Volume 75 — South Carolina Reports

Before Watts, J., March, 1904, and Purdy, J., August, 1905, Chester. Petition 1oy R. E. Conrad for administration upon estate of Nancy Caldwell. From Circuit orders affirming decrees of probate court, M. J. McOandless and Nancy Caldweli, heirs at law of deceased, appeal. cite: Petition must allege that decedent owned property to give probate court jurisdiction to grant administration: Code of Proc., 64; 11 Rich., 575.

<p>Before Gage, J., Edgefield, November, 1906.</p> <p>Action by Josie Parks against Winchester McDaniel, executor of Sallie E. McDaniel. Erom judgment for plaintiff, defendant appeals.</p> <p>cite: 17 S, C., 43.</p> <p>cite: 2 Williams on Exor., 1282.</p>

<p>1. Real Property — Deed op Assignment. — Where a debtor conveys his lands in trust for benefit of his creditors and after payment of his debts balance in trust for himself, and he compromises his debts, there is no duty for assignee to perform and the legal title vests by operation of law in assignor.</p> <p>2. Opening and Reply. — Defendant is entitled to open and reply only where it appears on the face of the pleadings that he admits plaintiff’s cause of action and relies solely on an affirmative defense.</p> <p>3. Charge here complained of, construed with its connections, did not take from jury whether the will in question conveyed one-half interest in lands or the whole, nor instructed jury that testator at time of his death recognized claim of plaintiff.</p>

Before Purdy, J., §umter, July, 1905. Action by D. G. Brown against North Western R. R. Co. From order reversing judgment of magistrate court, plaintiff appeals. cites: As to the value of the hour: Act 1903, 81. cite: Measure of damages at common law: Hutch, on Car., 910; 5 Rich., 464; 26 S. C., 258; 39 & C., 3.51; 13 Rich., 382; 11 Rich., 399; 4 McC., 156; 3 Rich., 191; 2 Spears, 271; 1 Bay., 273.

<p>Before Watts, J., Florence, November, 1905.</p> <p>Action by Wm. E. Brown and James M. Brown, executors of John A. Brown, against Louisa A. Brown et al. From Circuit decree, M. A. Bowen and children- appeal.</p>

Before J. H. Hudson, special Judge, Richland, 1903. Three actions by Columbia Water Power Co. against James S. Campbell, as County Treasurer for Richland County.

Before Memminger, J., Abbeville, September, 1905. In the matter of claim' presented by Water, Light and Power Co. against Abbeville Furniture Co. in case of R. F. Cox v. Abbeville Furniture Cot From Circuit judgment, claimant appeals. cites: What makes a contract: 1 Addison on Con., sec. 30; 3 Id., sec. 1399; 15 Fncy., 2 ed., 1078; 9 Cyc., 308, 242, 243; 29 Pa. St, 465. cites: Contract may be made by parties themselves or by others for them: 5 Fncy., 1078.

<p>Telegraph Companies — Facts do not Support Action. — That a message was delivered in Atlanta to be transmitted to Greenwood; that carrier’s agent promised to inform sender if message was not delivered in two hours, which was not done, will not support judgment by magistrate for damages for mental anguish and expense and inconvenience of a trip to Atlanta by addressee, there being no evidence that sender could have communicated with addressee in time to prevent her departure, if he had been notified of non-delivery, and no notice on face of telegram or in evidence to company that the journey and its consequences were to he apprehended from a failure to deliver promptly.</p>

<p>Measure op Damage for Loss of Baggage by Carrier. — In case of complete loss of baggage, no previous notice having been given the carrier of special circumstances, the recovery should be confined to the actual value of the goods lost at place of destination, without including any expense or trouble incurred in the effort to recover them, or in being deprived of their use or in purchasing other apparel.</p>

<p>Act exempting Confederate soldiers prom license unconstitutional. The act (24 Stat., 441,) exempting all soldiers and sailors of the Confederate States who enlisted from this State and who were honorably discharged from such service from paying license for carrying on any business in any city, town or village, has not a single feature upon which a constitutional classification can be based, and is violative of art. I., sec. 5, of the State Constitution, and of sec. 1, of 14 amendment of the Con. of U. S.</p>

Before Gage, J., Lexington, November, 1906. Action by Walter P. Betchman, administrator oí John Betchman, against Seaboard Air Line Ry. Promi judgment for plaintiff, defendant appeals. The former cite: Nonsuit should have been granted: 67 S. 'C., 365; 21 Am. & Eng. R. R. Cas., 453; 35 Id., 670'; 10 Id., 444; 39 Id., 368; 8 Eney., 395, 400- 14 A. & E. R. R. Cas., 803. Statutory signals at crossings ewe not for employees: 33 S. C., 139; 52 S. C., 323; 58 S. C., 70.

<p>1. Exception to admission op evidence will not be considered where no ground of objection to the evidence is stated, or record does not show that Judge ruled on objection.</p> <p>2. Objection to Leading Question — Appeal—Discretion.—Whether a question is leading relates to the conduct of the case, and refusal to rule it out on that ground is not appealable, unless abuse of discretion is shown.</p> <p>S. Price op Ticket Element op Damage. — Price paid for a ticket is an element of damages in action for failure of railroad company to stop its train at a station and take on a passenger.</p> <p>4. Charge on Facts. — Judge did not instruct jury that defendant had failed to keep its contract, or by indirection what actual damages had been proved, but left all questions of fact to jury.</p> <p>5. Damages por Wilfulness. — Instruction that jury should make the punishment fit the crime, construed in connection with whole charge, merely instructed jury, in case they found there was wilfulness, they should give such damages as would punish defendant.</p>

Before Prank B. Gary, special Judge, Chester, November, 1905. Action 'by Sarah P. DuBose, administratrix of Susan C. Kell, against Wm. A. Gladden. Prom order granting non-suit, plaintiff appeals. Mr. Green cites: Transactions betzveen husband and zmfe are to be scrutinised zvith jealousy: 70 S- C., 240; 10 S. C., 368; 43 S. C., 252. If husband be general agent of wife, he cannot appropriate her property: 43 S. C., 474.

<p>Damage to Land by Overflow from Embankment. — The negligent construction and maintenance of an embankment across a natural stream by which lands of another are flooded is continuous in its nature, and action may be brought for damages to the land after six years from its construction, and damages awarded for the six years before commencing the action.</p>

