Volume 77 — South Carolina Reports

Action by Central National Bank against T. C. Duncan and others, on the following pleadings: “The plaintiff complaining, alleges: “1. That the plaintiff is, and was at the times hereinafter mentioned, a corporation duly chartered, organized and doing business under and by virtue of the laws of the United States of America. “2. That the defendants, D. D. Bishop and O. D. Johnson, are partners, trading under the firm- name of D. D. Bishop & Company. “3.

Action by A. M. Gibbes, trading as Gibbes Machinery Co., against L,. B. Roper, Pocahontas Roper, D. D. McCall. T. E. McCall, C. S. McCall and A. G. Sinclair, executors of C. S. McCall. Erom Circuit decree, defendants, Pocahontas Roper and executors of C. S. McCall, appeal.

<p>The right op cross-examihatioh tending to test the accuracy, veracity or credibility or to shake the credit of a witness is largely within the discretion of the trial Judge. Under facts here there was no abuse in ruling out questions tending to show immoral relations between a woman witness and a man not a party to the prosecution.</p>

Indictment against Will Daniel. Defendant appeals. cites: As to the right to a poll of the jury: 1 McC., 535; 33 S. C., 45; 7 Rich., 413. As to power of Court to correct a verdict: Rapalze on Crim. Proc., sec. 374; 13 S. C., 1; Rice, 431; 34 S. C., 109. Oral argument.

Action by Robert W. Doster against Western Union Telegraph Co. From judgment for plaintiff, defendant appeals. Messrs. Williams & Williams cite: Evidence of Hall and Culp improperly admitted: Bank v. Tel. Co., 30 Ohio; 72 S. C., 116. Evidence of plaintiff as to unusual fondness for grandchild not competent: 73 S. C., 523; 69 S. C., 31. Nonsuit should have been granted on cause of action for wilfulness: 72 S. C., 726; 73 S. C., 523.

Action by E. J. Wannamaker against Samuel N. Brown. The following is the Circuit decree, omitting the formal judgment: “The above entitled action for the specific performance of a contract for the sale of real property, with the reservation of a portion of the purchase money, as indemnity against an outstanding incumbrance of an inchoate right of dower, came on to be heard before me, on the pleadings and testimony taken and reported by the master. “From this testimony, I…

<p>Rule in case of Nancy Smith against Edlwin Smith. Prom Circuit order defendant appeals.</p> <p>cites: 7 S. C., 235.</p> <p>cites: 72 S. C., 322.</p>

Action by Silas Worthy, by guardian, against Jonesville Oil Mill. From judgment for plaintiff, defendant appeals. cite: Bvidence of adding safeguards after accident incompetent: 144 U. S., 202; 30 Minn., 465. Release executed by plaintiff relieves defendant: 56 S. C., 513; 33 S. C., 561; 66 S. C., 82; 38 S. C., 199. Contract of minor is only voidable: 27 S. C„ 302; 3 Rich., 165; 3 A. & E. Am. Cas-, 592; 3 Brev., 401; 16 Ency., 288; 1 E. R. A., 525.

Motion to' reinstate appeal in State against John Sheldon. The defendant was indicted for murder and convicted during January term in Spartanburg County, 1906. Notice of appeal was duly given and “Case” agreed on February 20, 1906. On motion of solicitor, appeal was dismissed for failure to file return after proper notice on May 15, 1906. Transcript was furnished by stenographer in July, 1906.

<p>Warehouseman. — Where a Carrier takes goods to their destination, unloads them in its warehouse, notifies consignee of their arrival, and they are destroyed by fire, without any fault or negligence on part of carrier, after consignee has had sufficient time and opportunity to remove them, the carrier is not liable for their loss.</p>

<p>Action by G. W. Bell against Southern Ry. From judgment on Circuit sustaining judgment of Magistrate B. P. McMaster, defendant appeals.</p> <p>cites: Notice of loss must be served on freight agent at destination: Best v. Ry., 72 S. C.; 73 S. C., 73; 71 S. C., 274. Penal statutes must be strictly construed: 26 S. C., 294; 23 Ency., 658.</p> <p>cite: An agent in possession of principal’s property is presumed the agent of such principal: 67 S. C., 395; 74 S. C., 360; 70 S. C., 339; Code, 1902, 2026.</p>

<p>Action by S. L. Crawford et al. against Atlantic Coast Lumber Corporation. From order dissolving temporary injunction, plaintiffs appeals.</p> <p>cite: 69 S. C., 156; 22 S. C., 101; 51 S. C., 434; 54 S. C., 457; 52 S. C., 196; 67 S. C., 184; 54 S. C, 435.</p> <p>cite: 69.S. C., 554; 75 S. C., 220; 32 S. C., 503; 51 S. C., 379; 11 Rich., 621; 12 Rich., 314; 13 Rich., 85; 22 L. R. A., 240; 2 Hill, 617; 2 DeS., 622; High on Inj., sec. 673; 99 Am. St. R., 748; 75 S. C., 220, 25 S. E., 458; 32 S. C., 503; 1 High, on Inj., 4 ed., secs. 34, 723; 35 S. C., 458; 54 S. C., 564; 58 S. C., 532.</p>

<p>1. Res Judicata — Receiver.—An order made after notice embracing everything necessary for the discharge of a receiver, not in direct terms confirming the report of the referee or approving the accounts of the receiver, but reciting the report and referring to the amount found by the clerk to be in hands of receiver, providing for discharge of receiver after payment of certain accounts, is res judicata of the account of the receiver.</p> <p>2. Judgment. — Circuit Judge has no power at chambers to set aside a judgment on ground of surprise or excusable neglect.</p> <p>3. Opening Judgments. — Where attorneys had ample notice the Court would be askgd to adjudicate the accounts of a receiver; case on docket ready for a hearing; attorneys of creditors in possession of accounts of receiver for sufficient time to file exceptions; the Court should not open judgment after order passing on accounts and discharging receiver and permit attorneys of creditors to file exceptions to the report, on ground of excusable neglect, because one counsel for creditors was in Europe when accounting was had, but returned in time, there being local counsel in the State all the time.</p> <p>4. To open a judgment there must be a prima facie showing from which Court itself may infer the relief asked for would be in furtherance of justice, it is not sufficient for the moving party to say as a legal conclusion the judgment is “improper or irregular.”</p>

Action by Kentucky Wagon Mfg. Co. against People’s Supply Co. Prom judgment for defendant, plaintiff appeals. The former cite: Construction of contract is for- the Court: 2 Page on Con., sec. 1129; 9 Ency., 591; 17 S. C., 427; 19 S. C., 121. When testimony will be admitted to explain terms used by parties: Page on Con., sec. 1111.

