Volume 76 — South Carolina Reports

Before Hydrick, J., Kershaw, July, 1906. Action by W. W. Williams, against Seaboard Air Dine Railway. Erom judgment for defendant, plaintiff appeals, cite: Failure of railroad company to comply with statutory reJ quirement is negligence per se: 58 S. C., 222; 53 S. C.. 121. Judge should declare lam applicable to case: 47 S. C., 488. cite: Action is under common law and not under statute: 41 S. C., 89.

<p>1. Removal op Causes. — In action against two defendants on joint tort, petition for removal to Federal Court, alleging that both defendants are non-residents, should be made on behalf of both.</p> <p>2. Ism. — Allegation in petition by one defendant for removal into Federal Court of action on joint tort that other defendant is sham and joined for purpose of preventing removal is not sufficient to obtain removal.</p>

. Before Aldrich, J., Darlington, November Term, 1904. Held: and either have directed a verdict for the defendant or granted the motion for a nonsuit. “II.

Before Gary, J., Sumter, March, 1906. Actioii' by Amanda McDaniel, as administratrix of David McDaniel, against Atlantic Coast Line Railroad Co. From judgment for plaintiff, defendant appeals on following exceptions : “1.

<p>1. An Exception stating an excerpt from the charge in which it clearly appears that it was intended to present only a single proposition, is not too general.</p> <p>2. Liquidated Damages — Mechanic’s Lien. — Defendant in action to enforce mechanic’s lien may set up defense of unliquidated damages for failure to complete work in proper time without provision in contract as to liquidated damages in case of delay in construction.</p>

<p>1. Constitution — Dispensary—Taxes—Statutes.—The provision in the amendment of 1904 (24 Stat., 485,) to the Dispensary Law, commonly known as the “Brice Act,” levying a tax of one-half of a mill on those counties voting out the dispensary to enforce the dispensary law therein, does not violate the constitutional provision requiring a uniform and equal rate of taxation, because it does not levy such tax on two counties which have never had dispensaries. The provision may be classed under Court expenses, litigation or ordinary county expenses, which the General Assembly by art. X., sec. 6, of the Constitution, is empowered to authorize a county to levy taxes for.</p> <p>2. Ibid. — Ibid.—Ibid.—Ibid.—School Funds. — So much of this act as provides that a county voting out a dispensary should not thereafter receive any part of the surplus that may remain of dispensary school fund after deficiencies in county school funds have been made up violates art. XI., sec. 12, of the Constitution, in that the apportionment is not within the principle contemplated in the Constituion, but this portion of the act being separable from the remainder its adjudication as unconstitutional does not invalidate the other portions of the act.</p> <p>3. Ibid. — Ibid.—The act is not violative of art. III., sec. 34, in that it is a special law where a general law could be made applicable, as it is a general law with special provisions.</p>

<p>Before Hydrick, J., Williamsburg, October, 1906.</p> <p>Action by S. B. Poston against Midland Timber Co. From judgment for plaintiff, defendant appeals.</p> <p>cite: 67 S. C., 134; 17 Ency., 3 ed., 7, *19; 33 S. C., 318; 64 S. C., 186; 19 S. C., 351; 8 Rich. Eq., 10; 1 McC. Ch., 83; 43 S. C., 343; 35 S. C., 389; 33 S. C., 46, 338; 16 S. C., 394.</p> <p>cites: 35 Ency., 3 ed., 643; 67 S. C., 134;. 15 Ency., 330; 64 S. C., 185; 65 S. C.,.345; 67 S. C., 118; 69 S. C., 393.</p>

<p>1. Appeal. — The State has the right to appeal from a judgment of the Court of General Sessions holding a city ordinance unconstitutional brought up by appeal of defendant from conviction by city court. Me Justice Gary dissents.</p> <p>2. Constitution — Ordinance.—A City under its police power may adopt an ordinance prohibiting the firing of firearms and the ordinance is not unconstitutional in that it infringes upon the constitutional right of the citizen to bear arms. That the same ordinance permits coopers to build fires below the curtain line and prohibits others from building such fires does not render it invalid, but if it did, the respondent here could not invoke it as a ground for adjudging the ordinance invalid in his case.</p>

<p>Indictment — Gambling.—It is not necessaiy to negative in an indictment charging that defendant “did unlawfully keep and maintain a house used for purposes of gaming contrary to the statute,” games not only not forbidden, but expressly allowed by statute under the rule of pleading prescribed by section 56, of Criminal Code.</p>

Before Memminger, J., Spartanburg, March, 1906. Action by Bassett Weaver against Southern Railway Co. Prom judgment for plaintiff, defendant appeals on following exceptions, alleging error: “1.

<p>Before Gage, J., Bamberg, Fall Term, 1906.</p> <p>Action by Jones Bros, against Southern Railway Co. From judgment for plaintiff, defendant appeals.</p>

Before Ardrich, J., Charleston, June, 1906. Indictment for breach of trust against George W. Dewees. Prom order sending issue of former jeopardy to jury, State appeals. cites: What constitutes fo7'mer jeopardy: 1 Arch. Com. P. & P., 338; Dud., 40; 2 McM., 382; 20 S. C., 392; 46 Si C.^ 13; 58 S. C., 368; 65 S. C., 187. cites: Former jeopardy deñned: Art. I., secs. 5, 17, 18, Con. 1895; 53 S. C., 281; Grim. Code, 59; 14 and 15 Viet., 100, 828. What the plea is: Bish.

Before Purdy, J., Sumter, May, 1905. Action by Sumter Tobacco Warehouse Co. against Phoenix Assurance Co., Limited, of London. Prom judgment for plaintiff, defendant appeals. Mr. Seibels cites: As to irregularity in name of charter: 15 S. C., 185. Deed to corporation in wrong name conveys no title: 3 L. R. A., 583; 108 Mass., 227; 4 Wheat., 1; 5 L. R. A., 121; 9 Rich., 309. Evidence as to waiver was irrelevant: 68 S. C., 387; 42 S. C., 121.

Before Gage, J., Marlboro, May, 1906. Indictment against Charley Gay for entry after notice in court of magistrate C. D. Easterling. From order on circuit affirming magistrate, defendant appeals. cites: 35 S. C., 268; 18 Ency., 211, 212, 219; 2 Black. Com., 144; 13 Allen, 346; 5 Mass., 419; 15 Mass., 439; 14 N. Y., 63; 83 Ind., 48; 42 N. Y., 372; 5 Coke, 123; 45 Md., 181; 33 N. Y. E., 44; 10 N. Y., 479; 39 N. C., 370; 2 Ch., 75; Coke’s Lit, 636.

Before Ardkich, J., Charleston, June, 1906. Indictment against Wade Hampton Berry for forgery. Defendant appeal's. cites: If there be any testimony ta support verdict, there is no appeal from order refusing new\ trial on that ground: 2 Bail., 11; 1 S. C., 1; 23 S. C., 226, 392; 38 S. C., 258; 68 S. C., 58; 69 S. C., 101. Intent to defraud refers to persons to whom paper is presented: 1 Brev., 34; 56 S. C,, 495. Forgery defined: Crim. Code, 373; 72 S. C., 508.

<p>Before Gary, J., Orangeburg, September. 1906.</p> <p>Indictment against Jefferson W. Way for murder of John D. Palmer. Defendant appeals.</p> <p>cite: Evidence excluded was admissible as part of res gestae: 34 Ency., 676-7; 13 S. C., 459; 47 S. C., 13. Error to< charge the plea of self-defense must be established by preponderance of evidence without further limitation: 39 S. C., 4; 68 S. C., 317; 5 Ency., 33, 39.</p> <p>cites: Self-serving declarations are never admissible: 41 S. C., 530. _ What is necessary to make out plea of self-defense: 59 S. C., 397; 71 S. C., 146; 38 S. C., 333.</p>

Before Watts, J., Charleston, July, 1906. Action by Ingleside Mining and Manufacturing Co. and Woodstock Hardwood and Spool Manufacturing Co. against Charleston Light and Water Co. From order granting injunction, defendant -appeals. cite: Condemnation may be had after entry and possession: 30 Fla., 616; 8 N. Y. Sup., 151; 3 Watts & S., 460; 67 N. Y., 371; 3 N. Y. Sup., 378; 13 N. Y. Sup., 503; 9 La., 305; 100 Mo., 383; 59 Fed., 39; 9 Allen, 577; 36 L. R. A., 435; 54 L. R.…

Before Watts, J., Aiken, July, 1906. Action by Aetna Insurance Co. against Charleston and Western Carolina Ry. Co. Defendant appeals. cites: Plaintiff should not recover under the statute: 41 S. C., 95, 285; 28 S. C., 401; 63 S. C., 370; 2 May on Ins., 454; 27 Ency., 260. The former cite: Plaintiff is entitled to be subrogated to rights of insured whether act causing loss be negligent or not: 9 A. & E., D. E., 531; 27 Ency., 260; 46 Am.