<p>Before Memminger, J., Charleston, March Term'. 1906.</p> <p>Action by Robert P. Tucker against Southern Railway Co. Plaintiff appeals from judgment for defendant on following exceptions:</p> <p>“First exception. Upon the plaintiff being asked on direct examination the following question, the presiding Judge erred in ruling and holding: ‘But I do> hold that the plaintiff cannot goi and prove the value of those business engagements.’ ‘Q. What was the effect of that delay 'in reaching Gainesville upon your business engagements' that you had in Gainesville that afternoon?’ ' Objected to' as incompetent, as what went on after his arrival at destination is not the proximate and natural consequence of the delay, and cannot be estimated by the jury in considering damages in this case. The Court: ‘As I understand, the obj ect of the testimony is not to prove any remote or speculative damages, or loss, that may have arisen by reason of the failure to meet these engagements, but simply to establish the allegation of the complaint. But I do hold that plaintiff cannot go' on and prove the value of those business engagements.’</p> <p>“Exception second. The presiding Judge erred in ruling and holding, as follows, during the direct examination of the plaintiff, Robert P. Tucker: ‘Q. What were your hotel bills ? A. They were nominal; about $3.00' a day. Objected, to and motion to strike out by counsel for defense, except as it may refer toi hotel bills in transit, on the ground that such damages are remote and speculative, and not the natural and proximate results of the contract of carriage. 'The Court: That objection should be sustained. That is my understanding of the law, that hotel bills should be confined to loss which occurred in.transit.’</p> <p>“Third! exception. The presiding Judge erred in refusing to charge the ninth request of the plaintiff in the Words as prayed, to wit: ‘9. The jury is further instructed that a railway company is liable in compensatory damages for a breach of its contract of carriage made with a passenger, for any loss directly resulting to the passenger, such as the value of the time thereby lost to the passenger and expenses necessarily incurred thereby.’ And in modifying the same by adding thereto the words: ‘Up to 'his arrival at the destination, or which could have been reasonably anticipated by the parties when the contract was entered into.’</p> <p>“Fourth exception.'The presiding Judge erred in charging the jury the fourth request of the defendant, as modified by him, as follows: ‘That if the jury find from the evidence that the defendant company was negligent in not transporting the plaintiff to destination with promptness, under the pleadings' in this case, and under the charge of negligence, they can only find for the plaintiff such compensatory damages which may fairly and reasonably be considered as naturally arising from the violation of their duty to carry the plaintiff according to1 the usual course of things, and not damages which arise from circumstances peculiar to' this case, unless they find wilful and wanton negligence, as elsewhere explained.’</p> <p>“Fifth exception. The presiding Judge erred in charging defendant’s fifth request, as follows: ‘That if the jury find from: the evidence that the defendant company is liable for damages under the charge of negligence, they cannot find damages against the defendant to compensate him1 for the breaking of his business engagements, if any, nor for the delay in his business after his arrival at destination, but plaintiff would be entitled to be compensated for any expenses incurred reasonably during the time of his delay before arrival at destination, in case the jury find that such delay occurred through the negligence of the defendant.’</p> <p>“Sixth exception. The presiding Judge erred in charging the jury as follows: ‘A common carrier owes a duty to the public, and the negligent violation of that duty is such an act as will imply damages. But in such a case, unless there is proof of some substantial damage, you can only give nominal damages, that is, a trifling sum, and award where a breach of duty or' an infraction of the plaintiff’s right is shown, but no serious loss is proved toi have been sustained; given by a jury, not to' compensate for the wrong, but to maintain the right; because for every violation, invasion or infringement of a legal right, the law implies damage.’</p> <p>“Seventh exception. The presiding Judge erred in charging the jury as follows: ‘When substantial damage is not shown, it implies the smallest amount of damages, but still an amount sufficient for the maintenance of the action.’</p> <p>“Eighth exception. Presiding Judge erred in charging the jury as follows: ‘So, in this case, if you come to the conclusion that defendant is liable, you are not to1 consider any damages you might think the plaintiff sustained by missing any engagement, because that was ruled out; unless you find wilful, wanton and reckless conduct on the part of the defendant, in which case you might consider it, if it lias been proved as an element of the mental suffering of the plaintiff, if any has been proved, on the line of punitive damages.’</p> <p>“Ninth exception. The presiding Judge erred in charging the jury as follows: ‘If you come to the conclusion the defendant is liable, you consider first what damages to give him, and then you say, is there any proof of any substantial damages, any expense or direct loss he has been put to by the delay in his transportation upi to the time of his arrival at his destination, from the facts of the case ? If so, you can give that; but if there are no- facts to show any actual damages suffered, then you can give only nominal damages.’</p> <p>“Tenth exception. The presiding Judge erred in charging the jury as follows : ‘There must be wilfulness, wantonness, recklessness, and utter disregard of the rights of the other person before the party that inflicted the injuries can suffer damages at the hands of a jury by way of punishment, to deter him and others in the future.’ ”</p> <p>cite: Duty of carrier in carrying passenger: 71 S. C., 543; 53 S. C., 213; 69 S. C., 132; 45 S. C., 27; Suth. on Dam., 250, 252, 253, 254. Damages for failure and delay in carrying: 1 Suth. on Dam1.,. 71; 56 Fed. R., 435; 89 Hun., 377; 8 Ency., 2 ed., 598; 5 Ency., 698, 697; 71 S. C., 83; 40 S. C., 534; 71 S. C., 85, 311. Wilfulness, wantonness, recklessness and utter disregard of rights of others need not all appear to: warrant punitive damages: 37 S. C., 194; 53 S. C., 313; 57 S. C., 325; 58 S. C., 148.</p> <p>cite: Exceptions questioning instructions as to measure of doomages are immaterial when jury ñnds appellant not entitled to damages at all: 42 S. C., 306; 17 S. C., 66; 43 S. C., 461; 77 Me., 661; 50' Ind., 10; 46 Ind., 587; 3 la., 277.</p>

Before DantzrEr, J., Greenville, December, 1905. Petition by Greenville College for Women and Julia Lipscomb Turner against Jas. B. Davis, L. E. Childress and H. B. Dominick, County Board of Education for Greenville Co., for writ of mandamus. From Circuit order requiring the writ to issue, respondents appeal. cites: Code 1902, 1183, 1203; High, on Ex. Leg.

Before Townsend, J., Cherokee. Action by Wm. Eaker against Western Union Telegraph Co. From judgment for plaintiff, defendant appeals. cite: Fetters did not show intent to waive right to time limit of filing claim: 70 S. C., S3; 73 S. C., 8; 66 Pa. St., 9; 18 Wis., 387; 10 Am. & Eng. In. Cas., 550. iVo negligence in delivery: 30 Am. & Eng. In. Cas., 612; 13 S. W., 985; 27 Ency., 1027; 98 Ind., 566.

Before Hydrick, J., York, November Term', 1905. Action by Ben Green against Catawba Power Co. From judgment for plaintiff, defendant appeals. The former cite: Different parts of charge may be construed together: 72 S. C., 129; 69 S. C., 363; 71 S. C., 102; 4-1 S. C., 452; 22 S. C., 187; 54 S. C., 93. Charge should be construed with reference to case made: 37 S. C., 343; 21 S. C-, 400 ; 72 S. C., 174.

Before DantzlEr, J., Charleston. Action by Thomas M. Price against Middleton & Ravenel. From' order placing case on Calendar 1 for trial, defendants appeal. No argument furnished Reporter. cite: What cases are triable by jury? 17 S. C., 542; Code of Proc., 274; 43 S. C., 303. Partner’s remedy for breach of contract: 22 Ency., 2 ed., 205; 168 U. S., 335; 10 N. Y., 489; 134 Mass., 505;. 15 Ency.

Before DanTzlER, J., Greenville, November Term, 1905. Action by Julia Emmie Bussey by guardian against Charleston and Western Carolina Railway Co. Erom judgment for plaintiff, defendant appeals, on following excep^tions: “1.

Before Purdy, J., Chester, April Term, 1905. Action by S. R. La than against Western Union Telegraph Co. From- judgment for plaintiff, defendant appeals. cite: If message contains no■ notice of damages likely to result from non-delivery nor company noiiñed of any, none are recoverable: 40 S. C., 524; 72 S. C., 290; 70 S. C., 418, 539. No notice tlvat plaintiff would accept offer: 21 Minn.,. 155; 18 Up. Can. Q. B., 60; 44 N. Y. Supt.

Before Gage, J., Edgefield, October, 1905. Action by W. M. Talbert against Charleston and Western Carolina Ry. From judgment for plaintiff, defendant appeals. Mr. Simpson cites: There being no evidence tending to show wilfulness, nonsuit should have been granted as io that cause of action: 72 S. C., 257, 343. Or new trial granted: 69 S. C., 439; 72 S. C., 343.

Before O'. W. Buchanan, special Judge, October Term, 1905, Lancaster. Action by J. A. Hasseltine against Southern Railway Co. From judgment for plaintiff, defendant appeals. (No'.argument furnished Reporter.) cites: Passenger must be furnished every necessary facility for reaching his journey comfortably: 53 S. C., 210; 69 S. C., 132; Thomp'. on Neg., 35, 37, 33, 187, 544, 558.

Before Klugh, J., Union, September, 1905. Action by John S. Rice against Lockhart Mills. From judgment for plaintiff, defendant appeals. cite: Ordering case to- trial was an abuse of discretion: 50 S. C., 403; 43 S. C., 305; 68 S. C., 494. Brror_for Judge to say to jury wKat negligence is: 51 S. C., 453; 53 S. C., 449; 61 S. C., 556; 71 S. C., 156; 47 S. C., 553.

