Volume 79 — South Carolina Reports

<p>1. Corporations — Stock.—Where corporations are permitted to increase their capital stock mere irregularities will not invalidate the issue. ‘Meld here, that failure to file in office of Secretary of State certificate of issue does not invalidate it.</p> <p>2. Ibid. — Ibid.—Under sec. 1894, of Code 1902, no transfer of corporate stock shall be valid, except as between the parties, until the same shall have been regularly entered on the books of the corporation, which must show the date of surrender, the number of certificate and date of reissue, or something to show a proper transfer. If this is not done, the original holder of the stock is liable to the creditor of the bank, but he has his action against the transferee for reimbursement.</p> <p>3. Constitution ad Law — Banks.—In absence of legislation or surrender of charter, a bank chartered under the Constitution of 1868 operates under that Constitution and the liability of stockholders is fixed by that Constitution.</p> <p>Mill v. Springs, 56 S. C., 538, criticized.</p> <p>4. Judgment — Banks—Stockholders.-—In cases of insolvent banks the better practice is to enter judgment against the stockholders for the full amount of their liability and to make assessments thereon from time to time as is found necessary.</p>

Petition in this Court in its orginal jurisdiction by Jack Hollman for writ of habeas corpus. The cause was first argued at the April term, 1907, but during the November term, 1907, was ordered reargued before Court en banc January 16, 1908. Oral argument. Mr. Parker cites: As to jurisdiction: 9 S. C., 80; 15 Ency., 204, 205; 32 S. C., 583, 123; 5 S. C., 71; 3 Pet, 206; 1 Pet., 340.

Before Hydrick, J., Kershaw, Motion by Robert C. Bruce in case of W. J. Jones, H. Eugenia Jones-, Robert C. Bruce et al. against Haile Gold Mine Co. to set aside judgment as to him’. From order referring the matter to master to take further evidence, defendant appeals. cite: Section 195 of Code of Procedure extends to excusable neglect of attorney: 17 S. C., 443; 51 S. C., 405. Attorney for minor is presumed to have acted with authority until contrary appears: 5 Rich.

Before Memminger, J., Marion, Spring Term, 1907. Action by Marioru County Lumber Co. against Tilghman Lumber Co. From judgment for defendant, plaintiff appeals. cite: Declarations of owner in possession in designating the land are admissible: 1 Green. Ev., Sec. 109; 3 McC., 261; 4 McC., 262; 11 Rich., 109; 3 S. C., 577; 16 Id., 142; 53 Id., 31; 4 Rich., 424; 9 Rich., 53.

<p>Motion.' to dismiss' appeal in Pearl C. Messervy against John E. Messervy.</p>

Before Memminger, J., Richland, -, 1907. Action by R. B. Crawford et al. against S. H. Owens. Rrom judgment for defendant, plaintiffs appeal. cites.: Form of this bond does not show that another was to sign: 43 S. C., 489; 77 N. W., 808; 55 Neb., 682; 43 Neb., 596; 61 Minn., 12; 29 N. C., 384; 105 la., 548; 79 Wis,, 641; 16 Me., 142; 51 Me., 506; 134 Pa., 191.

Before Hydrick, J., Sumter, ———-—, 1907. Indictment against Jack McCoomer and George Spivens form murder of James E. Gaillard. From sentence on verdict of guilty with recommendation to mercy, both defendants appeal.

Before Watts, J., Georgetown, Action by Bula A. Jones, administratrix of James A. Jones, against P. A. Wilcox, receiver of Georgetown and Western Railroad Co. Prom judgment for plaintiff, defendant appeals. Mr. Walker, no citations. cite: Allegations of specific acts of negligence supersede general allegations: 128 Fed., 8-8. Defect in appliances can not be shown by accident only: 72 S'. C., 398. Master only required to furnish reasonably safe machinery: 34 S. C., 211.

<p>Before Watts, J., Laurens,</p> <p>Indictment against Will Hunter, charging him with assault and battery. From sentence on verdict of guilty, defendant appeals.</p>

<p>Before Prince, J., Marlboro,</p> <p>Indictment against James Malloy for murder of his wife. From sentence on verdict of guilty, defendant appeals.</p> <p>cite: Charge of Judge excepted, to is on facts and is an argument by Judge in reply to that of defendant’s counsel: Art. V, Sec. 36, and Art. I, Sec. 18, Con. 1895; 56 S. C., 524.</p>

Before W. H. Hunt, SpECiau Judge, Abbeville, Indictment against Clinton Harmon and Bertha Harmon for murder of R. E. Wells. From sentence on verdict of manslaughter, defendant .appeals. Mr. Graydon cites: Admission of opinion evidence: 55 S. C., 338. Relations and feelings existing between defendant and deceased are relevant: Elliott on Ev., Sec. 3036; 43 S. C, 53; 37 Cal., 77; 9 Pa., 573.

Before Watts, J., Laurens, Indictment against R. Lee Hunter for violation of dispensary law. From sentence on verdict of guilty, defendant appeals. cite: Case should have been continued because of absence of leading counsel: 42 S. C., 209; 48 S. C., 5; 50 S. C., 403.

Before DanTzler, J., Greenwood, Indictment against Jim Pope for selling and transporting liquors. From sentence of magistrate, he appealed to Circuit Court and from thence to this Court. cites: Continuing case after jury was summoned operates as acquittal: Con., Art. I. Sec. 18; 17 Enc., 1261; 2 N. & McC., 17. Magistrate has no power to continue a case: 2 E. D. Smith, 55; 19 S- C., 143; 61 S. C., 105; Code, 1902, 2003; 24 Cyc., 576; 4 Ency., P. & P., 896-7, Note 3.

Before Gary, J., Laurens-, Motion- by State ini State against G. Wash-. Hunter for change of v-enue. Prom order granting change, defendant appeals. Mf. Blease cites: On question of jurisdiction: Code of Proc., 27; 76 S. C., 105; 75 S. C., 372; Code of Pro-c., 30, 147; 74 S. C., 512; Code 1902, 2735; 38 S. C., 399; 72- S. C., 574.

<p>'Before Gary, J., Abbeville,</p> <p>Indictment against Frank Nelson and Eliza Nelson. From sentence on verdict of guilty as to Frank Nelson, he appeals.</p> <p>cites: As to charge on facts: State v. Cannon, 49 S. 'C.; 56 S. C., 530.</p>

Before Gage, J., Anderson, Indictment against Kate Williams for selling whiskey and maintaining a nuisance. From sentence and verdict of guilty, defendant appeals. cites: A person should not be tried and convicted of a crime under a statute which has been repealed: 26 Enc., 755; 12 Cyc., 144; 52 S. C., 469'.

Before Gage, J., Anderson, Indictment against Lanier, for disposing of crop¡ under lien. 'From order quashing the indictment, State appeals. cite: 18 S'. C., 510; Code, 1908, 3058, 3060'; 75 S. C., 560; Black on Int. of Laws., Sec. 136; 52 S. C'., 159.

<p>Before Gage, J., Dorchester,</p> <p>Indictment against J. M. Walker for murder of Joe Demicola. From sentence on verdict of manslaughter, defendant appeals.</p> <p>cites: Under facts here. cause should have been continued: 4 Ency. P. & P., 833, Par. 6. Instruction on plea of self-defense should not have been given: 11 Ency., 248; 9 Tex., 536. If misconduct of a juror is shown which may have prejudiced the appellant, new trial should be granted: 12 Ency. P. & P., 553. Jury should not have been allowed to separate: 12 Ency., 566, 568, 578; 32 S. C., 392.</p> <p>cites: As to competency of jurors: 24 Cyc., 302, et seq.; 65 S. C., 321; 36 S. C., 479. Failure to admonish jury as to their conduct during recess will not work reversal where no injury results to defendant: 12 Ency. P. & P., 583. Jury may separate before finally charged with a case: 12 Ency., 684.</p>

Before P. Barron Grier, Special Judge, Newberry, Indictment against Harry Lyles and Henry Dawkins for assault and battery with intent to kill and carrying concealed weapons. Prom sentence on veridct of gnilty, defendants appeal.

<p>Ruled by case of State v. Graham, post, 116.</p>

<p>Before , J., Bamberg.</p> <p>Action by G. F. Hiers against Atlantic Coast Line Railroad Company. From Circuits judgment affirming judgment of Magistrate J. C. Copeland, defendant appeals.</p> <p>cites: As to the constitutionr ality of the penalty act: 38 S. C., 103, 291; 165 U. S., 155; Cool, on Con, Lim., 390; 63 S. C., 169; 196 U. S., 194; 75 S. C., 276; 93 U. S., 99; 124 U. S., 465; 128 U. S., 96; 162 U. S., 650; 77 S. C., 480; 78 S. C., 36.</p>

<p>1. Juror — Office.-—The position of grand juror is not an office “of honor and profit” within the contemplation of the Constitution.</p> <p>2. Ibid. — Rural free delivery mail carriers are not disqualified from serving on grand jury.</p> <p>3. Ibid. — A Magistrate is disqualified from acting as a grand juror, but in this case the appeal is dismissed because appellant does not show that the magistrate sent the case up, or that there were not on the jury twelve other qualified jurors.</p>

