Volume 78 — South Carolina Reports

Before Hydrick, J., Clarendon, Action by Salem Railroad Co. against D. W. Alderman & Sons Co. From judgment for defendant, plaintiff appeals. The latter cite: On point of reasonable necessity: 71 S. C., 457. cite: Propriety of exercising power, of eminent domain rests with, grantee: Rewis on Em. Dom., sec. 239; 15 Cyc., 630; 9 Rich., 239.

Before Purdy, J., Greenwood, Action by Eliza J. Boozer against Loan and Exchange Bank. From judgment for defendant, plaintiff appeals. cite: Rule of construction of contracts: 3 Parsons on Contracts, 613, 619, 633; Bish. on Con., 148, 150, 151, 158. Sub-lessees can take no greater rights than lessees: 13 Ency., 1037; 18 Ency., 637. Where the use or purpose is stipulated, it is restricted to that: 34 Cyc., 1063; 6 Cur.

<p>Carrier — Freight—Issues.—A complaint alleging a carrier unreasonably delayed a shipment of cabbage for one day, without alleging- the delay was negligent, states a cause of action in contract against the carrier for failure to transport with all reasonable dispatch, the issue of reasonable diligence is for the jury.</p>

Before Purdy, J., Laurens, Action by R. J. Franks, administrator of Luther Franks,against Southern Cotton Oil Co. and R. H. Hudgens. From order overruling demurrers, defendants appeal. cite: Intestate was a trespasser: 58 S. C., 80; 63 S, C., 46; 64 S. C., 554. What duty did defendant owe intestate? 57 S. C., 553; 61 S. C., 556; 63 S. C., 53; 64 S. C., 559; 58 S. C., 364; 5 S. E., 371; 3S L. R. A., 573; 40 L. R. A., 533; 42 L. R. A., 288; 43 L. R. A., 148; 60 Am.

<p>On Motion to Dissolve an Attachment on the ground that the cause of action set forth in the affidavit is not the cause of action alleged in the complaint, the complaint may be considered with the affidavit, although not verified nor made a part of the affidavit. So considering the papers in this case, by a liberal construction, they support a cause of action for damages for breach of a contract as set forth in the affidavit and in such action attachment will lie against property in this State owned by non-resident defendant.</p>

<p>Before Purdy, J., Greenville,</p> <p>Action by Elizabeth Langston against John Cothran et al. From judgment for defendants, plaintiff appeals, on the following exceptions:</p> <p>I. “That his Honor, the presiding Judge, erred in allowing the witness, T. O. Cooley, one of the defendants, to testify, against the objection of the plaintiff, as to transactions between the said witness and the deceased, John J. Cooley, said testimony being inadmissible under section 400 of the Code of Procedure.</p> <p>II. “That his Honor erred in allowing the witness, John T. Cooley, one of the defendants, to testify, against the objection of the plaintiff, as to transactions between the said witness and John J. Cooley, deceased, said testimony being inadmissible under section 400 of the Code, and to testify that the said John J. Cooley was ‘in possession’ of the land in dispute at the times designated by the witness, the question of possession being one of law in this case.</p> <p>III. “That his Honor erred in allowing the witness, John C. Cothran, one of the defendants, to testify, against the objection of the plaintiff, to transactions between the said witness and John J. Cooley, deceased, said testimony being inadmissible under section 400 of the Code.</p> <p>IV. “That his Honor erred in admitting in evidence, against the objection of the plaintiff, tax receipts of John J.1 Cooley, deceased, without any proof whatever that they referred to the land in dispute.</p> <p>V. “That his Honor erred in refusing to charge the jury, as requested by plaintiff’s counsel, as follows: ‘That if the jury believe that John J. Cooley went into' possession of the land in question as one of the heirs at law of Hiram Cooley, then he could not as a matter of law hold adversely to the other heirs without giving them unequivocal notice of such claim; and if the jury further believe that he gave no such notice to- the other heirs, then these defendants claiming under him cannot successfully plead the statute of limitations against the claim of the plaintiff, and their verdict should be for the plaintiff.’</p> <p>VI. “That his Honor erred in refusing to charge the jury, as requested by plaintiff’s counsel, as follows: ‘That to constitute adverse possession the party setting up such plea must show that he held the land, claiming it as his own, against all other claimants, and if the jury believe from the evidence that John J. Cooley at any time while cultivating-the land-admitted that he had no- title to it, and did not claim it as his own, then the plea of adverse possession and the statute of limitations must fail and the verdict of the jury must'be for the plaintiff.’</p> <p>VIII. “That his Honor erred in refusing to charge the jury, as requested by the plaintiff’s counsel, as follows: ‘That there is no presumption of law in favor of 'one in possession of land unless he claim it as his own and notify others who may be interested, if , any, that he does so claim it.’</p> <p>IX. “That his Honor erred in refusing to charge the jury, as requested by the plaintiff’s counsel, as follows: ‘That the defense in this case rests entirely upon the theory of adverse possession in-John J. Cooley, for no paper title in John J. Cooley has been shown except the will of Hiram Cooley, which conveys to- John J. Cooley two hundred acres and no more.’</p> <p>X. “That his Honor erred in refusing to charge the jury, as requested- by plaintiff’s counsel, as follows: ‘That if the jury find that the plaintiff has shown a good title to the land, then she is presumed to be the -owner of the land until the contrary be shown.’</p> <p>XI. “That his Honor erred in charging the jury as. follows: Tf John J. Cooley went into possession of the land in dispute before the death of Hiram Cooley and remained continuously in open, notorious possession thereafter for ten years, holding the same adversely to the said Hiram Cooley and the whole world1, and such period of adverse holding had elapsed before the death of the said Hiram Cooley, he thereby acquired good title to> the said land against the said Hiram Cooley and the whole world,’ there being no evidence of any such holding, and so misleading 'and confusing the jury.</p> <p>XII. “That his Honor erred in charging the jury as follows: ‘That if John J. Cooley had acquired title to the said land by such adverse holding at the death of the said Hiram Cooley, the said Hiram Cooley could not defeat it or take the land away from him by last will and testament or otherwise without his consent,’ there being no< evidence of any such state of facts in the case.</p> <p>XIII. “That his Honor erred in charging the jury as follows : Tf the said John J. Cooley had not in any way acquired title to the land in dispute at the time of the death of the said Hiram Cooley, and if the said Hiram Cooley did not give the same to’ him by last w-ill and testament, and did not give it to any one else by his last will and testament, then, under the 10th clause of the last will and testament of Hiram Cooley, it became the duty of his executor to. sell the same and apply the proceeds of sale as therein directed,’ this being irrelevant and having no bearing upon the facts proven.</p> <p>XIV. “That his Honor erred in charging the jury as follows : Tf the said John J. Cooley was continuously in open, notorious and adverse possession of the said tract of land, holding it adversely to all the world, for thirty years after the death of Hiram Cooley, and after his will was admitted to probate, then the law presumes that after such a length of time that the executor of the said will, or some person having authority to carry out the provisions of said will according to law, sold said land as directed' in the will and executed and delivered a deed! to the said John. J. Cooley. The law raises such presumption to quiet possessions of long standing and put an end! to litigation,’ this being in direct contradiction of the facts proven and tending to mislead the jury.</p> <p>XV. “That his Honor erred in charging the jury as follows : Tf said John J. Cooley was in the exclusive open and notorious possession of said land for thirty years after the -death of the said Hiram Cooley, holding it adversely to all the world, he would under such presurñption have good title thereto, and if being so in possession, and after having so acquired title thereto, he conveyed or devised the same to the defendants, or to others from whom the defendants have derived title thereto, your verdict should be for the defendants,’ there being no proof that John J. Cooley ever held the land adversely, but, on the contrary, repeatedly stated that he claimed no title to it.</p> <p>XVI. “That his Honor erred in charging the jury as follows: Tf the said John J. Cooley was in the exclusive open and notorious possession of the land in dispute for twenty years continuously after the death of the said Hiram- Cooley, holding it openly and 'adversely to the heirs at law of the said Hiram Cooley and all the world, the law at the end of the twenty years of such holding presumes that he acquired title thereto from the State and every other person in interest, including such heirs at law. And the law in such case presumes that he acquired title at the beginning of his possession,’ there being no proof of such holding.</p> <p>XVII. “That if the said ‘John J. Cooley acquired title to said land in any manner, and if, after acquiring title thereto, he conveyed or devised the same to the defendants or others through whom the defendants have obtained such title, then your verdict should be for the defendants,’ the testimony showing that John J. Cooley neither acquired nor claimed title to the land.</p> <p>XVIII. “That his Honor erred' in charging the jury as follows: ‘That if the said John J. Cooley claimed the land to known boundaries or.fenced or enclosed the same, and held exclusive, open, notorious and adverse possession of the same to' such fence, enclosed or known boundaries, for the period of time hereinabove stated, he would be entitled to all the land within such known boundaries or extending to such fence or enclosure,’ there being no proof of any such state of facts in the case.”</p> <p>cites: Transactions zvith decedent: Code of Proc., 400; 44 S. C., 546. Request to which there is evidence applicable should be given: 45 S. C., 91; 50 S. C., 161. One in possession of land disclaiming title is not holding adversely: Code of Proc., 102, 103, 104, 105; 14 S. C., 250; 15 S. C., 95; 29 S. C., 161; 40 S. C., 326. A request stating no facts in dispute is not a charge on the facts: 24 S. C., 504; 47 S. C., 522; 60 S. C., 484.</p> <p>cites: Evidence excepted to is not obnoxious to sec. 400 of the Code: 47 S. C., 488; 53 S. C., 18; 37 S. C., 145. Tax receipts are admissible in evidence: 16 S. C., 132. As to title by adverse possession: 48 S. C., 489; 50 S. C., 168; 2 Hill Ch., 512; 14 S. C., 103; 1 Hill, 222; 26 S. C., 608; 48 S. C., 282. As to grant by presumption: 48 S. C., 489; 50 S. C., 168; 2 Hill Ch., 512; Cheves Eq., 57.</p>