<p>1. Appeal — Additional Grounds. — If there be error in instructions to jury, the judgment should be reversed, although there may be other grounds upon which it may be reasonably rested.</p> <p>2. Punitive Damages for Injury at Crossing. — Punitive damages may be awarded under sec. 2139, of Code 1902, for injury from wilful, wanton or reckless failure to give the signals required by sec. 3132, of Code of 1902, at a crossing, under allegation in complaint that defendant recklessly failed to give the signals.</p> <p>3. Proximate Cause. — Reference in charge to contributory negligence as the proximate cause of an injury held not error in the charge here under the facts.</p>

Before D. E. Hydricic, special Judge, Dorchester, September, 1905. Action by Leize W. Reed, administrator of Arthur T. Reed, ágainst Southern Railway — Carolina Division. From judgment for plaintiff, defendant appeals on following exceptions: First.

Before Dantzlbr, J., Anderson, October, 1905. Action by Bertha Burton, administratrix of Larkin Burton, against Anderson Phosphate and Oil Co., o>n the following complaint, omitting the formal parts: “5.

Before Hydrick, J., Lexington, February, 1906. Three cases tried together: (1) McGill Bros. v. Seaboard Air Line Ry.; (2) James W. Conner v. same; (3) H. Wilmot Conner v. same. From order setting aside verdicts, defendant appeals. The former cite: Code 1903, 2734; Code of P’roc., 286; 24 S. C., 487; 68 S- C„ 46; 60 S. C., 77; 24 Am. & Eng. R. R. Cas., 6; 12 Ibid., 667; 2 Strob., 416; 4 Rich., 594; Graham on New Trials, 66, 85; 38 S. C., 348; 2 Rich., 122. filed no argument.

<p>Before Memminger, J., Abbeville, October Term, 1905.</p> <p>Action by D. R. Mitchiner against Western Union Telegraph Co. From, judgment for plaintiff, defendant appeals,</p> <p>cite: There was no1 evidence of wilfulness: 70 S. C., 528; 71 S. C., 303; 29 S. C., 202; 6 S. C., 185; 16 S. C., 153; 72 S. C., 256. Operator cannot make a special contract binding on company: 70 S. C., 16, 528; 71 S. C., 303. Company had no notice that baby was nourished artificially: 70 S. C., 539; Smith v. Tel. Co.</p> <p>cites: Fvidence as lo feeding baby on artificial food competent: 60 S. C., 9; 44 U. R. A., 285. Delay in transmitting is evidence of negligence: 40 S. C., 194; 68 S. C., 55; 69 S. C., 545; 43 L. R. A., 214; 65 S. C., 444. For what punitive damages are awarded: 13 Cyc., 106; 51 S. C., 344; 52 S. C., 344; 35 S. C., 493; 34 S. C., 311.</p>

Before Klugi-i, J., Union, September' Term, 190b. Action by M. V. Young ag'ainst Seaboard Air Tine Ry. From judgment for plaintiff, defendant appealed on following- exceptions: “I. Because his- Honor erred in permitting the witness, Moore Young, to testify that he and several others bad complained ■ to- the section master about the condition of the cleaver or cleavers.

Before Ki/ugh, J., Cherokee, October Term, 1905. Action by Armour & Co. against M. b. Ross. cites: As to ratification of acts of agent: 1 Ency.,-2 ed., 1189, 1174; 11 How., 209; 22 Am. Dec., 220. Agent cannot prevent principal from recovering his property by breach of trust: 11 How., 209; 22 Am-. Dec., 220; 48 Am. Dec., 643; 59 Am. Dec., 293; 1 McC., 1; 4 Strob., 427; 10 Rich., 83; 12 Rich., 451. No- citations.

<p>1. Telegraph Company. — It is not the intention of effect of the former decision in this case, 70 S. C., 540, to prevent plaintiff from showing, so far as he was concerned, that defendant had notice of the purpose of the message from its terms in connection with the information conveyed to its agent, but only to eliminate all allegations tending to connect plaintiff’s wife and baby with the message.</p> <p>2. Harmless Error. — Evidence as to the relative merits of two telephone systems was irrelevant to the issues here, but its admission harmless.</p> <p>3. Telegraph Company — Wantonness.—There is no evidence here tending to show that defendant wantonly disregarded its duty to plaintiff in failing to deliver a message at a point reached by telephone from one of defendant’s offices, the message having been promptly transmitted to defendant’s office, but not delivered over telephone, because of defect in the line.</p> <p>4. Ibid. — Punitive Damages — Wantonness.—Failure to deliver the message here was not the proximate cause of plaintiff remaining in a livery stable for four hours, nor of his exposure to the cold at night, and his recovery should have been only for cost of message and of conveyance, as the natural and proximate result of failure to deliver.</p>

Before Memminger, J., Laurens, September, 1905. Petition by Emma E. Cannon against J. P. Cannon, ,for writ of habeas corpus for possession of two small children. From Circuit order granting' writ, respondent appeals. cite: Father is entitled to custody of Ms children: 15 Ency., 182: 19 S. C., 604. (oral argument).

<p>Before Gary, J., Marion, October, 1905.</p> <p>Action by Marion County Lumber Cot against Tilghman Lumber Co. From order dissolving a temporary injunction, plaintiff appeals.</p> <p>cites: 62 S. C., 196; 69 S.C., 156; 67 & C., 93 ; 71 S. C., 64; 54 S. C., 457.</p> <p>cite: 62 S. C., 472; Hngh on Inj., sec. 728; 14 Cyc., 1208; 39 Mo. App., 628; 29 Am. Dec., 57; 65 Me., 124; 35 S. C., 458; 89 Mo. App., 15; 38 Vt., 94; 15 N. W., 880; 27 S. C., 415; 69 S. C., 156, 551; 4 El. & BL, 713.</p>

<p>1. Appear. — Exception based on objection to evidence stating no ground will not be considered on appeal.</p> <p>2. Insurance Company is bound by the act op its agent, who has the authority to issue policies, in changing date of payment of premium by indorsing on back of envelope in which it is delivered a date different to that written in the policy and in the order given by insured on his employer to pay out of his wages.</p>

<p>Verdict — Claim and Delivery. — In action for possession of complete outfit for barber shop, including five barber chairs, whole valued at $59.71, verdict for three barber chairs, valued at $59.71, is not' so indefinite when construed with pleadings, as that a judgment thereon could not be enforced with reasonable certainty, and defendant cannot complain that a part of the property is assessed at value placéd by plaintiff on whole.</p>

Before DanTzeer, J., Greenville, February, 1906. Action by Chas. E. Spencer against G. H. Mahon and T. L. Becknell. From order refusing temporary injunction, plaintiff appeals. cites: Temporary injunction should have been granted: 54 S. C., 457; 51 S. C., 433; 69 S'. C., 176. City Council had no power to revoke the license: 62 S. C., 525; 118 U. S., 356; 59 S. C., 415; 35 S'. C., 1; 72 Am'. St. R., 148; 20' Ency., 1183; 21 Ency., 826; 63 S. W., 785; Co-ol. on Con.

Before W. C. Benet, special Judge, Spartanburg, July, 1904. Action by Minti’e Miller et al. against Jane Saxton. From Circuit decree, defendant appeals. cites : If definite proportion paid by each cannot be ascertained, no resulting trust arises: 2 Wash., sec. 1426; 6 S. C., 90; 17 Wall., 44; 4 DeSaus., 516; 19 S. C., 126: Plaintiffs are estopped by laches: 94 U. S., 806; 17 Wall., 78; Merwin’s Eq., sec. 908; Hill on Trustees, 265; 21 S. C., 112; McM. Eq., 126; 3 Rich.