<p>Before Gage, J., Orangeburg,</p> <p>Action by Jane Wilson against Adam H. Moss, receiver of partnership of Mr. and Mrs. D. S. Wilson. From judgment for defendant, plaintiff appeals.</p> <p>cites: Evidence as to circumstances of formation of partnership not admissible: 74 S. C., 30; 78 N. Y., 95; 52 S. C., 1. Charge on facts: 31 S. C., 218; 39 S, C., 23; 41 S. €., 440; 48 S. C., 136; 53 S. C., 51; 47 S. C., 488; 32 S. C., 410. Contract within scope of partnership: 16- S. C., 231. Assent of partners will be presumed to a course of dealing known to them: 31 Ark., 113; 30 S. C., 121, 285; 19 & C., 307; 26 S. C., 415; 156 U. S., 218.</p> <p>cite: Limits of cross-examination are within, discretion of trial judge: 33 S. C., 39; 52 S. C., 371. One member of a firm can not make a contract outside scope of partnership binding on the firm: 2 Bail., 109; 14 & C, 16; 27 Am. R., 734; 22 Ency., 144; 28 Am. R., 75; 7 Am, St. R., 403; 1 Lindley on Part., 126; 102 N. Y., 336; 26 Am. R., 185. Stating issues on questions raised in argument is not a charge on facts: 55 S. C., 403; 58 S. C., 35S; 57 S. C., 427; 60 S. C.. 254, 477. It is duty of husband to support wife: 21 Ency., 1152; 15 Ency., 812, 814; 85 N. Y. App. Div., 173; 21 Cyc., 1152. Motion for new trial properly refused: 65 S. C., 205; 72 S. C., 43; 73 S. C., 48; 74 S. C., 89, 300; 75 S. C., 300. Evidence in reply is discretionary: 43 S. C., 91.</p>

Before Gary, J., Berkeley, Indictment against John T. Owens for murder of S. W. Thornley. From sentence on verdict of manslaughter, defendant appeals. Mr. Rivers cites-: Conviction of manslaughter is an acquittal of murder: 40 S. C., 362; 33 S. C., 129; 56 S. C., 586. What is manslaughter? 21 Ency., 189, 172; 55 S. C., 35; 50 S. C., 422; 65 S. C., 213; 78 S. C., 95; 28 S. C., 34; 39 S. C., 159; 50 S. C., 424.

<p>1. Evidence — Pleadings.—Statute of frauds must be pleaded to give the right to object to evidence because obnoxious to the statute.</p> <p>3. Ibid. — Parol—Timber.—Reservation of standing timber on land conveyed by fee simple deed can not be shown by parol.</p>

<p>Before E. Barron Grier, special judge, Newberry,</p> <p>Indictment against Fred Reeder for murder of Jess Coleman. From sentence of verdict of manslaughter, defendant appeals.</p> <p>cite: Con. Art. I, Sec. 18; 12 S. C., 89; Rule FXII, Circuit Court.</p>

<p>Real Property — Contract.—A written contract for sale of land may be rescinded by parol and a parol rent contract substituted.</p>

Before Gage, J., Marlboro, Spring term, 1906. Indictment against Oscar Brooks for murder, óf Harrison Alford. From sentence on verdict of “Guilty, with recommendation to mercy,” defendant appeals. cite: Charge should he clear: 65- S'. C., 313. Evidence as to threats should not have been .admitted: 36- S'. E. R., 714, 911. Rights of defendant on his own premises: 71 S. C., T3-6-; 73-S. C., 303; 11 S'. E. R., 637; 33 S. E. R., 854.

<p>Before Prince, J., Clarendon,</p> <p>Action by Coffey & Rigby against Atlantic Coast Rine Railroad Company. From judgment for plaintiff, defendant appeals.</p>

<p>Before Hydrick, J., Bamberg, winter term, 1907.</p> <p>Action by J. F. Fntzminger against Seaboard Air Line Railway. From judgment for plaintiff, defendant appeals.</p> <p>Mr. LaBitte cites: Where verdict exceeds actual'damages newt trial should be granted: 45 S. C., 490. This Court may grant new triad when there is no evidence of punitive damages: 64 S. C., 569. When punitive damages may he awarded: 35 S. C., 210, 493; 54 S. C., 498. Error to rule out opinion of plaintiff as- to- degree of willfulness of defendants servants: 19 S. C., 525; 18 S. C., 510. Judge intimated Ms opinion to jury: 76 S. C., 63; 47 S. C., 488.</p> <p>cite: Refusal of new trial zms proper: 69 S. C., 160. Evidence warranted punitive damages: 5 Ency., 562'; 77 S. C., 473; 65 S. C., 444; 75 S. C., 286; 53 S. C., 213.</p>

<p>1. Carrier — Freight—Special Damages. — An ordinary shipment of fertilizer with no notice to carrier at time of shipment of any special use to which it was to be put or of such scarcity as to prevent the purchase of more of the same kind, will not subject carrier to special damages.</p> <p>2. Ibid. — Ibid.—Negligence.-—Notice after shipment of effects of further delay in delivery may render carrier liable for damages after that time by reason of negligence in not tracing and finding the goods. Here there was no such negligence.</p> <p>3. Wilfulness. — There was no evidence here of wilfulness, recklessness or indifference to the rights of plaintiff in transporting and tracing freight.</p> <p>4. Carrier — Vendor and Vendee. — Where a vendor undertakes to deliver an article sold by him at a certain place no title vests in vendee until such delivery, and where vendor delivers to carrier, the carriage to that point is at risk of vendor, and title and right of action fer loss remains in him. In this case the vendee having demanded and received of vendor the purchase money thereby rescinded the contract, and carrier having paid to vendor the purchase price before suit, all demands against carrier are satisfied.</p> <p>5. Ibid. — Freight.—Where the bill op lading fixes the liability of the carrier for loss at value of goods at place of shipment no recovery can be had for market value at point of destination.</p>

Before Hydrick, J., Aiken, winter term, 1907. Action by Raura Balderston against Western Union Telegraph Company. From judgment for plaintiff, defendant appeals. cite: The cause of action having arisen in another State no recovery can be had for mental anguish: 75 S'.

<p>Negligence — Wantonness.—There is no evidence in this case tending to show that any negligence or wantonness in the use of, or any negligence in the construction of the steam pipes from which plaintiffs mules took fright, ran away and injured him, proximately caused his injury.</p>

<p>Timbers — A gkaot of all the pine trees alive and dead, standing or fallen, measuring nine inches in diameter twenty feet from butt, now being on the various tracts of land therein described, in consideration of seventy-five cents per acre, which amounts, after deducting one-third of the acreage for bays and branches, to $886.50, conveys to grantee all timber of specified dimensions at time of grant on bays and branches as well as uplands.</p>

Before Prince, J., Greenwood, Indictment against John Hibler for murder of Andrew Jackson. From sentence of verdict of guilty of manslaughter, defendant appeals. cite»: To meet charge of recent fabrication prior declarations may be shown: 3 Enc., 736; 1 Hill Eq., 76. Self-defense: 72 S. C., 202; 68 S. C., 421; Whar. on Horn., Sec. 494; 13 S. C., 464; 42 S. C., 205; 38 S. C., 221; 43 S. C., 128; 76 S. C., 143.

<p>Appeal. — In criminal case appeal after verdict lies only from sentence.</p>

Before Gage, J., Barnwell, fall term, 1906. Action by 'C. E. Gyles against Southern Railway. From judgment for plaintiff, defendant appeals. cites: One exposing himself to a known danger cam not recover for injury: Moore on Carriers, 673, 832-3. cite: Points not made on Circuit not considered here: Rule 11 Circuit Court; SO S. C., 51, 425; 3 S. C., 510 ; 75 S. C., 32'.

<p>. Before Addrich, J., Greenwood,</p> <p>cite: Evidence taken by coroner cam not be varied by parol: 26 S. C., 199; 3 Strob., 33. Witness should not be contrcu dicted without laying ‘proper foundation: 15- S. C., 381; 82 S'. W., 882; 7 Ene. Ev., 80, 110; 2 Meik, 171. Answer in contradiction should conform to question: 2 Strob., 178; 7 Ency. Ev., 80, 92; 52 S. E., 14; 52 S-. C., 470 ; 2 Meilí, 171; 66 S. C., 419. Manslaughter: 72 S. -C., 201; Oriin!. Code, 120. Charge indicated wihat verdict should be: 30 S. C., 609 ; 28 S. C., 4. Instruction, misstating issues is error: 4 Cur. If., 51, 148-; 68 S-. C., 276. Evidence does not show any premeditation and conviction should not stand: 66 S-. C., 61; 73 S. C., 291; 5 Rich-., 260; 75 S-. C., 162.</p>

Before Purdy, J., Cherokee, Indictment against W. H. Mills for murder of Flunk Deal. From sentence on verdict of guilty with recommendation to mercy, defendant appeals. Mr. Wilson cites: Jury illegally drawn: 33 S'tat., 1066 ; 77 S. C., 350. Declaration of deceased that h\e only had a knife is not a dying declaration: 4 Ency. Ev., 1005 ; 56 S. C., 586; 58 S. C., 351. Dying declarations may be shown to be fallacious: 10 Ency., 383; 4 Ency. Ev., 1013; 5-6 S. C., 588.

Before Memminger, J., Darlington, Action by Wilson & Jamies against Atlantic Coast Line Railroad Company. 'From Circuit judgment affirming judgment of Magistrate H. E. P. Sanders, defendant appeals. Mr. Dargan cites: Appellant cam, not abandon goods and then sue for loss and penalty: 6 Cyc., 539 ; 7 Rich., 590; 5 Rich., 463. cites : Pindings by magistrate can not be reviewed here: 73 S. C., 71, 389, 543; 77 S. C., 414; 78 S. C., 81.