Before---, J., Clarendon,-. Action by W. M. Lewis against Atlantic Coast Line R. R. Co. From Circuit order affirming judgment of magistrate court, defendant appeals.

Before Gage, J., Florence, Action by R. Keith Charles against Atlantic Coast Fine R. R. Co. From Circuit order, affirming judgment of Magistrate R. S. Smith, defendant appeals. cite: It is error to admit parol evidence of contract in writing to purchase goods: 2 Bail., 324; 1 Bail., 542; 1 Speer, 192; 68 S. C., 101; 4 Rich., 241; 2 Brev., 466; 4 Speer, 78; 2 Rich., 144; 6 S. C., 72; 13 S. C., 397; 21 S. C., 429; 22 S. C., 198; 35 S. C., 312; 59 S. C., 590; 43 S. C., 95; 52…

Before-, J., Clarendon,-. Action by S. R. Venning against Atlantic Coast Line R. R. Co. From Circuit judgment affirming judgment of Magistrate S. M. Youmans, defendant appeals. The following are the statutes referred to and considered in the opinion: Code of 1902, Sec. 1710.

<p>B.efore Prince, J., Spartanburg,</p> <p>Action; by John Free, administrator of Jules Free, against Southern Ry. From order of nonsuit, plaintiff appeals.</p> <p>cites: As to construction of N. C. Statutes: 70 S. C., 256. Issue of contributory negligence is for jury: 75 S. C., 73; 60 S. C., 9. Motion for nonsuit should not be reinforced by additional ground after trial: 54 S. C., 226; 22 S. C., 560; 35 S. C., 609; Voorhees’ Code, 380(g).</p> <p>cite: N. C. Statute should not have been set up by reply: Code of Proc., 163, 174; 66 S. C, 91. Statute of another State can only be proved by printed volume: 70 S. C., 254. Courts of one State will not enforce a statute of another State dissimilar to that of its own: 20 Am. St. R., 461; 22 Am. St. R., 803 ; 73 S. C, 215; 4 R. R. A., 814; 26 Am. R., 742; 39 Am. R., 244; 10 Ohio St., 121; 18 R. R. A., 804; 98 Mass., 85. Rapid rate of speed is not evidence of negligence: 4 Thomp. on Neg., sec. 4508; 55 S. W. R., 744; 25 S. W. R., 943; 5 S. C, 221; 7 S; C., 402. Motion to be permitted to add additional ground of nonsuit after trial should have been granted: 51 S. C, 419; 9 S. C., 330. Plaintiff was .guilty of contributory negligence: 145 U. S., 418; 36 S. E., 118; 48 S. E., 212; 133 N. C, 610; 113 N. C, 558; 72 S. C., 392; 74 S. C, 419; 75 S. C., 487.</p>

<p>1. Charge — Contributory Negligence. — Construing the instructions as to the burden of proof of contributory negligence as a whole, it is held the jury could not have been misled into understanding the primary inquiry to be whether defendant had made out the defense of contributory negligence.</p> <p>8. Ibid. — Negligence.—Portion of charge here complained of held not susceptible of the construction, plaintiff could recover unless defendant assumed and discharged the burden of proving by the preponderance of the evidence, the injury to have been due entirely to her negligence.</p> <p>3. Carrier — Passenger.—Instruction here did not impose on carrier any greater burden than the duty to take notice of, and to assist, those passengers who are unable to alight in safety without assistance. Duty of carrier to passengers in alighting from cars stated.</p> <p>4. Punitive Damages. — The use .of the word “carelessly” in stating the basis of punitive damages was not fortunate, but from all that was said, the jury could not have failed to understand recoveries for punitive damages could only be had for wilful or wanton misconduct. Evidence by the passenger, that when alighting encumbered with parcels, she missed the stool, because improperly placed, the conductor did not assist her, but when she fell he laughed at her, is some evidence of wanton misconduct.</p>

Before Míímmingbr, J., Edgefield, Action -by the Edgefield Mfg. Co. v. Maryland Casualty ’Co. From judgment for plaintiff, defendant appeals. cite: As to search for lost paper: 37 S. C., 285; 26 N. E., 640. Depositions de bene esse were improperly ruled out: 38 S. C., 385; 30 S. C., 153; 60 S. C., 201; 57 S. C., 1; 65 S. C., 1, 502; 74 S. C., 575. As to the construction of the policy: 56 N. W. R., 332; 18 At. R., 614; 45 N. W. R., 703; 24 S. E. R., 334; 27 Pac.

Before Memminger, J., Richland, Action by J. B. Cooper against Seaboard Air Line Railway. From judgment affirming judgment of magistrate court, defendant appeals. cite: One element of interstate commerce is transportationr 9 Wheat., 189; 17 Fncy., 62; 16 Pet., 539. The proviso does not relieve the burden on interstate commerce as damage to freight. Murphey v. Ga. Rd.: 75 S-. C., 276. cite: Doubts are resolved in favor of constitutionality of statute: Cool. Con.