<p>Subrogation op Purchaser Under Void Sate Under Power in MortGAGE.-r-Where a grantee takes a deed in good faith from purchaser under .power of sale in a mortgage believing his title to be good, but the sale under the power is found to be void because the deed was executed by mortgagee in his own name and not as attorney of mortgagor, such grantee is entitled to be subrogated to the rights of the mortgagee to amount of purchase money paid by him, and the mortgagor, or those claiming under him, is entitled to have mortgage debt credited with amount of bid at sale under power.</p>

<p>A Deed made dudee Tax Sale under a levy by a magistrate constable who put his agent in possession but who had not been regularly appointed or qualified as a deputy sheriff, is ineffectual to convey title.</p>

<p>Banks — Notes—Indorser.—If A. indorse a renewal note with name of payee blank, forwards, it to B., who signs it as maker, and who under authority from A. delivers it to the bank, which fills in name of A. as payee, and surrenders to B. original note, A. thereby becomes a joint maker of the note and not an accommodation indorser. Here A. also received valuable consideration in the surrender of the original notes, and he cannot be considered an accommodation indorser.</p> <p> Messrs. Justices Jones and Woods think A. is liable as indorser and not as maker. </p>

<p>Estoppel — Evidence.—An Insurance Company having notice of a cause of forfeiture at the inception of the contract of insurance is estopped to assert such forfeiture by accepting the premium and delivering the policy as a valid contract, of insurance, and in suit on promissory note given for first premium it would be error to admit evidence that the policy was void because the answer to a question in the .application was incorrect, which under the terms of the policy would render it void, where insurance company after notice insists that policy was valid.</p>

<p>Before Dantzler, J., Greenville, November, 1905.</p> <p>Action by M. W. Strickland against J. M. Phillips. From judgment for plaintiff, defendant appeals.</p> <p>cites: Evidence tending legally to prove a fact in issue is relevant: 11 Ency., 502; 201 S. 'C., 144. As to1 right of cross-examvmalion: Green, on Ev., sec. 446; 55 S'. C., 568; 25 S. C., 319; 11 Ency., 502.</p> <p>cites: Error in ruling out a question is harmless, where the same tvitness had previously answered same question without objection: 43 S. C., 96. 122, 129, '208, 209; 51 S'. C., 69, 143; 60 S. C., 19. Exception not based on objection to evidence nod considered: 43 S. C.,' 295.</p>

Before Gags, J., Edgefield, November, 1905. Action by P. B. Harrison against Western. Union Telegraph Co. From judgment for plaintiff, defendant appeals. Mr. Evans cites: It is error to charge a request not responsive to any issue made by pleadings: 15 S. C., 95; 66 S. C., 18; 51 S. C., 304, 404. No duty rested on company to deliver telegram out of oMce hours: 71 S. C., 387, 304. No evidence of waiver of office hours: 70 S. C., 21; 71 S. C., 304.

<p>Liability of Initial Line foe Loss of Interstate Shipment. — Code. 1902, 1710, requiring carrier to trace freight or express shipped over it and connecting carriers; 2176, making carrier liable for shipment over it and connecting lines unless it produces a receipt from connecting carrier, and act of 1903, 1, 2, making the bill of lading issued by initial carrier prima facie evidence of liability of loss or damage to goods in course of transportation, do not regulate interstate commerce, burden it, or materially interfere therewith.</p>

Before Hydricic, J., Lexington, January, 1906. Action by Alice and Furman Ford against Southern Railway. From judgment for plaintiff, defendant appeals. Mr. Thomson cites: Judge must charge law. applicable to case: Con., aid. IX., sec. 26; 47 S. C., 521. cites: Charge must be com strued as a, whole: 22 S. C., 182; 37 S. C., 343; 20' S. F., 84; 57 S. C., 280; 52 S. C., 166; 54 S. C, 498; 29 S'. C., 303.

Before W. A. Holman, special Judge, Hampton-, January, 1906. Action, -by W. G. Ru-ddell against Seaboard Air Line Ry. and C. A. Brinkley. From verdict for plaintiff, defendant railway appeals. The former cite: And distinguish from Ms case as to verdicts against one joint tort feasor: Schumpert v. Ry,, and Hutchison, 65 S. C.,; Gardner v. Ry. and Pierson, 65 S. C.; Carson v. Ry. and Arwood & Miller, 68 S. C.; 1 Mills- Con. Rep., 333.

Before Purdy, J., Barnwell, Ball Term1, 1905. Action by Rosa Hutto against Southern Railway Co. Broto judgment for plaintiff, defendant appeals. cites: Provisions of jury lam should be strictly followed: 69 S. C., 494; 12 Ency., 330 ; 29 La. An., 822; 30 Md., 163; 11 S. C., 349; 15 Rich., 42; 2 Rich., 535; 5 Ency., 624.

<p>Damages — Punitive—Vebdict.—In an action solely for a wilful tort a verdict alone for compensatory damages may be awarded and will not be set aside and judgment entered for losing party on his motion.</p>

<p>1. Master and Servant — Appliances.—“Safe 'and suitable” appliances in the common acceptance of the terms mean “reasonably safe and suitable,” and these words construed with whole charge could not have led jury to conclude that master must furnish absolutely safe appliances.</p> <p>2. Railroads — Charge.—Portions of charge here complained of when construed with its modifying clauses states that railroad is liable if cars furnished were unsafe, and that was proximate cause of the injury, and not that it would be liable if it furnished such cars as a railroad would not ordinarily use for such purpose.</p> <p>3. Appliances. — Charge as to Assumption op Risks by employee from defective appliances was substantially in the language of the Constitution. Where the general import of a charge states the law, this Court will not reverse the judgment because of the use of a disjunctive conjunction where a copulative one should have been used. Suitable appliances defined.</p>

<p>Before DanTzlER, J., Colleton, April, 1906.</p> <p>Action by W. P. Drawdy, executor of M. A. Drawdy, against Atlantic Coast Line Railroad Cot Prom: order overruling demurrer, defendant appeals.</p> <p>Mr. FitsSimmons cites: Plaintiff’s endeavor to cross track was reckless: 67 S. C., 364; 73 S. C., 389; 7 Ency., 2 ed., 433, 435, 436, 438; 114 U. &, 615; 80' Mo., 335; 47 S. C., 375; 65 S. C., 232; 63 S. C., 271.</p> <p>cite: Failure to ring bell or blow' whistle for 500 yards before reaching crossing is negligence per se: 53 S. C., 124; 41 S'. C., 1; 47 S. C., 375; 58 S. C., 227; 47 S. C., 381; 63 S. C., 494. Gross or wilful negligence is part of defense and for jury: 9 S. C., 20; 20 S. C., 495; 25 S. C., 59; 30 S. C'., 218; 47 S. C., 375; 45 S- C., 181. Whether given rate of speed is negligence is for jury: 53 S. C., 224.</p>

<p>Before W. A. Holman, special Judge, Colleton, January, 1906.</p> <p>Action by Martha C. and C. F. Hiers against Atlantic Coast Line Railroad Co. From judgment for plaintiffs', defendant appeals.</p> <p>cite: A minor married woman can only sue by guardian ad litem: Code of P'roc., 185; 6 How. Pr. R., 238.</p> <p>cite: Continuances are within discretion of Circuit Judge: 68 S:. C., 296; 2 Bay, .440; 2 Bail., 576; 1 Bail., 544; 4 Strob., 62; 11 Rich., 153; 33 S. C., 106; 65 S. C., 496; 66 & C., 404. As to punitive damages: 71 S. C., 106; 57 S. C., 228; 60' S. C., 49. Guardian ad litem for minor wife not necessary: Code of Proc., :sec. 135, sub. 2; Bing, on Inf., 123; 6 How. Pr. R., 234; 4 Ibid., 93; 60 S. C., 49.'</p>

<p>Before Aldrich, J., December, 190'3, and Hydrick, J., October, 1905, Orangeburg.</p> <p>Action, by Minnie M. Fludd against Equitable Life Assurance Society of the United States. From judgment for plaintiff, defendant appeals.</p> <p>cites: What is intemperance? 105 Ü. S., 350; 20 Fed. R., 482;' 123 U. S-, 743; 122 U. S., 501. Question as to- which there is no1 evidence should not be submitted to jury: 29 S. C., 152; 52 S. C., 232.</p> <p>cite: Issues raised by answer as to forfeiture were properly tried in the legal action: 24 En-cy., 2 ed., 226; 86 N. Y., 433; 45 N. Y. Sup. Ct., 525; 17 Ency. P. & P., 993; 18 Ibid., 1004, 1005; 38 S. C., 201; 66 S. C., 77. Occasional use of intoxicants does not make a man intemperate: 61 S. C., 344; 3 Joyce on Ins., sec. 2096; 105 U. S., 350; 122 U. S., 501. Porfeitwres ame not favored and may be waived: 96 U. S., 242; 52 S. C., 224; 43 S. C., 195; 36 S. C., 213. Knowledge of agent is knowledge of company: 57 S'. C., 358; 70 S. c., 295; 71 & C., 356; 48 S-. C., 195; 67 S. C., 400; 1 D. R. A., 563; 91 U. S., 310'; 101 N. Y., 185. Soliciting agent is agent of insurer: 13 Wall., 222; 36 N. Y., 550'; 70 la., 600; 76 F. R.., 705. Issuing policy with knowledge of breach of condition is waiver of right to avoid: 120' U. S., 183; 36 N. Y., 550; 13 Wall., 222. Medical examiner is agent of insurer: 80 N. Y., 281; 92 N. Y., 274.</p>

Before Watts, J., Sumter, November Term1, 1905. From judgment for plaintiff, defendant appeals. cites: Appellant is entitled to the benefits of the limited valuation clause: 39 S. C.; 55; 112 U. S., 331; Elliott on R. R:, sec. 1446; 68 S. W., 469; 10- E. R. A., 418; 7 Am. Sit. R., 111.