<p>Before Memminger, J., Cherokee, February, 1906.</p> <p>Indictment against George Hasty for murder of Milan Bennett. Defendant appeals on following exceptions, alleging error:</p> <p>“1. In not quashing- the indictment herein, upon motion of defendant’s attorneys, for the reason that if appears upon the face thereof that it charged the crime of murder and charged that the alleged crime was committed with a pistol, and therefore, it was necessary that said indictment should contain a special count charging the carrying of a concealed weapon; whereas, said indictment never contained any such count, and for that reason, was illegal and invalid and should have been quashed.</p> <p>“2. 'In holding that it did not appear in the indictment herein that the crime was charged to have been' committed with a weapon of the character specified in section 130 of the Criminal Code of 1902, and for that reason, need not contain such special count charging the carrying of a concealed weapon, it being respectfully submitted that the crime was charged to have been committed with a pistol, which is a weapon of the character specified in said section of the Code, and his Honor should have so held, and should have quashed the indictment.</p> <p>“3. In not quashing the indictment for the reason that it was charged that the defendant had committed murder, and it was necessary that the indictment should contain such special count, regardless of whether it was charged' to have been committed with a weapon of the character specified in section 130 of the Code, and his Honor erred in not so holding and im overruling the motion -to' quash.</p> <p>“4. In overruling and refusing to grant defendant’s motion in arrest of sentence and judgment, it being respectfully submitted that the verdict of the jury was illegal, null and void, and that his Honor was without jurisdiction to' pronounce sentence and judgment; for the reasons that, under the law, the Court of General Sessions, and the powers of the Court and of the jury incident thereto, expired with the end of the week beginning on the fourth Monday in February, 1906, and did not extend into the week subsequent thereto, and the said Judge had no power to so extend it, and hfence any act of either Court or jury in said case, after the expiration of the time so limited by the law, was illegal, null and void', and his Honor should have so held and should have granted the motion.</p> <p>“5. In not granting defendant’s motion for a new trial upon the ground that there was no evidence that the defendant was at fault in bringing on- the difficulty, and his Honor erred in charging the jury- on said matter, and should for that reason have granted the motion.</p> <p>“6. In not permitting defendant’s attorney to ask questions, and defendant’s witness, J. L. Ferguson, to give testimony tending to show the relations existing between the State’s witnesses, Misses Sheridan and Bishop, with Bennett and Davidson, respectively, and tending to throw light upon the actions and motives of Bennett and Davidson with reference to the defendant, and tending to- discredit and contradict said witnesses, it being respectfully submitted that said testimony was competent and relevant and should have been allowed.</p> <p>“7. In not allowing defendant’s witness, Mrs. Wing, to answer the following questions propounded to her by defendant’s attorney: ‘Q. Iri what condition did you find the bed? Q. What was the condition of the pillows? Q. Was there or not the-impression of a human head on each of those pillows? Q. Following the bed down from the pillows, toward the foot, were there or not two distinct marks of a human form? (Alii' above questions referring to Miss Sheridan’s room and bed.) Q. Directing your attention to- the- room occupied by Miss Bishop, what was the condition of that bed? Q. What was the indication upon the pillows? Q. What did you find in the bed? Q. Was that a lady’s hat ?’</p> <p>“It being respectfully submitted .that said questions were competent and relevant, tending to discredit and contradict the witnesses for the State, Misses Sheridan and Bishop, and tending to throw light upon the actions and motives of Bennett and Davidson with reference to their conduct toward defendant in the difficulty.</p> <p>“8. In refusing to have defendant’s witness, Mrs. Wing, sworn in the presence of the jury, and in forcing defendant’s attorney to question her, without being sworn, and in ruling upon the question so propounded to her in the absence of the jury and without having her sworn, it being submitted that such conduct upon the part of his Honor was improper and illegal.</p> <p>“9. In not allowing defendant’s witness, Mrs. Sallie Hasty, to answer the following questions propounded to her by defendant’s attorney: ‘Q. Where did you see them (referring to' Miss Sheridan and Mr. Bennett) ? Q. Where were you when you saw them? Q. Where in the room did you see Miss Sheridan and Mr. Bennett, if you did see them ?’</p> <p>“It being submitted that said questions were competent and relevant, being in reply and tending to contradict and discredit the State’s witness, Miss Sheridan, and tending to throw light upon the actions and motives of Bennett in his conduct towards defendant in connection with the difficulty, and should have been answered.</p> <p>“10. In allowing the State’s witness, John Spencer, to testify in answer to the following questions over defendant’s objection: ‘Q. Did you see on the morning of this homicide in your place of business, George Hasty, and did he say to you that he had been up all night trying to get something, using a vulgar word? A. Yes, sir. Q. And that he was going back to- try it again? A. Yes, sir.’</p> <p>“It being respectfully submitted that said questions were irrelevant and incompetent, and not in reply; and was upon an immaterial point and tended only to inflame the jury ag'ainst the defendant.</p> <p>“11. In. charging the jury as follows : ‘And if the defendant was in his own home, I charge you further that the defendant did not have to retreat in order to be in a position to set up self-defense, but he had a right to stand his ground and protect himself; but whether this be so or not, it was not necessary for defendant to retreat, if there was no probable means of escape at the time, or if by retreating the defendant would 'have put himself in greater danger,’ and in adding thereto the following: ‘That latter I charge you, with the qualification I have already given you in reference to a man being upon his own premises with an invited guest, or a person who had a right to be there.’</p> <p>“The error being that in so charging, his Honor instructed the jury and lead them to believe and understand that it was necessary for defendant to retreat, even though there was no probable means of escape at the time, and even though by retreating the defendant would have put himself in greater danger, if the deceased was a guest of the defendant or at a public house or inn and had not been directed to depart therefrom.</p> <p>“IS. In charging the first request submitted by the attorneys for the State, which was as follows: ‘The plea of self-defense is not made out, unless the defendant, by the preponderance of the evidence, shows that it was necessary for him to take the life of the deceased in order to protect his own life, or to protect his body from grievous bodily harm. If there was open to him a probable means of avoiding the killing, then the necessity did not exist.’</p> <p>“The error being that it is not necessary for the defendant in such a case to show by the preponderance of the evidence that it was actually necessary for him to strike the fatal blow, but the law is that he is excusable whether it was necessary or not, provided he believed that it was necessary and the appearances were such as to justify such a belief in the mind of a person of ordinary reason and courage. It is further submitted that the necessity to* kill might have existed even though there was open to him a probable means of avoiding the killing, as, for instance, if by retreating, the defendant would- 'have placed himself in greater danger of life or limb, which his. Honor excluded from the jury. Again, his Honor took from the jury the right to decide whether, under all the circumstances of the case, the defendant was justified in killing, even though it subsequently transpired that there was a probable means of avoiding the killing, whereas such matters should have been left for the jury to determine.</p> <p>“13. In charging the jury as follows: ‘That in considering the plea of self-defense, you will consider that in connection with it, that a man is required only to use such force as is necessary under the circumstances which surround him, to repel force with force, that is the principle broadly and generally stated. The jury are to say whether more force was used than was necessary, from all the facts and circumstances as you have them before you.’</p> <p>“The error being that in so charging, the jury was led to believe and understand that the plea of self-defense would not avail defendant, if it appeared that he used more force than was absolutely necessary to repel force with force, whereas, under the law, the plea of self-defense is available, no matter how much force the defendant used to repel force, and even though there was no 'absolute necessity to kill, provided defendant believed that the necessity existed, and provided the circumstances were such as. to justify such belief in the mind of a reasonable man, and all this ’his Honor excluded from the jury by this charge.</p> <p>“14. In charging the jury as follows: ‘And when a person had any probable means of_ escape, he must avail himself of such 'means and retreat as long as he can do so, unless by so doing he may increase his danger.’</p> <p>“The error being that it was not necessary for defendant to retreat unless he knew of a probable means of escape, nor if he believed the necessity to kill existed and the circumstances were such as to induce such belief in the mind of a man of reasonable courage, and this should have been left to the jury.</p> <p>“15. In charging the jury on the plea of self-defense, that in order for defendant to 'avail himself of such plea he must show that he was not at fault in bringing on the difficulty.</p> <p>“The error being that there was no evidence that the defendant was at fault in bringing on the difficulty, and his Honor confused and misled the jury in so charging.”</p> <p>The latter cite: Indictment must contain count against carrying concealed weapons, Crim. Code, 131: SO S. C., 393; 70 S. C., 384. Court of General Sessions should not be extended into iveek assigned to civil cases: Acts, 1905, 853; Con., ’art. V., sec. ,18; 2 Hill, 683; Code, 1902, 27; 69 S. C., 325; 14 S. C., 350; 55 S. C., 596; 13 S. C., 3; 56 S. C., 180, 401.</p> <p>The Solicitor cites: Not necessary for indictment to contain a count against carrying concealed weapons: Crim. Code, 130, 131. Sessions Court could be carried into second week: Code, 1902, 27; 30 S. C., 391.</p> <p>Mr. Otts cites: Sessions Court may be extended into second week: Acts of 1905, No. 366. As to granting new trial: 11 S. C., 195; 15 S. C., 407; 24 S. C., 593; 53 S. C., 215. Witness cannot be impeached by proof of immoral acts: 2 Mills Con. R., 173; 52 S. C., 534;'34 S. C., 38; 29 Ency., 797; 7 Ency., 173; 34 S. C., 16; 20 S. C., 341. Nor on collateral issues: 33 S. C., 592; 1 Stark. Ev., 134, 135; Phil. Ev., 230-1; 2 Bail., 127, 437; 7 Ency., 109; 99 Mass., 432; 39 Ind., 568; 55 S. C., 443; 10 Ency. P. & P„ 294; 33 S. C., 592; 2 Peake, 232; 85 N. Y., 618.</p> <p>Mr. Jeffries cites: Court of Sessions may be extended into second week: Code, 1902, 2927. Witness should not be contradicted on collateral issue: 33 S. C., 129, 590; 40 S. C., 482.</p>

Before Gary, J., Aiken, June, 1906. Indictment against Isaac Thompson and Willie Thompson for murder of Lizzie Mays-. Defendant Isaac Thompson appeals. cites : Evidence.not amounting to a threat or ill feeling should not be allotted as a contradiction: 43 S. C., 210; 49 S. C., 416; 27 S. C., 186. Statement by accused relevant to issues should be proved in chief and not in reply: 15 S. C., 391; 43 S. C., 107.

Before Gary, J, Hampton, June, 1906. Indictment- against P. B. Youmans by town of Brunson for keeping hogs within town limits. Defendant appeals from order of Circuit Court affirming judgment of town council. cites: 48 S. C, 582; 63 S'. C, 179; 66 S, C, 37, 194; 45 111, 90'; 78 111, 405; 1 Dill, 827; Abbott, 1360, 1312, 1313; 21 Ency, 985, 989; 115.U. S, 661; 152 U. S, 137; 164 U. S, 550. -cites: 48 S-. C, 582; 33 S. C, 61.