Before Gary, J., Anderson, Indictment against J. Allen Emerson for murder of Thomas F. Drake. From sentence of imprisonment for life, defendant appeals. The former cite: As to mitigation of homicide of paramour of daughter by father to manslaughter: 2G Tex. Ap. Cas., 56; 50 S. C., 405; 5 L. R. A., 809; Whar. on Horn., sec. 188; 55 S. C., 32. If one not without fault in bringing on a difficulty, abandon the conñict, his right to self-defense survives: Clarke’s Crim.

<p>Before Prince, J., Fairfield,</p> <p>Action by Benj. IT. Yarborough against Southern Ry. From judgment for plaintiff, defendant appeals.</p> <p>No citations.</p> <p>cite: 24 S. C., 369.</p>

Before Watts, J., Greenville, Action by Anderson Forrest against S. L. McBee.

Before Gage, J., Barnwell, Fall Term, 1907. Action by Lois Cloy, and her husband, D. R. Cloy, against the Western Union Telegraph Co. From judgment for plaintiff, defendant appeals. cites -.Telegraph companies are only liable for damages naturally resulting from the negligent act, and in the contemplation of the parties: 53 S. C., 410; 73 S. C., 520; 76 S. C., 301.

<p>Before Watts, J., Charleston,</p> <p>Action by Catherine E. Roberts, in her own right and as administratrix of Mary Crum Herron and William Herron, against Mary Ella Herron, and herself and Joseph A. Purcell as executors of Wm. A. Herron. From Circuit decree, defendants appeal.</p> <p>cites: 6 Ency., 901, 902; 4 Jones, 249; 2 Jar. on Wills, 506, 518; 1 Plill Ch., 320, 357; 26 S. C., 472; 2 S. C., 72; Ferae on Rem., 738; 1 Rich. Eq., 321; 13 S. E. R., 936; 10 S. C., 376; 23 S. C., 510; 6 Wall., 476; 1 Feme on Rem., 24; 2 Jar. on Wills, 520-1; 3 Jar. on Wills, 704; 4 Kent. Com., 125; 6 Ency., 400; 2 Red. on Wills, 664; Moorman’s Manual, 22; 26 S. C., 467; 29 Ency., 467; 50 S. C., 208.</p> <p>cite: 51 S. C., 271: 1 Strob. Eq., 43; 1 Hill Ch., 358; 2 Coke. E. K. B., 19; 1 Eq. Cas. Abgd., 195.</p>

<p>Limitation or Actions — Pleadings—A judgment cannot be revived by summons to show cause served after ten years from date of original entry. The return to the effect that the time within which the judgment could have been revived has long since expired, together with the allegations in the petition, is a sufficient plea of the statutory bar.</p> <p>Mr. Justice Gary dissents.</p>

Before ITydrick, J., Berkeley, Action by R. P. Tucker against Atlantic Coast Lumber Co. The Circuit decree is: “This is an action for the specific performance of a contract for the sale of real estate. “The defense is rested mainly upon two grounds: First: That the contract was without consideration, except the mutual covenants therein contained, and that it was abandoned by Jantunen, with whom it was made, who, it is alleged, refused, soon after its execution, to comply…

Before Gary, J., Horry, fall term, 190-5. Action by Virginia D. Young et al. against Donald T. McNeill. From judgment for plaintiff, defendant appeals. Mr. Scarborough cites: Admission of ancient documents: McGuire v. Blount, U. S., Rep., Act. Tenn., 1905; 3 Wig on Ev., sec. 2145. Right to be heard by counsel: 55 G., 466; Con., art. I, sec. 25; 7 Amd. U. S. Con. Defendant may show paramount outstanding title without connecting himself with it: 5 Rich.

<p>Before DanTzlER, J., Fairfield,</p> <p>Action by V. P. Randolph & Co., Inc., against D. V. Walker. From judgment for plaintiff, defendant appeals.</p> <p>Mr. W. D. Douglass cites: Whether action is in contract or tort cannot be determined by inspection of pleadings: Pom, R. & R., secs. 573, 799. Claim is not barred: 53 S. C., 175; 44 N. Y., 63; 43 N. Y., 83. Action is in contract and counter claim should have been allowed: 36 Kan., 51; 153 U. S., 616. There being no proof that plaintiff was entitled to the possession of any particular money, nonsuit should have been granted: 44 N. Y., 445; 16 N. Y., 351; 36 Ency., 766; 39 L. R. A., 845; 6 Rich. L., 171; 10 Rich. Eq., 557; 1 McM., 431; Pom., sec. 558.</p> <p>cite: It was proper to direct the verdict under proof: 4 Am. & Eng. Cas., Ann., 980, and note; 7 Current L., 1150; 75 S. C., 301. Section 2312, Code ip02, is repealed by: Acts 1907, 613; Bish. Written- E., sec. 177; End. Int. of Stat., 479, 480. The action is in tort and no counterclaim is admissible: 36 N. Y., 191; 48 S. C., 433; 1 Esp., 378; 35 N. P., 135, 139-6; 1 Tidd. Pr., 4, 5; Steph. on PL, 48; 1 Burr., 452; 2 Hill, 323; Bacon. Abrid. Title Trover D.; 3 Hill, 253; 7 Current L., 848; 11 S. C., 329; 1 Chitty on PL, 151-2; 11 Johns., 479; 43 S. C., 460; 57 S. C., 498; 46 S. C., 230; 11 S. C., 328; 51 S. C., 498; 40 S. C., 538; 38 S. C., 86; 18 S. C., 312; 2 McC., 386; 1 McC., 206, 211; 3 Bail., 137; 40 S. C., 538; 28 S. C., 80; 45 S. C., 688; 53 S. C., 137. If tort be alleged, counterclaim in tort cannot be set up: 58 S. C., 244; 21 S. C., 289; 20 S. C., 259; 57 S. C., 498; 11 S. C., 328; 5 Rich., 237. If action be in contract, defendant cannot set up as a counterclaim a gambling transaction prohibited by statute: 21 S. C., 389; 25 S. C., 513; 84 N. Y., 272; 72 S. C., 463; 1 Brev., 495; 1 McC., 428; 1 Tidd’s Pr., 663-4; 1 Chitty PL, 599; 37 N. Y., 399; 22 N. Y., 491; 11 S. C., 337; 43 S. C., 63; 89 Am. D., 484; 25 Ency., 575; Pom. Code Rem., secs. 788, 775, 785; 90 N. Y., 293; 20 S. C., 258. The Statute sec. 2332 of Code 1902 gives no right of defense or counterclaim: 2 Sandf., 436; 8 Ency., 1022, note 1; Waterman Set-off, 27; 22 A. M. R., 432; End. Int. Stat., 468; 1 Bail., 315: 1 Speer, 383; 1 Hall, 335; 6 Com., 20; 56 N. PI., 155; 3 Des. Eq., 125; 21 S. C., 41; 58 S. C., 244; 153-U. S., 318. Statutory remedy must be pursued: 153 U. S., 318; 58 S. C., 244; Cool. Torts, 653; 23 U. S., 367; 4 Johns R., 193; 6 Mass., 44; 56 N. IT, 155; Sedg. Stat. and Con. E-. 30, 221, 243, 263; Bish. Writ. L., sec. 249; End. Int. of St., secs. 113, 471; Black Int. of E., 130, 148; 1 Strob. E., 82; 1 N. & McC., 22; 73 S. C., 36; 50 S. C., 537; 71 S. C., 33. Counterclaim does not allege the claim was due when action commenced: 20 S. C., 535; 3 Tenn. R., 186; 3 M. & W., 442; 1 Tidd’s Pr., 663; 2 Pas. on Con., 737, 743, 742: 7 Wait’s A. & D., 522, 480; 4 McC., 210; 3 McC., 249; Water on Set-off, sec. 66, 652; Mon. Set-off, 35; Wait’s N. Y. Ann. Code, 268; 30 S. C., 126. If defendant had no right to sue on his counterclaim he could not set it up: 2 Pars. Con., 742, 743, 737; 25 Ency., 572; 45 Am: Dec., 133; 12 Am. D., 153 ; 30 Am. D., 681; 90 Am. D., 24; 30 S. C., 127; 7 Wait’s A. & D., 522; 1 Chitty PI., 599; 89 Am. D., 483; McC., 349; 57 S. C., 151. Counterclaim cannot be set up against a trust relation: 108 Perm. St., 373; 99 Id., 376; 9 Id., 475; 66 Id., -375; 1 Rawle, 330; 7 Wait’s A. & D., 484. Counterclaim is not a legal demand: 7 Wait’s A. & D., 475; 35 Ency., 513; 1 Bail., 315; Waterman Set-off] 37. If defendant received money for unlawful purpose he cannot take advantage of it: 45 S. C., 373; 3 Des. Eq., 133.</p>