<p>Indictment against D. B. Talley for obtaining money under false pretenses. Defendant appeals from sentence.</p> <p>Mr. McCullough cites: If supervisor is not deceived, it is not a false pretense: 12 Ency., 818; 23 S.” C., 173.</p> <p>The latter cite: Claim need not he in legal form: 5 Strob., 158. Not necessary to show supervisor zvas deceived: 1 Arch. Cr. Pr., 465-472; 2 Arch. Cr. Pr.,</p> <p>1387, 1398. Fraudulent intent may be shown by proof of similar offenses: 56 S. C., 495; 2 Rich., 420; 1 Bail., 300; 2 Bail., 44; Harp., 59.</p>

Action by H. J. Ray and Elsie C. Ray against Southern Ry. Co. From order refusing to sanction removal, defendant appeals. cite: Subsequent amendment cannot defeat federal jurisdiction: 15 How., 467; 75 S. C., 326. Prayer cannot control in construction of complaint: 27 S. C., 225; 26 S. C., 308; 13 S. C., 439; 18 S. C., 600. cite: As to construction of pleadings: Code, 1902, 180; 56 S. C., 241; 85 S. C., 104; 12 S. C., 1; 60 S. C., 492.

Action 'by Laurens H. Davidson against Elbert W. Copeland. Erorn Circuit judgment, plaintiff appeals. cites: Partnership deñned: 14 S. C., 631; 18 S. C., 333. Parties accepted and received the cotton: 36 S. C., 69. Mr. McGowan cites: This action is c-ognisable in equity: 16 Cyc., 103; 17 Ency., 1354; 3 Luid, on Part., 567; 56 S. C., 303, 489. If contract was made to avoid town 'license it is against public policy: 3 Par. on Con., 3 ed., 360; Bish.

Action by Emma A. Small, administratrix of S. E. Usher, J. H. and E. J. Usher. From Circuit orders., defendants appeal. cite: Appeal lies from the first order after Ming of second: 17 S. C., 150. Distributee should not be charged with rents on his share of lands: 38 S. C., 469; 33 S. C., 255. No citation.

Indictment against Joe Hunter and John Hunter for murder. From sentence, defendants appeal. Mr. Greene cites: Who is an aider and abetter in crimef 2 Fncy., 32; 33 Ind., 418; 65 Mo, 29; 96 Am. St. R., 879; 36 S. C., 532; 18 S. C., 175. Oral argument.

Action by D. P. Bowen against Western Union Tel. Co. Prom judgment for plaintiff, defendant appeals. Mr. Bvans cites: There is no evidence of punitive damages: 73 S. C., 520-; 75 S. C., 211, 182; 72 S. C., 261; 70 S. C., 261; 71 S. C., 303. As to granting new trials: 64 S'. C., 569. cites: No proper request to charge, there was no evidence of wantonness, the question cannot he made now: 72 S. C., 419, 361; 74 S. C., 136.

Lee-. Action- by James E. McCutchen, in -his own right and as administrator et al., against Martha S. McCutchen et al. The Circuit decree, omitting formal parts, is as follows-: “This action- was begun by the plaintiffs above named, in March, 1904, who set out in their complaint: “That on the 24th day of December, 1902, Dr. Elias G. McCutchen, late of the county of Sumter (afterwards Lee County), departed this life intestate, leaving as his heirs at law and distributees, his…

<p>Action by Merchants’ and Planters’ Bank against J. I. Sarratt et al. Prom Circuit judgment, defendants appeal.</p> <p>cite: Interest calculated at 8 per cent for 360 days is usury: Code 1903, 1663; 3 Cowen, 704; 8 Cowen, 399. Discount at 8 per. cent, before maturity is usury: 30 S. C., 61; 31 S. C., 386; 39 S. C., 193; 55 S. C., 143. Check in payment of discount is not such writing as will take case out of statute: 39 S. C., 193. What is necessary to show renewal of note is payment: 17 S. C., 489.</p> <p>Mr. Hall cites: Calculating interest at 360 days for a year does not violate usury law: Webb on Usury, sec. 137; 30' S. C., 61. The check in payment of interest at time of delivery of notes takes case out of statute: 9 Cyc., 399, 579, 581; 55 S. C., 133.</p>

Action by C. P. Butler against Western Union Telegraph Co. From judgment for plaintiff, defendant appeals. Messrs. Evans & Pinley and Jos. A. McCullough cite: Telegraph company is only liable for such damages as could reasonably be anticipated: 72 S. C., 290, 120; 70 S. C., 422. If there be an effort to deliver there is no basis for punitive damages for failure to deliver: 72 S. C., 119; 73 S. C., 523; 65 S. C., 93; 75 S. C., 182.

<p>Motion to dismiss appeal in case of W. C. Foster against Western Union Telegraph Co.</p> <p>cite: Code of Proc., 34-5; 58 S. C., 39; 36 S. C., 399; 31 S. C., 510.</p>

<p>1. Evidence — Secondary—Telegraph Companies. — There being no evidence that addressee received a particular message from a certain person, it is not error to exclude a paper offered as a copy of such message in absence of proof that it was an authorized copy.</p> <p>2. Telegraph Companies — Damages.—Under the facts in this case damages for inconveniences and hardships suffered by walking a long distance cannot be recovered of a telegraph company for failure to deliver to Richard Cason a message' addressed to Richard Carson by B. in reply to a message transmitted to C.. for Richard Cason in absence of evidence that defendant had some reasonable ground to believe the message was intended for Richard Cason.</p>

Action by Winto-n T. Walker against Southern Ry., Carolina Division, and Southern Ry. Co. From judgment for plaintiffs, defendants appeal. cite: Demurrer will lie to complaint if it states contributory negligence: 58 S. C., 491; 64 S. C., 553. Does the complaint show contributory negligence: .49 S. C., 12; 1 Hill, 365; 30 S. C., 539; 46 S. C., 327; 23 S. C., 531. Doctrine announced in Littlejohn v. R. R., 49 S. C., 18, is modified by Code 1902, sec. 1375.