Before Memminger, J., Charleston,. March, 1905. Action by Martin Young against Southern Bell Telephone and Telegraph’ Co-. Fromi order dismissing case, plaintiff appeals. • cite: On question of dismissal: 110- Ga., 223, 36 S. E. R., 775. Answering •and going to trial in State Court is waiver of right to- move for dismissal: 169 U. S., 102; 100 U. S., 457; 111 U. S., 770; 130 U. S-., 505; 134 U. S., 536; 198 U. S,, 416. cite: On question of jurisdiction: 19 S-.

Before Aldrich, J., Darlington, November Term1, 1904. Action- by D-. K. Dantzler against E. R. Cbx, A. L. Dantzler, J. E. No-rment, H. D. Norment and Dora N. Nettles, partners under firm name of Cox & Dantzler.

Before Krugh, J., Spartanburg, December, 1905. Actioni by Leesville Mfg. Co. against Morgan Wood and Iron Works. From judgment for plaintiff, defendant appeals. cite: Principal cannot be bound' by admissions of another without some proof of agency: 56 S. C., 320. Letter of appellant to respondent’s attorney should have been admitted: 58 S. C., 201.

<p>Damages — Carrier.—Baggage.—Ip dental tools be regarded as baggage, the owner cannot recover damages for what he would have made by working at his profession, the patients being present, during the time of delay of carrier in delivering baggage, without allegation and proof of notice to the carrier of the special circumstances under which the damages are claimed, as they fall within the class of special damages.</p> <p>Mr. Justice Gary thinks this Court should not remand a case to'magistrate court, hut to Circuit Court with proper instructions.</p>

<p>Before Klugh, J., Union, September, 1905.</p> <p>Action by Mamie Isabel Carter against Southern Railway Go. From judgment for plaintiff, defendant appeals.</p> <p>cite: Ticket may or may not be contract between passenger and carrier: 6 Cyc., 570, 585; 4 Fllioitt on R. R., par. 1593; Hutch, an Car., pars. 580, 580g; Ray’s Neg. of Imposed Duties, par. 56; 1 Fetter on Car. of Pass., 766. Passenger on wrong train must change cars: 9 Mack., 63 ; 6 Duer„ 533; 3 Thomji. on Neg., pars. 3563-4; 34 N. Y., 599. Conductor has no authority to disarrange sched%de: 65 Am. St. R., 35. Nor is he bound by special contract of ticket agent unless notiñed: 4 Elliott on R. R., par. 1494; 9 Am. & Eng. R. R. Cas., 314; Fetter on Car. Pass., 770; 6 Cyc., 581. Passenger’s sickness was caused by her voluntary act: 53- S'. C., 413; 51 S. C., 484 ; 44 Am.. St. R., 474. Liability for failure to let passenger off is actual damages: 71 111., 391: 8 A. & E. R. R. Cas., 374. Passenger should have done what she could to lessen damages: 3 Sher. & Red. on Neg., par. 741: 6 Thomp. on Neg., par. 7359.</p> <p>submits that this case is governed by Pickens v. R. R. Co:, 54 S. C.</p>

<p>Before Purdy, J., Barnwell, December, 1905.</p> <p>Petition of Jesse T. Gantt, Secretary of State, as escheator, for letters of administration upon estate of Jane R. Moody, to be granted to H. E. O’Bannon. J. J. Braxton intervened, asking for letters appointing him administrator as the brother of intestate. From probate decree refusing administration to both, both appeal. From Circuit order sending issue to jury, petitioner Gantt appeals.</p> <p>cites: Bvidence showing that defendant was a bastard, it w'as abuse of error to send issue to jury: 25 S. E., 801; 35 S. C., 605; Proffat on Jury Trials, 90, 93; 2 Stock. Chan., 196. Respondent not entitled to trial by jury as matter of right: Code of Proc., 274; 35 S. C., 421; 43 Sr C., 190; 2 Dan. Ch. Pr., par. 1285; 3 Strob. Eq., 36; Harp. Eq., 69; 56 S. C., 306. Proof necessary to establish legitimacy: 1 S. C., 87; 15 S. C., 427; 18 S. C., 71. Court cannot disturb findings by probate court except upon clear proof: 13 S. C., 37.</p> <p>(oral argument).</p>

<p>Vacating Return of Commissioners in Partition. — The value put by commissioners in partition on lands to be divided should not be set aside unless the value is so gross, incorrect and unequal as to warrant an inference that the commissioners acted from an unfair or improper motive. The Courts apply substantially the same rule in vacating the return of commissioners in partition as are applied in vacating awards of arbitrators appointed under order of Court. If the rule announced in Moore v. Williamson, 10 Rich. Eq., 328, that a party may bring property to sale after valuation by making and securing a bid of a material advance in price be considered an exception it will not be extended so as to vacate a valuation by the unsecured bid of one not a party to the action.</p>

<p>Before Memminger, J., Greenwood, October, 1905.</p> <p>Action by Walter A. Wood Mowing and Reaping Co. against Greenwood Hardware Co. From order sustaining demurrer to part of answer, defendant appeals.</p> <p>cite: Contract is void: 71 S. C., 544; 193 U. S., 197; 24 Ency., 2 ed., 824; 853, 851; 24 U. S., 512; 6 Ency., 2 ed., 285. Contract cannot be separated so that part can be enforced: 20 S. C., 439; 197 U. S.’ 49 L. Ed., 763; 73 S. C., 1; 7 Ency., 95. Defendant is not estopped from pleading the statute: 20 S. C., 439; 46 Raw Ed., 1067.</p> <p>cites: Contract is not illegal: Code 1902, sec. 2845. Matters of estoppel in pais may be available without being pleaded: 8 Ency. P. & P., 6, 9; Bites v. Addison, 27 S. C. This case is ruled by Packard v. Byrd, 73 S. C., 1.</p>

Before Mfmming^r, J., Newberry, December, 1905. Action by Louise A. McCarley, administratrix, against Glenn-Lowry Mfg. Co. Prom judgment for plaintiff, defendant appeals. Messrs. Johnstone & Cromer and Mower & Bynum, for appellant, cite: Cross-examination as to size of rope necessary does not come within rules of expert evidence: 59 S. C., 311; 8 Ency. P. & P., 770. Master is not required to warn servant of known danger: 55 S. C., 483; 4 Cur.

Before F. B. Gary, special Judge, Chester, Fall Term, 1905. Indictment against James Sanders and Arthur Whitener for murder. From sentence on verdict of guilty, with recommendation to mercy, defendants appeal. cites: Jury should be kept apart while considering a case after charge: 32 S. C., 403; 21 S. C., 172; 60 S. C., 76; 2 Rich., 122; 51 S. C., 319; 97 Ga., 702.