<p>This case is ruled by Charles v. R. R. Co., ante, 36.</p>

<p>Before Purdy, ]., Colleton,</p> <p>Action by A. Von Relie against Atlantic Coast Riñe R. R. Co. From order of Circuit Court affirming judgment of Magistrate J. E. Bryan, defendant appeals.</p>

<p>Before Aldrich, J. Greenwood,</p> <p>Action by Greenwood Granite and Construction Co. against Ware Shoals Manufacturing Co. Prom order of reference plaintiff appeals.</p> <p>Messrs. Grier and Park cite: Code of Proc., 374, 393, 393; 17 S. C., 543; 43 S. C., 301; 54 S. C., 157; 73 S. C., 540; 35 L. R. A., 67.</p>

Before Aldrich, J., Union, Action by Joseph Sanders and W. Bowler Bobo, as County Commissioners of Union County, and S. G. Howell against J. Fincher Belue and T. J. Betenbaugh. From order refusing temporary injunction both parties appeal. cites: What is a public officer S3 Ency., 322, 324, 344, 347, 386, 391, 410; 2 Black. Com., 36; Con., art. Ill, sec. 26; Code 1902, 583, 785, 786, 792; 4 Rich., 146.

Before Hydrick, J. Clarendon, Action by Aaron Francis et al. against John Francis et al. From order dismissing complaint, plaintiff appeals. cite: Declarations of the owner of land in possession against his interest are admissible against him and his grantees: 18 S. C. 489; 2 McC., 457; 20 S. C., 514; 7 Rich. L., 514; 57 S. C., 467; 1 Ency. of Ev., 510, 525, 532. cite: Respondents are purchasers for value without notice of equity of appellants: 2 Pom.

Before Gage, J., Darlington, Spring Term, 1906. Action by IT. IT. Windham et al. against George C. Howell et al. From judgment on Circuit, defendants, George C. Howell and Douisiana Howell, appeal. Mr. Woods cites: Under the pleadings the issue of title zvas raised, and that should have been submitted to the jury: 23 S. C., 392; 28 S. C., 530; 31 S. C., 265; 36 S. C., 561; 52 S. C., 236; 54 S. C., 359.

<p>Before Purdy, J., Laurens,</p> <p>Action by Georg-e W. Brooke against Laurens Milling Co. From judgment for defendant, plaintiff appeals.</p> <p>cite: Defendant cannot now plead inferiority in grade after accepting corn: 34 S. C., 508; 37 S. C., 7. Parol evidence should have been admitted to explain the phrase, “West Nashville Public Elevator weights to be final”: 79 S. W., 363; 3 Current Law, 1348-9; 5 Current Law, 1322. Certificate of weights could not be varied by parol: 9 Cyc., 763. Difference betzveen contract price, with freight and expenses added, and market price is measure of damages: 68 S. C., 363; 37 S. C., 7; 10 S. C., 97; Ghev., 153.</p> <p>cite: Defendant had the right to set up by counterclaim the difference between the contract price and the true value: 74 S. C., 202; Kaufman Case, 37 S. C.; 43 S. C., 257.</p>

Before Prince, J., Greenwood. Petition in Probate Court by Luvinia Romans for letters of administration! upon estate of Daniel Romans. From Circuit decree, affirming judgment of Probate Court granting her letters, Henrietta Romans appeals. cites: 10 Cl. & F., 534; 74 S. C., 407; Acts of 1865 and 1872.

Petition in the original jurisdiction oí this Court by Ware Shoals Mfg. Co. for injunction against A. W. Jones, Comptroller General. cites: Can the Court grant an injunction in this case?

Before PuRDY, J., Berkeley, Action by R. L- Montague and R. P. Tucker against James R. Hood.

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

Before Gary, J., Greenville, Spring Term, 1907. Action by Thomas M. and Caroline Rochester against J. A. Bull. From judgment for plaintiffs, defendant appeals. Duty of driver of automobile on highway: Acts 1905, 966. cite: Tine charge states correct principies, and if a more speciñc statement were required it should have been requested: 63 S. C., 559; 70 S. C., 492; 71 S. C., 60.

Before Gage, J., Hampton, Indictment against J. Henry Pope, Jr., for murder. Frame sentence on verdict, defendant appeals. cite: No negligence being chargeable to defendant, he zvas entitled to process: 2 Bay, 62. Defendant was entitled to continuance notwithstanding agreement of solicitor to admit what he would swear to: 4 Ency.

Relation- by Edward Ehrlich in the original jurisdiction of the Court for mandamus toi -compel R. H. Jenning's, State Treasurer, to exchange certificate of stock for coupon bond. cites: Mandamus is the proper remedy: 48 S. C., 5; 38 S-. C., 322. Coupon bond payable to bearer is a negotiable instrument: Tied on Com. Pa., Sec. 473; 2 S. C., 348; 103 U. S., 318; 64 Ala., 128; 12 S-. C., 200. A stolen negotiable bond is good in hands op bona ñde holder: 2 Wall., 110'; 12 S-.

Proceeding 'by Attorney General J. Fraser L,yon on behalf of the State by petition and rule issued by Mr. Justice Gary, returnable to the Court, against Riddock & Byrnes, E. W. Blitch and the Charleston Consolidated Railway Gas and Electric Company, to enjoin the maintenance of a nuisance. Petition. The first paragraph of the petition alleges the copartnership of Riddock & Byrnes and the employment by them of E. W. Blitoh.

Before DanTzeER, J., Cherokee. Action by Armour & Co. ag-ainst M. L. Ross and W. A. Turner. From judgment for defendants, plaintiff appeals. cites: Defense of innocent purchaser zvithout notice cannot avail defendants: 1 Bay., 299; 2 Bay., 505; 4 Strob., 427 yl McC., 1; 10 Rich., 83; 12 Rich., 451; 27 S. C., 134; 11 How., 209; 22 Am. Dec., 220; 59 Am.