<p>Removal of Causes. — All issues of fact raised by the petition for removal must be tried in the Circuit Court, but the State Court may determine for itself whether, on the face of the record, a removal has been effected. Held here the amount in controversy does not exceed $2,000, exclusive of interest and costs, and cause is not removable.</p>

Before Gary, J., Edgefield, Action by J. D. Whittle, as assignee of F. M. Mixson, against Elbe Brooks Jones, A. C. De-Pas-s and Scottish Amierican Mortgage Oo. From judgment for plaintiff, defendant Mrs. Brooks appeals. cite: Upon discovery of fraud Mrs. Jones zms entitled to cites: Mrs. Jones having sold property bought is estopped from setting up failure of consideration: Sherman v. McKeon, 36 N. Y.; Bmbry v. Palmer, 107-N. Y.; 7 Ency., 22; 12 S. C., 350.

Before Klugh, J., Aiken, Action by C. M. Ussery against Augusta-Aiken Railway Co. From judgment affirming judgment of Magistrate S. S. Dee, defendant appeals. cite r Evidence does not warrant verdict for pumtive damages: 'Wood’s Mayne on Dam., 73, 21; 4 Thompson on Neg., par. 7202; 9 Eoodb., 341; 1 Suth. on Dam., 74; 71 Ga., 518; 75 S. C., 35-1; 55 S. E., 765; 73 S. €., 264; 65 S. C., 444; 69 S, €., 551; 72 S. €., 256; 72 S. C., 450; 122 N. C., 1005; 30 S. E. R., 343.

<p>Fraud — Dower—Real Property. — One who contracts with the wife as agent of her husband for purchase of a tract of land owned by him, upon assurance that he would be given a perfect title, and who accepts from the husband a deed with general covenant of warranty, but without renunciation of dower, and executes a bond and mortgage for portion of purchase money, can not recover damages or have abatement of the purchase price in foreclosure of mortgage because of the outstanding inchoate right of dower in the wife, until it has been extinguished or he has been evicted.</p>

<p>Before Krugh, J., Clarendon,</p> <p>Action by E. Bourquin against North Western Railroad Company of South Carolina. From judgment for plaintiff, defendant appeals.</p> <p>cites: Rule of admission of secondary evidence: 1 Green Ev., Secs. 563, 5’63b, 563e; 11 Rich., 75, 537; 14 $, C., 588; 47 S. C., 48&; 1 Taylor on Ev., S'ec. 429; 13. Ency., 1095; 24 S< C., 49-9; 17 S. C., 587; 61 S. C., 292; 21 How., 175-; 7 Pet., 100'; 80 Afe., 100; 67 Ak„ 290; 21 Enicy., 990.</p> <p>cite: No proper foundation was laid for secondary evidences Green on Ev., Secs. 82-85; 55 S. C., 254. Witness can not refresh memory from memoranda not based on facts known to him: 76 a C., 312.</p>

Before Krugh, J., Florence, Action by J. S. Sanders against Atlantic Coast Line Railroad Company. From1 judgment for plaintiff, defendant appeals. cite: Delay must be shown to- be proximate cause of damage: 'Moore on Cor., 218; 57 Ami. D., 701; 71 Am. St. R., 542; 24 Stat, 671.

Before DantzlER, J., Chester, Spring Term, 1907. Indictment against Gus Lee for 'murder of Lucius Jones. Froto sentence on verdict of guilty, defendant appeals. cites: In cases involving personal liberty, errors not excepted to will be noted by the Court: 16 S. C., 462; 12 S. C'., 96. Judge should declare law .applicable to each case: Con., Art. V, Sec. 26; 58 S. C., 94; 80 Ga., 758; 147 111., 310; 73 Miss., 873; 33 Tex.

<p>1. Special Terms op Court. — -That the Governor in ordering a special term of the Court of General Sessions, under Secs. 1744 and 2745 of Code of 1902, used the words “to dispose of all the cases on the criminal docket in said county,” does not invalidate the order or affect the power of the Judge to try a cause then on the docket.</p> <p>2. Evidence — Dying Declarations. — Before admission of dying declaration trial judge ascertained that deceased was conscious of impending death, and it is not error for him at that time to refuse to permit defendant to offer evidence tending to show deceased after making the declaration had not lost hope of recovery.</p> <p>3. Ibid. — Threats—Murder.—Accusations of crime not connected with threats against accused are not admissible in defense for killing accuser, on ground that other like accusations were accompanied with threats.</p> <p>4. Charge. — Statement by Court in ruling out accusations of deceased, that defendant burned his barn, that the burning of the barn had nothing to do with the killing, is not a charge on the facts.</p> <p>5. Ieid. — Remarks by judge while considering competency as evidence of parts of a pistol and trying them together to see if they fit, are not objectionable.</p> <p>6. Witness. — Cross-examination is sometimes properly relaxed in examining a witness whose testimony is doubtful.</p> <p>7. Ibid. — Opinion.-—On cross-examination it is not error to ask a witness if the time elapsing between shots of a pistol was not correctly illustrated by another witness by clapping the hands.</p> <p>8. Evidence. — The size of the family of a defendant on trial for murder is not pertinent.</p> <p>9. Ibid. — Reply.—Admission of pants of deceased in reply to contradict evidence of defense that deceased had his hand in his right-hand hip-pocket, is proper, and the fact that the pants had been washed does not affect it.</p> <p>10. Evidence in reply that deceased owned only the pistol in evidence is competent to contradict evidence by defense that he had a bright-looking pistol.</p> <p>11. Charge. — The portions of the charge here excepted to, “and in this case it would be an indication to do a wrongful act,” and that if defendant slew deceased because he circulated a slanderous report about him, taken in connection with the whole definition of malice, is not a charge on the facts.</p> <p>12. Manslaughter — Murder.—A killing in sudden heat and passion because of slight physical aggression against one’s person, or member of his family, or property in his presence, is manslaughter, but a kiling' under such circumstances because of previous malice is murder.</p> <p>13. Verdict. — Sending a jury back into the room after having been out all night and after statement by foreman that the difference was on the facts and had lasted since a few minutes after charged with the ease, and urging upon them the importance of honestly discussing their differences and reaching a verdict, is not coercion.</p>

Before Klugh, J., Florence, Proceeding to eject trespasser by J. C. Lynch against John B. Ball and B. F. Ball. From order sustaining judgment of Magistrate R. S. Smith on writ of certiorari, defendant appeals. cites: 24 S. C., 507; 34 S. C., 107; 1 & C., 226; 26 S. C., 208; 13 S. C., 198; 10' S. C., 301; 26 S. E., 99, 244.

Petition in the original jurisdiction of this Court for writ of certiorari to the State Board of Canvassers by J. A. Welsh, R. H. Garland, 'S. A. McManus, W. H. Porter, E. N. Red'fern, J. Sidney Smith, Simith Oliver and J. T. Jow'ers. Oral argument. Mr. Blakeney cites: What petitioners should allege: McCrary on Elections, S'ecs. 437, 439'; Brightley Elec. Cases, 320; 95 S. C., 883-; 52 S. E., 394; 7 Current L-, 1252; 13 La., 175; 7 Ency. P. &.

<p>Before Klugh, J., Sumter,</p> <p>Action by E. L. Burress against Atlantic Coast Line Railroad Company. From judgment of Circuit Court affirming judgment of Magistrate H. L- B. Wells, defendant appeals.</p> <p>cites: Piling claim was first step in obtaining penalty: 71 S'. ’C., 273, and plaintiff should not vary it by parol: 59 S'. C., 591. Person last having lost paper should be examined as to search: 17 'Cyc., 516; 5 Rich., 373; 47 S. C., 498. Notations on way bill should heave been admitted: 46 S. C., 110. Plaintiff can not recover under act of May, 1903, because not brought under it: 53 S. C., 496.</p>

<p>Ruled by case of Amos v. Western Union Tel. Co., post, 259.</p>

<p>Before Purdy, J., Spartanburg,</p> <p>Action by W. A. McDowell against Western Union Telegraph' Company. Prom judgment for defendant on verdict ordered by Court, plaintiff appeals.</p> <p>cites: 70 S'. C., 422; 77 S. C., 179.</p> <p>Argument reported in Amos case.</p>

<p>Before Dantzler, J., Cherokee.</p> <p>Action by M. D. Anuos -against Western- Union Telegraph Company. Prom judgment for plaintiff, defendant appeals.</p> <p>cite: Recoverable damages is that arising from defendant’s breach of duty: 25 Ency., 86; 55 Tex., 308; 70 S. C., 428, Plaintiff should have used ail means in his pozvier to minimise Ms damages: 69 S. 'C., 539; 27 Ency., 1033; 75 S. C., 189, 355. There is no presumption that mental anguish follotv's from failure to deliver a message announcing sickness of daugMter-in-law. 77 S. C., 150; Joyce on- Elec. E., Sec. 3820; Thompi. on Neg., Secs. 2478, 2483; Jones on Tel. & Tel. Cos., Sec. 541.</p> <p>cite: Kind of mental anguish suffered is for jury: 76 S. C., 275; 69 S. C., 531. Sendee cam, recover in such case if message is of importance to Mm: 77 S'. C., 179. As to other means of mitigating damages: 73 S'. C., 384; 77 S. C., 56, 402. In reviewing the Butler case counsel cite: 70' S. C., 418 ; 76 $. C., 305; 45' R. R. A., 160; 77 S'. C., 179; 54 R. R. A., 160’; 123 N. C., 129; 27 Ency., 1965; 66 Am St R., 869; 2 R. R. A., 766; 59 R. R. A., 398; 34 S. E.,'841; 38 S. E., 294; 34 R. R. A., 431.</p>

Petition by D. J. Holt for writ of certiorari against Thomas B. Butler et alcomposing the Democratic Executive Committee for the town of Gaffney, and W. D. Settlemeyer, in the original jurisdiction oí this Court.

