Volume 80 — South Carolina Reports

<p>1. AdditioNAl Geotjuds — Practice.- — On appeal from an order permitting amendment to complaint after sustaining demurrer, respondent can not procure consideration of error in sustaining demurrer by motion to sustain the order allowing amendment on ground that it was error to sustain demurrer.</p> <p>2. Demurrer — Railroads — Passengers.—It is contributory negligence to alight from a train moving at a high and dangerous rate of speed. Here demurrer sustained to the complaint on the ground that the allegations show plaintiff was guilty of contributory negligence in alighting from the train.</p> <p>3. Pleadings — Amendment — -Motion to Strike Out.- — -An order permitting amendment of complaint as plaintiff may be advised, does not permit amendment at plaintiff’s wiU, but such as are permitted by Section 194 of Code of Procedure. Amendments permitted by this section stated. If amendment should not conform to Section 194 defendant’s remedy is motion to strike out.</p>

Before Prince, J., Horry, Summer Term, 1907. Action by Thomas Daggett Ogilvie against Conway Lumber Company. From, judgmlent for plaintiff, defendant appeals. cites: Assumption of risks was sufficiently pleaded: 70' S. C., 470; 61 S. C., 478; 66 S. 'C., 204; 75 S. C., 68. When 'action is for exemplary damages alone actual damages cannot be recovered: 14 S. E., 943, 947; 37 S. C., 194. cite: Assumption of risks should be pleaded: 73 S. C., 503.

<p>1. Real Property — Mines — License.—An agreement to sell by sufficient deed the mineral and mining rights of land, speaking of the buyer as purchaser, and binding the heirs and assigns of the respective parties, is not a license revocable at will, but confers on the purchaser an interest in land which he may assign.</p> <p>2. Lease — Ibid. — Specific Performance. — An agreement not specifying when the purchaser of mineral rights shall mine and what quantities, where the sole compensation .to lessor is a share of what is produced, is not lacking in mutuality. These things will be implied and lessee may be required to mine such quantities, within such time, as was within the reasonable contemplation of the parties. Such agreement may be enforced by specific performance.</p>

<p>Dower — Wills. — A devise to the wife of a small tract of land “for life or widowhood,” separated from a devise in consideration of debt by a period, and connected with it by the word “also,” held to be not in consideration of a debt; and the acceptance of the devise under the will held not to bar the wife of dower in other large tracts of land than those devised for life and for debt.</p>

<p>Before Gary, J., Lexington, August, 1905.</p> <p>Action by W. A. Hudson against Sol. D. Schumpert. Prom judgment for defendant, plaintiff appeals.</p>

Before Gary, J., Lexington, August, 1905. Action by W. A. Hudson against Joseph S'dhumpert. Upon motion of plaintiff to direct a verdict the Circuit Judge made the following order: “These two cases were tried before me and a jury by consent. At the close of the evidence, the attorneys for plaintiff moved the Court to direct a verdict in each case as the facts were not contested, 'and the case rested upon the law, records and deeds.

Before Memminger, J., Richland, December, 1906. Action by J. G. Feaster against F. D. Kendall. From judgment on Circuit, plaintiff appeals. cites: Possession and payment of purchase money takes case out of statute of frauds: 59 S. C., 356; 26 S. C., 251. Statute must be pleaded: 20 Ency. P. & P., 468; 23 Ill., 39; 52 N. Y., 638; 5 Wend., 630; 9 Ency. P. & P., 711, 715, 717. Equity will set aside fraudulent deed: 13 S. C., 449; 5 Ency. P. & P., 398; 9 Id., 704.

Before Gary, J., Berkeley; November, 1906. Action by Emma A. Heape against Berkeley County, Joe R. Brown, Nathan Taylor, J. H. Harvey and Daniel T. Baxter. From order sustaining demurrer, plaintiff appeals. cites: There is a distinction between duties of county officers which are of a general governmental character and those which affect particular interests: 2 Dill.

Before Watts, J., Laurens, May, 1907. Action by J. T. Blassingame against the city of Laurens and its city council From judgment for plaintiff defendants appeal. cite: Mistake being pleaded, conversation preceding bid should have been admitted: 21 E«cy., 1097; 1 Green. Bv., 284; 57 S. C., 60. Contract in writing and bond should have been executed to make out the contract: 1 Dill., Secs. 259-270 ; 7 Eney., 140; 87 U. S., 422; 20 Eing. R., 201.

Before Dantzl^R, J., Spartanburg, December, 1906, Action by Mary E. Wood against Pacolet Mfg. Co. From judgment for plaintiff, defendant appeals. cites: Judge should render his own judgment on equitable issues and not make it depend on verdict of jury: 6 S. C., 212; 9 S. C., 147; 12 S. C., 53; 2-8 S. C., 81. Negligence and wilfulness are distinct causes of action: 64 S. C., 491; 72 S. C., 257; 74 S. C., 237; 61 S. C., 170.

Before Purdy, J., Greenwood, April, 1907. Action by L. H. Rykard against Seaboard Air Line Railway. Prom order on Circuit affirming judgment of magistrate, W. G. Austin, defendant appeals. Mr. Glenn cites: A non-resident may be garnished in Georgia: 57 S. E., 104. The garnishment proceedings in Georgia are binding on plaintiff: 198 U. S., 215; 200 U. S-., 176. Messrs. Grier and Park cite: This case is controlled by Brwirís case: 71 S. C., 229.

<p>Before Gage, J., Greenville, May,' 1907.</p> <p>Action by Louis M. Hubbard against Furman! University and E. C. James. From circuit order setting aside service of amended complaint, plaintiff appeals.</p> <p>cites: 61 S. C., 555; 17 S. C., 218; 54 S. C., 223.</p> <p>cite: 3 S. C., 606; 20 S. C., 153; 28 S. C., 449; 26 S'. C., 474; Code of Proc., 194; 21 S. C., 221, 226; 24 S. C., 165; 57 S. C., 235.</p>

Proceeding in the original jurisdicition of this Court in the nature of quo warranto by J. J. Jernigan, as intendant, and I. McP. Gregorie, M. Herman and S. B. Thompson, as wardens of Port Royal, against John Stickley, John b. Wall, Pat Wall, M. B. Cope and J. b. Paul.

Before Gary, J., Kershaw, March, 1907. Motion to discontinue in William J. Shelton against Southern Railway-Carolina Division and Southern Railway. From order granting leave to discontinue, defendants appeal. Mr. Abney cites: As to right of discontinuance: Code of Proc., 391, 392, 395; 60 S. C., 177; 3 McC., 558; 1 Sp., 329; 1 Rich. Eq., 294; 65 S. C., 500.

<p>EauiTV — Remaindermen. — An action by a devisee in possession of devised land, having acquired title of another devisee, against remaindermen in esse, for construction of the will, alleging that he holds a fee simple estate in the land, asking for partition if claim of others should he decreed valid, and sale and change of investment is in equity, and rights of remainderman not in esse are bound by decree.</p>

Before Gary, J., Charleston, June, 1907. Action by H. B. Whilden against Jos. P. Chapman and W. P. Murphy as copartners under name of Chapman-Murphy Company. Prom circuit order appointing receiver and continuing injunction, defendants, W. P. Murphy and S'. V. Murphy. Appeal. cite: Pendency of undetermined motion is bar to subsequent motion for same relief: 14 Ency. P. & P., 190'; Rule 61, C. C. Receiver should not be appointed in advance of showing of insolvency: 53 S'.