<p>Before Watts, J., Greenville,</p> <p>Action by A. K. Park and Leila G. Park against Southern Railway Co. Prom judgment for plaintiff, defendant appeals..</p> <p>cites: Contract of defendant was to forward baggage received, and having done that, it is performed: 12 A. M. St. R., 661; 74 A. M. Dec., 151. Articles in trunk belonging separately to two, they should not have joined as plaintiffs: 24 S. C., 39. Checks are mere receipts: 3 Hutch, on Car., secs. 1301, 1302; 4 Elliott, sec. 1655; 12 A. M. St, 661; 21 S. C., 35; 36 S. C., 117.</p> <p>cite: When a carrier takes up the check of a connecting carrier and issues its own, it is liable for the baggage unless it then limited its liability: 7 Rich., 162; 3 Hutch, on Car., 1296-7; 10 Rich., 382; 19 S. C., 353; 21 S. C., 35; 106 N. Y., 206; 76 S. C., 173; 133 U. S., 387; Arthur v. Tex. & Pac. Ry. Co., U. S. Supreme Court, 25 February, 1907.</p>

<p>Before Gary, J., Greenville,</p> <p>Action by Batson & Walsh against South Carolina Mutual Insurance Co. Prom Circuit order reversing judgment of Magistrate Samuel Stradley, defendant appeals.</p> <p>cites: 39 S. C., 484; 54 S. C., 371; 24 Fed. R., 685; 18 Fed. R., 14; 33 N. W., 626.</p> <p>cite: Piliott on Ins,, 258, 335, 347, 352; 57 N. E., 991; 80'Mo. App., 419; 51 S. C., 540; 88 R. A., 116; 71 N. W., 388; 60 N. W., 125; 46 N. Y. Supp., 1016; 50 Pac., 626; 61 Mo. App,, 323; 22 N. E., 954; 68 Md., 465; 12 Fed., 465; 11 N. W. R., 269; 63 S. C, 192; 2 N. E. R., 763; 2 R. R. A., 786; Nib. on Mut. Ben. Sac., 392, 408, 409; 31 Fed. R., 184; 12 West., 92; 30 Minn., 406 ; 47 Mich., 434; 48 Conn., 98; 36 Kan., 60; 12 Fed. R., 465; 20 Ill., 595; 23 Ill. App., 341; 42 Hun., 252; 31 Fed. R., 189; 61 Tex., 300; 2 R. R. A., 784; 8 R. R. A., 113; 40 Kan., 142; 55 Hun., 574; 51 Vt., 613; 73 Wis., 507; 52 Hun., 255; 11 Page, 396; 5 N. Y. Supp., 837; 47 Mich., 424; 36 Kan., 760; 91 Ind., 84; 25 N. E., 642; 51 S. C., 540; 36 S. C., 265; 37 S. C., 56; 29 S. C., 578; 70 S. C., 295; 52 S. C., 224; 54 S. C., 799; 55 S. C., 589; 42 S. C., 14; 43 S, C., 26; 70 S. C., 75; 31 Fed. R., 184; 20 Wall., 445; 6 Gray, 174; 3 Story, 800; 16 N. Y., 112; 104 Ind., 133; 31 Mich., 458; 28 Mo. App., 463; 51 How. Pr. N. Y. Sup, Ct, 92.</p>

Before Mbmminger, Spartanburg, Two actions: First, by George C. Bishop against Valley Falls Mfg. Co.; second, by C. B. Nolen against same. Both plaintiffs and defendant entered into the following agreement to arbitrate the issues raised by the pleadings in the respective actions: “State of South Carolina, County of Spartanburg. “Whereas, Geo.

Before Hydrick, J., Sumter, Action by Robert Muldrow Cooper and Mary Jane Petrie against Francis Pelot Cooper et al. The Circuit decree is: “This is an action for the partition of the tract of land described in the complaint, and incidentally for the construction of the will of George William Cooper. “Trial by jury was duly waived by consent of the attorneys for all parties. “The original will is in the handwriting of the testator, and the word ‘our/ in the paragraph…

<p>Before DanTzlER, J., Dancaster,</p> <p>Action by John W. Elms against Southern Power Co. and James P. Rosemon. From Circuit order transferring case to another county for trial, plaintiff appeals.</p> <p>Foreign corporation does not lose its. identity by becoming domesticated: 161 U. S., 645; 64 S. C., 143, 168; Dill, on Rem., 97; Boone on Corp., 32; Clark on Corp., 74; 13 U. S., 519. Court acquired jurisdiction of defendant by answer: 71 S. C., 95; 69 S. C., 278; 72 S. C., 481; 70 S. C., 503: 35 S. C., 372; 57 S. C., 164; 64 S. C., 201; 43 S. C., 186, 381; 46 S. C., 9; 62 S. C., 293; 48 S.' C., 351; 46 S. C., 82; 20 S. C., 93; 35 S. C.', 372. Service of affidavit by mail five days before hearing zvas not sufficient: Code of Proc., 403, 411, 412; 12 S. C., 562.</p> <p>cite: As to jurisdiction of corporations: Code of Proc.., 144, 147; 7 En-cy., 694; 36 S. E., 703, 750, 1024; 82 111., 493; 15 111., 436; 25 S. E.. 283; 10 Rich., 512; 54 S. E., 657, 218. If Court has no jurisdiction of subject-matter, it should not try the case: 25 S. C., 385; 28 S. C„ 313; 54 S. E., 218, 657; 53 S. C., 118. Not necessary to serve affidavits: Code of Proc., 144 to 147; 54 S. C., 368; 24 S. E., 308. Case must be tried in county where defendant resides: 11 S. C., 122; 25 S. C., 385; 24 S. C., 392; 28 S. C., 313; 54 S. E., 218, 657.</p>

<p>Amending Complaint — Damages.—Order requiring plaintiff to amend his complaint by stating with particularity and certainty, by what precise act, in what items and how and in what way plaintiff has been damaged, construed not to require him to allege special damages or evidentiary matter, but to state the particular acts and circumstances out of which his damages arose.</p>

<p>New Couxty. — The Govehnoe by appointing a commission to ascertain if the requirements of the Constitution as to area, wealth, population, etc., have been met, does not by such act adjudge that the proposed new county is not the same as that voted on within four years previously, and he or his successor at any time before election ordered may adjudicate this question.</p>

Before J. E. McDonald, special Judge, Barnwell, Action by M. E. Pope et al. against E. E. Patterson.. Held: at least by the clearest implication, that the power of sale therein given might have been exercised during the joint lives of the grantor and his wife. “At page 495 of the report, it is said: ‘During the life of the grantor he was to have control of the entire income of the property to be used by him in the support and maintenance…

<p>Petition in the original jurisdiction of this Court by H. E. Watts for mandamus against John J. Cain, B. M. English and G. W. Taylor, as the County Dispensary Board for Richland County. •</p>

Before Memminger, J., Edgefield, Action by Eliz. J. Bussey., admx. of John C. Bussey, against Charleston and Western Carolina Railway. Rrom judgment for plaintiff, defendant appeals. cite: Knowledge of. a superior officer of the violation of a rule does not effect its abrogation: 37 S. E. R., 439; 22 S. E. R., 836; 45 S. E. R., 276; 20 Ency., 108; 1 Dab. on M. & S., 516; 12 S. E. R., 179. Plaintiff must show he was free from fault: 57 S. C., 298; 58 S. C., 417.

Before DanTzlER, J., Greenville, Action by Si O. Townes, trustee of the bankrupt estate of M. B. Alexander against Stultz & Bauer. From Circuit decree, defendants appeal. cite: When preferences are voidable: 64 S. C., 457; 69 S. C., 23; 97 U. S., 80; 102 Fed., 735. This is an action in equity and this Court may review the facts: 56 S. C., 154; 55 S. C., 198; 67 S. C., 402. cite: Q'uestiom of fact cannot be reviewed by this Court in this case: 70 S. C., 478; 67 S. C., 69.