Before Purdy, J., Greenwood, Action by A. C. Garey against R. R. Tolbert, Sr. From Circuit order affirming judgment of Magistrate W. G. Austin, taken by default and refusing to open the judgment, defendant appeal®.

<p>Before Dantzujr, J., Spartanburg,</p> <p>Action by Atlantic and Charlotte Air Dine Railway Company and Southern Railway Company against Victor Manufacturing Company. From order referring certain issues to master, defendant appeals.</p> <p>The former cite: 16 Cyc., 809', 725; 100 U. S., 578; 122 U. S,, .241; 77 St C., 420 ; 57 S. C., 279, 507; 31 S. C., 155; 1 Bay., 241; Code, 1902, 2445; 38 S. C., 211; 3 S. C., 570; 66 S. C., 77; 75 S. €., 334, 318; 77 S. C., 1.</p> <p>Tine former cite: 16 S. 'C., 331; 12 S'. C., 108; 23 S. C., 392; 54 S. C, 157; 52 S. C., 461'; 70 S. >C., 284; 2 Pom. E'q. J.ur., Secs. 801, 802, 870, 910'; 12 Am. R., Ill; 45 S. C., 512; 67 S, C., 389; 41 & C., 304.</p> <p>cite: Code of Proc., 274, 275; 27 S. C., 408; 56 S'. C., 298; Rice, 388; 119 U. S., 545; 12 S. C., 106; Code 1902', 2445, 2446; 20 Ency., 719.</p>

<p>Before Dantzi.be., J., York, April, 1907, and Gage, J., July, 1907.</p> <p>Action by Charles. E. Kennedy and Porter B. Kennedy, late members of the firm of Hill, Kennedy & 'Co., against W. E. Hiilil. From order of Judge Dantzler refusing to strike out reply and from order of Judge Gage permitting an amendment to the complaint, defendant appeals.</p> <p>Mr. Hart cites: The 'amendment was improperly allowed: 18 S. C., 305; 21 S'. C., 241, 25; 24 S. C., 476; 26 S. C., 423; 27 S. C., 95; 28 S. C, 287; 47 S, C„ 499; 50 S. 0., 398.; 56 S. C., 90; 74 S. €., 243.</p> <p>cite: Reply should noi have been allowed: Code of P’roc., 174; 22 S. C, 128; 38 Si. C., 210; 54 S. C„ 80; 56 & C., 313; 76 S. CL, 493. Error to permit oral matter to be pleaded as amendment to amended complaint: 66 S'. C., 16; 61 S. C, 336-; 76 S. C., 493; 70 S. C., 8.</p>

<p>Carrier — Passenger—Issues.—A railroad company is liable for negligently and wilfully ejecting a passenger from an excursion train run by its servants for another, who fixed the rate of transportation, because he refused to pay the excursion round-trip fare, but offered the usual fare, if the passenger had no notice before boarding the train it was an excursion train and the rate of passage. Whether he had such notice was for the jury.</p> <p>2. Evidence. — Whether the plaintiff had been convicted of any crime is not competent in this case.</p>

<p>Rent — Lease—Subsequent Creditor. — A landlord may seize and sell to pay rent due furniture sold by another to the tenant on a lease, the debt on which was past due when the tenancy began, where the lease is not recorded and the landlord had no actual notice of claim of lessee.</p>

<p>Befóme D'antzijsr, J., Spmitanlburg.</p> <p>Action by Southern Railway Company — Oarolim division against J. R. Howell. From judgment for plaintiff, defendant appeals.</p> <p>cite: Issue of authority in superintendent to write the letter is for jury: 55 S. C., 573. Notice by possession was changed by Sec. 2457, Code 1903: 22 & C, 33; 21 S. €., 430'; 23 S. C., 493; 24 'S, C., 285 ; 29 & 0., 147.</p> <p>cite:' 'Admission of superintendent can not deprive the company of its property: Bal'd. Am). R. R. R., 53-4; 2 'Coobe on Cbirp., Secs. 726, 709 ; 34 Am. St. R., 815. The word “understanding” is of doubtful meaning: 19 S. C, 412; 56 & C., 485; 11 S. C., 68. Defendant is not purchaser far value without notice: 14 S. '0., 313; 72' S. C., 228. Defendant is now estopped from claiming this land: 15 S. C., 476. Acts permitted on opposite side do not estop them from making claim on this: Big. onHst., 553; 11 Eney., 424, 431, 434; 40 S. B. R., 587, 633. Charter is constructive notice of width of right of way: 72 S. C., 228. That manner of condemning right of way in charter of G. & C. R. R. and of S. & A. R. R. is different does not prevent provisions of former applying to latter: 28 9. C., 388; 3 S. C., 381.</p>

<p>Before Prince, J., Richland,</p> <p>Indictment against Daniel Zimmerman and Thomas J. Gibson for forgery. Prom sentence on plea of “guilty as charged,” defendant Zimmerman appeals.</p> <p>cite: Plea to indictment charging misdemeanor and felony is referable to felony only: 14 Rich., 169; 113 Gal., 278. Subject of forgery is now covered by statute: 3 Stat., 468; 5 Stat., 397; 11 Stat, 366; 54 & C., 310'; 5 Sltrob., 58; 29 S. C., 180'; 'Or. Code, 373; 14 S. 'C., 350‘. Fraudulent intent is not charged: 9 Ency. P. & P., 580; 36 Kan., 322; 19 Cyc., 1395. Nor is it charged that the writing might injure another: 19 'Cyc., 1379, 1405-6; 13 Ency. P. & P., 559; 17 Wend., 541; 37 Tex., 591; 5 So., 618; 9 Ency. P. & P., 5-62-7; 30 La. Ann,, 557; 3 Gal., 571; 5 Black., 39. The State is not “any person” to be defrauded under the statute: 3 Stat., 463; 2 Russ. Crimes, 414; 24 & 25 Vic., 98; Ros. Grim. Ev., 517; Bish. on Stat. Grimes, 62; 46 Gal., 154; 16 N. J. L-, 285; 7 Abb. Prac., 83; 46 Ohio St., 234; 5 Stat., 397; 22 Eney., 740; 19 R. I., 336; 6 Hill N. Y., 33; 52 N. Y., 530; 150 Ind., 336; 72 N. Y., 365; 24 Tex., 64; 6 Tex. Apip., 264; 23 Tex. App., 404; 8 Tex. App., 404 ; 92 Ky., 630'; 37 Eed. R., 108. In many States it is only necessary to allege a general intent toi defraud: Crina. Code Ala., Art. 3852-5; 47 la., 455; 8 la., 295; 30 Kan., 365; 32 Kan,, 360; 36 Kan,, 325; 39 Ha. Ann., 238; 37 Ha. Ann., 292; 28 Ha. Ann., 46; 39 Ha. Ann., 238:; 50 Me., 422; 100 Mass., 12; 57 Mick, 73; 43 Minn., 196;.86 Mo., 33; 78 Mo., 49; 109 Mo., 432; 93 Mo., 88; 147 Mo., 181; 144 Mo., 626-; 112 ' Mo., 447; 108 N. Oar., 776; 80 N. Oar., 403 ; 86 N. Oar., 599; 19 Ohio St., 540; 12 Or., 104; 86 Pa. St, 355; 12 Phil, 608.; 23 Tex. Apip., 401; 6 Tex. App., 264; 1 Tex. Apip., 146; 51 Vit.,- 102; 31 W.. V'a., 127; 29 W. Va., 147; 32 W. Via., 546. Word “person” defined in many States to include State: Pen. Cede Ariz., Sec. 7, Sulk 20; Homers Rev. St. Ind, Siec. 1899'; Pen. Code Idaho, Sec. 4544; Gen. St. Kan., Sec. 2315; Gen. Sitat. Minn., Siec. 6842; Oo'die Miss., Sec. 1542; Cobb. Ann. Sit., Neb., Sec. 2382; Haws N. Y. C., 677, Par. 5; Rev. 'Code N. Dak., Secs. 7727-8; Rev. Slat. Ok., See. 2704; Ann. Codes & Stats. Or., Sec. 2186; Pen. Code So. Dak., Secs. 822-3; Pen. Code T.ex., Art. 24; Rev. Stats. Utah, 4053;'Bail. Codes' & Stats. Wash., Secs. 478'6, 6786. Judicial interpretation of vttord “person: ” 10 Ark., 104; 84 U. &, 322; 35 Ga., 315; 95 M., 445; 163 Mass., 446; 73 Ind, 362 ; 44 Eed. R., 17; 94 U. S,, 315; 52 N. Y., 530. Legislative definition: Code 1902, 38; Con. 1895, Art. IX, Siec. 1, Art. VIII, Art. VII, Secs. 8 and 11; 69 Eed. R., 911; 22 Kan,, 170; 94 U. S., 345.</p>

Before Kdugh, J., Sumter, Action by Burrell Moody against Southern Railway Company. Fromi Circuit order sustaining judgment of Magistrate FL R. B. Wells-, defendant appeal’s. cites: Evidence as to time required to trace freight admissible: 59' S. C., 316; 62 S. C., 295f; 19 S. C., 66, 521. No presumption of loss on terminal carrier: 78- S.C., 12; 2 R. R. A., 102. Measure of damages w\H\en goods are unreasonably delayed: 7 S. C., 190; 17 S. C., 8; 75 S. C., 60; 38 S¡.