<p>1. Elections — Notice—Dispensary.—The provisions in the dispensary law requiring twenty days’ notice to be given of the location of a dispensary in a township, is mandatory. It is not sufficient that an election of a dispenser be postponed by County Board from day on which it was advertised to be held to a later day, so as to make up twenty days from date of publishing notice to day of election.</p> <p>2. Injunction — Dispensary.—Any citizen who is a taxpayer of a township may maintain an action for injunction to prevent location of a dispensary in the township on ground that preliminary steps required by the statute to ascertain public opinion on the subject has not been taken, whether he is a qualified voter of the township or not.</p> <p>3. Town op Kebshaw — Ibid.—An incorporated town is a complete entity and the Legislature, having by various declarations recognized the town of Kershaw as a corporation of the county of Lancaster, it is an incorporated town under the provisions of the dispensary law of such county, and that county having voted out dispensaries, the County Board of Control of Kershaw County can not establish a dispensary within the corporate limits of said town on ground that said limits include a part of the territory of Kershaw County.</p> <p>4. Statutes — Ibid.—The provision in the act of 1906 (25 Stat., 148), striking out that portion of the dispensary act of 1904 prohibiting location of dispensaries in other than incorporated towns except in Beaufort and Horry, being contrary to the intention of the act as indicated in its title, is null and void.</p>

Before Watts, J., Sumter, November, 1905. Action by Frances C. White, Alice K. Ward, S. J. White, J. B. White et al. against Jno. J. Britton, Jr., Leonard E. White, A. Walker Newman and Samuel Newman. From judgment dismissing complaint, plaintiffs appeal. cite: Deed creates a base or qualiñed fee: 11 Ency., 368, 369, 370; 2 Black. Com., 109; Co. Litt., 27 A., Plowd., 557; 155 Mass., 171; 27 N. J. L., 13; 23 Barb., 370.

Before J. P. Carby, special Judge, Richland, July, 1905. Action by B. S. Royster Guano Co. against Adeline J. Bowles and J. Newton Bowles. The following is the Circuit decree: “The plaintiff is a corporation engaged in the business of manufacturing fertilizers near the city of Columbia. Its plant is located on a tract of land containing fifteen acres purchased from the defendant, Adeline J. Bowles, in May, 1901.

Before Mbmminger, J., Greenwood, October, 1905. Action by W. H. Mays against Seaboard Air Bine Ry. From judgment sustaining demurrer to complaint, plaintiff appeals. Mr. Grier cites: The act is a valid exercise of the reserved power in the Legislature to alter, amend or repeal the charter of all corporations: Cool. Con.

Before Gary, J., Lee, March, 1906. Action by Eliza Frierson against Mary Jenkins, alias Mary Frierson, Katie Jenkins, alias Katie Frierson, and Nathan Barnett. From order refusing jury trial, plaintiff appeals. cites: Con. U. S-, art. VII.; Con. 1895, art. I., sec. 7; 7 Fncy. P. & P., 166; 38 S. C., 580; 17 S. C., 563; Story’s Fq., sec. 630; Code, sec. 274; 36 S. C., 559; 1 Mill., 130; 2 Mill., 59; 1 N. & McC., 16; 10 S. C., 82; 17 S. C., 323. (oral argument) .

<p>1. Indictment. — It is not an abuse of discretion in trial Judge to permit a solicitor to nol. pros, an indictment charging one person with larceny with the. avowed purpose of sending out another in which the same person would be charged with larceny, and another with receiving the stolen goods.</p> <p>2. Ibid. — Finding by grand jury of no bill on count charging two persons with larceny, and true hill on count charging one of them with the same larceny, and on count charging the other with receiving the goods knowing them to be stolen, is not contradictory or uncertain.</p> <p>3. Charge.- — Where the Judge instructs jury where admission of guilt of one of two defendants is admitted that it is only binding on the one making it, it is not error to refuse request on that point in general charge.</p> <p>4. Charge here complained of construed in connection with the words immediately preceding held not to instruct jury to give their best judgment in the verdict, but that facts must be proved beyond reasonable doubt.</p>

<p>1. Res Judicata — Probate of Will — Administration.-—Holding by one Circuit Judge that probate of a will by a Judge from another county called in by the probate judge of the county of decedent, who was appointed executor, was void and that letters testamentary could not be granted until administration previously granted on said estate had been revoked by a direct proceeding for that purpose, is not binding on a succeeding Judge hearing an appeal from probate of same will by a Judge specially commissioned by the Governor for that purpose.</p> <p>2. Probate of Will — Administration.—A will may be admitted to probate without first obtaining by direct proceeding a judicial revocation of letters of administration previously granted on supposition of intestacy, as the effect of admitting the will to probate is to revoke the previous administration. The remedy of the previously appointed administrator is probate of will in solemn form.</p>

Before Krugh, J., Cherokee, November, 1905. Action by R. B. Bryant against Gaffney Mfg. Co. From judgment for plaintiff, defendant appeals. cite: Alleged superintendent and plaintiff were fellow^servants: 71 S. C., 56; 72 S. C., 243. Risk ivas obvious: 72 S. C., 346. Breaking of carboy is not proof -of negligence: 69 S. C., 529. cite: Master must furnish safe appliances: 72 S. C.,'269; 64 S. C., 215.