<p>Before Gage, J., Greenville, May, 1907.</p> <p>Indictment by city of Greenville, against Sherman Latimer, for larceny.</p> <p>Prom Circuit order reversing judgment of Mayor, city appeals.</p> <p>cites: McQuillan Mun. Corp., Sec. 328; Criminal Code, 164; 7 S. C., 224; 15 Rich,, 352; 55 S. C., 324.</p> <p>cites: Code 1902, 2003; Criminal Code, 68; 43 S. C., 105.</p>

<p>1. Evidence — Secondary. — Divorce in a foreign State may be proved by the acts and lives of the parties, and the general repute in'the community as secondary evidence after proof of loss by fire of the records of the court in which the divorce was granted. Admission of the laws of a foreign State relating to divorce was proper here under agreement that case should be heard on an agreed statement of facts and the testimony which may be taken by the parties.</p> <p>2. Wills. — .Under provision of will that executor shall sell the property and divde the proceeds “share and share alike between all my living sisters or the lawful bodily heirs of any who may not be living,” the division should be made between the living sisters and the lawful bodily heirs of deceased sisters per capita.</p>

Before Prince, J., Williamsburg, October term, 1907. Action by Wilson Lumber Company, against Alderman & Sons Company. Prom Circuit decree, defendant appeals. Messrs. Shand & Shand cite: One decision should not sustain doctrine of stare decisis: 3 Hill, 306; 6 S. C, 3©4; 19 & C., 165; 13 S. €., 574. Timber deeds cowoey an interest in realty: 35 Cyc., 1549; 33 C'en. Dig., 3038, Sec. 86, 308®, Sec. 89- 30'87, Sec. 117; 4 Lead. Cos., Am. L. R. P., 510, 515; 55 L. R. A., 514.

Before Memminger, J., Spartanburg, March, 1906. Action by B. A. Powers et al. against S. F. Smith et al. From judgment for defendants, plaintiffs appeal. -cites: Possession of one tenant does not begin to be adverse to other cotenants until ousted: 61 S. C., 289; 13- Rich., 60 ; 2-6 S. C., 244; 1 Eincy., 533; 48 S'. C., 293.

Petition in the original jurisdiction of this Court by J. Eraser Eyon, Attorney-General, in behalf of State against Palmetto Bowling Club, Henry Nolte and Chris H. Nolte, to restrain them from maintaining a pleasure resort to which persons are accustomed to go to drink alcoholic liquors as a beverage.

Petition ini the original jurisdiction of this Court by J. Fraser Lyon, Attorney General, in behalf of State of South Carolina against S. P. Schiaderessi and R. M. Marshall & Bro., to restrain them from keeping a place where persons resort to drink alcoholic liquors and beverages.

Petition in the original jurisdiction of 'this Court by J. Fraser L/yom, Attorney General, on behalf of State of South Carolina against Charleston Turnverein Society and Herman Stranni, to restrain them from- keeping a place where persons are accustomed to resort to- drink alcoholic liquors and beverages.

Petition in- the original jurisdicition of this Court by Attorney General, J. Fraser Lyon, inbehalf of State of South Carolina against J. P. Carroll, E. W. Wynne and S. E. Welch, to restrain them from keeping a place where persons are accustomed to resort for the purpose of* drinking alcoholic liquors and beverages.

Petition in the original jurisdiction of this Court by Attorney General, J. Fraser Dyon, in behalf of the State of South Carolina against Riddock & Byrnes, Danny Dixon and James F. Walsh, to restrain them from keeping a place where persons are accustomed to resort to drink alcoholic liquors and beverages.

Petition* in the- original jurisdiction of this Court by J. Fraser Lyon, Attorney General, in behalf of the State of South Carolina, against Riddock & Byrnes, Ernest Gilman and the Argyle Hotel Company, to restrain them from keeping a place where people are accustomed to resort to drink alcoholic liquors and beverages.

Petition in the original jurisdicition of this Court by J. Fraser Lyon, Attorney General, on behalf of the State of South Carolina again-st Riddock & Byrnes, Ernest Brown and thé New Charleston Hotel Company, for injunction. cites: Legislature may declare certain places or acts nuisances: Joyce on Nui., Sec. 31; 152 U. S., 136. Courts of equity hai/e jurisdiction to enjoin public nuisances: 78 SC., 286; 1 Spell, on Ext.

Petition in the original jurisdiction! of this Court by J. Fraser Lyon, attorney-general, in behalf of the State of South Carolina, against German Rifle Club of -Charleston and G. Munzenimiaire to restrain themi from keeping a place where persons are accustomed to resort to drink alcoholic liquors and beverages.

Before Wilson, J., Fairfield, October, 1907. Petition for mandamus by J. Frank Fooshe against J. B. Burley as County Supervisor of Fairfield County. From Circuit order commanding tbe -writ to issue, the respondent appeals-. cites: Bven if statute is unconstitutional appellant could not ignore: 47 L. R. A., 524; 48 S'. C., 95; 4 S-. C., 431; High Fx. Ream., Sec. 140; 16 S. C., 39; 3b S- C., 519. Issuance of writ is discretional with this Court: 64 S'. C., 564; 73 S. C., 398.

<p>1. Pasties — Cabbiebs — Passehgebs.'—In an actoin against several connecting carriers for failure to perform the contract of carriage made by one to carry the wife and husband over all, the husband and wife may join as parties plaintiff, and the allegations here construed to allege inferentially a joint contract of carriage and special delict of appellant.</p> <p>Mr. Justice Gaby dissents.</p> <p>2. Rajxboads — Intebstate Commebce. — The attachment of a car belonging to a foreign railroad company in possession of a railroad company in this State in pursuance of an interstate shipment while unloaded and standing on the track in this State, but to be reloaded and returned within a reasonable time, is violative of interstate commerce.</p> <p>Mr. Justice Gaby thinks this car had already been here for a reasonable time.</p> <p>3. Attachment. — Service on agent of railroad in this State having in possession car of foreign railroad of notice and warrant of attachment, taking memoranda of number and name of car and notifying yardmaster of levy, is sufficient seizure under attachment.</p> <p>4. Ibid. — Removal of car from place where attached and return to its foreign owner in interstate traffic does not destroy attachment lien.</p>

Before Gage, J., Beaufort, September Term, 1907. Action by Susan Heyward, Robert Heyward and Lucinda Washington against N. Christensen. From judgment for plaintiffs, defendant appeals. cites: Auditor’s deed is prima facie evidence of good title: Acts 1868, 63.; Rev. Stat., 1873, 33; Acts 1874, 773; 18 & CL, 543; 15 S. C., 193; 31 S. C., 555; 40 S. C., 133; 75 S. C, 353. cites: Appellants should show all prerequisites to delinquent sale had been h&d: 15' S. C., 193'.