<p>Before Memminger, J., Marlboro,</p> <p>Petition of John F. Pearson, Jamies Pearson, Annie May Pearson et ail. against John F. Breeden in case of Ann E. Pearson, as administratrix of Charles T. Pearson, against Alexander C. Pearson et al., to set aside judgment. From order refusing motion, petitioners appeal.</p> <p>The latter cite: Appointment of guardian ad litem was irregular: Buchanan’s Code, 136; 17 S. •C., 439; 23 S', C., 189, 166; 61 S, C„ 577; 25 S. C., 282; 71 a C., 17. Can the record be contradicted by paral testimony? 24 Fncy., 194; 41 S'. C., 1; 19 S. G, 506, 253; 91 S'. W., 68'9. Did Court have jurisdiction of subject at chambers? 14 Stat. 146; 27 S. G, 374 ; 45 S. G, 10; Hardin v. Primmier, 30 Si. 'C., 4; Wait. Pnalc., 336'; 1; Wialit. P-rac., 549; 2 Hill Chi., 580'; M'oM. Eq., 190; 111 Rich:., 576. John and Nancy held the land as tenants -by entirety: 39 S'. C., 275; 38 & C„ 39; 4 Kent., 136; 2 Kent., 132. As to the construction of the deed to Charles and the heirs of his body and dying without children over: 37 S. C., 265; S'trob., 133; 4 Des., 660; 4 Kent., 220-1; 1 Rich. Eq., 141; 25 S. C., 291; 36 9. €., 366.</p> <p>Mr. Townsend cites: Vacating a judgment is a matter of discretion: 17 9. C., 454; 19 9. 'C., 557; 34 9. C., 11; 21 9. E. R., 270; 25 9. C., 405; 18 Ency., 108-; 1 9. E. R., 180; 9 9. E. R., 220; 31 S. E. Ri, 913. Confirmation of irregular appointment of guardian ad litem cured defect: Middleton v. Sto'kes, 71 Si. C.; 56 S. C., 96; 23 S'. C., 166. Presumption is Court had jurisdiction: 14 S. E. R., 204; 17 En'cy., 1075; 33- S'. E. R., 204; 5 Ency., 814; 3 Ency., 68. As to the construction of the deed: 67 S. C., 133, 309; 1 Rich!. Eq., 411; 65 S¡. C., 345; 52 9.0., 554; Bail. E'q., 48; Bail. E., 231. Deed being fee conditional land was assets for debts: Bail. Eq., 228; 17 9. C., 550.</p>

Before Klugh, J., Spartanburg, Action by H. S. Baird against Western Union Telegraph Company. From order refusing.-motion to strike out certain allegations of the complaint and overruling demurrer, defendant appeals. Messrs. Willcox & Willcox and Davis cite: Ta make telegraph company liable it should have had notice of special circumstances: 40 S'. C., 534; 71 S. C, 39'; 70 9.

<p>1. Judgment — Jurisdiction—Mandamus—Injunction.—A judgment of a court without jurisdiction of the parties or the subject matter is a nullity and must be so treated when interposed in the form of an injunction against an application for mandamus.</p> <p>2. Jurisdiction — Parties.—The State Dispensary Commission, created by the Act of 1907, 25 Stat., 385, is the agent of the State in winding up the affairs of the State dispensary, the funds coming into its hands therefrom is the property of the State, and the Federal Circuit Court has no jurisdiction to enjoin the commission from paying out any funds in its hands in obedience to act of the General Assembly in a suit to which the State is not a party.</p> <p>S. Whit of Mandamus adjudged in this case withheld until the further order of the Court, because the Court assumes the Federal Court will not disregard its construction of State statutes.</p>

Before Hydrick, J., Florence, Action by John Slaughter Company against King Lumber Company. From' judgment for plaintiff, defendant 'appeals. No argument furnished Reporter. cite: As to admission af depositions: Code 1902, 2882. If depositions erroneously admitted, it was harmless error, as other competent evidence covered same point: 78 S. 0., 36. Where evidence is all one way Court should direct a verdict: 71 S-. 'C., 426.

Before Krugh, J., Florence, Action by M. B. Huggins against Atlantic Coast Line Railroad Company. From judgmlent for plaintiff, defendant appeals. Held: unconstitutional in 78 S'. 'C., 42. Under bill of lading defendant only liable for injury on its own line: 75 S. 'C., 324; 39 S. C., 56; 112 U. S'., 331; 4 Ellioitt on R. R., Secs. 1507, 1546. cites: Delivery in bad condition presumes injury on terminal line: 2 S-. 35. R., 23; 17 & 35., 513'; 5'6 S. F., 966.

<p>1. Carrier — Freight—Live Stock — Evidence.—Under bill of lading limiting value of live stock to $100 in case of loss or damage, it is not error to admit evidence that animal injured was of greater value than $100, hut no greater recovery than $100 for injury can he given.</p> <p>2. Ibid. — Ibid.—Interest.—Under penalty statute, interest on actual loss sustained in damage to freight may be given from time of filing claim, whether the amount of damage he less or greater than amount stated in claim filed.</p> <p>3. Charge. — Stating date of filing claim for damages to freight and amount of claim, there being no issue as to either, is not on the facts.</p> <p>4. Constitutional Law. — Section 1710, Code 1902, in so far as it imposes the duty to trace shipment as condition of exemption from liability is constitutional.</p> <p>5. Ibid. — The penalty statute, 24 Stat., 81, is not unconstitutional as an attempt to regulate interstate commerce.</p> <p>6. Ibid. — The agency statute, 24 Stat., 1, is unconstitutional where applied to interstate shipments.</p> <p>7. Carrier — Freight—Connecting Lines. — The charge here as . to liabiltiy of carrier for loss on connecting line was defective in that it omitted so much of Section 1710, Code 1902, as exonerates carrier from liability on connecting line, if, after due diligence, it is unable to trace the line upon which damage occurred. If information furnished consignee of freight at time of delivery as to damage on connecting line is the same as .that he would have received of terminal carrier after due diligence, jury may relieve terminal carrier of liability.</p> <p>8. New trial msi granted because error in charge permitted the jury to find $100 for loss of mule on connecting carrier and $50 penalty which should not have been included, as recovery should not have, been for as much as claim filed.</p>

Before Gary, J., Greenville, Action by Thomas M. Griffin against National Light and Thorium Company. 'The defendant interposed the following demurrer to the comlplaint: I. “That it 'appears upon the face thereof that there is a-defect of parties' in that William M. Lendermlan, the person seized of the remainder of the premises mentioned in the complaint, other than the part alleged to be held by the plaintiff, is not made a party plaintiff in the action.

Before Gage, J., Aiken, Action by Ellen Watts et al. against Eloyd Whetstone et al. From’ decree in favor of certain defendants, plaintiffs Ellen Watts, Elestine 'Catharine Garvin, William Garvin, and defendants Eloyd Whetstone and Samluel Whetstone, appeal on following exceptions: I. “Because the Circuit Judge -erred in finding and -holding, that there -was no color of title under the deed of the 13th of June, 1873, which would give adverse- possession to the heirs at law…

<p>Before Gage, J., Charleston,</p> <p>Rule to- show -cause aganst A. G. Rhodes and Joseph May-bank in -case of Henry O. Bernard et dl. against Joseph H. Bernard et ail. From order making rule absolute, respondents appeal.</p> <p>cite: There can be no final decree until all parties are before the Court: 10'3 U. S., 519; 10<6 U. S., 431; 3 Croudh., 179; 10'6 U. S., 3. Remaindermen born since first order of sale me necessary parties: 20 S. C., 78; 1 MoC. Oh.,- 301; 3 Rich.' Fq., 1; 23 S, C., 514; 22 S-. C., 229. Sales could only be had after judicial hearing: 9-9 U. S-., 731; 17 Ind., 173-; 50 Tex., 501; 103 U. S., 518. Representation by class is only permitted by necessity: 16 How., 2-88.</p> <p>cite: Order made with all parties in esse before Court is binding on after-born contingent remaindermen: 3 Rich. Eq., 1; 16 S. C., 155; 20 S, C, 71; 22 S-. C., 323, 412 ; 33 S. G., 293; 38.S. C., 188. All parties are bound by the present order: Code of Pr-oc., 140; 76 S. C.,156.</p>

<p>Before Watts, J., Greenwood,</p> <p>Action by E. W. -Netherland' against Charleston and-Western Carolina Railway. From order reversing judgment of Magistrate W. G. Austin, plaintiff appeals.</p> <p>cites: Defendant can not complain if damage claimed was less than suffered: 75 S. C., 229. Appellant entitled to penalty: 78 S. C., 291:</p> <p>No citations.</p>

Before Memminger, J., Clarendon, Action 'by M. DeLorme against Atlantic Coast L-ine Railroad Cbmpany. From judgment for plaintiff, defendant appeals. This case was not printed in numerical order because copy was mislaid. No .argument. cite: Penalty act is constitutional: 63 S. C., 169; 73 St €., 71, 140; 78 & C., 3'6. Freight receipt shows it was received by defendant: 76 S, C., 30-8.

Before Gary, J., Anderson, Action by Southern Railway against Jamies P. Gossett. From judgment for plaintiff, defendant appeals, on the following exceptions: 1. “Excepts because 'his Honor, the Circuit Judge, allowed the plaintiff’s witness, H. A. Wiliams, to answer over the obj ection of defendant, the following question: Do you know what is being done with the right of way noiw ?