<p>Before Kijjgh, J., Florence, March Term, 1905.</p> <p>Indictment against William B. Rowell for killing Jos. C. Blount. From sentence on verdict, defendant appeals on following exceptions:</p> <p>“I. The Court below erred in allowing the witness, G. S. O’Bryant, to testify, over the objection of the defendant, to the alleged condition of the defendant before the homicide, and to alleged conversations between said witness and one Speed, and an alleged conversation between said parties and the defendant, to wit: ‘Q. What was his condition and what did he say ? A. Mr. Speed and myself were walking— Q. What did either one of you say in his presence ? A. Speed and myself were walking by and he was leaning upon a post. Q. Who was? A. Mr. Rowell. And when we got right near to him Mr. Speed was talking, and 'he said: “That is a damn lie; I don’t believe a word of it.” Q. You and Mr. Speed were walking along talking? A. Yes, sir. Q. Mr. Rowell was where? A. On the corner. Q. How was he doing? A. Fie was leaning up against the post there, in pretty bad shape. Q. You and Mr. Speed walking along talking? A. Yes, sir. Q. What did Mr. Rowell say? A. We were walking along talking, and when we got right near Mr. Rowell said: “It is a damn lie and I don’t believe a word of it; and you are going to the blind tiger to get a drink.” Speed struck a match and held it in his face, and I said, “Oh, come on. It is Mr. Rowell, and he is drinking.’ ”</p> <p>“(a) The same was irrelevant, (b) There was no connection between the same and the homicide, (c) It was an effort by the State to show other acts of misconduct on the part of the defendant, not connected with the homicide, to attack and blacken his character, and to prejudice the defendant in the mind of the jury.</p> <p>“II. The Court below erred in holding as incompetent and ruling out the answer of the witness, Reon D. Morris, to the question, ‘Do you know whether it was the custom of Mr. Blount to go armed ?’</p> <p>“(a) The testimony was admissible and (b) relevant as tending to establish self-defense.</p> <p>“HI. The Court below erred in allowing the solicitor to submit to the inspection of the witness, John R. Rogers, a paper purporting to have been signed by him, interrogating the witness as to the same and reading the same to witness and in hearing of the jury, without allowing the defendant’s counsel the privilege of first inspecting the same, and in holding that the right did not exist unless the paper is offered in evidence. The Court should have held that submitting the paper to the inspection of the witness and then reading the alleged contents to the witness in the hearing of the jury did not confer this right, and was tantamount to the introduction of the same in evidence.</p> <p>“IV. The Court below erred in holding as competent, over defendant’s objection, and forcing the defendant while on cross-examination to answer the following questions by the solicitor, and in holding that the same was competent because it was the cross-examination, to' wit: ‘Q. While you were at Mr. Rouse’s store, is it not a fact, Mr. Rowell, that you were so much under the influence of whiskey that your friend Mr. Rouse asked you to go home, and told you it was best for you to take a cup of coffee ? Q. When Mr. Rouse advised you to do that, didn’t you reply in substance in this way to Rouse: “You are a fool; you don’t know what you are talking about. A man in my position, a constable, could kill a man and not suffer as much as you think”? Didn’t you use that expression, drinking, being under the influence of whiskey? Q. Very good. Did you not on this evening of the 16th of December, the same evening as this killing, at Tom Williams’ blacksmith shop, about six o’clock, anyway, late that evening, about six o’clock, in the city of Florence, didn’t you try to borrow twenty-five cents from Mr. Tom Williams, and didn’t he refuse to lend it to you, telling you that you already had enough liquor? Q. Well, I am giving you notice we are going to contradict you. And in the same conversation, when Mr. Williams refused to let you have this money, didn’t you go on and say that you intended to kill a man at the dispensary? Q. Very good. At Pendergrass’s store, did you threaten right there to kill Nat Phillips ? Q. Didn’t Mr. Hollis put you out of the store? Q. And didn’t you come back in, saying, “God damn him! I’ll kill him!” alluding to Nat Phillips? Q. When Mr. Hollis put you out of the store, didn’t you go out on the street and say, “I will stand here and get him!” or words to that effect? Q. Mr. Rowell, isn’t it a fact — I will ask you again — that when you went in Pendergrass’s store, you were so much under the influence of whiskey, in addition to doing what I have already asked you about, that you spoke about being on the constabulary force and you had been discharged, and cursing around generally? Q. Hadn’t you 'been discharged once or twice? A. Only once. Q. How long before that ? A. It was during Governor McSweeney’s administration. Q. Wasn’t it for drunkenness? A. Yes, sir, it was.’</p> <p>“(a) The same were irrelevant, (b) There was no connection between the same and the homicide, (c) They were efforts by the State to show other acts of misconduct on the part of the defendant, not connected with the homicide, to attack and blacken his 'character, and to prejudice the defendant in the mind of the jury, (d) The Court should have held that the privilege and license of cross-examination never permits the introduction of testimony otherwise positively incompetent and improper.</p> <p>“V. The jury having returned to the court room twice and announced that they could not agree, the Court below erred in sending them back a third time and git/ ing them the following charge: ‘The Court: Mr. Foreman, is there any further matter in which the Court can give you assistance to enable you to arrive at a verdict? The Foreman: No, sir. The Court You don’t desire any further instruction upon law ? The Foreman: No, sir. The Court: Nor any portions of the testimony read? The Foreman: No, sir. The Court: It is simply a matter of inability of the jury to agree? The Foreman: Yes, sir. The Court: Well, that, to say the least of it, is a very unsatisfactory condition of things. It cannot satisfy the defendant or the State. I doubt very much whether it satisfies the jury. It certainly does not satisfy the Court. You are sworn to arrive at a verdict, and to render a true verdict according to the evidence. It sometimes happens that the jury is not able to do that, merely because there are twelve intelligent' minds who have to1 deal with the facts of the case, and those twelve intelligent minds see the facts from different standpoints and arrive at different conclusions as to what are the facts of the case. After a jury, or anybody else, gets at the facts of a case it is a very simple matter to apply the facts to the law — for the law is fixed. It is not a question of what is the law, or whether you agree about the law, for there is no possibility of a disagreement about the law. So that it is a simple matter, if the facts of a case are ascertained, to apply those facts to the law, and render a conclusion, that is, in this instance, a verdict. But sometimes that turns out to be practically impossible. Because men have their views, they have their consciences, and men who are sworn on their solemn'oaths to render a verdict according to the facts may not be able upon their good consciences to reconcile differences that arise amongst you and come to a common agreement or conclusion as to the facts of the case. I take it that that is apparently what the trouble is now: that you have not been able to agree amongst yourselves as to what are the facts of the case, and, therefore, you are unable so far to render a verdict in the case. Now, as I have said, you being intelligent men, good and lawful citizens, true men, no doubt you are impressed with the unsatisfactory condition of things that that presents. If you do not agree, it means that this whole mater will have to be gone over again by some other jury, who will be expected to agree; and there is no human probability that that jury will be in any better position to agree than you are. So it follows, then, necessarily, that if it can be that this jury can come together and agree on a verdict, you ought to do it. As I have said already, a mistrial must be unsatisfactory to everybody. It satisfies nobody. The State is at the expense of carrying on this prosecution. That is the smallest matter of consideration in the whole transaction, is the expense and trouble or inconvenience that the State may be put to, because the State is able to stand it; more able to stand it than anybody else connected with it. But it is not a trifling consideration, because the State represents all the people, and their rights, after all, are supreme. And yet, in a case like this, they are no higher than the rights of the defendant; they are just exactly on a level with his rights. Still, a mistrial could not satisfy the demands of the State. The State, first of all, wants an end of this litigation, and if it be just that the State should have a verdict against the defendant, then the State wants that; if it be not just, the State does not want that. On the other hand, turn to the position of the defendant. He is put to the anxiety, the annoyance, the inconvenience, the interference with his affairs, as well as the expense, of having to go over this case and of having had to go over it already; and if you fail to agree, then of having to go over it again before another jury who, as I have said, will be in no better position, if indeed, as good a position, to decide the case as you are. Now, those are very high considerations, both on behalf of the State and of the de.fendant. There ought to be an end of this case. Well, now, when you come home to yourselves with the personal consideration, as I have said, I don’t suppose it is a satisfactory state of affairs amongst the jurors yourselves that you can’t agree. You are men- — not children. You are good and lawful men. You have that stamp put upon you by the fact that you are here as jurors. Men of good common sense, free from all legal exception, brought here and sworn upon your solemn oaths to take the facts of this case and the law of this case and -ascertain for yourselves what are the facts, and determine upon a verdict. Now, where such men are put up'o-n their duty to perform a service and fail to perform it, it cannot be satisfactory to the men themselves. So much for those aspects of the case. Well, now, as I have said, it may sometimes develop that it is impossible for a jury to agree, without somebody sacrificing not merely some unimportant view, that he has of the case, but some conscientious view that he.cannot sacrifice or give up without doing violence to his oath. And no man is required to do that. On the other hand, the considerations that I have mentioned now make it imperative on you to exhaust every effort that is within your power to reach an agreement before you give it up, I don’t suppose any man of you, if he was at home about his own affairs -and had a difficult proposition put to him, or a difficult task, would be willing to surrender and say he was not able to do it, until he had tried every reasonable means to -do it. And that is just the situation that confronts you here now. This is a task that has given you, or a duty that has given you, some trouble. You have been engaged in this matter for some considerable time, and probably you yourselves are not willing to give it up until it develops that you just simply can’t agree. Well, now, taking that view of it, that the jury themselves are anxious — not eager, but anxious — as earnest, honest, faithful, true men, to do your full duty in this case, I don’t think it has yet been established that you are ready to surrender and admit that you cannot reach a conclusion in the case. I don’t mean by that that a man must sacrifice ‘his opinions, his solemn, conscientious opinions, in a case in order to arrive at a verdict. It may be a much higher and more solemn duty for a juror to disagree with his fellow-jurors than it is for him to agree. I say, it may be that a case might arise in which that would be true. But looking at the matter in a practical way, the duty of each juror is to agree with his fellow-jurors upon a verdict, and to leave no reasonable means of conference, comparing of views, untried to agree. Now, I am not willing to accept from this jury as yet the surrender, the admission on your part that you cannot agree, that this task is too difficult for you. It is not my purpose to keep you here merely for the purpose of keeping you, and trying to force you against your consciences into a verdict. I am not going to do that. I hope the jury has already caught the impression that the Court is anxious to make you comfortable, to do everything possible to contribute to your welfare and to aid you in reaching a conclusion in this case. And that is an earnest of the purpose of the Court still to aid you in arriving at a conclusion and to give you all the time necessary for you to reach a conclusion. But I hope it is also an earnest to you that the Court does not have any disposition to punish you, and is not going to keep you here merely through stubbornness or anything of that kind. I don’t think you are stubborn — I have no such idea as that — and I am quite sure that no one else connected with this case has taken the stubborn position that they won’t allow the case to go off otherwise than with a verdict. But until it becomes practically an impossibility to reach a verdict, I think the jury will concur with me that we ought not to give the matter up, but ought to make further efforts to agree. And I am going to give you further time, and if now or at any time subsequently you desire any further assistance from the Court of the character of assistance that the Court is able to afford you, let it be known and it will be gladly furnished you. And as your comfort has already been ministered to and provided for, so for the further time in which you may be occupied in the consideration of the case you may be sure that anything that can be done to conduce to your well being and comfort will be done. But I cannot allow you to' give up the case as yet. It is too important for the defendant and for the State to have an end of the matter, as well as important for you as good and lawful men, for us to give it up as yet.’</p> <p>“(a) The jury having returned a second time to the court room and announced that they could not agree on a verdict, it was error in sending them back without their consent. (b) It was an undue urging and forcing the jury to find a verdict, (c) The financial loss and cost to the State was urged as a reason why a verdict should be reached, and the jury were told that this consideration was not trifling and that the rights of the people whom the State represented were supreme.</p> <p>“VI. The Court below erred when in charging the defendant’s request to charge, ‘that words do not justify blows .or resorts to violence,’ by modifying the same as follows : .‘That brings us again to that question of a person being in fault. The law does declare that words do not justify a blow. But,, on the other hand, if words call forth a blow — I mean, opprobrious words — words which show that a man is not within the bounds of his duty to his fellowman, that he is failing- in his duty to his fellow-man or in his conduct to his fellow-man, then the question — I say, if the words show that — why, then, as a matter of course, the man who uses such words, opprobrious words, cannot say that he was without fault in provoking the blow. It is a matter of good conduct, and that expression ‘without fault’ is a deep and a broad expression. It don’t simply refer to the matter as to which struck the first blow, but who was at fault in the breach of decorum, breach of good conduct, breach of the rights of his fellow-man and breach of his duty to his fellow-man, growing out of the rights of his- fellow-man. So that if a man uses opprobrious language and if that is a breach of his duty to observe good conduct to his fellowman, to do no harm to him, not only to his person, but to his feelings, his name, his reputation, his character; I say, if a man acts in such a way as to do violence to those matters — ■ matters which sometimes are just as dear, probably dearer, to a person than his mere physical being — then he fails in his duty. And that is what ‘fault’ means; ‘fault’ — a failure; ‘without fault’ — without any failure; without any default or defalcation in good conduct. Irrespective of lawsuits and things of that kind, it is the duty of every person in society to so conduct himself as to do no harm in any way to his fellow-man. And if he transcends that duty, either by transgressing or by omitting his duty, that is a failure. And a failure is a fault; a fault is a failure. The two words come from the same derivation and mean one and the same thing, practically. So while words do not justify a blow, a man cannot use words and say he is without fault, that there was no failure on his part to observe his duty to his fellow-man, when he uses opprobrious language. That is altogether in the abstract, but you will take that and apply it to the facts in this case and determine for yourselves whether the defendant in invoking the right of self-defense was without fault.’</p> <p>“(a) The request as modified does not correctly state the law of self-defense as to its constituent element of "being without fault in bringing on the difficulty.’ (b) The ideal standard of conduct and morals laid down in this charge as being necessary to enable a defendant to claim self-defense, is foreign to the criminal law. (c) The charge laid down the rule that if in using words a party fails' in his duty, any breach of decorum, any breach of good conduct, or any breach of the rights of his fellow-man, that any act or words that reflect on or does violence to the feelings, reputation or character of another, will exclude the right of self-defense. The Court should have held: (d) that a person is not deprived of the right of self-defense because he uses insulting language, (e) That one who insults another by opprobrious words may be bound to anticipate that the in-suited person will repel the insult to the extent the law allows, but he is not bound to anticipate that he will go to the extent of attempting to take his life.</p> <p>“VIL The Court below, in defining as an element of self-defense that there must be no other probable means of escape, erred in charging the jury as follows: ‘Eor instance, a man is not allowed to kill another man if by running away he can get out of danger.’</p> <p>“(a) The charge does not correctly state the law of self-defense. (b) The law does not require a person to ‘run away’ when attacked, on the penalty of losing the right of self-defense.</p> <p>“VIII. The Court below erred in carrying on a private conversation with the jurors about the case, and discussing the case with members of the jury not in the hearing of defendant or his counsel.</p> <p>“(a) It violated article I., section 18, of the Constitution of this State, requiring criminal prosecutions to be public, (b) The defendant was entitled to be cognizant of every stage, step and progress of his trial, (c) The defendant is not required to hear at ‘second hand’ any part or proceeding of his trial. On two occasions during the trial of this case and while the Court was instructing the jury, -one of the jurors left his place in the jury box, went up to the Judge’s bench and he and the presiding Judge had a private conversation about the case.</p> <p>“IX. The Court below erred in refusing a new trial to the defendant on the ground which was based on the affidavit of the juror, Eli Hatchell, to the effect that during the trial of the case and while he was at the Central Hotel at night, in the charge of Constable Matthews, a bailiff of the Court, talked about the case in his presence and said that the defendant should be punished, and in holding that there was nothing before him to show that the verdict was influenced by it.</p> <p>“(a) It was an effort of an officer of the Court, in charge of the jury, and whose duty it was to protect it from outside influences, to influence the jury against the defendant, (b) It deprived the defendant of a public trial by an impartial jury, (c) It deprived the defendant of the right to be confronted 'by the witnesses against him. (d) It is against the public policy of the State to permit such secret influences against an accused to be used by one of its officers to whom the custody of the jury is ’delivered, (e) It was not incumbent on defendant to prove affirmatively that the verdict was influenced by it. (f) The verdict might have been influenced by it.</p> <p>“X. The Court below erred in refusing the defendant’s motion for a new trial on the 5th ground submitted, to wit: ‘That the jury having returned h> the court room twice and announced that they could not agree, the Court sent them back the third time, without their consent or request.’</p> <p>“XI. The Court below erred in overruling the defendant’s motion for a new trial on the 4th ground submitted, to wit: ‘4. Error in charging modification of request to charge that words do not justify blows — to the effect that if words produce blows, that if in using words the party fails in his duty, then he cannot claim that he was without fault in bringing on the difficulty.’</p> <p>“XII. The Court erred in charging the jury to the effect that where one party was in fault in bringing about an encounter, that for the party in fault to be allowed to plead self-defense the éncounter would have to be' finally ended, and not a continuation of the first, which had been merely interrupted. That each meeting would have to be independent. The Court should have held that where the first encounter had been interrupted and renewed by the other party not in fault in bringing about the first encounter, the party in fault in the first may plead self-defense, if without fault in renewing-the encounter.”</p> <p>No arguments furnished Reporter by either side.</p> <p>1 An opinion was first handed down in this case on February 28, 1906, but on petition for rehearing, on May 26, 1906, a reargument was ordered at the April Term, 1906.</p>