<p>Before Purdy, J., Colleton,</p> <p>Action by W. J'. Drawdy, executrix, against Atlantic Coast Line R. R. Co.</p> <p>From order of nonsuit, plaintiff appeals.</p> <p>The two first named firms cite: 58 S. C., 338; 53 S. C., 134; 47 S. C., 381; 47 S. C, 110; 75 S. C., 309; 59 S. C., 439; 5 S. C., 334; 63 S. C., 515; 35 S. C., 59; 19 S. C., 34; rvj s ai O co CO CO r co Ü <2 £0 03 o o t/i xrx O CO CO CO</p> <p>Mr. Pitssimons cites: 53 S. C., 597; 57 S- C., 249; 44 S'. C., 315; 19 S. C., S3; 21 S. C., 466; 33 S. C., 198; 29 S. O., 318; 34 S. C., 450'; 42 S. C., 1.20; 57 S. C., 435; 45 S. C., 278; 23 S. C., 289; 29 S. C., 96; 44 S. C., 315; 46 S. C., 215; 51 S. C., 301; 64 S. C., 316; 60 S. C., 17; 58 S. C., 494; 65 S. C., 430; 75 S. C., 390; 74 S. C., 419; 72 S. C., 237; 55 S. C., 483; 72 S. C., 264; 58 S. C., 247, 494; 55 S. C., 389; 72 S. C., 389; 76 S. C., 368; 34 S. C., 444; 57 S. C., 211; 7 S. C., 402; 114 U. S., 615; 80 Mo., 335; 7 Eney., 435, 436, 438; 65 S. C., 232; 63 S. C., 271.</p>

Before J., Charleston, Action by Lizzie Wilson, administratrix of Wm. Wilson, against Virginia-Carolina Chemical Co. From judgment for plaintiff, defendant appeals. Mr. Hyde cites: Danger was obious and have been known by deceased: 71 S. C., 53; 75 S. C., 489. Parties at zwrk were fellow'-servants and question zuas for Judge: 75' S. C., 489; 71 S. C., 53; 51 S. €., 79; 56 S. C., 446; 78 S. C., 864, 837; 57 S. C., 896.

Before Princb J., Lexington, Action by J. M. Thompson against Seaboard Air Line Ry. From judgment for plaintiff, defendant appeals. cite: If there zvm no negligence in running the train, defendant was not liableas defect in bridge did not cause the injury: 57 S. C., 433. Oral argument.

Before Purdy, J., Abbeville, Action by Cobb & Seal Shoe Store against .¿Etna Insurance Co. From judgment for plaintiff, defendant appeals.- cite: The corporation cannot maintain a suit on this policy: Cook on Corp., 709; 13 Mass., 406; 140 U. S., 304; 94 Ga., 104, 289. Breach of iron safe clause avoids the policy: 151 U. S., 452; 1 May on Ins., sec. 156; 98 Ga., 754; 128 Ala., 451; 56 S. E., 506; 60 S'. W., 661; 90 Va., 290. Invoices do not constitute cm inventory: 56 S-.

<p>Before Klugh, J., Chesterfield,</p> <p>Action by C. P. Morrison against Mutual Benevolent Association of Chesterfield County. From judgment for plaintiff, defendant appeals.</p> <p>cite: Forfeiture must be strictly construed: 5 F. R. A., S08, notes; 1 R. R. A., 561, notes; 9 L. R. A., 189, notes; 2 R. R. A., 118, notes; 52 111., 53; 55 111., 213; 5 Pick., 76; 10 Pick., 13; 1 Mass., 330; 15 Johns., 278; 3 Kent Com., 261; 32 N. Y., !0'5; 52 Me., 336; 10 W. R., 339. There was evidence tending to show zvaiver: 1 S. C., 21; 1 May on Ins., secs. 160 to 367; 29 Barber, 552; 16 S. C., 79.</p>

<p>Magistkate. — On Appeal from Circuit Court in case appealed from magistrate court, findings of fact by Circuit Court are not reviewable here.</p>

<p>Before Watts, J., Greenville,</p> <p>Action by C. E. Graham against W. W. Burgiss. From judgment of the plaintiff, defendant appeals.</p> <p>cite: Authority of an officer will not be presumed from an act: SI Ency., 855, 859. No' evidence as to damages: 26 Ency., 859. Specific performance on contract of sale of stock will not be enforced except tvhen it has a special value: 2 Thomp. on Carp., secs. 2435, 2728; 32 S. C., 203; 41 S. C., 349. Interest only due on each payment after due: 29 $. C., 596; 66 S. C., 379.</p> <p>cites: Defendant cannot now say plaintiff has no title: 58 S. C., 269. Possession is presumptive ozvnership: 29 S. C., 597. Contract is an actual sale: 24 Ency., 1051, 1068, 1120. Smith Mer. Law, sec. 599. Vendor may recover price in executory contract: 24 Ency., 1119, 165; Mass., 310; 100 U. S., 128; 17 L. R. A., 177; 74 Am. Dec., 79; 38 Am. St. R., 395; 18 Am. R., 313.</p>

<p>Debtor akb Creditor — Bank.-—-If one creditor and a bank, also a creditor, and their debtor agree that debtor shall sell his stock of goods and the proceeds should be applied, first to certain notes held by the bank, endorsed by the creditor, and the balance prorated between an overdraft due the bank and a debt due the creditor, the bank cannot escape its promise to so apply the money, if it came under its control; but where the debtor sold the goods and deposited the money in bank in his name — neither the bank nor the creditor having any interest in, or control of, or lien upon the goods — the fund never came under its control and it is not liable to the creditor for the fund not being applied as agreed upon.</p>

<p>Master and Servant — Fellow-Servant—Constitutional Law. — The engineer on a freight train and a brakeman thereon are fellow-servants. The rules in evidence in this case do not show the engineer was a superior officer or agent to the brakeman or that he had the right to control or direct his services within the meaning of sec. IS of art IX of the Constitution. Duties imposed by law on the master and rule for ascertaining who are fellow-servants stated.</p>

<p>Before Watts, J., Oconee,</p> <p>Action by Stephen Baldwin against Postal Telegraph Cable Company. From judgment for plaintiff, defendant appeals.</p> <p>This case was tried on Circuit and in this Court with Voyles v. Postal Telegraph Cable Company, and one argument in both cases. Synopsis of the arguments are printed in the Voyles’ case.</p>

Before Aldrich, J., Abbeville, Action by J. S. Bowie against Western. Union Telegraph Company. From judgment for plaintiff, defendant appeals. Mr. Pvans cites: Plaintiff is bound by the measure of damages applicable between the sender and defendant: 71 Ga., 760; 79 Me., 493; 75 S. C., 342. Selling at a profit is special damages, and should be alleged: 40 S. C., 524; 71 S. C., 86; 18 Eng.