<p>Before Hydrick, J., Darlington,</p> <p>Action by Charleston Live Stock Company against George Collins, Luke Outlaw and D. W. Smith. From order of Circuit Court affirming judgment of Magistrate Henry F. P. Sanders, defendants appeal.</p> <p>cites : Error to refuse continuance: 68 S. C., 138. As to notice: Code 1903, 245'6; Jones on Chat. Mtg., Sec. 2'56; 22 Einey., 1270'. Probate is not in proper form: 22 S. C., 332; 21 S. C., 268; 33 S. C., 436; 39 S. C., 89.</p>

<p>Before PjrincE, J., Richland.</p> <p>Action by J. I. Salley against Seaboard Air Rine Railway. From judgment on Circuit affirming clerk’s taxation of costs, defendant appeals.</p> <p>cite: Code, 1903, Chap. CIII; 35 S. C., 345; 45 S. C., 5; 47 S. C., Í63; 43 S. C., 363; 5 Ency. P. & P., 303; 11 Cyc., 313; 41 S. C.; 306; 44 S. C., 377.</p> <p>cite: 33 S. €., 313; 13 S. C., 397; 35 S. C., 343; 44 S. C., 5; 47 S. C., 163; 43 S. C., 363; 11 Cyc., 314; 44 S. C„ 376; 41 S- C., 306; 46 Ga., 454; 36 S. C., 554; Code of Proc., 373.</p>

<p>Before Gage, J., Greenville,</p> <p>Indictment against Eulus Brown for murder of Garvin Black. From sentence on verdict of guilty, with recommendation to mercy, defendant appeals.</p> <p>cites: Manslaughter: Crim. Code, ISO; 55 S. C., 32. Murder: Crim. Code, 109; 34 S. C., 120; 2 Strob., 77; 2 Bish. Cr. E., sec. 672. Malice: 2 Bish. Cr. L., sec. 675; 2 Strob., 77; 34 S. C., 120. Reducing killing from murder to manslaughter: 1 Bish. Cr. E., Sec. 321; 21 Ency., 173; 21 Am. St. R., 179; 8 Am. St. R., 477. Proof of self-defense: 29 S. C., 4; 40 S. C., 349.</p>

Before Mem mincer, J., Kershaw, 'Exceptions to return of appraisers in Anderson H. Bowen against Sarah A. True et al. Prom Circuit order confirming return, defendants, Sarah A. True, Charles Team, Thurston True, Julia Broom1, Mattie Broom', Roxie Broom and Pearl Eiskew, appeal. cites: Mrs. True can not take land at higher bid, as land is not ta be sold: 10 Rich., 328. cite: What appellants must show to have appraisement set aside: Rich, Bq., 180; 24 S. C, 208; 75 S, C., 369.

Petition by W. J. Thackston against J. P. Goodwin, supervisor of Greenville County, alleging that the supervisor has issued, under the aot… Held: and resulted in favor of the issuance of the bonds, .and after stating the legislation upon which' the original issue was based, says: “Defendant further alleges, upon information and belief, that the board of county commissioners, for said county are authorized and empowered, under Sections 2015, 2016 and 2020', Volume I, Code of…

<p>Ruled by case of Steele v. Poe, post, 407.</p>

Before Gary, J., Laurens, In the matter of rolles to show cause .against Ludie J. Moore 'and Tom J. Blalock in case of ‘State v. G. Wash Hunter. From order judging them in contempt, Moore and Blalock appeal. cite: Contempt: 49 SI C., 199; 3 Ftacy., 777. Nothing having been offered to shorn return of Moore was false, rule should have been discharged: 73 S. C., 193. Corruption of juror is indictable offense: 10' SI CL, 35; Crim. Code, 233.

<p>Before Prince, J., Lexington,</p> <p>From 'Circuit order reversing County Commissioners of Lexington 'County in refusing to' pay account of Dr. M. E. Mathias-, the County appeals.</p> <p>No -citations.</p> <p>No citations-.</p>

Before Gage, J., Charleston, Action by I. W. Banov and J. B. Garfunkle, copartners under the firm name of J. B. Garfunkle, against Bank of Charleston, National Banking Association. Prom order sustaining demurrer, pHaintiff appeals. cite: 9 L. R. A., 292; 51 S. C., 426. cite: Can not recover voluntary payment: 134 U. S., 547; 18 Ency., 220; 2 Rich- L., 319; 15 Rich. L., 284 ; 2 Speer, 83; 1 Rich. Eq., 414; 2 Rich.

<p>Before DanTzlER, J., York,</p> <p>Action 'by Woods M. Steele and Orrie A. Steele against Anna Fyle Roddey Poe, Orín S'. Pfc>e, W. F. Roddey, J. E. Roddey and J. F. Reid. From judgment for plaintiffs, defendants appeal.</p> <p>cite: The infants received consideration for the conveyance-: 31 Mich,, 182; 27 S'. C., 303. After majority infants should have dis-affirmed contract: 27 S, C., 304; 59' la., 697. Plaintiffs have ratified their deed since majority: 4 MoC., 245; 27 S'. €., 300'; 29 & C., 414; 27 S'. C, 302; 52 Miss., 574; 16 Fney., '306, 300'; 31 Minn,, 468; 55 Tex., 281; 4 Harr., 75.</p> <p>cites: Deed was without consideration to plaintiffs: 6 Fney., 690'-692; 52 S, C., 317; 16 Fney., 294 ; 26 F. R. A., 183; Tyler on Inf., Sec. 54; 18 S, C., 352; 3 Pom. Fq. Jur., isec. 1293. Plaintiffs were contingent remaindermen: 10 S. C., 376; 26 S, C., 451; 24 Fancy., 407; 4 Kent. Ooml, 281; Fearmle on Rem., 36'6; 2> Hill 'Ch., 235; 2 Stand. Eq. Jur., Sec. 1040b; 2 F. R. A., 741. How¡ ratification may be made: 27 S. C, 303; 1 Bail., 31; 11 Johns,, 542; Tyler on Inf., 89; 2 Grant’s R., 96; 36 Am. St., R., 25; 2 F. R. A., 742, Bstoppel does not apply to infants: Tyler on Inf., Sec. 54; 18 S. C., 3-5-2; 26 F. R. A., 183. A prejudicial .contract without consideration by a minor is void: 2 Kent., 236; 1 DeS., 596; 3 DeS,, 482; 76 S, €., 561.</p>

<p>Petition in original jurisdiction of this 'Court by A. R. Parker et al. against State Board of Canvassers for writ of certiorari.</p>

Before Aedrich, J., Lancaster, Action by Howell H. Shute against William H. Shute, John Shute and Joseph D. Shute. From Circuit order overruling deimlurrer to complaint and referring issues-, defendant, Joseph D. Shute, appeals. cites: Cloud must be apparently valid: 38 S. C., 268; 27 N. J. Eq., 568; 85 N. C., 329; 86 N. Y., 232; 44 Cal., 29; 40 N. Y., 547; 5 Minn., 95; 13 Wis., 641; 10 N. Y., 549; 71 Me., 235; 103 Ill., 410; 45 Si. C., 602.

Before Prince, J., Spartanburg, Spring Term, 1907. Action by J. P. Dobson against Postal Telegraph Cable Company. Prom1 judgment for -plaintiff, defendant appeals. cite: Condemnation is plaintiff’s remedy: 58 S. C., 5-3S. No action lies for trespass where entry is by permission: 62 S. C., 52. No evidence showing fraud: 2 Allen, 212; 15 Am1. R., 379; 43 Am. R.,166; 37 Am. D., 404; 74 S- C., 557. No evidence of zvilfulness: 69 S. C., 445.

<p>Petition by John M. Jordan in the original jurisdiction of this -Court for injunction against City of Greenville to restrain it from issuing certain municipal 'bonds.</p>

Before Hyd-rick, J., Florence, Action by Winslow Wright against T. C. Willoughby, as an individual and as trustee, James N. Willoughby et al. From judgment for plaintiff, defendant appeals. Mr. Clayton cites: Demurrer as to misjoinder of actions should have been sustained: 2 S. E. R., 393. Demurrer that second cause of action does not state a cause of action should have been sustained: Pom.

<p>Before Watts, J., Laurens,</p> <p>Action by Alice A. Young against Columbia, Newberry and Laurens Railroad Company. From judgment for plaintiff, defendant appeals.</p>

<p>Ruled by Stroud against same defendant, post, 447.</p>

<p>1. Principal and Agent — Railroads—Communicated Fires — Evidence. —Declarations of an agent of two railroads at a junctional point, who has charge of the yards and depot, that a locomotive of one road went up the other on some local business the night before at a certain time, emitting sparks, is admissible against the railroad owning the locomotive in an action against it for value of property alleged to have been destroyed by fire from sparks thrown out by said engine. Nelson v. jRy., 68 S. C., 462, and Petrie v. B. B., 27 S. C., 63, distinguished from this.</p> <p>2. Charge. — Statement of judge when ruling on admission of evidence, “If he does not know who that engine belonged to I do not know how anybody is ever to find out,” is not a charge on the facts, nor does it tend to influence jury against appellant.</p>

<p>Costs, — In appeals to Circuit from magistrate courts, parties are not now allowed by statute three dollars for proceedings before trial and live dollars for trial of appeal.</p>

<p>X. Judgment — -Partition.—The scheme of settlement in this case provided in the Circuit decree appealed from is in conformity with the previous judgment of the Court, and under it the appellant is only required to pay interest on his bid for the land less the credits established in his favor, from day of sale.</p> <p>2. Costs. — Circuit decree construed to provide for payment of costs out of general fund, but as there is now litigation over the costs, the amount set aside to pay costs should be held until this litigation is determined.</p>

Before Hydrick, J., Kershaw, Action- by T. G. Williams against I. Scotta Salmond. From Circuit order overruling demurrer, defendant appeals. cite: Where the agreement was the repairs should be made during term of lease, the agreement should be incorporated in the lease: 21 Ency., 1906-7. -cite: Agreement to make repairs need not be in writing: 18 Ency., 619; 34 L. R. A., 834.