Before Gage, J., Edgefield, October Term, 1905. Action by J. B. Walker against Western Union Telegraph Co. From judgment for plaintiff, defendant appeals. cite: Evidence should not be admitted on point reasonably not in contemplation of contracting parties: 70 S. C., 10, 356; 60 S. C., 381; 61 S. C., 329; Joyce on Elec. E., sec. 823; 72 S. C., 295; 70 S. C., 423, 543; 71 S. C., 29.

Motion to dismiss appeal. The facts on which this motion was made are substantially as follows: A verdict was obtained in favor of plaintiff at April Term, 1906, Richland County. Motion for new trial was made, and on August 15, 1906, the Circuit Judge granted a new trial nisi. On August 25, plaintiff remitted amount required by order nisi. On August 28th, notice of appeal was served by Messrs. Abney & Thomson, attorneys of record for defendant.

Motion by appellant, W. P. Love, against M. J. Turner, respondent, for time to perfect appeal. The facts on which the motion was made are substantially: The case was tried at the March Term of the Court for Cherokee County; and appellant’s attorneys im,mediately requested the court stenographer to furnish them a transcript of the record; and thereafter repeated'the request several times.

Before Prince, J., Union, June, 1906. Action by California V. Spillers against Geo. W. Stevens and Joe A. Cathcart. Prom Circuit decree, plaintiff appeals. (no citations). Mr. Sawyer cites: Decree will not be reversed for admission of incompetent evidence if there be other competent evidence sufficient to support decree: 75 S. C., 197; 36 S. C., 216; 61 S., C., 232. Burden of proof in such cases: 54 S. C., 191; 31 S. C., 276.

<p>Petition for injunction by William D. Dillingham against Mayor and City Council of city of Spartanburg and Southern Bitulithic Co.</p>

Before MbmmingER, J., Laurens. Action by Jno. W. Park against Paurens Cotton Mills. Held: that the said act was unconstitutional, null and void, for the reasons above set out. “IV.