Action by D. W. Alderman' & Sons Co. v. Thomas Wilson, W. B. Wilson, John Wilson, E. R. Wilson and The Wilson Lumber Co. From judgment for defendants, plaintiff appeals. Messrs. Wilson and DuRant cite: The statute contravenes the State and Pederal Constitutions: 69 S. C., 176; 184 U. S., 541; 63 S. C„ 169, 425; 113 U. S., 703.

<p>I. Limitation op Estates. — A deed without words of inheritance in the premises and without habendum clause, but having a covenant of warranty to grantee for life, and after her death to her children, carries only a life estate to grantee.</p> <p>3. Rehearing refused.</p>

Action by Riley M. Strange against Atlantic Coast Line R. R. Co. From Circuit order dismissing appeal from court of magistrate, S. M. Youmans, defendant appeals. cite: Court will look into the evidence to see if there is any to support the verdict: 22 S. C., 590; 73 S. C., 307. cites: Admission of irrelevant evidence is not error unless abuse of discretion: 75 S. C., 201, 74; 72 S. C., 12; 6 Cyc., 450, 368; 72 S. C., 126. Complaint alleges special damages: 71 S. C., 211.

<p>Appeal. — No matter of substantive law being involved, and only advantage expected by appellant being delay, on motion of respondent, a circuit granting reference of all issues, without consent, is reversed.</p>

<p>1. Proof of Agency- — Issues.—Dealing with one as agent of an insurance company and declarations of State agent that he was such agent is sufficient to send the issue of agency to the jury.</p> <p>2. Insurance — Damages.—Where an insurance policy is made out according to application, but insured declines to accept it because he was under the impression he was to have a different policy, the only damages sustained by insured is the value of the note given by him for first premium retained by insurer.</p> <p>3. Evidence — Writings.—An Application for Insurance is a part of the contract of insurance and no oral testimony as to agreement between the parties before execution is admissible to vary its terms, although insured signed without reading and accepted statement of agent as to its contents.</p> <p>4. Contract — Fraud.—Punitive Damages are not recoverable for breach of contract unless accompanied by fraud.</p>

<p>1. Position — Debts.—If it does not appear in partition proceedings that debts are fully paid, provision must be made for them in partition decree and payment of claims after decree made does not make it erroneous.</p> <p>2. Ibid. — Jurisdiction.—Court of Equity has power to make decree for sale in partition without issuing writ in partition.</p> <p>8. It seems that estates by entirety between husband and wife do not now exist in this State; at least the separate estate acts should be given the effect to make her tenant in common with her husband in a grant to both in the absence of any expressed intention in the deed conveying the whole to the survivor.</p> <p>4. Deeds — Tenant in Common. — If grantor convey the fee in land to himself and others, he thereby retains an interest in himself and becomes a tenant in common with the grantees.</p> <p>5. Rehearing refused, but judgment modified on petition.</p>

Action by D. M. Crawford against D. R. Crawford and E. B. Crawford.

Action by Maggie Jamison against Southern Railway. From Circuit order affirming judgment of Magistrate Moorman, defendant appeals. Mr. Thomas cites: Statutes of this nature are strictly construed: 5 Wheat., 76; 52 At. R., 294; End., sec. 329; 50 Pa. St., 201; 26 S. C., 294; 53 S’. C., 500; 71 S. C., 274. cites: To construe a statute is to arrive at the legislative intent: 26 Ency., 608; 149 U. S., 304; 143 U. S., 457; 28 S. C., 521; Bail. Eq., 208.

Action by Greenwood Grocery Co-, against Canadian County Mill and Elevator Co. From judgment for plaintiff, defendant appeals. The latter cites: Was there a contract? 7 Ency., 113; 9 Cyc., 398, 245; 21 S. E., 851; 15 S. E.} 813, 826. Phesitmption is letter was received: 1 Green. Ev., 137. If so plaintiff practiced fraud and cannot recover: 46 S. C., 220. Offer and acceptance by telegram completes the contract: 9 Cyc., 295; 50 Am. R., 754; 7Í Am. D., 409; 93 Am.

Motion in case of John McSween against Annie Wind-ham and others for leave to file answer out of time. From order refusing the motion, defendants appeal. Mr. Brozm cites: On main question: 17 S. C.,-445; 50 S. C., 405; 11 S. C., 135; 73 S. C., 210; 74 S. C., 298, 479. cite: Appeal lies from abuse of discretion: 50 S. C., 403; 42 S. C., 205; 48 S. C., 565; 56 S. C., 12; Code of Proc., 195; 64 S. C., 338.

<p>Limitation of Estates — Fee Conditional. — Deed conveying land in habendum to Y., “her and her children and her assigns forever” and in warranty to Y. “her and her children and her assigns,” and she having no children then or now carries a fee conditional to Y., and deed from her and her grantee to another carries a fee simple title to their grantor.</p>

<p>Petition in probate court by Katy Watson for letters of administration upon estate of Richard Humbert. From probate decree, protestan! Saphronia Ellerbe appealed to Circuit Court, and from affirmance of probate judgment she appeals to this Court.</p> <p>No argument furnished Reporter.</p> <p>cites: 10 S. C., 317; 41 S. C., 355; 63 S. C., 219; 61 S. C., 411.</p>

<p>1. Attorneys — Continuance.—It is not reversible error for trial Judge to appoint counsel for defendant charged with murder on day set for trial and to continue case to a later day, where defendant’s retained counsel insists he cannot go on with trial because of illness, defendant does not accept counsel appointed, but retained counsel appears on second day fixed and goes on with trial.</p> <p>2. Discretion. — Continuing or bringing a case to trial is discretionary with trial Judge.</p> <p>3. Practice — Prisoner.-—Placing one or two constables about a prisoner in the court room, charged with murder, who had attempted once or twice to escape, does not tend to unduly influence the jury to his prejudice.</p> <p>4. Ibid. — Severance is often necessary in criminal case and is discretionary with trial Judge.</p> <p>5. Evidence — Conspiracy—Declarations.—After order of severance and during trial of one of three persons charged with murder, declarations of one charged in the indictment, but not then on trial, made during commission of act are admissible against one on trial.</p> <p>6. Ism. — Contradiction.—Under charge of murder it is competent to ask defendant if he had in his possession since the homicide the watch of deceased and to contradict him upon denial.</p> <p>State v. Wyse, 33 S. C., 582, distinguished from this case.</p> <p>7. Murder — Aiding and Abetting — Charge.-—Where two or more are charged in indictment with homicide and severance has been granted and one alone put on trial, Judge may properly instruct jury the persons named in the indictment are charged with the offense and instruct them as to aiding and abetting and acting in concert in committing the crime.</p>