<p>Before Dantzler, J., Lancaster, March term, 1907.</p> <p>Action by W. D. Craig against United States Health and Accident Insurance Company. From' circuit order affirming judgment of magistrate, defendant appeals.</p> <p>cites: Failure to give notice, as required, avoids the policy: 1 Cyc., 274; 60 At. R., 1069; 25 Pa. St., 559; 46 S. E., 678; 36 S. E., 764; 86 S. W. R., 491; 42 Fed. R., 653. Sunday is included if act is to be done in more than one zwek: 87»Wds., 152; 85 Ky., 88; 24 Am. D., 463; 38 How., 449; 2 McC., 436; 4 Strob., 486. Notice to agent here within time was not notice to Company: 36 S. C., 764; 78 Pac., 135.</p> <p>cites: Provision requiring notice in Michigan in ten days is unreasonable: 46 S. C., 495; 78 S. C., 77. Substantial compliance with terms of policy as to notice is sufficient: 36 S. F., 764 ; 1 Cyc., 274; 88 S. W., 125; 78 S-. C., 433. Service of notice by mailing within the time is sufficient: 53 S. C., 155; 12 S. C., 562; Code of 1902, 848; 87 N. W., 546; 78 S. C., 73.</p>

<p>1. Jurisdiction — Probate Court — Administration. — In a suit by administrator in probate court to sell lands in aid of assets, the court has jurisdiction to ascertain the debts of a deceased heir at law whose administrator is a party defendant, and whose answer seeks affirmative relief and also sale of lands of his intestate in aid of assets.</p> <p>2. Parents and Child — Nurse Bill. — The rule as to proof of contract for services of child to parent since deceased applies in case of services by step-daughter to step-mother. Evidence here held to show services were rendered and received under expectation that compensation would be made.</p> <p>3. Debtor and Creditor — Administration. — Power not coupled with an interest is limited to the lifetime of the donor. One buying notes of a decedent after his death, at his request, and under his promise to pay them out of his estate, made in his lifetime, has no higher rights than an assignee of the notes.</p> <p>4. Limitation op Actions. — A note of a decedent against which the statute had begun to run in his lifetime, but who dies before the bar is complete, may be sued after the statutory bar and within one year after grant of administration.</p> <p>6. Debtor and Creditor — Administration. — Claim of son for expenses of a trip from a distant State to visit his father in his lifetime at his request and under promise to pay out of his estate, allowed.</p>

Before Watts, J., August, 1907. Indictment against W. I. Henderson and Alfred Free for murder of M. M. Morse. From sentence on verdict o>f guilty of manslaughter, defendants appeal. The parties furnished no' “Case” or Briefs for Reporter. The opinion in this case was filed February 17, 1908, but remittitur held up on petition for rehearing until

Before Purdy, J., Charleston, August, 1907. Action by J. R. Sturgiss against Atlantic Coast Line R. R. Co. The following is the circuit decree after stating the issues: “In view of the nature of the issues presented, a brief statement of the character and workings of the Relief Department will be necessary.

<p>Before Purdy, J., Union, June, 1907.</p> <p>Action by Knight, Yancey & Co. against .¿Etna Cotton Mills. Prom order permitting plaintiffs to amend their complaint, defendant appeals.</p> <p>cite: 8 Ency., 1007, 1010'; 45 S. C., 368; Code 1902, 2310; 72 S. C., 37; 18 S. C., 316; 57 S, C., 266; 24 S. C., 476.</p> <p>cite: 72 S. C., 35; 45 S. C., 344; 64 S. C., 246; 35 S. C., 361; 73 S. C., 368; 70 S. C., 266; 68 S. C., 506; 30 S. C., 564.</p>

Before Gage, J., Greenville June, 1907. Action by E. E. Griffin against William P. Forrester and McLane Forrester as executors of Mary P. Robertson. From judgment for plaintiff, defendants appeal. cite: Witness may be cross-examined in 'any way to affect his credibility: 1 Green, 445,= 446; 16 S. C., 540'; McKlevey on Ev., 335; 44 S. C., 357. Oral argument.

Before Gage, J., Beaufort, September, 1907. Action by Arthur R. Guerard' against Esther E. Jenkins, Robert E. Jenkins, Heyward Jenkins and Stockton Jenkins. Prom order sustaining demurrer, plaintiff appeals. cites: Plaintiff can maintain action to remove cloud from title: 71 S. C.. 522; 15 S. C., 337; 17 Ency., 669; 43 S. C., 38; 33 S. C., 404. No allegation of possession by defendants and adverse claim: 76 S. C., 517; 14 S. C., 493; 26 & C., 497; 26 S. C., 244.

Before Gage, J., Greenville, June, 1907. Action by Lee James against Fountain Inn Manufacturing Co. From judgment for plaintiff, defendant appeals. cite: The negligence alleged was not the proximate cause of the injury: 70 S. C., 202; 1 Thomp. Neg., Sec. 49, etc.; 60' L. R. A., 459; 52 S. R., 627; 67 S. W., 90'; 57 At., 718; 63 Fed., 400'; 67 S. C., 290; 21 S, C., 93; 90 Ala., §2; 32 At., 965; 63 N. W., 517; 93 Ga., 590; 7 L- R. A., 955,'907; Wat. Per. Ini., sec. 82.

Before Prince, J., York, November, 1906. Action by Isaiah Gadsden, by guardian ad liiem, against Catawba Pbwer Company.

<p>Criminal Prosecution' — Compounding Felony. — A Mortgage, given to secure a valid existing indebtedness, the giving having been induced by promise of mortgagee not to prosecute the mortgagor for violation of a criminal statute if paid at maturity, is valid. That the statute under which the prosecution was threatened was void, held not to affect the transaction.</p> <p>Mr. Chief Justice Pope dissents.</p>