<p>Before Watts, J., Oconee,</p> <p>Action by Stephen Baldwin against Postal Telegraph Cable Company. From judgment for plaintiff, defendant appeals.</p> <p>Mr. Carey cites-: In a suit for wilfulness verdict for actual damages should not be given in absence of proof of wilfulncss: 61 S. C., 186; 64 S. C., 495; 68 S. C., 98; 69 S. C., 333; 71 S. C., 104. In absence of proof of wilfulness, nonsuit should have been granted: 70 S. C., 538; 71 S. C., 153. And because plaintiff cannot avoid his contract under proof here: 71 S. C., 153. And because action can only be maintained by grantee or devisee of deceased: 71 S. C., 95; 58 S. C., 340'j Gen. Stat., 3859. Verdict should have been directed for defendant, because plaintiff made no proof of permit having been obtained by fraud: 74 S. C., 559.</p> <p>cite: Wilfulness is no essential part of a cause of action for trespass, but merely a circumstance to enhance damages: 31 Ency. P. & P., 798; Sut'h. on Dam., 1010, 1011, 1015. Objection that action did not survive to executrix should be taken by demurrer or answer: Code of Proc., 168, 169; 69 S. C., 40; 72 S. C., 39; Code 1902, sec. 2859. The action can be maintained by executrix: 40 S. C., 397; 2 Brey., 28; 59 S. C., 577; Beach on Daw of Ry., sec. 794; 61 Wis., 378. Condemnation statute does not apply to foreign corporation: 71 S. C., 99. Nor where right to compensation is disputed: 62 S. C., 52; 59 S. C., 377; 38 S. C., 308; 42 S. C., 431.</p>

Before Mrminger, J., Lexington, Action by Lula Gunter against Martha Fallow and Burt Fallow. From judgment for plaintiff, defendants appeal. Mr. Asbill cites: Plaintiff must show perfect title or trace to common source: 71 S. C., 327. cite: Findings by trial court here will not be disturbed if there is evidence tending to support them: 58 S. C., 1; 45 S. C., 107, 33, 494; 19 S. C., 604. • Position not taken in trial court cannot be raised here: 3 Cyc., 243; 47 S:.

<p>Petition in the original jurisdiction of this Court by Chas. W. Birchmore for writ of certiorari against State Board of Canvassers, County Dispensary Board for Kershaw County, W. A. Schrock, John McSmyrl and John McSmyrl Distilling Co.</p> <p>cite: The County Dispensary Board cannot maintain this protest: 43 S. C., 11. Managers appointed according to law: 73 S. C., 398. Clerk’s certificate is a sufficient registration certificate: 76 S. C., 574, art. II, sec. 4, subds. b. c. Con.; 55 S. C., 90'; Code 1902, 181, 202, 206,190, 191,193, 213; art II, secs. 12, 13, 9, 11. Mere irregularities in elections do not make them void unless the number is great enough to affect the general result: 10 Ency., 77C-1; 16 Mich., 311. In elections of this kind the elector has no right to the secrecy of the ballot: Con. 1868, art. VIII, sec. 1; Con. 1895, art. X; art. II, sec. 1; Con. of Ark., art. Ill, secs. 2, 3; Con. of Cal., art. 2, sec. 5; Con. Col., art. VII; Con. Conn., art. 6, sec. 7; Con. Del., art. VIII; Con. Fla., art. VI, sec. 6; Con. Ga., art. II, sec. 1, par. 1; Con. Idaho, art. VI, sec. 1; Con. Ill., art. VII, sec. 2; Con. Ind., art. II, sec. 1-13; Con. Ia., art. II, sec. 2; Con. of Kan., art. IV, sec. 1, Con. 1850; Con. Ky., sec. 147; Con. Da.; Con. of Me., art. II, sec. 1; Con. of Md., art. 1; Con. of Mich., art. VII, sec. 2; Con. of Minn., art. VII, sec. 6; Con. of Miss., art. XII, sec. 140'; Con. of Mo.; art. VIII, sec. 2; Con. of Ma., art. IX, secs. 1-12; Con. of N. C., art. VI, sec. 3; Con. of N. Da., art. V, sec. 129; Con. Ohio, art. V, sec. 2; Con. of Or., art. II, sec. 1; Con. of Neb., art. VII, sec. 6; Con. of Nev., art. II, sec. 3; Con. of N. H., art. II; Con. of N. Y., art. II, sec. 5; Con. of Pa., art. VIII, sec. 4; Con. of Va., art. Ill, sec. 2; Con. S. Da., art. VII, sec. 3; Con. of Tenn., art. IV, sec. 4; Con. of Tex., art. VI, sec. 4; Coo. of Wash., art. VI, sec. 6; Con. of W. Va., art. IV, sec. 2; Con. of Wis., art. Ill, sec. 3; Con. of Wy., art VI, sec. 2; 10 Ency., 562, 518; 90 Wis., 157; Cent. Dig., Vol. 18, 230-1; Bew v. State, 71 Miss.; 88 Ky., 502; 57 S. C., 126; 19 Ency., 488, 489, 490, 491, 492; art. VIII, secs. 5, 7, 8, 11; Con. 1895, art. VII, secs. 1, 2, 3, 4, 5, 6, 7, 8, 10. 12; art. XVI, secs. 1, 2, 3; 1 E. R. A., 483. Qualification of voters in a local option election: 10 Ency., 577, note 2: 19 Ency., 515; 108 Mass., 418; 52 S. C., 126. Provisions of Carey-Cothran act as to election are merely directory and in absence of fraud failure to carry them out is not fatal unless they change the result: 1 K. R. A., 656; 52 S-. C., 298; 153 Ind., 440; 10 Ency., 767, and notes; 768, and notes; 769, notes; 588,and notes; 6 Ency'.,327, and notes; 26 Neb., 514; 86 Ky., 596; Code 1902, 206, 210; 52 S. C., 298. Taking away the secrecy of the ballot does not vitiate an election unless this right is given by Constitution or Statute: Cool. Con. Dim., 910, 922, 911, 778. Bcdlure to comply with confused and ambiguous directions in a statute does not vitiate an election where the act was bona fide and free from fraud or fraudulent design: Cool. Con. Dim., 782-3; 10 Ency., 697; L. R. 10 C. R., 751; 7 S. C., Cand., 247; E. R.' 16 Q. B. Div., 739; 17 Kan., 347; 2 N. S. Wales E. R., 82; 16 R. R. A., 754; 6 Ency., 352; E. R. 10 C. P., 733; 25 Fed., 865; 109 Ga., 183; 20 S. C., 361; 76 S. C., 514. Contestants are estopped because of participation in the election: 61 L. R. A., 325; 49 R. R. A., 353; 30 E. R. A., 394; 58 R. R. A., 394; 20 Ency., 1103, 1107; 96 Am. Dec., 350; 57 S. C., 317; 29 Ency., 1103; Bx parte Smith, 8 S. C.; 23 S. E., R.’, 307; 13 Da. Ann., 301; 10 Ency., 769; 31 Neb., 82; 91 Cal., 432; 11 R. R. A., 534; R. R. 1 Q. B., 433; 16 R. R. A., 754; 73 Ill., 132; 93 Ill., 240; 98 Ill., 632; 32 Ela., 545; 19 S. E. R., 557; 7 Neb., 381; 62 S. C., 1Ó5; 57 S. C., 125; 70 Ill., 25; 72 Ill., 241.</p> <p>No argument furnished Reporter.</p>

<p>1. Master and Servant — Fellow-Servants.—The master is not liable for injury to a servant, a carpenter of mature years and experience, caused by his doing á piece of work in a different way than suggested by the master and with a simple appliance selected by him and a fellow-servant from an adequate supply of suitable material.</p> <p>Koon v. Ry., 69 S. C., 108, distinguished from this ease.</p> <p>2. Evidence. — An affirmative answer of a witness to a leading question in chief giving an opinion cannot have the effect of modifying his statement of the facts in other parts of his evidence.</p> <p>3. Master and Servant-AAttliances. — Master is only required to furnish reasonably safe appliances and not such appliances as may have. been supplied or may have protected from a casualty for which the master was not responsible.</p> <p>4. Punitive Damages. — Whether there is any evidence to support punitive damages should be raised by motion for nonsuit or by request to charge.</p>

Before Ardrich, J., Greenwood, Action by Bromonia Co. against Greenwood Drug Co. From' judgment for plaintiff, defendant appeals. cite: Bvidence may he admitted to support irrelevant allegations: 61 S'. C., 330; 60 S. C., 381; 49 S. C., 456. Bvidence does not vary the contract: 48 S. C., 430. Paper procured by fraud may he contradicted: 20 S. C., 518; 38 S. C., 210; 61 S. C., 82; 2 Hill. 657; 1 McC., 470; 35 Md, 439; 134 Mass., 56; 8 Ency. P. & P., 799, 907.