<p>Estopel — Dower—Title'—Married Woman. — The evidence being unsatisfactory as to whether the wife was separately examined as to renunciation of dower, the certificate of notary and signature of wife control and wife held estopped from claiming title to land to which she had title at time husband mortgaged it and on which she renounced dower in proper form. Such estoppel only applied to debts - created at time of execution of the mortgage.</p>

<p>Indictment against Morgan Smith for murder. From sentence, defendant appeals.</p>

<p>Proceeding to estreat recognizance in State v. Sallie Johnson against herself and E. McC. Clarkson, Jr., as surety. From order making rule absolute, surety appeals.</p> <p>cite. Rule to show cause is same as proceeding scire facias: 13 S. C., 344, 452; 40 S. C., 255 ; Code of Proc., 148, 156. Service of writ of scire facias to estreat a recognisance is governed by same rule as service of other process: 19 Ency. P. & P., 314; 2 Strob., 207; 2 Brev., 201.</p> <p>Mr. Jno. P. Thomas, oral argument.</p>

<p>Motion to set aside order of arrest in S. U. Davis, John W. Davis and D. K. Godbold against J. K. Reynolds. From order refusing motion, defendant appeals.</p> <p>cite: Timber sold was not personalty: 28 Ency., 541; 12 Rich., 318; Green. Ev., sec. 271; 11 Rich., 621; 2 Barb., 613; 55 D. R. A., 329; 107 N. C., 717. The first contract of sale is good without record: 1 Strob, Eq., 393; 10 Rich. Eq., 149; 39 S’. C., 80. Law implies license to enter on the land and remove the trees: 18 Ency., 1132; 3 Kent., 452; Add', oni Torts, secs. 116, 130,- 18 S. C., 17; 31 S. C., 275. Allegations of affidavit on information and belief are not sufficient: 4 ’Cyc., 482; 42 S. C.; 162; 32 S. C., 155.</p> <p>cites: Failure to file undertaking is not cause to vacate the order: 43 S. C., 244, 329; 72 S. C., 567; 73 S. C., 413. Complaint and affidavits make out a case falling under sec. 200: 1 Wait’s Prac., 616; 70 S. C., 108; 16 Ency., 18; 54 S. C., 500; 12 S. C., 45, 580; 28 Ency., 679, 696. Deadened and felled trees are personalty: 12 Rich., 314.</p>

Application to this Court in its original jurisdiction for injunction by Henry Buist against City Council of Charleston. Oral argument. Oral argument. After argument filed these additional authorities: 10 Am. Dig., sec. 130; 44 Am. Dig., sec. 77J4; 13 S. E., 522; 31 At. R., 695; 83 P. R., 234; 59 Fed, R., 58; 39 P. R„ 989; 45 Pac. R., 356. Statement of Facts.

Action by Mary G. Mayrant against City of Columbia. From order overruling demurrer, defendant appeals. cites: This action will fall under Code 1902, 2023, or 2010a: 74 S. C, 539; 39 S. C, 475; 40 S. C, 342. Injury is consequential: 51 S. C, 480; 43 S. C, 398; 40 S. C, 390; 70 S. C, 137; 38 S. C, 282; 58 S. C, 415; 12 Am. Neg. R, 455; 11 Ibid, 28.

<p>Ruled by the preceding case of Mayrant v. City of CoVwmbia.</p>

Indictment against J. F. Flicks for obtaining goods under false pretenses. From sentence, defendant appeals. cite: Intent is the gist of the crime: 12 Fncy., 825; 19 Cyc., 413-437; 21 S. C., 353. It cannot be inferred from false pretense: 12 Ency., 825; 19 Cyc., 413; 2 Bish. Cr. Raw, 409-488; 10 R. R. A., 302; 28 R. R. A., 122; 9 S. E., 575; 21 At. R., 1025; 33 S. O., 853.

<p>Action by Thompson Bros, against Piedmont Mutual Insurance Co. From judgment for plaintiff, defendant appeals.</p> <p>cite: Judgment will be reversed if there was abuse of discretion: 60 S. C., 296.</p> <p>cites: What defendant should allege and prove: 28 S. C., 439; 60 S- C., 484; 43 S. C., 26. Secondary evidence and reasonable notice: 60 S. C., 300; 2 Rich., 154; 52 S. C., 82; 2 Rich., 140; 69 S. C., 430. Proof of contents of policy: 73 S. C., 545. Abuse of discretion and continuing case: 50 S. C., 403; 18 S. C., 315; Rule, 27 C. C.; 33 S. C., 107, 582; 42 S. C., 209; 17 S. C., 451; 51 S. C., 405; 53 S. C., 224.</p>

<p>1. Insurance. — Rights of beneficiary are vested as soon as contract of insurance is entered into, and the right to change beneficiaries does not include the power to surrender and cancel without the consent of beneficiaries.</p> <p>2. Evidence — Presumptions.—Under facts in this case, charge that receipt of policy by mail was presumptive of acceptance was not prejudicial, if error.</p> <p>3. Charge complained of here that it is duty of Courts to enforce and not to make contracts, as a charge on the facts, because question was whether a contract was ever made, when construed in connection with whole charge, is not on the facts.</p> <p>4. Refusal of New Trial moved for on ground that verdict was in face of evidence, there being evidence tending to support a verdict, is not error of law.</p>

<p>Subrogation — Banks.-—Where an insolvent bank draws a draft to pay a deposit on a bank in which it had on deposit the proceeds of a note secured by collateral, the note providing in case of insolvency, of maker bank, it should become due at once and the note could be charged to the account and the collateral sold and applied to the debt, lipón notice of insolvency of maker, the drawee bank so charged the note, refused to pay the draft, and turned over the collateral to receivers of insolvent bank, the holder is not entitled to be subrogated to rights of drawee bank in collateral as against general creditors of drawer bank.</p> <p>Mr. Justice Gary dissents.</p> <p>Garvin v. Bank, 7 S. C., 266, distinguished from this.</p>

Action by American Seeding Machine Co. against R. C. Commander. From order requiring defendant to pay over trust funds, he appeals. cite. Order should not have been granted zvithout notice: Rule C. C., 57; 7 S. C., 235, 77; 28 S. C., 56; Code of Proc., 265, sub. 11. Judge Watts should not have given jzidgment without jziry: Code of Proc., 267, sub. 1; 50 S. C., 197. cite: Order is not appealable: 8 Ency.