<p>Before Dantzler, J., York, April, 1907.</p> <p>Motion by defendant to transfer from Calendar 1 to Calendar 2, and for order of reference in case of R. Andral Bratton, William E. Bratton, Robert Moultrie Bratton, Thomas Sumter Bratton and Hattie Elizabeth Plamaban against Catawba Power Company. From order refusing motion, defendant appeals.</p> <p>Mr. Lucas cites: Issues in this action are properly triable by the Court: Code of Free., 274; 5 S. C., 411; 17 S. C., 32; 27 S. C., 408; 39 S. C., 452; 37 S. C., 161; 44 S. C„ 161; 53 S. C., 129; 69 S. C., 186; 70 S. C., 253; 75 S. C., 471; Code of Proc., 275; 4 S. C., 145; 33 S. C., 389; 73 S. C., 533; 8 Rich. Eq., 46; 10 S, CL, 476; 29 & C. 447; 105 N. Y., 319; 29 N. E-, 315; 104 Cal., 369; 23 Mass., 376; 6 Pa. Co, Ct. R., 87. Issue of title here raised should also be tried by the Court: 5 Rich, Eq., 351; 25 S. C., 72; 30 S. C., 234; 69 S. C., 231; 33 S'. C„ 389; 56 Fed., 827; 63 Fed., 508; 10'4 Col., 369; 71 N. Y., 333; 105 N. Y., 321. . The issue of damages arises in an equitable action and is triable by the Court: 8 Rich, Eq., 46; 10 S. C„ 476; 23 S. C., 129; 29 S. C., 447; 105 N. Y., 319; 29 N. E., 315; 31 Ohio St., 209; 11 N, Y. Sulpp'., 488; 91 Ind., 44; 25 Kan., 588; 43 S. C„ 187; 47 S'. C., 187. Allegations shozv damages are permanent in nature: 23 N. H., 102; 25 la., 652 ; 70 la., 145-; 10 Bush,, 393'; Pierce on R. R., 230; Mayne on- Dam., 611; 24 Am. R., 792; 57 Mich., 83; 103 Ind., 314; 91 111., 312; 23 Kan., 585; Gould on Waters, 259; 70 la., 145. Damages of a permanent character should be recovered in one action — past and prospective: Gould on Waters, secs. 411, 416; Wood on Nuis., sec. 869; 23 N. H., 101; 15 Pide., 198; 3 Den., 283; 17 Ohio, 489; 17 Am. R„ 106; 113 Ind'., 425; 90 111., 339; 10 Bush,, 393; 56 la., 470 ; 63 la., 36; 16 New., 387; L. R. 3 Q. B. Div., 389; 5 Met, 81; 61 Pa., 302; 92 111., 19; 110 N. C., 325; 4 Dali., 147; 11 Av. & El., 41; 3 Suith. on DIam., 403 ; 32 N. E., 693; 35 111. App,, 174; 19 Ami. R., 67; 70 la., 145; 5 N. H., 567; 8 Gray, 397; 107 Mas®., 352; 112 Mass., 354; 135 Mass., 508; 69 Me., 255; 78 N. Y„ 423; 63 N. Y., 884; 45 la., 654; 88 la., 281; 56 la., 470; 7 Ind. App., 199; 91 111, 312; 20 N. J. D, 249; 61 Penn. St., 302; Freem. on Judg., Secs. 241, 249; Herman on Est., secs. 222, 77; Gould on Waters, S'ec. 210; 39 Kan., 465. Defendant may compel assessment of permanent damages in this action: 24 S. E., 730; 25 S. E., 722; 32 S, E., 681; 41 S, E., 1030, 1022; 5 West., 887. This right is not always confined to quasi-public corporations: 52 S. E., 954; 47 S. E., 114; 54 S. E., 85; 58 At, 46; 107 N. W., 404; 85 Pac., 344; 149 Fed., 568; 88 Pac., 773; 23 Am. D., 756; 71 Pac., 1069; 76 Pac., 447 ; 99 N. Y. Supp., 109; 92 Id., 960; 97 Id., 1057; 57 At., 904; 77 S. W., 868; 12 Cush., 475; 3 Famh. on Wat., Sec. 697; 10 Enicy., 1064; 78 Pac., 296; 47 N. H., 444; Kear'by on Elec. Wires, S'ec. 161. Defendant’s affirmative defense is purely equitable and is exhaustive of the legal issue of dam,ages: 73 S-. C., 533; 47 S'. C,, 187; 43 S. C., 187; 52 S. C., 461; 69 S. C., 231; 96 Mo'., 598; 131 Mo., 321; 92 Hun., 454; 29 Mo. App., 271; 11 Ency. P. & P., 632. Court below h)ad no discretion in the matter: 75 S. C.,‘473; 27 S. C., 408; 43 S. C., 187; 66 S. C., 455; 16 S. C., 331; 54 S'. C., 167; 11 S. C., 445; 6 S. C., 209.</p> <p>Messrs. Witherspoon & Spencers cite: Issues raised are not triable by jury as of right: 66 S’. C., 459; Code of Proc., 274, 275. Complaint states an action in equity: 27 S'. C., 447 ; 4 Suth. on Dam, 3032; 156 N. Y., 600; 29 N. E., 315; 23 S. 'C., 129. General denial of amended answer does not alter situation: 69 S. C., 231.</p> <p>cites: Order is not appeal- _ able: 42 S. C., 138; 61 S. C., 1. Complaint states a legal claim for damages: 42 S. C., 96. That a demand for injunction is united with this does not change it: 42 S. C., 96; 24 S. C., 39 ; 17 S. C., 411. Unless there is'abuse of discretion this is not an appealable error: Code of Proc., 279; 52 S. C., 462; 33 S. C., 395. There is no error in refusing the motion: 42 S. C., 92; 17 S. C., 411; 24 S. C., 39; 42 S, C., 138; 36 S'. Cj 561; 61 S. C., 1; 42 S. C„ 96.</p> <p>The opinion in the case was filed March 6, but remittitur held up on petition for rehearing until</p>

<p>1. Insurance. — Request of insured for a different policy with change of beneficiary is no evidence of refusal to accept policy issued, and here the insurer treated the policy as valid by requiring of insured the same security against demands under the first policy, which had been lost, as it required against a valid policy lost.</p> <p>2. Ibid. — Presumptions.' — Delivering policy presumes payment of premium. But here, from fact of delivery, failure of agent to demand payment and act of company in referring to the policy as “issued” and “granted” and by number, in form sent to insured to obtain a different policy and to secure company against any demand on account of the lost policy, jury may have inferred credit was extended insured.</p> <p>3. Evidence. — Letters of president of insurance company to the insured, as an agent of his company, commending his prompt settlements, were irrelevant here, but their admission was not prejudicial error.</p> <p>4. Ibid. — Insurance. — That insured had not solicited credit as an affirmative fact was competent under the evidence in this case, but its exclusion harmless, as the witness had previously testified to practically the same fact.</p> <p>5. Ibid.- — -Ibid. — Letter of general agent to a local agent of an insurance company requesting return of other policies and making no reference to the one issued on the life of the local agent is competent on the issue of extension of credit to the local agent for premiums due on his own policy.</p> <p>6. Issues. — Whether a lost contract, alleged to be in writing and proved by secondary evidence, was in fact in writing, is for the jury.</p> <p>7. Ibid. — Insurance — Waiver.—Under the evidence in this case, the judge properly submitted to the jury whether the insurance company, through its general agent, had delivered the policy as a binding contract on a promise to pay, and thus waived payment of first premium in cash.</p>

Before Klugi-i, J., Horry, Fall term, 1906. Action by James Battle against Cape Fear Rumber Company and J. C. Causey. From judgment for plaintiff, as to tracts 2, 3 and 4 of land, defendants appeal. cite: Admission of plats was error: Code 1902, 2895; 2 Bay., 525; 2 Bail., 296. Who may maintain action for trespass: 28 Ency., 573, 580; 128 N. C., 301. cites: Office copy of grant properly adnwtted: Code 1902, 2895; 38 S-.

Before Memminger, J., Charleston, August, 1907. Action 'by Pearl C. Messervy, by guardian ad litem, against John: E. Messervy. Prom order requiring defendant to pay suit money and alimony pendente lite, defendant appeals. cite: Alimony can only be awnrded out of estate or income of husband: 10 Rich. Bq., 426; 44 E. R. A., 725. cite: Judge has jurisdiction at chambers to award temporary alimony and suit money: 51 S. C., 379.