<p>Before Cage, J., Darlington, March, 1906.</p> <p>Action -by Butler Bros, against J. C. Welch and' Elias Wright, trading as J. C. Welch. From Circuit judgment affirming judgment of magistrate J. W. Boykin, defendant appeals.</p> <p>cites-: 62 S- C., 545; 24 Ebcy., 515, 516, 527; 20- Ebcy. R & P., 1159, 1160.</p>

<p>1. One who provides the reasonable funeral expenses of a decedent at the instance of foster children is entitled to be paid by the personal representative as on a quasi contract.</p> <p>2. Evidence — Price.—Upon the issue of the value of a casket furnished by an undertaker evidence as to the value of like caskets at wholesale is not pertinent, but it should be confined to value at retail.</p>

<p>1. Evidence — Warrant.—Admission of a sheet of paper containing a warrant, an affidavit and appointment of constable properly treated as proof of every thing on it, but if there was any doubt as to the swearing to the affidavit it was cured by evidence of magistrate, and statement of the trial Judge as to signing the affidavit could only mean swearing to a written statement.</p> <p>2. Warrant. — Under conditions here trial Judge was correct in treating the warrant as valid.</p> <p>3. Charge — Murder.—Evidence here was sufficient to warrant instruction upon aiding and abetting murder, and it was not necessary to charge the reverse of that doctrine.</p> <p>4. Request may be sent up by State after argument within discretion of trial Judge, but application may be made for further argument on such request.</p> <p>5. Charge. — Failure of Judge to instruct jury to try case solely on the evidence cannot under the charge here be construed to have left jury under the impression that they could consider public opinion.</p> <p>6. Arrest — Trespasser.—If prosecutor were present while constable was making arrest but did not assist in it and only went to his aid when he considered the officer in danger, he was not a trespasser until ordered off premises by owner.</p> <p>7. Reply. — Admission op Leading Questions and cumulative evidence in reply is within discretion of trial Judge, and if there is any prejudice to defendant he should ask to put up evidence in surrebuttal.</p> <p>8. Exception alleging error in admission of evidence based on objection not appearing in record will not be considered</p> <p>9. Self-Defense. — Instruction as to self-defense held to be a correct statement of the law applicable to that plea.</p> <p>10. Indictment. — Where an indictment is drawn against two, and Judge and Solicitor inform jury that only one is on trial, indicating which, there can be no doubt as to which one the verdict should be referred.</p> <p>11. Continuance. — Refusal of motion for continuance because of absence of a witness, State agreeing to admit his evidence, and because of public sentiment against defendant under facts here sustained.</p> <p>12. Jury.- — That one juror accidentally got separated from his fellows, while going to dinner, for a few minutes, and that others went to the barber shop in charge of a constable, no one having spoken to them about the case, are mere irregularities, which will not invalidate a verdict.</p>

<p>Before Gage, J., Lexington, Summer Term., 1905.</p> <p>Indictment against Wm Westmiorefend for living in adultery with Dora Burgess. Defendant appeals.</p> <p>Messrs. Ehrd & Dreher cite: Evidence of the effect of the decree of divorce in Georgia should have been admitted: 176 U. S., 640. Parol evidence should not have been admitted to show the Court of Georgia had not acquired jurisdiction of plaintiff: 6 Cranch., 483; 7 How., 172; 17 How., 52; 144 U. S., H9; 2 How., 319; 14 Minn., 537; 31 Ind., 444; 29 N. Y., 106; 18 Minn., 531; 6 Pick., 232; 5 N. Y., 497; 75 Ind., 20; 139 Pa., 132; 35 Ala., 144; 23 L. R. A., 287; 52 Mich., 92; 6 Am. R., 132; 57 N. J. Eq., 322; 182 U. S., 583; 110 U. S-., 701; 181 U. S., 155; 188 U. S., 14; 201 U. S., 561. Cases cited to sustain the contrary doctrine: 181 U. S., 175; 18 Wall., 469; 56 Ind., 263; 37 Ohio St., 317; 25 Mich., 247; 122 Mass., 156; 162 111., 589; 43 La. Ann., 140; 78 Me., 187; 39 N. H., 20.</p> <p>Mr. Strother Cites-. Evidence of the force and effect of the divorce decree in Georgia should lmve been admitted: 7 Cranch., 481; 3 Wheat., 234; 2 Phine, 209. Parol evidence shoield nod imve been admitted to- contradict the record of the Court of Georgia: 45 N. Y., 535; 78 Fed. Rep'., 834; 71 N. W. R., 393; 13 Eney., 994; 148 111., 546; 42 At. Rep., 330; 13 Pet., 326; 56 S. O., 1; 35 S, C., 613; 110' U. &, 701; Story on Conflict of Laws, sec. 220; 9 Wall., 108; 7 Eney. P. & P., 138. Offense of adultery cannot be committed without a criminal intent: 46 Ind., 459 ; 4 Eney., 750'; 7 Met., 472. Marriage in Georgia after divorce tlrere is valid here: 44 S. C, 218; 57 L. R. A., 155; 3 Ark., 368.</p> <p>The two' former cite: A foreign divorce judgment can be attached collaterally for want of jurisdiction either of the subject matter or of the person: 14 Cyc., 820, 816; 4 S. C't., 221; 23 S. Ct., 237. And if void for zrnnt of jurisdiction, the decree is given no effect in the courts of another ju,risdicñon: 14 'Cyc., 816; 28 Ala., 12; 54 la., 429; 18 Pa. Co. Ct, 401; 24 S. Ct, 221; 23 S. Ct, 237. A marriage ceremony performed in a foreign State for the purpose of evading the laws of this State is void: 14 Cyc., 821. And such a judgment is void anywhere: 26 S. C., 133; Bull v. Rowe, 13 S. C.; Douglass v. Craig, 13 S'. C. What is essential to make a place one’s domicile? 73 S. C., 184.</p>

Before Krugh, J., Richland, July, 1906. Petition for a writ of habeas corpus by W. F. Brown against Emma Robertson for the possession of an infant, Richard Allen. From Circuit decree, petitioner appeals. cites: The veelfare and interest of the child should, govern the Court: 72 S. C., 18; 73 S. C., 296; 15 Ency., 187; 51 R. R. A., 818; 51 R. R. A., 929.

Before Purdy, J., Charleston, November, 1906. Action by Joseph Hilton Faber against Joannis Jackson Faber, as trustee, George Lewis Faber et al. From Circuit decree, defendant, C. L. Legerton, appeals. cite: To make sale 'valid, all parties having any substantial interest should be before the Court: 3 Rich. Eq., 1; 22 S. C., 323, 413; 20 S. C., 72; 25 S. C., 35; 23 S. C., 502.

Before Krugh, J., Lexington, August, 1906. Action 'by J. Davis Gantt against M. E. Gantt. Held: notwithstanding she may have had notice of the purpose for which the papers were made: Jones on Mortg., 6 ed., sec. 559; 13 Rich. Eq., 222. cite: Appellant must show that ñnding of Circuit Judge is clearly against the preponderance of the testimony: 70 S. C., 454.

Before Watts, J., Chesterfield, June, 1905. Action by Gracy D. Poston against Annie J. Ingraham, Campbell Ingraham, W. C. Ingraham, and Mary A. R. Laney. Prom judgment for plaintiff, defendants appeal. The former cites: Issue of title in partition suit must be tried by jury: 53 S. C., 575; 54 S. C., 353; 28 S. C., 530; 31 S. C., 264; 71 S. C., 282; 52 S. C., 238. Courts of equity zuill give effect to the statute of limitations: 69 S. C., 235; Bail. Eq., 437.

Before Klugh, J., Richland, July, 1906. Action by J. I. Sally against Seaboard Air Line Railway in court of magistrate Moorman. From Circuit judgment affirming magistrate judgment, defendant appeals. The 'defendant issued its bill of lading before it received the goods. They were delivered to Southern Railway, and by it to defendant. The latter cites: The act must be strictly construed: 73 S. C., 37; 26 S. C., 294; 26 Ency., 658.

Before Gary, J., Richland, June, 1906. Action by Fred Vander Veen, doing business under the name and style of John Schurr & Sons, against Samuel F. Wheeler.

<p>Before Purdy, J., Florence, November, 1903.</p> <p>Action by M. M. Brown against S. D. Rogers and J. F. Stackley. From judgment for plaintiff, defendant. Rogers appeals.</p>

Before Memminger, J., Abbeville, October Term, 1905. Mr. Wm. N. Graydon cites: Statute does not require proof of pecuniary loss: 29 S. C., 317; 5 Wall., 90; 47 S. C., 375; 58 S. C., 70. Mr. Glenn cites: It is not error to charge admitted facts: 37 S. C., 239; 38 S. C., 1; 40 S. C., 312; 60 S. C., 477. Damages may be recovered in cases of wrongful death without proof of pecuniary loss: 27 S. C., 303; 47 S. C., 375.

Before Gary, J., Sumter, April, 1906. Action by Amanda McDaniel, as administratrix of David McDaniel against Atlantic Coast Dine R. R. Co. From judgment for plaintiff, defendant appeals. Messrs. Willcox & Willcox and Henry B. Davis cite: Order allowing amendment was appealable: Code, sec. II., subd. 1; 18 S. C., 315; 48 S. C., 564; 58 S. C., 466; 57 S. C., 502. Bifect of appeal on subsequent proceedings in the Court belozv: Code, 356, 346, 350, 351, 352, 353.

Before Gary, J., Clarendon, February, 1906. Action by W. Lester Webb against Atlantic Coast Line R. R. Co. on the following complaint: The words inclosed' in brackets are the parts the Circuit Judge refused to strike out on motion. “The plaintiff above named, complaining of the above named defendant, alleges: “I. That the defendant is, and was at the times hereinafter mentioned, a corporation and common carrier doing business under the laws of this State, and maintained…

Before Klugh, J., Richland, July, 1906. Action by W. B. Cooper against Richland1 County. Fro'm judgment sustaining demurrer, plaintiff appeals. cite: The injury of plaintiff was the proximate cause of defendant’s negligence: 29 S. E., 910; 54 S. C., 498; 13 Neg. R., 454. If more than one inference can be drawn it is alzmys matter for jury: 54 S. C., 498; 2 L. R. A., 605. Statute should be liberally construed: 26 Ency., 53.0; 59 S. C., 577; 16 S. C., 425.