<p>Caeriee — Feeight—Peesumetiohs.—Where one bill of lading is issued for a shipment of several packages, it is presumed parties intended articles to be kept together as a single shipment, and where it is shown a connecting carrier received a portion of the shipment, it is presumed it received it all.</p>

Action by John C. Lampley against Atlantic Coast Line R. R. Co. From order granting a new trial, defendant appeals. cites: Neglect to keep up levees was a concurring proximate cause of the damage, and no liability is shown of appellant:' 56 S. C., 91; 58 S. C., 222; 59 S. C., 322.

Action by A. B. L/yon against Charleston and Western Carolina Ry. From judgment for plaintiff, defendant appeals. Mr. Simpson cites: Compliance zviih act of Congress had, nothing to do zvith plaintiff’s injury: 2 Thomp. on Trials, secs. 2309, 2310, 2315; 11 Ency., 516; 56 S. C., 434: 61 S. C., 563. Flagman and engineer are fellow-servants: 72 S. C., 243; 5 Rap. & Mack’s Dig. Ry. Law, 740; 31 Fed.

<p>Application in original jurisdiction of this Court for injunction, by C. E. Spencer against W. B. McCaw et al.</p>

<p>Application for writ of mandamus in the original jurisdiction of this Court by W. H. Smith against O. A. Matthews et al., constituting the Board of Pharmaceutical Examiners for this State.</p>

<p>Evidence — Parol —Railroads —Passengers —Contracts—Judge.—When in construing a written contract the. trial Judge concludes upon its face it is reasonably calculated to mislead a man of ordinary intelligence, it is his duty to receive parol evidence to enable the jury to determine if either contracting party were misled. The words “Charleston and Return” written in ink across the printed matter of a conditional round-trip ticket, have not the effect of making a new contract, nor of rendering the one expressed in print ambiguous nor of cancelling the printing requiring the ticket to he validated in Charleston, as those words were already incorporated in the contract.</p>

Action by T. J. Strait against British and American Mortgage Co., Limited. From order overruling demurrer and refusing motion to strike out certain defenses plaintiff appeals. cites: Usury statute of i8po and its construction with act of i8p8: Code 1902, secs. 1391, 1663, 1664; 2 Ency., 601; 27 S. C., Ill; 50 S. C., 185; Act of 1898; End.-on Int. of Stat., secs. 329, 339, 138, 103, 107.

Action by Elizabeth B. Martin, by guardian, against Southern Ry. Co. From judgment for plaintiff, defendant appeals. cites: What must appear to warrant a verdict for punitive damages: 54 S. C., 505; 60 S. C., 74; 51 S. C., 170; 65 S. C., 336; 69 S. C., 445; 75 S. C., 160; 63 S. C., 370; 64 S. C., 433; 68 S. C., 89. There was no legal duty on conductor to assist plaintiff: 37 S. C., 368; 46 S. C., 318; 53 S. C., 303.

<p>1. Telegrapi-i Companies — Notice.—Suit on claim for damages for negligence in delivery of message is a presentation of claim in writing under the stipulation that claims shall be presented in writing in 60 days.</p> <p>2. Ibid. — There was a conflict of evidence here as to the efforts of the messenger boy to find the addressee of a telegram on which jury could have found verdict for plaintiff.</p> <p>3. Ibid. — Mentad Anguish. — There being nothing to show that addressee of message would not have gone to the funeral if it had been delivered in time, he has a cause of action under the mental anguish act.</p> <p>4. Ibid. — Office Hours. — Modification of request as to duty of telegraph company to deliver messages after office hours by adding the doctrine of waiver of observance of office hours was not error in this case.</p> <p>5. Negeigence — Wantonness.—When Evidence is received as to wealth of a telegraph company in a suit on both negligence and wantonness and nonsuit is granted as to cause of action for wantonness, in absence of request, it is not reversible error to fail to instruct jury not to consider such evidence in the cause of action for negligence.</p>

Indictment against Samuel Hamilton for burglary. From sentence, defendant appeals. cite: Proof of separate ownership will not support allegation of joint ownership: 4 McC., 16; 2 Hill F., 5; 3 S. C., 230; 12 S. C., 180] 58 S. C., 368. Oral argument.

Indictment against Berry Jones et al. for disturbing religious worship, before magistrate A. M. Guyton. From Circuit order modifying magistrate’s judgment, defendants, Berry Jones, Tom Mauldin and Jim Jordan, appeal. cite: Jurisdiction of Court of limited jurisdiction of subject-matter must appear affirmatively on record: 17 Ency., 1082; 13 S. C., 200. No intent to disturb the worship was proved: 108 N. C., 772; 15 S. C., 112. Oral argument.

Indictment against Robert Mack for murder. From sentence on Circuit, defendant appeals. cites: Charge made impression on jury that plea of accidental killing must be established by defendant, which is error: 68 S. C., 304; 14 Rich., 230. cites: Whole charge must be construed together: 29 S. C., 4; 35 S. C., 16; 66 S. C., 469. If more specific charge as to accidental killing were desired it should have been requested: 33 S. C., 100; 54 S. C., 192; 58 S. C., 47.

<p>The Pi.ea op Seef-Defense in a homicide case may be set up from the evidence of the State without evidence on part of defense, but the burden of proving the plea does not on that account shift from the defense. Under charge here jury could not have been led to believe it was necessary for defense to put up evidence to support the plea.</p>