Petition in the original jurisdiction of this Court by John E. Messervy for writ of habeas corpus to relieve him of restraint of writ of ne exeat, issued in case of Pearl C. Messervy against John E. Messervy.

<p>Before MrmmingEr, J., Florence, June, 1907.</p> <p>Action by M. M. Brown against S. D. Rogers and J. F. Stackley. From Circuit order defendant Rogers appeals.</p> <p>Oral argument.</p> <p>cite: 13 S. C., 259; 1 McC., 32; 6 How., 201; 7 Wall., 342.</p>

<p>1. Warranty of Personal Property. — A seller of personal property is held to warrant the articles sold to be of value for the purpose for which it is^ordinarily used, and when a machine proves to be absolutely worthless for the purpose for which it was sold, the purchaser is entitled to a rescission of the contract.</p> <p>2. Ibid. — Representations by a seller that a typesetting machine would do certain work in a certain manner, which was necessary for its efficient use in the business in which it was to be used, made to a purchaser who was ignorant of the mechanism and operation of the machine, amounts to a warranty of the machine, even though the buyer had opportunity to examine the machine, but he had not an equal opportunity with the seller to know the workings of the machine.</p> <p>Mu. Chieíf Justice Pope dissents.</p>

Before Gage, J., Aiken, Fall term, 1906. Action by Herman Plunkett, by guardian ad litem, against Clearwater Bleaching and Manufacturing Company. From judgment for plaintiff, defendant appeals. cite: Evidence as to repairs after accident incompetent: 51 S'. C., 22-9; 21 Ency., 520; Wig. on Ev., sec. 283; 36 Am.' R., 595; 18 Am.

Before J., Orangeburg, Fall Term, 1907. Indictment against Pink Pranklin and Sad Pranklin for murder of Henry P. Valentine. Prom sentence on verdict of guilty, as to Pink Pranklin, he appeals. oral argument. The opinion in this case was filed March 17,1906, but petition for writ of error to United States Court held up remittitur. The writ was issued and record certified up.

<p>Contract — Broker. — Where two tenants in common make a real estate broker their agent with exclusive right to sell the common property, and the other tenants deal with him as their agent and recognize his right to commissions in case of sale and permit him to expend considerable labor and time in the effort to sell the property on the faith of the agency, and finally all of them, without revoking his agency and while he was trying to sell, sell the property to one with whom he had' been negotiating, the broker is entitled to his commissions.</p>

Motion -in State against Will Foster to suspend appeal, with leave to move the Circuit Court for new trial on after-discovered evidence tending to show a juror sat in case with determination to convict.

Before Hydrick, J., Bamberg, Winter Term, 1907. Indictment against Herbert Boyles for larceny. Prom sentence on verdict of guilty, defendant appeals. Mr. Mayfield cites: Attorney should confine himself in argument to issues in cáse: 77 S. C., 409; 26 S. C., 118. The opinion herein was filed Pebruary 10, 1908. Petition for rehearing was filed and remittitur held up.

<p>Corporations — Railroads — Estoppel.—Where two railroad corporations, having corporate residence in different States, merge into one corporation in this State and voluntarily file the certificate of charter with the Secretary of State, as required by the State statutes, and are doing business as such corporation in the State, the new incorporation is estopped from contending it is not a domestic corporation and must be regarded a citizen of this State.</p>

Before Purdy, J., Saluda, April, 1907. Proceeding in ejectment before Magistrate J. H. Ethridge by W. M. Mayes, against B. B. Evans. From circuit order reversing judgment of magistrate, plaintiff appeals. cites: The statute does not mean defendant can not be required to answer in less than three days: Code 1902, 242-3; 29 Ency., 521; Code of Proc., Sec. 71, Sub. 12; 88 Sub. 17, 149s; 6 S. E., 859; 47 S. C., 243; 24 S. C., 507.

<p>Motion in this Court by Gus Lee to suspend appeal from order of Judge Gage refusing motion at chambers for new trial on after-discovered evidence, and for leave to make motion below for new trial on same ground. The case was tried in this Court at November Term, 1907, and opinion filed February 7, 1908, 79 S. C., 223, 60 S. E., 524. The motion appealed from was made on circuit at chambers after remittitur filed below. The motion was made first in this Court on the 28th day of May, 1908, and on the 2d day of June, 1908, was ordered to be argued before the Court en banc on June 4, 1908.</p> <p>The Court en banc was composed of the Chief Justice, the three Associate Justices and the following Circuit Judges: Aldrich, Watts, Gary, Hydrick, Klugh, Memniinger and DeVore.</p>

Before Klugh, J., Georgetown, November Term, 1907. Indictment against Peter Daniels for receiving stolen goods. Erom sentence on conviction, defendant appeals. cites: Pacts raising suspicion that property was stolen will not justify a conviction: 24 Ency., 46-7; 78 N. €., 484; 65 N. J. L... 394; 1 E. & E., 86. Record of conviction of larceny is not conclusive against this defendant: Eoster Crim. Law, 365; 3 Arch. Crim.

<p>Drawing Jurors. — Under 23 Stat., 1066, and sec. 2909 of Code of 1902,-if sheriff has no authority to assist county auditor and county treasurer in drawing jurors in absence of clerk of court and county superintendent of education, the jurors were properly drawn by the county auditor and the county treasurer. The presence and assistance of the sheriff in the drawing do not vitiate it in absence of suggestion of prejudice to appellant.</p>

Before James Aldrich, J., Greenwood, October Term, 1906. Indictment against Dennis Washington for obstructing neighborhood road.

<p>1. Indictment. — Finding by Circuit Judge that part of an indictment had not been stricken out sustained.</p> <p>2. New Triad. — Refusal of motion for new trial on ground that evidence warranted the conviction of appellants for keeping a gaming house affirmed.</p>

Before Watts, J., Greenwood, February, 1907. Indictment against Henry Arnold for unlawful transportation of liquors. From sentence on verdict of guilty, defendant appeals. cites: The indictment should allege place to which the transportation is made: 11 Ency. P. & P., 572; 1 Rich., 179; 3 McC., 442; 1 Bail., 144; 2 Hill., 459; 1 McM., 488; 17 S. C., 473; 19 S. C., 140; 28 S. C., 16; 2 Brev., 262.

Before Memminger, J., Barnwell, November Term, 1907. Indictment against I. W. Rountree, James F. Rountree and Jim Stevens for larceny and receiving stolen goods. From verdict of guilty of receiving stolen goods as to I. W. and James F. Rountree, they appeal. cite: State must show defendants knew goods were stolen at the time received: 29 S'. C., 111. Oral argument.

Before Memminger, J., Aiken, Fall Term, 1907. Action by W. M. Hankinson against Piedmont Mutual Insurance Co. From judgment for plaintiff, defendant appeals. Messrs. Croft & Croft cite: A soliciting agent of a mutual insurance company cannot zvaive the by-laws and constitution made a part of contract of insurance: Richards on Ins., 76; 2 Abb. Pr.