<p>Before Hydrick, J., Richland,</p> <p>Action by Sarah A. Guignard and Mary E. Maxcy against Agnes M. Flanagan. From Circuit decree all defendants appeal except Agnes M. Flanagan.</p> <p>cites: Deed in fraud of creditors will not be sustained: 43 S. C., 318; 16 S. C., 347; 53 S. C., 489; Rice Eq., 40; 11 Rich., 601; 14 S. C., 154, 337; 3 Rich. Eq., 153; 70 S.,C., 344; 32 S. C., 596. Deed must be construed most strongly against Uriah: 32 S. C., 595; 16 S. C., 334; 11 Rich. Eq., 582; 70 S. C., 34-4. Uriah cannot explain or vary the deed: 17 S. C., 538; 1 Strob., 48. Grantor cannot claim resulting trust to himr self, nor can he attack validity of his own deed: 1 Bay, 461; 2 Dev. on Deeds, secs. 830, 831, 834; 1 John. Ch., 339; 20 S. C., 417. Nor is it a constructive trust: 2 Pom. Eq. Jur., sec. 1044. Nor can deed be reformed after death of grantor for thirty years: 4 Rich. Eq., 313; 2 Dev. on Deeds, sec. 1188; 1 Hill Eq., 242. Lapse of time bars setting aside the deed: 2 McC. Ch., 112; 25 S. C., 408. There zvas no error in excluding evidence that deed based on a good consideration was in fact based on valuable consideration and executed for a different purpose than expressed: 53 S. C., 487; 72 S. C., 410; 2'McC. Eq., 113, 137; 1 McC., 515. Parol evidence contradicting or varying a deed is only admissible under allegations of fraud or of its destruction: 68 S. C., 109; 39 S. C., 356; 64 S. C., 233. Where there is a lack of evidence to sustain the finding of adverse possession or presumption of a grant, this Court may direct framing an issue or reverse the finding: 9 S. C., 271; 64 S. C., 233; 61 S'. C., 568. Tenant cannot ripen title by holding adversely to his landlord without some open disclaimer of his tenancy: 5 Cow., 123; 1 Meb., 95; 1 Speer. Law, 217; 2 Bail., 603; 2 Speer., No. 291; 1 Speer., 226; 1 Ency., 794; 35 S. C., 609; 2 Bay, 487. The same rule applies to a holding sufficient to presume a grant: 72 S. C., 319; 45 S. C., 313; 11 Rich., 109.</p> <p>cite: Issue of title in partition is triable by jury: 41 S. C., 195. And where this issue is tried by the Court its findings are final: 38 S. C., 421; 42 S. C., 146.</p>

Before DanTzlRR, J., Abbeville, Action by R. O. Bell against Janie Edwards and A. B. Edwards, in their own right and as administrators of John G. Edwards et al. From Circuit decree, plaintiff appeals. cites: There is sufficient evidence to show the trust: 1 McC; Ch., 130; 1 Strob. Eq., 363; IS Rich. Eq., 213; 52 S. C., 388. On the subject of resulting trusts: 51 S. C., 37; 59 S. C., 467, 283; 25 S. C, 309; 26 S. C, 231; 27 S. C, 39; 31 S. C., 60; 32 S. C., 590; 38 S. C., 410.

<p>Before Purdy, J., Charleston',</p> <p>Action by James Manigault against S. J. Lofton and H. M. Lofton. From decree in favor of plaintiff, defendants appeal.</p> <p>cite: Evidence to show a deed is a mortgage must be clear: 61 S. C., 579. Rule applicable in setting aside a deed absolute on its face but alleged to be a mortgage: 41 S. C., 163; 52 S. C., 54; 54 S. C., 184; 66 S. C., 85; 55 S. C., 70; 61 S. C., 398; 58 S. C., 398.</p> <p>cites: Owner being in possession was notice of his equitable title: 22 S. C., 32.</p>

Before Gage, J., Aiken, fall term, 1906. Action by Paul B. Glover against Western Union Tel. Co. Prom judgment for plaintiff, defendant appeals. cite: No evidence here of wilfulness: 76 S. C., 301. In absence of addressee delivery to one in charge of his business or home is a proper delivery: 47 Pac., 989; 98 Ind., 569; 24 Fed., 119. Carrier is only bound to ordinary care and diligence in delivery: 69 S. C., 548; 72 S. C., 116; 74 S. C., 64.

Before Purdy, J., Florence, Action by C. E. Jarrot, as trustee, Emma E. Jarrot et al. against John Kuker. From judgment for plaintiffs, defendant appeals. Mr. Shipp cites: The agreement is against public policy and should not be enforced: 68 S. C., 250; 43 S. C., 318. No resulting trust here: 19 S. C., 126; 27 S. C., 1. Nor a corustructive trust ex maleficio: 31 S. C., 60; 1 Rich., 98; 3 Rich. Eq., 424. Rule as to chilling bidding: 2 Rich. Eq., 177; Pom. Eq.

Before Memminger, J., Cherokee, Action hy W. P. Love against M. J. Turner. From judgment for defendant, plaintiff appeals.

Before Court en banc, This motion was not printed sooner because the Reporter could not sooner get the affidavits upon which' the motion was made. The defendant, R. A. Adams, was tried in Colleton County in March, 1908, jointly with Henry Hoff and W. B. Adams, for the murder of Henry Jaques. Adams was convicted of murder; the others were acquitted. He appealed, and the judgment below was affirmed — 68 S: C., 421.

Before DanTzler, J., Laurens, summer term, 1906. Action by Joseph J. Eretwell, survivor of Bleckley & BYetwell, against Ellen A Carter et al. From judgment for defendant, plaintiff appeals. cite: What are the liabilities of the respective parties defendant to this action: 1 Dan. on Neg. Inst, secs. 769, 717, 641, 669, 738; 4 Ency., 478. Under the mortgages, the mortgagees had the right to sell the property in Anderson County: Code, 1903, 8004; 38 S. C., 355. .

Before Watts, J., Oconee, Action by James John Harbert, administrator of James A. Harbert, against Atlanta and Charlotte Air Line Railway.

Before DanTzlrr, J., Colleton, Action by Emily Taylor against Atlantic Coast Line R. R. Co. Erom judgment for plaintiff, defendant appeals. Mr. FitzSimons cites : A carrier is not liable for indignities to a passenger by third persons execpt where there is reasonable anticipation of such indignities: 17 A. N. R., 320; 53 Pa., 5Í2; 8 Neg. C., 602; 91 A. D., 224; 34 Conn., 554; 8 Neg.

<p>Petition in the original jurisdiction of this Court by Paul E. Hutto for writ of habeas corpus.</p>

Before Purdy, J., 1905, and- Gary, J., April term, 1906, Sumter. Action by J. Witherspoon Cooper against Atlantic Coast Line R. R. Co>. From judgment for plaintiff, defendant appeals. cite: The appellant vitas under no duty to hold the-train until plaintiff could go in the car and disembark: 53 S. C., 203; 29 Am. St. R., 48; 66 Am.

Petition in the original jurisdiction of this Court by A. R. Parler, A. C. Smith, E. F. Frick and Geo. W. Smith against W. Brooks Fogle et al, as commisisoners of election for Orangeburg County, to enjoin an election ordered by the Governor on the formation of Calhoun County.