<p>Action by Felicita Rosetta Kaylor et al. against Louis Paul Hiller. From judgment for defendants, plaintiffs appeal.</p> <p>cite: Strict construction: Code of Proc., sec. 155, sub. 2; 17 S. C., 439; 23 S. C., 187; 24 S. C., 376; 25 S- C., 281; 57 Fed, 966; 86 Ky., 617; 101 Ala., 341; 10 Ency. P. & P., 603-4. Dual service: 86 Ky., 617; 80 Ky., 64; 42 Miss., 157; 1 Mass., 131; 62 How., 460; 45 Miss., 67; 33 Neb., 706; 161 Ala., 341. Affirmative showing: 97 U. S., 444; 1 Miss., 131; 42 Miss,, 157; 54 Miss., 482; 58 Miss., 511; 45 Miss., 67. Appointment of guardian without such dual service witt not confer jurisdiction: 62 How. P., 460; 32 L. R. A., 674; 25 S. C., 282; 17 S. C., 439. Actual knowledge by infant of pendency of action will not bind him: 24 S. C., 377. Presumption is only indulged in absence of averment in the record: 18 Wall., 350; 97 U. S., 444; 34 Cal., 391; 59 S. C., 504.</p> <p>The latter cite: Service of minors: Rev. Stat., 1873, sec. 157; Stat. 1878, 595. Plaintiff need not be served if minor lives with him: 59 S. C., 384. Record shows there was “no father, mother or guardian:” 61 S. C., 573; 15 Ency., 22-7; 21 Cyc., 13, 14; and cannot be contradicted: 47 S. C., 549; 40 S. C., 193, 69. Pacts appearing are in favor of jurisdiction: 48 S. C., 569; 42 S. C., 511; 59 S. C., 498; 4 Strob. Eq., 80; 16 S. C., 281; 18 S. C., 126; 25 S. C., 275; 56 S. C., 96. Defects are cured by lapse of 20 years: 1 Hill Ch.. 378; 31 S. C., 112. Copy complaint need not be served with summons: Rev. Stats. 1873, sec. 153; Code of Proc., 151; 71 S. C., 21. Irregularities in dates of service and appointment of guardian do not affect jurisdiction: 35 S. C., 391; 71 S. C., 21; 56 S. C., 96. There having been executions in hands of sheriff sale would be referred to that: 2 Speers, 91; 32 S. C., 270; 34 S. C., 389. Plaintiffs have no title until conditions expressed in will have been complied with: 23 S. C., 513; 16 S. C., 548; 31 S. C., 35.</p>

<p>1. Telegraph Companies — Striking Out Pleading. — Allegation “that notwithstanding the defendant had every reason to know the message was important” is objectionable for indefiniteness, but it is sufficient to apprise of the intention of plaintiff to prove notice to defendant of reasons why message was important. Remedy was motion to make definite and not motion to strike out.</p> <p>2. Damages — Negligence—Mental Suffering — Issues.—Whether one subjected to damage by negligence of another used all reasonable effort to prevent or minimize mental suffering is question for jury.</p> <p>3. Telegraph Companies — Issues.—It cannot be said as matter of law that exposure and sickness were results which could not have been reasonably anticipated from failure to deliver the telegram, “Will be to Perry on morning train; meet me there.” Whether reasonable prudence required plaintiff to wait until he could obtain a conveyance that would protect him.from the rain, and whether his exposure and sickness were due to defendant’s delict as a proximate cause, was for jury.</p> <p>Jones v. Tel. Co., 75 S. C., 208; Carter v. Ry., 75 S. C., 355; Key v. Tel. Go., 76 S. C., 301, distinguished from this ease.</p> <p>4. Instruction that punitive damages could be awarded for negligence, immediately followed by instruction, it could only be given on proof of wilfulness, is not reversible error.</p> <p>5. Telegraph Companies — -Issues.—Unexplained delay in delivery of message for seventeen hours carries question of wilfulness' in nondelivery to the jury.</p> <p>6. Charge. — Where the Court in general and comprehensive terms charges the law bearing on a cause and party submits no requests for elaboration or more definite statement, there is no error.</p>

Action by Mamie G. Kirby and Wm. F. Kirby against Western Union Tel. Co. From judgment for plaintiff, defendant appeals. Mr. Evans cites: When all facts are out there is no room for presumption: 29 S. C., 202; 65 S. C., 185; 16 'S. C., 153; 75 S.' C., 522. Remarks of counsel not supported by the evidence is reversible error: 106 N. W., 690; 99 N. Y., 836; 50 S. C., 248; 187 N. Y., 128. No citations.

Rule in Murray Drug Co. and Cliff Weil Cigar Co. against W. E. Harris and W. W. Abbott against E. K. Gibson, requiring him to show cause why he should not be made a party defendant. Erom refusal of Rule, defendant, W. W. Abbott, appeals. cite: Code of Proc., 139, 143; 4 S. C., 510; 11 Barb., 516; 133 U. S., 579; 1 Dan. Oh. PI. & Pr, 246, etc.; Story’s Eq. PI., sec. 72; 15 Eney.

<p>Jurisdiction. — On Appeal from judgment of Circuit Court on findings of fact by referee in a law case, this Court can only review errors of law.</p>

<p>Action by W. C. Wright et al. against City of Columbia. From order dissolving temporary injunction, plaintiffs appeal.</p>

Action by Henry C. Grafton against S. R. Patrick. From judgment for plaintiff, defendant appeals on -the following exceptions: 1. “For that his Honor erred in holding, on the first examination of plaintiff, when defendant’s counsel attempted to prove by- him that he had knowledge of the fact that the horse described in the complaint had been traded, after a breach of the condition of the mortgage, that -such fact made no difference in plaintiff’s rights.

Action by Ben Green against Catawba Power Co. Prom judgment for plaintiff, defendant appeals. cite: Adaptation of implements to the work in hand is duty of the servant. 20 Ency., 87; 2 Eabatt on M. & S., sec. 832; 4 Thomp. on Neg., 4004; Bail, on Per. Inj., M. & S., sec. 1605; Wood on M. & S., sec. 346; 10 N. E., 314; 160 Mass., 152; 47 N. Y. Supp., 630. Adjustment setting up and guying the jim-pole was a duty resting on plaintiff and those using the pole: 1 Shear. & Red.