<p>Before DantzlER, J., Marion, June, 1903.</p> <p>Action by Robert C. Snipes against Atlantic Coast Line R. R. Co. From judgment for plaintiff, defendant appeals.</p> <p>Messrs. Willcox & Willcox and Davis, cite: What is meant by proximate cause: 36 Am. St. R., 807; 52 N. H.,-552; 65 Me., 449; 95 U. S., 117; 33 Md., 542; 6 Am. St. R., 521; 31 5. C., 398; 94 U. S., 469; 20 Am. St. R., 848; Add. on Torts, Sec. 66; Cool, on Torts, 69; 53 Am. St. R., 611. When proximate cause is a question for the jury: 2 McM., 403; 8 Rich., ISO; 72 S. C., 336; 51 S. C., 396; 31 S. C., 393; 38 S. C., 383; 40 S. C., 300; 54 S. C., 509; 73 S. C., 393; 105 U. S., 349; 33 Am. St. R., 193; 3 Am. St. R., 607; 37 Am. St. R., 653. Charge as to contributory negligence, when no such defense was set up, tended to mislead the jury: 15 S. C., 95; 55 S. C., 349; 59 S. C., 333; 61 S. C., 345, 486; 63 S. C., 141; 70 S. C., 470. Defendant was entitled to have proximate cause fully explained to jury: 11 Ency. P. & P., 304; 16 Ency., 431. How< far can a person go in his efforts to save propeidy: 72 S. C., 104; 55 Am. R., 703.</p> <p>Other counsel for appellant make no other citations, except on last point: 42 N. E., 579.</p> <p>Mr. Livingston cites: Railroad Co. is ordinarily liable to one injured on its crossings of a highway by reason of its negligence: Chitty on Pleads., 136; 5 Coke, 73; 8 Allan, 560; 55 Vt, 584; 1 Thomp. on Neg., 338, 343; 33 N. W'. R., 334; 3 Elliott on R. R., 1176; 18 S. E., 653; 31 St. R., 451; 67 S. C., 499; 31 S. C., 393. Right of action is given by statute: 1 Bed. on Ry., 384; 8 Ency., 363, 369, 375; 13 A. & E. R. R. Cos., 606; 33 Id., 134; 34 Id., 6; 33 Id., 333.; 30 S. C., 543; 31 Id., 393; 35 Id., 53; 47 Id., 38. Proximate cause is for jury: 37 S. C., 368; 55 S. C., 179; 31 Ency., 498, 506; 51 S. C., 394; 54 S. C„ 498. What is proximate cause? 1 Strob., 535; 54 S. C., 505; 1 Sher. on Rev. on Rys., Secs. 93, 94; 31 Ency., 483 Et. Seq.; 94 U. S., 169; 95 Id., 117; 105 Id., 349; 36 Am. St. R., 808.</p>

<p>Before Prince, J., Abbeville, February Term, 1906.</p> <p>Action by R. W. Williams against R. R. Tolbert and Thos. W. Miller. From judgment for plaintiff, defendants appeal, on the following exceptions:</p> <p>“I. Because his Honor erred in charging the jury in the following words: T charge you this if you find the allegations of Mr. Tolbert’s answer are true, that he did warn his co-defendant who he appointed agent to seize the mule if he did tell him not to take the mule unless he could get peaceable possession, and not use any force in acquiring possession that will not relieve Mr. Tolbert,’ the errors in said charge being as follows:</p> <p>“(a) That the said charge assumes that the defendant Tolbert did appoint the defendant Miller as agent to seize the mule when the only evidence on the point shows that Tolbert appointed Miller as agent to go and ask the plaintiff for the mule, and if he refused to deliver possession, then to go to the magistrate and take out claim and delivery papers.</p> <p>“(b) In that said charge holds the defendant Tolbert responsible in punitive damages for acts of Mr. Miller, not only unauthorized but expressly forbidden by him.</p> <p>“(c) In that the charge is not responsive to any evidence offered in the case.</p> <p>“II. Because his Honor erred in charging- the jury as follows : ‘So in this case if you should find that the defendant Miller consciously and wilfully, recklessly invaded the rights of the plaintiff under the law as I have given it to you, and under the facts as you find them, then both he and his principal are responsible; provided that at that time Miller w<as acting within the scope of his agency to seize the mule under that mortgage.’ the errors in said charge being that there is no evidence in the case to show1 that Mr. Miller is an agent of Tolbert to seize the mule and that the evidence showed that in seizing the mule, Miller acted directly contrary to the instructions of Tolbert.</p> <p>“III. Because his Honor erred in charging the jury as follows: ‘5. That if possession of the property was denied to the defendant Miller as agent of Tolbert, and if, instead of obtaining that possession peaceably and lawfull, he resorted to a breach of peace and violation of criminal law and went with a high hand and took the property, then he was violating the law of the land and he is responsible, if nothing else is shown for that violation and the principal is equally liable. I charge you that, provided the agent was acting within the scope of his agency to seize the property,’ the errors in said charge being as follows:</p> <p>“(a) In that the said charge makes the defendant Tolbert liable for the unauthorized and forbidden act of defendant Miller.</p> <p>“(b) In that the evidence fails to' show any expressed or implied authority conferred by Tolbert on Miller to do an unlawful act.</p> <p>“(c) In that the evidence shows that the defendant Tolbert expressly forbade the defendant Miller to do not any unlawful act to obtain possession of the property.</p> <p>“(d) In that the said charge makes both defendants liable in punitive damages, no matter how carefully and conscientiously the defendant Miller acted.</p> <p>“IV. Because his Honor erred in charging the jury as follows: ‘6. A principal is liable to third parties for whatever the agent does or says; whatever contracts, representations or admissions he makes; whatever negligence he is guilty of, and whatever wrong he commits; and provided a liability would attach to the principal if he was in the place of the agent,’ the errors in the said case being as follows : ’</p> <p>“(a) That the said charge allows the jury to find without evidence that the defendant Miller was the agent of the defendant Tolbert in doing the acts complained of.</p> <p>“(b) That" the evidence shows that the defendant Miller was forbidden by Tolbert to> do the acts complained of.</p> <p>“(c) That the said charge holds both defendants responsible in punitive damages, no matter how carefully and conscientiously the defendant Miller acted.</p> <p>“(d) In that the said charge allowed the jury to find a verdict for punitive damages against both defendants without evidence to support it.</p> <p>“V. Because his Honor erred in charging the jury as follows : ‘7. That if defendant Miller went to' the premises of the plaintiff as the agent of the defendant Tolbert to foreclose the mortgage, and actually went in the pursuance of that agency and acting within its scope. Then if he committed any breach of peace or other violation of the criminal law in obtaining possession of the property which he was sent there to seize, then both he and Tolbert, his principal, would be liable,’ the1 errors in said charge being as follows:</p> <p>“(a) That it allowed the jury, to find without evidence that the defendant Miller had unlimited authority from the defendant Tolbert to seize the property at all events.</p> <p>“(b) In that the evidence showed that the defendant Miller had no' authority from Tolbert to take the property into his possession against the consent of the plaintiff.</p> <p>“(c) In that the said charge authorized a jury to find a verdict against the defendant Tolbert for punitive damages, even though he specifically instructed the defendant Miller not to violate the law.</p> <p>“(d) In that the said charge authorized and required the jury to' find a verdict against both defendants for punitive damages, no’ matter how carefully and conscientiously they acted.</p> <p>“VI. Because there was no evidence in the case to justify a verdict against the defendants for punitive damages.</p> <p>“VII. Because his Honor erred in refusing the motion of the defendants for a new trial, and in 'giving as a reason therefor the following: ‘It may be conceded that Mr. Tolbert had acted in all good faith, and yet Mr. Tolbert would be responsible for the conduct of Mr. Miller, for in addition to the written authority Mr. Tolbert alleged and proved his instructions that he was not only to collect that debt, but was to enforce the mortgage and take the property ’ the evidence being that Tolbert instructed Miller to ask the plaintiff for the property, and if he failed to get it, then go to the magistrate and take out claim and delivery papers.</p> <p>“VIII. Because his Honor erred in not granting a new trial when his own statement shows that he didn’t approve the verdict of the jury.</p> <p>“IX. Because the said verdict was so excessive and so out of proportion to the injury proved, that it was an abuse of discretion in his Honor not to grant a new trial.”</p> <p>cites: 1 Ency., 995.</p> <p>cite: 37 S. C., 377; 4 Strob., 363; 3 S. C., 1, 580; 21 S. C., 599; 28 S. C., 261; '29 S. C., 271, 381; 13 S. C., 18; 1 Ency., 997.</p>

Petition in the original jurisdiction of this Court by the British American Mortgage Co. against A. W. Jones, Comptroller General, for injunction. cite: The petitioner is not amenable to the license tax imposed by act of 1904: 13 Ency., 869; 43 Ea.

Before Keugh, J., Lancaster, April 10, 1906. Action by W. B. Cauthen, as administrator, ■ and Arista Cauthen against Alexander Cauthen, Emma Cauthen et al. From Circuit decree, W. B. Cauthen appeals. Mr. R. B. Allison cites: Jury trial cannot he waived by conduct: 25 S- C., 73. Claim for professional services between parties sui juris rest on contract: 13 S. C., 445; 24 S. C., 238; 25 S. C., 193, 496; 36 S. C., 20; 43 S. C., 299; 25 E. R. A., 67.

<p>Before Klugh, J., Richland, July, 1906.</p> <p>Action by Fleischman, Morris & Co. against Southern Railway. From judgment for plaintiffs, defendant appeals.</p> <p>cites: Trunks, containing samples of merchandise are not baggage at common lazv: Moore on Car., 706; 41 L. R. A., 333; 118 U. S., 637; 10 Cush., 506; 98 Mass., 83; 6 Hill, 586 ;9H. b. Cas., 556; 10 C. B. (N. S.), 154; 13 Id., 818; 73 111., 318; 39 Minn., 160; 70 Cal., 169; 13 lilt. Rev. Rec., 342; 62 Fed. R., 881. Defendant not liable because it took charge of the trunks as an accommodation: 64 Miss., 843. Having no notice of contents of trunks, defendant is not liable as for baggage: 1 McC., 446; 60 R. R. A., 848; 48 R. R. A., 120; 70 Cal., 169; 44 Ut., 325. If the act of ipo/¡. compels carrier to carry samples as baggage, it deprives Ihe carrier of its property without due process: 173 U S., 695; 61 Kan., 442.</p> <p>cites: Expectation of receiving and carrying a passenger is sufficient to take case out of the rule as ta gratuitous bailee: 71 S. C., 223; 74 S. C., 286; 99 Am. St. R., 371; 83 Am. Dec., 143; 54 Am. R., 319; 21 Wend., 354; 70 S. C., 338. Liability of carrier commences when it receives the baggage: 3 Ency., 560. Carrier must give notice of intention to change liability to that of warehouseman: 71 S. C., 224; 5 Ency., 281; 50 S. C., 138; 64 ■ Miss., 844; 104 Ind., 310. Sample trunks must be received as baggage: 48 R. R. A., 117; 65 S. C., 509, 549; 70 S. C., 343; 3 Ency., 533; 17 Fed., 211; 2 Bail., 157, 421; 36 S. E., 202 j 6 Ency., 262; 5 Ency., 233. Burden was on defendant to show that it assumed responsibilities of warehouseman: 50 S. C., 138; 71 S. C., 224; 64 Miss., 844.</p>

Before Gage, J., Aiken, October, 1906. Action by P. P. Tóale against Western Union Telegraph Co. From judgment for plaintiff, defendant appeals. cite: No claim for damages zafas died in sixty days: 71 S. C., 506; 27 Ency., 1048; 29 Tex. Civ. App., 207; 84 Tex., 54. Correspondence shows no zvaiver of this stipulation: 70 S. C., 16; 75 S. C., 97; 29 Ency., 1108; 66 Pa. St., 9; 18 Wis., 407; 29 Pa. St., 198. No basis for punitive damages: 27 Ency., 1026; 73 S. C., 522.

