall against City Council of Columbia.</p>

<p>Homestead — Partition—Dower.—A widow having demanded and accepted dower in her husband’s lands, and having had homestead also therein asisgned to her and her infant children, is not entitled to a distributive share in the homestead lands, and has no right to retain the possession of them as a place of residence for herself against the right of partition amongst the children after the youngest attains his majority. That widow made improvements on homestead lands does not affect it.</p>

<p>Habeas Corpus — Parent and Child. — Child nearly fourteen years of age, put by parents in custody of grand-parents in infancy, and from that time entirely supported and educated by her grand-parents, and now expressing under oath an earnest desire to remain with them; no special fitness of parents for her care and custody being shown, or of unfitness of grand-parents; is permitted to remain with her grand-parents.</p>

Before Ptjrd-y, J., Orangeburg, November Term, 1905. Indictment against Wm. Perry for arson. From sentence on verdict, defendant appeals. cites: Confession not free crnd-voluntary: 27 S. C., 22; 1 Green, on Fv., 5 ed., 281; 5 Cush'., 605; 73 Mo., 705; 72 Ala., 244; 11 Tex. App., 356. cites: Objection must be made to evidence when offered: 3 S. C.', 512; 21 S. C., 323; 13 S'.

<p>Before Klugh, J.,’ Spartanburg, December, 1905.</p> <p>Action by Lizzie Mason et al. against Postal Telegraph .Cable Co. Prom judgment for plaintiffs, defendant appeals.</p> <p>Mr. Bvans cites: Opinion as to quantum of damages is not admissible: 73 S. C., 12 ; 19 S. C., 66; Suth. on Dam., 2970. Company authorized to construct a telegraph line is not a-trespasser by entry: 37'S; C., 382; 58 S. C., 544; 70 S. C., 530: One cotenant may give consent to enter: 70 S; C., 530. There is no proof of refusal of consent: 62 S. C., 52; 38 S. C., 308; 59 S. C., 376. Whether plaintiff signed permit not having been denied should not have been sent to jury: 66 S-. C., 22. '</p> <p>cites: Permit was obtained by fraud: 71 S. C., 146, 154, 530;</p>

<p>1. Public Schools.- — -The State Boabd op Education may provide by contract with publishers of school text-books to maintain at the State capital a central wholesale depository from which its agencies and the county depositories may be supplied at a discount of not less than ten per cent.</p> <p>2. Eouity — Injunction.—Ip State Boabd op Education have acted without warrant of law in providing a central depository for textbooks, the injury would be common to the tax-payers of the State, and remedy would be suit by State and not proceeding for injunction by individual tax-payer.</p> <p>3. Ibid. — Ibid.—State Boabd op Education. — Coubt op Eouity will not restrain acts of State Board of Education at instance of individual tax-payer, where his interest is small and where its plans have been undertaken and carried almost to completion, except upon the clearest showing that the Board has transcended its statutory powers.</p>

<p>1. Real Property — Mortgages—Subrogation—Set Off. — Where a mother takes a deed to herself and children in fee, and gives her individual bond and-mortgage on all the land to secure the purchase money, and then sells to another, giving her individual deed purporting to convey the entire fee, her purchaser assuming her bond as part of purchase money, and having paid it, is not entitled- to subrogation to rights of original mortgagee as against rights of .children. Nor can such purchaser set off against interest of children their pro rata share of the purchase money paid the mother more than the said bond represented by bond and mortgage executed to her and paid to her assignee.</p> <p>Hutchison v. Fuller, 67 S. C., 280, distinguished from this.</p> <p>2. Subrogation — Limitation of Actions — Mortgages.-—Party cannot derive any benefit from subrogation to rights of mortgagee in a mortgage barred by statute of limitations.</p>

Before Krugi-i, J., Cherokee, Fall Term, 1905. Action by Rouse, Hempstone & Co., against J. I. Sarratt. From judgment for plaintiffs, defendant appeals. (Reporter furnished no argument.) cites: It is not reatdred that it appear on deposition that notary was not of counsel for either party: 5 S. E., 936; 4 Ency. Ev., 388; 49 S. C., 169; 56 S. C., 385; 57 S. C., 3; 60 S. C„ 201; 30 S. C., 153^ 615; 12 S. C., 586.