Before James Ardrich, J., Fairfield, June, 1907. Indictment against Robert Starke Means for murder of Anna Belle Russel. From sentence on verdict of guilty, defendant appeals. Mr. Dixon cites: The original indictment did not charge anything: 10 Fncy., 455;' 1 Bish. Cr. Proc., secs. 88, 89, 90, 92, 93, 98, 507, 517, 518, 519, 520; 2 Hill, 397; 70 Mo., 480; 1 Rich., 179, 260; 3 McC., 377; Crim. Code, 60; Whar. Horn., secs. 796, 799, 807, 850, 851, 854, 856; 2 Bish. Cr.

<p>Before MemmingBr, J., Aiken, Fall Term, 1907.</p> <p>Action by W. W. Plunkett against the Piedmont Mutual Insurance Company. Prom judgment for plaintiff, defendant appeals.</p> <p>Messrs. Croft & Croft cite: The iron safe clause is an essential warranty: 65 Ark., 240; 63 Ark., 43; 8 Ind., 275; 4 L. R. A., N. S., 607; 58 Mo. App., 596; 63 N. Y\, 108; 169 111., 626. Such warranty cannot be waived by an agent except in the manner provided by the policy: 1 R. R. A., 216; 66 A. D., 410; Richards on Ins., 80; 9 A. D., Ill; 6 Gray, 169; 11 Cush., 265; 8 W. R., 815. Acceptance of premium or assessment by home office is a waiver of all forfeihires then known: 133 Mass., 85; 14 Gray, 203; 4 Allen, 116; 1 Beasley, 133; 65 N. Y., 21. It is a violation of duty of officer to alter contract contrary to by-laws: May on Ins., sec. 146; 9 Allen, 329; 6 Gray, 169; 8 Gray, 37; 1 R. R. A., 222; 73 N. Y., 5; 51 I. & S. Ins. Co. R., 475; 2 R. R. A., 418. Mere breach of warranty avoids policy: 40- R. R. A., 315; 111 Ga., 622; 4 R. R. A., N. S., 612; 117 U. S., 519; 15 Fed. R., 940; 86 A. D., 362; Richards on Ins, 62, 66.</p> <p>cite: As to instruction upon an issue not raised by the pleadings or a mistake in stating issues: 74 S. C., 136; 44 S. C., 546; 51 S. C., 469; 68 S. C., 38. Same principles apply to mutual assessment companies as to old line insurance companies: 19 Cyc., 777; 55 S. C., 589; 78 S. C., 403. As to the law of waiver generally applicable to insurance cases: 52 S. C., 228; 36 S. C., 273; 48 S. C., 195; 51 S. C., 186; 48 Am. St. R., 535; 78 S. C., 388; 74 S. C., 250; 77 S. C., 294, 489; 19 Cyc., 789.</p>

<p>Streets — Adverse Use — AcauiESCEircE. — Where a deed is made to a construction company engaged in building a railroad conveying to it a tract of land upon condition that it lay out on it a town, and convey certain lots to grantors, but first reserving for the railroad company certain portions of the tract particularly described, and where the deed from the construction company to the grantors for said lots particularly recites the said provision in the original deed as to the reservation for the railroad company, the railroad company is not bound by a mistake in the plat of the engineer of the construction company, in which he represented as a part of a street of the town a part of the land reserved to the railroad company, both deeds and plat being duly recorded. Nor is it bound by the acts of the construction company in selling lots bounding on said street. Ten years’ use of the street as laid out on the plat by the public as a street does not affect the right of the railroad company in absence of proof of acquiescence.</p>

<p>1. Demurrer. — In considering if a complaint is demurrable no pleadings or proceedings out of which the case at bar arose can be considered.</p> <p>2. Parties — Administrator. — Upon an obligation or tort accruing to an administrator after death of intestate, he may sue in his individual capacity.</p>

<p>Before Klugh, J., Pickens, February, 1908.</p> <p>Indictment against Samuel Hamilton for burglary and larceny. The defendant was indicted and tried September, 1906. Having been then convicted of larceny, he appealed, the Supreme Court granted a new trial, and at fall term, 1907, he was arraigned on the following indictment:</p> <p>“At a Court of General Sessions, begun and holden in and for the County of Pickens, in the State of South Carolina, at Pickens, in the county and State aforesaid, on the fourth Monday of September, in the year of our Lord one thous- and nine hundred and seven,</p> <p>“The jurors of and for the county aforesaid, in the State aforesaid, upon their oath, present, that Sam Hamilton, on the 15th day of May, in the year of our Lord one thousand nine hundred and six, at the hour of ten in the night of the same day, with force and arms, at Pickens, in the county and State aforesaid, the dwelling house of one W. R. Wyatt, there situate, feloniously and burglariously did break and enter with intent the goods and chattels of W. R. Wyatt, in the said dwelling house, then and there being, then and there feloniously and burglariously to steal, take and carry away, against the form of the statute in such case made and provided, and against the peace and dignity of the State.</p> <p>“And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Sam Hamilton, on the 15th day of May, in the year of our Lord one thousand nine hundred and six, with force and arms, at Pickens, in the County of Pickens and State aforesaid, one watch and necklace of the value of $50, of the proper goods and chattels of Addie Wyatt, then and there being found in W. R. Wyatt’s house, feloniously did steal, take and carry away from said dwelling house, against the form of the statute in such case made and provided, and against the peace and dignity of the State.”</p> <p>To this he interposed the following plea:</p> <p>“And the said Samuel Hamilton, being brought to the bar of this Court, and having heard the said indictment read and the matters therein contained, says, that he ought not to be put to answer and tried on the first count of the said indictment, he having, in due manner of law, been already put in jeopardy on account of the charge of burglary therein contained ; and for plea to said indictment he says, that- heretofore, .to wit, at the September, 1906, term of the Court of General Sessions at Pickens county he was duly arraigned upon a valid indictment, of which the following is a copy:</p> <p>“ 'INDICTMENT.</p> <p>“ 'The State of South Carolina, County of Pickens.</p> <p>“ At a Court of General Sessions, begun and holden in and for the County of Pickens, in the State of South Carolina, at Pickens, in the county and State aforesaid, on the fourth Monday of September, in the year of our Lord one thousand nine hundred and six,</p> <p>“ ‘The jurors of and for the county aforesaid, in the State aforesaid, upon their oath, present, that Samuel Hamilton, on the 15th day of May, in the year of our Lord one thous- and nine hundred and six, at the hour of ten in the night of the same day, with force and arms, at Pickens, in the county and State aforesaid, the dwelling house of one W. R. Wyatt, there situate, feloniously and burglariously did break and enter with intent the goods and chattels of W. R. Wyatt, in the said dwelling house then and there being, then and there feloniously and burglariously to steal, take and carry away, against the form of the statute in such case made and provided, and against the peace and dignity of the State.</p> <p>“ ‘And the jurors aforesaid, upon their oath aforesaid, do further present, that the said Samuel Hamilton, on the 15th day of May, in the year of our Lord one thousand nine hundred and six, with force and arms, at Pickens, in the County of Pickens, and State aforesaid, $35 good and lawful money of the United States, a further description to the jurors unknown, one gold watch and necklace, all of the value of $100, of the proper goods and chattels of W. R. Wyatt and his wife, Addie Wyatt, then and there being found in his dwelling house, feloniously did steal, take and carry away from said dwelling house, against the form of the statute in such case made and provided, and against the peace and dignity of the State.</p> <p>(Signed) “‘Julius E. Boggs, Solicitor.’</p> <p>“That to the said last mentioned indictment he did then and there plead ‘Not guilty,’ and for trial he placed himself upon God and his country; that jury of twelve electors was then and there duly empanelled and sworn to try the issues so joined between the State and the said Samuel Hamilton; that thereupon the following witnesess were sworn and examined on the part of the State: W. R. Wyatt, A. G. Smith, Robert Austin, Ella Reid, Claude Boggs, James Boggs, Alex. Austin, Furman Sanders and Walter Austin; that after the State had closed, the following witnesses were sworn on behalf of the defendant: Lula Langston, Mose Williams, Bird Jameson, Robert Lathem, John Benton, L. A. Young and Samuel Hamilton; that at the close of defendant’s testimony, defendant, through his attorneys, made a motion that the Court direct a verdict of ‘Not guilty’ as to the charge contained in the first count of the said indictment upon the ground that there was not a scintilla of testimony tending to sustain the said charge; that thereupon the said Court stated that it would direct a verdict of ‘Not guilty’ as to the first count in said indictment upon the ground on which the said motion was made; that thereupon the solicitor, without the consent of prisoner, stated that he would not ask for a verdict on said count, but that he would enter a nol. pros, on the said count; that, after argument of counsel for the State and the prisoner, the Court charged the jury, and in said charge he stated: ‘You heard the testimony in the case and the statement of the solicitor that he does not ask a verdict on the first count, and as to that count your verdict will be not guilty;’ that after said charge the jury retired, and thereafter returned the following verdict: ‘Guilty on second count.’</p> <p>“The said Samuel Hamilton further avers that upon said second count he was sentenced by the Court, that from the judgment imposed on the second count he appealed to the Supreme Court, which Court granted him a new trial.</p> <p>“The said Samuel Hamilton further avers that the said Samuel Hamilton mentioned in the former indictment and he, the said Samuel Hamilton who is charged by the present indictment, are one and the same, and not divers and different persons; that the felony and burglary in the said first count in the said former indictment mentioned and the felony and burglary in the first count in the present indictment mentioned, are one and the same felony and burglary, and not divers and different felonies and burglaries; and in all this he is ready to verify.</p> <p>“Wherefore,'he, the said Samuel Hamilton, says that he has been placed in jeopardy under the charge contained in the first count in said indictment, and that under Article I, section 17, of the Constitution of the State of South Carolina, he cannot again be placed,in jeopardy on said charge; and he prays the Court that he may be dismissed and discharged from the charge of burglary contained in said first count of said indictment.”</p> <p>From sentence on verdict on this indictment after plea of former jeopardy was overruled, defendant again appeals.</p> <p>cite: Plea of former jeopardy may be based on nol. pros, or withdrawal of charge: 1 Bail., 651; 47 S. C., 166.</p> <p>Mr. Lyon cites: Where verdict is set aside and new trial ordered at instance of defendant, he cannot plead former jeopardy: 73 S. C., 319; 55 S. C., 347.</p>