Before Klugh, J., Lancaster, May 30, 1906. Action by Thomas M. Fitzpatrick and John H. Fitzpatrick against W. Gill Wylié, Bessie Mclnnis and Susan Melton. From Circuit decree, all parties appeal. cites, in support of his contention that James R. Massey took a fee simple in the lands, the adjudications in Jones v. Massey, 7 S. C., 134; 9 S. C., 376; 14 S. C., 292. for defendant Wylie, who is in like interest with plaintiff, make same citations. Mclnnis and Melton.

Before Prince, J., Cherokee,-. Action.' by Jennie Roberts against Western Union Telegraph Co. From judgment for plaintiff, defendant appeals. cite: Judge should have directed a verdict, as plaintiff’s evidence showed she could not have reached her sister if telegram had been promptly delivered: 72 S. C., 526; 75 S. C., 201. no citation.

<p>Before Ktugh, J., York, April Term, 1906.</p> <p>Action by J. O. Hull administrator de bonis non of Anne S. McManus against Seaboard Air Tine Ry. From judgment for plaintiff, defendant appeals.</p> <p>Mr. Glenn cites: Malice is essential to recovery for punitive damages: 54 S. C., 507; 2 Suth. on Dam., 1093; 69 S- C., 444; 60 S. C., 57; 29 Ted. R., 238; 91 U. S., 374; 12 Ency., 23. As to the constitutionality of the amendment to the statute permitting punitive damages: 53 S. C., 456; 60 S. C., 413, 72.</p> <p>Mr.' McCaw cites: Punitive damages are only allowed where there is misconduct or malice: 2 Suth. on Dam., 1073; 69 S. C., 444; 60 S. C., 74; 16 Ency., 392, 395; 54 S. C., 505; 62 S. C., 335; 72 S. C., 355.</p> <p>cite: haw as to punitive damages was correctly stated: 54 S. C., 508; 16 Ency., 392, 395; 60 S. C., 73; 65 S. C., 329; 61 S. C., 189; 66 S. C., 541; 67 S. C., 219. Master is responsible for wilful tort of servant: 50 S. C., 48; 61 S. C., 176; 68 S. C., 89; Dagnal v. Ry. Amendment to act permitting exemplary damages is constitutional: 12 Ency., 7; 2 Green. Ev., 235, 323, 253; 2 Ency., 323, 456, 455; 91 U. S., 492; 115 U. S., 512; 66 R. R. A., 649; 63 Miss., 291; 17 R. R. A., 71; 1 R. R. A., 804; 56 R. R. A., 193; 215 111., 47; 53 N. H., 342; 65 S. C., 1. Punitive damages are given as vindication of private right: Dagnall v. Ry., 60 S. C., 56; 62 S. C., 330; Oliver v. Ry., 65 S. C.; 65 S. C., 127; Miller v. Ry.</p>

Before Ki/ugh, J., Fairfield, Spring Term, 1906. Action by J. C. Keys against Winnsboro Granite Co. From judgment for plaintiff, defendant appeals. No argument furnished Reporter. cite: Evidence as to use of clamp in other quarries properly ruled out: 23 S. C., 30; 60 S. C., 168; 1 Fab. on M. & S., 152.

<p>Before Memminger, J., Edgefield, October, 1906.</p> <p>Action by M. O. Glover against Sherman Floyd. From judgment for defendant, plaintiff appeals.</p> <p>Messrs. Pierce Bros, cite: 19 Ency., 2 ed., 168; 13 Ency., 1 ed., 696; 42 S. C., 88; 38 Ga., 355; 13 Ga., 310; 12 Ga., 437; 19 Ency., 212, 241; 76 Ala., 414.</p> <p>Messrs. Tompkins and Wells cite additional: 5 B. & Aid., 204; 3 McE., 568; 51 Ala., 481; 70 Ala., 507; 48 Ark., 386; 42 Ark., 491; 88 Ind., 546; 18 Mo., 220; 2 Ea., 694; 42 S. C., 92.</p> <p>Messrs. Sheppard Bros, cite: 9 S. C., 335; 30 S. C., 239, 291; 26 S. C., 237; 29 S. C., 253.</p>

<p>Contracts. — If two provisions of a contract must be regarded repugnant, that which is first mentioned must prevail, if in is in harmony with the other parts of the contract. This contract construed not to entitle plaintiffs to their share of profits upon completion of each piece of work, but a further adjustment was contemplated, and plaintiffs are chargeable with their pro rata share of losses on two pieces of work.</p>

Before Hydrick, J., York, December Term, 1905. Action by J. R. Key against Western Union Tel. Co. From judgment for plaintiff, defendant appeals. Mr. Marion cites: Defendant had no notice of consequences of physical suffering: 75 S. C., 308; 70 S. C., 418 ; 73 S. C., 393, 116; 74 S. C., 496.

<p>Before Prince, J., Union, June Term, 1906.</p> <p>Action by A. P. H. Walker against Southern Railway Co. From judgment for plaintiff, defendant appeals.</p> <p>Messrs. Sanders & Depass cite: As to refusal to grant nonsuit: 9 Am. St. R., 439; 81 Am. St. R., 816; 35 Am. St. R., 823; 66 S. C., 477. As to refusal to direct a verdict: 35 Am. St. R., 823; 81 Am. St. R., 816; 173 U. S., 348; 18 Am. St. R., 119. Spencer National Bank v. Inman Mills.</p> <p>Messrs. Townsend & Tozvnsend cite: Piling claim with cashier is not sufficient: 71 S. C., 273. Presumption as to damage: 66 S. C., 477; 19 Ency., 39; 92 U. S., 283; 3 Ency., 2; 21 S. C., 101. As to unconstitutionality of penalty act: 19 S. C., 114; 16 S. C., 47; 63 S. C., 181;. 69 S. C., 322; 73 S. C., 71.</p> <p>cites: Filing with the cashier is a sufficient filing of claim: 60 S. C., 153; 16 S. C., 189. As to presumption of loss or damage: 66 S. C., 477 ; 6 Cyc., 488. Copy of bill of lading properly ruled out: 69 S. C., 429; 73 S. C., 289; 5 Ency., 290; 73 S.C., 141; 39 S. C., 56; 56 S. C., 136; 73 S. C„ 289; 6 Cyc., 392; 391, 478, 479. Interest may be allowed on amount of damages: 24 S. C., 508; 16 S. C., 588; 10 Rich., 382.</p>

Before MemmingRr, J., Chester, July, 1906. Motion in case of Sarah F. D’uBose, in her own right, and as admx. of Susan C. Kell against John A. Kell et al. From order refusing motion, defendants appeal. .Mr. Marion cites: As to right of defendants to have issue of title submitted to jury: 12 S. C., 108; 16 S. C., 333; 18 S. C., 232; 19 S. C., 286; 22 S. C„ 320; 23 S. C., 392; 25 S. C., 589, 72; 27 S. C., 418; 28 S. C., 533; 31 S. C., 265; 36 S. C.,.561; 52 S. C., 237; 6 Cyc.,…

Before Dantzeer, J., York, February, 1903. Action by A. E. Sutton against Catawba Power Co. From judgment for plaintiff, defendant appeals. cite: Plaintiff can only recover on proof of negligence: 34 S. C., 62; 71 S. C., 241; 13 S. C., 97; 30 Vt., 638; 23 N. Y., 42; 33 W. Va., 39; 19 Rich., 174; 28 S. C., 388; 33 N. E., 451; 109 N. C., 692; 20 Or., 486; 7 N. E., 801; 23 N. E., 273; 1 Abbott’s Forms Plead., 579 ; 11 S. E., 316; 34 S. C., 62; Gould on Waters, sec. 251.

<p>Before DanTzrrr, J., Colleton, March Term, 1906.</p> <p>Action by Stono Mines against Southern States Phosphate and Fertilizer Co. From judgment for plaintiff, defendant appeals.</p> <p>The latter cite: As to rules of construction: 5 Rich., 196; 33 S. C., 215; 17 Ency., 18. As to implied warranty: 12 S. C., 586; 40 S. C., 31.</p> <p>cite: As to construction of contract: 14 S. C., 165. Contract cannot be changed by extraneous matter: 54 S. C., 343. Charge should conform to issues: 40 S. C., 234; 49 S. C., 303; 46 S. C., 219; 74 S. C., 305.</p>

<p>Before Prince, J., Union, June Term, 1906.</p> <p>Action by Aycock-Little Co. against Southern Ry. Co. Prom Circuit order affirming judgment of Magistrate W. W. Johnson, defendant appeals.</p> <p>cite: 19 S. C., 114; 16 S. C., 47; 63 S. C., 181; 69 S. C., 322; 73 S. C., 71.</p> <p>cites: 16 S. C., 52; 18 S. C., 466; 4 S. C., 442; Cool. Con. Lim., 143; 23 S. C, 427; 71 S. C., 486; 51 S. C., 458; 64 Am. St. R., 64; 96 U. S., 315; 15 S. C., 581; 41 S. C., 220. Objection not raised before Magistrate cannot be considered: 21 S. C., 432; 59 S. C., 581; 54 S. C., 256; 44 S. C., 168, 299, 23; 55 S. C., 51; 60 S. C., 153.</p>

<p>Magistrate Summons. — The affidavit required by Code of Procedure, Sec. 88, Sub. 16, upon which a’ Magistrate may make a summons returnable in less time than prescribed by the Code, must state some fact from which it can be reasonably inferred that plaintiff would loose his debt unless the time for answering he shortened.</p> <p>Cavender v. Ward, 28 S. C., 472, and Cothran v. Knight, 47 S. C., 250, distinguished from this case.</p>

Before Gage, J., Marion, May, 1906. Action by McKerall & Murchison against Atlantic Coast Line R. R. Co. From Circuit order affirming judgment of Magistrate D. J. Oliver, defendant appeals. cite: Duty of carrier in transporting freight: 7 Rich., 190; 5 Rich., 463: As to measure of damages: 6 Cyc., 499, 535; Moore on Car., 410; 75 S. C., 58: As to special damages: 71 S. C., 311, 83; 74 S. C., 386; 6 Cyc., 450. cites: Carrier is liable for value: 75 S. C., 58.

Before Gage, J., Marion, May, 1906. Motion to set aside service of summons in John C. Sellers against Home Fertilizer Chemical Works. From Circuit order refusing the motion,, defendant appeals. cites: 8 S. C., 100; 1 Hill, 185; 61 S. C., 361. cites: Code, 155; 61 S. C., 367.