<p>1. Condemnation — Nonsuit.—Where it is doubtful if a telegraph company is a domestic or foreign corporation, it is improper to grant nonsuit on ground that condemnation is landowner’s remedy for location of line.</p> <p>2. Ibid. — Ibid.—Telergaph Company. — But if defendant is treated as a domestic corporation, nonsuit was improper here, as condemnation only applies where entry is by permission, while here the permit was not put in evidence and the parol evidence tends to show defendant agreed to locate its line at a different place than where located, and the evidence as to paying damages is susceptible of the inference that the damages demanded and promised were for entry at a place agreed on and not the place actually occupied.</p>

Before Gary, J., Colleton, Action- by Ellick Williams- against C. H. R-icbembaker andi W. G. Hidtt. From order on Circuit refusing to disturb judgment by default given by J. F. Bryon, magistrate, defendants appeal. Mr. Hiott cites:' 19 S. C., 143; 27 S. C., 244; 46 S. C., 505; 64 S. C, 408; 65 S. C., 129. cite: 46 S. C., 505; 19 S. C., 143; 27 S, C., 146; Code of Proc., 368, 195.

Before C. C. EsathErstonk, Special Judge, Greenwood', Action by O. El D'evlin et al. against Charleston and Western Carolina Railway. From judgment for plaintiffs, defendant appeals. Messrs. McGhee & Richardson cite: Only ordinary care is required of railway: Hunter v. Ry., 41 S. C.; 24 A. & E. R. R. C., 606. Plaintiffs are estopped from prosecuting this action: 6 A. & D'., 469-474; Green Ev., par. 32.

<p>Real Property — Issues—Equity.—Where in an action for possession of land the pleadings raise only legal issues, it is improper to submit to jury equitable issue of title, although proof has been admitted on that issue.</p> <p>Parker v. Jacobs, 14 S. C., 112, distinguished from this case.</p>

<p>Before Gage, J., Marion, Spring Term, 1906.</p> <p>Action by J. C. Stevenson Company against P. W. Bethea. From judgment for plaintiff, defendant appeals on the following exceptions:</p> <p>First. “Because 'his Honor erred, it is respectively submitted, in not directing a verdict for the defendant at the close of the testimony in the case, as defendant established every material allegation of his answer, and there was no testimony or evidence tending to dispute the testimony adduced by defendant in support of the -material allegations of his answer.</p> <p>Second. “Because his Honor erred, it is respectfully submitted, in holding that the issue made at the recent trial was a ‘new issue and was not passed upon by the Supreme Court.3</p> <p>Third. “Because his Honor erred-, it is -submitted, in charging the jury on the subject of estoppel, there being no proof that Bethea ever ‘made an admission, or did an act about the note and mortgage in question, with intent to influence the conduct of Stevenson or that Bethea had reason to expect would influence the conduct of Stevenson, which admission or act by Bethea was inconsistent with the claim he now makes.’</p> <p>Fourth. “Because 'his Honor erred not only in charging the jury on the subject of estoppel, when there were no facts in. the case applicable to such charge, but also in making a deliverance on the subject of estoppel, before the plaintiff had closed his case, thus confusing the minds of the jury as to the real issues in the case.</p> <p>Fifth. “Because his Honor erred in refusing to charge defendant’s first request, which was as follows: Tf a party executes a note under seal and a mortgage to secure same to another with the express understanding that the latter is to negotiate them for money to be used in the payment of a certain debt due a third person, by the maker of said papers, the party in whose favor the papers were drawn would be an agent for said purpose and he could not legally transfer the papers except in accordance with his understanding with the makers of the papers.’</p> <p>Sixth. “Because his Honor erred in refusing to charge defendant’s second request, which was as follows: Tf such agent should assign such papers to another as collateral for goods, and drafts drawn, and all used in his, the agent’s business, and all in violation of the terms of his agency, the party taking such papers could not enforce the collection of them in the courts of this State.’</p> <p>Seventh. “Because his Honor erred in refusing to charge defendant’s third request, which was as follows: Tf B. S. Ellis, the mortgagee of the chattel mortgage in this case, which was given to- secure a sealed note, assigned it to the plaintiff, the plaintiff as assignee took both note and mortgage burdened with all trusts, if any, to1 which it was subject in the hands of said B. S. Ellis.’</p> <p>Eighth. “Because his Honor erred in refusing to charge defendant’s fourth request, which was as follows: ‘There is all the difference in the world in law between a promissory note and a single bill; for when the former is passed for value before maturity into the hands of a new holder, the maker loses all right to question its- Character. Not so as to a single bill, a sealed note; for when it is assigned to a third person, such third person or assignee takes it with all the infirmities it had when in the possession of the original obligee. The obligor can show that the single bill or sealed note was without consideration or is void from any cause.’</p> <p>Ninth. “Because his Honor erred in refusing to charge defendant’s fifth request, which was as follows: ‘If B. S-Ellis took the papers in question for the sole purpose of raising money for P. W. Bethea to be applied to a debt due a third party by P. W. Bethea, and if instead of raising money on them he transferred them- to J. C. Stevenson Company with the understanding that he would get for them mostly groceries and a small amount of money, and if he did later get groceries thereon for himself and drew drafts in favor of other parties than P. W. Bethea and not for P. W. Bethea, and he used the groceries and proceeds of the drafts in his own business, this would be a breach of his trust and the plaintiff could not recover in this action-.’</p> <p>Tenth. “Because his Honor erred in refusing to charge defendant’s- sixth request, which was as follows: ‘If B. S. Ellis took the papers in question for the sole purpose of raising $750 for P. W. Bethea to be applied to- a debt due a third party by P. W. Bethea, and if instead of raising money on them he transferred them to J. C. Stevenson Company with the understanding that he would get groceries for them and -did get groceries and $256.82 for himself thereon, he would thus be acting without authority and Bethea would not be bound -thereby.’</p> <p>Eleventh. “Because his Honor erred in refusing to charge defendant’s seventh request, which was as follows: ‘If a party executed a sealed note and mortgage to- secure same in favor of another, with the express understanding that the party in whose favor they are executed is to sell them for cash, and if the mortgagee disregards the understanding and sells them for groceries or for some groceries and a small amount of cash, the assignee could not enforce the collection of said papers out of the maker.’</p> <p>Twelfth. “Because his Honor erred in refusing to charge defendant’s eighth request, which was as follows: ‘The defendant is not required to split up the liability under the note and mortgage sued on to prevent a loss to the plaintiff. In law this defendant has a right to stand upon his contract as he made it.’</p> <p>Thirteenth. “Because his Honor erred in refusing to charge defendant’s ninth request, which was as follows: ‘The question of what Bethea may have been due Ellis at the time the papers in question were given can have no bearing on this case unless they were given to¡ secure that indebtedness.’</p> <p>Fourteenth. “Because his Honor erred in refusing ho charge defendant’s tenth request, which was as follows: ‘If Ellis used the papers in question for a different purpose than that for which they were given and Bethea did not ratify his act, then your verdict must be for the defendant.’</p> <p>Fifteenth. “Because his Honor erred in refusing to charge defendant’s eleventh request, which was as follows: ‘If the defendant, Bethea, has established the allegations of his answer by a preponderance of the testimony, then your verdict must be for the defendant.’</p> <p>Sixteenth. “Because his Honor erred in refusing to charge defendant’s twelfth request, which was as follows: ‘What Bethea may have been due Ellis either before or after the transfer of the papers to Stevenson Company can have no bearing on this case unless the papers secured such debt.’</p> <p>Seventeenth. “Because his Honor erred in refusing to charge defendant’s seventeenth request, which was as follows : ‘The assignment being for “all my right, title and interest” the assignee, Stevenson, would take no better title than Ellis had, and if Ellis could not legally transfer the papers for groceries and some money, 'his assignment for such a consideration is a nullity.’ ”</p> <p>cites: Mortgage is only a security for a debt: 38 S. C., 147; 16 Wall., 241; 63 S. C., 434. Negotiability of mortgage depends on character of instrument secured: 42 S. C., 170; 16 Wall., 271; 38 S. C., 138. Trust in personalty may be proved by parol: 14 S. C., 217. What acts of agent are binding on principal: 2 Bay, 205; 3 Rich., 42; 1 Ency., 993, 994, 962; 4 Strob., 427; 1 Hill, 204. Power can not be redelegated by agent: 1 Ency., 972, 1004-5, 1087-8; Story on Ag., Secs. 78, 98, 99, 113, 126, 128. Assignee of non-negotiable note takes subject to defenses: 42 S. C., 420, 291; 16 Wall. 273; 38 S. C., 138; 42 S. C., 170; 63 S. C., 433; Kerr on F. & M., 222; 2 Ency., 1080-; Mech. on Ag., Sec. 786; 6 Eq., 299; 137 U. S., 216.</p> <p>Mr. Buck cites: This is a sealed note or single bill: 68 S. C., 246. Ordinarily, assignee takes subject to defenses which maker had against payee: 68 S. C., 246; 38 S. C., 138; 63 S. C., 438. Ordinarily, no counterclaim or equitable defense can be set up in action of claim and delivery: 15 S. C., 458; 54 S. C., 4001. But equitable defense, putting in issue the making of a contract itself, is permissible: 45 S'. C., 111. Refers to equitable defenses existing at time of execution of contract: 27 S. C., 226. Innocent third parties may safely deal with an agent as having all the authority with which he is ostensibly clothed: 47 S. C., 147; 13 S. C., 5; 27 S. C., 134. Unauthorized acts of an agent afterwards conñrmed are binding: 56 S. C., 320. Defendant must establish affirmatively equitable defense by greater weight of testimony: 45 S. C., 121'; 47 SI C, 139'; 78 S. C, 430'. The scope of the agency and powers of an agent ewe questions for the jury: 57 S. C., 347. After condition broken in chattel mortgage, title to property vests in legal holder: 44 S. C., 315. And where equities are even, title will prevail: 55 Miss., 458; 71 Iowa, 256; 21 Minn., 435, 440.</p>