Before Gary,'J., Richland, May, 1908. Petition by U. R. Brooks, clerk of Supreme Court, for mandamus against A. W. Jones, Comptroller-General.

Before Klugh, J., Georgetown, , 1907. Indictment against John Porter for larceny of cattle From sentence on verdict of guilty, defendant appeals. Oral argument. cites: Alleged insufficiency of proof in a criminal case cannot be considered by this Court: 13 S. C., 453, 459.

Before Dantzler, J., Marlboro, October Term, 1907. Indictment against W. C. Maddox, charged with corrupting a juror. From sentence on verdict of guilty, defendant appeals. cite: At the time of the alleged approach of the juror he was not a juror chosen or appointed: 88 Fed., 882; 12 Wash., 53. Gift defined: 14 Ency., 1008. Gratuity defined: 14 Ency., 1116.

<p>Discontinuance — Discretion. — Where an action has been commenced, counterclaim set up and some evidence taken by plaintiff’s de bene esse, plaintiffs have not the right to discontinue on motion noticed, but discontinuance is discretional with trial Judge.</p>

Before Memminger, J., Barnwell, Fall term, 1907. Action by R. J. Mims and Lizzie Mims against Sarah Hair. From judgment for plaintiffs, defendant appeals. No argument furnished Reporter. cite: Whether defendant held title from the executors is for jury: 14 S. C., 540. Partition may he proved by oral evidence: 2 S. E., 884; 2 Rich., 6g9; 4 John., 212; 21 S. C., 485.

Before Prince, J., Chester, November, 1906. Action by John G. Cousar and T. J. Cunningham against Heath, Witherspoon & Co. and Henry Samuels. From judgment for plaintiffs, defendants appeal. Mr. McPadden cites: Plaintiffs were partners: 14 S. C., 21; 1 N. & McC., SO; and suit should have been brought by them as such: Code of Proc., 132; 16 Ency. P. & P., 854-856; Dicey on Parties, 169, 170, 17S, 5S4.

Before Klugh, J., Florence, March, 1907. Action by S. A. Munn and Walter Cain against J. A. McWhite, Mrs. M. A. McWhite and E. W. McWhite.

Before Prince, J., Richland, July, 1907. Motion in case of LeHardy, Thesmar & Co. against L. V. Dibble. Prom order refusing motion, defendant appeals. cite: Residence means “domicile,” which depends on intention as well as location: Code of Proc., sec. 141; 47 S. C., 98; 24 Ency., 696-699; 10 Ency., 9; 6 h R. A., 717; 1 Speer Eq., 13; Code 1902, 2489; 5 Stat, 108; 22 Ency. P. & P., 779.

Before DantzijSr, J., Florence, March, 1908. Action by Silcox & Co. against Ella E. Jones and B. Wallace Jones.

Before Gary, J., Richland, October, 1907. Motion to strike out in G. A. Guignard against J. H. Evans, the First Baptist Church of Sumter, and C. C. Brown. From order granting the motion, plaintiff appeals. cites: Joinder of parties: 96 U. S., 89; 51 S. C., 543; 39 S. C„ 14; 68 S. C., 32, 396. Principal and guarantor should be made codefendants: Code of Proc., 139, 141; 10 S. C., 179, 256; 17 S. C., Ill; 15 Fncy., 548; 16 Ency.