Before Memminger, J., Cherokee, April, 1906. Action by D. R. Bird against Western Union Tel. Co. From judgment of nonsuit, plaintiff appeals. cites: Nonsuit should not be granted if there is scintilla of evidence: 44 S. C., 315; 48 S. C., 421; 68 S. C., 403; 75 S. C., 187; 69 S. C., 545; 25 Ency., 831. There vitas a scintilla as to damages here: 25 Ency., 854; 139 U. $., 199; 70 S. C., 19; 58 S. C., 373; 53 S. C., 410; 60 S. C., 212. No argument furnished Reporter.

Before Prince, J., Greenwood, April, 1906. Trial of issue of ownership of stock attached in cases of, (1) Pelzer Manufacturing Co. against Pitts and Hartzog, and (3) Belton Mills against same defendants.

<p>1. Partnership. — Service op Magistrate Summons against a partnership on one member of a partnership and judgment against the partnership binds the partnership property and that of the individual served.</p> <p>2. Amending Magistrate Summons. — In suit in Magistrate Court against a corporation, Magistrate may permit summons amended by changing corporation name to co-partnership name to conform to proof, the proof, among other things, being a letter written by defendant partnership to plaintiff about the claim in question brought out by defendant.</p> <p>3. Judgment. — Order reversing Magistrate judgment “without prejudice to plaintiff to take such further action as he may be advised,” does not adjudicate merits of plaintiff’s claim, and case remanded to Circuit Court to pass on exceptions to Magistrate judgment affecting the merits.</p>

Before Prince, J., Charleston, November, 1905. Action by Herman- Drews against E. P. Burton & Co. Erom judgment for plaintiff, defendants appeal, on the following exceptions: “It is respectfully submitted that his Honor, the Circuit Judge, erred: “1st. In admitting against the objection of the defendant’s counsel testimony relating to expenditures made to put Schooner Lark in repair after the accident, without the production of the vouchers therefor, to wit: ‘Q. (By Mr.…

<p>Before Hydrick, J., Kershaw, April, 1906.</p> <p>Action by Henrietta Osteen, as administratrix of Willie E. Osteen, against Southern Railway, Carolina Division. From judgment for plaintiff, defendant appeals on the following exceptions:</p> <p>“1. Excepts because his Honor erred in refusing defendant’s first request to charge, which was as follows: ‘The evidence in this case shows beyond controversy that the deceased drove upon the railroad track without looking, and that he was hard of hearing. Such being the undisputed evidence, I charge you that the deceased failed to exercise the care required of him1 by law, and your verdict must be for defendant.’ Said request, it is submitted, was correct as to the law and the evidence, and his Honor should have charged the jury as therein requested.</p> <p>“2. Excepts because his Honor erred in refusing defencb ant’s second request to charge, which was as follows: ‘The law requires a traveler who knows that he is about to cross the track of a railroad to look and listen for approaching trains before attempting to cross, and that he must do this at such a distance as will enable him to stop, in case he hears or sees an approaching train (Sou. Ry. v. Carroll, 138 Fed-. Rep., 641; S. & R. on Negligence, 746). The evidence in this case being- undisputed that the deceased failed to do this, I charge you, as a matter of law, that your verdict must be for the defendant.’ Said request, it is submitted, was correct as to the law and the evidence, and his Honor should have charged the jury as therein requested.</p> <p>“3. Excepts because his Honor erred in refusing defendant’s third request to charge, which was as follows: ‘The undisputed evidence in this case shows that the deceased, after reaching a point twelve to twenty feet from the railroad track, had an unobstructed view of the approaching train for a distance of at least 120 feet, and it being a physical impossibility for the deceased to have looked and not seen the approaching train, and from the undisputed evidence, it appearing that if he had looked, he could have kept off the track and prevented the accident, I charge you, as a matter of law, that the deceased failed to exercise the care required by law, and plaintiff cannot recover in this action.’ Said request, it is submitted, was correct as to the law and the evidence, and his Honor should have charged the jury as therein requested.</p> <p>“4. Excepts because his Honor erred in refusing- defendant’s fourth request to charge, which was as follows: ‘If you should find from the evidence, if there be such evidence, that the deceased was hard of hearing, or deaf, and could not hear the approach of the train, then’ it matters not whether the railroad company gave the signals required by the Statute, because the object of giving signals is to give notice to persons wishing to cross, who can hear them.’ Whereas, the request contained a correct proposition of law applicable to the case, and should have been charged; and its refusal was to defendant’s prejudice.</p> <p>“5. Excqits because his Honor erred in refusing to charge defendant’s ninth request, which was as follows: Tf you should find that the crossing in question is more hazardous than an ordinary crossing, on account of the trees and shrubbery referred to, then I charge you that this fact required the deceased to use more care than he would have used at an ordinary crossing. The greater the danger at a public crossing, the greater the degree of care to be used by the person attempting to cross the railroad track.’ It is respectfully submitted that this request contained a correct proposition of law applicable to the facts of this particular case, and its refusal was to defendant’s prejudice.</p> <p>“6. Excepts because his Honor erred in refusing to charge defendant’s tenth request, which was as follows: ‘If.one sees or hears an approaching- train in time for him to keep from getting on the railway track in front of such train, it is his duty to stop before entering upon such track; and if he fails to do this and undertakes to go upon or across such track in front of the engine, and by reason of this is struck, he (or in case of his death his administrator) can not recover damages on account of such'injury, for failure to ring the bell or sound the -whistle, even though the Statute required such a signal at such place, and even though the bell was not rung or the whistle blown, as the Statute requires.’</p> <p>“And in modifying the same by charging: ‘The requirement of the Statute that the bell shall be rung or the whistle blown is intended to give warning of the approach of a train, and unless the failure to ring the bell or blow the whistle contributes to the injury as the proximate cause of it (in the words of the Statute, which I will read to you directly), of course, the failure to ring the bell or blow the whistle cannot be said to have made any difference; but if it did, no matter for what cause, then the party would have the right to take advantage of the signals — I mean, of whatever advantage the giving of those signals would- amount to, in whatever way it might arise.’ The modification deprived the defendant of the specific charge desired — that if plaintiff’s intestate saw or heard the train in time to keep off the track, the failure to give the statutory signal would not allow a recovery on the statutory cause of action. The purpose of such signal being to give notice of the'approach of the train, if plaintiff’s intestate saw or heard it in time to prevent the accident, there could be no recovery under the Statute. The benefit of this proposition was denied.</p> <p>“7. Excepts because his Honor erred in refusing to charge defendant’s twelfth request, which it is submitted contained a correct proposition of law, applicable to this case. Said request being as follows: ‘The traveler is required to give way to any train which is in sight or hearing, and moving so1 rapidly as to make it doubtful whether he can cross in perfect safety.’</p> <p>“8. Excepts because his Honor erred in refusing to charge defendant’s fourteenth request, which is as follows: ‘If you find from the evidence that the deceased was hard of hearing, or deaf, then I charge you that he was required, under the law, to be more vigilant in- the use of his eyes.’</p> <p>“And in modifying the same by charging: Tf due care required' him to do so. That is all he is required to exercise — ■ due care, and whatever that required him to do he is bound to do.’ Said request as submitted contained a correct proposition of law applicable to the case, and should, therefore, have been charged. The modification destroyed the entire effect of the requst, and was calculated to 'mislead the jury as to the proposition therein requested.</p> <p>“9. Excepts because his Honor erred in refusing defendant’s seventeenth request to charge, which contained a correct proposition of law, applicable to the case. Said request was as follows: ‘The fact that a person injured at a railroad crossing relied on the ringing of the bell or the sounding of the whistle (signals usually given at the crossing), will not excuse his failure to look and listen, since the obligation to use care was equally imposed on each, and the negligence of one would not excuse the other.’</p> <p>“10. Excepts because his Honor erred in refusing to charge defendant’s nineteenth request, which contained a proper construction of the Act therein referred to, said request being as follows: ‘So much of the Statute, approved February 37th, 1903 (23 Stat, 1071), as allows punitive damages, is in contravention of the Constitution of this State and the United States, in that it deprives the defendants of their property and turns it over to strangers without due process' of law.’</p> <p>“11. Excepts because his Honor erred in charging the jury as follows: ‘But if you find the defendant was negligent, and the contributory negligence of Osteen does not defeat her right to recover, you will compensate for her injury. In doing so, you take into consideration the age of her intestate, his earning capacity, his expectancy of life. Common sense and reason will teach you, as a rule, that the value of lives are different, depends somewhat on the length of time a man is expected to' live and his capacity to earn money, and the value of his life to his family. You also will take into consideration the wounded feelings, grief and sorrow and mental anguish of his widow and children, and give plaintiff such sum as in your honest, ’ wise judgment you think is proportioned to the injury resulting from the death of Mr. Osteen, to the parties for whom and whose benefit this action is brought. If you find from the testimony that the Southern Railway Company was also guilty of reckless, wilful, wanton disregard of his rights, then you will add to that sum such amount as you think they ought to be required to pay as punishment for their wantonness.’ Whereas, under the Statute (23 Stat., 1071), the jury can only give exemplary damages, ‘where such wrongful act, neglect or default was the result of recklessness, wilfulness or malice, as they may think proportioned to the injury resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought;’ and cannot give such amount as the jury think the defendant ought tO' be required to pay as punishment for their wantonness, without reference to the injury resulting to the parties for whose benefit the action was brought.</p> <p>“12. Excepts because his Honor erred in charging the jury: ‘If you find from the testimony that the Southern Railway Cotnpany was also1 guilty of reckless, wilful, wanton disregard of his rights, then you will add to that sum’ (the actual damages) ‘such amount as you think they ought to be required to pay as punishment for their wantonness.’ Such charge allowed the jury to assess such damages as they might think necessary to punish the defendant without reference to the injury sustained by the parties for whom and for whose benefit the action was brought. Whereas, the Statute (23 Stat., 1071), limits the damages to be given by the jury in proportion to the injury sustained by said parties.</p> <p>“13. Excepts because his Honor erred in construing the Act entitled ‘An Act to amend Sec. 2852 of the Code of Raws of South Carolina, 1902, relating to' the Persons for Whose benefit Civil Actions for Wrongful Acts Causing Death may be Brought,’ approved February 27, 1902 (23 Stat., 1071),' to allow the jury to' give punitive damages without reference to the injury sustained; and in not restricting the amount of punitive damages in proportion to the injury sustained by the parties from whom and for whose benefit the action was brought — such construction being in violation of Art. XIV., Sec. 1, of Amendments to the Constitution of the United States, and Art. I., Sec. 5, of the Constitution of the State of South Carolina.</p> <p>“14. Excepts because his Honor ex-red in refusing to chax-ge defendant’s twentieth request, which was as follows: ‘There is no evidence in this case tending to show wilfulness, wantonness or recklessness on the part of the defendant, and I charge you that you can only find actual damages, if you find anything, for the plaintiff;’ whereas, it is submitted, that the evidence warranted the charging of this request. .</p> <p>“15. Excepts because his Honor ex-red in charging the jury on the subject of punitive damages, in this: That one of the causes of action on which the plaintiff sought to recover was under Section 2139 of the Code, for violation of Section 2132, and the jury was authorized to give punitive damages to the plaintiff if the railroad company had wilfully violated said Section 2132. Whereas, it is submitted, that under Section. 2139 of the Code, only actual damages can be recovered for a violation of Section 2132.</p> <p>“16. Excepts because his Honor erred in charging the jury as follows: ‘But if you wilfully and wantonly injure me, the law says then, though I might have been negligent to such an extent that my negligence contributed to the injury, but if it was due to your wantonness or recklessness, the law says that my contributory negligence shall not be a defense against your wilful, wanton, reckless disregard of my rights;’ and further, T have told you if you find the Southern Railway, through its agent or servant, was guilty of wilful, wanton, reckless disx-eg-ard of his rights, why then, the doctrine of contributory negligence does not apply, and would not be a defense to that cause of action.’ The error being that one of the causes of action in the case is a statutory cause of action for violation of Section 2132 of the Code, to which cause of action under Section 2139 of the Code, gross or wilful negilgence on the part of the plaintiff’s intestate contributing to the injury, would be a defense, even if the failure of the railroad company to give the signal requited by Section 2132, was reckless, wanton or wilful.</p> <p>“17. Except because his Honor erred' in overruling the fist ground of the motion for a new trial, the same being as follows: 'Because the evidence showed beyond controversy that the crossing at which the accident occurred was hazardous, the view being obstructed up to a point from twelve to twenty feet from the track; that the deceased drove upon it, with his horse in a trot, and although hard of hearing, failed to stop or look. Under such undisputed evidence plaintiff was not entitled to recover, as a matter of law.’</p> <p>“18. Excepts because his Honor erred in overruling the fourth ground of the motion for new! trial, the same being as follows: 'Because, under the charge, the jury was permitted to give punitive damages, under Section 2139 of Code, for a neglect to- comply with Sec. 2132; whereas, Sec. 2139 does not allow punitive damages.’ ”</p> <p>Mr. Thompson cites: Care required of one approaching a railroad crossing: 63 S. C., 218; 67 S. C., 367; 138 Eed. R., 638; 95 U. S., 697; 72 S. C., 392; 3 Ell-iott on R. R., sec. 1166. If deceased could not have heard signals, it was not negligence as to him to fail to give them: 34 S. C., 451. Degree of care required of deaf person in use of his eyes: 130 Fed., 65; 40 Mo. App., 535; 2 Shear. & Red. on Neg., 291. Reliance on signals does not relieve of duty to look and listen: 23 A. & E. R. Cas., 148. So much of statute as permits punitive damages for negligent killing is unconstitutional: 60 S. C., 72, 401; 16 Am. R., 270. But if allowed they should only be proportioned to the injury: 53 S. C., 456; 60 S. C., 73; 129 Mich., 140; 20 Eed. Cas., 540; 132 Mich., 292; 56 S. C., 81; 177 U. S., 309. Bailure to give signals should not be admitted as evidence of wilfulness: 54 S. C., 505; 72 S. C., 355; 75 S. C., 156. Where a statute imposes a liability under certain conditions, the only inquiry ■is whether the conditions existed: 47 S. C., Ill; 29 S. C., 323; 75 S. C., 156; 2 Street Railway R., 421; 73 Miss., 110; 29 S. C., 146; 117 Ala., 367; 17 Har. L. Rev., 428; 92 Ala., 262; 107 Ind., 89; 110 Ind., 376; Cool. Torts. 3d., 1443.</p> <p>cite: Whether failure to look and listen is contributory negligence is usually for the jury: 72 S. C., 392; 32 S. C., 299; 61 S. C., 187; 7 Ency., 443. As to effect of failure to give statutory signal on approach of a deaf traveler: 29 S. C., 318; 58 S. C., 227. Judge should not charge that certain facts constitute negligence: 19 S. C., 39; 51 S. C., 296; 52 S. C., 438; 54 S. C., 498; 55 S. C., 180; 29 S. C., 381; 41 S. C., 1; 25 S. C., 25; 2.9 S. C., 303; 54 S. C., 509; 35 S. C., 493; 25 S. C., 30; 51 S. C., 453; 52 S. C., 279. Act permitting punitive damages in cases of negligent killing is not violative of U. S. Constitution: 8 Ency., 924,; 194 U. S., 910; 102 Fed., 62; 118 F., 24. This statute does not require verdict for punitive damages to be proportioned to injury: 34 S. C., 324; 53 S. C., 449; 74 S. C., 320; 69 S. C., 545. Upon allegations of wilfulness it is proper to send issue of punitive damages to jury: 65 S. €., 517; 64 S. C., 514; 65 S. C., 122, 430, 510; 54 S. C., 498. Duty of railroad on approaching dangerous crossing: 8 Ency., 407, 412, 413; 65 S. C., 218; 61 S. C., 499: 52 S. C., 344; 54 S. C., 507; 60 S. C., 74. Punitive damages may be given under sec. 2139, Code 1902: 75 S. C., 156.</p>