<p>Before Watts, J., Colleton,</p> <p>Motion by A. S. Morrall in case of Mittie H. Howell as executrix and M. P. Howard as executor of the will of M. P. Howell, Sr., against Atlantic Coast Pine Railroad Co., Charleston & Savannah Railroad Co., Green Pond, Walterboro & Branchville Railroad Co., and Savannah, Florida & Western Railroad Co. From order refusing motion, Morrall appeals.</p> <p>cites: The three last named companies do not nom exist: 205 U. S., 236; 151 U. S., 673; 124 F. R., 358; 104 F. R., 677; 30 Penn., 42; Field on Corp., 461; 60 P. R. A., 33; 29 Gratt., 773.</p> <p>cites: One not a party has no right to make this motion: 17 S. C., 116; 42 S. C., 318. Have three last named corporations ceased to exist: 31 P. R. A., 706; Code 1902, 1866; Acts 1902, 1054; 19 Ency. P & P., 659; 51 S. C., 129.</p>

Before Gage, J., Greenville, Action by George T. Clarke, administrator of David A. Campbell, against Home Fund Insurance Company. From judgment for plaintiff, defendant appeals. cite: Plaintiff must show, waiver: 83 Fed., 631; 39 Fed., 752; 144 U. S-, 449; 1 Joyce on Ins., Secs. 96, 97.

Before Wiuson, J., Lancaster, Action 'by John M. Eilms against Southern Power Company and Jamies P. Rosamond. Eromi judgment for plaintiff, defendants appeal. cite: Plaintiff assumed the risk, and is guilty• of contfibittory negligence: 5'8 S'. E., 10; Shearman & Red. Neg., Secs. 212, 217. Only negligence complained of was done by Rosqm\ond: 56 S'.

Before Hydrick, J., Hampton, Action by H. C. Koth against Pallachucola Club. From judgment for plaintiff, defendant appeals. cites: Tax deed is void because it shows on its face land was listed as belonging to heirs of “Ann May Mason:” Black Tax Titles, secs. 105, 108, 268, 262; 29 La. Ann., 509; Code of 1902, 268, 269, 270, 332; 76 S. C., 517; Cooke, 360; 9 S- W., 916; 16 Ind., 506; 36 La. Ann., 315; 25 N. E., 89.

Before Prince, J., Richland', Action by W. H. Sanford and J. I. Sally against Seaboard Air Line Railway. Prom judgment -for plaintiffs, defendant appeals. Mr. Craig cites: Classification under act (24 St., 6fi) is arbitrary: 63 S. C., 179; 73 S. C., 81. Bill of lading is not conclusive, but may be explained: 6 Cyc., 421; '23 Ency., 983.

■Before Watts, J., Saluda, Action by Luia Rearden against State Mutual Life Insurance 'Cbmpany. From judgment for plaintiff, defendant appeals. cite: Admission of evidence tending to1 contradict statement in application was improperly admitted: 70 S. C., 306; Vance on Ins., 382; May on Ins., Sec. 137; 3 Cool. Briefs on' Law, of Ins., 3518; 117 U. S., 519-; 92 Fed. R., 503; 40 L. R. A., 359'; 183 U. S., 308; 80 Fed, R., 684; 27 N. Y., 480'; 122 N. Y., 274.

<p>Carrier — Passenger—Issues.—Whether a conductor of a street ear should, under all the circumstances as they appeared to him at the time, or as they should have appeared to a person exercising due care, have assisted a lady passenger to hoard a train, is a question for the jury.</p> <p>Mr. Justice Woods dissents.</p>

Before Gary, J., Oconee, spring term, 1907. Indictment against H. Rudolph Rabens for knowingly receiving stolen money. From sentence on verdict of guilty, defendant appeals. Mr. Logan cites: Right of accused to preliminary examination: 40 S. C., 555. A defendant should not be tried in his absence when his punishment is imprisonment: 6 Ency., 998; 1 Cust., 433; 1 Bis'h. New Crim.

<p>Before Watts, J., Charleston,</p> <p>Action by Sophia IT. M. Fishiburne against Catherine E. Sigwald. From order sustaining demurrer, plaintiff appeals.</p> <p>cite: 37 S* C., 255; 4 Dess., 459; MoM. Eq., 245; 3 Stro'b. Eq., 66; 3 Rich. Eq., 1'56; 10' Rich. Eq., 362; 13 S. C., 532'; 25 S. C., 293; 67 S. €., 134.</p> <p>cites: 66 S'. C., 158; 4 Kent., 229.</p>

Before Memminger, J. Sumter, Action' by W. F. Hunter against D. W. Alderman & Sons Co. From order refusing motion for change of venue defendant appeals. cite: 74 S. C., 72, 438; 35 S. C., 578; 28 S. C., 313; 25 S. C., 365. oral argument.

<p>Before Purdy, J., Spartanburg,</p> <p>Action 'by Alice Ida Mayfield against Atlanta & Charlotte Air Line Ry. Co. From] order refusing to dismiss corm plaint, defendant appeals.</p> <p>cite: 57 S. C., 453: 93 U. S., 554: 99 U. S., 169: 108 Ky., 165: 14 Fed., 97: 4 Dill, 534 : 3 Cliff., 333: 4 McLean, 333: 6 Biss,, 503 : 33 N. H., 3'1: Story Bq. Ph, Sfec. 743: 73 Fed. R., 570: 3 McLean, 331: 39 Ind., 399: 89 Fed. R., 397: 98 N. W. R., 533 : 35 C. C. A., 531: 47 C. C A., SO1.</p> <p>cites: 58 R. R. A., 293, 410': 63 S. €., 374: 67 S. C., 514: 75 S. C, 326.</p>

Before Gage;, J., Anderson, Action by Pittsburg Plate Glass Company against J. F. and R. A. Monroe, trading as Monroe Bros. From judgment for plaintiff, defendant appeals.

<p>Murder. — To sustain a conviction for murdering an infant, it is necessary to prove the child was alive — that it had an independent circulation.</p>

<p>Before Klugh, J., Darlington,</p> <p>Action by James A. Cole, assignee, against L,. M* Ward, C. B. Edwards, E. E. Carrigan and John McSiween. 'From judgment in favor of Defendant Edwards, Defendants Carrigan and McSween appeal.</p> <p>Messrs. Stevenson & Matheson cite: Record in Florence County is not notice to subsequent creditors: 134 Mass., 404; 174 Mo., 636; London v. Youmans, 31 S. C. Certified c-opy is not admissible: 27 S. C., 337. Judgment creditor is entitled to interest Ward would have in land but for the improperly recorded deeds: 5 Dill., 505; 105 U. S., 703; 40 111., 160; 28 Minn., 402; 47 Tex., 165. Where both parties claim title from common source onus is upon defendant to prove his title: 23 S. C., 96; 26 S. C., 164. Notice of want of bona ñdes in deed by judgment creditor does, not affect right of appellants: Code 1902, 2456; 23 S. C., 543; 27 S. C., 516; 56 S. C., 472; 28 S. C., 45.</p> <p>Mr. Bdwards, cites: Declaration by Ward to Bdwards was not a declaration in his own favor: 16 S. C., 135; 48 S. C., 486>; 53' S. C., 31. Lien of judgment is limited to the actual interest of the judgment debtor: 2' Rich. Eq., 179 ; 1 M'cC., 107; 4 S. C., 375; 6 Rich., 441; 15 S. C., 135; 19 S. C., 134; 34 S. C., 399; 17 Ency., 770, 777, 778,.781, 784, 797, 798; 23' Cyc., 1368’, 1373-7, 1382-3, 1886. Adverse Moldings under deeds may be tacked to make up adverse period: 14 S. C., 180; McM. Eq., 35; 31 S. C., 581; 2 Bay, 339; 7 Rich., 511. Appellants are estopped from asserting their title now by remaining quiet for so long time, knowing others to be in possession, claiming title: 2 Rich. Eq., 190; 43 S. C., 441; 72 S. C., 502.</p> <p>Mr. Woods cites: Appellants are not subsequent creditors, and it does not matter if they had notice or not of the Florence deeds-: 27 S. C., 576; 57 S'. C., 288. The statute of limitations runs against the lien of a judgment and protects a purchaser from the judgment debtor: 2 Bay., 399 ; 7 Rich., 511; 11 S. C., 180'; 31 S. C., 581; 65 S. C., 535. There is no trespass involved- in this case, but respondenti traces title by successive deeds back to true owner, zvho conveyed before judgments were obtained against him, hence has a right to tack, and appellants are barred by statute of limitations: 2 Brev., 151; Rice, 10; 3 Strob., 331; 11 S. C., 189; 16 S. C., 132; 18 S. C„ 28; 50 S. C., 166. Rights of others having intervened, appellants are barred by zmexplained delay: 21 S. C., 90; 13 S. C., 136. Declarations of original owner as to character of possession were competent: 3 McC., 361; 16 S. C., 135; 18 S. C., 185.</p>

Before Hydrich, J., Barnw-ell, Spring Tema, 1907. Action by Edward' F. Woodward against Dizzie M. Cave. From judgment for plaintiff, defendant appeals. cites: Burden wm on plaintiff to show authority of T. S. Cme & Co-, to- bind! defendant: 3'9 S'. C, 554; 17 S. €., 338; 53 S. €., 114. cite: Agency may be proved by agent: 137 Ind., 197; 33 Am. D., 724.