<p>Trusts — Remaindermen- — -Equity.—Where a deed conveys lands to a trustee in trust for R. for life, and after his death to his issue surviving, upon a proper case made, all parties in esse being before the Court, the first trustee consenting to relinquish his right, the Court may appoint another trustee, empower him to sell the land, to pay to the life tenant one-tenth of the proceeds in lieu of his life interest, to pay to one of the nine children of R. one-ninth of the remainder, to invest balance, to pay to wife of R. the income during her natural life for maintenance of herself and such children as live with her, and upon her death to divide the remaining corpus among the issue surviving R.</p>

<p>1. Injunction — Nuisance. — Erection of .a dam across a navigable stream will not be enjoined merely because it will be a public nuisance.</p> <p>2. Ibid. — Condemnation — Corporations.—The charter of the Central Carolina Power Company, providing that it shall, on demand, sell or furnish power to any person or corporation for manufacturing or lighting purposes on payment of the usual rates or charges, makes it a public corporation, and the Legislature, under the provisions of section 34 of Article III of the Constitution, may empower it to condemn land of private persons to be flooded by reason of a dam to be erected across a river; that the corporation will not comply with this provision in its charter cannot be considered on application to enjoin the condemnation.</p>

<p>Petition in the original jurisdiction of this Court by E. Dudley Hodge to enjoin A. Devi, W. C. Davis and Joseph Sprott, as board of trustees of school district No. nine, of Clarendon county, from issuing certain school district bonds.</p>

<p>Carrier — Freight — Penalty—Waiver.—To entitle a consignee of freight to the penalty provided by 34 Stat., 81, for failure to adjust damage, filing with the agent of carrier the bill of lading, invoice and a list of the shortage is a sufficient filing of the claim. Here the carrier waived his right to require strict compliance with the statute by accepting said papers and promising, in writing, to adjust the loss.</p>

<p>Before Purdy, J., Cherokee, July, 1907.</p> <p>Action by C. E. Rippy & Co. against Southern Railway. From Circuit order sustaining judgment of Magistrate B. J. Gold, defendant appeals.</p> <p>cites: Plaintiff not entitled to penalty: 72 S. C., 479. Upon notice to produce original proof of its existence must be shown before copy is competent: McKelvy on Ev., 348; 1 Green. Ev., sec. 588; 43 S. C., 24.</p> <p>cites: Delivery of part of shipment to consignee is prima facie delivery of whole to carrier: 66 S. C., 478; 76 S. C., 309; Charles v. Ry. and Cooper v. Ry., 78 S. C.</p>

<p>Before Wilson, J., Fairfield, October, 1907.</p> <p>Action by W. C. Beaty & Co. against Southern Railway Company. From Circuit order affirming judgment of magistrate court, defendant appeals.</p> <p>cites: 2 Elliott on Ev., secs. 1265, 1266; McKelvey on Ev., 590; 2 Wig. on Ev., 1266-86; 59 S. C., 590; 60 S. C., 300; 68 S. C., 98; 69 S. C., 430; 71 S. C., 432; 73 S. C., 506;'75 S. C., 345.</p> <p>cites: 2 Ency., 374; Green. Ev., 560; 43 S. C., 405; 13 Rich., 76; 11 Rich., 67; 2 Rich., 146; 60 S. C., 300; 1 Green. Ev., secs. 82-84; 2 Queen Bench, 113; Chamberlyn Best on Ev., 70, 71, 423; 48 Neb., 216; McKelvey on Ev., 256; 10 Ind., 125; 56 Mass., 494; 102 Mass., 362; 151 Mass., 538, 491; 24 S. W. R., 372; 18 Johns., 451; 7 Tex., 288; 6 C. & P., 206; 7 M. & W., 102; 84 N. C., 314; 29 N. C., 415; 50 Minn., 424; 3 Mont., 65; 9 Vt., 326; 69 S. C., 70; 31 S. C., 608; 43 S. C., 405; 22 S. C., 198; 21 S. C., 429; 76 S. C., 312; 75 S. C., 297.</p>

Before James Aldrich, J., Cherokee, March, 1907. Action by M. H. Kitchens 'against Southern Railway Company. From judgment for plaintiff, defendant appeals. cite: Defendant owed no duty to plaintiff in management of its trains: 1 Shear, and' Red. on Neg.; 7 Ami. St. R., 751; 21 Am. St. R., 104; 2 Am. St. R., 120; 24 Am. St. R., 33; 25 Am. St. R., 397; 32 Am. St. R.y 842; 61 S. C., 491. Plaintiff was guilty of negligence which contributed to his injury: 41 Am. & Eng.

<p>Before Purdy, J., Cherokee, July, 1907.</p> <p>Action by W. Pink Rippy against Southern Railway-Company. Promi order of nonsuit on circuit, plaintiff appeals.</p> <p>cites: Plaintiff was injured by the negligence of the master: Sec. 15, art. IX, Con, ; 56 S. C., 455; 23 S. C., 529; 73 S. C., 571, 502; 70 S. C., 327; 1 Rab. on M. & S., 12-, 13, 14; 51 S. C., 96; 71 S. C., 50; 18 S. C., 262. There was intentional wrong here: 54 S, C., 305; 74 S. C., 391; 46 & C., 104; 60 S. C., 9; 61 S. C., 481. Contributory negligence is matter of defense and cannot be considered on motion for nonsuit: 34 S. C., 211; 25 S. C., 128; 26 S' C., 49; 29 S. C., 309.</p> <p>cite: Whether the offending servant was a fellow-servant depends upon the character of the work: 39 S. C., 510; 51 S'. C., 96; 71 S. C., 53; RaBatt oni M. & S.,'secs. 679, 688; 26 Cyc., 1364; 36 S'O'., 691. If sec ip, art. IX. of Constitution applies to this case, it violates the Federal Constitution: 40 Minn., 249; 8 R. R. A., 419; 1 R. R. A., 696; 88 Miss., 314; 127 U. S., 205; 49 N. W., 302; 24 N. W., 600.</p>

Before Gage., J., Lancaster, June 25, 1908. Controversy without action' by Town of Lancaster against First National Bank of Lancaster, Bank of Lancaster and Fanners’ Bank and Trust Company. From Circuit decree plaintiff appeals under stipulation to have questions passed on by the Supreme Court.

Before MemmingEr, J., Aiken, October, 1907. Action by May & Glover against Augusta and Aiken Railway Company. From Circuit judgment affirming judgment of Magistrate D. H. Turner, defendant appeals. The magistrate made the following report: “This is an action for damages to goods, and the penalty of fifty dollars for failing to adjust the loss within ninety days.

Before Watts, J., Spartanburg, October, 1907. Action by Sue C. Cannon against E. B. Dean. From judgment for plaintiff, defendant appeals.

Before Purdy, J., Spartanburg, July, 1907. Action by Summey Shaw against Arkwright Mills. From judgment for plaintiff, defendant appeals. cite: There was no negligence on part of defendant: 22 S. C., 558; 55 S. C., 183; 71 S. C., 53; 73 S. C., 313, 36-1, 316; 75 S. C., 189. Where injuries are caused by plaintiff’s own negligence, nonsuit should be granted: 33 S. C., 389; 39 S. C., 100; 58 S. C., 195; 61 S. C., 561; 66 S. C., 533; 73 S. C., 337; Lyon v. Ry., 77 S. C., .

Before Klugh, J., Clarendon, July, 1907. Action by J. T. McNeill against Preston Conyers. From Circuit order affirming judgment of Magistrate J. S. Sellers, plaintiff appeals. cites :An agricultural lien is but a contract and should be so construe:d 39 S. W., 3; 108 Fed., 171.