<p>1. Highways. — The act of 1902, 23 stat., 998, simply declares that roads laid out under statute, or order of Court or of Commissioners are included under the definition of highways, and does not limit the jurisdiction of highway officers to such roads, but it extends to highways acquired by prescription or acquiescence.</p> <p>2. Appeal — Request..—Appellant cannot complain of refusal of request, which states a principle not beneficial to him.</p> <p>3. Requests. — Appellant must present request to that effect if he desires terms particularly defined.'</p> <p>4. Exception not specifying in what particulars matter complained of was prejudicial is too general.</p> <p>5. Highways. — Permissive use has reference to the conduct of the land- . owner in acquiescing and consenting for the road to be traveled by the public, while adverse user imparts an assertion of right on the part of those traveling the road hostile to that of the owner.</p>

Before Memminger, J., Newberry, November, 1905. Action by Jonathan H. Wertz and Lee H. Wertz against Southern Ry. Co. From judgment for plaintiffs, defendant appeals. cites : Contract by Railway Co. to maintain a public bridge without compensation is'Ultra tiires: SO At. R., 829; Elliott on R. R., 23.

<p>Petition for writ of certiorari in the original jurisdiction of this Court by J. M. Rawlinson, John Black, and Joseph B. Wylie against Martin F. Ansel, as Governor of the State of South Carolina.</p>

Before Prince, J., Charleston, September, 1906. Action by Mary E. Dixon against Caroline M. Roessler. Held: this income charged with the payment of the legacy defendant must be held to have received of said income the sum of ten dollars per month to use of plaintiff.

Before Klugh, J., Spartanburg, September, 1906. Action by Minnie V. Mitchell, in her own right, and as . guardian for the infant, Margaret Mitchell, against Jesse Cleveland. From judgment for plaintiff defendant appeals on following exceptions: “1.

Before Aldrich, J., Greenville, March, 1906. Action by Mary T. Plyler against B. M.' McGee. From judgment for plaintiff, defendant appeals. cites: Collection of ■usurious interest through mistake is not usury: 68 S. C., 110; Bailey v. Mitchell, 57 S. C.; 51 S. C., 550; 73 S. C., 363; 37 Ency., 971; 1 Bail., 505.

Before Prince, J., Abbeville, March, 1906. Action by- Lizzie Shirley, as admx. of Jno. F. Shirley, against Abbeville Furniture Co. From judgment for defendant, plaintiff appeals. cites: If deceased was doing work of the master, and was injured because of insufficient appliances furnished him, the master is liable: 8 L. R. A., 490; Sher. & Red. Neg., sec. 218; Whar.

<p>Amending Pleadings — Answer—Attorneys—Compromise—Trespass.— Two suits are brought on same trespass, one in Federal Court and one in State Court. Different lawyers represented the defendant in each case. The attorney in the Federal Court settles the claim against his client without prejudice to and not to affect the further progress of the suit in- the State Court. On motion in State Court by attorney representing defendant there, it not appearing that client had agreed to the stipulation as to the effect of the compromise on the suit in the State Court, the defendant’s attorney in that Court is permitted to serve supplemental answer setting up this compromise as a satisfaction of the trespass.</p>

<p>Costs — Rule.—Where a claim due a partnership under agreement is made the property of one member who sues it to judgment, but on settlement of partnership affairs it is sold as a partnership asset and bought by another member of the firm, he is not liable to the judgment creditor under section 334, of Code of Procedure, for costs accruing in an action to set aside the judgment pending at time of sale, but of which purchaser had no notice and to which action he was not made a-party, and to which litigation'he did not assent. Costs were collected of judgment creditor by sheriff under execution ¡-recovery being sought in an action for money in discharge of such liability for use of purchaser. If liable at all under sec. 334, Code, he should have been proceeded against by rule.</p>

<p>Before Gage, J., Darlington, Spring Term, 1906.</p> <p>Action by L. A. McCord against Atlantic Coast Line R. R. From judgment for plaintiff, defendant appeals.</p> <p>No argument furnished reporter.</p> <p>cites: Burden of showing ordinary care is on warehouseman: 29 S. C., 101; 65 S. C., 543. He is only liable for negligence: 11 Rich., 337; 2 Rich., 286.</p>

Before Purdy, J., Sumter, February, 1906. Action by George D. Shore & Bro. against Baltimore and Ohio Railroad Co. From order dissolving attachment on the motion of the Atlantic Coast Line Co., intervenor, plaintiff appeals. cite: The Atlantic Coast Line R. R. has no right to intervene under sec. 2¡¡a of Code: 17 S. C., 116, 120; 25 S. C., 467.

Before Watts, J., Bamberg, Winter Term, 1906. Action by J. D. Copeland, Manager, against Southern Ry. Co. Prom judgment for plaintiff, defendant appeals. cites: Trustee of an express trust must allege for whom the action is maintained: Code of Proc., 132, 134; Pom. Code Rem., secs. 128, 175, 124, 143, 171-182. Delivery must be clearly shown: 5 Ency., 520; 21 Ency., 498; Moore on Carriers, 133 et seq. Custom is a general use: 27 Ency., 702.