<p>Action by B. J. Anderson against South Carolina and Ga. R. R. Co. Prom judgment for plaintiff, defendant appeals.</p> <p>cite: Degree of care: 74 S. C., 332. Presumption of negligence: 55 S. C., 389; 58 S. C., 491; 62 S. C., 130; 65 S. C., 440; 72 S. C., 336, 114. Damages for mental anguish not being alleged could not be recovered: 31 S. C., 49.</p> <p>cite: Carrier is held to highest degree of can'e to protect its passengers from injury from others: 131 Mass., 371; 50 Fed. R., 755; 24 E. R. A., 70; 34 Conn., 554; 74 S. C., 332; 53 Pa. St., 512; 88 N. C., 536; 24 Fed. R., 413; 76 Pa. St., 510; 53 Miss., 200; 72 N. Y., 30; 23 111., 9; 71 S. C., 543; 3 A. & E. Anno'. Cas., 251; 8 Am. Neg. Cas., 608, 93; 93 A. D., 99; 2 Fed. Civ. Ap., 154; 14 S. W. R., 880; 10 U. S., 677. Recovery may be had for mental suffering: 2 Wood on R. R., 1406; 8 Ency., 664; 71 A. D., 267; 74 S. C., 306; 133 111., 148; 7 Misc. R., 67; 37 W. R., 359; 8 Ency., 663; 5 Ency. P. & P., 758-9.</p>

<p>Railroads. — A road leading from a public road across a railroad to a dwelling and used only by the owner and the tenant of a neighbor as an outlet to the public road is a private way, and the railroad company is not required under sec. 2183, Code 1902, to keep the crossing in repair.</p>

Action by Citizens and Marine Bank against Witcover. From order refusing to strike out answer as sham and irrelevant, plaintiff appeals. cite: Pozver of Court to strike out sham answer: Code of Proc., 173; 6 S. C., 113; 3 Estes PI. (Pom,), 214;.2 S. C., 34. cites: An answer denying a material allegation of the complaint is not sham and irrelevant: 9 S. C., 432; 27 S. C., 164; 43 S. C., 17.

Petition in the original jurisdiction of this Court by British American Mortgage Co. against A. W. Jones, Comptroller General, to enjoin him from enforcing the provisions of the act of 1904, 24 stat., 462. This cause was first argued in January, 1907, and opinion published in 76 S. C., 218.

<p>Action by Billie May Jennings against R. J. Talbert, individually,and as executor of Georgia A. Talbert and Anna P. Robinson. Prom Circuit decree defendant, R. J. Talbert appeals.</p> <p>cites: 39 S. C., 473; 5 S. C., 459; 3 Story Eq. Pars., 1069, 1070; 1 Jar. on Wills, 339, 461; 3 Beav., 174; 109 U. S., 735; 30 Ency.,' 687; 3 Strob. Eq., M3; 7 E. R. A., 836; 39 Ency., 340, 363, 364, 365, 367; Speer. Eq., 83; 16 Ves. Jr., 314; 59 S: C., 148; 1 Ency., 533, 535, 534; 31 S. C., 606; 37 S. C., 461.</p> <p>cites: 30 Ency., 661, 663, 664; 1 Dess., 337.</p>

Action by J. M. Lee against J. G. Unkefer, Edward J. Mcllwain and Sam’l B. Goucher. Erom judgment for plaintiff, defendant, Unkefer, appeals. No argument furnished Reporter. cite: The agreement of defendants here does not come zvithin statute of frauds: 3 Strob., 177, 307; 39 S. C., 14; 1 Rich., 113. Evidence of plaintiff as to the contract did not contradict or vary any written agreement: 61 S. C., 169; 73 S. C., 364; 65 S. C., 134.

<p>Liability by Railroads fob Damages by Communicated Pibes. — Under an agreement, “this cotton is deposited on the premises of the Southern Railway Company and same remain upon the premises of the company without its consent at your sole risk until tendered and accepted for shipment,” the carrier is not liable under sec. 2135, Code 1902, for the destruction of the cotton by fire communicated by its locomotive, and enforcing the agreement is not against public policy.</p> <p>Mr. Justice Gaby dissents.</p>

<p>Inquest — Magistrate—Fees.—There being no statute authorizing payment of fees for holding inquests in Anderson County, a magistrate holding an inquest more than 15 miles from the Court House cannot collect of County fees therefor.</p>

Action by Jonesville Mfg. Co. v. Southern Ry. Co. From judgment for plaintiff, defendant appeals. The former cite: Bill of lading and not statute governs: 19 S. C., 353; 36 S. C., 110; 43 S- C., 473. Court below construed statute too narrow: 14 Ency., 979. cite: Railroads are not required to give notice to consignees: 50 S. C., 129; 72 S. C., 43. Uvery shipper is presumed to have assented to provisions in bill of lading: 5 Ency., 296.

<p>1. Principal and Agent — Notice.-—-There is evidence in this case to the effect that one while soliciting insurance for the defendant and afterwards, exercised other powers than soliciting agent, that insured had no notice of a change of his relation to the company; after-wards, while soliciting additional insurance for the same company, he was informed by insured that he had taken out additional insurance on property, and from this the jury could infer the defendant had notice of the additional insurance.</p> <p>2. Where a Mutual Assessment Insurance Company issues a policy containing a provision that no suit shall be maintained by insured on any claim against it until assessment had been made, or until insured had taken such legal steps as were necessary to compel such assessment, and after loss denies all liability, insured may maintain an action on the policy before bringing an action to compel assessment on policies then liable for their prorata share of loss.</p>

Action by J. P. Kirven against Virginia-Carolina Chemical Co. From judgment for plaintiff, defendant appeals. Argument overlooked at proper time, but printed as an appendix. cites: On question of res judicata: 17 S. C., 42; 94 S. C., 351; 19 S. C., 150, 254; 44 S. C., 1; 49 S. C., 505; 1 Van Fleet on Former Adj., secs. 168, 171, 172; Black on Judg., 768; L. R. 6 Q. B., 687; 33 S. E. R., 292; 33 N. E. R., 491; 10 Gray, 231; 104 Mass., 326; 38 N. E. R„ 976; 19 Ency.

Action by M. E. McMillan in her own right, and as administratrix of John A. McMillan, Susan J. Miller, T. H. McMillan et al. against M. J. McMillan. From judgment for defendant, plaintiffs appeal. cite: As to the kind of possession necessary to take the case out of the statute of frauds: McM. Eq., 318; 5 Rich. Eq., 181; 39 S. C., 559; 27 S. C., 348; 138 U. S., 587; 106 Ind., 282; 3 S. & R., A., 910; 22 Pa., 225; 1 Har.