<p>Before Audrich, J., Greenville, April, 1906.</p> <p>Action by R. A. Burriss against W. F. C. Owen. From judgment for plaintiff, defendant appeals.</p> <p>cites: As to construction of recording acts: 43 S. C., 72.</p>

<p>1. Limitation of Estates — Deed.—Conveying land in trust for the sole, separate and exclusive use of B. during her life and at her death to be divided amongst her children surviving her, grandchildren to represent the share of a deceased child, carries a life estate to B. with remainder to her surviving children as purchasers.</p> <p>2. Ibid. — Deed conveying land in trust for sole and separate use of B. during her natural life, and at her death to belong of right in fee simple to the lineal heirs of B. forever, carries to B. a fee conditional, and the lineal heirs of B. take by inheritance.</p> <p>3. Service of Minor in Probate Court. — After lapse of 20 years, when the record in probate court is silent as to service of summons on minors under lé years of age, or on the guardian or parent, it will be presumed they were properly served. This presumption is strengthened in this case by a certificate on the back of the summons signed by the mother of the minors as guardian ad litem to the effect that the summons had been served on her as guardian ad litem and on them.</p>

Before Jas. F. Izlar, Special Judge, Lexington, February, 1905. Action by John A. Milhous against Southern Railway Company. From judgment for plaintiff, defendant appeals. cites: Bvidence as to mental anguish was not admissible here: Thomp. on Neg., sec. 3288; 57 S. C., 330; 32 S. C., 592. Bvidence as to defective headlight improperly admitted, because not raised by pleadings: 45 S. C., 282.

Before Gary, J., Sumter, April, 1906. Motion to confirm return of commissioners in partition in case of Washington Allen et al. against Margaret Allen et al. From order confirming return, plaintiffs appeal. cites: 19 Ency., 465; 52 S. C., 72; 28 S. C., 521. cites: 16 S. C., 501; 14 S. C., 458; 30 S. C., 459; 1 McM., 63; 2 Spears, 654.

Before, Gary, J., Richland, August, 1906. Action by Blanche O. Lorick, against Palmetto National Bank, of Columbia. From order permitting action to be continued in name of personal reperesentative of deceased plaintiff. Defendant appeals. cite: 12 Rich., 524; Bishop on Con. Law, sec. 491; 58 L. R. A., 956; 15 L. R. A., 134; 31 L. R. A., 552; 51 L- R. A., 255; 1 N. & M., 342; 2 McC., 218; 3 McC., 195; 45 Fed. R., 840; 4 Ency. P. & P., 916.

Before Watts, J., Hampton, Winter Term, 1906. Action by W. N. Murdouch against S. B. Tuten and J. C. Langford. Prom judgment for plaintiff, defendants 'appeal. cites: The charge was on the facts: 68 S. C., 161. Verdict should have been for amount of purchase money and interest: Code, 1902, 2450. cite: As to form of verdict: 75 S. C., 229.

Before J. P. Carey, specal Judge, Richland, September, 1905. Action by Jane Goodwin against G. F. Wiles. From judgment for plaintiff, defendant appeals. cite: Judge should have referred issues -of fact and not broad issue of fraud: Code, 274; 14 Ency., 19; 55 S. C., 276. And should have tried issue at same time: 25 S. C., 385; 65 S. C., 458. cite: Judge may send issues out of chancery: 43 S. C., 264; 49 S. C., 345.

<p>Allegations in Cases of Libel. — If the words alleged as libellous are plainly so, or if they are wanting in any defamatory significance, it is the province and duty of the Court to say so. Words used therein are to be given their ordinary and popular meaning. When the meaning is doubtful, the question should be sent to the jury. Circular alleged here to be defamatory held not to be so per se, and there being no allegations that on account of certain peculiar circumstances it was understood by those to whom it was sent as charging plaintiff with incompetency or moral delinquency or negligence, demurrer sustained.</p>

<p>Before W. A. Holman, Special Judge, Hampton, March, 1906.</p> <p>Action by Anna Pollitzer, Clara G. Pollitzer, Eily Guinberg, Richard-A. Guinberg, and Emanuel S. Kuh, against M. A. Beinkempen. Erom judgment for plaintiff, defendant appeals.</p> <p>Mr. Bostick, cites: Property of decedent should he listed by administrator in name of estate: Code 1902, 169, 271; 72 S. C., 191. Sheriff's deed is prima facie evidence of title: Code, 1902, 126. The legal remedy being plain, no equity is left to plaintiff: 31 S. C., 537; 1 S. C., 370.</p> <p>The two former cite: As to assessment and sale: 31 S. C., 518; 32 S. W., 398; 20 So., 202; 38 N. Y. Supp., 1087; 17 So., 731; 18 La. Am., 103; 15 S. C., 192; 85 Ind, 199; 93 Ind., 256; 39 Fla., 77; 112 U. S., 670; 11 S. C., 510; 70 S: C., 309; 1 Cool. Tax., 731; 106 Ala., 605 ; 82 Ala., 132; 93 Ala., 1; 119 Mass., 269 ; 69 Cal., 338; 101 La., 713; 101 la., 306; 58 Neb., 839; Black on Tax Titles, sec. 208. Section 126 applies to defaulting taxpayer and not action in equity by a third party: 37 S. C., 100; Code, 1902, 269, 121. Tzuo year limitation must be pleaded: 16 S. C., 386; 22 S. C., 581; 70 S. C., 315. Court of equity has jurisdiction to prevent a cloud on title: 26 S. C., 7; 61 S. C., 229.</p> <p>Mr. W. Huger Fitzsimmons cites-: The sale and conveyance is void because the land was assessed, sold and conveyed in the name of the estate of deceased owner: Code, 1902, 269; 31 S. C., 571; Black on Tax Titles, 518; Code, 1902, 261, 263, 268, 270, 312, 313, 316, 352, 363, 366, 379, 380, 381, 106, 109, 121, 123, 2616, 2617; 11 S. C., 510; Black on Tax Titles, sec. 268, 105, 268; 61 Ala., 258; 31 Miss., 138; 23 N. Y., 281; 78 N. Y., 139; 17 N. Y. Sup., 655; 76 Mo., 519; 21 Fla., 161; 82 Ala., 132; 88 N. C., 251; Coke, 360; 90 Mo., 191; 152 Mass., 219; 90 Cal., Ill; 87 Ala., 119; 36 La. Ann., 315; 7 Gray, 125; 30 La. Ann., 871; 61 Ala., 258. Deed is void because no distress was issued against personalty: 31 S. C., 351, 168; Black on Tax Titles, sec. 255; 5 Mass., 119; Wash. Real. Prop., sec. 638. Suit in equity is proper remedy to remove claim on title by tax deed: 158 U. S., 375; 5 Minn., 95; 29 Wis., 51; 39 N. Y., 386; 55 Mich., 501; 6 Pom. Eq. Jur., sec. 731; 14 N. Y., 1; 122 Cal., 540; 12 Mich., 414; 64 S. C., 229. And two years’ limitation is not bar to suit in equity: 70 S. C., 315; 142 U. S.. 664; 6 Cal., 317; Black Tax Titles, sec. 497.</p>

<p>Liability op Lauds Sold by Devisee foe Debts op Testatob. — Lands bona -fide sold by devisee within twelve months after death of testator, both alienor and alienee having no notice of debt in question but of other debts, alienee not having obligated himself to pay any part of testator’s debts, and the will not making the debts a charge on the land, is not liable for its pro rata share of debts of testator in possession of alienee, nor for its pro rata share of fee of attorney of executor.</p> <p>Me. Justice Gary dissents.</p>

<p>1. Agency May be Proved by Circumstances. — Instructions given a person at a postoffice adjoining the telegraph and railroad office, where the witness had seen the person informed using the telegraph instrument, and who had sold him tickets on railroad, are admissible as tending to show agency of telegraph company by circumstances.</p> <p>2. Evidence in Reply is so largely within the discretion of the trial Judge, that its admission will seldom ever be made ground of reversal.</p> <p>3. Contributory Negligence. — Request to charge if negligence of plaintiff and defendant are evenly balanced no recovery can be had, properly refused, because: (1) contributory negligence was not pleaded; (2) any negligence of plaintiff directly and proximately contributory to the injury will defeat a recovery.</p> <p>4. Telegraph Companies. — Where a message is transmitted at night from a night message blank which is changed to “day message” and sending operator testifies that it means “transmit at once” and no information is given receiving office of change and no effort is made to deliver until office hours next day, telegraph company is liable for mental anguish and punitive damages, although an effort to deliver the following day after office hours, and if such delivery had been made the addressee could not have attended the funeral.</p> <p>Messrs. Justice Gary and Woods dissent, beccmse there was no evidence as to punitive damages.</p>

Before Krugh, J., Union, September Term, 1905. ■ Action by Boyd Tucker, by guardian, against Buffalo Cotton Mills. From judgment for plaintiff, defendant appeals. cites: As to disqualification of juror: Code, 1902. sec. 3944; 31 S. C., 357; 54 S. C., 153. Sum paid physician by father not element of damages: 8 Ency., 647, 648. As to examination of witness: 33 S. C., 107.

<p>1. Master and Servant — Punitive Damages. — That a master erected a scafford for a carpenter to work on which he thought safe, but from which the carpenter fell by reason of his wrench slipping, and part of scaffold giving way, will not support punitive damages.</p> <p>2. Pleading Contributory Negligence and Assumption of Risks.— Where plaintiff has notice of the plea of contributory negligence and assumption of risks and both sides introduce evidence on a defective plea of the issues without objection, a new trial will not be granted on the mere technicality of defective plea unless it is shown to have impaired substantial rights.</p>

<p>Highways — Bridges—Railroads.—'There is no statute in this State making it the duty of railroad corporations to keep in repair bridges on the public highways on their rights of way but not on their road beds.</p>

<p>Pleadings — Negligence.—Where a complaint contains allegations of specific acts of negligence, and also general acts of negligence, the general allegations should be regarded as explained and controlled by the specific acts of negligence averred, in the absence of some clear indication in the complaint that the general allegations were intended to cover other acts of negligence than those alleged.</p>

Before W. C. Benet, Special Judge, Marion, April, 1906. Action 'by Exchange Bank of Fort Valley, Ga. against John P. McMillan' et al. From judgment for plaintiff, 'defendants appeal. cite: As to disdffirmance of contract made during minority: 16- Stat., 514; Code, 1902, 2656; Speers Eq., 385; 54 Miss., 323; 16 N. H., 385; 23 Me., 517; 69 N. Y., 553; 29 S. C., 419; 36 S. C., 549; 51 S.1C., 467; 60 S. C, 380; 11 A. & E., 934; 1 Exch., 122; 10 Exck, 206; 3 Reed S'tat Frauds,…

Before I-Iydrick, J., Richland, June, 1906. Action for writ of certiorari by Henry Wright against State Board of Canvassers.