<p>Action by Hattie K. Speegle against Sovereign Camp of the Woodmen of the World, Arthur Speegle et al. From judgment in favor of defendants, except first named, plaintiff appeals.</p> <p>cites: Question must be settled by construction of Constitution and by-laws of society: Bac. Ben. Soc., secs. 343a, 343c; 3 Ency., 960, 1080; 3 E. R. A. (N. &), 334; 44 N. W., 113; 31 Atl., 1089; 43 E. R. A., 390- 31 Fed. R., 178; 60 S. W., 897; 97 S. W., 504. If beneficiary named die before member, all contingent interest ceases: Bac. Ben. Soc., secs. 355, 343c, 304; 31 At. R., 1089; 31 Fed: R., 177; 41 Fed R, 1; 13 E. R. A., 309; Joyce on Ins., sec. 837; 97 S. W., 504; 60 S. W., 897; 37 N. W., 817; 57 N. E., 1003; 38 E. RA., 138. And constitution and by-lazvs speak at death of member: 13 E. R. A., 309; 3 E. R. A. (N. S.), 334; Bac. Ben. Soc., sec. 355; 31 At. R., 1089; 130 111., 468; 60 S. W., 897; 97 S. W., 504; 3 Mackey, 70; 44 N. W. R., 113; 37 N. W. R., 817; 57 N. E., 1003. Meaning of next: 31 Ency., 534; 144 Mass., 135. As to rules of construction of the by-laws: End. on Int. of Stats., secs. 37, 73, 103; 35 E. R. A., 303; 13 E. R. A., 436; 16 E. R. A., 754, 836; 60 S. W., 897; 97 S. W., 504; 17 Ency., 33; 14 S. C„ 165; 30 S. C., 1; 1 Hill Ch., 51; 4 Rich. Eq., 33; 171 U. S., 30.</p> <p>oral argument.</p>

<p>1. Refusal to Continue case on ground of surprise after granting motion to amend complaint during trial is not reversible error unless abuse of discretion is shown.</p> <p>2. Telegraph: Companies — Punitive Damages. — Where there is undisputed evidence of effort to deliver a telegram, although the delay was long and that it was not finally delivered because the addressee was located too late to subserve the purpose of the message, the company is not liable for punitive damages.</p> <p>3. Ibid. — Mental Anguish. — The trial Court having ruled out all evidence as to plaintiff’s wife and children, there was no element of mental anguish left, as the telegram was then a mere business message.</p> <p>Tóale v.'Tel. Oo.. 76 S. C., 2é8, distinguished, from this case.</p>

Application to this Court in its original jurisdiction by J. O. C. Fleming for injunction against C. A. Power, Auditor for Laurens County, to restrain him from levying income tax against petitioner. cite: This proceeding is maintainable: Code of Proc., 368; Cool, on Tax. 258, 259, 37; 54 S. C., 574; 35 S. C., 213, 233; 4 S. C., 520; 11 S. C., 309; 23 S. C., 70; 1 Story on Con., sec. 338'; 3 Br'ev., 502; 8 Cyc., 717, 726, 729, 741-2, 808, 810, 811, '812, 821; 1 Story on Con.,…

Action by Ella Singleton against Progressive Benefit Association, in court of Magistrate D. J. Baker. From Circuit order affirming judgment of magistrate, defendant appeals. The latter cites: Question made in magistrate court but not ruled on may be made basis of an exception: Code of Proc., 1902, 368; 81 Sub., 6; Code of 1902, 1011-2; 27 S. C., 156. Acceptance of premiums is not zvaiver of forfeiture: 81 N. Y., 119; 28 Ency., 529.

Action by Nannie Smith and Edna Littlejohn, against R. E. Linder. From judgment for defendant, plaintiffs appeal. cite: Burden is on defendant to prove a statutory bar: 52 S. C., 367; 33 S. C., 303; 4 S. C., 257; 18 S. C., 531. Pacts constituting the fraud must have been actually discovered: 40 S. C., 443; 37 S. C., 374; 13 S. C., 384; 4 S. C., 257.

<p>Action by Joseph H. Fields against Lancaster Cotton Mills. From judgment for plaintiff, defendant appeals.</p> <p>cite: I)id the servant of the defendant act within the scope of his employment? 13 Ind. App., 161; 140 Mass., 327; 57 Ga., 253; 72 S. C., 206; 14 L. R. A., 741; 37 S. C., 194; 38 S; C., 29; 33 S. C., 198; 57 S. C., 243. Punitive damages should not be recovered without ñnding of actual damages: 2 Mill., 151; 11 Mich., 548; 78 Ala., 243; 105 Cal., 680; 70 111., 136; 344 S. W., 762; 72 111., 133; 540; 73 111., 561; 60 Mo. App., 119; 75 Tex., 1; 16 Wis., 485; 73 Fed., 196; 35 N. Y. Sup. Ot., 118; 66 Tex., 588; 21 Ohio, 191; 50 Wis., 645; 67 Me., 517; 60 S. C., 72; Oliver v. R. R., 65 S. C.; 70 S. C„ 418.</p> <p>cites: If servant in making assault acted within scope of his employment, master is liable: 69 Tex., 156; 3 Head, 471; 47 N. Y., 126; 64 N. Y., 134; 37 111., 595; 37 S. C., 194; 3 S. C., 8; 67 S. C., 391; 58 S. C., 143; 3 S. C., 9; 128 N. C., 333; 147 U. S., 37; 50 Ara. R., 159; 10 Ohio, 110; 47 N. Y., 23; 42 Mo., 79; 46 N. Y., 23; 15 La., 169 ; 40 S. C., 87; 58 la., 348. How agency may be shown: 48 S. C., 430; 65 S. C., 116, 75; 69 S. C., 420. Punitive damages are awarded under proper facts as a vindication of a private right: 69 S. C., 110, 119; 62 S. C., 330; 65 S, C., 1, 127; 60 S. C., 73; 66 S. C., 542; 72 S. C., 263; 69 S. C., 327; 65 S. C., 444; 73 S. C., 430; 69 S. C., 115, 132; 57 S. C., 234; 53 S. C., 210.</p>

<p>1. Railroads — Nonsuit.—Lessor railroad is agent of lessee and responsible for its acts of negligence. When both are sued as defendants, nonsuit should not be granted as to lessor unless it should also be granted as to lessee.</p> <p>Mr. Justice Jones thinks nonsuit should have been granted on proof.</p> <p>2. Ibid. — Fellow-Servants—Issues—Jury.—Whether a station agent is a fellow-servant with a by-stander, whom he calls in to assist him in rolling ears away from a fire, is for jury.</p> <p>3. Master and Servant. — The erroneous instruction in this case that master is liable for injury caused a fellow-servant by reason of incompetency or inefficiency of a fellow-servant was not cured by other portions of the charge. The master is only required to exercise due care in selecting his servants.</p> <p>'Mr. Justice Gary dissents.</p> <p>4i. New Trial. — There being some evidence on which verdict of jury may be supported, refusal of new trial is not error of law.</p>